Edgar v. State

Johnson, J.,

dissenting: I respectfully dissent because I believe and embrace what my predecessor, Justice Allegrucci, said in State v. Carter, 270 Kan. 426, 441 , 14 P.3d 1138 (2000):

“The decision to enter a plea of guilty or not guilty to a criminal charge lies solely with the defendant. It is a fundamental constitutional right guaranteed to a defendant, and defense counsel’s imposing a guilt-based defense against Carter’s wishes violated his Sixth Amendment right to counsel and denied him a fair trial. Carter’s plea of not guilty required the State to prove guilt beyond a reasonable doubt. Defense counsel’s conduct relieved the State of that burden. Defense counsel abandoned his client, and the result was a breakdown in our adversarial system of justice. As in [United States v.] Swanson, [ 943 F.2d 1070, 1073-74 (9th Cir. 1991),] such a breakdown compels application of the Cronic exception. [See United States v. Cronic, 466 U.S. 648 , 104 S. Ct. 2039 , 80 L. Ed. 2d 657 (1984).] The conduct of defense counsel was inherently prejudicial and no separate showing of prejudice was required. As this court recently stated: ‘The assistance of counsel is among those constitutional rights so basic to a fair trial that their denial can never be treated as harmless error. State v. Jenkins, 257 Kan. 1074 , Syl. ¶ 2, 898 P.2d 1121 (1995). We have no other alternative except to grant Carter a new trial.”

Carter explicitly rejected the notion that defense counsel can unilaterally change the client’s plea from not guilty to guilty under the guise of trial strategy. 270 Kan. at 440 (“Viewing defense counsel’s conduct as part of a trial strategy or tactic is to ignore the obvious. By such conduct defense counsel was betraying the defendant by deliberately overriding his plea of not guilty.”). To the contrary, an attorney who imposes a guilt-based defense on an objecting defendant violates such fundamental rights that it is prejudicial per se and no showing of a different outcome of the trial is required. 270 Kan. 426 , Syl. ¶ 4.

As an aside, I perceive that the difference between the majority decision and Carter may be a matter of perspective. The majority appears to be looking at whether, based on its assessment of the evidence, the jury was correct in convicting the defendant; Carter appears to focus on whether the process employed to obtain the conviction was fundamentally fair. I believe that if our constitutions are to mean anything, they must guarantee a fair process for all citizens, without regard to the magnitude of available incupatory *848 evidence. See State v. Tosh, 278 Kan. 83, 97 , 91 P.3d 1204 (2004) (“Denial of a fair trial violates the due process rights of the guilty defendant just as surely as those of the innocent one.”).

Procedurally, the majority wants to simply ignore Carter . Part of its rationale is that it thinks this court might want to do something different in the future based upon what some “other courts” have said. That tack is inscrutable. Carter was a unanimous decision of this court, albeit decided before any of the current justices were serving on the court. To date, we have not overruled or modified its holdings. Accordingly, pursuant to stare decisis, Carter is the law in Kansas, notwithstanding what any subsequent non-binding federal court decisions might have said. Moreover, the majority’s reliance on the federal district court decision in United States v. Pledger, 887 F. Supp. 1400, 1406-07 (D. Kan. 1995), is particularly curious to me, given that it was filed 5 years before our Carter opinion. But the point is that, having identified a prior decision as touching on the subject matter before us, it is incumbent on this court to deal with it, e.g. follow it, distinguish it, modify it, or overrule it. Disregarding a prior opinion because the current court does not like the precedent is unacceptable to me.

Additionally, the majority suggests that it need not consider Carter because it represents a narrow exception and Edgar did not argue for its application. But Edgar’s 60-1507 motion clearly challenged his attorney’s concession of guilt on the two, non-homicide counts. Moreover, he essentially won in tire Court of Appeals to the extent that tire case was remanded for an evidentiary hearing. It is the State that is seeking review, and the State has not asked us to depart from Carter . If we find Carter is applicable, we can simply say that the Court of Appeals was correct to reverse and remand, albeit for a different reason. We frequently declare district courts to be correct for the wrong reason. See State v. Murray, 285 Kan. 503, 533 , 174 P.3d 407 (2008) (“[I]f a trial court reaches the right result, its decision will be upheld even if it provided an incorrect reason or engaged in an improper legal analysis.”).

To conclude, I see no logical difference between this case and Carter . Both defendants pled not guilty to all charges against them, *849 and both defense attorneys told the jury their clients were guilty of some of the charges. Both defendants possessed a fundamental right to decide how to plead, which rights their attorneys were not entitled to unilaterally waive. If the majority is going to overrule Carter , I would prefer that it candidly say so. But for me, Carter is still good law in this State, i.e., we still strive to provide all Kansas defendants with a fair trial. I would reverse and remand for a determination of whether Edgar consented to the guilt-based defense. If not, he is entitled to a new trial.