Opinion
No. 106,522.
2013-01-18
STATE of Kansas, Appellee, v. Christopher THOMPSON, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge. Catherine A. Zigtema and Carl F.A. Maughan, of Maughan & Maughan LC, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Catherine A. Zigtema and Carl F.A. Maughan, of Maughan & Maughan LC, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
In keeping with a plea agreement, Christopher Thompson pled guilty to 13 serious felonies which occurred during an armed home invasion. After his pleas, Thompson filed two pro se motions to dismiss his trial counsel, a motion to withdraw his guilty pleas, and a motion to dismiss on speedy trial grounds. The district court denied Thompson's motions. At sentencing, the district court did not follow the recommendations contained in the plea agreement but imposed a lengthier controlling sentence.
On appeal, Thompson challenges his convictions and sentences on four grounds. First, he contends the district court abused its discretion by failing to appoint new counsel. Second, Thompson claims the district court erred by denying his request to withdraw his guilty pleas. Third, he asserts error because the district court denied his motion to dismiss based on statutory speedy trial grounds. Finally, Thompson claims the State violated his due process rights by making comments at sentencing which undermined the agreed-upon sentencing recommendations in the plea agreement. Finding no error, we affirm the district court.
Factual and Procedural Background
On May 16, 2009, Thompson participated in an aggravated robbery of an occupied home in Wichita. During the robbery, a woman was raped and sodomized, a man was beaten and shot several times, and the assailants threatened to kill one of the children by holding a gun to the child's head.
On August 18, 2009, in a 13–count complaint, the State charged Thompson, as either a principal or an aider and abettor, with two counts of aggravated robbery, four counts of aggravated criminal sodomy, one count of rape, two counts of aggravated battery, one count of attempted first degree murder, one count of criminal threat, one count of aggravated burglary, and one count of aggravated kidnapping.
The district court appointed a public defender, Russell Coleman, to represent Thompson. Prior to trial, on May 4, 2010, Thompson filed a pro se motion to dismiss Coleman for ineffective assistance of counsel. In particular, Thompson alleged a breakdown in communication, failure to file certain motions, and failure to timely provide him with copies of the State's discovery. After listening to comments from Thompson, Coleman, and the prosecutor, District Judge Eric Yost denied Thompson's request and instructed Coleman to provide Thompson with discovery materials.
About 2 months later, on July 2, 2010, Thompson filed another pro se motion to dismiss Coleman. In this motion, he alleged that Coleman refused to meet with him and had not provided copies of the State's discovery. On the Friday before trial, the district court held a hearing to consider Thompson's motion. In order to examine Thompson's relationship with Coleman “a little bit more carefully,” District Judge John Kisner, Jr., conducted most of the hearing outside of the prosecutor's presence. At the conclusion of the hearing, Judge Kisner held that Thompson had failed to show “justifiable dissatisfaction” with Colman, which necessitated the appointment of substitute counsel. Judge Kisner also confirmed that Coleman and Thompson were willing to work together in the future.
Three days later, on July 26, 2010, Thompson pled guilty as charged in exchange for the State's favorable sentencing recommendations which would result in a controlling sentence of 257 months. Before accepting the pleas, District Judge Warren Wilbert had an extended colloquy with Thompson to establish his knowing and voluntary assent to the plea agreement and waiver of his constitutional and statutory rights. Judge Wilbert also verified that Thompson was satisfied with Coleman's representation and that the communication problems had been resolved. After ascertaining a factual basis, Judge Wilbert accepted Thompson's pleas as “knowingly, intelligently, freely and voluntarily” entered and adjudged him guilty of all 13 felony charges.
On September 8, 2010, prior to sentencing, Thompson filed a pro se motion to dismiss the charges based on speedy trial grounds. According to Thompson, the State failed to insure his right to a speedy trial, because more than 180 days elapsed by the time he entered his guilty pleas “due to confusion, and distress.”
Six days later, on September 14, 2010, Thompson filed a pro se motion to withdraw his guilty pleas due to ineffective assistance of counsel. In particular, Thompson alleged that Coleman was ineffective because of his continued lack of communication, his refusal to file motions, and his request for continuances without Thompson's knowledge or consent, Thompson also claimed that Coleman had coerced him into pleading guilty.
On December 3, 2010, the district court held an evidentiary hearing to consider Thompson's motion to withdraw pleas. Due to Thompson's allegations of ineffective assistance of counsel, the district court appointed Quentin Pittman to represent him. After testimony by Thompson and Coleman, Judge Wilbert—who accepted Thompson's plea—denied the motion finding that Thompson failed to show good cause to set aside the pleas.
Thompson was sentenced on February 4, 2011. At the hearing, the district court did not follow the recommendations in the plea agreement and sentenced Thompson to a controlling prison term of 330 months followed by 36 months' postrelease supervision. Thompson filed a timely appeal.
Denial of Motions to Dismiss Counsel Due to Ineffective Assistance
Thompson contends the district court abused its discretion when it denied his two pretrial motions to dismiss Coleman for ineffective assistance of counsel because his relationship with Coleman had deteriorated to the point where Coleman could no longer provide competent representation.
In Thompson's first motion, filed on May 4, 2010, Thompson alleged that he had not heard from Coleman since November 2009, Coleman had not filed motions Thompson had requested, and Coleman had failed to provide him with copies of the State's discovery documents.
At the hearing on the motion, Judge Yost heard from Thompson, Coleman, and the prosecutor. Thompson's argument consisted of the following statement:
“I filed—I've been writin' motions myself and they haven't got [ sic ] filed. And when Mr. Coleman [came to] see me, I asked him to file these motions for me and he [told] me oh, you got what I got. And the only thing I have is a police report. I don't have a full motion [for] discovery, I don't have a bill of particulars that I filed for.
“I asked him to file a series of motions. He can't do [anything] for me. He's not [doing anything] for me. He [does not] come to see me. And then I walked to chapel to go to church and he see[s] everybody else, but he can't see me for 10 minutes. And my family members call him. He just [isn't doing anything] so it's no point [keeping] him around.”
In response, Coleman explained that some of the motions would “probably be filed prior to trial” while others would not be filed. Coleman indicated that, despite Thompson's assertions, he had discussed some of Thompson's concerns with him. Coleman also noted that Thompson's case was “very complicated” and had gone on for “some time” because he was the last of several defendants to be tried.
For its part, the State indicated that Coleman had been “working hard” on the case, and the prosecutor had e-mails and phone calls “to prove it.” The prosecutor also agreed with Coleman that the case was complicated due to “lots of scientific evidence, and voluminous amounts of discovery and testing.”
Judge Yost denied Thompson's request for new counsel but instructed Coleman to provide Thompson with “any discovery that's been provided by the State that hasn't yet been turned over to [him] .”
About 2 months later, on July 2, 2010, Thompson filed another pro se motion to dismiss Coleman. Thompson alleged that Coleman's failure to meet with him had continued, and Coleman had not provided him with copies of discovery. According to Thompson, Coleman “show[ed] no interest in [his] case and he [was] not ready or willing to help [him] fight” the charges against him. Three days before trial, on July 23, 2010, the district court held a hearing to consider Thompson's second motion to dismiss Coleman. To examine Thompson's relationship with Coleman “a little bit more carefully,” Judge Kisner conducted most of the hearing outside of the State's presence.
Judge Kisner noted that, according to jail logs, in the last 9 months Coleman had visited with Thompson on four occasions. Because the two men had met “a couple of times” since the filing of Thompson's motion, Judge Kisner asked Thompson if they had been “able to work anything out.” Thompson replied in the negative but he confirmed having a brief visit from Coleman and another visit from his assistant. Thompson still complained of “no communication” and, as a result, he felt his “case [was] not ready” for trial. Thompson also asserted that he still did not have a complete copy of the State's discovery.
Coleman responded that although he had not frequently communicated with Thompson between February and July 2010, he was ready for trial. Coleman explained that he had discussed trial strategy with Thompson “early on,” he was “pretty clear” on how the witnesses were going to testify, and he was knowledgeable about the facts, allegations, and evidence. Coleman reported that he had successfully contacted all of Thompson's witnesses, except one alibi witness who had recently become “a little elusive and less than cooperative.”
According to Coleman, he had planned to spend the week before trial discussing the case with Thompson but during his last visit, Thompson refused to talk with him and told him not to return unless he “had a plea offer.” Coleman explained that because of Thompson's lack of cooperation, he was unable to discuss trial strategy, the alibi witness, or confirm what discovery Thompson had not yet received. Coleman also confirmed that he had recently compiled a discovery notebook for Thompson. Notably, Thompson admitted that he had told Coleman that he did not wish to speak with him during their last visit. With the State present in the courtroom, the prosecutor reiterated his belief that Coleman had provided competent representation, and he objected to any further delay of trial.
In his ruling, Judge Kisner commented that while Thompson had contributed to the recent breakdown in communication, his frustration was understandable. The judge found, however, that Thompson had failed to show “justifiable dissatisfaction” with Colman, “from a legal standpoint.” Judge Kisner concluded that the attorney-client relationship had not deteriorated to the point where Coleman could no longer effectively represent Thompson, provided both parties were willing to work together and “give this [their] all for the next couple of days.” The judge directed Thompson and Coleman to “spend whatever time [was] necessary” to complete their trial preparation. Before concluding, Judge Kisner confirmed that both men were willing to make that effort.
Appellate courts review a district court's refusal to appoint new trial counsel for an abuse of discretion. State v. Hulett, 293 Kan. 312, 318, 263 P.3d 153 (2011). As a general rule, 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. denied––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).
The party asserting an abuse of discretion bears the burden of showing such abuse. Hulett, 293 Kan. at 319, 263 P.3d 153.
District courts are not required to grant a defendant's request for new trial counsel unless the defendant shows “ ‘justifiable dissatisfaction’ “ with appointed counsel. State v. Bogguess, 293 Kan. 743, 753, 268 P.3d 481 (2012). According to our Supreme Court:
“ ‘Justifiable dissatisfaction includes a showing of a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between counsel and the defendant. [Citation omitted .] But ultimately, “[a]s long as the trial court has a reasonable basis for believing the attorney-client relation has not deteriorated to a point where appointed counsel can no longer give effective aid in the fair presentation of a defense, the court is justified in refusing to appoint new counsel. [Citations omitted.]” ‘ “ 293 Kan. at 753–54, 268 P.3d 481.
We first review Thompson's claim that Judge Yost erred in denying Thompson's initial motion to dismiss Coleman as appointed counsel. As the State points out, while Thompson mentions his disagreement with the judge's ruling, he “does not offer any specific argument” regarding the propriety of this decision. Instead, Thompson seems to utilize his first motion as support for his second motion. Thompson's failure to argue an abuse of discretion regarding his first motion is a failure to properly brief the issue, and a point raised incidentally in a brief without argument is deemed waived and abandoned. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). For these reasons, we decline to review the propriety of Judge Yost's ruling on Thompson's initial motion.
Turning to his second motion, Thompson contends the “real issue” on appeal is whether the attorney/client relationship had deteriorated to the point where Coleman could no longer effectively provide Thompson's defense because the district court “apparently” made “a specific finding” of justifiable dissatisfaction due to a breakdown in communicationAs the State argues, however, this assertion is not an accurate representation of Judge Kisner's ruling.
Judge Kisner noted his “concern with regard to the lack of communication” over the last several months and indicated this resulted in Thompson's justifiable dissatisfaction. However, the judge explained he was not making such a finding “from a legal standpoint,” and he emphasized his belief that Coleman could still provide effective representation if both individuals were willing to make a concerted effort to work together. Judge Kisner clearly articulated his ruling in the journal entry he filed after the hearing:
“Defendant has a reasonable basis to be unhappy about the fact that Mr. Coleman did not see him for several months prior to last week [and] court notes that the case is set for trial next Monday. Yet, under McGee, 280 Kan. at] 894, 126 P.3d 1110[and] Ferguson, 254 Kan. 62, 864 P.2d 693 the information provided by counsel [and] the defendant does not lead the Court to conclude that [defendant] [and] Mr. Coleman [cannot] communicate or that Mr. Coleman [cannot] effectively represent Mr. Thompson. While unhappy with him, [defendant] can work with Mr. Coleman so he can present his defense(s) at next week's trial.”
Having clarified the judge's ruling, we review it to determine if it was an abuse of discretion. To establish justifiable dissatisfaction, a defendant must identify specific facts which demonstrate an actual conflict of interest, irreconcilable conflict, or a complete breakdown in communications. See State v. McGee, 280 Kan. 890, 896, 126 P.3d 1110 (2006). Judge Kisner conducted a lengthy and painstaking inquiry into the relationship between the two men and gave Thompson several opportunities to air his grievances. Thompson's dissatisfaction was primarily based on Coleman's infrequent visits which indicated to Thompson a lack of trial preparation. At the hearing, however, Coleman insisted that, despite his lack of visits, he had been working on the case, and was ready, willing, and able to defend Thompson at trial.
The record supports Coleman's testimony. Defense counsel filed several pretrial motions, including a motion to exclude gang evidence, a motion for a Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), hearing, a motion in limine, and a notice of alibi. These filings show Coleman's attention to Thompson's case. While Thompson was understandably concerned over Coleman's occasional communications, “[a]n attorney's inability to shower as much personal attention upon a client as he or she would like” does not necessarily establish justifiable dissatisfaction. State v. Crum, 286 Kan. 145, 158–59, 184 P.3d 222 (2008). Additionally, a defendant's relationship with his or her lawyer can often be strained at times, and the existence of such a relationship is not sufficient, by itself, to demonstrate an irreconcilable conflict or a breakdown in communications. State v. Cook, 45 Kan.App.2d 468, 480, 249 P.3d 454 (2011).
Additionally, Thompson contributed to the communication problem when he admittedly refused to fully cooperate with Coleman during his latest visit. In State v. Ferguson, 254 Kan. 62, Syl. ¶ 3, 864 P.2d 693 (1993), our Supreme Court held that a district court does not abuse its discretion by refusing to appoint new counsel “where the irreconcilable conflict resulted from the defendant's refusal to cooperate or communicate with trial counsel” because a defendant cannot “complain of a trial error which was of [his] or her own making.” 254 Kan. at 76, 864 P.2d 693.
We are persuaded, based upon the thorough inquiry of Judge Kisnser—and his thoughtful mediation of the dispute—that the communication problems between the two men were resolved at the hearing on the second motion. As referenced earlier, the judge believed the attorney-client relationship could be repaired, and he directed Coleman and Thompson to resolve their differences and make a concerted effort to prepare for trial. Significantly, when given the opportunity to express his feelings about this renewed effort, Thompson agreed with Judge Kisner's proposal and conveyed his willingness to continue working with Coleman as his attorney:
“THE COURT: You're willing to try to work with Mr. Coleman?
“[THOMPSON]: I'll give it my all.
“THE COURT: So if he comes to see you this afternoon you're not going to walk away? You're going to talk with him and work with him?
“[THOMPSON]: I will.”
On appeal, Thompson now contends that he had “no choice [but] to acquiesce” because Judge Kisner indicated that his only other option was to “wait a significant amount of time for new counsel” or proceed pro se. The record reveals otherwise. Judge Kisner never advised Thompson that he would have to proceed pro se if he failed to acquiesce to Coleman's representation. The judge did indicate that the appointment of new counsel could substantially delay his trial. Yet, this statement was obviously true and, standing alone, was informative rather than coercive.
In conclusion, Judge Kisner had a reasonable basis to believe the attorney-client relationship had not deteriorated to the point that Coleman could no longer effectively represent Thompson. The judge appropriately counseled both individuals and obtained their agreement to communicate in the future. On this record, we conclude that Judge Kisner did not abuse his discretion when he denied appointment of new counsel.
Denial of Motion to Withdraw Guilty Pleas
Thompson contends the district court abused its discretion when it denied his presentence motion to withdraw his guilty pleas. Thompson claims to have met his burden to prove that he entered his pleas under duress due to Coleman's ineffective assistance.
Prior to sentencing, a district court may, in the exercise of sound judicial discretion, allow a defendant to withdraw a plea of guilty or nolo contendere “for good cause shown.” K.S.A.2011 Supp. 22–3210(d)(1). The test to be employed requires a court to consider the three “ ‘ Edgar factors' “ described in 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).
Appellate courts will not disturb a ruling on a presentence motion to withdraw plea unless the defendant sufficiently demonstrates that the district court abused its discretion. Macias–Medina, 293 Kan. at 836, 268 P.3d 1201. When the parties challenge the district court's factual findings, an appellate court reviews those findings under the substantial competent evidence standard. State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011). Substantial competent evidence is evidence possessing both relevance and substance that a reasonable person could accept as being adequate to support a conclusion. State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009). When reviewing factual findings, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility. Anderson, 291 Kan. at 855, 249 P.3d 425.
The district court held an evidentiary hearing to consider Thompson's motion to withdraw pleas. Because of his allegations of ineffective assistance of counsel, Quentin Pittman was appointed to represent Thompson. At the hearing, Thompson and Coleman provided contrasting accounts of the circumstances surrounding Thompson's decision to plead guilty,
Thompson testified that due to Coleman's ineffective assistance, his pleas were a byproduct of “distress and lack of knowledge.” Thompson had numerous complaints. First, he reprised his claims about Coleman's lack of communication. Although Thompson testified that he met with Coleman for about 3 1/2 hours on the weekend before trial, he was concerned that during this time they were “talking about pleas.” According to Thompson, this conversation caused him to become “not so confident in going to trial” and he felt he had no other choice but to sign the plea agreement.
Second, Thompson stated that given the incriminating evidence and a codefendant's recent conviction, he pled guilty because he did not “feel like [he] had an attorney who was prepared and competent in fighting for [him].”
Third, Thompson claimed that Coleman never discussed trial strategy, the law applicable to his case, the details of his defense, or whether he would testify at trial. While Thompson admitted receiving a 50 or 60 page police report in 2009, he complained that his repeated requests for discovery were not responded to in a timely manner. Thompson did acknowledge, however, that 2 or 3 days before he signed the plea agreement, Coleman provided him with an 80 or 90–page “packet” of information, which contained several pictures and “a lot of the same stuff the police report had in it.” Finally, Thompson also indicated that he desired to withdraw his pleas because Coleman never informed him of his speedy trial rights.
On the other hand, Coleman testified that he was “pretty sure” he gave Thompson all of the discovery documents. According to Coleman, the police affidavit was “kind of dead on” as to the State's evidence, so he and Thompson “knew what the evidence was almost from day 1, and [they] were working on alibi and things like that from day 1.” Despite his infrequent visits to the jail, Coleman said he worked diligently on the case and he was prepared for trial.
Coleman testified that he gave Thompson his “honest” assessment of the case. In particular, that it would be “hard to win at trial” given all of the incriminating evidence. Thompson's assessment was partially based on the fact that a jury convicted one of Thompson's codefendants as charged based upon lesser evidence. According to Coleman, the two men discussed the possibility of a plea “the whole time.” When the State finally extended a plea offer shortly before trial, the two men “went over it blow by blow.” Coleman testified that in addition to discussing Thompson's rights “one at a time,” they discussed the State's plea offer:
“We went over what the offer meant. We went over the evidence, kind of glossed over ... the points that the State had, the evidence. We also compared that sentence to what the codefendants were likely to get or had gotten, and he made a decision that that is what he wanted at that time. I don't think, I mean, I was ready to try the case.”
After considering all the evidence, Judge Wilbert—the same judge who accepted Thompson's pleas—denied the motion to withdraw pleas finding that Thompson failed to show good cause. In particular, the judge found that Thompson had received competent representation and had sufficient time to consider the plea offer. Moreover, based upon the colloquy with Thompson at the plea hearing, Judge Wilbert found that Thompson knowingly and voluntarily entered his pleas without coercion or being taken advantage of during the negotiation process.
On appeal, Thompson claims the district court abused its discretion. In support, he emphasizes “[t]he record in this matter is replete with testimony and findings regarding the breakdown of the attorney client relationship.” The State counters that Judge Wilbert's factual findings were supported by substantial competent evidence.
We begin our analysis by considering the first Edgar factor—whether Thompson was represented by competent counsel. Aguilar, 290 Kan. at 511, 231 P.3d 563. Judge Wilbert found that Coleman was not incompetent or ineffective. In particular, the judge found that Coleman personally interviewed an alibi witness, knew about the cell phone records and DNA evidence implicating Thompson, and obtained a favorable plea agreement. Moreover, Judge Wilbert found that Coleman's visitation history was not unreasonable. The judge found that 11 visits over about 11 months were not unreasonable because attorneys “can't always get over the jail and see [their clients] as often as they would like, or certainly not as often as an individual defendant would like to see their lawyer.” Additionally, Judge Wilbert noted that just because an attorney is unable to meet with a client as often as the client would like “doesn't mean the case isn't progressing. It doesn't mean that the case isn't being worked, that it isn't being given due consideration .”
We find substantial competent evidence to support these findings. In particular, it is apparent that Judge Wilbert found Coleman's testimony to be more credible than Thompson's. While Thompson may have testified differently, we will not question the district court's credibility determinations on appeal. See Anderson, 291 Kan. at 855, 249 P.3d 425.
There was considerable testimony provided by Coleman to prove that he was prepared for trial. He testified to reviewing the State's discovery “piece by piece,” filed several pretrial motions, hired an investigator, interviewed Thompson's alibi witness 5 times, and investigated Thompson's list of witnesses. Coleman also demonstrated familiarity with Thompson's alibi defense, the DNA, and cell phone tracking evidence that implicated Thompson. Coleman also testified that the two men discussed the DNA evidence, phone records, Thompson's incriminating statements made to the police, and the status of the cases against the codefendants.
Additionally, Coleman repeatedly testified that he was prepared for trial. And while Thompson interprets Coleman's assessment that a jury trial was not in his best interest as indicative of a lack of trial preparation, it appears that Coleman was simply fulfilling his duty to provide his client with an honest and realistic appraisal that he would be convicted at trial. Coleman testified that Thompson wanted to plead and he never indicated that he felt Coleman was unprepared. Moreover, Thompson essentially conceded the difficulty he faced at trial because he had confessed “at least to some degree,” one of his codefendants planned to testify against him, and he understood what “all the [other] witnesses were going to say” at trial.
With particular regard to Coleman's discussions with Thompson about the State's plea offer, we discern no attorney ineffectiveness. There were lengthy discussions between the two men regarding the merits and sentencing consequences of pleading guilty. At the plea hearing, Judge Wilbert specifically questioned Thompson about the attorney-client relationship, and Thompson did not indicate any present dissatisfaction. The judge asked Thompson if he felt he had sufficient time to review the plea agreement with Coleman, and Thompson responded, “Yes, I do. We talked about it briefly today and we have been talking about it, the possibility, all this week.” Judge Wilbert continued, “So even though this finally came to fruition today, you have been discussing the possibility of a plea agreement with your attorney last week in preparation for the trial?” Thompson replied, “Yes, sir.” Judge Wilbert then asked if Thompson was satisfied with the services provided by Coleman, and he replied, “Yes, sir, I am.” Finally, Judge Wilbert verified that the two men had resolved their communication problems:
“THE COURT: And contrary to the motion that was heard by Judge Kisner last Friday, you feel like you and Mr. Coleman have been able to work things out and you have been able to communicate over the weekend and this morning to reach this disposition?
“[THOMPSON]: Yes, sir, we have.”
Given this record, we find substantial competent evidence to support Judge Wilbert's finding that Coleman provided competent representation because he was prepared for trial and he also assisted Thompson in considering the merits and consequences of accepting the State's plea offer. Acordingly, the first Edgar factor was met in this case. Aguilar, 290 Kan. at 511, 231 P.3d 563.
Turning to the second and third Edgar factors, we consider “whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of,” and “whether the plea was fairly and understandingly made.” Aguilar, 290 Kan. at 511, 231 P.3d 563. The record indicates that Thompson freely, knowingly, and voluntarily entered his pleas with a full understanding of the consequences. At the plea withdrawal hearing, Thompson admitted reading the Defendant's Acknowledgement of Rights and Entry of Plea and stated that Coleman and Judge Wilbert had discussed the agreement with him before his pleas. He also confirmed that he understood his rights and the potential sentences he faced by pleading guilty. In this regard, the following colloquy is illuminating:
“[PITTMAN]: But you would have no—you are not disputing that you decided to enter, to sign and enter this plea in front of Judge Wilbert; right?
“[THOMPSON]; I did.
“[PITTMAN]: You are not disputing that you did sign it?
“[THOMPSON]: No.
“[PITTMAN]: You are not disputing that you knew what you signed?
“[THOMPSON]: No.
“[PITTMAN]: You are disputing that it was done under duress and you did it simply because you didn't feel like you had an attorney who was prepared and competent in fighting for you?
“[THOMPSON]: Yes.”
Thompson does not complain that he did not fully understand the terms and consequences of his pleas, or that he was inadequately or incorrectly counseled by Coleman regarding the plea agreement. Indeed, the record shows that Thompson read, signed, and understood the written plea agreement and waiver of rights. He also acknowledged that he wanted Coleman to pursue a plea bargain provided the agreement was “something reasonable.” In fact, Thompson stated, “From the time he was on my case, he told me that he would get [the State] to agree to a plea, so I was holding him to what he said.”
Finally, Judge Wilbert presided over both the plea hearing and the withdrawal hearing. As a result, he was in the best position to determine the veracity of Thompson's answers and his demeanor at both hearings. Judge Wilbert explained,
“I [made] the [plea] findings based upon the assessment that I had in the courtroom, just as anybody assesses the demeanor of a witness and their credibility. I'm looking at [Thompson] eye to eye and he is not acting all nervous and stressed out. He is standing there very deliberately, forthrightly, answering the Court's questions. And so I [made] the finding that he has made a knowing, intelligent, free and voluntary waiver of his rights.”
As mentioned earlier, it is not proper for this court to question the trier of fact's credibility determinations on appeal. See Anderson, 291 Kan. at 855, 249 P.3d 425. See also Macias–Medina, 293 Kan. at 839, 268 P.3d 1201 (Kansas 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.”) In sum, the second and third Edgar factors support Judge Wilbert's ruling.
We conclude there was substantial competent evidence to support Judge Wilbert's legal conclusion that Thompson failed to show good cause to warrant the withdrawal of the pleas.
Denial of Motion to Dismiss Based on Violation of Speedy Trial Rights
For his next issue, Thompson contends the district court erred when it denied his motion to dismiss based on speedy trial grounds.
At the outset, Thompson's argument is based on an alleged violation of K.S.A. 22–3402(1) which generally requires an incarcerated defendant to be brought to trial within 90 days of arraignment. While Thompson mentions his constitutional right to a speedy trial in passing, a point raised incidentally in a brief and not argued therein is deemed waived and abandoned. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). See also State v. Bafford, 255 Kan. 888, 891–96, 879 P.2d 613 (1994) (constitutional and statutory speedy trial questions are separate) As a result, we will only consider Thompson's statutory claim.
Several days after Thompson entered his guilty pleas, he sent a letter to the trial court which was filed on August 26, 2010. In the handwritten letter, he stated that his speedy trial rights had been violated because “I have had a number of continuances on my case all of which were continued by counsel without my consent.... On top of that I was not brought to trial within 180 days after my arraignment.” On September 8, 2010, Thompson filed a pro se motion to dismiss that reprised his arguments contained in the letter. As Thompson concedes on appeal, however, the trial court “did not rule on the speedy trial claims raised by the defendant.”
On appeal, Thompson seeks our review of his statutory speedy trial claim without any trial court factual findings or rulings on the issue. In this regard, we note “ ‘[a]ppellate courts do not make factual findings but review those made by district courts. [Citation omitted.]’ “ State v. Seward, 289 Kan. 715, 720, 217 P.3d 443 (2009). In his brief, Thompson informs us that “the trial was continued multiple times between October 2009 through July 2010 without any hearing or opportunity for the defendant to object, resulting in a delay of more than 259 days between arraignment and trial date.” This factual claim, however, is made without reference to the record on appeal. Our rules provide with regard to an appellant's brief that the court may presume that a factual statement made without a reference to volume and page number has no support in the record on appeal. Supreme Court Rule 6.02(d) (2011 Kan. Ct. R. Annot. 39). Moreover, Thompson does not allege how many days should be attributed to the State and the defense for purposes of computing the statutory speedy trial period.
The State points to the record and concludes, “all of the continuances were at the request of the defense.” Our review of the record shows numerous hearings listed in the appearance docket indicating, “Continued by Defendant.”
It is well known that the appellant has the burden to designate facts in the record to support any claim; without such a record, the claim of error fails. National Bank of Andover v. Bankers Surety Co., 290 Kan. 247, 283, 225 P.3d 707 (2010). Thompson did not obtain a ruling on this issue below. As a result, we have no findings of fact to review or legal holdings to consider. On appeal, Thompson has not met his burden to show a sufficient factual basis in the record to permit our consideration of this claim. Accordingly, we decline to review this issue.
Finally, we note that our Supreme Court in State v. Rodriguez, 254 Kan. 768, Syl. ¶ 2, 869 P.2d 631 (1994), held that a defendant waives their right to a speedy trial by pleading guilty. Although Thompson acknowledges this rule, he contends that he did not knowingly and voluntarily enter his plea due to Coleman's ineffective assistance. As a result, he claims his decision waiving his right to a speedy trial was involuntary. As discussed above, we do not find that Coleman provided ineffective assistance and we also conclude that Thompson knowingly and voluntarily entered his pleas.
Moreover, Thompson was aware that he was waiving the speedy trial issue by entering a plea. The Acknowledgement of Rights and Entry of Plea clearly stated that by pleading guilty, Thompson was giving up his “right to a speedy trial before a judge or jury,” and at the plea hearing, Judge Wilbert specifically informed Thompson that he was waiving his speedy trial rights. At the plea withdrawal hearing, Thompson admitted that he read the Acknowledgement of Rights and Entry of Plea and he acknowledged understanding his rights and the consequences of his decision. Thus, the record supports the conclusion that Thompson waived his right to claim a speedy trial violation. See Rodriguez, 254 Kan. at 772–75, 869 P.2d 631.
Claim of State's Violation of the Plea Agreement
For his final issue, Thompson contends the State violated his due process rights by failing to follow the terms of the plea agreement. Specifically, Thompson claims the prosecutor's comments at sentencing effectively breached the plea agreement by undermining the agreed-upon sentencing recommendations. Whether the State breached a plea agreement presents a question of law over which this court has unlimited review. State v. Antrim, 294 Kan. 632, 634, 279 P.3d 110 (2012).
Preliminarily, Thompson raises this issue for the first time on appeal. At sentencing, his counsel did not make any objection to the prosecutor's comments or claim any violation of the plea agreement. In his brief, Thompson did not claim an exception to the general rule that issues not raised before the district court may not be raised on appeal. Trotter v. State, 288 Kan. 112, 124, 200 P.3d 1236 (2009). After the State's objection to our review of this issue, however, Thompson filed a letter of supplemental authority claiming that review of this issue was necessary because this is a question of law arising on proved or admitted facts. We will review this issue in accordance with this exception.
The terms of the plea agreement are relevant to a resolution of this issue. The agreement provided that each party would recommend that the district court sentence Thompson to specific terms of imprisonment for each count. These recommendations varied for each count between the high, low, and mid level number of months in each respective sentencing grid. Three counts were to then run consecutively with each other while the remaining counts were to run concurrently with each other and the other three counts. In short, the parties agreed to recommend that Thompson serve a controlling term of 257 months' imprisonment. Both parties also agreed to recommend the presumptive disposition which in this case was imprisonment.
At sentencing, defense counsel simply asked the district court to follow the plea agreement. Thompson then read a long statement wherein he apologized to the victims, indicated the incident had brought him “closer to God” and, as a result, made him a changed person. He acknowledged that his use of cocaine had ruined his life and made him “coldhearted, worthless, nave and disappointing.” Thompson indicated he was now “ready to live life in joy and peace one step and one day at a time.” He concluded:
“Today I'm not asking for sympathy for all that I've done; however, I am asking for leniency. I know that I messed up big time, but all I'm asking for is one chance, no matter the guidelines or strict stipulations. And if I mess up, shame on me for blowing my chance and burning my bridges. I have a job set up, a place to stay, a church, and most of all a support group and a renewed mind. All I'm asking for is one chance.”
In response, the prosecutor commented, “I wish that the defendant and his three buddies had given these victims one chance,” and then proceeded to recount the incriminating facts of the crimes for which Thompson had pled guilty. The prosecutor concluded his remarks: “[t]he State is requesting that you follow the plea agreement.” The prosecutor then went over the agreed-upon and detailed sentencing recommendations. Statements of some of the victims recorded on a DVD also were played for the district court.
The district court found that Thompson's home invasion was “one of the most extreme crimes a person can commit .... this indicates that you are in no way really amenable to living in society.” The district court declined to follow the terms of the plea agreement and sentenced Thompson to a controlling sentence of 330 months' imprisonment.
On appeal, Thompson concedes, “the State did technically request that the court follow the plea agreement and impose a sentence of 257 months.” But Thompson points to the prosecutor's comments, especially those which detailed the physical injuries suffered by the victims and argues, “The State failed to act in good faith to uphold their end of the plea bargain by failing to provide any argument to support their sentence recommendations.”
Plea agreements are premised on an expectation that each party will honor the terms of the agreement. State v. Woodward, 288 Kan. 297, 300, 202 P.3d 15 (2009). Because a defendant entering a plea usually agrees to give up his or her constitutional rights in exchange for specific promises or concessions from the State, when “the State fails to fulfill its promises, the defendant is denied due process. [Citations omitted.]” State v. Bivens, No. 102,156, 2010 WL 3488718, at *3 (Kan.App.2010) (unpublished opinion), rev. denied 292 Kan. 966 (2011).
In Woodward, our Supreme Court was presented with a similar case that provides guidance in resolving this issue. In Woodward, the defendant pled guilty to several serious felonies, including felony murder of a 5–year–old child and the sexual molestation of an 8–year–old child. In exchange for Woodward's guilty pleas, the State agreed to recommend “a controlling sentence of life, plus 10 years to life.” 288 Kan. at 299, 202 P.3d 15.
Woodward's sentencing commenced with defense counsel's positive remarks about Woodward, which included references to his career in law enforcement, his wife and two children, his family support, and the flaws in his evaluation from Larned State Hospital diagnosing him as a pedophile. Defense counsel stated that Woodward had “ ‘led an exemplary life until around the time of [the child's] death,’ “ and the victims' families had agreed to the recommendations contained in the plea agreement. 288 Kan. at 301, 202 P.3d 15. At the conclusion of her remarks, defense counsel asked the district court to follow the plea agreement and to “make provisions for her client to ‘get the treatment that is so deeply needed.’ “ 288 Kan., at 301, 202 P.3d 15. Woodward's wife than told the court that he was a “ ‘good man’ “ and “ ‘good father’ “ and that the death of the child “ ‘was an accident.’ “ 288 Kan. at 301–02, 202 P.3d 15. She concluded by saying that Woodward needed help rather than being “ ‘put away for the rest of his life.’ “ 288 Kan. at 301–02, 202 P.3d 15.
The district court asked the prosecutor for her recommendation, and the prosecutor commenced by clarifying that “the sentencing recommendation was that of the district attorney's office, not that of the victims.” 288 Kan. at 302, 202 P.3d 15. After reminding the district court of the heinous nature of Woodward's crimes and the losses suffered by the victims' families, the prosecutor referenced Woodward's diagnosis of pedophilia and opined, “ ‘the help that can be best afforded to Mr. Woodward is to make him not dangerous to the community and not dangerous to himself by incarcerating him.’ “ 288 Kan. at 302, 202 P.3d 15. The prosecutor also pointed to facts that directly contradicted the defense's assertions and commented that Woodward's law enforcement background “actually made the circumstances more egregious because of the trust that position should engender.” 288 Kan. at 302, 202 P.3d 15.
The district court did not follow the recommendations in the plea agreement but imposed a “ ‘controlling sentence of life, plus an additional 30 years to life.’ “ 288 Kan. at 299, 202 P.3d 15. On appeal, although Woodward conceded that the prosecutor asked the district court to follow the plea agreement, he asserted the prosecutor “ ‘constructively reneged on the plea’ by coupling her requests for the recommended sentence with ‘arguments as to why such a sentence should not be given.’ “ 288 Kan. at 301, 202 P.3d 15.
After “[c]onsidering the context of the entire sentencing hearing,” our Supreme Court found the prosecutor's remarks did not violate the terms of the plea agreement, because “[i]n essence, the prosecutor's arguments appear[ed] to have been directly tailored to address the defense's attempt to cast Woodward in a favorable light.” 288 Kan. at 301–02, 202 P.3d 15. The Supreme Court explained that the terms of the plea agreement were not binding on the district court and had it found the defense's mitigating remarks compelling, nothing precluded it from imposing a sentence less than the plea-bargained recommended sentence. As such, “the State was free to argue why the recommended sentence was also the most appropriate sentence to impose under the circumstances. The plea agreement did not require the prosecutor to ignore the defense's attempts to minimize Woodward's culpability.” 288 Kan. at 302, 202 P.3d 15. Our Supreme Court concluded by stating the following rule of law:
“The State can breach a plea agreement by effectively arguing against the negotiated sentencing recommendation. However, if the State actually makes the sentence recommendation that it promised, the prosecutor's further comments in support of the recommended sentence do not breach the plea agreement so long as the comments do not effectively undermine the recommendation.” Woodward, 288 Kan. 297, Syl. ¶ 3, 202 P.3d 15.
Woodward is dispositive of this issue. As in Woodward, we find the prosecutor did not undermine the plea agreement. Although we have only briefly alluded to the facts underlying the charges, they are—as the sentencing court observed—nothing short of horrific. Thompson and his codefendants terrorized a family of four over an extended period of time, inflicting severe physical injuries on the mother and father and extraordinary emotional pain on all of them. Judge Gregory Waller, who sentenced Thompson, had not presided over the earlier aspects of the case and would not necessarily have had a detailed understanding of the factual basis of the offenses from the available court record.
The plea agreement called for a sentence of 257 months, in excess of 20 years. As we noted, that was longer than the minimum guidelines sentences, so Judge Waller had the legal authority to impose a substantially shorter sentence if he found Thompson's comments worthy of leniency. An appropriate sentence in any given case takes into account myriad factors including the particular circumstances of crimes and the impact on the victims. The prosecutor's remarks consisted of a recitation of the egregious facts of this case which comprised the crimes for which Thompson admitted his guilt. There is no contention that the prosecutor's factual recitation was inaccurate or exaggerated. And the comments did not explicitly or implicitly encourage the district court to impose any greater sentence than the parties had agreed to recommend to the court. The prosecutor's remarks and the underlying facts supported the agreed-upon sentence and substantiated reasons why Judge Waller should not have imposed a lesser sentence. As Thompson acknowledges, the prosecutor did not ask for a greater sentence or intimate such a sentence would be fairer than the plea-agreement.
After a careful review of the sentencing hearing, we conclude the prosecutor's comments did not effectively undermine the sentencing recommendation which was part of the plea agreement. See Woodward, 288 Kan. 297, Syl. ¶ 3, 202 P.3d 15.
Affirmed.