Proof of counsel in misdemeanors

Michael P. Whalen and Krystle M.S. Dalke won in State v. David Jones, No., 107,020 (Kan. App. Nov. 16, 2012)(unpublished) obtaining remand for evidentiary hearing in a motion to correct illegal sentence in a Sedgwick County rape prosecution.  The issue revolved around whether some misdemeanor convictions used as priors were obtained in violation of the right to counsel.  The COA held that Mr. Jones had presented a sufficient record that the district court should have held an evidentiary hearing:

the documents that Jones attached to his motion to correct an illegal sentence are consistent with Jones' allegations that he was without counsel at his plea and sentencing hearings. For example, the disposition sheet for 92 CM 2202 indicates on a preprinted space for “Defense Att'y” that “C. O'Hara” entered an appearance on March 11, 1992. But there is no way to conclusively tell from the disposition sheet whether Mr. O'Hara was present for Jones' plea hearing on October 7, 1992, or at Jones' sentencing hearing, which the record indicates did not take place until almost 5 years later. Moreover, the Wichita Municipal Court “Records Check” also attached to Jones' motion lists an “N”—presumably meaning “No”—under the column titled “Attorney.” This offers additional support for Jones' allegations that Mr. O'Hara was not present at the plea or sentencing hearing dates that are handwritten on that form.

The only potentially distinguishing fact found in this case is that unlike Neal, Jones did not swear to the allegations in his motion—a fact frequently referred to by our Supreme Court in Neal.  But Jones did not simply rely on a silent record, he did specifically state in his motion that he was, in fact, not represented at the hearings and, although not sworn, his signature was notarized. In addition, Jones attached evidentiary support for his allegations to his motion: the records check and the municipal court disposition sheet. The State did not dispute the accuracy or validity of these documents. Thus, this case is more like Neal than the cases cited in Neal that found the defendants had not met their burden of proof to require an evidentiary hearing because those defendants had offered no evidentiary support for their conclusory allegations in their motions to correct illegal sentences.

My experience leads me to believe this is a frequently overlooked issue.  Practitioners (both at trial and on appeal) should be sure to review the PSI and if there are misdemeanors that effect a client's criminal history (especially municipal convictions), further investigation is required.  The KSC has made it clear that the burden is on the state to prove counsel or a valid waiver (blogged about here) and a lot of municipal court documentation is not going to meet that burden.

[Update: the state did not file a PR and the mandate issued on December 20, 2012.]