Opinion
No. 107,559.
2013-05-17
STATE of Kansas, Appellee, v. Tapara SIMMONS, Appellant.
Appeal from Johnson District Court; Sara Welch, Judge. Michael J. Bartee, of Michael J. Bartee, P.A. of Olathe, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Sara Welch, Judge.
Michael J. Bartee, of Michael J. Bartee, P.A. of Olathe, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
When Tapara Simmons entered his guilty pleas, the State agreed to ask for probation and Simmons agreed to abide by his bond conditions, including refraining from the use of alcohol and “no violent contact” with the victim. At his sentencing, the State asked for a prison sanction instead of probation because while on bond, Simmons drank alcohol and tried to contact the victim many times. Simmons appeals the denial of his postsentencing motion to withdraw his guilty pleas. According to the terms of the plea agreement, which were explained to Simmons by his counsel, the State could argue for incarceration instead of probation if Simmons violated the conditions of his bond or broke the law before sentencing. Our review of the record leads us to agree with the district court that there was no manifest injustice to correct here that would call for Simmons' pleas to be withdrawn. Because Simmons violated the conditions of his bond by drinking alcohol and by contacting his victim many times, we see no reason for the State to continue to argue for probation for Simmons.
Simmons entered a plea agreement in which he agreed to plead guilty to a controlled substance charge and a domestic battery charge. In turn, the State agreed to recommend a sentence departure to probation. A part of the plea agreement stated: “If any bond or new law violations prior to sentencing, open argue.”
Simmons appeared before the district court and pled guilty to the two charges, as agreed. Later at sentencing, defense counsel noted Simmons had admitted to consuming alcohol in violation of the conditions of his bond. Therefore, the parties offered arguments on whether Simmons should or should not be granted a sentencing dispositional departure to probation. The State requested imprisonment, noting Simmons had recently been arrested for conduct “vastly similar” to that at hand, resulting in another felony domestic charge against him. The State noted Simmons was drinking in violation of his bond conditions and he had contacted the victim approximately 40 times in violation of the court's orders. The court advised Simmons that it is not bound by an agreement to a dispositional departure to probation, as the decision whether to grant departure is up to the court. Simmons indicated he understood this. The court did not grant a dispositional departure and ordered Simmons to serve a controlling term of 40 months' imprisonment.
Later, Simmons filed a “Motion to Withdraw Plea Agreement” in the district court. Once new counsel was appointed, a supplemental motion was filed requesting that Simmons' guilty pleas be withdrawn or, in the alternative, a new sentencing hearing. Simmons claimed that prior to sentencing, he told his attorney he wished to withdraw his guilty pleas, but his attorney advised him he could not. Simmons complained that the “open argue” provision of the plea agreement was unclear, rendering his pleas not fairly and understandingly made.
At a hearing on Simmons' motion, Simmons said he understood the “open argue” provision of the plea agreement to mean the parties could argue the terms or length of probation. Simmons testified he understood that he would receive probation. Simmons said that prior to sentencing, he and his attorney discussed that the State was going to recommend prison time. Simmons claimed he told his attorney he wanted to withdraw his plea at that point, but his attorney advised him he could not.
Simmons' former attorney, Damon Mitchell, also testified at the hearing. Mitchell testified that he told Simmons the “open argue” provision meant that “absolutely everything” was “on the table.” Mitchell said he spoke with Simmons at length about the case and advised Simmons to not live with the victim—since a “call from her” could “land him back in custody” and cause him to lose the “benefit of the bargain.” When asked if Mitchell had explained to Simmons that the “open argue” provision could mean the State could recommend imprisonment, Mitchell responded, “Absolutely.” Mitchell testified he and Simmons specifically discussed this possibility, since Simmons was facing a presumptive prison sentence. Mitchell said Simmons expressed no confusion about the “open argue” provision. In fact, Mitchell said the “open argument” provision was what led him to advise Simmons to not reside with the victim until after sentencing. Mitchell said that after Simmons' bond violation, he explained to Simmons that there was no longer a guarantee of probation.
Mitchell testified that after Simmons violated his bond conditions, he discussed with him that there would now be an “uphill battle,” since the “bargain” was no longer what they previously thought it was. At that point, Mitchell talked with Simmons about the possibility of withdrawing the pleas and explained the procedure, advising Simmons it would require a continuance, a hearing on the matter, and a decision from the judge. Mitchell testified Simmons indicated he wanted to get the case over with. Mitchell said Simmons' claim that he expressed to Mitchell he wanted to withdraw his pleas was “absolutely untrue.”
The district court denied Simmons' motion, after finding there was no manifest injustice requiring the withdrawal of Simmons' pleas. The court said based on Mitchell's testimony, the “open argue” provision was explained to Simmons and that Simmons “bore the risk” the State would argue for prison time if he violated bond or the law prior to sentencing. The court indicated Mitchell's testimony was more credible as far as his advice to Simmons about the option of withdrawing his pleas and the consequences. The court held Mitchell was competent counsel and Simmons' pleas were fairly and understandingly made.
To us, Simmons maintains he should have been allowed to withdraw his plea agreement because it was not fairly and understandingly made. Simmons says the “open argue” provision was ambiguous and, if strictly construed, allowed the State to violate its agreement to recommend probation.
We first note our standard of review over Simmons' claim.
K.S.A.2012 Supp. 22–3210(d)(l) provides that a guilty plea may be withdrawn for “good cause shown and within the discretion of the court” at any time before sentencing. After sentencing, the court may set aside the judgment of conviction and permit the defendant to withdraw a plea in order to “correct manifest injustice.” K.S.A.2012 Supp. 22–3210(d)(2). Here, Simmons moved to withdraw his pleas after sentencing. Thus, the court could only allow him to withdraw his pleas if he made a showing of manifest injustice.
This court has defined the “ ‘manifest injustice’ “ standard to require a showing that it would be “obviously unfair or shocking to the conscience” if the defendant was not allowed to withdraw the plea. See State v. Barahona, 35 Kan.App.2d 605, 608–09, 132 P.3d 959,rev. denied 282 Kan. 791 (2006). One of three factors the courts consider in evaluating postsentencing motions to withdraw pleas is whether the pleas were fairly and understandingly made. See State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). The district court's decision to deny a postsentence motion to withdraw a plea is reviewed under an abuse of discretion standard. The defendant bears the burden to prove the district court abused its discretion. State v. Bricker, 292 Kan. 239, 244, 252 P.3d 118 (2011).
The question presented by Simmons is whether he has shown his pleas were not fairly and understandingly made, so that it was manifestly unjust for the district court to refuse to allow him to withdraw his pleas. We hold there was no manifest injustice and the district court did not abuse its discretion in denying Simmons' motion to withdraw his pleas.
At the hearing on Simmons' motion, Mitchell's testimony overwhelmingly indicated he and Simmons discussed the “open argue” provision, Simmons was informed of the consequences of the provision, and Simmons did not convey to Mitchell he wanted to withdraw his pleas once he realized these consequences were coming to fruition. The district court simply found Mitchell's testimony on the issues more credible. And on appeal, this court is not permitted to reweigh the evidence or assess witness credibility. State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011).
As the district court observed, this appears to be a classic case of “buyer's remorse.” Simmons agreed to the terms of the plea agreement—knowing full well he would receive the benefit of probation as long as he did not violate the bond conditions or the law. When Simmons did, in fact, violate bond and discover the State was going to argue for imprisonment, he took a risk and proceeded to sentencing anyway. It was only when the district court imposed prison that Simmons realized he needed to attempt to undo his pleas.
Under these facts, there was no manifest injustice when the district court refused to permit Simmons to withdraw his pleas. The evidence demonstrates Simmons' pleas were made fairly and with full understanding of the potential consequences.
Affirmed.