Opinion
No. 107,199.
2012-11-9
STATE of Kansas, Appellee, v. Rey Manuel ACOSTA–FELTON, Appellant.
Appeal from Riley District Court; Meryl D. Wilson, Judge. Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Emily Disney, legal intern, Jeremy J. Crist, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Riley District Court; Meryl D. Wilson, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Emily Disney, legal intern, Jeremy J. Crist, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
The district court sentenced Rey Manuel Acosta–Felton to a 130–month prison sentence. Prior to imposing the sentence, Acosta–Felton indicated that he wanted to withdraw his plea because he did not understand everything his attorney had told him. The district court quickly denied the request and proceeded to sentence Acosta–Felton. After the sentencing, Acosta–Felton timely appealed to this court. Because the record does not disclose whether the district court considered the appropriate factors identified by the Kansas Supreme Court in determining whether there was good cause for Acosta–Felton to withdraw his plea, we must reverse and remand the case to the district court.
Facts
On November 10, 2009, Acosta–Felton got into an altercation with correctional officers while being transported between cells. The State charged Acosta–Felton with battery of a correctional officer, attempted battery of a correctional officer, and obstruction of official duty. Subsequently, he entered into a written plea agreement with the State. In the plea agreement, Acosta–Felton agreed to plead no contest to battery of a correctional officer, and the State agreed to dismiss the remaining charges.
The district court held a plea hearing on the day of the scheduled trial. The court asked Acosta–Felton several questions. In response, Acosta–Felton said that he read and understood the written agreement and waiver of rights, that he had an opportunity to speak with his counsel, that counsel answered all of his questions, that no one had threatened him or promised him anything, and that he understood that the court would find him guilty as a result of the plea. After the State presented a factual statement of the case, Acosta–Felton pled no contest on the charge of battery of a correctional officer and the court accepted the plea.
When Acosta–Felton appeared for sentencing, however, his attorney advised the court that his client wished to withdraw his plea. The basis for the request was that Acosta–Felton believed his attorney had failed to adequately “explain everything to him.” Without asking Acosta–Felton any questions, the district court determined that he had understood the plea and that he had an adequate opportunity to discuss the plea with his attorney. As such, the district court denied Acosta–Felton's request to withdraw his plea and proceeded to sentence him to a 130–month prison sentence. In addition, restitution for charges in another county was held open for 30 days, apparently as part of the plea agreement. Thereafter, Acosta–Felton timely appealed to this court.
Analysis
On appeal, Acosta–Felton contends that the district court denied him the right to due process when it denied his motion to withdraw his plea without first allowing him to speak or allowing any argument on the motion. Acosta–Felton also contends that his constitutional rights were violated when the district court used his prior convictions to enhance his sentence without requiring them to be proved to a jury beyond a reasonable doubt. We will review the issues in the order in which they are presented. Withdrawal of Plea
“A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.” K.S.A.2010 Supp. 22–3210(d)(l). We review the denial of a request to withdraw a plea prior to sentencing for an abuse of discretion. Acosta–Felton bears the burden of establishing an abuse of discretion, but “ ‘Din order for the district court's decision to receive the full measure of that standard's deference, it must have been based upon a correct understanding of the law.’ “ State v. Freeman, 292 Kan. 24, 27–28, 253 P.3d 1 (2011) (citing State v. Schow, 287 Kan. 529, 541, 197 P.3d 825 [2008] ). Furthermore, a district court abuses its discretion when it fails to properly consider appropriate legal standards. State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006).
The appropriate legal standard by which a district court should determine whether a defendant has shown good cause to withdraw a plea is the consideration of the three “ Edgar factors”: “(1) whether the defendant was represented by competent counsel, (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) whether the plea was fairly and understandingly made.” Freeman, 292 Kan. at 28. Hence, when a defendant requests to withdraw his or her plea prior to sentencing, a district court abuses its discretion by failing to consider these factors. Schow, 287 Kan. at 537.
Here, Acosta–Felton's attorney expressed his client's desire to withdraw his plea at the beginning of the sentencing hearing. Specifically, the record reveals that the following exchange took place:
“Mr. Freed: I think my client is now wishing to desire to withdraw his plea, Your Honor.
“The Court: And his basis for his withdrawal?
“Mr. Freed: He's saying I didn't explain everything to him.
“The Court: Well, you may not have, but I'm quite certain I did. The court file shows the written plea agreement dated March 31st in which Mr. Acosta–Felton signed. It was also signed by the Geary County Attorney, and Mr. Crist from the Riley County Attorney's Office, and Mr. Freed. There is also attached thereto a waiver of rights, which consists of three pages. Explains all of the defendant's rights. It explains the potential penalties. And I went over in great detail with Mr. Acosta–Felton the written plea agreement and the waiver of rights, asked him if he understood them. He indicated he did, and that he had had an opportunity to discuss the contents with his attorney, and for those reasons I'm denying any motion to allow him to withdraw his previously entered plea.”
In the brief exchange between the district court and Acosta–Felton's attorney, the court did not inquire of Acosta–Felton or expressly mention any of the Edgar factors. Although we are mindful of the fact that the district court was obviously very familiar with what occurred at the plea hearing and respect the right of the district court to exercise its discretion in determining whether a plea may be withdrawn, we are duty bound to follow the precedent established by the Kansas Supreme Court. See State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010). And as our Supreme Court has made clear, a “district judge's failure to apply the appropriate standards in [a] plea withdrawal hearing [is] an abuse of discretion requiring reversal and remand.” State v. Aguilar, 290 Kan. 506, 515, 231 P.3d 563 (2010). Thus, we conclude that we must remand this case to the district court for a hearing to decide whether there is good cause for Acosta–Felton to withdraw his plea based on the Edgar factors.
We briefly turn to Acosta–Felton's argument that his criminal history score was used to increase his sentence in violation of Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435, 120 S.Ct. 2348 (2000). As Acosta–Felton's appellate attorney candidly admits, the Kansas Supreme Court has previously decided this issue. See State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). Because we have no reason to suspect that the Kansas Supreme Court will overrule the Ivory decision, we find that it continues to serve as binding precedent.
Finally, we note that it is unclear from the record whether the issue of restitution—which was left open by the district court-was ever finally resolved.
Reversed and remanded.