Opinion
No. 108,071.
2013-05-17
STATE of Kansas, Appellee, v. Cory Lavell JONES, Appellant.
Appeal from Crawford District Court; A.J. Wachter, Jr., Judge. Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Crawford District Court; A.J. Wachter, Jr., Judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., BRUNS, J., and HEBERT, S J.
MEMORANDUM OPINION
PER CURIAM.
Cory Lavell Jones filed this appeal arguing that the district court erred in denying his motion to withdraw his plea. Specifically, he claims that the court failed to notify him that he would be subject to a 24–month term of postrelease supervision or that he would be subject to a $300,000 fine. Jones further argues that the court did not have jurisdiction to convict him because he did not waive his right to a preliminary hearing and the court did not bind him over for trial before he entered his plea. We conclude that Jones should be permitted to withdraw his plea and, accordingly, we reverse the conviction and remand for further proceedings.
Facts
On March 29, 2011, the State filed a five-count complaint against Jones, including one count alleging that he possessed cocaine with intent to sell. By the time the preliminary hearing was convened, the State and Jones had reached an oral plea agreement. Under the agreement, Jones would stipulate that he violated his probation. The district court then discussed Jones' likely term of imprisonment. The court told Jones that he would serve between 46 to 51 months in prison for cocaine possession and that the standard sentence would be 49 months. This sentence would run consecutive to the underlying 40–month prison sentence Jones would serve in the probation violation case. Thus, in total, Jones would be incarcerated for 77 months if the court granted him a 12–month downward departure from his presumptive sentence in the cocaine possession case. Jones confirmed that he understood his likely terms of imprisonment.
The district court and Jones then engaged in the following colloquy:
“THE COURT: All right. And you understand if you enter a plea you'll be waiving a preliminary hearing that we're here to have today. Preliminary hearing is [a] probable cause hearing where the State is obligated to present evidence sufficient to convince the judge that there's probable cause that the crimes charged in [the cocaine possession case] have been committed and that you committed those crimes; do you understand that?
“JONES: I understand.
“THE COURT: And if they accomplish that then the Court would bind you over for a trial to a jury on all those charges; do you understand that?
“JONES: Yes, Your Honor.
After Jones waived his various trial rights, the district court then reminded Jones that his total term of imprisonment would be 77 months. Again, Jones confirmed he understood. Jones then pled guilty to possession of cocaine with intent to sell, and the State presented a factual basis to support the charge. When asked by the court, defense counsel agreed that the State's factual basis was sufficient to support a conviction. Accordingly, the court accepted Jones' plea and convicted him of the cocaine possession charge.
But before the district court sentenced Jones, he filed a motion to withdraw his plea. A hearing ensued, at which both Jones and his previous defense attorney, Frederick Smith, testified. Although they testified on a host of issues, only the three issues raised on appeal are discussed below.
First, defense counsel claimed that the district court failed to specifically find that Jones waived his right to a preliminary hearing or that the State proved probable cause to believe that Jones possessed cocaine. Neither Jones nor the State elicited any testimony directly on this issue.
Second, Jones testified that he was not aware that he could be fined if he were convicted of cocaine possession. Smith, however, testified that before Jones pled guilty, Smith informed him that his conviction could result in a $300,000 fine.
Third and finally, Jones testified that neither the district court nor Smith informed him that he could be subject to postrelease supervision and that he was unaware of his postrelease supervision term. On cross-examination, Jones could not recall whether he had been advised of the postrelease supervision period when he made his first appearance. Meanwhile, though Smith could not recall whether he discussed postrelease supervision with Jones before he entered his guilty plea, Smith did recall that he spoke to Jones about receiving good-time credit against his prison sentence.
The district court ultimately rejected Jones' motion to withdraw his plea. In explaining its ruling, the court largely reasoned that it did not need to specify the collateral consequences of the plea before Jones entered into it.
Afterward, the district court ordered Jones to serve consecutive prison sentences of 40 months for the probation violation and 37 months for cocaine possession. The court also ordered Jones to serve consecutive postrelease supervision terms of 12 months for the probation case and 24 months for the cocaine conviction.
However, the district court did not impose any fine against Jones based on his cocaine possession conviction.
Jones filed a timely notice of appeal.
Motion to Withdraw Plea
“A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.” K.S.A.2012 Supp. 22–3210(d)(1). On appeal, the defendant must establish that the trial 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).
Analysis
Jones argues that the district court erred by failing to permit him to withdraw his plea. His argument is two-fold. First, he contends that due process requires that he be allowed to withdraw his plea because he was not informed of the term of his postrelease supervision period when he entered into the plea. Second, he argues that the court erred by failing to inform him, before he pled guilty, that his conviction could result in a maximum fine of $300,000.
Both arguments—and the State's rebuttal—are discussed below.
Postrelease Supervision
The applicable law on this issue is clear and need only be briefly explored. Due process requires that a criminal defendant must be informed of the direct consequences of his or her plea. K.S .A.2012 Supp. 22–3210(a)(2) (codifying constitutional due process requirement by specifying that in felony cases the district court must inform “the defendant of the consequences of the plea, including ... the maximum penalty provided by law”); see State v. Moody, 282 Kan. 181, 194, 144 P.3d 612 (2006). Conversely, a district court need not inform a criminal defendant of the collateral consequences of his or her plea. Moody, 282 Kan. at 194–95; see State v. Sedillos, 279 Kan. 777, Syl. ¶ 8, 112 P.3d 854 (2005).
In Moody, our Supreme Court held that mandatory postrelease supervision is a direct consequence of a plea because it is definite, automatic, and immediately follows a period of imprisonment. 282 Kan. at 195–96. Indeed, about 6 months before Moody, this court reached a similar conclusion. See State v. Barahona, 35 Kan.App.2d 605, 613, 132 P.3d 959,rev. denied 282 Kan. 791 (2006) (postrelease supervision is not speculative or conditional; it is a direct penal consequence of the plea). But despite this recognition, the court in Barahona concluded that any error in that case was harmless because the defendant's term of imprisonment and postrelease supervision was less than the total penalty disclosed to him at his plea hearing. 35 Kan.App.2d at 614–15 (agreeing with a host of federal jurisdictions that a criminal defendant's right to due process is not violated for failure to advise of the defendant of postrelease supervision “ if the sentence assigned to the defendant and any mandatory supervised period does not exceed the maximum penalty term that the defendant was told at sentencing”).
At Jones' plea hearing, the district court made clear that the maximum prison sentence for the cocaine possession charge would be 51 months, and that it would run consecutive to the 40–month underlying sentence in his probation violation case. The court, however, did not inform Jones that he would be subject a term of postrelease supervision.
The record fails to suggest that Jones otherwise knew he would be placed under postrelease supervision. There was no written plea agreement that might have informed Jones that he would be subject to postrelease supervision. Although the State argued at the withdraw-of-plea hearing that Jones might have been informed of postrelease supervision at his first appearance, a record of this hearing, if any, has not been submitted into the appellate record. And finally, Smith testified that he could not recall whether he discussed postrelease supervision with Jones before he pled guilty. Therefore, the record fails to establish that when he entered his plea, Jones knew that he would be placed under postrelease supervision.
Although the State appears to concede that Jones did not know of his postrelease supervision before entering into his plea, it nonetheless contends that any error was harmless because the sum of Jones' total penalty—the sum of his imprisonment and postrelease supervision terms—is equal to the 51–month maximum term of imprisonment specified to him at his plea hearing. But this calculation is based on fuzzy math: The court sentenced Jones to 37 months in prison and 24 months of postrelease supervision, which add up to 61 months. Consequently, because Jones was not made aware of a direct consequence of his plea, and because this error was not harmless, Jones must be permitted to withdraw his plea. See Moody, 282 Kan. at 195–96.
$300,000 Fine
Jones also argues that the district court erred by failing to inform him, before he pled guilty, that his conviction could result in a fine of up to $300,000. Notwithstanding whether a fine is a direct or collateral consequence of the plea, Jones' argument fails for two reasons. First, Smith testified that before Jones pled guilty, Smith informed Jones that his conviction could result in a fine up to $300,000. See Noble v. State, 240 Kan. 162, 164–65, 727 P.2d 473 (1986) (strict compliance with K.S.A. 22–3210 is not required if the criminal defendant is otherwise informed of the direct consequences of his or her plea). Second, the court did not fine Jones for his cocaine possession conviction, thus rendering any error harmless.
Waiver of Preliminary Hearing and Bind Over
Standard of review
Jones argues that he did not expressly waive his right to a preliminary hearing and that the district court failed to bind him over for trial. He contends that these “jurisdictional” errors render his guilty plea null and void. Whether the district court has jurisdiction is a question of law subject to unlimited review. State v. McDaniel, 292 Kan. 443, 444–45, 254 P.3d 534 (2011).
Analysis
Since we have determined that Jones must be allowed to withdraw his plea, we will only briefly address the question of whether he expressly waived his right to a preliminary hearing.
The colloquy during which the district court failed to properly advise Jones regarding postrelease supervision was part and parcel with the colloquy regarding waiver of preliminary hearing. In the context thus presented, the understanding of the preliminary hearing expressed by Jones may very well be tainted by the incomplete advice regarding sentencing and postrelease. Since the topics were inextricably woven together, we must conclude that the waiver of preliminary hearing was not freely and knowingly made. Upon remand, Jones would be entitled to a preliminary hearing unless he clearly and unequivocally waives that right.
Jones also raises sentencing issues under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 435 (2000), regarding use of his prior convictions and juvenile adjudications. Since we are remanding the case to allow withdrawal of the guilty plea and for further proceedings, we need not address those issues herein.
Reversed and remanded.