State v. Linxwiler

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NOT DESIGNATED FOR PUBLICATION

No. 111,792

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LUKE LINXWILER,
Appellant.


MEMORANDUM OPINION

Appeal from Pottawatomie District Court; JEFFREY R. ELDER, judge. Opinion filed March 4,
2016. Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Sherri Schuck, county attorney, and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., LEBEN and POWELL, JJ.

Per Curiam: A jury convicted Luke Linxwiler of aggravated burglary, aggravated
intimidation of a victim/witness, residential burglary, two counts of felony theft, felony
criminal damage to property, and misdemeanor criminal damage to property. Linxwiler
appeals his convictions and sentences on three grounds: (1) The district court erred when
it inadequately investigated his request for a new trial attorney; (2) the district court
committed clear error in failing to give an accomplice instruction; and (3) the district
court improperly used his criminal history to increase his sentence without proving such
criminal history to a jury beyond a reasonable doubt. Finding no error by the district
court, we affirm Linxwiler's convictions and sentences.
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FACTUAL AND PROCEDURAL BACKGROUND

On June 3, 2013, Roxanne Holecek reported to police that she and her husband
returned home from vacation and discovered their house had been forcibly entered with
numerous items missing. Four days later, Harold Massey reported that his residence had
been forcefully entered and damage had been caused throughout the house by bullet
holes. Massey also reported several items missing from his residence, including firearms
and a metal detector. Both homes were located in St. Marys, Kansas.

During the investigation of the burglaries, Holecek advised that just prior to
leaving town she told her manicurist, Stephanie Cole, that she and her husband were
going on vacation. Cole's name also surfaced when Massey indicated that his daughter,
Amy Griffin—who lived with him—was friends with Cole and that Cole had a reputation
for past involvement in illegal activities.

Police also learned that some of Massey's property had been taken prior to the date
he reported finding bullet holes in his home. Griffin testified that when she returned
home from town the afternoon of May 23, 2013, her boyfriend was standing in the
driveway talking to a male later identified as Linxwiler. Massey was not home. Linxwiler
approached Griffin in her vehicle and told her he was there to retrieve belongings that
Cole believed Griffin had stolen from her. After parking her vehicle, Griffin encountered
Cole and invited Cole inside to talk. Linxwiler and an unidentified male entered Massey's
house over Griffin's objections. Linxwiler threatened to harm Griffin's father and her
children if she did not eventually return Cole's property in addition to $2,000. Cole and
Linxwiler told Griffin that they would not leave until they received property in
compensation for the belongings stolen from Cole. Griffin allowed them to take Massey's
metal detector and a firearm in an attempt to convince Cole, Linxwiler, and the
unidentified male to leave. Griffin did not contact law enforcement and only recounted
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the incident after Massey reported damage to his house by bullets and the property
missing. Griffin's boyfriend corroborated her testimony.

On June 25, 2013, police obtained and executed a search warrant at Cole's
residence. Linxwiler, Cole, and Cole's children were present at the residence when police
arrived. Detective Eric Green testified that law enforcement found items belonging to the
Holeceks and to Massey throughout Cole's residence and in a car registered to Linxwiler
parked out front. Linxwiler and Cole were arrested.

At the police department, Linxwiler and Cole each confessed to their roles in the
respective burglaries. Specifically, Linxwiler confessed that he had forced entry into the
Holecek residence and taken items. Linxwiler also admitted that he had taken items from
Massey's house twice, shooting various things in Massey's house with a handgun the
second time while he was intoxicated. However, he stated that Cole had done nothing
wrong and he wanted her released.

The State charged Linxwiler with two counts of aggravated robbery, one count of
aggravated burglary, and one count of felony theft in connection with the events that
occurred at Massey's house on May 23, 2013. The State also charged Linxwiler with
residential burglary, felony theft, and felony criminal damage to property in connection
with the events occurring between May 31, 2013, and June 3, 2013, when Linxwiler
allegedly returned to Massey's house a second time. Finally, the State charged him with
residential burglary, felony theft, and felony criminal damage to property stemming from
the events occurring at the Holecek residence. The State charged Cole similarly.

Following a consolidated preliminary hearing, the district court opted not to bind
over either Linxwiler or Cole on the charges of aggravated robbery but took under
advisement a count of aggravated intimidation of a victim. The district court consolidated
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both cases following a motion from the State. Prior to trial Cole entered into a plea
agreement in exchange for her testimony against Linxwiler.

On January 16, 2014, Linxwiler filed a pro se motion for a bond hearing in which
he requested an OR bond to take advantage of a job opportunity in order to retain private
counsel. The district court heard his motion that same day. At the outset of the hearing,
Linxwiler's counsel, Russ Roe, advised the district court that Linxwiler wished to fire
him. The following exchange took place:

"THE COURT: Well, what's the basis for wanting other counsel? . . .
. . . .
"[LINXWILER]: . . . There's . . . a few things with Detective Green, the
transcripts. I feel the transcripts—I don't understand why I didn't get any transcripts or
have any right to transcripts and why Detective Green's testimony wasn't involved in the
transcripts. When I was here for the pretrial, I blatantly heard several lies, and now
they're not admissible.
". . . I don't feel he's agreeing with me. We're having a conflict of interest here. I
feel like if I was out there, had a job, bought my own lawyer, you know, maybe if he was
paid, he might care a little bit more about what I'm caring about, when I see needs to be
addressed.
"I got painted many obvious technicalities. I've been shut down.
"I understand your not getting paid, you know.
"With all due respect, I've heard he's a great lawyer and one of the best is what I
usually hear. But I just—there's some—some—I just feel like there's some kind of
corruption or something going on. He won't listen to me.
"And earlier, in the beginning, I wanted explained the legalese language that is
spoken in court for me to understand. It's a—there's a language among the law society
that you guys have. He's—he wasn't really educating me on that. Every time I'd ask, he'd
shut me down, so I could understand more about what was going on in my case.
"I've asked for a full discovery several times. It's taken more, you know, alls I've
gotten was a partial.
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"[ROE]: I've provided full discovery several weeks ago—several months ago,
actually, and I think it got lost someplace. I'll copy the file again tomorrow and drop it off
here tomorrow afternoon.
"[LINXWILER]: That's—but that's not a full discovery. It's . . .
"[ROE]: Yeah.
"[LINXWILER]: It didn't have all the witness statements pertained in it.
"THE COURT: Well, Mr. Linxwiler, I don't think that—I mean, your speculating
on few things which even if they were true, I don't think are sufficient to warrant a
removal of Mr. Roe from your counsel and then a delaying the trial because the new
counsel. I know portions of the transcript were ordered to be prepared. I don't know
whether they have been.
"[PROSECUTOR]: They have been, Judge."
"[ROE]: Yeah, they have.
. . . .
"[LINXWILER]: I just don't.
"THE COURT: [Y]our request for another attorney is denied."

Five days later, on the morning of trial, Linxwiler submitted another pro se motion
asking the court to dismiss Roe, contending that he had conflicts of interest with Roe
because Roe had only talked to him for 15 minutes regarding his case and did not get
discovery to him in a timely manner. The district judge took up the merits of Linxwiler's
motion in chambers with Linxwiler present:

"THE COURT: All right. We are ready to start jury trial today. I received a
handwritten motion from Mr. Linxwiler, apparently drafted by him pro se over the
weekend, again asking for another attorney.
"Mr. Linxwiler, I have read your motion. I don't think there is a basis to allow
you to select another court-appointed attorney. You have an attorney, he's highly
qualified, and your motion is going to be denied.
"We are ready to proceed.
"[LINXWILER]: Don't I have anything to say in this, nothing?
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"THE COURT: Well, you did have something to say. It was in your motion and
I've read your motion. It is of record. You have the right to—obviously you can appeal
my decision not to allow you to get another attorney—
"[LINXWILER]: Yeah, I'd like to do that, then, because my family's currently
looking for, to retain a private lawyer for myself.
"THE COURT: Mr. Linxwiler, your family should have been doing this way
before today. We are set for trial today.
"[LINXWILER]: I asked this last week.
"THE COURT: Your motion is denied. We are going to proceed to trial."

The district court proceeded to additional matters and Linxwiler, still in chambers,
requested to be heard again:

"[LINXWILER]: Can I speak here, please? I'm not trying to be, you know, pain
in the ass or anything but me, me and him have only discussed our, my case together, and
I've had him for six months, for 30, 30 minutes, if that.
"[ROE]: Oh, it's been a lot longer than that.
"[LINXWILER]: No, it hasn't. You can ask my mother. I've made several phone
calls to him in the beginning, what was it, early July I retained him, or not retained but
appointed. It took him two and a half months to not only get me discovery but even to
return my call. He called me the day before my, what was it, pretrial or preliminary
hearing, called me the day before, talked to me for five minutes, I asked him how he feels
about it, you know. There wasn't really much.
"We haven't discussed my case at all. I haven't had a chance to explain to him
witnesses on my behalf that I could bring, we haven't talked about nothing, nothing. It's
all, the decision's made in the courtroom, the prelim, the transcripts that I wanted that I
have a right, that I should have a right to, the two people that he decided on wasn't
discussed with me. He didn't discuss that with me, he made a decision on his own, okay.
"THE COURT: All right, sir, Mr. Linxwiler, that's enough. You can bring up
those matters if you are convicted."

After a 3-day jury trial that included Cole's testimony and Linxwiler's confession,
Linxwiler was convicted of aggravated burglary, aggravated intimidation of a victim,
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residential burglary, two counts of felony theft, felony criminal damage to property, and
misdemeanor criminal damage to property. The jury acquitted him on one count each of
residential burglary, criminal threat, and felony theft.

At sentencing, Linxwiler scored an A criminal history based upon three previous
person felony convictions occurring after 1993. The district court ordered a downward
durational departure sentence of 90 months' incarceration and 24 months' postrelease
supervision for the primary offense, with concurrent and consecutive sentences on the
remaining counts, for a total of 108 months in prison.

Linxwiler timely appeals.

DID THE DISTRICT COURT ABUSE ITS DISCRETION WHEN
IT DENIED LINXWILER'S REQUEST FOR A NEW TRIAL ATTORNEY?

Linxwiler first argues that the district court did not adequately investigate whether
a conflict warranting replacement counsel existed between himself and his trial attorney.
The State counters that the district court adequately investigated Linxwiler's complaints,
but even if it did not, the deficiencies cited by Linxwiler did not warrant replacement
counsel.

The district court's refusal to appoint new trial counsel is reviewed using an abuse
of discretion standard. See State v. Brown, 300 Kan. 565, Syl. ¶ 6, 331 P.3d 797 (2014).
A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful,
or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State
v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).

It is well established that

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"[a] criminal defendant has a constitutional right to the effective assistance of
counsel, but that right does not give a criminal defendant for whom counsel has been
appointed the right to choose which attorney will represent him or her. [Citation omitted.]
'If a defendant seeks substitute counsel, the defendant must show justifiable
dissatisfaction with his or her appointed counsel, which can be demonstrated by showing
a conflict of interest, an irreconcilable disagreement, or a complete breakdown in
communication between counsel and the defendant.' 300 Kan. [565], Syl. ¶ 3.
"A criminal defendant seeking new counsel must provide an articulated statement
of attorney dissatisfaction. Such a statement by the defendant triggers the district court's
duty to inquire into the potential conflict of interest. [Citation omitted]. 'A district court's
duty to inquire into a potential attorney/client conflict emanates from its responsibility to
assure that a defendant's constitutional right to effective assistance of counsel is honored.'
300 Kan. [565], Syl. ¶ 5." State v. Gooch, No. 110,418, 2014 WL 5849227, at *6-7 (Kan.
App. 2014) (unpublished opinion), rev. denied 302 Kan. ___ (June 29, 2015).

Between the pretrial hearing and the chambers meeting on the morning of the trial,
Linxwiler expressed dissatisfaction with his attorney, stating that he felt Roe had not
spent sufficient time meeting with him, had not timely provided him with the complete
discovery documents, and had not adequately explained the nature and procedure of the
charges against him.

The Kansas Supreme Court's decision in State v. Bryant, 285 Kan. 970, 179 P.3d
1122 (2008), discusses the district court's duty to inquire into potential conflicts of
interest. There, at a motions hearing and again at the subsequent sentencing hearing, the
district judge investigated Bryant's claims of poor communication with his attorney by
asking open-ended questions to learn all of the defendant's concerns. Our Supreme Court
noted that the district court fulfilled its investigative obligation by fully hearing Bryant's
attorney's responses to Bryant's complaints. 285 Kan. at 991.

Here, the district court's inquiry was adequate, but barely. In light of Bryant, it
perhaps would have been preferable for the district court to specifically ask Roe to
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answer Linxwiler's complaints instead of rendering its decision supported only by Roe's
interjections. However, the court fulfilled its duty of asking open-ended questions to
ascertain the nature of Linxwiler's complaints and heard Roe's responses. Specifically,
when Linxwiler accused Roe of only spending approximately 30 minutes discussing the
case with him, Roe controverted Linxwiler's assertion by remarking that he had spent
much longer than 30 minutes with Linxwiler, although admittedly, he did not specifically
say how much time he spent. With respect to Linxwiler's complaint that he had not timely
received discovery materials from Roe, Roe responded that he had provided Linxwiler
with the materials months prior and would do so again.

Consequently, we conclude the record before us is sufficient to hold that the
district court complied with its investigative obligation because Roe's comments during
both hearings responded to Linxwiler's complaints. However, even assuming the district
court failed to conduct a sufficient inquiry, Linxwiler's complaints about the time he
spent with counsel did not justify the appointment of new counsel.

The facts of this case are similar to those in State v. McGee, 280 Kan. 890, 126
P.3d 1110 (2006), where the defendant in that case also complained about the lack of
time defense counsel had spent with him and that his dissatisfaction with his counsel
constituted a conflict of interest necessitating the appointment of new counsel. On appeal,
McGee asserted that the district court had failed to conduct a sufficient inquiry. In
response, our Supreme Court stated:

"[T]here is no conflict of interest indicated by the allegations in McGee's pro se motion.
McGee's motion indicates that he is dissatisfied with the time and attention he received
from his trial counsel. While McGee and his attorney may disagree about the amount of
time and attention McGee should receive to adequately prepare McGee's defense, that
disagreement does not rise to the level of a conflict of interest." 280 Kan. at 897.

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Like in McGee, Linxwiler alleged to the district court that his trial counsel had
spent insufficient time meeting with him and was generally doing a poor job representing
him. Under McGee, such allegations did not amount to a conflict of interest. Accordingly,
we must conclude that the district court did not abuse its discretion when it did not
dismiss Linxwiler's trial counsel and appoint a new attorney.

DID THE DISTRICT COURT COMMIT REVERSIBLE ERROR BY
FAILING TO INSTRUCT THE JURY ON AN ACCOMPLICE WITNESS?

Next, Linxwiler argues the district court committed reversible error when it failed
to provide the jury with the following accomplice instruction: "An accomplice witness is
one who testifies that [he or she] was involved in the commission of the crime with which
the defendant is charged. You should consider with caution the testimony of an
accomplice." PIK Crim. 4th 51.090. Linxwiler concedes that he failed to object to the
omission of this instruction at trial but argues its exclusion constitutes clear error.

The State argues that Linxwiler invited this error and therefore may not challenge
the district court's omission of the instruction. Under the invited error doctrine, "a
defendant cannot challenge an instruction, even as clearly erroneous . . . , when there has
been on-the-record agreement to the wording of the instruction at trial." State v. Peppers,
294 Kan. 377, 393, 276 P.3d 148 (2012).

In Peppers, the defendant challenged the inclusion of an inappropriate jury
instruction. Our Supreme Court denied relief under the invited error doctrine "because the
district judge explicitly stated that she would not give the instruction if either side
objected. After reviewing the instruction, Peppers' counsel stated that counsel had no
objection to the giving of the instruction. This on-the-record agreement to the wording of
the instruction was invited error." 294 Kan. at 393.

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Here, when asked, Linxwiler's trial counsel explicitly stated he did not want the
jury provided with an accomplice witness instruction:

"THE COURT: Okay. I did want to note on the record there is not an instruction
for accomplice testimony. Does the defendant desire to have that instruction?
"[ROE]: No, sir. I believe based on the testimony we do not want that instruction.
"THE COURT: All right, then. I leave this up to you and I will not give the jury
that instruction."

Because there was an on-the-record agreement from Linxwiler's counsel to omit
the accomplice witness instruction, we need not analyze further whether this omission
was appropriate. Linxwiler invited the error and is thus precluded from challenging it.

DID THE DISTRICT COURT ERR BY USING LINXWILER'S
CRIMINAL HISTORY SCORE IN DETERMINING HIS SENTENCE?

Finally, Linxwiler argues the use of his criminal history to calculate his guidelines
sentence was unconstitutional since those past convictions were not proved in this case to
a jury. See Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000). However, our Supreme Court has rejected this argument on more than one
occasion, and we reject it as well. See State v. Baker, 297 Kan. 482, 485, 301 P.3d 706
(2013); State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002).

Affirmed.