Opinion
No. 110,681.
2015-01-16
STATE of Kansas, Appellee, v. Quinton C. THOMAS, Appellant.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge.Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., POWELL, J., and JOHSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Quinton C. Thomas pled guilty under a negotiated plea agreement to fleeing or attempting to elude a law enforcement officer, criminal discharge of a firearm at an occupied building, and criminal possession of a firearm. He was then released on his own recognizance subject to community corrections supervision. He absconded. Once apprehended, and facing a new federal bank robbery charge, Thomas moved to withdraw his guilty pleas. He asserted that he had coerced himself into pleading guilty in order to be released from jail to attend a close family member's funeral. The district court denied the motion. Thomas appeals from that denial. We affirm.
Factual and Procedural Background
On August 27, 2010, 3 days prior to the commencement of his jury trial, Thomas pled guilty, pursuant to plea negotiations, to one count each of fleeing or attempting to elude a law enforcement officer, a severity level 9 person felony, criminal discharge of a firearm at an occupied building, a severity level 7 person felony, and criminal possession of a firearm, a severity level 8 nonperson felony. In exchange for his pleas, the State agreed to dismiss other counts and to recommend a dispositional departure to probation. The plea agreement anticipated Thomas' possible presentence release as it included the proviso that the State would not be bound to make the agreed sentencing recommendations if Thomas was “arrested, commit[ed] a new offense, violat[ed] bond conditions or fail[ed] to appear for a court appearance at any time prior to sentencing.”
The district court conducted an extremely thorough plea colloquy with Thomas. Thomas voluntarily waived his jury trial rights, acknowledged the range of consequences that could result from his pleas, stated he was satisfied with counsel, confirmed that his pleas were voluntary and free from coercion, and admitted in detail the facts that proved his guilt. The district court accepted Thomas' pleas and found him guilty of the three agreed-upon charges. Thomas was released that same day on a personal recognizance bond to be supervised by the Sedgwick County Community Corrections Pretrial Services Program.
On September 7, 2010, the district court revoked Thomas' bond and issued a warrant for his arrest because he failed to abide by the guidelines of his supervision. Thomas was still at large when, on October 15, 2010, he failed to appear at his sentencing hearing. Eventually Thomas came back into custody. The district court scheduled his case for sentencing on January 11, 2011. Thomas was unable to appear for that hearing, though, because he had been released to the custody of the United States Marshals Service on a federal charge of bank robbery. The State obtained another arrest warrant for Thomas to serve as a detainer.
On March 23, 2011, Thomas filed a motion to withdraw his guilty pleas, and the attorney defending him on his federal charges filed a memorandum in support of his motion. Thomas maintained that he entered into the plea in spite of his innocence so that he could be released from jail and then attend his cousin's funeral. He did so also to obtain a sentence of probation. He mentioned that the convictions on the pleas he sought to withdraw would severely impact the resolution of his federal prosecution.
On July 29, 2011, the district court, by the same judge who had conducted the plea hearing, held an evidentiary hearing to consider Thomas' motion. It heard testimony from Thomas and Brad Sylvester, his counsel at the time of the plea.
Thomas testified that he was “sick of sitting in th[e] county jail” and he really wanted to get home to his family because they were doing badly financially and his wife needed help raising his children. Most important to him, though, was that his cousin, Cornelius, had died in a motorcycle accident and his funeral was August 28, 2010. Thomas desperately wanted to attend the funeral.
According to Thomas, shortly after Cornelius' death (August 20, 2010), Sylvester brought him the above-described plea agreement. Thomas claimed he had only contemplated pleading guilty to a misdemeanor charge of fleeing and eluding. However, when Sylvester informed him that, following the plea hearing, he would be released in time to attend Cornelius' August 28 funeral, he accepted the plea agreement despite his desire to go to trial. Thomas explained his reasons for accepting the plea:
“[I signed the plea agreement b]ecause I really wanted to make it to the funeral and that's the only way I could get to the funeral. I couldn't—I had asked [Sylvester] a long time ago if I could get out to get a bond modification or let me out on Pretrial because I sat [in jail] for so long. But he told me Pretrial don't accept violent crimes like that. So when he come with the plea and was like they're willing to give you Pretrial. So in order for me to get out for the funeral, I have to take the plea.”
Thomas had released Sylvester from the attorney-client privilege prior to the hearing. Sylvester testified that while he “wouldn't say ... Thomas ever ... broke down and confessed everything to [him],” he remembered Thomas indicating that he shot at an occupied dwelling in retaliation or as an act of self-defense. Indeed, Sylvester stated, “My understanding was [Thomas] went over there and shot to make people stop shooting at his family.”
Sylvester cast doubt on whether Thomas accepted the plea agreement solely to attend Cornelius' funeral:
“I can imagine that it was a factor, but I can't in good faith make the argument that it was the overriding reason why he took the deal. This was a deal that he wanted for several months, and we kept pushing for that deal. I have several kites from him in which he is asking me to get him a deal for probation, and that he wanted to take a deal for probation. These kites are several months in advance of the deal actually being offered and accepted.”
Thomas' counsel argued that there was a confluence of events that resulted in Thomas' decision to take the plea in spite of his innocence. Counsel stated:
“And that's what we're talking about in this case, is good cause. Were there enough pressures, were there enough external influences on Mr. Thomas to enter into a plea where he was not guilty in order to obtain some benefit. And we have to say that in a case such as this, where he had been incarcerated for over a year, with 15 continuances for trial and just a bare minimal amount of visits and communication by counsel, it would—it would have to create a sense of there is no alternative and a sense of hopelessness. And when presented finally with some action, some result, some disposition, in this case the plea and you'll get out today, plead and you'll be on probation, it is entirely reasonable for him to make that decision, albeit the wrong decision.”
The State challenged the credibility of Thomas' claims of innocence and pointed out that the record demonstrated that Thomas' pleas were voluntary, intentional actions. The State argued that it was only when he was charged in the federal case and learned that the current convictions would affect his federal sentencing that he decided to change his mind about the pleas.
On August 1, 2011, the district court announced its decision to the parties. It denied Thomas' motion, finding that Thomas failed to show good cause to set aside his pleas. Regarding Thomas' claims of innocence, it referred to Thomas' “kite” that suggested to Sylvester that if he could get the State to drop some charges and plead to “residential” (probation) he would take that. It also noted the physical evidence that tied Thomas to the shooting. It indicated its skepticism about Thomas' claims of innocence, stating that “[t]he issue of innocence, despite Mr. Thomas' protestation of innocence since he's filed his motion, is not as clear as Mr. Thomas would have me believe.” And, of course, Thomas had earlier admitted to the same judge, in some detail, those very crimes.
The district court found that any coercion associated with Thomas' desire to attend Cornelius' funeral did not rise to the level of good cause to withdraw his guilty pleas. It explained:
“The only issue—the only issue that is remotely at play in this situation is whether the situation described and argued by Mr. Henderson amounts to coercion relative to Mr. Thomas. Mr. Thomas, if there was coercion, it was not coercion at the part of the Court. It was not coercion on the part of the State. It was not coercion, that I'm aware of, through the influences or efforts of anybody else, except possibly through his own efforts ... that he put upon himself He wanted out of jail badly. That's an obvious statement, an observation. He wanted out of jail badly. He knew Mr. Sylvester was working on a plea agreement for him. Maybe he didn't realize the nature of the charges, the severity of the charges or how jury trials works and the possibilities to the extent that Mr. Sylvester did.
“Mr. Sylvester apparently, and I'll give deference to Mr. Sylvester, as the case law tells me I have to, worked the best plea agreement he could under the circumstances. And in my professional involvement with Mr. Sylvester, my observations of him, my dealings with him, I find him to be an extremely competent attorney. He visited with Mr. Thomas, certainly explained the plea agreement to Mr. Thomas, certainly covered the rights contained in [the] Defendant's Acknowledgment of Rights and Entry of Plea Form with Mr. Thomas. Mr. Thomas signed off on those documents.” (Emphasis added.)
The district court pointed to the record of the plea hearing and noted that, face to face, Thomas had confirmed that he understood all the things they had discussed and that Thomas had given a detailed factual foundation for his guilt. It then applied the Edgar [from State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006) ] factors to Thomas' arguments:
“Going through these [ Edgar ] factors briefly, but all of them. The defendant, Mr. Thomas, was represented by Brad Sylvester. I find he is competent counsel and was competent counsel. The defendant was misled. No, he wasn't. The defendant was mistreated. No, he wasn't. The defendant was unfairly taken advantage of. No, he wasn't.
“The real issue, and this goes back to subsection 2 of syllabus 2 under the Edgar case, was the defendant coerced. If he was coerced by anybody it was by himself, not by the State, not by Mr. Sylvester, not by a universal confluence of situations. It was Mr. Thomas that felt the need to enter the plea, and in fact did enter the plea. And the third aspect of this syllabus 2, that the plea was fairly and understandably made. I'll rely on the transcript of the plea proceedings and find that the plea was fairly and understandingly made by Mr. Thomas on the day the plea was made in front of me.” (Emphasis added.)
Over 2 years later, on August 26, 2013, Thomas was finally sentenced. He timely appeals from the denial of his motion to withdraw his pleas.
Analysis
Rather than paraphrase and summarize Thomas' sole argument on appeal, we quote from his brief. Thomas makes the following contention of error:
“The district court held that Mr. Thomas could not withdraw his plea because his coercion came from within, rather than from some outside source. Because the correct legal question is whether the defendant was coerced, not whether he was coerced by someone else, the district court abused its discretion in denying Mr. Thomas' motion to withdraw his plea.”
Rulings of the district court on any of the other arguments Thomas raised in his motion to withdraw his pleas are not before this court. Issues not briefed by the appellant are deemed waived and abandoned. See State v. Boleyn, 297 Kan 610, 633, 303 P.3d 680 (2013).
Prior to sentencing, a district court may, in the exercise of sound judicial discretion, allow withdrawal of a defendant's plea of guilty or nolo contendere “for good cause shown.” K.S.A.2013 Supp. 22–3210(d)(1). As the district court did here, when determining whether the defendant has shown good cause, Kansas judges generally consider the following three factors commonly referred to as 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. See State v.. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010). All three factors need not apply in a defendant's favor in every case, and the court can consider other factors to avoid any distortion of the concept of good cause. State v. Macias–Medina, 293 Kan. 833, 837, 268 P.3d 1201(2012).
Appellate courts will not disturb the denial of a presentencing motion to withdraw a plea unless the defendant sufficiently demonstrates that the district court abused its sound discretion. Macias–Medina, 293 Kan. at 836. A judicial action constitutes an abuse of discretion if it is (1) arbitrary, fanciful, or unreasonable, i.e., no reasonable person would have taken the view adopted by the court, (2) guided by an erroneous legal conclusion, or (3) based upon an error of fact. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). If a party challenges the district court's factual findings, this court reviews those findings to determine whether they are supported by substantial competent evidence. State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011). Substantial competent evidence is evidence possessing both relevance and substance that a reasonable person could accept as being adequate to support a conclusion. State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009). When reviewing factual findings, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility. Anderson, 291 Kan. at 855.
Thomas claims on appeal that he established good cause to withdraw his pleas under the second Edgar factor, i.e., coercion, because he entered his pleas “not for any reasons related to his guilt or the chances of his conviction, but to be able to [be] released so he could attend the funeral of a person he considered to be a brother.” He submits that “[w]hen a defendant establishes that he entered the plea, not due to a reasoned thought process, but because of pressure from some unrelated person or event, he has shown good cause to have that plea withdrawn.” Thus, he argues that the district court abused its discretion when it reached its decision guided by the erroneous legal conclusion that Thomas' self-coercion was inadequate to vitiate his guilty pleas.
The State points out that Thomas does not cite any legal authority as support for his proposition. According to the State, the omission is significant because Kansas appellate courts have considered this very issue and rendered holdings directly adverse to Thomas' position.
The State is correct. There is substantial caselaw authority contrary to Thomas' position and none that we found supporting it. In State v. Denmark–Wagner, 292 Kan. 870, 876–77, 258 P.3d 960 (2011), the Supreme Court conducted an extensive review of cases where defendants claimed the right to withdraw pleas based on some form of self-coercion. That court cited the venerable case of Wippel v. State, 203 Kan. 207, 209, 453 P.2d 43 (1969), as good law. In Wippel, the defendant alleged that not only did his attorney pressure him into pleading guilty by advising him that both he and his neighbor might be prosecuted for attempted bribery, his guilty pleas were entered “with the understanding” that he would serve such a short sentence that his children would not be placed in foster homes. Wippel, 203 Kan. at 209. Our Supreme Court determined that “[t]hese personal considerations now being voiced by [Wippel] may have been of some psychological influence on his decision to plead guilty; but personal considerations of this nature do not constitute the coercion required to vitiate an otherwise voluntary plea. [Citation omitted.]” 203 Kan. at 209.
The Denmark–Wagner court also cited the even more venerable case of Williams v. State, 197 Kan. 708, 710–11, 421 P.2d 194 (1966). The defendant there argued that his attorney and his wife pressured him into pleading guilty to statutory rape “by pointing out the damage to the reputation of his stepdaughter and the worry and strife a trial would cause his wife.” 197 Kan. at 710. The Supreme Court concluded that “[e]very man charged with crime is influenced by personal considerations which may later not appear valid to him, but psychological self-coercion is not the coercion necessary in law to destroy an otherwise voluntary plea of guilty.” Williams, 197 Kan. at 711.
These citations are adequate for our purposes. We do not need to conduct any further, more comprehensive review of the caselaw: that has already been done for us. We commend any reader, and in particular Thomas, to Denmark–Wagner for that review.
At the plea withdrawal hearing the district court was confronted by a party who was telling the court a completely different story from the one he had told at the plea hearing. Clearly, on one occasion or the other, Thomas did not tell the judge the truth. Since the same judge had taken the plea, that judge was in the best position to determine which of Thomas' contradictory versions was more credible. The district court clearly found that Thomas' testimony at the plea hearing was more credible than his testimony at the plea withdrawal hearing. Based on the record, from which we have cited extensively, we have no difficulty in finding that this credibility determination is supported by substantial, competent evidence. Thomas has failed in his burden of proof to show that the district court's decision was based on an error of fact.
There is no merit in the argument Thomas advances on appeal, i.e., that self-coercion alone should enable one to withdraw a plea. Our caselaw discredits that claim. Again, as the Williams court stated, “[e]very man charged with crime is influenced by personal considerations which may later not appear valid to him, but psychological self-coercion is not the coercion necessary in law to destroy an otherwise voluntary plea of guilty.” Williams, 197 Kan. at 711.
Finally, we note that the district court never actually announced that it even believed Thomas' claims of self-coercion. The court always couched its findings in conditional terms, e.g., “[i]f he was coerced” and “if there was coercion.” We agree with the district court: even if Thomas coerced himself into taking the pleas, he then entered his pleas knowingly, willingly, and voluntarily. His motive in pleading does not vitiate the otherwise valid pleas.
The district court's factual findings are supported by substantial competent evidence. It properly applied the Edgar factors. Its decision was not guided by an erroneous legal conclusion. Any coercion associated with Thomas' desire to be released from jail prior to his cousin's funeral was insufficient to constitute good cause to set aside his otherwise voluntary pleas, which he entered with a full understanding of the consequences. The district court did not abuse its discretion when it denied Thomas' presentencing motion to withdraw his guilty pleas.
Affirmed.