Opinion
No. 111,063.
2015-03-6
STATE of Kansas, Appellee, v. Dejuan A. BELL, Appellant.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge.Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
MEMORANDUM OPINION
LEBEN, J.
Dejuan Bell agreed to plead no contest to four counts of robbery in exchange for the State's recommendation of concurrent sentences at the low end of those possible under our state's sentencing guidelines. But the plea agreement provided that if Bell “fail[ed] to appear for a court appearance at any time prior to sentencing,” the State would not be held to its recommendation. Bell failed to appear at sentencing, and the State recommended more severe sentences, which the court imposed.
On appeal, Bell argues that the failure-to-appear term in his plea agreement was unconscionable and therefore unenforceable. But even if we assume that a provision in a plea agreement can be voided as unconscionable, there was nothing unconscionable about requiring that Bell show up for future court hearings in exchange for the State's recommendation of lighter sentences. We therefore affirm the district court's judgment.
Factual and Procedural Background
The State charged Bell with four counts of aggravated robbery for acts that occurred in March 2012. In September 2013, Bell entered into a plea agreement with the State. In exchange for Bell's plea of no contest to four counts of robbery (reduced from aggravated robbery), the State agreed to dismiss two other criminal cases against Bell (with prejudice so that they could not be refiled) and recommend that the sentencing court impose the lowest, or mitigated, guideline sentences for all counts. The State also agreed to recommend that the sentences be concurrent, meaning that all would run at the same time, rather than consecutive, where the sentences are added together and run for a longer time.
The plea agreement had a failure-to-appear clause, which made the State's sentencing obligation contingent on Bell showing up for future court proceedings and generally complying with the law until sentencing: “The State will not be bound by this recommendation and may make any other sentencing recommendation it deems appropriate, including incarceration, in the event the defendant is arrested, commits a new offense, violates bond conditions ox fails to appear for a court appearance at any time prior to sentencing.” (Emphasis added.)
Bell pled no contest to the four counts of robbery, and at his plea hearing, he told the court that he had spoken with his attorney about the charges and the consequences of his plea agreement.
In October, Bell failed to show up for his sentencing hearing. The hearing was later rescheduled, and the State asked that it not be bound to the sentencing recommendation set out in the plea agreement because Bell's failure to appear violated the agreement, relieving the State of its obligation. Bell objected, arguing that the failure-to-appear clause was unconscionable because he had to accept it in order to enter into a plea agreement. The district court overruled the objection and permitted the State to change its recommended sentences. The State recommended the maximum guideline sentence (called the aggravated sentence) for each count and that the four counts run consecutively to one another.
The district court sentenced Bell to the aggravated sentence of 55 months for the first count and aggravated sentences of 34 months for the remaining counts. A rule we generally call the “double rule” limits the total sentence to no more than double the base sentence (the sentence on the most serious offense)—here, the 55–month sentence on the first count. See K.S.A.2014 Supp. 21–6819(b)(4).Thus, his total sentence was capped at 110 months in prison. Bell then appealed to this court.
Analysis
I. After Bell Failed to Appear for His Sentencing Hearing, the State Was No Longer Bound by the Sentencing Recommendation Set Out in the Plea Agreement.
Bell argues that the failure-to-appear clause in the plea agreement was unconscionable—and thus unenforceable—so the State should have been bound the by the plea agreement at sentencing. He asks that we remand the case and require that the State recommend concurrent, mitigated grid sentences for all four burglary counts. Bell presents a purely legal question, which we must examine independently, without any required deference to the district court. See State v. Marshall, 21 Kan.App.2d 332, 336, 899 P.2d 1068, rev. denied 258 Kan. 861 (1995).
In a civil suit for breach of contract, the defendant can argue that the contract, or some provision in the contract, was unconscionable. See Stormont–Vail Hospital v. Spurling, No. 110,979, 2014 WL 4082469, at *4 (Kan.App.2014) (unpublished opinion) (“Unconscionability is an affirmative defense to a breach-of-contract claim.”). Bell notes that plea agreements are generally subject to contract principles, see State v. Urista, 296 Kan. 576, 583, 293 P.3d 738 (2013), so he contends that a provision of a plea agreement that's unconscionable should be disregarded, just as it would be in any other contract.
Bell is right that a contract may be deemed unconscionable if it is unfairly surprising, one-sided, or oppressive. See Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 757–60, 549 P.2d 903 (1976). It must be “so outrageous and unfair in its wording or application that it shocks the conscience or is so one-sided that no reasonable person would view it as just.” Stormont–Vail Hospital, 2014 WL 4082469, at *4 (citing Gonzales v. Associates Financial Serv. Co. of Kansas, 266 Kan. 141, 158, 967 P.2d 312 [1998] ). But a contract is not unconscionable solely because of a bad bargain or uneven bargaining power. Wille, 219 Kan. at 759–60. In the absence of proof of fraud, mistake, or duress, a party is bound by the contracts he signs—even if the contract's provisions are disadvantageous to him or he failed to read it. 219 Kan. at 757; Adams v. John Deere Co., 13 Kan.App.2d 489, 492, 774 P.2d 355 (1989).
Although the parties don't mention it, some other state appellate courts have refused to extend the unconscionability defense to plea agreements. See Dunlap v. State, 141 Idaho 50, 63–64, 106 P.3d 376 (2004); Linzy v. State, No. 01–02–00387–CR, 2003 WL 22456106, at *4–5 (Tex.App.2003) (unpublished opinion). In Dunlap, the Idaho Supreme Court found a significant difference between enforcing a plea agreement as a contract and allowing a criminal defendant to avoid a plea agreement by asserting an affirmative defense. 141 Idaho at 63. The court stated that because the sentencing judge does not participate in the plea negotiations and appellate courts cannot divine all of the reasons for the district court to accept a plea, it would limit its analysis of plea agreements to whether the defendant's plea was knowingly, voluntarily, and intelligently given. 141 Idaho at 64. But the Nevada Supreme Court has applied the unconscionability defense to a failure-to-appear clause in a plea agreement (though it ended up finding that the clause at issue was not unconscionable). See Sparks v. State, 121 Nev. 107, 112–13, 110 P.3d 486 (2005).
We need not determine whether unconscionability can void a plea-agreement provision. That's because even if we assume that it can, the provision at issue here is not unconscionable.
Bell argues that the failure-to-appear term must have been unconscionable because it contained boilerplate language offered on a take-it-or-leave-it basis and he and the State had unequal bargaining power. His arguments are based on 2 of the 10 factors courts examine when determining if a contract is unconscionable:
“(1) The use of printed form or boilerplate contracts drawn skillfully by the party in the strongest economic position, which establish industry wide standards offered on a take it or leave it basis to the party in a weaker economic position [citations omitted]; (2) a significant cost-price disparity or excessive price; (3) a denial of basic rights and remedies to a buyer of consumer goods [citation omitted]; (4) the inclusion of penalty clauses; (5) the circumstances surrounding the execution of the contract, including its commercial setting, its purpose and actual effect [citation omitted]; (6) the hiding of clauses which are disadvantageous to one party in a mass of fine print trivia or in places which are inconspicuous to the party signing the contract [citation omitted]; (7) phrasing clauses in language that is incomprehensible to a layman or that divert his attention from the problems raised by them or the rights given up through them; (8) an overall imbalance in the obligations and rights imposed by the bargain; (9) exploitation of the underprivileged, unsophisticated, uneducated and the illiterate [citation omitted]; and (10) inequality of bargaining or economic power. [Citations omitted.]” (Emphasis added.) Wille, 219 Kan. at 758–59.
See also State ex rel. Stovall v. DVM Enterprises, Inc., 275 Kan. 243, 251, 62 P.3d 653 (2003).
Bell claims that the boilerplate language makes the failure-to-appear term unconscionable because he was required to accept the term to receive a plea deal. But under Kansas law, standardized contracts, also called adhesion contracts, that are offered to consumers on a “take it or leave it” basis are not unconscionable simply because they are standardized. Ed Bozarth Chevrolet, Inc. v. Black, 32 Kan.App.2d 874, 886–87, 96 P.3d 272, rev. denied 277 Kan. 923 (2003); Stormont–Vail Hospital, 2014 WL 4082469, at *3. Here, Bell—not the State—controlled whether the State would be held to the sentencing recommendation it had agreed upon in the plea agreement. See Sparks, 121 Nev. at 113. If Bell had appeared for sentencing and met the other requirements for the State to recommend mitigated sentences—most of which he was already legally required to meet—the State would have been bound to its commitment. Moreover, the State acted reasonably when it included this language making its sentencing recommendation contingent on Bell's ability to abide by the law and follow the district court's orders: Bell's ability to do so was a relevant consideration for the State in deciding whether to enter into the plea agreement in the first place. See Sparks, 121 Nev. at 113. So even though the language at issue was standardized and apparently always included in plea agreements in Sedgwick County, that does not make the failure-to-appear term unconscionable.
Bell also claims unconscionablility based on the parties' inequality of bargaining power. He's right, of course, that the parties have unequal power when a citizen is accused of a crime: here, the State had the power to bring and dismiss charges against him while he only had the power to admit guilt, to plead no contest, or to go to trial. But unequal bargaining power alone does not make a contract unconscionable, see Frets v. Capitol Federal Savings & Loan Ass'n, 238 Kan. 614, 622–23, 712 P.2d 1270 (1986); Wille, 219 Kan. at 759, and Bell had the right to make the State prove its case in a jury trial. Accordingly, the parties' unequal bargaining positions did not make the failure-to-appear term unconscionable.
Bell suggests that the other factors are inapplicable to plea agreements. We note, however, that several factors fairly encompassed within the remaining factors suggest that the failure-to-appear clause was not unconscionable.
First, the language of the failure-to-appear clause is not unfairly surprising because it clearly sets out the conditions for the State's sentencing recommendation: “The State will not be bound by this recommendation and may make any other sentencing recommendation it deems appropriate, including incarceration, in the event the defendant is arrested, commits a new offense, violates bond conditions or fails to appear for a court appearance at any time prior to sentencing.” (Emphasis added.) See Adams, 13 Kan.App.2d at 496 (stating that clear contract terms prevent unfair surprise to a party who is offered a contract on a take-it-or-leave-it basis). The failure-to-appear language was easy to find: the entire plea agreement was only two pages, and this language was in no way buried in fine print. See Frets, 238 Kan. at 622; Santana v. Olguin, 41 Kan.App.2d 1086, 1091–92, 208 P .3d 328 (2009), rev. denied 290 Kan. 1095 (2010). Because the failure-to-appear term was clearly stated in the agreement and Bell told the district court that he had spoken about the consequences of his plea agreement with his attorney, Bell should not have been surprised when the State asked not to be bound by the agreement after Bell failed to appear at sentencing.
Second, the combination of terms in the plea agreement shows that the agreement as a whole was not one-sided in favor of the State. See Wille, 219 Kan. at 764. In any agreement in which two sides exchange promises, one of those promises—taken in isolation—may seem to benefit only one party. But one must look at the agreement as a whole. While the failure-to-appear term itself was one-sided because it could only serve to relieve the State of its obligations under the agreement, Bell received benefits from other provisions in the agreement. The State dismissed two criminal cases against him, reduced the aggravated-robbery charges to robbery charges, and agreed to recommend the lowest sentences provided under the guidelines.
Third, the failure-to-appear term was not oppressive. In cases involving plea agreements without failure-to-appear clauses, this court has held that the State is not bound to follow the sentencing recommendations from a plea agreement if the circumstances surrounding the bargain have changed significantly before sentencing. See Marshall, 21 Kan.App.2d at 337 (finding changed circumstances when the defendant failed to report to his probation officer and attend AA meetings); State v. Richmond, 21 Kan.App.2d 126, 130–32, 896 P.2d 1112 (1995) (finding changed circumstances when the defendant broke the law and failed to pay fines under plea agreement while on probation); State v. Rowland, No. 102,871, 2010 WL 3324677, at *4 (Kan.App.2010) (unpublished opinion) (finding changed circumstances when the defendant committed a new crime); State v. Corwin, No. 90,735, 2004 WL 1609124, at *1–2 (Kan.App.2004) (unpublished opinion) (finding changed circumstances when the defendant failed to appear for sentencing and committed two additional felonies). This is because under principles of fundamental fairness, plea agreements contain an implied condition that the circumstances surrounding the bargain will remain substantially the same. See Marshall, 21 Kan.App.2d at 337; Richmond, 21 Kan.App.2d at 131.
The failure-to-appear term in Bell's plea agreement expressly stated that the circumstances surrounding the bargain—including his willingness to show up for sentencing—must remain substantially the same for the State to remain bound to the sentencing recommendation. The express term served the same purpose as the implied condition discussed in the above cases—to avoid insulating defendants from their post-plea misconduct. See Corwin, 2004 WL 1609124, at *2. Moreover, K.S.A. 22–3405(a) explicitly requires that the defendant in a felony case be present for sentencing. We find nothing oppressive in the provision of the plea agreement making the State's obligation to recommend lesser sentences contingent on the defendant's compliance with his duty to appear for sentencing.
In sum, Bell has not shown that the failure-to-appear provision in his plea agreement was unconscionable. As a result, even if a provision in a plea agreement may be voided as unconscionable, the district court correctly ruled that the provision in Bell's agreement could be enforced as written. The district court did not err when it allowed the State to make a sentencing recommendation that differed from the plea agreement.
II. Bell's Sentences Did Not Violate His Right to a Jury Trial .
Bell makes two constitutional challenges to his sentences. He argues that his sentences were unconstitutional because the sentencing court, and not the jury, decided whether to impose the aggravated sentence for each of his convictions and because the sentencing court used his criminal history to calculate his guideline sentences without the State having proved them to the jury. See K.S.A.2014 Supp. 21–6804(e)(1). Our Supreme Court has rejected both of these arguments. See State v. Hilt, 299 Kan. 176, 200–01, 322 P.3d 367 (2014); State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013); State v. Johnson, 286 Kan. 824, 851–52, 190 P.3d 207 (2008); State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002).
We affirm the district court's judgment.