State v. Davis

1

NOT DESIGNATED FOR PUBLICATION

No. 116,959

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MARVIN B. DAVIS JR.,
Appellant.


MEMORANDUM OPINION


Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed November 21,
2018. Affirmed.

Angela M. Davidson, of Wyatt & Davidson, LLC, of Salina, for appellant, and Marvin B. Davis
Jr., appellant pro se.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ATCHESON, P.J., HILL, J., and STUTZMAN, S.J.

PER CURIAM: Because we have found no abuse of discretion by the district court
when it denied Marvin B. Davis Jr.'s pro se pretrial motion to declare the Kansas
Offender Registration Act unconstitutional, we affirm.



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The case history reveals that Davis had counsel.

As a result of plea negotiations, Davis agreed to enter a no contest plea to an
amended charge of attempted offender registration violation. In exchange for the plea, the
State agreed to dismiss a remaining charge and make some sentencing recommendations.
The State avowed to ask the court to: sentence Davis to the mid-number in the
appropriate sentencing guidelines box; follow the statutory presumption of prison; and
order him to serve this sentence consecutive to all prior sentences. Jon Hansen was Davis'
first court appointed defense counsel who was later replaced by Bradley Sylvester.

When the court held a plea hearing, Davis was present with Sylvester. The judge
addressed Davis directly to explain the rights he would be waiving if he proceeded with a
no contest plea:

"[T]here are consequences to your decision to enter a plea of no contest. There will be no
trial. You will be giving up all of your defenses. You will also be giving up your right to
appeal this case, with the exception of the sentencing part of the case. As I said earlier, I
will find you guilty based upon your plea."

Davis stated explicitly that he understood the rights he would be waiving. He told the
district court that he read both the plea agreement and the acknowledgment of his rights
and entry of plea, and he signed them both. Davis told the court that Sylvester explained
the documents to him, he understood what the documents said and meant, and he had no
questions. The district court told Davis that the jury was available and ready to go, but
Davis conveyed he wanted to proceed with his plea. Davis also initialed the plea
agreement in open court and on the record.

The State suggested that Davis' anticipated criminal history score was B. The
district court informed Davis of the sentencing range for the crime of attempted
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registration violation. Davis stated that range of possible sentences was consistent with
his understanding. Davis denied that he was threatened or forced into entering the plea
agreement. He denied that he used or consumed any substances that could alter his
understanding of his rights, and he denied that he had any medical or physical problems
in understanding his rights. Davis also stated that he was satisfied with Sylvester's
services and he had sufficient time to speak with Sylvester about his options and the
ramifications of entering a plea. Davis stated he still wanted to waive his rights and enter
a plea.

The State provided the factual basis for the amended charge, which the district
court found was adequate to support Davis' plea. The district court found Davis
understood the charge against him and the consequences of entering a plea. The court
also found that Davis knowingly and voluntarily waived his rights and entered his plea.
After accepting Davis' plea, the district court found him guilty of the charge and, in
accordance with the plea agreement, dismissed the remaining charge.

Three days before sentencing, Davis filed a document titled "SUPPLEMENTAL
PLEADINGS TO PRO SE MOTION FOR FINDING K.S.A. 22-4905(g) & K.S.A. 22-
4902(i) & (j) ARE CONSTITUTIONALLY INFIRM AND VOID-FOR-VAGUENESS
IN VIOLATION OF DUE PROCESS." In this document, Davis challenged some aspects
of KORA on the grammar and punctuation of statutory provisions and definitions
pertinent to residency and employment. He claimed that the statutes were ambiguous,
constitutionally infirm, and void for vagueness. On the last page of this document, Davis
wrote: "WHEREFORE, the plea, conviction [and/or sentence] is constitutionally infirm
and void (See Papachristan v. City of Jacksonville, 405 US 156 (1972); City of Chicago
v. Morales, 527 US 41, 61 (1999)) and must be vacated and dismissed with prejudice and
Davis released from all custody forthwith."

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Later, at the sentencing hearing, Sylvester raised the topic of Davis' recent pro se
motion:

"I would also note for the court, my client filed his own void for vagueness
motion in this case, which I did not adopt. I've litigated these things before and this is one
of those curious situations where a person has a pro se argument, but then the courts have
often said well, too bad, you've got an attorney. So I haven't adopted that motion, but he
wants to still preserve that issue for an appeal.
"So I'm not quite sure how to do that other than—I mean, I guess he could go pro
se and raise the issue himself, but that would seem to be a needless waste of opportunity.
So we're simply—maybe that's something the Court can look at . . . ." (Emphases added.)

The district court addressed Davis directly and told him that his motion was
improper. The judge stated, "[I]f you have an attorney, Mr. Davis, all motions, all legal
matters need to go through the attorney." The district judge stated that allowing
represented defendants to file their own motions was actually a disservice to those
defendants and that "[y]ou need to have one person calling the shots."

The judge also stated that allowing both represented defendants and their attorneys
to file "their own stuff" would cause a quagmire in the judicial system. The judge refused
to consider Davis' pro se supplemental motion: "[M]y holding is if you're represented by
an attorney, other than a request for a new attorney or relief of that attorney, all motions
must go through that attorney. . . So I am going [to] deny it, in that it wasn't filed by the
attorney." The district judge also stated that Davis' pro se motion had no merit as it
showed a lack of understanding of the subject matter.

The district judge asked the parties if there was any legal cause to not move
forward with sentencing. Both Sylvester and the State suggested there was not. The
district judge then addressed Davis directly:

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"THE COURT: Mr. Davis, any legal reason why we shouldn't go forward with
sentencing right now?
"[DAVIS]: None besides the motion that I did file pro se, Your Honor, about the
vagueness.
"THE COURT: Right. I've already—
"[DAVIS]: You've already made a ruling on that.
"THE COURT: I've already overruled on that. Okay. Well, there is a plea
agreement . . . ." (Emphasis added.)

The district court heard recommendations from the parties, both of which argued
that the court should follow the plea agreement. Again, the district court addressed Davis
directly and asked if there was anything he wanted to say on his own behalf before
sentencing. Davis indicated that he wanted to discuss his jail credit for the time he was
confined before sentencing. Davis, the district judge, and Sylvester discussed the
variables involved in calculating jail credit and noted the days Davis was confined would
be reflected on the journal entry. The judge again asked Davis, "So anything, though, Mr.
Davis, about the merits of this case before I do sentencing? Anything you wanted me to
know?" Davis again addressed only his jail credit.

In accordance with the plea agreement, the district court sentenced Davis to 19
months with the Secretary of Corrections. The court informed Davis he was entitled to 20
percent good time and was subject to 12 months' postrelease supervision. The court
ordered Davis' sentence to be served consecutive to 96CR2192. The court also ordered
that Davis be given credit towards his sentence for the time he spent incarcerated here.

To us, Davis contends that the district court abused its discretion in failing to make
findings of fact and conclusions of law to determine whether he established good cause to
withdraw his plea. He asks us to remand his case with instructions for a hearing on his
motion before an impartial judge. The State contends that the district court did not abuse
its discretion for three reasons:
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 Davis was represented by counsel and had no right to hybrid representation;
 Davis' pro se motion could not reasonably be interpreted by the district
court as a motion to withdraw his plea; and
 Davis demonstrated no good cause to withdraw his plea.

We review and apply the rules on legal representation.

A defendant has a constitutional right of self-representation and may defend
himself without counsel when he voluntarily and intelligently elects to do so. An indigent
defendant also has a constitutional right to court-appointed counsel. But a defendant
cannot simultaneously assert both rights. A defendant who accepts court-appointed
counsel has no right to conduct his own trial or dictate the procedural course of his
representation by counsel. State v. Ames, 222 Kan. 88, 99-100, 563 P.2d 1034 (1977).

Davis concedes this fact. There is no question Davis wanted appointed counsel.
Even on appeal, he argues that the sentencing judge committed an error by constructively
denying him counsel. The record, however, shows that Davis prepared many motions
without the aid and assistance—and often without the knowledge—of his attorneys. He
did not want to be bound by the decisions of counsel.

Despite that desire, we must point out that when a defendant chooses to have
counsel, conduct of the defense's case rests with the attorney. The decisions on what
witnesses to call, whether and how to conduct cross-examinations, what jurors to accept
or strike, what trial motions to make, and all other strategic and tactical decisions are the
exclusive province of the attorney after consultation with his or her client. Ames, 222
Kan. at 100. The record on appeal shows that the district court's delineation of which
motions were heard and which were not was clear and consistent. Each time Davis sent
the district clerk a document to file, the clerk forwarded that document to the defense
attorney of record. If the motions were filed by Davis' attorney, however, they were
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scheduled for a hearing. If one of Davis' pro se motions was raised at a hearing, the court
waited for defense counsel to determine whether he would adopt that motion. If defense
counsel did not adopt the motion, it got no hearing. Davis was present in court with his
attorney at each stage of the proceedings and would have heard the various district
judges' comments and admonishments about hybrid representation. At the sentencing
hearing, as had happened at other proceedings, Sylvester stated he did not adopt Davis'
pro se motion and so the district court declined to hear it.

It is important to note that Davis concedes he did not request "hybrid
representation," and raises the concept of "standby" counsel. The right of a defendant to
participate in his or her defense if he or she is recognized as co-counsel is within the
sound discretion of the district court. See Ames, 222 Kan. at 100-01; cf. State v. Holmes,
278 Kan. 603, 620-21, 102 P.3d 406 (2004). But a trial court is under no obligation to
allow a defendant to act as co-counsel. See State v. McKessor, 246 Kan. 1, 11-12, 785
P.2d 1332 (1990). The record reveals that Davis did not request to act as co-counsel in his
own defense and the district court did not make such a finding here.

Davis acknowledges that his right to proceed by himself is activated upon a waiver
of his right to be represented by counsel. The record on appeal is clear that Davis did not
request to waive his right to counsel, he did not request to proceed pro se at any stage of
his case, and he did not request the district court designate him as co-counsel in his case.

Because Davis was not entitled to hybrid representation, we hold the district
court's refusal to hear his pro se motion when he was represented by counsel
demonstrates no anti-pro se litigant bias. Even if the district judge did possess a bias
about pro se defendants, Davis was not a pro se defendant. Davis was represented by
counsel throughout the proceedings. Because he was represented by counsel and
Sylvester explicitly did not adopt Davis' motion at the sentencing hearing, the district
court was under no obligation to consider the motion. See Ames, 222 Kan. at 100-01.
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The record does not reveal that the sentencing judge held a bias against pro se
defendants. In our view, the judge's comments at the sentencing hearing reveal the judge's
desire for judicial economy coupled with a suggestion that defendants should rely on
their attorneys. In that context, there is a proper and reasonable interpretation of the
district judge's comments about pro se motions. Davis has failed to establish judicial bias
or misconduct and we see no error on this point.

Davis has not shown us that he had conflicts with his counsel.

For the first time on appeal, Davis claims a conflict with his counsel. He contends
that Sylvester was antagonistic towards him at sentencing. He cites two incidents. First,
he noted that Sylvester did not adopt Davis' pro se motion. Instead, he suggested that
Davis could proceed pro se on the motion to preserve the issue for appeal. Second,
Sylvester made no sentence-mitigating argument on his behalf. Confronted with this, he
contends the district court should have inquired if there was a conflict, and the court's
failure to do so means he was constructively denied conflict-free counsel at a critical
stage of the proceedings. The State argues that Davis was not constructively denied
counsel.

To show that a conflict of interest resulted in ineffective assistance of counsel, a
defendant has the burden of proving (1) the existence of an actual conflict of interest
between the attorney and client; and (2) that the conflict adversely affected the adequacy
of the attorney's representation. State v. Cheatham, 296 Kan. 417, 448, 292 P.3d 318
(2013). Davis has failed to meet this burden.

The court must act if it is told about a conflict between a defendant and defense
counsel. When the district court is notified of a potential conflict of interest faced by a
criminal defense attorney, the court must make an appropriate in-depth inquiry into the
conflict. If an appropriate inquiry is made, the district court's decision to deny a motion to
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withdraw counsel is reviewed under the abuse of discretion standard. State v. Stovall, 298
Kan. 362, 370, 372, 312 P.3d 1271 (2013). Failure to make an adequate inquiry when the
court is aware of the potential conflict constitutes an abuse of discretion. State v.
Marshall, 303 Kan. 438, 447, 362 P.3d 587 (2015); see State v. Sharkey, 299 Kan. 87,
100-01, 322 P.3d 325 (2014).

We do not see evidence of a conflict in this record. Instead, it reveals that
Sylvester suggested that Davis could proceed pro se so that his motion could be heard in
accordance with his wishes, and so the issues in the motion could be preserved for
appeal. The record also shows that Sylvester argued the district court should follow the
sentencing recommendations in the plea agreement, to which Davis had already agreed.
And on the three occasions the district court explicitly inquired of Davis if there was any
impediment to moving forward with sentencing, Davis replied, respectively, that there
was "none" except for his motion for "vagueness," and then twice discussing his jail
credit.

It is clear that Davis expressed no concerns about Sylvester's representation of
him. He did not notify the district court, at any time, that he believed a conflict had
developed between himself and Sylvester. Since the court was not put on notice that
Davis believed there was a conflict, it cannot be faulted for not making an inquiry into
any potential conflict. The district court did not constructively deny Davis conflict-free
counsel.

Davis has neither met his burden to establish the existence of an actual conflict of
interest between Sylvester and himself, nor established that any conflict adversely
affected the adequacy of Sylvester's representation of him.



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We hold Davis' motion is not a motion to withdraw his plea.

The motion in question is titled "SUPPLEMENTAL PLEADINGS TO PRO SE
MOTION FOR FINDING K.S.A. 22-4905(g) & K.S.A. 22-4902 (i) & (j) ARE
CONSTITUTIONALLY INFIRM AND VOID-FOR-VAGUENESS IN VIOLATION
OF DUE PROCESS." It is 26 pages long. In the motion, Davis:
 argues that the statutes are ambiguous and void;
 addressed punctuation and grammatical construction within the statutes;
 dissected definitions of terms used in the statutes;
 discussed statutory interpretation and legislative intent;
 posited hypothetical situations related to residency and employment
reporting; and
 generally argued that KORA is unconstitutional.

On the last page of the motion, Davis wrote, "WHEREFORE, the plea, conviction [and/or
sentence] is constitutionally infirm . . . and must be vacated and dismissed with prejudice
and Davis released from all custody forthwith."

If we give effect to the motion's content rather than the labels, we see that the
motion is aligned with its title and headings: a challenge to the constitutionality of
KORA. At no point in the document does Davis show a regret for entering his plea, let
alone request to withdraw that plea or use some similar language that could reasonably
signal to the district court that this is what he hoped to do. The purpose of the motion
appears to be what it claims: an attempt to have the district court declare that KORA is
unconstitutional. Even the most liberal interpretation of the document does not
reasonably equate to a motion to withdraw Davis' plea.

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We also note that at the sentencing hearing Sylvester and Davis shed light on the
intent of the motion. Both referred to the motion as a "void for vagueness" motion and a
"vagueness" motion. At no time during the sentencing hearing did Davis suggest he
wanted to withdraw his plea. When given opportunities to speak before sentencing, Davis
did not say he wanted to withdraw his plea or was having second thoughts. Instead, he
asked about how his jail time would be calculated. In this context, the district court could
not have reasonably been expected to construe Davis' motion as one to withdraw his plea.

Because Davis' presentence pro se motion could not reasonably be interpreted as a
motion to withdraw his plea, we hold the district court did not err in failing to make
findings of fact and conclusions of law pertinent to such a motion.

Even if we considered this a motion to withdraw his plea, Davis has not shown
any good reason to do so. Generally, the Edgar factors guide a court's decision whether a
defendant has demonstrated the good cause required by K.S.A. 2017 Supp. 22-3210(d)(1)
to withdraw a plea prior to sentencing. Those factors are:
 whether the defendant was represented by competent counsel;
 whether the defendant was misled, coerced, mistreated, or unfairly taken
advantage of; and
 whether the plea was fairly and understandingly made. State v. Edgar, 281
Kan. 30, 36, 127 P.3d 986 (2006).

These factors establish "'viable benchmarks'" for the district court when exercising its
discretion, but the court should not ignore other facts that might exist in a particular case.
State v. Schaefer, 305 Kan. 581, 588, 385 P.3d 918 (2016).

Davis does not specify which of his claims in his pro se motion trigger any of the
Edgar factors or other factors possibly relevant to establishing good cause to withdraw
his plea. The motion does not claim Sylvester was incompetent in his representation of
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Davis up to and including the plea hearing. The motion does not state that Davis was
misled, coerced, mistreated, or unfairly taken advantage of. And the motion does not
claim his plea was not fairly or understandingly made.

To the contrary, the record of the plea hearing reflects that Davis was satisfied
with Sylvester's representation, and entered his plea fully understanding the terms and the
consequences of his decision. An assessment of the pro se motion reveals that had the
district court bypassed the issue of hybrid representation and then construed the motion
as one to withdraw Davis' plea, the only factor the district court would have been able to
articulate as a finding of fact was that Davis believed KORA was "void-for-vagueness"
and thus unconstitutional. This is contrary to established law. See, e.g., State v. Petersen-
Beard, 304 Kan. 192, 377 P.3d 1127, cert. denied 137 S. Ct. 226 (2016).

We find no error in the district court's ruling on this point.

Affirmed.