State v. Allen

1

NOT DESIGNATED FOR PUBLICATION

No. 117,485

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KEITH GREGORY ALLEN,
Appellant.


MEMORANDUM OPINION

Appeal from Atchison District Court; ROBERT J. BEDNAR, judge. Opinion filed February 2, 2018.
Vacated in part and remanded with directions.

Andrew E. Werring, of Werring Law Office LLC, of Atchison, for appellant.

Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., MALONE and ATCHESON, JJ.

PER CURIAM: Keith Gregory Allen appeals his conviction of battery, claiming that
the district court erred in failing to suspend proceedings and hold a competency hearing
pursuant to K.S.A. 2016 Supp. 22-3302. For the reasons stated herein, we agree, at least
in part, with Allen's claim and remand for further proceedings.

On June 13, 2016, the State charged Allen with one count each of robbery,
intimidation of a witness, and domestic battery. The State later amended the domestic
battery charge to simple battery. At a hearing on June 27, 2016, pursuant to what appears
2

to have been a very favorable plea agreement for Allen, he pled guilty to the charge of
simple battery and the State dismissed the other charges.

On July 21, 2016, Allen filed a motion through his counsel to set aside his guilty
plea. In that motion, Allen explained that he wished to withdraw his guilty plea because
he "believe[d] he did nothing wrong." Allen's counsel later asked to withdraw from the
case, and the district court granted this request and appointed new counsel for Allen.

On March 22, 2017, the district court held a hearing on Allen's motion to withdraw
his guilty plea. After arriving 25 minutes late for the hearing, Allen took the stand and
testified in an attempt to withdraw his plea. Initially during his direct examination, Allen
appeared confused about the charges against him, possibly because of the number of
different cases pending against him in district court. But after counsel reminded him
which case was at hand, Allen appeared to understand the proceedings taking place.

Allen testified that he never actually wanted to plead guilty to the battery charge.
He went on to say that he never did anything wrong and that he felt rushed and frightened
into pleading guilty. Allen also claimed that he told his previous attorney that he did not
want to plead guilty. Finally, Allen claimed that he only answered "yes" to the judge's
questions at the plea hearing because his previous attorney had told him to do so.

The State did not cross-examine Allen. The district court questioned him, though,
and read to Allen from the transcript of his plea hearing. Allen admitted that the court
read all of his answers correctly. However, Allen claimed that during the prior hearing he
had stated he did not want to plead guilty to battery.

After Allen completed his testimony, the district court asked Allen's counsel if he
had any further evidence to present on the motion to withdraw the plea. Defense counsel
responded that he had no further evidence, but at that point, he stated that he
3

"question[ed] the competency level" of Allen based on his confusing testimony at the
hearing and also based on counsel's conversations with Allen before the hearing. The
district court then asked whether anyone had filed a motion to determine Allen's
competency. Defense counsel responded: "I anticipate filing one." The district court said
it would be happy to consider such a motion when it was filed.

The district court then turned to the motion to withdraw plea. Using the factors set
out in State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006), the district court found that
Allen was represented by competent counsel, that Allen was never misled or coerced, and
that Allen understood the proceedings when he pled guilty. Thus, the district court denied
Allen's motion to withdraw his plea.

After denying the motion, the district court asked the parties if they were ready to
proceed to sentencing. The record on appeal does not reflect whether the case was
actually scheduled for sentencing that day. The State and defense counsel indicated that
they were ready to proceed, but Allen expressly stated that he was not ready to proceed.
Without asking Allen why he was not ready to proceed, the district court indicated that it
would not continue the case any further, and the court proceeded to sentencing. Based
upon the State's recommendation, the district court sentenced Allen to six months in the
Atchison County Jail. The following day, Allen filed his notice of appeal.

On appeal, Allen presents a procedural competency claim. In particular, Allen
claims that when his counsel raised the issue of whether he was competent at the hearing
on the motion to withdraw plea, the district court should have suspended the proceedings
for a competency hearing. Allen contends that the district court committed reversible
error and asks this court to reverse his conviction and remand for a competency hearing.

The State contends that the district court did not err when it proceeded to
sentencing in the absence of a motion to determine competency. The State asserts that
4

there was no sufficient reason for the district court to be concerned about Allen's
competency, so in the absence of a formal motion to determine competency, Allen's
statutory rights were not violated.

We begin by finding that we have jurisdiction over Allen's appeal. K.S.A. 2016
Supp. 22-3602(a) broadly prohibits an appeal "from a judgment of conviction before a
district judge upon a plea of guilty or nolo contendere." However, this statute does not
preclude a defendant who has pled guilty or nolo contendere from taking a direct appeal
from the district court's denial of a motion to withdraw the plea. State v. Solomon, 257
Kan. 212, 218-19, 891 P.2d 407 (1995). Because Allen filed a motion to withdraw his
guilty plea, which the district court denied, we have jurisdiction over this appeal.

We also find that Allen's competency issue is properly preserved for appeal.
Although Allen never filed a formal motion to determine competency, the issue certainly
was raised in his final hearing in district court. Moreover, our Supreme Court has held
that competency can be challenged for the first time on appeal because the issue involves
due process and compliance with K.S.A. 2016 Supp. 22-3302. State v. Foster, 290 Kan.
696, 702, 233 P.3d 265 (2010).

Resolution of Allen's claim on appeal requires interpretation of K.S.A. 2016 Supp.
22-3302. Interpretation of a statute is a question of law over which appellate courts have
unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).

Due process prohibits the criminal prosecution of an incompetent person. State v.
Woods, 301 Kan. 852, 857, 348 P.3d 583 (2015) (citing Medina v. California, 505 U.S.
437, 453, 112 S. Ct. 2572, 120 L. Ed. 2d 353 [1992]). A criminal defendant may not be
tried unless he or she has the ability to consult with a lawyer and a factual understanding
of the proceedings. See State v. Barnes, 293 Kan. 240, 256, 262 P.3d 297 (2011).
5

In Kansas, K.S.A. 22-3301 et seq. governs the competency of a defendant to stand
trial. Pursuant to K.S.A. 22-3301(1), a person is deemed incompetent to stand trial when
he or she is charged with a crime and, because of mental illness or defect, is unable to
understand the nature and purpose of the proceedings or to make or assist in his or her
defense. Although the statute expressly addresses a defendant's competency "to stand
trial," the law is clear that a criminal defendant also must be competent for sentencing.
See State v. Hall, 292 Kan. 862, 868, 257 P.3d 263 (2011).

K.S.A. 2016 Supp. 22-3302(1) provides:

"At any time after the defendant has been charged with a crime and before
pronouncement of sentence, the defendant, the defendant's counsel or the prosecuting
attorney may request a determination of the defendant's competency to stand trial. If,
upon the request of either party or upon the judge's own knowledge and observation, the
judge before whom the case is pending finds that there is reason to believe that the
defendant is incompetent to stand trial the proceedings shall be suspended and a hearing
conducted to determine the competency of the defendant."

According to this statute, all parties to the proceedings—including the defendant,
the defendant's counsel, the State, and the court sua sponte—may raise the issue of the
defendant's competency at any time after the State has filed charges but before
pronouncement of the sentence. The statute provides that if the judge before whom the
case is pending finds that there is reason to believe that the defendant is incompetent, the
proceedings shall be suspended and a hearing conducted to determine the competency of
the defendant. K.S.A. 2016 Supp. 22-3302(1).

Our Supreme Court has explained that the statutory directive to suspend the
proceedings and conduct a hearing is triggered after the district court finds that there is
reason to believe that the defendant is incompetent. In the absence of such a finding, the
district court is not required to halt the proceedings for a competency hearing. State v.
6

Donaldson, 302 Kan. 731, 735-36, 355 P.3d 689 (2015). Stated differently, a court must
first make the predicate finding "that there is reason to believe that the defendant is
incompetent to stand trial" before the statute mandates a competency hearing and
suspension of proceedings. K.S.A. 2016 Supp. 22-3302(1).

Returning to Allen's case, the State makes much of the fact that no written motion
to determine Allen's competency was ever filed in district court. However, defense
counsel certainly raised the issue at the motion to withdraw plea hearing by expressly
stating that he "question[ed] the competency level" of Allen based on his confusing
testimony at the hearing and also based on counsel's conversations with Allen before the
hearing. When the district court asked if anyone had filed a motion to determine
competency, defense counsel stated: "I anticipate filing one." The district court said it
would be happy to consider such a motion when it was filed. But as we will discuss more
in a moment, the district court never gave defense counsel a chance to file the motion.

As we have just discussed, K.S.A. 2016 Supp. 22-3302(1) requires the district
court to find that there is reason to believe that the defendant is incompetent before the
statute mandates a competency hearing and suspension of the proceedings. Here, the
district court never made this specific finding. The problem as we see it, however, is that
the district court failed to make any finding one way or another in response to the
competency issue raised by defense counsel. Had the district court simply stated that
based on its observations of Allen in the courtroom, it believed that Allen was competent
to continue with the proceedings, such a finding may have been sufficient to address the
issue raised by defense counsel. We would at least have a finding on the competency
issue subject to review on appeal. Instead, the district court stated that it would be happy
to consider a competency motion if one was ever filed, but then it did not give Allen's
counsel time to file such a motion before proceeding directly with sentencing—and that's
our main problem with how the district court handled the competency issue.

7

After the district court sidestepped the competency issue raised by defense
counsel, it proceeded to deny Allen's motion to withdraw his plea. The district court then
proceeded directly with sentencing even though Allen expressly stated that he was not
ready to proceed with the sentencing hearing. The district court did not ask Allen why he
was not ready to proceed, it simply indicated that it was not going to continue sentencing
anymore. Once the sentencing hearing was completed, it was too late for Allen's counsel
to file a competency motion as the statute expressly provides that such a motion must be
filed "before pronouncement of sentence." K.S.A. 2016 Supp. 22-3302(1).

Under the unusual facts of Allen's case, we conclude that the district court failed to
sufficiently comply with K.S.A. 2016 Supp. 22-3302(1) in the manner that it sidestepped
Allen's competency issue. We disagree with Allen's claim that this error requires the
reversal of his conviction. Instead, we need to remand for further proceedings and return
the parties to the point where the competency issue was raised. Thus, we vacate Allen's
sentence and set aside the district court's ruling on the motion to withdraw plea. In light
of the fact that the district court stated that it would be happy to consider a competency
motion when it was filed, we direct that defense counsel be permitted to file a motion to
determine Allen's competency. Thereafter, the district court must follow the procedures
set forth in K.S.A. 2016 Supp. 22-3302 in addressing the motion. That statute allows the
district court to either summarily deny the motion or to suspend the proceedings and
order a psychiatric or psychological examination of Allen to assist in determining his
competency. Once Allen's competency is properly addressed, assuming he is found
competent, the district court can proceed to rule again on the motion to withdraw plea
and, assuming it is denied, proceed to sentence Allen for his battery conviction.

Vacated in part and remanded with directions.