1 NOT DESIGNATED FOR PUBLICATION

No

. 1 2 3 , 136

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appell ee ,

v.

D E ' ONTA A. T HOMPSON , Appell ant

.

MEMORANDUM OPINION

Appeal from S edgwick D istrict C ourt; F A ITH A.J. M AUGHAN , judge. Opinion filed Octo ber 29,
20 2 1 . Appeal dismissed.

Corrine E. Gunning , of Kansas Appellate Defender Office , f or appellant.

Julie A. Koon , assistant district attorney, Marc Bennett , district attorney , and Derek Schmidt , attorney general, for appellee.

Before G REEN , P .J., C LINE , J., and B URGESS , S. J

.

P ER C URIAM : De'onta A. Thompson alleges his counsel was ineffective for failing to file a motion to withdraw a guilty plea he entered pursuant to a plea agreement. Sinc e the record does not reveal Thompson's counsel was ineffective as a matter of law, and we decline to sua sponte order a Van Cleave hearing, we dismiss his appeal.2 F ACTS

On the night of May 12, 2018, law enforcement responded to reports of a burglary in progress at a Wichita business . They found Thompson within the fenced area of the
business and took him into cu stody. Thompson was later charged with burglary, criminal damage to property, and misdemeanor theft.

Thompson waived his right to a preliminary hearing and entered a plea agreement. In exchange for his agreement to pay restitution and plead guilty to the burglary and criminal damage to property charges, t he State agreed to dismiss the remaining charge and make favorable sentencing recommendations

. Before accepting Thompson 's ple a, t he district court explained the consequences of pleading guilty and of a fe lony conviction

. The court then asked Thompson if he was satisf ied with his treatment by counsel and the

court

. Thompson asserted his satisfaction with both. The court also approved a bond
modification requested by the parties , once it confirm ed Thompson was not entering his guilty plea to benefit f rom the modification of bond and release from jail. After Thompson told the court, " I broke into a business and destroyed property, " and " I spray painted the cargo , " t he court found sufficient factual b asis to support an adjudication of guilt on the charges and accepted Thompson's guilty plea. The court then set the matter over for sentencing.

Before sentencing, Thompson and his counsel , Elizabeth Kluzak , appeared again before the district court. Thomp son said he wished to withdraw his guilty plea. When the

court as ked why , Kluzak interjected that a conflict of interest had arisen between her and Thompson. She asked the court to appoint new counsel and advised Thompson to wait
for new counsel before dis cussing the matter with the court

. Kluzak also clarified that Thompson had not filed a written motion to withdraw his plea and was only moving to do so orally. After thi s hearing , the court appointed attorney Quentin Pittman to represent Thompson.3 Roughly six months later, on June 11, 2020, Thompson and Pittman appeared
before the district court . No written motion to withdraw Thompson's plea was on file. The court began by asking Pittman, " [H]ow are we proceeding on Mr. Thompson's
motion? " Pittman replied, " I know it's a little strange perhaps, but I have spoken with my client, he just wants an opportunity to address the Court, and to make the Court aware of a couple of issues. " Thompson then made the following statement:

"Thank you, Your Honor. I feel lik e since my arrest stemming back from 2018, I have never got the chance to address how I am addressing you now. Like, I feel like my attorney Ms. Elizabeth Kluzak, she was very nice. She was very kind. She made me feel comfortable at some points, but I do n ot think she took the time out of her day to put
more effort into it. "[Mr. Pittman] has been representing me for a short time, and I felt like I have talked to him more than I have her. And I just feel like when I pled I was in a very compromising positi on, and when she

— and when I sat down next to her, she literally tells me, Mr. Thompson, your chances don't look good. And that kind of

— I'm not going
to lie

— that kind of put me in frozen moment, because I've never been in that position before. And it was ju st new to me, and I basically pled to get out, I'm not going to lie. Like I said, she made me feel comfortable, but I feel like if she did more investigation work than just read the face of the book, she would have seen that it wasn't as big as it

was. "B ut I appreciate you giving me the time to address the Court like this, because like I said, I feel like this is the most I have talked to somebody since my arrest. Thank you. That's all I have."

After Thompson's statement, the prosecutor exp ressed confus ion about the purpose of the hearing. The State noted the parties had appeared for a " control setting to see if a written motion to withdraw plea was going to be filed, " and it was not prepared to proceed on any motion. After t he court as ked Pittman whether he had anything else he wanted to say, Pittman replied:4 "No Judge. We will proceed however you want. If you will require a written motion, I will file it and we can be here on [July] 9th at 9:00 a.m. If, after hearing the proffer as to what the c laims would be, the Court is not going to need that motion and proceed to sentencing, we are happy to do whatever the Court wishes."

The court then addressed Thompson :

"Mr. Thompson, based on what you have said, it doesn't

— I don't believe that you have the grounds

— I mean, if you were to present that evidence on a motion to withdraw plea, I would not withdraw your plea. I would not set it aside just based on that. I
under stand how you felt and that type of thing, but there are certain elements that need to be met before a plea can be withdrawn or set aside. "I can assure you though, I understand . . . Ms. Kluzak was with the Public Defender's Office, they are very busy, t hey do not have a lot of contact with their clients. I understand that. But I can assure you that Mr. Pittman, he is also a very busy man, but he is an excellent attorney. And I have not doubt in my mind that you are in good hands
now with Mr. Pittman.
"We will go ahead and proceed with the sentencing on July 9th at 9:00. After conversations with Mr. Pittman, if you guys decide that there is additional factors or something the Court needs to consider and you want to file that motion, we will hear that on [July] 9th prior to sentencing, and see if we proceed with sentencing based on that. But I will give you guys additional time, but based on the verbals that I have heard, I am not ready to set it aside."

No written motion to withdraw Thompson's plea was ever fil ed.

On July 9, 2020, Thompson and Pittman appeared again, this time for sentencing.
When t he district court asked them both if they knew of any legal reason it could not proceed with sentencing, they replied, " No. " Both the State and Pittman recommended

t hat the court follow the terms of the plea agreement in sentencing , which it did

. A few days later, Thompson filed a notice of appeal stating his " intention to appeal his motion to withdraw plea and the sentence in this matter. "5 A NALYSIS

Thompson asks us to reverse the district court's denial of his motion to withdraw plea and remand for (1) appointment of new counsel and (2) a new hearing on his motion. The only reason he gives to justify the relief he seeks is he now claims his Sixth Amendment right to e ffective assistance of counsel under the United States Constitution
was violated because (1) Pittman did not fil e a written motion to withdraw plea and (2)
Pittman did not mak e additional arguments in support of the motion when it was
discussed with the court. Since we find the record insufficient to allow us to determine Thompson's ineffective assistance of counsel claim as a matter of law, we must dismiss Thompson's appeal.

G enerally, a claim for ineffective assistance of counsel cannot be raised for the first time on appeal. Trotter v. State , 288 Kan. 112, 127

- 28, 200 P.3d 1236 (2009). The
district court, which observed counsel's performance and was aware of the legal strateg y involved, is usually in a much better position to consider counsel's competence than an appellate court who is reviewing the issue for the first time from a cold record. State v.
Van Cleave , 239 Kan. 117, 119

- 20, 716 P.2d 580 (1986). That said, an appell ate court
may newly consider this claim where the record is sufficient to allow for resolution a s a matter of law based on the facts available. State v. Salary , 309 Kan. 479, 48 3

- 8 4, 437 P.3d 953 (2019). But this only occurs under extraordinary circumstances. Wimbley v.
State , 292 Kan. 796, 806

- 07, 275 P.3d 35 (2011).

Thompson faces several problems in obtaining the r elief he seeks. First, the record
is in sufficient to resolve his claim as a matter of law

. The record does not reveal Pittman's
reasons for not filing a written motion or making additional comments to the court. It is possible th ese were strategic decision s , which may be permissible.6 T he Kansas Supreme Court has discussed the limits of appropr iate conduct for counsel appointed to assist on a motion to withdraw a guilty plea:

"[While] counsel should ordinarily set out the legal standard applicable to his or her client's motion,

. . . [it is not] always improper to defer to the client's specific descr iption of the reasons a plea should be withdrawn. There are times when only the client can articulate the reasons to the client's satisfaction, especially when the client's original complaint is nothing more than some variety of the vague 'I made a mistake .' There are also times when there is no legal support for a client's position." State v. Hulett , 293 Kan. 312, 322, 263 P.3d 153 (2011)

.

Perhaps Pittman reviewed the facts thoroughly and came to the reasoned conclusion that it was best to defer to Thomps on's specific description of the reasons justifying withdrawal. It is also possible that Pittman reviewed the case and reasonably concluded there was no legal support for Thompson's desire to withdraw his plea , so a written motion would be a futile exercis e. Either way, such actions would constitute strategic choice s by Pittman, which are usually insulated from ineffective assistance
claims. Mundy v. State , 307 Kan. 280, 29 7 , 408 P.3d 965 (2018).

Further, Thompson's own comments to the court do not definitively reflect that he
wanted Pittman to file a written motion or even that he still wanted to withdraw his plea. When the court asked Thompson at sentencing whether he was aware of any legal barrier to pro ceed, he said no. Perhaps Thompson instructed Pittman not to file the motion after
the court's comments

. It is also possible that Thompson simply wanted to vent to the court, as Pittman allowed him to do, rather than proceed with withdrawing his plea.

Based on the record before us , we cannot decide Thompson's claim as a matter of
law . Pittman's conduct at the hearing is susceptible to multiple interpretations and, on its face, falls within the range of acceptable representation based on the available fa cts

. As in Mundy , it is impossible to determine from the record whether Pittman's actions involved7 a " strategic, thoughtful choice . . . or a complete failure to represent his client. " 307 Kan.
at 299. As a result, we cannot resolve Thompson's claim for the first time on appeal.

The next problem Thompson faces is he seeks the wrong relief. He requests remand for the appointment of new counsel and a new hearing on his motion to withdraw. But the only path to the relief he seeks requires a determination th at his prior counsel was legally ineffective

— which we cannot do on the record before us.

I f we cannot resolve a newly raised ineffective assistance of counsel claim on the record, we may order a remand for the district court to conduct a Van Cleave hearin g. Mundy , 307 Kan. at 299. This procedure allows the parties to develop an evidentiary
record in the district court on the ineffective assistance claim. Rowland v. State , 289 Kan. 1076, 1084, 219 P.3d 1212 (2009)

. Even so, a Van Cleave hearing is not automatic. Our courts gener ally require appellant counsel to perform some sort of independent inquiry and investigation into defense counsel's actions, apart from reading the record and deciding they would have proceeded differently

. Mundy , 307 Kan. at 299. At a minimum,
this normal ly requires contacting defense counsel and the prosecutor to investigate the circumstances surrounding the actions at issue. Van Cleave , 239 Kan. at 120

- 21.

Thompson does not suggest he has complied with the se requirements and, indeed,
he does not even seek re mand for a Van Cleave hearing . Thus, as in Mundy , we decline to sua sponte order one. 307 Kan. at 299

- 300.

As the State notes in its brief , Thompson's claim would be more appropriately addressed through a K.S.A. 60

- 1507 motion

. He is free to pursue one. Without an adequate record, we cannot grant the relief he seeks.

Appeal d ismissed.