Opinion
110,875.
11-21-2014
STATE of Kansas, Appellee, v. Chet W. BROWN, Appellant.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Jason A. Oropeza, assistant county attorney, Elizabeth H. Sweeney–Reeder, county attorney, and Derek Schmidt, attorney general, for appellee.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.
Jason A. Oropeza, assistant county attorney, Elizabeth H. Sweeney–Reeder, county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ARNOLD–BURGER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is Chet Brown's direct appeal of the district court's denial of his presentencing motion to withdraw his guilty plea to several charges.
Based on the record presented to us, it is clear the district court did not abuse its discretion in denying Brown's motion.
Brown fails to satisfy any of the three factors of State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006), necessary to justify the withdrawal of a plea of guilty before sentencing. Those factors are (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. 281 Kan. at 36. Consequently, as to the district court's ruling on the motion to withdraw Brown's plea, we must affirm the district court.
Brown also makes the continuing argument that the district court erred by using his criminal history to increase his sentences without proving the prior convictions to a jury. Brown recognizes our Supreme Court rejected this argument years ago in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), and has continued to uphold that ruling. He raises the issue here merely to exhaust his state remedies and preserve the issue for federal review.
Factual Background and Legal Proceedings
On November 9, 2012, Chet Brown committed a traffic violation in the presence of a police officer, who then began to follow him. Brown did not yield for the police in the marked car with their lights on, but instead drove in a reckless manner. He continued to drive recklessly, eventually hitting another car, injuring the occupants, one of which sustained a broken pelvis. After the police had stopped Brown, a search of his car yielded marijuana and oxycodone, for which Brown did not have a prescription. Brown had one prior conviction of marijuana possession.
Brown was charged with possession of marijuana, possession of oxycodone, fleeing or attempting to elude a law enforcement officer, possession of drug paraphernalia, and driving with a suspended driver's license. He was also charged with aggravated battery in a separate case with the charges later amended to one count of reckless aggravated battery. The two cases were later consolidated.
Brown entered into plea negotiations with the State. There were two offers made—the first called for 70 months' imprisonment, which was rejected, and the second called for a controlling sentence of 59 months, which was accepted. Pursuant to the plea agreement, Brown would plead guilty to possession of marijuana with one prior conviction, possession of oxycodone, felony flee or attempt to elude a law enforcement officer, and reckless aggravated battery, all sentences to run consecutively. However, both parties would recommend the low box of the grid and a pending motion to revoke probation would be withdrawn. The plea agreement also called for no fines to be assessed, but restitution would be paid.
On March 7, 2013, Brown entered guilty pleas pursuant to the terms of the plea agreement. At this hearing, Brown answered that he was satisfied with the representation of his counsel and that no one had threatened or promised him anything in order to induce him to enter his plea and that it was voluntarily made. His written plea agreement, signed by Brown, also indicated that his counsel had done a good job representing him, and that he was satisfied with her representation, and that he was not threatened or promised anything outside of his plea agreement in order to induce his plea.
Prior to sentencing, Brown moved to withdraw his plea. In his motion to withdraw his plea, Brown asserted that he was unaware of the consequences of entering a plea, and that he was unable to review the discovery in his case, specifically DVDs and dispatcher recordings, and this prevented him from understanding his plea.
At the evidentiary hearing on Brown's motion, Brown stated that he understood that if he withdrew his plea, he could potentially be subject to a sentence of 237 months while his plea agreement called for a controlling sentence of 59 months. Brown testified that his previous attorney, Mary Stephenson, had gotten written discovery to him quickly, but that he did not read the discovery until after he had pled guilty because he was too distraught over the thought of injuring someone in the crash. He also testified that he did not watch the DVDs contained in his discovery because he was unaware that he could view them and that he entered his plea because he believed that he would not be offered another deal. He then testified that part of the reason he wished to withdraw his plea was based upon conversations he had with an inmate while incarcerated awaiting sentencing, that he did not believe the police had probable cause to pursue him.
Brown testified further that he felt coerced into taking his plea agreement because Stephenson told him that he would be crazy to think he would not get at least 136 months for the level 5 aggravated assault he was charged with if the case was taken to the jury and that the offer of 70 months was a good deal. A few days later an offer of 59 months was made and Brown understood that was the best and final offer. Brown also stated that although his plea agreement said that he was satisfied with his representation, and he confirmed as much at his plea hearing, but he actually was not.
Stephenson testified as to the negotiations she had with the State. Originally, the State offered 70 months as a controlling sentence, which Stephenson believed to be the best deal Brown could get. Brown rejected that and requested 42 months, which the State countered with 59 months. Brown instructed Stephenson to request 46 months. The State refused and further said if Brown was convicted, the State would request consecutive sentences and ask that Brown serve the underlying sentence for which he was on probation.
Stephenson testified that she discussed all of this with Brown as well as the facts of his case. She also provided him with the written discovery and discussed it with him. She had viewed the police videos and did not feel that they were any different than what was represented in the written police reports. She also testified that based upon her training and experience, she did not feel that any motion to suppress would be successful as the video clearly showed Brown rolling through a stop sign, after which the police began to pursue him. He then proceeded to run through three more stop signs before striking the other vehicle. She further testified that she discussed with Brown that if he had pulled over immediately after rolling through the first stop sign, they may be able to suppress the found drugs, but that given the facts of his case, a suppression motion was futile.
She also testified that she did not coerce Brown to accept a plea, but she told him what she tells all her clients—that she was not there to tell them what they want to hear, but what they need to hear. She wanted him to understand the consequences of his decision and that if they proceeded to trial, the judge would be able to see the injured witnesses and hear about their injuries, which could impact his sentence. On cross-examination, she stated that she could not remember if she told Brown that he would be crazy to not accept the deal, but that she may have. She also testified that she got the written discovery to him within a couple of weeks and there was not anything in the videos that was not represented in the written reports. She had met with Brown at least five times and had discussed just the incident itself the first couple of meetings.
At the conclusion of this hearing, the district court denied Brown's motion. Brown was sentenced to a controlling sentence of 59 months pursuant to the plea agreement. Brown has appealed.
Analysis of Appellate Issues
The motion to withdraw the pleas was correctly decided.
Brown first claims the district court erred in denying his presentencing motion to withdraw his plea. Pursuant to K.S.A.2013 Supp. 22–3210(d)(1) a defendant may withdraw a guilty plea “for good cause shown and within the discretion of the court....” When reviewing the denial of a motion to withdraw a plea prior to sentencing, we review under an abuse of discretion standard of review as appellate courts “will not disturb a district court's decision to deny a presentence motion to withdraw a plea unless the defendant demonstrates the district court abused its discretion” with the defendant bearing the burden to show such abuse. State v. Plotner, 290 Kan. 774, 777, 235 P.3d 417 (2010). Appellate courts do not reweigh evidence or assess witness credibility, but instead give deference to the trial court's findings of fact. State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011). A district court abuses its discretion if the action taken is arbitrary, fanciful, or unreasonable; is based upon an error of law; or is based upon an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). Further, a district court's decision will not be reversed as an abuse of discretion unless no reasonable person would agree with the decision of the district court. Anderson, 291 Kan. at 855.
The three Edgar factors were previously set forth and Brown contends that all three were violated. He is not correct.
Brown's first argument is that his counsel was incompetent and deficient in not showing him the DVDs as part of his discovery. He said at his hearing had he been shown the videos, he would not have pled because of a lack of probable cause to pursue him originally. There is no merit in this contention.
Stephenson did not show Brown the DVDs and admitted she had not done so. However, Stephenson did provide Brown with his written discovery in a timely manner and discussed the DVDs with Brown, informing him there was nothing in the DVDs that were not in the police report. Stephenson also discussed with Brown her opinion that a suppression motion would not be granted in this case, laying out her opinion that such a motion would not be successful under the facts in his case. Brown's opinion that a suppression motion should have been filed and would have been successful came from the opinions of other inmates that he was incarcerated with while awaiting sentencing. Brown did not read the discovery he was furnished or even become interested in viewing the DVDs until well after his plea had been entered.
In ruling against Brown at the motion hearing, the district court stated:
“The evidence that I heard today was that, although Mr. Brown may not have been personally shown each and every article of evidence or information that was obtained by Ms. Stephenson, that she did consider those matters, she applied her training and experience and developed opinions and had general discussions with the Defendant. Defendant seems to offer some advice or discussions that he may have received from others incarcerated with him. There's nothing to indicate that there's any foundation for Mr. Brown believing that that advice apparently obtained during his incarceration would have any basis whatsoever. It may be things that he wanted to hear. It may be things that he wanted to believe. But just because he hears it and he wants to believe it does not make it so. That in itself does not sustain the burden of proof demonstrating that Ms. Stephenson's competence was in question.”
Based upon the record and testimony of the parties, it is clear that no reasonable person would disagree/agree with the district court. The court did not abuse its discretion as to the first factor.
Brown next contends he was misled, coerced, and unfairly taken advantage of, the second Edgar factor. Brown claims the plea negotiations resulted in him being coerced and unfairly taken advantage of where a 70–month sentence was recommended by counsel as a sweet deal, but a few days later he was offered 59 months and told absolutely that the district attorney would not offer anything better.
Stephenson denied making any threats to Brown but testified that there would be consequences at a trial and the judge had the opportunity to see the alleged victims and all the injuries that they suffered. She also admitted that she did not remember if she told Brown it would be crazy not to take the plea offer but it was possible that she did.
Brown's claim that he was coerced because Stephenson misrepresented that with a criminal history of A, the penalty for a level 5 aggravated burglary conviction under K.S.A.2012 Supp. 21–6804 could exceed 136 months. Actually, 136 months is the high figure in the applicable grid box, but if Brown had been convicted of numerous other charges, the sentences, if run consecutively, would have been much longer. This single representation by Brown's counsel was made during the plea negotiations which was continued, resulting in the eventual 59–month sentence under all the facts and circumstances, and was certainly to Brown's advantage.
Brown's final argument is that under the third Edgar factor, his plea was not understandably made because he was not shown the DVDs and he did not review the discovery given to him until after he had entered his plea.
It is true that while Stephenson did not show Brown the DVDs, she did discuss their contents with Brown and the written discovery furnished to him had the same information. There was clearly adequate discussion of all the factual information. In addition, there is the fact Brown voluntarily did not read or review the discovery he was furnished.
Brown testified at the plea hearing that he understood the agreement, it was made voluntarily, and he was clearly aware of the implications of the plea and everything about the overall case.
The district court did not abuse its discretion in finding that Brown has failed to carry his burden to show that his plea was not understandably made.
The district court's denial of Brown's motion to withdraw his plea as tested under the Edgar factors clearly shows the court did not abuse its discretion and correctly denied Brown's motion.
As we have earlier stated, State v. Ivory remains the controlling decision in Kansas and Brown's constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), were not violated.
Affirmed.