Opinion
No. 107,724.
2013-01-11
STATE of Kansas, Appellee, v. Newton D. BROWN, Appellant.
Appeal from Logan District Court; Glenn D. Schiffner, Judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Appeal from Logan District Court; Glenn D. Schiffner, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
LEBEN, J.
Newton Brown appeals the district court's denial of his motion to withdraw his guilty pleas to four felony counts of sexual offenses against children. The district court has the discretion to allow plea withdrawal before sentencing for good cause, and Brown contends that he demonstrated good cause by showing that his attorney had provided “lackluster advocacy.”
But we review the district court's denial of a motion to withdraw plea for abuse of discretion, State v. Bricker, 292 Kan. 239, 244, 252 P.3d 118 (2011), and that occurs only when the district court based its decision on an error of fact or law or when its decision is so unreasonable that no reasonable person would agree with it. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012). Here, even if Brown's attorney failed to do everything he might have done before Brown entered his guilty pleas, a reasonable person could find that Brown had been well served by his attorney: The plea agreement allowed Brown to avoid a possible life sentence, and Brown agreed at the plea hearing that he had no complaints about his attorney's work in the case. We therefore find no error in the district court's denial of Brown's motion.
Factual Background
Brown was initially charged in October 2010 with 11 felony counts, including four counts of rape of a child under age 14, for incidents involving four of his stepchildren alleged to have taken place between August 2006 and August 2009. Besides the rape charges, there were five counts of aggravated indecent liberties with a child, one count of attempted rape, and one count of lewd and lascivious behavior.
The four children and their mother—who was married to Brown from 2005 to 2010—testified at a preliminary hearing in December 2010. At that time, the children were 15, 13, 11, and 10 years old. Based on their testimony, the State amended the charges to two counts of rape, eight counts of aggravated indecent liberties with a child, and one count of lewd and lascivious behavior.
Brown and his court-appointed counsel engaged in plea negotiations with the State, and the two sides reached a plea agreement in February 2011. The State agreed to reduce the eleven counts to four: one count of rape, one count of aggravated indecent liberties with a child, and two counts of aggravated indecent solicitation of a child. Brown pled guilty to those four charges.
At the plea hearing, before the court accepted Brown's guilty pleas, Brown told the court that he had visited at length with his attorney about the plea agreement and about the charges against him; that he had discussed the strengths and weaknesses of his case, as well as potential defenses, with his attorney; that he had visited with his family about whether to make the plea agreement; and that he was satisfied with the services his attorney had provided.
Before sentencing, a new attorney for Brown asked to withdraw the guilty pleas based on the allegation that Brown's former attorney had provided “lackluster” advocacy—failing to hire an investigator, failing to hire an expert on child-witness interview techniques, failing to issue subpoenas or file pretrial motions, and failing to have enough contact directly with Brown. The district court denied the motion. The court then sentenced Brown to 165 months in prison for rape, 61 months in prison for aggravated indecent liberties, and 34 months in prison for each of the aggravated-indecent-solicitation charges. The district court made the two 34–month sentences consecutive to the 165–month sentence and made the 61–month sentence concurrent, giving Brown a controlling sentence of 233 months. That sentence length had been recommended by the parties in their plea agreement.
Brown has appealed to this court, contending that the district court should have allowed him to withdraw his guilty pleas.
Analysis
A plea may be withdrawn before sentencing “for good cause shown and within the discretion of the court.” K.S.A.2011 Supp. 22–3210(d)(1). A plea may be set aside for ineffective assistance of counsel if the defendant proves that (1) the attorney's work fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for the attorney's errors, the defendant would not have pled guilty and would have insisted on going to trial. Wilkinson v. State, 40 Kan.App.2d 741, Syl. ¶ 1, 195 P.3d 278 (2008), rev. denied 289 Kan. 1286 (2009). Moreover, in exercising its discretion in determining whether to allow plea withdrawal, the district court should consider (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. Macias–Medina, 293 Kan. 833, 837, 268 P.3d 1201 (2012).
The Kansas Supreme Court has said that “[m]ere[ ] lackluster advocacy” may be sufficient to provide good cause for presentence withdrawal of a plea. State v. Aguilar, 290 Kan. 506, 513, 231 P.3d 563 (2010). In Aguilar, however, the defendant's attorney had an insurmountable conflict of interest, which led to the reversal of the district court's denial of plea withdrawal. In Brown's case, his attorney didn't have any conflicts of interest; Brown simply alleges that his attorney didn't do enough to adequately represent and advise him before Brown entered his plea.
Specifically, Brown argues he was inadequately represented because (1) his attorney failed to conduct an independent investigation when funding was available to do so and failed to develop a defense strategy; (2) his attorney failed to issue subpoenas or file pretrial motions; and (3) his attorney had little contact with Brown while Brown was in jail and failed to provide access to the discovery for Brown to review. The State counters that Brown's attorney successfully negotiated a “very beneficial” plea agreement that resulted in the number of counts against Brown being reduced from 11 to 4. In addition, Brown originally faced the possibility of a life sentence. In accordance with the plea agreement, however, Brown was granted a downward departure to the guidelines sentence and was sentenced to a total prison term of 233 months. The court noted that Brown “must have been represented very aggressively in order to have those many life sentences reduced down to what the plea agreement was.” On this basis, the district court denied Brown's motion to withdraw plea.
K.S.A.2011 Supp. 22–3210(d)(1) clearly makes the decision whether to allow plea withdrawal a discretionary call for the district court. While lackluster advocacy may justify the granting of such a motion, the decision remains a discretionary call in the absence of something like the court confronted in Aguilar—where the defense attorney had an actual conflict of interest that limited his or her ability to represent the defendant. We find nothing unreasonable about the district court's discretionary call in Brown's case.
Brown and his attorney chose to negotiate a favorable plea agreement rather than expose Brown to the potential of a lifetime prison sentence. Brown agreed at the plea hearing that his attorney's work had been satisfactory and that Brown understood the choice he was making. These considerations support upholding the pleas—the defendant wasn't coerced, misled, or taken advantage of, and the pleas were fairly and understandingly made. See Macias–Medina, 293 Kan. at 837, 268 P.3d 1201.
Brown has not shown that the district court's decision depended upon any factual or legal error. Nor has he shown that the district court abused its discretion by making a decision that no reasonable person would agree with. In sum, Brown has not shown that the district court abused its discretion.
The district court's judgment is therefore affirmed.