State v. Gray ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,730
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
OURAY MARCEAUX GRAY,
Appellant.
MEMORANDUM OPINION
Appeal from Barton District Court; CAREY L. HIPP, judge. Opinion filed March 25, 2022.
Reversed and remanded with directions.
James M. Latta, of Kansas Appellate Defender Office, for appellant.
Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ATCHESON and HURST, JJ.
PER CURIAM: Defendant Ouray Marceaux Gray has appealed the Barton County
District Court's denial of a motion his trial lawyer filed to withdraw a guilty plea he
entered to a felony drug charge as part of a sweeping disposition of his criminal liability
in several matters. Based on the grounds stated in the motion, Gray's lawyer had an
apparent conflict of interest in arguing the issue in the district court. Gray, however, had
the right to conflict-free representation—a right that was not scrupulously protected in
this circumstance. We, therefore, remand to the district court with directions to appoint a
conflict-free lawyer to advise Gray about the ramifications of the motion to withdraw and
to then go forward in accordance with Gray's well-informed decision on how
best to proceed.
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FACTUAL AND PROCEDURAL HISTORY
During a traffic stop, a Great Bend police officer searched Gray, who was a
passenger in the vehicle, and discovered marijuana, counterfeit currency, and three plastic
baggies containing small amounts of methamphetamine. The State charged Gray in May
2020 with possession of between 1 and 3.5 grams of methamphetamine with the intent to
distribute, possession of marijuana with the intent to distribute, no tax stamps for those
illegal drugs, and counterfeiting. Gray was on probation in other cases and faced possible
prosecution on additional charges unrelated to the traffic stop. In short, Gray was caught
up in a tangled legal predicament. Moreover, he wanted to get out of jail to attend to his
ailing grandfather.
Gray's court-appointed lawyer quickly worked out an arrangement with the
prosecution calling for Gray to plead guilty to the two possession with intent drug
charges without a specific plea recommendation from the State. The State agreed to drop
the remaining three charges, not to file new charges against Gray, and to seek his
discharge from probation without additional jail time in the other cases. The deal
included a joint recommendation to the district court for a personal recognizance bond,
allowing Gray to be promptly released from jail after entering the pleas.
During a hearing on June 12, the district court accepted Gray's guilty pleas in
conformity with the agreement and approved a personal recognizance bond for Gray. The
State dismissed the other charges. Pertinent here, to support the factual basis for the
pleas, the State proffered the charging affidavit from the arresting officer stating that the
three plastic bags contained about 2 grams of methamphetamine. In response to a
question from the district court, Gray's lawyer acknowledged the sufficiency of the
proffer.
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On August 26, before sentencing, Gray's lawyer filed a motion asking that Gray be
allowed to withdraw his guilty plea to the methamphetamine charge. The motion recited
that the officer's affidavit and the other information available at the time of the plea
indicated Gray had approximately 2 grams of methamphetamine, thereby establishing the
factual predicate for a conviction based on possession of between 1 and 3.5 grams. The
motion further recited that Gray's lawyer learned that a copy of a report from the KBI lab
filed on August 18 showed that two of the plastic bags contained a total of .42 grams of
methamphetamine. Based on the report, the motion represented the total amount of
methamphetamine was less than 1 gram and, in turn, insufficient to establish an element
of the crime of conviction.
The motion identified what are commonly known as the Edgar factors that guide a
district court in considering a motion to withdraw a plea under K.S.A. 2020 Supp. 22-
3210(d): (1) whether the defendant was represented by competent counsel; (2) whether
the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3)
whether the plea was fairly and understandingly made. See State v. Adams, 311 Kan. 569,
575, 465 P.3d 176 (2020); State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). After
outlining the legal bases for withdrawing a plea, the motion concluded Gray "would
argue he was substantially misled and the plea was not fairly made" because of the
discrepancy in the weight of the methamphetamine. Gray sought to withdraw his plea and
to go to trial on the methamphetamine charge.
The district court held a hearing on the motion on December 7, 2020, and for
reasons that are neither readily apparent nor of significance to this appeal, Gray was then
in custody. At the outset, the district court asked Gray if he was satisfied with his
lawyer's representation and wished to have the lawyer continue representing him. Gray
answered affirmatively. But the lawyers and the district court did not suggest, let alone
discuss, whether there might be a conflict of interest between Gray and his lawyer given
the Edgar factors and the grounds articulated in the motion.
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Neither Gray's lawyer nor the prosecutor presented evidence during the hearing
and simply argued their respective positions to the district court. They did not touch on
the advice Gray received from his lawyer in advance of pleading guilty and in particular
what discussion (if any) they had about the quantity of methamphetamine and the State's
evidence supporting the amount.
Rather, Gray's lawyer submitted that because the KBI lab report undermined the
factual basis for the charge—there was less than 1 gram of methamphetamine—Gray
should be allowed to withdraw the plea. The prosecutor agreed the amount of
methamphetamine in the three plastic bags was less than 1 gram. But the prosecutor
argued Gray knew how much methamphetamine he had and entered into a plea
agreement conferring material benefits on him, so he failed to demonstrate good cause to
withdraw his plea. Picking up on those arguments, the district court denied Gray's
motion.
At a hearing about 6 weeks later, the district court sentenced Gray to 59 months in
prison on the methamphetamine conviction and 49 months in prison on the marijuana
conviction to be served consecutively followed by postrelease supervision for 36 months.
Those reflect presumptive guidelines sentences, given Gray's criminal history. Gray has
appealed.
LEGAL ANALYSIS
On appeal and now represented by the Appellate Defender's Office (ADO), Gray
challenges the district court's denial of his motion to withdraw his plea to the
methamphetamine charge on two bases. The ADO reprises the point his trial lawyer
presented to the district court: The plea was legally deficient because the drug quantity
was less than the required 1-gram threshold for the crime of conviction. Alternatively, the
ADO argues the trial lawyer had an apparent conflict of interest in representing Gray at
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the motion hearing and we, therefore, should remand for a new hearing with a conflict-
free lawyer.
As we have already indicated, we find the latter argument well-taken, although we
think the proposed remedy is too narrowly focused and may not necessarily advance
Gray's best interests. We first address that point and then explain why the plea was not
categorically deficient based on the weight of the methamphetamine.
Conflict-free Representation
A bedrock principle of our criminal justice system requires that defendants
charged with felonies be afforded legal representation at every critical stage of the State's
prosecution of them. State v. Sharkey, 299 Kan. 87, 96, 322 P.3d 325 (2014). The Sixth
Amendment to the United States Constitution and section 10 of the Kansas Constitution
Bill of Rights require nothing less. A hearing on a defendant's motion to withdraw his or
her plea before sentencing is such a stage. State v. Taylor, 266 Kan. 967, 975, 975 P.2d
1196 (1999); State v. Toney, 39 Kan. App. 2d 1036, 1040, 187 P.3d 138 (2008). But it is
not enough that those defendants have lawyers standing beside them. The lawyers must
be both competent and free of any conflict that would materially diminish their advocacy
because of self-interest or some other ulterior consideration. Sharkey, 299 Kan. at 96;
Toney, 39 Kan. App. 2d 1036, Syl. ¶ 3. A district court has a duty to police potential
conflicts of interest impinging on a criminal defense lawyer's representation and, in turn,
to take steps to eliminate them. Taylor, 266 Kan. at 975.
Given the assertions in the motion Gray's lawyer filed to withdraw the plea and the
standards for assessing that kind of request, the circumstances here at the very least
generate the appearance of a conflict. But those circumstances went unacknowledged and
unaddressed in the district court. As a result, we cannot confidently conclude from this
record that Gray received the sort of conflict-free representation constitutionally due
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criminal defendants. In turn, we are obligated to do what is necessary to rectify that lack
of clarity.
Under K.S.A. 2020 Supp. 22-3210(d)(1), a defendant may withdraw a plea before
sentencing for good cause and in the district court's discretion. As we have said, the
judicial inquiry is guided by the Edgar factors, augmented by other considerations
relevant in a given case. State v. Garcia, 295 Kan. 53, 62-63, 283 P.3d 165 (2012) (Edgar
factors establish a sound benchmark but do not preclude additional considerations.). The
Edgar factors are not entirely segmented and tend to overlap. For example, the
competence of a defense lawyer's representation in a case may (and often will) affect
whether a defendant has been left uninformed or misled about material factual and legal
matters relevant to the decision to enter a plea rather than going to trial. See State v.
Gwyn, No. 122,501, 2021 WL 2483107, at *3 (Kan. App. 2021) (unpublished opinion)
("Here, as in many cases, the Edgar factors tend to overlap.").
Gray entered a quick plea deal (resolving several fairly distinct legal problems and
securing his prompt release from jail) apparently without any firm evidence about the
quantity of methamphetamine supporting the possession with intent charge. As Gray
points out on appeal, possession of less than 1 gram of methamphetamine with an intent
to distribute is a less serious offense and carries a less severe presumptive sentence. See
K.S.A. 2020 Supp. 21-5705(d)(3). The motion to withdraw the plea states Gray was
"substantially misled" when he pleaded guilty. But the motion is less than forthcoming
about why. If Gray's trial lawyer failed to discuss the implications of the difference in
weight and the lack of definitive evidence establishing the weight with Gray before he
pleaded guilty, that would have contributed to his being misled. And it would implicate
the first Edgar factor bearing on the competence of the representation, thereby supporting
Gray's request to withdraw his plea.
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But if that's what happened, Gray's lawyer had a conflict of interest. To support
the motion, the lawyer would have had to argue and present evidence that he failed to
fully advise Gray about material aspects of the plea. We typically cannot and do not
expect lawyers to argue their own incompetence—both the conscious and implicit pull of
self-interest would predictably dull the razor's edge of constitutionally effective
advocacy. See Toney, 39 Kan. App. 2d at 1041; State v. Kebert, No. 116,610, 2018 WL
2271417, at *4 (Kan. App. 2018) (unpublished opinion); State v. Copeland, No. 109,600,
2014 WL 702526, at *7-8 (Kan. App. 2014) (unpublished opinion).
The appellate record presents us with an enigma. The motion to withdraw creates
the appearance of conflict of interest, and nothing in the district court record dispels the
appearance. How Gray's lawyer argued the motion is equally inscrutable. The lawyer did
not have Gray testify about the legal advice he received (or didn't receive) about the plea
deal before entering his plea. That might be because the lawyer fully informed Gray, and
the testimony would not have advanced the motion. Or it might be because the lawyer
didn't want to expose his own deficient performance.
The appellate courts have recognized that when a defendant in a criminal case has
articulated a dissatisfaction with a lawyer appointed to represent him or her, the district
court typically should make a preliminary inquiry to find out if the complaint rests on
some colorable legal foundation. See State v. Brown, 300 Kan. 565, 575, 331 P.3d 797(2014) (potential conflict of interest on part of defense counsel triggers duty of district
court to inquire). Here, the circumstances were different. Gray had voiced no complaints
about his lawyer. Rather, the problem arose from the face of the motion to withdraw and
likely would have escaped the notice of even discerning defendants untrained in the law.
But the district court was obligated to address what seems to be an obvious potential
conflict of interest apparent from the motion itself. See Sharkey, 299 Kan. at 98 (Faced
with an apparent conflict of interest on defense counsel's part, the district court has a duty
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to deal with the issue, and the failure to do so is an abuse of discretion.); State v. Stovall,
298 Kan. 362, 370, 312 P.3d 1271 (2013).
Had the district court recognized and attempted to address the apparent conflict,
we question whether the issue could have been handled by simply asking Gray and his
lawyer about the representation. The district court likely would have had to plumb in
depth the attorney-client communications leading up to the plea, turning the district court
into both inquisitor and decision-maker. See Brown, 300 Kan. at 578 (case remanded to
district court with directions to appoint conflict-free counsel to represent defendant in his
request for new lawyer and possible conflict of interest on part of original lawyer);
Kebert, 2018 WL 2271417, at *6. And Gray could not have questioned his lawyer,
marshalled evidence, or otherwise effectively advocated for himself—conduct requiring
preparation and legal training to perform in all but a rudimentary way.
As a nonlawyer, Gray was in no position to recognize the potential conflict or to
object to going forward with the hearing under the circumstances. Likewise, the district
court's short colloquy with Gray at the start of the hearing about his satisfaction with his
lawyer was insufficient to inoculate the proceedings against the pernicious effects of an
actual conflict of interest. Gray's affirmation of satisfaction was neither a valid waiver of
any conflict nor an informed consent to the conflict. Cf. Brown, 300 Kan at 577
(defendant personally filing motion for new lawyer may make informed and voluntary
decision to withdraw request); State v. Silhan, 45 Kan. App. 2d 574, 579, 251 P.3d 84(2011) (guilty plea and waiver of attendant constitutional rights must be voluntarily,
knowingly, and intelligently made); see also Kansas Rules of Professional Conduct
1.7(a)(2) (2022 Kan. S. Ct. R. at 342) (conflict if lawyer's representation of client
substantially limited by "personal interest of the lawyer"); KRPC 1.7(b)(4) (continued
representation in the face of conflict requires "informed consent" of client, often entailing
independent legal advice). Although the rules of professional conduct do not directly
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establish standards governing civil and criminal litigation, they may inform issues arising
in those proceedings. See Toney, 39 Kan. App. 2d at 1043.
Because we cannot conclude Gray was represented by a conflict-free lawyer in the
hearing on the motion to withdraw his plea, we are constrained to remand this case for
further proceedings. On appeal, Gray has requested we direct the district court to appoint
a conflict-free lawyer for him and to then hold a new hearing on the motion to withdraw
the plea. We agree the district court should appoint a new lawyer to advise Gray on
whether to withdraw his plea. But we do not believe we should order a mandatory
rehearing of the motion.
We are now 14 months past the original hearing. Gray may view his circumstances
differently now than he would have then. The overall plea arrangement with the State had
multiple components and benefits for Gray. After being fully advised about the
ramifications of withdrawing his plea, Gray might now be disposed to abandon the
motion, proceed with the original motion, or broaden the scope of the motion. We should
not impose one of those options on him at this juncture. In the interests of clarity and
completeness, however, we point out that any hearing on the present motion or some
amended version of it should be treated as a presentencing request under K.S.A. 2020
Supp. 22-3210(d)(1), even though Gray has now been sentenced.
Withdrawal of Plea for Lack of Factual Basis
As he did in the district court, Gray argues his plea to possession of 1 to 3.5 grams
of methamphetamine with the intent to distribute cannot stand as a matter of law because
he actually had less than 1 gram and clear evidence of the amount came to light after the
plea but before sentencing. We are unpersuaded, given the circumstances of Gray's
prosecution coupled with the various legal fictions the courts routinely tolerate in plea
bargains.
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We assume that Gray, in fact, had less than 1 gram of methamphetamine when he
was arrested, and, for whatever reason, the arresting officer overstated the amount in the
charging affidavit and his report of the encounter. The State candidly admitted as much at
the hearing on Gray's motion to withdraw his plea. We, therefore, credit and rely on that
admission in framing the issue.
But the categorical rule Gray propounds doesn't exist—at least in Kansas law—
and it runs afoul of the conventions typically accepted in plea bargains. Judge Atcheson
has outlined the conventions this way:
"The criminal justice system depends on plea bargaining as a means of disposing
of the vast majority of cases. Without those agreements and the resulting dispositions, the
system would collapse from the sheer volume of trials and the time and resources they
would consume. Plea bargains typically call for a defendant to plead guilty or no contest
in exchange for the State agreeing to a reduction of the charged crimes to less serious
crimes, the dismissal of some charged crimes, a recommendation to the district court for
less than the maximum sentence, or some combination of those benefits.
"Successful plea bargains often depend upon one or more legal fictions to arrive
at deals mutually acceptable to the prosecution and the defense and tolerable to district
courts. Legal fictions are strange creatures. They populate the law with conventions or
understandings that aren't really true but are accepted because they smooth out processes
that would otherwise be at least cumbersome and perhaps unworkable. A legal fiction has
been defined as '[a]n assumption that something is true even though it may be untrue . . .
to alter how a legal rule operates.' Black's Law Dictionary 1031 (10th ed. 2014).
"Plea bargaining regularly relies on three legal fictions. In the first fiction, the
prosecutor and the defendant agree to a plea to an amended statutory crime that doesn't
particularly fit the facts of what the State contends actually happened but carries a lesser
punishment than the original charge. See, e.g., State v. Wieland, No. 114,900, 2017 WL
657999, at *3 (Kan. App.) (unpublished opinion) (defendant pleaded guilty to two counts
of attempting to possess child pornography, a form of sexual exploitation of a child
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violating K.S.A. 2012 Supp. 21-5510[a][2], when he actually had child pornography on
his smartphone), rev. denied 306 Kan. 1331 (2017). The second fiction comes into play
when the defendant pleads guilty to a lesser offense that amounts to a legal
impossibility—typically an attempt to commit certain statutory crimes. The particular
mental intent required for attempts cannot exist simultaneously with the particular mental
state or mens rea for some crimes. That conflict prevents a defendant from truly having
the state of mind necessary to be guilty of an attempt to commit those crimes, rendering
such a charge a 'legal impossibility.' See, e.g., McPherson v. State, 38 Kan. App. 2d 276,
280, 163 P.3d 1257 (2007) (defendant properly permitted to plead to attempted
unintentional second-degree murder even though crime requires mental state that cannot
legally exist). Attempts typically are punished less severely than the completed crimes, so
the defendant realizes a benefit. See K.S.A. 2018 Supp. 21-5301(c)(1). In the third
fiction, a defendant pleads guilty to a statutory crime to accept an advantageous plea
bargain while maintaining his or her innocence in what is commonly known as an Alford
plea. See State v. Case, 289 Kan. 457, 460-61, 213 P.3d 429 (2009); see also North
Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)." State v.
Pollman, 56 Kan. App. 2d 1015, 1042-43, 441 P.3d 511 (Atcheson, J., dissenting), rev.
granted 310 Kan. 1069 (2019), dismissed as moot March 23, 2021.
Judge Atcheson described the legal fictions in the context of a defendant disposing
of a single criminal charge, but they apply here as well. As part of a broad disposition of
charges, potential charges, and probation violations, Gray worked out an arrangement
that called for him to plead to a crime that amounted to a legal fiction (and to a second
one that didn't) to secure a discernable overall benefit. A negotiated bargain with valuable
consideration flowing to the defendant is legally sufficient to support a plea if the
defendant has otherwise made a well-informed decision to accept the deal. See
McPherson v. State, 38 Kan. App. 2d 276, 285, 163 P.3d 1257 (2007); State v. Wieland,
No. 114,900, 2017 WL 657999, at *3 (Kan. App. 2017) (unpublished opinion).
Gray largely rests his contrary position on a passage lifted from State v. Green,
283 Kan. 531, 547, 153 P.3d 1216 (2007), to the effect that a district court may permit a
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defendant to withdraw a plea if newly discovered evidence undermines the factual basis
for the resulting crime of conviction. The court made its point this way:
"It is obvious that, if new evidence disproves an element of a crime, then the
factual basis for a guilty or nolo contendere plea to the charge of committing that crime is
undermined. It is a defendant's burden to prove that the factual basis of a plea is so
undercut by new evidence that the prosecution could not have proved its case beyond a
reasonable doubt. In such a situation, the court may permit withdrawal of the plea and
may set aside the resulting conviction . . . ." 283 Kan. at 547.
First, of course, the Green court did not enunciate a rule mandating that a district court
grant a motion to withdraw based on such new evidence. The decision remains a
permissive one entrusted to the district court's sound discretion considering all of the case
specific circumstances. The Green court cited and did not retreat from an earlier decision
affirming the district court's denial of a motion to withdraw a plea despite new evidence
when the defendant's plea was "informed and voluntary" and the evidence "did not
exonerate" the defendant. 283 Kan. at 546 (citing State v. Walton, 256 Kan. 484, 489, 885
P.2d 1255 [1994]).
In addition, the facts of Green are distinguishable. In that case, Green pleaded no
contest in 1996 to two counts of capital murder, among other charges, on the State's
evidence that she intentionally set fire to the family home resulting in the deaths of two of
her children. By entering the pleas, Green avoided a possible death sentence if she were
convicted at trial. About eight years later, Green filed a motion to withdraw the pleas on
the grounds the expert witnesses declaring the fire to be arson relied on some scientific
theories or standards that had since been called into question. And if the fire were not
arson, Green would be actually innocent. The district court denied the motion, and the
Kansas Supreme Court affirmed because the expert opinions were not undermined in the
way or to the degree Green suggested. 283 Kan. at 547-48.
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The court's statement about a sufficient factual basis for a plea and new evidence
eroding that basis was made in the context of Green's extraordinary legal position. She
entered a plea to avoid the death penalty—a circumstance that itself sets that case apart
from this one. See Gregg v. Georgia, 428 U.S. 153, 188, 96 S. Ct. 2909, 49 L. Ed. 2d 859(1976) ("[T]he penalty of death is different in kind from any other punishment imposed
under our system of criminal justice."). Moreover, Green's motion was premised on the
notion she was actually innocent or at least could marshal evidence at the time she filed
her motion to establish a reasonable doubt as to her guilt of any crime related to the fire.
By contrast, Gray did not face the coercive force of a possible death sentence when he
entered his plea. Nor was Gray actually innocent in the sense he had presented new
evidence showing he committed no crime. The weight of the methamphetamine at less
than 1 gram would have reduced the crime of conviction from a severity level 3 drug
felony to a severity level 4 drug felony with a commensurate reduction in presumptive
punishment. Regardless, Gray was guilty of possession with intent to distribute.
Assuming Gray entered the guilty plea after being competently advised by his trial
lawyer, the district court retained the broad discretion to grant or deny the motion to
withdraw the plea given the demonstrable benefits of the overall arrangement to Gray in
resolving multiple charges and potential charge against him. The court established no
contrary rule in Green.
As we have explained, we cannot conclude Gray entered a fully informed plea
based on the assertions in the motion to withdraw the plea and the record before us. If
Gray's trial lawyer did not adequately advise him about the full implications of the plea,
including any uncertainty as to the quantity of drugs, the balance of the Edgar factors
necessarily shifts, and the district court might exercise its discretion differently. We, of
course, offer no opinion on that abstract proposition. On remand, the district court can
most efficiently and effectively secure Gray's right to conflict-free representation on
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whether to withdraw the plea by appointing a new lawyer to advise Gray on how best to
proceed.
Reversed and remanded with directions to appoint conflict-free counsel for Gray
and, if he requests, to hold a hearing on the original motion to withdraw his plea or a duly
amended motion.
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