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State v. Townsend

Court of Appeals of Kansas.
Nov 21, 2014
338 P.3d 23 (Kan. Ct. App. 2014)

Opinion

No. 110,570.

2014-11-21

STATE of Kansas, Appellee, v. Keith TOWNSEND, Appellant.

Appeal from Wyandotte District Court; Wesley K. Griffin, Judge.Johnathan M. Grube, 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 K. Griffin, Judge.
Johnathan M. Grube, 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 POWELL, P.J., LEBEN, J., and HEBERT, S.J.

MEMORANDUM OPINION


PER CURIAM.

Keith Townsend appeals from the district court's denial of his motion to withdraw a negotiated plea of guilty prior to sentencing. He argues that he was coerced into taking the plea and that he was represented by incompetent counsel.

The district court properly applied the law and considered the facts and circumstances to conclude that no good cause existed to allow Townsend to withdraw his plea. We find no abuse of discretion and affirm the judgment.

Factual and Procedural Background

The charges against Townsend are related to a drive-by shooting in which two occupants of a vehicle driven by Townsend fired shots at two persons in another vehicle, one of whom was struck by bullets and hospitalized but survived.

Townsend was initially charged with one count of aggravated battery, four counts of aggravated assault, and two counts of criminal damage to property. The State amended the information on December 16 and December 20, 2011, to add two codefendants. A second amended information was filed on December 22, 2011, but no substantive changes were made. On March 16, 2012, two days following the preliminary hearing, the information was amended a third time to change Count I from aggravated battery to attempted second-degree murder. On August 8 through 10, 2012, the information was amended two more times to “correct technical errors in the charging document.”

On September 12, 2012, Townsend filed a pro se motion to dismiss counsel, alleging lack of communication with his appointed attorney, Zachary Anthony. This motion was filed 5 days before the case was set for jury trial. Townsend ultimately decided to retain Anthony but requested a continuance for the jury trial. The court reset the trial for January 14, 2013.

On January 3, 2013, the State moved to amend the information for a sixth time, requesting leave to amend Count I from attempted second-degree murder to criminal discharge of a firearm into an occupied vehicle. The district court held a hearing on the motion on January 9, 2013, five days before the scheduled jury trial. Townsend's counsel, Anthony, objected to the motion, arguing the amended charge would alter his defense. Anthony did, however, “partially agree” with the State's proposed amendment, noting the new charge “may fit the facts better.”

Before the district court was able to rule on the motion, Townsend himself asked the court for time to speak with the assistant district attorney about a plea offer. Townsend told the court he had been offered a recommended sentence of 102 months and “that's the plea I'm willing to take now.” The assistant district attorney did concede a recommended sentence of 102 months had been offered, but that offer had expired. The current offer of 120 months would expire at the end of the day's hearing. After a recess, the parties reconvened and announced they had reached a plea agreement. Townsend pled guilty to one count of criminal discharge of a firearm into a vehicle and two counts of aggravated assault. In exchange, the State agreed to dismiss the remaining counts and not pursue other drug charges pending against Townsend and to recommend a 120–month sentence.

The district court went through its standard plea colloquy, informing Townsend of the potential maximum sentences and ensuring Townsend was of sound mind and in complete understanding of the plea he was entering into. The court specifically asked Townsend if there had been any “promises or threats” made to force him into the plea. Townsend responded, “No.” When the court asked him if entering into the plea was his voluntary act, Townsend responded, “Right. It Is.” In addition to the court's standard questioning, Townsend signed a plea petition in the presence of the court and all parties. In the plea petition, Townsend agreed his mind was clear, that he understood the charges and all potential punishments, that he was satisfied with counsel, and that his plea was “not the result of any force or threats against me.” After asking Townsend if he had any other questions for the court or his attorney, the court certified the plea was “knowingly and voluntarily” entered into. At the conclusion of the hearing, the district judge did acknowledge he likely would have granted the State's motion to amend Count I in the information. A sentencing hearing was scheduled for February 19, 2013.

On January 29, 2013, Townsend filed a pro se motion to withdraw his plea. The motion was based on: (1) The charges were amended 3 days before trial, leaving him inadequate time to prepare for trial; (2) his attorney refused to ask for a continuance for the jury trial even though he agreed to waive his speedy trial rights; (3) the plea was not reasonable or agreeable; (4) family issues caused him to be “emotional”; and (5) ineffective assistance of counsel. The court allowed Anthony to withdraw and new counsel subsequently filed a motion in support of Townsend's motion.

The district court held an evidentiary hearing on Townsend's motion to withdraw his plea on April 19, 2013. Anthony testified he had informed Townsend how much time he was potentially facing, considering the additional drug charges the State was threatening to file. When asked if he would have been prepared for the January trial after the State amended the information, Anthony responded, “Well, the facts are the same. The charge—while the charge was a different charge with perhaps a different legal theory, I don't think at any point there was any debate about the facts that would be used at trial against Mr. Townsend.” He also testified he did not have an opportunity to request a trial continuance because Townsend decided to enter into a plea agreement before the judge ruled on the motion to amend. Townsend testified and alleged Anthony misled him by overstating the maximum punishment in an attempt to force him into a plea.

After hearing the evidence, the district court denied the motion to withdraw the plea. The court considered: (1) whether Townsend was represented by competent counsel; (2) whether he was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandably made. The court found there was no “good cause” to withdraw the plea, noting, “The plea in my opinion was validly and completely covered and we went through every possibility....” Townsend was sentenced to 120 months in prison in accordance with the plea agreement. He timely appeals the court's denial of the motion to withdraw his plea.

Issue on Appeal

Townsend argues the district court abused its discretion by finding there was no good cause for him to withdraw his plea. He asserts the district court unreasonably determined he was not coerced into taking a guilty plea and that he was represented by competent counsel. He also asserts the district court's decision was based on an incorrect legal conclusion.

Standard of Review

A district court has the discretion to allow a defendant to withdraw his or her guilty plea any time before the sentence is pronounced so long as good cause is shown. K.S.A.2012 Supp. 22–3210(d)(l). The good cause requirement is a “ ‘lesser standard’ for a defendant to meet, when compared to manifest injustice for a defendant advancing a postsentence motion.” State v. Aguilar, 290 Kan. 506, 512, 231 P.3d 563 (2010). On appeal, the defendant must establish that the trial court abused its sound discretion in denying a presentence motion to withdraw a plea. State v. Garcia, 295 Kan. 53, 61–63, 283 P.3d 165 (2012).

A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), rev. denied 132 S.Ct. 1594 (2012). A trial court's decision is protected so long as the “discretionary decision is made within and takes into account the applicable legal standards.” State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006).

The district court generally uses the three Edgar factors to guide its consideration as to whether good cause exists to withdraw a defendant's plea prior to sentencing: (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. Edgar, 281 Kan. at 36. Not all factors must apply in the defendant's favor in every case, and other factors may be duly considered. State v. Ebaben, 294 Kan. 807, 812, 281 P.3d 129 (2012).

Analysis

The crux of Townsend's argument focuses on the first and second Edgar factors—whether he was represented by competent counsel and whether he was misled, coerced, mistreated, or unfairly taken advantage of.

Townsend first argues—based on the second Edgar factor—that he was improperly coerced into a plea agreement based on the last minute amendment of the charges and because his counsel refused to move for a continuance of the trial in response. This notion is not supported by the evidence in the record.

The State concedes that its proposed amendment of the charge of attempted second-degree murder to criminal discharge of a firearm into an occupied vehicle would have changed the intent required from “intentionally” to “recklessly.” But under K.S.A. 22–3201(e), the State may move to amend the charges at any time up until a verdict, subject to the discretion of the trial court to grant or deny the motion. The State does not “coerce” the accused into taking a plea merely by exercising a statutory prerogative to move for amendment some 11 days prior to trial.

Defense counsel acknowledged that while the amended charges did present a different legal theory, the facts to be presented against Townsend at trial would have been essentially the same, and he certainly inferred that he would have been sufficiently prepared to go forward at trial regardless of the court's decision on the amendment.

However, the trial court never ruled on the State's motion to amend. The record supports the finding that during the hearing on the motion to amend, and before the court ruled, Townsend personally addressed the court and requested a recess to discuss plea negotiations with the assistant district attorney. Pursuant to the resulting negotiations, Townsend agreed to enter a plea of guilty, not knowing whether the pending motion to amend would even have been granted. This belies his claim of coercion.

Townsend further asserts he was coerced due to the possibility of unfiled drug charges. The State correctly points out that “the filing or dismissal of charges is ubiquitous in every plea agreement .” It is the nature of plea negotiations to consider all of the possible charges and punishments that may result from taking or not taking a plea. What is important is that the defendant is fully informed of all possible consequences. Evidence in the record proves Townsend was aware of the drug charges and the sentences that accompanied them. It was up to him to weigh the risk involved in rejecting or taking a plea. The mere presence of leverage in the State's plea negotiations cannot alone prove Townsend was unfairly coerced to the point his plea should be withdrawn.

The district court held a lengthy plea colloquy, and Townsend responded he was of sound mind and understood the plea deal and the rights he was waiving. In making its decision to deny Townsend's motion to withdraw his plea, the district court noted:

“We went to great lengths to make sure he understood what was going on.

“I don't know how many times I asked him do you understand, and how many times that plea petition indicates he was—that he did understand, but I usually do that multiple times and 1 cannot imagine that on a case of this seriousness that I wouldn't have taken at least the standard if not more than the standard consideration and time into it.”
Townsend also signed a plea petition which among other things, stated he offered his guilty plea “freely and voluntarily” and it was “not the result of any force or threats.” The record and Townsend's brief contain no assertions there was any wrongdoing in the plea colloquy or the signing of the plea petition. In weighing and determining a motion to withdraw a plea, courts must be able to place substantial reliance on the propriety of a clear and detailed plea colloquy, especially when supported by a specific written plea petition.

The district court did not abuse its discretion in finding there was no good cause to allow Townsend to withdraw his plea because he was misled, coerced, mistreated, or unfairly taken advantage of.

Townsend's second argument—based on the first Edgar factor—is that his plea should be withdrawn because he was not represented by competent counsel. The Aguilar court pointed out a defendant does not have the burden to prove counsel was incompetent using the constitutional ineffective assistance of counsel standard; rather, mere “lackluster advocacy” was enough to show good cause to withdraw a plea. 290 Kan. at 512–13. There is no evidence in the record that Anthony was incompetent or demonstrated lackluster advocacy.

Townsend argues Anthony mislead him about the maximum sentence he might face. Townsend asserts if he was convicted on all of the charges in the present case, he would have faced up to 14 years in prison. He claims Anthony informed him he faced the possibility of 25 years in prison in order to persuade him to take a plea. The record supports Townsend was correctly advised as to the maximum punishment on all charges in the present case as well as the possible sentences for the drug charges he potentially faced had he not entered the plea agreement. Anthony testified he went over the possible sentences for the crimes Townsend was currently charged with and advised him as to what might happen if he rejected the plea offer and faced the possible drug charges. The district court noted that during the plea colloquy it went through all the potential sentences he could receive for the crimes he was charged with.

There is discussion in the record addressing Townsend's claim that the alleged misinformation about the increased sentence caused him to feel pressure from his family to accept a plea. The district court discussed the impact of family pressures on whether there is good cause to withdraw a plea, citing the Kansas Supreme Court, which has said “[e]very man charged with a crime is influenced by personal considerations which may later not appear valid to him, but psychological self-coercion is not the coercion necessary in law to destroy an otherwise voluntary plea of guilty.” Williams v. State, 197 Kan. 708, 711, 421 P.2d 194 (1966). The district court relied on this precedent to find the existence of family pressure was not good cause to withdraw the plea agreement, and there is no reason to find the district court abused its discretion in this matter.

Townsend's final argument supporting his assertion he was not represented by competent counsel is that Anthony did not request a continuance of the jury trial after the State moved to amend the charges. The record supports Anthony's testimony that he did not have an opportunity to request a continuance because Townsend independently initiated plea negotiations during the hearing on the motion to amend the information.

Townsend fails to support his assertions that Anthony was incompetent or demonstrated lackluster advocacy. The district court did not abuse its discretion when it found that Townsend was represented by competent counsel and therefore no good cause existed to withdraw his plea.

Townsend's third argument is that the district court abused its discretion by improperly applying the law when it failed to consider other facts not included in the Edgar factors. While the district court could have considered any facts and circumstances that would impact good cause, Townsend does not propose any novel facts or circumstances the district court failed to address. Rather, Townsend basically reasserts his arguments that the proceedings were coercive because the State's motion to amend the information a few days before trial gave him “no other choice but to accept the plea under unfair circumstances.” The district court correctly applied the law and considered not only the Edgar factors, but other facts and circumstances as well—including a detailed discussion on the effect of family pressures on a defendant's decision to enter a plea.

Considering the totality of the circumstances presented, the district court did not abuse its discretion when it denied Townsend's presentence motion to withdraw his plea, and the judgment is affirmed.

Affirmed.


Summaries of

State v. Townsend

Court of Appeals of Kansas.
Nov 21, 2014
338 P.3d 23 (Kan. Ct. App. 2014)
Case details for

State v. Townsend

Case Details

Full title:STATE of Kansas, Appellee, v. Keith TOWNSEND, Appellant.

Court:Court of Appeals of Kansas.

Date published: Nov 21, 2014

Citations

338 P.3d 23 (Kan. Ct. App. 2014)