Opinion
111,751 111,752.
06-12-2015
STATE of Kansas, Appellee, v. Yolanda OSTROM, Appellant.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Daniel D. Gilligan, assistant district attorney, and Derek Schmidt, attorney general, for appellee.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant.
Daniel D. Gilligan, assistant district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., HILL and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is an appeal by Yolanda Ostrom of the district court's denial of her motion to withdraw plea in a criminal case, and denial of her motion to withdraw her stipulations to violating her probation in a prior criminal case. After conducting an evidentiary hearing into these matters, the district court denied Ostrom's motions. Finding no error, we affirm the district court.
Factual and Procedural Background
In keeping with plea negotiations, Ostrom pled guilty in case No. 11 CR 660 (2011 case) to possession of a controlled substance and driving under the influence of alcohol or drugs. In exchange for her pleas, the State agreed not to oppose her request for a dispositional departure. After Ostrom acknowledged that no one had made any promises to her regarding the pleas and she understood the sentencing judge was not bound by the plea agreement, the district court accepted Ostrom's pleas.
At sentencing, the district court followed the plea agreement and granted Ostrom's request for a dispositional departure. She was sentenced to 12 months' probation with an underlying prison term of 36 months and a concurrent jail term of 12 months.
About 6 months later, the State moved to revoke Ostrom's probation in the 2011 case due to several violations, including (1) her recent arrest for theft by deception and making false information, (2) testing positive for cocaine, (3) her “no show/no call” status on two occasions, (4) her continued association with “persons involved in illegal activities,” and (5) absconding from supervision. Ostrom did not appear for the scheduled probation revocation hearing, and an arrest warrant was issued. She was apprehended about 5 months later after being held in custody in the state of Washington.
At the probation revocation hearing, Ostrom stipulated to the truth of all the State's allegations except she did not admit to committing the crimes charged in case No. 12 CR 722 (2012 case). After Ostrom acknowledged stipulating to violating her probation in the 2011 case, the district court accepted the stipulations as “being freely, voluntarily, intelligently made,” and revoked her probation. Although Ostrom sought reinstatement of her probation, the district court, noting her 35 prior felony convictions in the past 34 years, denied her request, and ordered her to serve the underlying sentences.
Almost 1 month later, on June 5, 2013, Ostrom pled guilty, pursuant to plea negotiations in the 2012 case, to making false information. After verifying that Ostrom was satisfied with defense counsel's services, that no one threatened, coerced, or made any promises to her regarding the plea, and that Ostrom understood her rights, the charges against her, and the consequences of her plea, the district court accepted Ostrom's guilty plea as “freely and voluntarily entered.”
Ostrom was sentenced in the 2012 case on August 2, 2013. The district court imposed a sentence of 19 months' imprisonment followed by 12 months' postrelease supervision, with the sentence running consecutively to Ostrom's sentences in the 2011 case.
It appears that Ostrom subsequently filed a pro se motion to withdraw plea, which the district court attributed to her 2012 case. On September 27, 2013, however, Ostrom and her court-appointed attorney indicated that Ostrom actually wished to withdraw her pleas in the 2011 case rather than the 2012 case. As a result, the district court dismissed Ostrom's pro se motion and directed her attorney to file an appropriate motion to withdraw her pleas in the 2011 case.
Subsequently, Ostrom's attorney filed a motion to withdraw her guilty pleas in the 2011 and 2012 cases. Ostrom claimed her pleas in both cases constituted a manifest injustice because she did not knowingly and voluntarily enter them in either case. In particular, Ostrom alleged she did not commit the offenses; her prior attorney, Bonnie Corrado, advised her that she would receive a total sentence of only 39 months; Corrado never gave her a copy of “any court papers” despite her requests; and she was unaware of the charges filed against her until the district court mentioned them at the respective plea hearings.
On November 8, 2013, the district court held an evidentiary hearing on Ostrom's motion to withdraw her pleas in the 2011 and 2012 cases. Also, at the hearing, Ostrom stated she wished to withdraw her stipulations to violating her probation in the 2011 case After hearing conflicting testimony from Ostrom and Corrado, the district court denied Ostrom's motions, finding that she had failed to demonstrate the withdrawal of her pleas and stipulations were necessary to prevent a manifest injustice.
Ostrom filed this timely appeal. Our court consolidated for appeal the 2011 and 2012 cases.
Discussion
On appeal, Ostrom does not reprise or brief the argument that her guilty pleas in the 2011 case should be withdrawn. As a result, this issue is deemed waived and abandoned on appeal. State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013). Ostrom does claim the district court abused its discretion when it denied her motion to withdraw her probation violation stipulations in the 2011 case and her guilty plea in the 2012 case because the withdrawals were necessary to correct a manifest injustice. The State, on the other hand, asserts that because the district court's factual findings were sufficient and correct, this court should uphold its decision.
At the outset, it is necessary to review Kansas law regarding the matters Ostrom has raised on appeal. After sentencing, a district court may, in the exercise of sound judicial discretion, set aside a judgment of conviction and withdraw a defendant's plea in order “[t]o correct manifest injustice.” K.S.A.2014 Supp. 22–3210(d)(2). When determining whether the defendant has shown manifest injustice, district courts should consider the following: “(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. Bricker, 292 Kan. 239, Syl. ¶ 4, 252 P.3d 118 (2011) ; see State v. Morris, 298 Kan. 1091, 1100–01, 319 P.3d 539 (2014). While “these factors are viable benchmarks for judicial discretion,” district courts should not mechanically apply them nor rely upon them to the exclusion of other factors. Bricker, 292 Kan. 239, Syl. ¶ 4.
Generally, an appellate court will not disturb a district court's denial of a postsentence motion to withdraw plea absent an abuse of discretion. See State v. Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014). A judicial action constitutes an abuse of discretion if it is (1) arbitrary, fanciful, or unreasonable, i.e., no reasonable person would have taken the view adopted by the court, (2) guided by an erroneous legal conclusion, or (3) based upon an error of fact. State v. Ward, 292 Kan. 541, Syl. 3, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). Of note, it is Ostrom's burden to demonstrate that the district court abused its discretion. See Fritz, 299 Kan. at 154.
Additionally, when the parties challenge the district court's factual findings, this court reviews those findings under the substantial competent evidence standard. State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011). Substantial competent evidence is evidence possessing both relevance and substance that a reasonable person could accept as being adequate to support a conclusion. State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009).
Applying these legal principles to the evidence presented at the evidentiary hearing on Ostrom's motion to withdraw, we first observe that Ostrom and Corrado recounted different versions of the circumstances surrounding both criminal cases.
Ostrom testified that she understood, based upon her discussions with Corrado, that the district court was going to handle her probation violations in the 2011 case and the disposition of her 2012 case in a combined fashion. According to Ostrom, Corrado led her to believe that she would receive a prison sentence of no more than 36 months if she stipulated to the probation violations and pled guilty in the 2012 case. She discovered after sentencing, however, that the district court ran her 2011 and 2012 sentences consecutively, rather than concurrently, resulting in a combined sentence of 55 months. Ostrom later clarified, however, that Corrado had told her the original plea discussions were modified when the parties realized the 2012 sentence would have to run consecutively with the 2011 sentence. Still, Ostrom insisted that prior to her plea in the 2012 case she “was unclear on everything.” Ostrom also alleged that Corrado failed, despite her repeated requests, to forward her copies of court documents and discovery related to her cases.
In marked contrast to Ostrom's testimony, Corrado testified the prosecutor agreed to recommend the imposition of Ostrom's underlying 36–month sentence in the 2011 case and the standard sentence in the 2012 case with each sentence running concurrently. But after Corrado communicated this offer to Ostrom, she and the prosecutor determined they could not recommend concurrent sentences because Ostrom was on probation when she committed the offenses in the 2012 case. As a result, Corrado and the prosecutor engaged in further negotiations to reach an agreement for “very similar prison time.” The prosecutor ultimately agreed—in exchange for Ostrom's stipulations to violating her probation in the 2011 case and guilty plea in the 2012 case—to recommend a modified 20–month sentence in the 2011 case and a consecutive 19–month sentence in the 2012 case, for a total controlling prison term of 39 months.
Corrado testified that after she discussed the renegotiated offer with Ostrom on two occasions, Ostrom rejected it:
“[Ostrom] did not want to admit to the probation violations. She was fearful that ... her sentence would be imposed in that case and thought that there was a possibility that the court may reinstate her probation. And I explained to her the consequences and the situation if she didn't proceed with the plea. And at that time she decided that she wanted to ask the judge and argue to the court for reinstatement rather than agreeing to have her sentence imposed with a modified sentence.”
According to Corrado, Ostrom ultimately decided to stipulate to the probation violations without a plea agreement because she believed it would improve the likelihood of her reinstatement to probation. At the evidentiary hearing on Ostrom's motions, however, Ostrom testified she did not recall the circumstances as described by Corrado.
Corrado further testified that after the district court ordered Ostrom to serve the underlying 36–month sentence in the 2011 case, she engaged in plea negotiations with the prosecutor regarding the 2012 case. When the State agreed to dismiss the theft by deception charge in exchange for a plea, she presented the offer to Ostrom and Ostrom accepted it. According to Corrado, Ostrom entered her guilty plea in the 2012 case with a full understanding of the agreement, her rights, the consequences of her plea, and the fact that the plea agreement did not bind the sentencing judge. Ostrom also caused Corrado to believe she did not want to file a departure motion, and Corrado confirmed this fact with Ostrom prior to sentencing.
With regard to Ostrom's complaint about discovery documents, Corrado confirmed that after the probation revocation hearing, Ostrom requested “copies of everything.” She also testified that her staff mails copies of court documents and discovery to clients, and she had no reason to believe they did not follow this practice in Ostrom's cases.
The district court ruled that Ostrom had failed to show that a withdrawal of either her pleas or probation violation stipulation was necessary to correct a manifest injustice. Specifically, the district court found the evidence demonstrated that Ostrom voluntarily entered her pleas, she received competent representation, she was not misled, coerced, or unfairly taken advantage of during the plea negotiation process, and her pleas were fairly and understandingly made. The district court also found that Ostrom was fully advised of her right to an evidentiary probation revocation hearing. Finally, the district court determined Corrado's testimony was credible.
Preliminarily, we question whether the district court had jurisdiction to consider Ostrom's request to withdraw her stipulations to the probation violations in the 2011 case. Ostrom did not timely appeal the revocation of her probation, and she does not cite any statutory authority which would authorize a district court to withdraw her stipulations. On the contrary, Ostrom simply refers to K.S.A.2014 Supp. 22–3210 and caselaw related to plea withdrawals.
An appellant's failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue, and issues an appellant fails to brief are generally deemed waived and abandoned. See State v. Kingsley, 299 Kan. 896, 900, 326 P.3d 1083 (2014). Moreover, in State v. Williams, No. 107,716, 2013 WL 1457951, at *2–3 (Kan.App.) (unpublished opinion), rev. denied 298 Kan. –––– (2013), our court determined that K.S.A.2014 Supp. 22–3210 only provides an avenue for withdrawing pleas and K.S.A.2012 Supp. 22–3716 —the probation violation sanctions statute—contains no provision for the withdrawal of a stipulation. We conclude the district court had no jurisdiction to consider Ostrom's motion to withdraw her stipulations to the probation violations. Nevertheless, as the district court found, Ostrom's request to withdraw her stipulations is obviously without merit.
With regard to the propriety of the district court's denial of Ostrom's motion to withdraw her plea in the 2012 case, the record demonstrates no abuse of discretion because there was substantial competent evidence in support of the decision, and it cannot be said that no reasonable person would have taken the view adopted by the court. See Ward, 292 Kan. 541, Syl. ¶ 3.
First, Ostrom's claim that she did not knowingly and voluntarily enter her guilty plea in the 2012 case is questionable because, as the district court noted, at one point in the hearing, Ostrom testified she was satisfied with her decision to plead guilty and only wished to withdraw her stipulations to the alleged probation violations.
Second, the evidence shows that Ostrom freely, knowingly, and voluntarily entered her pleas with a full understanding of the consequences. Corrado testified that she fully advised Ostrom of her rights and the consequences of entering a plea. Indeed, Corrado explained that throughout her representation of Ostrom, “there were times when [she] felt like maybe [Ostrom] wasn't quite understanding,” so she went “into detail and [went] over [these subjects] more times” than she normally would to make certain that Ostrom fully understood the situation. Corrado testified, “I wouldn't have moved forward or assisted [Ostrom] in entering a plea had I not believed that she fully understood it.” The district court deemed Corrado's testimony credible, and when reviewing factual findings, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility. Anderson, 291 Kan. at 855.
Third, the record reflects that a thorough plea hearing was conducted in the 2012 case. The district court explicitly verified that no one threatened Ostrom or made her promises—outside the plea agreement—and that Ostrom was entering her pleas with a full understanding of her rights, the charges against her, and the consequences of her pleas. Additionally, after informing Ostrom of the possible sentencing range, the district court questioned Ostrom as to whether she had sufficient time to discuss the case with Corrado and was satisfied with her legal services. Ostrom responded affirmatively. Moreover, following Corrado's description of the plea agreement, Ostrom indicated that she understood the agreement and declined the district court's invitation to ask questions of either Corrado or the court.
In conclusion, we hold the district court did not abuse its discretion when it denied Ostrom's motion to withdraw her guilty plea in the 2012 case or her stipulations to probation violations in the 2011 case because substantial competent evidence supports the district court's findings that Ostrom failed to show that her plea and stipulations were entered unknowingly or involuntarily. Quite simply, the district court did not err.
Affirmed.