Last Friday afternoon Kenneth Wilkinson, 22, was sentenced to 25-to-life with a possibility of parole in 23 years. Wilkinson has already served two years in custody for killing his grandfather, 84, by dragging him behind a pickup for six miles on a Willits back road, then throwing what was left of the body down a ravine.
The sentence was the result of a plea bargain made on April 14, 2014, the last moment before his jury trial was to begin that morning. Wilkinson had tried everything he could think of to get out of going to prison, and he still doesn’t seem to think he has done anything wrong. At the sentencing, his latest lawyer, private criminal attorney Jan Cole-Wilson, told the court that her client didn’t mean to kill gramps when he hit him with an axe — he thought the old boy had a seizure, she said, and had tied the old man to the trailer hitch because he couldn’t lift him into the truck.
Assistant DA Paul Sequiera didn’t believe any of this and was fully prepared to go to trial seeking life without parole (LWOP), due to the special allegation that the victim had been alive when he was dragged, and that this amounted to torture — torture that took cruelty to a whole new level of evil.
Many people familiar with the case thought that Wilkinson should have got the death penalty. In October of 2012 he'd filed a pro per declaration requesting a change of venue to Sonoma County, and complained that his attorney at the time, Ferris Purviance, was inattentive. Purviance, an old man who has since retired, isn't likely to be dragged out into the Willits hills behind a pick-up and thrown away, but it is unlikely that he felt much sympathy for the young man he was defending.
The court held a Marsden hearing — aka I wanna new lawyer hearing — on November 8, 2012. Purviance said that he and Public Defender Linda Thompson would be teaming up on the case and that Ms. Thompson would take the lead. The Marsden motion was denied, and Wilkinson was told that he could renew it if Ms. Thompson wasn’t more to his liking. The change of venue was also denied.
Trial was set for May of 2013, but on March 29th, Wilkinson tried the not guilty by reason of insanity defense (NGI). Dr. Howard Terrell conducted a detailed psych exam of Wilkinson at Thompson’s request. The court appointed Dr. Paul Good and Dr. Arnold Apostle to follow up with their own exams, but the insanity gambit lost traction when neither one of the court appointed psychiatrists supported it. They both thought that Wilkinson was sane. A new trial date was set for September, and Wilkinson sent some letters to Thompson saying he would plea to second degree murder.
Assistant DA Sequiera firmly rejected that offer too.
Desperately, Wilkinson again filed for a change of venue — surely, Sonoma County DA Jill Ravitch would see how misunderstood the was. Nope, once again, the motion was denied.
Trial was reset for April 14th and on the morning of the trial the attorneys advised the court that there would be a change of plea. Wilkinson wanted to take advantage of Sequiera’s offer to drop the special circumstance (torture) in exchange for a plea to first degree murder. He was advised that the penalty would be 25-to-life, and if he was granted parole after 25 years, he would remain on parole for the rest of his life.
Judge Behnke said, “The victim had been dragged for six miles, leaving body parts and fluids in its wake, and defense acknowledged that, based on police reports, there were facts to support a conviction and the torture [allegation].” He asked Wilkinson, “Do you understand everything that has been said in this proceeding, including the consequences of the plea?”
Wilkinson said he did.
But on May 9th when the case came up for sentencing, Wilkinson said he wanted to withdraw his plea. It was another desperate display of a man finally facing the reality of years in prison, but it wouldn’t be his last. Public Defender Thompson said she was unable to make the motion to withdraw the plea because she found no legal basis for it. Judge Behnke appointed a private attorney, Jan Cole-Wilson, who investigated the matter and reported on June 19th that she believed there were grounds to withdraw the plea, and the motion was ultimately filed on August 15th The People’s opposition was filed September 11th, and the hearing was held September 26th.
The thrust of the motion was that Wilkinson claimed he pled guilty to first degree murder on the morning of the trial because he felt that because of his attorney’s failure to provide competent assistance, he and his attorney were not prepared for trial. Judge Behnke wrote in his decision that “Ms. Cole-Wilson’s brief correctly points out that the Sixth Amendment right to counsel extends to the plea bargaining process. She alleges that Ms. Thompson’s conduct in investigating the case, preparing for the trial and communicating with the defendant fell below an objective standard of reasonableness. She further claims prejudice by alleging that but for the lapses of counsel the defendant would not have pled guilty. Counsel for defendant also contends that the factual basis for Mr. Wilkinson’s plea was not adequately stated on the record.”
Judge Behnke admitted in his analysis of the motion that he could have handled the factual basis issue better. “However,” he notes, “the stipulation of counsel with reference to the police reports (and autopsy report) is legally adequate. At the outset of the plea, the court read the charge to Mr. Wilkinson from the Information stating each element of the charge to which he said he was prepared to plead. The prosecutor, Mr. Sequiera, stated for the record that the defendant tied his grandfather to the back of a pickup truck and dragged his grandfather for about six miles causing traumatic injuries and killing him He then dumped the body down an embankment. Ms. Thompson agreed that her client acknowledges that the facts as alleged are supported by the police reports. Defense counsel also acknowledged that the facts were sufficient to find first degree murder and possibly the special circumstance as well. This court had a firm basis for finding that the defendant knowingly and voluntarily entered his plea.”
Judge Behnke said that the argument of substandard representation on the part of Ms. Thompson was more complicated. (And nothing new in case after case where Thompson is involved.) The burden is on the defendant to show good cause for the withdrawal of his plea. Good cause, Behnke said, is generally demonstrated if the defendant shows he was operating under some mistake, ignorance or other factor overcoming his exercise of free judgment including inadvertence, fraud, or duress. The burden is to show good cause by clear and convincing evidence. And he must show prejudice. “Whereas here,” Behnke said, “the defendant is claiming that his attorney’s performance was deficient, he must still demonstrate prejudice.”
Judge Behnke said, “Mr. Wilkinson’s key contention is that he entered his plea because he didn’t believe he and his attorney were ready to go to trial. His declaration emphasizes that he was never told that the special circumstance carried a LWOP until the day before the trial. That same day, according to the declaration, Ms. Thompson told him his case was hopeless and she made it sound like the first degree murder offer was “new” and provided him with a way to get out of prison some day.
“These contentions," Behnke concluded, were not credible. Wilkinson had specifically told Dr. Terrell in March of 2013 that he knew he’d get the LWOP if convicted of the charges. The first degree murder offer was made early in the case and reiterated in open court in response to Wilkinson’s offer to plead to second degree murder. “From his testimony and his letters Mr. Wilkinson was keenly interested in trying to resolve his case without a life trial long before the morning of the trial.”
Behnke then recounts how Wilkinson squirmed on the stand the day of the plea. “…he denied that he knew he could be facing life without the possibility of parole if convicted. He said that concept never occurred to him until the day of the plea bargain. He testified he thought he was facing 25 to life “absolute max.” In 2013 he wrote that he was gun shy of going to trial after reading the coroner’s report. The correspondence and his testimony demonstrate that Mr. Wilkinson knew there was a firm basis for the torture allegation and knew that the consequence of having it found true was life without the possibility of parole more than a year before the plea. He also knew well before the plea that Ms. Thompson had consulted a pathologist who could not refute the conclusion that the grandfather was still alive at the outset of the dragging.”
The judge noted that the defendant in his declaration, his correspondence and in his testimony wanted his lawyer to spend more time with him. “The defendant obviously wanted more contact and reassurance for counsel than he got. Ms. Thompson felt that the defendant had sufficient contact with counsel for effective representation. Competent counsel have a wide range of practice as to how much client contact is necessary and appropriate in the preparation of a case. Ms. Cole-Wilson would have interviewed or taken statements from more witnesses and likely would have lined up character witnesses as well. She would have spent much more time with Mr. Wilkinson. All of this may have made the defendant feel better represented but it is not clear that the outcome would change in any way. Mr. Wilkinson would still be faced with the choice of risking an LWOP conviction or taking the only deal available. The court is supposed to give deference to counsel’s tactical considerations. No doubt the defendant faced a very hard choice and he knew he had to make it that morning. That choice had been pending for quite some time.”
As prosecutor Sequiera pointed out, “The defendant does not have the right to have the case conducted as he sees fit. Competent counsel can make tactical decisions that are subject to criticism by other competent counsel. Ms. Cole-Wilson would have handled this case differently. She would have spent more time with the defendant….”
Behnke concluded: “Defendant has not met his burden of proof. The defendant has not demonstrated that the conduct of his lawyer fell below an objectively reasonable standard or that, but for the below standard conduct of counsel, he would not have entered the plea. Clearly he was angry and upset with counsel after entering the plea, but he entered the plea knowingly and intelligently with an understanding of the consequences after weighing his alternatives. The bargained-for avoidance of the risk of LWOP and not some perceived failing of counsel motivated the plea.”
Clearly Wilkinson was angry and upset with the judge, too. At his sentencing, Wilkinson looked like he would like nothing better than to hit Judge Behnke with an axe and drag him behind a truck for a few miles. And he was clearly angry and upset with the row of newspaper reporters in the gallery, and would clearly like to give each of us a turn behind the truck, as well. He sat and nodded his head in what I perceived to be a mentally enumerated fantasy of all the things he’d like to do to everyone involved with punishing him. In his head, he doesn't think he did anything all that bad. He was especially angry and upset with Mr. Sequiera when he should have been embracing him for agreeing to 25-to-life, a light sentence in a case that screamed for Wilkinson's execution.
Ms. Cole-Wilson had tried to suggest that Wilkinson was out of his mind on drugs and alcohol, but the evidence of the toxicology report showed only traces of marijuana and a very faint indication of meth use. He had a 12-pack of beer, but had down less than half of them.
Sequiera said the mental health professionals had been all over this and there was no way Wilkinson was more than very mildly under the influence of pot and beer; he probably wouldn’t even have gotten a DUI.
The prosecution wasn't finished.
Sequiera described how the old man had tried to keep his head up as he was being dragged, how his jaw was torn away and his entrails strung out all along the way. Sequiera then ridiculed the way Wilkinson had gone to the “helping professionals” like Dr. Terrell and tried to make a case for insanity, saying he hit the old boy with an axe and thought he was dead — even though he didn’t really mean to kill him — or he never would have tied him behind the truck.
Wilkinson sat there in the dock exuding hatred and fear, but no sign of remorse, and Sequiera addressed that problem, telling Wilkinson that he’d never get out of prison “unless he comes clean.”
Judge Behnke summed up: “A couple of things we can all agree on here is that he’s a very young man and the level of intoxication was negligible, except for some marijuana which I understand stays in the system longer than the methamphetamine or alcohol; so, in the grand scheme of things, this horrific crime was carried out by someone who was cognizant of what they were doing, and there can’t be any doubt that his actions caused his grandfather’s death. The plea was made in exchange for the allegations for torture, therefore the sentence is set at 25 to life — I don’t believe any judge would find the defendant eligible for probation, even though he’s done well since he’s been in custody and has no prior record, which is worth noting, but this was a horrible way to die. He got mad at his grandfather, hit him in the head with an axe and dragged him until he fell apart. None of this can be easily explained, but even if it could, it is certainly not excusable, so I’m going to sentence him to the 25-to-life term for the 187(a) in the California Department of Corrections and impose a fine of $600; but considering his inability to pay, I’ll reduce that to $500, and reserve restitution in the amount of $1900 to Susan Shepard of The Biblical Shepard for the cost of the grandfather’s burial.”