State v. Beauclair, 91,999.

• Citation: 130 P.3d 40
• Decision Date: 17 March 2006
• Docket Number: No. 91,999.,91,999.
• Parties: STATE of Kansas, Appellee, v. Danny E. BEAUCLAIR, Appellant.
• Court: United States State Supreme Court of Kansas

130 P.3d 40

STATE of Kansas, Appellee, v. Danny E. BEAUCLAIR, Appellant.

No. 91,999.

Supreme Court of Kansas.

March 17, 2006.

John A. Fakhoury, of Fakhoury Law Office, argued the cause and was on the briefs for appellant.

Amy M. Memmer, assistant district attorney, argued the cause, and Robert D. Hecht, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.

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

Two years after Danny E. Beauclair pled no contest to one count of rape of a child under 14 years of age and one count of aggravated criminal sodomy of a child under 14 years of age, he filed a motion to withdraw his pleas. Among other things, he alleged that the district court had under informed him of the possible minimum and maximum sentences at his plea hearing and that as a result, his pleas were not knowing and voluntary. After the district court denied Beauclair's motion, he appealed, and the Court of Appeals reversed. State v. Beauclair, No. 91,999, 116 P.3d 55 unpublished opinion filed July 29, 2005, 2005 WL 1805159, *2.. We granted the State's petition for review under K.S.A. 20-3018(b).

The sole issue on appeal is whether the district court abused its discretion when it denied Beauclair's motion to withdraw his pleas. We affirm the district court, reverse the Court of Appeals, and remand to the Court of Appeals for determination of other issues raised by Beauclair but not addressed by that court.

FACTS

In November 1999, Danny Beauclair was charged with one count of rape of a child under 14 years of age, in violation of K.S.A. 1999 Supp. 21-3502(a)(2), and one count of aggravated criminal sodomy of a child under 14 years of age, in violation of K.S.A. 21-3506(a)(1). That same month Gwynne Harris was appointed as his defense counsel. In February 2001, the complaint was amended to include an additional count of rape of a child. Following preliminary hearings on February 27 and March 2, 2001, the case was bound over for trial.

On August 13, 2001, during selection of a jury for Beauclair's trial, he decided to plead no contest. According to an affidavit later provided by defense counsel Harris, "In arriving at the plea agreement, Defendant was advised as to what the sentence guidelines provided and what he could expect the court to consider" under the 1998 sentencing guidelines. Per Harris' affidavit, she specifically informed Beauclair that for a defendant with no criminal history, the sentencing ranges were 184-206 months minimum for the rape charge, a level one offense, and 136-154 months minimum for the aggravated sodomy charge, a level 2 offense. Her affidavit also states that Beauclair was advised of the 1999 sentencing guidelines, which provide lesser penalties for these crimes.

The next day, August 14, Beauclair and Harris attended a plea hearing. Beauclair entered a no contest plea to one count of rape of a child under 14 and one count of aggravated criminal sodomy of a child under 14. In exchange for the plea, the State agreed to dismiss the second count of rape. The transcript reveals:

"THE COURT: All right. And is this arrangement satisfactory with the victims and their families?

"MR. HECHT [For the State]: It is my understanding that it is, Your Honor.

"THE COURT: All right, okay. Miss Harris, is that your understanding of the negotiations in this matter?

"MS. HARRIS: That is my understanding, Your Honor. We would concur with the recommendation for the [K.S.A.] 22-3429 evaluation [mental examination, evaluation, and presentence report]. We believe that it is needed for a more in-depth presentence investigation report to aid the Court.

"I have gone over this extensively with Mr. Beauclair, as well as his family. They too agree that in light of the plea agreement, that a 3429 evaluation should be in order.

....

"THE COURT: And you have been represented by counsel throughout the proceedings herein. Are you satisfied with her representations of you, and are you satisfied that you have been treated fairly by the Court?

"DEFENDANT BEAUCLAIR: Yes, sir." (Emphasis added.)

Prior to accepting the plea on August 14, the court questioned Beauclair regarding the rights that he would be waiving with his plea. Because Beauclair's criminal history was unknown at the time, the court also informed him that the rape charge carried a possible sentence of 147 months' to 653 months' imprisonment and that the aggravated sodomy charge carried a possible sentence of 109 months to 493 months. These minimum and maximum sentences correspond with the 1999 sentencing guidelines. Beauclair stated he understood the potential sentence and that he faced a long time in prison. The court accepted the pleas after determining they were made voluntarily. Sentencing later was set for November 2001.

On November 16, however, the district court ordered both counsel to file legal memoranda by December 14 on the issue of which year's sentencing guidelines applied to Beauclair—1998 or 1999. According to the court's docket sheet in the record on appeal, Beauclair and Harris both appeared in person at the hearing where the order was issued. The court then postponed the sentencing hearing until January 1, 2002. The docket sheet reveals that both Harris and the State timely filed their memoranda concerning the applicable sentencing guidelines.

On February 27, 2002, the district court conducted the sentencing hearing attended by the State, Beauclair, Harris, and two additional defense counsel, William Rork and John Fakhoury. While no journal entry is contained in the record on appeal memorializing the court's decision on which year's sentencing guidelines apply—1998 or 1999—the following colloquy reveals that not only had the 1998 version been judicially determined as correct but that it also had been agreed to as correct by the State and the defense:

"THE COURT: ... The defendant is before the Court for sentencing. There has been a motion to withdraw—or there has been a motion to depart and supplement thereto, and the State has responded to each of those in opposition thereto. We have previously determined that the sentencing guideline material and statistics are that the defendant ... has a criminal history of [I], and there are two offenses herein. The—let's see, the first is sexual intercourse with a child, carrying a 184 to 206 month sentence of incarceration. The other offense is aggravated sodomy, which is a level two severity offense, carrying a sentencing range of 136 to 154. Again, the criminal history is I. There is a presumption of probation. The sexual intercourse with a child is a level one severity level.

"Has that all [minimums under the 1998 guidelines] been agreed to as determined by the Court?

"MR. HECHT [For the State]: I think that's been both agreed to and determined by the Court, but I think the Court misspoke yourself when you said as to aggravated sodomy, that it was presumptive probation.

"THE COURT: Okay. Both of the crimes of conviction are presumption of prison.

"MR. HECHT: Yes.

"THE COURT: Okay. Mr. Rork [Defense Counsel with Harris], do you wish to be heard, then, on your motion to depart?

"MR. RORK: Yes, Your Honor, I have two brief witnesses.

"THE COURT: All right. Go ahead." (Emphasis added.)

Neither Beauclair nor his counsel Rork, Harris, or Fakhoury, objected to the court's statement regarding the court's determination of, and the parties' agreement to, the 1998 sentencing guidelines' applicability. Nor did they object to the prosecutor's statement confirming the court's determination and the parties' agreement.

Later in the hearing, Beauclair was sentenced under these 1998 sentencing guidelines: the maximum penalty for the rape charge was 816 months' imprisonment and the maximum for the aggravated sodomy charge was 616 months. Based upon Beauclair's criminal history score of "I" (no prior history), he was sentenced to concurrent minimum terms of 184 months for the rape charge and 136 months for the aggravated sodomy charge. These punishments revealed that on the rape charge, Beauclair received a minimum sentence 37 months greater than the minimum that he had been told by the court at the plea hearing; on the sodomy charge, he received a minimum sentence, although concurrent, 27 months greater than the minimum that he previously had been told by the court.

On October 31, 2003, approximately 20 months after Beauclair's sentencing, he filed a motion to withdraw his plea. In support, he argued that: (1) his plea was not knowing and voluntary because he was misinformed about the maximum and minimum sentences that could be imposed due to the court's reading from the wrong sentencing guidelines at the plea hearing; (2) his plea was not made knowingly and voluntarily due to his mental health condition; (3) the court erred in failing to determine a factual basis for the plea; and (4) the victim's sworn statement exonerated him.

In December 2003, the State filed a memorandum opposing Beauclair's motion. It attached the affidavit by Harris (now Harris-Birzer) signed December 12, 2003, which states in relevant part:

"6. I was appointed to represent this Defendant in November of 1999 and continuously represented him thereafter to and including his plea, which occurred during the voir dire and jury selection process, and through sentencing.

"7. During plea discussions, I fulfilled my professional obligation of advising the Defendant of the charges, the nature and elements thereof and discussed fully his available defenses and the sentence possibilities that he was confronting.

"8. In arriving at the plea agreement, Defendant was advised as to what the sentence guidelines provided and what he could expect the Court to consider—for offenses committed prior to July 1, 1999, [1998 guidelines] these offenses, for a Level 1 offense [rape] with a criminal history I, the range would be 184 to 206 months, and for Level 2 offense [aggravated...