Opinion
No. 107,092.
2012-10-5
Shannon Lavar BRYANT, Appellant, v. STATE of Kansas, Appellee.
Appeal from Geary District Court; Steven L. Hornbaker, Judge. Eliehue Brunson, of The Brunson Law Firm, LLC, of Junction City, for appellant. Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Geary District Court; Steven L. Hornbaker, Judge.
Eliehue Brunson, of The Brunson Law Firm, LLC, of Junction City, for appellant. Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before MARQUARDT, P.J., McANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Shannon Lavar Bryant pled guilty to possession of cocaine and possession of marijuana and was sentenced to 34 months' imprisonment. Bryant subsequently filed a K.S.A. 60–1507 motion, alleging ineffective assistance of trial counsel. Following an evidentiary hearing, the district court denied the motion. Bryant appeals. We affirm.
On September 26, 2008, Bryant pled guilty to one count of possession of cocaine, under K.S.A.2008 Supp. 65–4160(a), a severity level 4 drug felony, and one count of possession of marijuana, under K.S.A.2008 Supp. 65–4162(a)(3), a severity level 4 drug felony. In exchange for the plea, the State dismissed two counts of possession of drug paraphernalia and one count of obstructing legal process. During the plea hearing, the district court explained to Bryant the possible sentences for his crimes:
“THE COURT: Okay. The possible penalties that could be imposed for this, as to Count 1, it's a Drug Level 4, would carry a possible penalty that could range anywhere from ten months, to 42 months in prison and a $100,000 fine. You understand that?
“THE DEFENDANT: Yes, sir.
....
“THE COURT: Okay. And then, likewise, on Count 3, that's a Drug Level 4, could [carry] a possible penalty that could range anywhere from 10 to 42 months in prison, and likewise, a $100,000 fine. You understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Okay. And I could order those concurrent or consecutive; you understand?
“THE DEFENDANT: Yes, sir.”
Bryant was sentenced to the standard presumptive term of 34 months' imprisonment.
On April 6, 2009, Bryant filed a K.S.A. 60–1507 motion, alleging ineffective assistance of trial counsel. On January 13, 2010, the district court held an evidentiary hearing to consider Bryant's motion. At the hearing, Bryant and his trial counsel, Sam Kepfield, testified. Bryant informed the court that Kepfield did not inform him of all the possible sentences, only that he was a candidate for Senate Bill 123 (SB 123) drug treatment that would result in probation. According to Bryant, Kepfield never discussed the Kansas Sentencing Guidelines (KSG) and did not go over his criminal history with him except to ask about prior drug felonies. Bryant admitted, however, that he did not inform his attorney that he was out of prison on felony bond when he committed these offenses. Bryant admitted that he was familiar with the KSG grid and had seen it before.
According to Kepfield, on the day of the preliminary hearing, the State offered the plea and Bryant accepted it. Kepfield informed Bryant that his sentence would be “per the KSGA guidelines.” Kepfield told the Court that he usually carries a desk reference with him and believes he went over it with Bryant before Bryant entered his plea. Kepfield admitted to discussing SB 123 treatment with Bryant but advised him that it was completely dependent on his prior criminal history. Kepfield, understanding the importance of criminal history, explained that he is thorough with his clients and had asked Bryant about his convictions. Kepfield believed that Bryant had “downplayed” his criminal history and was “kind of vague” about it.
After reviewing the evidence, the district court denied Bryant's K.S.A. 60–1507 motion, finding that Kepfield's representation was not ineffective. Bryant timely appeals.
In order for Bryant to prevail on his claim of ineffective assistance of counsel, he must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. See Strickland v. Washington, 466 U .S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674,reh. denied467 U.S. 1267 (1984). A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. State v. Bricker, 292 Kan. 239, 245–46, 252 P.3d 118 (2011).
When the district court conducts an evidentiary hearing after a K .S.A. 60–1507 motion has been filed, an appellate court reviews the district court's findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. Appellate review of the district court's ultimate conclusions of law is unlimited. Bellamy v. State, 285 Kan. 346, 354–55, 172 P.3d 10 (2007). Substantial competent evidence is evidence “which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.” Griffin v. Suzuki Motor Corp., 280 Kan. 447, 459, 124 P.3d 57 (2005).
On appeal, Bryant's sole argument is that he “was deprived of effective assistance of counsel when he entered his plea.” Bryant asserts that it was Kepfield's “obligation” to advise him of the range of sentences and cites one case to support his entire argument, State v. Solomon, 257 Kan. 212, 223, 891 P.2d 407 (1995), which states: “Defense counsel has an obligation to advise a defendant as to the range of permissible penalties and to discuss the possible choices available to the defendant.” Bryant suggests that “[a] discussion on the applicability of Senate Bill 123 alone is not sufficient” but offers no legal support for his conclusion.
Bryant claims “it is probable that he would not have pled guilty” if he had known the full range of permissible penalties. The trial court explicitly went over the range of sentences with Bryant before he accepted the plea. Bryant said that he understood the sentencing ranges. Although partially contradictory to Bryant's testimony, Kepfield testified that he always discusses criminal history with his clients and carries a copy of the KSG to go over with clients.
Bryant was not forthright with his attorney about his criminal history. Kepfield took reasonable steps to ensure that Bryant was aware of the possible sentencing ranges. A defendant is presumed to know his or her criminal history when entering a plea agreement. Porter v. State, 37 Kan.App.2d 220, 223–24, 152 P.3d 89,rev. denied 284 Kan. 946 (2007).
Bryant has failed to prove that Kepfield's representation either fell below the objective standard of reasonableness or that further explanation would have changed his decision to enter his plea. The district court did not err in denying Bryant's K.S.A. 60–1507 motion.
Affirmed.