Opinion
No. 108,520.
2013-07-19
STATE of Kansas, Appellee, v. Jeremy Francis VOLLE, Appellant.
Appeal from Shawnee District Court; David B. Debenham, Judge. Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; David B. Debenham, Judge.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., McANANY and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jeremy Francis Volle appeals from the district court's denial of his motion to withdraw his plea of no contest to domestic battery in Shawnee County case No. 1 l–CR–1421. Volle had entered into a global plea agreement in this case and three other cases. Prior to sentencing, Volle filed a pro se motion to withdraw his plea in all four cases. The district court then appointed new counsel for Volle, who filed another motion to withdraw plea based on lack of a factual basis in one of the other cases in which Volle entered a no contest plea. The district court subsequently denied the motion and sentenced Volle to a concurrent sentence of 6 months in this case. Because we conclude that the district court did not err, we affirm.
Facts
On August 5, 2011, the State charged Volle in case No. 11–CR–1421 with two counts of domestic battery, one count of battery, and one count of criminal trespass. A few months later, on October 21, 2011, Volle entered in a global plea agreement in this case and three other cases. In the present case, Volle agreed to plead no contest to one of the domestic battery counts, and the parties agreed to recommend a 12–month jail sentence to run concurrent with the sentences in the other three cases. Although the plea agreement stated that the sentencing range for the domestic battery conviction in this case was up to 12 months in the Shawnee County Jail, the maximum sentence under K.S.A. 21–5414(b)(l) was actually a term of incarceration for 6 months.
At the plea hearing, also held on October 21, 2011, the State explained the terms of the global plea agreement. Specifically, the State indicated that if Volle pled guilty to the misdemeanor domestic battery charge in the present case, it would recommend a sentence running concurrent to his felony sentences in the other cases. When the district judge discussed Volle's maximum possible sentence for each conviction, he correctly noted that the maximum sentence Volle could receive on his misdemeanor domestic battery conviction was 6 months in jail. Volle then pled no contest, and the judge accepted his plea.
On October 24, 2011, Volle filed another application to modify plea and plea agreement. Even though it included some changes noted by the parties at the plea hearing, these changes are not relevant to the issues raised in this appeal. Nevertheless, Volle wrote a letter to the district judge on November 6, 2011, stating that he questioned the effectiveness of his legal counsel in the four cases to which he had entered a plea. Shortly thereafter, on November 15, 2011, Volle filed a pro se motion to withdraw his plea, alleging ineffective assistance of counsel.
On November 22, 2011, the district judge held a hearing on Volle's pro se motion to withdraw plea. Although Volle did not ask for new counsel in the present case, the judge decided that it would be best to appoint new counsel to represent Volle in all four cases because it was likely that all of the pleas covered by the global plea agreement could be withdrawn if there was a basis to withdraw one of them.
On February 6, 2012, Volle's new attorney filed a motion to withdraw plea and set aside conviction in 11–CR–1703, one of the other cases covered by the global plea agreement. In the motion, Volle argued that there was no factual basis to support his conviction for attempted aggravated battery in 11–CR–1703. In response, the State argued that Volle should not be allowed to withdraw his plea. In the alternative, the State argued that if Volle was allowed to withdraw his plea in 11–CR–1703, the pleas in the other three cases should also be withdrawn because they were all included in the same global plea agreement.
At a hearing held on February 22, 2012, Volle addressed only the issue raised in his most recent motion to withdraw plea regarding the lack of a factual basis for his plea in 1 l–CR–1703. At the conclusion of the evidence and arguments, the district judge announced that he found a sufficient factual basis for Volle's plea in 11–CR–1703. The judge also found that Volle was not misled or unfairly taken advantage of in entering into the plea agreement. Thus, Volle's motion to withdraw plea was denied.
On March 2, 2012, all four of Volle's cases came before the district judge for sentencing. At the beginning of the sentencing hearing, Volle requested that another attorney be appointed because he now wished to challenge the effectiveness of his current counsel. Though the judge appointed new counsel for Volle, no new motions were filed.
Finally, on April 5, 2012, another sentencing hearing was held. At the beginning of this hearing, Volle's latest counsel stated that Volle wished for her to withdraw as well because he wanted her to raise some issues that she thought were frivolous. The district judge denied the request, finding that Volle was only trying to delay his sentencing. In the present case, Volle's attorney informed the district judge that the maximum sentence for the misdemeanor domestic battery conviction was 6 months and the State agreed. Volle was then sentenced to 6 months in jail in this case, to run concurrently with his sentences in the other three cases covered by the global plea agreement.
Analysis
On appeal, Volle first contends that his due process rights were violated because the district court did not hold a hearing on his claim in his motion to withdraw his plea that his counsel misled him by telling him his maximum possible penalty on the domestic battery charge was 1 year. Whether due process has been provided is an issue of law over which we have unlimited review. See In re Habeas Corpus Application of Pierpont, 271 Kan. 620, 627, 24 P.3d 128 (2001).
Volle admits, however, that he failed to raise this issue before the district court. Generally, issues not raised by a party before the district court cannot be raised on appeal. See State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009). Even constitutional grounds for reversal are not properly before an appellate court if they are asserted for the first time on appeal. See State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012).
There are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal. These exceptions include: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal even though it relied on the wrong ground or assigned a wrong reason for its decision. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010). Because the due process issue presented by Volle involves a question of law subject to de novo review, we will address the issue on the merits. See State v. Foster, 290 Kan. 696, 702, 233 P.3d 265 (2010) (considering an issue for the first time on appeal because it raised due process concerns and questioned the district court's compliance with a statutory obligation).
As an initial matter, Volle has not shown that the district court is required to hold a hearing on a motion to withdraw plea in order to satisfy due process. Volle relies on State v. Taylor, 266 Kan. 967, 975 P.2d 1196 (1999), for his position that a district court must hold a hearing whenever a defendant files a motion to withdraw his or her plea. In Taylor, however, the district court failed to consider a defendant's request to obtain new counsel to represent him on a motion to withdraw his plea based on the alleged ineffectiveness of counsel. Rather, the district court simply denied the request and immediately sentenced the defendant. 266 Kan. at 971–72.
In the present case, the district judge gave meaningful consideration to Volle's pro se motion to withdraw plea by appointing new counsel. Likewise, the district court held a hearing to consider Volle's motion to withdraw plea on February 22, 2012. At that time, Volle did not raise the argument that was originally asserted in his first pro se motion to withdraw plea. Instead, Volle's argument at the hearing focused on the allegation that there was a lack of factual basis for his aggravated battery conviction in 11–CR–1703. Thus, Volle has not shown that he was denied due process.
Volle also contends that the district court's findings when denying his motion to withdraw plea were insufficient. “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.” K.S.A.2012 Supp. 22–3210(d)(1). When deciding whether good cause has been shown, Kansas courts consider 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.’ [Citation omitted.]” State v. Macias–Medina, 293 Kan. 833, 837, 268 P.3d 1201 (2012). The Kansas Supreme Court clarified, however, that “[a]ll of [these] factors need not apply in a defendant's favor in every case, and other factors may be duly considered in the district judge's discretionary decision on the existence or nonexistence of good cause.” State v. Aguilar, 290 Kan. 506, 513, 231 P.3d 563 (2010).
In this case, although the journal entry subsequently entered by the district judge did not explain the court's ruling, the record reflects that the judge adequately explained his ruling and appropriately applied all of the required factors at the hearing. Furthermore, the judge made it clear both at the plea hearing and at sentencing that the maximum sentence for the misdemeanor domestic battery charge was 6 months in jail. Thus, we conclude that Volle has failed to show he is entitled to relief in this appeal.
Affirmed.