Rippetoe v. State

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NOT DESIGNATED FOR PUBLICATION

No. 115,822

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DARRICK A. RIPPETOE,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge. Opinion filed August 25,
2017. Affirmed.

Sam Schirer, of Kansas Appellate Defender Office, for appellant.

Edmond Brancart, special assistant district attorney, Jerome A. Gorman, district attorney, and
Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., ATCHESON, J., and FAIRCHILD, S.J.

PER CURIAM: After an evidentiary hearing, the Wyandotte County District Court
denied Darrick A. Rippetoe's motion for habeas corpus relief from convictions and
sentences imposed on him as part of a negotiated plea of several felonies that resulted in
his being placed on probation. Rippetoe failed on probation and began serving the
lengthy sentences. He then filed this motion under K.S.A. 60-1507 claiming his legal
representation fell below the standard of adequacy required in the Sixth Amendment to
the United States Constitution and asserting that but for the inadequate lawyering he
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would have rejected the plea deal and gone to trial. We find no error in the district court's
denial of Rippetoe's motion and affirm.

FACTUAL AND PROCEDURAL HISTORY

In 2012, Rippetoe faced felony charges in four separate cases in the district court.
In 10 CR 1548, the State charged Rippetoe with involuntary manslaughter for striking
and killing a pedestrian while driving under the influence of alcohol or drugs and then
leaving the scene. In 11 CR 997, the State charged Rippetoe with aggravated battery and
aggravated intimidation of a witness for an attack on a person identified as a potential
witness in the involuntary manslaughter case. In 11 CR 150, the State charged Rippetoe
with felony theft. In 11 CR 1181, the State charged Rippetoe with aggravated failure to
appear. Rippetoe was no stranger to the criminal justice system. He had previous
convictions for several felonies and misdemeanors.

The district attorney's office and Rippetoe's lawyer worked out an elaborate plea
arrangement in late summer 2012 disposing of all of the cases. Under the agreement, the
State dismissed the theft and failure-to-appear cases. Rippetoe agreed to plead guilty to
involuntary manslaughter in 10 CR 1548 and to aggravated battery and aggravated
intimidation in 11 CR 997. The agreement included a joint sentencing recommendation:

•An aggravated guidelines sentence for involuntary manslaughter in 10 CR 1548
to be served consecutive to the sentence in 11 CR 997, plus postrelease supervision;

•A downward durational departure of 30 months on an aggravated guideline
sentence for aggravated battery in 11 CR 997 to be served concurrent with an aggravated
guideline sentence for aggravated intimidation of a witness in that case;

•A dispositional departure to probation in both 10 CR 1548 and 11 CR 997; and
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•Payment of restitution, as appropriate, in all four cases.

The district court held a hearing in September 2012 at which the agreement was placed
on the record, the State dismissed 2011 CR 1520 and 2011 CR 1181, and Rippetoe
pleaded guilty in 10 CR 1548 and 11 CR 997. The district court accepted the pleas after a
lengthy discussion with Rippetoe and the lawyers during which Rippetoe was advised of
potential maximum sentences and waived his right to trial.

After presentence investigation reports were prepared in 10 CR 1548 and 11 CR
997 and distributed to the lawyers about 2 months later, the district court sentenced
Rippetoe in conformity with the plea agreement. Rippetoe received a sentence of 128
months on the involuntary manslaughter conviction in 10 CR 1548 and a controlling
sentence of 45 months on the aggravated battery conviction in 11 CR 997, yielding an
overall term of 172 months in prison to be followed by 24 months of postrelease
supervision. The district court placed Rippetoe on probation for 36 months.

In February 2013, the State filed a motion to revoke Rippetoe's probation for
violating several conditions and later amended the motion to include allegations that
Rippetoe had admitted using alcohol and methamphetamine. At a revocation hearing in
April, Rippetoe stipulated to some of the violations including his use of alcohol and
methamphetamine. The district court revoked the probation and ordered Rippetoe to
serve the underlying sentences in both cases.

Rippetoe appealed the probation revocation to this court. While the appeal was
pending, he filed a motion in the district court for habeas corpus relief, as provided in
K.S.A. 60-1507. The district court dismissed the motion because the probation revocation
appeal had not been decided. Rippetoe voluntarily dismissed the appeal. He filed a new
habeas corpus motion in April 2014 alleging the lawyer handling the pleas and
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sentencing inadequately represented him. We outline the particular allegations of
substandard representation in our legal analysis. The district court held an evidentiary
hearing on the motion in February 2016 and filed a written order in early March denying
the motion. Rippetoe has now appealed that ruling.

LEGAL ANALYSIS

When reviewing the denial of a 60-1507 motion after a full evidentiary hearing, an
appellate court accepts the district court's findings of fact to the extent they are supported
with substantial competent evidence. The appellate court exercises unlimited review of
the determinative legal issues in light of those factual findings. Bellamy v. State, 285 Kan.
346, 355, 172 P.3d 10 (2007).

The Sixth Amendment guarantees a criminal defendant the right to competent
legal representation. To demonstrate constitutionally ineffective assistance of the lawyer
handling his criminal case in the district court, Rippetoe must show the representation fell
below an objective standard of reasonableness resulting in legal prejudice, meaning there
probably would have been a different outcome had the representation been adequate. See
Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3-4, 694 P.2d 468 (1985) (adopting
and stating Strickland test for ineffective assistance); see also Haddock v. State, 282 Kan.
475, 512-13, 146 P.3d 187 (2006) (stating Strickland test and Chamberlain standard of
review).

In short, Rippetoe must identify both substandard lawyering and resulting legal
prejudice. As the United States Supreme Court and the Kansas Supreme Court have
emphasized, review of the representation should be deferential and hindsight criticism
tempered lest the evaluation of a lawyer's performance be unduly colored by an arguable
or perceived lack of success. See Strickland, 466 U.S. at 689-90 (noting potential
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distorting effects of hindsight review, so courts generally should presume lawyer's
representation falls within "wide range of reasonable professional assistance"); Holmes v.
State, 292 Kan. 271, 275, 252 P.3d 573 (2011). By attacking the pleas and resulting
convictions in his 60-1507 motion, Rippetoe must prove the prejudice component of the
Strickland test by establishing that with constitutionally adequate representation he would
have chosen to go to trial rather than to plead. Hill v. Lockhart, 474 U.S. 52, 58-59, 106
S. Ct. 366, 88 L. Ed. 2d 203 (1985); State v. Adams, 297 Kan. 665, 666, 304 P.3d 311
(2013); State v. Szczygiel, 294 Kan. 642, 646-47, 279 P.3d 700 (2012) (Sixth Amendment
ineffectiveness of counsel and resulting prejudice in context of motion to withdraw plea).

Reviewing courts commonly first assess the quality of the representation, and if it
satisfies the Sixth Amendment standard of adequacy, they dispense with any
consideration of prejudice as unnecessary. The district court did so here. But that is not a
hard and fast approach. A reviewing court may deny relief based on the absence of
prejudice without deciding the constitutional sufficiency of the legal representation. See
Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice . . . that course should be followed."); Sola-Morales
v. State, 300 Kan. 875, 886, 335 P.3d 1162 (2014). We choose that approach.

Rippetoe contends that before the plea hearing, the lawyer representing him on the
criminal charges misinformed him about the length of the total underlying sentence he
likely would receive if he were placed on probation. That's the amount of time Rippetoe
probably would spend in prison if he were to violate the terms of his probation. Rippetoe
claims the lawyer said the overall sentence would be no more than about 8 years. At the
60-1507 hearing, the lawyer testified he told Rippetoe the plea deal would include a
lengthy underlying sentence but believes he did not identify a specific or approximate
term because that would depend on Rippetoe's criminal history. The lawyer said he
emphasized that the plea offer included a joint recommendation to the district court for
probation.
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According to Rippetoe, the lawyer also never explained that because he would be
entering pleas in two separate cases on the same day, each would be counted as part of
his criminal history in the other, thereby increasing the presumptive guideline sentences.
And he says that point—what has since been referred to as the "crisscross" effect—wasn't
understandably explained to him when he entered his pleas in the district court. At the 60-
1507 hearing, the lawyer testified that the district attorney's office refused to consolidate
the cases for plea, which would have eliminated the crisscross effect. The lawyer agreed
the point can be hard to understand and Rippetoe seemed to be "consistently confused"
about the underlying sentence he faced as the case moved toward sentencing.

Rippetoe asserts that had he been competently advised he would have refused the
plea deal with its underlying prison term of 173 months in favor of going to trial. So,
Rippetoe says he should get a trial (or trials) now.

For purposes of this appeal, we assume without deciding that the lawyer did not
provide Rippetoe constitutionally adequate representation leading up to the plea hearing,
at the plea hearing, and through sentencing by failing to estimate his likely prison
sentence and failing to outline how his criminal history would be determined. We
underscore that our assumption is just that—an assumption—and we intend no intimation
whatsoever about the quality of the lawyer's actual performance. Nonetheless, we
dispense with an analysis of the competency component of the Strickland test and turn to
the prejudice component.

Apart from Rippetoe's bare assertion that he would have gone to trial—an
assertion he made for the first time after his probation had been revoked and he faced
nearly 15 years in prison—all of the evidence is to the contrary. The presentence
investigation reports made available to Rippetoe and his lawyer before the sentencing
hearing were consistent with a controlling prison term under the plea agreement of far
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more than 8 years. But that ostensible discrepancy apparently didn't prompt Rippetoe to
speak up. Even if Rippetoe missed that signal, he knew the length of the underlying
prison term for sure as soon as he was sentenced. But Rippetoe said nothing during the
sentencing hearing about some problem with the punishment he received. And he did not
try to withdraw his plea after the sentencing. See K.S.A. 2016 Supp. 22-3210(d)(2)
(defendant has up to 1 year to move to withdraw plea after sentencing to prevent
"manifest injustice").

Rippetoe didn't do any of those things because he received probation—the
principal benefit he sought in the plea agreement. Rippetoe's lawyer painstakingly
underscored the importance of probation to his client at the sentencing hearing in an
effort to persuade the district court to follow the plea agreement. He told the district court
Rippetoe had been and remained deeply remorseful about the death of the man he hit.
The lawyer emphasized Rippetoe was the primary parent to his infant child and "want[ed]
to live on probation for his child." To that end, the lawyer explained Rippetoe has secured
a good job. Finally, the lawyer also pointed out that under the plea agreement, Rippetoe
would face more than a decade in prison if he were unsuccessful on probation.

Rippetoe first cried foul months later only after he had frittered away his
probation. Under the circumstances, Rippetoe has failed to show he actually would have
gone to trial. His conduct was to the contrary. And the law gives weight to the adage that
oftentimes actions speak louder than words. See State v. Rutter, 252 Kan. 739, 746, 850
P.2d 899 (1993); State ex rel. SRS v. Ketzel, 47 Kan. App. 2d 536, Syl. ¶ 3, 275 P.3d 923
(2012). This is one of those times.

Had Rippetoe rebuffed the plea agreement, he would have been tried on the
charges in all four of the cases. If convicted, he would have faced additional sentences in
the cases that were dismissed as part of the agreement. He also would have risked some
combination of consecutive sentences. And he almost certainly would not have gotten a
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recommendation from the State for any sort of durational or dispositional departure.
Probation would have been little more than a theoretical possibility.

The record demonstrates Rippetoe would have accepted the plea arrangement had
he been fully advised of its sentencing ramifications before the plea hearing—assuming
he had not actually been so informed. To reiterate, whatever his lawyer's advice, Rippetoe
clearly knew those ramifications immediately after the district court sentenced him. But
he protested only after his probation had been revoked months later. The timing of
Rippetoe's complaint about his legal representation points to a ploy to avoid the
consequences of his own wrongful conduct in squandering his probation rather than a
genuine or cognizable request to have his fate decided in a jury room. Rippetoe,
therefore, has not and cannot demonstrate prejudice satisfying the second part of the
Strickland test. His 60-1507 motion fails for that reason. See Adams, 297 Kan. at 666
(denial of 60-1507 motion upheld on appeal where record fails to show defendant would
have gone to trial rather than entering plea even if she had been adequately represented).
So, for that reason, we affirm the district court.

Affirmed.