Opinion
No. 110,237.
2014-09-26
STATE of Kansas, Appellee, v. Derrick BENSON, Appellant.
Appeal from Johnson District Court; Sara Welch, Judge.Reid T. Nelson, of Capital and Conflicts Appeals Office, for appellant.Betsey L. Lasister, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Sara Welch, Judge.
Reid T. Nelson, of Capital and Conflicts Appeals Office, for appellant. Betsey L. Lasister, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Derrick Benson appeals from the district court's decision to deny his presentence motion to withdraw his guilty plea to domestic aggravated battery. Because he has not met his burden of showing the district court abused its discretion in denying his motion to withdraw his plea, we affirm.
Facts
On November 10, 2011, the State filed charges against Benson for aggravated battery and intimidation of a witness. The charges stemmed from allegations that Benson physically attacked and then threatened his girlfriend on November 9, 2011.
In early 2012, Benson and his court-appointed attorney, Mark Bostwick, participated in two mediation sessions with a district court judge and then reached a plea agreement with the State. Under the agreement, Benson waived his right to a preliminary hearing and entered a no contest plea to the aggravated battery charge. In return, the State dismissed the intimidation charge, did not oppose a modification of Benson's bond to a personal recognizance bond (PR bond) with his release to the Johnson County Community Corrections Residential Center upon his plea, and agreed not to oppose Benson's request for a dispositional departure sentence to probation to be served at the residential center.
After a plea hearing conducted on March 9, 2012, the district court accepted Benson's plea. At the close of the hearing, the court modified Benson's bond as agreed, so he was transferred to the residential center. The court advised Benson that his success at the residential center during the period between his plea hearing and sentencing, which the court scheduled at the time for May 2, 2012, would factor largely into the court's consideration of the downward dispositional departure sentence that the parties had agreed to recommend.
Violations of various conditions of placement led the State to move to revoke Benson's PR bond to the residential center after he had been there for just over a month.
When the court called the case for sentencing on May 2, 2012, Bostwick reported that he and Benson had experienced a breakdown in communication. Bostwick then requested the court to continue the sentencing hearing so that he could make arrangements for a psychological evaluation of Benson. The court was informed for the first time at this hearing that Benson was suffering from extreme pain. Benson asked the court during the hearing to send him to hospital because he was not getting his medications in jail. Without a “compelling reason” to do so, however, the court declined to “micromanag[e] the jail's medical regimen.”
After the written report of Benson's mental health evaluation was complete, the case was put on the calendar for sentencing. At the sentencing hearing, however, Benson informed the court that he wanted to withdraw his plea and have the court appoint a different attorney to represent him. The court allowed Bostwick to withdraw and appointed Angela Keck to represent Benson. During this hearing, Benson once again complained to the court that he was still in pain, and the jail was not giving him the medications that he had been prescribed when he was at the residential center. The court agreed to send a follow-up inquiry with Benson's case manager about the medication issue.
On July 23, 2012, Keck filed a written motion to withdraw plea on Benson's behalf. On August 6, 2012, the same district judge who accepted Benson's plea conducted an evidentiary hearing on Benson's motion to withdraw plea. Both Benson and Bostwick testified at length, as did Dr. Stanley Mintz, the psychologist who conducted Benson's mental evaluation. At the close of the hearing, the district court judge took the case under advisement so she could obtain and review a transcript of the plea hearing. The judge also offered Keck a chance to track down Benson's girlfriend, who allegedly would appear at the hearing to recant the allegations that led to the charges against Benson. Counsel, however, announced that she did not feel that was necessary in light of the evidence that had already come in about that recantation.
On August 23, 2012, the district court conducted another hearing for the purpose of pronouncing its judgment after review of the transcript of the plea hearing. After setting forth at length the legal standards governing its decision, the court entered extensive findings of fact in support of its legal conclusions that (1) Benson received competent representation from Bostwick; (2) Benson was not misled, coerced, mistreated, or unfairly taken advantage of; and (3) Benson's plea was fairly and understandably made. Finding Benson failed to fulfill his burden to establish good cause to withdraw his plea, the court denied his motion to withdraw and scheduled the case for sentencing.
On November 2, 2012, the case proceeded to sentencing before a different district court judge. At the beginning of the hearing, the State orally withdrew a motion it had filed seeking to avoid its obligations under the plea agreement due to a material change in circumstances. After reviewing the report of Benson's mental evaluation, the judge followed the plea agreement and imposed an underlying mitigated presumptive prison sentence of 114 months. The court then granted Benson's motion for a downward dispositional departure to 36 months' probation, with placement at the residential center. In so ruling, the judge highlighted the “huge break” she was giving Benson, particularly given his extensive criminal history. In response to questions from the court, Benson repeatedly acknowledged his understanding on the record that he would be going to prison to serve his time if he did not “take this serious” and do what was required to be successful at the residential center.
Analysis
In his sole issue on appeal, Benson argues the district court erred in failing to allow him to withdraw his plea of no contest, because he was influenced to take the plea in order to be released from jail and obtain medical attention.
“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.2013 Supp. 22–3210(d)(1). Accordingly, an appellate court generally reviews a district court's denial of a motion to withdraw a plea for an abuse of discretion. State v. Macias–Medina, 293 Kan. 833, 836, 268 P.3d 1201 (2012). A district court abuses its discretion when: (1) no reasonable person would take the view adopted by the judge; (2) a ruling is based on an error of law; or (3) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based. State v. Huddleston, 298 Kan. 941, 960, 318 P.3d 140 (2014). When, as here, the district court makes factual findings based on evidence presented at a hearing, this court must defer to those findings where they are supported by substantial evidence. This court cannot reweigh the evidence or assess witness credibility in reviewing for substantial evidence. See State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011). The defendant has the burden of proving an abuse of discretion. Macias–Medina, 293 Kan. at 836.
Our courts have recognized factors that can be considered by the district court to determine whether good cause for withdrawing a plea exists. Those factors include: (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. See State v.. Freeman, 292 Kan. 24, 28, 253 P.3d 1 (2011) (referring to these factors as the “ Edgar factors” in quoting State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 [2006] ). While these factors remain “viable benchmarks for judicial discretion,” not all of these factors must apply in the defendant's favor in every case; and other factors may be duly considered. State v. Aguilar, 290 Kan. 506, 511–13, 231 P.3d 563 (2010).
Competent counsel
When, as here, the defendant claims that defense counsel provided inadequate representation, the defendant generally must show both that the attorney's performance was below reasonable standards and that, but for the poor performance by the attorney, there is a reasonable probability that the defendant would not have entered the plea and instead would have insisted on going to trial. State v. White, 289 Kan. 279, Syl. ¶ 4, 211 P.3d 805 (2009). But a defendant need not show that his or her attorney's representation amounted to ineffective assistance of counsel under the Sixth Amendment to the United States Constitution; mere “lackluster advocacy” may be sufficient to support the first factor. Aguilar, 290 Kan. at 513.
In determining that Benson was represented by competent counsel as set forth in factor one, the court relied on Bostwick's past experiences with criminal defendants, the frequency with which Bostwick visited Benson, Bostwick's attempt to resolve the charges to his client's satisfaction by engaging in mediation, the favorable plea agreement secured by Bostwick for his client, and Bostwick's actions in requesting a continuance for, and hiring an expert to conduct, a psychological evaluation of Benson. We also note that, when questioned by the court during the plea colloquy at the plea hearing, Benson expressed his satisfaction with Bostwick's counsel.
Misled, coerced, mistreated, or unfairly taken advantage of
In determining that Benson was not “misled, coerced, mistreated, or unfairly taken advantage of” as set forth in factor two, the court considered much of the same evidence it did in deciding Bostwick was competent, as well as Benson's extensive criminal history, testimony from Dr. Mintz stating that he did not believe Benson was coerced or taken advantage of, and Bostwick's testimony. We are mindful that the district court also made numerous credibility determinations with regard to conflicting testimony on this issue. See Anderson, 291 Kan. at 855 (district court determines credibility of witnesses who testify at evidentiary hearing for motion to withdraw). Specifically, the court noted that Benson's testimony stating the reasons he decided to enter into the plea agreement was in direct conflict with that presented by Bostwick. The court determined that Bostwick's testimony was more credible than Benson's testimony. This court cannot reweigh the evidence or assess witness credibility in reviewing for substantial evidence. See 291 Kan. at 855.
Knowing and voluntary
Benson argues that “[he] was influenced to take the plea in order to be released from jail and obtain medical attention.” For a plea to have been knowingly and understandably made, the defendant must be competent when making it, meaning that the plea was entered when the defendant was sufficiently aware of the relevant circumstances and likely consequences. State v. Shopteese, 283 Kan. 331, 340–41, 153 P.3d 1208 (2007).
When a defendant alleges that a plea was not fairly and knowingly made, the appellate court also looks to the record for support of that claim. See State v. Plotner, 290 Kan. 774, 777–80, 235 P.3d 417 (2010) (The court did not find support in the record for defendant's allegations of a “very limited, and almost childlike, understanding regarding the seriousness of the crimes he committed.”); State v. Denmark–Wagner, 292 Kan. 870, 880, 258 P .3d 960 (2011) (Record devoid of any evidence, other than the defendant's allegations, that medication impaired his “mental faculties or judgment.”).
The record reflects that Benson spoke directly to the court on two separate occasions at hearings between November 2011 and March 2012. Notably, Benson did not suggest or exhibit any outward signs indicating that he was experiencing pain on either occasion. On four occasions, Benson requested a bond reduction on grounds that he wanted to work and could live with his mother or at the residential center. Conspicuously missing from these requests is an assertion that Benson was experiencing pain and/or needed to seek medical attention for pain.
At the March 9, 2012, plea hearing, Benson did not appear to be under the influence and appeared to be aware of what was going on around him. Before accepting his plea, the court, with Bostwick's occasional assistance, engaged in an extensive plea colloquy with Benson. During that colloquy, Benson denied that any promises had been made to induce his plea, other than what was in the plea agreement. At the close of the hearing, the court modified Benson's bond as agreed, so he was transferred to the residential center. The court sternly cautioned Benson that his success at the residential center during the period between his plea hearing and sentencing, which the court scheduled at the time for May 2, 2012, would factor largely into the court's consideration of the downward dispositional departure sentence that the parties had agreed to recommend.
The first time Benson mentioned pain was at the May 2012 revocation hearing, when the motion to revoke bond was looming. Even then, Benson did not provide records or witness testimony from the jail or the residential center to support his claim that his need and requests for pain medication were ignored. Neither did he provide this evidence at the hearing held on his motion to withdraw his plea.
Dr. Mintz drafted his report after conducting (1) a clinical interview, (2) a mental status examination, (3) various psychological tests, and (4) a review of the records in this case. Dr. Mintz first met with Benson on May 26, 2012, to conduct these interviews and administer these tests, but neither the initial report nor the supplemental report mentioned Benson experiencing pain. Significantly, the record reflects that the issue of pain was not raised by Benson until Dr. Mintz' second visit, where the focus of the meeting was trying to establish sufficient grounds to withdraw Benson's plea.
Dr. Mintz testified at the hearing on Benson's motion to withdraw that Benson was able to comprehend and answer all of the questions asked. He further testified that Benson could read at an average level and his “math is around 6th grade level.” Dr. Mintz ultimately diagnosed Benson with “depression, alcohol, cannabis abuse and anxiety.” Dr. Mintz testified that Benson did not exhibit “post-traumatic stress disorder or psychotic mental illness, bipolar mental illness, other categories of mental illness.” Finally, Dr. Mintz testified that Benson's IQ was 73, which was low average intelligence but not mentally retarded.
Likewise, and notwithstanding Bostwick's numerous interactions with Benson during the course of representation, Bostwick did not have any concerns about Benson understanding the plea or its consequences before Dr. Mintz' supplemental report. And even then, Bostwick still testified that he believed Benson understood the plea and its consequences. Bostwick testified that although he was not qualified to determine whether Benson fully understood the plea, he did not request Benson to undergo a competency evaluation based on their interactions. Bostwick only requested a psychological evaluation after Benson “didn't make it at the Res[idential] Center .” Bostwick testified that he never had doubts that Benson understood the legal process he was in; instead, Bostwick wanted the evaluation as a “tool” in requesting probation as an alternative to the Residential Center.
Benson testified that he entered into the plea in order to find relief for his severe and constant pain. But the court clearly did not accept Benson's testimony as true. Significantly, the district court judge who considered the motion was also the judge who accepted Benson's plea. Our Supreme Court has noted that the judge who presides over a plea hearing is in the best position to observe the defendant's comportment at that hearing and, in turn, compare it to the testimony and evidence presented at a motion to withdraw plea. See Macias–Medina, 293 Kan. at 839. On appeal, this court will not pass on or evaluate the credibility of witnesses. See Anderson, 291 Kan. at 855.
Here, Benson's allegations of pain were not accepted by the court as credible evidence and were not corroborated by any other testimony or by the district court record. The district court ultimately found Benson (1) was represented by competent counsel; (2) was not misled, coerced, mistreated, or unfairly taken advantage of; and (3) fairly and understandingly entered a plea of no contest in exchange for the State dismissing the intimidation charge, the State's promise not to oppose a modification of Benson's bond to a PR bond with release to the residential center upon his plea, and the State's promise not to oppose Benson's request for a dispositional departure sentence to probation to be served at the residential center. The district court's findings are supported by substantial competent evidence in the record, including the transcript of the plea hearing, Dr. Mintz' report, and the testimony of Dr. Mintz, Bostwick, and Benson. Based on these findings, the court concluded Benson had failed to demonstrate good cause to withdraw his plea. This conclusion is reasonable and supported by substantial competent evidence in the record; thus, the district court did not abuse its discretion in denying Benson's motion.
Affirmed.