Opinion
No. 107,901.
2013-08-30
STATE of Kansas, Appellee, v. Robert EVERHART, Appellant.
Appeal from Wyandotte District Court; Robert P. Burns, Judge. Cristina M. Kerls and Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Mollie R. Hill, assistant district attorney, Jerome A, Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Robert P. Burns, Judge.
Cristina M. Kerls and Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Mollie R. Hill, assistant district attorney, Jerome A, Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., POWELL, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM:
Robert Everhart asks us to overturn the district court's order denying his motion to withdraw his guilty plea to two counts of aggravated indecent liberties with a child. Everhart claims he did not knowledgeably waive his right for a jury to decide any aggravating factors that could lead to an enhanced departure sentence. The plea agreement Everhart signed plainly stated he was agreeing to an upward durational departure sentence of 210 months and that he waived his jury trial rights on that point. This was emphasized by the oral remarks of the prosecutor at the plea hearing. Because Everhart agreed to the explanation of their plea agreement given by the prosecutor at the plea hearing, we hold the district court did not abuse its discretion when it denied Everhart's motion to withdraw his guilty plea.
Because Everhart was the stepgrandfather of the victim, with whom he lived, we hold that the district court did not err when it concluded Everhart had a fiduciary relationship with the 13–year–old victim.
The State and Everhart negotiated a plea bargain.
In early 2011, the State charged Everhart with two counts of aggravated indecent liberties with a child, both off-grid person felony crimes, and one count of lewd and lascivious behavior.
The parties made a plea bargain. In exchange for Everhart's agreement that he would plead guilty, the State reduced the charges to two counts of aggravated indecent liberties with a child in violation of K.S.A. 21–3504(a)(3)(A), severity level 3 person felonies, and dismissed the lewd and lascivious behavior count. Everhart had a criminal history score of I, which meant that each conviction for a severity level 3 offense resulted in a presumptive sentencing range of 61–59–55 months' imprisonment. See K.S.A.2010 Supp. 21–4704.
But Everhart and the State agreed to recommend consecutive sentences of 105 months' imprisonment for each conviction. The terms of the plea agreement acknowledged that the recommended sentences for each count were upward durational departures for which Everhart waived his right to a jury trial on aggravating factors. Following an extensive plea colloquy, the district court accepted Everhart's plea and found him guilty of both counts of aggravated indecent liberties with a child.
Everhart changed his mind. Prior to his sentencing hearing, Everhart filed a motion to withdraw his plea. Everhart contended that his plea was not “fairly and understandingly made.” He argued:
• he did not have enough time to consider the plea or its consequences;
• the length of his possible sentence was unfair;
• the evidence was not sufficient to support a conviction; and
• he did not knowingly waive his right to a jury determination of the aggravating sentencing factors for an upward departure sentence.
In response, the State argued that the parties' recommendation in the plea agreement that Everhart receive an upward durational departure sentence of 105 months on each count was appropriate because the victim was 13 years old and lived with Everhart, who had a fiduciary relationship with the victim as her stepgrandfather.
The same district court judge who accepted Everhart's plea heard his motion to withdraw his plea and considered evidence upon the motion. Both the State and defense counsel presented arguments about the circumstances surrounding the plea agreement and the entry of Everhart's plea. Defense counsel specifically argued that Everhart's plea was not knowingly entered because (1) Everhart was confused about the recommended sentence and believed he would be sentenced strictly based on his criminal history score of I; (2) the plea agreement did not advise Everhart of his right to have a jury determine the upward departure factors; and (3) the district court, in accepting Everhart's plea, failed to advise Everhart of his right to have a jury determine the upward departure factors and specifically ask him if he waived that right. Everhart did not provide any testimony. The district court denied Everhart's motion to withdraw his plea.
The district court proceeded to consider the State's motion for upward durational departure. After hearing arguments, the district court granted an upward durational departure based primarily on the fiduciary relationship of Everhart to the victim. The district court ruled:
“The Court finds that there are substantial and compelling reasons for the upward durational departure. In particular, the Court would point to that this offense involved a fiduciary relationship which existed between [Everhart] and the victim. To a lesser extent, the Court would note the defendant's—the victim's age, and also that this sentence is pursuant to a plea agreement entered into between the parties.
“However, the most substantial and compelling reason is the existence of the fiduciary relationship between the victim and [Everhart].”
The district court imposed consecutive sentences of 105 months' imprisonment on each count, for a total prison term of 210 months.
On appeal, Everhart attacks the court's ruling on the motion to withdraw his plea and the upward departure sentence imposed by the court. He contends that he must withdraw his guilty plea because the waiver of the jury trial on aggravating factors necessary to sustain an upward durational departure sentence was not sufficiently explained here. Everhart also contends the fiduciary relationship between him and the victim, an aggravating factor that could lead to the enhancement of his sentence, is unsubstantiated.
Several legal principles apply in this case.
Everhart maintains that the district court abused its discretion in denying his motion to withdraw his guilty plea. Indeed, prior to sentencing, a district court, at its discretion, may permit a plea of guilty or nolo contendere to be withdrawn for good cause shown. K..S.A.2012 Supp. 22–3210(d)(1). In turn then, on appeal, the defendant bears the burden of establishing that the district 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).
A district court can abuse its discretion in three ways. According to the Kansas Supreme Court in Fischer v. State, 296 Kan. 808, Syl. ¶ 8, 295 P.3d 560 (2013), judicial discretion is abused if the judicial action is:
• arbitrary, fanciful, or unreasonable, i.e. if no reasonable person would have taken the view adopted by the trial court;
• based on an error of law, i.e. if the discretion is guided by an erroneous legal conclusion; or
• 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.
When dealing with questions of presentencing withdrawal of pleas, in exercising its discretion under K.S.A.2012 Supp. 22–3210(d)(l), the district court should consider if: (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. Not all of these factors must apply in the defendant's favor in every case, and other factors may be duly considered. State v. Macias–Medina, 293 Kan. 833, 837, 268 P.3d 1201 (2012) (discussing the Edgar factors).
To examine the factual underpinnings of a district court's decision to accept a jury trial waiver, we employ a substantial competent evidence standard. State v. Barnes, 293 Kan. 240, 260, 262 P.3d 297 (2011). Substantial competent evidence is evidence that possesses both relevance and substance and provides a substantial factual basis to reasonably resolve the issues. Wilkins v. State, 286 Kan. 971, 980, 190 P.3d 957 (2008).
Under the Kansas Sentencing Guidelines Act, K.S.A. 21–4701 et seq. , a sentencing court must impose a presumptive guidelines sentence for crimes committed on or after July 1, 1993, unless the court finds substantial and compelling reasons to impose a departure sentence. K.S.A. 21–4716(a). Because an upward durational departure could increase the penalty of the crime beyond the statutory maximum, the aggravating facts necessary to support an upward durational departure, other than a prior conviction, must be proven to a jury beyond a reasonable doubt unless the defendant knowingly and intentionally waives his or her right to have a jury determine those facts. K.S.A.2010 Supp. 21–4718(b)(4); State v. Horn, 291 Kan. 1, 6–8, 238 P.3d 238 (2010).
We find no abuse of discretion by the district court.
The crux of Everhart's argument is that his plea was not knowingly given because the waiver of his right to a jury determination of the aggravating sentencing factors necessary to support an upward durational departure was not knowingly and intentionally given. He asserts that he demonstrated good cause to withdraw his plea prior to sentencing because:
• the plea agreement did not adequately inform him of his right to have a jury determine the upward departure sentencing factors; and
• the district court did not explain to him that “his right to a jury trial on the elements of the offense is separate from his right to a jury trial on the upward durational departure factors.”
We find nothing in the record that leads us to believe that Everhart did not understand what was happening at the plea hearing. The record reveals that the district court asked Everhart about the terms of the plea petition he had signed and filed with the court. Everhart told the court he had read the agreement and reviewed it with his attorney. When asked if he understood all of its terms and conditions, he said, “Yes.” The plea petition plainly states the recommended sentence of 105 months on each count was an upward durational departure sentence for which the defendant waived his jury trial rights. The court told Everhart about his trial and appeal rights that he would be waiving if he accepted the plea terms, and he told the court that he understood those rights and did not have any questions about those rights.
Two recent cases from the Kansas Supreme Court provide guidance on this point. Both cases emphasize that the waiver of a jury during a sentence enhancement proceeding is separate from the determination of guilt. First, in Horn, 291 Kan. 1, Syl. ¶ 4, the court found:
“To be constitutionally valid, a defendant's waiver of his or her right to a jury in an upward durational departure sentence proceeding must be a voluntary, knowing, and intelligent act performed with sufficient knowledge of the relevant circumstances and likely consequences. A plea of guilty to the criminal offense, standing alone, does not constitute a voluntary, knowing, and intelligent waiver of the right to a jury for an upward durational departure sentence proceeding.”
To support its finding that Horn was unaware that waiving a trial jury could be considered a waiver of a jury determination of an upward departure sentence, the court noted, “Horn's counsel specifically informed the district court that counsel had not discussed the possibility of such a waiver with Horn.” 291 Kan. at 11.
Then, in State v. Duncan, 291 Kan. 467, 470, 243 P.3d 338 (2010), the Supreme Court considered whether the defendant's guilty plea constituted a waiver under K.S.A. 21–4718(b)(4) of his right to have a jury determine the imposition of an upward durational departure based on aggravating factors as required under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Duncan had agreed to an upward durational departure as part of his plea agreement. Nonetheless, the court held that Duncan had not made a constitutionally valid waiver of his right to a jury determination of the aggravating sentencing factors because both the plea agreement and district court did not inform Duncan of his right to such a determination. 291 Kan. at 472–73; see Horn, 291 Kan. at 11 (holding that “[a] waiver of the trial jury, standing alone, does not effectively waive the defendant's right to have a jury for the upward durational departure sentence proceeding”). Citing Horn, 291 Kan. at 10–11, the court reasoned: “[T]o waive the right to a jury in an upward durational departure proceeding, the defendant must do more than consent to the sentence. [Citation omitted.] Duncan needed to understand—and the record needs to demonstrate—what specific right or rights he was waiving.” Duncan, 291 Kan. at 472.
The record leads us to conclude that Everhart's waiver was knowing and voluntary.
The plea agreement contained the following terms: “Plead guilty to 2 counts of Aggravated Indecent Liberties, level 3, person felonies. Both parties agree to 105 month sentence on each count to run consecutive—210 mo. total. Sentences are upward durational departures for which defendant waives jury trial right. All other counts dismissed.” (Emphasis added.) Unlike the defendant in Duncan, who only consented to an upward departure sentence, Everhart consented to upward departure sentences and specifically waived his right to a jury trial at sentencing. The consequences of his acts of pleading guilty and recommending a sentence along with the State in the petition he signed were clearly set out before Everhart. Those consequences were a 210–month sentence he asked for.
Moreover, the district court, in denying Everhart's motion to withdraw his plea, correctly distinguished Duncan by pointing out that in Duncan “there was no mention in the plea hearing of the defendant giving up his right to a jury determination on the aggravating factors.” At the plea hearing, the following exchange occurred regarding the substance of the plea agreement:
“MS. HILL [prosecutor]:,.. The parties would agree to 105 months for each count. That includes a upward durational departure, and [Everhart] agrees to waive his right to a jury trial on the upward durational departure part of the sentencing ....
“THE COURT: All right. Mr. Dent, is that your understanding of the plea agreement?
“MR. DENT [defense counsel]: Yes, Judge. That's what we agreed to.
“THE COURT: Mr. Everhart, is that your understanding of the plea agreement?
“THE DEFENDANT: Yes, your Honor.
“THE COURT: Do you have any questions about that plea agreement?
“THE DEFENDANT: No.” (Emphasis added.)
We note the record indicates that the district court at the plea hearing only specifically explained to Everhart his waiver of his right to a jury trial and corresponding rights during trial and on appeal. In response, Everhart cites Horn and argues, “an explanation of the right to a jury trial, standing alone, does not inform a defendant of the right to a jury for an upward durational departure sentence proceeding.” But Horn is distinguishable from this case because even though the district court at the plea hearing did not directly inform Everhart of his right to have a separate jury determination of the aggravating sentencing factors, the record demonstrates that the district court made sure Everhart understood he was waiving his right to have such a determination.
In denying Everhart's motion to withdraw his guilty plea, the district court clarified that the prosecutor during the plea hearing had stated that the plea agreement included an agreement on an upward durational departure and that Everhart “agrees to waive his right to a jury trial on the upward durational departure part of the sentencing.” The district court noted that after the prosecutor's statement it had specifically asked Everhart, “[I]s that your understanding of the plea agreement?” The district court pointed out that Everhart had responded “yes” and indicated he had no questions about the plea agreement. And, unlike Horn, defense counsel at the plea hearing told the district court that he agreed that the prosecutor had correctly stated the terms of the agreement, or that Everhart had waived his right to a jury determination of the aggravating sentencing factors. Defense counsel at the hearing on Everhart's motion to withdraw his plea also stated, “I have discussions with all my clients about pleas and possible sentences and plea petitions and what they mean.”
The district court properly concluded Everhart knowingly and intentionally waived his right to have a jury determine the aggravating facts that are necessary to support an upward durational departure sentence of 105 months' imprisonment on each count and was not entitled to relief under K.S.A.2012 Supp. 22–3210(d)(1).
Because the same district court judge that presided over the hearing on Everhart's motion to withdraw his plea also presided over Everhart's plea hearing, we pay deference to the judge who saw all of the proceedings firsthand as they happened. See Chamberlain v. State, 236 Kan. 650, 659–60, 694 P.2d 468 (1985). Everhart has failed to meet his burden to show that the district court abused its discretion.
The district court had substantial and compelling reasons to depart from the guidelines.
The final question is whether the durational departure sentences imposed by the district court on the basis of the relationship between Everhart and the victim were justified by a substantial and compelling reason.
The analysis of such questions is a two-step procedure. First, we examine the record to determine whether substantial competent evidence supports the district court's articulated reasons for granting a departure. K.S.A. 21–4721(d)(1); State v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008). Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012).
Next, we determine as a matter of law whether the factors articulated or stated on the record by the district court are substantial and compelling reasons for departure. See K.S.A. 21–4716(a); K.S.A. 21–4721(d)(2); Blackmon, 285 Kan. at 724.K.S .A. 21–4716(c)(2) sets forth a nonexclusive list of aggravating factors that may be considered in determining whether a substantial and compelling reason exists to impose a departure sentence. Such factors are substantial and compelling as a matter of law. State v. Hernandez, 24 Kan.App.2d 285, 289, 944 P.2d 188,rev. denied 263 Kan. 888 (1997).
The district court granted an upward durational departure based on the fiduciary relationship between Everhart and the victim. K.S.A. 21–4716(c)(2)(D) permits the district court to consider a departure sentence if: “The offense involved a fiduciary relationship which existed between the defendant and the victim.”
Taking a contrary position, Everhart maintains the fiduciary relationship is unsubstantiated. Specifically, Everhart argues that the district court lacked substantial competent evidence of a fiduciary relationship because the complaint, amended complaint, and plea agreement did not allege a fiduciary relationship between him and the victim and it was not mentioned at the plea hearing.
But, while making this argument, Everhart fails to acknowledge that K.S.A. 21–4716(d) provides that the district court in determining aggravating circumstances shall consider: “(1) Any evidence received during the proceeding; (2) the presentence report; (3) written briefs and oral arguments of either the state or counsel for the defendant; and (4) any other evidence relevant to such aggravating or mitigating circumstance that the court finds trustworthy and reliable.”
The district court's departure sentence is supported by substantial competent evidence. The State's motion for upward durational departure stated: “In this case, [Everhart] was [the victim's] step-grandfather. The victim lived with [Everhart] and his wife (victim's grandmother). The victim depended upon [Everhart] and his wife for a place to live, clothing, and food.”
At sentencing, the State reiterated these same facts taken from its motion for an upward durational departure. At no point did Everhart dispute that he is the stepgrandfather of the victim and that the victim lived with him and the victim's grandmother. Accordingly, these facts support the district court's articulated reason for imposing an upward durational departure.
When considering the second step of our analysis, we hold the fact that the victim was Everhart's stepgrandchild and lived with Everhart is a substantial and compelling reason for departure. “Substantial” means something real, not imagined; something with substance, not ephemeral; while “compelling” means that the circumstances of the case force the sentencing court “to abandon the status quo and to venture beyond the sentence that it would ordinarily impose.” Blackmon, 285 Kan. at 724.
In State v. Ippert, 268 Kan. 254, 256, 995 P.2d 858 (2000), the defendant pled no contest to two counts of aggravated indecent liberties with a child in violation of K.S.A. 21–3504(a)(3)(A) and received an upward departure sentence. The victims were the defendant's children. The Kansas Supreme Court agreed that the fiduciary relationship factor specified in K.S.A. 21–4716(c)(2)(D) provided a substantial and compelling reason for departure. The court noted: “[T]he defendant, as the father of the children, was in a unique position to carry out the crime and to keep the crime secret because the victims relied upon his position of trust.” (Emphasis added.) 268 Kan. at 262–63. In a similar fashion, Everhart relied on the unique position of being married to the victim's grandmother and living with the victim to betray the victim's reliance upon his position of trust as her stepgrandfather and carry out his crimes.
Because the district court relied upon the aggravating factor specified in K.S.A. 21–4716(c)(2)(D), the reason the district court articulated for the departure was substantial and compelling as a matter of law. Hernandez, 24 Kan.App.2d at 289.
Given this holding, we need not examine the district court's other reasons for departure (the victim's age and the terms of the plea agreement). If one factor articulated by the district court is substantial and compelling, the departure sentence will be upheld on appeal. See Blackmon, 285 Kan. at 725.
The district court is affirmed.