Opinion
No. 105,723.
2012-07-27
STATE of Kansas, Appellee, v. Steven CALHOUN, Jr., Appellant.
Appeal from Sedgwick District Court; Benjamin L. Burgess and Terry L. Pullman, Judges. Sean M.A. Hatfield and Carl F.A. Maughan, of Maughan & Maughan LC, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Benjamin L. Burgess and Terry L. Pullman, Judges.
Sean M.A. Hatfield and Carl F.A. Maughan, of Maughan & Maughan LC, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is Steven Calhoun, Jr.'s appeal of the denial of his motion to withdraw his plea.
The district court held the motion was untimely and that Calhoun had not shown manifest injustice.
We agree with the findings and rulings of the district court and, consequently, affirm.
Factual and Procedural Background
In August 2006, Calhoun pled no contest to aggravated burglary, attempted aggravated criminal sodomy with a child, attempted rape, and one count of aggravated robbery. The district court questioned Calhoun regarding his mental state at the hearing in the following manner:
“THE COURT: Do you suffer from any mental or emotional disorder or any illness that affects your ability to understand your rights?
“THE DEFENDANT: No, sir.
“THE COURT: Do you have any medical or physical condition or any other kind of illness or disease that affects your mental capacity in any way?
“THE DEFENDANT: No, sir.
“THE COURT: Do you regularly take any medications of any kind?
“THE DEFENDANT: Yes, sir, I do.
“THE COURT: Tell me what you take.
“THE DEFENDANT: Remeron and Thorazine.
“THE COURT: And, what medical condition are those for?
“THE DEFENDANT: Nervous tension.
“THE COURT: And, when did you last take those medications?
“THE DEFENDANT: Yesterday.
“THE COURT: Is there anything about those medications that affects your capacity to understand and comprehend, for example, where you're at this morning, what you're doing, and why you're doing it?
“THE DEFENDANT: No, sir.”
The district court then turned to Calhoun's trial counsel:
“THE COURT: Do you concur, Mr. Adams, that his mental capacity is sufficient to go forth with this plea?
“MR. ADAMS: Yes. In fact, Your Honor, we discussed yesterday that-I think he admitted that it helps him understand what's going on in the Court proceedings.
“THE COURT: Okay. I need also to ask, Mr. Calhoun, in the last three or four days if you've consumed any drugs or alcohol or ingested any other substances?
“THE DEFENDANT: No, sir.”
Based on these and Calhoun's other answers, the district court found he was “mentally competent.” It concluded further that Calhoun's “plea of no contest is made freely and voluntarily” and that Calhoun had “a full understanding of the consequences.” The district court therefore accepted Calhoun's plea.
The district court sentenced Calhoun on October 6, 2006. Calhoun did not file a notice of appeal until January 14, 2009, alleging in a pro se pleading that his trial counsel had failed to perfect the appeal or notify him of his right to appeal. The district court appointed new counsel for Calhoun and on July 9, 2009, we remanded the case for a hearing pursuant to State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), and State v. Patton, 287 Kan. 200, 195 P.3d 753 (2008).
On October 30, 2009, the district court entered its order finding Calhoun's trial counsel had told him of his right to appeal. On November 9, 2009, we took note of the district court's finding and issued an order dismissing the appeal. The mandate of dismissal was issued from this court on December 14, 2009.
On August 2, 2010, Calhoun filed a pro se motion to withdraw plea. Calhoun now alleged the district court “erred when it accepted his plea due to the fact that he was under the influence of Thorazine [ sic ] at the time.” Calhoun complained “[n]o one at the plea hearing was qualified to determine as to whether or not [he] was actually coherent enough to fully understand what he was agreeing to .” Calhoun claimed “the record clearly shows that he was under the influence of a drug that may very well have affected his ability to fully understand exactly what was going on.”
Calhoun alleged further that the district court “violated his absolute statutory right to present evidence in mitigation of punishment before imposition of punishment and the right to present any legal reason as to why sentence should not be rendered, as provided by K.S.A. 22–3422 and K.S.A. 22–3424(e)(4).” Calhoun contended, “although he was asked if there was anything he wanted to say, he was never asked if there was any legal reason as to why sentence should not be imposed ... and he was never asked if there was any evidence in mitigation of punishment.” Calhoun concluded “manifest injustice” has occurred permitting him to “withdraw his plea.”
Calhoun next argued his “trial counsel was constitutionally ineffective by allowing him to enter into a plea agreement while knowing that he was under the influence of the medication, Thorazine .” Calhoun suggested his counsel should have researched the effect of the drug or “at the very least, asked for a competency hearing to insure that [Calhoun] fully understood the proceedings that he was participating in.” Calhoun affirmatively declared that he “was impaired throughout the course of this case due to the medications that he was taking and also contends that his counsel was very much aware of this fact and failed to act upon that knowledge.”
Calhoun finally argued his “trial counsel was constitutionally ineffective by allowing him to enter into a plea without informing him of the substantive defense evidence that he had.” Calhoun cited his counsel's statements during sentencing, offered to rebut allegations concerning the crime made by the victim's father, as a description of this evidence. Calhoun alleged, “had [he] been informed of this evidence he would have certainly taken his case to trial.”
Calhoun's motion was first considered by the Honorable Terry L. Pullman who had sentenced Calhoun. Judge Pullman held a hearing with counsel but without Calhoun. The judge identified only two issues, the effect of the Thorazine on the plea and the lack of an allocution at sentencing. Judge Pullman addressed only the second issue, holding Calhoun “was conclusively given his right to allocution by the sentencing court at sentencing.” Judge Pullman referred the remaining issue to the Honorable Ben Burgess who had taken Calhoun's plea.
Judge Burgess held a hearing at which Calhoun appeared with counsel. Calhoun's counsel stated his client “relates to me ... that he was so heavily ... under Thorazine, a psychotropic medication, that he has little to no recall at all as to what happened while he took the plea.” The State responded that Calhoun's motion was untimely under the “one-year statute of limitations to file a motion to withdraw plea.” The State argued with respect to the merits that “[t]here is clearly no substantial record of fact before this Court.”
Judge Burgess held Calhoun's motion to withdraw plea was untimely and that he had not shown excusable neglect. The judge also found based on the transcript of the plea hearing that Calhoun was also “orientated as to the time, place, events, and the nature of the proceedings,” The judge further noted that Calhoun's trial counsel, with “a much better opportunity to observe Mr. Calhoun and his ability to comprehend and respond and answer questions,” had said Calhoun admitted the medication helped “him understand what's going on in the court proceedings.” Judge Burgess therefore denied the motion to withdraw plea.
Calhoun timely appealed.
Did the District Court Err in Denying the Motion to Withdraw the Plea?
Calhoun does not argue his ineffective assistance of counsel allegations which are therefore waived and abandoned on appeal. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
The only issues before us on appeal are the ones which were identified below at the hearings, the effect of Thorazine on the plea, the allocution at sentencing, and the timeliness of the motion to withdraw the pleas which claimed manifest injustice. Statute of Limitations
“To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.” K.S.A.2011 Supp. 22–3210(d)(2). As applied here, Calhoun had to file his motion “within one year of ... [t]he final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction.” K.S.A.2011 Supp. 22–3210(e)(1)(A). The time limitation may be extended “only upon an additional, affirmative showing of excusable neglect by the defendant.” K.S.A.2011 Supp. 22–3210(e)(2). Appellate review over a statute of limitations question is unlimited. State v. Meza, 38 Kan.App.2d 245, 247, 165 P.3d 298,rev. denied 785 Kan. 1176 (2007).
Calhoun does not argue excusable neglect on appeal. Rather, he argues the “final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction” occurred on November 9, 2009, when this court ordered dismissal of Calhoun's untimely notice of appeal. Calhoun therefore assumes his late notice of appeal and the consequent Ortiz hearing were part of a direct appeal.
But, Calhoun did not take a direct appeal and only attempted to do so. When Calhoun tried to prove an Ortiz exception, he was unable to do so. Judge Pullman who also conducted the Ortiz hearing, found Calhoun and his trial counsel “agreed that [Calhoun] was advised of his limited appeal rights before sentencing and during sentencing. [Trial counsel] also confirmed that [Calhoun] was advised of his limited appeal rights after sentencing and that [Calhoun] did not request the filing of a direct appeal.” Calhoun did not appeal these findings which are now the law of the case. See State v. Collier, 263 Kan. 629, Syl. ¶ 2, 952 P.2d 1326 (1998).
Since no Ortiz exception applied, our court never had jurisdiction for a direct appeal. See Patton, 287 Kan. 200, Syl. ¶ 2 (“A timely notice of appeal ordinarily is jurisdictional.”). We took jurisdiction only to determine whether Calhoun was subject to “waiver” because after being “properly informed of his ... appellate rights,” he had “let the matter rest.' [Citations omitted.]” 287 Kan. at 218. Since Calhoun waived his appellate rights by letting the matter rest, he logically never took a direct appeal, either after sentencing in 2006 or when he filed the untimely notice of appeal in 2009.
K.S.A.2011 Supp. 22–3210(e) took effect on April 16, 2009, and considering Calhoun had a 1–year grace period to file his motion to withdraw plea, he needed to file before April 16, 2010. See State v. Benavides, 46 Kan.App.2d 563, 568–69, 263 P.3d 863 (2011). Calhoun did not file until August 2, 2010, outside the limitations period. Further, he has failed to show any excusable neglect for filing a motion to withdraw his plea within the required statutory period.
Judge Burgess correctly held Calhoun's motion was untimely and, therefore, issues raised therein are barred. Merits of the Motion to Withdraw Plea
Judge Pullman did not rule on the timeliness of the motion, but simply addressed the merits of Calhoun's allocution claim.
It is unclear to us how denial of allocution at sentencing could affect a plea. A denial of allocution does not make a sentence illegal. State v. Heath, 285 Kan. 1018, 1019, 179 P.3d 403 (2008). While it appears to us the allocution issue is also subject to Judge Burgess' timeliness ruling, out of an overabundance of caution, we will consider the merits.
Considering first the allocution issue, Calhoun had to prove his plea was manifestly unjust due to lack of allocution at sentencing. Calhoun cites no cases showing any link between a claimed manifestly unjust plea and the lack of allocution at sentencing. The allocution contention is unpersuasive for this reason alone.
Further, Calhoun admits Judge Pullman afforded him an opportunity to speak at sentencing but contends he was not informed of his right to present evidence in mitigation at sentencing. He does not identify any evidence on appeal that he would or could have presented.
Manifest injustice requires “something obviously unfair or shocking to the conscience.” State v. Barahona, 35 Kan.App.2d 605, 609, 132 P.3d 959,rev. denied 282 Kan. 791 (2006). It was not obviously unfair or shocking to the conscience that Judge Pullman asked Calhoun at sentencing whether there was “anything you would like to say to me before I decide sentencing,” without specifically inquiring about evidence Calhoun has yet to identify.
Calhoun's point about his use of Thorazine has more substance but is still unpersuasive. Calhoun repeats on appeal that “neither he, nor his attorney, nor the judge in this matter is a medical professional,” but Calhoun bore the burden to show manifest injustice. See State v. Plotner, 290 Kan. 774, 777, 235 P.3d 417 (2010). Calhoun did not provide any evidence of manifest injustice when provided a hearing before Judge Burgess. It was specifically noted that at the plea hearing, Calhoun's attorney stated that Calhoun admitted the medication he was taking helped “him understand what's going on in the Court proceedings.”
Our Supreme Court in State v. Denmark–Wagner, 292 Kan. 870, 258 P.3d 960 (2011), faced a similar question when the defendant argued before sentencing that “his plea was not intelligently entered into because he was taking trazodone at the time of his plea agreement.” 292 Kan. at 878. The defendant complained the district court had failed to ask about the medication and, therefore, abused its discretion.
The Denmark–Wagner opinion pointed out “there is nothing in the statute governing acceptance of pleas to require a judge to ask specifically about medications the defendant may be taking.” 292 Kan. at 878. Deemed more important was the transcript of the plea hearing where defendant appeared “to have been actively and sensibly engaged in the proceedings.” 292 Kan. at 880.
In our case, Judge Burgess asked Calhoun about medication during the hearing and received assurance from both Calhoun and his attorney that it was not negatively affecting Calhoun. In fact, the statement of counsel indicated it was of assistance. We clearly hold the extended colloquy at the plea hearing was proper and in no way could be considered manifest injustice to allow a plea to be withdrawn.
The trial court is affirmed.