Opinion
111,155.
05-08-2015
STATE of Kansas, Appellee, v. Joseph DAVIS, Appellant.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Rebecca J. Faurot, county attorney, and Derek Schmidt, attorney general, for appellee.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Rebecca J. Faurot, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
LEBEN, J.
Joseph Davis appeals the district court's denial of his motion to withdraw his no-contest plea to attempted aggravated burglary. The district court has the discretion to allow plea withdrawal, but when the defendant doesn't make the request until after he has been sentenced, as occurred here, the district court may do so only to correct manifest injustice. See K.S.A.2014 Supp. 22–3210(d)(2). Davis contends that he showed that manifest injustice would result if he were not allowed to withdraw his plea because his attorney coerced him into accepting the plea by saying he could not get a fair trial in Scott County and because medications he was taking kept him from understanding the plea agreement.
But the district court held an evidentiary hearing and concluded after testimony from Davis' defense attorney that the attorney did nothing to coerce Davis. The court also concluded that Davis understood the plea agreement and his rights when he entered into it—conclusions based both on the defense attorney's testimony about her interactions with Davis and the district court's own observations from court hearings and transcripts.
We review the district court's denial of a motion to withdraw plea for abuse of discretion, State v. Bricker, 292 Kan. 239, 244, 252 P.3d 118 (2011), and that occurs only when the district court based its decision on an error of fact or law or when its decision is so unreasonable that no reasonable person would agree with it. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert denied 132 S.Ct. 1594 (2012). Here, the district court's conclusion that Davis was not coerced is supported by the testimony of Davis' prior attorney, and the court's conclusion that Davis understood his rights—despite being on medications—is supported by that attorney's testimony and the district court's own observations. We find no error in the district court's denial of Davis' motion.
Factual and Procedural Background
On February 8, 2010, the State filed a complaint alleging Davis had committed aggravated burglary, a severity–level–5 person felony. Davis appeared for the preliminary hearing with his counsel, Therese Hartnett. By March 17, 2010, the parties had reached a plea agreement. Under that agreement, Davis waived preliminary examination and proceeded to arraignment on an amended charge of attempted burglary, a severity–level–7 person felony. Davis faced 34 months in prison on the amended charge—about 100 months less than he faced on the original charge.
At a hearing, the district judge explained to Davis the legal consequences of entering a guilty plea. Hartnett recited the possible penalties of attempted burglary, and the prosecuting attorney provided the factual basis for the charge. The district judge asked Davis whether he understood the terms of the plea bargain and had discussed the plea with counsel. Davis responded, “Yes, Your Honor.” The judge asked Davis whether he had been coerced or forced into entering his plea, and Davis responded, “No, Your Honor.” Davis pled no contest to the amended charge, and the district court found him guilty of attempted aggravated burglary based on that plea. In April 2010, the district court sentenced Davis to 32 months in prison.
On May 6, 2010, Davis sent a letter to the court expressing his desire to withdraw his plea. The court did not accept the letter as a motion to withdraw his plea, so Davis submitted a formal motion in September. The district court denied his motion without holding an evidentiary hearing, saying it was “based upon ineffective assistance of counsel and is more properly addressed in a motion brought pursuant to K.S.A. 60–1507.” Davis then filed six motions with the district court, including a second motion to withdraw plea. The court again denied the motions. In his plea-withdrawal letter and motions, Davis alleged that at the time of his plea, he “did not understand what was going on” because of medications he was taking. Davis also alleged that Hartnett had pushed him to plead by saying that “in Scott County a Blackman charged was automatically guilty, and he had no chance for acquittal.” He also alleged that Hartnett had refused to submit a motion to withdraw his plea. After the district court denied the motions, Davis appealed.
While his first appeal was pending, Davis filed a motion for habeas corpus relief under K.S.A. 60–1507, and the district court held an evidentiary hearing. Hartnett testified at the hearing about her meetings with Davis before his plea. Hartnett also testified that she was aware Davis was on medications for psychological problems but that “he seemed perfectly coherent,” “seemed to understand,” and “asked pertinent questions.” Hartnett denied that she had ever told Davis he couldn't get a fair trial in Scott County.
After Hartnett's testimony concluded, Davis decided to withdraw his habeas motion because he was concerned he might receive a greater sentence after trial on the original charge than he received for the charge he pled to. Before granting the motion to withdraw the habeas motion, the district judge asked Davis if he was taking any medications or suffered from any mental or emotional illness that would impair his ability to make an informed decision. Davis responded, “No, Your Honor.” The judge also asked whether Davis had made his decision based on any threats or promises and whether anyone had told him that “a black man can't get a fair decision in Scott County.” Davis again responded, “No, Your Honor.” After an off-the-record discussion between Davis and his attorney, the attorney told the court that his client was aware that if he pursued his pending appeal and the appellate court allowed him to withdraw his plea, it could “put him right back in the same position” that he sought to avoid by withdrawing his K.S.A. 60–1507 motion. The district court granted Davis' request to withdraw his K.S.A. 60–1507 motion.
In 2013, this court reviewed Davis' appeal of the district court's original denial of his motion to withdraw plea. State v. Davis, No. 107,023, 2013 WL 1010300 (Kan.App.2013) (unpublished opinion). Our court found that Davis was entitled to an evidentiary hearing on his motion and remanded to the district court to consider both whether Davis' counsel was ineffective and whether Davis' medications prevented him from understanding his plea. 2013 WL 1010300, at *4. This court also granted Davis leave to file a supplemental pro se brief to argue that the factual basis for the plea was inadequate. 2013 WL 1010300, at *4.
On remand, the district court held an evidentiary hearing. At the hearing, Hartnett testified that she had spent approximately 5 hours with Davis discussing the case. She testified that, during their discussions, she had informed Davis of his rights and the possible sentence and consequences of the plea on his current parole. Hartnett testified that Davis had been anxious and on medications but that he had been “totally coherent,” seemed to understand everything she discussed with him, and “seemed pretty intelligent.” Hartnett again denied that she had told Davis he couldn't get a fair trial in Scott County. Davis testified that his medications at the time of his plea and sentencing had prevented him from understanding what was going on. Davis also testified that he had tried to contact Hartnett multiple times to withdraw his plea but that she had never responded.
The district court denied Davis' motion to withdraw his plea. It found that Davis' medication did not warrant withdrawing his plea because (1) Davis provided no expert testimony regarding the medical effects of his medications, and (2) transcripts of the proceedings before, during, and after Davis entered his plea reflected that he was thinking clearly while taking his medications. The district court also found that the record did not support Davis' claim that his attorney coerced him into entering his plea. Davis filed a timely notice of appeal.
Analysis
I. The District Court's Denial of Davis' Postsentence Motion to Withdraw His Plea Was Not an Abuse of Discretion.
We have already noted that a defendant may withdraw a plea after sentencing only to avoid manifest injustice. Kansas courts generally consider “manifest injustice” to mean something that is “ ‘obviously unfair’ “ or “ ‘shocking to the conscience.” ‘ State v. Kelly, 291 Kan. 868, 873, 248 P.3d 1282 (2011) (quoting Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 [2007] ). In applying that standard to a motion to withdraw a plea, Kansas courts consider what we generally call the “Edgar 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. Atteberry, 44 Kan.App.2d 478, 483, 239 P.3d 857 (2010) (citing State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 [2006] ), rev. denied 292 Kan. 966 (2011). We then review the district court's decision for abuse of discretion. Bricker, 292 Kan. at 244.
1. The District Court Reasonably Concluded That Davis Had Effective Counsel and Was Not Coerced into Entering His Guilty Plea.
Davis argues that he had ineffective counsel and that he was coerced into entering his plea because his attorney told him that he could not get a fair trial as a black man in Scott County.
A claim of inadequate counsel requires the defendant to show that his or her attorney's performance fell below an objective reasonableness standard and that there's a reasonable probability that, but for the attorney's inadequate work, the defendant would not have entered the plea and would have insisted on going to trial. Wilkinson v. State, 40 Kan.App.2d 741, 743, 195 P.3d 278 (2008), rev. denied 289 Kan. 1286 (2009). Defendant's claim of coercion depends on whether his attorney prevented him from exercising free will in the decision to plead. State v. Macias–Medina, 293 Kan. 833, 838, 268 P.3d 1201 (2012). A defendant's own statements and demeanor at court proceedings may support the district court's finding that the defendant had not been coerced and had voluntarily entered into a plea. State v. Bey, 270 Kan. 544, 552–54, 17 P.3d 322 (2001) ; State v. Reed, 248 Kan. 506, 511–12, 809 P.3d 553 (1991). Evidence that a defendant appeared to be under stress does not necessarily support a finding that the defendant was under duress or coerced into entering a plea. Bey, 270 Kan. at 552–54.
In Macias–Medina, a case with similar facts to those at issue here, the Kansas Supreme Court reviewed whether a defendant was misled and “ ‘forced’ “ into entering his guilty plea because he claimed that his attorney had told him a jury might have a racial prejudice against Mexicans and had persuaded him not to proceed to trial. The court first addressed whether the attorney's comments supported a claim of incompetent counsel. On that issue, the court affirmed the district court's finding that the plea was not the product of dishonesty or misinformation because the attorney merely shared the harsh reality that jurors are sometimes influenced by human emotions. 293 Kan. at 838.
In deciding the second issue in Macias–Medina —whether the defendant was coerced—the Kansas Supreme Court emphasized that the district judge was able to observe the defendant at the plea hearing and at the hearing on the defendant's motion to withdraw his plea. The judge asked the defendant whether he (1) had been threatened or coerced, (2) had understood the charges against him, and (3) had entered the plea voluntarily. The Kansas Supreme Court upheld the district court's denial of the defendant's motion to withdraw plea because the district court was in the best position to resolve conflicts in testimony and determine that the defendant knowingly and voluntarily entered his plea. 293 Kan. at 839.
Here, Davis testified that his attorney, Hartnett, had told him a black man would not get a fair trial in Scott County. Hartnett testified that she had never told Davis he couldn't get a fair trial, but she could not recall whether she had mentioned race in any of her discussions with Davis. But even if Hartnett had mentioned race, it would not necessarily indicate incompetency of counsel or coercion because an attorney may advise the client that a jury could be prejudiced or influenced by human emotions. See Macias–Medina, 293 Kan. at 837–38. Before accepting Davis' plea, the district judge asked Davis whether he understood the terms of the plea bargain and had discussed it with his attorney. Davis responded, “Yes, Your Honor.” The judge asked Davis whether he had been coerced or forced into entering his plea, and Davis responded, “No, Your Honor.” At the hearing on Davis' motion to withdraw the plea, Hartnett testified that Davis had not asked her to withdraw his plea at any of the times she spoke with him.
In sum, Hartnett testified that she did not tell Davis that he could not receive a fair trial, and the district judge was able to observe Davis and question him about whether he voluntarily entered his plea. We find no abuse of discretion in the district court's conclusion that Davis' plea was not entered as a result of coercion or incompetent counsel.
2. Evidence Supported the District Court's Conclusion That Davis' Medications Did Not Prevent Him from Understandingly Entering His Plea.
Davis also alleges that his medications caused him to be confused and not understand what was going on when he entered his plea and at sentencing. Under the third Edgar factor, a defendant has good cause to withdraw his or her plea if it was not fairly and understandingly made. See Edgar, 281 Kan. at 36. A defendant must knowingly and voluntarily enter into a plea and must understand the consequences of the plea. See K.S.A.2014 Supp. 22–3210(a) –(b) ; State v. Moses, 280 Kan. 939, 945–46, 127 P.3d 330 (2006). Evidence that the district court informed the defendant of the legal consequences of entering a plea and the specific constitutional rights that would be waived by doing so support a court's finding that the defendant's plea was fairly and understandingly made. State v. Lackey, 45 Kan.App.2d 257, 270–71, 246 P.3d 998, rev. denied 292 Kan. 968 (2011).
Although taking medication could conceivably prevent a defendant from understandingly entering a plea, mere evidence that the defendant was taking some medication does not necessarily indicate that a defendant's plea was not fairly and understandingly made. State v. Denmark–Wagner, 292 Kan. 870, 880, 258 P.3d 960 (2011). In deciding whether it was, the district court may consider whether a defendant actively and sensibly engaged in the plea proceeding and discussed issues with his or her attorney. See 292 Kan. at 880.
Here, Davis did not present any specific evidence to the trial court about the effects of the medications beyond his own experience; he did not present expert testimony regarding common psychological side effects. In his appellate brief, Davis for the first time provides specific side effects of the medications he was taking and cites the websites of the U.S. National Library of Medicine and the National Alliance on Mental Illness as sources. The defendant did not provide a citation to the record for this evidence, and it does not appear that the district court had this information when it denied Davis' motion to withdraw his plea. All of this could have been presented to the district court; since it was not, we need not consider it on appeal. See Supreme Court Rule 6 .02(a)(4) (2014 Kan. Ct. R. Annot. 40); see also State v. Cook, 281 Kan. 961, 992, 135 P.3d 1147 (2006) (refusing to consider new evidence on appeal that reasonably could have been presented when the matter was before the trial court).
But even if Davis had presented this evidence of the effects of his medications to the district court, it would not automatically render his plea involuntary. See Reed, 248 Kan. at 513–14. In Reed, a physician testified that the defendant's medication, stress, and other factors made the defendant unable to make voluntary statements on the day of the plea agreement. Despite that evidence, the district court denied the defendant's request to withdraw his plea, and the Kansas Supreme Court found that the district court did not abuse its discretion, noting that the district judge had questioned the defendant at the time of the plea, heard his responses, and observed his demeanor. 248 Kan. at 514.
After the evidentiary hearing on Davis' motion to withdraw the plea, the district court found that being medicated at the time of the plea did not warrant its withdrawal because (1) Davis provided no expert testimony regarding the nature and effect of his medications and (2) transcripts of proceedings before, during, and after Davis entered a plea reflected that Davis was thinking clearly while taking his medications. In addition, the district judge properly informed Davis of the legal and factual basis for the State's charges against him and the constitutional rights he waived by entering a plea; Davis said he understood the charges against him and the possible consequences of the plea; and Davis confirmed that he had had the chance to discuss all of this with his attorney. Hartnett also testified that although she knew Davis was on medications for psychological problems, he had appeared coherent, asked pertinent questions, and seemed intelligent during her meetings with him. Thus, even if Davis had presented evidence about the effects of his medications at the evidentiary hearing, like the defendant in Reed, the evidence in the record would still support the district court's finding that Davis' medications did not prevent him from understandingly entering his plea.
We affirm the district court's judgment.