Opinion
111,101.
05-15-2015
STATE of Kansas, Appellee, v. Bradley R. KOCSIS, Appellant.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Carol Longenecker Schmidt, 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 HILL, P.J., STANDRIDGE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Defendant Bradley Kocsis appeals both the Sedgwick County District Court's denial of his presentencing motion to withdraw his pleas of guilty to a range of felony charges and the way his sentence was then imposed. Kocsis contends the district court impermissibly revised the sentence by expanding the period of postrelease supervision from 36 months to life and erroneously used his past convictions to establish presumptive sentencing ranges because those convictions were not proved to a jury in this case. We affirm the denial of the motion to withdraw the pleas and the treatment of the criminal history. We find the district court impermissibly corrected an illegal sentence with respect to the period of postrelease supervision, so we vacate the sentence and remand with directions for further proceedings.
Factual and Procedural History
Kocsis pleaded guilty to aggravated kidnapping, a severity level 1 person felony; rape, also a severity level 1 person felony; and several less serious felonies stemming from a single criminal episode in July 2010 involving a single victim. As part of the negotiated plea with Kocsis, the State agreed to recommend mitigated presumptive guidelines sentences, yielding what the parties believed would be a controlling 221–month term of imprisonment. Kocsis retained the right to argue for a lesser punishment.
At the plea hearing on June 18, 2012, the district court received a written acknowledgement of plea and waiver of rights that Kocsis signed in consultation with his lawyer. During the hearing, the district court went over the terms of the plea agreement and the rights Kocsis would be giving up by pleading guilty. The district court informed Kocsis of the maximum terms of imprisonment that could be imposed for the various offenses but mistakenly told him that postrelease supervision would be limited to 36 months when it would actually be for life. A sentence for rape required lifetime postrelease supervision. See K.S.A.2010 Supp. 22–3717(d)(1)(G), (d)(2)(A). The written acknowledgment included the same error.
The district court also had Kocsis confirm that he was entering the pleas knowingly and voluntarily. Early in the plea hearing, the district court asked Kocsis:
“Are you satisfied that you understand and appreciate the nature of this hearing and the seriousness of these proceedings?” Kocsis responded that he did. Toward the end of the hearing, the district court asked if he was “freely and voluntarily” entering the guilty pleas and waiving various rights that had been discussed. Kocsis again responded affirmatively. The district court accepted the pleas and set a sentencing date.
Represented by new counsel, Kocsis filed a motion before sentencing to set aside his pleas on the grounds they were not “voluntary and knowing,” given his state of mind at the time. The motion alleged that a jail guard had anally raped Kocsis about 2 months before the plea hearing and Kocsis had spent much of the day before the hearing being questioned by a detective investigating the sexual assault. According to the motion, extensive questioning about such a traumatic incident left Kocsis in such an emotional and mentally fragile condition that he lacked the capacity to make a legally binding decision to plead.
In December 2012, the district court held an evidentiary hearing on the motion. At the hearing, Kocsis presented testimony from a psychologist that paralleled the assertions in the motion—because of the upheaval in recounting the sexual assault in excruciating detail to the detective the day before the plea hearing, Kocsis was sufficiently distraught that he hadn't the mental acuity and emotional equanimity to competently make binding decisions when he appeared in district court. But evidence presented at the motion hearing showed that Kocsis did not discuss the sexual assault in any detail with his lawyer before the plea and the detective did not interview him until after the plea. The detective and Kocsis actually met during the early evening that same day—some 3 to 4 hours after the plea hearing. Asked about that discrepancy, the psychologist qualified his conclusion to a degree but suggested the overall circumstances still may have been mentally debilitating for Kocsis.
Gary Owens, the lawyer who represented Kocsis through the plea hearing, testified that he was aware of the jailer's sexual assault and understood Kocsis had another lawyer looking into possible civil remedies. Owens said Kocsis never expressed any concern or reluctance about going forward with the plea hearing because he was upset over the sexual assault. According to Owens, on the day of the plea hearing, Kocsis neither said anything nor behaved in a way suggesting he didn't grasp what was going on. Owens testified he thought the jailhouse sexual assault of Kocsis might count for some mitigation at sentencing and the plea agreement allowed argument for less than the State's recommended punishment.
Kocsis testified that he was “under a lot of duress” at the time he pleaded guilty and was “depressed, sad, confused, [and] a whole bunch of different things.” So he wanted to withdraw his pleas. On direct examination, he did not elaborate on his emotional and mental condition at the plea hearing. In response to questions from the prosecutor, Kocsis acknowledged that Owens discussed the plea arrangement with him several days before the plea hearing. But Kocsis said he remained reluctant to accept it because of the length of the recommended sentence. Kocsis also agreed that he had said nothing during the plea hearing about his frame of mind being such that he felt incapable of going forward.
The district court found Kocsis had command of his faculties during the plea hearing and, as a result, entered legally binding pleas to the charges. The district court discounted the psychological testimony because of the faulty factual premise upon which it was based. The district court noted that at the plea hearing Kocsis appeared coherent and engaged in the process, giving appropriate answers to questions and otherwise responding sensibly to the proceedings. The district court also pointed out that Kocsis had several specific opportunities during the plea colloquy to indicate he felt inordinate pressure to plead or was under sufficient stress that he couldn't rationally decide what to do. But Kocsis never even hinted at any difficulties; both his behavior and his physical appearance during the plea hearing suggested nothing was amiss.
Kocsis did not assert the inaccurate representations about the term of postrelease supervision as a basis for withdrawing his pleas. Neither the parties nor the district court apparently recognized the problem. And the district court did not address it.
At a later hearing, a different district court judge followed the plea agreement and imposed the State's recommended sentences. Kocsis received a controlling term of 221 months in prison, and all of the sentences were to be served concurrently. The district court imposed a 36–month period of postrelease supervision.
This court granted Kocsis' motion to appeal out of time. The docketing statement was formally filed on January 27, 2014.
In the meantime, the State filed a motion in the district court to correct Kocsis' sentence to require lifetime postrelease supervision. And Kocsis filed a pro se motion in the district court to withdraw his pleas because he had been misinformed about the duration of postrelease supervision. Neither of those motions is in the record on appeal. The district court held a hearing on April 17, 2014, to address both motions at which Kocsis was present with his lawyer. We have a transcript of the hearing.
The district court declined to hear Kocsis' motion to withdraw his pleas because the filing of the docketing statement placed jurisdiction over the case with us. See State v. Dedman, 230 Kan. 793, Syl. 2, 640 P.2d 1266 (1982) ; accord State v. Spencer, 291 Kan. 796, 812, 248 P.3d 256 (2011). But the district court characterized the State's motion as one to correct a “clerical error” over which it retained jurisdiction. The district court directed that the journal entry be revised to reflect a lifetime term of postrelease supervision rather than just 36 months.
Legal Analysis
With that background, we turn to the issues on appeal. In his appellate brief, Kocsis combines the grounds raised in his presentencing motion to withdraw his pleas—his purported incapacity—with the grounds raised in his pro se motion filed after sentencing—the misinformation given him about the length of postrelease supervision—as if they were presented at the same time. But they should not and cannot be considered together in that fashion. First, a motion to withdraw a plea filed before sentencing is judged by a materially less rigorous standard than one made after sentencing. See K.S.A.2014 Supp. 22–3210(d)(1) (good cause and within district court's discretion before sentencing); K.S.A.2014 Supp. 22–3210(d)(2) (correct manifest injustice after sentencing). Second, the district court never held a hearing or ruled on the motion Kocsis filed following his sentencing. There is no factual record on that claim. For that reason alone, we are in no position to review the merits of his postsentencing claim. In addition, however, the postsentencing motion is not in the appellate record, and we cannot even tell just what Kocsis argued. We can't proceed solely on the representations in his appellate brief and the district court's fleeting description of the motion during the April 17, 2014, hearing.
We, therefore, take up the denial of Kocsis' motion to withdraw his pleas filed before sentencing. We then look separately at the district court's handling of the error on the length of postrelease supervision in light of the appellate record.
A defendant may withdraw a guilty plea before sentencing in the discretion of the district court upon a showing of good cause. K.S.A.2014 Supp. 22–3210(d)(l). District courts should look at three primary factors to determine if a defendant has shown good cause to withdraw a plea: (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. Garcia, 295 Kan. 53, 62–63, 283 P.3d 165 (2012) (noting that these factors—commonly known as the Edgar factors from State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 [2006] —establish a sound benchmark); State v. Williams, 290 Kan. 1050, 1053, 236 P.3d 512 (2010). All three factors need not favor the defendant to warrant relief from a plea, and the district court should consider other relevant circumstances based on the facts of the particular case. See Garcia, 295 Kan. at 63 (district court not confined to Edgar factors); Williams, 290 Kan. at 1054 (all of the Edgar factors need not favor defendant; court may consider other circumstances); State v. Aguilar, 290 Kan. 506, 512–13, 231 P.3d 563 (2010).
Because the governing statute expressly affords the district court discretion in ruling on a defendant's motion to withdraw a plea before sentencing, an appellate court reviews the determination for abuse of discretion. State v. White, 289 Kan. 279, 284, 211 P.3d 805 (2009). A district court may be said to have abused its discretion if the result reached is “arbitrary, fanciful, or unreasonable.” Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009). That is, no reasonable judicial officer would have come to the same conclusion if presented with the same record evidence. An abuse of discretion may also occur if the district court fails to consider or to properly apply controlling legal standards. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009). A district court errs in that way when its decision “ ‘goes outside the framework of or fails to properly consider statutory limitations or legal standards.” ’ 288 Kan. at 299 (quoting State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 [2007] ). Finally, a district court may abuse its discretion if a factual predicate necessary for the challenged judicial decision lacks substantial support in the record. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011) (outlining all three bases for an abuse of discretion), cert. denied 132 S.Ct. 1594 (2012).
In the motion filed before sentencing, Kocsis confined his argument to the third Edgar factor and submitted his pleas were not freely and voluntarily entered. He did not argue Owens provided less than competent representation. Nor did he argue that he was misled, coerced, or mistreated in the judicial process. We do not consider Kocsis' postsentencing argument that he was misinformed about the duration of postrelease supervision during the plea process—an argument potentially implicating the other Edgar factors.
Given the issue and the evidence before the district court on Kocsis' presentencing motion to withdraw his pleas, we find no abuse of discretion. The district court applied the appropriate legal standards and substantial evidence supported the ruling. Kocsis largely premised his request for relief on the notion that the detective's detailed questioning of him about the sexual assault left him in so depleted a mental and emotional state that he couldn't think straight at the plea hearing. But the district court found, with overwhelming support in the record, that the law enforcement interview took place after the plea hearing. Accordingly, what Kocsis and his expert originally cited as the principal stressor couldn't have been. Moreover, Owens saw no indication that Kocsis was upset or debilitated during the plea process. Nor did the district court judge presiding over the plea hearing. The hearing transcript conforms to those observations. Although we cannot gauge physical appearance or tone of voice and cadence from a transcript, everything in the record suggests Kocsis understood the proceedings and participated in a reasoned, calm, and collected manner.
We, therefore, affirm the district court's ruling denying Kocsis' presentencing motion to set aside his pleas.
We move on to the April 17 hearing in the district court after Kocsis had perfected his appeal. As we have indicated, the district court correctly determined it had no jurisdiction to consider Kocsis' second motion to withdraw his pleas, the one filed after sentencing. See Dedman, 230 Kan. 793, Syl. ¶ 2 (“When an appeal is docketed, the trial court's jurisdiction ends and the sentence may then be modified only after the mandate ... is returned, or by motion to remand temporarily for modification of the sentence.”). That motion remains pending and unresolved.
As everybody now agrees, Kocsis received an illegal sentence because the district court imposed postrelease supervision for 36 months rather than for life. We suppose a district court can enter a nunc pro tunc order correcting a true clerical error in a journal entry or judgment after an appeal has been perfected. See State v. Mason, 294 Kan. 675, 677, 279 P.3d 707 (2012). But that's not what happened here. The district court did not modify the journal entry to conform it to the sentence actually pronounced from the bench. Rather, the district court substantively changed the terms of the sentence that had been pronounced and then journalized. The district court lacked jurisdiction to make that sort of modification. Accordingly, Kocsis remains subject to an illegal sentence. And the State's motion to correct that sentence also remains pending.
We, therefore, vacate the sentence and remand to the district court for further proceedings, including consideration of Kocsis' postsentencing motion to withdraw his pleas and, if that motion is denied, the State's motion to impose a legally proper sentence.
For his final point on appeal, Kocsis argues that the district court's use of his past convictions in determining an appropriate sentence impairs his constitutional rights because the fact of those convictions was not determined beyond a reasonable doubt by a jury in this case. Kocsis relies on the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to support that proposition.
Kocsis acknowledges the Kansas Supreme Court has rejected that argument and has found the State's current sentencing regimen conforms to the Sixth and Fourteenth Amendments to the United States Constitution with respect to the use of a defendant's past convictions in determining a presumptive statutory punishment. See State v. Fischer, 288 Kan. 470, Syl. ¶ 4, 203 P.3d 1269 (2009) ; State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). We, therefore, decline his invitation to rule otherwise, especially in light of the Supreme Court's continuing reaffirmation of Ivory. State v. Hall, 298 Kan. 978, 991, 319 P.3d 506 (2014) ; State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013).
We, therefore, affirm the denial of Kocsis' presentence motion to withdraw his pleas, vacate his sentence, and remand the case with directions to consider his postsentence motion to withdraw his pleas and, if necessary, the State's motion to impose a legal sentence.
Affirmed in part, vacated in part, and remanded with directions.