State v. Johnson

Decision Date16 February 2018
Docket Number111,550,111,551
Citation410 P.3d 913
Parties STATE of Kansas, Appellee, v. Chad M. JOHNSON, Appellant.
CourtKansas Supreme Court

Christina M. Kerls, of Kansas Appellate Defender Office, was on the brief for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by Stegall, J.:

Chad M. Johnson appeals the district court's denial of his postsentencing motion to withdraw pleas. He contends he should have been permitted to withdraw his pleas for three reasons: (1) his counsel and the court did not adequately inform him of the registration required by the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. , or the maximum sentence he could receive if he pled; (2) his attorney misled him regarding the State's position on probation; and (3) his attorney failed to investigate the underlying facts and failed to adequately research possible defenses. For the reasons set forth below, we hold that the district court did not abuse its discretion when it denied Johnson's motion. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Johnson in case 07 CR 368 with one count of possession of methamphetamine with intent to sell (his second such offense), one count of criminal possession of a firearm, and two other drug-related charges. Johnson later entered into a plea agreement with the State. He agreed to plead guilty to the possession of methamphetamine with intent to sell charge, as well as the criminal possession of firearm charge. In exchange, the State agreed to dismiss the remaining counts; not oppose a downward dispositional departure to probation; and recommend that the court impose concurrent sentences.

On August 1, 2008, the district court conducted the plea hearing. At the outset of the hearing, Thomas Stanton—the prosecutor—explained the parties' agreement to the court. Afterwards, the court confirmed with Johnson that this was indeed their agreement, and Johnson pled guilty to the two counts.

Before the court could sentence Johnson at a later date, law enforcement officers arrested Johnson for possession of methamphetamine. The State then charged Johnson in case 08 CR 790 with possession of methamphetamine with intent to sell (his third such offense).

It appears the attorneys and the court handling the first case did not become aware of Johnson's post-plea arrest until the sentencing hearing in 07 CR 368 held on September 26, 2008. As the court was announcing Johnson's sentence, Stanton interjected to inform the court that he had just learned that Johnson had been arrested again for possession of methamphetamine. Donald Snapp—Johnson's attorney—told the court he was unaware of the arrest. The court thus postponed the sentencing hearing to consider the new information.

Before the court could proceed with sentencing Johnson moved to withdraw his plea. The motion alleged the State previously agreed to recommend a dispositional departure to probation. It further stated that Johnson maintained his innocence and he wished to submit his case to a jury. A while later, Snapp moved to withdraw as Johnson's counsel, reasoning that because he negotiated the plea agreement that was now in dispute, he was a potential witness. At a hearing on Snapp's motion, Stanton told the court that he was "not backing off of [the] agreement" and that he wished to proceed with sentencing. The court noted that "the State is not attempting to withdraw from the agreement" and asked Snapp whether "that change[s] the motion for withdrawal of plea, or are you still opposing on the ground your client does not believe he is guilty?" Snapp told the court that Johnson believed his case should have proceeded to a jury trial. Thereafter, the court permitted Snapp to withdraw and appointed Shannon Crane to represent Johnson.

Following her appointment, Crane filed an amended motion to withdraw plea in which Johnson "acknowledge[d] the State is not recommending prison, but maintain[ed] the State's actions at the sentencing hearing inherently violated the spirit of the plea agreement." The motion also claimed that Johnson had ineffective assistance of counsel prior to acceptance of the plea.

In August 2009, Johnson fled to Arizona. Authorities apprehended Johnson in June 2010 and extradited him to Kansas. Upon his return, Crane negotiated a new plea deal for Johnson in both cases 07 CR 368 and 08 CR 790. Stanton later orally recited the agreement, which was not in writing:

"Mr. Stanton: ... My understanding [of the plea agreement] is as follows: The defendant had filed a motion to withdraw his plea in 07 CR 368. That motion to withdraw his plea will be withdrawn.
"... The defendant will plead guilty as charged in [08 CR 790] to the one count of possession of methamphetamine with intent to sell .... The parties will request that both cases be set over for a special sentencing date, not on a Friday morning—
"The Court: Okay.
"Mr. Stanton: —for sentencing. The agreement is that the parties will recommend that the sentences in Case Number 07 CR 368 run concurrent with the sentence in Case Number 08 CR 790. The parties believe based on the defendant's last PSI in 07 CR 368 that he will be criminal history category C. The, the parties will recommend the midrange sentence, which is, I believe, 178 months. Is that correct?
"Ms. Crane: That sounds correct.
"Mr. Stanton: And that will be the controlling sentence for both cases. Upon successful entry of that, of the plea in 08 CR 790, the state will dismiss Case Number 09 CR 911, which is an agg[ravated] failure to appear case.
"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 [the State] has left off.
....
"Ms. Crane: We would just ask the court to approve the agreement that we have. We would withdraw our motion to withdraw plea.
"The Court: So the motion to withdraw plea in 07 CR 368 is withdrawn?
"Ms. Crane: That's correct, Your Honor.
"The Court: Is that what you want to do, Chad?
"The Defendant: Yes, sir.
"The Court: And you're doing it of your own free will?
"The Defendant: Yes, sir.
"The Court: Okay. I'll, I'll accept that ...."

Crane later corrected Stanton that Johnson would plead no contest rather than guilty in 08 CR 790, and the State agreed to Crane's correction. The court then asked Johnson if he wished to plead no contest in 08 CR 790, and Johnson said yes. After explaining and ensuring that Johnson understood the rights he was waiving, the court inquired about Johnson's understanding of the plea:

"The Court: Is it your wish to give up these rights and proceed to a plea of no contest?
"The Defendant: Yes, sir.
"The Court: And the plea agreement has been stated into the record, right?
"Ms. Crane: Yes, Your Honor.
"Mr. Stanton: Yes, sir.
"The Court: And Mr. Johnson, do you understand the agreement?
"The Defendant: Yes, sir.
"The Court: Is it the entire agreement between your lawyer and the state?
"The Defendant: Yes.
"The Court: And do you realize that the court is not bound by that agreement?
"The Defendant: Yes, sir.
"The Court: Other than this plea agreement, has anyone promised you anything or threatened you with anything to get you to plea nolo contendere?
"The Defendant: No, sir.
"The Court: Has anyone promised you probation?
"The Defendant: No, sir.
"The Court: And do you know the sentence that you could be given?
"The Defendant: Yes, sir.
"The Court: Have the services of Shannon Crane as your lawyer been satisfactory?
"The Defendant: Yes, sir.
"The Court: Do you have any complaints about the way she has represented you?
"The Defendant: No, sir."

Thereafter, the court accepted Johnson's no contest plea in 08 CR 790, concluding that there was a factual basis for the plea and that it was knowingly, voluntarily, understandingly, and intelligently made.

In October 2010, the district court sentenced Johnson in both cases. In accordance with the plea agreement, the parties asked for the midrange sentences of 68 months in 07 CR 368 and 178 months in 08 CR 790 and requested that the court run the sentences concurrently. Johnson requested a dispositional departure to probation, which the State, pursuant to the stated plea agreement, opposed. Crane did not claim that the State was violating the plea agreement by opposing a dispositional departure. The court denied Johnson's request and sentenced him to a total of 178 months in prison.

The court also ordered Johnson to register as a drug offender. We upheld Johnson's sentences on direct appeal. State v. Johnson , No. 105346, 2012 WL 1253216 (Kan. 2012) (unpublished opinion).

In March 2013, Johnson moved pro se to withdraw his pleas based on Crane's representation. His motion claimed that (1) Crane did not inform him that he would be required to register pursuant to KORA for the remainder of his life; (2) Crane assured him that the court would sentence him to community corrections probation if he entered a no contest plea; and (3) Crane was inexperienced and did not adequately investigate his case.

In November 2013, the district court held an evidentiary hearing on the motion, during which both Johnson and Crane testified. Johnson told the court that Crane was ineffective because she informed him that she had very little experience in criminal law. When asked to explain why he thought she was inexperienced, Johnson stated:

"Basically stating she never really done a drug trial and didn't, you know, have a lot of experience in that area. Sh
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