Opinion
110,464.
10-17-2014
STATE of Kansas, Appellee, v. Nathan A. LONGBINE, Appellant.
Krystle M.S. Dalke and Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Krystle M.S. Dalke and Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.
Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., STEGALL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is an appeal by Nathan A. Longbine of the denial of his postsentence motion to withdraw his guilty pleas to charges of attempted rape and attempted aggravated criminal sodomy. Because there was a factual basis for Longbine's guilty pleas and he has failed to show manifest injustice, we hold the court did not err when it denied his motion to withdraw his pleas.
We offer a brief review of the case history.
In 2008, the State charged Longbine with two off-grid sex offenses with a child under the age of 14–rape in violation of K.S.A.2006 Supp. 21–3502(a)(2)(c) and aggravated criminal sodomy in violation of K.S.A.2006 Supp. 21–3506(a)(1)(c). Later, Longbine agreed to plead guilty to amended charges of attempted rape and attempted aggravated criminal sodomy, both severity level 1 felonies.
In exchange, the State amended the charges and agreed to recommend the middle number in the appropriate sentencing grid box for each count with both counts to be served concurrently. The State would not prosecute other alleged crimes against the same child. Longbine signed an acknowledgement of rights and entry of plea statement, saying that his attorney advised him regarding the plea agreement and that he understood the consequences of entering his pleas.
At his plea hearing, Longbine acknowledged that he had signed the plea agreement, his attorney had explained the plea agreement to him, and that he understood his rights he would be giving up and the possible sentences. To verify the factual basis for Longbine's pleas, the district court read each charge reflected in the amended complaint to Longbine and had him verify the allegations were correct. The district court then accepted Longbine's pleas and found him guilty of both crimes.
The district court followed the State's recommendation and sentenced Longbine to a presumptive controlling sentence of 234 months' imprisonment. In 2011, the Kansas Supreme Court granted Longbine's petition for review from his direct appeal in State v. Longbine, No. 102,993, 2010 WL 4668347 (Kan.App.2010) (unpublished opinion) challenging his sentence. By an order dated October 7, 2011, the Supreme Court vacated the lifetime electronic monitoring provision of Longbine's sentence, but it left the rest of his sentence intact.
Longbine files postconviction motions in district court.
In September 2012, Longbine sought to withdraw his pleas and asked for an evidentiary hearing. He alleged that he is innocent and claimed that his plea was not understandingly made because the district court did not inform him that he had the right “to a jury determination of the aggravating sentencing factors” and that manifest injustice existed due to ineffective assistance of trial counsel.
Specifically, Longbine asserted he received ineffective assistance from his trial counsel because his trial counsel coerced him into taking a plea by inaccurately telling him he would receive a life sentence, failed to inform him of his right to have a jury determine any aggravating sentencing factors, and failed to conduct a reasonable investigation of the allegations against Longbine, including:
(1) only meeting Longbine five times for “approximately 2 hours”;
(2) not seeking to compel discovery;
(3) not securing the services of an expert to commence a private investigation;
(4) not interviewing the victim; and
(5) not locating a witness who was “with or around the victim at or around the time” of the alleged incident.
In its response, the State contended that Longbine had failed to demonstrate manifest injustice warranting the withdrawal of his guilty pleas. The State argued Longbine's right to have a jury determine any aggravating sentencing factors was not implicated because he had received a presumptive sentence.
Concerning the allegations of ineffective assistance of trial counsel, the State argued:
• Longbine's allegations involved strategic decisions;
• Longbine signed the acknowledgement of rights and entry of plea form that confirmed he had discussed potential defenses and legal options;
• Longbine failed to explain in his motion what relevant information the purported witness had, why the number of meetings he had with counsel was insufficient, or what discovery the State had not turned over;
• trial counsel clearly had prepared for trial, having filed multiple motions including a motion to suppress and motion in limine and engaged in plea negotiations resulting in the State amending the charges and recommending concurrent sentences; and
• trial counsel was not being coercive or inaccurate by advising Longbine that the original charges against him were both off-grid child sex offenses carrying potential life sentences.
The district court summarily denied Longbine's motion for failing to present any substantial issues of fact or law. In doing so, the district court adopted the arguments from the State's response as its finding of facts and conclusions of law. The district court also ruled that Longbine did not present a substantial question of fact sufficient to justify an evidentiary hearing,
Longbine raises three theories on appeal.
Longbine first argues that the district court should have either allowed him to withdraw his guilty pleas because he received ineffective assistance of trial counsel or granted him an evidentiary hearing to address his allegations of ineffective assistance of trial counsel. He then turns his attention to issues not raised in the lower court by asserting the district court lacked subject matter jurisdiction because his guilty pleas were invalid. Specifically, Longbine argues the amended complaint was defective because it made no reference to his age at the time of the alleged crimes, and the district court did not establish a factual basis of an essential element of the attempted rape and attempted aggravated criminal sodomy offenses at the plea hearing—namely, his age. In the alternative, Longbine argues that even should this court find the district court had subject matter jurisdiction, his arguments supporting his jurisdiction challenge—defective complaint and insufficient factual basis for the guilty pleas—permit him to withdraw his guilty pleas to prevent manifest injustice. We will address each argument in turn after review of some fundamental points of law.
We list our guiding legal principles.
To correct manifest injustice the court, after sentence, may set aside the judgment of conviction and permit the defendant to withdraw a plea. K.S.A.2013 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).
A district court in determining whether a defendant has shown the manifest injustice necessary to withdraw a plea after sentencing generally considers (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. Bricker, 292 Kan. 239, 244, 252 P.3d 118 (2011) ; see State v. Moses, 280 Kan. 939, 950–54, 127 P.3d 330 (2006) (noting other factors that may support denial of postsentence motion to withdraw plea).
Generally, we will not disturb a district court's denial of a postsentence motion to withdraw plea in the absence of an abuse of discretion. See State v. Moses, 296 Kan. 1126, 1127, 297 P.3d 1174 (2013). Judicial discretion is abused if the judicial action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Fischer v. State, 296 Kan. 808, Syl. ¶ 8, 295 P.3d 560 (2013).
Because the district court here summarily denied Longbine's motion to withdraw his pleas without argument or additional evidence, appellate review is de novo, as we have the same access to the motion, records, and files as the district court. And like the district court, we must determine whether Longbine's motion, records, and files conclusively show that he is not entitled to relief. See Moses, 296 Kan. at 1127–28, 297 P.3d 1174.
Finally, if we must decide if jurisdiction exists, that is a question of law over which this court's scope of review is unlimited. See State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012).
We examine the question of counsel effectiveness.
The Kansas Supreme Court has stated that “[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, 252 P.3d 118. To demonstrate manifest injustice sufficient to warrant setting aside a plea based on ineffective assistance of counsel, the defendant must show that (1) counsel's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial. State v. Szczygiel, 294 Kan. 642, 646, 279 P.3d 700 (2012). Longbine has not shown us manifest injustice.
Longbine suggests that an evidentiary hearing is automatically necessary to address allegations of ineffective assistance of trial counsel. Longbine fails to acknowledge that the burden of establishing the need for an evidentiary hearing falls on him. See Bricker, 292 Kan. at 244, 252 P.3d 118. As the Kansas Supreme Court recently explained:
“A hearing on a motion to withdraw a plea of guilty or no contest is limited to those instances in which the defendant's motion raises substantial issues of fact or law. When the files and records conclusively show that the defendant is entitled to no relief the motion must be denied. [Citation omitted.] Mere conclusions of the defendant are insufficient to raise a substantial issue of fact when no factual basis is alleged or appears in the record. [Citations omitted.]” State v. Fritz, 299 Kan. 153, 156, 321 P.3d 763 (2014).
Longbine has yet to demonstrate a need for an evidentiary hearing.
In arguing that his trial counsel coerced him into taking the pleas, Longbine points out that on the day he entered his guilty pleas the district court ruled on a motion to suppress filed by his counsel and a related motion filed by the State. From this, Longbine argues that he
“was not aware of the outcomes of those motions before his case was announced for plea and this fact supports [his] assertions that his trial counsel told him he had to plead guilty or else be sentenced to life and further was trying to get the case resolved without doing a proper investigation into all the facts and potential defense witnesses.”
Further, in an attempt to support his allegation that trial counsel failed to conduct a reasonable investigation, Longbine contends that his trial counsel failed to investigate the witness that he claimed “was present around the time or during the time” of the crimes. Because Longbine does not address the remaining four allegations in his motion regarding his trial counsel's purported failure to conduct a reasonable investigation, in our view, he has abandoned any consideration of these allegations. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).
Clearly, Longbine takes liberty with the record in asserting he “was not aware of the outcomes” of the district court's ruling on the motions before proceeding with the plea hearing. The record indicates he was present at the hearing when the district court ruled his statement to law enforcement would be admissible and was certainly in the position to take into consideration this unfavorable ruling in determining what course of action he would pursue.
And, Longbine has recounted no facts on appeal that would indicate the timing of these events somehow shows he received ineffective assistance of counsel. Longbine's pleading also does not state any specific issues of fact that question the circumstances surrounding his trial counsel's explanation to him of the potential maximum sentence he faced if he elected to go to trial facing two off-grid child sex offenses. And, Longbine does not allege on appeal that the advice he received from his trial counsel was legally incorrect. Further, we note Longbine signed the acknowledgment of rights and entry of plea form, which affirmed that his decision to accept the plea agreement was made “without duress or coercion.”
Also, the claim regarding his trial counsel's failure to locate a witness who was “with or around the victim at or around the time” of the alleged incident is vague and does not assert sufficient grounds to justify a full evidentiary hearing or establish he was represented by incompetent counsel. See Fritz, 299 Kan. at 157, 321 P.3d 763 ; Bricker, 292 Kan. at 244, 252 P.3d 118. Under the facts of this case, we cannot construe the district court's summary denial of Longbine's motion as an abuse of discretion.
Longbine's pleas were valid.
In this section of his argument, Longbine argues his pleas were invalid because “the charges in the amended complaint excluded reference to [his] age, an essential element, and therefore was defective.”
Basically, when a complaint omits an essential element of the crime charged it is fatally defective and the conviction must be reversed for lack of jurisdiction. Whether a complaint confers subject matter jurisdiction is a question of law over which an appellate court has unlimited review. State v. Gonzales, 289 Kan. 351, 366, 212 P.3d 215 (2009).
Notably, the State points out that Longbine is raising his invalid plea argument or jurisdiction challenge “for the first time on appeal.” But, subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on the appellate court's own motion. State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010).
Normally, the test used to evaluate the sufficiency of the charging document depends upon when the defendant first raised the issue. Gonzales, 289 Kan. at 366, 212 P.3d 215. Here, the initial problem with Longbine raising this issue is not that he waited until his appeal in this case to allege the charging document was defective, but that he only makes this argument in passing. Other than a conclusory statement, offered without citation to any authority, Longbine does not acknowledge he is challenging the sufficiency of the charging document for the first time. Nor does he argue how this alleged defect prejudiced the preparation of his defense, impaired his ability to plead the convictions in any subsequent prosecution, or affected his right to a fair trial. An issue not briefed by the appellant is deemed waived and abandoned. Boleyn, 297 Kan. at 633, 303 P.3d 680.
Longbine is apparently arguing that the complaint was defective solely because it did not state his date of birth or specifically allege he was 18 years of age or older within the text of the amended complaint listing the elements of both charges. But, the original complaint stated in the caption that Longbine was born in 1987, listed the elements of both crimes, and stated that both offenses were off-grid crimes. In addition, the amended complaint similarly stated Longbine's year of birth in the caption and listed the elements of both crimes.
The Kansas Supreme Court has repeatedly held that a complaint, such as in the case here, that lists the defendant's year of birth in the caption, states that the charges are for off-grid felonies, and lists the elements of the crime, is sufficient to confer subject matter jurisdiction. See, e.g., State v. Inkelaar, 293 Kan. 414, 433–35, 264 P.3d 81 (2011) ; State v. Huerta–Alvarez, 291 Kan. 247, 254–56, 243 P.3d 326 (2010) ; Gonzales, 289 Kan. at 365–69, 212 P.3d 215. In our view, Longbine was adequately informed of both the crimes charged and the penalties.
In addition, Longbine argues that his guilty pleas were invalid because the district court, in relying on the reading of the amended complaint to satisfy the factual basis as required by K.S.A. 22–3210(a)(4), did not establish the required element of the crimes charged that he was 18 years of age or older.
Without citing any legal authority, Longbine is arguing his convictions must be overturned because his pleas did not conform to the requirements of K.S.A. 22–3210, the statute dealing with guilty and no contest pleas. We do not think this is a jurisdictional question. This court has rejected similar arguments made in two other cases, finding on each occasion that “no such legal precedent” exists. See State v. Easterling, No. 110,009, 2014 WL 1707992, at *3 (Kan.App.2014) (unpublished opinion) pet. for review filed May 22, 2014; State v. Hooks, No. 107,582, 2013 WL 1876448, at *3 (Kan.App.2013) (unpublished opinion), rev. denied 298 Kan. –––– (February 12, 2014).
The panel in Easterling explained:
“If the prosecutor provides an insufficient basis for the crimes, then the district court cannot fulfill its statutory duty of satisfying itself that a factual basis for the plea existed. Without fulfilling that duty, the district court as a matter of law does not have a basis to find that Easterling's plea was fairly and understandingly made. [Citation omitted.] If a factual basis cannot be presented to the court, then a withdrawal of the plea is necessary, not a jurisdictional elimination of the case.” 2014 WL 1707992, at *3.
That reasoning is sound. The proper remedy for such deficiencies is withdrawal of the plea, not a rejection of jurisdiction. We find no authority that equates an insufficient plea with the jurisdictional requirements of a defective complaint. Consequently, we are left with addressing whether Longbine can withdraw his guilty pleas if he can demonstrate manifest injustice. See Bricker, 292 Kan. at 244, 252 P.3d 118.
In passing, we note that Longbine's postsentence motion is timely, and we need not address his attempt to establish excusable neglect. Longbine's direct appeal ended on October 7, 2011, and he filed his motion less than 1 year later on September 18, 2012.
A district court may accept a plea of guilty when “the court is satisfied that there is a factual basis for the plea.” K.S.A. 22–3210(a)(4). The Kansas Supreme Court in State v. Shaw, 259 Kan. 3, Syl. ¶ 1, 910 P.2d 809 (1996), held that the district court, in establishing a factual basis for the plea, must establish that all elements of the crime charged are present and stated:
“The 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 .]” 259 Kan. at 10–11, 910 P.2d 809.
The first method applies here because the district court read the amended complaint to Longbine when accepting his pleas. The record reflects Longbine waived his preliminary hearing before a different district court judge.
It is important to note that the Shaw court further explained that a district court's failure to strictly comply with every part of K.S.A. 22–3210 does not automatically require reversal. 259 Kan. at 13, 910 P.2d 809. Indeed, strict compliance may be excused if the record shows that the defendant fully understood his or her rights and was aware of the consequences of his or her plea. 259 Kan. 3, Syl. ¶ 5, 910 P.2d 809. This includes the defendant having an intelligent understanding of the elements required to support a plea and to knowingly plead to the crime. 259 Kan. at 8, 910 P.2d 809.
Even though Longbine ultimately received a grid sentence under Horn because his crimes were for attempted Jessica's Law offenses under K.S.A.2006 Supp. 21–4643, both offenses require proof that a defendant was 18 years of age or older. See K.S.A.2006 Supp. 21–3502(a)(2)(c) ; K.S.A.2006 Supp. 21–3506(a)(1)(c). Longbine argues that the district court's reading of the amended complaint to satisfy the factual basis for his guilty pleas was insufficient because his age was not in the complaint paragraph. Longbine does not dispute the victim was under 14 years of age. The State argues that the recitation of the amended complaint satisfied the requirements under K.S.A. 22–3210 because any omission of Longbine's age did not affect his understanding of the alleged crimes and the consequences of his guilty pleas.
This record is very clear that Longbine, at the time of his pleas, was fully aware of the 18 years or older age element required to support the pleas and understood the rights that he was giving up and the consequences of his pleas. The following factors support this conclusion:
• The case caption of the complaint and amended complaint listed Longbine's year of birth as 1987;
• the complaint listed the crimes as off-grid person felonies, whereas the amended complaint, reflecting the amendment to attempted crimes, listed the offenses as severity level 1 felonies;
• the affidavit of probable cause stated Longbine was 21 years old and born in 1987;
• the acknowledgment of rights form categorized the offenses as severity level 1 felonies and listed the appropriate sentencing ranges for those offenses;
• at the plea hearing, the district court informed Longbine of the correct sentencing ranges, both parties and the district court acknowledged that Longbine's crimes were Jessica's Law offenses but that under Horn his crimes would be sentenced as severity level 1 felonies, and Longbine stated he understood the rights that he was giving up, the terms of the plea agreement, and the possible penalties; and
• Longbine filed a departure motion prior to sentencing in which he expressly referred to Jessica's Law and acknowledged he was 20 years old at the time of the offenses.
At no point has Longbine claimed he was confused about what he pled guilty to or that he misunderstood the consequences of his pleas. Nor does he dispute that he was over 18 when the crimes happened—he clearly knew how old he was at the time of the crimes. There is no allegation that he was not given a copy of the complaint and amended complaint, which both reflect in the case caption the year he was born. Other than the failure to directly establish his age on the record during his pleas, Longbine makes no claim that the facts given to support his pleas were wrong.
By raising this argument, he is simply trying to use an omission in the factual basis to withdraw his pleas based on a minor technical error. This reason is insufficient. “It has long been the law in this state that when an accused enters a voluntary plea of guilty, he is deemed to have waived any irregularities which may have occurred in the proceedings prior thereto.” Trotter v. State, 218 Kan. 266, 270, 543 P.2d 1023 (1975) (citing Jones v. State, 207 Kan. 622, 485 P.2d 1349 [1971] ).
In State v. Gomez, No. 107,936, 2013 WL 3970182, at *3–4 (Kan.App.2013) (unpublished decision) rev. denied 299 Kan. –––– (April 15, 2014), a panel of this court addressed a similar argument—that the age of at least 18 or older was not reflected in the complaint paragraph or the factual basis provided to support the defendant's guilty plea—and reached the same conclusion.
We do not find the factual basis for Longbine's pleas was insufficient. The district court substantially complied with K.S.A. 22–3210(a)(4) and Longbine's guilty pleas were voluntarily, knowingly, and intelligently entered with a full knowledge and understanding of the consequences of his guilty pleas.
Affirmed.