Opinion
112,200.
06-12-2015
STATE of Kansas, Appellee, v. Maria RODRIGUEZ–HERNANDEZ, Appellant.
Christopher S. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant. David Belling, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Christopher S. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant.
David Belling, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., McANANY, J. and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Maria Rodriguez–Hernandez appeals the district court's denial of her motion to withdraw her plea to felony distribution of cocaine. She filed the motion almost 4 years after the plea and more than 2 years after completing her sentence. The district court found the motion was untimely and that it also failed on its merits. We agree that the motion failed on its merits whether it was untimely or not. We affirm.
Facts
Rodriguez–Hernandez plead no contest on August 13, 2010, to felony distribution of cocaine in violation of K.S.A.2009 Supp. 21–36a05(a)(1). Pursuant to the plea agreement, the State dismissed a second felony charge for failure to affix a drug tax stamp and did not oppose Rodriguez–Hernandez' request for probation even though her criminal history placed her in a border-box on the sentencing guidelines grid. On November 9, 2010, the district court granted her request and placed Rodriguez–Hernandez on probation for 18 months. She did not file a direct appeal. In December 2011, the court discharged her early from probation upon her successful completion of its terms.
In February 2014, Rodriguez–Hernandez filed her motion to set aside her plea that is the subject of this appeal. A month prior, Rodriguez–Hernandez, who is a permanent resident, had learned while in jail on unrelated charges that United States Immigration and Customs Enforcement (ICE) placed a detainer on her because her conviction in this case subjected her to deportation under federal immigration laws. Rodriguez–Hernandez primarily alleged manifest injustice would result if the district court did not allow her to withdraw her plea because she did not know about the deportation consequences of her conviction. See K.S.A.2014 Supp. 22–3210(d)(2) (“To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.”); Padilla v. Kentucky, 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (holding defense counsel has duty to inform noncitizens of immigration consequences of pending criminal charges).
Rodriguez–Hernandez acknowledged she did not file her motion within the 1–year deadline provided for in K.S.A.2014 Supp. 22–3210(e)(1). She argued, however, that her neglect in meeting the deadline was excusable under K.S.A.2014 Supp. 22–3210(e)(2). In support, she testified she had not filed her motion sooner because in September 2011, she went to see Larry Daniels, the attorney who had represented her in the plea proceedings, because her conviction was making it difficult to find employment. She said Daniels told her he could not do anything until 2016. Once she finally learned in early 2014 that she could move to withdraw her plea, she did so.
As to the merits of her motion, Rodriguez–Hernandez testified she was basically oblivious to what was happening when she entered her plea. For example, she stated she only went to Daniels' office prior to the plea when hearing dates approached to determine when she needed to be in court and that was all they discussed. She stated no one told her about a plea offer or explained the plea agreement before she signed it; no one told her about her rights she was giving up by her plea, including the right to confront witnesses against her; she had no idea what crime she had pled to at the behest of her interpreter, who was Daniels' employee; and no one ever told her about the immigration consequences of her plea. Rodriguez–Hernandez further explained that she did not know what she was doing when she entered her plea because she was pregnant, very depressed, nervous, and had just gotten out of the hospital.
Daniels' account of what Rodriguez–Hernandez knew, or at least should have known, based on their conversations about the charges against her and her plea differed significantly from what Rodriguez–Hernandez testified to. Consulting his file notes and referencing his routine practices, Daniels recalled that Rodriguez–Hernandez was in Mexico when her sister retained him to represent her. After speaking twice to Rodriguez–Hernandez on the phone and entering his appearance, Daniels arranged for the State to quash the arrest warrant so Rodriguez–Hernandez could return voluntarily to face the charges. Upon Rodriguez–Hernandez' return, Daniels went over the charges and possible penalties on the guidelines grid with her and also discussed the police report and the potential witnesses. Although he could not specifically recall, Daniels also said he would have gone over the written plea agreement with his client paragraph by paragraph, with the help of an interpreter he employed, before she signed it.
Daniels testified that he and Rodriguez–Hernandez specifically discussed the fact that her conviction would lead to deportation on at least three occasions. One discussion took place at his office on August 11, 2010, just 2 days before Rodriguez–Hernandez signed the plea agreement and entered her plea. Daniels recalled that Rodriguez–Hernandez asked him to seek a better plea offer because an immigration attorney she asked to review the plea offer that she ultimately accepted told her it would lead to her deportation. Daniels tried, but the State refused to change the plea offer. Daniels again told Rodriguez–Hernandez she would be deported as a result of her conviction in September 2011 as they went over her presentence investigation report.
On rebuttal, Rodriguez–Hernandez admitted that she had spoken to an immigration attorney. However, she said that conversation took place after she entered her plea and insisted the attorney told her only that Daniels “was not helping at all.”
At the close of the hearing, the district court took the case under advisement to allow the parties additional time to brief the legal issues. In her brief filed on May 19, 2014, Rodriguez–Hernandez first urged the court to find that her motion to withdraw was timely. More specifically, she argued for the first time that she could file a late direct appeal because the sentencing court did not fully advise her of her appeal rights. Thus, she claimed the 1–year deadline for her motion to withdraw, which is triggered by the termination of jurisdiction over a direct appeal, had not yet begun to run. As support for her argument, Rodriguez–Hernandez filed a late notice of direct appeal on the same day that she filed her brief in the district court pertaining to her motion. As to the merits, Rodriguez–Hernandez argued she should be allowed to withdraw her plea because neither Daniels nor the court told her about its deportation consequences; her interpreter had not been administered an oath and was not qualified; and the court failed to adequately advise her of the rights she was giving up by her plea before she entered it.
On June 5, 2014, the district court entered its judgment denying Rodriguez–Hernandez' motion to set aside her plea. The court detailed how it had weighed conflicting evidence and determined credibility. Based on its resulting factual findings, the court held the motion was untimely because Rodriguez–Hernandez failed to show any excusable neglect that would justify extending the 1–year deadline for filing a motion to withdraw under K.S.A.2014 Supp. 22–3210(e)(2). The court further held the motion failed on its merits because the totality of the circumstances did not demonstrate manifest injustice would result if it did not allow Rodriguez–Hernandez to withdraw her plea. Additional facts will be discussed below where necessary to the analysis of the issues raised in Rodriguez–Hernandez' timely appeal from that judgment.
Standard of Review and Governing Law
K.S.A.2014 Supp. 22–3210(d)(2) directs that “[t]o correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea .” This court has held that to establish such “manifest injustice” a defendant must show it would be “obviously unfair or shocking to the conscience” if he or she is not allowed to withdraw a plea. State v. Barahona, 35 Kan.App.2d 605, 608–09, 132 P.3d 959, rev. denied 282 Kan. 791 (2006).
In order to succeed in her challenge to the district court's finding that she failed to meet this burden, Rodriguez–Hernandez must demonstrate that the district court abused its discretion. See State v. Miles, 300 Kan. 1065, 1066, 337 P.3d 1291 (2014) (abuse of discretion standard); State v. Rojas–Marceleno, 295 Kan. 525, 530–31, 285 P.3d 361 (2012) (movant's burden of proof). This court can find such an abuse of discretion only if it can say the district court's decision is arbitrary, fanciful, or unreasonable; is based on an error of law; or is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
As to the time for filing a motion to withdraw a plea, K.S.A.2014 Supp. 22–3210(e)(A) provides such motion has to be brought within 1 year of “[t]he final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction.” The court may extend this 1–year deadline only upon “an additional, affirmative showing of excusable neglect by the defendant.” K.S.A.2014 Supp. 22–3210(e)(2).
In her first issue on appeal, Rodriguez–Hernandez devotes a substantial portion of her brief arguing the district court abused its discretion in finding her motion to withdraw was time barred. She essentially argues that under the facts here she actually did file her motion within the required 1–year period because that 1–year time limitation had not yet begun to run since her direct appeal was still pending. She further argues that even if the time period is deemed to have run, she should still be allowed to file out of time based upon excusable neglect. The State disagrees and urges us to affirm simply on the basis of the untimeliness of the motion alone.
It appears the issue of whether there was “a termination of such appellate jurisdiction” that would trigger the running of the 1–year time limitation for Rodriguez–Hernandez to file her motion depends directly on whether she would be allowed a late direct appeal under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). Ortiz held that a defendant may file a direct appeal outside the 10–day statutory deadline for such appeals, see K.S.A.2014 Supp. 22–3608(c) (statute amended in 2009 from 10 to 14 days) in the limited circumstances where the defendant was (1) not informed of his or her right to appeal, (2) was not furnished an attorney to perfect an appeal, or (3) was furnished an attorney who failed to perfect an appeal. Oritz, 230 Kan. at 735–36. Normally that question would first have to be resolved in this case by a remand to the district court for a hearing on whether any of the three exceptions under Ortiz would apply to allow the late appeal by Rodriguez–Hernandez before we address the timeliness of the motion to withdraw the plea.
However, if it is determined the district court did not err in ruling that Rodriguez–Hernandez's motion failed on its merits then the issue of whether the motion was filed within the required 1–year period or whether excusable neglect existed to extend that period becomes moot and we need not address it. Accordingly, in the interest of judicial economy, we will first address the district court's ruling on the merits of the motion.
Will Manifest Injustice Exist If the Plea Is Not Withdrawn
In reviewing whether manifest injustice exists to permit a defendant to withdraw a plea after sentencing, our courts generally review the following “ ‘viable benchmarks for judicial discretion,” which are commonly referred to as the Edgar factors, after State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006) : “(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, 244–45, 252 P.3d 118 (2011).
Rodriguez–Hernandez argues that manifest injustice will occur for two reasons: The interpreter at the plea hearing was unqualified and unsworn, and Rodriguez–Hernandez was not properly advised of her rights at the time of the plea.
Before discussing her complaints about the interpreter and the district court's ruling, some additional background facts are helpful. Rodriguez–Hernandez speaks only Spanish. Accordingly, Elva Ruiz appeared with her at the plea hearing to serve as her interpreter. It is undisputed that Ruiz was employed by Daniels and would often attend court with him and his Spanish-speaking clients. Ruiz also sometimes interpreted for the court. The record further reflects that Ruiz served as Rodriguez–Hernandez' bonding agent.
In her brief filed after that hearing, Rodriguez–Hernandez argued the use of Ruiz as her interpreter established the necessary manifest injustice to allow her to withdraw a plea because the record did not show the district court required Ruiz to submit to an oath as required by K.S.A. 75–4354. Next, she summarily suggested Ruiz was unqualified to serve as an interpreter because Ruiz had an unspecified “interest” in the outcome of the proceeding which is prohibited by K.S.A. 75–4353(a) (“No one shall be appointed to serve as an interpreter for a person pursuant to the provisions of K .S.A. 75–4351... if such interpreter is married to that person, related to that person within the first or second degrees of consanguinity, living with that person or is otherwise interested in the outcome of the proceeding, unless the appointing authority determines that no other qualified interpreter is available to serve .”).
The district court rejected the argument noting that Rodriguez–Hernandez “never complained at any time up through sentencing that she could not understand [Ruiz]. Nor did [she] present any evidence as to how [Ruiz] was not a neutral person other than she also worked for the defendant's attorney.”
What first strikes us as significant is that no one voiced any complaints about Ruiz serving as the interpreter until the evidentiary hearing on Rodriguez–Hernandez' motion to withdraw her plea in 2014—almost 4 years after the plea. There, Rodriguez–Hernandez testified that Ruiz told her to plead no contest and suggested she had no idea what was going on because Ruiz did not read the plea agreement to her or otherwise explain to her what it said. Daniels then gave testimony to the contrary.
Next, Rodriguez–Hernandez' arguments on appeal disregard the factual findings made by the district court. In her rather brief argument, she simply points to the lack of record evidence that the district court ever placed Ruiz under oath as required by K.S.A. 75–4354(a) or found her properly qualified under K.S.A. 75–4353(a). She also again only summarily contends that, as Daniels' employee, Ruiz “is clearly interested in the outcome.” We believe that substantial competent evidence supports the district court's implicit findings to the contrary or at least its finding that Rodriguez–Hernandez failed to meet her burden of proving that allegation.
Certain language in the case of Shaha v. State, 44 Kan.App.2d 334, 335–42, 236 P.3d 560 (2010), rev. denied 292 Kan. 965 (2011), is relevant here. The Shaha court addressed a challenge to the adequacy of an interpreter raised for the first time in a motion for habeas relief under K.S.A. 60–1507. Of particular import, Shaha recognized problems that arise in the absence of an objection to an interpreter's lack of qualifications:
“ ‘Only if the defendant makes any difficulty with the interpreter known to the court can the judge take corrective measures. To allow a defendant to remain silent throughout the trial and then, upon being found guilty, to assert a claim of inadequate translation would be an open invitation to abuse.’ “ 44 Kan.App.2d at 338 (quoting Valladares v. United States, 871 F.2d 1564, 1566 [11th Cir.1989] ).
Here, much like in Shaha, 44 Kan.App.2d at 338–41, nothing in the record indicates that Ruiz' qualifications as an interpreter might be substandard.
The district court's finding that Rodriguez–Hernandez failed to meet her burden of establishing manifest injustice based on the use of Ruiz as an interpreter can be characterized as a negative finding.
“When a trial court makes a negative finding, the party challenging that finding must prove arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice, because the negative finding signifies the failure of the party upon whom the burden of proof was cast to sustain it. [Citation omitted.]” Holt v. Saiya, 28 Kan.App.2d 356, 358, 17 P.3d 368 (2000).
Rodriguez–Hernandez does not allege that bias, passion, or prejudice tainted the district court's judgment. Nor does she point to any undisputed evidence that the district court arbitrarily disregarded in its ruling. Rodriguez–Hernandez has not met her burden of proving the district court abused its discretion in not allowing her to withdraw her plea based on the use of Ruiz as her interpreter.
Second, Rodriguez–Hernandez complains that her plea was not “fairly and understandingly made.” She specifically complains that she did not know the immigration consequences of her plea and that the district court did not inform her of her privilege against self-incrimination and her right to confront witnesses.
The district court found the record established that Rodriguez–Hernandez sought the advice of an immigration lawyer before the plea and her contention that she was not advised of the possible immigration/deportation consequences of her plea lacked credibility. In attacking these findings on appeal, Rodriguez–Hernandez essentially asks us to reweigh the evidence and reassess credibility. We decline the invitation as these are not functions of this court. See State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011).
We further note that Rodriguez–Hernandez cites us to no authority that the district court must inform a defendant that deportation might be a consequence of a plea. Nor are we aware of any. Rather, in Padilla the United States Supreme Court found the duty to inform a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences lies with defense counsel. 559 U.S. at 369, 373–74. Rodriguez–Hernandez does not challenge the district court's finding that Daniels “presented credible evidence” that he satisfied that duty on three separate occasions.
Lastly, Rodriguez–Hernandez argues that her plea was not “fairly and understandably made” because the district court failed to inform her that she had a privilege against self-incrimination and a right to confront her accusers before it accepted her plea. The State concedes that the court did not so inform the defendant and, thus, did not strictly comply with K.S.A.2014 Supp. 22–3210(a)(2).
However, Rodriguez–Hernandez does not really tell us what effect this failure had on her plea. She only summarily contends she should be allowed to withdraw her plea because she “did not understand and was not informed of her basic rights.” In rejecting this same summary argument, the district court explained:
“This Court's review of the record reveals that Rodriguez–Hernandez negotiated a plea agreement with the State. She entered her plea according to that agreement knowing of the possible consequences. She was sentenced pursuant to the terms of her plea agreement; and she successfully completed her probation. The defendant makes no argument and presents no evidence to show that she would not have pled pursuant to her agreement if she had been told of her privilege against self-incrimination and the right to confront her accuser. Therefore, there is no manifest injustice under the facts of this case.” (Emphasis added.)
This, too, arguably constitutes a negative finding. Rodriguez–Hernandez again fails to allege that bias, passion, or prejudice tainted the district court's judgment. Nor does she point to any undisputed evidence that the district court arbitrarily disregarded in its ruling. Moreover, a review of the plea agreement signed by Rodriguez–Hernandez indicates that she understood that, by entering the plea, she was waiving these rights.
For all of these reasons, we conclude that even if Rodriguez–Hernandez had timely filed her motion to withdraw her plea and the district court erred in ruling otherwise, she has not shown that the court abused its discretion in denying the motion on the merits. We find nothing arbitrary, fanciful, or unreasonable about the denial. Nor was it based on an error of law or on an error of fact. That renders the timeliness issue moot, and we need not address it.
Affirmed.