Opinion
No. 108,730.
2013-11-1
In the Interest of E.M., born in 1992.
Appeal from Sedgwick District Court; Harold E. Flaigle, Judge. Nancy Ogle, of Ogle Law Office, of Wichita, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Harold E. Flaigle, Judge.
Nancy Ogle, of Ogle Law Office, of Wichita, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., BUSER and ATCHESON, JJ.
MEMORANDUM OPINION
LEBEN, J.
E.M. appeals the district court's denial of his motion to withdraw his guilty plea to the crimes of attempted rape and misdemeanor assault. E.M. contends that his attorney provided inadequate representation and put pressure on E.M. to plead guilty. The district court found that E.M.'s attorney was competent and didn't coerce E.M. into pleading guilty.
On appeal, E.M. primarily complains that his attorney strongly advised that E.M.—15 years old at the time of the plea—would be much better off pleading to a juvenile offense than risking being tried as an adult and being sent to prison. But E.M. had to show in the district court that he would suffer manifest injustice if he wasn't allowed to withdraw his plea, and on appeal he must show that no reasonable person would agree with the district court's conclusion that he didn't show manifest injustice. We find no abuse of discretion here: E.M. has not shown that his attorney's advice was incorrect or inappropriate.
Factual and Procedural Background
When he was 15, E.M. was charged in Sedgwick County with attempted rape and misdemeanor assault. After the State filed a motion seeking to prosecute E.M. as an adult, he entered a plea agreement with the State. Under that agreement, E.M. agreed to plead guilty to the charges. Both sides agreed that E.M.'s case would remain a juvenile proceeding and it was designated an extended-juvenile-jurisdiction prosecution; that meant that E.M. would receive both a juvenile sentence, which he would serve, and an adult sentence, which would be imposed only if he failed to successfully complete the juvenile sentence.
At a plea hearing, the district court informed E.M. of his rights and explained the potential sentence. The court asked E.M. if anyone was forcing him to enter a plea, and E.M. responded, “No, sir.” When the court asked E.M. if he had any questions, E.M. asked whether he could be placed into a group home.
At sentencing, the district court ordered that E.M. be placed at a juvenile correctional facility until 6 months before he turned 23, combined with aftercare for those 6 months. The court imposed an underlying adult sentence of 94 months on the attempted-rape conviction, along with a concurrent 90–day sentence on the misdemeanor-assault conviction.
Nearly 2 years later, the Commissioner of the Juvenile Justice Authority moved for court review of E.M.'s sentence, alleging that E .M. had escaped from the Larned Juvenile Correctional Facility. After a hearing, the district court then revoked E.M.'s juvenile sentence and imposed the underlying adult sentence.
E.M. then brought a motion to withdraw his pleas, contending that he had not committed the underlying offenses and that he had pled guilty only because he was coerced by his trial attorney. The district court appointed new counsel to represent E.M. and heard testimony from E.M. and his trial attorney, Steven Mank.
E.M. testified that he felt coerced by Mank into pleading guilty. He said Mank told him, “If you don't take the plea, you will go to big boys' prison where they rape and beat up people with your offense.” E.M. said he agreed to the plea deal because Mank's words had scared him and he hadn't known what else to do.
Mank denied making a statement about “big boys' prison,” but said he did tell E.M. something along the lines of, “[Y]ou can do hard time or you can do easy time.” He said he advised E.M. that even a tough 15–year–old would not hold up well in an adult prison. Mank said that there were also other considerations, noting that there had been another case pending in Miami County at the time of the pleas. Mank said he had understood that the Miami County case would be dismissed if the Sedgwick County case was resolved. Mank did acknowledge that E.M.'s plea offer was “probably not” in writing. Mank also conceded that he wasn't sure that he had advised E.M. of his right to appeal or to seek withdrawal of his pleas during the time that passed after the pleas were entered and before sentencing.
The district court denied E.M.'s motion to withdraw his pleas. The court specifically ruled that Mank had provided competent representation and that no one, including Mank, had forced E.M. to accept the plea agreement. The court concluded that even if Mank made the statements E.M. claimed Mank had made, those statements merely provided E.M. with realistic and candid advice.
Analysis
E.M.'s motion to withdraw his pleas was made after sentencing, so he had to show that manifest injustice would take place if the court didn't allow him to withdraw the pleas. See In re P.L.B., 40 Kan.App.2d 182, 188, 190 P.3d 274 (2008). E.M.'s motion was in part based on a claim that his attorney provided inadequate representation (failing to advise him of his rights to appeal or to seek a plea withdrawal) and in part based on a claim that E.M. felt coerced to plead guilty.
For the claim of inadequate representation, E.M. had to show (1) that the attorney's performance fell below an objective standard of reasonableness and (2) that but for the attorney's poor performance, E.M. would not have pled guilty and instead would have insisted on going to trial. See State v. Szczygiel, 294 Kan. 642, 646, 279 P.3d 700 (2012). For the claim that he felt coerced—and generally on a motion to withdraw a plea—the district court considers three factors: (1) whether the defendant was represented by a competent attorney, (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. Bricker, 292 Kan. 239, 244, 252 P.3d 118 (2011). Ultimately, on all of E.M.'s claims, E.M. had to show that manifest injustice would result if he was not allowed to withdraw his guilty pleas. In re P.L.B., 40 Kan.App.2d at 188, 190 P.3d 274. Manifest injustice has been described as “something obviously unfair or shocking to the conscience.” State v. Silhan, 45 Ken.App.2d 574, Syl. 1, 45 Kan.App.2d 574, 251 P.3d 84 (2011).
For E.M.'s claim of inadequate representation, he cannot meet the required tests on any of his allegations. First, E.M. argues that it is below minimum standards for an attorney (a) to recommend that his client plead guilty if the client claims innocence and (b) to advise his client that he will be subject to harm if he goes to “big boys' prison.” But the State correctly notes that an attorney may give harsh advice, citing State v. Macias–Medina, 293 Kan. 833, 837–38, 268 P.3d 1201 (2012). In that case, the defendant claimed that his guilty plea had been induced in part by his attorney's statement that jury members might have a racial prejudice against him. The district court found nothing incompetent in the attorney's advice, and the Kansas Supreme Court agreed that an attorney should provide full and practical advice to the client:
“While one might wish [the attorney's] statements to be dishonest, they are not. The attorney shared the harsh reality that the outcome of a jury trial is determined by what the jurors believe the facts to be rather than what the true facts are and that jurors' beliefs are sometimes influenced by human emotions. A defendant should know that reality when making the decision whether to accept a plea agreement with a recommended 5–year prison term or go to trial with the risk of a minimum 25–year prison term.” 293 Kan. at 838, 268 P.3d 1201.
The same is true in E.M.'s case. His attorney advised him about the harsh realities he might face, and E.M. has not shown that Mank's advice was inaccurate. It's appropriate for an attorney to provide both legal information and practical advice to the client. See State v. Atteberry, 44 Kan.App.2d 478, 496, 239 P.3d 857 (2010), rev. denied 292 Kan. 966 (2011). The attorney appropriately advised E.M. about differences between juvenile and adult correctional facilities so that E.M. could make an informed decision about the potential plea agreement. On these allegations, E.M. has not shown that Mank's representation was below minimum standards.
Second, E.M. argues that Mank failed to tell him between the plea hearing and sentencing about his right to seek a plea withdrawal and his right to appeal. But E.M. didn't testify that he would have sought to withdraw his plea at any time before his juvenile sentence was revoked and his adult sentence was imposed. On this allegation, E.M. has not shown that—in the absence of the acts he claims were inadequate representation—he would not have pled guilty and instead would have insisted on going to trial.
So we can find no error in the district court's conclusion that Mank provided competent representation. E.M.'s claims of inadequate representation by Mank did not meet the required tests: E.M. didn't show that the advice he was given was below minimum standards, and E .M. didn't show that he would have acted any differently if he had been given additional advice about seeking to withdraw his plea or about his appellate rights.
That leaves the separate allegation that E.M. felt coerced into pleading guilty. E.M. bases this claim again on statements made by his attorney, arguing that E.M. felt pressure from Mank's statements. But pressure from one's attorney by itself generally doesn't provide a sufficient basis for the withdrawal of an otherwise voluntary guilty plea. See State v. Storms, No. 107,635, 2013 WL 1688919, at *4 (Kan.App.2013) (unpublished opinion) (citing cases). When an attorney makes the defendant aware of personal considerations that may impact the plea decision, the attorney isn't engaging in coercion, even though the personal considerations may have a great psychological influence on the defendant. Wippel v. State, 203 Kan. 207, 209, 453 P.2d 43 (1969); Williams v. State, 197 Kan. 708, 711, 421 P.2d 194 (1966).
Moreover, the district court concluded after an evidentiary hearing and reviewing the transcript of the plea hearing that E.M.'s plea was fairly and understandably made and that E.M. hadn't been coerced. Those conclusions are supported in the record. The district court explained E.M.'s rights at the plea hearing, and E.M. told the court that he wasn't being forced to enter a plea. E.M. showed the ability to ask questions when he had them—asking whether he could be placed at a specific group home—and later told the district court that he had no further questions. In fact, the district court asked E.M. three different times whether he had any further questions.
The district court appropriately considered the factors it is supposed to consider when determining whether to allow the withdrawal of a plea. We find no abuse of discretion in its denial of E.M.'s motion.
The district court's judgment is affirmed.