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C-2010-322

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Silvon Dane Kinter v The State Of Oklahoma

C-2010-322

Filed: Apr. 22, 2011

Not for publication

Prevailing Party: Silvon Dane Kinter

Summary

Silvon Dane Kinter appealed his conviction for Assault and Battery with a Deadly Weapon. Conviction and sentence: Kinter was sentenced to 20 years in prison, with 10 years suspended. Kinter dissented with the idea that his attorney did not properly represent him and that he was denied a public defender when he needed one.

Decision

Hence Kinter's Petition for a Writ of Certiorari is GRANTED, and his conviction is VACATED. This case is hereby REMANDED for further proceedings consistent with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was Kinter's constitutional right to conflict-free counsel violated when the trial court refused to appoint a public defender despite his indigency?
  • Should Kinter be allowed to withdraw his plea because it was not knowingly, intelligently, and voluntarily made due to being entered under duress and without sufficient deliberation?

Findings

  • the trial court erred in denying Kinter's request for appointed counsel
  • the trial court abused its discretion in refusing to allow Kinter to withdraw his plea
  • Kinter's guilty plea was not knowingly, intelligently, and voluntarily made
  • Kinter's conviction is vacated
  • the case is remanded for further proceedings

C-2010-322

Apr. 22, 2011

Silvon Dane Kinter

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

GRANTING PETITION FOR CERTIORARI

SMITH, JUDGE: On August 17, 2009, Silvon Dane Kinter was charged by Information in the District Court of Oklahoma County, Case No. CF-2009-4744, with Assault and Battery with a Deadly Weapon with Intent to Kill, under 21 O.S.Supp.2007, § 652(C).1 On September 29, 2009, Attorney Janice Howard-Croft entered her appearance as Kinter’s counsel. Preliminary hearing was held on December 1, 2009, at which time Kinter was bound over and pre-trial conference was set for January 6, 2010.2 On December 10, 2009, Kinter wrote a letter to the district judge, the Honorable Ray Elliott, stating that he expected Howard-Croft to drop his case, due to his inability to pay her, and requesting that he be appointed a public defender for the hearing on January 6, 2010.³ Howard-Croft moved to withdraw at the hearing on January 6, 2010.4 This 1 Although the Information simply cites § 652, the facts charged fit only § 652(C), as there was no shooting, discharge of a firearm, or use of a vehicle alleged. See 21 O.S.Supp.2007, § 652. 2 Kinter’s preliminary hearing has not been transcribed and is not in the record before this Court. 3 This letter was filed in the district court on 12/18/09. Kinter also wrote a letter to the Oklahoma County Public Defender (also filed on 12/18/09), noting that his attorney warned him on 12/1/09 that she would drop his case if he did not pay her in one week, that he was indigent and could not afford counsel, and asking for public defender assistance at his 1/06/10 hearing. 4 The court minute notes that counsel cited Kinter’s failure to follow her advice, absconding from motion, along with Kinter’s request that a public defender be appointed for him, was denied, and jury trial was set for March 8, 2010. The trial date was subsequently moved to March 22, 2010, with a call docket on March 19, 2010. On March 19, 2010, Howard-Croft filed a motion to withdraw, citing three reasons: (1) irreparable breakdown of the attorney-client relationship due to breakdown in communication and continual disagreement about the appropriate defense strategy, (2) her discharge by Kinter, and (3) that as a result of his non-payment of legal fees, Ms. Howard-Croft has been forced to file a claim against Mr. Kinter in case number SC-2010-5018.5 The trial court again denied counsel’s motion to withdraw, as well as Kinter’s request for a public defender. 6 Kinter then pled guilty to Assault and Battery with a Deadly Weapon, under 21 O.S.Supp.2007, § 652(C), with an agreed sentence of imprisonment for 20 years, with 10 years suspended. This Court notes that this conviction is subject to the 85% Rule for the serving of Kinter’s sentence.8 Kinter was also ordered to pay costs, fees, and a victim compensation assessment. In addition, after a restitution hearing, Kinter was ordered to pay restitution to the victim of $20,000. Kinter does not challenge this restitution order.

Within three days of his plea, Kinter began writing letters to the district court seeking to withdraw the plea. The district court scheduled a hearing on Kinter’s attempt to withdraw his plea for March 31, 2010, and appointed Kent Bridge from the public defender’s office to represent Kinter at the hearing.9 Kinter testified at the hearing that the district court informed him that because he had originally retained counsel, he was presumed not to be indigent and that if he did not have someone else prepared to represent him, he would be representing himself at trial. Kinter further testified that because he knew his counsel was not prepared for trial and that he was not capable of representing himself, he panicked and agreed to plead guilty. 10 Howard-Croft testified at the hearing and acknowledged that Kinter had always wanted to go to trial, but that she believed he should plead guilty. 11 At the conclusion of the hearing, the Honorable Ray Elliott denied the motion. After denying the motion, the court found, for the first time, that Kinter was indeed indigent and that a transcript of the hearing should be prepared at public expense. Kinter is now before this Court on a petition for certiorari. 12

Kinter raises the following propositions of error in support of his petition:

I. MR. KINTER’S CONSTITUTIONAL RIGHT TO CONFLICT-FREE COUNSEL WAS VIOLATED.

II. MR. KINTER SHOULD BE ALLOWED TO WITHDRAW HIS PLEA WHICH WAS NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY MADE BECAUSE IT WAS ENTERED UNDER DURESS AND WITHOUT SUFFICIENT DELIBERATION.

Kinter asserts that his right to conflict-free counsel was violated when the trial court refused to provide him a public defender, even though he was indigent and his originally retained counsel was unwilling to represent him, had twice moved to withdraw from his case, was unwilling to take his case to trial, and had filed a small claims case against him for his non-payment of her fees. In Proposition II, Kinter claims that he should have been allowed to withdraw his guilty plea because it was not voluntarily made, because it was entered only after the trial court improperly denied his request for appointed counsel. Kinter maintains that the court thereby forced him to choose between (1) going to trial with an attorney who did not want to represent him, who did not want to go to trial, and who had filed a case against him; (2) representing himself at trial, which he knew was a bad idea and violated his right to (and desire for) the assistance of counsel; and (3) pleading guilty, which he did not want to do, since he had always wanted to have a trial.

This Court takes up Kinter’s claims together and in the context of the entire record before this Court. This Court notes that by Friday, March 19, 2010, three days before the scheduled start of Kinter’s trial, when the trial court again denied Kinter’s request for appointed counsel, Kinter had been asking for appointed counsel for over three months. In addition, over two months had passed since defense counsel’s first request to withdraw in the case. And, counsel had informed the court that she had sued Kinter on March 17, 2010 for his non-payment of her fees. Nevertheless, the trial court described the motions as being on the eve of trial, citing the policy against such last-minute motions (as de-facto continuances), and invoked the presumption of non-indigency that attaches to a defendant who has retained counsel. The court did not, however, take any action or ask any questions to determine whether Kinter was, in fact, indigent at that time. 13

In Dixon v. Owens, 1993 OK CR 55, 865 P.2d 1250, this Court wrote: The ultimate question here is whether a defendant has the right to discharge his privately retained counsel at will, even if the firing results in his then being entitled to court-appointed counsel because he is indigent, as long as the discharge request is timely made and will not result in prejudice to the defendant, undue delay in the proceedings or prejudice to opposing counsel. Id. at II 9, 865 P.2d at 1252. The Dixon Court then found that the answer to this question is yes. Id. In Dixon, as in this case, the defendant had originally retained private counsel. Nevertheless, the Dixon Court insisted that the determination of [a defendant’s] indigence should be made at the time his request for appointed counsel is made, not based upon the fact that at one time he retained private counsel. Id. at II 15, 865 P.2d at 1253. Similarly, in Smith v. State, 2007 OK CR 6, 155 P.3d 793, this Court found that the trial court violated the indigent defendants’ right to the assistance of counsel at trial, by assuming that they were not eligible for appointed counsel simply because a relative had posted bond for them. Id. at III 6-7, 155 P.3d at 795 (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)). The Smith Court addressed the presumption of non-indigency in such cases and noted that the posting of bond by a defendant or by another on behalf of a defendant creates only a rebuttable presumption that the defendant is not indigent. Id. at II 6, 155 P.3d at 795 (emphasis in original and citing 22 O.S.Supp.2006, § 1355A(D)). The Smith Court concluded: In order to [ensure] that a defendant is not improperly denied counsel to which he or she is constitutionally entitled, the district court must make a record inquiring about the defendant’s financial status and reflecting that the defendant understands that the presumption of non-indigency created by the posting of bond is rebuttable and that he or she may still be entitled to court appointed counsel.

In other words, a defendant’s indigency status is subject to change and must be re-evaluated upon proper request/notice by the defendant, and must then be determined based upon the defendant’s actual financial status at that time, not merely a presumption based upon prior events. This Court finds that the district court should have made inquiry regarding Kinter’s indigency at the time he first indicated he was indigent and sought court-appointed counsel. This Court finds that the record in this case could not support a claim of undue delay or prejudice regarding this request. Furthermore, the trial court totally failed to recognize that Kinter’s original hiring of counsel established only a rebuttable presumption of non-indigency and failed to provide Kinter with any opportunity to rebut this presumption—despite repeated claims by Kinter and indications from his counsel that he was indigent—until Kinter had given up his constitutional right to a trial. While the State questions Kinter’s motives at this point, the record fully supports his claims: (1) that he was indigent at the time he pled guilty; (2) that he was seeking the assistance of appointed counsel at this time and previously; (3) that he was improperly denied this assistance; and (4) that Kinter wanted to take his case to trial, did not want to represent himself, and pled guilty only after the trial court improperly denied his request for appointed counsel.

This Court finds that the trial court abused its discretion in denying Kinter’s repeated requests for appointed counsel without any inquiry into his actual indigency status. This Court further finds that these denials perpetuated an existing actual conflict of interest between Kinter and his counsel and resulted in an involuntary plea of guilty by Kinter.15 In addition, the trial court abused its discretion in refusing to allow Kinter to withdraw his plea in this situation.

Decision Hence Kinter’s Petition for a Writ of Certiorari is GRANTED, and his conviction is VACATED. This case is hereby REMANDED for further proceedings consistent with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

1 ATTORNEYS IN DISTRICT COURT ATTORNEYS ON APPEAL JANICE HOWARD-CROFT RICKI J. WALTERSCHEID ATTORNEY AT LAW APPELLATE DEFENSE COUNSEL 8320 N.E. 10TH St. P.O. BOX 926 MIDWEST CITY, OK 73110 NORMAN, OKLAHOMA 73070 ATTORNEY FOR DEFENDANT AT ATTORNEY FOR PETITIONER GUILTY PLEA CHRISTOPHER KENT BRIDGE E. SCOTT PRUITT ASSISTANT PUBLIC DEFENDER ATTORNEY GENERAL OF OKLAHOMA 611 COUNTY OFFICE BLDG. DONALD D. SELF 320 ROBERT S. KERR ASSISTANT ATTORNEY GENERAL OKLAHOMA CITY, OK 73102 313 N.E. 21ST ST. ATTORNEY FOR DEFENDANT ON OKLAHOMA CITY, OKLAHOMA 73105 MOTION TO WITHDRAW PLEA ATTORNEYS FOR APPELLEE LORY DEWEY ASSISTANT DISTRICT ATTORNEY OKLAHOMA COUNTY D.A.’S OFFICE 505 COUNTY OFFICE BLDG. 320 ROBERT S. KERR OKLAHOMA CITY, OK 73102 ATTORNEY FOR STATE OPINION BY: SMITH. J. A. JOHNSON, P.J.: CONCUR LEWIS, V.P.J.: CONCUR LUMPKIN, J.: DISSENT C. JOHNSON, J.: CONCUR

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Footnotes:

  1. 1 Although the Information simply cites § 652, the facts charged fit only § 652(C), as there was no shooting, discharge of a firearm, or use of a vehicle alleged. See 21 O.S.Supp.2007, § 652.
  2. 2 Kinter's preliminary hearing has not been transcribed and is not in the record before this Court.
  3. 3 This letter was filed in the district court on 12/18/09. Kinter also wrote a letter to the Oklahoma County Public Defender (also filed on 12/18/09), noting that his attorney warned him on 12/1/09 that she would drop his case if he did not pay her in one week, that he was indigent and could not afford counsel, and asking for public defender assistance at his 1/06/10 hearing.
  4. 4 The court minute notes that counsel cited Kinter's failure to follow her advice, absconding from motion, along with Kinter's request that a public defender be appointed for him, was denied, and jury trial was set for March 8, 2010.
  5. 5 Howard-Croft's motion to withdraw attached a Proof of Service document from her small claims case against Kinter, showing that he was served in the case on 3/17/10 (just two days earlier).
  6. 6 Although this part of the hearing was not transcribed, the district judge later stated (during Kinter's 3/31/10 Plea Withdrawal Hearing) that he believed local court rules prevented him from allowing Howard-Croft to withdraw "on the eve of trial" and that he explained the policy behind this rule to Kinter and advised him not to fire his lawyer "because then you would either need to hire a lawyer very quickly to step into the case, literally two days before trial, or represent yourself, [which] would not be a smart thing to do."
  7. 7 Although the court described this crime as an "amended charge" and "a lower offense," noting that the State had dropped the "intent to kill" element, the crime of "assault and battery with a deadly weapon" under § 652(C) does not have an "intent to kill" element. Hence Kinter pled guilty to the crime with which he was originally charged.
  8. 8 See 21 O.S.Supp.2009, § 13.1(5).
  9. 9 The court noted during the hearing "[f]or clarification" that he had not declared Kinter indigent, but that because of the conflict with his counsel, the court appointed Bridge, who "just happened to be here and got appointed," to represent Kinter at the withdrawal hearing.
  10. 10 Kinter also testified that he had been incarcerated since 12/1/09, because he could not pay his bail bondsman, because he had no money.
  11. 11 Howard-Croft's only filings in the case were her entry of appearance and motion to withdraw.
  12. 12 On 1/12/11, this Court issued an Order Directing the State to File a Response in this case. The State filed its Brief of Respondent on February 8, 2011.
  13. 13 In Dixon U. Owens, 1993 OK CR 55, 865 P.2d 1250, this Court wrote: The ultimate question here is whether a defendant has the right to discharge his privately retained counsel at will, even if the firing results in his then being entitled to court-appointed counsel because he is indigent, as long as the discharge request is timely made and will not result in prejudice to the defendant, undue delay in the proceedings or prejudice to opposing counsel. Id. at II 9, 865 P.2d at 1252.
  14. 14 This Court finds that the district court should have made inquiry regarding Kinter's indigency at the time he first indicated he was indigent and sought court-appointed counsel.
  15. 15 See Carey U. State, 1995 OK CR 55, III 5-10, 902 P.2d 1116, 1117-18.
  16. 16 Id. at II 14, 553 P.2d at 536; Coyle U. State, 1985 OK CR 121, II 5, 706 P.2d 547, 548.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 652(C) (2007)
  • Okla. Stat. tit. 21 § 701.8 (2011)
  • Okla. Stat. tit. 22 § 1355A(D) (2006)
  • Okla. Stat. tit. 22 § 3.15 (2011)

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

  • Dixon v. Owens, 1993 OK CR 55, 865 P.2d 1250
  • Smith v. State, 2007 OK CR 6, 155 P.3d 793
  • Carey v. State, 1995 OK CR 55, 902 P.2d 1116
  • Burnett v. State, 1988 OK CR 161, 760 P.2d 825
  • Cox v. State, 2006 OK CR 51, 152 P.3d 244
  • Fields v. State, 1996 OK CR 35, 923 P.2d 624
  • Berget v. State, 1991 OK CR 121, 824 P.2d 364
  • Robinson v. State, 1991 OK CR 23, 806 P.2d 1128
  • Ocampo v. State, 1989 OK CR 38, 778 P.2d 920
  • State v. Durant, 1980 OK CR 21, 609 P.2d 792

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