State v. Frias

No. 122,735
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SHELBY R. FRIAS,
Appellant.
SYLLABUS BY THE COURT
1.
"False pretense" as used in the mistreatment of an elder person statute, K.S.A.
2014 Supp. 21-5417(b)(1)(A), means a representation of a fact that is untrue, calculated
to mislead, and intended to induce the person to whom it is made to part with something
of value.
2.
The mistreatment of an elder person statute restricts the affirmative defense that
money was given as a gift, precluding a generic gift instruction. No affirmative defense
of a gift is legally appropriate under K.S.A. 2014 Supp. 21-5417(e) unless a pattern, court
approval, or reasonableness of the gift-giving is shown.
Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Opinion filed November 5, 2021.
Affirmed.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.
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Before GARDNER, P.J., HILL and HURST, JJ.
GARDNER, J.: A jury convicted Shelby R. Frias of mistreatment of an elderly
person for financial crimes against her stepmother, Yvonne Emery, between May 2015
and March 2017. After her trial, Frias' attorney moved for a new trial or judgment of
acquittal, and Frias moved pro se for a new trial and to appoint new counsel. The district
court denied both motions then sentenced Frias to 32 months' imprisonment followed by
24 months' postrelease supervision, and imposed restitution in the amount of $54,853.15.
Frias appeals, arguing the jury lacked sufficient evidence to find her guilty beyond
a reasonable doubt of mistreating an elderly person. But the record shows sufficient
evidence, viewed in the light most favorable to the prosecution, for a rational fact-finder
to find Frias guilty beyond a reasonable doubt. Frias also argues the district court erred by
failing to give an affirmative defense instruction. Yet the affirmative defense instruction
was neither legally nor factually appropriate. Frias argues that the district court abused its
discretion in denying her motion for substitute counsel, yet we are unpersuaded. And
finally, she argues the district court erred by imposing restitution without an
accompanying payment plan. But the district court did order a restitution payment plan at
sentencing. For all these reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Yvonne Emery once worked as the director of human resources and civilian
personnel on McConnell Air Force Base. But as she aged, her health declined. She lived
at an assisted living facility for 10 years, but after a hospital stay, she moved to the
Legacy care home in Wichita in May or June 2015. About two years later, an
investigation revealed that Emery's bill at Legacy had been mostly unpaid since 2015,
putting her in arrears of around $77,000.
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After an investigation, the State charged Frias with mistreating an elder person, a
level 5 person felony under K.S.A. 2014 Supp. 21-5417(b)(1)(A) and (d)(1)(D), and theft
under K.S.A. 2014 Supp. 21-5801(a)(1). Frias entered a plea agreement but later moved
to withdraw her plea, and the district court allowed her to do so. At the jury trial, the
State dismissed the theft charge and tried only the charge of mistreatment of an elder
person.
Frias testified that she had spent Emery's money only as Emery wanted her to. She
and her sister testified on her behalf. To the contrary, the State's witnesses testified that
Emery, who had passed away before trial, had told Frias to take care of Emery's bills
first, and then to ask permission before spending more of her money. Both theories were
supported by evidence.
The jury convicted Frias of financial mistreatment of an elder person by false
pretenses. Frias' attorney, Quentin Pittman, then moved for a new trial or a judgment of
acquittal. Frias sent a letter to the district court before sentencing alleging deficient
representation by Pittman and asking for new counsel.
The district court held a motions hearing just before sentencing. The district court,
which had read Frias' letter, asked why she wanted new counsel. Frias responded at
length but without specificity. The district court then asked Pittman whether he wanted to
respond and Pittman replied only that he believed he did not need a client's permission to
file appropriate motions. Pittman did not seek to withdraw. The district court denied
Frias' request for new counsel because it could not find a "legal basis" to order new
counsel.
The district court then heard Pittman's arguments on the motion for a new trial or
judgment of acquittal and denied the motion, as well as Frias' pro se motion for a new
trial.
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Sentencing followed. The State argued that because of Emery's vulnerability and
the purpose of the mistreatment of an elder person statute, Frias should serve the
presumptive jail sentence. Defense counsel argued that the district court should impose
probation because Frias was a first-time offender who posed no risk to the community
and had no history of substance abuse. He also blamed Frias' acts on her ignorance, rather
than her intentional behavior. Frias asked for probation so she could continue to work,
support her children, maintain her home, and repay the State's requested restitution.
Because Frias refused to admit wrongdoing and offered no evidence supporting
mitigating factors, the district court found it was bound to sentence her within the
sentencing grid and could not depart to probation. The district court thus ordered Frias to
serve 32 months in prison followed by 24 months' postrelease supervision. It also
imposed restitution totaling $54,853.15.
Frias timely appeals.
I. DOES SUFFICIENT EVIDENCE SUPPORT THE VERDICT?
Frias first contends that the evidence was insufficient to show that she took
Emery's financial resources through "false pretense," as the statute required.
When an appellant challenges the sufficiency of the evidence, we review the
evidence in a light most favorable to the State to determine whether we are convinced a
rational fact-finder could have found the defendant guilty beyond a reasonable doubt.
State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). We do not "'reweigh
evidence, resolve evidentiary conflicts, or make witness credibility determinations.'" 307
Kan. at 668 (quoting State v. Lloyd, 299 Kan. 620, 632, 325 P.3d 1122 [2014]). But if the
insufficiency argument rests on questions of statutory interpretation, we exercise
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unlimited review because statutory interpretation is a question of law. State v. Collins,
303 Kan. 472, 473-74, 362 P.3d 1098 (2015).
The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be determined. State v. LaPointe, 309 Kan. 299,
314, 434 P.3d 850 (2019). An appellate court must first try to determine legislative intent
through the statutory language enacted, giving common words their ordinary meanings.
State v. Ayers, 309 Kan. 162, 164, 432 P.3d 663 (2019).
K.S.A. 2014 Supp. 21-5417(b)(1)(A) defines the crime:
"(b) Mistreatment of an elder person is knowingly committing one or more of the
following acts:
(1) Taking the personal property or financial resources of an elder person for the
benefit of the defendant or another person by taking control, title, use or management of
the personal property or financial resources of an elder person through:
(A) Undue influence, coercion, harassment, duress, deception, false
representation, false pretense or without adequate consideration to such elder person."
The Legislature intended K.S.A. 2014 Supp. 21-5417 "to criminalize a wide range of
ways to divert or take the financial resources of [an elder person] . . . ." State v. Mayfield,
No. 121,552, 2021 WL 935715, at *2 (Kan. App.) (unpublished opinion), rev. denied 313
Kan. 1044 (2021). One of those ways is by using "false pretense."
Analysis
The parties do not dispute that Emery was an "elder person" within the protection
of the statute. See K.S.A. 2014 Supp. 21-5417(g)(3). Nor do they dispute that Frias
knowingly took and used Emery's financial resources for her own benefit. See K.S.A.
2014 Supp. 21-5417(b)(1). But Frias contends that she did not do so through "false
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pretense," the sole means charged by the State and prohibited by statute. See K.S.A. 2014
Supp. 21-5417(b)(1)(A).
This statute does not define "false pretense." Nor did the district court define it for
the jury. Frias argues that caselaw also lacks a definition for that term. Yet Frias cites the
time-honored case of State v. Handke, 185 Kan. 38, 340 P.2d 877 (1959). That case
referenced a wordy definition from 35 C.J.S. False Pretenses § 6, p. 644:
"'Generally speaking, to constitute the crime of obtaining property by false pretenses
there must be a false representation or statement of a past or existing fact, made by
accused or someone instigated by him, with knowledge of its falsity and with intent to
deceive and defraud, and adapted to deceive the person to whom it is made; and there
must be, further, a reliance on such false representation or statement, an actual
defrauding, and an obtaining of something of value by accused or someone in his behalf,
without compensation to the person from whom it is obtained.'" 185 Kan. at 43.
Handke thus required a misrepresentation of a past or present fact—future events or
promises were not sufficient. The Handke court found sufficient evidence of false
pretenses when, to get a client's business, a man represented himself to be in a situation
or business that he was not in. 185 Kan. at 43-44.
More recently, a panel of our court examined the current statute and its "false
pretense" element. Mayfield, 2021 WL 935715, at *3. The panel found that "false
pretense" requires a person's misleading or deceptive representation made to obtain
something of value from another:
"[A] false pretense entails a person's misleading or deceptive representation
commonly made to carry out a wrongful act often bound up in obtaining money or some
other thing of value from another. See 32 Am. Jur. 2d, False Pretenses § 10 ('The basis
for a prosecution for obtaining money or property by false pretenses is a representation of
a fact that is untrue, calculated to mislead, and intended to induce the person to whom it
6
is made to part with something of value.'); Black's Law Dictionary 1438 (11th ed. 2019)
(defining 'pretense' as 'a way of behaving that is calculated to make people believe
something untrue' and as 'an instance of dissembling')." 2021 WL 935715, at *3.
In Mayfield, the State contended that a conservator disregarded her oath to act in
the ward's best interests by buying a pickup and, therefore, either never intended to honor
her oath when she took it or deliberately abandoned the oath when she made the
purchase. But the evidence failed to show that the conservator engaged in any false
pretenses because she had made no untrue representations either when obtaining the
ward's money or when using the ward's money to buy items for herself. The oath and its
violation had played no causative part in the dissipation of the ward's money, including
the purchase of the pickup. 2021 WL 935715 at *3. The Mayfield panel thus found that
the conservator's act of writing checks drawn on her own account into which her ward's
money had been deposited was insufficient to show false pretense.
Based on these scant authorities, we find that "false pretense," as used in this
statute, means a representation of a fact that is untrue, calculated to mislead, and intended
to induce the person to whom it is made to part with something of value. Beyond that, we
do not limit the term. Such a representation may be overt or tacit, verbal or nonverbal.
Given those broad definitional parameters, we next examine the evidence. Frias'
theory of defense was that she used Emery's money only as Emery directed her to. Frias
testified that she "spen[t] the money as [Emery] instructed and allowed or whatever she
told me to do, I did it, and whatever I asked, if she said okay, then I could do that."
Emery had lost her purse and checks, so Frias found some of Emery's old checks and
brought some in to use. She kept the bulk of the checks at her house because Emery did
not want checks left at the facility. Frias would give some checks to Emery, and Emery
would sign three or four of them at a time when her handwriting was good. Frias would
take the signed checks, then write her own name as payee and fill in the amount when a
7
payment would come into Emery's bank, apparently from Emery's federal pension or
Social Security. Frias knew Emery had been a "very high ranking civilian employee" at
the air force base. Frias deposited these checks into her own account almost monthly,
some ranging from $2,500 to $3,000. Frias said she used the money to buy things for
Emery, to maintain Emery's house, and to buy things for herself or pay her personal
expenses.
Frias was Emery's durable power of attorney for healthcare, but not for financial
decisions, and Frias was not a signatory on Emery's account. Frias testified that she began
handling Emery's money this way because they had no access to Emery's bank, which
was on the air force base, and because it was convenient. Emery told her to handle her
money that way until they could figure something else out since they could not get onto
the base. Frias admitted that at the time, she was going through a tough time financially
and needed help.
Frias testified that Emery, when she was competent, had told her not to pay
Legacy's bills, perhaps because Emery expected to get Medicaid or thought Legacy
would evict her. Frias did, however, pay several months of Legacy's bills when a question
arose later about Emery's capacity, saying she did so in good faith because she knew
those bills had not been paid. During Emery's two-year stay at Legacy, Frias paid
Legacy's bills for four months—June through September 2016. Frias wrote, "Legacy at
College Hill" or "long-term care" on the memo line because her sister, who was on the
account with Emery, had asked her to.
Frias' sister testified that Emery was aware Frias was not paying her nursing home
bills. Frias' sister testified that Emery had told Frias not to pay the facility bills because
"she didn't want them paid until she figured [her Medicaid paperwork] out." Yet Emery
apparently was not approved for Medicaid and remained personally responsible for
paying her bill to College Hill.
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The State showed that in a two-year period, Frias had Emery sign roughly 30
blank checks that Frias made payable to herself, enabling Frias to spend over $67,000
from Emery's account. Although Frias wrote in the memo line of the checks some
variation of "long-term care" or "Legacy" or "College Hill," Frias' payment to that facility
totaled only around $12,000.
Several witnesses spoke with Emery about potential abuse. Terri Livingston, a
previous College Hill nurse and social service designee, talked to Emery about the fact
that her bills from Legacy were unpaid. Emery had no idea where her money was going,
so Livingston showed Emery her bank records. Once Emery learned how much money
Frias had taken from her account, she was upset. Emery told Livingston that she wanted
her rent at Legacy to be paid. Emery, with Livingston's help, promptly sent the bank a
letter telling them to freeze all withdrawals from her account. Livingston called Frias
more than once, thinking she was authorized to handle Emery's finances, but Frias never
returned her calls.
Kathleen Wooderson, a social worker for the Adult Protective Services Division of
the Department for Children and Families, was assigned to Emery in the spring of 2017.
Wooderson's job included investigating possible fiduciary abuse of vulnerable adults. She
said Emery was surprised about the investigation into her finances and told her that she
had not had money for a long time. Wooderson reviewed Emery's bills, her durable
powers of attorney, and her bank statements. Frias was Emery's power of attorney for
health care decisions, but Emery told Wooderson that Frias was supposed to manage
Emery's money as well. And Frias had signed the contract between Legacy and Emery on
Emery's behalf, agreeing to "pay all fees and charges not covered by public aid funds, or
insurance benefits, when they are billed."
Emery told Wooderson that she had lost her purse, that Frias managed her money,
and that Frias had never brought her anything to the nursing home. When Wooderson
9
reviewed Emery's bank records she saw that Frias had written checks to herself on
Emery's account, but she saw no record that Legacy had been paid—its bill was over
$77,000. Wooderson found many checks that Emery had signed with memo lines
indicating Legacy or College Hill, but none was made payable to the care home. Rather,
all were made payable to Frias. The checks from Emery to Frias as payee exceeded
$67,000.
Wooderson sent Frias a contact letter asking Frias to call her. When Frias did not
do so, Wooderson called Frias and left a voicemail to make an appointment to interview
her. Frias then called Wooderson, and they set up an appointment, but Frias later called
and canceled it. They rescheduled the interview, but Frias never showed up. Wooderson
reported the matter to the police.
Andrea Riedel, a financial crimes investigator for the Sedgwick County District
Attorney's Office, then took the case. She said Emery was surprised that her bills were
not being paid. Emery told her that Frias was supposed to be paying Emery's bills first
but was allowed to use her money after she paid them. Emery told Riedel at their first
meeting that "her number one priority was [paying Legacy] and that [Frias] was not
allowed to use her money without first asking her. She was allowed to use it if she asked
her, but only after her bills were paid." During their second meeting, Riedel showed
Emery copies of checks that Frias had written on Emery's account, and Emery responded
that she would not allow Frias to transfer that amount of money to herself. Most of the
money going into Frias' account was coming out of Emery's account. Riedel testified that
a previous social worker had told her that the only time Frias had paid Legacy was when
the facility had pressured her to do so. Riedel discovered that of the approximately
$67,338 Frias took from Emery's account in a two-year period, only $12,485 had gone to
cover Emery's care, so approximately $54,853 was unaccounted for.
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The evidence summarized above supports the jury's finding beyond a reasonable
doubt that Frias engaged in some misleading or deceptive representation to carry out her
wrongful act of taking Emery's money. Frias knew Emery had told her to use Emery's
money to pay Emery's bills first, then ask and get Emery's approval before using her
money for Frias. Frias repeatedly presented blank checks to Emery and accepted Emery's
signed but otherwise blank checks from Emery for that purpose. Each time that Frias
accepted a signed check that Emery offered her for that purpose, Frias misrepresented to
Emery that she had been using, was using, and would use Emery's money to take care of
Emery's financial obligations first. Emery relied on that course of conduct, expecting
Frias to pay her bills. That Emery put a hold on her account once she learned how Frias
was spending her money shows her disapproval—not her permission, not a gift.
Frias behaved in a way calculated to make Emery believe something untrue. Frias'
notations on the memo lines are likely insufficient, viewed in isolation, to show Frias'
false pretenses, since no evidence showed that Emery saw or relied on them. Still, the
notations help show Frias' intent or general scheme to deceive Emery. Writing on a
check's memo line usually indicates the purpose of the payment, yet Frias offered no
rational explanation for routinely writing the name of Emery's facility on checks that
Frias used to pay for items unrelated to that facility. The notations would likely reinforce
to the bank or others who saw them the deception or pretense that Frias was using
Emery's money to pay Emery's bills, as Emery had required.
Frias argues that a deception must involve a misrepresentation of a past or present
fact—not a false promise to act, citing State v. Hamilton, 6 Kan. App. 2d 646, 649-50,
631 P.2d 1255 (1981). She contends that the evidence shows, at most, that she induced
Emery to rely on her future promise to pay Emery's bills. But Hamilton was a theft by
deception case, unlike this one. And its teaching that a false promise is not a false
pretense was designed to prevent a promisor, whose promise was truthful when made,
from being guilty of a crime merely because the promisor later defaulted. 6 Kan. App. 2d
11at 649. That scenario is not supported here—no facts suggest that Frias intended to pay
Emery's bills but was repeatedly prevented from so doing.
Both sides argued plausible theories, supported by evidence. But we must view the
evidence in the light most favorable to the State and cannot reweigh evidence or witness
testimony and credibility. Chandler, 307 Kan. at 668. Doing so, we are convinced that a
rational fact-finder could have found Frias guilty beyond a reasonable doubt of
mistreatment of an elder person through false pretense.
II. DID THE DISTRICT COURT ERR BY NOT GIVING AN AFFIRMATIVE DEFENSE
INSTRUCTION?
Frias next contends that the court erred by failing to instruct the jury on her
affirmative defense that the money she got from Emery was a gift. Affirmative defenses
provide a legally recognized justification for the action such that the actor cannot be held
criminally or civilly liable. See United States v. Corrigan, 548 F.2d 879, 883 (10th Cir.
1977) ("An affirmative defense admits the defendant committed the acts charged, but
seeks to establish a justification or excuse."). Frias argues that she presented competent
evidence that Emery transferred her funds to Frias as a gift, and that the district court, by
preventing the jury from considering her defense, violated her right to due process.
Standard of Review and Basic Legal Principles
When a party challenges a jury instruction or the lack thereof:
"(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
12
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless . . . ." State v. Plummer,
295 Kan. 156, 163, 283 P.3d 202 (2012).
Analysis
We first consider whether Frias preserved her claim of error. Frias never asked the
district court to give an affirmative defense instruction. Because Frias asserts
instructional error for the first time on appeal, the court's failure to give a legally and
factually appropriate instruction is reversible only if the failure was clearly erroneous.
See K.S.A. 2020 Supp. 22-3414(3) ("No party may assign as error the giving or failure to
give an instruction . . . unless the party objects thereto before the jury retires to consider
its verdict . . . unless the instruction or the failure to give an instruction is clearly
erroneous."). The clear error standard requires reversal only if an error occurred and the
court is firmly convinced that the jury would have reached a different verdict if the
instruction error had not occurred. State v. Williams, 295 Kan. 506, 510, 286 P.3d 195(2012). Frias, as the party claiming clear error, has the burden to prove the necessary
prejudice. State v. McLinn, 307 Kan. 307, 318, 409 P.3d 1 (2018).
We next determine whether the instruction would be legally appropriate. Plummer,
295 Kan. at 161. This means the instruction must accurately and fairly state the law as it
applies to the crimes charged. See 295 Kan. at 161 ("For instance, a lesser included
offense instruction would be inappropriate if the described lesser crime is not legally an
included offense of the charged crime, i.e., as a matter of law, a lesser included offense
instruction must contain a lesser included offense.").
Frias wants a generic instruction that a gift is an affirmative defense to the charged
crime. But the elder person mistreatment statute restricts the affirmative defense that
money was given as a gift, precluding a generic gift instruction:
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"It shall be an affirmative defense to any prosecution for mistreatment of a
dependent adult or mistreatment of an elder person as described in subsections (a)(2) and
(b)(1) that:
"(1) The personal property or financial resources were given as a gift consistent
with a pattern of gift giving to the person that existed before the dependent adult or elder
person became vulnerable;
"(2) the personal property or financial resources were given as a gift consistent
with a pattern of gift giving to a class of individuals that existed before the dependent
adult or elder person became vulnerable;
"(3) the personal property or financial resources were conferred as a gift by the
dependent adult or elder person to the benefit of a person or class of persons, and such
gift was reasonable under the circumstances; or
"(4) a court approved the transaction before the transaction occurred." K.S.A.
2014 Supp. 21-5417(e).
No affirmative defense of a gift, unconstrained by the language of the statute which
requires a "pattern," court approval, or reasonableness, is thus possible. The generic "gift"
instruction that Frias now desires yet failed to request was not legally appropriate.
Lastly, we ask whether the instruction is factually appropriate. Here, that means
the affirmative defense must be supported by competent evidence "which could allow a
rational fact finder to reasonably conclude that the defense applies." See K.S.A. 2020
Supp. 21-5108(c). Yet Frias failed to allege that Emery gave her blank checks to Frias as
a "gift," and no evidence shows the pattern, reasonableness, or court approval that the
statutory affirmative defense requires for gifts. See K.S.A. 2014 Supp. 21-5417(e).
And Frias did not testify that Emery wrote the checks to her as gifts. Instead, she
claims to have raised the affirmative defense of gift-giving by testifying that she spent a
lot of the money under Emery's instruction, direction, and with her permission, and used
the money to buy things for Emery, to maintain Emery's house, and to pay Frias' living
expenses. But Frias never characterized the transactions as a "gift," which would have
14
been a simple way to explain matters to the jury. To the contrary, she testified that she
"spen[t] the money as [Emery] instructed and allowed or whatever she told me to do, I
did it, and whatever I asked, if she said okay, then I could do that." When money is a gift,
one need not ask permission to use it in a specific way.
We are not persuaded that Frias' testimony, even considered in isolation, and
viewed in the light most favorable to her, raises any affirmative defense or shows any
gift-giving. And considering all the evidence, as we must, in that light, we find none
suggesting that Emery's blank checks that Frias made payable to herself were gifts to
Frias. Because an instruction on the affirmative defense of a gift was not legally or
factually appropriate, the district court properly did not raise the instruction on its own.
See State v. Williams, 303 Kan. 585, 598-99, 363 P.3d 1101 (2016).
III. DID THE DISTRICT COURT ERR BY DENYING FRIAS' MOTION FOR NEW COUNSEL?
Frias next argues that the district court erred by denying her posttrial motion for
new counsel, forcing Pittman to advocate for her in her motion for a new trial and during
sentencing. Frias asks us to remand for resentencing.
Standard of Review
"The decision to appoint substitute counsel depends on the circumstances of the
case, and the district court possesses broad discretion in determining whether to appoint
substitute counsel." State v. Brewer, 49 Kan. App. 2d 102, 113, 305 P.3d 676 (2013). A
district court must make an appropriate in-depth inquiry if it becomes apparent that a
potential conflict of interest exists. State v. Sharkey, 299 Kan. 87, 96, 322 P.3d 325(2014). If the district court makes an appropriate inquiry, we review the district court's
decision to deny a motion to withdraw counsel for abuse of discretion. State v. Stovall,
298 Kan. 362, 370, 372, 312 P.3d 1271 (2013).
15
"Judicial discretion is abused if judicial action is (1) arbitrary, fanciful, or
unreasonable, i.e., no reasonable person would take the view adopted by the trial court;
(2) based on an error of law . . . ; or (3) based on an error of fact . . . . The defendant bears
the burden of showing the court abused its discretion." Stovall, 298 Kan. at 370. 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).
General Legal Principles
While both our state and federal Constitutions guarantee the right of criminal
defendants to have the effective assistance of counsel, they do not guarantee the
defendant the right to choose which attorney will be appointed to represent him or her.
State v. Brown, 300 Kan. 565, 574-75, 331 P.3d 797 (2014).
"'[T]o warrant substitute counsel, a defendant must show 'justifiable
dissatisfaction' with appointed counsel. Justifiable dissatisfaction
includes a showing of a conflict of interest, an irreconcilable conflict, or
a complete breakdown in communications between counsel and the
defendant. But ultimately, "'[a]s long as the trial court has a reasonable
basis for believing the attorney-client relation has not deteriorated to a
point where appointed counsel can no longer give effective aid in the fair
presentation of a defense, the court is justified in refusing to appoint new
counsel.'" [Citations omitted.]' State v. Sappington, 285 Kan. 158, 166,
169 P.3d 1096 (2007).
"Further, when the defendant's dissatisfaction emanates from a complaint that
cannot be remedied or resolved by the appointment of new counsel—such that
replacement counsel would encounter the same conflict or dilemma—the defendant has
not shown the requisite justifiable dissatisfaction. State v. Smith, 291 Kan. 751, 755, 247
P.3d 676 (2011)." State v. Breitenbach, 313 Kan. 73, 90-91, 483 P.3d 448 (2021).
16
Application
In her letter to the district court, Frias stated she had asked about and intended to
file a complaint against Pittman with the Office of the Disciplinary Administrator. She
asked the court to appoint her new counsel who would help her file appropriate motions
before sentencing.
At the start of the motions hearing, the district court asked Frias why she wanted
new counsel. Frias responded that Pittman was unavailable to answer questions and
should have consulted with her before filing a motion for a new trial. She agreed that the
motion should be filed but she wanted to tell Pittman the best way to do it. She thought
Pittman's filing the motion on her behalf was "sneaky." Frias then stated she "found" the
concept of ineffective assistance of counsel and wanted to explore that basis for a new
trial. Ultimately, she wanted a continuance and a new attorney to review her options for a
new trial or judgment of acquittal and to counsel her on an ineffective assistance of
counsel claim. The court then asked for defense counsel's response and he replied only
that he did not need Frias' permission to file appropriate motions on her behalf.
Frias failed to show justifiable dissatisfaction with Pittman, as her statements do
not show a conflict of interest, an irreconcilable disagreement, or a complete breakdown
in communication between herself and her counsel. See Breitenbach, 313 Kan. at 90. The
closest Frias came to alleging a breakdown in communication was to say that she and
Pittman were not "jelling," but this statement was not enough to warrant substitute
counsel. Frias did not allege that the two had an irreconcilable disagreement. Rather,
Frias and Pittman were trying to file the same posttrial motions, but Frias wanted to
control their contents. Of course, she had no right to do so. See State v. Rivera, 277 Kan.
109, 116-17, 83 P.3d 169 (2004) (finding criminal defendants are charged with deciding
what plea to enter, whether to waive jury trial, and whether to testify, but strategical and
tactical decisions like preparation, the type of defense, and filing motions lie with defense
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counsel, who is not required to specifically consult with the defendant first). Frias
mentioned her desire to explore the concept of ineffective assistance of counsel, but she
did not specifically allege a "conflict of interest." And her other allegations about
Pittman—such as that he did not have her best interest in mind and was misleading her—
are too lacking in factual detail to trigger the district court's duty to inquire.
But even if we assume that Frias showed justifiable dissatisfaction, triggering the
district court's duty to inquire, the district court met that duty—it asked Frias an open-
ended question that sufficed as inquiry into a potential conflict. See State v. Toothman,
310 Kan. 542, 554-55, 448 P.3d 1039 (2019); State v. Meadows, No. 121,223, 2020 WL
4909717, at *2 (Kan. App. 2020) (unpublished opinion). The district court read her letter,
allowed Frias to explain why she wanted new counsel, considered her long response,
solicited input from counsel, and then made a reasonable decision. The district court
heard all of Frias' complaints and assessed Pittman's conduct and their attorney/client
relationship. Finding no abuse of discretion, we affirm the district court's decision to deny
Frias' motion for new counsel.
IV. DID THE DISTRICT COURT ERR IN SENTENCING FRIAS?
As her final issue, Frias contends that the court erred by ordering restitution in
March 2020 without setting up a payment plan. Frias relies on State v. Roberts, 57 Kan.
App. 2d 836, 461 P.3d 77 (2020), vacated and remanded 2020 WL 8269363, at *1
(2020), which was in effect when she was sentenced. Roberts held that the statute, by
referring to "the plan established by the court for the payment of restitution," required the
district court to set a restitution plan. See K.S.A. 2019 Supp. 21-6604(b); 57 Kan. App.
2d at 838-39. Frias seeks remand to the district court so it can set a restitution plan.
We find it unnecessary to recite the history of Roberts, the legislative changes to
the statute in response to that case, or the Supreme Court's vacating Roberts based on
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those legislative changes. None of that matters here because the district court, while
imposing Frias' sentence from the bench, ordered a restitution plan:
"I'll make a recommendation to the Kansas Department of Corrections that the
$54,853.15 be made part of your post-release supervision. And that a payment plan be
that the $54,853.15 will be divided up into 24 equal payments and you will be ordered to
pay that amount each month."
The journal entry of judgment reinforces that restitution plan in the court's comments
recapping the sentence: "Court finds that the restitution be paid according to the
following plan: 24 equal installments totaling $54,853.15, due upon defendant's release
from prison." Because the sentence imposed fulfills the terms of the statute in effect in
March 2020, see K.S.A. 2019 Supp. 21-6604(b), the district court did not err in
sentencing Frias, and no purpose would be served by remand.
Affirmed.
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