Opinion
Nos. 111,550 111,551.
2015-03-6
STATE of Kansas, Appellee, v. Chad M. JOHNSON, Appellant.
Appeal from Reno District Court; Trish Rose, Judge.Christina M. Kerls, Kansas Appellate Defender Office, for appellant.Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Trish Rose, Judge.
Christina M. Kerls, Kansas Appellate Defender Office, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Chad M. Johnson appeals the trial court's denial of his motion to withdraw pleas. On appeal, Johnson argues that the trial court erred when it denied his motion because he did not understand his pleas, he was misled to accept the pleas, and he had ineffective assistance of counsel. Finding no merit in these contentions, we affirm.
In April 2007, Johnson was arrested and charged in Reno County Case No. 07CR368. The State charged Johnson with one count of possession of methamphetamine with the intent to sell, second offense; one count of possession of drug paraphernalia with the intent to use to package a controlled substance for sale; one count of criminal possession of a firearm; and one count of possession of methamphetamine without tax stamps affixed. Johnson ultimately entered into a plea agreement. Johnson agreed to plead guilty to one count of possession of methamphetamine with intent to sell, second offense, and one count of criminal possession of a firearm in exchange for the dismissal of the other charges. The prosecutor, Thomas Stanton, additionally agreed not to oppose probation.
On September 7, 2008, after pleading guilty but before sentencing, Johnson was arrested for possession of methamphetamine in Reno County Case No. 08CR790. The State initially charged Johnson with possession of methamphetamine but later amended the charge to possession of methamphetamine with intent to sell, his third offense.
On September 26, 2008, at the sentencing in 07CR368, Johnson's attorney, Donald Snapp, argued for a dispositional departure to probation. As the trial court announced Johnson's sentence, though, the following dialogue occurred:
“MR. STANTON: Judge I didn't know this, this case was attached to my, to my other case here. I don't know. The defendant apparently has been arrested, again, for possession of methamphetamine. He has a presumption of innocence but
“THE DEFENDANT: May I?
“MR. STANTON: I didn't know that.
“MR. SNAPP: Judge, I was unaware either.
“THE DEFENDANT: I
“THE COURT: It's probably best not to be talking about this at this time, Mr. Johnson.”
Stanton then suggested that the court take a recess to consider this new information. The trial judge decided to set sentencing over 1 week “so we don't make rash decisions and, so we can look into Mr. Johnson, with regard to Mr. Johnson's life and the community safety in regards to this case.”
On October 6, 2008, Johnson moved to withdraw his guilty plea in 07CR368. In his motion, Johnson stated that he entered the plea because the State agreed to support his departure request. He also asserted that the State “inherently violated the spirit of the plea agreement” by bringing up his recent possession of methamphetamine arrest.
After Johnson moved to withdraw his guilty plea, the court allowed Snapp to withdraw as counsel because he might be called as a witness at Johnson's motion hearing. The court then appointed Shannon Crane to represent Johnson in both 07CR368 and 08CR790. In August 2009, Johnson fled to Arizona. Johnson was arrested in Arizona and returned to Kansas in June 2010. Following Johnson's return, Crane negotiated a plea agreement with Stanton for both 07CR368 and 08CR790.
This plea agreement was not in writing. Nevertheless, Stanton stated the elements of the plea agreement on the record at Johnson's joint hearing on his request to withdraw his motion to withdraw plea in 07CR368 and his plea hearing in 08CR790. Stanton described the plea agreement as follows: if Johnson withdrew his motion to withdraw guilty plea in 07CR368 and pled no contest in 08CR790, then Stanton would dismiss an aggravated failure to appear charge, ask the court to run the 07CR368 and 08CR790 sentences concurrently, and allow Johnson to move for downward dispositional departure. While Stanton maintained that Johnson could move for a downward dispositional departure, Stanton specifically stated on the record that he would oppose the departure motion. At this hearing, both Crane and Johnson affirmed that this was their understanding of the plea agreement.
Moreover, Johnson testified that this was the entire plea agreement, no one had promised him probation, and that he wanted to withdraw his motion to withdraw plea in 07CR368 and plead no contest in 08CR790. After informing Johnson of the consequences of pleading no contest, the trial court granted Johnson's request to withdraw his motion to withdraw plea for 07CR368 and accepted his no contest plea for 08CR790. The court then set a special joint sentencing for 07CR368 and 08CR790.
At the joint sentencing in October 2010, Crane argued for a dispositional departure to probation in both cases. Stanton opposed the dispositional departure. The trial court ultimately denied the dispositional departure motion.
In 07CR368, the trial court sentenced Johnson to 68 months' imprisonment for possession of methamphetamine with intent to sell, second offense, and 8 months' imprisonment for criminal possession of a firearm. The sentencing judge ordered that the 07CR368 sentences run concurrently and for Johnson to additionally serve 36 months' postrelease supervision. In 08CR790, the trial court sentenced Johnson to 178 months' imprisonment for possession of methamphetamine with intent to sell, third offense, and 36 months' postrelease supervision. The sentencing judge ordered that the 08CR790 sentence run concurrent with the 07CR368 sentences.
Johnson then appealed his sentences under K.S.A. 21–4721(g) and (h). Our Supreme Court found no error in the sentences imposed by the trial court. State v. Johnson, No. 105,346, 2012 WL 1253216 (Kan.2012) (unpublished opinion). Following this appeal, Johnson filed a pro se motion to withdraw pleas. In the motion, Johnson alleged that he did not understand the pleas he made, that Crane made an unfulfillable promise to him to get probation, and that Crane did not sufficiently investigate his case.
The trial court held a hearing on the motion in November 2013. Both Johnson and Crane testified at the hearing. Johnson testified that Crane told him if he pled in both cases, the cases would be consolidated. According to Johnson, Crane told him that this meant he would not have a third offense of possession of methamphetamine with intent to sell and that he could get probation. Johnson testified that this is why he accepted the plea agreement and that he would have gone to trial if he knew he was not going to get probation. Johnson further explained that it was his understanding that Stanton would not oppose probation. Additionally, Johnson testified that Crane did not investigate his case or the elements of the crimes with which he was charged.
Crane testified that Stanton agreed to not oppose probation in the 07CR368 and 08CR790 cases if Johnson withdrew his motion to withdraw plea in the 07CR368 case and pled guilty in 08CR790 case. Crane testified that she believed that Stanton did not violate the plea agreement because he did not oppose the departure. She also testified that she informed Johnson about his options and possible defenses.
The trial court found that Johnson did not establish manifest injustice because he had competent counsel; he was not misled, coerced, mistreated or unfairly taken advantage of; and he understood his plea.
Did the Trial Court Err When It Denied Johnson's Motion to Withdraw Pleas?
K.S.A.2014 Supp. 22–3210(d)(2) states: “To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.” Manifest injustice exists if something is “obviously unfair or shocking to the conscience.” State v. Barahona, 35 Kan.App.2d 605, 608–609, 132 P.3d 959, rev. denied 282 Kan. 791 (2006). When considering whether a defendant established manifest injustice, the trial court will consider the Edgar 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. State v. Lackey, 45 Kan.App.2d 257, 266, 246 P.3d 998, rev. denied 292 Kan. 968(2011).
A trial court's decision to deny a motion to withdraw plea will not be disturbed absent an abuse of discretion. State v. Green, 283 Kan. 531, 545, 153 P.3d 1216 (2007). The defendant bears the burden of establishing the abuse of discretion. Green, 283 Kan. at 545. An abuse of discretion occurs when a 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. Macias–Medina, 293 Kan. 833, 836, 268 P.3d 1201 (2012) (quoting State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 [2011] ).
Additionally, this court does not “reweigh evidence or assess witness credibility,” giving deference to the trial court's factual findings so long as those findings are supported by substantial competent evidence. State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011).
On appeal, Johnson makes three arguments: (1) his pleas were not understandingly made; (2) his attorney misled him into accepting his pleas; and (3) his attorney provided ineffective assistance of counsel. Despite his contentions, Johnson is unable to demonstrate that the trial court abused its discretion when it denied his motion to withdraw pleas.
a. Johnson's Plea Was Understandingly Made.
Johnson makes two arguments why his plea was not understandingly made. First, Johnson argues that no one informed him that he would have to register as a lifetime drug offender. Second, Johnson argues that Crane told him his cases were consolidated, and he therefore believed he was pleading no contest to his second, not third, possession with intent to sell methamphetamine offense. For reasons discussed below, however, both of Johnson's arguments are without merit.
i. Lifetime Drug Offender Registration
Under K.S.A.2014 Supp. 22–4906(a)(1)(P) and (c), a person must register for life after a second conviction of possession of methamphetamine with intent to sell. Johnson was charged with his second possession of methamphetamine with intent to sell in 07CR368. Thus, when Johnson pled guilty in 07CR368 the sentencing court required that Johnson register as a drug offender for life.
Johnson contends that the trial court should have allowed him to withdraw his plea because he did not understand he was going to have to register as a drug offender for life when he accepted the plea agreements in either 07CR368 or 08CR790. Johnson alleges that his attorneys, Snapp and Crane, and the trial court all failed to tell him this. Johnson maintains that the trial court was required to tell him about registering in accordance with the Kansas Offender Registration Act (KORA) because his lifetime registration was a consequence of the plea. To support his argument, Johnson cites K.S .A.2014 Supp. 22–3210(a)(2), which requires that the trial court inform a defendant of the “consequences of the plea, including the specific sentencing guidelines level of any crime ... and of the maximum penalty provided by law which may be imposed upon acceptance of such plea.”
Nevertheless, precedent contradicts Johnson's assertion. In State v. Legg, 28 Kan.App.2d 203, 13 P.3d 355 (2000), rev. denied 270 Kan. 901(2001), this court found that a trial court was not required to inform a defendant about mandatory sex offender registration under KORA before accepting a plea. The Legg court held that offender registration is not penal in nature and thus not a direct consequence of the plea. 28 Kan.App.2d at 207. In reaching this decision, the Legg court relied on State v. Wilkinson, 269 Kan. 603, 610, 9 P.3d 1 (2000), where our Supreme Court restated its prior holding that while registering might cause discomfort, the act of registration alone is not punishment. Moreover, due process does not require that a defense attorney inform a defendant of collateral consequences from entering a plea. Barahona, 35 Kan.App.2d at 611–612.
Although Johnson acknowledges the Legg finding, Johnson still argues that lifetime registration is penal and a consequence of the plea. Johnson specifically argues that this court should decline to follow Legg for three reasons: (1) the Legg court failed to adequately address our Supreme Court's decision in State v. Myers, 260 Kan. 669, 923 P.2d 1024 (1996); (2) the recent legislative amendments make KORA registration a punishment; and (3) the $20 KORA registration fee is penal. Our court, however, has rejected these exact arguments. See State v. Weis, 47 Kan.App.2d 703, 718–19, 280 P.3d 805 (2012); State v. Watkins, No. 110,702, 2014 WL 4231269, at *3–4 (Kan.App.2014) (unpublished opinion); State v. Huey, No. 109,690, 2014 WL 1707807, at *4–6 (Kan.App.2014) (unpublished opinion); State v. Byers, No. 108,564, 2013 WL 3867862, at *5–7 (Kan.App.2013) (unpublished opinion); State v. Hall, No. 106, 903, 2013 WL 646482, at *4 (Kan.App.) (unpublished opinion), rev. denied 297 Kan. 1250 (2013).
In his first argument, Johnson contends that Legg does not adequately consider the Myers finding that the public disclosure aspect of registration imposed punishment in violation of the Ex Post Facto Clause of the United States Constitution. 260 Kan. at 695–700. This is the exact argument that this court recently rejected in Byers. The Byers court rejected this argument because while the Myers court found that the public disclosure aspect of registration imposed punishment in violation of the Ex Post Facto Clause of the United States Constitution, the Myers court ultimately held that registration itself was not penal. 2013 WL 3867862, at *5 (citing Myers, 260 Kan. 669, Syl. ¶¶ 1, 2, 695–700). Furthermore, the Byers court noted that State v. Scott, 265 Kan. 1, 5–6, 15, 961 P.2d 667 (1998), which recognized the limits of the Myers holding but still determined that the public disclosure aspects of registration were punitive but permissible, was abrogated by Smith v. Doe, 538 U.S. 84, 99, 105–06, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003).
In his second argument, Johnson asserts that a post- Legg legislative amendment to KORA making failure to register a level 6 person felony instead of a level 10 nonperson felony makes registration punitive. Nonetheless, the Byers and Watkins courts have previously rejected Johnson's second argument for two reasons. See Byers, 2013 WL 3867862, at *6; Watkins, 2014 WL 4231269, at *4. First, in Byers, this court stated that this argument was unpersuasive because “the penalties associated with a failure to register are a collateral consequence of Byers' pleas.” 2013 WL 3867862, at *6. Essentially, a defendant would not be subject to any additional criminal liability unless he actually violated KORA. Thus, any penalties associated with KORA were not a definite, immediate, or an almost automatic consequence of a no contest plea. 2013 WL 3867862, at *6. Second, in both Byers and Watkins this court rejected Johnson's argument because State v.. Unrein, 47 Kan.App.2d 366, 372, 274 P.3d 691 (2012), rev. denied 291 Kan. 1256 (2013), held that the purpose of registration was for public safety and that the threat of criminal liability was just a means to an end required for KORA to work. Byers, 2013 WL 3867862, at *6; Watkins, 2014 WL 4231269, at *4. Consequently, the underlying criminal liability for failure to register is irrelevant because the purpose of registration is public safety.
In his third argument, Johnson contends that paying a $20 registration fee under K.S.A.2014 Supp. 22–4905(k) is punitive. In his brief, Johnson acknowledges this court's finding in Unrein, 47 Kan.App.2d at 372 (finding that the $20 fee is not a punishment but a way to reimburse the sheriff's office). Still, Johnson argues that the Unrein finding is flawed because fees for reimbursement purposes can also be punitive. Johnson attempts to prove this by comparing the registration fee to a probation fee. Moreover, Johnson argues that registration fees are “ ‘[c]riminal fines, [that] like ... other forms of punishment, are penalties inflicted by the sovereign for the commission of offenses.’ “ Southern Union Co. v. United States, 567 U.S. ––––, 132 S.Ct. 2344, 2350,183 L.Ed.2d 318,2357(2012).
This court has rejected this argument. See Weis, 41 Kan.App.2d at 719; Watkins, 2014 WL 4231269, at *4; Huey, 2014 WL 1707807, at *6; Byers, 2013 WL 3867862, at *6; Hall, 2013 WL 646482, at *4. The Watkins court specifically rejected Watkins' argument that a registration fee was akin to a probation fee because this court has consistently determined that the $20 fee is for recoupment, not punitive, purposes. 2014 WL 4231269, at *4. This court has also rejected the argument that the registration fee is a criminal fine under Southern Union Co. because this court has consistently held that the $20 registration fee under KORA is for recoupment, not punitive, purposes. Watkins, 2014 WL 4231269, at *4; Huey, 2014 WL 1707807, at *6. Moreover, in Byers and Hall, this court compared the KORA registration fee to the Board of Indigents' Defense Services fee, which our Supreme Court held was for recoupment, not punitive, purposes in State v. Robinson, 281 Kan. 538, 543, 132 P.3d 934 (2006). Byers, 2013 WL 3867862, at *6; Hall, 2013 WL 646482, at *4.
Accordingly, we reject Johnson's arguments. Due process does not require that a defense attorney inform a defendant of collateral consequences from entering a plea. Barahona, 35 Kan.App.2d at 611–612. Thus, neither Snapp nor Crane was required to tell Johnson about KORA registration. Moreover, under Legg, the trial court was not required to inform Johnson about registration because it was not a direct consequence of him pleading no contest. Johnson makes three arguments why this court should decline to follow Legg, but this court has previously rejected all three arguments. Although most of these decisions are only persuasive, the logic underlying these decisions remains unchanged. For these reasons, the trial court did not abuse its discretion when it denied Johnson's motion to withdraw plea, finding that Johnson understandingly made his plea.
ii. Consolidation of Cases
Next, Johnson argues that he did not understand the plea agreement because he believed that his offenses from 07CR368 and 08CR790 were going to be consolidated. Johnson states that he believed this for two reasons: (1) that Crane told him that his cases would be consolidated, meaning that his possession with intent to sell in the 08CR790 case would be sentenced as a second offense rather than his third offense, and (2) that the trial court never explained to him that the 08CR790 conviction would be his third offense or the range of sentences he was subject to under the sentencing grid. Both of Johnson's arguments, however, fail.
First, Johnson's allegation that Crane told him his cases were being consolidated fails because the trial court made a credibility determination that Crane was telling the truth. The only testimony at the motion to withdraw plea hearing was from Johnson and Crane. At the motion hearing, Johnson testified that Crane told him that the 07CR368 and the 08CR790 cases would be consolidated, allowing him to receive probation. At his 08CR790 plea hearing, however, Johnson testified that no one had promised him probation. Additionally, at the motion to withdraw pleas hearing, Crane testified that she and Johnson discussed the consequences of him pleading to second and third offenses. Crane also testified that she did not recall ever speaking to Johnson or Stanton about the possibility of consolidating the two offenses.
Since the trial judge denied Johnson's motion, it is readily apparent that the trial judge made a credibility determination that Crane was testifying truthfully. Crane's testimony contradicts Johnson's allegations. Also, the fact that Johnson stated at his plea hearing that no one had promised him probation contradicts his own allegation. This court does not reweigh evidence or assess witness credibility as long as those findings are supported by substantial competent evidence. Anderson, 291 Kan. at 855. Given this testimony, it was not an abuse of discretion for the trial court to find that Johnson understood his plea and had not established manifest injustice to withdraw his plea.
Johnson's next argument fails because any error that resulted from the plea colloquy was harmless. Johnson argues that he was unaware that his cases were not consolidated because the judge at the 08CR790 plea hearing did not adequately explain his sentence. Johnson correctly asserts that the trial court never explained the possible sentencing range he could receive under the grid or told Johnson that he was pleading no contest to a third offense.
K.S.A 2014 Supp. 22–3210(a)(2) requires that the trial court inform a “defendant of the consequences of the plea, including the specific sentencing guidelines level of any crime.” Nevertheless, if a trial court fails to adhere to the statute “the the error can be deemed harmless and the plea need not be set aside if, upon review of the entire record, the purpose of the statute is otherwise served— i.e., if a defendant is advised of the plea's consequences in a written plea agreement, by defense counsel, or in some other way.” State v. White, 289 Kan. 279, 287, 211 P.3d 805 (2009). The error in Johnson's case was harmless because upon review of the entire record it is clear that Johnson understood his plea.
Again, Crane testified that she discussed with Johnson that the 07CR368 and the 08CR790 cases would be his second and third possession of methamphetamine with intent to sell offenses. At the motion to withdraw pleas hearing, Crane additionally testified that she advised Johnson on the Kansas sentencing grid and guidelines that applied in his case. In a letter written to the sentencing judge asking for leniency, Johnson acknowledged he was charged with possession with intent to sell third offense. He also acknowledged that “these charges [were] very serious and carr[ied] a very serious prison sentence.” At the joint withdrawal of motion to withdraw plea in 07CR368 hearing and 08CR790 plea hearing the trial judge asked Johnson if he “[knew] the sentence that [he] could be given?” Johnson responded “Yes, sir.” Furthermore, at that same hearing, Stanton explained on the record the State's recommended sentence. Stanton stated that Johnson had a criminal history score of C and that the State was recommending that Johnson serve the mid-range 178 months' imprisonment for his controlling 08CR790 sentence. Stanton also discussed that Johnson still needed to be sentenced in both 07CR368 and the 08CR790 and that he was recommending that these sentences run concurrently.
Based on this evidence, any error that resulted from the trial judge's failure to fully explain Johnson's sentence was harmless. From Crane's testimony, Johnson's letter and testimony, and Stanton's discussion of Johnson's sentence, it is clear that Johnson understood his underlying sentence, his cases were not consolidated, and his plea agreement required him to plead no contest to his third possession with intent to sell offense.
In conclusion, the trial court did not abuse its discretion in denying Johnson's motion to withdraw pleas because substantial competent evidence supports that Johnson understood that his 07CR368 case and 08CR790 case were not being consolidated. Crane's testimony that she discussed with Johnson that he was facing a third offense discredits Johnson's allegations that she told him his cases were being consolidated. Furthermore, any error that resulted from the trial court's failure to explain his sentencing at the 08CR790 plea hearing was harmless.
b. Johnson was not misled into accepting the plea.
Johnson argues that Crane misled him into withdrawing his presentence motion to withdraw plea in the 07CR368 case and entering a plea of no contest in the 08CR790 case. Johnson asserts that Crane told him that the State would not oppose probation if he withdrew his motion to withdraw plea in 07CR368 and pled no contest in 08CR790. To support his argument, Johnson cites Crane's testimony at the motion hearing where Crane testified that Johnson accepted the plea because the State agreed not to oppose probation if Johnson withdrew his motion to withdraw plea in 07CR368 and pled no contest in 08CR790.
Johnson's argument, however, ignores the fact that Stanton stated that he was going to oppose probation on the record. While explaining the plea agreement, the following occurred:
“[MR. STANTON:] The defendant reserves the right to file a motion for downward dispositional departure.... The state at this point in time is taking the position that I will oppose that downward departure subject to anything, of course, that happens between now and the time of sentencing. That might change my, my opinion, but at this point the defendant realizes that my position is going to be that he go and serve that 178 months in the Department of corrections.
“THE COURT: Shannon?
“MS. CRANE: Yes, your Honor, I believe that is our, our agreement. At this time I cannot think of anything that Mr. Stanton has left off.”
Crane then asked that the court grant Johnson's motion to withdraw plea for 07CR368 and accept the 08CR790 plea agreement. In response, the trial judge asked Johnson if this was what he wanted to do. Johnson replied, “Yes, sir.” The trial judge then asked, “And you're doing it of your own free will?” Johnson again replied, “Yes, sir.” Additionally, Johnson testified that he understood the plea agreement, that the entire plea agreement had been stated on the record, and that nobody promised him probation.
Whether Crane forgot or misremembered the exact plea agreement at the motion hearing is unimportant. The fact is that at the joint hearing on the withdrawal of his motion to withdraw plea in 07CR368 and 08CR790 plea hearing, Johnson knew the State was going to oppose probation because Stanton stated so on the record. At that time, Crane and Johnson confirmed that this was their understanding of the plea agreement. Moreover, Johnson testified that nobody had promised him probation. In its order denying Johnson's motion to withdraw his pleas, the trial court specifically found that the “[d]efendant was clearly advised the State would oppose a dispositional departure” based on this evidence. Therefore, the trial court did not abuse its discretion when it found that Crane had not misled Johnson into accepting his plea agreement.
c. Crane provided competent representation.
In his final argument, Johnson maintains that Crane provided ineffective assistance of counsel because her representation fell below an objective standard of reasonableness which prejudiced him. When a defendant attempts to withdraw his plea after sentencing by alleging ineffective assistance of counsel, a defendant must meet the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 252, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267 (1984), showing: (1) counsel's performance fell below the standard of reasonableness, and (2) but for counsel's error, the defendant would not have entered the plea and would have instead gone to trial. See State v. Bricker, 292 Kan. 239, 245–46, 252 P.3d 118 (2011). In his brief, Johnson asserts that Crane's representation was unreasonable because Crane failed to research potential defenses in the 08CR790 case, and she did not correctly explain his 08CR790 plea agreement. To support this argument, Johnson cites State v. Solomon, 257 Kan. 212, Syl. ¶ 7, 891 P.2d 407 (1995), which held that defense counsel has an obligation to advise a defendant as to the range of permissible penalties and to discuss the possible choices available to the defendant before a defendant enters a plea. Johnson's arguments fail.
Johnson's argument that Crane did not research possible defenses in the 08CR790 case fails because Crane testified that she investigated 08CR790 and advised Johnson on possible defenses. Johnson contends that Crane should have investigated defenses supporting a lower severity level in 08CR790 because Johnson only possessed a small amount of methamphetamine. Johnson also alleges that Crane refused to try to suppress his statements to the police or evidence from the search of his car.
Outside of his own testimony, there is no evidence on the record to support Johnson's allegations. At the motion to withdraw pleas hearing, Crane testified that she investigated and discussed the facts of the 08CR790 case at length with Johnson. While she could not recall specifically what defenses she and Johnson discussed, Crane recalled discussing defenses for 08CR790 with Johnson. Crane also noted that the 08CR790 case was complicated because Johnson told a police officer that he was going to sell the methamphetamine found on him when he was arrested. Moreover, no one ever asked Crane and Crane never testified about the allegation that she would not move to suppress Johnson's statements or the car search.
This court does not reweigh evidence or pass on witness credibility. Anderson, 291 Kan. at 855. In its order denying Johnson's motion to withdraw pleas, the trial court held that “Crane is and was at all relevant times an experienced criminal defense attorney” and the “[d]efendant was represented by competent counsel.” Thus, the trial court clearly made a credibility determination that Crane told the truth and properly researched and discussed with Johnson his possible defenses for 08CR790. Consequently, the trial court did not abuse its discretion in finding that Crane provided competent representation and denying Johnson's motion.
Johnson's next argument that Crane provided ineffective assistance of counsel because she misled him about the terms of the plea agreement also fails. In making this argument, Johnson rehashes his argument that Crane misled him into accepting the plea because he believed that the State would not oppose probation. He maintains that Crane's bad advice prevented him from understanding the plea he accepted.
Although Johnson maintains that Crane's representation was ineffective because she misadvised him about the plea agreement, he did not object to the terms of the plea agreement or Crane's representation at the joint motion to withdraw and the plea hearing. Again, Stanton explained the terms of the plea agreement, including that he would oppose any departure motion, on the record. When the trial judge asked Johnson if Stanton's understanding of his plea agreement was his understanding of the entire plea agreement, Johnson replied, “Yes, sir.” Johnson also told the trial judge that no one had promised him probation. Moreover, Johnson testified that he was satisfied with Crane's services and had no complaints. This indicates Johnson had previously been advised and knew that the State was opposing probation. Otherwise, when the trial judge asked Johnson these questions, Johnson would have told the judge that Stanton's explanation of the plea agreement was not his understanding of the agreement and that Crane had told him something else.
Notwithstanding Crane's later contradictory statements, there was substantial evidence on the record to support the fact that Crane did not mislead Johnson about his pleas and provided competent representation. Accordingly, the trial court did not abuse its discretion in finding that Crane provided competent representation and denying Johnson's motion to withdraw pleas. Because Johnson failed to meet the first prong of the Strickland test, discussion about whether Johnson was prejudiced is unnecessary.
Affirmed.