Opinion
No. 111,014.
2015-03-6
STATE of Kansas, Appellee, v. Izaiah THOMPSON, Appellant.
Appeal from Wyandotte District Court; Wesley Griffin, Judge.Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Wesley Griffin, Judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Izaiah Thompson pled guilty to two counts of attempted indecent liberties with a child. He was sentenced to 41 months' imprisonment, with lifetime postrelease supervision. On appeal, Thompson contends that the trial court erred in denying his motion to withdraw his guilty pleas. Thompson also contends that the trial court violated his constitutional rights by using his criminal history to increase his sentence without proving it to a jury. Finding no merit in Thompson's contentions, we affirm.
In July 2012, Thompson was arrested and charged with two of counts aggravated indecent liberties with a child and four counts of criminal sodomy. During a custodial interrogation, Thompson confessed that he and the victim, D.F., had consensual sex intermittently over the course of a year. Thompson was 19 and D.F. was 14 and 15 years old when they had sex. The trial court held a Jackson v. Denno hearing and found that the confession was voluntary and admissible. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Following the hearing, Thompson decided to accept the State's plea offer. Thompson ultimately pled guilty to two counts of attempted indecent liberties with a child.
At his plea hearing, Thompson stated he understood the difference between consecutive and concurrent sentences. He maintained that no one threatened him or forced him to take the pleas. Moreover, he testified that he was satisfied with his attorney's work so far. The trial court accepted Thompson's guilty pleas.
Before sentencing, Thompson moved to withdraw his guilty pleas. The trial court held an evidentiary hearing on Thompson's motion. The same judge presided over the plea hearing and the motion to withdraw plea hearing. Additionally, Thompson had new counsel.
At the hearing, Thompson testified that his former attorney, Patti Kalb, misled him about his plea agreement. He testified that he believed that he had accepted a plea offer to serve concurrent, not consecutive, sentences. He further testified that his mother and Kalb pressured him to plead guilty. Thompson explained that he thought Kalb pressured him to plead guilty by telling him it would be a mistake if he went to trial. He also stated that Kalb told him that she could not win at trial and that he should accept the plea offer before the State rescinded it. Furthermore, Thompson maintained that he has attention deficit hyperactivity disorder (ADHD). He testified that he was not on his ADHD medication while in custody and that this affected his ability to reason.
Kalb also testified at the motion to withdraw plea hearing. She stated that Thompson asked her to request a plea offer from the State. She testified that she believed that the plea offer was favorable because the State originally charged Thompson with six counts, all severity level 3 offenses, which could have totaled over 200 months in prison. The plea agreement, however, reduced the charges to two counts, both severity level 7 offenses, equating to 41 months in prison. Although Kalb explained that she told Thompson it was in his best interests to take the pleas, she asserted that she never threatened or forced Thompson to take the pleas. She also maintained that she would have gone to trial if Thompson had wanted.
The trial judge denied Thompson's motion, finding that there was no “viable basis for his motion.” The trial judge, in part, relied on Thompson's responses from a transcript of his plea hearing, which had been admitted into evidence. The trial judge specifically found that Thompson was “represented by competent counsel, he was not misled, coerced, mistreated or unfairly taken advantage of and that the plea was knowingly, fairly and understandingly made.” The trial judge later sentenced Thompson in accordance with his plea agreement.
Although no one disputes the fact that Thompson filed a pro se motion to withdraw his guilty pleas, this motion has not been included in the record.
Did the Trial Court Err When It Denied Thompson's Motion to His Withdraw His Pleas?
K.S.A.2014 Supp. 22–3210(d) states that “[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.” In determining whether a defendant has shown good cause to withdraw his or her guilty plea, the trial court should consider three factors: “(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. Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014) (citing State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 [2010] ). Yet, the trial court should not apply these factors to the exclusion of other factors. Fritz, 299 Kan. at 154 (citing State v. Garcia, 295 Kan. 53, 63, 283 P.3d 165 [2012] ). Additionally, in Aguilar, our Supreme Court found that a defendant might demonstrate good cause to withdraw a plea if the defendant can prove that his or her attorney provided lackluster advocacy. 290 Kan. at 513. The lackluster advocacy standard is lower than the constitutionally deficient representation standard required in ineffective assistance of counsel claims.
This court reviews the denial of a motion to withdraw a plea for abuse of discretion. Fritz, 299 Kan. at 154.
“ ‘Judicial discretion is abused if 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. Macias–Medina, 293 Kan. 833, 836, 268 P.3d 1201 (2012) (quoting State v. Ward, 292 Kan. 541. Syl. ¶ 3, 256 P.3d 801 [2011], cert. denied 132 S.Ct. 1594 [2014] ).
The defendant has the burden of proving abuse of discretion. Fritz, 299 Kan. at 154. Moreover, this court does not “reweigh evidence or assess witness credibility,” giving deference to the trial court's factual findings so long as those findings are supported by substantial competent evidence. See State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011).
On appeal, Thompson argues that the trial court erred in denying his motion to withdraw his guilty pleas for the following reasons: (1) his attorney was incompetent; (2) his attorney and mother coerced him into entering his pleas; and (3) his pleas were not understandingly made. We have considered and now reject each of Thompson's arguments.
Thompson was Represented by Competent Counsel
First, although Thompson contends that he was represented by incompetent counsel, the plea hearing record and Kalb's testimony contradict his contentions. Thompson specifically argues that Kalb was incompetent for two reasons: (1) Kalb allegedly failed to explain that his pleas would result in consecutive sentences, and (2) Kalb provided lackluster advocacy when she allegedly stated that she could not win at trial, making him doubt Kalb's abilities to represent him at trial. Thompson's arguments, however, are very similar to the arguments raised in State v. Harned, 281 Kan. 1023, 135 P.3d 1169 (2006), where our Supreme Court found that the defendant did not show good cause to withdraw his guilty plea.
In Harned, Harned argued that his attorney did not fully explain his sentence and that he was forced to take a plea because his attorney was not prepared for trial. At the plea hearing, however, the trial court explained the specifics of Harned's plea agreement and sentence to him on the record. At the motion to withdraw plea hearing, Harned's attorney testified that he fully explained Harned's sentence to him and was prepared for trial. Although our Supreme Court found that Harned ultimately abandoned those arguments on appeal, the court noted that Harned's arguments failed even if he had not abandoned them because the plea hearing record and his attorney's testimony contradicted his arguments. 281 Kan. at 1043.
As in Harned, Thompson makes the argument that his attorney did not explain his sentences and therefore he did not understand he was going to serve consecutive sentences. Moreover, like in Harned, the plea hearing record and the attorney's testimony contradict Thompson's arguments. At the plea hearing, the trial judge brought up the fact that Thompson's plea agreement required Thompson to serve consecutive sentences. The judge then asked Thompson if he understood the difference between consecutive and concurrent. In response, Thompson maintained he did understand the difference. Even after this exchange, the trial judge continued saying:
“THE COURT: Just to make sure, concurrent means they would run together at the same time, consecutive means you'll do one sentence and then complete it and then start the second sentence. Is that your understanding as well?
“THE DEFENDANT: Yes, sir.”
At the motion to withdraw plea hearing, Kalb testified that she had multiple discussions with Thompson about the plea because she wanted him to understand it.
Thus, as in Harned, the trial court explained Thompson's sentence to him at the plea hearing and the attorney testified that she had multiple discussions with Thompson about his plea agreement. Based on the plea hearing and Kalb's testimony there was substantial competent evidence to support the fact that Thompson knew the difference between consecutive and concurrent sentences. Accordingly, it was reasonable and not an abuse of discretion for the trial court to deny Thompson's motion, finding that Kalb provided competent representation.
Regarding Thompson's argument that he doubted Kalb's abilities because Kalb allegedly told him she could not win at trial, Kalb testified that she would have gone to trial if that was what Thompson wanted. Kalb also testified that it was Thompson's decision to accept the plea offer. Moreover, at the plea hearing, the trial judge asked Thompson if he was satisfied with his attorney's work so far. Thompson responded, “Yes.” The court also asked Thompson if anyone threatened or forced him to take the plea offer. Thompson responded, “No.”
Since the trial court denied Thompson's motion, it is readily apparent that the trial court made a credibility determination that Kalb was telling the truth. Furthermore, other than the fact that Thompson had doubts about Kalb's ability to represent him at trial, he provided no objective proof demonstrating that Kalb was providing lackluster advocacy. In Harned, when addressing Harned's contention that he believed his attorney was not prepared for trial, our Supreme Court held: “ “ ‘[M]istaken subjective impressions, in the absence of substantial objective proof showing that they were reasonably justified, do not provide sufficient grounds upon which to vacate a guilty plea.’ “ “ 281 Kan. at 1043 (quoting State v.. Snyder, 10 Kan.App.2d 450, 452, 701 P.2d 969 [1985] ). Therefore, the trial court did not abuse its discretion in denying Thompson's motion to withdraw plea because his assertion that his attorney was incompetent was not supported by any objective evidence.
Thompson was Not Coerced into Entering His Pleas
Next, although Thompson argues that Kalb and his mother coerced him into entering his pleas, there is no evidence to support this assertion. Concerning Kalb, Thompson makes similar arguments to show that Kalb coerced him to accept the pleas as he did to show that Kalb provided lackluster representation. Thompson contends that Kalb coerced him into accepting the plea offer by telling him he could not win at trial and that he needed to take the plea offer. He also asserts that Kalb told him that going to trial would be a mistake and this constitutes coercion.
As discussed earlier, Kalb testified that Thompson wanted her to request a plea offer and that it was his decision to accept the plea offer. She testified that she would have gone to trial if Thompson had wanted to go to trial. Moreover, Kalb testified that she never threatened or forced Thompson to take the plea offer. At the plea hearing, the trial court asked Thompson if anybody had forced or threatened him to accept the plea offer, and he responded, “No.” Again, the trial court clearly made a credibility determination that Kalb's testimony was more trustworthy than Thompson's testimony because it denied Thompson's motion. The only evidence supporting Thompson's argument that Kalb coerced him was his own testimony. Thus, based on the evidence presented to the trial court, the trial court did not abuse its discretion in denying Thompson's motion.
Concerning Thompson's mother, Thompson argues that his mother coerced him into accepting the plea agreement because she asked him to accept the plea offer every time she visited him. Thompson contends that his mother is a very strong influence in his life, so her actions constituted coercion.
In denying Thompson's motion, the trial court specifically referenced three cases where our Supreme Court and this court have found that family pressures to take a plea did not constitute coercion: State v. Denmark–Wagner, 292 Kan. 870, 258 P.3d 960 (2011), Williams v. State, 197 Kan. 708, 421 P.2d 194 (1966), and State v. Jones, 47 Kan.App.2d 109, 271 P.3d 1277 (2012), rev. denied 297 Kan. 1251 (2013). In Denmark–Wagner, Denmark–Wagner argued that his mother and sister coerced him into taking a plea offer because they wanted in person visitations; Denmark was visiting his family through a glass barrier when he accepted the plea. Our Supreme Court, however, held that this family pressure did not constitute coercion. 292 Kan. at 877. In Williams, Williams argued that his wife and concerns for his family coerced him into accepting a plea offer. Our Supreme Court held that psychological self-coercion, or a changed mind, does not constitute the coercion required to invalidate a guilty plea. 197 Kan. at 710–711. In Jones, Jones argued he was coerced into pleading guilty because the State threatened to terminate his parental rights unless he accepted the plea offer. This court found that personal considerations of this nature do not constitute coercion when all other aspects of the pleas are voluntary. 47 Kan.App.2d at 112–13.
Thus, general pressure by family members to accept a plea offer does not constitute coercion or good cause to withdraw a plea. The fact that Thompson's mother asked him to accept the plea offer was not so out of the ordinary to constitute coercion. Because Thompson could not establish that his mother's actions were coercive, the trial court did not abuse its discretion when it denied Thompson's motion.
Thompson's Pleas were Understandingly Made
Finally, Thompson asserts that his pleas were not understandingly made. Thompson specifically asserts that he did not understand his pleas because he thought he was pleading to concurrent sentences and because he was not on his ADHD medication when he accepted the plea offer. Both arguments are without merit.
In arguing that Kalb was incompetent, Thompson argued that she was incompetent because she did not explain that he would serve consecutive, not concurrent, sentences. Thus, Thompson's argument that he did not understand he was going to serve consecutive sentences repeats his earlier argument. As detailed earlier, Kalb testified that she explained the plea agreement on multiple occasions to Thompson. More importantly, at the plea hearing, the trial judge told Thompson he was pleading to two consecutive sentences, asked Thompson if he understood the difference between consecutive and concurrent, and explained the difference between consecutive and concurrent sentences. Thompson told the trial judge he understood the difference. Based on this evidence, the trial court did not abuse its discretion in denying Thompson's motion because the evidence presented demonstrated that Thompson understood that he was going to serve consecutive sentences.
Thompson's argument that he could not understand what was going on at the plea hearing because he was not on his ADHD medication is also without merit. Thompson asserts that his ability to reason, understand, and focus when accepting the plea offer was affected because he had been off his ADHD medication since he was incarcerated. During the plea hearing, however, Thompson never testified that he was unable to understand what was going on. On multiple occasions, the trial judge asked Thompson if he understood what was happening, and Thompson always answered he understood.
Furthermore, in his findings for denying the plea withdrawal motion, the trial judge stated that when he presided over the plea hearing he never noticed that Thompson was having difficulty understanding. He noted that he constantly asked Thompson if he understood what was going on and if he had any questions. Moreover, the trial judge made the following comment:
“I was unaware until just this hearing about this ADHD or his other diagnosis. I have never gleaned anything in any of the hearings that there was anything he did not understand. He's always been very cognizant of what was going on. We took time in the various hearings to have Ms. Kalb talk to him, et cetera. I also listened to a multi-page statement in it and I didn't glean anything from that, and it was a long statement, that he had any psychological or mental problems.”
This court has recognized the importance of the same trial judge presiding over a plea hearing and a motion to withdraw plea hearing. See Macias–Medina, 293 Kan. at 839. When the same judge presides over both the plea and the motion to withdraw plea hearing, that judge is in the “best position to resolve conflicts in the testimony and make the determination that [the defendant's] pleas were knowingly and intelligently made.” 293 Kan. at 839. Here, the trial judge presided over the plea hearing, the motion to withdraw plea hearing, as well as the Jackson v. Denno hearing. The trial judge was in the best position to determine if Thompson understood the plea, and he found that Thompson's understanding was fine. Thus, Thompson did not show good cause to withdraw his pleas and the trial court did not abuse its discretion in denying his motion.
Did the Trial Court Violate Thompson's Constitutional Rights When It Used His Criminal History to Increase His Sentence Without Proving His Criminal History to a Jury?
Finally, Thompson argues that the trial court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L. Ed 2d 435 (2000). Thompson contends that the trial court improperly used his criminal history without first requiring his criminal history to be proven beyond a reasonable doubt to a jury. Thompson acknowledges that our Supreme Court has already decided this issue against him. See State v. Ivory, 273 Kan. 44, 45–48, 41 P.3d 781 (2002) (holding that Apprendi does not apply to defendant's presumptive sentence that was based in part on defendant's criminal history score under the Kansas Sentencing Guidelines).
This court is duty bound to follow our Supreme Court precedent unless there is some indication that the court is departing from its previous position. State v. Singleton, 33 Kan.App.2d 478, 488, 104 P.3d 424 (2005). There is no indication that our Supreme Court is departing from its decision in Ivory. Therefore, the trial court did not violate Apprendi when it considered Thompson's criminal history without requiring the criminal history be proven beyond a reasonable doubt to a jury.
Affirmed.