Opinion
No. 110,868.
2015-03-13
STATE of Kansas, Appellee, v. Terry W. ROSS, 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.Lance J. Gillett, 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. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., BUSER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Terry W. Ross appeals the denial of his motion to withdraw guilty plea before sentencing, contending a statement from an alleged eyewitness to the crime provided good cause to withdraw the plea. Finding no abuse of discretion in the district court's denial of Ross' motion, we affirm.
Factual and Procedural Background
The State of Kansas charged Ross and a female codefendant with aggravated battery for acts committed against Michael E. Watley on or about May 18, 2012. At the preliminary hearing, the State provided testimony from three eyewitnesses and two police officers.
The eyewitnesses all identified Ross in open court, testifying Ross and Watley had fought and Watley had been stabbed. One eyewitness said the fight was precipitated by a verbal confrontation between Watley and Ross' codefendant, and all three eyewitnesses testified that the codefendant joined the fight once it started. The police officers testified to the recovery of two knives, one at the scene and another from the dash of Ross' vehicle. An officer also described a cell phone call made from the area where Ross' vehicle was found to “dispatch,” presumably meaning 911, where the caller had stated he had been stabbed and then stated that he had stabbed somebody else and was scared. The officer testified that he called this cell phone number and reached a voice mail system, with a male voice identifying himself by the first name of Terry.
Ross and the State reached a plea agreement where, in exchange for Ross' guilty plea, the State agreed to recommend a dispositional departure to probation with Community Corrections. Ross executed the written plea agreement form, which recited in part that the State's recommendation was based on Ross' acceptance of responsibility and the existence of a defense that ultimately failed but was not meritless. The plea agreement did not identify the defense. The plea agreement further provided that the State would not be bound to recommend a departure under a number of circumstances, including a violation by Ross of the conditions of his bond.
Ross appeared with counsel for the plea hearing and, after a thorough series of questions and admonitions, the judge asked Ross for his plea. The following discussion ensued:
“[ROSS' COUNSEL]: My client had a meritorious defense, it's self-defense, that he's waiving by taking advantage of the bargain. That's why he's having a problem with the word guilty.
“THE COURT: And Mr. Ross, I want you to be sure that you're doing what you want to do here today. And if you want 15 minutes to think about it or you want a few days to think about it, I'll give you that time. I don't want you to plead to anything that you don't want to.
“THE DEFENDANT: I'm okay.
....
“THE COURT: All right, I'll ask you again as to the charge and this involves knowingly causing great body harm or disfigurement to a Michael E. Watley, how do you plead?
“[ROSS' COUNSEL]: We're pleading guilty. He will say so in his own words. It is a very favorable plea. I consider this an Alford plea....”
“THE COURT: “We need to go over that then.”
The judge then explained the history and meaning of a plea entered pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and, after doing so, the court again offered Ross more time to consider the matter. Ross declined a second time; when the judge again asked for his plea, this time Ross said, “Guilty.”
The court then asked the prosecutor to recite the factual basis for the plea, whereupon the prosecutor stated that Ross had stabbed Watley twice during a fight and that Ross called 911 and said he had stabbed somebody and was scared. The judge had the following exchange with Ross' counsel and with Ross personally:
“THE COURT: [D]oes your client wish to contest any of the evidence set forth by the District Attorney?
“[ROSS' COUNSEL]: No, Your Honor, we've gone over that before, many times.
“THE COURT: All right, and I'll just ask you as well, sir. Mr. Ross, do you wish to contest any of that evidence?
“THE DEFENDANT: No, sir.
....
“THE COURT: Mr. Ross, I want to ask you ... whether or not you feel based upon the totality of the circumstances, ... do you believe it is in your best interest to go ahead and authorize the Court to find you guilty in this case?
“THE DEFENDANT: Yes, sir.
“THE COURT: Okay, and that's really the most important thing here. And I understand it sounds like based upon this that you walked up into an involved altercation and that there may have been a self-defense or a defense of others type situation, but you're going to go ahead and after talking it fully over with [your counsel] do you feel like it is in your best interest to authorize the Court to find you guilty: Am I correct?
“THE DEFENDANT: Yes, sir.”
The court then found that Ross had fully discussed the matter with his counsel and had considered all the alternatives. The court further found that Ross' plea under Alford was knowingly and intelligently made, that his plea of guilty was in his best interests, and that he authorized the court to find him guilty.
After the parties discussed the schedule for sentencing, the prosecutor advised the court of an agreed bond order and asked the court to approve it. The court did so, but Ross soon violated the conditions of his bond by violating a no-contact order. The district court revoked Ross' bond, and Ross then moved to withdraw his plea.
In his motion, Ross contended there was newly discovered and available evidence in the form of eyewitness testimony supporting his self-defense argument. Ross did not attach the evidence, however, or even explain how it supported his self-defense theory. The State filed a response with the newly discovered evidence attached-a scrawled document from an alleged eyewitness (witness statement), dated only a few days after Ross' bond was revoked. Although the witness statement was entitled “Affidavit,” it was unsworn and did not bear a declaration that its contents were true and correct under pain of perjury. See K.S.A. 53–601.
The State identified the alleged eyewitness as Brent Moddelmog, who was in the Sedgwick County jail with Ross after his bond revocation. Moddelmog claimed that as he was riding his bicycle, he saw Ross' codefendant and a man named Tracy attack Watley. Moddelmog said Ross' codefendant stabbed Watley in the back and that, although Ross was nearby, he did not take part in the fight. Moddelmog finally said: “In fear I took off.”
The State argued in its response that the witness statement was unreliable, contending Moddelmog's assertion that he had previously met Ross' codefendant was suspect. Moddelmog had been committed for mental illness during part of the time in question and had been released from another commitment shortly before he was booked into jail and met Ross. The State further argued that while Moddelmog had said Watley was stabbed in the back, the medical records showed Watley was stabbed in the upper abdomen. Finally, the State alleged Moddelmog was in jail on a probation violation following a conviction for attempted robbery, a crime of dishonesty which could be used to impeach his credibility under K.S.A. 60–421.
Ross appeared with counsel at the hearing on his plea withdrawal motion. Ross' counsel did not call Moddelmog as a witness but apparently offered into evidence the witness statement. Ross' counsel told the court that his client “had always maintained that he was cut or stabbed in an altercation with the victim. And the victim was armed. We couldn't prove that particularly, we had no witnesses.... That is until my client went to jail.” Ross' counsel asserted the witness statement was clearly exculpatory and comported entirely with Ross' version of the events.
The prosecutor disputed this reading of the witness statement, pointing out that while Ross' putative defense was self-defense, the witness statement “says he's not even an actor. It is some other guy named Tracy.” The prosecutor noted, “[I]f some other dude did it, Mr. Ross would have been aware of that issue at the time he entered his plea.” The prosecutor argued Ross had instead “waived a specific defense of self-defense.” The prosecutor also argued that the witness statement was unreliable.
The court took the matter under advisement and later denied the motion to withdraw plea in an email ruling memorialized by a minute sheet, finding Ross' defense at the time of the plea was self-defense, not that a third person had committed the stabbing, and the witness statement had very little credibility.
Ross timely appeals.
Did Ross Show Good Cause to Withdraw His Plea?
Invoking the third factor from State v. Edgar, 281 Kan. 30, Syl. ¶ 2, 127 P.3d 986 (2006), Ross argues that because he made his plea without the knowledge of the testimony of his witness, he cannot be said to have made a voluntary and knowing plea. Ross claims that had the witness statement been known to him prior to his plea, he may very well have decided to go to trial and let a jury decide the worthiness of the witness. We review the district court's denial of Ross' motion to withdraw plea under an abuse of discretion standard. See State v. Kenney, 299 Kan. 389, 393, 323 P.3d 1288 (2014). “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.” 299 Kan. at 393.
In response, the State raises a number of procedural issues. First, it contends that Ross omitted the transcript of the withdrawal hearing from the record on appeal. After the State filed its brief, Ross added the transcript to the record. Since Ross did so before the district court clerk transmitted the record to this court, he did not need permission for the addition to the record. See Supreme Court Rule 3.02(d)(2)(B) (2014 Kan. Ct. R. Annot. 20).
Second, the State contends Ross did not raise the third Edgar factor—whether the plea was knowingly and voluntarily made—before the district court. 281 Kan. at 36. According to the State, Ross' exclusive claim in his motion was that he possessed newly discovered evidence; at no point in his motion did he contend his plea was not knowingly and voluntarily entered. In our view, the State draws too fine a distinction between Ross' argument regarding newly discovered evidence and a knowing and voluntarily made plea.
Although Ross' written motion to withdraw plea mentioned only newly discovered evidence, at the hearing on the motion, Ross' counsel tied Ross' lack of understanding to Ross' ignorance of the existence of another witness: “This is clearly, again, newly discovered. My client did not know about it, nor couldn't [ sic ] have known about it before he pled.” Ross' counsel maintained that had Ross known about this evidence, he would not have proceeded to the plea.
After Ross' arguments, the judge said he was struggling with the question of how newly discovered evidence related to the validity of the plea itself. The prosecutor responded in part: “Was the plea fairly and understandingly made? Arguably, [Ross' counsel] can say, well, we discovered new evidence, therefore, the plea couldn't have possibly been fairly and understandingly made. And that's usually how they bootstrap in the newly discovered evidence is [ sic ] under the third Edgar factor.” The judge then remarked, “I guess that's probably the fairest way to assess it,” but discussed further his difficulty regarding the relationship between newly discovered evidence and good cause to withdraw a plea. At the end of the hearing, Ross' counsel renewed his initial point more explicitly:
“For the prosecutors to say that my client knew the risk when he went to trial I suppose is true, but he didn't know ... this evidence existed. Had he known that this evidence existed, that is evidence in the form of the testimony of Mr. Moddelmog, he would have indeed gone to trial. It is a hallmark of a plea that would be [ sic ] freely and voluntarily and intelligently made. I would suggest that Your Honor needs to look at the totality of the circumstances.”
While it is true that Ross' motion to withdraw his plea was primarily based upon newly discovered evidence, Ross' counsel tied the third Edgar factor—whether the plea was knowingly and voluntarily entered—to Ross' lack of knowledge of the newly discovered evidence. We deem this as sufficient to allow us to review Ross' plea on appeal.
Third, the State contends the district court should not have considered the witness statement because the witness statement was not in affidavit form. However, the record shows that when Ross' counsel sought admission of the witness statement at the hearing, he told the judge that he and the prosecutor had discussed the form of the witness statement and did not believe the prosecutor would object. The prosecutor advised that he did concur and had no objection. The court admitted the witness statement for purposes of this hearing.
Given the State had no objection to the form of the witness statement at the withdrawal hearing before the district court, we reject its objection on appeal and will consider the witness statement.
Finally, turning to the merits of the issue, we note that “[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.2014 Supp. 22–3210(d)(1). Newly discovered evidence may support withdrawal of a plea. See State v.. Bey, 270 Kan. 544, 558–59, 17 P.3d 322 (2001). Our Supreme Court described one such situation in a case examining withdrawal of a plea after sentencing:
“It is obvious that, if new evidence disproves an element of a crime, then the factual basis for a guilty or nolo contendere plea to the charge of committing that crime is undermined. It is a defendant's burden to prove that the factual basis of a plea is so undercut by new evidence that the prosecution could not have proved its case beyond a reasonable doubt. In such a situation, the court may permit withdrawal of the plea and may set aside the resulting conviction, because doing so corrects manifest injustice under K.S.A. 22–3210(d) and comports with due process.” State v. Green, 283 Kan. 531, 547, 153 P.3d 1216 (2007).
Since the manifest injustice standard for withdrawing a plea after sentencing is higher than the good cause standard applied to plea withdrawals before sentencing, evidence that the factual basis of a plea is undercut even after sentencing likely would also support withdrawal of a plea before sentencing. See State v. Denmark–Wagner, 292 Kan. 870, 876, 258 P.3d 960 (2011) (“the statutory standard for withdrawal of a plea after sentencing is higher for a defendant—manifest injustice rather than good cause”); see K.S.A.2014 Supp. 22–3210(d)(2). Therefore, our first question is whether the witness statement undercut the factual basis for Ross' plea.
Ross' involvement in the fight was essentially undisputed after the preliminary examination. Ross' stated defense, self-defense, presumed he had fought with and stabbed Watley. Moreover, Ross did not contest the factual basis offered by the State at the plea hearing, which identified him as the person who stabbed Watley. Finally, and perhaps most damaging to Ross' claim, even at the withdrawal hearing itself, Ross' counsel still argued self-defense, not mistaken identity.
Given that, Ross certainly bore a burden to prove he was not involved in the fight. The district court alluded to this at the withdrawal hearing when it posed the example of “a video tape that clearly shows the incident, clearly shows the defendant is not the wrongdoer here.” Here, the witness statement is not nearly so strong as the judge's example, even leaving aside its unsworn form.
First, Moddelmog's presence at the scene was not supported by other evidence. Second, Moddelmog's account was contradicted by the testimony at the preliminary hearing and the existence of a cell phone call, demonstrably from Ross' cell phone, describing his involvement in the fight. Third, Moddelmog's account contradicted the medical evidence that showed Watley was stabbed in the abdomen, not in the back. Fourth, questions of competence aside, the erratic form of the witness statement and the known facts about Moddelmog, which might have been admissible at trial, would not have bolstered Moddelmog's credibility to a rational factfinder. See State v. Griffin, 246 Kan. 320, 325–26, 787 P.2d 701 (1990) (“the weight to be given the evidence when admitted is for the trier of fact to determine”); State v. Foster, 46 Kan.App.2d 233, 244, 264 P.3d 116 (2011), aff'd 298 Kan. 348, 312 P.3d 364 (2013) (“the trier of fact is the sole arbiter of witness credibility”). The witness statement did not undercut the factual basis for Ross' plea.
Turning to Ross' self-defense theory, the witness statement was entirely irrelevant. Not only did it fail to support self-defense, but it also excluded that defense. The witness statement therefore had no “tendency in reason to prove any material fact” regarding self-defense. K.S.A. 60–401(b).
Ross would have known whether he was involved in the fight. With that knowledge, whatever it was, he did not dispute the factual basis for the plea. He instead entered an Alford plea based on self-defense. Because the witness statement neither undercut the factual basis for the plea nor supported Ross' self-defense theory, it did not call into question whether the plea was fairly and understandingly made. The district court therefore did not abuse its discretion in finding Ross had not shown good cause to withdraw the plea.
Affirmed.