Opinion
No. 110,839.
2014-10-31
STATE of Kansas, Appellee, v. Dale G. BIRMINGHAM, Appellant.
Appeal from Sedgwick District Court; David J. Kaufman and John J. Kisner, Jr., Judges.Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.Katie J. Genereux, legal intern, Boyd K. Isherwood, chief attorney appeals division, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; David J. Kaufman and John J. Kisner, Jr., Judges.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. Katie J. Genereux, legal intern, Boyd K. Isherwood, chief attorney appeals division, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., LEBEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Defendant Dale Birmingham pled guilty to criminal possession of a firearm under K.S.A.2012 Supp. 21–6304(a)(1), which prohibits individuals with prior person felonies from legally possessing firearms. Before sentencing, Birmingham sought to withdraw his plea, arguing that under State v. Knight, 42 Kan.App.2d 893, 218 P.3d 1177 (2009), his prior felony could not sustain a conviction for criminal possession of a firearm because it was an attempt crime. The district court denied the motion to withdraw the plea, and Birmingham appealed, again relying on Knight.
But Knight is inapplicable to this case because it addresses a much different subsection of the criminal-possession statute. The statutory subsection at issue in Knight made it a crime to possess a firearm for one who had been convicted of specific listed felonies in the past 10 years, with no mention of attempt crimes. Thus, our court held that a prior conviction for attempted possession of cocaine did not qualify, even though felony possession of cocaine, an offense listed in the statute, would. 42 Kan.App.2d at 903–07. But K.S.A.2012 Supp. 21–6304(a)(1) makes it a crime for a person who “[h]as been convicted of a person felony” to possess a firearm, and Birmingham admits that he had a conviction for a person felony (attempted aggravated assault). The trial court acted within its discretion when it denied Birmingham's motion to withdraw his plea.
Factual and Procedural Background
Birmingham was convicted of attempted aggravated assault, a person felony, in April 1993. After a separate incident in 2012, the State of Kansas filed a complaint alleging that Birmingham had violated K.S.A.2012 Supp. 21–6304(a)(1), which prohibits an individual with a person-felony conviction from possessing a firearm. On April 24, 2013, Birmingham pled guilty to possession of a firearm by a convicted felon under K.S.A.2012 Supp. 21–6304(a)(1). Before accepting the plea, the district court judge explained to Birmingham the legal consequences of entering a guilty plea. In addition, the judge provided Birmingham with the factual and legal basis for the criminal charge. After this explanation, the judge asked Birmingham if, based on those facts, he pled guilty to the crime charged. Birmingham responded, “Yes, Your Honor.”
Before sentencing, on June 28, 2013, Birmingham filed a motion to withdraw his plea, Birmingham claimed that under Knight, an attempt crime cannot sustain a conviction of criminal possession of a firearm. Birmingham argued that the district court lacked jurisdiction to convict him because it had predicated the conviction on his attempted aggravated-assault conviction, which he claimed was good cause to withdraw his plea. In its response to Birmingham's motion, the State argued that Birmingham incorrectly interpreted the holding of Knight because the case does not bar attempt crimes from predicating all convictions for criminal possession of a firearm.
On August 23, 2013, the district court considered Birmingham's motion to withdraw his plea. At the hearing, Birmingham's attorney explained that he had discovered Knight after Birmingham had entered his plea and that the case had prompted Birmingham to file a motion to withdraw his plea. The court denied the motion, finding Knight did not apply to Birmingham's conviction. On September 6, 2013, Birmingham was sentenced to 18 months of probation with an underlying 11–month prison sentence to be served if he did not successfully complete his probation. Birmingham has appealed to this court, arguing that his plea was not fairly or understandingly made and that the district court abused its discretion when it denied his motion to withdraw. Birmingham also claims that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court erred when it increased his conviction based on his prior criminal history.
Analysis
I. The District Court Did Not Abuse Its Discretion When It Denied Birmingham's Presentence Motion to Withdraw His Plea.
Before sentencing, a defendant may withdraw a guilty plea for good cause, and whether to allow withdrawal is within the discretion of the district court. K.S.A.2012 Supp. 22–3210(d)(1). Generally, Kansas courts consider the following three “ Edgar factors” to determine whether a defendant has shown good cause: “whether ‘(1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understandingly made.’ “ State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). A finding of good cause does not require all three Edgar factors to weigh in the defendant's favor and may include additional factors. State v. Macias–Medina, 293 Kan. 833, 837, 268 P.3d 1201(2012).
Under the third Edgar factor, a defendant has good cause to withdraw his or her plea if it was not fairly and understandingly made. Sec Edgar, 281 Kan. at 36. A defendant must enter into a plea knowingly and voluntarily and must understand the consequences of the plea. State v. Moses, 280 Kan. 939, 945–46, 127 P.3d 330 (2006). Evidence that the district court informed the defendant of the legal consequences of entering a plea and the specific constitutional rights he or she would waive by doing so will support a court's finding that a defendant's plea was fairly and understandingly made. State v. Lackey, 45 Kan.App.2d 257, 270–71, 246 P.3d 998, rev. denied 292 Kan. 968 (2011). A defendant's mere determination, in hindsight, that entering his or her plea was not the most intelligent course of action does not constitute good cause to withdraw a plea. State v. Schow, 287 Kan. 529, 542, 197 P.3d 825 (2008).
On appeal, the trial court's decision to deny a defendant's presentence motion to withdraw a guilty plea is reviewed for abuse of discretion, and the defendant bears the burden of establishing that an abuse occurred. State v. Garcia, 295 Kan. 53, 61, 283 P .3d 165 (2012). A court abuses its discretion if its action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). Barring factual or legal error, an appellate court will not disturb the district court's decision to deny a presentence motion to withdraw a plea unless it finds no reasonable person would agree with the decision of the district court. Lackey, 45 Kan.App.2d at 265–66.
Birmingham bases his arguments on the third Edgar factor, which examines whether a defendant fairly and understandingly entered a plea. He contends that his plea was not fairly made “due to [his] belief that the district court did not possess jurisdiction to ever convict” him. He contends that the plea was not understandingly made “due to [his] apparent lack of understanding of which subsection of the applicable statute was the subsection under which the district court convicted him.”
Birmingham's first argument relies on Knight. He contends that an attempt crime can't be used as a predicate crime for the purpose of making gun possession illegal. Thus, he argues, there was no basis for the charge against him (and no jurisdiction to try him on that charge).
Knight does not support Birmingham's argument. The provision of the criminal-possession statute at issue in Knight was K.S.A. 21–4204(a)(4)(A), which was later codified at K.S.A.2012 Supp. 21–6304(a)(3)(A). K.S.A.2012 Supp. 21–6304(a)(3)(A) prohibits possession of a weapon by persons convicted of specific felonies and provides an express list of the applicable crimes. In Knight, the court found that the defendant's prior conviction for attempted possession of cocaine could not serve as the predicate crime under subsection (a)(3)(A), even though possession of cocaine was on the enumerated list. Knight, 42 Kan.App.2d at 905–06. Applying principles of statutory interpretation, including the rule of lenity, the Knight court refused to include attempt versions of the crimes contained in the list when the language of the statute did not direct it to do so. 42 Kan.App.2d at 906–07. At most, Knight stands for the proposition that attempt crimes cannot serve as predicate crimes under K.S.A.2012 Supp. 21–6304(a)(3)(A).
In contrast, Birmingham was charged with and pled guilty to criminal possession of a firearm by a convicted felon under K.S.A.2012 Supp. 21–6304(a)(l). This statutory provision prohibits a person who has been convicted of a person felony from possessing a weapon. K.S.A.2012 Supp. 21–6304(a)(1). Birmingham's earlier conviction for attempted aggravated assault—a person felony—served as the predicate crime for his charge. Accordingly, Birmingham fairly entered his plea when he pled guilty to criminal possession of a firearm under K.S.A.2012 Supp. 21–6304(a)(1), and the district court acted within its discretion when it denied Birmingham's motion to withdraw his plea.
Birmingham also contends that he did not “understandingly” enter his guilty plea. He argues that his arguments based on Knight “demonstrate a lack of clear understanding of the criminal possession of a firearm statute and the crime to which he entered a guilty plea.” Accordingly, he argues that his plea should have been set aside.
This argument fails for two reasons. First, Birmingham did not make this argument in his Motion to Withdraw Guilty Plea and raises it for the first time on appeal. Second, Birmingham entered his plea before his attorney came across Knight.
At the plea hearing, the district judge properly informed Birmingham of the legal and factual basis for the State's charges against him and the constitutional rights waived by entry of a plea. Also at the hearing, Birmingham affirmed his understanding of his charge under K.S.A.2012 Supp. 21–6304: that his prior conviction of attempted aggravated assault prevented him from legally possessing a firearm under the criminal-possession statute because attempted aggravated assault is a person felony and individuals with prior person felonies are prohibited from legally possessing weapons. Birmingham cannot claim that his plea was not understandingly made simply because his attorney found additional (though inapplicable) caselaw after the plea was entered. See Schow, 287 Kan. at 542; Lackey, 45 Kan.App.2d at 270. The evidence in the record strongly suggests Birmingham fairly and understandingly entered his plea. We find no abuse of discretion in the district court's decision to deny Birmingham's motion to withdraw his plea.
II. The District Court Did Not Err by Sentencing Birmingham to an Increased Sentence Based on His Prior Criminal History Without Requiring It to Be Put Before a Jury and Proven Beyond a Reasonable Doubt.
Birmingham argues that the district court violated his Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey when it enhanced his sentence based on his prior criminal history without requiring the State to put these convictions before a jury and prove them beyond a reasonable doubt. “Whether a sentence is illegal is a question of law over which this court has unlimited review.” State v. Sims, 294 Kan. 821, 824, 280 P.3d 780 (2012).
The Kansas Supreme Court rejected an argument identical to Birmingham's in State v. Ivory, 273 Kan. 44, 45, 41 P.3d 781 (2002), and has since reaffirmed this position. See, e.g., State v. Peppers, 294 Kan. 377, 379, 276 P.3d 148 (2012). In his brief, Birmingham acknowledges that the Kansas Supreme Court decided this issue in Ivory but raises it to preserve the issue for federal review. As Birmingham recognizes, we are of course duty bound to follow Ivory. See State v. Jones, 44 Kan.App.2d 139, 143, 234 P.3d 31 (2010). We therefore find no error in the district court's use of sentencing guidelines, which factor in the defendant's prior convictions when determining the range of the potential sentence.
The district court's judgment is affirmed.