Opinion
111,513.
07-10-2015
STATE of Kansas, Appellee, v. William F. SCHAAL, Jr., Appellant.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Logan McRae, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant.
Logan McRae, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., STANDRIDGE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Defendant William F. Schaal, Jr., appeals from the Wyandotte County District Court's ruling denying his motion to withdraw his guilty plea to a felony charge of eluding a police officer filed before he was sentenced for that offense. Schaal claimed he entered the plea only because his lawyer promised him he would receive probation. After an evidentiary hearing, Judge Robert L. Serra found Schaal's assertion less than credible. We, therefore, affirm despite the troubling tenor of the hearing.
The district attorney charged Schaal with a single count of violating K.S.A.2012 Supp. 8–1568, a severity level 9 person felony. The circumstances of the offense are irrelevant to the legal issue before us.
Kyle Scolario, Schaal's appointed lawyer, worked out an agreement with the prosecutor calling for Schaal to plead guilty with a joint recommendation to the district court for the mitigated guidelines sentence. The parties reserved the right to otherwise argue to the district court as to the sentencing disposition. The prosecutor also agreed not to charge Schaal with any other crimes in connection with the underlying incident. Schaal signed a Petition to Enter Plea of Guilty outlining the agreement, various rights a defendant gives up in pleading guilty, and other ramifications of such a disposition of criminal charges. Schaal appeared at a brief plea hearing on November 29, 2012, at which Judge Serra established a factual basis for the plea, accepted the plea, and went over some of the information in the plea petition.
Before sentencing, Schaal filed a motion to withdraw his plea. The motion itself is not in the record on appeal, so we can't tell the precise grounds outlined there. The district court permitted Scolario to withdraw and appointed a new lawyer to represent Schaal.
At the hearing on the motion to withdraw the plea, Schaal testified that Scolario assured and even promised him that he would receive probation. Scolario testified that he made no such representation to Schaal. Based on the hearing transcript, Schaal argued no other grounds for withdrawing his plea. Schaal apparently became concerned about receiving probation because he was already on probation for another felony when he violated K.S.A.2012 Supp. 8–1568. Scolario testified that Schaal's probation status was “unclear” at the time of the plea.
Although we miss tone of voice, facial expression, and other cues that bear on a courtroom exchange in reviewing a transcript, we can say that the prosecutor's crossexamination of Schaal and Judge Serra's follow-up questioning were atypical. Schaal appeared to deliberately avoid responding to specific and proper questions from the prosecutor in favor of reciting his chosen theme—that his lawyer had promised him probation and instructed him on how to answer all of the judge's questions during the plea hearing. Despite admonitions from Judge Serra to answer the questions put to him, Schaal remained obdurate and unresponsive. The prosecutor finally concluded, “Judge, I think it's pointless for me to ask any more questions.”
Judge Serra agreed and began to question Schaal. Essentially, Judge Serra then asked Schaal if he had lied during the plea hearing by answering in the affirmative when asked whether anyone had made promises or threats to him to get him to plead, whether anyone had promised him he would receive probation, and whether he understood that the plea recommendation was not binding on the district court. Again, Schaal began to dissemble in responding. Judge Serra cut him off and said, “Answer my question.... You lied on this then?” At that point, Schaal's new lawyer interceded and advised Schaal not to answer based on the privilege against self-incrimination. Although Schaal did not personally then invoke the privilege, he said he was sorry. No further questions were put to Schaal. Judge Serra simply asked if there was anything further. Receiving audible negative responses from the prosecutor and Schaal's lawyer, Judge Serra excused Schaal from the witness stand.
The transcript from the plea hearing shows that Judge Serra never asked Schaal about promises specifically related to probation or the district court's authority to deviate from the negotiated plea agreement. He did ask Schaal, “If anyone has threatened you with anything or promised you anything in order to get you to enter this plea today[?]” To which, Schaal responded, “No[,] sir.”
At the conclusion of the hearing on Schaal's motion to withdraw his plea, Judge Serra found Scolario to be the more credible witness and accepted his testimony as accurately reflecting what Schaal had been told about possible punishment and probation Judge Serra also found that Schaal “lied to me [at the plea hearing] on all the questions.” Without making any other detailed findings, Judge Serra denied the motion to withdraw the plea.
A different district court judge later sentenced Schaal to a 9–month prison term with a 12–month period of postrelease supervision and declined to place him on probation. The sentence conformed to the plea agreement. Schaal has appealed and challenges the denial of his motion to withdraw his plea.
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)(1). 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, 60, 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, 283 P.3d 165 (district court not confined to Edgar factors); Williams, 290 Kan. at 1054, 236 P.3d 512 (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 exceeds that discretion if it rules in a way no reasonable judicial officer would under the circumstances, if it ignores controlling facts or relies on unproven factual representations, or if it acts outside the legal framework appropriate to the issue. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied ––– U.S. ––––, 134 S.Ct. 162, 187 L.Ed.2d 40 (2013) ; State v. Ward, 292 Kan. 541, Syl. ¶ 3, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).
Schaal suggests the district court relied on an erroneous understanding of the facts and failed to apply the Edgar criteria resulting in an error of law. He also argues that Judge Serra's questioning of him deprived him of a fair hearing on his motion.
As we have said, the only factual basis Schaal advanced for withdrawing his plea rested on the purported misrepresentation of Scolario in promising him he would receive probation. But Scolario testified he never made any such representation to Schaal. Judge Serra credited Scolario over Schaal on this crucial point. And, as an appellate panel, we are in no position to reject that credibility determination. See State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011) ; State v. Adams, No. 107,687, 2013 WL 3970174, at *2 (Kan.App.2013) (unpublished opinion).
That factual finding undercuts Schaal's position on each of the Edgar factors with respect to the arguments he has made. That is, if Scolario didn't tell Schaal he would get probation, Schaal could not have been misled and his plea would not have been made unfairly or involuntarily in the way he has alleged. Likewise, Scolario's representation would not have been inadequate on that score.
Schaal, however, contends Judge Serra's faulty recollection about the colloquy at the plea hearing requires a different result. We disagree. Although Judge Serra believed he had more thoroughly questioned Schaal at the plea hearing than he actually did, the mistake had no legally material impact on the ruling denying the motion to withdraw the plea. The phantom questions Judge Serra thought he asked simply confirmed in his mind that Schaal lied either at the plea hearing or while testifying at the motion hearing. But those questions and the presumed answers, even if they had occurred, would not logically support the proposition that Schaal must have been promised probation, the crucial factual predicate for the motion to withdraw the plea, and, thus, must have lied at the plea hearing rather than at the motion hearing. The conflict in the testimony from Scolario and Schaal at the motion hearing, however, bore directly on the crucial fact. So Judge Serra's call between Scolario and Schaal was the pivotal credibility determination. His decision to credit Scolario's account of the advice he gave Schaal establishes that Schaal was not promised probation. Whether Schaal was asked and answered pointed questions about promises of probation at the plea hearing is irrelevant if the facts show he never received such a promise. And the facts, as we must view them, show precisely that.
In addition, Schaal was, in fact, asked about generic promises or threats during the plea colloquy and denied there were any. The written plea petition includes a similar representation that no threats or promises had been made to Schaal. Those circumstances further support Judge Serra's ultimate ruling and the key factual finding upon which the plea withdrawal ruling rested.
Although Judge Serra did not specifically address each of the Edgar factors in his bench ruling on the motion, he had no obligation to do so. As we have already explained, his credibility determination effectively undercut Schaal's argument with respect to each of the factors. The better practice, of course, suggests acknowledging the pertinent legal factors and integrating them into a ruling rendered from the bench or in writing. But an appellate court will not infer legal error merely from a district court's failure to mention or check off each factor that might be considered on a given issue. See State v. Combs, 280 Kan. 45, 50, 118 P.3d 1259 (2005). As we have explained, substantial competent evidence supported the district court's ruling, and neither party objected to the limited findings or asked for more detailed findings. Schaal, therefore, has demonstrated no legal error.
As to the final point, we have already indicated our concern with how Judge Serra questioned Schaal at the hearing on the motion to withdraw his plea. A district court has the authority to question any testifying witness, including a party. But the prerogative should be exercised cautiously and with circumspection, especially during a jury trial. See State v. Kemble, 291 Kan. 109, 114–15, 238 P.3d 251 (2010) ; State v. Plunkett, 257 Kan. 135, 140, 891 P.2d 370 (1995). Depending on the subject matter of the questions and their phrasing or tone, the district court may be perceived by those present, including the parties or jurors, as taking sides or implicitly commenting on a witness' credibility. Here, Schaal suggests Judge Serra's questioning betrayed a lack of impartiality, rendering the hearing fundamentally unfair.
We infer Schaal had irritated Judge Serra with his continuing refusal to directly answer questions the prosecutor had asked on cross-examination. As we read the transcript, the irritation was understandable. On the cold record, Judge Serra's questions seem antagonistic and accusatory. They also were to some degree factually off base. Despite the unfortunate impression Judge Serra's examination of Schaal may have fostered, we cannot say the record demonstrates an abdication of impartiality. Schaal bears the evidentiary burden of establishing such judicial misconduct and actual prejudice. See Kemble, 291 Kan. at 113, 238 P.3d 251.
Without something more, Schaal has failed in that task. The record supports Judge Serra's credibility determination and, in turn, the denial of the motion. As we have noted, at the time of his plea, Schaal signed a plea petition disavowing any untoward promises or threats and made a similar, if equally generic, representation to Judge Serra on the record at the plea hearing. Schaal's performance on the witness stand at the hearing on his motion to withdraw his plea, particularly in refusing to answer directly the prosecutor's legitimate questions, may be fairly viewed as undercutting his credibility. See Yuhua Zhang v. Holder, 477 Fed.App. 760, 761 (2d Cir.2012) (unpublished opinion) (adverse credibility determination reasonably based on evasive answers to questions); Olarte v. Astrue, No. ED CV 12–835–SP, 2013 WL 319283, at *8 (C.D.Cal.2013) (unpublished opinion) (administrative law judge “properly discounted plaintiffs credibility based on ... evasiveness in answering questions”). Given those circumstances, we cannot say the denial of the motion was the product of improper judicial decisionmaking or misconduct rather than entirely legitimate factual and legal considerations.
Schaal has presented no valid grounds for reversing the denial of his motion to withdraw his plea.
Affirmed.