Opinion
110,923.
02-27-2015
STATE of Kansas, Appellee, v. Cortez D. GARLAND, Appellant.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Heather Cessna, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ATCHESON, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Cortez D. Garland appeals from the judgment of the district court denying his motion to withdraw his guilty pleas. He claims that his trial attorney coerced him into accepting the pleas and that his pleas were not knowingly made. He also raises a claim of cumulative error.
We find that the district court did not abuse its discretion when it denied Garland's motion, and we affirm the judgment.
Factual and procedural background
In February 2010, the State charged Garland with one count of aggravated burglary, a severity level 5 person felony, and one count of attempted rape, a severity level 3 person felony. The State subsequently amended the charges to one count of attempted rape or, in the alternative, one count of aggravated sexual battery, a severity level 5 person felony.
Garland ultimately accepted a plea agreement whereby he would plead guilty to one count of aggravated burglary and one count of aggravated sexual battery. The State agreed to dismiss the alternative charge of attempted rape and to recommend a controlling durational departure sentence of 100 months' imprisonment for the aggravated burglary charge, with the sentence for aggravated sexual battery to run concurrently. The plea agreement also allowed Garland to seek additional departure which would be opposed by the State.
Garland signed both the plea agreement and a “Defendant's Acknowledgment of Rights and Entry of Plea” form, attesting that he fully discussed the plea agreement with his attorney, David Leon. He acknowledged that he was satisfied with Leon's performance, and he further acknowledged that it was his decision alone to accept the plea agreement.
At the plea hearing in February 2011, the district judge engaged in an extensive colloquy with Garland, explaining his rights and what rights he was losing by pleading guilty. Several times, the judge asked Garland if he understood what he was telling him or if he had any questions or concerns about the pleas. Garland responded that he understood and had no questions or concerns. The judge ultimately accepted the pleas and continued the case for sentencing.
Following the plea hearing, but prior to sentencing, Garland sent a letter to the district court requesting that he be allowed to withdraw his pleas, but he then appeared personally before the court and withdrew that request. Sometime thereafter, Garland retained new counsel, but before he resigned as Garland's attorney, Leon filed a motion for dispositional and durational departure. Garland's new attorney also filed a motion for dispositional and durational departure.
For some reason, sentencing did not occur until April 2012, more than 1 year after the pleas had been entered and accepted. At sentencing, the judge followed the terms of the plea agreement, granting the departure to a controlling sentence of 100 months' imprisonment for the aggravated burglary charge, to run concurrent with the sentence for aggravated sexual battery. Garland's motion for additional dispositional and durational departure was denied.
Approximately 1 year later, Garland filed another pro se motion to withdraw his guilty pleas, alleging that Leon misled and coerced him into accepting the plea agreement and that Leon did not advise him on the different options available to him. The district court held an evidentiary hearing on Garland's motion, at which Garland was the only witness. When Garland rested, the State moved for a directed verdict, which the district court granted, finding that even in the light most favorable to Garland, he had not established manifest injustice that supported withdrawal of his guilty pleas.
Garland timely appealed from this ruling.
Standard of Review
K.S.A.2014 Supp. 22–3210(d)(2) states: “To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.” Manifest injustice exists if something is “obviously unfair or agreement. Garland also testified that he understood that the sentencing judge was not bound to follow the recommended departure in the plea agreement, let alone his request for additional departure. Both Leon and Garland's new attorney filed motions for additional departure, which were not granted. Leon did not coerce Garland by fulfilling his promise to file the motion.
Garland had signed a “Defendant's Acknowledgment of Rights and Entry of Plea” form, in which he acknowledged that he was satisfied with Leon and that it was his choice alone to accept the plea offer. In the form, Garland acknowledged that Leon had reviewed the facts of his case and the terms of the plea agreement with him before he signed it. The district judge specifically noted on the record that Garland had spent 15 minutes immediately before the plea hearing discussing the plea agreement with Leon. Despite a full and complete colloquy with the district judge at the plea hearing, Garland never raised any questions or concerns. Garland also admitted at the motion for plea withdrawl hearing that he had never made any allegations of coercion until he filed his motion to withdraw plea more than 2 years after he had originally entered the plea.
There is substantial competent evidence to support the district court's finding that Garland was not coerced into accepting the plea agreement. The district court did not abuse its discretion when it denied Garland's motion to withdraw his guilty pleas.
Garland's pleas were under standingly made.
Garland also argues that his pleas were not understandingly made because he did not understand the role of the departure request at sentencing. As noted above, Garland's own testimony at the motion for plea withdrawl hearing belies this assertion. It is evident from the record that Garland knew about both departure requests and that he knew that the sentencing judge did not have to grant either. There is simply nothing in the record which would indicate that he misunderstood anything concerning the role of the departure motions.
Cumulative error is inapplicable.
Garland argues that this court should reverse the district court's denial of his motion to withdraw his guilty pleas based on the cumulative error doctrine. In State v. Morris, 298 Kan. 1091, 1105–06, 319 P.3d 539 (2014), the Supreme Court questioned whether the cumulative error doctrine was even applicable in an appeal from the denial of a motion to withdraw a plea, but it ultimately did not rule on the issue. In any event, since Garland did not establish that the district court erred in denying his motion, the cumulative error doctrine would not apply. See State v. Lowrance, 298 Kan. 274, 298, 312 P.3d 328 (2013).
Affirmed.