Opinion
No. 109972.
07-24-2015
Bondderrick SANDERS, Appellant, v. STATE of Kansas, Appellee.
Janine Cox, of Kansas Appellate Defender Office, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Janine Cox, of Kansas Appellate Defender Office, for appellant.
Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
When 5 grams of cocaine fell out of his pant leg when he was booked into jail, a deputy arrested Bondderrick Sanders for possession of cocaine with intent to sell, a drug tax stamp violation, and traffic in contraband into a correctional institution. Sanders pled no contest to all three charges. In exchange, the State agreed to recommend a dispositional departure sentence to community corrections with the underlying sentences to run concurrently. The plea agreement was never reduced to writing.
At the plea hearing, the district court discussed Sanders' rights and Sanders confirmed he understood the terms of the plea agreement, the charges against him, the possible sentences, and the rights he would be giving up should he enter a plea. Sanders also acknowledged his satisfaction with the services of his attorney and that he had no complaints about how the State had treated him. After the State presented the factual basis for Sanders' pleas, the district court found that Sanders had knowingly and voluntarily waived his right to trial and entered his guilty pleas. The court accepted Sanders' pleas and found him guilty of all three counts.
The district court followed the joint recommendations of the parties and granted Sanders a dispositional departure sentence of 36 months' probation. Based on Sanders' criminal history score of A, the district court imposed concurrent sentences of 130 months' imprisonment for traffic in contraband into a correctional institution, 16 months' imprisonment for possession of cocaine with intent to sell, and 6 months' imprisonment for the drug tax stamp violation.
About 30 days later, based on Sanders' stipulations, the district court revoked his probation and sent Sanders to prison to serve his sentence.
Then in December 2011, Sanders timely filed a K.S.A. 60–1507 motion.
Sanders' motion alleged ineffective assistance of trial counsel and prosecutorial misconduct. Sanders thought his plea meant that Count III-traffic in contraband in a correctional institution-would be dismissed and that his trial counsel failed to ensure that it was dismissed as promised by the State and he failed to get a written plea agreement. Sanders asked for an evidentiary hearing and appointment of counsel.
In January 2012, a different district judge held a status hearing where Sanders appeared without counsel but the State was represented. The district court heard arguments from the State asking for dismissal of Sanders' K.S.A. 60–1507 motion and took the matter under advisement. Later, the district court dismissed Sanders' claims of ineffective assistance of counsel but retained his claim concerning prosecutorial misconduct and set the matter for hearing.
What followed was a series of hearings where the State was represented by counsel and Sanders was not. Despite filing a notice of appeal, albeit premature but timely nonetheless under Supreme Court Rule 2.03 (2014 Kan. Ct. R. Annot. 12), the district court continued to refuse to appoint him appellate counsel.
Finally, in November 2012, the district court appointed appellate counsel for Sanders and about a year later in November 2013, appellate counsel filed a motion in this court seeking a remand for further proceedings and a stay of appellate proceedings. Sanders argued the district court had violated his due process rights by failing to appoint him counsel at his hearings on his K.S.A. 60–1507 motion when the State was represented. See State v. Hemphill, 286 Kan. 583, 596, 186 P.3d 777 (2008). This court, noting that the State had not filed a response, granted Sanders' motion and remanded the matter to the district court for the appointment of counsel and a hearing on Sanders' 60–1507 motion.
This time the district court held a full evidentiary hearing. The district court once again denied any relief on Sanders' K.S.A. 60–1507 motion. This is an appeal from that evidentiary hearing and denial.
Sanders claims that the district court erred by not fully complying with this court's remand order. But on remand the court held an evidentiary hearing on his motion and it appointed counsel for him. Nonetheless, Sanders argues it was implicit in this court's order that the district court address all issues raised in his first K.S.A. 60–1507 motion and because the district court did not address his allegation of prosecutorial misconduct, this court should reverse and remand this case to the district court for another evidentiary hearing to address this issue.
The district court complied with our remand order. Had Sanders attempted to present the issue at his evidentiary hearing on his K.S .A. 60–1507 motion, we might agree with him. This court's order granting a remand for a full evidentiary hearing did not specify that both of the issues presented in his motion were substantial issues the district court had to consider. Instead, Sanders had the burden at the evidentiary hearing to raise those issues he believed he could establish by a preponderance of the evidence that would entitle him to relief under K.S.A. 60–1507. See K.S.A. 60–1507(b) ; Supreme Court Rule 183(g) (2014 Kan. Ct. R. Annot. 285).
Because Sanders did not advance the issue of prosecutorial misconduct before the district court on remand at the evidentiary hearing, he has abandoned this argument from the district court's consideration. Further, Sanders made no effort in his appellate brief to comply with Rule 183(g) and argue how the prosecutorial misconduct allegation raised in his K.S.A. 60–1507 motion established grounds for his relief. The record does not support Sanders' allegations.
Basically, Sanders' ineffective assistance of counsel claim boils down to his argument that two of the district court's findings of fact were not supported by substantial competent evidence. Sanders asserts that the district court's failure to comply with Rule 183(j) requires this court to remand his case to the district court so it can either conduct another evidentiary hearing or enter sufficient findings of fact and conclusions of law on his ineffective assistance of counsel allegation. We are not so persuaded.
When the district court filed its order denying Sanders relief on his K.S.A. 60–1507 motion, he did not object to the district court making inadequate findings of fact and conclusions of law. He has, therefore, failed to preserve this issue for appeal. See State v. Edwards, 290 Kan. 330, Syl. ¶ 5, 226 P.3d 1285 (2010).
Moving to Sanders' specific argument, he disputes the district court's findings for fact No. 7 in its order which stated: “Judge McCarville reviewed with Sanders the terms of the [plea] agreement ... [and] the possible prison sentence on each of the three counts.” Sanders argues: “The judge did not review the terms of the agreement and made no mention of the possible prison terms at the plea hearing.”
During the plea hearing, Stanton and Sullivan, with Sanders present, explained the terms of the verbal plea agreement the parties reached, and the district court confirmed Sanders understood the terms of the plea agreement. The following exchange occurred:
“MR. SULLIVAN: Your Honor, Mr. Sanders is going to plead guilty as charged. The only agreement between the parties is that the parties would both be asking the Court to impose a dispositional departure to Community Corrections in the case. I assume that the party also will be free to argue for the disposition; otherwise, as far as counts concurrent, consecutive, those sorts
“MR. STANTON: My understanding, Judge, is the defendant's going to plead guilty as charged. The parties are going to recommend concurrent sentencing. There will be a dispositional departure to Community Corrections the State will agree to. There's not going to be a request for durational departure, correct?
“MR. SULLIVAN: Correct.
“MR. STANTON: And the State will not oppose defendant's release for treatment with bond supervision with the knowledge that if the defendant fails to appear for sentencing or commits a new crime on bond the State is free to argue for prison.
“THE COURT: All right. Mr. Sullivan, is that all correct?
“MR. SULLIVAN: That is, Your Honor, and I explained that to Mr. Sanders and explained to him further about the prohibition about him missing court dates, or getting in any trouble between now and sentencing. And I explained that in very layman's terms I think were very easily understood.
“THE COURT: I think I know what that means. Mr. Sanders, and you know, Mr. Sanders, that's a lot of time. The job of the attorneys to explain stuff, however, he has to explain it to you with fancy words. You don't get extra words for extra credit for fancy words.
“[SANDERS]: I understand what he's saying.
“THE COURT: Did you hear the explanation of what the plea agreement is?
“THE COURT: You understand what the possible sentences are?
“[SANDERS]: Yes, sir.
“THE COURT: So Count I is a level D–3, 14 to 51 months. Count II, level 10, five to 13 months and Count III is a level five, 31 to 136 months. You understand that?
“[SANDERS]: Yes, sir.”
After this exchange, the State presented the factual basis for Sanders' pleas and the district court stated, “The Court accepts the plea and finds the defendant guilty of cocaine with possession to sell, possession of cocaine without tax stamps, and trafficking in contraband in a correctional institution.”
Accordingly, contrary to Sanders' assertion, fact No. 7 is a correct statement. The district judge did review both the terms of the plea agreement and the possible prison terms with Sanders.
Sanders next argues that fact No. 10 of the district court's order mischaracterizes the substance of his K.S.A. 60–1507 motion and ignores the issue of ineffective assistance of counsel and prosecutorial misconduct. Fact No. 10 states: “The habeas petition filed December 15, 2011, alleges Sanders did not understand the plea agreement. Sanders did not make this assertion at the plea hearing, the sentencing hearing or the probation revocation hearing.” Fact No. 10, contrary to Sanders' assertion, is factually correct. Sanders alleged in his motion that his pleas were not understandingly made because his attorney provided ineffective assistance of counsel. And the record indicates that at no point until he filed his motion did Sanders make a similar assertion. The district court's order clearly goes on to consider and specifically reject Sanders' ineffective assistance of counsel allegation. The district court's factual findings are sufficient to support its conclusion of law that Sanders understood that he was pleading to all three counts of the complaint. We do not find that the court erred when it concluded that Sanders' counsel's performance was not deficient.