Opinion
No. 108,448.
2013-11-4
Jason Alan SOLOMON, Appellant, v. STATE of Kansas, Appellee.
Appeal from Johnson District Court; John P. Bennett, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Shawn E. Minihan, assistant district attorney, Step hen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; John P. Bennett, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Shawn E. Minihan, assistant district attorney, Step hen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., McANANY and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jason Solomon appeals the district court's denial of his postsentence motion to withdraw plea, alleging that he did not knowingly and voluntarily enter his plea and that his trial counsel was ineffective. Finding no error, we affirm the district court.
Factual and Procedural History
On September 18, 2009, Jason Solomon pled guilty to one count of sale of cocaine, a severity level 1 drug felony. Prior to sentencing, Solomon filed a motion for departure. On November 13, 2009, the district court denied his motion and sentenced him to 162 months in prison.
On February 17, 2011, Solomon filed a pro se K.S.A. 60–1507 motion, alleging he was mentally incapacitated at his plea and sentencing hearing and that his trial counsel was ineffective because he failed to raise the issue of competency. The State responded that Solomon's motion was untimely because he filed the motion outside the 1–year statute of limitations. On March 7, 2011, the district court summarily denied Solomon's K.S.A. 60–1507 motion because the motion was untimely.
On March 11, 2011, Solomon sent Sarah Hill, assistant district attorney of Johnson County, Kansas, a letter invoking the prison mailbox rule pursuant to 28 U.S.C. 1749 (2006) and attached a copy of a Kansas Department of Corrections account withdrawal request form/receipt. The receipt showed that 85 cents was withdrawn on November 5, 2010, from Solomon's account for postage for mail sent to the Johnson County District Court. Following the June 16, 2011, hearing on Solomon's motion for reconsideration, the district court reinstated Solomon's K.S.A. 60–1507 motion, concluding the prison mailing authorities caused the delayed mailing of his motion and appointed counsel to represent Solomon.
Thereafter, on February 28, 2012, the district court held an evidentiary hearing on Solomon's K.S.A. 60–1507 motion at which Solomon and trial counsel Donald Smith testified. On May 15, 2012, the district court concluded there was no factual basis for Solomon's complaints and denied his motion, finding Solomon was competent at his plea and sentencing hearings, Solomon was advised of his rights at the plea hearing, and Solomon did not show that his trial counsel was ineffective.
Solomon timely appeals.
Did the District Court Abuse its Discretion In Denying Solomon's K.S.A. 60–1507 Motion?
On appeal, Solomon contends that he was not competent during his plea and sentencing hearings and that his trial counsel was ineffective because he failed to notice he was incompetent to enter his plea. Further, Solomon argues that trial counsel failed to properly present evidence related to his disabilities to mitigate his crime. The State contends that Solomon failed to present any evidence that his trial counsel was ineffective. Solomon entered his plea knowingly and voluntarily. Standard of Review
The district court should liberally construe a pro se pleading, “giving effect to the pleading's content rather than the labels and forms used to articulate the defendant's arguments.” State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010). The district court construed Solomon's K.S.A. 60–1507 motion as a motion to withdraw plea.
The district court has discretion to withdraw a guilty plea after sentencing to correct manifest injustice. K.S.A.2012 Supp. 22–3210(d)(2). This court has defined manifest injustice as something that is obviously unfair or shocking to the conscience. State v. Barahona, 35 Kan.App.2d 605, 608–09, 132 P.3d 959 (2006), rev. denied 282 Kan. 791 (2006). The defendant bears the burden of establishing an abuse of discretion. State v. Adams, 284 Kan. 109, 114, 158 P.3d 977 (2007).
“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. [Citation omitted.]” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
In exercising its discretion under K.S.A.2012 Supp. 22–3210(d)(2), the district court generally considers three factors, known as the “ Edgar factors”: (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. Green, 283 Kan. 531, 546, 153 P.3d 1216 (2007); State v. Edgar, 281 Kan.30, 36, 127 P.3d 986 (2006).
Analysis
To have a constitutionally valid guilty plea, the plea must be voluntary and knowing and must be “ ‘ “done with sufficient awareness of the relevant circumstances and likely consequences.’ “ The term ‘voluntary’ implicitly requires that the defendant be competent.” State v. Shopteese, 283 Kan. 331, 340–41, 153 P.3d 1208 (2007). “[A] person is ‘incompetent to stand trial’ when he is charged with a crime and, because of mental illness or defect is unable: (a) To understand the nature and purpose of the proceedings against him; or (b) to make or assist in making his defense.” K.S.A.2012 Supp. 22–3301. The voluntariness of a plea shall be determined by considering all of the relevant circumstances surrounding the plea. Shopteese, 283 Kan. at 341.
K.S.A.2012 Supp. 22–3210(a)(l)–(3) does not require the district court to ask the defendant about specific medications he or she may be taking, as long as his or her plea is entered in open court and the court ensures that the defendant (1) is informed of the maximum penalty that may imposed; (2) understands the nature of the charges against him or her; and (3) understands the consequences of pleading guilty. State v. Denmark–Wagner, 292 Kan. 870, 878–79, 258 P.3d 960 (2011). However, if there is any indication that the defendant is on medication at the plea hearing, the court must make an on-the-record inquiry about the possible side effects of that medication. See United States v. Rossillo, 853 F.2d 1062, 1066 (2d Cir.1988); State v. Austin, No. 105,612, 2012 WL 3135714, at *4 (Kan.App.2012) (unpublished opinion) (testimony from defendant's trial counsel supports the suggestion there was no indication that the defendant was on medication at the plea hearing); Price v. State, No. 89,202, 2004 WL 2238643, at *2 (Kan.App.2004) (unpublished opinion) (if there is any indication that the defendant is on medication at the plea hearing, the district court commits reversible error for failing to make an on-the-record inquiry whether a defendant is under the influence of medication).
From the following colloquy that took place at the plea hearing, there is no indication the judge had knowledge that Solomon was on medication at the plea hearing:
“THE COURT: I have a written plea agreement from the parties describing the plea.
Count I of the complaint is a level 1 non-person drug felony. The maximum sentence that can be imposed on that crime is 204 months. The lowest sentence is 138 months, all presumptive prison time. Do you understand that, sir?
“THE DEFENDANT: Yes, sir.
“THE COURT: Have you had plenty of time to discuss this with your lawyer?
“THE DEFENDANT: Yes, sir.
“THE COURT: Has he been able to answer your questions and advise you to your satisfaction so far?
“THE DEFENDANT: Yes, sir.
“THE COURT: You understand that going ahead with this plea would mean that there wouldn't be a trial.
“THE DEFENDANT: Yes, sir.
“THE COURT: If you went to trial, you would have 12 people to decide whether you committed the crime or not. You would be presumed innocent which means the State goes first and presents its witnesses and evidence to prove that you are guilty beyond a reasonable doubt.
“Then you have a chance, if you want, to present witnesses and evidence you can get Court orders or subpoenas to make people come to court for you and so forth.
“You would be present and you could confront and cross-examine the State's witnesses.
“You would decide whether you took the witness stand or not. Nobody could make you do that.
“If you lost your case and were convicted after a jury trial, you could appeal, try to correct mistakes, get the conviction set aside, that sort of thing. But going ahead with the voluntary plea of guilty to Count I means you can't have the trial and appeal. All that is left is sentencing. Do you understand that?
“THE DEFENDANT: Yes.
“THE COURT: Under the sentencing guidelines, it's presumptive prison. And to avoid prison, I would have to find there were substantial and compelling reasons to do something other than what is in the guidelines. Do you understand?
“THE DEFENDANT: Yes, sir.
“THE COURT: Anybody forcing you to do this plea rather than try your case?
“THE DEFENDANT: No, sir.
....
“THE COURT: All right. That's what the count alleges that you have these two prior convictions for sale of heroin and then the facts show that this quantity was sold to the undercover police agent. Do you understand that you've pled not guilty to Count I and under this plea agreement you would change your plea to guilty? Do you understand that?
“THE DEFENDANT: That's for the cocaine, right, yes, sir. First count?
“THE COURT: Yes.
“THE DEFENDANT: Yes, sir.
“THE COURT: That's what you want to do?
“THE DEFENDANT: Yes, sir.
“THE COURT: Find that you are voluntarily entering your plea, find you guilty on Count I; that you understand the prospect of prison and that you understand the terms of the plea agreement and the sentence that could be imposed.”
Not until the sentencing hearing did the court learn that Solomon was taking psychotropic medications for various medical issues.
At the hearing on his motion to withdraw plea, Solomon testified that when he pled guilty he had a bad headache, “wasn't in very good shape,” and was on prescription medication for migraines. Specifically, Solomon stated he took 80 milligrams of Oxycontin and 10 milligrams of Valium but was hoping that his attorney would take care of him. Solomon said he entered his plea because he was convinced that he would be going to a treatment center. However, Solomon admitted, “[I]f I did sell something, it was to supply my habit and I know that was wrong.... I was a user and I couldn't stop using.” Solomon testified he told Smith that he was “real sick,” took too many pills, and was over-medicated, but Smith ushered him into the courtroom and proceeded with sentencing.
Also at the motion to withdraw hearing, Smith testified that Solomon appeared to be his normal self at the plea hearing and he had no concerns about Solomon's mental state. Smith's testimony further supports the record that the court had no notice that Solomon may have been on medication at the plea hearing. See State v. Frost, No. 100,743, 2010 WL 1379112, at *3–4 (Kan.2010) (unpublished opinion) (rejecting defendant's motion to withdraw plea in part because trial counsel testified he did not notice defendant was under the influence of drugs).
Moreover, the same judge presided over the plea, sentencing, and motion to withdraw hearings. The district court was in a unique position to observe Solomon's responses during the plea hearing, to gauge the appropriateness of Solomon's comments, and to assess his ability to comprehend the questions asked. When ruling on Solomon's motion to withdraw, the judge stated, “[F]rom all the hearings that have been conducted, the plea hearing, the sentencing hearing, the hearing in this case, all of those, there is not one time that I have had any question about the defendant's ability to understand what was taking place. I do believe he knew what was taking place.” In ruling on Solomon's motion to withdraw, the district court stated, “A review of the transcript of the plea hearing reveals no concerns by the court or counsel about the ability of the defendant to understand what was taking place. The defendant expressed no concerns of understanding the plea or his rights. He answered questions appropriately.” Further, the court found there was no “factual basis for the defendant's complaints. He was competent at the plea and sentencing hearings. He was fully advised of his rights at the plea and entered a knowing and intelligent plea, one which benefitted him substantially.”
Considering the circumstances surrounding Solomon's plea, the district court did not abuse its discretion in finding Solomon entered his plea knowingly and voluntarily. Solomon received effective assistance of counsel. Standard of review
“A claim of ineffective assistance of trial counsel presents mixed questions of law and fact requiring de novo review.” Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089 (2011). Consequently, this court reviews the district court's factual findings for substantial competent evidence and the legal conclusions supported by those facts de novo. Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009). “There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.” Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
Analysis
When a defendant files a postsentence motion to withdraw plea under K.S.A.2012 Supp. 22–3210(d) alleging ineffective assistance of counsel, defendant must establish that counsel was constitutionally ineffective to demonstrate manifest injustice. Consequently, Solomon must establish that (1) counsel fell below the objective standard of reasonableness and (2) there is a reasonable probability that but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. A “ ‘ “reasonable probability’ “ is a probability sufficient to undermine the confidence in the outcome. [Citation omitted.]” State v. Briefer, 292 Kan. 239, 246, 252 P.3d 118 (2011).
On appeal, Solomon also alleges that Smith failed to adequately present mitigation evidence at the sentencing hearing. Prior to sentencing, Smith filed a motion for dispositional departure pointing out Solomon's prior convictions, which elevated his current charge to a severity level 1 felony, were 30 years old; and Solomon suffered from various medical conditions, including chronic headaches, Hepatitis C, liver transplant, brain surgery, depression, emphysema, and anxiety. The motion also stated that Solomon “recognizes that his own actions placed him in jeopardy, and for that he was extremely remorseful and wishes to try and better himself in the eyes of the Court.” Attached to the motion was a copy of Solomon's medications, reports from recent visits to the University of Kansas Hospital, prognosis from his neurosurgeon, and letter of recommendation from his AA sponsor. At the sentencing hearing, Smith argued for dispositional departure due to Solomon's various medical problems and the age of Solomon's prior convictions. However, the district court did not find substantial and compelling reasons to depart and denied Solomon's motion.
Solomon also alleges that trial counsel's performance fell below the objective standard of reasonableness because Smith failed to notice that Solomon was not competent to enter a guilty plea. At the motion to withdraw hearing, Solomon testified that he gave Smith his medical records with an expectation that he could pursue a diminished capacity defense. He claimed to have memory problems because of his brain surgery and he did not remember selling cocaine. However, as previously noted, Solomon admitted to selling cocaine several times during the pendency of his case, knew that he was guilty, and, despite his claim of memory problems, was able to recall details of several events.
At the motion to withdraw hearing, Smith testified that he has practiced criminal law for 28 years. During his representation of Solomon, he met with him at least a half dozen times, if not more. Solomon informed Smith about his various medical problems, including a liver transplant, brain surgery, depression, and anxiety, but Smith believed Solomon's medical problems would serve as mitigation rather than as a defense to the sale of cocaine. Solomon never indicated to Smith that he did not remember selling the cocaine. Further, Smith did not recall Solomon ever using the word “over-medicated” at either the plea or sentencing hearing. Smith testified that he had
“no concerns at the plea hearing, [Solomon] seemed to be his normal self. At the sentencing, he was late arriving which was unusual. And I believe he indicated to me that he was considering going to the hospital ... because he thought he was going to get sick ... He did not indicate that he had over-medicated or that he had taken too many Oxycontin or whatever it was he had taken. If he had told me that, I would have requested a continuance because it wouldn't have been appropriate to go forward. I didn't have any signs that was the case.”
The court found that Solomon did not show that his attorney was ineffective.
Solomon does not dispute his various admissions to selling cocaine and the fact that his guilty plea benefitted him significantly. Solomon's allegation that he would not have pled guilty and would have insisted on going to trial is merely conclusory. Therefore, Solomon cannot meet his burden to establish ineffective assistance of counsel. The district court's factual findings are supported by substantial competent evidence and are sufficient to support the district court's denial of Solomon's motion to withdraw his guilty plea claiming ineffective assistance of counsel.
Affirmed.