Appeal from Sedgwick District Court; Gregory L. Waller, judge.Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant.Emily M. Barclay, legal intern, Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, judge.
Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant. Emily M. Barclay, legal intern, Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., McANANY, J., and BURGESS, S.J.
Anthony E. Griffin appeals from the district court's denial of his motion to withdraw his guilty pleas to various crimes and from the sentences imposed for the resulting convictions.
We need not recount the facts constituting Griffin's crimes and the procedural history that followed. The parties are well acquainted with them.
Griffin entered into a plea agreement with the State on the day his jury trial was set to begin. He agreed to plead no contest to aggravated battery and aggravated assault charges. In exchange, the State agreed to dismiss the charge of attempted first-degree murder and to recommend concurrent sentences. Griffin was free to argue for a lesser sentence. Griffin advised the court that he understood the terms of the plea agreement, that his attorney had explained the charges and potential sentences, and that he understood the court was not bound by the parties' agreement. Griffin also stated that in exchange for his pleas, no one had made any promises other than as set forth in the written plea agreement.
The State presented the factual basis for these crimes and described Griffin's use of a handgun in committing them. Griffin told the court he did not contest those facts. The court found Griffin's pleas were knowingly and voluntarily made, accepted them, found Griffin guilty, and advised him that he would have to register as a violent offender.
Sixteen days later, and before sentencing, Griffin moved to withdraw his plea. He claimed that his attorney promised to get his bond reduced or get him placed on pretrial services until the sentencing hearing and that counsel failed to do so. He alleged he relied on this promise in making the plea agreement. Griffin also argued that his counsel improperly permitted his “sealed past” to be brought up during the plea hearing.
The judge who presided over Griffin's plea hearing also heard Griffin's motion to withdraw his pleas. At the hearing on Griffin's motion, Griffin testified that on the day the trial was to commence his lawyer told him he did not think Griffin would win at trial. Griffin testified he had a civil case against the county for injuries he suffered in the county jail, and his criminal defense lawyer told him he would have to plead no contest in the criminal case in order to win the civil case. Griffin claimed his lawyer told him that under the plea agreement, he would receive a 64–month sentence, but the lawyer said he was “pretty sure” he could get Griffin probation and pretrial services if he pled no contest. Griffin complained about the prosecutor's comments during the plea hearing about a prior conviction that had been expunged. After the plea hearing Griffin obtained new counsel who moved for a bond reduction but that motion had been denied.
Griffin's attorney testified he was prepared to go to trial but spent considerable time reviewing with Griffin the plea agreement and the sentencing guidelines grid boxes. He informed Griffin that his prior expunged conviction could be included in his criminal history. He denied discussing Griffin's civil claim in connection with the plea negotiations in the criminal case. He denied promising Griffin that he would receive probation if he pled no contest. In fact, he said he told Griffin he should expect to get some prison time. He admitted he failed to ask the court to reduce Griffin's bond, but noted that when substitute counsel later made the request the court denied it.
The district court overruled the motion based on the standards set forth in State v. Edgar, 281 Kan. 30, 127 P.3d 986 (2006), and State v. Aguilar, 290 Kan. 506, 231 P.3d 563 (2010). In doing so, the court found that Griffin failed to show good cause, his counsel had been effective, and Griffin had been fully informed of his rights and the consequences of the plea. Further, there was no prejudice from counsel's failure to seek a bond reduction because a later bond reduction motion had been denied.
At the sentencing hearing the court denied Griffin's departure motion and imposed the standard presumptive sentence on the primary count with concurrent terms on the remaining counts. The court found Griffin committed his crimes with a firearm, requiring Griffin to register as a violent offender.
Griffin appeals. He claims the court erred in denying his motion to withdraw his pleas in spite of his showing of good cause. We apply the abuse of discretion standard in our review of this claim. State v. Kenney, 299 Kan. 389, 393, 323 P.3d 1288 (2014). In doing so, we consider whether there is substantial evidence to support the district court's findings on at least these three factors: (1) whether Griffin was represented by competent counsel; (2) whether Griffin was misled, coerced, mistreated, or unfairly taken advantage of in the plea arrangement; and (3) whether Griffin's pleas were fairly and understandingly made. These factors are not exclusive. State v. Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014).
Here, Griffin's statements to the court at his plea hearing and the testimony of his plea hearing counsel at the hearing on Griffin's motion provide substantial evidence to support the district court's finding that Griffin failed to show good cause to withdraw his pleas. The judge who presided over Griffin's motion as well as his earlier plea hearing was in the best position to assess Griffin's credibility and whether his pleas were fairly and understandingly made. Evidence that the district court informed Griffin of the legal consequences of entering his pleas and the specific constitutional rights he was waiving by doing so support the district court's findings. See State v. Lackey, 45 Kan.App.2d 257, 270–71, 246 P.3d 998, rev. denied 292 Kan. 968 (2011).
With respect to the bond reduction claim, Griffin fails to show he was prejudiced by counsel's failure to act. There is no indication Griffin's plea hearing counsel would have been any more successful than substitute counsel whose later effort to have Griffin's bond reduced was a failure.
We conclude the district court did not abuse its discretion in denying Griffin's motion.
Next, Griffin argues that the use of his prior convictions to enhance his sentences violates his due process rights as set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Aside from the fact that Griffin failed to raise this issue before the district court, our Supreme Court resolved this issue contrary to Griffin's position in State v. Ivory, 273 Kan. 44, 47–48, 41 P.3d 781 (2002), and on many occasions since then. We are bound by Ivory, and this contention fails.
Finally, Griffin argues that the sentencing judge violated Apprendi when he, rather than a jury, made the factual finding that Griffin used a deadly weapon in the commission of his crimes and, based upon that finding, ordered Griffin to register as a violent offender.
Aside from the fact that Griffin failed to raise this issue before the district court, in a number of cases our court has determined that factual determinations under the Kansas Offender Registration Act, K.S.A.2013 Supp. 22–4901 et seq. , do not implicate Apprendi because they do not affect the length of the sentence imposed. See State v. Unrein, 47 Kan.App.2d 366, 372, 274 P.3d 691 (2012), rev. denied 297 Kan. 1256 (2013); State v. Franklin, AA Kan.App.2d 156, 160–62, 234 P.3d 860 (2010); State v. Chambers, 36 Kan.App.2d 228, 238–39, 138 P.3d 405, rev. denied 282 Kan. 792 (2006). We adhere to the reasoning in those cases and are not persuaded by Griffin's arguments on this point.