State v. Bricker

• Decision Date: 03 June 2011
• Docket Number: No. 99,394.,99,394.
• Citation: 252 P.3d 118,292 Kan. 239
• Parties: STATE of Kansas, Appellee,v.Corinthian Isiah BRICKER, Appellant.
• Court: Kansas Supreme Court

292 Kan. 239

252 P.3d 118

STATE of Kansas, Appellee,

v.Corinthian Isiah BRICKER, Appellant.

No. 99,394.

Supreme Court of Kansas.

June 3, 2011.

[252 P.3d 119 , 292 Kan. 239]

Syllabus by the Court

1. To correct manifest injustice, after sentencing the district court may set aside a judgment of conviction and permit the defendant to withdraw a plea.

2. A district court's decision to deny a postsentence motion to withdraw a plea is reviewed under an abuse of discretion standard. The moving party bears the burden to prove the court abused its discretion.

3. A number of considerations comprise the abuse of discretion standard, including review to determine that the discretion was not guided by erroneous legal conclusions.

4. In determining whether the defendant has shown manifest injustice to permit a postsentence plea withdrawal, the district court should consider the following factors: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. While these factors are viable benchmarks for judicial discretion, they should not be mechanically applied and should not be relied on to the exclusion of other factors.

5. A postsentence motion to withdraw plea under K.S.A. 22–3210(d) that alleges ineffective assistance of counsel due to deficient performance must meet the constitutional standards articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984), to demonstrate manifest injustice. The defendant must show that counsel's performance fell below the standard of reasonableness and that there was a reasonable probability that, but for counsel's errors, the defendant would not have entered the plea and would have insisted on going to trial.

6. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.

7. Under the circumstances of this case, defense counsel's failure to familiarize himself with the factual admission criteria of the Labette Correctional Conservation Camp and to advise defendant of those facts before defendant's plea bargain was not sufficient to meet the performance prong of the test for ineffective assistance of counsel expressed in Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052.

8. Under the circumstances of this case, defense counsel's failure to advise defendant that he could file a presentence motion to withdraw his plea was insufficient grounds to warrant postsentence withdrawal of the plea.

Joanna Labastida, of Kansas Appellate Defender Office, argued the cause, and Lydia Krebs, of the same office, was on the brief for appellant.Steven J. Obermeier, assistant district attorney, argued the cause, and Sara Pfeiffer, legal intern, Phill Kline, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

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

Corinthian Bricker pled no contest to one count each of aggravated battery (a severity level 5 person felony), driving under the influence (a class B misdemeanor), and failure to present proof of insurance (a class B misdemeanor). Contrary to the plea bargain agreement that recommended sentencing to “Labette Bootcamp Probation,” the district court sentenced Bricker to 36 months in prison on the felony charge and 180 days in jail on each of the misdemeanor charges, with all sentences to run concurrently.

After sentencing, Bricker filed a motion to withdraw plea alleging his counsel was ineffective for failing to learn before the plea that Bricker was actually ineligible for Labette. The district court denied the motion, and the Court of Appeals affirmed. We granted Bricker's petition for review under K.S.A. 20–3018(b) and now affirm.

Facts

In the early morning hours of June 21, 2005, Bricker was driving his Ford Ranger between 58 and 62 mph in a 35–mph zone when he broadsided Andrea Cunningham's Ford Explorer at an intersection in Lenexa. While Bricker was in the hospital, blood and urine samples were drawn. His blood alcohol level measured .22, and his urine indicated the presence of cocaine, marijuana, and barbiturates.

The State secured a search warrant for Bricker's truck and discovered a crack pipe. Police would later learn that Bricker was driving without any insurance. The State eventually charged Bricker with: (1) aggravated battery in violation of K.S.A. 21–3414(a)(2)(A) because of Cunningham's serious injuries; (2) driving under the influence in violation of K.S.A. 8–1567; and (3) operating a motor vehicle without insurance in violation of K.S.A. 40–3104(d), (g).

Bricker's counsel was Mark Furney. The Friday before his bench trial scheduled for the following Monday, March 6, Bricker entered into a written plea agreement with the State. Under its terms, Bricker agreed to plead no contest to all three charges and to pay a $500 fine on the DUI charge. He also agreed to pay restitution for Cunningham's vehicle and any of her medical bills not covered by “any available insurance.” In return, the State agreed to join in a recommendation for “Labette Bootcamp Probation,” i.e., placement at Labette Correctional Conservation Camp (LCCC). In the alternative, the State agreed to recommend (1) the middle sentence in the applicable grid box for the felony, (2) 90 days in jail plus a $500 fine on the misdemeanor DUI; and (3) that all sentences run concurrent. The plea agreement appears to be silent on the specifics of the disposition of the misdemeanor insurance charge.

The March 6 bench trial was replaced by a hearing for the court to consider Bricker's plea. There, the judge advised Bricker that the parties' joint recommendation for LCCC was not binding on the court:

“[Court]: I have your plea agreement, Mr. Bricker. I want you to understand the court is not obligated or required to follow the recommendations in the plea agreement. They are simply recommendations to the court. You understand that?

“[Bricker]: Yes, I do, sir.

....

“[Court]: ... I know there is a recommendation to screen your case for possible placement at Labette. You understand the court does not have to place you at Labette? You understand that?

“[Bricker]: Yes, sir.”

Bricker was further advised of the maximum sentences for all of his charges, and the court ultimately accepted his no contest plea.

On March 10, the court ordered Bricker screened for LCCC admission. Bricker would later learn that he was ineligible for admission because he was taking two different antidepressants. After receiving word of Bricker's ineligibility, Furney filed a motion for interpretation of plea the day before sentencing.

At sentencing on May 5, Furney argued that even though Bricker was ineligible for LCCC, the spirit of the plea bargain required treatment and probation. One plea agreement condition included “follow ADSAP [Alcohol and Drug Safety Action Program] recommendations,” and next to the form's caption “Agreed Disposition,” a handwritten checkmark appeared on the “Probation” line.

The State continued to formally recommend LCCC even though it was not an option. The State further contended that the form's Probation line was checked only because it was required for LCCC to be an option. Cunningham and her family testified that they supported LCCC and treatment but opposed probation.

The court then sentenced Bricker to the middle grid box sentence of 36 months' imprisonment on the felony charge of aggravated battery. It also sentenced him to 180 days in jail on each of the misdemeanor charges, with a $500 fine for the DUI charge, with all sentences to run concurrently.

On October 16, 2006, Bricker changed to counsel Jessica Travis, who filed a motion to withdraw his plea. The motion alleged Furney was ineffective because Furney (1) failed to determine whether Bricker would be eligible for LCCC; and (2) failed to negotiate an “alternative resolution should Mr. Bricker be rejected” by LCCC.

At the hearing on his motion, Bricker presented testimony of criminal defense attorney Jason Billam, who stated his policy was to discuss LCCC eligibility with clients before accepting a plea bargain. Bricker also presented an affidavit from Furney, where Furney conceded that he “did not advise [Bricker] that because he was on certain medications, he in fact would not be accepted into [LCCC].”

According to Bricker's testimony, Furney never discussed with him “things that might disqualify” him from LCCC placement. Bricker testified Furney approached him the day before sentencing and stated that “he [Furney] screwed up and I wasn't able to get into boot camp, and Judge Davis was going to sentence me to prison the following day.” Bricker testified that he also was never advised by counsel about the possibility of plea withdrawal until after sentencing or that the standard permitting withdrawal would then be higher.

Bricker admitted he understood from his earlier plea acceptance hearing that the judge was not required to sentence him to LCCC. He believed, however, there was a chance he would be sentenced to LCCC. He also admitted that although he had not been sentenced to LCCC, if the judge had instead “granted [him] probation ... or let [him] go to some sort of drug and alcohol treatment program,” he would not be attempting to withdraw his plea.

The district court denied Bricker's motion, concluding there was no manifest injustice as required under the plea withdrawal statute. The judge stated:

“So the question here is did Mr. Furney violate some standard of care such that it changed everything in your mind. And I listened to your testimony. I heard the fact that had you gotten a less restrictive probation, you wouldn't be here asking to have your plea withdrawn. You didn't get what you wanted. Not everybody at sentencing gets what they...