State v. Bacon , 443 P.3d 1049 ( 2019 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 114,951
STATE OF KANSAS,
Appellee,
v.
SCOT E. BACON II,
Appellant.
SYLLABUS BY THE COURT
On these facts, a remand for the district court to inquire into a potential conflict
between the defendant and his appointed attorney is unnecessary because the defendant
retained a new attorney for trial; he does not claim his trial attorney was ineffective; and
he does not otherwise identify any prejudice flowing from the failure to inquire.
Review of the judgment of the Court of Appeals in an unpublished opinion filed June 2, 2017.
Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed June 28, 2019. Judgment
of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
Cooper G. Overstreet, of The Swain Law Office, of Lawrence, argued the cause, and Sarah G.
Swain and James W. Fuller, legal intern, of the same firm, were on the brief for appellant.
Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
STEGALL, J.: Scot E. Bacon II petitioned for review of the Court of Appeals'
holding that his pro se motion quoting KRPC 1.3 of the Kansas Rules of Professional
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Conduct (KRPC) (2019 Kan. S. Ct. R. 298) did not trigger the Sedgwick County District
Court's duty to inquire into a potential conflict between Bacon and his appointed
attorney. We assume error but affirm because Bacon retained new counsel for trial; he
does not claim his trial attorney was ineffective; and he has not otherwise identified any
prejudice flowing from the error. In short, Bacon got the remedy he sought—new counsel
for trial—and on this record, there is no showing of prejudice.
One evening in August 2014, an officer stopped Bacon and a young woman for
jaywalking in Sedgwick County. The officer soon discovered that the young woman was
a 17-year-old minor and an active runaway. She told the officer that Bacon had driven her
to solicit prostitution on Broadway Street the last few nights. Bacon later admitted this
was true but insisted that the prostitution was her idea, even though the money went to
him.
The State charged Bacon with one count of aggravated human trafficking. See
K.S.A. 2014 Supp. 21-5426(b)(4). The district court determined Bacon was indigent and
appointed a public defender, James Mamalis, to represent him.
Mamalis continued Bacon's preliminary hearing seven times between August and
November 2014. Then on December 1, 2014, Bacon filed a handwritten pro se "Motion
for Diligence," which contained a copy of KRPC 1.3 and part of the accompanying
comments. See KRPC 1.3 (2019 Kan. S. Ct. R. 298). The motion read in its entirety:
"K.R.P.C. 1.3 Motion For Diligence
"A Lawyer Shall Act with Reasonable diligence and promptness in representing a Client.
"1) A lawyer should pursue a matter [on behalf] of a client despite opposition obstruction
or personal inconvenience to the lawyer and may take whatever Lawful and ethical
measures are required to vindicate [a] clients cause or endeavor a lawyer should act with
commitment and dedication to the interest of the client and with zeal in advocacy upon
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the Clients behalf. However a lawyer in [sic] not bound to press for every advantage that
might be realized for a client. A Lawyer has professional discretion in determining the
means by which a matter should be pursued[.] See Rule 1.2[.] A lawyers work load
should be controlled so that each matter can be handled adequately. 2) Perhaps no
professional shortcoming is more widely resented than procrastination. A clients interest
often can be adversely affected by the passage of time or the change of conditions in
extreme instances as when a lawyer overlooks A Statute of limitations the clients legal
position May be destroyed even when the cliens [sic] interests are not affected in
substance However unreasonable delay can cause A client needless Anxiety and
undermind [sic] Confidence in the lawyers Trustworthiness. 3) unless the relationship is
terminated as provided in rule 1.16 A lawyer should carry through to conclusion all
matters under-taken for a client if a lawyers employment is limited to specific matters the
relationship terminates when the matter has been resolved."
A week later, Bacon filed the same pro se motion again. The district court mailed
a copy of the motion to Mamalis and the State. The court advised Mamalis by letter, "We
await further direction from you as to how to proceed on this matter." But the record
suggests no further action was taken.
Mamalis continued Bacon's preliminary hearing three more times before it was
conducted in February 2015. After that, Mamalis continued the trial three times until it
was finally set for September 2015.
Then Bacon retained private counsel, Sarah Swain, a week and a half before trial.
Swain moved to continue the trial but the court denied the motion. A few days before
trial, the State amended its complaint by replacing the single count of aggravated human
trafficking with two counts of commercial sexual exploitation of a child. See K.S.A. 2014
Supp. 21-6422(a)(4). The case went to trial and the jury found Bacon guilty of one count
of commercial sexual exploitation of a child.
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Swain later filed a motion for new trial based, in part, on the district court's failure
to inquire into Bacon's pro se motions voicing dissatisfaction with Mamalis. The court
denied this motion, stating the issue was not timely raised, and regardless, Bacon's pro se
documents did not convey a request for new counsel. The court sentenced Bacon to 100
months' imprisonment.
The Court of Appeals affirmed Bacon's conviction. State v. Bacon, No. 114,951,
2017 WL 2403355 (Kan. App. 2017) (unpublished opinion). Relevant here, the panel
held Bacon's pro se motions quoting KRPC 1.3 did not allege dissatisfaction with
Mamalis. 2017 WL 2403355, at *15-16. The panel reasoned:
"Bacon's letters fall far short of 'an articulated statement of attorney dissatisfaction,' let
alone meet the requirement of 'justifiable dissatisfaction.' See Brown, 300 Kan. at 575.
Although courts should liberally construe pro se pleadings to give effect to their content,
'[l]iberal rules of construction cannot transform the reality of a pleading's content or the
arguments being advanced, even when a litigant is pro se.' State v. Gilbert, 299 Kan. 797,
798, 326 P.3d 1060 (2014). To construct Bacon's letters as alleging dissatisfaction with
Mamalis would require this court to deduce Bacon's dissatisfaction based on the fact he
quoted the rule about attorney diligence. In other words, to construct Bacon's letters as
alleging dissatisfaction with Mamalis would require this court to make up arguments for
Bacon. Clearly, this court is prohibited from taking such action.
"Consequently, Bacon never alleged dissatisfaction with Mamalis within the
letters sent to the trial court. Because he never alleged dissatisfaction with Mamalis, the
trial court never had a duty to inquire about Bacon's dissatisfaction with Mamalis'
representation." 2017 WL 2403355, at *15.
We granted review of one issue: whether Bacon's pro se motions triggered the
district court's duty to inquire into his dissatisfaction with Mamalis. Bacon asks us to
reverse the Court of Appeals and remand for further proceedings.
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Our state and federal constitutions guarantee a criminal defendant the right to
effective assistance of counsel, and a district court's duty to inquire into a potential
conflict with counsel derives from this right. State v. Brown, 300 Kan. 565, 574-75, 577,
331 P.3d 797 (2014). A defendant seeking substitute counsel "must show justifiable
dissatisfaction with his or her appointed counsel, which can be demonstrated by showing
a conflict of interest, an irreconcilable disagreement, or a complete breakdown in
communication between counsel and the defendant." 300 Kan. 565, Syl. ¶ 3. The
defendant "bears the responsibility of providing an articulated statement of attorney
dissatisfaction," which will trigger the district court's duty to inquire about the potential
conflict. 300 Kan. 565, Syl. ¶ 4. A district court abuses its discretion when it fails to
inquire about a potential conflict made known to it. State v. Bowen, 299 Kan. 339, 346,
323 P.3d 853 (2014).
Bacon claims his "Motion for Diligence" was an articulable statement of
dissatisfaction, which triggered the district court's duty to inquire into a potential conflict
with Mamalis. Today, we assume without deciding that he is correct. Thus, we assume
the district court abused its discretion when it failed to inquire about Bacon's
dissatisfaction with Mamalis, as voiced in his pro se motion.
Generally, the failure to inquire warrants a remand to the district court to
determine whether a conflict existed, and if so, whether the conflict adversely affected
the attorney's performance. See Brown, 300 Kan. at 578. But here a remand is
unnecessary because Bacon obtained the remedy he sought—new counsel—and has not
otherwise identified any prejudice flowing from the error. We also note that prejudice is
not presumed on these facts. See, e.g., Bowen, 299 Kan. at 346 (holding prejudice is
presumed and automatic reversal is required "only when the circumstances present: [1]
multiple concurrent representations; [2] a timely objection, meaning an objection before
or during the proceeding; and [3] a failure of the district court to inquire and determine
there is no conflict").
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Bacon claims an actual conflict existed and the district court should have
appointed new counsel for him when he voiced his complaint. That may be so. But there
is a problem: Bacon availed himself of self-help and retained Sarah Swain before trial.
At most, Swain's trial preparation was delayed. But Bacon does not claim that her
performance was ineffective or that the delay caused any trial error. Because Bacon
retained new counsel and fails to show how the delay in obtaining new counsel
prejudiced him at trial, there is nothing to remedy on remand. See Louis v. State, No.
109,082, 2013 WL 5870165, at *3 (Kan. App. 2013) (unpublished opinion) (holding the
defendant could not prevail on his ineffective assistance of counsel claim against his first
appointed attorney because the district court appointed a new attorney for trial and the
defendant failed to establish prejudice); State v. Edwards, No. 106,278, 2012 WL
6061554, at *6 (Kan. App. 2012) (unpublished opinion) (holding a remand to investigate
an ineffective assistance of counsel claim against the defendant's first appointed attorney
"would serve no legal purpose" because the district court granted the defendant's request
to appoint a new attorney before the hearing).
On the unique facts of this case, Bacon's alleged conflict with Mamalis did not
adversely affect Swain's trial performance or otherwise prejudice Bacon in any way.
Thus, we affirm the Court of Appeals as right for the wrong reason. See Atkins v.
Webcon, 308 Kan. 92, 102, 419 P.3d 1 (2018).
Affirmed.
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