Opinion
No. 107,102.
2011-11-21
STATE of Kansas, Appellee, v. Christopher Robin KLEIN a/k/a Christopher Robert Klein, Appellant.
Appeal from Coffey District Court; Phillip M. Fromme, Judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Douglas P. Witteman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Coffey District Court; Phillip M. Fromme, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Douglas P. Witteman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MARQUARDT, J., and BRAZIL, S.J.
MEMORANDUM OPINION
PER CURIAM.
Christopher Robin Klein appeals the district court's denial of his post-sentencing motion to withdraw his Alford plea to one count each of rape and aggravated indecent liberties with a child, both with a child under the age of 14. Klein contends the district court abused its discretion in denying his motion. We affirm.
Klein was charged in 2009 with 17 sex crimes involving two separate victims under the age of 14. Detective Tom Johnson of the Coffey County Sheriff's Office interviewed Klein during which he gave a fairly extensive detailed confession of the abuse. Shortly after the district court denied Klein's motion to suppress these statements, he entered a plea agreement with the State.
The agreement provided that Klein would enter an Alford plea to one count of rape with a child under the age of 14 in violation of K.S.A. 21–3502(a)(2) and one count of aggravated indecent liberties with a child under the age of 14 in violation of K.S.A. 21–3504(a)(3). Klein was 31 years of age at the time of the offenses, making both counts off-grid felonies that would subject him to enhanced penalties under Jessica's Law. In exchange, the State agreed to dismiss all remaining charges. Additionally, the State agreed not to oppose a downward durational departure to a guidelines sentence. The State, however, would be free to argue for consecutive sentences.
At the December 17, 2009, plea hearing, the district court conducted extensive questioning of Klein to ensure his understanding of the charges, the rights he was giving up, his satisfaction with his attorney, and his willingness to enter the plea. Klein responded “yes” to each inquiry. When the district court again asked if it was Klein's desire to have the court accept the Alford plea and find him guilty if there was a factual basis for the charges, Klein responded:
“Well, Your Honor, there is evidence showing that I didn't do anything but nothing has been brought up and at this point I feel that it's in my best interest to ask for an Alford plea today but it's not going to look any better or worse in my behalf, it's just ongoing. I would prefer just to ask for an Alford plea.”
In response to this statement, the district court concluded further questioning was necessary. The district court commented that at the suppression hearing it viewed Klein's confession and, as part of the State's evidence, it would present Klein's confession as well as the interviews of the children. The district court then stated, “Now you have made a comment to the Court that apparently there is evidence to the contrary and you would have to present that at a trial; you understand that?” Klein responded, “Yes, sir.” The district court confirmed that Klein had made the decision not to go to trial and present evidence but rather to enter the plea.
The State represented that at trial it would present the 10–year–old victim's testimony; the testimony of Kayla Delgado, the SRS investigator who interviewed the children; the testimony of Detective Johnson, who interviewed Klein, resulting in Klein's confession; and the videotape of that confession. The State recounted some of the statements Klein made in his confession, specifically Klein's admission that he had sexual intercourse with the 10–year–old victim and touched the 7–year–old victim's vagina. Both defense counsel and Klein stated they were willing to accept this factual basis in support of the plea. The district court found Klein guilty, concluding there was a factual basis for the plea and that Klein's plea was voluntary and knowledgeable.
On January 29, 2010, the district court followed the plea agreement by granting a downward durational departure sentence to the guidelines, imposing a controlling prison sentence of 247 months with lifetime postrelease supervision. Klein filed a sentencing appeal but dismissed it and, instead, filed a motion to withdraw his plea alleging, among other things, that his attorney was ineffective. After conducting a hearing on the motion and hearing from Klein and his counsel, the district court determined counsel provided effective and appropriate assistance; Klein was not misled, coerced, or taken advantage of by counsel; and at the plea hearing, the district court took great pains to make sure Klein understood his rights and was willing to enter the Alford plea. The district court denied the motion.
Klein now appeals.
Klein contends the district court abused its discretion in denying his motion to withdraw his plea because (1) his counsel did not provide adequate representation, and (2) his plea cannot be characterized as knowing and voluntary. The State points out that Klein's testimony regarding his counsel's failings were disproved and, in fact, the district court found Klein's testimony was not credible. Further, the State maintains the fact that Klein's counsel pointed out the cold hard facts of the overwhelming evidence against Klein does not mean Klein's plea was involuntary.
The district court may set aside a conviction and grant a post-sentence motion to withdraw a plea only “[t]o correct manifest injustice.” K.S.A.2010 Supp. 22–3210(d)(2). Klein bears the burden of showing the district court abused its discretion in denying his motion. See State v. Bricker, 292 Kan. 239, 244, 252 P.3d 118 (2011).
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594(2012).
In exercising its discretion, the district court considers the three nonexclusive factors dubbed the Edgar factors. 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. Macias–Medina, 293 Kan. 833, 837, 268 P.3d 1201 (2012); Bricker, 292 Kan. at 244–45;State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006).
Klein alleges several instances where his appointed counsel, Craig Cole, provided inadequate assistance. In order to demonstrate counsel's performance resulted in manifest injustice, Klein must meet the standard under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He must show that his counsel's performance fell below the objective standard of reasonableness, and (2) there is a reasonable probability that but for Cole's errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 687;Bricker, 292 Kan. at 245–46. “Reasonable probability” is a probability sufficient to undermine confidence in the outcome. Bricker, 292 Kan. at 246.
Klein maintained Cole provided inadequate representation because (1) Klein had limited contact and communication with Cole; (2) Cole went over the plea advisory a mere 5 minutes before the hearing; and (3) Cole never investigated his claim that the State's witnesses were lying. At the motion hearing, Klein stated he believed Cole provided ineffective assistance because he now knows “what the attorney is supposed to do and the way we're supposed to talk with each other.”
Klein testified at the hearing on his motion. He claimed Cole visited him only on court days, and Cole's correspondence was limited to what was going to happen at the next court appearance. Cole refuted this. Cole testified that he met with Klein at least three times at the jail and, furthermore, on days when Klein had a court hearing, Cole would meet with him and then occasionally go to the jail after the hearing and discuss matters with Klein. The State introduced Cole's fee voucher showing the time Cole spent on Klein's case. Additionally, the State introduced at least five letters Cole wrote to Klein explaining various aspects of the case.
One of Cole's letters, dated before the plea hearing, explained the plea, Jessica's Law, and potential sentence in Klein's case but clarified that the district court would not be bound by the plea agreement. Regarding Cole's investigation of Klein's belief that the children lied, Cole testified that there was no proof; it was just Klein's word.
At the plea hearing, the judge asked Klein the following questions concerning his counsel.
“THE COURT: Now with regard to this Alford plea, have you had sufficient time to discuss this with your attorney and do you feel comfortable proceeding today on this matter?
“MR. KLEIN: Yes.
“THE COURT: All right. And did your attorney answer any questions you might have about this tender of an Alford plea that's been filed with the Court? I take it you went through that with him line by line, paragraph by paragraph, and discussed it with him and he answered any questions you had about specific paragraphs?
“MR. KLEIN: Yes, he did.
“THE COURT: And now, Mr. Klein, I think we did talk a little about counsel but I do need to establish a record here that you are satisfied with your attorney Mr. Cole, that he has met with you and discussed this to your satisfaction, answered questions, at this point in time you are satisfied with your attorney Mr. Cole in this matter; is that right?
“MR. KLEIN: Yes, sir.
“THE COURT: And you don't have any complaints you wish to raise to the Court about his representation of you, right?
“MR. KLEIN: No.”
Klein's contention that his plea was not knowing and voluntary is related to his claim of ineffective assistance of counsel. Klein maintains he felt coerced into entering the plea when faced with counsel who did not look into his claim the witnesses were lying; who told Klein that the State's evidence was sufficient to convict him and “it did not look good”; who advised him the State's witnesses could not be discredited; and who was unable to prepare a defense. Klein also contends he always asserts his innocence and notes at the plea hearing he asserted, “ ‘[T]here is evidence showing that I didn't do anything but nothing has been brought up....”
Klein's claims are not supported by the record. Klein does not specify what evidence proved his innocence; however, Cole testified that Klein was under the belief that he could not be convicted unless there was physical evidence or DNA evidence. Cole stated he explained to Klein that a jury “could” find him guilty with the eyewitness testimony (one of the children) and his confession. Further, Cole stated, “it did not look good” in light of how devastating Klein's confession was to his case. Finally, Klein's citations do not support his claim that Cole was unable to prepare a defense or that the witnesses could not be discredited.
All accounts suggest Klein voluntarily and knowingly entered the plea in the face of compelling evidence that could have resulted in multiple convictions of off-grid felonies. Except for the preliminary hearing, the same judge presided over all proceedings and was in a position to determine credibility. The district court believed Cole's testimony over Klein's. See State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011) (appellate courts do not reweigh evidence or assess credibility). Klein failed to show Cole's performance fell below the objective standard of reasonableness. The district court did not abuse its discretion by denying Klein's post-sentencing motion to withdraw his plea.
Affirmed.