State v. Barrager
| Decision Date | 04 September 2020 |
| Docket Number | No. 121,445,121,445 |
| Citation | 469 P.3d 1293 (Table) |
| Parties | STATE of Kansas, Appellee, v. Michael Scott BARRAGER, Appellant. |
| Court | Kansas Court of Appeals |
Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.
Amy L. Aranda, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before Warner, P.J., Standridge and Gardner, JJ.
Michael Scott Barrager appeals the district court's denial of his presentence motion to withdraw his plea. Barrager argues he showed good cause to withdraw his plea because the district court misled him about his percentage of good time credit and his term of postrelease supervision, so he did not fairly and understandingly make the plea. We disagree, as the district court reasonably found that Barrager failed to show good cause to withdraw his plea.
In June 2018, the State charged Barrager with domestic battery, aggravated domestic battery, aggravated kidnapping, and stalking. On the second day of the jury trial the parties reached a plea agreement. As part of that agreement, Barrager agreed to plead no contest to three crimes: aggravated battery, attempted aggravated kidnapping, and stalking. In return, the State agreed to dismiss the domestic battery charge, to recommend a controlling sentence of 112 months, and to abstain from prosecuting any other recent criminal offense involving Barrager and the victim.
Barrager signed a tender of plea of no contest. That tender included the maximum prison sentences and fines for each crime. During the plea hearing, the district court told Barrager about the potential consequences for each crime:
After Barrager affirmed that he understood the consequences of his plea and waived his rights, the district court found he had made his plea voluntarily and "knowledgeably."
Before sentencing, Barrager moved pro se to withdraw his pleas. Among other allegations, Barrager accused the State and his attorney of having tricked him into signing the plea agreement. In a supplemental motion, Barrager's new attorney argued that Barrager had good cause to withdraw his plea because the district court had incorrectly advised him about the term of postrelease supervision, the amounts of the fines, and how much good time credit was available. He pointed out that the district court stated Barrager could earn up to 20% good time credit on the aggravated battery conviction and would be subject to 12 months of postrelease supervision. But the district court failed to say that the aggravated battery conviction was not the base sentence, so it would not determine his potential for good time sentence mitigation, nor his controlling term of postrelease supervision. Instead, Barrager's controlling sentence was his Level 3 felony—attempted aggravated kidnapping. Barrager was eligible for 15% good time credit and subject to 36 months of postrelease supervision on the controlling sentence.
The district court held an evidentiary hearing on Barrager's motion to withdraw his pleas, then denied the motion. As to the plea colloquy, the district court found that no one had misled Barrager, and that he had been given accurate information. Thus, he failed to show good cause to withdraw his plea. The district court sentenced Barrager to 112 months in prison with 36 months of postrelease supervision and 15% potential good time credit.
Barrager timely appeals.
Barrager argues that he showed good cause to withdraw his plea and that the district court failed to meet the requirements or purpose of K.S.A. 2019 Supp. 22-3210(a)(2). That statute requires the court in felony cases to inform the defendant of the consequences of the plea, and of the maximum penalty that the court may impose. He claims the district court's statements misinformed him about his good time credit eligibility and the correct term of postrelease supervision, and those failures caused him to enter "an unknowing and involuntary plea."
We review the denial of a presentence motion to withdraw a plea and the determination that the defendant has not met his burden to show good cause under the abuse of discretion standard. State v. Woodring , 309 Kan. 379, 380, 435 P.3d 54 (2019). A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it stems from an error of law; or (3) it stems from an error of fact. State v. Ingham , 308 Kan. 1466, 1469, 430 P.3d 931 (2018). The party seeking to withdraw the plea—here, Barrager—bears the burden of establishing the district court's abuse of discretion. On appeal, we defer to the district court's fact-finding, declining to reweigh evidence or assess witness credibility. See Woodring , 309 Kan. at 380.
Under K.S.A. 2019 Supp. 22-3210(d)(1), a defendant may withdraw a plea for good cause and within the discretion of the district court at any time before sentencing. In determining whether the defendant has shown good cause, the district court typically considers three factors, commonly known as the Edgar factors: (1) whether competent counsel represented the defendant; (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. Newman , 311 Kan. 155, 158-59, 457 P.3d 923 (2020) ; State v. Edgar , 281 Kan. 30, 127 P.3d 986 (2006). These factors are not exclusive. State v. DeAnda , 307 Kan. 500, 503, 411 P.3d 330 (2018). The district court considered the three Edgar factors here.
When, as here, the district court finds that the defendant failed to show good cause, it must deny the defendant's request to withdraw his plea. State v. Brown , 46 Kan. App. 2d 556, 562, 263 P.3d 217 (2011). To overturn the district court, a defendant "must establish that no reasonable person would have agreed with the district court's assessment of the three Edgar factors and its ultimate conclusions that [the defendant] failed to establish good cause to withdraw his plea." State v. Reu-El , 306 Kan. 460, 472, 394 P.3d 884 (2017). We examine the district court's assessment of these three factors below.
The district court found that Paul Dean, Barrager's trial attorney, gave Barrager accurate information regarding his plea. It found Barrager does not challenge these findings on appeal or assert that he had incompetent counsel.
Barrager claims that the district court misled him into believing he would be eligible for 20% good time credit and subject to only 12 months of postrelease supervision. Barrager asserts that the district court did so by stating the good time percentages and postrelease terms for the noncontrolling crime of aggravated battery but failed to address the same terms with respect to the controlling attempted aggravated kidnapping conviction. In fact, Barrager was eligible for 15% good time credit and subject to 36 months of postrelease supervision on the controlling sentence.
In its memorandum decision, the district court found that no one misled Barrager, and that he was given accurate information. Our review of the record confirms those findings. At the evidentiary hearing on Barrager's motion to withdraw his plea, Dean testified. He said that about a week after his plea, Barrager accused Dean of having mislead him by telling him he would receive 20% good time credit. The next day, Dean met with Barrager and showed him his notes from just before the plea hearing. Dean's notes showed they had discussed that Barrager's good time credit percentage was 15%, not 20%. After that meeting, Dean understood that Barrager was satisfied that he had not tried to trick him.
Dean also testified about the events before the plea. Dean visited Barrager the night after the first day of trial. Barrager told Dean that he did not like how things were going, and Dean agreed to pursue a new plea deal. That night, Dean asked the State for a modified plea deal. He received the new plea offer the next morning, met with Barrager, and read the proposed plea out loud to him.
When asked if Barrager would have been confused by the district court's statements at the plea hearing, Dean responded:
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