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State v. Gaschler
Citations: 17 Kan. App. 2d 699; 847 P.2d 1319; 1992 Kan. App. LEXIS 607Docket: No. 67,725
Court: Court of Appeals of Kansas; December 10, 1992; Kansas; State Appellate Court
Richard A. Gaschler appeals his convictions for driving under the influence (DUI) and transporting an open container of liquor. He asserts that the sentencing exceeded the court's authority, he received inadequate legal representation, and that the court reporter fabricated parts of the hearing transcripts. The court affirms the convictions but vacates the 180-day suspension of his driving privileges, which was beyond the court's jurisdiction under K.S.A. 8-1567 and K.S.A. 41-804. The imposed sentence included 45 days in jail (suspended to 48 hours), fines totaling $300, completion of a level II program, and probation with conditions regarding alcohol consumption and urinalysis. The law does not permit the suspension of driving privileges for DUI under K.S.A. 8-1567(d), nor does it allow a 180-day suspension for the open container violation under K.S.A. 41-804(c), which requires a three-month suspension. The court confirms the convictions but orders the district court to vacate the excessive suspension of driving privileges. Regarding inadequate representation, the record shows Gaschler had multiple attorneys. To prove ineffective assistance, he must demonstrate that an attorney's performance fell below reasonable standards and prejudiced the outcome. His complaints focus on Attorney Brooks' handling of a diversion agreement, communication issues, and unauthorized filings by his attorneys. He contends that the county attorney's office rejected the diversion due to a policy against diversion with a blood alcohol level over 0.25, which he claims he was not informed about in a timely manner. No evidence in the record indicates an unreasonable delay in the proceedings. Even if a delay had occurred, a faster resolution would not have changed the outcome, as the defendant would have simply received a quicker "no diversion" answer. The county attorney's policy dictated that the defense counsel could not influence the outcome differently. The defendant's claim of not having a diversion conference, as required by K.S.A. 22-2907, and the failure of Brooks to present necessary factors under K.S.A. 22-2908, are unfounded since entry into a diversion agreement is at the prosecutor's discretion. The county attorney deemed a diversion inappropriate due to the defendant's blood alcohol level. Additionally, the defendant raised concerns regarding communication with his attorneys, alleging they made false assurances and were hard to contact. These issues, along with complaints about counselors filing documents without his review, do not amount to ineffective assistance of counsel that would necessitate a reversal. There is a possibility that the defendant misunderstood his attorneys or misremembered interactions. Even if all complaints were true, the outcome would remain unchanged. The defendant also alleged that the transcripts from the plea and sentencing hearings were fraudulent, but no support for this claim was found in the record. After reviewing the defendant's other allegations, no basis for reversing the conviction was identified. The court affirmed the convictions, vacated the portion of the sentence exceeding its authority, and remanded for correction.