Opinion
No. 106,726.
2012-07-20
Robert Wayne HELMS, Appellant, v. STATE of Kansas, Appellee.
Appeal from Seward District Court; Kim R. Schroeder, Judge. Christine M. Larson, of Sharp McQueen, P.A., of Liberal, for appellant, and Robert Helms, appellant pro se. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Seward District Court; Kim R. Schroeder, Judge.
Christine M. Larson, of Sharp McQueen, P.A., of Liberal, for appellant, and Robert Helms, appellant pro se. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Robert Wayne Helms asks us to reverse the district court's summary denial of his K.S.A. 60–1507 motion and direct the court to allow him to withdraw his guilty pleas. We reverse and remand with directions to set aside those pleas because the district court failed to advise Helms, who appeared pro se at his plea hearing, that postrelease supervision was a part of his possible sentences. Before a district court may accept a plea of guilty the defendant must be informed of the consequences of the plea, including the specific sentencing guidelines level and the maximum penalty provided by law. Failure to do so is a due process violation. Given the harmless error standard recently established by the Supreme Court, we reject the State's argument that this was harmless error because the State failed to prove beyond a reasonable doubt that the constitutional due process error did not contribute to Helms' acceptance of the plea agreement.
The State and Helms negotiated a plea agreement.
The State charged Robert Wayne Helms with one count of forgery in violation of K.S.A. 21–3710, one count of identity theft in violation of K.S.A. 21–4018, one count of possession of marijuana in violation of K.S.A.2008 Supp. 65–4162(a)(3), and one count of possession of drug paraphernalia in violation of K.S.A.2008 Supp. 65–4152(a)(2). At his first appearance, Helms was advised of the charges against him and the possible sentences he faced. Helms told the court that he would proceed pro se.
Later, the district court conducted a plea hearing for this case along with another unrelated case in which the State had charged Helms with two counts of misdemeanor theft. Helms appeared pro se and pled guilty to an amended complaint charging him with one count of forgery in violation of K.S.A. 21–3710, a severity level 8 person felony, and one count of identity theft in violation of K.S.A. 21–4018, a severity level 8 nonperson felony. Before Helms entered his pleas, the district court advised him that if he pled guilty to both counts he was facing 7–23 months' incarceration for each count depending on his criminal history.
Ultimately, the district court ordered Helms to serve consecutive presumptive prison sentences of 18 months for forgery and 8 months for identity theft, to be followed by a postrelease supervision period of 12 months.
In due course, the Kansas Supreme Court considered Helms' motion for summary disposition of his sentencing appeal under K.S.A. 21–4721(g) and (h). The court affirmed in part and dismissed in part under Supreme Court Rule 7.041a (2009 Kan. Ct. R. Annot. 57). State v. Helms, No. 103,362, unpublished opinion filed October 29, 2010.
About a month later, Helms filed a pro se K.S.A. 60–1507 motion asking for his pleas to be set aside. Helms argued that his pleas were not knowingly, voluntarily, and intelligently made because the district court failed to advise him that postrelease supervision was part of his possible sentences once he accepted the plea agreement. Helms subsequently filed a supplement to his K.S.A. 60–1507 motion, alleging that the district court's failure to advise him of the mandatory postrelease supervision violated his due process rights. The district court summarily denied Helms' K.S.A. 60–1507 motion.
We construe Helms' motion as one to correct manifest injustice.
Helms claims the district court erred in summarily denying his K.S.A. 60–1507 motion seeking to set aside his pleas. Helms argues that his pleas were not entered knowingly and voluntarily because the district court violated his due process rights by failing to advise him of the mandatory postrelease supervision prior to sentencing and misstated the law when it advised him of the maximum sentence for each offense.
A district court may allow a plea to be withdrawn after sentencing to correct manifest injustice. K.S.A.2011 Supp. 22–3210(d)(2). We acknowledge that Helms did not argue in his K.S.A. 60–1507 motion that the plea process would have been significantly different had he been told that the potential sentences he faced also included a postrelease supervision period. But Helms filed his K.S.A. 60–1507 motion without an attorney's assistance and pro se motions are liberally construed. See Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004). Helms did argue that the district court should vacate his convictions and sentences because his pleas were null and void and must be set aside. Because Helms filed his K .S.A. 60–1507 motion after sentencing, his motion should be construed as one to withdraw his plea to correct manifest injustice. See, e .g., State v. Kelly, 291 Kan. 563, 566, 244 P.3d 639 (2010).
Some fundamental points of law concerning discretion and manifest injustice are given.
The withdrawal of a plea is subject to the discretion of the court. K.S.A.2011 Supp. 22–3210(d). An appellate court will not disturb a trial court's denial of a motion to withdraw a plea after sentencing unless the defendant establishes an abuse of discretion. State v. Plotner, 290 Kan. 774, 777, 235 P.3d 417 (2010). Judicial discretion varies depending upon the nature of the question presented for determination. An abuse of discretion may be found if the district court's decision is guided by an erroneous legal conclusion or goes outside the framework of or fails to consider proper statutory limitations or legal standards. State v.. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009).
Manifest injustice has been defined as something that is obviously unfair or shocking to the conscience. State v. Barahona, 35 Kan.App.2d 605, 608–09, 132 P.3d 959,rev. denied 282 Kan. 791 (2006). In exercising its discretion under K.S.A.2011 Supp. 22–3210(d), a district court generally considers three factors: (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. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). While the Edgar factors remain viable benchmarks for deciding motions to withdraw pleas, our Supreme Court has reiterated they should not be relied on to the exclusion of other factors. State v. Briefer, 292 Kan. 239, Syl. ¶ 4, 252 P.3d 118 (2011). Here, Helms' argument generally asserts that his pleas were not understandingly made.
Our Supreme Court has clarified that “[t]o be constitutionally valid, guilty or no contest pleas and their resulting waiver of rights “ ‘not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.’ “ [Citations omitted.]” State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 (2007). Before the district court may accept a plea of guilty, the defendant must be informed “of the consequences of the plea, including the specific sentencing guidelines level ... and ... the maximum penalty provided by law....” K.S.A.2011 Supp. 22–3210(a)(2). Due process requires a defendant's plea must be set aside if he or she is not advised of the direct consequences of the plea. See State v. Muriithi, 273 Kan. 952, 964–68, 46 P.3d 1145 (2002).
A defendant must be advised of the postrelease supervision period.
The mandatory period of postrelease supervision is a direct consequence of a conviction because it is definite, immediately follows imprisonment, and is automatic. State v. Moody, 282 Kan. 181, 195–96, 144 P.3d 612 (2005); see Barahona, 35 Kan.App.2d 605, Syl. ¶ 7. It is a part of the sentence just as much as the period of incarceration or the fine that may have been imposed. A defendant has a right to know what that could be before entering a guilty plea.
Here, the district court acknowledged in its journal entry that “the record clearly reflects Helms was not” told about the possibility of postrelease supervision when he entered his pleas. The State concedes that the district court failed to mention the mandatory postrelease supervision requirements until Helm's sentencing hearing. Accordingly, Helm's pleas must be set aside. See Muriithi, 273 Kan. at 964–68.
The State, however, reiterates the district court's ruling in its journal entry that the holding in Barahona controls. In Barahona, the defendant was convicted of robbery and burglary under negotiated guilty pleas. During the first of two plea hearings, the defendant entered a plea of no contest to the robbery charge after the district court advised him that he could potentially serve 31–136 months for a robbery conviction. In due course, the district court sentenced the defendant to a controlling sentence of 36 months for the robbery conviction and 13 months for the burglary conviction, to be followed by a mandatory postrelease supervision period of 24 months. The defendant subsequently filed a motion to withdraw his plea, claiming inter alia that his attorney was ineffective for not advising him of the potential postrelease supervisory period relevant to his convictions as a result of his pleas. The district court subsequently summarily denied the defendant's motion.
On appeal, this court reasoned that Barahona could not demonstrate a due process violation because even if Barahona had served the full 36–month robbery sentence before beginning his 24–month postrelease supervision period, the duration of his total consequences of entering a guilty plea did not exceed the 136–month total advised by the district court. Barahona, 35 Kan.App.2d at 614–15. This court held that the failure to notify the defendant of the consequences of any mandatory postrelease supervision period prior to accepting the defendant's plea does not violate the defendant's due process rights if the total of the defendant's sentence and any mandatory supervised period does not exceed the maximum penalty term advised by the court. 35 Kan.App.2d at 614–15.
The rationale of the holding in Barahona is based on the defendant being advised of the correct sentencing range despite not being told of the mandatory postrelease supervision period. That did not occur here. The district court cited to Barahona and ruled that Helms' due process rights were not violated because the 38–month sentence he received (18 months for forgery 8 months for identity theft 12 months' postrelease supervision period) did not exceed the 46–month maximum penalty term (7–23 months on each charge) that Helms was advised of at his plea hearing. When the district court advised Helms that he was facing 7–23 months' incarceration for each offense, this sentencing range covered the minimum sentence on each offense for a criminal history I conviction through the maximum possible sentence under category A. But Helms was being sentenced in a multiple conviction case. The district court's advice to Helms that he faced a possible maximum penalty of two combined prison terms of 7–23 months, or 46 months, was clearly a misstatement of the possible consequences of his pleas under the sentencing guidelines.
We list the possible sentences.
Under the sentencing guidelines, the sentencing court has the discretion to impose concurrent or consecutive sentences in multiple conviction cases. K.S.A. 21–4720(b). Consecutive sentences consist of an imprisonment term which is the sum of the individual sentences and the longest postrelease supervision term imposed for any of the crimes. K.S.A. 21–4720(b)(1). The sentencing judge must establish a base sentence for the primary crime, or the crime with the highest severity ranking. K.S.A. 21–4720(b)(2). All remaining crimes are nonbase sentences calculated in the criminal history category I column of the sentencing grid. K.S.A. 21–4720(b)(5). If the sentence for the consecutive sentences is a prison term, then the postrelease supervision term established for the primary crime is the term of postrelease supervision. K.S.A. 21–4720(b)(7). Supervision periods are not combined. K.S.A.2011 Supp. 22–3717(d)(1)(F). In concurrent sentences, the defendant serves only the longest sentence, which in turn absorbs the less serious sentence. See Wilkinson v. State, 40 Kan.App.2d 741, 742, 195 P.3d 278 (2008), rev. denied 289 Kan. 1286(2009).
The lack of a presentence investigation should not have prevented the district court from advising Helms correctly. The only distinction between Helms' two crimes in relation to the sentencing grid is that the crime of forgery is a person felony and identity theft is a nonperson felony. Depending on his criminal history, Helms faced possible consecutive sentences of 7–23 months' incarceration for the primary crime followed by 7–9 months' incarceration for the nonbase sentence and 12 months' mandatory postrelease supervision. In short, Helms faced possible total consecutive sentences of 14–32 months' incarceration and 12 months' postrelease supervision.
At the plea hearing, the State told the district court that both parties had agreed the State would recommend both sentences run concurrent with each other and that this concurrent sentence should run consecutive to whatever sentence Helms was awaiting for violating parole. Helms, who did not have the benefit of counsel, told the district court that he agreed with the State's understanding of the agreement. Given these facts and the district court's failure to advise Helms of the direct consequences of his pleas and the possible sentences he faced, it is not a reasonable conclusion that Helms would have been sufficiently aware of the likely consequences of his pleas. See Shopteese, 283 Kan. at 340–41.
We deal with the suggestion that this error is harmless.
The State contends the district court's failure to inform Helms of the direct consequences of the pleas or the mandatory postrelease supervision period was harmless. Our Supreme Court's decision in State v. Ward, 292 Kan. 541, 556–65, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012), clarified the harmless error standard applied to claims of constitutional error. The degree of certainty by which the court must find a constitutional error is harmless beyond a reasonable doubt that there was no impact on the trial's outcome. In other words, the court must find there is no reasonable possibility that the error contributed to the verdict. 292 Kan. at 565. Also, the party benefitting from the error has the burden of proving beyond a reasonable doubt that the constitutional error did not contribute to the verdict obtained. 292 Kan. at 568–69 (citing State v. Kleypas, 272 Kan. 894, 1084, 40 P.3d 139 [2001],cert. denied537 U.S. 834 [2002] ).
The State, as the party benefitting from the error here, has the burden of proving the district court's error was harmless. Other than reciting the basic facts and a conclusory statement that the record clearly reflects Helms made knowing and voluntary pleas, the State fails to brief why the due process violation was harmless. A point raised incidentally in a brief and not argued there is also deemed abandoned. Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008).
The record affirmatively reflects that Helms did not receive his full measure of due process at the time he entered his pleas and that his pleas were not understandingly made. We make this ruling especially since Helms had no counsel with him at the plea hearing.
We reverse the district court's denial of Helms' motion and direct that his pleas be set aside.