Opinion
111,837.
05-15-2015
STATE of Kansas, Appellee, v. Renato SALCIDO, Appellant.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant.
Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., McANANY, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Renato Salcido appeals the district court's denial of his motion to withdraw his nolo contendere plea before sentencing. Salcido contends that the district court abused its discretion in denying his motion by “mechanically” applying the factors articulated in State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006), without also considering the fact that Salcido was maintaining his innocence. We find no abuse of discretion and affirm the district court's judgment.
The State initially charged Salcido with two counts of aggravated indecent liberties with a child and one count of aggravated criminal sodomy, all off-grid person felonies, as a result of allegations that he sexually molested his stepdaughter. As part of a plea agreement, the State amended the charge to one count of aggravated criminal sodomy, a severity level 1 person felony, and further agreed to recommend a downward durational departure of 120 months. In exchange, Salcido agreed to enter a plea of no contest to the amended charge.
Before sentencing, Salcido moved to withdraw his no-contest plea, arguing that that due to a language barrier he did not understand when entering the plea that he would be adjudicated guilty without a trial. Salcido maintained his innocence and expressed that he wished to proceed to trial. Following an evidentiary hearing, the district court denied the motion and set the case for sentencing.
Consistent with the plea agreement, the district court granted a downward departure sentence from the presumptive range of 147 to 165 months to 120 months' imprisonment. Salcido appeals.
Salcido argues that the district court abused its discretion in denying his presentence motion to withdraw his plea. He claims the district court focused solely on the Edgar factors rather than also considering an additional factor: Salcido's claim of actual innocence. Salcido argues that any error in failing to consider his claim of actual innocence cannot be deemed harmless because a claim of actual innocence, in and of itself, may be sufficient to establish good cause to withdraw a plea. Salcido asks us to remand to the district court with directions to consider all of Salcido's factors before ruling on his motion to withdraw his plea. But other than the absence of comment on Salcido's claim of actual innocence, there is no evidence that the district court did not consider that factor before denying Salcido's motion.
“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). Salcido has the burden of showing an abuse of discretion. See State v. Kenney, 299 Kan. 389, 393, 323 P.3d 1288 (2014). Abuse of discretion means that the decision was: (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). We have unlimited review over whether “the district court's discretionary determination was guided by erroneous legal conclusions.” State v. Garcia, 295 Kan. 53, 61, 283 P.3d 165 (2013).
In determining whether a defendant has shown good cause to withdraw a plea, the district court should consider whether: (1) the defendant was represented by competent counsel; (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) the plea was fairly and understandingly made. State v. Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014) ; Edgar, 281 Kan. at 36. The district court also may consider other factors when determining whether good cause is shown. State v. Ebaben, 294 Kan. 807, 812, 281 P.3d 129 (2012). The Edgar factors should not be applied mechanically and to the exclusion of other factors. Fritz, 299 Kan. at 154.
During the plea hearing, Salcido testified and expressed at least three times that he was innocent. Salcido maintained that he did not understand that he was entering a plea and foregoing his right to a trial. In contrast, his attorney testified that he believed that Salcido understood the difference between a no-contest plea and a guilty plea and that he intended to plead no contest to the charge.
In discussing the evidence as part of his ruling, the district judge noted that Salcido was represented by two very competent criminal attorneys, and one of his attorneys was a native Spanish speaker. The district judge recognized the language barrier, but he noted that Salcido had the benefit of a plea petition that was presented in both English and Spanish. In addition, the district judge noted that there were times during the plea hearing that Salcido did not understand a question, but the judge took the time—with the help of Salcido's attorneys and the interpreter—to make sure that any confusion was clarified for Salcido. The district judge thoroughly reviewed the plea hearing transcript to ensure that there were no indication that Salcido was confused or did not willingly enter his plea. The judge noted the Edgar factors to be considered in ruling on the motion. He reviewed Salcido's statements at the plea hearing, including Salcido's expressed understanding that he would be giving up his right to a trial.
Although the district judge did not comment on Salcido's assertion of innocence, there is no indication that the judge disregarded this factor in ruling that Salcido failed to show good cause to withdraw his plea. The judge carefully reviewed the testimony presented and the plea colloquy and then concluded that Salcido understood he was entering a plea and the consequences of that plea.
Salcido relies on Garcia, 295 Kan. 53. In that case, our Supreme Court remanded the matter for reconsideration when it appeared that the district court denied the defendant's motion to withdraw his plea based on the proposition that the defendant was required to assert his actual innocence to his crimes of conviction. 295 Kan. at 63–64. Unlike in Garcia, the district court here relied on the appropriate legal standards in ruling and did not operate under a flawed understanding of the law. See 295 Kan. at 61–62, 63–64.
Salcido has failed to show that the district court ruled on his motion to withdraw plea without considering his assertion of innocence. Salcido included his assertion of innocence in his written motion, and he maintained his innocence during the hearing on his motion to withdraw his plea. The mere fact that the district judge did not elaborate on Salcido's claim of innocence on the record is not evidence that it was not considered before ruling. Accordingly, we are not persuaded by Salcido's sole argument on appeal.
Affirmed.