Easterwood v. State

• Decision Date: 19 April 2002
• Docket Number: No. 86,325.,86,325.
• Citation: 273 Kan. 361,44 P.3d 1209
• Parties: LEVOI D. EASTERWOOD, Appellant, v. STATE OF KANSAS, Appellee.
• Court: Kansas Supreme Court

273 Kan. 361

44 P.3d 1209

LEVOI D. EASTERWOOD, Appellant, v. STATE OF KANSAS, Appellee.

No. 86,325.

Supreme Court of Kansas.

Opinion filed April 19, 2002.

Sarah Ellen Johnson, assistant appellate defender, argued the cause, and Rebecca Woodman, assistant appellate defender, and Steven R. Zinn, deputy appellate defender, were with her on the briefs for appellant.

Michael A. Russell, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LARSON, J.:

This K.S.A. 60-1507 appeal raises the question of whether a criminal defendant who has had the opportunity to challenge his felony-murder charge but knowingly waived that right and pled guilty to felony murder and other charges in order to obtain a favorable plea agreement is entitled to collaterally attack his convictions to benefit from a favorable ruling in a later appeal by a different party on the precise legal issue which he willingly waived. We hold the defendant is bound by his plea agreement and receives no benefit from the later ruling which we do not apply retroactively, and we affirm the trial court.

We first set forth in detail the factual background, procedural history, and timing of the events which bring this question before our court.

In late November 1995, LeVoi D. Easterwood, and his cousin, Anthony Birch, entered an Osco store in Kansas City, Kansas, late in the evening. Both were armed with guns. They hid in the back of the store until closing. When the store closed, they came out from their hiding place and proceeded to rob the store.

They forced the store manager to open the safe and hand over approximately $1,500. They held five other employees captive and moved the parties toward the back of the store in order to complete the robbery. One of the employees later gave a statement identifying Easterwood as saying to Birch that they should kill all the witnesses.

At Birch's request, the store manager opened the back door where they were confronted by Kansas City police officers. Easterwood ran to the front of the store where he found three more police officers. He dropped his gun.

Birch shot at the police officers near the back of the store, who returned fire killing Birch. Easterwood ran to a nearby cemetery, where he was captured and arrested.

Easterwood was charged in December 1995 with felony murder, K.S.A. 21-3401 (off-grid person felony), aggravated robbery, K.S.A. 21-3427 (severity level 3 person felony), and six counts of kidnapping, K.S.A. 21-3420 (severity level 3 person felony). Attorney James F. Foster was appointed to defend Easterwood.

A preliminary hearing was held. A motion to suppress a confession was filed and argued. A motion to dismiss contended the felony-murder statute was unconstitutionally vague. Plea negotiations were held. During the selection of the jury to try the case, a plea agreement was reached.

Easterwood executed a Petition to Enter a Plea of Guilty, in which he stated:

A. He was 25 years of age and had completed 14 years of schooling.

B. He acknowledged he was not under any limitation, understood the charges against him, had fully informed his lawyer of all facts and had been counseled on all possible defenses.

C. He stated he had been informed of the maximum sentence that could be entered. He agreed to plead guilty to felony murder, aggravated robbery and one count of kidnapping. The State and defendant agreed to request 20 years' sentence of Life with parole eligibility after 15 years plus 5 years. It was stated in paragraph 12 that "no additional charges filed in Wy. Co. in relation to statement given."

D. In printed language, paragraph 14, which was agreed to by Easterwood, stated:

"14. I know that the court will not permit anyone to plead `Guilty' who maintains he/she is innocent, and with that in mind, and because I am `Guilty' and not innocent, I wish to plead `Guilty' and respectfully request the court to accept my plea."

A guilty-plea hearing was held after the plea agreement was reached. The facts as previously stated herein were recited by counsel and Easterwood. A detailed plea colloquy was held, five kidnapping charges were dismissed, and Easterwood pled guilty to felony murder, aggravated robbery, and one count of kidnapping. The trial court said:

"Mr. Easterwood, I am gonna accept your plea of guilty to those three charges because I find that your plea was freely, voluntarily and because you are, in fact, guilty as charged, not out of ignorance, fear, inadvertence or coercion and with full understanding of its consequences. I further find you have admitted the essential elements of the crime charged and that you are mentally competent here in open court this April 22nd, 1996."

The sentencing hearing was held on June 6, 1996. The parties asked the sentencing court to sentence Easterwood as agreed to in the plea agreement. The judge stated that he assumed a hard 40 sentence was not involved. Easterwood's counsel responded that because the plea was to felony murder, there would be a life sentence and his client would be eligible for parole after serving 15 years but the plea agreement required a 5-year sentence in addition to that. Easterwood was asked if he wished to address the court, and he said:

"Yes. I am fully aware of the crimes that I committed and I'm prepared to pay for those crimes. I apologize to the victims and also my family for what I've done. I'm not an ignorant man. I'm well educated so I understand the circumstances, everything that happened, and I would just hope that the court would agree to the pre-ordained sentence and stick to that.

"That's pretty much all I have to say, Your Honor."

The sentencing judge followed the plea agreement and sentenced Easterwood to life with eligibility for parole after 15 years on the felony-murder conviction and consecutive sentences of 51 months for the aggravated robbery conviction and a downward departure to 9 months for the kidnapping conviction. Easterwood began serving his sentence, and no appeal was taken.

Nothing further occurred until February 3, 2000, when Easterwood challenged his convictions by filing a K.S.A. 60-1507 action in which he alleged ineffective assistance of counsel, he was improperly informed of the potential penalties, insufficient evidence to support a finding of guilt of felony murder, violations of K.S.A. 22-3210 by accepting his pleas without specifically finding that he knew the elements of the crimes charged, and various constitutional violations.

The judge who had sentenced Easterwood appointed counsel to represent him and held a 60-1507 hearing in which Easterwood and his trial counsel, James Foster, both testified.

In response to questions asked about the plea negotiations, Foster stated:

"Q. Okay. The felony murder in this case, was it somewhat unusual because of the factual—the facts in this case?

"A. It was, Judge, because the—the individual—the deceased I think was a relative of Mr. Easterwood's, and he was also involved in a robbery—in a—in an aggravated robbery charge a Osco Drug Store. He was killed by he police when they went to investigate. I think a large number of police officers arrived at Osco and, during the I guess trying to capture the relative, ended up shoot—the police ended up shooting him. So it wasn't a typical felony murder type case in which an innocent bystander might have been killed during the commission of a robbery or something on those lines.

"Q. And had you done any research into the case law into this matter in your defense of Mr. Easterwood?

"A. Yes, I did, and I gave—I don't recall if I actually gave Mr. Easterwood a copy of a case that I got from the Kansas Reports. I know I discussed it with him if I didn't and I gave the name, and the cite, and—and a—I can't remember if I asked him if they had access to law books, but I think I actually gave him a copy of the case on felony murder in which Justice Lockett wrote a dissenting opinion, and it was the closest type of case that I could find that—it was a difficult case. In my mind, it was difficult pleading someone to the felony murder, because I did not believe that that was the purpose of the felony murder rule—

"Q. Di—

"A.—but I found a case and—that—that I think was as close as possible. Justice Lockett was—wrote a dissenting opinion, even though they found a person guilty of felony murder in the—in the most similar situation that with Mr. Easterwood, the possibility if he were convicted, he'd have a right to appeal, and there was several judges who had dissented in the opinion, so he might have a chance on appeal on that issue. But the problem was, he was—in a fairly— fairly strong case against him on all the other charges, so that even if he won the felony murder case—he was in front of Dexter—Judge Dexter Burdette. You were going to a-—the prosecution was asking for consecutive sentences. It w-— he was just in a no-win situation.

"Q. Okay, so up to the plea, were—were you and Mr. Easterwood talking about that if—even if he was convicted, that you would have an appeal right at least to whether the facts in this case supported a conviction for felony murder?

"A. That's correct.

"Q. And had you conveyed that or spoke—had you and Mr. Easterwood discussed this during this entire time?

"A. Yes.

"Q. And what was his feelings as to what you should do—

"A. Uh—

"Q.—if you recall?

"A. I mean, he—he didn't—like any—any person charged with a crime and not sure—he didn't want—necessarily want to plead to felony murder and— and the other charge; but there weren't any alternatives, other than going to trial and maybe getting all charges run consecutive, getting a larger sentence—"

Foster, in later questions, explained his concern regarding consecutive sentences being entered and the difficulty of the case:

"Q. Okay. What—you had indicated that—that you felt

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