Opinion
No. 106,652.
2012-09-7
STATE of Kansas, Appellee, v. Bobby G. STENSLAND, Appellant.
Appeal from Seward District Court; Clint B. Peterson, Judge. Derek W. Miller, of Miller Law Firm, LLC, of Liberal, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Seward District Court; Clint B. Peterson, Judge.
Derek W. Miller, of Miller Law Firm, LLC, of Liberal, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Bobby G. Stensland appeals his convictions and sentences for kidnapping and aggravated robbery. Two issues are presented: (1) Did the district court err in denying Stensland's motion to withdraw pleas of nolo contendere and (2) did the State meets its burden to prove Stensland's criminal history?
We affirm. The district court did not abuse its discretion in denying Stensland's motion to withdraw pleas. Second, the State satisfied its burden of proof to establish Stensland's criminal history.
The underlying circumstances
Stensland was charged with aggravated kidnapping, aggravated robbery, conspiracy to commit aggravated robbery, theft, vehicular burglary, attempted felony theft, conspiracy to commit theft, and criminal damage to property. A jury was unable to agree on a verdict, so the court declared a mistrial.
The parties entered into a plea agreement. Stensland agreed to enter dispositive pleas to kidnapping and aggravated robbery; the State agreed to dismiss the balance of the charges. The day before the second trial was to begin, Stensland appeared before the district court and requested that the court accept his pleas of nolo contendere. A hearing was held pursuant to K.S.A.2010 Supp. 22–3210. At the conclusion of the hearing, the district court concluded the pleas were made voluntarily with an understanding of the nature of the charges and the consequences of the pleas. On appeal Stensland does not contend the district court failed to comply with the requirements of K.S.A.2010 Supp. 22–3210. The court directed that a presentence investigation (PSI) report was to be prepared by court services that would include a criminal history worksheet. It is the content of the worksheet that is at the heart of this controversy.
In the worksheet, Stensland's prior convictions included five prior juvenile adjudications for person felonies. The adjudications were in the district court of Ford County, Kansas, case No. 05–JV–50, each with an adjudication date on June 21, 2006, when Stensland was 16 years old. As a result, Stensland's criminal history classification in the present case was A.
On receipt of the PSI report and worksheet, Stensland filed an objection to the criminal history score and a motion to withdraw his pleas.
At the hearing, the district court first considered Stensland's motion to withdraw pleas. Only Stensland testified at the hearing. On direct examination there were the following exchanges;
“Q. ... [W]hat did you believe your criminal history score was when you entered this plea deal?
“A. I.
“Q. You thought you had no record; correct?
“A. I thought I had just two misdemeanors, yes.
“Q. And I told you that your juvenile adjudications count, but you said you got diversion on that; right?
“A. Yeah.
“Q. Okay. And you, also, didn't believe that you have any person felony, prior felonies, in that juvenile adjudication?
“A. I didn't believe I had.
“Q. And do you think you've ever been adjudicated as a juvenile offender?
“A. No, I haven't.
....
“Q. In fact, you told me that you were not adjudicated as a juvenile offender; correct?
“A. Never was.
....
“Q. ... [T]o sum up, you believed, based on what you saw and what was done in Dodge City, that you didnt have any prior nonperson felonies?
“A. Yes, sir.
“Q. And you told that to me on numerous occasions; correct?
“A. Yes, sir.
“Q. And you said, The only felonies I do have, I got a diversion for, and they were nonperson'; correct?
“A. Yes, sir.”
Certified copies of documents from case No. 05–JV–50 were also admitted into evidence: (1) the Information, (2) the Amended Information, (3) the Juvenile Diversion Agreement, (4) the Journal Entry of Diversion Revocation Hearing, and (5) the Journal Entry of Sentencing. Although attached to the appellant's brief, the documents are not included in the record on appeal. “Material which is annexed to an appellate brief by way of an appendix is not a substitute for the record itself and cannot be considered on appeal.” In re Gershater, 270 Kan. 620, 633, 17 P.3d 929 (2001); see Supreme Court Rule 6.02(f) (2011 Kan. Ct. R. Annot. 39).
At the conclusion of the hearing, the judge found that Stensland's mistake as to his true criminal history score did not amount to good cause sufficient to withdraw his pleas, stating:
“[F]irst, ... [Stensland] hasn't requested me to rule on the validity of the prior convictions, only that maybe [Stensland] didn't know what he was doing in Dodge City years ago. It's not relevant for the basis of this motion to withdraw a plea. The gist of it is that, based upon the testimony, ... thought he was entering a ... plea of no contest with a criminal history score of either I or H. He's unsatisfied with his criminal history, which is, of course, his own fault. But now he wants to withdraw the plea for no other reason than he doesn't like his criminal history.”
The court next considered Stensland's objection to the criminal history score and asked the State if it had any evidence to prove the score. In response, the State advised it would rely on the documents previously admitted by Stensland at the hearing to withdraw pleas. The district court reviewed the documents and determined that the State met its burden to prove Stensland's criminal history score. Ultimately, the court sentenced Stensland to consecutive terms of 247 months' imprisonment for count 1, kidnapping, and 61 months' imprisonment for count 2, aggravated robbery. Stensland has filed a timely appeal.
Stensland has not shown good cause to withdraw pleas
This court reviews a district court's denial of a presentence motion to withdraw a no contest plea for abuse of discretion. State v. Schow, 287 Kan. 529, 541, 197 P.3d 825 (2008). The district court abuses its discretion when, upon consideration of accurate legal standards, no reasonable person would take the action of the district court. State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006). The burden for proving abuse of discretion is on the defendant. Schow, 287 Kan. at 541.
“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.2010 Supp. 22–3210(d)(1). When considering a motion to withdraw prior to sentencing, the district court should evaluate 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.” Edgar, 281 Kan. 30, Syl. ¶ 2.
Stensland argues the district court abused its discretion by incorrectly applying the law because it failed to properly make an express finding as to each of the Edgar factors. However, when a defendant does not raise an issue about one of the Edgar factors, a district judge does not abuse his or her discretion by failing to make an express finding. See State v. Williams, 290 Kan. 1050, 1053–55, 236 P.3d 512 (2010). Stensland never complained about the competency of his counsel or that anyone misled, coerced, mistreated, or unfairly took advantage of him. Because he did not raise these issues before the district court, it did not abuse its discretion in failing to make express findings. The only Edgar factor raised by Stensland at the hearing was whether his pleas were fairly and understandingly made.
Moreover, under the facts of this case it cannot be said that the district court after hearing the evidence at the hearing to withdraw pleas should have sua sponte raised an issue as to competency of counsel. In State v. Aguilar, 290 Kan. 506, 231 P.3d 563 (2010), the Kansas Supreme Court recognized the “particularly egregious facts of this case” that were known by the district court and supported a legal conclusion that the district court did not apply the correct legal standard under K.S.A. 22–3210(d). See 290 Kan. 506, Syl. ¶¶ 2, 3. In the appeal now before us, there were no egregious facts made known to the district court at the time Stensland's pleas were entered, and Stensland did not assert a claim as to competency of counsel at the hearing to withdraw pleas. If such a claim were to have merit, it could only be presented in a K.S .A. 60–1507 proceeding.
Stensland also argues that the court documents in case No. 05–JV–50 either do not support a finding of adjudications or were so confusing that he would not reasonably understand that was the end result of the proceedings in Ford County. Neither contention is persuasive.
From a review of Stensland's testimony it would appear that the juvenile adjudication documents from the Ford County District Court are not the model of clarity, containing typographical errors, sometimes failing to indicate the severity level of the various crimes, and sometimes failing to distinguish whether a crime was a person or nonperson felony. Nevertheless, there is no indication from Stensland's testimony that the documents refute a finding that his diversion in 05–JV–50 was revoked and adjudications entered for the commission of five person felonies. Indeed, Stensland during cross-examination acknowledged that the documents from 05–JV–50 do indicate his diversion was revoked, and he was remanded to the custody of the Juvenile Justice Authority for placement. He also acknowledged that after diversion was revoked, he was placed in the Topeka Juvenile Correctional Facility. We next consider whether Stensland's alleged mistake regarding his past adjudications constitutes good cause.
A mutual mistake regarding a defendant's criminal history score may amount to good cause for withdrawal if it implicates the Edgar factors. See Schow, 287 Kan. 529, Syl. ¶ 3. Here, there was no mutual mistake. Stensland's mistake, if any, was unilateral and insufficient to support good cause for withdrawal of the pleas. Stensland's counsel informed him that juvenile adjudications are counted for purposes of criminal history; Stensland told counsel that he had obtained diversions. Moreover, Stensland did not believe any of the prior diversions were for person felonies. He assured his counsel on several occasions that this information was correct. But Stensland was mistaken. So to establish that his mistake was justified and sufficient to establish good cause to withdraw his pleas, Stensland referred to the documents from 05–JV–50 that are not in the record on appeal. In addition, there is no indication from the evidentiary record that Stensland considered the content of the documents prior to entering his pleas. At the plea hearing, Stensland merely answered the leading questions asked by his counsel as to what was shown in the documents.
At his plea hearing, Stensland was advised by the district court as to the sentencing range for a severity level 3 person felony. Nonetheless, a warning of the possible range of sentences can be ineffective if a defendant received assurances regarding his or her criminal history score. See Schow, 287 Kan. at 544–45, But no one gave Stensland assurances of his criminal history score; his confusion came from his own misunderstanding of various documents. The district judge, however, did advise Stensland at the sentencing hearing that the possible sentence range for his convictions was between 55 and 247 months. Stensland said he understood, and he pled no contest. Because Stensland received no assurances of his criminal history score and knew the possible range of sentences, he cannot now claim he did not fairly and understandingly make his plea. See State v. Lackey, 45 Kan.App.2d 257, 270, 246 P.3d 998,rev. denied 292 Kan. 968(2011).
A panel of this court has also held that a defendant can fairly and understandingly enter a dispositive plea even though, at the time, he or she is not certain of his or her true criminal history score. See State v. Barron, No. 104,385, 2011 WL 5526540, at *2–3 (Kan.App.2011) (unpublished opinion), rev. denied 294 Kan. –––– (May 21, 2012). Notably, one reason courts advise defendants of the possible range of sentences is because a true criminal history score may not be established until after the plea. See Schow, 287 Kan. at 546.
For all of the foregoing reasons, we conclude that the district court did not err in concluding Stensland failed to sustain his burden to establish good cause for withdrawal of his pleas.
The State did prove Stensland's criminal history score by a preponderance of the evidence
Interpretation of K.S.A.2010 Supp. 21–4715, which designates the burden to prove a defendant's criminal history score, is a question of law over which this court's review is unlimited. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). And whether the State sufficiently proved a conviction is a question of fact this court reviews for substantial competent evidence. State v. Loggins, 40 Kan.App.2d 585, 588, 194 P.3d 31 (2008), rev. denied 289 Kan. 1283 (2009).
The State is required to prove a defendant's criminal history score by a preponderance of the evidence. K.S.A.2010 Supp. 21–4715(a). And the PSI report, on its own, satisfies that burden unless the defendant files a written objection alleging a specific error. K.S.A.2010 Supp. 21–4715(b)–(c); see Schow, 287 Kan. at 537–40. Here, Stensland filed a proper, written objection to his criminal history score claiming that he was never adjudicated of five person felonies in 05–JV–50. Consequently, the State had the burden of producing further evidence sufficient to establish those disputed crimes by a preponderance of the evidence under K.S.A.2010 Supp. 21–4715(c).
Stensland argues the State failed to meet its burden because it did not produce any evidence—it relied only on the documents that Stensland previously admitted in the hearing to argue his pleas were not knowingly made.
The State's burden is only to prove the existence of the disputed, prior convictions. See State v. Perez, 21 Kan.App.2d 217, 222, 897 P.2d 1048 (1995). Stensland had caused to be admitted into evidence certified documents regarding his prior convictions when arguing his motion to withdraw his pleas. Both Stensland and the State possessed copies of records at the hearing. And although the State requested to admit its clean copies, Stensland's counsel requested to use its notated copies to assist in questioning Stensland. To save time, the State stipulated to the admission of all the documents.
“ ‘ “The law of this state is realistic. Substance prevails over form.” ‘ “ State v. Fewell, 286 Kan. 370, 389, 184 P.3d 903 (2008) (quoting Murray v. Modoc State Bank, 181 Kan. 642, 647, 313 P.2d 304 [1957] ). Rather than admitting the same documents twice, the State relied on the certified documents that Stensland previously admitted while arguing his motion to withdraw his pleas. Stensland argues that this does not satisfy the State's burden because, technically, the State did not admit any documents. But this puts form over substance. Certified documents regarding Stensland's prior convictions were in the record, and the State did not rely solely on the PSI report in proving the existence of those convictions.
Additionally, Stensland argues that if the State could use the documents to meet its burden, the documents themselves did not amount to substantial competent evidence sufficient to prove Stensland's criminal history score. However, as we previously noted, Stensland has not included the exhibits in the record on appeal and without a proper record, his argument must fail. See State v. Paul 285 Kan. 658, 670, 175 P.3d 840 (2008).
Conclusion
We note there is no indication from the record on appeal that Stensland ever sought a nunc pro tunc order in the 05–JV–50 proceedings to address his uncorroborated claim that he was not adjudicated as a juvenile offender for five person felonies. We also note Stensland has made no claim he was denied ineffective assistance of trial counsel in this proceeding or in 05–JV–50. He also did not claim that he was misled, coerced, mistreated, or unfairly taken advantage of when entering his pleas in this case or regarding his juvenile adjudications. As shown by the evidence, Stensland made a unilateral mistake regarding his prior criminal history that will not support good cause for withdrawal of his pleas. He failed to sustain his burden of proof. Accordingly, we conclude the district court did not err in denying Stensland's motion. We further conclude for the reasons we have stated that the State sustained its burden to prove Stensland's criminal history classification was A.
Affirmed.
ATCHESON, J., concurring.
While I concur in the resolution of Defendant Bobby Stensland's appeal, a troubling aspect of this case remains undeveloped in the record and effectively unaddressed in any forum. I, therefore, feel obligated to point out my concern and to suggest a motion under K.S.A. 60–1507 would permit the matter to be aired. Stensland may have been deprived of both a full and fair hearing on the motion to withdraw his pleas and his constitutional right to be represented by counsel. There simply is no way to tell from what is before us.
The Problem
When Stensland was 15 and 16 years old, he was adjudicated as a juvenile offender in Ford County District Court in what appears to have been a protracted and somewhat complicated case. He apparently was placed on diversion and later revoked and adjudicated. In entering pleas to the amended charges in this case, Stensland apparently believed he had no juvenile history that would affect his sentence. As it turned out, however, he actually had the equivalent of at least three person felonies as a result of juvenile adjudications. The impact on Stensland's criminal history and guideline sentence in this case was marked, to say the least.
In arguing the motion to withdraw the pleas to the Seward County District Court, Derek W. Miller, Stensland's retained counsel, suggested that a juvenile offender likely would not comprehend, let alone fully appreciate, the circumstances that caused the diversion agreement to evolve (or devolve) into adjudications that would be treated as multiple person felonies in a later adult criminal prosecution. In the district court, Miller focused on other arguments for setting aside the pleas. On appeal, he placed much greater emphasis on the inability of the typical juvenile offender to grasp the significance of a convoluted judicial disposition, such as the one Stensland went through in Ford County. There certainly is some facial appeal to the argument.
But in pressing that argument, Miller created for himself a potential conflict of interest with his client. And the more vociferously he pressed, the greater the potential conflict. If, as Miller argued, Stensland could not reasonably have been expected to fully understand the juvenile adjudications, he could not then be a reliable historian as to his criminal history for sentencing purposes in this case. To adequately represent Stensland in that circumstance, Miller presumably would have had some obligation to independently investigate Stensland's juvenile court history. The failure to do so, in turn, would implicate Miller's competence. The competence of counsel is a material factor to be considered on a motion to withdraw a plea. State v. Aguilar, 290 Kan. 506, 511–12, 231 P.3d 563 (2010); State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006).
In short, by making the argument, Miller injected the adequacy of his representation of Stensland into the case. The apparent conflict is palpable—can Miller fully and fairly present evidence and argument regarding the competency of his representation of Stensland? The answer renders the question essentially rhetorical.
The Implications
As the majority points out, the Edgar factors, including competence of defense counsel, went mostly unmentioned and unexplored in the district court hearing on the motion to withdraw the pleas. But they substantially affect a defendant's showing of good cause to withdraw a plea before sentencing. Stensland testified about his understanding of the juvenile proceedings in Ford County and his confusion about the outcome. He also testified that he told Miller he had received diversion and believed he had no juvenile court history that would affect his sentencing in this case. Given the argument for allowing withdrawal of the pleas—all of that was too much for a 15– or 16–year–old to process—Miller failed to present highly relevant evidence regarding his own actions in representing Stensland. Did Miller obtain or review the Ford County juvenile court records? Did he speak with the lawyer who represented Stensland in juvenile court? Or did he simply rely on what Stensland told him?
The failure to address and develop the Edgar factors in this case has a certain Catch–22 quality. Because the factors, in part, look at the adequacy of Miller's representation, he would have a disincentive to attack his own competence. Moreover, as I have implied, Miller almost certainly would have been a witness in the district court hearing if the Edgar factors were to be fully explored. All of that suggests Miller should have stepped aside—at least for purposes representing Stensland on the motion to withdraw the pleas. If the motion had been successful, Stensland, of course, could have continued with Miller as his counsel in a retrial.
The situation here also may have compromised Stensland's right to counsel under the Sixth Amendment to the United States Constitution. That right requires a criminal defendant be represented by conflict-free counsel. See State v. Hulett, 293 Kan. 312, 319, 263 P.3d 153 (2011) (defendant “had a constitutional right to conflict-free counsel at the hearing on his motion to withdraw his plea”). Here, there is serious question whether Stensland had conflict-free counsel on the motion.
Sometimes, a defendant will personally voice complaints about the adequacy of his or her representation. A district court should explore those complaints to determine if there is a genuine problem. 293 Kan. at 319. Stensland, as a nonlawyer, would not necessarily have recognized the potential conflict here. Unsurprisingly, he voiced no concern about any conflict at the motion hearing. And, in light of the multiple arguments Miller presented for withdrawing the pleas, we appreciate why the district court may have overlooked the problem as well.
What remains, as a result, is an appellate record in which both the potential conflict and factors relevant to the motion to withdraw the pleas have not been expressly raised or developed. Accordingly, we are in no position to address them. And Stensland has not asked for a remand to the district court to explore them. See State v. Van Cleave, 239 Kan. 117, Syl. ¶ 2, 716 P.2d 580 (1986).
The state of the record, therefore, requires the denial of Stensland's appeal. The evidence fails to support the motion to withdraw his pleas. I do not, however, subscribe to the broad language of the majority opinion categorically declaring Stensland's request to withdraw his pleas to be without merit. The record likely does not reflect all of the pertinent facts. And that failure may well be attributable to a conflict on Miller's part. So I withhold any judgment about what a fully developed record might show.
Before turning to what seems to be the answer to the problem afflicting this case, I need to comment on the scope of representation regarding a client's criminal history. In general, defendants are expected to have some fair understanding of their criminal histories. It makes sense that a criminal defendant would likely remember adult convictions, especially felonies, and could provide a roughly accurate accounting to his or her lawyer in a pending case. If a defendant had too many adult convictions to remember them in detail, that's a signal to his or her lawyer the presumptive punishment may be on the high end of the sentencing grid and the client should be informed accordingly. As the run of cases demonstrates, some defendants try to provide good information to their lawyers, and some don't. A lawyer shouldn't be particularly faulted for inaccurate or incomplete advice to a dissembling client based on an assessment of a deliberately understated criminal history.
The assumption defendants have a working comprehension of their criminal backgrounds has less heft with regard to juvenile adjudications, given the nature of that process and the age of the participants. I do not suggest, however, some broad rule requiring a criminal defense lawyer to independently review and verify their clients' juvenile court histories as part of an abstract standard of care or adequate representation. But if the lawyer argues to the court or otherwise concludes a client does not understand or appreciate his or her juvenile history because of its complexity, the standard of care in that instance may require some effort at verification in conjunction with advice on sentencing ramifications and a concomitant decision to plead or go to trial in the pending case.
The Answer
Based on the briefing here and the record on appeal, Stensland has a colorable basis for a K.S.A. 60–1507 motion. A 60–1507 proceeding would provide a means for developing the facts pertinent to the adequacy of his representation on the motion to withdraw his pleas. Without prejudging such a motion, I expect it likely would require appointment of counsel for Stensland and a hearing of some sort. See Bellamy v. State, 285 Kan. 346, 356–57, 172 P.3d 10 (2007). After an appropriate hearing, a court might conclude that Stensland had been adequately represented, had no grounds to withdraw his pleas, and commands no relief. But that hearing might show he wasn't sufficiently represented on the motion and ought to have been allowed to withdraw his pleas.