Opinion
No. 106,120.
2012-07-20
Marvin B. MOORE, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge. Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., MARQUARDT and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Marvin B. Moore asks us to reverse the district court's denial of relief on his K.S.A. 60–1507 motion where he sought to withdraw his guilty plea to one count of robbery. Our review of the record gives us no reason to do so and we affirm. Moore made a choice.
In 2009, Moore and another individual approached Keith Johnson in a parking lot near the Sedgwick County courthouse and took Johnson's Converse shoes and other personal property by force or threat of bodily harm. As a result, the State charged Moore with one count of aggravated robbery in violation of K.S.A. 21–3427.
Moore elected to enter into an Alford plea agreement, pleading guilty to one count of robbery in violation of K.S.A. 21–3426. The State agreed to recommend to the district court the low number in the sentencing grid and that it grant Moore's request for downward departure to probation. Following the plea colloquy at a hearing on February 1, 2010, the trial court accepted the plea and pronounced Moore guilty of robbery.
Moore's counsel filed a motion seeking a dispositional departure sentence of probation. In support of the request for departure, the motion reiterated the factors noted in the plea agreement—“the age and health of the defendant, the age of the most significant criminal history, and the relationship of the parties.” The motion pointed out that Moore's last felony conviction occurred more than 10 years ago, and the most significant criminal history placing Moore in category “A” was over 20 years old. Moore's counsel also argued that drug treatment, instead of incarceration, would better serve Moore's reformation.
At sentencing, the parties agreed Moore's criminal history placed him in category A of the sentencing grid. The sentencing court then heard arguments on Moore's motion for departure. Moore's counsel notified the district court that she could “stand on the written motion.” Moore's counsel also clarified that “Moore pled pursuant to Alford in this case, because he wanted to take advantage of the—the plea agreement, and that the State would be recommending probation, which is what the plea agreement states.” The State did not oppose Moore's motion for dispositional departure.
After noting the nature of Moore's extensive criminal history, his condition, and the circumstances and seriousness of the robbery conviction, the sentencing court imposed a sentence of 122 months' presumptive imprisonment and 24 months' postrelease supervision. The sentencing court then addressed Moore's motion for dispositional departure, noting that the presentence investigation report indicated Moore was on probation at the time he committed this present offense. Moore's counsel expressed surprise and disbelief as to the accuracy to this revelation, but argued, “If that's going to enter into the Court's decision-making process on the Motion to Depart, I would ask that you stay making ... that final decision before we get that information confirmed.”
The sentencing court clarified that given Moore's criminal history the sentence would be the same even if Moore were not on probation when he committed the present crime. Moore's counsel then made an oral motion for a durational departure sentence, arguing that the harm inflicted in this case was not as serious as a typical robbery and that a 122–month sentence would amount to a life sentence given Moore's health and age (59 years old). The State requested the sentencing court deny Moore's durational departure motion. The sentencing court denied Moore's request for a dispositional and durational departure.
Moore filed a pro se K.S.A. 60–1507 motion requesting withdrawal of his plea, alleging, inter alia, ineffective assistance of counsel at his plea hearing. That same day, Moore filed a pro se notice of appeal with the district court, which was subsequently dismissed on July 14, 2010, for failing to docket the appeal in compliance with Supreme Court Rule 2.04 (2010 Kan. Ct. R. Annot. 12). Moore also filed a pro se motion on March 25, 2010, requesting a durational departure because of his age and current medical conditions, and because he did not fully understand the terms of the plea agreement. The sentencing court summarily denied Moore's motion for durational departure on April 30, 2010, because it lacked jurisdiction to grant relief.
On August 20, 2010, the district court granted a limited evidentiary hearing on Moore's K.S.A. 60–1507 motion to examine Moore's assertions of fact regarding: (1) whether Moore's counsel told him he was not eligible for an evaluation at the Substance Abuse Center of Kansas (SACK); (2) Moore's probationary status at the plea hearing; and (3) Moore's mental and physical conditions at the time of the plea.
The district court appointed counsel and conducted an evidentiary hearing on January 7, 2011. After considering the evidence and arguments, the district court ruled Moore was not entitled to relief. The district court ruled that a SACK evaluation was not crucial to Moore's motion for departure. The district court reasoned that getting a SACK evaluation was not the primary emphasis in Moore's motion and that Moore did not obtain an evaluation by sentencing, despite his counsel's efforts to place Moore on bond, because Moore was an incarcerated veteran and the Veteran's Administration does not do evaluations to those veterans in custody. As to Moore's claims regarding his probationary status, the district court noted that his counsel pointed out to the sentencing court that Moore was not on probation, and had asked the sentencing court to set the matter over to “provide proof, written proof that [Moore] was not on probation or parole supervision.” Finally, the district court noted that Moore's mental and physical conditions did not affect his decision to accept the plea. Moore only raised his issues of health concerns for the first time in his K.S.A. 60–1507 motion, and Moore specifically told the trial court that his prior diagnosis of “schizoid [Personality] disorder” “did not affect his ability to understand” what was transpiring at the plea hearing. Moore contends his counsel was ineffective.
Moore appeals the district court's ruling, arguing that his counsel at sentencing was ineffective for failing to offer evidence that the PSI report incorrectly stated Moore was on probation when he committed the offense, and for not documenting evidence of Moore's physical and mental health issues at the time of sentencing. Moore does not challenge the district court's decision denying Moore's ineffective assistance of counsel claims in part based on trial counsel's failure to obtain a SACK evaluation for Moore. Accordingly, this claim is deemed waived or abandoned. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
A district court must make findings of fact and conclusions of law on all issues raised by the movant in a K.S.A. 60–1507 motion. Supreme Court Rule 183(j) (2011 Kan. Ct. R. Annot. 259); Harris v.. State, 31 Kan.App.2d 237, 239, 62 P.3d 672 (2003). When the district court has conducted an evidentiary hearing on a K.S.A. 60–1507 motion, this court reviews the district court's findings of fact for substantial competent evidence and the court's legal conclusions based on those facts de novo. Bellamy v. State, 285 Kan. 346,355, 172 P.3d 10 (2007).
“A defendant filing a postsentence motion to withdraw plea under K.S.A. 22–3210(d) that alleges ineffective assistance of counsel due to deficient performance must meet constitutional standards to demonstrate manifest injustice.” State v. Bricker, 292 Kan. 239, 245–46, 252 P.3d 118 (2011). Consequently, Moore must meet the Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), test and show that (1) counsel's performance fell below the objective standard of reasonableness and (2) there is a reasonable probability that but for counsel's errors, the result of the proceeding would have been different. See Bricker, 292 Kan. at 245–46;Chamberlain v. State, 236 Kan. 650, 656–57, 694 P.2d 468 (1985) (adopting Strickland standards). A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. State v. Gleason, 277 Kan. 624, 644, 88 P.3d 218 (2004). Moore had the burden of proving by a preponderance of the evidence that he was entitled to relief. See Supreme Court Rule 183(g).
Our problem with Moore's claim is that he makes no attempt to address or sustain his burden to establish that, but for his counsel's alleged ineffective work, he would not have pled guilty and would have insisted on going to trial. See Wilkinson v. State, 40 Kan.App.2d 741, 743, 195 P.3d 278 (2008), rev. denied 289 Kan. 1286 (2009). In the complete absence of any attempt to prove this critical element we must affirm the district court's denial of Moore's motion without further examination of its merits. In our view, the district court was right but for the wrong reason. See State v. Murray, 285 Kan. 503, 533, 174 P.3d 407 (2008).
Other than asking to withdraw his plea, Moore is simply expressing buyer's remorse after the sentencing court rejected the plea agreement's sentencing recommendations. Moore's and his trial counsel's testimony indicate Moore turned down an initial plea offer of 40 months' incarceration and entered the Alford plea to a lower charge because he wanted “to take advantage of the plea agreement for probation.” In Moore's written notice of appeal, Moore stated that he “was under the impression he was going to be placed on community corrections field service due to the plea agreement.” The district court, however, noted that it was “quite clear” Moore understood both the nature of his plea and that the sentencing court did not have to follow the plea agreement and give him probation. Because the same district court judge who presided over the evidentiary hearing on Moore's K.S.A. 60–1507 motion also presided over the plea hearing with Moore, this court owes much deference to the judge who saw all of the proceedings first hand as they happened. See Chamberlain, 236 Kan. at 659–60.
We see no good reason to grant Moore any relief. We affirm the district court.