Opinion
No. 107,088.
2013-03-1
STATE of Kansas, Appellee, v. Francisco CHAVARIN, Jr., Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge. Mark T. Schoenhofer, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge.
Mark T. Schoenhofer, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this appeal, Francisco Chavarin, Jr., contends the district court erred when it refused to allow him to withdraw his plea of guilty to aggravated robbery. We find no error and affirm.
Chavarin makes a plea bargain.
The State charged Chavarin in juvenile court with aggravated robbery, in violation of K.S.A. 21–3427, in August 2007. The State alleged that Chavarin, while armed with a handgun, carjacked a pickup truck from a car wash in Wichita. Chavarin was 17 years old at the time of the crime. After taking evidence on the State's motion seeking the court's permission to try Chavarin as an adult, the court granted the motion.
Then, after the order to stand trial as an adult, Chavarin elected to make a plea agreement, pleading guilty to one count of aggravated robbery in violation of K.S.A. 21–3427. In exchange for Chavarin's plea, the State agreed to recommend the standard presumptive sentence of 216 months' imprisonment based on Chavarin's criminal history score of B. Also, the State agreed to join Chavarin's motion for downward dispositional departure to probation.
Prior to making his plea, the trial court told Chavarin the nature of the charges in the complaint, the right to be presumed innocent, the right to a speedy trial either before the court or a jury, the State's burden of proof, the right to have an attorney present at all stages of the proceedings, the right to confront and cross-examine witnesses appearing in support of the allegation in the complaint, the right to subpoena witnesses, the right to testify or decline to testify, the right against self-incrimination, the right to file a motion for a new trial if found guilty, and the right to appeal his conviction. Chavarin stated that he understood each right. He then pled guilty.
After concluding that Chavarin entered the plea knowingly, voluntarily, and intelligently, the trial court inquired into the factual background. The trial judge asked Chavarin to “[p]lease tell me in your own words why you think you are guilty of aggravated robbery.” The following colloquy took place:
“THE DEFENDANT: Because I was the person who stole the—I assisted with the person that stole the vehicle.
“THE COURT: You were assisting others to take a 2002 Ford pickup?
“THE DEFENDANT: Yes, sir.
“THE COURT: And did you take that from the owner by force or threat?
“THE DEFENDANT: The other guy took it by force or threat, but I helped him.
“THE COURT: The other was by force or threat?
“THE DEFENDANT: Yes, but I helped.
“THE COURT: You helped him in that, and that other person did it by force or threat. Did [he] have a handgun?
“THE DEFENDANT: Yes, [he] did.
“THE COURT: And you understand that I'm sure Mr. O'Hara [trial counsel] has explained to you that, when you aid and abet somebody else commit a crime, you are just as guilty as the principal, as if you had done it yourself?
“THE DEFENDANT: Yes, sir.”
Following the plea colloquy, the trial court accepted the plea and pronounced Chavarin guilty of aggravated robbery.
After that, when he was sentenced, the parties agreed Chavarin's criminal history placed him in Category B of the sentencing grid. After hearing arguments on Chavarin's motion for departure, the court imposed a mitigated presumptive sentence of 206 months' imprisonment and 36 months' postrelease supervision. The sentencing court then granted Chavarin's motion for a downward dispositional departure and placed him on 36 months' probation at a residential community corrections program. The sentencing court advised Chavarin that his probation period was “zero tolerance.” Chavarin did not appeal.
In July 2010, the district court revoked Chavarin's probation for failing to obey the rules and regulations of residential community corrections. Based on an agreement between the parties, the district court ordered Chavarin to serve a modified underlying sentence of 120 months' imprisonment instead of the original 206 months. Chavarin did not appeal.
About a year later, Chavarin asked to withdraw his plea of guilty entered on December 10, 2007. His motion alleged that (1) he was factually innocent of the crime of aggravated robbery; (2) he was denied due process during the preliminary hearing because the trial court received evidence of an unnecessarily suggestive lineup used to identify him as the suspect; (3) the police “coerced” Rudolfo Luna–Reyes to identify Chavarin as the man who stole his truck; (4) he received ineffective assistance of counsel at his plea hearing; and (5) the trial court did not receive a sufficient factual background to support accepting his plea of guilty.
The State responded by arguing that Chavarin's motion was untimely under K.S.A.2012 Supp. 22–3210(e)(1). The State argued that Chavarin failed to present evidence of excusable neglect as required under K.S.A.2012 Supp. 22–3210(e)(2) to justify an extension of the 1–year time limitation. The State asked for a ruling on the excusable neglect question before having to respond to the merits of Chavarin's motion.
After hearing 2 days of testimony on the motion, the same district court judge that accepted Chavarin's plea considered Chavarin's motion to withdraw plea. In addition to testifying himself, Chavarin presented testimony from six witnesses: (1) Jeffrey Nemmers, a supervisor at the Sedgwick County Department of Corrections juvenile detention center; (2) Rosa Chavarin, Chavarin's mother; (3) Rena Dominguez, Chavarin's common-law spouse; (4) Rudolfo Luna–Reyes; (5) Javier Luna–Reyes; and (6) Gary Eaves, a private investigator hired by Chavarin.
In turn, the State offered testimony from Charles O'Hara, Chavarin's trial counsel. The district court held Chavarin had failed to establish manifest injustice and denied the motion to withdraw his plea. The district court declined to address the merits of the State's argument that Chavarin failed to demonstrate excusable neglect under K.S.A.2012 Supp. 22–3210(e)(2).
In this appeal, Chavarin argues that the district court abused its discretion in denying his motion to withdraw plea. Chavarin raises four arguments to support his claim of manifest injustice: (1) Chavarin's trial counsel was ineffective; (2) Chavarin was factually innocent; (3) the police used coercive tactics on the witnesses to identify Chavarin; and (4) the trial court did not receive a sufficient factual basis to support Chavarin's plea of guilty.
We first review some useful points of law.
To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea. K.S.A.2012 Supp. 22–3210(d)(2). “Manifest injustice” has been interpreted to mean “ ‘obviously unfair” ’ or “ ‘shocking to the conscience.’ [Citations omitted.]” Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007).
The withdrawal of a plea is subject to the discretion of the court. K.S.A.2012 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. 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), cert. denied132 S.Ct. 1594 (2012).
In exercising its discretion under K.S.A.2012 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. See 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. Bricker, 292 Kan. 239, 245, 252 P.3d 118 (2011).
We deal with the question of timeliness.
The State maintains that the district court should have denied Chavarin's motion as untimely based on K.S.A.2012 Supp, 22–3210(e)(1). A motion to withdraw a plea after sentencing must be brought within 1 year of:
“(A) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (B) the denial of a petition for writ of certiorari to the United States [S]upreme [C]ourt or issuance of such court's final order following the granting of such petition.” K.S.A.2012 Supp. 22–3210(e)(1).
Because the time limitation for filing a motion to correct an illegal sentence became effective on April 16, 2009, Chavarin's deadline to file a motion to withdraw plea regarding his preexisting claim expired in April 2010. See State v. Szczygiel, 294 Kan. 642, Syl. ¶ 2, 279 P.3d 700 (2012); State v. Benavides, 46 Kan.App.2d 563, Syl. ¶ 3, 263 P.3d 863 (2011).
Further, the State raised this issue with the district court at the hearing on Chavarin's motion. After the district court denied Chavarin's motion, the State asked the district court whether it found excusable neglect or not. The district judge responded:
“You know, I approach this on—I'm not going to decide this case on ah-hah, got you, beyond the time limit. I took the time and effort to allow two days of hearing to allow Mr. Chavarin to have his day in court, present any evidence he wanted to this Court to try to set aside his plea, so the Court proceeding in that fashion, whether 1 found excusable neglect or not, has rendered that issue moot.”
In other words, the court failed to decide the matter of excusable neglect.
But the State has made no cross-appeal of that adverse ruling, and we cannot review the issue. K.S.A.2012 Supp. 60–2103(h) requires an appellee to file a notice of cross-appeal from adverse rulings in order to obtain appellate review of those issues. See Mid–Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 191–92, 106 P.3d 483 (2005).
We focus on the effectiveness of defense counsel.
Any claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089 (2011).
“A defendant filing a postsentence motion to withdraw plea under K.S.A. 22–3210(d) that alleges ineffective assistance of counsel due to deficient performance must meet constitutional standards to demonstrate manifest injustice.” Bricker, 292 Kan. at 245. Consequently, Chavarin must meet the Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), test and demonstrate that (1) counsel's performance fell below the objective standard of reasonableness and (2) there is a reasonable probability that but for counsel's errors, the result of the proceeding would have been different. See Bricker, 292 Kan. at 245–46;Chamberlain v. State, 236 Kan. 650, 656–57, 694 P.2d 468 (1985) (adopting Strickland standards). A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. State v. Gleason, 277 Kan. 624, 644, 88 P.3d 218 (2004). Chavarin had the burden of proving by a preponderance of the evidence that he was entitled to relief. See Supreme Court Rule 183(g) (2012 Kan. Ct. R. Annot. 274.)
Chavarin's contention that his trial counsel “induced” his plea is really a challenge to the voluntariness of his plea. Specifically, Chavarin argues his plea was deprived of its voluntary nature because his trial counsel took advantage of Chavarin's age and “severe learning disability” to induce Chavarin to enter into the plea agreement premised on his trial counsel's “promise of immediate release” from custody. Chavarin maintains that he only pled guilty because of this inducement.
Our review reveals that Chavarin's contention that he did not voluntarily enter his plea lacks support in the record. Chavarin's trial counsel testified that he discussed with Chavarin his plea negotiation conversations with the district attorney and the presumption of imprisonment in light of Chavarin's probable criminal history of B. Chavarin's trial counsel also testified he ultimately advised Chavarin that even though he thought the State “had problems with their case, ... the better risk was to go with the plea, but that was totally up to him.”
Also, Chavarin's prior testimony is directly contrary to the argument he now makes on appeal. When the trial court specifically asked Chavarin if there were any threats or promises made to him during the plea negotiations and whether he suffered from any type of mental problem, medical condition, or physical condition that would affect his ability to understand his rights, Chavarin responded, “No.” More importantly, Chavarin also testified that the services of his attorney had been satisfactory to that point. During the evidentiary hearing, Chavarin went so far as to claim that O'Hara “told” him to testify that he assisted the person that took the truck. But Chavarin also testified he did not want to go to prison and liked that the State had agreed to probation under the plea agreement and that he did in fact receive probation.
Nothing in the record suggests Chavarin's trial counsel's performance fell below the objective standard of reasonableness. At all times during the plea negotiations, Chavarin benefitted from competent counsel who acted in the best interests of his client. The ultimate decision whether to accept the plea, however, rested squarely on Chavarin. He was faced with a choice of pleading guilty and possibly receiving the bargained-for result of probation or going to trial and, if convicted, receiving a lengthy presumptive sentence ranging from 206 to 228 months' incarceration. After consulting with his trial counsel and being advised of the possible penalties, Chavarin chose to plead guilty.
Finally, Chavarin's contentions that his trial counsel was ineffective for failing to file a motion to suppress, notice of alibi, and conduct an independent investigation are essentially based on his belief that such actions would have affected whether the State could show probable cause or present sufficient evidence to convict Chavarin, thus influencing Chavarin's decision to plead. This argument completely overlooks the effect of his guilty plea. When a defendant in a criminal proceeding enters a voluntary plea of guilty, he or she waives any irregularities that might have occurred in the proceedings prior thereto. See Jones v. State, 207 Kan. 622, 625, 485 P.2d 1394 (1971). Also, in Young v. State, 206 Kan. 318, 319, 478 P.2d 194 (1970), the court held that the defendant's claim that no probable cause existed for the issuance of an arrest warrant was waived by the defendant's guilty plea.
Under the doctrine stated in Chamberlain, 236 Kan. at 659–60, we owe deference to the judge who saw all of the proceedings first hand as they happened. Here, the same district court judge who presided over the evidentiary hearing on Chavarin's motion to withdraw plea also presided over Chavarin's original plea hearing. The district court correctly ruled that Chavarin did not have ineffective assistance of counsel.
We do not reweigh evidence.
A district court may grant a defendant's postsentence motion to withdraw plea and set aside the resulting conviction where the defendant comes forward with new evidence that so undercuts the factual basis of the plea that the State could not have proved its case beyond a reasonable doubt. The factual basis for a plea is undermined when “new evidence disproves an element of the crime.” State v. Green, 283 Kan. 531, 547, 153 P.3d 1216 (2007).
Here, at the preliminary hearing, the State presented the testimony of Rudolfo Luna–Reyes, the owner of the truck, who identified Chavarin as the individual with the handgun who committed the carjacking. Javier Luna–Reyes, who witnessed the crime, testified that he could not positively identify Chavarin as a suspect. Then, at the hearing on Chavarin's posttrial motion, where evidence was heard by the court, Rudolfo Luna–Reyes recanted his earlier identification of Chavarin as the principal with the handgun and testified that only one person stole his truck. Javier Luna–Reyes testified that the suspect who stole the truck acted alone, had a “more beat up” appearance than Chavarin, and that he observed this different suspect in Wal–Mart sometime after the preliminary hearing. Of note, Dominguez testified that after the preliminary hearing, but before Chavarin's sentencing, she informed Chavarin's trial counsel of her conversation with Javier Luna–Reyes regarding the same information he testified to at the evidentiary hearing. Resolution of which version of the two witnesses is true, however, turns on a credibility determination. Appellate courts do not reweigh the evidence or assess witness credibility. Instead, appellate courts give deference to the trial court's findings of fact. State v. Appleby, 289 Kan. 1017, 1038, 221 P.3d 525 (2009).
Therefore we must review the district court's factual findings in denying Chavarin's motion to withdraw his plea. A district court's factual findings are reviewed for substantial competent evidence. State v. Gonzalez, 290 Kan. 747, 756, 234 P.3d 1 (2010). In State v. Bey, 270 Kan. 544, 558–59, 17 P.3d 322 (2001), the court found that the district court did not abuse its discretion in denying the withdrawal of a guilty plea based on newly discovered evidence after reviewing the district court's evidentiary hearing findings for substantial competent evidence.
Clearly, the district court held a full hearing on Chavarin's motion. In the end, the record indicates the district court found two reasons this new testimony indicating Chavarin was not the principal did not exonerate Chavarin. First, Chavarin's own admission to committing the crime as an aider and abettor, not the principal. As the district court noted:
“[Chavarin] was not found to be the principal with the gun and he was not found guilty on that basis. The Court took him at his face value, that he aided and abetted.... He said he didn't do it, but I helped the person with the gun.”
Second, the district court noted that it had to consider the preliminary hearing testimony that Chavarin was “in that truck or running from that truck within minutes of this robbery.”
At the preliminary hearing, Deputy Clark testified that after attempting to pursue the stolen truck and briefly losing sight of it, he located the truck sitting in the middle of a dead-end road. At that point, Deputy Clark observed “both doors standing wide open and two Hispanic males were running away from the vehicle.” He proceeded to give foot pursuit to one suspect wearing all white running ahead of a second suspect wearing a blue sweatshirt. Deputy Clark's foot pursuit focused on the second suspect, who kept looking back at him as he ran. Deputy Clark lost sight of the second suspect. The Wichita Police Department subsequently notified Deputy Clark they had one of the suspects in custody. Deputy Clark advised the Wichita Police Department that the individual without a blue sweatshirt sitting in the back of the patrol car was the suspect with the blue sweatshirt. Deputy Clark testified that he found the blue sweatshirt in a backyard.
After a full evidentiary hearing, the district ourt concluded that the evidence provided no basis for withdrawing the plea. The district court's factual findings are supported by substantial competent evidence.
Some claims by Chavarin are waived by his plea of guilty.
Chavarin next argues Rudolfo Luna–Reyes' preliminary hearing testimony identifying Chavarin as the principal who stole his truck was unreliable because the police coerced Rudolfo Luna–Reyes during the show-up identification to identify Chavarin. Chavarin maintains he was denied due process because the trial court considered Rudolfo Luna–Reyes' unreliable or inadmissible identification in its probable cause determination. Chavarin points to the evidentiary hearing testimony of Rudolfo Luna–Reyes where he recanted his earlier identification during the preliminary hearing and testified he was taken to a showup identification where police told him Chavarin was the person they had arrested and that “[Chavarin] was driving the truck, [Chavarin] was in the truck and [Chavarin] threw away his clothes.”
In Jones, a K.S.A. 60–1507 movant sought to withdraw his guilty plea, claiming it was coerced and involuntary. Movant claimed inter alia that his constitutional rights were violated because he did not have counsel during a one-man lineup. The Kansas Supreme Court noted that it has long been the law of the state that an accused's voluntary guilty plea waives any irregularities prior thereto, even though the defects may raise constitutional questions. The court held that the movant was not entitled to relief because “[o]nce a plea of guilty has been entered there is no necessity to introduce any evidence to maintain the conviction. Therefore, whether evidence of identification from the line up would have been admissible at a trial is immaterial.” Jones, 207 Kan. at 625–26.
In our view, Chavarin's due process argument is similarly immaterial. See Jones, 207 Kan. at 625–26. The district court aptly reached the same conclusion, ruling that Chavarin waived his due process claim and any other irregularities on the day he entered his plea of guilty.
There is a factual basis for a finding of guilt based on a plea of guilty.
Chavarin claims there was an insufficient factual basis to accept his plea. K.S.A.2012 Supp. 22–3210(a)(4) authorizes the trial court to accept a plea when, among other requirements, “the court is satisfied that there is a factual basis for the plea.” To determine whether a plea is supported by a factual basis, the trial court must establish that all elements of the crime charged are present. State v. Adams, 284 Kan. 109, 117, 158 P.3d 977 (2007). In Adams, the Kansas Supreme Court noted:
“[T]he requirement of a factual basis for a plea may be satisfied by a complaint or information given or read to the defendant which sets forth the factual details and essential elements of the particular crime charged, by the evidence presented to the court by the prosecutor, by a statement of the facts made by the defendant at the hearing, or if the judge accepting the defendant's plea conducted the defendant's preliminary examination. [Citation omitted.]” 284 Kan. at 117.
Following the plea colloquy between the judge and Chavarin, the State asked for clarification regarding whether there was an adequate factual basis for the aiding and abetting theory given that the State had charged Chavarin as a principal. The following discussion was reported:
“MR. INTAGLIATA [prosecutor]: Your Honor, if I may, and I know this is just a matter of the record, the State had operated under or is taking the position that Mr. Chavarin was the principal in the case of the aggravated robbery. Would this have been done by nolo plea, that would have been the State's position. I think there is an adequate factual basis for the aid and abet theory also, but I want to make sure it's solid under either theory. He is admitting he was an active participant in the offense that involved a gun in Sedgwick County, Kansas, and the truck was taken.
“MR. O' HARA [defense counsel]: Your Honor, I think he has already done that.
“THE COURT: I agree. I think that is an accurate statement. He has agreed that he was involved in the taking of the truck with another individual that had a handgun and he understands he is as guilty as if he did it himself, and if in fact he was just aiding and abetting.
“MR. INTAGLIATA: Thank you, Your Honor.”
During the plea hearing, Chavarin's trial counsel clearly agreed with the State that Chavarin's admissions provided an adequate factual basis to support the aiding and abetting theory. Chavarin does not complain on appeal that his counsel was ineffective for doing so. A defendant may not invite error and then complain of the error on appeal. State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011). Regardless, Chavarin, as the district court noted, by his own admission affirmed and reaffirmed that he aided and abetted another person armed with a dangerous weapon commit aggravated robbery. On four occasions during the colloquy, Chavarin admitted he helped another person armed with a handgun steal the truck in question by force or threat. All elements of the crime charged are present. See Adams, 284 Kan. at 117. The district court correctly ruled that there was a sufficient factual basis to accept Chavarin's plea for aiding and abetting aggravated robbery.
Here, the State charged Chavarin with aggravated robbery under K.S.A. 21–3427. Aggravated robbery is a robbery “committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” A robbery is defined under K.S.A. 21–3426 as “the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” But as the district court noted, the trial court accepted a plea of guilty from Chavarin as an aider and abettor. K.S.A. 21–3205 provides, in relevant part: “(1) A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.”
We hold the district court properly concluded that Chavarin was not entitled to relief under K.S.A.2012 Supp. 22–3210(d)(2). Chavarin has failed to meet his burden to show that the district court abused its discretion.
Affirmed.