State v. Blum, 071417 KSCA, 115, 317

• Judge: Before Hill, P.J., McAnany and Atcheson, JJ.
• Parties: State of Kansas, Appellee, v. Terry Blum, Appellant.
• Docket Number: 115,317
• Court: Kansas Court of Appeals
• Date: 14 July 2017

State of Kansas, Appellee,

v.

Terry Blum, Appellant.

No. 115, 317

Court of Appeals of Kansas

July 14, 2017

NOT DESIGNATED FOR PUBLICATION

Appeal from Sedgwick District Court; Christopher M. Magana and William S. Woolley, judges.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Hill, P.J., McAnany and Atcheson, JJ.

MEMORANDUM OPINION

Per Curiam

There are two aspects to this appeal. Did the district court exceed its discretion when it refused to allow Terry Blum, who had made a favorable plea bargain with the State, to withdraw his guilty pleas? Similarly, did the court unreasonably impose consecutive sentences? The court had good reasons to deny Blum's request to withdraw the pleas. Additionally, we are powerless to review a guideline sentence. Consequently, we affirm.

To understand the first issue, we must repeat the procedural history of this case. The State, in two cases, initially charged Blum with five counts of aggravated indecent liberties with a child and one count of lewd and lascivious behavior. The two cases stemmed from separate incidents with different victims. These were very serious off-grid felony charges with a possibility of a life sentence with no chance for parole for 25 years on each of the five counts. In the vernacular, this is known as "the hard 25." Necessarily, the new allegations would affect another case for which Blum was serving a term of probation at the time he allegedly committed these new crimes.

Blum made a plea agreement with the State. In exchange for no-contest pleas, often called Alford pleas, the State agreed to amend the complaint to charge Blum with four counts of aggravated indecent solicitation of a child, all severity level 5 person felonies. Thus, the charges were back on the sentencing grid. This amendment resulted in a substantial reduction from the original off-grid felony charges. The State also agreed to recommend that Blum be sentenced to the midrange prison term for a total of 216 months. Blum signed the plea agreement and entered a formal plea before the district court in January 2015.

Then, before sentencing, Blum moved to withdraw his plea. After taking evidence on the matter over the course of several days, the district court ultimately denied it.

Following the recommendations in the plea agreement, the district court sentenced Blum to four consecutive sentences for a total prison term of 216 months and lifetime postrelease supervision. Also, the court revoked Blum's probation in the prior case.

In this consolidated appeal of all three cases, Blum argues the services of his attorney, Jason Smartt, were inadequate, he was coerced into making the plea agreement, and he did not voluntarily enter his plea. Therefore, Blum contends the district court abused its discretion when it denied his motion. Next, Blum argues the district court abused its discretion when it imposed consecutive sentences without making any appropriate findings about why consecutive sentences might serve to protect the public or serve the legitimate purposes of sentencing either in regard to rehabilitation, deterrence, punishment, or protection of the public. We consider his arguments in that order.

The law is clear-before sentencing, a district court has the discretion to allow the withdrawal of a plea for good cause shown. K.S.A. 2016 Supp. 22-3210(d)(1). Upon review, we will set aside the denial of a motion to withdraw plea only if the defendant shows the district court abused its discretion. State v. Williams, 290 Kan. 1050, 1053, 236 P.3d 512 (2010). Basically, there are three ways a district court can abuse its discretion:

• If no reasonable person would have taken the view adopted by the court;

• its conclusion is based on an error of law; or

• its conclusion is based on an error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).

The Kansas Supreme Court has set out three factors-known as the Edgar factors-to guide a district court's consideration of whether a defendant has demonstrated good cause to withdraw a plea prior to sentencing: • whether the defendant was represented by competent counsel; whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and

• whether the plea was fairly and understandingly made. State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010). See State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006).

The record does not reveal an abuse of discretion in this case.

We review the evidence placed before the district court.

Jason Smartt, an attorney at the Sedgwick County Public Defender's Office, served as Blum's counsel from April 2014 until shortly after Blum entered his plea in January 2015. Blum hired private counsel for the hearing on his motion to withdraw his plea.

At the motion hearing, Blum asserted that Smartt visited him only four times at the Sedgwick County jail during the course of his representation and that three of the visits consisted largely of discussions about a potential plea. Blum claimed he never authorized Smartt to seek a plea deal and that these plea discussions shook his confidence in Smartt's ability to defend his case. In addition, Blum alleged Smartt told him he "[did not] have any evidence to fight [the charges]" and failed to provide copies of discovery or police reports. Ultimately, Blum stated he felt pressured to enter the plea agreement and believed he would be "doomed" if he went to trial with Smartt as his attorney.

In contrast, Smartt countered that in addition to meeting Blum at the Sedgwick County jail, he also traveled to the Sumner County jail to visit Blum "at least twice." Smartt estimated these particular meetings lasted more than an hour each. Smartt also testified that Blum authorized him to negotiate a plea in June 2014. Additionally, Smartt noted he hired a private investigator who "tried to contact everyone" and "generated a significant volume of work." Smartt himself attempted to contact Blum's family members and his spouse. He issued more than 20 subpoenas and filed numerous pretrial motions.

Additionally, Smartt testified that on December 28, 2014, he visited Blum to discuss the State's plea proposal. The two discussed the terms of the agreement and talked about Blum's wife and daughter wanting him to accept a plea agreement. Smartt testified this latter information came from Blum himself. Blum signed the plea agreement that day and appeared in court with Smartt on December 30, 2014.

Smartt went on to say that Blum decided not to go through with the plea because he wanted to have a second opinion about the plea with private counsel. Smartt testified that he told Blum he would cooperate with any private counsel that contacted him, but he told Blum there was some risk of the plea agreement being withdrawn by the prosecution if he did not go forward with it.

Smartt stated he met with Blum again on January 6, 2015, to discuss the State's proposed plea deal. Smartt testified that they spoke about the evidence in the case and during that meeting, Blum was ready to plead. Blum entered a formal plea before the district court that same day.

During the plea...