Opinion
No. 107,695.
2013-02-1
STATE of Kansas, Appellee, v. Shawn SMITH, Appellant.
Appeal from Seward District Court; Clint B. Peterson, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Seward District Court; Clint B. Peterson, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Shawn Smith pled no contest to—and was found guilty of—selling cocaine and unlawfully using a communication device to facilitate a drug transaction. Smith moved to withdraw his plea prior to resentencing after this case was previously remanded. The district judge denied his motion. On appeal, Smith contends that there was good cause to withdraw his plea because his attorney led him to believe he was pleading to conspiracy to sell cocaine rather than to the sale of cocaine. A review of the record, however, reveals that Smith voluntarily and knowingly pled to sale of cocaine. Because we find that the district court did not abuse its discretion, we affirm the denial of Smith's motion to withdraw.
Facts
At a plea hearing held on May 13, 2010, the State represented that Smith would be pleading to one count of sale of cocaine as well as to one count of unlawful use of a communication device to facilitate a drug transaction. Although Smith initially questioned the State's summary of the plea, he ultimately advised the district court that he agreed with the summary of the plea. Smith also waived a reading of the complaint.
The district court informed Smith of the possible punishments for each count and advised him of his constitutional rights. The district court also asked Smith if he had any questions or concerns. Smith stated that he understood everything and that he had no questions. After the court asked how he pled to “a violation of ... the crime of Sale of Cocaine,” Smith pled no contest.
In late June 2010, at the sentencing hearing, Smith asked for probation. In response, the district court said it did not have discretion to grant probation. Smith appealed his sentence, and a panel of this court reversed and remanded the case for resentencing because the district court did have discretion to grant probation if he believed it to be appropriate. See State v. Smith, No. 104,938, 2011 WL 3444342, *2 (Kan.App.2011) (unpublished opinion).
Prior to resentencing after the remand, Smith filed a motion to withdraw his plea. He contended that he believed he had pled to conspiracy to sell cocaine rather than the sale of cocaine. The district court considered his motion to withdraw in a hearing on January 27, 2012.
After a careful review of the transcript of the plea hearing, the court found that Smith understood to what crime he was pleading and that the allegations in Smith's motion to withdraw contradicted the record. The court found no good cause to permit withdrawal and denied the motion, rejecting Smith's argument that his counsel misled him and gave him bad advice. Smith was then sentenced to a 44–month prison sentence for sale of cocaine that the court ran consecutive to an 8–month prison sentence for unlawful use of a communication device. Smith timely appealed his sentence.
Analysis
At any time prior to sentencing, a defendant can request to withdraw his or her plea. The district court has discretion to permit the withdrawal if the defendant can show good cause. K.S.A.2011 Supp. 22–3210(d)(1). On appeal, we review the district court's decision to deny Smith's motion to withdraw his plea for abuse of discretion, which Smith bears the burden of establishing. State v.. Garcia, 295 Kan. 53, Syl. ¶ 3, 283 P.3d 165 (2012). To establish abuse of discretion, Smith must show the district court (1) acted arbitrarily, fancifully, or unreasonably, (2) based its decision on an error of law, or (3) based its decision on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011).
In determining whether a defendant has shown good cause, the district court should consider “(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.” Garcia, 295 Kan. 53, Syl. ¶ 2. Smith contends that each of these factors applied in his favor, and thus the district court abused its discretion by making an unreasonable decision (he does not argue the court based its decision on an error or law or fact). Ward, 292 Kan. at 550. He claims his counsel misled him to believe that he was pleading to conspiracy to sell cocaine rather than sale of cocaine. Accordingly, he claims that advice rendered his counsel incompetent, it misled him, and it caused him to make a plea that he did not understand. The record does not support his contention.
At the plea hearing, the district court explained that Smith was charged with sale of cocaine, and Smith said he understood the charge and the penalties. Smith said he understood everything and that no one had threatened him or made him any promises. Smith also said that he was satisfied with his attorney and had no questions. He then pled guilty to sale of cocaine. In the hearing on Smith's motion to withdraw, the district court carefully reviewed the transcript of Smith's plea hearing. Ultimately, the district court concluded that Smith's allegation—that he never would have pled to sale of cocaine—was directly contradictory to the clear action he took in his plea hearing; he indisputably pled to sale of cocaine.
At the withdrawal hearing, Smith went on to argue that his counsel never met with him and made him think he was pleading to conspiracy. Smith pointed to his counsel's statements at the plea hearing that indicated his understanding of the plea was different from what the State had summarized. But after a brief discussion between attorneys, Smith's counsel clarified that he did agree with the State's summary of the plea. The district court, giving Smith a chance to raise any concerns, then asked Smith if he agreed with the plea as the State summarized. Smith said that he did. Shortly thereafter, Smith pled to sale of cocaine—there was no mention of conspiracy. Nothing Smith points to shows his counsel's representation was not competent or that something misled him; the court explained the charges and gave Smith every opportunity to raise his concerns. But Smith said he understood everything. See State v. Barahona, 35 Kan.App.2d 605, 612, 132 P.3d 959 (2006) (rejecting a claim of ineffective assistance of counsel based on not understanding charges when the court explained to a defendant in open court the charges against him).
After full consideration of the plea hearing transcript, the district court found Smith's allegations in his motion to withdraw contradictory to the plea hearing—Smith pled to sale of cocaine. Smith rejected an express opportunity to explain that his understanding of the plea differed from the crime to which he unquestionably pled. Smith does not bear his burden to establish that his attorney was incompetent, that something misled him, and that he did not understand his plea. As such, we cannot say the district court acted arbitrarily, fancifully, or unreasonably in denying Smith's motion to withdraw his plea.
Affirmed.