Opinion
110,597.
12-19-2014
STATE of Kansas, Appellee, v. Eric AVILA, Appellant.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., McANANY, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Eric Avila, who is now serving his sentences for second-degree intentional murder and kidnapping, seeks to withdraw his no contest plea to vehicular burglary he entered in a companion case that was pending when he committed the murder. The court denied his motion. To us, he argues that because the district judge had taken the amount of restitution under advisement in his burglary case, his sentencing was incomplete and therefore, the judge should have used a good-cause standard when deciding if he could withdraw his plea, instead of the standard of allowing the withdrawal of a plea only in cases showing manifest injustice. Because Avila has failed to show us even good cause for withdrawing his plea, let alone manifest injustice, we affirm the district court's denial of his motion.
The case begins when Avila tried to steal a car.
In August 2011, Wichita police officers arrested Avila and Alma Burkman after they unsuccessfully tried to steal a car. The State charged Avila in case No. 11–CR–2357 with attempted theft, criminal damage to property, and vehicular burglary. While the charges were pending, Avila killed Burkman. The State charged Avila in case No. 12–CR–714 with first-degree murder.
Subsequently, Avila agreed with the State to resolve both cases by pleading no contest to amended charges of vehicular burglary in case No. 1 l–CR–2357 and second-degree intentional murder and kidnapping in case No. 12–CR–714. In exchange, the State amended the charges and agreed to recommend Avila receive the high number in the appropriate grid box for each count in the murder case, with both sentences to be served consecutively for a total sentence of 287 months in prison. The State also agreed to recommend that the sentence in the burglary case be served concurrently. Avila also agreed to an upward dispositional departure sentence in the burglary case and agreed to pay restitution. Avila signed an acknowledgement of rights and entry of plea form that reflected the plea agreement.
At the plea hearing, the district court discussed Avila's rights. Avila confirmed that he had signed the acknowledgement of rights and entry of plea form, his attorney had explained the plea agreement to him, and he understood the rights he would be giving up and the possible sentences he could receive. After the State presented the factual basis for Avila's pleas, the district court found that Avila had knowingly and voluntarily waived his right to a trial and had entered his pleas. The court then accepted Avila's pleas and found him guilty to the amended charges.
The court sentenced Avila to 276 months' imprisonment in the murder case and 13 months' consecutive imprisonment in the burglary case. The district court found that restitution was appropriate and granted Avila's request to set the matter over to allow the parties to come to an agreement on the amount.
A few days later, Avila filed a pro se motion seeking to withdraw his pleas in both cases, alleging his attorney provided ineffective assistance by (1) failing to meet with him enough to discuss his case; (2) failing to adequately discuss strategy with him; (3) failing to explain the possibility of being convicted of lesser included offenses had he proceeded to trial; (4) failing to provide him with copies of discovery upon request; and (5) misleading him into believing he would be subject to a longer term of imprisonment if he did not take the pleas because “the parole board would continue to pass me up for not taking the plea.” Avila also alleged that he had not signed his plea agreement and his pleas were not understandingly made because he was heavily medicated.
The State filed a written response, and the court summarily denied Avila's motion to withdraw his pleas.
The State sought a judicial determination of restitution in the burglary case. Eventually, the district court found Avila was jointly and severally liable to the insurer for $210.37 in restitution and ordered Avila to pay an additional $134.95 in restitution to the victim. Avila appealed the burglary conviction but did not appeal his murder conviction.
Avila makes two arguments. First, the district judge used the incorrect legal standard of review when he denied Avila's motion to withdraw his pleas. Second, Avila says he was entitled to a hearing on his motion and the judge abused his discretion by summarily denying his request.
Because the district court summarily denied Avila's motion to withdraw his pleas without argument or additional evidence, appellate review is de novo, as we have the same access to the motion, records, and files as the district court. And like the district court, we must determine whether Avila's motion, the records, and case files conclusively show that he is not entitled to relief. See State v. Moses, 296 Kan. 1126, 1127–28, 297 P.3d 1174(2013).
It makes a difference when a motion to withdraw a plea is filed in how a court reviews the matter. The standards a district court may apply in allowing a plea withdrawal are set by statute. K .S.A.2013 Supp. 22–3210(d) states:
“(1) A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.
“(2) To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.” (Emphasis added.)
This differentiation makes sense. Withdrawing a plea before sentencing means that the parties simply return to where they were before entering the plea. The defendant is still entitled to a trial, and the State is required to prove the defendant guilty beyond a reasonable doubt. If there is good cause, then the court should permit the withdrawal. This is a clear matter of discretion. But after the sentence, the parties are in a much different posture than before. The defendant, by entering a plea, has waived all of the rights to trial, confrontation, and the presentation of a defense that are afforded by the Constitution and laws. Because of the extensive nature of what is waived, plea hearings are not brief matters. Careful consideration and attention to details at this step is important. Also, a longer time has elapsed, memories fade, witnesses move, and the State's case becomes more difficult to prove with the elapse of time. Thus, a higher standard has been set by the legislature for withdrawing a plea after sentencing. Manifest injustice means “ ‘obviously unfair’ “ or “ ‘shocking to the conscience.’ “ State v. Kelly, 291 Kan. 868, 873, 248 P.3d 1282 (2011).
We look first to see if Avila has shown us good cause to withdraw his plea. If the allegations in Avila's motion to withdraw his plea fail under the lower good-cause standard, then Avila cannot meet the higher manifest-injustice hurdle, and the court's summary denial of his motion would be harmless. Obviously, if he cannot show the lesser, then he cannot show the greater.
This entire question is controlled by our Supreme Court's opinion in State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). Edgar spoke of 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.
To us, Avila does not attempt to argue the merits of his motion. Instead, he limits his argument to challenging whether the motion, records, and files conclusively showed that he was entitled to an evidentiary hearing on his motion. Mere conclusions are insufficient to raise a substantial issue of fact when no factual basis is alleged by the defendant or appears in the record. State v. Fritz, 299 Kan. 153, 156, 321 P.3d 763 (2014).
We review Avila's complaints about one of his lawyers.
Relying on the first Edgar factor, Avila simply suggests that because “his attorney only visited him four times, for no longer than 30 minutes per a visit” and “refused to provide him with independent access to his discovery,” his counsel was not competent. He contends his allegations in his motion were specific enough to warrant an evidentiary hearing on all of his ineffective assistance of counsel claims. Because Avila does not even attempt to discuss the remaining allegations in his motion regarding his attorney's purported ineffectiveness, in our view, he has abandoned any consideration of these allegations. In State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013), the court held that an issue not briefed by the appellant is deemed waived and abandoned. We therefore deem these claims abandoned. Also, Avila concedes that his claim that he did not sign his plea agreement was plainly refuted by the plea agreement included in the court records.
Avila has recounted no facts on appeal that would indicate why the number of meetings he had with his attorney were insufficient or would undermine confidence in the effectiveness of counsel to warrant an evidentiary hearing. Just because Avila's attorney was not meeting with him as frequently as he would like does not mean his attorney was not working diligently on his case, as evidenced in the record by his attorney's attempt to consolidate both cases and filing a motion in limine. An attorney's inability to shower as much personal attention upon a client as he or she would like does not necessarily rise to the level of a conflict of interest. See State v. Crum, 286 Kan. 145, 158–59, 184 P.3d 222 (2008).
Moreover, Avila has not alleged any facts pointing to a breakdown in communications between himself and counsel. And when asked at the plea hearing whether he had a chance to discuss the decision to plead with his attorney and go over everything in the acknowledgement of rights and entry of plea form, Avila responded in the affirmative. In the form Avila signed, he confirmed that his decision to plead was voluntary and made without duress or coercion after fully discussing potential defenses and his legal options with his attorney.
Avila also complains that his trial counsel did not explain to him that if he went to trial the court might have instructed on a lesser included offense, apparently attempted burglary. Since Avila fails to refer to any facts that would infer that the burglary was interrupted or incomplete, we doubt such an instruction would have been given.
When we turn to Avila's allegation that he was not provided personal copies of discovery, the record does not indicate Avila even made a personal discovery request, see K.S.A.2013 Supp. 22–3212 or K.S.A. 22–3213, at any point prior to entering his pleas. Avila's conclusory complaint did not allege that his attorney failed to review discovery with him. Nor did Avila explain how his attorney's purported failure to provide him with his own personal copies of discovery compromised his defense or affected his decision to enter a plea agreement. We note that when the district court asked Avila “have you been satisfied with the services that your attorney has provided,” he responded, “Yes.”
Avila goes on to complain that his trial counsel misled him by telling him that his release would be determined by a parole board. We consider this claim in the burglary case only. Simply put, we find it insignificant. While it is true that sometime in the future a prisoner review board, and not a parole board, will deal with Avila's possible release according to K.S.A.2013 Supp. 22–3717(d)(1), Avila fails to show us why that is good cause to withdraw his plea. We believe the use of this term by counsel was a simplification of the term by using the more common vernacular. We see no intent by counsel to mislead Avila.
In his motion, Avila has not shown us that his counsel in the burglary case performed below a reasonable standard. His counsel in this case worked diligently and cooperatively with counsel in Avila's murder case to get a package deal from the State. We note that she secured the dismissal of several charges against Avila. This professional competence is made manifest in the plea bargain itself. Avila has not shown us any deficient performance.
We do not see a reasonable probability that Avila would not have pleaded guilty and would have insisted on going to trial. This is especially true when we consider the murder case looming beside this car burglary case. See State v. Solomon, 257 Kan. 212, 891 P.2d 407 (1995).
The purported impact of medications is insignificant.
Avila's claim under the third Edgar factor that “medications had rendered his actions involuntary” or affected his understanding of the plea agreement is vague and does not assert sufficient grounds to justify an evidentiary hearing. See Fritz, 299 Kan. at 157 ; State v. McCullough, 293 Kan. 970, 996, 270 P.3d 1142 (2012).
Avila compares his allegation to the one this court addressed in State v. Solomon, No. 109,048, 2013 WL 5870164 (Kan.App.2013) (unpublished opinion). In that case, Solomon sought to withdraw his plea after sentencing because “he was under the influence of mind altering medications” and was not aware of the consequences of his confession. Solomon alleged that his attorney was ineffective for failing to investigate his confession and file a corresponding motion to suppress. The district court summarily denied the motion, finding that Solomon had not indicated “what, if any, medication he was taking” and that his attorney had provided effective assistance.2013 WL 5870164, at *1. A different panel of this court disagreed, finding that an evidentiary hearing was necessary to address Solomon's allegation because the record revealed Solomon had multiple mental disorders that required medication, which supported his claim that he was taking medication. 2013 WL 5870164, at *3.
The facts in Solomon are distinguishable. Other than Avila's conclusory assertion, there is no evidence in the record to support his claim he was taking any medications prescribed by the jail psychologist. And unlike Solomon, there is no documentation Avila had a mental illness requiring medication. The party who claims that an error has occurred has the burden of designating a record that affirmatively shows prejudicial error. McCullough, 293 Kan. at 999. Moreover, in the acknowledgement of rights and entry of plea form which Avila acknowledged reviewing and signing not only included the specific provision: “I have taken no drugs within the last 48 hours. I remain in full control of my mental faculties and judgment,” but it also affirmed he understood the consequences of entering his pleas.
Avila has failed to sustain his burden to allege a substantial issue of fact warranting an evidentiary hearing. See Fritz, 299 Kan. at 156.
Simply put, under the facts of this case, we cannot construe the district court's summary denial of Avila's motion as an error, for our review leads us to conclude that Avila has not shown us good cause to withdraw his plea, let alone shown manifest injustice.
Affirmed.