Opinion
No. 105,975.
2012-09-7
STATE of Kansas, Appellee, v. Leonard ELLSWORTH, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge. Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Leonard Ellsworth plead guilty to four felony offenses-aggravated burglary, theft, battery of a law enforcement officer, and obstructing legal process. He filed a motion before he was sentenced to set aside the pleas. The trial court found that Ellsworth had not shown good cause and denied the motion. Ellsworth appeals. We agree with the trial court's finding, we conclude it did not abuse its discretion in its ruling, and we affirm.
Because Ellsworth had a criminal history score of A, he faced a sentence of more than 144 months imprisonment. In exchange for Ellsworth's guilty pleas, however, the State agreed in part to recommend a durational departure sentence of 96 months' imprisonment on all counts and to allow Ellsworth to argue for a dispositional departure at sentencing.
Before Ellsworth entered his pleas, the trial court advised him of the consequences of doing so. Ellsworth responded that he understood and reaffirmed his desire to plead guilty. The trial court accepted the pleas, found him guilty of the charges, and set his case for sentencing. Before sentencing, Ellsworth filed a pro se motion to withdraw the pleas. The court conducted an evidentiary hearing on the motion at which Ellsworth testified that he wanted to withdraw the pleas because he entered them only after he was forced to do so by his trial counsel. He specifically stated:
“[My counsel] ... forced me into that plea.... If I didn't take the plea, you understand, I was going to get 15 years. That's just like having somebody hold a gun to your head and tell you either give me your money or I am going to shoot you. Well, I am going to give you my money.”
Ellsworth also argued he should be allowed to withdraw his pleas based upon ineffective assistance of counsel. He alleged that prior to the plea hearing, counsel did not provide him with a copy of a 911 call placed by the victim. The State had charged Ellsworth with aggravated burglary for breaking into the victim's house while she was inside. At the hearing on the motion to withdraw, the victim testified that as soon as her husband left their house, someone came to the door and repeatedly pushed the doorbell. She went to the door and looked out the peep hole but did not recognize the man at the door. The man, later identified as Ellsworth, began to jiggle the doorknob loudly. The victim then grabbed her cell phone and a set of keys, went into the attached garage, and called 911. She testified that she remained on the line with the 911 dispatcher while Ellsworth broke into the house and she remained in the garage during the duration of the burglary. Ellsworth alleged that his trial counsel's failure to provide him with a copy of a recording of this call prior to the plea constituted ineffective assistance of counsel, which induced him to accept the plea deal.
After hearing the testimony of Ellsworth and other witnesses, the trial court denied the motion to set aside the pleas.
On appeal, Ellsworth maintains that the trial court abused its discretion because it applied the wrong legal framework. He appears to argue that the court abused its discretion when it focused on whether a copy of the 911 call would have helped him in any trial as opposed to whether trial counsel's performance was deficient. The State counters that Ellsworth merely had a case of buyer's remorse after entering the pleas and he failed to show good cause for withdrawing them.
Whether a defendant may withdraw a plea is controlled by statute. Under K.S.A.2011 Supp. 22–3210(d)(1) 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. On appeal, the defendant must establish that the trial court abused its sound discretion in denying the motion to withdraw plea. State v. White, 289 Kan. 279, 284–85, 211 P.3d 805 (2009). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. [Citation omitted.] State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
Historically, our Supreme Court has focused on three factors when determining if a defendant has demonstrated good cause to withdraw his or her plea under the statute. The factors are: (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. State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010). The Supreme Court has further clarified that these factors are ‘viable benchmarks for judicial discretion,’ but that ‘[a]ll of the ... factors need not apply in defendant's favor in every case, and other factors may be duly considered in the district judge's discretionary decision on the existence or nonexistence of good cause. [Citation omitted.] State v. Denmark–Wagner, 292 Kan. 870, 875–76, 258 P.3d 960 (2011). The only question before us then is whether Ellsworth presented sufficient factors to show good cause to withdraw his pleas.
As we stated, since Ellsworth filed his motion to withdraw his pleas before he was sentenced, he must show good cause. On appeal, he argues that he received ineffective assistance of counsel who did not allow him to listen to the 911 recording before he entered his pleas.
Ellsworth has failed to meet his burden to show that his counsel was ineffective. As a general rule, a guilty or no contest plea will not be set aside unless the defendant shows that his or her counsel's performance fell below the standard of [objective] reasonableness and that there is a reasonable probability that, but for counsel's errors, the defendant would not have pled guilty and would have insisted on going to trial. White, 289 Kan. 279, Syl. ¶ 4. This showing need not rise to a violation of the Sixth Amendment, Aguilar, 290 Kan. 506, Syl. ¶ 1, but some showing by the defendant is still required. See White, 289 Kan. 279, Syl. ¶ 4 (defendant must overcome the presumption that counsel's assistance was reasonable).
Ellsworth testified at the hearing on his motion that if he had had an opportunity to listen to the 911 recording before entering his pleas he would not have plead. He appears to argue that the recording showed the victim was not inside the house when he broke in and he was guilty of simple burglary at the most since an essential element of aggravated burglary was missing.
Ellsworth's argument fails. His trial counsel, a chief public defender who has tried hundreds of criminal felony cases, testified at the hearing on the withdrawal motion. He stated that he discussed the charges, the underlying facts of the case, and the difference between aggravated burglary and simple burglary with Ellsworth. He also testified extensively about the 911 recording. Relevant portions of his testimony at the withdrawal hearing read as follows:
[DEFENSE COUNSEL]: Okay. There is a 911 tape that I have introduced as Exhibit A. Mr. Ellsworth testified today that he wanted to hear that tape and he wanted to hear that tape before he pled, didn't he? [ELLSWORTH'S TRIAL COUNSEL]: He did.
[DEFENSE COUNSEL]: Okay. Did you have conversation about it the day of the plea prior to his plea?
[ELLSWORTH'S TRIAL COUNSEL]: He wanted to hear the tape. I ... was not given a copy of the tape as part of discovery. When I went up, I believe it was Sunday night before trial, I talked to him, and that's when I'm like, I don't have it. I'll talk with [the prosecutor] in the morning. I will get it from him. I will play it for you before we do the trial. When I talked to [the prosecutor] the morning of trial, he told me he did not intend to introduce that tape into evidence. He didn't have one with him. He wasn't going to introduce it. And from my experience I thought as far as trial strategy it would be better for us if that tape was not introduced, and I did not want to push it to have [the prosecutor] go get a copy of it that morning, and I told Mr. Ellsworth that the State was not going to introduce it and, therefore, they didn't have a copy, so I didn't have a copy and we weren't going to have it available.
Trial counsel further explained that he did not intend to rely on the 911 recording at trial because he believed the police reports were sufficient to prepare a defense. Further, based on his training and experience, he believed this was a better strategy than introducing the 911 recording which could be damaging to the case since the victim was 78 years old and that would not have helped Ellsworth with the jury. Counsel, in essence, believed there really was no question that for the purposes of aggravated burglary, the victim was in the house even if she was in the garage and the recording would afford him no benefit.
We note at this point that at the time of the crime, aggravated burglary was defined in K.S.A. 21–3716 in pertinent part as knowingly and without authority entering into or remaining within any building ... in which there is a human being, with intent to commit a felony ... therein. In State v. Carter, 35 Kan.App.2d 327, 330, 130 P.3d 135,rev. denied 282 Kan. 792 (2006), this court found that a screened porch was a part of the residence for purposes of the aggravated burglary statute, stating that the any building language of K.S.A. 21–3716 required only that the structure was part of any building and that included a porch that shared a common foundation, roof, gutter system, and siding.
We agree with the trial court that the attached garage where the victim fled after seeing Ellsworth at the front door was likewise a part of her residence for purposes of the aggravated burglary statute. There really was no question that the house was then occupied by a human being at the time Ellsworth entered it. The 911 recording would not have benefitted Ellsworth had it been introduced at any trial. Trial counsel's testimony at the plea withdrawal hearing supports the conclusion that his performance did not fall below the requisite standard of objective reasonableness. Ellsworth's argument does not rise to the level of good cause sufficient to meet his burden to withdraw his pleas.
Ellsworth has also failed to meet his burden to show that he was coerced into taking the pleas. His trial counsel testified that he was willing to go to war for Ellsworth, but that he strongly counseled him to take the pleas. Even so, the record lacks evidence that counsel coerced him. Ellsworth appeared to argue to the trial court that the coercion consisted of counsel telling him that if he did not take the pleas, he could receive a much longer sentence if convicted at trial. We see this as nothing more than counsel advising his client of a worst case scenario. Certainly, what counsel told him was a very real possibility. Moreover, Ellsworth seemed perfectly aware, was capable of making decisions, and understood what was happening at the plea hearing. When the court went through the standard plea colloquy, Ellsworth gave no indication that his pleas were anything other than freely and voluntarily made. He did not ask the trial court any questions about the 911 recording, nor did he mention that his trial counsel had forced him into taking the pleas.
Based on the record, the trial court did not abuse its discretion in refusing to permit withdrawal of Ellsworth's guilty pleas. Ellsworth has failed to meet his burden to show that the trial court's ruling was arbitrary, fanciful, or unreasonable. Moreover, reasonable persons could differ as to the propriety of the action taken by the trial court.
Affirmed.