Opinion
Nos. 108,564 108,565 108,566.
2013-07-26
STATE of Kansas, Appellee, v. Marcus Wayne BYERS, Appellant.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Todd Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Todd Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., PIERRON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PIERRON, J.
Marcus Wayne Byers appeals from the district court's denial of his motion to withdraw his no contest pleas to several drug-related crimes. Byers also alleges the district court violated his constitutional rights as described in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it used his criminal history to enhance his sentence.
Based upon conduct that occurred between August and November 2011, the State charged Marcus Wayne Byers with several drug-related crimes in Leavenworth County Case Nos. 11CR725, 11CR734, and 12CR108. On February 8, 2012, Byers entered a plea in each case in exchange for the dismissal of one count and favorable sentencing recommendations, which would result in a total prison sentence of 70 months. The plea agreement was not included in the record on appeal. In No. 11CR725, Byers pled no contest to two counts of possession of methamphetamine with intent to distribute, a severity level 3 drug felony, and one count of possession of drug paraphernalia, a severity level 4 drug felony. In No. 11CR734, Byers pled no contest to two counts of possession of methamphetamine with intent to distribute. In No. 12CR108, Byers pled no contest to one count of possession of methamphetamine with intent to distribute. After verifying that Byers was satisfied with the services of his attorney, that no one had threatened or pressured him with respect to his pleas, and that he understood his potential sentence and the rights he waived by entering a plea, the court accepted Byers' pleas and pronounced him guilty as charged.
Following the acceptance of Byers' pleas, Byers' counsel, Clinton W. Lee, informed the district court there had been discussions between the parties regarding a “joint request” for either a bond modification or a furlough. According to Lee, the parties had contemplated requesting either a house arrest order or a personal recognizance bond, so Byers could return home, for a 2–week period prior to sentencing, to take care of his “personal affairs.” Lee asked the court to set a hearing date to consider this issue. The prosecutor confirmed it had no objection to Byers' release, as outlined by Lee, but he noted that in the event Byers failed to appear for sentencing, the State would not be bound by the plea agreement. After Lee confirmed that Byers understood the State would withdraw from the plea agreement should he fail to appear, the judge told the parties that his “initial reaction” was while he was willing to consider a 1– or 2–day release, he was not willing to grant Byers 2 weeks. The judge explained, “I'd give him a day, probably, but I'll look at your plan when you submit it to me and see. I might be influenced, but I'm just kind of giving you some of my reservations about a two-week bond for the defendant, even with the parameters you put [forth].” Apparently, however, after a “couple of hearings” on the matter, the court denied Byers' request for a bond modification or furlough. Neither the transcripts for these hearings nor a written order of denial were included in the record on appeal.
Prior to sentencing, Byers filed a motion to withdraw his pleas, under K.S.A.2012 Supp. 22–3210(d)(l), arguing that good cause existed for the following reasons: (1) Neither Lee nor the district court informed him that by entering a plea, he would be required to register as a drug offender under the Kansas Offender Registration Act (KORA); (2) he mistakenly believed that upon entering his pleas, the court would grant him a bond modification and release him from custody prior to sentencing; and (3) after further evaluation of the evidence against him, he no longer believed the State could sustain its burden of proof.
On May 18, 2012, the district court held a hearing to consider Byers' motion to withdraw his pleas. At the hearing, Lee informed the district court there were “extensive negotiations ... leading up to and culminating in the plea [,][a]nd part of the discussions centered around this idea that there might be a period of release between the time of the plea[s] and the sentencing date.” Consequently, according to Lee, it was Byers' “position that had he known with certainty that ... [a] furlough or bond modification would not be granted, that his outlook on the State's plea offer certainly would have taken a different turn.” Lee explained that Byers also contended no one had informed him of the registration requirement, and had he known about this onerous consequence of his pleas, he would not have accepted the plea agreement. Lee indicated that while he usually discusses registration requirements with his clients, he did not have “any written notations in [his] file indicating that, in fact, [he] had explained that consequence” to Byers; thus, he accepted responsibility for failing to fully advise Byers of his KORA obligations.
After entertaining the parties' arguments, the district court denied Byers' motion. Specifically, the court found that mandatory registration under KORA is not penal in nature or a direct consequence of a plea and, thus, Byers was not entitled to withdraw his pleas because neither the court nor Lee was required to inform him of the collateral consequences of his pleas.
The district court further found the fact that Byers' desire for a bond modification or furlough never came to fruition did not establish good cause to withdraw his pleas, as the record conclusively demonstrated that no one had promised Byers such a release in exchange for his pleas.
Immediately thereafter, Byers' case proceeded to sentencing. Lee informed the district court that Byers did not wish to follow through with his obligation under the plea agreement to voluntarily dismiss an appeal in an earlier case. The State argued that Byers' failure to withdraw his appeal constituted a material breach of the plea agreement; thus, the State recommended that all of Byers' sentences run consecutively, except it did not oppose running his sentence in No. 12CR108 concurrent with the other cases, as this was “a case that was not originally going to be filed but for [Byers'] request to try to impress the Court and try to seek some type of furlough.” The court imposed a controlling prison sentence of 55 months in No. 11CR725 and No. 11CR734 and a prison sentence of 40 months in 12CR108. The court ordered Byers' sentences in No. 11CR725 and No. 11CR734 to run consecutive to one another and his sentence in No. 12CR108 to run concurrent with his other sentences. Byers subsequently filed a timely appeal in all three cases, and this court consolidated his appeals.
Byers contends that the district court abused its discretion when it denied his presentencing motion to withdraw his pleas because they were not fairly and understandingly made, as neither Lee nor the court informed him of all of the potential consequences of his pleas, i.e., he would be subject to a registration requirement under KORA. Specifically, Byers asserts the court's discretion was guided by an erroneous legal conclusion because, under K.S.A.2012 Supp. 22–3210(a)(2), district courts are required to inform a defendant of all of the direct penological consequences of his or her plea and drug offender registration under KORA falls within these parameters.
Prior to sentencing, a district court may, in the exercise of sound judicial discretion, withdraw a defendant's plea of guilty or nolo contendere “for good cause shown.” K.S.A.2012 Supp. 22–3210(d)(1). According to our Supreme Court, the “ ‘good cause’ “ standard is “a ‘lesser standard’ for a defendant to meet,' “ when compared to the manifest injustice standard required for a defendant advancing a post-sentence motion to withdraw plea. State v. Macias–Medina, 293 Kan. 833, 836–37, 268 P.3d 1201 (2012). When determining whether the defendant has shown good cause, Kansas courts generally consider the following three factors commonly referred to as the “ ‘ Edgar factors' “—after State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006): “(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.” State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010). These “ ‘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.’ [Citation omitted.]” Macias–Medina, 293 Kan. at 837. Moreover, while these factors are “viable benchmarks for judicial discretion,” district courts should not mechanically apply them or rely upon them to the exclusion of other factors. Aguilar, 290 Kan. at 512.
Appellate courts will not disturb a ruling on a presentencing motion to withdraw a plea unless the defendant sufficiently demonstrates the district court abused its discretion. Macias–Medina, 293 Kan. at 836. A judicial action constitutes an abuse of discretion,
“if [the] judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
The party asserting the district court abused its discretion bears the burden of showing such abuse. State v. Hulett, 293 Kan. 312, 318–19, 263 P.3d 153 (2011).
Under K.S.A.2012 Supp. 22–3210(a)(2), in felony cases, a district court may only accept a defendant's plea if “the court has informed the defendant of the consequences of the plea, including the specific sentencing guidelines level of any crime committed on or after July 1, 1993, and of the maximum penalty provided by law which may be imposed upon acceptance of such plea.” District courts, however, are not required to inform the defendant of every potential consequence related to his or her plea; only the direct consequences are included within the mandates of the statute. State v. Moody, 282 Kan. 181, 194–95, 144 P.3d 612 (2006). Similarly, a defense attorney's failure to inform his or her client of the collateral consequences arising from entering a plea does not equate to constitutionally deficient representation. State v. Barahona, 35 Kan.App.2d 605, 611–12, 132 P.3d 959,rev. denied 282 Kan. 791 (2006). “A direct penal consequence, as distinguished from a collateral consequence, is ‘definite, immediate, and almost automatic as a result of [the] guilty plea.’ [Citation omitted.]” State v. Chesbro, 35 Kan.App.2d 662, 667–68, 134 P.3d 1,rev. denied 282 Kan. 792 (2006).
As Byers acknowledges, in State v. Legg, 28 Kan.App.2d 203, 206–07, 13 P.3d 355 (2000), rev. denied 270 Kan. 901 (2001), a panel of this court held that a district court is not required to inform a defendant of his or her KORA obligations. In Legg, the defendant argued that he was entitled to withdraw his no contest plea to four counts of misdemeanor sexual battery because the district court violated his due process rights when it failed to advise him that he would be required to register as a sex offender. The court disagreed, as it found that sex offender registration is not “penal in nature or a direct consequence to a plea.” 28 Kan.App.2d at 207. In reaching this conclusion, the court relied upon State v. Wilkinson, 269 Kan. 603, 610, 9 P.3d 1 (2000), wherein our Supreme Court, commenting on an earlier case involving KORA, stated “ ‘the registration requirement impose[s] no affirmative disability or restraint, and that, while the burden of registering may cause discomfort, the act of registration alone [is] not punishment.’ [Citation omitted.]” 28 Kan.App.2d at 207. See also Villalobos v. State, No. 106,852, 2013 WL 1688931, at *4 (Kan.App.2013) (unpublished opinion), petition for rev. filed May 6, 2013 (“Our legislature on occasion has changed the registration requirements in recent years. Assuming the current registration requirement remains in place in future years, Villalobos' requirement to register as a violent offender would not take place until he has served 10 years in prison. This is a collateral consequence [of a plea], and defense counsel did not have an obligation to inform his client of the obligation to register.”).
Byers contends we should decline to follow Legg for several reasons. First, Byers asserts the Legg court failed to consider the fact that our Supreme Court described the public disclosure aspect of sex offender registration as punitive in State v. Myers, 260 Kan. 669, 923 P.2d 1024 (1996), cert. denied521 U.S. 1118 (1997). Yet, in Myers, our Supreme Court actually held that while the registration requirements do not impose “punishment,” the public disclosure provisions, as applied to Myers, imposed punishment in violation of the Ex Post Facto Clause of the United States Constitution because the legislature enacted this requirement after Myers committed his offense. Myers, 260 Kan. 669, Syl. ¶¶ 1, 2, 695–700. In fact, as the State points out, in In re E.L.W., No. 106,241, 2012 WL 686861, at *3 (Kan.App.2012) (unpublished opinion), rev. denied ––– Kan. –––– (2013), this court described Myers as follows:
“More broadly, the Kansas Supreme Court has held that registration under KORA does not entail punishment and is, therefore, not subject to challenge under the Eighth Amendment to the United States Constitution or Sec. 9 of the Kansas Bill of Rights as cruel or unusual punishment. [Citation omitted.] In Myers, the court held that the registration provisions were not punitive and, therefore, did not trigger a defendant's rights under the Ex Post Facto Clause of the United States Constitution, Art. 1, § 10. Myers, 260 Kan. at Syl. ¶ 1.”
Nevertheless, it is worth noting that in State v. Scott, 265 Kan. 1, 5–6, 15, 961 P.2d 667 (1998), after acknowledging the limits of its holding in Myers, our Supreme Court treated the public disclosure provisions as punitive and found they impose a constitutionally permissible form of punishment. Yet, this court has since determined that the United States Supreme Court abrogated Scott in Smith v. Doe, 538 U.S. 84, 99, 105–06, 155 L.Ed.2d 164, 123 S.Ct. 1140 (2003), when it found that the disclosure requirements of Alaska's statutory regime, which are substantially similar to KORA, were nonpunitive: “Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.” See In re E.L.W., 2012 WL 686861, at *3–4;State v. Buser, No. 105,982, 2013 WL 1149655, at *7–8 (Kan.App.2013), petition for rev. filed April 15, 2013. Moreover, Byers appears to be challenging the requirement of registration itself rather than any associated public disclosure. A point raised incidentally in a brief and not argued therein is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). Similarly, failure to support an argument with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010).
Second, Byers claims that recent legislative amendments to KORA have rendered the registration requirement equivalent to “punishment”; specifically, since Legg and Wilkinson, failing to register has been changed from a severity level 10 non-person felony to a severity level 6 person felony and, thus, a defendant can actually receive a worse penalty for violating KORA than his or her predicate offense. See K.S.A.2005 Supp. 22–4903; K .S.A.2012 Supp. 22–4903(c)(l). This argument is unpersuasive because, as the State argues, the penalties associated with a failure to register are a collateral consequence of Byers' pleas. Byers will not experience any additional criminal liability unless he actually violates KORA and, thus, these penalties are not “ ‘definite, immediate, and almost automatic as a result of [his no contest] plea[s].’ “ Furthermore, in State v. Unrein, 47 Kan.App.2d 366, 372, 274 P.3d 691 (2012), rev. denied ––– Kan. –––– (2013), the court found the “purpose of registration is public safety, [citation omitted], and the threat of criminal liability is not punishment but a means to this end,” necessary for the “efficacy of the regulatory scheme.”
Finally, Byers argues that KORA's requirement that he pay a $20 fee to the sheriff's office constitutes punishment, as this fee is similar to a criminal fine. Initially, both parties cite and discuss K.S.A.2010 Supp. 22–4904(e), which states:
“Every person who is required to register under this act shall remit payment to the sheriff in the amount of $20 on each occasion when the person reports to the sheriffs office in the county in which the person resides or is otherwise located. All funds retained by the sheriff pursuant to the provisions of this section shall be credited to a special fund of the sheriff's office which shall be used solely for law enforcement and criminal prosecution purposes and which shall not be used as a source of revenue to reduce the amount of funding otherwise made available to the sheriff's office.”
However, this section of the statute is not applicable in this case because the legislature amended it on July 1, 2011, before Byers committed his offenses. See L.2011, ch. 95, sec. 4. Yet, K.S .A.2012 Supp. 22–4905(k) contains a similar requirement, as it obligates offenders to, with certain exceptions, “remit payment to the sheriff's office in the amount of $20 during the month of the offender's birthday and every third, sixth and ninth month occurring before and after the month of the offender's birthday in each county in which the offender resides, maintains employment or is attending school.”
As Byers acknowledges, the Unrein court determined that the $20 fee described in K.S.A.2010 Supp. 22–4904(e) was not punishment because it is merely used to reimburse sheriffs' offices for their services. See 47 Kan.App.2d at 372. Moreover, K.S.A.2012 Supp. 22–4904(d)(9) clearly states that registering law enforcement agencies shall “maintain a special fund for the deposit and maintenance of fees paid by offenders[, and] [a]ll funds ... shall be used solely for law enforcement and criminal prosecution purposes and ... shall not be used as a source of revenue.” Furthermore, in State v. Robinson, 281 Kan. 538, 543, 132 P.3d 934 (2006), our Supreme Court characterized Board of Indigent's Defense Services fees as a method of “recoupment.” The fees are not “intended to be punitive; they are not fines or, indeed, any part of the punishment or sanction for the defendant's criminal conduct.” Thus, as the State points out, all of the authority upon which Byers relies in support of his argument is distinguishable because KORA fees are not comparable to a criminal fine. See Southern Union Co. v. United States, 567 U.S. ––––, ––––, 132 S.Ct. 2344, 2347, 183 L.Ed.2d 318 (2012) (“Criminal fines, like these other forms of punishment, are penalties inflicted by the sovereign for the commission of offenses.”). To the contrary, KORA fees appear to serve a recoupment purpose rather than a punitive one.
In conclusion, the district court did not abuse its discretion when it found that Byers was not entitled to withdraw his pleas because registration under KORA is not a direct consequence of a plea and neither the court nor Lee was required to inform Byers of the collateral consequences of his pleas.
Alternatively, for the first time on appeal, Byers contends the district court erred in ruling on his motion to withdraw his pleas without conducting a full evidentiary hearing to determine whether anyone promised him a bond modification or furlough in exchange for his pleas.
The district court found Byers' allegation of an unfulfilled promise did not establish good cause to withdraw his pleas because “it was clearly pointed out at the time of [his] plea[s] that there cannot be any condition of plea that he gets a release or a reduced bond[;] ... so, therefore, that wasn't a promise made; that wasn't a condition of his plea.” However, it appears the court based this statement upon its recollection of the plea hearing. A careful review of the transcript from this hearing reveals that substantial competent evidence does not support the finding that the record conclusively demonstrated that no one made Byers any promises in exchange for his pleas. Primarily, there was no discussion, on the record, regarding whether a bond modification or furlough could be a condition of Byers' pleas. Additionally, while, during the plea colloquy, the court confirmed that no one threatened or coerced Byers to enter his pleas, the court did not ask Byers whether anyone made him any promises, outside the plea agreement, in exchange for his pleas.
Nevertheless, Byers did not object to the district court's inaccurate recollection of the plea hearing, and he did not present any evidence, other than Lee's arguments, to establish that someone promised him a bond modification or furlough, nor did he indicate that he wished to present such evidence. Furthermore, it appears the judge based his decision upon the State's inaccurate characterization of the plea hearing: “I think the Court went into great detail that he should not expect [a bond modification or furlough]; it could not be a part of the reason for plea[d]ing. And I think all those things were addressed on the record as well as with his counsel.” Yet, significantly, Byers did not challenge the State's depiction of the plea hearing. Consequently, we could find that Byers either failed to preserve this issue for appellate review or did not sustain his burden of proof. See O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 361, 277 P.3d 1062 (2012) (litigants and their counsel generally bear the responsibility of objecting to inadequate findings of fact and conclusions of law in order to give the district court the opportunity to correct them); Hulett, 293 Kan. at 318–19 (the party asserting the district court abused its discretion bears the burden of proof).
However, when the record does not support a presumption that the district court found all the facts necessary to support the judgment, we will remand the case for additional findings and conclusions even in the absence of an objection. State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009). Moreover, in State v. White, 289 Kan. 279, 286–89, 211 P.3d 805 (2009), our Supreme Court remanded for further proceedings when faced with a similar set of circumstances. In White, the State charged White with 8 counts of sex crimes against a minor, and, in exchange for the dismissal of 7 of these charges, White pled no contest to one count of aggravated indecent liberties with a child under the age of 14. At the plea hearing, however, neither counsel nor the district court noted that the written plea agreement misstated the maximum punishment for this offense. Prior to sentencing, White moved to withdraw his plea because his counsel failed to fully inform him of the consequences and he received no benefit under the plea agreement because his controlling sentence would have essentially been the same had he been convicted of all eight of the charges. The district judge denied his motion based upon his finding that no error existed in the written plea agreement and he “believe[d] the record would bear out that [he] took extra care to make sure that Mr. White understood the serious consequences of what he was undertaking.” 289 Kan. at 282–83. On appeal, White essentially alleged that the district judge's findings and conclusions were erroneous.
Our Supreme Court began its analysis by noting that the written plea agreement did not accurately inform White of his maximum sentence, and contrary to the district judge's findings, the written tender of plea “at a minimum, rebutted the presumption of reasonable representation.” 289 Kan. at 286–87. The court then found that substantial competent evidence did not support the district judge's characterization of the plea colloquy, presumably, because he made this finding without the benefit of the transcript. 289 Kan. at 287–88. Consequently, the court remanded the matter for an evidentiary hearing because the district court had yet to make a factual determination on the various prongs of the ineffective assistance of counsel test, and in so doing, the court stated:
“[T]he written plea agreement does rebut the presumption that defense counsel's representation was reasonable. Yet, we cannot know whether the State was prepared to offer contrary evidence had the district court recognized the error in paragraph 9, On the other hand, we also recognize that White presented no evidence of confusion or prejudice; instead he only made the argument. While we could conclude.that this means White failed to meet his burden, again it is not clear from the record what would have happened if the district court would have recognized the confusing statements made during the plea hearing. In addition, it would not be appropriate to resolve these questions on appeal because appellate courts do not make factual findings. [Citation omitted.]” 289 Kan. at 288–89.
Similar to White, it is not clear from the record as to what would have happened had the district court accurately recalled the content of his plea colloquy. Accordingly, because the court abused its discretion, due to the lack of substantial competent evidence supporting his conclusion, it appears appropriate for us to remand for an evidentiary hearing on whether someone promised Byers a bond modification or furlough in exchange for his pleas, as this determination has not yet been made.
Byers contends that the district court violated his constitutional rights as described in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it used his criminal history to enhance his sentence without requiring the State to prove his prior convictions to a jury beyond a reasonable doubt. This argument involves a question of law over which this court exercises de novo review. State v. Pennington, 276 Kan. 841, 851, 80 P.3d 44 (2003).
As Byers acknowledges, this issue was previously decided and rejected by the Kansas Supreme Court in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). In Ivory, the court held that the use of a defendant's criminal history to calculate the presumptive KSGA sentence does not violate due process as interpreted by Apprendi. 273 Kan. at 46–48.
We are duty bound to follow precedent from the Kansas Supreme Court absent some indication that the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (2012). There is no evidence to suggest that the Kansas Supreme Court is considering a departure from its holding in Ivory. See McCaslin, 291 Kan. at 731–32 (affirming Ivory ). Thus, Byers' argument must fail.
We reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.