Opinion
No. 107,168.
2013-07-5
STATE of Kansas, Appellee, v. Seth M. DUQUE, Appellant.
Appeal from Sedgwick District Court; Douglas R. Roth, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Douglas R. Roth, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Defendant Seth M. Duque appeals the Sedgwick County District Court ruling denying his motion to withdraw his guilty pleas to felony charges of theft and attempting to flee and elude a law enforcement officer. After an evidentiary hearing, the district court discounted Duque's testimony in support of his motion as less than credible and rejected his assertion he felt pressured into pleading because he could no longer afford the cost of the electronic monitoring device he had to wear as a condition of his pretrial release on bond. The district court found that Duque had been competently represented by counsel and entered the pleas knowingly, intelligently, and voluntarily. Accordingly, the district court determined Duque had failed to show good cause to withdraw his pleas. We find no error in the district court's denial of the motion and affirm.
Factual and Procedural History
On November 13, 2009, the Sedgwick County District Attorney charged Duque with felony theft of a car and attempting to flee and elude law enforcement officers attempting to stop him while he was driving the vehicle. The criminal conduct occurred 4 days earlier, and Duque had been held on a $250,000 bond. The public defender appointed to represent him successfully got the bond reduced to $2,500 with the conditions that Duque remain on home detention and he wear an electronic monitoring device. Duque was responsible for the cost of the device—about $56 a week. The record indicates that Duque's mother wound up paying those fees.
Based on an agreement with the State, Duque pled guilty to the felony theft and fleeing and eluding charges on February 22, 2010. The plea agreement, among other terms, called for the State to join in a request for concurrent mitigated guidelines sentences, which would result in presumptive probation, and Duque stipulated to $2,199 in restitution to the victim of the car theft. At the plea hearing, Duque told the district court he had reviewed and discussed the written agreement with his lawyer and understood its terms. The district court went through the rights Duque was giving up by entering his pleas, informed him of the possible sentences he could receive, and cautioned that the judge imposing sentence did not have to follow the agreement. Duque stated that the only promises made to him were those in the negotiated agreement with the State and no threats had been made to get him to enter the pleas. He told the district court he was satisfied with the representation his appointed counsel had provided. The district court specifically asked Duque if he was pleading guilty to the charges because he was guilty. And he responded, “Yes.”
The district court accepted Duque's pleas and the factual bases for them. Duque's lawyer then asked that the bond condition for electronic monitoring be rescinded and that Duque pay an amount equivalent to that cost toward the restitution. Over the State's objection, the district court made that modification to the bond and ordered Duque to begin making restitution payments.
After that, things took a distinct turn for the worse for Duque. Five days later, he was arrested on charges of domestic battery and criminal damage to property. On March 3, 2010, an arrest warrant was issued for a bond violation in this case. Duque then skipped out on his scheduled sentencing hearing, and the district court issued another arrest warrant with a $100,000 bond. Duque was later taken into custody. On May 6, 2011, Duque pled guilty to several criminal charges in an unrelated Sedgwick County case.
On May 13, 2011, Duque wrote and filed his own motion in this case to withdraw his pleas. The district court appointed new counsel for Duque and set the motion for hearing. Duque and his former lawyer were the only witnesses at the September 23, 2011, hearing.
Duque testified that he was unemployed while he was out on bond but had diligently applied for jobs. According to Duque, his mother told him she would no longer be able to pay the cost of the electronic monitoring device he had to wear as a bond condition. Duque testified he told his lawyer he didn't have the money to cover the electronic monitoring costs and she responded the only way to lift the condition was to plead guilty. Duque said he told his lawyer he wanted to go to trial, but he believed a trial date could be as long as 6 months away. He said he believed his bond would be revoked and he would wait in jail. Duque alleged that his former lawyer told him the case was unwinnable. So, according to his motion papers, he felt “pressured into pleading guilty so that he could discontinue [the electronic monitoring] payments ... which he could no longer afford.”
Duque's former lawyer testified that she never told Duque the case could not be won but described to him the chances of not guilty verdicts as very slim. Nevertheless, she told Duque that the final decision whether to go to trial remained his. According to the lawyer, Duque initially said he wanted a trial but changed his mind when she presented the State's proposed plea deal to him. The lawyer testified she never advised Duque that the only way to get rid of the electronic monitoring costs was to plead guilty. Although Duque told her that he was having a hard time with the payments, he never said or indicated that he was pleading guilty simply because of financial hardship. After the plea agreement had been drafted, the lawyer reviewed the specific language and overall effect of the deal with Duque in her office. Duque didn't say he was taking the plea just because he couldn't pay for the electronic monitoring. The lawyer recalled telling Duque that if he failed to pay those costs, he would violate his bond conditions and, as a result, he would have to satisfy the terms of any new bond or wait in jail for his trial. She also told him she would ask that the electronic monitoring be dropped as a bond condition at the plea hearing, when the district court might look favorably on the request.
On November 1, 2011, the district court entered a lengthy journal entry denying Duque's motion to withdraw his guilty pleas. The district court specifically determined Duque's lawyer to be the far more credible witness. The district court found much of Duque's testimony to be at odds with the statements he made at the plea hearing. And the district court indicated some of Duque's testimony seemed to be not merely the product of faulty memory but of deliberate falsification. The district court held the lawyer's representation of Duque to be competent—her advice and strategic considerations were reasonable and appropriate. The district court specifically noted the lawyer's course, in consultation with Duque, “in not seeking a bond modification until there was a relevant favorable change in circumstance was a proper, prudent and appropriate exercise of judgment.”
After the motion was denied, another district court judge sentenced Duque to 15 months in prison as a controlling sentence in this case. At the same time, that judge sentenced Duque to 216 months in prison on multiple felonies, including kidnapping, in another case, yielding a total sentence of 231 months in prison. Duque has appealed the denial of his motion to withdraw his guilty pleas in this case, and that is what we have before us.
Legal Analysis
Motions to withdraw pleas are governed by K.S.A.2012 Supp. 22–3210(d). In pertinent part, the statute provides: “(1) A plea of guilty ... for good cause shown and within the discretion of the court may be withdrawn at any time before sentence is adjudged.” District courts should consider three factors to determine if a defendant has shown good cause to withdraw a plea: (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. Williams, 290 Kan. 1050, 1053, 236 P.3d 512 (2010). All three factors need not favor the defendant, and the district court may consider other relevant circumstances. 290 Kan. at 1054 (quoting State v. Aguilar, 290 Kan. 506, 513, 231 P.3d 563 [2010] ).
We review both the district court's factual findings and its ultimate conclusion on the motion. See State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011). A district court's factual findings will be not be disturbed if they are supported by substantial competent evidence. State v. Gonzalez, 290 Kan. 747, 756, 234 P.3d 1 (2010). Appellate courts do not reweigh the evidence or assess witness credibility. They necessarily defer to the district court's findings. State v. Appleby, 289 Kan. 1017, 1038, 221 P.3d 525 (2009). The district court, of course, has had the opportunity to observe the witnesses as they testify—an especially telling vantage point from which to assess credibility that we cannot replicate from a transcript. See State v. Scaife, 286 Kan. 614, 624, 186 P.3d 755 (2008) (“[T]he ability to observe the declarant is an important factor in determining whether he or she is being truthful.”).
Given the statutory language of K.S.A. 22–3210(d)(l) investing the district court with discretion in weighing a defendant's motion to withdraw a plea, we review the ultimate ruling for abuse of that discretion. State v. White, 289 Kan. 279, 284, 211 P.3d 805 (2009). A district court may be said to have abused its discretion if the result reached is “arbitrary, fanciful, or unreasonable.” Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1.130 (2009). That is, no reasonable judicial officer would have come to the same conclusion if presented with the same record evidence. An abuse of discretion may also occur if the district court fails to consider or to properly apply controlling legal standards. State v.. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009). A district court errs in that way when its decision “ ‘goes outside the framework of or fails to properly consider statutory limitations or legal standards.’ “ 288 Kan. at 299 (quoting State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 [2007] ). Finally, a district court may abuse its discretion if a factual predicate necessary for the challenged judicial decision lacks substantial support in the record. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012) (outlining all three bases for an abuse of discretion).
Here, the district court correctly identified the legal standards, and its factual findings, including the credibility determinations, have support in the record. Ultimately, we then are left to ask whether the district court's conclusion was so eccentric that no other judge could have arrived there after considering the same evidence. Far from displaying eccentricity, the district court's detailed and carefully reasoned decision reflects a conclusion that other judges would readily embrace.
The district court found that Duque's original lawyer had competently represented him. Especially based on the credibility finding the district court made, that conclusion is unassailable. The lawyer secured a substantial bond reduction for Duque, resulting in his pretrial release from jail; negotiated a reasonable plea agreement, including the State's recommendation for probation (though, in fairness, at the time of the negotiation that would have been the presumptive result); and properly advised Duque that the final decision on whether to plead or to go to trial rested with him. Those would be hallmarks of reasonable representation under Williams. Duque doesn't directly argue otherwise.
Duque essentially contends he felt coerced into the plea because he believed he otherwise faced the prospect of going to jail to await trial given his inability to continue paying for the electronic monitoring device and, thus, to abide by his bond conditions. In turn, he says, the plea was not fairly made. The contention implicates both of the remaining factors outlined in Williams. The district court, however, basically made a factual finding that Duque's protestations in his motion and at the hearing were not credible. There is significant evidence in the record to support that determination.
First, the district court found Duque's former lawyer believable when she said Duque never voiced his inability to make those payments as a reason he was pleading and that he was amenable to the State's proposed plea agreement from the time it was presented. Further, Duque had ample opportunity at the plea hearing to tell the district court he was taking the deal only because he couldn't afford the cost of electronic monitoring and didn't want to go to jail as a pretrial detainee. He never suggested anything of the kind. It would have been a reasonable and appropriate response to a number of the district court's inquiries during the plea hearing. The record shows that Duque was considerably more than a monosyllabic participant in the hearing. He initially balked at acknowledging the car he stole was worth more than $1,000 as part of the factual basis for his plea to the theft charge. (That threshold value was, of course, the element making the offense a felony rather than a misdemeanor.) Duque told the district court there were plenty of comparable cars that could be bought for less than $1,000. Everyone reached an accommodation on that score when Duque allowed how the State could present evidence at trial to support a value in excess of $1,000 and the victim had testified to a sufficient value at the preliminary hearing. But Duque did not retreat from his personal opinion the car wasn't worth that much when he stole it. The significant point here is Duque obviously felt free to speak up at the plea hearing and did so. But he never said he was pleading for any reason other than he truly was guilty and wanted to take advantage of a reasonable plea offer from the State.
Finally, Duque lost the benefit of the favorable plea deal when he absconded and then committed additional, serious crimes while he was a fugitive. That meant he faced prison time in this case to be served consecutive to any sentence in the other case. So Duque had a substantial incentive to withdraw his pleas in this case in the hope that the State wouldn't try him or, if it did, he might realize the slim chance he held out for an acquittal. But Duque also had to voice something other than hindsight reasoning based on recent disadvantageous circumstances of his own making as a legal basis to withdraw his pleas. The district court didn't buy the reason he came up with. And we must respect that credibility determination on the record evidence.
In short, Duque can satisfy none of the Williams factors for withdrawing his pleas. Duque tries to analogize his case to a probationer facing revocation and imprisonment because he or she has been unable to pay a fine despite dutiful efforts to do so. The United States Supreme Court has held imprisoning an indigent defendant in that situation amounts to a deprivation of equal protection and due process. Bearden v. Georgia, 461 U.S. 660, 664–65, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). But Duque's analogy fails at the outset. At the plea hearing, he never suggested he was pleading guilty because of financial pressures of any sort. Had he done so and had the district court accepted his pleas anyway, the argument would have some legal force. Moreover, based on the evidence at the hearing on the motion to withdraw the pleas, the district court discounted Duque's stated reason as not credible—effectively it was no more than an after-the-fact justification manufactured to support the motion.
The district court carefully considered the law and the evidence and correctly denied Duque's motion to withdraw his pleas.
Affirmed.