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State v. King

Court of Appeals of Kansas.
Mar 8, 2013
296 P.3d 1140 (Kan. Ct. App. 2013)

Opinion

No. 107,887.

2013-03-8

STATE of Kansas, Appellee, v. Andrew KING, Appellant.

Appeal from Seward District Court; Clint B. Peterson, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Seward District Court; Clint B. Peterson, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.

MEMORANDUM OPINION


PER CURIAM.

In this appeal, Andrew King argues that he had good reasons to withdraw his no contest plea and the district court erred when it ruled he did not. Because King made his motion before sentence was passed, this is a matter of discretion on the part of the district court. Our examination of the record on appeal leads us to the conclusion that the district court did not abuse its discretion and ruled correctly. Therefore, we affirm.

Case history.

In September 2010, the State charged King with rape, aggravated kidnapping, domestic battery, and criminal damage to property. Later, the State added a charge of criminal threat.

The State and King entered into a plea agreement where the State would dismiss all of the charges in exchange for King pleading no contest to one count of aggravated burglary with the intent to commit a sexual battery in violation of K.S.A. 21–3716. The parties agreed that the State would amend the complaint and dismiss all other counts, neither party would ask for a departure at sentencing, and the State would recommend the standard number in the appropriate grid box. After asking King several questions at the time of taking his plea on December 10, 2010, the district court accepted King's plea and found him guilty of one count of aggravated burglary.

Before he was sentenced, King sent a letter to the district court telling the judge that he wanted to withdraw his plea. In response, the district court appointed new counsel, and King filed a motion to withdraw his no contest plea. In his motion, King contended that his plea was not fairly and understandably made because defense counsel coerced and misled him into accepting the plea agreement. King argued: (1) He entered his plea despite actually wanting to proceed to trial because no DNA evidence connected him to the alleged crimes; (2) he only accepted the plea agreement because defense counsel assured or promised him that he would receive probation; and (3) it was unclear as to the events that took place during the plea hearing because his understanding of the plea agreement was that he would receive probation regardless of his criminal history category.

After that, the same district judge that accepted King's plea heard his motion to withdraw that plea and entertained evidence upon the motion. Both King and his former defense counsel testified about the circumstances surrounding the plea agreement and the entry of King's plea. After hearing the evidence, the district court denied King's motion.

The court proceeded with sentencing. King agreed that his criminal history placed him in category B of the sentencing grid. The court imposed a presumptive term of 128 months' incarceration for the aggravated burglary conviction. Based on its findings and the parties' agreement that the crime was sexually motivated, the district court also imposed a 60–month postrelease supervision period under K.S.A.2010 Supp. 22–3717(d)(1)(D)(i) and ordered King to register under the Kansas Offender Registration Act.

We list some fundamental points of law concerning pleas.

A valid plea of guilty must be freely, knowingly, and understandably made. Such a plea induced by promises or threats which deprive it of its voluntary character is void. Morrow v. State, 219 Kan. 442, 445, 548 P.2d 727 (1976). Defense counsel must fully and frankly advise his or her client about the range of permissible penalties and the possible choices open to him or her. Failure to fulfill these obligations can have a significant effect on the voluntariness of an accused's guilty plea. Morrow, 219 Kan. at 445–46.

Before passing sentence, a district court at its discretion may permit a plea of guilty or no contest to be withdrawn for good cause shown. K.S.A.2010 Supp. 22–3210(d)(1). On appeal, the defendant must establish that the trial court abused its sound discretion in denying such a motion to withdraw a plea. State v. White, 289 Kan. 279, 284–85, 211 P.3d 805 (2009). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).

Finally, a claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089 (2011). In addition, a defendant's claim that a plea is involuntary because of ineffective assistance of counsel must overcome the presumption that defense counsel's assistance was reasonable. State v. Shears, 260 Kan. 823, 830, 925 P.2d 1136 (1996). In such a case, the defendant has the burden of showing:

“To set aside a guilty [or no contest] plea because ineffective assistance of counsel has rendered the plea involuntary, a defendant must show that counsel's performance fell below the standard of reasonableness and that there is a reasonable probability that but for counsel's errors the defendant would not have pleaded guilty and would have insisted on going to trial.' [Citation omitted].” Shears, 260 Kan. at 830.

We now review the evidence presented at the hearing on King's motion.

The record reveals that the district court ruled there was no good cause to allow King to withdraw his plea based upon the conclusion that King was not a credible witness. The judge made the following findings:

“I'm finding that [King] is not a credible witness, and I'm finding that [defense counsel] never instructed [King] to lie at any time. I am further finding that [defense counsel] fully explained to [King] the true consequences of his plea prior to it being entered on December 10th of 2010. I find, as I did on December 10th, that [King] entered his plea of no contest freely and voluntarily and that that plea was entered with the full understanding of its consequences. I will note that I am also finding that [King] lied under oath, that when he testified today that he lied back on December 10th, that statement precludes an argument to the contrary.”

The district court made the following findings concerning the testimony of defense counsel:

“Q. [State:] Okay. Prior to talking about the plea [at a suppression hearing], had you had earlier spoken with [King] about the case and about how the case could be resolved?

“A. [Defense Counsel:] Yes, I visited him in the jail ... four or five times, and we'd spoken about the plea several times and the implications of the plea several times.

....

“Q. Had you ever discussed with [King] about his criminal history?

“A. Yes.... He thought he had maybe one person felony, possible batteries out there, but wasn't sure. And we talked about what it could possibly be. Eventually, when we were getting closer to the plea agreement, through negation through you, it was going to depend on what [King's] criminal history was, so I went to [court services] and found either a prior PSI or prior journal entry indicating that [King] was a B criminal history, and we talked about that.

....

“Q. And so you believed that Mr. King's criminal history was going to be that of a B criminal history?

“A. Yes.

“Q. And you knew that prior to the time of his plea?

“A. Yes.

“Q. Had you discussed with [King] the implications of being a B criminal history as opposed to having less criminal history?

“A. Yes ... we went over the differences in a Level 5 since that was the plea, the differences in prison time between a one-person felony and two-person felonies.

....

“Q. All right. Had you ever told him that he would be eligible for probation under this plea agreement?

“A. No.”

In addition to this evidence, during the plea colloquy King admitted that his counsel had discussed the criminal history score with him. The following is disclosed in that record:

“MR. SCHOWENGERDT [defense counsel]: Thank you. Mr. King, you've indicated to me that you believe you may only have one person felony; is that correct?

“THE DEFENDANT: Yes.

“THE COURT: And I've indicated to you that I have seen a prior PSI that indicates that you're a B criminal history, correct?

“THE DEFENDANT: Yes.

“MR. SCHOWENGERDT: And you understand that three person misdemeanors can stack and be a person felony?

“THE DEFENDANT: Yes.

“MR. SCHOWENGERDT: Okay. So even if you believe you may be lower than a B, you understand that's possible, that you are a B criminal history?

“THE DEFENDANT: Yes.”

Also during that hearing prior to the entry of his plea, the district court asked King if he understood the charge and the possible penalty of between 31 months' and 136 months' incarceration depending on his criminal history, and King responded, “Yes.” King also told the district court that he was satisfied with his representation at that time.

Our reading of the record shows that the district court properly concluded King was not entitled to relief under K.S.A.2010 Supp. 22–3210(d)(1). Since the same district judge presided over the hearing on King's motion to withdraw his plea also took King's plea initially, we owe much deference to the judge who saw all of the proceedings first hand. See Chamberlain v. State, 236 Kan. 650, 659–60, 694 P.2d 468 (1985). King has failed to meet his burden to show that the district court has abused its discretion.

We deal with the final issues raised by King summarily.

King maintains that the district court erred by using his criminal history to enhance his sentence without first requiring the State to include his prior convictions in the complaint and prove those convictions before the jury beyond a reasonable doubt. Secondly, he complains that the court sentenced him to the aggravated sentence in the grid box without requiring the State to prove aggravated factors to the jury beyond a reasonable doubt. King concedes that the Kansas Supreme Court has rejected similar arguments in State v. Ivory, 273 Kan. 44, 45–48, 41 P.3d 781 (2002), and State v. Johnson, 286 Kan. 824, Syl. ¶ 5, 190 P.3d 207 (2008). He includes the issues to preserve them for federal review. At any rate, we reject them as being controlled by Supreme Court precedent to the contrary.

Affirmed.


Summaries of

State v. King

Court of Appeals of Kansas.
Mar 8, 2013
296 P.3d 1140 (Kan. Ct. App. 2013)
Case details for

State v. King

Case Details

Full title:STATE of Kansas, Appellee, v. Andrew KING, Appellant.

Court:Court of Appeals of Kansas.

Date published: Mar 8, 2013

Citations

296 P.3d 1140 (Kan. Ct. App. 2013)