Opinion
No. 106,236.
2012-12-21
STATE of Kansas, Appellee, v. Cameron D. JONES, Appellant.
Appeal from Johnson District Court; Sara Welch, Judge. Meryl Carver–Allmond, of Kansas Appellate Defender Office, for appellant. Emilie Burdette, assistant district attorney, Stephen M. Howe, district attorney, Steven J. Obermeier, assistant district attorney, Thomas DeBacco, legal intern, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Sara Welch, Judge.
Meryl Carver–Allmond, of Kansas Appellate Defender Office, for appellant. Emilie Burdette, assistant district attorney, Stephen M. Howe, district attorney, Steven J. Obermeier, assistant district attorney, Thomas DeBacco, legal intern, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., MALONE, C.J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Cameron Jones appeals the district court's denial of his motion to withdraw plea. Jones also contends that the district court violated his constitutional rights by enhancing his sentence based upon his prior criminal history without requiring his criminal history to be proven to a jury beyond a reasonable doubt. For the reasons set forth herein, we affirm the district court's judgment.
Jones was initially charged with rape, aggravated battery, and burglary of a residence, all arising from a February 2009 incident in which Jones allegedly entered the home of his former girlfriend without her consent and raped and beat her. After extensive plea negotiations, the State agreed to amend the complaint by dismissing the rape charge and adding a charge of attempted robbery. In exchange, Jones agreed to plead guilty to the aggravated battery charge and no contest to the burglary and attempted robbery charges. Jones also stipulated that there were substantial and compelling reasons for upward dispositional and durational departures, and he agreed to a total sentence of 90 months' imprisonment.
At the plea hearing, Jones confirmed that he had spoken with his counsel, Michael McCulloch, about the remaining charges and penalties, and he stated that he was satisfied with his counsel's services. The district court then highlighted several provisions of the plea agreement, including Jones' stipulations to upward dispositional and durational departures, and the district court confirmed that Jones understood the rights he was waiving with respect to the departure motions. The district court also confirmed that Jones was agreeing to a total sentence of 90 months' imprisonment. Finally, the district court explained the general rights Jones was waiving by entering pleas. After hearing the factual basis for the pleas, the district court found Jones guilty of the three charges in the amended complaint and scheduled sentencing for a later date.
Before sentencing, McCulloch was permitted to withdraw as counsel and a new defense counsel was appointed for Jones. Jones then filed a motion to withdraw his guilty pleas, arguing that good cause existed because at the time he entered his pleas, he was under the mistaken belief that he could receive a sentence of 90 months' imprisonment based solely on the remaining aggravated battery, burglary, and attempted robbery charges. In other words, Jones claimed he did not understand that the agreed sentence of 90 months' imprisonment under the plea agreement could not be reached without the upward durational departure. Jones contended that he would have been acquitted of the rape charge had he gone to trial. He alleged that he accepted the plea agreement only because he believed he was receiving a similar sentence to the sentence he would have received had he gone to trial and been acquitted of rape but convicted of the other charges. In fact, based on his criminal history score of D, Jones would have received a maximum of 52 months' imprisonment had he been acquitted of rape but convicted of the other charges.
The district court held a hearing, at which Jones waived his attorney-client privilege and called McCulloch to testify. McCulloch testified that he discussed with Jones the charges he was facing, including the rape charge, and explained how the sentencing guidelines worked. McCulloch confirmed that Jones believed he would be acquitted on the rape charge. McCulloch also testified that he discussed with Jones the fact that if Jones were acquitted on the rape charge, the maximum sentence Jones could receive under the sentencing guidelines for the remaining charges was 52 months' imprisonment. In that context, McCulloch explained why an upward durational departure was necessary to reach the agreed sentence under the plea agreement of 90 months' imprisonment. McCulloch stated:
“[Jones] understood that in exchange for dismissing the rape count, that he would have to agree to an amount of time that would require an upward durational departure, and a dispositional departure since he would be pleading to [level seven felonies] which would be presumptive probation. He understood the bargain for the exchange. We talked about that.
....
“We talked about exactly what he would be pleading to, what he would be looking at under the [sentencing] grid. Specifically we talked about how the numbers for the [aggravated battery, burglary, and attempted robbery] would add up to 52, and how we needed to get to that number so we could double them to get to 90; again in exchange for the dismissal of the rape which carried 260 something months, if I remember right, 253 mid-box, as a [criminal history score of] D.”
Jones testified on his own behalf. He conceded that he had agreed to a sentence of 90 months' imprisonment under the plea agreement, but he stated that nobody had explained to him how that number had been determined. Jones testified he did not understand that the maximum presumptive sentence he could have received for the aggravated battery, burglary, and attempted robbery charges was 52 months' imprisonment. Jones believed he would have been acquitted of the rape charge and stated that had he known 52 months' imprisonment would have been the maximum sentence excluding the rape charge, he would not have accepted the plea agreement. Jones acknowledged that he had received a substantial benefit from the plea agreement because the sentence in the present case was to be run concurrently with his sentences in earlier cases, he was eligible for a greater percentage of good-time credit, and he would not have to register as a sex offender because the rape charge was dismissed.
After hearing the evidence and arguments by the parties, the district court denied Jones' motion to withdraw plea, finding that Jones had not demonstrated the requisite good cause. The district court stated:
“[T]he Court is required to consider, among other things, three of the factors set forth in State v. Edgar[ ] ... and that is, Number 1, was the defendant represented by competent counsel? I believe Mr. McCulloch, not only does his memory for detail and thoroughness presented in his testimony today indicate he's competent counsel; he is the head District Defender. This Court has had cases with him, both with him as an adversary when I was practicing law, and I've also had him practice numerous times in my Court; and Mr. McCulloch is certainly competent counsel. Number 2, the defendant was misled, coerced, mistreated, or unfairly taken advantage of. There is clearly no indication of coercion, mistreatment, or unfairness on Mr. McCulIoch's part. I suppose [Jones] could claim that he was misled based upon Mr. McCulIoch's advice to him, and in speaking with him; but again, Mr. McCulIoch's memory of these conversations and the notes that he indicated he made ... indicate that the appropriate information was provided to [Jones].... I can't find that he was misled in any way. It sounds like he was very thoroughly advised of the potential penalties had he gone to trial on the [prior] complaint.... I would also note that the plea agreement of the parties in this case was extensive, thorough, and every paragraph was initialed by the defendant....
“With respect to Paragraph 14 [of the plea agreement] ... the defendant stipulates that there is substantial and compelling reasons for the Court, and not a jury, to grant an upward durational departure, and essentially double each of his sentences in this matter, which is in essence what happened here. There is a subparagraph in that particular Paragraph 14 ... where yet a second time it says, ‘The defendant agrees to the upward durational departure/double sentences as part of plea negotiations.’ Paragraph Number 16. The defendant agrees to upward durational departure on all counts', and Number 17, ‘The defendant agrees to a total sentence of 90 months in this case.’... What I believe is happening here, and I don't know any other way to put it, is buyer's remorse, that Mr. Jones clearly understood he was entering into an agreement for a 90–month prison sentence, and that agreement was reached by way of the [amended] complaint, and an agreement to an upward durational departure; and that after the fact, perhaps there was, what I would call, some second guessing, I guess, about the wisdom of his decision to enter into that. He did enter into that. I believe he entered into it knowingly, and being fully informed of what the potential penalties were. In looking at the third factor, was the plea fairly and understandingly made? I believe it was.”
At sentencing, the district court found that there were substantial and compelling reasons to support the State's upward dispositional and durational departure motions. The district court granted the motions and sentenced Jones to a controlling term of 90 months' imprisonment. Jones timely appealed the district court's judgment.
On appeal, Jones argues that his failure to understand that he could not be sentenced to 90 months' imprisonment under the plea agreement unless he also agreed to an upward durational departure undermined the basis for the bargain and constituted good cause to withdraw his plea. He also contends that the district court failed to properly consider whether his defense counsel was incompetent for failing to fully explain the potential penalties to him in a manner he could understand. The State argues that the district court did not abuse its discretion in denying Jones' motion to withdraw plea.
The district court, for good cause shown and in its discretion, may permit a defendant to withdraw a plea of guilty or nolo contendre at any time before sentence is adjudged. K.S.A.2011 Supp. 22–3210(d)(1). Kansas courts review the following three factors when considering whether the requisite good cause has been shown: (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. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). While these factors are viable benchmarks for judicial discretion, they should not be relied upon to the exclusion of other factors. State v. Aguilar, 290 Kan. 506, 512, 231 P.3d 563 (2010).
An appellate court reviews the district court's denial of a presentence motion to withdraw plea for abuse of discretion. Generally, the district court's decision is protected if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and takes into account the applicable legal standards. However, an abuse of discretion may be found if the district court's decision goes outside the framework or fails to properly consider statutory limitations or legal standards. The defendant bears the burden of establishing the abuse of discretion. State v. Schow, 287 Kan. 529, 541, 197 P.3d 825 (2008).
Jones argues that the district court failed to properly consider the first Edgar factor, i.e., whether the defendant was represented by competent counsel, because the district court merely recited that Jones' attorney, McCulloch, had a reputation for being a competent lawyer. Jones cites Aguilar, a case in which the defendant filed a motion to withdraw plea based on ineffective assistance of counsel and a conflict of interest with counsel. 290 Kan. at 508. The district court denied the motion to withdraw plea and specifically rejected the defendant's argument that she received ineffective assistance of counsel, stating, “I've had [former counsel] in this courtroom a lot of times. I think he does a good job.” 290 Kan. at 510. On appeal, our Supreme Court found that a defendant need not demonstrate ineffective assistance rising to the level of a violation of the Sixth Amendment in order to withdraw a plea before sentencing, and that “[m]erely lackluster advocacy” may be sufficient to support the first Edgar factor providing good cause for withdrawal of a plea. 290 Kan. at 512–13. The Supreme Court further found that the district court's statement that it thought former counsel generally “does a good job” was insufficient to support a finding that counsel was competent. 290 Kan. at 515. The Supreme Court concluded that the district court's failure to apply the appropriate standards in the plea withdrawal hearing was an abuse of discretion. 290 Kan. at 515.
Jones' case is easily distinguishable from Aguilar. Here, there is no indication whatsoever that McCulloch's representation of Jones before and during the plea hearing was affected by any conflict of interest. And although the district court did state, in the context of discussing the first Edgar factor, that it thought McCulloch was a competent lawyer based on his previous work, it is clear from the rest of the district court's decision that it also considered the competency of McCulloch's work in Jones' case. Specifically, the district court credited McCulloch's detailed testimony regarding his conversations with Jones about the plea agreement and his explanations as to how the parties arrived at an agreed sentence of 90 months' imprisonment. The district court also found that the written plea agreement was extensive and thorough, which further reflected on the competency of McCulloch's representation of Jones. Under these circumstances, we cannot say that the district court's consideration of the first Edgar factor was so outside the bounds of relevant legal framework as to constitute an abuse of discretion.
Jones also contends that McCulloch's performance was deficient because McCulloch failed to fully explain the potential penalties to Jones in a way Jones understood. See State v. White, 289 Kan. 279, 285–86, 211 P.3d 805 (2009) (minimum standard for reasonable representation by an attorney representing a defendant considering whether to enter a guilty plea requires the attorney to advise the defendant of the range of permissible penalties and to discuss the possible choices available to the defendant). However, the district court explicitly found that McCulloch fully explained the mechanics of the plea agreement to Jones and that Jones clearly understood that the agreed-upon sentence of 90 months' imprisonment required upward dispositional and durational departures. These findings were adequately supported by McCulloch's testimony and by the written plea agreement itself, and the findings support the district court's conclusion that McCulloch's representation of Jones was competent.
Furthermore, the district court also explicitly considered the second and third Edgar factors and found that based on McCulloch's testimony as well as the written plea agreement, Jones had not been misled or coerced and that the plea was fairly and understandingly made. Based on the record for our review, we conclude the district court did not abuse its discretion in denying Jones' motion to withdraw plea.
Finally, Jones argues that the district court violated his Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by enhancing his sentence based upon his prior criminal history without requiring that his criminal history be proven to a jury beyond a reasonable doubt. Jones acknowledges that our Supreme Court has decided this issue against him in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Our Supreme Court continues to reaffirm its precedent on this issue. E.g., State v. Peppers, 294 Kan. 377, 379, 276 P.3d 148 (2012). Thus, the district court did not err in sentencing Jones.
Affirmed.