State v. Barahona

• Decision Date: 28 April 2006
• Docket Number: No. 94,130.,94,130.
• Parties: STATE of Kansas, Appellee, v. Nicomedes BARAHONA, Appellant.
• Court: Kansas Court of Appeals

Page 959

132 P.3d 959

STATE of Kansas, Appellee, v. Nicomedes BARAHONA, Appellant.

No. 94,130.

Court of Appeals of Kansas.

April 28, 2006.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Bryant T. Barton, assistant county attorney, Barry R. Wilkerson, county attorney, and Phill Kline, attorney general, for appellee.

Before RULON, C.J., MARQUARDT and HILL, JJ.

RULON, C.J.

Defendant Nicomedes Barahona appeals the district court's denial of his motion to withdraw his plea, claiming his plea hearing violated his due process rights and that he was afforded ineffective assistance of counsel. We affirm.

The defendant claims the district court erred in summarily denying his request to withdraw his plea. Primarily, the defendant claims the district court violated his due process rights by failing to address the defendant to determine whether the plea was entered knowingly and voluntarily. We disagree.

After sentencing, a district court may permit a defendant to withdraw a plea, if doing so will correct a manifest injustice. K.S.A. 2005 Supp. 22-3210(d). A decision regarding a motion to withdraw a plea lies entirely within the discretion of the district court. An appellate court will not disturb the exercise of such discretion absent a demonstration of abuse. See State v. Muriithi, 273 Kan. 952, 955, 46 P.3d 1145 (2002). Judicial discretion is abused if judicial action is arbitrary, fanciful, or unreasonable so that no reasonable person would take the view adopted by the court. See State v. Murray, 22 Kan.App.2d 340, 346, 916 P.2d 712 (1996).

The requirements in accepting a plea set forth in K.S.A.2005 Supp. 22-3210(a) encapsulate the due process standard announced in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); see Muriithi, 273 Kan. at 964, 46 P.3d 1145. In pertinent part, the statute provides:

"(a) Before or during trial a plea of guilty or nolo contendere may be accepted when:

. . . .

(3) in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea."

A review of the plea hearings conducted in this case reveals a personal inquiry of the defendant by the district court about the defendant's understanding of the charges and the potential consequences. The only objection to the sentencing hearing raised by the defendant is the court's failure to address the defendant about the voluntariness of the plea.

While the record clearly reveals the district court's failure to question the defendant about the knowing and voluntary nature of his plea, a failure to strictly comply with the provisions of K.S.A.2005 Supp. 22-3210(a) does not necessarily mandate reversal. See Trotter v. State, 218 Kan. 266, 268-69, 543 P.2d 1023 (1975).

"While we do not approve of any failure to comply strictly with the explicitly stated requirements of K.S.A. 22-3210, it does not follow that every deviation therefrom requires reversal. If upon review of the entire record it can be determined that the pleas of guilty [or nolo contendere] were knowingly and voluntarily made, the error resulting from failure to comply strictly with K.S.A. 22-3210 is harmless." Trotter, 218 Kan. at 269, 543 P.2d 1023.

A review of the plea hearing transcripts leaves no doubt as to the defendant's understanding of his plea. Because of the confusion related to the applicable criminal history score, the defendant was provided with two hearings, rather than just one. During the second hearing, the defendant's attorney informed the court that he had explained the changes in the plea agreement to the defendant. Later, the district court specifically asked the defendant whether the defendant understood what his attorney had just stated and whether the defendant understood the ramifications of the change in the plea agreement. The defendant confirmed that he did.

Furthermore, the plea agreement was accompanied in this case by a written acknowledgment of a waiver of rights, signed by the defendant wherein the defendant acknowledged: "I do this of my own free will and under no threat, intimidation or coercion, and no promises have been made to me by my attorney, any police officer, or any prosecuting attorney as to what I should expect to receive from this."

Most persuasively, however, the defendant wrote a series of letters to the district court in this case. The first, dated October 11, 1994, was received by the district court prior to the plea agreement in this case, which was dated November 7, 1994. Within that letter, the defendant wrote:

"Your [sic] handeling [sic] my case in Riley County District Court. My case number is 94-CR-630. . . . Your honor, im [sic] not writeing [sic] to justify my criminal actions, Because there is no way for me to justify my action. . . . I found a girl I really love. she [sic] got pregnant & I didn't know what to do. My mom wouldn't have helpt [sic] out neither would her parents. so [sic] I resorted to a quick way of cash to help her out. I did the robbery, which im [sic] in here for."

Prior to trial, the defendant had admitted committing one of the crimes to which he ultimately entered a plea. On October 8, 10, and 31, the district court received other letters from the defendant. Within these letters, the defendant begged the court for leniency and mercy, but the defendant never proclaimed his innocence of any of the charges he faced. There is nothing to indicate these letters were coerced in any manner or that the defendant desired a trial, which would undermine his later acknowledgment of the voluntariness of his plea within the plea agreement.

Although Kansas courts have not previously defined the term "manifest injustice" within the context of a motion to withdraw a plea, cases involving other contexts in which that standard has been applied have equated "manifest injustice" to something obviously unfair or shocking to the conscience. See State v. Turley, 17 Kan.App.2d 484, Syl. ¶ 2, 840 P.2d 529, rev. denied 252 Kan. 1094 (1992) (interpreting "manifest injustice" standard in K.S.A.1991 Supp. 21-4618[3]); State v. Cramer, 17 Kan.App.2d 623, 635, 841 P.2d 1111 (1992), rev. denied 252 Kan. 1094 (1993) (same).

One consideration courts have given to a request of a defendant to withdraw a plea is the timeliness of the request. See United States v. Graves, 106 F.3d 342, 343 (10th Cir.1997) (under a "fair and just reason" standard, a court properly considers whether the defendant asserted innocence, whether the government is prejudiced by a withdrawal of the plea, whether the defendant delayed in filing a motion to withdraw the plea, whether the court will be inconvenienced, whether the defendant possessed the assistance of counsel, whether the plea was knowing and voluntary, and whether judicial resources will be squandered); People v. Castaneda, 37 Cal.App.4th 1612, 1618, 44 Cal.Rptr.2d 666 (1995) (requiring defendant to justify lapse of time between entry of plea and motion to withdraw if the delay is significant); Commonwealth v. Gonzales, 43 Mass. App. 926, 685 N.E.2d 1163 (1997) (attaching a presumption of regularity to plea proceedings when attempt to withdraw plea brought 10 years after entry of plea); Doughman v. State, 351 N.W.2d 671, 675 (Minn.App.1984) (questioning validity of claims raised in a motion to withdraw a plea filed 22 months after entry of plea); State v. Tweed, 312 Mont. 482, 490, 59 P.3d 1105 (2002) (applying an abuse of discretion standard to review of district court's refusal to allow the withdrawal of a plea; the court considered, in part, the promptness with which the defendant brought the motion to withdraw the plea); Hart v. State, 116 Nev. 558, 563, 1 P.3d 969 (2000) (considering whether inexcusable delay or implied waiver due to defendant's knowing acquiescence to plea proceeding prevented a finding of manifest injustice warranting withdrawal of the plea); State v. Marshburn, 109 N.C.App. 105, 108, 425 S.E.2d 715 (1993) (requiring a more compelling reason to withdraw plea when request is made 8 months after plea was entered); State v. Bush, 96 Ohio St.3d 235, 239, 773 N.E.2d 522 (2002) (undue delay in filing motion to withdraw plea is a factor adversely affecting the credibility of the movant's claims).

The defendant filed this motion to withdraw his plea nearly 10 years after being sentenced. While his criminal history score continues to reflect the convictions resulting from his pleas, he has effectively served the entire underlying sentence for these crimes. The record of the original proceedings disputes the defendant's claim that he maintained his innocence but was pressured into a plea by his attorney.

Under these circumstances, no reasonable person in the position of the district court judge would conclude that enforcing the plea agreement was obviously unfair or shocking to the conscience. Consequently, the district court did not abuse its discretion in refusing to allow the defendant to withdraw his plea.

Alternatively, the defendant argues the district court should have allowed him to withdraw his plea due to the ineffective assistance of trial counsel. Again, the standard the defendant needs to meet is manifest injustice. K.S.A.2005 Supp. 22-3210(d).

To demonstrate constitutionally ineffective assistance of counsel, the movant must satisfy a two-prong test: (1) the performance of counsel must be so deficient as to impinge upon the guarantees of the Sixth Amendment to the United States Constitution; and (2) the deficient performance must be of a serious nature, prejudicing the movant's ability to obtain a fair trial. See State v. Rice, 261 Kan. 567, 599, 932 P.2d 981 (1997) (citing Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 104 S.Ct. 2052 [1984]).

"`In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the...