Dulaney v. State

NOT DESIGNATED FOR PUBLICATION

No. 122,681

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ALLEN GENE DULANEY JR.,
Appellant,

v.

STATE OF KANSAS,
Appellee.

MEMORANDUM OPINION

Appeal from Geary District Court; BENJAMIN J. SEXTON, judge. Opinion filed June 25, 2021.
Convictions affirmed, sentence vacated, and case remanded for resentencing.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.

Michelle L. Brown, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., HILL, J., and MCANANY, S.J.

PER CURIAM: Allen Gene Dulaney Jr. was arrested after a low-speed chase
through town ended when he crashed into a light pole. Dulaney and his vehicle were
searched and methamphetamine, drug paraphernalia, and firearms were located on his
person and in the vehicle. Dulaney was appointed counsel, but throughout large portions
of the case, Dulaney and his counsel had communication problems. Dulaney asks that we
find his counsel was ineffective due to these communication problems. He also argues
that his sentence was illegal, with which the State agrees.

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 Because we find that his sentence was illegal, we must vacate his sentence and
remand the case for resentencing consistent with this opinion. But we reject Dulaney's
claim that his counsel was ineffective and affirm his convictions.

FACTUAL AND PROCEDURAL HISTORY

In August 2017, Lieutenant Dustin Murphy attempted to perform a traffic stop on
Dulaney. After Murphy activated his lights and sirens, Dulaney continued to drive
without pulling over. After driving at least 16 blocks, Dulaney stopped after running into
a light pole. During the chase, Lieutenant Cory Odell witnessed Dulaney commit several
traffic violations.

After Dulaney crashed, he was removed from his vehicle and searched. Murphy
found a clear glass smoking device, which he identified as a pipe used to smoke
methamphetamine, on Dulaney. Murphy also searched the vehicle Dulaney had been
driving while it was still at the scene of the crash. Murphy found a pouch inside the
vehicle which contained a used syringe and another methamphetamine smoking device.

The vehicle was towed, and Murphy subsequently did a more thorough search of
the vehicle. Murphy found $475 in cash, a silver revolver with a pink handle, a pouch
which contained 15 baggies containing methamphetamine, a digital scale, a baggie of
marijuana, another glass smoking device, another syringe, and two pills that were
identified as amphetamine dextroamphetamine. Murphy also located four more firearms
in the trunk of the vehicle. A detective, Levi Whitebread, also searched the car and found
a glass jar containing methamphetamine.

Murphy spoke with Dulaney about the firearms and Dulaney said that he was
trying to get rid of them. Dulaney also said that he supplied methamphetamine to several
individuals in the area. According to Dulaney, he would get an ounce of

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methamphetamine a week. Dulaney said that he would use some of it, give some away,
and the rest he would sell.

Ultimately, Dulaney was charged with possession of methamphetamine with intent
to distribute, felony fleeing or attempting to elude a police officer, criminal possession of
a firearm by a convicted felon, criminal use of weapons, possession of drug
paraphernalia, and several traffic infractions. The district court appointed Allen Angst to
represent Dulaney.

In October 2017, Dulaney wrote a letter to the court expressing his displeasure
with Angst. A month later, at a motions hearing, Dulaney informed the court that he
wished for his attorney to withdraw. According to Dulaney, Angst did not answer his
phone calls, did not inform him of court dates and the purpose behind hearings, had not
shown him evidence, failed to have his bond reduced, among other similar issues. Angst
expressed concern with Dulaney's accusations and what Dulaney seemed to expect. As
Angst explained, he was doing everything he could to defend Dulaney but Dulaney
seemed to believe that it was not enough. The district court denied Dulaney's request to
have Angst removed as his attorney.

At a motion hearing another month later, Dulaney again requested new counsel.
According to Dulaney, he was "repeatedly getting lied to." When the court asked Angst
about how communication was going between him and Dulaney, Angst said that there
were problems and that Dulaney refused to accept Angst's recommendations and advice.
Dulaney said that Angst told him he was going to get probation. Angst denied Dulaney's
assertion. The district court believed that Angst was able to represent Dulaney and that
Angst and Dulaney were capable of communicating about the case. As the court saw it,
Angst and Dulaney just had a difference of opinion.

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 Angst followed up with a written motion to withdraw the following day. The
district court addressed the motion on December 18, 2017, the day the jury trial was
scheduled to begin. The district court denied the motion, reasoning that Angst could
adequately represent Dulaney and that, in truth, Dulaney was just unhappy about his
imminent trial and was seeking to delay its beginning.

The case proceeded to trial, and the jury found Dulaney guilty of possession with
intent to distribute methamphetamine, fleeing or attempting to elude the police, criminal
use of weapons, and possession of drug paraphernalia. The jury found Dulaney not guilty
of criminal possession of a firearm by a convicted felon. The district court found Dulaney
guilty of the remaining traffic infractions.

At sentencing, Angst motioned for a downward departure so that Dulaney could
seek treatment for his drug problems. The court denied his request for a departure and
sentenced him to a controlling sentence of 123 months' incarceration. The sentence was a
result of Dulaney's criminal history score of E and his primary offense of possession with
intent to distribute, a severity level 2 drug felony. The court sentenced Dulaney to 117
months' imprisonment for the possession with intent to distribute charge and ordered a 6-
month sentence for criminal use of a weapon to be served consecutively. The parties and
the district court believed that 117-month sentence for possession with intent to distribute
was the standard amount of imprisonment for Dulaney's criminal history given the
charge. All other sentences were ordered to be served concurrently to the primary
offense. The court also found that special rule 32—drug felony while in possession of a
firearm—applied. During sentencing, the State noted that it was not asking for the
firearms finding because it was not originally charged in the complaint.

Dulaney appealed his convictions but later moved to voluntarily dismiss his
appeal, apparently as part of a plea deal in a companion case. The mandate dismissing the
appeal was issued November 21, 2018.

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 Dulaney filed a pro se K.S.A. 60-1507 motion on May 14, 2019. Dulaney alleged
that Angst was ineffective, that the trial judge committed judicial misconduct, and that
the State committed misconduct. He was appointed counsel who filed an amended 60-
1507 motion.

The district court held an evidentiary hearing on Dulaney's motion. At the hearing,
Dulaney testified that Angst met with him to discuss his case several times. He also
acknowledged that Angst provided him with discovery materials. According to Dulaney,
he first became unhappy with Angst's representation after Angst told him that he would
be getting probation, and Dulaney learned that was not the case. Dulaney also indicated
that he had told Angst that he wanted a different attorney at least 50 times.

Dulaney also discussed his statements at the December 14, 2017, motion hearing.
Dulaney explained that Angst lied to him about filing motions that were never filed and
said that some of the motions Dulaney wanted filed would be frivolous. Dulaney also
expressed displeasure that Angst did not seek to admit a recording of Dulaney's 911 call
while he was being pursued by police. Dulaney explained that Angst told him that the call
was irrelevant to the case, but Dulaney did not believe him. According to Dulaney, Angst
did not have any meetings with him to prepare for trial. Angst did advise Dulaney against
taking the stand at trial but said that it was Dulaney's choice.

Dulaney also said that Angst did not properly investigate the case because if he
had Angst would have realized that Dulaney was a drug addict and just needed treatment.
He also testified that he believed Angst should have argued there was not probable cause
for the police to initially pull him over in this case. However, he also acknowledged that
he was pulled over because of an outstanding warrant.

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 Dulaney also explained that after his conviction in the current case, Dulaney made
a complaint to the Disciplinary Administrator regarding Angst's representation of him. At
that point, Angst withdrew from Dulaney's remaining criminal case.

Angst also testified at the hearing. According to Angst, he told Dulaney that if he
wanted any shot at probation that it would be in his best interests to waive his preliminary
hearing. Angst was adamant that he never promised that Dulaney would receive
probation in his case. Moreover, Angst believed that based on the evidence he had there
was no chance that he could successfully argue that there was not probable cause to bind
Dulaney over given the outstanding warrant, police chase, and evidence found on
Dulaney and in his vehicle.

As for Dulaney's arguments that the 911 call would have exonerated him, Angst
testified that he did not seek to have it admitted at trial because it was irrelevant to the
case. Angst noted that he requested bond reductions for Dulaney on four separate
occasions. He also testified that he filed a successful motion for furlough after Dulaney's
mother died. Finally, Angst testified that his representation of Dulaney was not impacted
by the district court's denial of his motion to withdraw.

The district court found that Dulaney did not present any evidence of prosecutorial
misconduct and deemed any such arguments abandoned. The court took the remaining
issues under advisement and issued a written order on January 9, 2020.

The district court denied Dulaney's motion. The court noted that Dulaney made
several allegations but provided few facts to back them up. The court did not find
Dulaney's assertion that Angst promised that he would get probation credible. And
Dulaney's argument that Angst did not do certain things as requested was unpersuasive
because the requested actions were either not possible or would have had no impact on
the case. Overall, the district court did not find any weight to Dulaney's allegations of

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ineffective assistance of counsel. Further, the district court noted that, even if Angst was
ineffective, Dulaney failed to establish that he was prejudiced. The district court also
found that the trial judge did not err by denying Angst's motions to withdraw.

Dulaney timely appeals.

ANALYSIS

On appeal, Dulaney raises two issues. First, he argues that his sentence is illegal
because a six-month enhancement was added to his sentence without an appropriate
finding by the jury. Second, he argues that the district court erred in denying his K.S.A.
60-1507 motion because his counsel had an active conflict of interest.

Dulaney's sentence was illegal.

A sentence is illegal under K.S.A. 2020 Supp. 22-3504(c)(1) when: (1) it is
imposed by a court without jurisdiction; (2) it does not conform to the applicable
statutory provisions, either in character or the term of punishment; or (3) it is ambiguous
about the time and manner in which it is to be served. A court may correct an illegal
sentence at any time while the defendant is serving the sentence. K.S.A. 2020 Supp. 22-
3504(a). A defendant may challenge a sentence even for the first time on appeal. State v.
Hambright, 310 Kan. 408, 411, 447 P.3d 972 (2019). Whether a sentence is illegal within
the meaning of K.S.A. 22-3504 is a question of law over which the appellate court has
unlimited review. State v. Sartin, 310 Kan. 367, 369, 446 P.3d 1068 (2019).

Dulaney argues that the court illegally sentenced him by adding an additional six
months to his sentence as part of a special rule even though the jury did not make the
requisite finding. The State agrees.

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 Under K.S.A. 2020 Supp. 21-6805(a), Dulaney faced an applicable sentence of
116, 111, or 105 months because of his criminal history score of E and the severity of his
conviction for possession with intent to distribute methamphetamine, a severity level 2
felony. However, that sentence could be enhanced with an additional six months'
imprisonment under K.S.A. 2020 Supp. 21-6805(g)(1)(A)—if the trier of fact made a
specific finding that Dulaney possessed a firearm. The PSI in this case apparently
indicated that Dulaney faced an applicable sentence of 122, 117, or 111 months—
essentially adding in the six-month enhancement.

But the jury did not make a special finding that Dulaney possessed a firearm
during the commission of his crimes, and his conviction for criminal use of a weapon
cannot be used as a substitute finding. See State v. Housworth, No. 115,836, 2017 WL
2834502, at *7 (Kan. App. 2017) (unpublished opinion). Because the State did not seek a
specific jury finding on the issue at trial, it cannot now seek a special finding on remand.
The proper remedy, as acknowledged by the State, is to remand with instructions to
resentence Dulaney without the six-month enhancement. See State v. Obregon, 309 Kan.
1267, 1277-78, 444 P.3d 331 (2019).

The district court did not err by denying Dulaney's 60-1507 motion.

A district court has three options when handling a 60-1507 motion. The standard
of review depends upon which of these options a district court used. White v. State, 308
Kan. 491, 504, 421 P.3d 718 (2018). When the court holds an evidentiary hearing, like it
did here, an appellate court reviews the court's findings of fact to determine whether they
are supported by substantial competent evidence and are sufficient to support the court's
conclusions of law. Appellate review of the district court's ultimate conclusions of law is
de novo. Fuller v. State, 303 Kan. 478, 485, 363 P.3d 373 (2015).

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 When arguing ineffective assistance of counsel, a defendant must generally
establish that the performance of defense counsel was deficient under the totality of the
circumstances and there is a reasonable probability the jury would have reached a
different result absent the deficient performance. State v. Salary, 309 Kan. 479, 483, 437
P.3d 953 (2019).

Before the district court, Dulaney argued that his trial counsel was ineffective for a
variety of reasons. On appeal, he defines his "most significant claim pertaining to
ineffective assistance of counsel is that [his appointed attorney] labored under an
actual/active conflict - due to the deteriorated attorney/client relationship - which
adversely affected the representation." Moreover, Dulaney argues that his trial counsel
was per se ineffective at sentencing because he failed to address the sentencing error
discussed above. These are his only claims on appeal.

Dulaney attempts to frame his claim as something different than a typical
ineffective assistance of counsel claim using the standards set forth in Salary. Instead, he
frames it as a conflict of interest that must be analyzed under the standards set out in
Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002). If he is
correct, he contends that he is not required to show that he was prejudiced by counsel's
conflict of interest. Because Dulaney rests his argument on Mickens, a discussion of that
case is in order.

Walter Mickens Jr. was convicted of capital murder and sentenced to death. He
petitioned the court for a writ habeas corpus on the grounds that the lead attorney in his
case had a conflict of interest—he was representing the victim on assault and concealed
weapons charges at the time of the murder. Counsel did not disclose this fact to the court,
co-counsel or Mickens. Accordingly, his attorney was ineffective due to a conflict of
interest and prejudice should be presumed.

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 In analyzing Mickens' claim, the Supreme Court reiterated its general rule that a
defendant alleging ineffective assistance of counsel must demonstrate a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would be different. 535 U.S. at 166 (citing Strickland v. Washington, 466 U.S. 668, 685-
86, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]). An exception to this general rule
exists when the assistance of counsel has been effectively denied entirely or denied
during a critical stage of the proceeding. Known as the Cronic exception, based upon
United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), if
the exception applies, prejudice is presumed. Likewise, an exception has been recognized
when counsel is forced to represent codefendants over their timely objection, unless the
trial court determines there is no conflict. Mickens, 535 U.S. at 162 (citing Holloway v.
Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 [1978]). Such a situation results
in an automatic reversal. But the Supreme Court refused to extend the automatic reversal
rule absent a timely objection. If there is no timely objection, the defendant "must
demonstrate that 'a conflict of interest actually affected the adequacy of his
representation.'" Mickens, 535 U.S. 168 (citing Cuyler v. Sullivan, 446 U.S. 335, 348-49,
100 S. Ct. 1708, 64 L. Ed. 2d 333 [1980]).

Relying on language in Wood v. Georgia, 450 U.S. 261, 271-73, 101 S. Ct. 1097,
67 L. Ed. 2d 220 (1981), Mickens argued that because the conflict of interest was readily
apparent the court had a duty to inquire and failure to do so mandated the nuclear
option—automatic reversal. The Supreme Court disagreed. It interpreted Wood to define
"'an actual conflict of interest'" to mean "a conflict that affected counsel's performance."
Mickens, 535 U.S. at 171. "The trial court's awareness of a potential conflict neither
renders it more likely that counsel's performance was significantly affected nor in any
other way renders the verdict unreliable." 535 U.S. at 173. The Supreme Court concluded
that Mickens must establish that the conflict adversely affected his counsel's performance
and his failure to do so was fatal to his claim. 535 U.S. at 174.

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 We note that in his majority opinion Justice Scalia did discuss other types of
attorney conflicts; for example, when counsel's representation somehow implicates
counsel's personal or financial interests. Our Supreme Court has termed this the "Mickens
reservation." State v. Galaviz, 296 Kan. 168, 184-85, 291 P.3d 62 (2012) (recognizing
Mickens as controlling precedent under the Sixth Amendment to the United States
Constitution). Justice Scalia noted that several circuit courts have found personal or
financial conflicts of interests, like a book deal, a job in the prosecutor's office, teaching
classes to IRS agents on how to detect fraud, a romantic entanglement with the
prosecutor, or fear of antagonizing the trial judge may implicate the Sixth Amendment
right to counsel. Mickens, 535 U.S. at 174-75. But he noted that the Supreme Court's
prior caselaw did not support such an "expansive application" of conflict of interest. 535
U.S. at 175. He went on to explain, quoting Sullivan, that until "'a defendant shows that
his counsel actively represented conflicting interests, he has not established the
constitutional predicate for his claim of ineffective assistance of counsel.'" 535 U.S. at
175. And finally, the court noted that even the breach of an ethical standard does not
necessarily translate to the denial of the Sixth Amendment guarantee of assistance of
counsel. 535 U.S. at 176 (quoting Nix v. Whiteside, 475 U.S. 157, 165, 106 S. Ct. 988, 89
L. Ed. 2d 123 [1986]). The majority in Mickens did not "articulate what additional
burden, e.g., prejudice or adverse effect, a defendant must satisfy before receiving relief
based on" conflicts of interest such as "counsel's personal or financial interests," it left
that decision for another day. Sola-Morales v. State, 300 Kan. 875, 884, 335 P.3d 1162
(2014).

So we return to Dulaney's argument on appeal. The problem with Dulaney's
approach is that he has failed to make even a foundational showing that his counsel had
an active conflict of interest in representing him in this case. The only purported conflict
was based on the communication problem between Dulaney and Angst. As Dulaney puts
it in his brief, "Angst filed multiple motions to withdraw based on a very real
communication problem, which can easily equate to a conflict of interest." But he

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provides no authority to support his argument. The district court was able to question
Angst about his ability to continue to represent Dulaney and believed that he could do so.
Angst also believed that he remained able to represent Dulaney to the best of his ability,
and the district court believed him. So we fail to see how the Mickens conflict of interest
provisions apply at all to Dulaney's case.

But even if we were to assume that Angst had an active personal conflict of
interest while representing Dulaney, Dulaney fails to establish prejudice or any actual
adverse effect. In his brief, Dulaney argues that Angst's failure to raise and correct the
illegal sentence issue, discussed above, at sentencing demonstrates a per se adverse
effect. But Dulaney did not raise that argument below, and the district court did not have
an opportunity to address it. Generally, issues not raised before the district court cannot
be raised on appeal. State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014).

And even if it was addressed, Dulaney has not appeared to have suffered any true
adverse effect from the mistake regarding his sentencing. As addressed above, an illegal
sentence can be corrected at any time. Because we follow the recommendation of
Dulaney and the State to remand for resentencing, Dulaney has suffered no adverse effect
from his illegal sentence. The sentence will be corrected before Dulaney is impacted by
the incorrect sentence.

In conclusion, the record supports the district court's finding that Angst was not
ineffective in his representation of Dulaney. Many of Dulaney's arguments boiled down
to his assertions that Angst did not meet with him, failed to give him various documents,
and did not perform in the manner Dulaney wished. But Angst controverted Dulaney's
assertions, and the district court found Angst more credible. Appellate courts do not
reweigh evidence, make credibility determinations, or resolve conflicts in evidence;
instead, appellate courts give deference to the determinations made by the trial court.
White¸ 308 Kan. at 504. There was ample evidence to support Dulaney's convictions and

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he fails to show how, absent any alleged ineffectiveness, the outcome of his case would
have been different.

Convictions affirmed, sentence vacated, and case remanded for resentencing.

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