Opinion
No. 106,517.
2012-09-21
STATE of Kansas, Appellee, v. Steve GENTON, Appellant.
Appeal from Reno District Court; Timothy J. Chambers, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
MEMORANDUM OPINION
Appeal from Reno District Court; Timothy J. Chambers, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., STANDRIDGE and BRUNS, JJ.
PER CURIAM:
Steve Genton appeals from the district court's decision to summarily deny his presentence motion to withdraw his plea. Genton also claims on appeal that the sentencing journal entry incorrectly reflects the crime of conviction and that the district court erred in enhancing his sentence based on criminal history that was not proven to a jury beyond a reasonable doubt. For the reasons stated below, we agree the journal entry must be amended to correctly reflect the crime of conviction, we affirm the court's decision to deny Genton's motion to withdraw plea, and we find no error in the court's decision to enhance Genton's sentence based on his criminal history.
Facts
In 2009, Genton was charged with aggravated escape from custody after escaping from the Hutchinson Correctional Facility. The case originally was set for jury trial on May 11, 2010, but was continued three separate times at Genton's request in order to allow defense counsel additional time to prepare for trial. When the parties appeared for trial on October 26, 2010, Genton advised the district court that he wanted to enter a guilty plea. After the judge informed Genton of the various trial rights he would be waiving by entering a plea, the following exchange occurred:
“THE COURT: Are you telling me you've had enough time to think this over and that's what you wish to do, is waive those rights and enter a plea of guilty?
“[GENTON]: Yes, Your Honor, and my answer is based on because there's things that I wanted to be done, but that wasn't done. So that's why I'm pleading guilty today.
“THE COURT: No, I—certainly you have the right to plead or not. It's your attorney's job to present the evidence that she feels and proceed how she should. I'm not going to tell you you can't plead guilty; that's your decision. And you can plead guilty, not guilty, or no contest. That's up to you.
“But your attorney runs the trial. You make certain decisions whether you want a jury trial, whether you want to plead guilty or not guilty or no contest, but I'm making sure that you're not doing this, you're not going to come back later and say wait a minute; I've changed my mind. This is what you want to do?
“[GENTON]: Yes.
“THE COURT: Okay. Did you hear the plea agreement?
“[GENTON]: Yes.
“THE COURT: Think anything, anybody's promised you anything to make you do this today?
“[GENTON]: No.
“THE COURT: Is anybody forcing you to do this when you don't want to?
“[GENTON]: No.
“THE COURT: Any complaints about the way your lawyer has treated you throughout this?
“[GENTON]: That's, that's what I was saying, there's things that I think she should have done that she didn't do.
“THE COURT: Okay. What kinds of things?
“[GENTON]: Witnesses.
“THE COURT: Okay.
“[GENTON]: Actually, it goes back to the, I've given her names that can help me to show the, my defense.
“THE COURT: Miss [Bonnie] Corrado [defense counsel], based upon your experience as a lawyer do you believe you have considered and properly prepared for a defense in this case and
“MS. CORRADO: I believe I have, judge. I've met with Mr. Genton on at least two, maybe three occasions in the
“[GENTON]: Two times.
“MS. CORRADO:—two times in the jail. We've reviewed the discovery, extensively. He sent me numerous letters which I've read and reviewed and considered, and it was my understanding that we had decided on his defense being his testimony; that he was going to testify today.
“THE COURT: Okay. You understand, Mr. Genton, that your, your attorney is there for a reason, to present the defense and present evidence that she feels necessary. And there's always going to be differences between what defendants want or think can happen and what counsel do; not all the time, but certainly sometimes.
“[GENTON]: That's why—I didn't mean to interrupt you, sir.
“THE COURT: No, that's fine. I just want, I'm just getting to the bottom of it. Is that the problem [that] you may have wanted to present a little bit different defense than what Miss Corrado did?
“[GENTON]: That is correct, yes.
“THE COURT: Okay. You understand that that is her decision on how to present it?
“[GENTON]: Right, I understand that.
“THE COURT: Okay.
“[GENTON]: That's why I'm, there's no need to go through a trial today.”
After confirming that he understood the charge against him and the possible sentence that could be imposed, Genton entered a guilty plea to aggravated escape from custody. In finding Genton's decision to plea was knowing and voluntary, the judge stated:
“The court certainly is cognizant of the fact that there might be slight disagreements for the defense to take or how to present, but that is defense counsels position—or, and I have every faith in Miss Corrado. I've seen her for years and years and she is a very thorough attorney, is going to do everything she can to do what she thinks she can legally to defend you.”
On January 10, 2011, well over 2 months after entering the plea, Genton filed a pro se presentence motion to withdraw it based, in part, on the assertion that his plea was not knowing and voluntary because he was suffering from a mental illness that clouded his judgment during the plea hearing. Genton further alleged that Corrado had been ineffective and that he had only entered the plea due to Corrado's failure to prepare for trial. Genton also filed a request for new counsel. On January 11, 2011, the district court appointed John Sullivan to represent Genton. A hearing on Genton's motion to withdraw his plea and sentencing was scheduled for February 7, 2011; this hearing was continued until February 17, 2011, due to a death in Sullivan's family.
At the February 17 hearing, the parties appeared before the same district court judge who accepted Genton's plea. At the hearing, Sullivan requested another continuance in order to investigate the claim that Genton had medical issues on the day of the plea hearing. The district court denied the request. Sullivan then argued that Genton's plea should be set aside due to medical issues that prevented him from entering a knowing and voluntary plea. Genton also addressed the court himself and argued that Corrado had been ineffective in failing to conduct a sufficient investigation into his defense.
At the close of the hearing, the district court concluded that there was no indication at the plea hearing that Genton was suffering from any illness or that his plea was not knowing and voluntary. In denying Genton's motion to withdraw his plea, the judge stated:
“For the record, this matter, the offense occurred in September, 2009. The matter was set, was charged initially in December of 2009, preliminary hearing was held in March, jury trials were set on three occasions and continued at the request of the defense. Sentencing finally occurred with-or plea finally occurred on the fourth setting when the court refused to grant the fourth continuance, and a plea colloquy as previously indicated took place.
“Sentencing was originally set for December 3rd. That has now been continued four times. At some point a trial needs, or a case needs to come to some sort of conclusion. Today was the day in this case.
....
“But at this point this case needs to be resolved. The court finds you have not shown good cause.... [Y]ou had every right to a jury trial. That [plea] you made on the record, clearly admitted your guilt without question and proceeded to enter your plea. The court found the plea to be freely, voluntarily, and intelligently made.”
The district court sentenced Genton to a 122–month prison term and ordered him to pay restitution in the amount of $9,269.64 to the Kansas Department of Corrections (KDOC).
Analysis
On appeal, Genton claims: (1) The district court erred in denying his motion for continuance at the withdraw of plea hearing; (2) the district court erred in denying the motion to withdraw his plea without conducting an evidentiary hearing; (3) the sentencing journal entry incorrectly reflects the crime of conviction; and (4) the district court erred in enhancing his sentence based on criminal history that was not proven to a jury beyond a reasonable doubt. We address each of Genton's claims in turn.
1. Genton's Request to Continue the February 17 Hearing
Genton argues the district court should have granted his motion to continue the February 17 hearing so that his attorney could further investigate the state of Genton's mental health on the day of his plea. In support of his argument, Genton notes that Sullivan had only been appointed to his case shortly before the plea hearing and that this particular hearing had only been continued once, due to a death in Sullivan's family.
The district court may, in its discretion, grant a motion to continue upon a showing of good cause by the movant. K.S.A. 22–3401. The district court's decision to deny such a motion will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Carter, 284 Kan. 312, 318, 160 P.3d 457 (2007). “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. [Citation omitted.]” State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009). The party asserting the district court abused its discretion bears the burden of showing such abuse. State v. Wells, 289 Kan. 1219, 1226, 221 P.3d 561 (2009).
At the motion to withdraw plea/sentencing hearing, Sullivan informed the court that it was his first opportunity to meet Genton in person and that he and Genton had only exchanged a few letters prior to the hearing. Sullivan informed the court that he had received a letter from Genton the previous day, which specifically alleged that Genton had medical issues on the day of the plea and should have been under a doctor's care. Thus, Sullivan requested a continuance in order to investigate Genton's allegations. In denying the request, the court noted that the day before Genton's trial was scheduled, Corrado had notified the court that Genton was ill. In the presence of the prosecutor and defense counsel, the court then contacted the KDOC and spoke with medical personnel to determine if Genton would be able to attend the trial. The court recalled that the KDOC indicated there was no medical reason preventing Genton from appearing at trial. The court also recalled that in taking Genton's plea, he was questioned in great detail to determine whether he had the ability to understand the proceedings and the court was satisfied with his statements and responses to the questioning.
We find nothing arbitrary, fanciful, or unreasonable in the district court's decision here. First, we note that Genton entered his plea on October 26, 2010, but did not raise the issue regarding his mental health until his January 10, 2011, motion to withdraw his plea. Second, the district court appointed Sullivan to represent Genton on January 11, 2011, which provided Sullivan over a month to prepare for the hearing. Specifically, there appears to be no dispute that the mental health issue was raised in Genton's pro se motion to withdraw plea filed with the court, but Sullivan provided no explanation as to why he failed to discuss and/or investigate the merits of the issue during the 38–day period between appointment on January 11 and the hearing on February 17. Third, the record demonstrates that the district court not only inquired into the state of Genton's health prior to the plea hearing, it was also able to observe and question Genton at the time of his plea and was satisfied that Genton did not suffer from any mental defect or health issue that affected his ability to understand the plea proceedings. Finally, Genton failed to designate what evidence he might have presented if the continuance had been granted. Simple speculation on the part of the defendant that with more time something more favorable to him might have materialized is not good cause for a continuance. See State v. Hill, 145 Kan. 19, 22, 64 P.2d 71 (1937) (no prejudicial error where defendant's motion for new trial did not show that with more time he could have demonstrated unreliability of witnesses or adduced contrary evidence).
For all of these reasons, we find the district court did not abuse its discretion in denying Genton's motion for continuance.
2. Denying Genton's Motion to Withdraw Plea
Genton claims the district court erred in denying his motion to withdraw his guilty plea without first holding an evidentiary hearing. Specifically, Genton alleges that the evidence he would have presented at the hearing would have established that his mental health issues prevented him from knowingly and voluntarily entering his plea and that he would not have entered the plea but for Corrado's failure to investigate a defense prior to trial.
“Appellate courts review a district court's decision in a presentence motion to withdraw plea for abuse of discretion.” State v. Anderson, 291 Kan. 849, Syl. ¶ 1, 249 P.3d 425 (2011). As previously stated, a district court abuses its discretion when judicial action is arbitrary, fanciful, or unreasonable, and the defendant bears the burden of establishing the abuse of discretion. See Wells, 289 Kan. at 1226;Gant, 288 Kan. at 81–82.
K.S.A.2011 Supp. 22–3210(d) governs the withdrawal of a guilty plea. At any time before sentencing, a court may permit a plea to be withdrawn for good cause shown and within the discretion of the court. K.S.A.2011 Supp. 22–3210(d)(l). “ ‘In determining whether the defendant has shown good cause to permit the withdrawal of a plea, the district court should consider whether: “(1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understandingly made.” [Citations omitted.]’ “ State v. Williams, 290 Kan. 1050, 1053, 236 P.3d 512 (2010). However, not all three factors have to be met and the district court may look to other factors when applying its discretion. 290 Kan. at 1054–56.
There is no evidence Genton's plea counsel was incompetent
Genton contends he was entitled to an evidentiary hearing on his motion to withdraw plea because his counsel at the plea hearing was not competent. Specifically, Genton argues he complained to the district court that Corrado failed to investigate possible witnesses to support his defense but the court never explicitly asked Corrado whether she had actually investigated these witnesses in preparation for trial.
In State v. Aguilar, 290 Kan. 506, 231 P.3d 563 (2010), our Supreme Court clarified that the standard for determining the competency of counsel for purposes of withdrawing a plea is less stringent than the standard used for a constitutional violation. Thus, after Aguilar, defendants trying to show good cause to withdraw their plea prior to sentencing based on allegations that trial counsel was incompetent do not need to meet the higher constitutional burden but, instead, must show merely “lackluster” advocacy. 290 Kan. at 513.
At the plea hearing, Genton expressed concern about Corrado's lack of investigation into possible witnesses for his defense. In response to Genton's claims, the judge questioned Corrado as follows;
“THE COURT: Miss Corrado, based upon your experience as a lawyer do you believe you have considered and properly prepared for a defense in this case and
“MS. CORRADO: I believe I have, judge. I've met with Mr. Genton on at least two, maybe three occasions in the
“[GENTON]: Two times.
“MS. CORRADO:—two times in the jail. We've reviewed the discovery, extensively. He sent me numerous letters which I've read and reviewed and considered, and it was my understanding that we had decided on his defense being his testimony; that he was going to testify today.”
The district court ultimately concluded that Corrado did consider Genton's request to interview various witnesses but that Corrado concluded it was not a sound trial strategy and advised Genton accordingly. To that end, the court held Genton's complaints about Corrado's representation were not grounded in incompetency but instead involved a disagreement over trial strategy.
Trial counsel has the responsibility to make tactical and strategic decisions. The determination of which witnesses will testify at trial is a decision that falls under this umbrella. Flynn v. State, 281 Kan. 1154, 1165, 136 P.3d 909 (2006). Trial counsel does not, however, have unlimited power to make all legal decisions at trial. A defendant has the right to make the following decisions after a full consultation with his or her attorney: “ ‘(1) what plea to enter; (2) whether to waive jury trial; and (3) whether to testify in his own behalf.’ “ State v. Carter, 270 Kan. 426, 439, 14 P.3d 1138 (2000).
The record in this case demonstrates that Corrado's decisions regarding trial preparation were grounded in strategy and that Genton's concern at the plea hearing was his disagreement regarding that strategy and not Corrado's incompetence. First, Corrado specifically noted at the plea hearing—in response to a question posed by the court—that she reviewed and considered Genton's suggestions but had ultimately decided to pursue a different trial strategy, which apparently involved Genton testifying at trial. Genton's colloquy with the court during the plea hearing is consistent where, at one point, the court asked whether Genton's problem with Corrado's representation was that he “may have wanted to present a little bit different defense than what Miss Corrado did,” to which Genton responded, “That is correct, yes.”
The record supports a finding that Genton's plea was fairly and understandably made
Genton argues that the district court should have held an evidentiary hearing because there is evidence to establish that the only reason he entered a plea of guilty is because he was so depressed about Corrado's lack of preparation in his defense.
Genton's argument is without merit. As noted above, the district court inquired into Genton's ability to attend the plea hearing and the KDOC medical personnel advised the court there was no medical reason that he could not attend. Further, Genton's colloquy with the district court at the plea hearing supports the court's determination that Genton's plea was knowing and voluntary. Genton's responses to the district court's questions indicate that he understood the charge against him, that he was aware of the sentence that he faced and the various trial rights he was waiving, and that the decision to plea was his own and was not the product of force or coercion. At the conclusion of the hearing, the judge asked Genton, “So you're pleading guilty because you are guilty?” Genton responded affirmatively and agreed there was “[n]o question” that he was guilty.
3. Journal Entry
Genton argues that because the sentencing journal entry is at odds with the crime for which he was charged and convicted, this court must remand for the district court to file a nunc pro tunc order correcting the errors in the journal entry.
Genton was charged with, and convicted of, aggravated escape from custody, contrary to K.S.A. 21–3810(a)(7). As described in this section, aggravated escape from custody is a severity level 5, nonperson felony. K.S.A. 21–3810(c)(2). However, the sentencing journal entry incorrectly reflects that Genton was convicted of K.S.A. 21–3910(a)(7) and that the crime is a person felony. The State concedes these errors.
K.S.A. 22–3504(2) states that “[c]lerical mistakes in judgments ... may be corrected by the court at any time and after such notice, if any, as the court orders.” We, therefore, reverse and remand to the district court with directions to enter a nunc pro tunc journal entry correcting the sentencing journal entry to properly reflect the crime of Genton's conviction.
4. Criminal History
Finally, Genton challenges the district court's use of his prior convictions as reflected in his criminal history score to enhance his sentence based on the due process concerns of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Genton acknowledges that our Supreme Court has rejected his argument in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), but raises the issue in order to preserve it for federal review.
We are duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Our Supreme Court continues to reaffirm its precedent in this area. See State v. Barnes, 293 Kan. 240, 265, 262 P.3d 297 (2011). Therefore, the district court did not violate Genton's constitutional rights at sentencing.
Affirmed in part, reversed in part, and remanded with directions.