Opinion
No. 105,755.
2012-07-27
STATE of Kansas, Appellee, v. Christopher E. CARTER, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller and Anthony J. Powell, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller and Anthony J. Powell, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Christopher E. Carter appeals his convictions and sentences. He argues the district court should have allowed him to withdraw his plesa and should not have sentenced him to lifetime postrelease supervision. We affirm the convictions, vacate the sentences, and remand for resentencing.
In late December 2009, the State charged Carter with two counts of aggravated indecent liberties with a child in violation of K.S.A. 21–3504(a)(3)(A). One count was based on an act that occurred on or between January 1, 2006, and February 1, 2009, making it an on-grid crime, severity level 3 person felony. The other count was based on an act that occurred on or between November 23, 2009, and December 16, 2009, making it an off-grid crime under Jessica's Law.
In mid-May 2010, Carter filed a pro se “Motion to Discontinue Court Appointed Counsel,” alleging a lack of communication and preparedness on the part of his attorney, Kenneth Newton. At the motion hearing, Carter told the district court he was dissatisfied with the number of continuances as well as Newton's failure to communicate, provide documents, and move for a bond reduction. The court denied Carter's motion.
In early June 2010, Carter filed two more pro se motions-another “Motion to Discontinue Court Appointed Counsel” in which he “pray[ed] for reappointment of counsel,” and a “Motion of Ineffective Assistance of Counsel” in which he alleged he was being “pressured ... to take a plea from the District Attorney” and had “never talk[ed] to [his] attorney about the case.” At the motion hearing, the district court disclaimed jurisdiction to consider the ineffective assistance motion as it was a posttrial remedy. Carter did not mention anything about a plea. He did ask the judge to appoint a new attorney but eventually agreed to proceed to trial with Newton. The court denied Carter's second motion for new counsel.
On the morning of trial in late June 2010, Carter decided to enter pleas of nolo contendere. The district court addressed Carter's mental capabilities. Carter indicated he had no history of psychological problems and was a high school graduate. The court asked Carter whether he understood the charges; his rights to jury trial, to confront witnesses, to put on a defense, and to testify; that the State had the burden of proof; the nature of his pleas; and the possible sentences and fines. As to each inquiry, Carter indicated he understood. The court also asked Carter whether Newton had explained the “Acknowledgment of Rights and Entry of Plea” to him. He was asked whether he had signed the acknowledgement; whether Newton had discussed the possible sentences with him; whether anyone had threatened him or promised him anything to get him to plead no contest; whether Newton's legal services had been satisfactory; and whether he had any complaints about the way the court had treated him. Carter answered the questions indicating his pleas were knowing and voluntary.
The district court then read the plea agreement, which evidenced the State's intent to amend Count 2 of the complaint. The amended complaint charged Carter with aggravated indecent liberties in violation of K.S.A. 21–3504(a)(3)(A), based on an act that occurred on or between January 1, 2006, and February 1, 2009, a severity level 3 person felony, and aggravated indecent solicitation of a child in violation of K.S.A. 21–3511(a), based on an act that occurred on or between January 1, 2006, and December 16, 2009, a severity level 5 person felony. Carter indicated he understood the plea agreement, which stated that he pled no contest to the amended charge.
In its factual basis for the pleas, the State proffered that Carter was the live-in boyfriend of the victim's mother; the family first lived on Benway Street, where the aggravated indecent liberties occurred; and in 2009, they moved to George Washington Boulevard, where the aggravated indecent solicitation occurred. Carter did not contest this evidence. After finding the facts sufficient to support findings of guilt, the district court accepted Carter's pleas and adjudged him guilty of both counts.
In late August 2010, Carter filed a pro se “Motion to Withdraw Guilty Plea,” alleging that Newton had “misrepresented” him by advising him to plead guilty despite his innocence. He also filed another pro se “Motion for Dismissal of Counsel,” alleging that Newton had pressured him to take the pleas.
In mid-October 2010, the district court held an evidentiary hearing on the plea withdrawal motion.
Carter testified he had only 10 years of formal education. He had asked for new counsel five times stating, “I tried to get rid of him as hard as I could, but I couldn't.” Carter testified he had wanted to fire Newton because Newton had failed to investigate, return phone calls, seek a bond reduction, or subpoena suggested witnesses. He alleged he had told Newton that he wanted to go to trial, “I said I was going all the way.” Carter stated he was innocent and he believed that if he went to trial, his possible sentence was 25 years to life, and if he pled, it was 86 months. Carter stated Newton told him that “the little girl's mouth would be ... enough evidence” and the bailiff had said, “[G]uys don't be winning cases like this.... If I ... were you, I'd take it.”
Most importantly, Carter testified that Newton pressured him to plead by (1) assuring him he had “a good chance of getting probation because [Newton] had already talked to the Judge [about a] downward departure”; and (2) “guaranteeing” he would get probation. Carter testified, “I was pressured, really pressured by who was against me, 25 years you got. They sat there, I sat in the room for at least almost two hours, hour and a half in that room being pressured.”
On cross-examination, Carter claimed (1) he saw only the second page of the plea agreement; (2) the factual basis for the plea “shocked” him; (3) he did not understand the State would be recommending that he go to prison; and (4) he did not hear the judge tell him that probation was not guaranteed or that the sentencing judge was not bound by recommendations.
Newton, who by the time of the withdrawal hearing had been replaced by new court-appointed defense counsel, also testified. He stated he had met with Carter 8 to 10 times, and during their first meeting, Carter expressed his desire to pursue a plea agreement because “he had done at least one of the two offenses that he was charged with.” Newton testified he explained to Carter that he had been charged with one Jessica's Law count, the sentence for which was an off-grid 25 years to life. He also testified that after learning the possible sentence, Carter professed his innocence and desire to go to trial. Finally, Newton testified he did not recall receiving phone calls from Carter's family members and had tried to contact Carter's mother but had no luck. Newton recalled that Carter's suggested witnesses were on the State's witness list.
Newton further testified he engaged in plea negotiations in the week before trial, and on the morning of trial the State submitted “an offer that was substantially better than what [it had] been talking about up to that point,” so he presented the deal to Carter. He denied guaranteeing Carter that he would receive probation. Newton said he told Carter if he went to trial, he would be convicted under Jessica's Law and have no chance at probation, but if he took the deal, he would be convicted of two on-grid crimes and have the chance to argue for probation. He also denied pressuring Carter to take the pleas, and said he had no concerns about Carter's ability to understand either the plea agreement or the judge who took his pleas.
On cross-examination, Newton admitted (1) he presented the plea offer to Carter before the jury was empanelled on the morning of trial; (2) Carter had “probably a good hour” to decide whether to accept the pleas; (3) he left the room when Carter was “going back and forth weighing out the options” and returned to answer his questions; and (4) he reviewed the affidavit of probable cause with Carter to ensure his knowledge of the State's charges and evidence.
After hearing the evidence, the district judge denied Carter's motion to withdraw plea:
“I believe the plea entered into by Mr. Carter was one that was entered into, as I found at the time of its entry, knowingly, freely and voluntarily. The evidence I've heard here today does not indicate to me that there was in any way any pressure by Mr. Newton to have the defendant plea[d].
“I talked with him here one-on-one and he indicated to me there was no one that had placed any pressure upon him, threatened him or promised him anything. I do not believe that there is any substance to the defendant's motion, none that is required by law and I will deny the motion at this time.”
On November 5, 2010, the district court denied Carter's motion for a downward departure and sentenced him to a controlling term of 88 months' imprisonment. When the State prompted the court to change the term of postrelease supervision from 36 months to life, defense counsel objected. Carter timely appeals.
Carter argues the district court should have granted his plea withdrawal motion. This issue is governed by 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.” An appellate court will not disturb a district court's denial of a presentence motion to withdraw a plea unless the defendant shows that the court abused its discretion. State v. Plotner, 290 Kan. 774, 777, 235 P.3d 417 (2010). A district court abuses its discretion if (1) no reasonable person would take its view; (2) its decision is based on an erroneous legal conclusion; or (3) its decision is not supported by substantial competent evidence. State v. Macias–Medina, 293 Kan. 833, 836, 268 P.3d 1201 (2012).
When evaluating whether a defendant has shown “good cause” under K.S.A. 22–3210(d), we may consider whether “(1) the defendant was represented by competent counsel; (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) the plea was fairly and understandingly made.” Plotner, 290 Kan. at 778; see Macias–Medina, 293 Kan. at 837 (explaining that factors should not be exclusively relied upon or mechanically applied).
In support of plea withdrawal, Carter cites his repeated attempts to remove his counsel, whom he claims failed to adequately investigate his case and pressured him to accept the pleas.
The record does not indicate that Newton should have been removed or that he failed to investigate Carter's case. After two hearings, the district court found there was no “complete breakdown in communication” to justify removing Newton as Carter's counsel. Carter even agreed to proceed to trial with Newton at the end of the second hearing. And most importantly, Newton's testimony at the withdrawal hearing contradicted Carter's account of his representation. Newton testified that during the first of their 8 to 10 meetings, Carter admitted to committing one of the crimes with which he was charged. Newton also said he informed Carter of his charges and possible sentences, attempted to call his mother as requested, and did not need to subpoena his suggested witnesses because they were on the State's list.
Similarly, the record does not substantiate Carter's claim that Newton pressured him into pleading no contest. Newton's testimony at the withdrawal hearing differed from Carter's account of the plea negotiation. Newton said he negotiated the plea agreement for a week before bringing the best offer to Carter on the morning of trial. He said he told Carter the pleas would give him a chance at probation, answered his questions, and gave him an hour to decide rather than pressuring him to accept. Moreover, the plea hearing transcript shows the district court conducted a comprehensive plea colloquy, during which Carter stated that he had finished high school, had no mental issues, and understood the charges, his right to a jury trial, and the nature of his pleas, including the possible sentences. Carter also stated that he had signed the acknowledgement form, no one had made threats or promises related to his pleas, and he was satisfied with Newton's representation and his dealings with the court.
Most importantly, the district court was in the best position to resolve evidentiary conflicts because it had presided over both the plea and withdrawal hearings. See Macias–Medina, 293 Kan. at 839.
Reasonable people could agree with the district court's finding that the combination of Carter's plea hearing statements and Newton's plea withdrawal hearing testimony was more credible than Carter's plea withdrawal hearing testimony and its ultimate conclusion that Carter's pleas were entered “knowingly, freely and voluntarily” and not due to pressure, threats, or promises.
The district court did not abuse its discretion by denying Carter's motion to withdraw his pleas.
Carter also argues the district court should not have sentenced him to lifetime postrelease supervision. The parties agree this issue is governed by K.S.A. 22–3504(1), which provides: “The court may correct an illegal sentence at any time.” An “illegal sentence” includes “a sentence that does not conform to the statutory provision, either in the character or the term of authorized punishment.” State v. Harsh, 293 Kan. 585, 588, 265 P.3d 1161 (2011). An appellate court exercises unlimited review over whether a sentence is illegal. State v. Denmark–Wagner, 292 Kan. 870, 881, 258 P.3d 960 (2011).
Resolution of this issue requires examination of statutes that classify crimes and those that establish sentences. The original complaint charged Carter with two counts of aggravated indecent liberties, for one act that occurred between January 2006 and February 2009, and another act that occurred between November 2009 and December 2009. The enactment of Jessica's Law in July 2006 brought 25–year mandatory minimum sentences for certain sex crimes and lifetime postrelease supervision for “sexually violent crimes.” See K.S.A.2006 Supp. 21–4643(a)(l)(C) (such sentence for adult who committed aggravated indecent liberties on or after July 1, 2006); K.S.A.2006 Supp. 22–3717(d)(1)(G), (d)(2)(C) and (G) (such supervision for person who committed aggravated indecent liberties or aggravated indecent solicitation on or after July 1, 2006).
The plea agreement gave Carter the chance to avoid application of Jessica's Law. In exchange for no contest pleas, the State amended the complaint to charge aggravated indecent liberties, for the act that occurred between January 2006 and February 2009, and aggravated indecent solicitation, for an act that occurred between January 2006 and December 2009. As a result of his pleas, Carter was convicted of a violation of K.S.A. 21–3504(a)(3)(A), aggravated indecent liberties, a severity level 3 person felony, which carried either a 36–month or lifetime postrelease supervision term, and a violation of K.S.A. 21–3511(a), aggravated indecent solicitation, a severity level 5 person felony, which carried either a 24–month or lifetime postrelease supervision term. See K.S.A.2005 Supp. 22–3717(d)(1)(A), (B) (crimes committed before July 1, 2006); K.S.A.2006 Supp. 22–3717(d)(l)(G) (crimes committed on or after July 1, 2006). We must decide which term is proper for Carter.
A defendant is sentenced in accordance with the sentencing provisions in effect at the time the crime was committed. State v.. Williams, 291 Kan. 554, 559, 244 P.3d 667 (2010). Amendments to the sentencing guidelines are substantive and are not applied retroactively unless the statute's language clearly indicates a contrary intent. State v. Overton, 279 Kan. 547, 561, 112 P.3d 244 (2005). The legislature clearly did not intend Jessica's Law to apply retroactively. See K.S.A.2006 Supp. 21–4643(a)(1); K.S.A.2006 Supp. 22–3717(d)(l)(G) (“on or after July 1, 2006” language). But the question remains: Did Carter commit a sexually violent crime on or after July 1, 2006, justifying the imposition of lifetime postrelease supervision?
Carter pled no contest to aggravated indecent solicitation—a sexually violent crime. The complaint charged him with committing the crime between January 2006 and December 2009. But the factual basis for the plea alleged he committed the crime in 2009—after July 1, 2006. The State argues the district court correctly sentenced him to lifetime postrelease supervision based on the offense date alleged in the factual basis.
“A plea of nolo contendere is a formal declaration that the defendant does not contest the charge.” K.S.A. 22–3209(2); cf. State v. Johnson, 255 Kan. 156, 157, 872 P.2d 247 (1994) (An Alford plea is a “plea of guilty to the charge without admitting to the commission of the offense.”). The Kansas Supreme Court has held that a defendant's sentence cannot be increased based on evidence contained in the factual basis for his Alford plea. See State v. Case, 289 Kan. 457, 466–69, 213 P.3d 429 (2009). The Case court found that Alford and nolo contendere pleas are analogous in that “a defendant does not admit the facts upon which his or her guilt for the crime would be based.” 289 Kan. at 461. Therefore, because Carter did not admit to committing aggravated indecent solicitation in 2009—as alleged in the factual basis for his no contest pleas—that offense date cannot be used to increase his postrelease supervision term from 24 months to life.
Knowing Carter was convicted of two sexually violent crimes—one committed between January 2006 and February 2009 and another committed between January 2006 and December 2009—we must decide the proper term of postrelease supervision. Our Supreme Court has held that when a jury finds a crime occurred during the alleged period but is uncertain about whether it was committed before or after the effective date of an amended statute, the defendant can be convicted only of the lesser offense. See State v. Jackson, 239 Kan. 463, 472, 721 P.2d 232 (1986); see also State v. Vandervort, 276 Kan. 164, 179–80, 72 P.3d 925 (2003) (extending Jackson to hold defendant must be sentenced to lower criminal history where jury finds crime committed in period during which crime was reclassified). Following Jackson, we hold that Carter must be sentenced to the lesser postrelease supervision term because he was adjudged guilty of crimes committed in a period during which it was uncertain whether the acts occurred before or after Jessica's Law took effect.
The district court erred by sentencing Carter to lifetime postrelease supervision instead of a 36–month term.
The convictions are affirmed, the sentences are vacated, and the case is remanded for resentencing.