Opinion
110,592.
10-24-2014
STATE of Kansas, Appellee, v. Peter CABRERA, Appellant.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and DANIEL L. LOVE, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Peter Cabrera pled no contest to two counts of aggravated battery and one count of aggravated assault. Shortly thereafter, he moved to withdraw his plea, arguing that his attorney coerced him into the agreement and that a severe headache rendered him unable to enter a knowing and understanding plea. The district court conducted a full evidentiary hearing to determine if there was good cause to allow Cabrera to withdraw his plea. After weighing the conflicting evidence, it found Cabrera's plea was freely and voluntarily entered and Cabrera was represented by competent counsel. Because we find that the district court did not abuse its discretion in finding that Cabrera had failed to establish good cause to withdraw his plea, we affirm the district court's decision.
Factual and Procedural History
Cabrera agreed to enter a plea to two counts of aggravated battery and one count of aggravated assault. In the plea acknowledgment, Cabrera indicated that he had not taken any drugs or medications in the last 48 hours, agreed that his attorney had represented him competently, and acknowledged that he understood the consequences of entering the plea. At the plea hearing, held the very day Cabrera agreed to the plea, Cabrera answered affirmatively when asked whether it was his decision to sign the plea agreement. He agreed that he understood the agreement and that he believed it to be in his best interest. Cabrera responded appropriately to each of the district court's questions regarding his waiver of rights and entry of plea, and he never asked for clarification or behaved in a manner that would suggest confusion. He recalled his place of birth, his highest level of education, and his ability to read and understand English. When asked whether he had consumed any substances in the last 24 hours or whether any medications were affecting his judgment, he answered, “No.” Cabrera also responded in the negative when asked if there was any reason for the court to doubt his competency, alertness, and mental capabilities to enter a plea of no contest. Cabrera voiced no complaints about his attorney's representation or the way either the court or his attorney treated him. Cabrera acknowledged that the decision to enter a plea was his own and that his attorney did not force him to plead. The district court ultimately accepted his plea and convicted him of the charges.
Important to this appeal, Cabrera continued to answer questions and demonstrate his understanding of the proceedings throughout the rest of the hearing, which included a discussion of a probation violation on another criminal case. Cabrera asked his attorney how long he would be required to register under the Kansas Offender Registration Act, expressed an interest in leaving Kansas to avoid “trouble,” and explained the nature of his Native American heritage to the district court.
In a letter dated 2 days after the plea hearing, Cabrera requested that the district court allow him to withdraw his plea. Cabrera alleged that during the plea hearing he suffered from a severe headache and drowsiness caused by a reaction to medication. He explained that he could not recall whether he informed the district court about his medication. He also claimed that his attorney, Alice Osburn, manipulated him into accepting the plea. Cabrera repeated these allegations in a motion to withdraw his plea, where he emphasized that he did not understand the plea and that Osburn refused to listen to his request for a trial and instead coerced him into pleading. He later filed three more motions to withdraw his plea, each of which repeated the same essential claims. In the third motion, he also alleged that Osburn knew about his headache but continued to pressure him into pleading. The fourth motion claimed that a doctor at the jail had determined that Cabrera was suffering from an allergic reaction to his medication.
At the hearing to consider the motions, Cabrera testified on his own behalf. Cabrera explained that he had taken an antibiotic for a staph infection and spider bites and that the medication had caused a headache, “a little dizziness, everything.” Cabrera admitted that he failed to tell anyone other than “the lady that gives meds out” about the medication's negative effects. He also acknowledged that he did not tell the district court about his medication. In regards to Osburn's behavior on the day he pled, Cabrera testified that he and Osburn had discussed the possible plea for several hours. Cabrera explained that he and Osburn argued because he wanted to go to trial. He stated, “I didn't understand, but I did tell her that I just want to go to trial. I remember that's all.” Although he admitted to not remembering every detail, he testified that he agreed to the plea because Osburn was “keeping me in [the room where they were discussing the plea] and it made my head hurt so much I was trying to get out.” Cabrera also stated that he did not remember the exact terms of the plea agreement.
On cross-examination, Cabrera admitted that he failed to tell Osburn about the medication but claimed he told her about his headache. When asked whether he remembered presenting arguments at a pretrial motions hearing the day before the plea, Cabrera responded, “Not really.” He did acknowledge being on the same medication during the motions hearing but explained that he took it at a different time than on the day of the plea hearing. Cabrera also testified that he remembered nothing about the other discussions with the district court after he entered his plea. When the State observed that Cabrera claimed to not remember the plea hearing and yet claimed to remember Osburn's behavior and alleged manipulation enough to file motions based on that behavior, Cabrera explained that he filed the motions with help from other individuals at the jail and those individuals helped him fill in the blanks such as the length of time he spent with Osburn.
Despite his claims that Osburn pressured him into signing the plea agreement, Cabrera testified, “The only thing I remember is just asking this and that and telling her I just want to go to trial and arguing with her” and “her kind of keeping me [in the room].” Cabrera testified that he remembered repeatedly telling Osburn he wanted a trial but that Osburn kept him in the room where they were discussing the plea. Cabrera explained that he “heard like a hum” in his head that prevented him from understanding the discussions because his “head was hurting so much.” At the close of cross-examination, Cabrera stated that he always has a headache due to a plate in his head.
After some discussion, Cabrera waived his right to attorney/client privilege, and the State called Osburn to testify. Osburn, an attorney of 20 years who had practiced criminal defense almost exclusively for nearly 15 years, explained that on the day that Cabrera agreed to plead guilty they had come to court to pick a jury for his trial. Osburn testified that when she arrived for jury selection, “[T]he court guard told me my client was in a mood and wanted to talk to me” about the unsuccessful pretrial motions from the previous day. When Osburn met with Cabrera, he behaved “a little like the wind was out of his sails, kind of,” and Osburn offered to talk to the State about a possible plea agreement “if he was interested in that.” Osburn explained that Cabrera had not been interested in a plea previously but that he appeared “depressed and not excited” about going into court.
In terms of plea negotiations, Osburn testified that Cabrera asked pointed questions about the plea agreement (such as why the plea included two counts of aggravated battery when he was only charged with one), engaged in conversations about the length of prison time involved in the plea and the possibility of probation, and discussed the benefits of a no-contest plea versus an ordinary plea. Although Osburn explained that Cabrera believed the plea to be in his best interests, she also testified that “he wanted [her] to tell him what to do” and repeatedly asked her for guidance on deciding whether to plead or not. Osburn stated that Cabrera “didn't want to sign the papers, but he wanted the deal” and that she and Cabrera spent time discussing whether he wanted to sign the agreement or not. Eventually, the State set a deadline for Cabrera to decide, at which time Cabrera elected to plead. Osburn testified that at no time did she pressure or bully Cabrera into accepting the plea agreement. In fact, Osburn stated that she advised him of her opinion on the plea but informed him that the ultimate decision was his own.
Osburn stated that although she knew Cabrera's health history from representing him in the past, he never informed her about any medications or any headaches the day of the plea negotiation and hearing. She further testified that nothing in their interactions suggested he could not understand the proceedings. And although she stated that Cabrera appeared depressed on the day of the plea, Osburn testified that she did not believe his behavior suggested an inability to enter a willing and voluntary waiver of his rights. Instead, Osburn stated that she felt Cabrera “was having second thoughts about his trial”—something she had experienced with other clients. In sum, Osburn testified that Cabrera made the ultimate decision to sign the agreement and enter the plea.
On cross-examination, Osburn testified that Cabrera “was not quite as gung ho as he was the day before” when she met with him on the morning of the plea, which led her to believe he did not want to go forward with the jury trial. She also explained that although she brought up the idea to approach the State about a plea, Cabrera agreed even though he had always previously expressed a desire to go to trial. She reiterated that Cabrera wanted the plea deal, but he “didn't want to sign the papers.” Osburn once again stated that Cabrera never complained of a headache or problems understanding their conversations.
After hearing argument from the parties, the district court denied Cabrera's motion. The judge, who had presided over several of Cabrera's prior hearings and who had accepted Cabrera's plea, noted that Cabrera “made a fairly cogent argument” at the pretrial motions hearing the day prior to the plea; the judge then read from the portion of the plea hearing where Cabrera stated that he was not on medication, that he understood the seriousness of the hearing, and that the district court should consider him “competent, alert and mentally capable of entering a plea.” In conclusion, the district judge stated:
“I've seen Mr. Cabrera in my courtroom on many occasions or several occasions, at least. On the morning that the plea was taken ... Mr. Cabrera, by my observation, was the calmest, most compliant that I have ever seen him. He was clearly rational. He was clearly understanding what was going on. He clearly voiced no indication nor gave any facial expression nor any indication that he was in the slightest bit of pain. He clearly indicated that he understood the plea agreement and the ramifications of that plea agreement. I have absolutely no question that this defendant was represented by competent counsel.”
The district court then determined that Cabrera failed to demonstrate good cause to withdraw his plea and denied his various motions.
Cabrera was ultimately sentenced to 57 months' imprisonment for the three offenses. Cabrera timely appealed.
Analysis
On appeal, Cabrera argues that he demonstrated good cause sufficient to allow him to withdraw his plea and that the district court abused its discretion by finding otherwise. As Cabrera recognizes in his brief, the decision to deny a motion to withdraw a plea is within the sound discretion of the district court. State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011). A district court abuses that discretion if it acts in a manner that (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), cert. denied 132 S.Ct. 1594 (2012). The party asserting the trial court abused its discretion bears the burden of showing such abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
Prior to sentencing, a defendant may withdraw a guilty or no contest plea for good cause shown. K.S.A.2010 Supp. 22–3210(d)(1). Three factors—often called the Edgar factors after the case State v. Edgar, 281 Kan. 30, 127 P.3d 986 (2006) —generally guide a district court's consideration of whether a defendant has demonstrated required good cause. These factors are: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was mislead, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. Not all three factors must apply in the defendant's favor, and the district court may consider other factors, as well. State v. Ebaben, 294 Kan. 807, 812, 281 P.3d 129 (2012). Our Supreme Court has cautioned that “exclusive reliance on or mechanical application of the Edgar factors could distort the concept of good cause.” State v. Macias–Medina, 293 Kan. 833, 837, 268 P.3d 1201 (2012).
On appeal, Cabrera argues that the second and third Edgar factors apply to his situation. He argues Osburn coerced him into accepting the plea and his headache robbed him of the ability to understand the proceedings and knowingly enter a plea.
Beginning with the second Edgar factor, Cabrera contends that he demonstrated that Osburn coerced him into entering a plea by testifying that she refused to allow him to proceed to trial, repeatedly instructed him to accept the plea, and set a deadline for him to either sign the plea agreement or lose the benefit of the deal. However, Osburn's testimony refutes many of these claims. Osburn explained that Cabrera repeatedly asked her for advice as to whether to except the plea and, although he expressed reluctance in signing the paperwork, he wanted the deal the State offered. Additionally, Osburn testified that even though she emphasized that Cabrera would need to decide whether he wanted to proceed to trial, the State set the ultimate deadline. Nothing in Osburn's testimony indicates that Cabrera rejected the deal or asked for a trial during their discussion. Moreover, Cabrera's cross-examination testimony indicates that part of why he felt coerced was his desire to leave the room due to his headache-an external issue that Osburn neither caused nor could control.
On appeal, this court cannot reweigh evidence or reevaluate witness credibility. Anderson, 291 Kan. at 855. Here, the district court clearly believed Osburn's testimony to be more credible than Cabrera's testimony. Additionally, Cabrera signed documents acknowledging that he entered his plea of his own volition and stated aloud at the plea hearing that no one pressured or coerced him. He voiced no complaints about Osburn's representation. Osburn testified that Cabrera never mentioned the headache or its effects on his decision-making process during their lengthy discussion. And even if Cabrera's headache or his discussion with Osburn (which he perceived to be argumentative) influenced him to sign the plea agreement, the psychological influence of a defendant's particular situation or personal considerations on his or her decision to accept a plea agreement is not enough to constitute coercion. See Wippel v. State, 203 Kan. 207, 209, 453 P.2d 43 (1969). In short, the district court did not abuse its discretion in finding that Osburn adequately represented Cabrera during the plea negotiations and did not coerce him into accepting the State's offer.
Turning next to the third Edgar factor, Cabrera argues that his plea was not fairly and understandingly made due to the effect of the antibiotic and his severe headache. The Kansas Supreme Court considered a similar situation in State v. Frost, No. 100,743, 2010 WL 1379112 (Kan.2010) (unpublished opinion). There, the defendant denied being under the influence of any drugs or alcohol at the plea hearing and indicated that he was of a clear mind and that he understood the proceedings. But he later moved to withdraw his plea before sentencing, claiming that his pain medication rendered him unable to enter into a knowing and voluntary plea. The district court denied the motion. Like in the instant case, the defendant spoke to his attorney for quite some time while allegedly under the influence of pain medication, and his attorney observed nothing that suggested the defendant was not aware of the proceedings. Finding that the district court determined after inquiry that the defendant was competent to enter the plea and that the defendant's attorney did not notice the influence of drugs on his client, the court affirmed the district court's decision. 2010 WL 1379112, at *4 ; see also State v. Christensen, 23 Kan.App.2d 910, 913, 937 P.2d 1239 (1997) (holding “that a defendant who is taking prescription drugs, and who informs the court that he or she is not under the influence of any intoxicating drugs, is able to make a voluntary plea”), disapproved on other grounds by State v. Bolin, 266 Kan. 18, 968 P.2d 1104 (1998).
Despite Cabrera's insistence that his medication interfered with his ability to understand the plea negotiations and hearing, Osburn testified that Cabrera engaged in discussion about the plea and asked questions when he needed clarification. In fact, Osburn testified that the only irregularity in Cabrera's behavior was his subdued manner. As the State observed during cross-examination, Cabrera recalled arguing with Osburn and Osburn's alleged coercion, signs that his medication did not render him totally unaware of that day's events. Cabrera also conversed with the district judge about leaving Kansas and his Native American heritage, details that show his engagement with the hearing—even though he later claimed to not remember that discussion.
Our Supreme Court has previously noted that the judge who presides over a plea hearing is in the best position to observe the defendant's comportment at that hearing and, in turn, compare it to the testimony and evidence presented at a motion to withdraw a plea. See Macias–Medina, 293 Kan. at 839. Here, the same district court judge observed Cabrera's demeanor not only on the day of the plea hearing, but also at the hearing the day before. After observing Cabrera's behavior, questioning him during the plea colloquy, and conducting the probation violation hearing immediately following the plea, the judge determined that Cabrera clearly understood the plea and its ramifications.
This court cannot reweigh the evidence or witness credibility on appeal. See Anderson, 291 Kan. at 855. Here, the district court clearly did not believe Cabrera's allegations regarding his headache or regarding Osburn's coercion. Accordingly, the district court determined that Cabrera failed to prove the existence of good cause and denied his motion to withdraw plea. It is clear from the record that this decision was not fanciful, arbitrary, or unreasonable. Accordingly, we affirm the district court's ruling.
Affirmed.