Opinion
No. 108,733.
2013-11-1
STATE of Kansas, Appellee, v. Jerry Allen HORN, Appellant.
Appeal from Johnson District Court; James F. Vano, Judge. Patrick M. Lewis, of Law Office of Patrick Lewis, LLC, of Olathe, for appellant. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; James F. Vano, Judge.
Patrick M. Lewis, of Law Office of Patrick Lewis, LLC, of Olathe, for appellant. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., BRUNS, J., and JAMES L. BURGESS, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
The Supreme Court vacated Jerry Allen Horn's upward durational departure sentence and remanded the case for resentencing. Before resentencing, however, Horn filed a motion to withdraw plea and for a new preliminary hearing. This is Horn's appeal from the denial of that motion. We affirm.
Factual and Procedural Background
Horn was charged with three counts of aggravated sodomy, three counts of aggravated indecent liberties with a child, and one count of sexual exploitation of a child under age 18. He ultimately pled guilty as charged. Because the incidents arose out of Horn's close relationship with a 10–year–old boy and his family, the State filed a notice of intent to seek an upward durational departure sentence based on the aggravating factor of fiduciary relationship. A jury was impaneled and found the existence of a fiduciary relationship between the child and Horn. The district court doubled Horn's guidelines sentence on all counts except for the exploitation charge and ordered all counts to be served consecutively for a total prison term of 1,088 months. This was reduced to the statutory maximum of 468 months.
Horn appealed his departure sentence to this court, which affirmed. State v. Horn, 40 Kan.App.2d 687, 196 P.3d 379 (2008), rev'd291 Kan. 1, 238 P.3d 238 (2010). The Supreme Court accepted review and held the sentencing statute at issue, K.S.A. 21–4718(b)(4), did not allow the district court to impanel a jury for the upward durational departure proceeding under the circumstances. Horn's sentence was vacated and the case remanded for resentencing without an upward durational departure. State v. Horn, 291 Kan. 1, 11–12, 238 P.3d 238 (2010).
Before the district court held a sentencing hearing on remand, Horn filed a motion to withdraw plea and for a new preliminary hearing. The motion raised multiple claims centering on counsels' competence and a claim his pleas were not knowingly and voluntarily made. The district court conducted an evidentiary hearing spanning 3 days and received testimony from Horn and each of the three attorneys who collectively represented him—Scott Gyllenborg, Christina Dunn, and Michelle Durrett—from the law firm of Gyllenborg & Dunn. The district court allowed the parties to submit briefs and set a later date for pronouncement.
On July 9, 2012, the district court denied the motion to withdraw plea and for a new preliminary hearing, finding none of Horn's issues justified withdrawal of the plea. The same date, the court issued a lengthy memorandum decision and order.
Horn was eventually sentenced to a controlling prison term of 246 months. He now appeals.
Did the District Court Err in Denying Horn's Motion to Withdraw Pleas?
Horn argues the district court erred in denying his motion to withdraw pleas and for a new preliminary hearing because he was denied effective assistance of counsel and his pleas were not knowingly and voluntarily entered. The State maintains the record does not support Horn's claims.
Standard of Review
The district court treated Horn's motion as a presentence motion to withdraw plea because on the first day of the evidentiary hearing the parties agreed the good cause standard applied. Any time before sentencing a district court may, within its discretion, allow a defendant to withdraw a plea of guilty or no contest upon a showing of good cause. K.S.A.2012 Supp. 22–3210(d)(1). In determining whether the defendant has shown good cause to withdraw a plea, the district courts should consider the following three factors, sometimes called the Edgar factors—after State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006); (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. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010). These factors, while “ ‘viable benchmarks for judicial discretion,’ “ should not be mechanically applied and relied upon to the “ ‘exclusion of other factors.’ “ State v. Garcia, 295 Kan. 53, 63, 283 P.3d 165 (2012) (quoting Aguilar, 290 Kan. at 512).
On appeal, this court reviews the denial of Horn's motion to withdraw plea for abuse of discretion. Horn bears the burden of showing abuse of discretion. State v. Macias–Medina, 293 Kan. 833, 836, 268 P.3d 1201 (2012). Regarding Horn's claim that counsel was incompetent, good cause for presentence withdrawal of a plea may be shown by mere “lackluster advocacy”; he need not demonstrate ineffective assistance rising to the level of a violation of the Sixth Amendment to the United States Constitution. See Aguilar, 290 Kan. at 512–13.
The State argues it should not be bound by its initial acquiescence to the good cause standard and this panel should apply the manifest injustice standard under K.S.A.2012 Supp. 22–3210(d)(2) (“To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.”). The State urges application of the heightened standard in light of the rationale expressed in Aguilar:
“This legislative choice [the heightened post-sentencing standard] is sensible and appropriate. The longer a defendant waits to file a plea withdrawal motion, the more the State's case is likely to weaken, if not evaporate.... [T]he plea withdrawal statute was not intended to be a tool for temporal manipulation; if a defendant is going to hold the State to its beyond-a-reasonable-doubt burden of proof before a jury, he or she should not be able to delay the process indefinitely by entering a guilty or nolo contendere plea and then easily withdrawing it when the timing is opportune.” 290 Kan. at 512.
The State points out Horn was originally sentenced on October 17, 2006. Horn's motion to withdraw plea was filed nearly 4 1/2 years after his original sentencing and nearly 6 years after he committed the offenses. The State maintains if Horn wanted to withdraw his plea, he should have filed it long before now. Although the State makes a good point, the district court already determined Horn could not meet the lenient good cause standard, and the following discussion of the district court's decision shows the court did not err.
Did Horn Receive Ineffective Assistance of Counsel?
According to Horn, the individual and cumulative effects of counsels' representation led him to the point on the eve of trial where he felt he had no option but to plead guilty without the benefit of a plea agreement. Horn contends this ineffective assistance of counsel should have justified the withdrawal of his plea.
Horn argues mistakes occurred from the very first meeting with Gyllenborg. At that meeting, Horn contends Gyllenborg told him he was the first attorney hired by then district attorney Paul Morrison and that his wife, Dunn, had worked at the district attorney's office in the sex crimes division, all of which would help produce a favorable result in his case. Horn asserts this was a false or misleading communication that was likely to create an unjustified expectation about the results counsel could achieve. See Kansas Rule of Professional Conduct 7.1(b) (2012 Kan. Ct. R. Annot. 626) (communications concerning a lawyer's services). Furthermore, Horn states Gyllenborg spoke about his fee and little else at that initial meeting.
In its memorandum decision, the district court noted that regardless of whether Gyllenborg failed to discuss the important aspects of the criminal proceeding at that first meeting, Horn did not claim these topics were not discussed later in the representation. Additionally, as the State points out, there is nothing in the record to support Horn's self-serving statement that Gyllenborg insinuated he would get preferential treatment because of his previous affiliation with the Johnson County District Attorney's Office. Counsel made no “mistakes” during his first meeting with Horn.
Horn next complains at his first appearance, conducted by two-way audio-video communication, he could not see the judge and barely heard him. Horn states he could not determine if there was an attorney in the courtroom representing him, which amounted to no representation at all. He further complains he was not informed he could have opted to appear in person before the judge instead.
The district court noted K.S.A.2004 Supp. 22–2802(11) provided that at the judge's discretion, a first appearance may be conducted by two-way electronic audio-video communication, but a defendant shall be informed of his or her right to be personally present in the courtroom upon request. The district court ruled this did not show counsel was incompetent because the record lacked any evidence that Horn ever told anyone he was unable to see or hear the proceedings or that he was not timely told of his right to be personally present in the courtroom for the first appearance. Additionally, at the plea withdrawal hearing Dunn testified she was present and represented Horn at the first appearance. Counsel provided effective assistance during Horn's first appearance.
Horn contends at Gyllenborg's third visit with him, he questioned Gyllenborg about the timing of the preliminary hearing and speedy trial rules but Gyllenborg told him those rules did not apply in Johnson County. Horn maintains Gyllenborg did not explain what would occur at the next meeting and failed to discuss the elements of the charges against him. Horn claims in fact that neither Dunn nor Durrett discussed the elements of the crimes charged against him.
The district court found counsel competently informed Horn of topics relevant to the criminal prosecution in his case. Dunn made the third visit to Horn. Dunn testified during that meeting, she spent 3.5 hours discussing the evidence and case with Horn. Dunn further testified she sent Horn copies of the relevant PIK instructions to show him the elements of the offenses and they were always aware of speedy trial issues. Durrett testified Horn was very aware of his case; every issue was identified for him, and he raised issues for them to research. Counsel was not ineffective for failing to explain procedures or the elements of the charges.
Horn next complains he did not understand the procedure for a preliminary hearing and he waived his right to a preliminary hearing with no benefit to him. According to Horn, Gyllenborg's three reasons for waiving the hearing—bad publicity, the possibility of the judge adding charges, and fear of incensing the victim's family—were specious at best. Horn believes there was nothing to indicate publicity would hurt his case; the double rule would have protected him from any additional charges lengthening his sentence; and the idea that incensing the family could have hurt his chances for a plea agreement made no sense when Gyllenborg told him the State would not be offering him any deals.
The district court found counsel's advice to waive the preliminary hearing was competent representation based on the strength of the State's case, the potential benefit to be gained from waiving the preliminary hearing, and Horn's own insistence that the child not be forced to testify. Dunn testified it would have been her standard operating procedure to explain the preliminary hearing procedures to a defendant. Regarding waiver of Horn's preliminary hearing, Dunn believed if the preliminary hearing drew press interest, it could put pressure on the prosecutor to get a tougher sentence. Another concern for Dunn was memorializing the child's testimony in the event the child could not be produced for trial. Dunn testified after she explained her reasoning to Horn, he authorized her to cancel the preliminary hearing. Counsel provided effective assistance regarding the preliminary hearing.
Horn states after he waived the preliminary hearing a long series of continuances occurred that coincided with the jail farming him out to other county jails. Horn complains communication with Gyllenborg was difficult and he did not understand the significance of the continuances being charged to him.
The district court found Horn was aware the transfers were due to overcrowding and not due to any fault of counsel. The district court noted again that Horn was well-informed of the proceedings taking place. Additionally, Dunn testified they tried to stop the jail from farming Horn out to other facilities with no success. Furthermore, Dunn testified many of the continuances were a result of their efforts to bring in experts to evaluate Horn in light of his request that they explore a mens rea defense. The continuances that occurred in this case did not show ineffective assistance of counsel.
Horn next briefly argues counsel was ineffective for failing to keep him advised of plea negotiations. The district court found Horn was kept adequately apprised of plea negotiations. Early in the representation, the district attorney was inviting plea offers. Dunn discussed this with Horn, but Horn wanted to offer only probation. Dunn explained to him that based on their experience, probation was highly unlikely. At some point the district attorney suggested bringing him a plea offer where Horn would serve 10 years. Counsel discussed this with Horn and urged him to consider making the offer because an offer of probation was just not credible. Counsel was not ineffective for failing to keep Horn advised of plea negotiations.
Horn next makes several allegations with minimal to no argument. He contends Counts IV and VI were multiplicitous but counsel never filed a motion complaining of double jeopardy or sought a bill of particulars; he was never shown the State's departure motion and he did not understand how a departure worked; no one had the child's videotape reviewed by an expert; and Horn was told the prosecutor agreed to withdraw the departure motion and the case could still proceed to trial.
The district court found counts IV and VI were not multiplicitous. Each count covered a time frame of approximately 1 year during which the sodomy was alleged to have occurred. Gyllenborg was aware that many more incidents were not charged, which in part led him to forgo a bill of particulars and the preliminary hearing. Durrett testified she talked to Horn about sentencing departures and she communicated their strategy to fight a potential departure. Gyllenborg could not recall whether they had a psychologist or psychiatrist review the child's videotaped interview, but he clarified that would have been within Dunn's purview. Dunn was never asked this question. Finally, Horn does not explain how his contention he was told the prosecutor would withdraw the departure motion and proceed to trial constituted ineffective assistance. Horn's allegations do not demonstrate counsel provided ineffective assistance.
Horn contends the most egregious failure of counsel was shown by the filing and later withdrawal of a motion to suppress his taped interview. He contends the motion was the key to his chance to defend his case at trial and it was withdrawn on the mere hope of a plea.
The district court ruled the decision to withdraw the motion to further plea negotiations was a “tactical decision made with Defendant's consent because it had little chance of success.” Gyllenborg testified the assistant district attorney told him that if the motion was withdrawn, the State would consider a plea of around 10 years. Gyllenborg further testified the motion had little chance of succeeding and even if it did, the trial would have gone forward with the child's testimony. In Durrett's opinion, the interview with the detective was “pretty clean” and there was little likelihood the motion would prevail. She discussed the motion with Horn and Dunn. Horn agreed with their assessment; it was a mutual decision to withdraw the motion to suppress. Counsel did not provide ineffective assistance regarding the withdrawal of the motion to suppress.
According to Horn, the worst example of counsels' representation was trial preparation. Horn notes Gyllenborg was out of town the week before trial and contends when he tried to speak with Gyllenborg about trial preparation, he was put off. According to Horn, it was undetermined who would be responsible for what aspects of the trial. Horn states he was so dissatisfied with counsel that he drew up but never filed a document to remove counsel. Horn asserts the night before the pretrial conference, Gyllenborg told him there was no plea offer and he should just plead guilty. Horn maintains he followed his attorney's advice and pled with no consideration from the State.
The district court ruled counsel had prepared a defense strategy and kept Horn adequately appraised of that strategy and plea negotiations. Dunn testified about their efforts to bring in experts to evaluate Horn for a possible mens rea defense that Horn himself was urging. Each evaluation, as well as the decision that the evaluations were not helpful, was discussed with Horn. Durrett testified she always communicated with Horn and the week before trial, the attorneys were in “full trial mode”—everything was ready to go with testimony and questions typed out. Although Gyllenborg was away the week before the pretrial conference, Durrett testified she was in constant contact with him. Durrett further testified, while she was preparing for trial, she also prepared Horn for testifying if he decided to do so. Gyllenborg testified he was working on opening and closing arguments and Durrett was working on voir dire. Both Durrett and Dunn were working on the cross-examination of the child. In the end, the district attorney was unable to agree to any plea offer. Gyllenborg testified Horn wanted to plead; he did not want a trial. According to Gyllenborg, Horn was involved in every aspect of his case and paramount to Horn was his desire that the child not be put on the stand and avoidance of any trauma to the family from a trial. Gyllenborg testified, “[F]rom the very beginning the issue of guilt or innocence was not a major component of our discussions. He understood what he'd done. He understood what the evidence was against him.” Counsel was prepared for trial, and Horn voluntarily entered guilty pleas without any deal from the State.
The district court concluded:
“The Defendant had the benefit of three legal minds, not merely one as the usual case for a criminal defendant, working on his case. Furthermore, those attorneys were retained by this Defendant, not thrust upon him, as his choice.
“The Court finds that, although Defendant was not educated in the specifics of criminal law and procedure at the time of the trial proceedings, he was over 60 years old, well-educated, intelligent, and actively participated in his representation. Trial counsel were members in good standing of the Kansas bar, had significant experience in criminal law, consistently communicated with Defendant, ensured that Defendant knew as much as he needed and desired to know about the proceedings taking place and the applicable law, and involved Defendant in all material decisions.”
The district court did not abuse its discretion in denying Horn's motion to withdraw plea based on counsels' competency.
Was the Plea Knowing and Voluntary?
The morning of trial when Horn announced his intent to enter a guilty plea, the courtroom was full of potential jurors. As a result, the plea proceeding took place in the jury room. The public was not excluded. Horn now contends his plea was not in open court, providing good cause to withdraw his plea.
The district court, citing Morris v. State, 2 Kan.App.2d 34, 573 P.2d 1130 (1978), ruled the plea was entered in open court. Morris is on point. In that case, the defendant's plea was taken in the judge's chambers instead of the courtroom because the jury pool was in the courtroom. The Morris panel found the procedure employed was at most an irregularity. Morris noted the judge, prosecutor, defendant, defense counsel, and court reporter were present. Defendant made no objection to the location, and there was no showing that anyone was excluded from the proceeding. The Morris panel concluded: “If the purpose of the ‘open court’ provision is the same as the constitutional guarantee of a ‘public trial,’ i.e., to eliminate secret proceedings with their potential for tyranny and coercion, that purpose was adequately fulfilled in this case.” 2 Kan.App.2d at 37.
Horn's plea was taken in the jury room instead of the courtroom in order to avoid prejudicing the prospective jurors who were gathering in the courtroom. The judge, prosecutor, defendant, defense counsel, and court reporter were in the room. Horn did not object to the location of the plea hearing. The trial court in this case made specific findings that no member of the public was excluded and that it was necessary to take the plea in the jury room in order to avoid prejudicing potential jurors sitting in the courtroom. Horn's plea was taken in open court.
Horn next contends the district court did not comply with K.S.A.2012 Supp. 22–3210(a)(2) for several reasons. First, he contends the district court judge failed to inform him of the penalty he faced, specifically the postrelease supervision period and the possibility of fines. Second, Horn contends the district court judge failed to inform him of various rights including his right to assist in selection of jurors; that if he chose not to testify jurors would be informed his silence could not be used against him; that if he was convicted at trial he had a right to appeal the conviction and he would have the right to assistance of counsel and appointed counsel if he could not afford one.
Horn has failed to preserve his contention that the judge failed to inform him of the postrelease supervision period. Although in his brief filed in support of his motion to withdraw, Horn mentioned in one sentence the lack of information on postrelease supervision, he did not raise this argument in the motion to withdraw plea or with the district court during the hearing on the motion. Generally, issues not raised before the district court cannot be raised on appeal. State v. Foster, 290 Kan. 696, 702, 233 P.3d 265 (2010); see also State v. McDaniel, 255 Kan. 756, 766, 877 P .2d 961 (1994) (court declined to consider defendant's argument raised for the first time on appeal that the district court failed to comply with K.S.A. 22–3210, in part because the State did not have an “opportunity to present evidence to refute McDaniel's contentions”). There are exceptions to this rule; however, Horn fails to explain why the panel should consider his argument, and he fails to argue any of the three recognized exceptions to the general rule apply. See State v. Johnson, 293 Kan. 959, 964–65, 270 P.3d 1135 (2012). Regarding Horn's claim that he was not informed of potential fines at the plea hearing, he fails to suggest fines are a direct consequence of a plea. See State v. Moody, 282 Kan. 181, 195–96, 144 P.3d 612 (2006). But even if fines are a direct consequence of a plea, any error here would be harmless when no fine was ultimately imposed.
It is well established that a defendant who pleads guilty to a crime waives certain fundamental constitutional rights, including the privilege against compulsory self-incrimination, the right to a jury trial, and the right to confront one's accusers. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Moses, 280 Kan. 939, 946, 127 P.3d 330 (2006). Nevertheless, “ ‘[f]or this waiver to be valid under the Due Process Clause, it must be “an intentional relinquishment or abandonment of a known right or privilege.’ “ [Citations omitted.]” Moses, 280 Kan. at 946. If a review of the entire record demonstrates the plea was knowingly and voluntarily made, the trial court's failure to strictly comply with K.S.A.2012 Supp. 22–3210(a) may be harmless error. State v. Edgar, 281 Kan. 30, 37–38, 127 P.3d 986 (2006).
The district court found Horn was informed of the rights he was giving up by pleading guilty—“[t]here was no deficiency in the topics covered by the court at the plea hearing.” The district court told Horn he would be giving up a number of rights by pleading guilty including his right to have a jury trial of 12 people; his right to have the witnesses testify in his presence and that his attorneys would be allowed to question those witnesses; he had a right to be presumed innocent at trial; he had the right to testify at trial or he could choose not to testify; he had a right to present evidence and subpoena or require various witnesses to attend the trial and testify; and a right to be proven guilty beyond a reasonable doubt. Finally, the district court asked Horn if he had any questions and whether he understood everything discussed. Horn had no questions and indicated he understood. The record of the plea hearing shows Horn was adequately informed of the consequences of his plea and that he entered it knowingly and voluntarily.
For his last issue, Horn argues the factual basis to support the charges lacked sufficient particularity to provide him with double jeopardy protection. The district court found a factual basis for the pleas was established and adequately placed Horn on notice of the charges for purposes of double jeopardy. When the court accepted Horn's pleas, it took judicial notice of Horn's taped interview/confession that formed the basis for the complaint. The State read into the record the allegations contained in the complaint. The court then asked Horn if he agreed the State's rendition was accurate and that he actually committed the acts set forth in Counts I through VII. Horn responded, “Yes.” The district court further asked Horn if he had an opportunity to discuss the definitions of the terms such as sodomy and lewd fondling and whether he had any questions regarding whether he was guilty of those offenses. Horn answered, “No.” Horn notes that in Widener v. State, 210 Kan. 234, 239–40, 499 P.2d 1123 (1972), the complaint read to support the factual basis for the plea provided more detail then the complaint here. But Horn does not argue his taped interview had inadequate facts to support the pleas. This issue has no merit.
It bears noting that the trial court in this case did a thorough job in conducting 3 days of hearings and issuing a 26–page opinion. The opinion carefully considered and analyzed each of Horn's contentions and appropriately applied the three Edgar factors.
Affirmed.