Opinion
111,549.
06-26-2015
STATE of Kansas, Appellee, v. Scotty R. WILSON, Appellant.
Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant. Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant.
Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., GREEN, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Scotty R. Wilson pled no contest to one count of aggravated battery, a severity level 5 person felony, in violation of K.S.A.2014 Supp. 21–5413(b)(2)(A) and one count of aggravated battery, a severity level 8 person felony, in violation of K.S.A.2014 Supp. 21–5413(b)(2)(B). In total, the trial judge sentenced Wilson to a prison term of 96 months. On appeal, Wilson argues that the trial court erred in denying his presentence motion to withdraw his pleas. Wilson additionally argues 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 Wilson's argument, we affirm.
In July 2011, Wilson and his brother, Kyle Baker, had a physical altercation with a man in a parking lot. Because of the altercation, this man suffered a broken nose, facial cuts, and bruises. In November 2011, Wilson and Baker were involved in another altercation. During this altercation, Wilson stabbed Derek Coates four times.
Although the complaint is not included in the record on appeal, it seems that the State charged Wilson with one count of aggravated battery, a severity level 4 person felony under K.S.A.2014 Supp. 21–5413(b)(1)(A), for his July 2011 aggravated battery in Crawford County Case No. 11CR557G. The State additionally charged Wilson with one count of aggravated battery, a severity level 4 person felony under K.S.A.2014 Supp. 21–5413(b)(1)(A), for his November 2011 aggravated battery in Crawford County Case No. 11CR545G. Jason Wiske was appointed to represent Wilson in both the 11CR557G and 11CR545G cases. Another attorney represented Baker on his charges stemming from those offenses.
Wilson's 11CR557G and 11CR545G cases were set for jury trial on October 3, 2012. After a jury pool had been selected but before the trial began, Wiske moved to continue the trial. Shortly before the trial was to begin, Wiske received new videotape evidence of the police interviewing Wilson. According to Wiske, he had to ask for a continuance because he needed time to review this new evidence to adequately prepare for trial. The trial court set a new trial date of December 5, 2012. Although a jury pool had already been selected, Wilson accepted a plea agreement for both the 11CR557G and 11CR545G cases before the December trial date.
Under the plea agreement, the State agreed to consolidate both the July 2011 aggravated battery and the November 2011 aggravated battery. For the July 2011 aggravated battery, the State agreed to downgrade Wilson's charge from aggravated battery, a severity level 4 person felony, to reckless aggravated battery, a severity level 5 person felony under K.S.A.2014 Supp. 21–5413(b)(2)(A). By accepting the plea agreement, Wilson would serve 87 months' imprisonment for the July 2011 aggravated battery. For the November 2011 aggravated battery, the State agreed to downgrade this charge from aggravated battery, a severity level 4 person felony, to reckless aggravated battery, a severity level 8 person felony under K.S.A.2014 Supp. 21–5413(b)(2)(B). For this charge, Wilson would serve 9 months' imprisonment, consecutive to Wilson's other aggravated battery sentence. Yet, Wilson's plea agreement was further
“conditioned upon Kyle Baker accepting a plea in Crawford County Case No. 11CR558G to a level 5 reckless aggravated battery and Kyle Baker accepting a plea in Crawford County Case No. 12CR85G to a level 8 reckless aggravated battery with the State agreeing to recommend that Kyle Baker be placed on probation with community corrections.”
The trial judge accepted Wilson's no contest pleas for both charges under the plea agreement on November 28, 2012. During the plea colloquy, Wilson stated that he had read the plea agreement with Wiske, that he understood the plea agreement, and that he understood that he would be required to serve a prison term of 96 months under the plea agreement. Wilson also stated that he had had plenty of time to discuss his pleas with Wiske, that Wiske had answered any questions he had had to his satisfaction, and that he did not have any questions for the trial judge. Moreover, Wilson stated that no one had promised him anything other than what the plea agreement stated. Wiske also specifically noted, on the record, that Wilson's plea agreement was contingent upon Baker accepting his plea agreement. Baker eventually accepted his plea agreement.
Before sentencing, Wilson filed a “Motion to Withdraw and Continue Sentencing Hearing,” asking for Wiske to withdraw as his counsel. At the hearing on the motion, Wilson alleged that Wiske had made mistakes regarding the plea agreement and that based on those mistakes he wanted to withdraw his pleas. The trial judge ordered Wiske to withdraw as counsel and appointed Wilson new counsel. Then, Wilson filed a motion to withdraw plea and filed an amended motion to withdraw plea alleging that Wiske had violated an attorney-client confidentiality. Based on this alleged attorney-client violation, Wilson contended that he had been misled, coerced, and unfairly taken advantage of in his decision to enter the plea agreement. Wilson argued that Wiske had coerced him and attempted to mislead him by telling him he would not win based on the composition of the jury pool and his physical appearance. Additionally, Wilson argued that Wiske had misled him to believe that Baker would have to serve 183 months' imprisonment if he did not accept the plea agreement.
At a full evidentiary hearing on Wilson's motion to withdraw his pleas, both Wilson and Wiske testified. Wilson testified that he believed Wiske was not fully focused on his case. As a result, Wiske's lack of focus on his case made Wilson believe that the only choice he had was to accept the plea agreement. He testified that he believed that Wiske was more concerned about Baker's case because he was always asking questions about whether Baker was going to accept the plea agreement. Wilson explained that he believed Wiske manipulated him into accepting the plea agreement because Wiske knew that he and Baker were relatives and that he did not want Baker to go to prison. Wilson also testified that Wiske told him that he had a higher likelihood of going to prison because of the jury pool. Wilson further testified that Wiske told him that the violent nature of the charge against him would likely require him to go to prison. Moreover, Wilson testified that he believed Wiske revealed confidential information to the prosecutor because the prosecutor stated that she knew Wilson had contacted Baker, asking Baker to not accept his plea agreement.
Nevertheless, while testifying, Wilson admitted that he never told Wiske he did not want to accept the plea agreement until he had already accepted the agreement and pled no contest. Wilson admitted that he never expressed any issues with Wiske or his pleas at his plea hearing. Wilson recognized that an attorney should inform a client about his or her chances with a particular jury pool and how to present himself or herself in court. Furthermore, Wilson admitted that when Wiske asked for continuance for the jury trial, he had agreed to the continuance and knowingly waived his speedy trial rights in open court.
Wiske testified that he had always answered Wilson's questions and Wilson had never expressed any concerns about the plea agreement. Wiske testified that the first time Wilson had expressed any concern about the plea agreement was after he had accepted the plea agreement. Wiske further explained that he was concerned about Wilson's appearance because Wilson had tattoos and Wilson had been smirking during the preliminary hearing.
The trial judge took the matter under advisement and then issued a written order denying Wilson's motion to withdraw his pleas. The trial judge found that Wiske had not coerced or misled Wilson by commenting on the jury pool composition or Wilson's physical appearance. The trial judge found that Wiske was obligated to discuss Wilson's chances of success to adequately prepare for trial. Also, the trial judge found that Wiske had not revealed any confidential information, that Wilson had agreed to any continuance that Wiske requested, and that nothing corroborated Wilson's assertion that Wiske had misled Wilson about Baker's sentence.
At sentencing, the trial court followed the State's recommendations in the plea agreement. For the July 2011 aggravated battery, the trial court gave Wilson a downward durational departure, imposing an 87–month prison sentence, with 24 months' postrelease supervision. For the November 2011 aggravated battery, the trial judge imposed a 9–month prison sentence to be served consecutive to Wilson's other aggravated battery sentence, with 12 months' postrelease supervision.
Wilson did not timely appeal, but the trial court determined that a State v. Ortiz, 230 Kan. 733, 640 P.3d 1255 (1982), exception to timely filing applied. Neither party contests the trial court's finding.
Did the Trial Court Err When It Denied Wilson's Presentence Motion to Withdraw His Pleas?
Under K.S.A.2014 Supp. 22–3210(d)(1), “[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.” The trial court should consider the following three factors in determining whether a defendant has demonstrated good cause to withdraw his or her plea before 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.” 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] ). Nevertheless, these facts should not be applied mechanically or to the exclusion of other factors. Fritz, 299 Kan. at 154 (citing State v. Garcia, 295 Kan. 53, 63, 283 P.3d 165 [2012] ).
This court reviews the denial of a presentence 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 [2012] ).
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. State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011).
On appeal, Wilson argues that he accepted the plea agreement because he was not represented by competent counsel and because he was misled, coerced, and unfairly taken advantage of. Thus, Wilson asks this court to reverse the trial court's decision and allow him to withdraw his pleas.
Was Wilson Represented by Competent Counsel?
Wilson argues that Wiske was incompetent as his attorney in two ways. First, Wilson argues that Wiske was unable to focus on his case, which forced him to waive his speedy trial rights. Essentially, Wilson argues that Wiske was spending too much time working on other cases and not on his case. This, in turn, forced Wilson to agree to a continuance to his jury trial even though he believed he had a favorable jury pool.
As noted earlier, however, Wiske received new evidence for Wilson's case shortly before Wilson's case was set for trial. At the hearing on Wilson's motion to withdraw his pleas, Wiske testified that he told Wilson that in light of this new evidence and the fact that he had just finished a 3–day jury trial the previous week, he needed more time to adequately prepare for Wilson's jury trial. Thus, while it is true that Wiske, like most defense attorneys, was busy with other cases, Wiske did not ask for a continuance because he was simply ignoring Wilson's case. Instead, Wiske asked for a continuance because he needed time to review the new evidence before he took Wilson's case to trial. Furthermore, Wilson admitted at the motion to withdraw plea hearing that he had agreed to the continuance, had been informed of his speedy trial rights, and had waived his speedy trial rights in open court. Consequently, the facts do not support Wilson's assertion that Wiske was incompetent because he neglected Wilson's case.
Second, Wilson argues that Wiske revealed confidential information to the prosecutor. Wilson contends that he told Wiske that he knew that Baker was not going to take the plea agreement. Then, at a later hearing, the prosecutor mentioned that she knew that Wilson had “asked [Baker] to go to jail and asked [Baker] not to enter the plea thinking that it would somehow better [his] position in trying to withdraw a plea.” Thus, according to Wilson, Wiske must have told the prosecutor that Wilson believed that Baker was not going to accept the plea agreement because otherwise the prosecutor would not have known about this information.
This argument is totally unfounded. Other than his own testimony, Wilson provides no evidence to support his contention that Wiske revealed confidential information. Again, this court does not “reweigh evidence or assess witness credibility” on review. Anderson, 291 Kan. at 855. The trial court clearly made a credibility determination that Wilson's allegations were unfounded because the trial court found in its written order that Wiske did not reveal any confidential information. Moreover, Wilson was in jail when he contacted Baker. Jails frequently monitor inmates' telephone conversations and mail. Therefore, it is possible that a jail worker could have contacted the prosecutor about Wilson's conversation. It is also quite possible that Baker told the prosecutor that Wilson was attempting to get him to not accept the plea agreement. As a result, no evidence supports Wilson's assertion that he was not represented by competent counsel because his attorney revealed confidential information.
Was Wilson Coerced, Misled, or Unfairly Taken Advantage Of?
Next, Wilson argues that Wiske misled, coerced, and took advantage of him by using his feelings for Baker to get him to accept the plea agreement. Wilson also argues that Wiske misled, coerced, and took advantage of him by telling him “the jury pool that was set for his trial contained many people that would likely be intimidated by his appearance” and by the violent nature of his crime.
Regarding his argument that Wiske took advantage of his feelings for Baker to get him to accept the plea agreement, Wilson asserts that Wiske “made several coercive statements” about Baker because Wiske knew that Baker was his brother and that Wilson wanted to protect him. Wilson asserts that based on those coercive statements, he felt “like his only option was to accept a plea so that he could protect his little brother.” Wilson also asserts that Wiske misled him into believing that Baker was involved in a shooting and would face 183 months' imprisonment if he did not accept the plea agreement.
Nevertheless, Wiske testified that he did not coerce, mislead, or threaten Wilson to accept the plea agreement. According to Wiske, the first time Wilson told him he had any concerns about the plea agreement was after Wilson had already accepted the agreement. This is further supported by the fact that Wilson stated that Wiske had explained the plea agreement to him, that he understood the plea agreement, and that Wiske had answered all of his questions regarding the plea agreement at his plea hearing. Once more, this argument comes down to Wilson's word against Wiske's word. Given that the trial court denied Wilson's motion to withdraw his pleas, the trial court clearly made a credibility determination that Wiske did not take advantage of Wilson's relationship with Baker to get Wilson to accept the plea agreement. Furthermore, although it is unclear why Wilson believed Baker was involved in a shooting, as the trial judge noted in its order denying Wilson's motion to withdraw his pleas, Baker was facing a maximum of 176 months' imprisonment if he did not accept the plea deal. Therefore, if Wiske told Wilson that Baker could face up to 183 months' imprisonment, he was not far off with his estimate.
Regarding Wilson's final argument about the jury pool, our Supreme Court has already rejected a similar argument in Macias–Medina, 293 Kan. at 838. In MaciasMedina, Macias–Medina alleged that his attorney told him that the jury was comprised of “ ‘a bunch of white people who hate Mexicans.’ “ 293 Kan. at 838. Macias–Medina's attorney denied stating this, but he did admit that he told Macias–Medina that “one never knows what kind of people are going to make it to the jury box., i.e. whether all jurors will keep their promise to be fair.” 293 Kan. at 838. Our Supreme Court held that MaciasMedina was not misled because
“[t]he attorney shared the harsh reality that the outcome of a jury trial is determined by what the jurors believe the facts to be rather than what the true facts are and that jurors' beliefs are sometimes influenced by human emotions. A defendant should know that reality when making the decision whether to accept a plea agreement ....“ 293 Kan. at 838.
Here, Wiske testified that he did not remember exactly what his specific recommendation about the jury pool was, but he did “have a vague recollection that it was not what [he] deemed to be great.” Wiske did remember that he had some concerns regarding Wilson's physical appearance. Yet, even if Wiske told Wilson that the jury pool might not respond well to his physical appearance or to the fact that he was charged with a violent crime, this could not have misled or coerced Wilson to accept the plea agreement based on our Supreme Court's holding in Macias–Medina. An attorney should use his or her expertise to help a defendant make an informed decision. Based on Wilson's testimony, it seems that if Wiske made comments regarding Wilson's chances with the jury, he made those comments so Wilson could make an informed decision about the plea agreement. It is also worth noting that at the motion to withdraw plea hearing, Wilson recognized that Wiske was just trying to help when he made comments about his physical appearance. Wilson agreed with the prosecutor that a good attorney should tell his or her client's about the makeup of the jury pool and how the client should present himself or herself in court. As a result, Wilson's argument fails.
Did the Trial Court Violate Wilson's Constitutional Rights When It Used His Criminal History to Increase His Sentence Without Proving His Criminal History to a Jury?
Finally, Wilson 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), when it sentenced him based in part on his criminal history without first requiring his criminal history to be proven beyond a reasonable doubt to a jury. Wilson 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 Wilson's criminal history without requiring the criminal history be proven beyond a reasonable doubt to a jury.
Affirmed.