Opinion
No. 108,548.
2013-08-9
STATE of Kansas, Appellee, v. Ronnie TAYLOR, Appellant.
Appeal from Reno District Court; Timothy J. Chambers, Judge. Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Timothy J. Chambers, Judge.
Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., SCHROEDER, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Ronnie Taylor appeals the district court's denial of his motion to withdraw his guilty pleas after sentencing. Taylor alleges that he was denied effective assistance of counsel because prior to his pleas his attorney failed to file a motion for a hearing to suppress evidence pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Having carefully reviewed the record, arguments, and briefings of the parties, we affirm the district court's ruling.
Factual and Procedural Background
On March 6, 2010, officers with the Reno County Sheriff's Department executed a search warrant on a residence and adjacent motor home. As a result of that search, on March 11, 2010, Taylor was charged with numerous, serious, drug-related crimes. A preliminary hearing was held, which resulted in Taylor being bound over for trial on the original charges and additional drug charges.
On February 9, 2011, Taylor moved to suppress the evidence obtained during the execution of the search warrant. This evidence included pseudoephedrine pills, lithium batteries, Coleman fuel, empty bottles of Heat, and other incriminating evidence indicating the existence of a methamphetamine laboratory. In his suppression motion, Taylor argued that the search warrant affidavit did not contain sufficient facts to establish probable cause. On February 22, 2011, the district court heard oral arguments on the motion.
After the hearing, the district court filed an order denying the motion. The district court found that the affidavit in support of the warrant contained four kinds of information: (1) Taylor's landlord had two prior drug convictions; (2) three vehicles registered to people who had previously been convicted of drug offenses were seen at the residence; (3) a “trash pull” conducted at a separate residence uncovered drug paraphernalia and possible methamphetamine; and (4) a confidential informant who was a criminal defendant in a pending case indicated that an individual named “Opie” manufactured methamphetamine at the residence.
The district court found that the affidavit was supported only by the first two kinds of information and that information was insufficient to establish probable cause. According to the district court, the trash pull on a separate property was not relevant because it was not connected to the other information. However, the district court concluded that it did “not find the affiant purposely misled the issuing magistrate by the inclusion of the information concerning the ‘trash pull.’ “ Additionally, the district court found that the confidential informant was not a disinterested citizen informant whose information could sustain a search warrant without independent police investigation.
Nevertheless, the district court denied Taylor's suppression motion under the good-faith exception to the exclusionary rule, finding that the officers were entitled to rely on the issuing judge's conclusion that probable cause existed:
“While in this Court's view the affidavit clearly lacks sufficient information to establish probable cause, another District Court Judge saw otherwise. Law enforcement officers were allowed to rely upon the finding of Judge McCarville and it was not entirely unreasonable for them to do so.”
After the district court's adverse ruling, Taylor and his court-appointed counsel, Lee Timan, discussed the possibility of either filing a motion to reconsider or requesting a Franks hearing. At the later hearing on Taylor's motion to withdraw pleas, Taylor testified that he asked Timan to file a Franks motion. On the other hand, Timan testified that Taylor never actually asked him to file a Franks motion but simply brought up the possibility of filing one. However, a short time after the district court's adverse ruling on the suppression motion, Taylor told Timan that he wanted to cooperate with the State in exchange for leniency. At this point, in accordance with Taylor's instructions, Timan began to pursue a favorable plea agreement with the State.
On May 3, 2011, the district court held a plea hearing and Taylor pled guilty to conspiracy to manufacture methamphetamine, possession of pseudoephedrine and/or lithium metal with the intent to manufacture methamphetamine, possession of methamphetamine with intent to sell, possession of methamphetamine without a tax stamp affixed, possession of marijuana with intent to sell, possession of marijuana without a tax stamp affixed, possession of drug paraphernalia with intent to package a controlled substance for sale, possession of psilocin, and possession of propoxyphene.
The district court informed Taylor of his constitutional rights which he was waiving in order to enter his guilty pleas. The district court advised that it was not bound to follow the plea agreement and informed Taylor of the maximum penalty that could be imposed for each sentence. At the conclusion of the colloquy, the district court found that Taylor freely, voluntarily, and intelligently waived his rights and entered his pleas. The terms of the plea agreement were stated at the hearing, and Taylor agreed to those terms. The plea agreement provided that Taylor agreed to assist the State in its investigation and prosecution of other methamphetamine-related charges. If the State was satisfied with Taylor's cooperation, the State agreed to recommend probation with community corrections.
On August 25, 2011, at the sentencing hearing, the prosecutor recommended that Taylor be granted probation with community corrections. The district court sentenced Taylor to 241 months' imprisonment but granted him 36 months' probation. Taylor did not appeal his convictions or sentences.
Two months after sentencing, on October 28, 2011, the State filed a motion to revoke Taylor's probation for allegedly using methamphetamine and marijuana and failing to report as required. On December–2, 2011, the district court held a hearing on the motion to revoke probation. Taylor waived his right to an evidentiary hearing and admitted to the violations. The district court revoked Taylor's probation but modified the sentences to run concurrent with one another. Taylor did not appeal the district court's ruling.
Over 4 months after his probation was revoked, on May 7, 2012, Taylor filed a pro se motion to withdraw his guilty pleas. Taylor made two claims. First, he alleged that Timan deprived him of his right to the effective assistance of counsel by failing to file a Franks motion. Second, he asserted that Timan failed to adequately inform him about the conditions and consequences of entering into a plea agreement.
With regard to the allegation about the Franks motion, Taylor argued that he had asked Timan to file a Franks motion, that if it had been filed, there was a reasonable probability that Taylor would have prevailed on the motion to suppress and, consequently, that he would not have pled guilty. For his second claim, Taylor argued that Timan did not discuss with him the possibility of preserving the search warrant suppression issue for appeal and did not advise him how strictly the conditions of probation concerning drug use would be enforced. On May 15, 2012, new counsel was appointed to represent Taylor on his motion to withdraw pleas.
On July 5, 2012, the district court held a hearing on Taylor's motion. Taylor testified that there were numerous misstatements in the search warrant affidavit prepared by Officer Rick Newton, which supported his request for a Franks hearing. In particular, Taylor alleged that Officer Newton stated in the affidavit that he observed individuals at the residence who were well known for their involvement in the manufacture of methamphetamine. Taylor argued that this statement was inconsistent with Officer Newton's later testimony that he had not observed Taylor at the residence.
On the other hand, Timan testified that, in his opinion, no information in the affidavit was facially false and that he did not think that Officer Newton was trying to lie to the court. Timan also testified that he did not bring up the possibility of a trial with stipulated facts, or pursue the Franks hearing or motion to reconsider, because Taylor indicated that he was willing to assist the State in exchange for leniency. Timan testified:
“I did not ever bring up with him the possibility of a stipulated facts bench trial. Mostly because I was fairly sure that [the prosecutor] was not going to agree to anything along those lines.... I knew the only way this was going to get worked out was with a guilty plea and him cooperating.”
As to Taylor's other claim, that Timan had failed to inform him about the conditions and consequences of entering into a plea agreement, Taylor claimed he was not aware of how strictly the conditions of probation would be enforced. In response, Timan testified, “I didn't have any concerns about [Taylor] knowing what he would or wouldn't be allowed to do on Community Corrections. I tell all of my clients that for the most part with probation not to use drugs or alcohol, not to break any further laws, and report when you're supposed to.”
At the conclusion of the hearing, the district judge denied Taylor's motion to withdraw pleas. With regard to the Franks issue, the district judge ruled that the search warrant affidavit was not misleading:
“Basically all the information that defendant now claims is misleading to the court, the court figured out that it wasn't there in the affidavit. That's why I found based upon my ruling I would not have found probable cause based upon the affidavit that Judge McCarville found probable cause. I allowed the search warrant affidavit based on good faith since a District Court judge with some extensive criminal justice, or criminal experience found there was probable cause.”
The district court also concluded that Timan's representation went “above and beyond the call of duty,” noting the thoroughness of his motion to suppress and that this was not a case where counsel forced or coerced the defendant into a plea. Because Timan's counsel was effective and Taylor voluntarily and intelligently entered his guilty pleas, the district court found no manifest injustice and denied the motion. Taylor timely appealed.
Denial of Taylor's Motion to Withdraw Pleas
At the outset, it is important to set forth several standards of review and rules of law that will govern our analysis. A motion to withdraw plea is governed by K.S.A.2012 Supp. 22–3210. After sentencing, the court may set aside the judgment of conviction and permit the defendant to withdraw the plea in order to correct manifest injustice. K.S.A.2012 Supp. 22–3210(d). “The district court's decision to deny a postsentence motion to withdraw a plea is reviewed under an abuse of discretion standard.” State v. Bricker, 292 Kan. 239, 244, 252 P.3d 118 (2011). The defendant bears the burden to show that the district court abused its discretion. 292 Kan. at 244. Judicial action constitutes an abuse of discretion if the action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
To determine whether there was manifest injustice, Kansas courts consider a nonexclusive list of at least three factors. Bricker, 292 Kan. at 244–45. These factors are: (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. State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006).
Moreover, “[a] defendant filing a postsentence motion to withdraw plea under K.S.A. 22–3210(d) that alleges ineffective assistance of counsel due to deficient performance must meet constitutional standards to demonstrate manifest injustice.” Bricker, 292 Kan. at 245. Consequently, the defendant must meet the commonly known test set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674,reh. denied467 U.S. 1267 (1984).
7
Under the Strickland test, the defendant has the burden to show: (1) the attorney's performance fell below the objective standard of reasonableness; and (2) there is a reasonable probability that, but for the attorney's errors, the result of the proceeding would have been different. 466 U.S. at 687.
Because ineffective assistance of counsel is a mixed question of law and fact, an appellate court reviews the district court's determination de novo. State v. Gleason, 277 Kan. 624, 644, 88 P .3d 218 (2004). Accordingly, the appellate court determines whether the decision reached by the district court ‘ “ “follows as a matter of law from the facts stated as its basis, and also whether the facts so stated have substantial support in the evidence.” “ ‘ 277 Kan. at 644–45. In addition, the reviewing court must “accept as true the evidence and all inferences drawn from the evidence that tend to support the findings of the district judge.” Wilkins v. State, 286 Kan. 971, 980–81, 190 P.3d 957 (2008).
Under the first prong of the Strickland test, the attorney's performance must have fallen below the objective standard of reasonableness.
‘ “Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ [Citation omitted.]” Gleason, 277 Kan. at 644.
“Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” 277 Kan. at 644. However, strategic decisions must be part of a reasonable, overall defense strategy. See Bledsoe v. State, 283 Kan. 81, 93–94, 150 P.3d 868 (2007). The defendant bears the burden to show that counsel's alleged deficiencies were not the result of strategy. Gleason, 277 Kan. at 644.
Under the second prong of the Strickland test, the court must consider whether the defendant was prejudiced by the attorney's deficient representation. Bledsoe, 283 Kan. at 90. A defendant is prejudiced if there is “a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.” 283 Kan. at 90. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 283 Kan. at 90. Of particular importance to this case, where the defendant was found guilty based upon a plea rather than at trial, the defendant must show a reasonable probability that, but for the attorney's deficient performance, defendant would not have pled guilty but would have instead insisted on going to trial. State v. Adams, 284 Kan. 109, 118, 158 P.3d 977 (2007); State v. Atteberry, 44 Kan.App.2d 478, 484, 239 P.3d 857 (2010), rev. denied 292 Kan. 966 (2011).
Preliminarily, we note that Taylor complained in the district court that his attorney was ineffective in counseling him regarding his guilty pleas and the consequences of violating his probation. On appeal, however, Taylor has not briefed this issue. An issue not briefed by the appellant is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). Accordingly, this particular issue is waived and abandoned on appeal, and we will not review it.
On appeal, Taylor contends the district court erred by denying his motion to withdraw pleas because Timan provided ineffective assistance of counsel. In particular, Taylor asserts: “Mr. Taylor's counsel made no effort to investigate the merits of a Franks issue. Counsel had a duty to adequately investigate possible defenses to Mr. Tayor's case. [Citation omitted.] By failing to ascertain whether a Franks issue was meritorious, defense counsel provided constitutionally inadequate counsel.”
The State responds that the district court “both in its original ruling, and in its review of the facts during the hearing on the motion to withdraw plea [s], specifically found there was no material misrepresentation or omission in the body of the affidavit.” Moreover, the State alleges that “[n]one of the claims raised by the defendant rises to the level of a material misrepresentation or omission.”
In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the United States Supreme Court held that, although an affidavit in support of a search warrant carries with it a presumption of validity, the defendant must be granted a hearing to determine the validity of the affidavit if the defendant makes a substantial preliminary showing that a false statement was knowingly or recklessly included in the affidavit and the allegedly false statement is necessary to the finding of probable cause. 438 U.S. at 171. To mandate an evidentiary hearing, the defendant must attack the veracity of the affiant, not third-party informants, and must make an offer of proof, not merely conclusory statements. The defendant must also identify specific portions of the affidavit which are allegedly false. 438 U.S. at 171. At the hearing, the defendant has the burden to show by a preponderance of the evidence that the false statement was either knowingly or recklessly included in the affidavit. If the defendant carries his burden of proof, then the court must excise the false statement from the affidavit and determine whether the remaining information is sufficient to find probable cause. 438 U.S. at 156.
At the hearing on the motion in the district court, Taylor argued there were several false and misleading statements contained in the search warrant affidavit. Inexplicably, on appeal, Taylor did not include the challenged affidavit in the record on appeal. This omission is important because “[t]he party claiming an error occurred has the burden of designating a record that affirmatively shows prejudicial error.” State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012). Given that Taylor's claim of error relates directly to alleged false and misleading statements in the affidavit, we are unable to properly review this matter. Taylor was responsible for providing this court with the search warrant affidavit so we could evaluate the purportedly false and misleading statements in order to consider his claimed error. His failure to designate this document in the record on appeal, however, precludes our review.
Based on testimony, pleadings, and argument by the parties regarding the contents of the affidavit, however, we are confident that, had the affidavit been presented to us, we would have concluded that Taylor's claim is without merit. In the district court, Taylor identified four false and misleading statements. We will consider each of these statements individually.
First, Taylor alleged that Officer Newton averred that he had observed individuals at the residence who were well known for their involvement with the manufacture of methamphetamine. Taylor argued that this was misleading because it implied that Officer Newton observed Taylor at the residence. Taylor testified:
“The officer, Rick Newton, put in [the affidavit] that he observed individuals arriving at the residence who were all well known to the Drug Enforcement Unit for their involvement with the manufacturing of methamphetamine. But when we went to the preliminary hearing, that's why I had Mr. Timan asked Officer Newton if he had actually seen anybody or seen me because I had not been at the house for those 3 days during that surveillance.
“Q: And what was Mr. Newton's response at the preliminary hearing?
“A: No, he did not see me.
“Q: Okay. And did you feel that that information that was in the warrant contradicted what he testified to under oath?
“A: Yes, ma‘am.”
Timan, on the other hand, testified that Taylor believed that this statement was misleading because it implied that Officer Newton observed individuals who were well known for their involvement with the manufacture of methamphetamine, when, in fact, Officer Newton had merely observed vehicles at the residence whose registered owners were well known for their involvement with the manufacture of methamphetamine. Of course, without the actual language contained in the affidavit, it is unclear whether Officer Newton averred that he saw individuals or that he saw vehicles.
Significantly, however, when the district judge evaluating the affidavit read the pertinent language, he recognized that Officer Newton was not alleging he saw either Taylor or other individuals known to be involved in the manufacture of methamphetamine at the residence, but merely that he had seen vehicles whose registered owners were known to be involved in the manufacture of methamphetamine. In its written opinion wherein the district court decided the motion to suppress, the court characterized this evidence as “[t]wo vehicles were observed at the residence whose registered owners had prior drug convictions,” and it noted that “[a]pparently the Defendant was never observed at the residence.”
Given this finding by the district court, it is clear (contrary to Taylor's allegation) that the court was not misled into believing that Officer Newton observed Taylor or other individuals instead of vehicles at the residence. The district court concluded that this portion of the affidavit was not misleading, and we have no basis to find that the district court erred in its understanding of the affidavit's contents.
Second, Taylor complained about Officer Newton's averment that he observed a vehicle registered to Dena Conner at Taylor's residence. In the affidavit, Officer Newton apparently stated that Taylor ‘ “typically” ‘ operates this vehicle. Taylor argued that this statement was misleading because it implied that Officer Newton observed Taylor at the residence. However, Officer Newton testified at the preliminary hearing that he had not observed Taylor at the residence.
The district court recognized in its written opinion on the motion to suppress that Officer Newton did not claim to have seen Taylor at the residence. The district court stated:
“A vehicle registered to a Dena Conner was observed at the residence apparently on more than one occasion.... The affidavit indicated the DEU had information the Defendant is ‘typically’ the operator of the Connor vehicle. No information is included as to how the information was obtained or what ‘typically’ means. Apparently the Defendant was never observed at the residence.”
Because the district court was not misled into believing what Taylor asserted—that Officer Newton had seen Taylor at the residence—the court concluded that this portion of the affidavit was also not misleading.
Third, Taylor alleged that Officer Newton's statement that this vehicle was registered to Conner was false because the vehicle was actually registered to Nancy Graham and the title owner of the vehicle was Natalie Gowen. On Taylor's residential lease agreement, Gowen is listed as another occupant in the residence with Taylor.
The district court did not make any findings regarding whether Officer Newton's statement that the vehicle which allegedly was ‘ “typically” ‘ driven by Taylor belonged to Connor instead of Gowen was misleading or false. However, the owner of the vehicle was not a material fact which could support the existence of probable cause. This vehicle was only significant because it was allegedly ‘ “typically” ‘ operated by Taylor. In ruling on the suppression motion, the district court noted that Officer Newton gave no basis for this statement and, when recounting the totality of the evidence included in the affidavit, the district court did not mention that a vehicle ‘ “typically” ‘ operated by Taylor was seen at the residence. It appears that the district court discounted this evidence in determining whether probable cause existed.
Fourth, Taylor pointed to a statement by his landlord Jimmy Banks. Banks told police officers that Taylor was planning to buy the mobile home residence wherein Taylor allegedly lived and where the methamphetamine laboratory was discovered. Taylor asserted that Banks lied to the police officers because Banks is actually the owner and resident of that mobile home. Notably, however, Taylor did not allege that the officers lied about what Banks told them:
“Q. [Prosecutor:] Specifically regarding my question, you're not alleging that officers lied regarding what Mr. Banks said, you are alleging that Mr. Banks lied to officers?
“A. [Taylor:] As well. Mr. Banks lied as well.
“Q. Okay. Let me see if I can get this down. They didn't lie, officers did not lie about what Mr. Banks told them. They put into the affidavit what Mr. Banks told them, correct?
“A. As far as what Mr. Banks said, yes.”
The district court did not address this issue in particular. However, whether Banks lied to the officers is not material to the resolution of a Franks hearing. Only statements by the affiant, not police informants, are relevant. Taylor admitted that he was not alleging that the officers lied about what Banks told them.
Finally, Taylor claimed that an officer from the drug enforcement unit told Taylor that the officer knew that items in the mobile home did not belong to Taylor. The district court did not make any specific finding regarding whether an officer made such a statement. Other than Taylor's vague claim, there was no evidence to corroborate this allegation. We are persuaded that this assertion was of little evidentiary weight and certainly not sufficient for Timan to pursue a Franks hearing and risk jeopardizing a beneficial plea agreement that would result in Taylor's avoidance of incarceration.
Timan's failure to file a Franks motion was a reasonable strategic decision. “Strategic choices based on a thorough investigation of the law and facts are virtually unchallengeable.” Flynn v. State, 281 Kan. 1154, 1157, 136 P.3d 909 (2006). Failure to bring a motion with no legal basis which would have been denied by the court cannot sustain a claim for ineffective assistance of counsel. See Gleason, 277 Kan. at 648 (finding that counsel was not ineffective for failing to object to admissible, relevant evidence that the court would have admitted even if counsel had objected); Hunt v. State, 48 Kan.App.2d 1023, 301 P.3d 755, 767 (2013) (finding that counsel was not ineffective for failing to file motion with no legal basis and which would have been denied), petition for rev. filed, June 20, 2013.
Timan testified that his decision to pursue a favorable plea agreement instead of the Franks motion was a deliberate strategic decision for two reasons: First, Timan concluded that a Franks hearing would not be successful in suppressing the evidence. Timan testified that he did not think a Franks hearing was likely to succeed because he did not think the affidavit was false or misleading, he was not presented with evidence to suggest otherwise, and the district court had already declined to find the affidavit misleading when it considered the motion to suppress. Timan testified:
“So in my understanding when he put in the affidavit he saw individuals arriving at the scene and then he describes the cars that he saw, I didn't think that was him trying to lie to the court. He certainly saw the car drive up. It's safe to assume that somebody's driving it, but he didn't say that he actually saw who it was; male, female, age, race, anything like that. So I thought it was pretty clear in the affidavit that he just saw the car come up and saw the tag. So I didn't think that he was, I didn't read it as he's trying to say that he actually saw the people.”
Timan also testified that he had not seen any evidence that would indicate that Officer Newton intentionally or recklessly lied in the affidavit:
“[T]here really wasn't any evidence presented to me in regards to the officer's lying or providing false information. We knew they had the trash pull that wasn't connected and my assumption was that it was actually connected, they just failed to put in the affidavit what it was, but that the information just was insufficient. They, I didn't have any reason to believe that Detective Newton was lying about having seen cars come and go from this house or the confidential informant having told them the information on Mr. Taylor's background.”
Furthermore, he noted that in the district court's written opinion denying the motion to suppress, the district court had “found that there was no intentional misleading by law enforcement.”
Timan testified that the second reason he did not pursue a Franks hearing is because he believed the State would not negotiate a plea agreement with Taylor if he continued to attempt to suppress the evidence:
“I did not ever bring up with [Taylor] the possibility of a stipulated facts bench trial. Mostly because I was fairly sure that [the prosecutor] was not going to agree to anything along those lines. If we're going to work out a deal with the DEU and [the prosecutor is] going to agree with Community Corrections there's not going to be any loose ends to still tie up.... I knew the only way this was going to get worked out was with a guilty plea and [Taylor] cooperating.”
Because Timan's decision not to file the Franks motion was a deliberate strategic decision that was well supported by the evidence presented at the hearings on the motion to withdraw pleas and the motion to suppress evidence, Taylor has not demonstrated the first prong of the Strickland test: that Timan's performance fell below an objective standard of reasonableness. Pursuing a plea agreement pursuant to Taylor's wishes instead of filing a meritless Franks motion which would have precluded plea negotiations was a reasonable and deliberate strategic decision in light of all the circumstances.
Since Timan's performance did not fall below the objective standard of reasonableness, it is unnecessary to consider the second prong of the Strickland test: prejudice. Nevertheless, Taylor has not demonstrated prejudice because, as discussed earlier, a Franks motion would have been without merit and not likely to have succeeded. Moreover, the district court found that, had Timan filed the Franks motion, Taylor would still have entered guilty pleas in accordance with the favorable plea agreement:
“The court further finds that if there had been such a motion, that that would not have changed Mr. Taylor's desire to plead in the case.... He was doing everything in the world not to be in jail.
“The second he was arrested he was doing everything in his power to get out of jail, and that includes his efforts to want a plea and something worked out so he wouldn't have to be in jail.... Mr. Taylor is the one who wanted to get out of jail and have a plea worked out where he could get probation.”
In summary, we hold that Taylor has failed to designate a record that affirmatively shows prejudicial error. See McCullough, 293 Kan. at 999. We find the district court's denial of Taylor's motion to withdraw pleas was not error because Taylor failed to show manifest injustice. In particular, the record supports the district court's legal conclusion that Timan's performance as counsel was objectively reasonable and that Taylor was not prejudiced by any claimed ineffectiveness. Finally, we have considered the three so-called Edgar factors and conclude that Timan did not incompetently represent Taylor in this matter, that Taylor was not misled, coerced, mistreated, or unfairly taken advantage of during the criminal litigation, and that his pleas were freely, fairly and understandingly made. See Edgar, 281 Kan. at 36.
Affirmed.