Opinion
110,478.
10-17-2014
Earnest E. WALKER, Appellant, v. STATE of Kansas, Appellee.
Krystle M.S. Dalke and Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Lesley A. Isherwood, assistant county attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Krystle M.S. Dalke and Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.
Lesley A. Isherwood, assistant county attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., STEGALL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Earnest Walker appeals the dismissal of his K.S.A. 60–1507 motion seeking to withdraw his guilty plea and to challenge his probation revocation. Walker claims that his counsel was ineffective, that there was manifest injustice, and that he was coerced into entering his plea agreement. The district court denied Walker's motion because it found Walker's trial counsel's performance was reasonable and Walker was not mislead, coerced, mistreated, or unfairly taken advantage of when he entered his plea agreement. The court concluded that his plea was fairly and understandingly made. We see no reason to alter that decision and affirm.
As Walker has served his sentence for forgery and the postrelease supervision period in his sentence has expired, we will not address any challenge to the probation revocation.
Walker consulted with his counsel.
The State charged Walker with two counts of forgery. The court appointed counsel from the public defender's office to represent Walker. At their first meeting, Walker told his attorney of his goals. Walker wanted his counsel to get him released from jail and to seek a plea agreement. In order to accomplish Walker's first goal, Walker's attorney filed a motion to reduce bond.
The court set a hearing for the motion to reduce bond. Prior to the hearing, the State sent Walker's counsel a plea agreement. Walker's counsel discussed the agreement with Walker. Walker expressed some misgivings regarding the two forgery charges. Walker's counsel said there was still a hearing set for the motion and counsel would be “happy to argue a motion and proceed to ... getting ready for trial.” Walker elected to accept the plea agreement with the State; he pleaded guilty to two counts of forgery. Walker was sentenced to 18 months in prison, but was granted 18 months' probation with 12 months' postrelease supervision.
The court revoked Walker's probation in January 2012. Then, on April 10, 2012, Walker filed a K.S.A. 60–1507 motion based on a claim of ineffective assistance of counsel. He claimed he was forced into the plea agreement and he was not allowed to provide witnesses and evidence, and he challenged his probation revocation. The district court held an evidentiary hearing, where both Walker and his trial counsel testified. The district court denied in part and dismissed in part Walker's K.S.A. 60–1507 motion.
The district court dismissed the probation revocation portion of Walker's K.S.A. 60–1507 motion because Walker was no longer subject to a sentence in this case. Walker has served his entire sentence, including the postrelease supervision. He is no longer in the Kansas Department of Corrections' custody. Walker concedes this issue is moot. We agree and we will not address this matter.
The only remaining issue is whether the district court erred by denying Walker's motion and by failing to allow Walker to withdraw his guilty plea.
Principles that guide us.
The statute that controls this case is K.S.A.2013 Supp. 22–3210(d)(2). It provides: “To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.”
We review such issues for an abuse of discretion. State v. Moses, 296 Kan. 1126, 1127, 297 P.3d 1174 (2013).
After a full evidentiary hearing on a K.S.A. 60–1507 motion, such as what occurred here, the district court must issue findings of fact and conclusions of law concerning all issues presented. Supreme Court Rule 183(j) (2013 Kan. Ct. R. Annot. 278). An appellate court reviews the court's findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. Appellate review of the district court's ultimate conclusions of law is de novo. Thompson v. State, 293 Kan. 704, 715–16, 270 P.3d 1089 (2011).
In evaluating a postsentencing motion to withdraw a plea, the district court should consider: (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 understand ingly made. State v. Green, 283 Kan. 531, 546, 153 P.3d 1216 (2007). Other factors may support the denial of a postsentence motion to withdraw a guilty plea. These include: unjustified delay in raising the motion, the defendant's failure to raise the issue in a prior direct appeal or K .S.A. 60–1507 proceeding, prejudice to the State, the defendant's prior involvement in the criminal justice system, and the defendant's receipt of a favorable plea bargain. State v. Moses, 280 Kan. 939, 950–54, 127 P.3d 330 (2006).
Since Walker argues his trial counsel was ineffective and he was coerced into entering a guilty plea, we must employ the following test;
“A two-step test applies when determining whether to set aside a guilty plea because of ineffective assistance of counsel. As the first step, defendant must show that counsel's performance fell below the standard of reasonableness. In the second step, defendant must show that a reasonable probability exists that, but for counsel's errors, defendant would not have pleaded guilty and would have insisted on going to trial. [Citations omitted.]” State v. Adams, 284 Kan. 109, 118, 158 P.3d 977 (2007).
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Consequently, appellate courts review the underlying factual findings for support by substantial competent evidence and the legal conclusions based on those facts de novo. State v. Cheatham, 296 Kan. 417, 430, 292 P.3d 318 (2013).
We briefly review the evidence offered at the hearing on the motion.
Walker testified that his trial attorney indicated that if Walker did not accept the plea agreement, he would not get a bond reduction. Walker's trial counsel disputed this statement and told the court about Walker's goals—to get out of jail and to secure a plea offer from the State. Walker also testified that he “objected in the hearing twice” and conferred with his counsel on the issue. However, the transcript of the plea hearing shows that Walker said, “I have a question first,” and in the second instance he informed the judge he had not spoken with his attorney regarding the mandatory minimum jail terms. In both instances, Walker spoke with his attorney, and the judge confirmed that Walker understood after speaking with his counsel.
Following the evidentiary hearing, the district court denied relief to Walker. The district court noted the following as evidence supporting its decision: The trial counsel's testimony was consistent with statements made at the plea hearing, Walker's testimony was not consistent with statements he made at the plea hearing, and Walker failed to object to the plea until after his probation was revoked. The district court also noted Walker had several prior cases, including a number of thefts and forgeries, and Walker was familiar with the criminal justice system. Furthermore, the district court asked, “Has anybody promised you anything, other than what's in this Plea Agreement, in order to get you to change your plea on these two charges?” Walker responded that nobody promised anything in exchange for his plea.
Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel is deferential and requires consideration of all the evidence before the judge or jury. A reviewing court must strongly presume that counsel's conduct fell within the broad range of reasonable professional assistance. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). The district court recognized this legal principle prior to making its decision. The district court denied Walker's K.S.A. 60–1507 motion because it found Walker's trial counsel's performance was reasonable; Walker was not mislead, coerced, mistreated, or unfairly taken advantage of when he entered his plea agreement; and his plea was fairly and understandingly made.
The district court also found that Walker did not meet the burden of proving that his plea should be withdrawn in order to correct manifest injustice. The decision to deny a motion to withdraw a plea lies within the discretion of the trial court and, based on the above analysis, we find the district court did not abuse its discretion by denying Walker's K.S.A. 60–1507 motion to withdraw his guilty plea.
Finally, Walker claims the district court failed to make factual findings and legal conclusions as required by Supreme Court Rule 183(j). He contends the district court's judgment is not final because it did not address the evidence/witness issue and this claim must be remanded to the district court. However, the district court discussed Walker's claim regarding evidence and witnesses in its order denying the motion.
At the plea hearing, the district court made it clear to Walker that he would have the right to present witnesses and testify at his trial. In addition, the district court held an evidentiary hearing and reviewed the record before it denied Walker's K.S.A. 60–1507 motion.
We hold that it is pointless to remand this case to the district court to make findings on this issue. Such an error is harmless. See Starnes v. State, No. 88,225, 2003 WL 22764417, at *3 (Kan.App.2003) (unpublished opinion).
Affirmed.