Opinion
No. 107,634.
2013-08-29
STATE of Kansas, Appellee, v. Mark STORMS, Appellant.
Appeal from Geary District Court; Steven L. Hornbaker, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Michelle Brown, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Geary District Court; Steven L. Hornbaker, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Michelle Brown, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Pursuant to plea negotiations, Mark Storms pled no contest and was found guilty of aggravated criminal sodomy in violation of K.S.A. 21–3506(a)(l). Storms raises two issues on appeal. First, he contends the district court abused its discretion by denying his motion to withdraw plea. Second, he argues the district court abused its discretion by refusing to grant him a greater downward durational departure. As discussed below, we affirm the conviction and dismiss the sentencing issue for lack of jurisdiction.
Factual and Procedural Background
On November 18, 2011, Storms pled no contest to aggravated criminal sodomy, an off-grid felony, based on evidence that he forced his 4–year–old niece to engage in a sex act with him. In exchange for the plea, the State agreed to dismiss the remaining charges and to not oppose Storms' “request for a downward durational departure ... to the standard number in the applicable grid box for a level 1 offense,” which was a prison sentence of 155 months. After verifying that Storms' plea was “voluntarily and intelligently made with a full understanding of the consequences,” the district court accepted the plea and found him guilty.
Prior to sentencing, Storms filed a pro se motion to withdraw his plea. See K.S.A.2012 Supp. 22–3210. Storms alleged that his attorney, Steve Staker, induced him to enter a plea by promising to file a motion for a greater downward durational departure than specified in the plea agreement. According to Storms, however, Staker had later refused to file the motion. Storms also asserted that Staker pressured him into signing the plea agreement in order to dispose of his case. Storms explained: “I also feel that [Staker] hasn't represented me with his best intentions. My reason to believe that he hasn't is because he kept pushing me to sign a plea, then to find out he is leaving his firm and not going to be around after the 21st of December.”
On January 30, 2012, an evidentiary hearing was held to consider Storms' motion. At the hearing, Storms first explained that he was under the impression Staker would request a greater departure because, during plea negotiations, he and Staker discussed his ability to receive an additional 50% reduction in his sentence: “Mr. Staker ... took 155 and divided it by two to where it equaled about the 77 months. And by the time served and everything, I'd only do about 5 years.”
Second, Storms complained that Staker failed to fully explain the consequences of lifetime postrelease supervision. Storms stated:
“I was told that I could still have a life, I could still travel, go to Japan, Germany, stuff like that. Still go to clubs, drink alcohol, because that's what 1 like to do. But I come to find out, I'm highly watched and I'll have pretty much a new dad.”
Third, Storms asserted that Staker pressured him to enter a plea by continuously telling him that “you need to sign it, you need to sign it, just over and over and over.” According to Storms, although he could not specifically recall his conversations with Staker, his attorney told him he would “automatically” receive a sentence of 25 years to life if he did not sign the plea agreement and, thus, because he was “scared,” he was forced to “look at the difference between 13 years and life.”
After considering the testimony of Storms and Staker, the district court denied the motion to withdraw plea finding that Storms had failed to show good cause to set aside his plea, Staker had provided competent representation, and Storms “knowing[ly], intelligently, and voluntarily” entered his no contest plea.
Immediately thereafter, the district court conducted the sentencing hearing. After considering the parties' arguments and reviewing Storms' motion for a downward durational departure sentence of 155 months (as provided in the plea agreement), the district court departed from the prescribed sentence under Jessica's Law and sentenced Storms to the standard Kansas Sentencing Guidelines Act (KSGA) sentence of 155 months' imprisonment followed by lifetime postrelease supervision. Storms filed this timely appeal.
Denial of Motion to Withdraw Plea
On appeal, Storms contends the district court abused its discretion when it denied his presentence motion to withdraw plea. He argues the evidence presented at the hearing was clearly sufficient to show that he received ineffective assistance of counsel and was coerced into signing the plea agreement.
Prior to sentencing, a district court may, in the exercise of sound judicial discretion, withdraw a defendant's plea of guilty or nolo contendere “for good cause shown.” K.S.A.2012 Supp. 22–3210(d)(l). When determining whether the defendant has shown good cause, Kansas courts generally consider the following three factors 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. [Citations omitted.]” State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010). These “ ‘factors need not apply in a defendant's favor in every case, and other factors may be duly considered in the district judge's discretionary decision on the existence or nonexistence of good cause.’ [Citation omitted.]” State v. Macias–Medina, 293 Kan. 833, 837, 268 P.3d 1201 (2012).
While these three factors are “viable benchmarks for judicial discretion,” district courts should not mechanically apply them or rely upon them to the exclusion of other factors. See Aguilar, 290 Kan. at 512. Additionally, when the defendant files a presentencing motion to withdraw plea, the standard for determining the competency of counsel is less stringent than the constitutional standard for ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674,reh. denied467 U.S. 1267 (1984). See Aguilar, 290 Kan. at 512–13.
On appeal, the party asserting the district court abused its discretion bears the burden of showing such abuse. State v. Hulett, 293 Kan. 312, 319, 263 P.3d 153 (2011). With regard to our standard of review, appellate courts will not disturb a ruling on a presentencing motion to withdraw plea unless the defendant sufficiently demonstrates that the district court abused its sound discretion. Macias–Medina, 293 Kan. at 836. A judicial action constitutes an abuse of discretion
“if [the] judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
On appeal, Storms contends the district court abused its discretion because its ruling was not supported by substantial competent evidence that two of the three Edgar factors were met. Specifically, Storms argues he received ineffective assistance of counsel and Staker misled and coerced him into entering a no contest plea. Storms relies upon the same factual assertions to support both of his arguments: First, he asserts Staker pressured him to enter a plea by “repeatedly encouraging him” to plead. Second, he claims Staker misled him by falsely promising to file a motion to depart to a lesser sentence than the 155 months recommended in the plea agreement.
After a careful review of the record, we are persuaded that the district court's legal conclusions were proper and well supported by substantial competent evidence.
We first address Storms' allegation that Staker pressured him to enter a plea. Despite Storms' assertion to the contrary, the record shows that he freely, knowingly, and voluntarily entered his plea with a full understanding of the consequences. In particular, prior to the plea, Storms signed a Defendant's Acknowledgement of Rights and Entry of Plea form, which stated:
“The defendant enters into this agreement after discussing its contents with his attorney, and after discussing his legal and Constitutional rights with his attorney. Other than what appears above, there have been no promises or inducements made to the defendant to get him to enter into this agreement ....
....
“I understand that by entering this plea of nolo contendere to the charge of aggravated criminal sodomy, I am subject to a sentence of life imprisonment with a minimum mandatory 25 years in prison before I am eligible for parole. Parole eligibility does not guarantee parole at the conclusion of 25 years. The Court, upon a finding of substantial and compelling reasons can grant a downward durational departure to the sentence I would receive if this was treated as a level one felony on the non-drug grid. However, the Court is not bound by any recommendations by the parties to grant a downward departure....
....
“ I do this of my own free will and under no threat, intimidation or coercion, and no promises have been made to me by my attorney, any police officer, or any prosecuting attorney as to what 1 should expect to receive from this.” (Emphasis added.)
This signed document explicitly provided Storms' written assurance that his prospective plea was not coerced but, on the contrary, was freely and voluntarily given.
Moreover, at the plea hearing—consistent with the plea form—Storms personally told the district court that he was satisfied with Staker's legal services; that no one threatened, coerced, or promised him anything with regard to the plea; and that he understood his rights, the charges against him, and the consequences of his plea.
At the later plea withdrawal hearing, Storms acknowledged his earlier statements that he was not coerced to enter the plea and that he understood the consequences, but he contended that he answered the district court's questions in this manner because he “felt obligated” to do so. When asked to elaborate, Storms explained, “I would have to say because I was signing [the plea agreement] to get this over and done with so my family isn't getting taken away from me and they weren't mad at me for going all the way to trial.” This reason is clearly at odds with Storms' stated claim that his plea was the result of Staker's coercive tactics. In fact, Storms subsequently conceded that Staker had nothing to do with the pressure exerted upon him by his family.
Several Kansas cases have found that pressure from one's attorney or family is not a valid basis for withdrawal of an otherwise voluntary plea of guilty. See, e.g., Wippel v. State, 203 Kan. 207, 209, 453 P.2d 43 (1969); Williams v. State, 197 Kan. 708, 710–11, 421 P.2d 194 (1966); State v. Bartlow, No. 96,933, 2008 WL 2051672, at *3–4 (unpublished opinion), rev. denied 286 Kan. 1180 (2008).
For example, in Williams the defendant argued that his attorney and his wife coerced him to plead guilty to raping his stepdaughter. In particular, the defendant asserted that he was pressured into entering a plea because his wife and attorney advised him of the facts that would be publicized during trial, the damage a trial would cause to his stepdaughter's reputation, the “worry and strife” a trial would inflict upon his wife, and his potential sentence. 197 Kan. at 710. Our Supreme Court held that while these conversations may have influenced his decision to plead guilty, such pressure does not justify the reversal of an otherwise valid plea. 197 Kan. at 711. The court explained that “[e]very man charged with crime is influenced by personal considerations which may later not appear valid to him, but psychological self-coercion is not the coercion necessary in law to destroy an otherwise voluntary plea of guilty.” 197 Kan. at 711.
On this record, Storms has failed to meet his burden of proving that Starks coerced him into pleading no contest. There was substantial competent evidence to show that Storms' plea was freely, knowingly, and voluntarily made after full consultation with his attorney. The district court did not abuse its discretion in ruling that Storms had not shown good cause to withdraw his plea based on the claim that his attorney coerced him into entering a plea.
We next address Storms' second argument that Staker misled him by falsely promising to file a motion to depart to a lesser sentence than recommended in the plea agreement. At the plea withdrawal hearing, Storms explained that he was under the impression that Staker would request a greater downward departure than 155 months. This was because during plea negotiations, he and Staker discussed the possibility of receiving an additional 50% reduction in his sentence.
At the plea withdrawal hearing, Staker emphatically maintained that he never promised Storms that he would request a further departure from that specified in the plea agreement—155 months—and he indicated that he believed a request for a further departure would violate “the spirit of the plea agreement.” Staker also explained:
“I—we discussed the possibility the Court did have, under its power, the ability to depart downward an additional, you know, 50 percent, which I believed, under the law, that you can go 50 percent below the grid. You couldn't go all the way to probation, but you could go 50 percent under the grid. And we discussed that. But we also discussed the cons of that, you know. And 1 think [the State] and I had discussed that possibility of us trying to work out some kind of agreement to that effect, and I don't think [the State was] receptive to that.
“And I came back after that and explained to [Storms], you know, the problem with that is, number one, I don't believe that that's a realistic outcome to expect; and, number two, that what happens then is you open the sentencing basically up to a contested hearing, and the State can get into the bad factors that, you know, may not result in [Storms] getting the departure even down to the grid sentence, it could undermine ... our efforts to get ... the departure to the 155–month sentence. And I thought we had an understanding on that, and the 155 months is what we were going to do.”
Although Storms' and Staker's accounts differed, the district court found Staker's testimony to be more credible and compelling. It is not proper for this court to question the trier of fact's credibility determinations on appeal. See State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011).
Additionally, the district court's credibility assessment and understanding of the evidence was not unreasonable in light of two exhibits admitted by the State at the plea withdrawal hearing. First, the State admitted a letter Storms sent to Staker after the plea hearing detailing a “[s]peech” he wished to give at sentencing. In relevant part, this letter indicated that Storms understood that he had agreed to plead no contest to an amended complaint with an understanding that he would receive a downward durational departure of 155 months:
“ I understand fully that I signed a plea for 155 months if you will except that plea, also I know you can give me 25 to life basicly [ sic ] I know the punishments for this crime. Well I do know, not when it happened. But is there anyway that even though I signed this plea you could give me something better like under 100 months. Please your honor I don't want my 20's to be in prison. This is a one time mistake that will never happen again. I am a good kid, and I can't say sorry enough.” (Emphasis added.)
This letter confirms that while Storms hoped the district court would sentence him to a lesser punishment, he understood the plea agreement provided that he would serve 155 months.
Similarly, the State admitted a DVD recording of a telephone conversation between Storms and his sister, which took place shortly after he entered his no contest plea. During this conversation, Storms told his sister that he had accepted responsibility for his actions by signing a plea agreement for a prison sentence of 155 months followed by lifetime postrelease supervision. Significantly, Storms never mentioned that Staker would seek an additional sentence reduction.
With regard to both of Storms' arguments in favor of a plea withdrawal, the district judge who presided over the plea hearing also conducted the plea withdrawal hearing. As a result, the district judge was in the best position to determine whether Storms fully understood the consequences of his decision to enter a no contest plea. The presiding judge at both hearings had the ability to observe Storms and to determine the credibility of his claims at the plea withdrawal hearing. Based upon his observations of Storms at both hearings, the judge determined that Storms' version of events advanced at the plea withdrawal hearing did not comport with what actually occurred at the time of his plea.
When reviewing factual findings, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility. Anderson, 291 Kan. at 855. Moreover, in Macias–Medina, our Supreme Court noted that when the same judge presides over the plea hearing and the withdrawal hearing, that judge is in “the best position to resolve conflicts in the testimony and make the determination ... [whether a] plea [ ] w [as] knowingly and intelligently made.” 293 Kan. at 839.
In his ruling, the district judge found:
“[M]y findings ... are that Mr. Storms knew what he was doing, he was fully advised about the consequences of what he did, that he did it knowing[ly], intelligently, and voluntarily, knowing, again, the consequences, what the sentence was—what could have been, what the sentence, at least by the State, was going to be proposed, and the maximum penalty.
“And I, myself, started out the entire plea that day asking Mr. Storms if he understood that there was a lifetime post-release supervision in this case, and what that meant, and I read it today again. And, Mr. Storms, to my mind, absolutely, positively knew what that meant. And so I don't know what other findings I need to make. I don't believe that I'm convinced at all that—that there's been evidence to support the withdrawal of this plea by the parameters that the Court needs to find to do so at this time, and so the motion is denied.”
Substantial competent evidence supports the district court's denial of Storms' motion to withdraw plea. We also find no error in the district court's legal conclusion that Storms failed to show good cause to withdraw the plea. Having considered Storms' arguments and applied the Edgar factors to the facts of this case, we can find no abuse of discretion by the district court.
Downward Durational Departure Sentence
For his second issue on appeal, Storms contends that because he “presented several substantial and compelling reasons for a further departure, the district court abused its discretion by not further departing” from the 155 month agreed-upon downward departure sentence. (Emphasis added.)
We decline to review this issue for two reasons. First, we have no jurisdiction to consider this issue on appeal. Second, assuming we did have jurisdiction, this issue was not raised during sentencing, which makes it inappropriate for appellate review. We will discuss these two reasons separately.
Although neither party questions this court's jurisdiction on appeal, we have a duty to question jurisdiction on our own initiative. State v. Wendler, 280 Kan. 753, 755, 126 P.3d 1124 (2006). The right to an appeal is purely statutory; thus, Kansas appellate courts only have jurisdiction to consider appeals taken in the manner prescribed by statute. See State v. Gill, 287 Kan. 289, 293–94, 196 P.3d 369 (2008). If the record discloses a lack of jurisdiction, the appeal must be dismissed. Wendler, 280 Kan. at 755. Whether jurisdiction exists is a question of law subject to de novo review. State v. Williams, 37 Kan.App.2d 404, 406, 153 P.3d 566,rev. denied 284 Kan. 951 (2007).
Storms' 155–month sentence (which was within the presumptive guidelines sentence after the district court granted the downward durational departure) was the result of a plea agreement between the parties, which was approved and imposed by the district court. K.S.A. 21–4721(c)(2) precludes appellate review of any sentence resulting from “a plea agreement between the State and the defendant which the sentencing court approves on the record.” Williams, 37 Kan.App.2d at 407. And in circumstances “ ‘[w]here K.S.A. 21–4721 applies, an appellate court's jurisdiction to consider a challenge to a sentence is limited to those grounds authorized by the statute or a claim that the sentence is otherwise illegal.’ [Citation omitted.]” State v. Duncan, 291 Kan. 467, 470, 243 P.3d 338 (2010).
In the present case, Storms has not alleged that his sentence is illegal, just that the district court should have exercised its discretion to impose a lesser sentence than the one agreed upon by the parties to the plea agreement. Accordingly, we conclude that we have no jurisdiction to review this sentence, and this issue is dismissed.
Assuming we had jurisdiction to consider this matter, Storms did not preserve this issue for appellate review. As a general rule, issues not raised before the trial court may not be raised on appeal. See State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009). Our review of Storms' motion for departure filed prior to sentencing sets forth the following language: “WHEREFORE, the Defendant prays the Court to impose a durational departure sentence to One Hundred Fifty–Five (155) months and for such and further relief as the court may deem appropriate.” Moreover, our review of the transcript of the sentencing hearing establishes that Storms never sought a greater downward durational departure than he requested in his written motion. In short, we cannot find reference to a pleading or oral argument presented by Storms in the district court where he sought a sentence less than the 155 months provided for in the plea agreement. Under these circumstances, wherein the district court was not presented with a request for a more favorable departure sentence by Storms, this issue was not preserved for appellate review.
Affirmed in part and dismissed in part.