Opinion
Nos. 205,159 105,163 105,162 105,161 105,160.
2012-10-26
STATE of Kansas, Appellee, v. Charles Adair BURNETT, Appellant.
Appeal from Atchison District Court; Martin J. Asher, Judge. John R. Kurth, of Kurth Law Office Incorporated, P.A., of Atchison, for appellant. Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Atchison District Court; Martin J. Asher, Judge.
John R. Kurth, of Kurth Law Office Incorporated, P.A., of Atchison, for appellant. Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Charles Adair Burnett pleaded no contest to four counts of theft, two counts of forgery, two counts of computer crime, possession of marijuana, possession of drug paraphernalia, and attempted forgery. In exchange for Burnett's no contest pleas, the State agreed to dismiss the remaining counts. Before sentencing, Burnett filed a pro se motion to withdraw his pleas. The trial court denied Burnett's motion after it found that he did not show good cause to withdraw his pleas. Burnett now appeals from his convictions. On appeal, Burnett argues that the trial court erred when it denied his motion to withdraw his no contest pleas before sentencing. We disagree. Accordingly, we affirm the trial court's ruling. Facts
On July 23, 2010, Burnett pleaded no contest to several counts in six different criminal cases. In exchange for Burnett's no contest pleas, the State agreed to dismiss the remainder of Burnett's charges.
Before Burnett entered his pleas, the trial court went through the standard colloquy with Burnett where it advised him of the consequences of entering the pleas. Burnett stated that he understood those rights and reaffirmed his desire to plead no contest in each case. The trial court accepted Burnett's no contest pleas, found him guilty, dismissed the remaining counts, and set his case for sentencing.
Before sentencing, Burnett filed a pro se motion to withdraw his no contest pleas. On August 23, 2010, the trial court conducted an evidentiary hearing for Burnett's motion. At the hearing, Burnett testified that he wanted to withdraw his pleas because he entered a “blind plea,” and because he thought that he would have received a personal recognizance (p.r.) bond if he pleaded no contest. In other words, Burnett testified that he should be allowed to withdraw his pleas because they were not understandingly made. Specifically, Burnett stated the following:
“Well when I first came up here to the Court, we were discussing the fact that we already had four status hearings. And the Judge, I believe, was wanting us to get prepared for preliminary hearing if we didn't come up with some agreement. We came up here on the 07/23 to discuss what was going to happen. And there was a blind plea where my attorney and I had no knowledge, that basically I was going to enter into a plea on that day and, if so, I didn't know anything what the Judge had told me about some special rulings.... And when I got here, I was being charged with six thefts when I didn't steal anything. And so I asked my lawyer, after we left here, what's going on and a blind plea. Basically, it was a blind plea.”
After listening to Burnett's testimony, the testimony of the other witness, and the arguments of both parties, the trial court denied Burnett's motion to withdraw his no contest pleas.
After the trial court denied Burnett's motion, he filed another motion to withdraw pleas based on newly discovered evidence. In his second motion, Burnett argued that he showed good cause to withdraw his plea because the State failed to comply with the terms of the plea agreement. Burnett maintained that the State had promised him that he was going to receive a p.r. bond, which would have allowed him to be released from jail pending sentencing. To support his argument, Burnett introduced a proposed agreement between his former defense counsel and the State.
During his testimony, Burnett argued that the proposed agreement showed that the State had agreed to follow his defense counsel's recommendation of a p.r. bond. The trial court disagreed. The trial court first noted that the proposed agreement did not constitute newly discovered evidence because Burnett knew it existed when he filed his first motion to withdraw plea. Then, the trial court noted that the signature lines on the proposed agreement were blank, which indicated that the parties had failed to reach an agreement under that document. The trial court then denied Burnett's second motion to withdraw his no contest pleas. Did the Trial Court Err in Denying Burnett's Motion to Withdraw His No Contest Plea?
On appeal, Burnett argues that the trial court erred in denying his motion to withdraw his no contest pleas. Specifically, Burnett maintains that he showed good cause to withdraw his pleas. Burnett states that he “was coerced into entering this ‘blind plea’ by his then attorney. There had been no discussions of the plea he entered into until the hearing held on July 23, 2010.” Moreover, Burnett seems to maintain that his pleas were not understandingly made because his counsel did not inform him about the applicable “special rules” before he entered his pleas. Conversely, the State argues that Burnett failed to meet his burden to show that the trial court abused its discretion when it denied his motion to withdraw his pleas. In particular, the State declares “there was no evidence, other than [Burnett's] word to indicate that there was an agreement for a signature bond pending sentencing.... Additionally the record would indicate that [Burnett] understood what he was doing and was entering the plea of his own free will.”
Whether a defendant's plea may be withdrawn is controlled by statute. Under K.S.A. 22–3210(d) “a plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.” On appeal, the defendant must establish that the trial court abused its sound discretion in denying the motion to withdraw plea. State v. White, 289 Kan. 279, 284–85, 211 P.3d 805 (2009). “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. [Citation omitted.]” State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
Historically, our Supreme Court has focused on three factors when determining if a defendant has demonstrated “good cause” to withdraw his or her plea under K.S.A. 22–3210(d). These factors read as follows: (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. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010). Our Supreme Court has now clarified that “these factors are ‘viable benchmarks for judicial discretion,’ but that ‘[a]ll of the ... factors need not apply in defendant's favor in every case, and other factors may be duly considered in the district judge's discretionary decision on the existence or nonexistence of good cause.’ [Citation omitted.]” State v. Denmark–Wagner, 292 Kan. 870, 875–76, 258 P.3d 960 (2011). Therefore, the only question for us to determine is the following: Did Burnett present sufficient factors to show good cause to withdraw his no contest plea?
Because Burnett filed his motion to withdraw before sentencing, he is required to show good cause before he may withdraw his pleas. Burnett does not argue that he was represented by incompetent counsel. Instead, Burnett contends that he showed good cause to withdraw his pleas because he was coerced and because his pleas were not understandingly made. Burnett maintains that his pleas were not understandingly made because he thought that he would be released from custody under a p.r. bond in exchange for his pleas. In addition, Burnett argues that his pleas were not understandingly made because they constituted a “blind plea,” i.e., a plea offer that was given to him when he appeared in court.
In other words, Burnett cites two reasons why he sought to withdraw his pleas: (1) he thought he was going to get out of jail; and (2) he did not have enough time to understand the plea offer because he did not receive it until he appeared in court. Burnett has failed to meet his burden to show that the trial court abused its discretion when it did not allow him to withdraw his pleas. During the plea hearing, the trial court went through the standard colloquy with Burnett, where it informed him of his rights and asked him repeatedly if he had any questions about his rights. During the colloquy, the trial court expressly told Burnett that a special rule could apply in his case. The following exchange occurred between Burnett and the court:
“[THE COURT]: These various sentences can be ran together or they can be ran consecutive to one another. It's possible, I don't know the chronology here, that you may be subject to a special rule, that some of these may have been occurred while you were on felony bond, if so, then there's a special rule that applies that would allow the Court to send you to prison even though it may fall into presumptive probation, do you understand all that?
“[DEFENDANT BURNETT]: Yes, sir.
“[THE COURT]: Has anyone forced you in any way to enter these pleas?
“[DEFENDANT BURNETT]: No, sir.
“[THE COURT]: Has anyone made any promises or threats to you to get you to enter these pleas?
“[DEFENDANT BURNETT]: No, sir.
“[THE COURT]: Are you doing this voluntarily?
“[DEFENDANT BURNETT]: Yes, sir.
“[THE COURT]: Are you under the influence of any kind of medication or drug today?
“[DEFENDANT BURNETT]: No, sir.
“[THE COURT]: Is there anything else the Court needs to be aware of that would affect your ability to understand what is taking place today?
“[DEFENDANT BURNETT]: No, sir.
“[THE COURT]: [Defense counsel] appears with you today. Have you had enough time to visit with him about these cases?
“[DEFENDANT BURNETT]: Yes, sir.”
This exchange between Burnett and the trial court supports the conclusion that Burnett's pleas were fairly and understandingly made. Although the trial court did not expressly state that the special rules applied to Burnett, it gave him detailed information about what would happen to him if the special rules did apply. Moreover, a review of the record shows that Burnett was never promised that he would get out of jail if he entered a guilty or no contest plea. The counsel that represented Burnett at his plea hearing testified at Burnett's plea withdrawal hearing. Burnett's defense counsel stated that there was no promise by anyone that Burnett was going to get a p.r. bond. Specifically, Burnett's defense counsel stated the following: “I told [Burnett that a p.r. bond] was very much an option, but he needed to be aware of the fact it might not happen either.” Indeed, the State had promised only that it would not argue against a p.r. bond at the plea hearing. Finally, our court recently held that a defendant failed to show good cause to withdraw his plea under similar circumstances. See State v. Barrera, No. 106,260, 2012 WL 1658814 (Kan.App.2012) (unpublished opinion) (although defendant mistakenly believed he would be released from custody if he entered a plea, defendant failed to show good cause to withdraw plea because no facts suggested that his plea was not fairly and understandingly made). The Barrera court's reasoning is persuasive. Consequently, Burnett has failed to show that his failure to receive a p.r. bond constitutes good cause to withdraw his plea.
A similar analysis applies to Burnett's other argument—that his plea was either coerced or not understandingly made because it was a blind plea. Although the final version of the plea agreement was not presented to Burnett until he arrived in court, there was evidence in the record to show that Burnett's counsel and the State conducted multiple rounds of negotiations before they were able to reach an agreement. Each time, Burnett's counsel informed him about the details of the State's offers and counteroffers. The trial court made an express reference to those negotiations when it ruled on Burnett's first plea withdrawal motion. The trial court stated:
“I would note from the testimony that there was a series of back and forth shuttle negotiations between Mr. Burnett's attorney and the county attorney on the day the plea was taken. The plea was taken on July 23, which was a Friday. We had our normal docket in the morning. The plea did not happen then. It happened some time later in the afternoon. I think the parties had been negotiating throughout the day. [Defense counsel] had testified that he been down at the jail a couple times to talk to Mr. Burnett. So this was not a plea that came up real sudden.... I would further note the plea itself took quite a while. I wish I would have watched a clock when we started the tape. We replayed it here this afternoon. It took quite awhile. So even once we started the actual process, the Court couldn't take the plea real quickly because of the number cases and the number of charges. Again, it took some time.”
Moreover, the trial court expressly asked Burnett if he had enough time to discuss the plea with his counsel. Burnett then responded, “Yes, sir.” Thus, Burnett has failed to show that he was coerced or did not understand the terms of the plea agreement when he entered his pleas. Consequently, Burnett has failed to show good cause to withdraw his no contest pleas.
Based on the record, the trial court did not abuse its discretion in refusing to permit withdrawal of Burnett's no contest plea. Burnett has failed to meet his burden to show that the trial court's ruling was arbitrary, fanciful, or unreasonable. Moreover, reasonable persons could differ as to the propriety of the action taken by the trial court. Consequently, Burnett's appeal fails and we affirm the trial court.
Affirmed.