Opinion
No. 107,795.
2013-05-17
STATE of Kansas, Appellee, v. Mark A. BURRIS, Appellant.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Mark A. Burris appeals from the district court's ruling denying his motion to withdraw his pleas before sentencing on the grounds of mutual mistake regarding his criminal history score and application of a special sentencing rule. We affirm.
In May 2011, Burris entered a guilty plea to one count each of nonperson burglary and theft in exchange for the State's recommendation of the low number in the appropriate grid box, concurrent sentences, and that the presumption, believed to be probation, be followed. The agreement stated the State anticipated a criminal history of E. Following entry of the pleas, the presentence investigation (PSI) report was filed indicating Burris' criminal history was C. With a criminal history of C, the presumption was still probation. The PSI report also indicated a special rule was applicable. The special rule provided that when a defendant has prior burglary and theft convictions, the sentence “shall be presumed imprisonment” and “the defendant shall be sentenced to prison.” K.S.A.2010 Supp. 21–4704(p). Burris had a combined total of 13 prior burglary and theft convictions, all occurring in Sedgwick County. The most recent burglary conviction occurred in 2004.
Defense counsel filed a motion for a dispositional departure sentence. The motion, in part, set out that “all parties believed that this case was carrying a presumptive term of probation and have agreed to recommend the presumption be followed based on that belief .” The sentencing hearing was continued, however, after defense counsel asked for leave to file a motion to withdraw the plea based on mutual mistake regarding Burris' criminal history and application of the special rule. After clarifying that Burris was not objecting to any of his prior burglaries or theft convictions, the district court announced it was the court's opinion that K.S.A.2010 Supp. 21–4704(p) mandated a prison term with no discretion to grant a departure to probation.
Defense counsel apparently withdrew. Burris filed a pro se motion to withdraw his pleaa of guilty. In the motion, Burris applied the “ Edgar factors,” see State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006), and alleged: (1) he was not advised of the special rule mandating prison; (2) the State failed to provide him with his criminal history and the plea offer, requiring the State to follow the alleged presumption of probation, was a legal impossibility, which misled, coerced, mistreated, and took unfair advantage of him; and (3) the plea was not fairly and understandingly entered when a legal impossibility was offered as the inducement.
New counsel was appointed and filed a second motion to impose a departure sentence. The district court denied the motion.
At the hearing on Burris' motion to withdraw his pleas, his new counsel asserted that former counsel had not informed Burris of the possibility of the special rule and, had Burris been properly advised, he would not have entered the pleas. Counsel additionally claimed the State had not provided Burris with adequate criminal history information. But neither Burris nor his former counsel testified at the hearing. The State pointed out this lack of testimony when it argued Burris did not present any evidence to support his assertions and, furthermore, the PSI report prepared for his last burglary conviction in 2004 indicated he had a criminal history of C, and he was sent to prison at that time. Burris' counsel then asked if he could personally address the district court. The court stated it would not entertain Burris' arguments; however, he could be placed on the witness stand to make an evidentiary record. Counsel merely replied, “Okay. Nothing further .” The district court denied the motion to withdraw plea, ruling the pleas were voluntary and made with the understanding of the consequences regardless of any failure to advise Burris of special rules that might apply.
At sentencing, the district court imposed the low number on the sentencing grid for Burris' burglary and theft convictions and ordered the sentences to run concurrently—a controlling sentence of 11 months. Based on the special sentencing rule, the court found it had no discretion to grant Burris probation or consider his departure motion. According to the Kansas Adult Supervised Population Electronic Repository (KASPER), Burris was released from prison on March 14, 2012, and he is currently on postrelease supervision.
Burris timely appeals.
On appeal, Burris argues it was clear the parties did not realize the special rule would apply to him and the district court found he probably did not understand the rule “at a personal level.” Furthermore, Burris discounts the district court's conclusion that there are nuances in criminal sentencing that the parties cannot anticipate by arguing the rule at issue was fairly straightforward and directly applicable to a defendant with prior burglary convictions. For his last point, Burris suggests the court's comment that it had advised him at the plea hearing there were circumstances that still allowed a judge to impose a prison sentence implied some discretion; but at the sentencing hearing, the district court ruled it had no option but to impose the prison sentence.
The State contends Burris' arguments fail because he did not present any evidence to show he had not been informed of the existence and/or operation of the special rule. As to whether his pleas were understandingly made, the State maintains the record shows the district court went through the waiver of rights, nature of the charges, the sentencing guidelines, and reviewed the terms and conditions of Burris' plea agreement. The State further points out the court clearly informed Burris that the sentencing court was not bound by the plea agreement and there were some circumstances under which the court could impose prison regardless of whether the sentence was presumptive probation.
“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.” K.S.A.2010 Supp. 22–3210(d)(1). On appeal a defendant must establish that the district court abused its sound discretion in denying the motion to withdraw plea. State v. Macias–Medina, 293 Kan. 833, 836, 268 P.3d 1201 (2012). Judicial discretion is abused if judicial action: (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the district court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594(2012).
In considering whether the requisite good cause has been shown, Kansas courts consider the three Edgar factors: “(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.” Macias–Medina, 293 Kan. at 837. While these factors are “Viable benchmarks for judicial discretion,' “ the Supreme Court has made clear 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).
The essence of Burris' argument is that the parties failed to recognize the applicability of the special rule in his case that appeared to mandate prison and, therefore, he did not receive the benefit of his agreement—a presumption of probation—which supplies good cause to allow him to withdraw his pleas. This is similar to the situation in State v. Schow, 287 Kan. 529, 197 P.3d 825 (2008), where the parties believed the defendant's criminal history score would allow for probation. The defendant filed a motion to withdraw his plea when his PSI report showed a higher than expected criminal history score because prior person misdemeanors were aggregated and scored as a person felony. The Supreme Court reversed the denial of the defendant's motion to withdraw plea because the district court applied an incorrect legal standard and failed to consider the Edgar factors in its determination of good cause to withdraw a plea. The Supreme Court found a defendant could not meet the burden of showing good cause by merely claiming mutual mistake; however, “[w]here a defendant has pled guilty pursuant to a plea agreement which was based upon a mutual mistake as to defendant's criminal history score, the district court may consider the circumstances giving rise to the mutual mistake to the extent they may implicate the factors applicable to the existence of good cause to withdraw a plea.” 287 Kan. at 546.
Burris cites this standard regarding mutual mistake as quoted in State v. Garcia, 295 Kan. 53, 283 P.3d 165 (2012), claiming that case addressed a similar issue. But Garcia is distinguishable. In that case, the district court cited a case that had been overruled by Schow and, consequently, it appeared the district court abused its discretion by applying the wrong legal standard. The Supreme Court remanded the case for reconsideration under the proper standard. 295 Kan. at 63–64.
Burris does not allege the district court applied an incorrect legal standard or failed to consider the Edgar factors. The district court considered the circumstances that gave rise to the mistake regarding application of the special rule when it recognized that “the State has some obligation to provide counsel with criminal history information. But when criminal history is available in accessible court records, there's some obligation of the defense counsel likewise to follow-up on that.” The court noted Burris had a criminal history in Sedgwick County District Court and, in case No. 04CR25, a PSI report had been completed and Burris was sentenced for a burglary conviction. The court concluded there was no requirement to anticipate every possible nuance in the guidelines and, in part to address that, the court had made certain that Burris understood, notwithstanding the apparent presumption of probation, there were some circumstances where the court could still impose a prison sentence. At the plea hearing Burris stated he understood.
Furthermore, at the hearing to withdraw plea, defense counsel made statements that suggested probation might have been a consideration in Burris' case, despite the special rule, but for the sentencing judge's belief the special rule mandated imprisonment. Counsel admitted there was not a general consensus among the judges in Sedgwick County regarding whether K.S.A.2010 Supp. 21–4704(p) mandated prison, adding, “I know it's the position of the DA's Office that when there are priors, it is not presumptive imprison, but that the Court can grant probation.” Counsel continued by stating the judge who would be sentencing Burris “does not agree with the defense or the State's position that it should be probation .” As the State points out on appeal, there are conflicting Court of Appeals' decisions on this very issue. See State v. Howard, No. 106,304, 2012 WL 4121114, at *1–2 (Kan.App.2012) (unpublished opinion) (K.S.A.2010 Supp. 21–4704(p) merely creates a presumption of imprisonment), petition for review filed October 12, 2012; State v. Upton, Nos. 106,230, 106,321, 2012 WL 3289970, at *2 (Kan.App.2012) (unpublished opinion) (K.S.A 2010 Supp. 21–4704(p) clearly mandates imprisonment), petition for review filed September 10, 2012.
Regarding the last Edgar factor—whether the pleas were fairly and understandingly made—the district court found this factor was clearly supported by a review of the plea hearing transcript. The court noted Burris was specifically informed that the sentencing court was not bound by the plea agreement. He was informed that both counts carried a potential of 5 to 17 months in prison, and the sentencing court could impose consecutive sentences. The court pointed out that at the plea hearing, the court had asked Burris if counsel had gone over his criminal history and the sentencing guidelines grid and that it was vitally important he make a full disclosure of his criminal history because it could affect his sentence in terms of expectations and, more importantly, defense counsel would not have the information needed to advise him. Burris acknowledged he understood each of these points.
Arguably the district court found Burris' counsel somewhat at fault for not discovering Burris' complete criminal history and, although the court appeared to suggest Burris had some knowledge of the effect of his criminal history score in light of his prior burglary convictions, the court found he probably did not understand that a special rule applied. These considerations could have provided good cause to withdraw the plea. But Burris has failed to show that no reasonable person would agree with the district court's decision. At least one panel of this court has found a court's failure to inform a defendant of a special rule, standing alone, was insufficient grounds to withdraw a plea. See State v. Decker, No. 103,276, 2011 WL 3795235, at *6 (Kan.App.2011) (unpublished opinion) (remanding because the district court failed to follow statutory requirements when accepting the plea but stating: “The fact that [defendant] was not informed of the special rule is actually of little importance when his case is reviewed in the broader light that he was not even informed of the maximum possible sentence he could receive for his conviction.”).
Finally, although it does not change the analysis, at sentencing the State argued—and Burris agreed—that it was no longer bound to follow the plea agreement because Burris was charged with the commission of a new offense while out on bond and after entering the pleas. See State v. Marshall, 21 Kan.App.2d 332, 337, 899 P.2d 1068,rev. denied 258 Kan. 861 (1995); State v. Richmond, 21 Kan.App.2d 126, 132, 896 P.2d 1112 (1995) (State may be relieved of its obligation to abide by the plea agreement if, after entry of the plea and before sentencing, the defendant commits a new crime). Nevertheless, except for refusing to place Burris on probation, the sentencing court followed the plea agreement by imposing the low number in the appropriate grid box and ordering the sentences to run concurrently.
Affirmed.