Opinion
No. 107,279.
2013-03-15
STATE of Kansas, Appellee, v. Scott D. CARROLL, Appellant.
Appeal from Crawford District Court; Donald R. Noland, Judge. Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Crawford District Court; Donald R. Noland, Judge.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Scott D. Carroll appeals the denial of his postsentencing motion to withdraw his no contest plea to a charge of aggravated indecent liberties with a child, an off-grid person felony. Carroll alleges the district court erred in summarily denying his motion and failing to hold an evidentiary hearing based upon his assertion that his attorney promised he would receive probation following his plea. But Carroll fails to point to any evidence in the record that would support his allegation. To the contrary, the evidence in the record conclusively shows that Carroll is not entitled to relief; thus, the district court did not err in summarily denying his motion.
Facts
Carroll was charged in Crawford County District Court with one count of aggravated indecent liberties with a child, an off-grid felony, and one count of aggravated solicitation of a child, a severity level 7 felony. The complaint identified 11–year–old S.S. as the victim in both counts. Carroll was 24 years old.
During the preliminary hearing, S.S.'s mother testified that although S.S. did not immediately report the incident, she told her mother several weeks later. Police were contacted and they interviewed S.S. She initially denied any touching took place but admitted Carroll had asked to have sex with her. When Carroll was questioned by law enforcement, he admitted he observed another man fondle S.S. but asserted that he was not involved. After further questioning, Carroll admitted he touched S.S.'s breasts and vagina outside of her clothing; Carroll also gave police a written statement describing his actions. Thereafter, S.S. confirmed that Carroll touched her breasts and vagina on the outside of her clothing and asked her to have sexual intercourse with him.
Shortly after the preliminary hearing, Carroll executed a detailed plea agreement with the State to an amended charge of aggravated indecent liberties with a child, a severity level 3 person felony. In exchange, the State agreed to dismiss the original charges and to recommend a downward durational departure to 180 months' incarceration.
The matter was set for a plea hearing on October 19, 2009. At the beginning of the hearing, however, defense counsel Timothy Short reported that Carroll had changed his mind about the plea and wanted a new attorney appointed to represent him. The court held private discussions with Carroll and Short to determine the nature of the disputes between them. Carroll expressed concern that Short was not preparing his witnesses to testify and that Short said the chances of winning at trial were not good. Carroll agreed that his witnesses were character witnesses who would testify that he was not a child molester and he would not commit the type of crime alleged. In summary, Carroll was not comfortable with Short because he recommended the plea bargain and did not think he could get a not guilty verdict at a trial.
The court explained to Carroll that it was likely testimony of character witnesses of the nature he described would not be admissible. Short advised the court that while the victim gave conflicting accounts of what happened, Carroll gave police both a written and oral statement admitting he kissed and fondled S.S. Despite his belief that the plea was a good deal, Short reported that he was prepared to go to trial on Carroll's behalf. The court told Carroll that the crime charged was an off-grid crime and that no other attorney would tell him differently. The court also advised Carroll that his attorney was very experienced and competent. Finally, the court stated that based on its recollection of the preliminary hearing, it was very possible another appointed attorney would reach the same conclusions as Short. The court found Carroll had failed to establish grounds for appointment of a new attorney and granted a recess for Carroll to confer with Short about taking a plea or going to trial.
After a recess, the parties returned and Carroll reported that he had decided to go forward with the plea agreement. Even though he changed his mind earlier in the day, Carroll admitted he had discussed the plea agreement thoroughly with Short over the last few months and understood the plea agreement. Carroll understood that under the agreement, he would receive a downward departure to a 15–year prison sentence. Carroll also affirmed that he understood he would be convicted if the State presented a factual basis and that the terms of the plea agreement were not binding upon the court. The State presented the factual basis based on the preliminary hearing testimony, and Carroll agreed that evidence would support the charge against him. Accordingly, the court accepted his no contest plea and found him guilty of aggravated indecent liberties with a child, a severity level 3 person felony.
Several weeks later, Carroll wrote to the judge reiterating his complaints about Short. Because of these allegations, Short filed a motion to withdraw as counsel. Short's motion to withdraw was granted, and the court appointed another attorney, Mark Fern, to represent Carroll. Within a month, Fern sought to withdraw because Carroll expressed dissatisfaction with his representation. Fern's motion to withdraw was denied, and he was ordered to confer with Carroll and, if necessary, file a motion to withdraw the plea for the court's consideration. Carroll later withdrew his objections to Fern continuing to represent him.
Fern filed a motion to withdraw Carroll's guilty plea. The motion asserted that Carroll's plea was not voluntary, that he unwillingly entered into it upon advice of his former attorney, and that he was innocent of the charges. A more detailed motion was later filed on Carroll's behalf. At a subsequent hearing, and over the State's objection, the district court granted Carroll's motion to withdraw his guilty plea. The case was rescheduled for trial on January 26, 2011.
Before trial, Carroll entered into a second plea agreement with the State. The agreement explained Carroll's constitutional rights if he chose to proceed to a trial and the effect of pleading guilty or no contest. Carroll signed the agreement that included language affirming that neither his attorney nor any government official had promised, suggested, or predicted that he would receive a lighter sentence or probation if he entered a plea. Carroll agreed to plead no contest to aggravated indecent liberties with a child, an off-grid felony, understanding that the presumptive sentence would be a life sentence. In exchange for his plea, however, the State agreed to recommend Carroll be sentenced to a severity level 3 sentence with a criminal history of B. In addition, the State agreed not to oppose Carroll's request for an additional durational departure sentence. The agreement specifically stated that Carroll understood he was not eligible for and could not ask for probation as part of the plea agreement and that the presumptive sentence for a III–B nondrug crime was 206 to 228 months in prison. Finally, the State agreed to dismiss the second count, indecent solicitation.
During a hearing on January 13, 2011, defense counsel explained the plea agreement in open court. The judge explained to Carroll the potential sentencing based upon the original off-grid charge as well as the State's recommended departure sentence to a severity level 3 charge. The court provided a detailed explanation of Carroll's trial rights and the fact that he would be giving up those rights if he pled guilty. Carroll admitted signing the plea agreement and affirmed that he understood the agreement ( i.e., “the whole nine yards”). Carroll stated he understood that the court was not bound by the plea agreement and there was no promise with regard to sentencing. Carroll also affirmed that no one was forcing or threatening him to enter into the plea. Fern confirmed that he provided Carroll written copies of the plea agreement and had discussed it with Carroll. Fern also represented that he believed Carroll understood the agreement. Carroll agreed with all of Fern's comments.
On January 26, 2011, Carroll appeared for sentencing. During the hearing, it was made quite clear that Carroll had pled to an off-grid crime but that the State would recommend a severity level 3 grid aggravated sentence of 228 months. On behalf of Carroll, defense counsel requested the court depart to 55 months, based on the 3–I grid sentence claiming Carroll's offense caused substantially less harm than typical offenses. Fern also emphasized that despite Carroll's criminal history of B, he had no prior convictions for sex offenses. In his allocution, Carroll requested the downward departure based on the statements from his attorney. The court accepted the State's recommendation to depart from the presumptive life sentence and granted an additional durational departure sentence by imposing a term of 200 months' imprisonment. After sentence was pronounced, Carroll only sought clarification of the meaning of lifetime postrelease supervision. After this clarification, Carroll advised the court he understood the sentence and had no questions.
In June 2011, Carroll filed a pro se motion to withdraw his no contest plea. Carroll alleged that his plea was the result of false and misleading statements made by his attorney. Carroll asserted that he was innocent of the charges, that the evidence established his innocence, but that his attorney advised him that if he did not plea he would likely be convicted, face a mandatory 25 years without good-time credit, and the fact that he had no prior convictions for sexual offenses did not matter in light of his extensive criminal history. Carroll also contended his attorney coerced him by telling him that he would get 5 years' probation, 1 year of sexual-offender treatment, and then the “ ‘matter would be put to rest.’ “
On July 18, 2011, the court summarily dismissed Carroll's motion after reviewing the transcript of the plea hearing. The court found Carroll failed to establish manifest injustice, as the transcript conclusively established Carroll's plea was knowing and voluntary. The court noted that Carroll's plea agreement resulted in a substantially reduced sentence from the presumptive term of life in prison with a possibility of parole only after 25 years. The court noted that Carroll confessed to the crime. In light of the withdrawal of his first plea, the court found Carroll's motion was only a question of “ ‘buyer's remorse’ “ and did not establish manifest injustice.
Analysis
A plea of guilty may be set aside after sentence to correct manifest injustice. K.S.A. 22–3210(d). The term “manifest injustice” has been interpreted to mean obviously unfair or shocking to the conscience. Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007).
An appellate court will not disturb a district court's denial of a motion to withdraw plea after sentencing unless the defendant establishes an abuse of discretion. State v. Plotner, 290 Kan. 774, 777, 235 P.3d 417 (2010). Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
When the district court summarily denies a motion to withdraw a plea, as the district court did in this case, an appellate court applies a de novo standard of review to determine whether the record conclusively shows that the movant is not entitled to relief, i.e., no substantial question of fact exists which would warrant an evidentiary hearing. State v. Atteberry, 44 Kan.App.2d 478, 484–85, 239 P.3d 857 (2010), rev. denied 292 Kan. 966 (2011).
Carroll alleges in his motion that his attorney misled him into believing that he would receive a sentence of 5 years' probation if he pled no contest to the off-grid felony charge. He also contends that he was entitled to an evidentiary hearing on his claims. We disagree.
We have thoroughly reviewed the record and find no evidence in the record to support Carroll's allegation that his plea was the result of false and misleading statements by his attorney that he would receive probation in exchange for his plea. To the contrary, the evidence in the record reflects that both the district court and his attorney correctly informed Carroll that if convicted of an off-grid crime, he could be given a life sentence with a mandatory minimum term of 25 years. See K.S.A. 21–3504(c); K.S.A. 21–4643(a)(1)(C). Carroll acknowledged that he voluntarily signed the plea agreement, which included language requiring Carroll to confirm that neither his attorney nor any government official had promised, suggested, or predicted that he would receive a lighter sentence or probation if he entered a plea. The signed agreement also reflects that Carroll agreed to plead no contest to aggravated indecent liberties with a child, an off-grid felony, and understood that that the presumptive sentence would be a life sentence but—in exchange for his plea—the State agreed to recommend Carroll be sentenced to a severity level 3 sentence with a criminal history of B. In addition, the State agreed not to oppose Carroll's request for an additional durational departure sentence. Significantly, the agreement specifically stated that Carroll understood he was not eligible for and could not ask for probation as part of the plea agreement and that the presumptive sentence for a III–B nondrug crime was 206 to 228 months in prison.
Even more significantly, Carroll did not object or express any concern at sentencing when his attorney requested a durational departure to a 55–month prison term; there was no request for probation. Carroll affirmatively supported his attorney's request during the hearing. And, when the court imposed 200 months' incarceration, Carroll's only question related to part of the sentence involving lifetime postrelease supervision.
In sum, the record in this case conclusively establishes that Carroll is not entitled to relief, i.e., no substantial question of fact exists which would warrant an evidentiary hearing. Accordingly, the district court did not abuse its discretion in denying his motion to withdraw his plea.
Affirmed.