Opinion
No. 106,852.
2013-08-29
David VILLALOBOS, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, 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; Anthony J. Powell, Judge.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
David Villalobos pled no contest to the charge of aggravated robbery. In exchange for his plea, the State agreed to recommend a mid-range sentence and placement in either the Labette Correctional Conservation Camp or residential community corrections. Before Villalobos entered his plea, the court told him that his crime fell into a presumptive prison grid box.
Before sentencing, Villalobos moved for a downward dispositional departure. Villalobos told the court that he was unsuccessful in getting admitted at Labette, so he requested placement with residential community corrections. Villalobos had a criminal history score of “A,” and the presumptive sentencing range was 221–233–247 months' incarceration. K.S.A. 21–4704.
At the sentencing hearing in September 2008, the State joined in Villalobos' request that the court place him with residential community corrections. The district court declined to do so but granted a downward durational departure of 120 months in prison. Villalobos' sentence was affirmed on appeal. State v. Villalobos, No. 101,404, 2010 WL 445492 (Kan.2010) (unpublished opinion).
In February 2011, Villalobos sought relief under K.S.A. 60–1507. He did not move under K.S.A. 22–3210(d) to withdraw his plea, but rather claimed that his plea should be set aside because of various errors in the factual basis for the plea and because his lawyer was ineffective
• in failing to advise him of the “two special rules” that applied to his case;
• in waiving his right to a preliminary hearing; and
• in failing to confirm that all of the information in the complaint was true.
The district court appointed counsel and conducted a preliminary hearing, at the conclusion of which the district court denied relief, finding:
• any trial errors raised are not properly before the court in a K.S.A. 60–1507 motion;
• even if defense counsel failed to advise Villalobos of the two special sentencing rules, Villalobos failed to show prejudice because he was already facing a presumptive prison crime; and
• Villalobos was fully informed at the plea hearing that the district court was not bound to the plea agreement.
Villalobos appeals, contending the district court erred in denying relief without first holding an evidentiary hearing.
Villalobos was not entitled to an evidentiary hearing on his K.S.A. 60–1507 motion if the motion, files, and record of the case conclusively showed that he was not entitled to relief. K.S.A. 60–1507(b); Supreme Court Rule 183(f) (2012 Kan. Ct. R. Annot. 274). In order to justify an evidentiary hearing, Villalobos was required to “ ‘make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.’ [Citation omitted.]” Trotter v. State, 288 Kan. 112, 131–32, 200 P.3d 1236 (2009). See Holt v. State, 290 Kan. 491, 495, 232 P.3d 848 (2010). The district court must hold an evidentiary hearing when the motion alleges facts which, if true, would entitle the movant to relief and when the motion identifies readily available witnesses whose testimony would support such facts or other sources of evidence. Swenson v. State, 284 Kan. 931, 939, 169 P.3d 298 (2007).
In our review of the district court's ruling we first determine whether substantial competent evidence supports the district court's findings of fact and then determine whether those findings are sufficient to support the district court's conclusions of law. We review the district court's ultimate conclusions of law de novo. Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 (2011).
To demonstrate manifest injustice that would warrant setting aside his plea based on ineffective assistance of counsel, Villalobos had to show that (1) his counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's errors, Villalobos would not have pleaded guilty and would have insisted on going to trial. See State v. Szczygiel, 294 Kan. 642, 646, 279 P.3d 700 (2012).
Special Sentencing Rules
Villalobos first argues that defense counsel was ineffective for failing to advise him that two special sentencing rules—K.S.A.2008 Supp. 21–4704(h) and K.S.A. 21–4603d(f)—applied to his case.
The special sentencing rule in K.S.A. 21–4603d(f) does not apply here. Under the guidelines Villalobos' crime of conviction called for presumptive prison. K.S.A. 21–4603d(f)(3) allows a sentencing court to impose a prison sentence, even when the sentenced for the crime of conviction is presumed to be probation, when the crime was committed while the defendant was on felony bond release. K.S.A. 21–4603d(f) does not apply when the sentencing guidelines call for presumptive incarceration.
But K.S.A.2008 Supp. 21–4704(h) does apply. Because Villalobos' crime involved the use of a handgun, under K.S.A.2008 Supp. 21–4704(h) the district court could impose probation only if it specifically found that probation would serve the interest of community safety by promoting Villalobos' reformation. See State v. Foster, 39 Kan.App.2d 380, 380–81, 180 P.3d 1074,rev. denied 286 Kan. 1182 (2008). Villalobos claims that if he had been apprised of the special requirements of K.S.A.2008 Supp. 21–4704(h), he would have understood that the district court was required to make special findings to sentence him to probation.
The district court concluded that because Villalobos was already facing a presumptive prison term, even in the absence of the special sentencing rules, he was unable to demonstrate any prejudice by defense counsel's failure to advise him of the substance of the special sentencing statutes.
Villalobos argues that he was prejudiced because he was not adequately informed by his defense counsel “of the hurdles he had to overcome to receive probation and get the benefit of his plea bargain.” In addition to finding substantial and compelling reasons to depart from presumptive prison, K.S.A.2008 Supp. 21–4704(h) required the additional finding that sentencing Villalobos to probation would serve the interest of community safety by promoting his reformation.
Villalobos claims that the facts of his case are similar to those in Foster. But the issue in Foster was whether the State breached the plea agreement when it failed to support the required findings for the granting of probation under K.S.A.2008 Supp. 21–4704(h). Foster did not deal with defense counsel's obligation to inform his or her client of the applicability of special sentencing rules, and its holding does not help Villalobos' argument.
Villalobos also relies on Wilkinson v. State, 40 Kan.App.2d 741, 195 P.3d 278 (2008), rev. denied 289 Kan. 1286 (2009), in which the defendant pled guilty to a second charge of possession of cocaine based on the State's agreement to recommend that his sentences for two separate convictions be served concurrently. But because Wilkinson was on felony bond for the first offense when he committed the second offense, he was required to receive consecutive sentences unless such sentences “would result in a manifest injustice.” See K.S.A. 21–4608(d) and K.S.A. 21–4720(a). A panel of this court determined that if counsel failed to tell him of the “manifest injustice” requirement, counsel was ineffective and the defendant may be entitled to withdraw his plea. 40 Kan.App.2d at 741–42. The court reasoned:
“Guilty pleas must be made on a voluntary and informed basis. To be made on an informed basis, the defendant must have a reasonable understanding of the relevant circumstances and likely consequences of the plea. State v. Harned, 281 Kan. 1023, 1042, 135 P.3d 1169 (2006). Wilkinson couldn't reasonably understand the circumstances of his plea—specifically the value of the State's quid pro quo—if he was not told about the manifest-injustice standard.” Wilkinson, 40 Kan.App.2d at 744–45.
The Wilkinson court stated that the district court could impose concurrent sentences only “if consecutive sentences would shock the conscience of the court, and that's more than a tilted playing field—the test is nearly insurmountable.” 40 Kan.App.2d at 745.
In our case, K.S.A.2008 Supp. 21–4704(h) required the additional finding that sentencing Villalobos to probation would serve the interest of community safety by promoting his reformation. This is not much different than requiring substantial and compelling reasons in order to depart from the presumptive prison grid box. Unlike the circumstances in Wilkinson, the standard that the court needed to meet in order to place Villalobos on probation was not “nearly insurmountable.”
Villalobos fails to show prejudice from this claimed deficiency in his counsel's performance. We conclude that the district court did not err in denying an evidentiary hearing on Villalobos' claims regarding the two special sentencing rules.
Offender Registration Act
Villalobos also claims his counsel was ineffective in failing to advise him that his plea would require him to register as a violent offender under the Kansas Offender Registration Act.
In State v. Chesbro, 35 Kan.App.2d 662, 667–68, 134 P.3d 1,rev. denied 282 Kan. 792 (2006), this court held that the applicability of those provisions constitutes a collateral consequence of entering a plea, and the district court does not bear the burden of ensuring the defendant is advised of potential collateral consequences of the plea. In State v. Barahona, 35 Kan.App.2d 605, 612, 132 P.3d 959 (2006), this court held that defense counsel did not have an obligation to inform the defendant of collateral consequences arising from entering a plea, such as the effect the convictions would have on his or her future criminal history.
Defense counsel does not have an obligation to advise his or her client of all collateral consequences arising from a plea. A direct consequence of a plea is a consequence that is “a definite, immediate, and largely automatic result of the guilty plea.” State v. Moody, 282 Kan. 181, 195, 144 P.3d 612 (2006). Consequences that are not definite, immediate, and largely automatic are collateral. See Cox v. State, 16 Kan.App.2d 128, 130, 819 P.2d 1241 (1991). Our legislature on occasion has changed the registration requirements in recent years. Assuming the current registration requirement remains in place in future years, Villalobos' requirement to register as a violent offender would not take place until he has served 10 years in prison. This is a collateral consequence, and defense counsel did not have an obligation to inform his client of the obligation to register.
A Worthless Plea Agreement
Villalobos argues for the first time on appeal that the State made an empty promise and induced Villalobos into accepting the plea agreement in bad faith. This issue is raised for the first time on appeal; therefore, it is not properly before us and we do not address it. State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009).
Waiver of the Preliminary Hearing
Villalobos claims his counsel was ineffective in advising him to waive the preliminary hearing. He argues that he would have been able to evaluate the State's case and the credibility of its witnesses at a preliminary hearing, and if such a hearing had been held the State would not have been able to prove that he used a gun to commit the robbery. He claims the district court erred in not providing an evidentiary hearing on this claim.
First, with respect to the gun, and as the district court explained in its ruling, the State was not required to put on evidence that Villalobos exhibited a weapon to his victim. As stated in State v. Holbrook, 261 Kan. 635, Syl. ¶ 3, 932 P.2d 958 (1997):
“Where the evidence shows the robber threatened to shoot the victim if he did not give his money to the robber and gestured as though reaching for an object concealed in his waistband, and the victim then turned over his money to the robber out of concern for his life, the evidence is sufficient to support a conviction for aggravated robbery even though no weapon was actually exhibited.”
That is exactly the conduct that Villalobos pled no contest to at his plea hearing. The charge of aggravated robbery was based on the following facts presented by the prosecutor at the plea hearing: the victim was refilling an outdoor newspaper dispenser at a closed gas station when Villalobos approached him and “asked him if he had any money. When he asked him that he reached in front of his front waist pants, the defendant, and stated that he would shoot [the victim], stating I have a gun.” Based on the belief that Villalobos had a gun, the victim turned over the money to him.
Second, to meet the burden of proving that his K.S.A. 60–1507 motion warrants an evidentiary hearing, Villalobos “ ‘must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.’ [Citation omitted.]” Trotter, 288 Kan. at 131–32. It was Villalobos' burden to state an evidentiary basis for relief, setting forth “a factual background, names of witnesses, or other sources of evidence to demonstrate that the movant is entitled to relief.” Swenson, 284 Kan. 931, Syl. ¶ 2. Villalobos does not explain what testimony he could have elicited at the preliminary hearing that would have caused the court to dismiss the aggravated robbery charge. Villalobos fails to meet his burden of establishing the necessity of an evidentiary hearing on this claim.
Factual Information in the Complaint
Villalobos incidentally raised the charge that defense counsel failed to ensure that the factual information in the complaint was true and accurate. The district court failed to make specific findings of fact and conclusions of law on this claim, but Villalobos made no objection to the district court's lack of findings and conclusions. Thus, we presume the district court found all facts necessary to support its judgment. O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 361, 277 P.3d 1062 (2012).
This issue was incidentally raised. Villalobos does not proffer any evidence or the testimony of witnesses that he would call at an evidentiary hearing to support this claim. He also makes no argument regarding prejudice. He has essentially abandoned this claim.
Affirmed.