Opinion
No. 110,623.
2014-11-26
STATE of Kansas, Appellee, v. Louis MARTINEZ, Appellant.
Appeal from Sedgwick District Court; John J. Kisner, Jr., Judge.Sean M.A. Hatfield and Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.Michelle K. Fry, legal intern, Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; John J. Kisner, Jr., Judge.
Sean M.A. Hatfield and Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant. Michelle K. Fry, legal intern, Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., BUSER and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Louis Martinez appeals the denial of his motion to withdraw his guilty plea after sentencing in Sedgwick County case No. 12 CR 1620 (2012 case). Pursuant to a plea agreement, Martinez' plea also involved Sedgwick County case No. 11 CR 3283 (2011 case), for which Martinez was serving probation when he committed the crimes in this 2012 case.
Factual and Procedural Background
In the 2011 case, Martinez was convicted of aggravated assault and sentenced with a B criminal history score. The district court granted Martinez' motion for departure and placed him on probation, but he violated that probation by failing a urinalysis. Nevertheless, the district court reinstated probation.
Martinez then committed the acts leading to the charges in the 2012 case. In particular, Martinez was charged with two felony counts of aggravated endangering a child (K.S.A.2011 Supp. 21–5601[b][1] ), one misdemeanor count of endangering a child (K.S.A.2011 Supp. 21–5601[a] ), and misdemeanor criminal damage to property (K.S.A.2011 Supp. 21–5813[a][1], [b][3] ).
According to Martinez' testimony at the plea withdrawal hearing, his counsel in the 2011 case was Vern Miller, who represented him through the first probation violation hearing. Miller was apparently not representing Martinez in the 2011 case, however, with regard to the second probation violation. The district court appointed Jama D. Mitchell of the Public Defender's Office to represent Martinez in the 2012 case. At some point, Mitchell apparently also became Martinez' counsel in the 2011 case.
On August 8, 2012, Martinez appeared for a joint hearing in both the 2011 and 2012 cases before Judge John J. Kisner, Jr. The hearing apparently had been scheduled in the 2011 case as a probation revocation hearing. But the district court also took up both the motion to withdraw his guilty plea and sentencing in the 2012 case.
Mitchell did not represent Martinez at the hearing, but another public defender, Mark Rudy, appeared instead. Rudy appeared because Mitchell had become ill and, as a result, was out of the office for an extensive period of time.
At the start of the hearing, Judge Kisner asked Martinez, “[W]ithin the last 24 hours, have you consumed any alcohol, medication, or other drugs to the effect that it would cause you to have any difficulty understanding what's going on here today?” Martinez replied that he had not. Responding to further questions, Martinez said he was 42 years old and had an eighth-grade education.
Judge Kisner asked Martinez if he had “had a chance to discuss the allegations in the [2012] case and in the [2011] probation violation case today with Mr. Rudy,” and Martinez said he did. The judge emphasized:
“[I]f at any point you have any questions or concerns, [want to] talk to him about anything else with regard to any of this, let me know, we'll take a time-out so you can do that. It's very important that you understand what you're doing and that you're doing what you [want to] do here today.”
Judge Kisner then recited the terms of the plea agreement, stating the provisions relating to both cases. The judge asked Martinez if the recitation had matched his understanding of the agreement, and, after talking with Rudy, Martinez said it did. Judge Kisner repeated, “[I]f you have any questions—it's very important that you do what you [want to] do here today, that you're doing what you feel like ultimately is in your best interest. So just let me know if there's any issues and we'll take a time-out on that.”
Judge Kisner then addressed the probation violation in the 2011 case. In particular, he discussed the charges in the 2012 case and pointed out that under the plea agreement, “by entering a plea of guilty ... that would be a violation of your probation, you would be waiving your right to have any kind of a probation violation hearing on the [2011] case.” At this point, Martinez asked to inquire of the court, but the district court suggested he speak to Rudy first. Martinez did so and then informed the district court that Rudy had answered his question.
Next, the district court detailed the rights Martinez would have in a probation violation hearing and that he would give up those rights under the plea agreement. Martinez said he understood. When asked if he wanted to waive the probation violation hearing, Martinez said he did, but he also asked, “[I]s there any way we could change—that just don't sound right to me, that en-that's just terrible.” The district court clarified that Martinez' objection was to the word “endangering,” and Martinez asked, “Can't we call it something else?” The judge again told Martinez the decision was his and said, “I'm here all day, and you're the only case I've got assigned, so I'll be glad to sit here and listen to everything that is presented.”
Martinez again consulted with Rudy, who said, “I think we're ready to proceed, Judge.” Judge Kisner reconfirmed with Martinez that he understood that a plea in the 2012 case “will cause you to be violated on the [2011] case.” After Martinez said he understood, the district court moved to a discussion of the 2012 case.
The district court detailed this part of the plea agreement and advised Martinez of the rights he was waiving. Martinez said he understood. When Judge Kisner finally asked Martinez if he would “like to waive your jury trial and go ahead and enter the pleas of guilty to the misdemeanor charges,” Martinez answered, “Jesus Christ. I'm assuming so, sir.”
Judge Kisner did not accept this response but instructed Rudy to “talk to [Martinez] and let me know when you're ready to proceed.” Once again, the judge told Martinez, “I don't [want to] push you into doing anything that you don't [want to] do. And I'm not the guy that's going to have to go do what's left of 44 months; you're the guy that's [going to] have to do that.”
Martinez and Judge Kisner then conversed, with Martinez complaining, “[I]t seems like either way it goes, I'm [going to] be violated, from what I'm told.... This is supposedly my best option, is what they're telling me.” Judge Kisner asked Martinez, “Well, and do you believe that this is in fact your best option?” Martinez at first said he did not know, but later replied, “Nobody wants to go to prison, but if it's not [going to] add more time, I mean, I might as well get what I got.” The judge told Martinez, “[T]hose are all considerations that you have to think through.” The judge also discussed Martinez' criminal history and the potential prison time he was facing on the charges in the 2012 case. Finally, the following exchange occurred:
“THE DEFENDANT: What [Rudy] has got going for me, I don't [want to] mess up my chances; just do what I'm supposed to do.
“THE COURT: Okay. And you understand the likelihood today is that you're [going to] go to prison and do the rest of your 44 months if we go through with this process?
“THE DEFENDANT: Yes, sir.
“THE COURT: Okay. And that's what you [want to] proceed to do; is that right?
“THE DEFENDANT: Yes, sir.
“THE COURT: Okay. Do you need any more time?
“THE DEFENDANT: No.
“THE COURT: Okay. All right, then. You understand you're giving up your right to the jury trial in the new case; right?
“THE DEFENDANT: Yes, sir.
“THE COURT: And that's what you [want to] do.
“THE DEFENDANT: Yeah. Yes, sir.
“THE COURT: Okay. And you also understand you're giving up the right to have a hearing on the probation violation. And that's what you [want to] do.
“THE DEFENDANT: Yes, sir.
“THE COURT: Okay. All right, then. I'll find that after careful consideration, he's knowingly, willingly, voluntarily waived his right to a jury in the new case.”
Judge Kisner accepted the plea and found Martinez guilty of three misdemeanor counts of endangering a child (K.S.A.2011 Supp. 21–5601[a] ) and one misdemeanor count of criminal damage to property (K.S.A.2011 Supp. 21–5813 [a][1],[b][3] ). Martinez signed a journal entry of plea which also recited the terms of the plea agreement.
Judge Kisner asked Martinez if there was “anything else?” Martinez asked, “Now, is this [going to] go on my record as aggravated endangering a child, and am I [going to] have to be going to report to some call center saying I done—‘cause that just crazy.” The prosecutor clarified, “There's no registration requirement for the endangerment of a child misdemeanor.” The judge discussed this with Martinez, explaining that the order to register in the 2011 case was due to his use of a deadly weapon in that crime. Martinez said he understood.
Next, Martinez asked about the effect of the plea on a child in need of care (CINC) case which had apparently been filed regarding his children. Judge Kisner explained the guilty plea would have no effect on “the scheduling or the existence of that case,” but “whether this has an impact on the underlying determination in the case, that's possible.” The judge asked Martinez if he had appointed counsel in the CINC case, and when Martinez provided a counsel's name, the judge said, “We'll send her an e-mail, just to let her know that you're trying to get ahold of her and let her know what's happened here today.” Martinez indicated that he understood Judge Kisner's statements in this regard and concluded, “Thank you, sir.”
Finally, in accordance with the plea agreement, the judge revoked Martinez' probation in the 2011 case and imposed the balance of the 44–month sentence, along with the concurrent sentences in the 2012 case.
On August 17, 2012—9 days after the combined sentencing and probation revocation hearing—Martinez filed a pro se motion to withdraw the plea. Martinez asserted he was innocent of the child endangerment conviction, that Mitchell had not appeared for the August 8, 2012, hearing, and that he was “coerce[d] by the unknown [counsel] to plead guilty with a promise of being released and his children returned to him, and a reinstatement of probation.” Martinez further claimed that at the time of the hearing he was under a doctor's care and taking “a mind altering prescription drug” which made him unable “to make a sound, and proper decision.”
The district court appointed new counsel for Martinez. On December 20, 2012, Martinez appeared with his counsel for an evidentiary hearing on the motion to withdraw plea. Once again, Judge Kisner presided.
Martinez testified that he had met with Mitchell in the 2012 case and that they intended to defend the charges through a jury trial. Martinez complained that on August 8, 2012, “Mark Rudy showed up and I had never met that man before.” Martinez said that Rudy had simply handed him the journal entry of the plea and told him to sign it: “He didn't tell me what none of this was about and I was in a daze the whole time anyway and I just signed it.” Martinez claimed he “didn't really understand what was going on that day.” He said he was being treated for high blood pressure, low blood sugar, and had “nitro pills for [his] heart.” According to Martinez, this medication made him “real shaky,” and he “wasn't thinking straight.” Martinez alleged Rudy manipulated him by saying “the quickest way for me to see my kids would be to take that plea.” Martinez further alleged a “partner” of Rudy was “sitting behind me, then he started whispering in my ear telling me I better listen to him because he knows what he's talking about and it is in my best interest to take his advice.” When cross-examined about his extensive experience in the criminal justice system, Martinez complained, “I would go to court and then you guys would send me to prison. That's been my only option with you guys all the time, sending me to prison.”
Rudy also testified. He indicated that he had access to Mitchell's 2011 and 2012 case files. The files contained nothing unusual, such as any indication that Martinez was mentally incompetent. Rudy also testified that Mitchell had copies of the discovery in the 2012 case, which included an affidavit that Rudy acknowledged was “disturbing and horrific in nature.”
Rudy testified that, in light of Martinez' prior probation violation in the 2011 case, “Judge Kisner ... or any judge that I've ever been in front of would violate him for the behavior” alleged in the 2012 case. Rudy believed Martinez “was going to jail pursuant to the probation violation alone, and then we would have to deal with the crimes that he was now charged with on top of that.” Rudy was advised by the State, however, that if Martinez served his sentence in the 2011 case, the State would agree to amend the felony charges in the 2012 case to misdemeanors and to recommend that the new sentences in the 2012 case run concurrent with each other and with the sentence in the 2011 case. Rudy considered this plea offer “a free pass” for the criminal behavior alleged in the 2012 case. As a result, he believed it was “a good deal,” and that Martinez should take it.
On May 16, 2013, the parties appeared to present arguments on the motion to withdraw plea. Judge Kisner ruled from the bench that Rudy was competent counsel, there was no evidence Martinez was misled, and Martinez “understandingly made the plea, and I do reject the idea this was a sit down, shut up, it was a done deal.” The judge stated, “[T]his record goes beyond what would be absolutely necessary in a situation like this.” The judge therefore concluded, “I don't think there is manifest injustice shown here.”
Martinez filed a timely appeal.
Discussion
On appeal, Martinez contends the “evidence ... shows that his plea in [the 2012 case] was not knowing and voluntarily made and further that his counsel ... was ineffective to such a degree that failure to allow [him] to withdraw his plea would result in a manifest injustice.” The State responds that Martinez is “[f]ocusing solely on his own testimony.”
“An appellate court generally reviews the denial of a motion to withdraw a plea for abuse of discretion. The defendant has the burden of proving abuse of discretion.” State v. Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014).
Kansas law provides: “To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.” K.S.A.2013 Supp. 22–3210(d)(2). Our Supreme Court has provided the following guidance regarding how courts should apply this statute:
“In determining whether the defendant has shown manifest injustice to permit a postsentence plea withdrawal, the district court should consider the following factors: (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. While these factors are viable benchmarks for judicial discretion, they should not be mechanically applied and should not be relied on to the exclusion of other factors.” State v. Bricker, 292 Kan. 239, Syl. ¶ 4, 252 P.3d 118 (2011).
In keeping with Bricker's precedent, we will consider each of the three factors individually.
Competent counsel
Martinez contends Rudy was not a competent counsel. He complains that he had not met Rudy before, but Judge Kisner found that attorneys in a single office commonly substitute for one another as needed. Martinez does not challenge this finding on appeal, and we see no indication that Rudy's performance indicated any unfamiliarity with the case. On the contrary, Rudy's representation on its face seems competent given that the plea agreement was certainly advantageous to Martinez by limiting his exposure to considerable prison time.
Martinez also complains “he was not given adequate time to discuss his case” with Rudy, but Martinez testified otherwise during the plea hearing. And the record does not show that Rudy was rushed while providing counsel to Martinez. Substantial competent evidence indicates that Martinez was afforded the necessary time to decide whether to accept the plea agreement or proceed with litigation in both cases.
Martinez alleges he was merely “handed a journal entry and told to sign it,” but the transcript of the plea hearing belies the allegation. Judging from the transcript, Martinez was repeatedly able to consult with Rudy and converse with Judge Kinser to obtain answers to his questions. The journal entry was signed only at the end of the lengthy hearing after Martinez' various questions and concerns had been fully addressed.
Misled, coerced, mistreated, or unfairly taken advantage of
Martinez contends he was misled at the plea hearing, but he does not identify any misleading statements or misrepresentations made to him. At most, Martinez contends Rudy told him he was “ ‘going to prison,” ’ but Rudy does not explain why this was misleading. With a prior probation violation on a sentence for aggravated assault, Rudy had good reason to conclude that Martinez would return to prison upon the commission of the new felony offenses.
Fairly and under standingly made
Martinez contends he “did not fully know and understand what he was doing, what rights he was waiving, and the consequences of his waiver and plea.” Martinez cites his statements of uncertainty at the plea hearing, but the transcript shows Judge Kisner carefully and patiently allowed Martinez to obtain clarification regarding his questions and concerns. Whatever Martinez might allege now, a lack of comprehension is not manifest on the existing record. Martinez understandably acknowledged at the plea hearing that while he did not wish to return to prison, the plea agreement was in his self-interest.
Having considered the three Bricker factors in light of the facts of this case, we conclude that Martinez has not shown Judge Kisner abused his discretion in denying the motion to withdraw plea.
Affirmed.