Opinion
No. 105,744.
2012-07-27
STATE of Kansas, Appellee, v. Ricky TODD, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert and Terry L. Pullman, Judges. Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Warren M. Wilbert and Terry L. Pullman, Judges.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., MARQUARDT and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Ricky Todd argues the district court twice abused its discretion in denying his motion to withdraw the guilty plea he entered prior to sentencing. First, he claims the district court employed the improper legal standard by requiring him to show manifest injustice, rather than good cause, in support of his request. Second, he argues the court misinterpreted K.S.A.2010 Supp. 22–3210(d)(1), which he believes affords the district court discretion to permit a defendant to withdraw his or her plea even without a showing of good cause. We find no abuse of discretion and therefore affirm the district court's decision to deny Todd's motion to withdraw plea.
Facts
In 2008, Todd was charged in Sedgwick County District Court with three counts of aggravated robbery and one count each of aggravated burglary, aggravated battery, aggravated sexual battery and aggravated assault. Todd's case had an extensive pretrial phase that involved numerous motions, filed both professionally and pro se, as well as the appointment of five different attorneys to represent Todd.
On August 23, 2010, Todd's motion to suppress was heard. It appears that midway through that proceeding, Todd advised counsel that he wanted to enter into a plea agreement with the State. After a recess, Todd ultimately decided to plead guilty to three counts of aggravated robbery, one count of aggravated burglary, one count of aggravated battery, and one count of aggravated assault in exchange for dismissal of the aggravated sexual battery charge and a recommendation by the State that he serve a 78–month prison sentence.
In a signed acknowledgement of rights form submitted to the court in conjunction with the plea, Todd confirmed he fully understood the charges against him, he was aware of the various trial rights he was waiving, he knew that only the court could determine his ultimate sentence, and he was satisfied with his attorney's services. The court also conducted an extensive plea hearing, during which Todd assured the court that he had sufficiently reviewed the plea form independently and with counsel, he was aware of the rights he was waiving, he knew the consequences of entering a plea, and the decision to enter a plea was of his own volition and not the product of coercion or force from another party. As part of that hearing, the court spent a considerable period of time explaining to Todd the effect his plea would have on the ultimate sentence imposed. At one point in the hearing, Todd sought clarification about how his sentence would be calculated and expressed displeasure over the fact that his accomplice had received a lesser sentence for the same crimes even though “we committed—that a crime was committed together.” Todd also expressed displeasure with the court's previous rulings on pretrial motions. The court flushed out Todd's concerns and then followed up by asking Todd if he fully understood the consequences of his plea and still wanted to plead guilty, to which Todd responded, “Yeah.” Finding Todd's decision to plead guilty was knowingly and voluntarily made, the court accepted the plea and adjudged Todd guilty of counts one through four and counts six and seven. Count five, the charge of aggravated sexual battery, was dismissed in accordance with the terms of the agreement.
Approximately 1 month after entering the plea, Todd filed a presentence motion to withdraw it based on the assertion that he was not truly guilty of the crimes to which he had pled. The judge who had presided over the plea hearing held a hearing on the motion to withdraw. At the hearing, Todd stated that his decision to plead guilty was based on a heightened emotional state on the day of the plea and on information conveyed to him from an anonymous source relating that if he did not take the plea, the prosecutor “would try to hang” him. Todd asserted that he wanted to take his case to trial and concluded by testifying, “I'm not guilty of all these charges I'm charged with.”
In closing argument, Todd's counsel reiterated that Todd was very emotional and that his testimony at the hearing was more reliable than his statements at his plea hearing, which were not made under oath. In rebuttal, the State observed Todd told the court three times at his plea hearing that he wanted to accept the plea agreement. Moreover, the State told the court the plea agreement had been offered more than 2 years ago and, therefore, Todd was not rushed or forced into making a last-minute decision. Finally, the State argued his conclusory assertion of nonguilt was not an adequate ground to set aside his plea.
The district court ultimately concluded that Todd had failed to demonstrate the good cause necessary for the court to permit him to withdraw his plea. In reaching this decision, the court observed Todd had failed to satisfy any of the three factors cited in State v. Taylor, 266 Kan. 967, Syl. ¶ 6, 975 P.2d 1196 (1999), that would permit a defendant to withdraw his or her plea. Specifically, the court observed Todd had failed to make “any statements of facts, belief, [or] controverted facts” or proffer any evidence to establish a factual foundation to his claim that he was not guilty of the crimes to which he pled guilty.
The court further observed it personally presided over Todd's plea hearing and that Todd repeatedly confirmed he understood the charges against him and admitted to the factual basis of the charges. Additionally, the court stated the plea did not result from fraud or duress and that Todd freely, fairly, and intelligently agreed to plead guilty. Finally, the court determined it could not find “any of the factors that the Taylor case talks about to be present in this situation.” In accordance with the plea agreement, the court sentenced Todd to a controlling sentence of 78 months in prison.
Analysis
On appeal, Todd claims the district court employed the improper legal standard by requiring him to show manifest injustice, rather than good cause, in support of his request. Alternatively, Todd claims the court misinterpreted K.S.A.2010 Supp. 22–3210(d)(1), which he believes affords the district court discretion to permit a defendant to withdraw his or her plea even without a showing of good cause.
Standard of Review
“Appellate courts review a district court's decision in a presentence motion to withdraw a plea for abuse of discretion.” State v. Anderson, 291 Kan. 849, Syl. ¶ 1, 249 P.3d 425 (2011). “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. [Citation omitted.]” State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009). In order for the district court's decision to receive the full measure of that standard's deference, it must have been based upon a correct understanding of the law. State v. Williams, 290 Kan. 1050, 1053, 236 P.3d 512 (2010). The defendant bears the burden of establishing the abuse of discretion. State v.. Schow, 287 Kan. 529, 541, 197 P.3d 825 (2008).
The District Court Applied the Proper Legal Standard
Todd relies on State v. Aguilar, 290 Kan. 506, 512, 231 P.3d 563 (2010), to support his contention that the district court improperly relied on the factors set forth in Taylor to deny his motion to withdraw plea. In Taylor, our Supreme Court stated that when evaluating a motion to withdraw plea, “the district court should consider whether: (1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understandingly made.” 266 Kan. at 977. More recently, these factors have become known as the “ Edgar factors,” in reference to State v. Edgar, 281 Kan. 30, 127 P.3d 986 (2006). Aguilar, 290 Kan. at 512.
Because of its importance to the present case, Aguilar necessitates further analysis. There, the defendant pled guilty to one count of possession of cocaine but sought to withdraw her plea before sentencing. She alleged, in part, that her counsel had a conflict of interest because he was simultaneously representing her codefendant. The district court denied Aguilar's motion to withdraw plea. The Kansas Supreme Court, however, reversed this decision on grounds that the district court had applied the wrong legal standard—manifest injustice instead of good cause—in determining whether the defendant should be permitted to withdraw her plea. 290 Kan. at 515.
In reaching this decision, the Supreme Court observed it had “finally and explicitly recognized” the good cause standard to be less demanding than the manifest injustice standard, which is used when a defendant seeks to withdraw his or her plea after sentencing. 290 Kan. at 512; see also K.S.A.2010 Supp. 22–3210(d)(2). Although the court believed the factors articulated in Edgar and its predecessors were still “viable benchmarks” for a district court to employ when determining whether a defendant may withdraw his or her plea, exclusive reliance on these factors “has ... conflated the good cause and manifest injustice standards of K.S.A. 22–3210(d).” 290 Kan. at 512. Consequently, the Supreme Court held that “[a]ll of the Edgar 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.” 290 Kan. at 513.
In the case here, Todd argues the district court erred because, by citing Taylor, the court employed the manifest injustice standard. But as the State correctly observes, the context of the plea hearing demonstrates the “district court conducted a thorough, comprehensive review of the facts and circumstances” of Todd's plea beyond the three factors cited in Taylor and Edgar.
Several facts confirm the State's argument. Preliminarily, the district court agreed it would employ the good cause standard when reviewing Todd's motion to withdraw his plea. The court then analyzed each argument raised by Todd at his motion to withdraw plea hearing even though several of these arguments fell outside the scope of the three factors articulated in Edgar. For instance, the court criticized Todd for failing to explain or corroborate his argument that he was not guilty of the crimes to which he pled. Moreover, the court—in finding the plea did not result from fraud, duress, mutual mistake, or lack of understanding of the charges against Todd—questioned the credibility of Todd's testimony that an anonymous source told him the prosecutor “would hang him and try and give him the maximum sentence” because the court repeatedly told Todd at his plea hearing that the court, not the State, would ultimately determine his sentence.
We acknowledge that near the end of the hearing the court stated it could not find “any of the factors that the Taylor case talks about to be present in this situation.” But the broader context of this statement demonstrates the court did not limit itself to considering only evidence that would satisfy the three factors articulated in Edgar and its predecessor Taylor. Rather, the court used these factors as a guidepost for its analysis to determine whether Todd demonstrated good cause necessary to withdraw his plea. Accordingly, we find the district court relied on the proper legal standard and therefore did not abuse its discretion in denying Todd's motion.
A Showing of Good Cause is Required
In the alternative, Todd argues that even without a showing of good cause, the district court retained the discretion to allow him to withdraw his plea before sentencing and therefore the district court erred in failing to consider whether to exercise that discretion. This argument necessitates an interpretation of K.S.A.2010 Supp. 22–3210(d). Interpretation of a statute is a question of law over which this court exercises unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
K.S.A.2010 Supp. 22–3210(d)(1) states: “A plea of guilty of nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.” (Emphasis added.) It is Todd's position that the plain language employed by the legislature in drafting the provision establishes two independent conditions under which a district court may permit withdrawal of a guilty or no contest plea: (1) upon a showing of good cause or (2) at the court's discretion. Todd acknowledges that the provision employs the use of the word “and” where he would have this court read “or,” and further concedes that the term “and” is ordinarily conjunctive. Todd nevertheless argues that the term “and” may be read as disjunctive when necessary to carry out the legislative intent.
Notably, this court rejected an argument identical to the one presented by Todd here in State v. Brown, 46 Kan.App.2d 556, 562, 263 P.3d 217 (2011).
“We interpret K.S.A.2010 Supp. 22–3210(d)(1) to mean that a defendant must show good cause for a plea withdrawal before sentencing. If a defendant has shown good cause to the court that his or her plea should be withdrawn, the court may allow the defendant to withdraw the plea, exercising the discretion granted by the legislature. Stated another way, the court has a choice, but only when the defendant has shown good cause. However, if the defendant has failed to show good cause, the court has no choice but to deny the defendant's request to withdraw the plea.” (Emphasis added.)
Three cases preceding Brown reached this same outcome. See State v. Sullivan, No. 102,057, 2011 WL 148889, at *1–2 (Kan.App .) (unpublished opinion), rev. denied 291 Kan. 917 (2011) (statute imposes a single standard with two components); State v. Young, No. 102,272, 2010 WL 3853152, at *1–2 (Kan.App.) (unpublished opinion), rev. denied 291 Kan. 917 (2010) (court has a choice to allow plea withdrawal, but only when defendant has shown good cause); and State v. Vasquez, No. 99,492, 2008 WL 4916332, at *2 (Kan.App.2008) (unpublished opinion), rev. denied 288 Kan. 835 (2009) (defendant's argument flies in the face of the clear expression of the Kansas Legislature). Moreover, at least one case since Brown has adopted the reasoning of all four preceding opinions. See State v. Barron, No. 104,385, 2011 WL 5526540, at *4 (Kan.App.2011) (unpublished opinion), rev. denied 294 Kan. (2012) (“We see no reason to depart from their sound reasoning, nor restate it here. A defendant must establish good cause as a predicate to the district court's exercise of discretion under the statute.”).
Because this case does not present unique facts or circumstances that warrant a departure from this court's previous rulings, we find no merit to Todd's argument here.
Affirmed.