Opinion
No. 107,996.
2013-08-30
STATE of Kansas, Appellee, v. Vernon R. SMITH, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., HILL, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Vernon R. Smith appeals the district court's denial of his motion to withdraw his Brady plea of guilty to aggravated robbery. He also claims the district court erred when it denied his motion to continue his sentencing so he could retain private counsel. Finally, Smith argues the district court unconstitutionally used his criminal history to determine his sentence. Allowing Smith to withdraw his plea and granting a continuance of a hearing are matters of discretion with the district court. Our review of the record reveals no abuse of discretion. Kansas Supreme Court precedent directs that a sentencing court can use the defendant's criminal history to determine his or her sentence, a position contrary to that argued by Smith. We affirm.
Negotiations lead to Smith pleading guilty.
In June 2011, before being sentenced in the three prior cases, the State charged Smith in case No. 11 CR 1661 with aggravated robbery. The parties subsequently negotiated a plea agreement in that case, where Smith agreed to a Brady plea to one count of aggravated robbery. In exchange for Smith's plea the plea agreement provided that (1) the State anticipated Smith's criminal history would be A; (2) both parties would recommend the district court impose a durational departure sentence of 100 months' imprisonment; and (3) the sentence would run consecutively to the sentences in the three prior cases. The plea agreement also noted,
“The parties recognize and acknowledge that the State is no longer bound by the plea agreement in 09 CR 3225, 09 CR 3593 and 09 CR 3963; however, the State will recommend the same amount of prison time in those cases and the Defendant will no longer be free to argue for a dispositional departure. The defense attorney in those cases, Mark Rudy, has been notified of this change.”
At a hearing in September 2011, Smith entered a Brady plea in case No. 11 CR 1661 to one count of aggravated robbery in violation of K.S.A. 21–3427. Bradley Sylvester represented Smith.
Prior to sentencing, Smith filed a pro se motion to withdraw his plea in 11 CR 1661. At the hearing to determine whether it would permit Smith to withdraw his plea in this case, the district court first noted the impact of Smith's motion to withdraw his plea in case No. 11 CR 1661 on the other three cases:
“I'll point out that today's hearing was tentatively a sentencing, but inasmuch as that Mr. Smith has a pro se motion to withdraw his plea of guilty filed in the 11 CR case, if that would go forward that would as a consequence continue all four cases since the three 09 cases are intertwined with the 11 CR case in terms of the plea agreement.”
The district court then addressed concerns regarding whether Smith was competent to go forward with the proceedings. Believing Smith incompetent to proceed, the district court, sua sponte, ordered a competency evaluation. Smith then filed a pro se motion to withdraw his guilty pleas in the three prior cases.
At the end of December 2011 the district court found Smith competent to stand trial. In January 2012, the district court denied Smith's motions to withdraw his pleas in the three prior cases.
Then, in February 2012, a different judge than the one who accepted Smith's Brady plea in case No. 11 CR 1661 considered Smith's motion to withdraw his plea. Both Smith and Sylvester testified at the hearing about the circumstances surrounding the plea agreement and the entry of Smith's Brady plea.
The district court denied Smith's motion to withdraw his plea in case No. 11 CR 1661 and notified the parties that it would proceed with sentencing in all four criminal cases. Smith moved for a continuance, claiming to have hired a new attorney, Christopher O'Hara. After taking a recess to investigate Smith's claim, the district court denied Smith's oral motion for a continuance. The district court then imposed a downward durational departure sentence of 100 months' imprisonment in case No. 11 CR 1661, to run consecutive to the controlling sentence imposed in the prior cases.
We find no abuse of discretion in the court's denial of Smith's motion to withdraw plea.
The law permits the withdrawal of a plea before sentencing as a matter of discretion. K.S.A.2012 Supp. 22–3210(d)(1). On appeal, the defendant must establish that the trial court abused its sound discretion in denying the motion to withdraw plea. State v. White, 289 Kan. 279, 284–85, 211 P.3d 805 (2009). There are three ways for a court to abuse its discretion. According to the Supreme Court in Fischer v. State, 296 Kan. 808, Syl. ¶ 8, 295 P.3d 560 (2013), judicial discretion is abused if the judicial action is:
• arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court;
• based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or
• 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.
Smith argues his plea was not fairly and understandingly made. At the hearing on Smith's motion to withdraw his plea, the district court addressed each of Smith's three arguments in turn.
First, the district court found that Smith's claim that his narcolepsy prohibited him from comprehending the terms of the plea agreement and what transpired at the plea hearing was inconsistent with the record. The district court pointed to the following exchange at the plea hearing during a discussion about Smith's medication:
“THE DEFENDANT: Yeah, I got narcolepsy.
“THE COURT: Is that when you tend to kind of drift off and fall asleep at times?
“THE DEFENDANT: Yes, sir.
“THE COURT: Okay. I've—I've actually been kind of paying a lot of attention to you during this plea. You seem like you're not having any problem hearing and understanding me though, right?
“THE DEFENDANT: I'm—I'm understanding you.”
The record does not indicate that Smith was asleep during the plea hearing, and Smith's own admission to the contrary during the plea hearing directly contradicts his assertions on appeal that his narcolepsy affected his ability to understand the plea negotiations and the consecutive nature of the recommended sentences. A defendant may not invite error and then complain of the error on appeal. State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011).
Second, the district court found that Smith's claim that he did not understand his criminal history score was unpersuasive. The district court noted that (1) Sylvester testified to having discussed Smith's criminal history score with him prior to the plea hearing; and (2) the district court during the plea hearing had informed Smith that he likely had an A criminal history score and explained to him the different presumptive sentences between an A and 1 criminal history score.
Third, the district court addressed Smith's claim that he did not understand the difference between concurrent and consecutive sentencing. The district court referred to Sylvester's testimony that he had reviewed the differences between the two types of sentencing with Smith prior to Smith's plea and that Sylvester had told Smith he likely faced consecutive sentences given the special rule. The district court also pointed out that during the plea hearing it had explained to Smith how it determined whether Smith would receive a concurrent sentence and had asked Smith if he had any questions. To which Smith had responded, “No.” The district court then ruled that based on its findings it could not find good cause to allow Smith to withdraw his plea.
This substantial competent evidence supports the district court's conclusion that Smith was not entitled to withdraw his plea under K.S.A.2011 Supp. 22–3210(d)(1). Smith failed to meet his burden to show that the district court abused its discretion. See State v. White, 289 Kan. 279, 284–85, 211 P.3d 805 (2009).
The district court properly exercised its discretion to deny a continuance.
Smith argues that his request for additional time to retain private counsel to represent him at sentencing provided good cause for the continuance.
A district court's decision whether to grant a continuance for the purpose of a criminal defendant substituting counsel rests within the sound exercise of the district court's discretion. The district court's refusal to grant a continuance will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Kirkpatrick, 286 Kan. 329, 345–46, 184 P.3d 247 (2008), abrogated on other grounds by State v. Sampson, 297 Kan. 288, 301 P.3d 276 (2013). Judicial discretion is abused only where the exercise of discretion is guided by an erroneous legal conclusion, or is based on an error of fact, or where no reasonable person in the position of the district court could agree with the decision. See Fischer, 296 Kan. 808, Syl. ¶ 8. Moreover, the party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. State v. McCullough, 293 Kan. 970, 996, 270 P.3d 1142 (2012).
After the district court informed Smith that it intended to proceed with sentencing, Smith's appointed attorney in case No. 11 CR 1661 notified the district court that Smith wanted to move for a continuance. Smith claimed to have hired O'Hara. Smith then told the district court that his brother had given O'Hara a partial retainer. The district court contacted O'Hara during a recess to see if O'Hara intended to enter an appearance. Upon the district court's return, Smith stated that his father was in the process of retaining O'Hara. When asked about the change in his story regarding his brother having paid money to O'Hara, Smith stated, “My brother was going to pay him when he came down here. He was going to come down and see me for free.” After noting that “the story is changing as we go along,” the district court told Smith that neither O'Hara nor anyone at his office had been contacted about Smith or had received a retainer for his case.
In denying Smith's motion, the district court stated:
“Well you are changing the story, and the bottom line is that a plea was entered on April 25 of last year and September 26 of this year. This case you have had plenty of time. You or your family could go hire a lawyer rather than the night before your hearing on the motion 1o withdraw the plea and then waiting all the way through the hearing before you decide to announce to us that you are in the process of trying to hire your own lawyer, And I'm not going to delay this proceeding any longer. It's been dragged out long enough, and I'm just not going to let it get continued any further. So any other good cause shown why we should not proceed on with sentencing?”
When the district court, after hearing sentencing recommendations, asked Smith if he wanted to make a statement before the court, Smith had his court-appointed counsel read a prepared statement into the record renewing his request for a continuance. The statement stated, in part: “Attorney whoever you got now at this time is fired and I am in the process of hiring a new attorney, Chris O'Hara, to represent me in this matter.”
Both before the district court and in this appeal, Smith did not provide a substantive explanation concerning any supposed incompetence or inadequacies of appointed counsel. His brief only suggests that Smith “might be dissatisfied” with his appointed counsel over his unsuccessful plea withdrawal. Similarly, at sentencing, Smith did not allege a conflict with his appointed counsel or that his appointed counsel was incompetent; rather, Smith only seemed unhappy that his motion to withdraw his plea had been denied and the culmination of all the proceedings over the previous 27 months in the four criminal cases was about to occur.
Further, the record indicates Smith made no effort to retain private counsel during the 3–month interval between filing his motion to withdraw his plea and the sentencing hearing. Smith did not obtain his trial counsel of choice in Case No. 11 CR 1661 because the district court appointed Sylvester to represent him. Similarly, the district court appointed another public defender to argue Smith's motion to withdraw his plea. When Smith indicated moments before sentencing that O'Hara was going to take over this case, or that his family was in the process of retaining O'Hara, the district court investigated Smith's claims and simply found his assertions were not credible. In fact, Smith's claim that his family was in the process of hiring private counsel is more dubious given the record reflects that after sentencing Smith did not retain counsel and accepted the district court's appointment of appellate counsel.
In Kirkpatrick, the Kansas Supreme Court considered whether a district court erred in denying a defendant's oral request 3 days prior to trial for a continuance to hire private counsel. After noting that Kansas courts had not addressed this specific fact scenario, the Kirkpatrick court clarified that the issue was whether the district court properly exercised its discretion by balancing “ ‘the presumption in favor of the defendant's right to trial counsel of choice and the public's interest in the prompt, effective, and efficient administration of justice.’ “ 286 Kan. at 346 (quoting 17 Am.Jur.2d, Continuance § 48).
In finding the district court's decision a sustainable exercise of discretion, the Kirkpatrick court stated:
“The facts of this case are analogous to two Minnesota cases. In State v. Worthy, 583 N.W.2d 270 (Minn.1998), defendants requested a continuance to obtain private counsel. Although the district court appointed attorneys for defendants on April 1, 1996, the continuance was not requested until the first day of trial, May 15, 1996. The district court denied the request. In upholding the district court's decision, the Minnesota Supreme Court acknowledged the fact that the court-appointed attorneys were experienced, competent, and prepared to try the case. Additionally, the court noted that defendants did not provide the court with the name of an attorney willing to take over the case; rather, they only claimed that ‘family members were “taking care of that.” ‘ 583 N.W.2d at 278.
“A case relied on by Worthy, State v. Vance, 254 N.W.2d 353 (Minn.1977), also provides guidance. In Vance, defendant requested a continuance to secure private counsel, and the district court denied the request. In upholding the district court's ruling, the Minnesota Supreme Court stated:
‘In the instant case, defendant was provided with a competent and able public defender who had thoroughly investigated the facts and was prepared for trial. He had 11 weeks to obtain private counsel but did not move for a continuance until a few days before trial. He could not be certain of securing counsel and merely stated that someone would attempt to raise the money. Moreover he had no cause to be dissatisfied with his assigned counsel.... Under these circumstances, it was not error to deny the motion for a continuance.’ 254 N.W.2d at 359.
“Like the previous cases, a review of the record in the present case indicates that the district court did not abuse its discretion in denying defense counsel's oral motion. First, as discussed above, the district court appointed defense counsel in January 2004. Kirkpatrick, however, did not seek a continuance to try to hire private counsel until over 5 months had passed, 3 days before trial. Additionally, as mentioned by the State, the jury trial was previously continued once by defendant in April 2004. As the district court noted, no charge of incompetence or inability to work with counsel was made; rather, the defendant only seemed unhappy that a plea agreement had not been reached. As the State notes in its brief, a defense attorney does not possess the power to determine what type of plea offer, if any, the State will make in a given case. Finally, Kirkpatrick did not state that another attorney was willing to take over the case, only that he and his family wanted to try to hire private counsel. [Citation omitted.]” 286 Kan. at 345–47.
Smith has cited no authority to meet his burden of proof. Given the facts here, the reasoning in Kirkpatrick is persuasive. The district court did not abuse its discretion in refusing to grant a continuance.
The court properly determined Smith's sentence.
Smith contends the district court violated his Sixth and Fourteenth Amendment rights as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Specifically, Smith argues that the use of his criminal history for sentencing purposes without requiring the State to prove it before the jury beyond a reasonable doubt enhanced his sentence in violation of Apprendi. Smith, however, concedes that the Kansas Supreme Court rejected a similar argument in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), but includes the issue to preserve it for federal review.
The Kansas Supreme Court has held that the use of criminal history scores to determine a defendant's sentence is not unconstitutional under Apprendi. See Ivory, 273 Kan. at 46–48. Our Supreme Court recently reaffirmed Ivory in State v.. Bogguess, 293 Kan. 743, 755, 268 P.3d 481 (2012). Since there is no indication our Supreme Court is departing from Ivory, we must follow this controlling precedent and affirm Smith's sentence.
Affirmed.