Saturday, November 01, 2014

Defense attorneys must communicate with client regarding continuances

Michael P. Whalen won in Sola-Morales v. State, No. 104,288 (Kan. Oct. 24, 2014), obtaining an evidentiary hearing with regard to Mr. Sola-Morales' IAC claim.  Specifically, Mr. Sola-Morales claimed that his trial attorney had lied to him regarding continuances and that, as a result, he had lost his statutory right to a speedy trial.  The KSC recognized that for purposes of determining whether to have a hearing, the district court (and a reviewing court) have to assume that the allegations in the petition are true.  And when it did this, it determined that if trial counsel had lied to Mr. Sola-Morales regarding the continuance, he might have lost his ability to independently object to the continuances:
Here, because of trial counsel's alleged conduct, Sola-Morales appeared to have lost any opportunity to timely and "strenuously object" to continuances his counsel proposed and later received. See State v. Hines, [269 Kan. 698, 700 7 P.3d 1237 (2000)]. Sola-Morales also appeared to have lost any opportunity to "speak out against" the continuances, e.g., to advise the court of his opposition. See [State v. Arrocha, 30 Kan. App. 2d 120, 127, 39 P.3d 101 (2002)]. So he arguably may also have lost any opportunity to avail himself of the arguments, rationale, and holding in Hines, as corroborated in Arrocha. As Sola-Morales argues in his petition for review, counsel's lies—and other questionable conduct—seemingly prevented him from participating in his own defense.
The KSC recognizes that, under its own case law, communication with the client about continuances is necessary and, failure to communicate may result in a conflict of interest and ineffective assistance of counsel

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