Opinion
No. 106,516.
2012-12-21
STATE of Kansas, Appellee, v. Maurice WILLIAMS, Appellant.
Appeal from Lyon District Court; Merlin G. Wheeler, Judge. Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Amy L. Aranda, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Lyon District Court; Merlin G. Wheeler, Judge.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Amy L. Aranda, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Maurice Williams appeals the district court's refusal to let him withdraw his guilty plea to charges of attempted rape and aggravated burglary. Williams contends that the district court abused its discretion by applying an incorrect legal standard when it denied Williams' motion.
But the district court cited the correct standard, explained its analysis of each of the factors we require be considered on such a motion, and reached a conclusion that reasonable people could agree with in denying the motion. We therefore find no abuse of discretion, and we affirm the district court's judgment.
Factual Background
On June 1, 2010, Maurice Williams was charged with aggravated burglary, misdemeanor criminal damage to property, attempted rape (or, alternatively, attempted aggravated sexual battery), criminal restraint, criminal threat, and misdemeanor battery. Later, the State amended the complaint to add charges of aggravated kidnapping, obstructing legal process or official duty, and aggravated assault with a deadly weapon. The charges arose out of an incident that took place between Williams and an acquaintance on May 30, 2010, in Emporia. Attorney Don Lill was appointed to represent Williams.
On September 30, 2010, Williams pled no contest to attempted rape and aggravated burglary. Pursuant to a plea agreement, the State dismissed the remaining charges. Williams said that he had read, signed, and understood the plea agreement. The judge advised Williams of the maximum possible penalties for each charge and the court's authority to order consecutive sentences. Williams told the judge that he didn't have any questions about his rights or potential penalties and that he was satisfied with Lill's representation. Williams' criminal-history score, which would be used in calculating the severity of his sentence, was never mentioned as part of the plea agreement or at the hearing. But Williams and his attorney—and perhaps also the State-thought that Williams' criminal—history category would be C, reflecting no more than one prior person-felony offense. The judge accepted Williams' plea and found him guilty of the two charges.
A presentence-investigation report (PSI) was prepared and submitted on November 5, 2010, before sentencing. The PSI showed that Williams had a criminal-history score of B, rather than C, because it included two juvenile person-felony convictions for burglary from 1997. Williams filed an objection to the PSI, questioning whether the juvenile adjudications for burglaries actually existed. Williams also filed a motion for departure sentence to reflect a category-C criminal history, arguing that he was 15 years old when he committed the burglaries and that he had not committed any person felonies since then.
But before Williams' motions could be heard, Williams requested new counsel. The district court allowed attorney Lill to withdraw and appointed a different attorney. Williams' new counsel filed a motion to withdraw the plea on January 27, 2011.
The motion alleged that Williams felt ill-prepared to go to trial, pled out of a sense of despair and hopelessness, and believed the facts were insufficient to prove that he had committed the crimes beyond a reasonable doubt. Williams also claimed that Lill had lacked confidence, spent insufficient time on the case, and pressured Williams to plead, telling him, “I don't think I can win this,” and, “[I]f I were in your shoes [I'd take the plea.]” The motion did not mention Williams' criminal-history score.
The court held a hearing on Williams' motion to withdraw his plea on February 17, 2011. Williams testified that he had a learning disability that affected his ability to comprehend and read. Williams acknowledged that he went over the plea agreement with Lill and signed the agreement, but he maintained that he either didn't understand the questions or didn't read them. Williams said that when he pled, he told the judge that he was satisfied with his attorney because he felt scared. Williams said he felt that if he answered the judge's questions incorrectly, the judge would not let him plead. Williams claimed not to have known that he could ask for a new attorney, and he said he didn't want to go to trial with an attorney he lacked confidence in. Additionally, Williams felt that the judge questioned him too quickly when accepting his plea. Although he understood that he was entering a plea, Williams claimed not to really understand what was going on “because everything happened so fast.”
Williams also believed that Lill didn't spend enough time on his case. Specifically, Williams claimed that Lill never responded to his letters and never returned his family's phone calls. Williams said that Lill did not prepare for the preliminary hearing by talking to Williams about the case. Although Lill discussed with Williams whether to take the plea or go to trial, Williams said that Lill expressed very little confidence in going to trial. Williams felt that Lill didn't believe he could beat the charges, and he allegedly told Williams, “If I was in your shoes ... I [would] do what I got to do,” meaning that Williams should take the plea agreement. Although Williams estimated that Lill had met with him four or five times, Williams said they “never discussed [his case] for real.” On cross-examination, however, Williams conceded that Lill had shown him police reports and photos that Lill took at the crime scene.
As to his criminal record, Williams knew when he pled that he had a juvenile record but didn't clearly recall what he had been convicted of. Williams believed that he only had one juvenile burglary conviction on his record. Williams claimed that his family might remember his juvenile record more clearly and that he was frustrated when his family couldn't contact Lill. When Williams went over the sentencing guidelines with Lill, Williams thought his criminal history was category C. Based on that score, he said that he and Lill expected a sentence of 102 months, the “standard” sentence for attempted rape for someone with a criminal-history score of C. Williams said he didn't find out that his criminal history was category B until 2 days before sentencing, when the PSI reflected two juvenile burglary convictions rather than just the one that Williams had anticipated. A category-B score mandated a “standard” sentence of 216 months—more than double what Williams had expected. Nonetheless, when he pled, Williams understood that the maximum possible sentence for attempted rape was 247 months. (That sentence is the “aggravated” sentence for someone with a criminal-history score of A.)
Lill also testified at the hearing on Williams' motion. Lill said that he had practiced law for 46 years with an emphasis on criminal law. He said he had independently investigated Williams' case and had reviewed the reports and discovery from the State. Additionally, Lill estimated that he visited Williams five or six times in prison to review the various reports, documents, and photographs. Even so, Lill readily acknowledged that he lacked confidence in winning at trial. Based on the police reports and testimony of the victim, Lill believed that the State had sufficient evidence for a jury to convict Williams of the charges; Lill said he expressed that opinion to Williams.
Lill recalled Williams' brothers and mother contacting him to ask questions about the case. Lill said that he had spoken with the family, but the issue of Williams' juvenile history was never discussed. Lill acknowledged that Williams was somewhat difficult to talk to and seemed “a little slow,” but he didn't think Williams' difficulties prevented him from understanding what was going on. Lill said he had made a particular effort to go over the sentencing grid with Williams and that he believed that Williams understood his explanation of how the sentence would be calculated. Based on what Williams told him, Lill believed that Williams' criminal-history score would be category C, and he discussed with Williams the potential outcomes of trial or a plea based on that assumption. When Lill asked Williams about his criminal history, Williams told him he had a juvenile burglary and “a drug case,” which Lill found on a computerized database available on the Internet from the Kansas Department of Corrections. Describing the plea negotiations, Lill testified, “[A]t least preliminarily I thought I knew what [Williams'] record was.... I think [the county attorney] and I went over some documents that he had in his office that indicated again that this was probably a level ‘C’.”
When a trial court is deciding whether to let a defendant withdraw his or her plea, a Kansas statute, K.S.A.2011 Supp. 22–3210(d), sets two different standards for the court to apply. If the defendant's request is made before sentencing, the defendant need only show “good cause,” to withdraw the plea, but if the request is made after sentencing, the defendant must show that “manifest injustice” would take place if he or she isn't allowed to withdraw the plea.
The district judge prefaced his ruling by noting that the “good cause” standard applied, not the “more difficult” manifest-injustice standard necessary to withdraw a plea. The judge then addressed the three factors outlined in a previous Kansas case, State v. Edgar, 281 Kan. 30, Syl. ¶ 2, 127 P.3d 968 (2006), to determine whether Williams had demonstrated good cause.
Addressing the first Edgar factor of whether Williams was represented by competent counsel, the judge found that Lill was a competent counsel who provided competent representation to Williams. The judge observed that Williams did not complain about Lill's representation until he spoke with other prisoners.
The judge then addressed the second Edgar factor—whether Williams was misled, coerced, mistreated, or unfairly taken advantage of. Based on the judge's observations of Williams in other proceedings, the judge said he believed that Williams was exaggerating his alleged difficulties with understanding or communicating. The judge noted that Lill made special efforts to communicate with Williams and found that Lill adequately discussed the case with Williams and gave Williams fair and reasonable advice. Although Williams' family did not tell Lill about Williams' juvenile record, the judge found that Lill discussed the case with the family as Williams had asked. The judge concluded that there was no indication that Williams was at all misled, coerced, mistreated, or unfairly taken advantage of.
The judge concluded by addressing the third Edgar factor—whether the plea was fairly and understandingly made. The judge noted that at the plea hearing Williams signed the plea agreement, responded appropriately to questions, and did nothing to persuade the judge that he did not want to enter the plea. The judge found no indication that Williams had difficulty comprehending either the plea agreement or the judge who accepted Williams' plea. The judge then commented, “[I]n order for me to find good cause [to withdraw the plea], basically I'm going to have to find that Mr. Williams lied when he was asked questions by a trial judge and certainly there is no indication that he did.”
Regarding the confusion about Williams' criminal-history score, the judge noted that the written plea agreement specified a maximum possible sentence based upon a category-A score and that the judge never indicated he was going to limit the sentence to one based upon a category-C score. Because Williams was the only person at the plea hearing who should have known exactly what his prior record contained, the judge refused to blame counsel or the court for the mistaken perception.
After he had reviewed all three Edgar factors, the judge denied Williams' motion to withdraw his plea.
At sentencing, Williams withdrew his objection to the criminal-history calculation, thus conceding that it was correctly calculated as category B. Williams still asked for a departure sentence of 102 months since both the State and Williams had believed that Williams' criminal history was a category C until shortly before sentencing. Williams asserted that during plea negotiations the State believed it would only be recommending a 102–month sentence.
The State opposed the departure motion and asked that the presumptive 216–month sentence be imposed. The prosecutor made no comment about what, if anything, the State had anticipated Williams' criminal history would be during plea negotiations.
The judge refused to grant a departure and sentenced Williams to 216 months in prison, noting that Williams' criminal history was fixed at category B.
Williams has appealed to this court.
Analysis
I. The District Court Did Not Err in Denying Williams' Motion to Withdraw His Plea Before Sentencing.
In his primary issue on appeal, Williams argues that the district court abused its discretion by relying exclusively on the Edgar factors when it denied Williams' presentence motion to withdraw his plea. Williams' basic argument is that the court applied the manifest-injustice standard that applies when a defendant asks to withdraw the plea after sentencing rather than the good-cause standard applicable before sentencing. Had the trial court done so, this could be important because the manifest-injustice standard is harder for the defendant to satisfy. State v. Macias–Medina, 293 Kan. 833, 836–37, 268 P.3d 1201 (2012) (citing State v. Aguilar, 290 Kan. 506, 512, 231 P.3d 563 [2010] ).
On appeal from the denial of a motion to withdraw plea, the defendant must establish that the district court abused its sound discretion in denying the motion to withdraw plea. Macias–Medina, 293 Kan. at 836. But a district court abuses its discretion if its decision is based on an error of law. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). So if Williams is correct and the district court applied the wrong legal standard, that would be an abuse of discretion. In addition, a district court abuses its discretion when no reasonable person would agree with its decision or when the decision is based on an error of fact. 292 Kan. at 550. The party alleging an abuse of discretion bears the burden of establishing that such an abuse took place. State v. Garcia, 295 Kan. 53, Syl. ¶ 3, 283 P.3d 165 (2012).
Recognizing that an error of law in Williams' case could amount to an abuse of the trial court's discretion, let's begin with a review of the key caselaw concepts that guide consideration of a motion to withdraw plea. After doing so, we'll return more fully to considering whether the trial court here abused its discretion.
The district court was right to consider what have become known 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. Macias–Medina, 293 Kan. at 837. Not all these factors must apply in the defendant's favor in every case, and other factors may be considered as well. 293 Kan. at 837.
In support of Williams' position, the Kansas Supreme Court observed in Aguilar that “reliance on [the Edgar factors] to the exclusion of other factors has not only conflated the good cause and manifest injustice standards of K.S.A. 22–3210(d) but also may have overemphasized the role of plea counsel's competence in deciding presentence plea withdrawal motions.” Aguilar, 290 Kan. at 512. Thus, trial courts must be careful not to lose sight of the overall standard—under which only good cause is required to withdraw a plea—when considering the Edgar factors. Although the competence of plea counsel is one factor to consider, a defendant is not required to show ineffective assistance of counsel rising to the level of a violation of the Sixth Amendment to demonstrate good cause under the statute. Aguilar, 290 Kan. 506, Syl. ¶ 1.
In considering the first of the Edgar factors—whether the defendant was represented by competent counsel—the trial court need not find that an attorney's performance was constitutionally defective for that factor to pull in the defendant's favor:
“The Edgar factors do not transform the lower good cause standard of the statute's plain language into a constitutional gauntlet. Merely lackluster advocacy ... may be plenty to support the first Edgar factor and thus statutory good cause for presentence withdrawal of a plea. All of the Edgar factors need not apply in a defendant's favor in every case, and other factors may be duly considered in the district judge's discretionary decision on the existence or nonexistence of good cause.” Aguilar, 290 Kan. at 513.
In Aguilar, the district judge ignored a conflict-of-interest issue involving defense counsel, instead merely finding under Edgar that counsel was competent based on the judge's prior familiarity and experience with the attorney. The Supreme Court found this to be an abuse of discretion and reversed and remanded the case. Aguilar, 290 Kan. at 515.
A key factor in Williams' argument—at least as it has been shaped on appeal—is that a misunderstanding regarding his likely sentence based on his criminal-history score forms a strong reason in favor of allowing plea withdrawal for good cause in his case. The closest precedent to that situation is State v. Schow, 287 Kan. 529, 533, 197 P.3d 825 (2008). In Schow, the defendant filed a motion to withdraw plea based on a mutual mistake made by the parties in projecting the criminal-history score that would be applicable at sentencing. Our Supreme Court ultimately found that the district court had applied an incorrect legal standard and had failed to consider any of the Edgar factors in denying the motion to withdraw plea. Schow, 287 Kan. at 541–46. Specifically, the Schow court held that when “a defendant has pled guilty pursuant to a plea agreement which was based upon a mutual mistake as to defendant's criminal history score, the district court may consider the circumstances giving rise to the mutual mistake to the extent they may implicate the factors applicable to the existence of good cause to withdraw a plea.” 287 Kan. at 546. The court affirmatively declined to adopt a bright-line rule setting the standard that a mutual mistake will always justify withdrawal of a plea before sentencing. Instead, the court reaffirmed the importance of applying the Edgar factors to determine whether a motion to withdraw plea should be granted, regardless of the basis for the motion. Schow, 287 Kan. at 546; see State v. Lackey, 45 Kan.App.2d 257, 266–67, 246 P.3d 998 (analyzing and applying Schow ), rev. denied 292 Kan. 968 (2011).
We return to consider what happened in Williams' case based on these precedents. On one hand, Williams argues that the district judge “essentially substituted the manifest injustice standard for the good cause standard.” But Williams cannot identify any particular statement by the judge that reflects such a misunderstanding of the applicable law. In fact, the judge explicitly stated in his ruling that the good-cause standard applied.
Even so, Williams argues that the district judge relied exclusively on the Edgar factors to the exclusion of others and thereby conflated the good-cause and manifest-injustice standards, which Williams contends is contrary to the teachings of Aguilar. We have reviewed the district court's explanation of its ruling, and we find nothing that suggests it did something other than what it was supposed to do—apply the good-cause standard while considering each of the Edgar factors.
For the first Edgar factor addressing the competency of counsel, Williams argues that Lill's inaccurate prediction of his criminal-history score provided good cause for Williams to withdraw his plea. Williams concedes that inaccurate prediction of a defendant's sentence is not constitutionally deficient performance, but he maintains that Lill's lackluster advocacy here showed enough good cause to allow Williams to withdraw his plea. Although the district court's findings on the first Edgar factor were brief, the court's findings from the two other Edgar factors also addressed the competency of counsel. The fact that Lill advised Williams that he would likely lose at trial does not necessarily show lackluster advocacy. Instead, the court found that Lill gave Williams reasonable advice. The court also found that Lill took special efforts to communicate with Williams, who was sometimes difficult to talk to. Unlike in Aguilar, there was no egregious violation by defense counsel— i.e., a conflict of interest—that the judge simply failed to address. See 290 Kan. at 515.
For the second Edgar factor, Williams argues that he was pressured to enter a plea, “even if that pressure wasn't so coercive to rise to the level of a constitutional violation.” Lill advised Williams to take the plea agreement and was not confident in being able to prevail at trial. Additionally, the State's late addition of an aggravated-kidnapping charge further increased the pressure to take the plea deal. Although there was certainly some pressure on Williams to take the plea deal, the district court was not convinced that such pressure showed that Williams was misled, coerced, mistreated, or unfairly taken advantage of.
Finally, for the third Edgar factor, Williams argues that the circumstances suggested unfairness and lack of understanding, even if the process was “fair enough to pass constitutional muster” and Williams “underst[ood] the process well enough.” The judge found that Williams was fully advised of his rights and answered questions properly. The judge was not convinced that Williams didn't understand what was happening at the plea hearing.
Ultimately, Williams' good-cause arguments on each of the three Edgar factors are vague and conclusory. Although each factor is arguable and could have provided good cause to withdraw his plea, Williams has not shown any decision by the judge rising to the level of an abuse of discretion—reasonable people could agree with the trial judge's actions here. Williams' best argument centers on the mistake in predicting his criminal-history score. But neither Williams nor the State raises Schow 's holding that the district court may consider the circumstances giving rise to a mutual mistake about a defendant's criminal-history score as part of the Edgar factors. See Schow, 287 Kan. at 546.
Although the judge did not reference Schow, he nonetheless followed Schow 's invitation to consider the circumstances giving rise to a possible mistake about Williams' criminal history in the context of the other Edgar factors. See Schow, 287 Kan. at 546. The judge placed the blame on Williams for failing to accurately tell his counsel about his juvenile record:
“In fact, Mr. Williams doesn't complain about the plea. He complains [that] he didn't understand what the criminal history category was going to be, but there was one person in that courtroom the day that that plea was taken that knew what his prior behaviors were and that was Mr. Williams. No one that was in there was in probably any better position to know what his criminal history category was other than Mr. Williams. And the fact that he remembered incorrectly is not something that you would use to indict the quality of counsel services or indict the quality of the hearing itself.”
See also United States v. Colon–Torres, 382 F.3d 76, 86 (1st Cir.2004) ( “Clients should answer truthfully their attorney's inquiries about their past convictions, and lawyers are entitled to rely reasonably on the explicit representations of clients about their criminal histories.”).
In Schow, the district court explicitly found that the parties entered into the plea agreement under the belief that defendant was eligible for probation with a category-D criminal history. Additionally, a prior case's PSI had computed Schow's criminal history as category D, and there was no indication that Schow's disputed misdemeanors would be computed differently. But after the plea was entered, Schow's PSI determined his criminal history to be category B rather than category D. Therefore, our Supreme Court found that Schow may have been misled even though the court informed him of the maximum possible sentence when accepting the plea. 287 Kan. at 544–45.
Here, unlike in Schow, the district court made no findings about the parties' expected criminal-history score when it accepted the plea. Neither the plea agreement nor plea hearing predicted that Williams would receive a category-C history or referenced what a category-C history would entail; on the contrary, Williams was advised that he could receive the maximum possible sentence corresponding to a category-A criminal history. Although the Schow court also declined to attach importance to the defendant being told of the maximum possible sentence (which wouldn't be imposed unless the defendant has the worst criminal-history score), 287 Kan. at 545, the warnings about maximum penalties from both the written plea agreement and the plea hearing support the judge's finding in this case that Williams' plea was fairly and understandably made. See Lackey, 45 Kan.App.2d at 270. Further, there is no evidence that Williams received assurances that his criminal-history score would be category C. Even if both defense counsel and the State mistakenly projected Williams' criminal history, there is no evidence that they negotiated based on the projected score; they did not include a projected score in the plea agreement. See 45 Kan.App.2d at 269–70. Lill made one reference to some of the State's documents showing that Williams “probably” had a category-C score, but that does not indicate that the parties premised the plea agreement on a category-C sentence length. There is no evidence that the State or judge misled Williams into believing he had a category-C criminal history.
Most importantly, the district judge did consider the circumstances giving rise to the mutual mistake when he found that Williams was the only person in the plea hearing who realistically could have known what his juvenile record was. This consideration affected each of the Edgar factors because it indicated that counsel was competent, that the State did not mislead or take advantage of Williams, and that the plea was fairly entered into.
Our case is also unlike Garcia, 295 Kan. 53. In Garcia, the trial court had cited as authoritative a case that had been overruled by Schow, leaving the impression that the trial court had applied an incorrect legal standard in denying the motion to withdraw plea. This left our Supreme Court concluding that the trial judge “may have given [the incorrect consideration] more weight than it deserved.” 295 Kan. at 63. So the case was sent back for reconsideration under the proper standards. 295 Kan. at 63–64.
Unlike in Garcia, the trial judge here made no statement suggesting a misunderstanding or misapplication of the applicable legal principles. The trial court stated the proper standard—good cause—that must be shown by the defendant to withdraw a plea before sentence. The judge considered each of the Edgar factors in a reasonable way. And based upon those considerations, the judge ultimately denied the motion, a conclusion that reasonable people could agree with. Williams has not shown an abuse of discretion.
II. The District Court Did Not Err When It Used Williams' Prior Convictions and Juvenile Adjudications to Calculate His Sentence.
Because Williams' prior convictions enhanced his sentence and were not proved to a jury beyond a reasonable doubt, Williams alleges that the requirements set out in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), were not met and that his rights under the Sixth and Fourteenth Amendments were violated. Williams acknowledges that this issue is controlled by State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), which ruled against the same claim. The Kansas Supreme Court has repeatedly reaffirmed Ivory, rejecting the argument that Williams makes. See, e.g., State v. Snellings, 294 Kan. 149, 167, 273 P.3d 739 (2012).
Additionally, because Williams' juvenile adjudications enhanced his sentence and were not proved beyond a reasonable doubt, Williams alleges that the Apprendi requirements were not met and that his rights under the Sixth and Fourteenth Amendments were again violated. See 530 U.S. 466. But again here, Williams acknowledges adverse and controlling precedent, State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002), which held that “[j]uvenile adjudications need not be charged in an indictment or proven to a jury beyond a reasonable doubt before they can be used in calculating a defendant's criminal history score....” The Kansas Supreme Court has repeatedly reaffirmed Hitt, rejecting the argument that Williams makes. See, e.g., State v. Fischer, 288 Kan. 470, 475, 203 P.3d 1269 (2009).
Six years after Hitt, our Supreme Court reviewed legislative amendments to the Kansas juvenile justice system in In re L.M., 286 Kan. 460, 470, 186 P.3d 164 (2008), and held for the first time that juveniles have a right to a jury trial under the Sixth and Fourteenth Amendments. In 2009, the Kansas Supreme Court reaffirmed that Hitt “remains valid for all juvenile adjudications that were final on June 20, 2008, the date In re L.M. was filed,” because juveniles adjudicated prior to that date were “afforded all of the constitutional protections then required in such proceedings.” Fischer, 288 Kan. at 475. Because Williams' juvenile adjudications occurred in 1997, Hitt applies, and the district court could use Williams'juvenile adjudications as part of his criminal-history score.
This court is duty bound to follow precedent from the Kansas Supreme Court absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan.App.2d 81, 83, 149 P.3d 869,rev. denied 284 Kan. 949 (2007). There is no indication that our Supreme Court is departing from these precedents. Therefore, both of Williams' Apprendi challenges lack merit, and the district court properly computed Williams' sentence.
The district court judgment is therefore affirmed.