Opinion
No. 106,100.
2012-09-21
STATE of Kansas, Appellee, v. John Paul WILHELM, Appellant.
Appeal from Johnson District Court; James Franklin Davis, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Andrew J. Dufour, legal intern, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; James Franklin Davis, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Andrew J. Dufour, legal intern, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ATCHESON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
In 2011, John Paul Wilhelm pled guilty to one count of mistreatment of a dependent adult. At sentencing, the trial court denied Wilhelm's motion to withdraw his plea and denied Wilhelm's request for jail-time credit for time spent at a residential center while out on bond before sentencing. The trial court sentenced Wilhelm to 34 months in prison and ordered Wilhelm to have no contact with the victim or the victim's family. On appeal, Wilhelm argues that the trial court abused its discretion by denying his motion to withdraw his plea. Wilhelm also argues that the trial court erred by imposing the no-contact order, erred by increasing his sentence without submitting his prior convictions to a jury, and erred by denying his request for jail-time credit.
We determine that the trial court properly denied Wilhelm's motion to withdraw his plea. We also determine that the trial court did not err by denying jail-time credit because time spent in a residential center before sentencing is not incarceration. Wilhelm concedes that there is controlling precedent for the increased-sentence issue, and he impliedly concedes that this court is bound by precedent. The State concedes that the no-contact order is an illegal sentence. As a result, we vacate the no-contact order. Accordingly, we affirm in part and vacate in part.
In February 2011, Wilhelm pled guilty to one count of mistreatment of a dependent adult for taking advantage of the financial resources of 79–year–old Richard Cowger in Johnson County. In exchange for Wilhelm's guilty plea, the State agreed to recommend probation and placement at a residential center. The plea agreement prohibited Wilhelm from having contact with Cowger or Cowger's family. The plea agreement further provided that the State could void the agreement and argue for prison if Wilhelm failed to follow the conditions of the agreement. At the plea hearing, the trial court granted Wilhelm's request for bond on the condition he report to the residential center. The State later alleged that Wilhelm had violated the plea agreement's no-contact order in March 2011.
At the sentencing hearing on April 20, 2011, the trial court denied Wilhelm's request for 45 days of jail-time credit for time spent at the residential center from February 15 to April 1. The trial court also denied Wilhelm's oral motion to withdraw his plea for failing to show good cause. The trial court conducted an evidentiary hearing and found that Wilhelm had violated the no-contact order contained in the plea agreement, which allowed the State to argue for a prison sentence. The trial court sentenced Wilhelm to 34 months in prison and 12 months of postrelease supervision based on his criminal history score of A. The trial court ordered no contact with Cowger or Cowger's family as part of Wilhelm's sentence.
The Trial Court Did Not Err by Denying Wilhelm's Motion to Withdraw His Plea
Wilhelm argues that he had good cause for withdrawing his plea because the State no longer agreed to recommend probation. The State contends that the trial court did not abuse its discretion in denying Wilhelm's motion for failing to show good cause.
A guilty plea may be withdrawn at any time before sentencing for good cause shown and with the discretion of the court. K.S.A.2011 Supp. 22–3210(d)(1). This court will not disturb a trial court's denial of such a motion unless the defendant demonstrates that the court abused its discretion. State v. Macias–Medina, 293 Kan. 833, 836, 268 P.3d 1201 (2012). Discretion is abused if the trial court's action was arbitrary, fanciful, or unreasonable—in other words, if no reasonable person would have shared the court's view—or if the action was based on an error of law or fact. 293 Kan. at 836. Abuse of discretion may be found if the trial court fails to properly consider statutory limitations or legal standards. State v. Schow, 287 Kan. 529, 541, 197 P.3d 825 (2008). “A district court has no discretion to fail to remedy a constitutional violation.” State v. Aguilar, 290 Kan. 506, 513, 231 P.3d 563 (2010).
Good cause is a lesser standard for a defendant to meet than showing manifest injustice required to withdraw a plea after sentencing. K.S.A.2011 Supp. 22–3210(d)(1)–(2); Macias–Medina, 293 Kan. at 836–37. The defendant has the burden of showing that good cause exists. Schow, 287 Kan. at 543. When reviewing a motion to withdraw plea, a court considers three 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.’ “ Macias–Medina, 293 Kan. at 837 (quoting Aguilar, 290 Kan. at 511). All three factors need not apply in the defendant's favor, and the court may consider other factors to determine if good cause exists. Macias–Medina, 293 Kan. at 837.
Here, Wilhelm reached a plea agreement with the State. The State agreed to recommend that Wilhelm be placed in a residential center. Wilhelm agreed to have no contact with the victim or the victim's family. He also agreed that the State may void the plea agreement if he violated any conditions at the residential center or committed a crime before sentencing. The trial court found that Wilhelm breached the plea agreement by having contact with the victim. Consequently, the trial court denied Wilhelm's motion for departure seeking probation and immediately sentenced Wilhelm to 34 months in prison.
At trial and on appeal, Wilhelm does not allege that his counsel was not competent, that he was misled or unfairly taken advantage of, or that his plea was not fairly and understandingly made. Rather, Wilhelm's good cause argument is based on no longer receiving the benefit of the State recommending probation and placement in a residential center. He argues that “once the sole benefit to taking the plea in this case was lost, [Wilhelm] should have had the right to change his mind, reweigh the risks of trial versus the benefits of proceeding with his plea, and be allowed to proceed to a jury trial on the merits.” Essentially, Wilhelm contends that the State was allowed to change its mind, so he should be allowed to change his mind, too.
Wilhelm's plea agreement did not expressly bar him from making a motion to withdraw his plea if he failed to meet its conditions. The State could have negotiated such an express provision. See United States v. Sisco, 576 F.3d 791, 793–94 (8th Cir.2009); Pinker v. State, 188 P.3d 571, 574 (Wyo.2008). But another jurisdiction has held that the right to withdraw a plea may be implicitly waived by failing to “ ‘live up to his part of the bargain.’ “ People v. Garvin, 159 Mich.App. 38, 43–44, 406 N.W.2d 469 (1987); People v. Bridinger, No. 294616, 2011 WL 31103, at *2 (Mich.App.2011) (unpublished opinion) (“However, when a defendant does not live up his part of a plea agreement, this Court has held that he is not entitled to specific performance of his plea and that he does not have a right to withdraw it.”); People v. Parrish, No. 211344, 1999 WL 33438789, at * 1 (Mich.App.1999) (unpublished opinion) (“The right to withdraw a plea is not absolute, and can be waived if intervening factors occur between the plea and the sentencing.”). Here, Wilhelm was found—after an evidentiary hearing—to have violated the terms of his plea agreement before sentencing by having contact with the victim. By failing to live up to his part of the bargain, the violation could be viewed as an implied waiver of his right to withdraw his plea.
In any event, the statute requires both good cause and discretion of the court for the granting of a plea withdrawal. K.S.A.2011 Supp. 22–3210(d)(1); Aguilar, 290 Kan. at 513 (“We note, however, that the plain language of the statute—‘for good cause shown and within the discretion of the court’—should not be ignored.”). Here, Wilhelm's desire to withdraw his plea came after his own misconduct triggered the State's right to break the agreement and recommend prison. Thus, a reasonable person could share the court's view that Wilhelm's own misconduct does not constitute good cause for Wilhelm to withdraw his plea. So we determine that the trial court properly denied Wilhelm's motion to withdraw his plea.
The Trial Court's Order for Wilhelm to Have No Contact with the Victim or the Victim's Family While in Prison was an Illegal Sentence
Wilhelm argues that the district court imposed an illegal sentence when it imposed a no-contact order on his prison sentence. We agree. Moreover, the State concedes that the no-contact order should be vacated as an illegal sentence.
The Kansas sentencing statutes provide that a trial court may impose “such conditions as the court may deem appropriate” on sentences releasing a defendant on probation or assigning him or her to a community-corrections program. K.S.A.2011 Supp. 21–6604(a)(3)–(4). But the statute does not grant the trial court authority to impose conditions on a prison sentence. K.S.A.2011 Supp. 21–6604(a)(1). Our Supreme Court has held that a no-contact order on a prison sentence constitutes an illegal sentence. State v. Plotner, 290 Kan. 774, 782, 235 P.3d 417 (2010); State v. Post, 279 Kan. 664, 669, 112 P.3d 116 (2005). Plotner and Post analyzed K.S.A. 21–4603d, which since has been recodified as K.S.A. 21–6604 but was in effect when Wilhelm's sentencing in April 2011 occurred. In any event, the language of the two statutes is the same. See K.S.A.2011 Supp. 21–6604(a)(1); K.S.A.2010 Supp. 21–4603d(a)(1). Therefore, Plotner and Post control this issue. The no-contact order should be vacated as an illegal sentence, but the remaining portions of the sentence are valid and remain in force. See Plotner, 290 Kan. at 782.
The District Court was Not Required to Submit Prior Convictions to a Jury
Wilhelm argues that his prior convictions used to enhance his sentence were not submitted to a jury or proven beyond a reasonable doubt in violation of his Sixth and Fourteenth Amendment rights under the United States Constitution. Wilhelm concedes that this issue has been decided against his position in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), but he appeals to preserve the issue for federal review.
The U.S. Supreme Court has held the Constitution requires that any fact that increases the penalty for a crime beyond the statutory minimum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Our Supreme Court has held that Apprendi does not apply if the sentence was based on a defendant's criminal history score. Ivory, 273 Kan. 44, Syl. Therefore, the trial court did not err.
Wilhelm Was Not Entitled to Jail–Time Credit for Time Spent in a Residential Center While Released on Bond Before Sentencing
Wilhelm next argues that he should have received 45 days of jail credit for time spent in residential treatment before sentencing. Wilhelm contends that the residential treatment center constitutes incarceration because he was under the control of corrections officers. The State argues that time at a residential treatment center was not “incarceration” under the plain language of the statute and that Wilhelm's ability to leave the unguarded facility for work renders the residential center different from incarceration. The trial court denied Wilhelm's request for jail credit for time at the residential center because the placement was a condition of bond.
The statute in effect when Wilhelm was sentenced in April 2011 stated that a defendant shall receive credit for time that the defendant “has spent incarcerated pending the disposition of the defendant's case.” K.S.A. 21–4614. This statute has been recodified without substantive changes as K.S.A.2011 Supp. 21–6615(a), effective July 1, 2011. The question here is whether Wilhelm's time in a residential treatment center before sentencing constitutes being “incarcerated” under the statute governing jail credit. This court has unlimited review of the interpretation of a statute governing jail credit as a question of law. State v. Harper, 275 Kan, 888, 891, 69 P.3d 1105 (2003).
This court recently addressed this same question and held: “A defendant released on an appearance bond while awaiting the disposition of a criminal case may not receive jail time credit under K.S.A. 21–4614 for time spent in a community correctional residential services program.” State v. Graves, 47 Kan.App.2d 808, Syl., 278 P.3d 993 (2012), petition for rev. filed July 20, 2012 (pending). In Graves, this court affirmed the trial court's denial of Graves' request for 93 days of jail credit for time spent on bond at the Johnson County Community Corrections Residential Center. 278 P.3d at 994. The trial court allowed Graves to post a $5,000 personal recognizance bond on the condition that he reside at the residential center, which is operated by the Johnson County Department of Corrections. Graves remained at the residential center before the disposition of his case. On appeal, this court concluded that “there is no equivalency between incarceration and the residential living provided by Johnson County Community Corrections.” 278 P.3d at 998. This court also noted that the statute involving jail-time credit after probation is revoked expressly gives credit for time spent in a residential facility and the statute involving jail-time credit before sentencing does not. 278 P.3d at 1000 (comparing K.S.A. 21–4614 and K.S.A. 21–4614a). This court concluded that this distinction demonstrates that the legislature intended to treat presentence and postsentence jail-time credit differently. Graves, 278 P.3d at 1000.
This court relied on State v. Guzman, 279 Kan. 812, 112 P.3d 120 (2005) to reach the conclusion that the residential center does not constitute incarceration. Graves, 278 P.3d at 998 (“ Guzman is dispositive of the present case.”). In Guzman, our Supreme Court held that a defendant released on bond before sentencing does not receive jail-time credit under K.S.A. 21–4614 for time spent under house arrest. 279 Kan. 821 at Syl. The Court reasoned that it was significant that Guzman chose to be released on bond when he had the option to remain incarcerated pending disposition of his case. 279 Kan. at 815–16 (“More specifically, under K.S.A. 21–4614, time Guzman spent in house arrest is not time that he spent incarcerated pending the disposition of his case.”). This court has interpreted the Guzman holding to mean: “[O]nce a defendant or respondent accepts [bond] restrictions as preferable to incarceration, that individual may not claim those restrictions rendered his or her situation equivalent to incarceration.” In re T.G., 35 Kan.App.2d 216,221, 133 P.3d 1279 (2005).
The critical inquiry in determining whether a defendant was incarcerated is whether he or she was “ ‘under actual or constructive control of jail or prison officials' “ with attention given to the “ ‘ circumstances of placement of the person in the facility’ rather than ‘the nature of the facility itself.’ “ Graves, 278 P.3d at 997 (quoting State v. Palmer, 262 Kan. 745, 753, 942 P.2d 19 [1997] ). In Graves, this court noted:
“Graves had control over his place of custody because he sought release on bond rather than remaining in jail. Graves accepted the bond conditions mandated by the district court as preferable to jail, and the record establishes the benefits which accrued to Graves as a result of his choice. Unlike the Detention Center, in the Residential Center Graves was not kept in a secured facility under lock and key. Importantly, he was free to leave the facility to maintain employment during the day and only required to return at night. He was privileged to leave the facility for various appointments and visits with his family. Should Graves have attempted to leave the Residential Center without authorization, the staff would have employed persuasion rather than force in an effort to prevent his departure. In short, there is no equivalency between incarceration and the residential living provided by Johnson County Community Corrections.” 278 P.3d at 998.
Here, Wilhelm's situation is virtually identical to Graves' situation. Like Graves, Wilhelm was out on a $5,000 personal recognizance bond with the condition he report to the same facility, the Johnson County Community Corrections Residential Center. Wilhelm requested the bond and placement at the residential center at his plea hearing. He accepted the conditions of the bond, including no contact with the victim. Wilhelm was allowed to leave the residential center for work in the morning and return at night. He was allowed to be away from the residential center approximately 15 hours a day Monday through Friday. Thus, under the reasoning expressed in Graves, Wilhelm's conditions at the residential center were not the same as incarceration as contemplated by K.S.A. 21–4614. See 278 P.3d at 998. The trial court properly denied jail-time credit for time Wilhelm spent in the residential center before sentencing.
Affirmed in part, vacated in part, and remanded with directions to vacate the no-contact condition of Wilhelm's prison sentence.