Opinion
No. 106,182.
2012-07-27
Darrell J. WELLS, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; John J. Kisner, Jr., Judge. Janine Cox, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; John J. Kisner, Jr., Judge.
Janine Cox, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is Darrell J. Wells' appeal from the trial court's denial of his K.S.A. 60–1507 motion after holding an evidentiary hearing.
We find there was substantial and competent evidence to support the district court's finding that his counsel provided competent representation and did not make any misleading promises or guarantees regarding the outcome of sentencing. Therefore, the district court did not err when it denied Wells' motion to withdraw his plea. Consequently, we affirm the district court.
We have fully examined the entire record which sets forth the following factual background and legal proceedings of this case.
On November 21, 2005, the State charged Darrell Wells with one count of aggravated robbery. The facts underlying this charge are set forth in Wells v. State, No. 101,129, 2009 WL 5206223, at *1 (Kan.App.2009) (unpublished opinion), as follows:
“At the preliminary hearing, Janet Wiele testified that on November 19, 2005, she was walking to her car at a shopping mall in Wichita. As she was entering the car, Wells ‘came from behind and stuck a gun in my side and said, I have a gun, give me all your money.’ Wiele had only $3, but she removed it and gave it to him. Wells became agitated and told Wiele he ‘wanted $3,000 tonight or you're dead.’ Wiele grabbed for Wells' gun, which broke in half. Wiele testified that before she grabbed the gun, ‘I was positive it was real.’ Upon realizing the gun was a toy, Wiele began honking her car horn and screaming for help. Wells fled.
“At the preliminary hearing, Wiele identified Wells as her assailant. Under cross-examination she had ‘no doubt’ that Wells was the robber. When asked again on redirect whether she had any doubt, Wiele said: ‘None whatsoever.’ “
On February 21, 2006, Wells signed a defendant's acknowledgment of rights and entry of plea. According to the acknowledgment, Wells opted to plead guilty “without a plea agreement,” and “[n]o plea negotiations” occurred between Wells and the district attorney.
At the plea hearing, District Court Judge David W. Kennedy verified that Wells actually signed the acknowledgment and that before signing it, he read it in full and discussed it with his counsel. Judge Kennedy also asked Wells if he was satisfied with the services he received from his counsel, and Wells responded: “Yes, sir.” Judge Kennedy next informed Wells that based upon his criminal history score, the offense of “aggravated robbery carries a range of sentences of between 55 and 247 months in the penitentiary,” and Wells stated that he understood and had no questions. After verifying that Wells had received no promises from anyone in exchange for his plea, Judge Kennedy found that Wells understood his rights, the charges against him, and the consequences of the plea. Accordingly, Judge Kennedy accepted Wells' plea as “freely, voluntarily, and understandably” entered.
Prior to sentencing, Wells filed a departure motion, arguing that “substantial and compelling reasons,” including the fact that he had a toy gun rather than a real firearm, justified the imposition of a downward durational departure sentence of 60 months. On May 4, 2006, the district court held a hearing to consider Wells' motion. At the hearing, both Wells and his defense counsel told the district court that although he took responsibility for his actions, he never wanted to rob or harm Wiele; he had simply been trying to protect a friend who owed $3,000 to drug dealers. After hearing the arguments, the district court denied Wells' motion finding “no substantial or compelling factors to support a motion for departure in this case.” District Court Judge John J. Kisner, Jr., subsequently imposed a sentence of 247 months' imprisonment followed by 36 months' postrelease supervision—the aggravated sentence for an offender with a criminal history score of A—and BIDS attorney fees totaling $800.
On direct appeal, Wells challenged the district court's use of his criminal history score and its decision to impose attorney fees. Our court affirmed the use of Wells' criminal history pursuant to State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), and reversed and remanded the imposition of attorney fees for reconsideration in light of State v. Robinson, 281 Kan. 538, 132 P.2d 934 (2006). Upon remand, the district court waived the imposition of attorney fees.
On November 9, 2007, Wells filed a pro se motion seeking to withdraw his plea based upon ineffective assistance of counsel, which the district court treated as a timely K.S.A. 60–1507 motion. Relevant to this appeal, Wells argued that he did not knowingly and willingly enter his plea because his trial counsel Christine Jones, a/k/a Christine Gase, promised him he would “serve no more then [ sic ] 10 years in prison,” and but for this erroneous sentencing guarantee, he would not have pled guilty.
After the State filed its responsive pleading, Wells replied by reasserting that he would not have pled without a “bargain,” and as an “educated inmate experienced in serving time in the penal system[,] ... [s]omebody had to tell [him] something to get him to plea so stupidly.” Wells also claimed that prior to sentencing, Jones made the following statement to “everybody in [his] [h]olding [c]ell”: “Always, listen to your attorney. When you are in Court do not disagree with your attorney because that will mess things up. Whatever I say, you must go a long [ sic ] with even if it doesn't seem right.[']”
On June 16, 2008, the district court held a preliminary hearing on Wells' motion. Wells was not present, but his counsel informed the district court that Wells told him there were “guys in the holding cell” that would corroborate his claims. After hearing the arguments, the district court denied Wells' motion finding that the record refuted his assertion that he entered his plea due to a promise of a 10–year sentence from his trial counsel, and the district court characterized Wells' request as nothing more than “a case of buyer's remorse.” The district court explained, “[A]t the time[,] [Wells] was satisfied with his counsel, he just unfortunately didn't get the result he wanted and now he wants to come back and try to change history. And the Court will find that is certainly not manifest injustice.”
Wells filed an appeal, and this court affirmed the district court's denial of Wells' motion. Wells, 2009 WL 5206223, at *4–5. Wells filed a petition for review and on May 20, 2010, the Kansas Supreme Court reversed and directed the case remanded to the district court with directions to conduct an evidentiary hearing.
On February 3, 2011, the district court held an evidentiary hearing, and after hearing testimony from Wells and Jones, Judge Kisner denied Wells' motion to withdraw plea under K.S.A. 60–1507 finding that manifest injustice did not require the withdrawal of Wells' guilty plea. Specifically, the district court found that the evidence clearly established that Wells' trial counsel provided competent representation. The court further held Wells did not receive misleading information regarding the consequences of a guilty plea, i.e., a guarantee or promise that he would not receive a 20–year sentence and Wells knowingly and voluntarily entered his guilty plea. Wells subsequently filed a timely appeal.
The only issue before us on appeal is whether the district court abused its discretion when it denied Wells' motion to withdraw his plea. Wells argues he sufficiently demonstrated that it was necessary to allow him to withdraw his guilty plea and set aside the judgment of conviction in order to correct manifest injustice.
After sentencing, a district court may, in the exercise of sound judicial discretion, set aside the judgment of conviction and withdraw a defendant's plea in order “[t]o correct manifest injustice.” K.S.A.2011 Supp. 22–3210(d). When determining whether the defendant has shown manifest injustice, district courts should consider the following: “(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. Bricker, 292 Kan. 239, Syl. ¶ 4, 252 P.3d 118 (2011). While “these factors are viable benchmarks for judicial discretion,” district courts should not mechanically apply them nor rely upon them to the exclusion of other factors. 292 Kan. 239, Syl. ¶ 4, 252 P.3d 118. In other words, the ultimate determination of whether manifest injustice exists should depend upon the totality of the circumstances. State v. Gilliland, No. 104,778, 2012 WL 603226, at *2 (Kan.App.2012) (unpublished opinion), petition for rev. filed March 12, 2012; see Bricker, 292 Kan. at 245, 252 P.3d 118.
When, as in this case, the defendant requests a postsentence plea withdrawal based upon ineffective assistance of counsel, the defendant must satisfy the constitutional standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674,reh. denied467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984), in order to demonstrate manifest injustice. Bricker, 292 Kan. at 245–46, 252 P.3d 118. Under the Strickland test, the defendant must show that his or her counsel's “performance fell below the objective standard of reasonableness,” and “there is a reasonable probability” that, but for counsel's error(s), the result of the proceeding would have been different, i.e., the defendant would not have pled guilty and would have insisted on going to trial. 292 Kan. 239, Syl. ¶ 5, 245–46, 252 P.3d 118.
When a district court denies a postsentence motion to withdraw plea after an evidentiary hearing, appellate courts review the decision under an abuse of discretion standard. Bricker, 292 Kan. at 244, 252 P.3d 118. A judicial action constitutes an abuse of discretion,
“if [the] 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. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 U.S. 1594 (2012).
It is Wells' burden to prove an abuse of discretion. Bricker, 292 Kan. at 244, 252 P.3d 118.
At the evidentiary hearing, Wells and Jones both testified and each recounted a different version of the circumstances surrounding Wells' decision to plead guilty. Wells testified that Jones approached him and asked whether he would be willing to withdraw his plea of not guilty in exchange for a “downward departure.” Wells explained: “Well, [Jones] said she would guarantee I wouldn't get 20 years, that's for sure.... And I was willing to waive my rights to a trial if I could get—she said would you take 12 or 10 years? I said, yeah.”
According to Wells, prior to the plea hearing, Jones approached him with the acknowledgment of rights and entry of plea document, and when he noticed the bold print indicating he was entering a “plea with no agreement,” he questioned Jones and she replied: “Judge Kennedy is waiting on you, I will explain this to you later.” According to Wells, because he “just wasn't going to take 20 years,” he told Jones he would not sign the plea documentation until “she put Judge Kisner's [name] and [the] date and time on top of the paperwork.” When asked about the significance of this notation, Wells said:
“That was the only thing that made me sign it was when she convinced me Judge Kisner would not give me 20 years. She didn't say I guarantee you 60 months, but she said, will you take 10 or 12 years? And he signed his name, date and time.”
Jones, on the other hand, testified that she never made any promises or guarantees regarding the outcome of sentencing. Jones explained that Wells initially denied involvement in the crime, and he insisted he was “kind of a victim of circumstances.” As such, Jones proceeded to prepare for trial and did not enter into plea negotiations with the State. According to Jones, she hired an investigator to find witnesses or evidence to corroborate the information she received from Wells; however, her investigator was unable to find anything useful.
Consequently, a few days before trial, Jones informed Wells that she had been unable to locate any exculpatory evidence, and “[Wells] indicated at that point that he wanted to seek out a plea bargain.” Jones testified that she then approached the prosecutor about a potential plea deal; however, the prosecutor was unwilling to negotiate. Jones explained that she told Wells the State was unwilling to plea bargain and although Wells initially told her he was not willing to enter into a plea agreement for 20 years, he ultimately decided “it might be in his best interest” to accept responsibility and throw “himself under the mercy of the Court.”
Jones testified she and Wells subsequently dismissed the filing of a departure motion and Wells asked her to request a 5–year sentence in hopes the judge would meet in the middle and go for 10. Jones further said there is no guarantee a judge will depart and the ultimate sentence is always a matter for the judge. She never promised any 5– or 10–year sentence and when specifically asked whether she ever made “any guarantees” with respect to sentencing, Jones responded: “Never.”
In addition to Jones' testimony, the State introduced a letter Jones received from Wells prior to sentencing which appears to confirm that Wells fully understood the consequences of his plea, that is, he could potentially receive a 20–year sentence.
After hearing the testimony, the district court found that Wells' plea was not based upon “a sentencing promise/guarantee from trial counsel” because the evidence conclusively showed that Jones provided competent representation and “did not mislead” Wells; “Jones did not make any promises as to what the outcome of the sentencing would be.” As such, the district court found that Wells knowingly and voluntarily entered his plea.
Wells argues the district court decision was erroneous because substantial competent evidence does not support its findings that Jones provided competent representation. Wells claims that his testimony was “sufficient to show that communication with Ms. Jones was either misleading, unclear, or plainly wrong concerning the motion to depart and the sentence that Judge Kisner was likely to impose.” The State, on the other hand, asserts that the district court's “factual findings were sufficient and correct,” and as such, this court should uphold its decision.
Substantial competent evidence is evidence possessing both relevance and substance that a reasonable person could accept as being adequate to support a conclusion. State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009). When reviewing factual findings, however, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility. State v. Johnson, 289 Kan. 870, 888, 218 P.3d 46 (2009).
As the State argues, Wells wants this court to reweigh the evidence or make credibility determinations contrary to the district court which we never do on appeal. Johnson, 289 Kan. at 888, 218 P.3d 46. Clearly, there is substantial competent evidence to support the district court's decision based on Jones' testimony, Wells' letter, and the record of the plea. Jones was clear in her testimony that she “never made any guarantees with respect to sentencing.”
An examination of the plea hearing also clearly shows Wells stated affirmatively he had not received any promises on which he based his plea. In response to the court's question: “And, has anyone made any promises to get you to do that?” (give up his right to a jury trial and enter a plea). Wells answered: “No, sir.”
At the hearing to consider his motion to withdraw his plea, Wells admitted he had reviewed the potential sentence which informed him it could be anywhere from 55 to 247 months. The record specifically reads as follows:
“[THE STATE]: And at the plea hearing Judge Kennedy specifically told you, he specifically told you, you understand that you could face a sentence between a maximum sentence of up to 247 months in prison; right?
“[WELLS]: Yes.
“[THE STATE]: And he told you that before he accepted your plea?
“[WELLS]: Yes.
“[THE STATE]: And so, sir, you knew—you knew that day that you could face a sentence of 247 months in prison; right?
“[WELLS]: Yes.”
Wells' letter to Jones clearly shows he knew he could potentially secure a 20–year prison sentence. Wells wrote: “This is my life. 247 mts 233 mts. I don't deserve. I pray that you represent me, appear at my sentencing, [be]cause only you know my case.” Wells also states: “And if the victim comes to talk against me again I'll try to defend myself as best I can, accept my responsibility and pray that I get 5 yrs or less.” Additionally, Wells told Jones: “My family and I are concern[ed] that perhaps you have dou[b]ts or maybe my past criminal history is so bad that you and the courts don't care if I get 20 yrs[,] 15 or 10.”
Judge Kisner explained he had thoroughly considered Wells' position and his testimony but he viewed Wells' statements regarding “exactly what he was told” by Jones as somewhat inconsistent. Wells first contended Jones promised him he would serve no more than 10 years, then said Jones told him: “I can get you 60 months prison,” and finally at the 1507 hearing, Wells changed his version of the events and replied: “Well, [Jones] said she could guarantee I wouldn't get 20 years, that's for sure. She said it is not a guarantee you would get 60 months, there [are] no guarantees for anything except you won't get 20 years.”
This was clearly a question of credibility which was resolved in favor of the State and contrary to Wells' contentions. There was substantial competent evidence to support all of the court's findings and rulings. There was no ineffective assistance of counsel. There was no misleading promises or guarantees of the outcome of sentencing.
The district court did not abuse its discretion when it denied Wells' motion to withdraw his plea.
Affirmed.