State v. Carr, 083019 KSCA, 119, 801

Docket Nº:119, 801
Opinion Judge:PER CURIAM.
Party Name:State of Kansas, Appellee, v. Victor W. Carr, Appellant.
Attorney:Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Judge Panel:Before Standridge, P.J., Pierron and Atcheson, JJ.
Case Date:August 30, 2019
Court:Court of Appeals of Kansas
 
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State of Kansas, Appellee,

v.

Victor W. Carr, Appellant.

No. 119, 801

Court of Appeals of Kansas

August 30, 2019

NOT DESIGNATED FOR PUBLICATION

Appeal from Sedgwick District Court; John J. Kisner Jr., judge.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Standridge, P.J., Pierron and Atcheson, JJ.

MEMORANDUM OPINION

PER CURIAM.

Victor Carr appeals the district court's denial of his presentencing motion to withdraw his guilty plea to aggravated battery. Carr contends the district court abused its discretion by failing to question his competency when deciding whether he had shown good cause that his plea was not voluntarily made. Carr asks us to remand the case to the district court to determine his ability to understand the nature of the charges and consequences of his plea. However, because the district court did not abuse its discretion by failing to order a sua sponte competency evaluation and by basing its decision on substantial competent evidence, we affirm the court's decision to deny Carr's motion to withdraw his plea.

FACTS

Carr was charged with aggravated battery on July 2, 2016. On December 12, 2016, he entered a no contest plea to the charge. Carr signed an acknowledgment of the rights he was waving and signed a plea agreement. At the time of the plea, Carr was in custody and told the district court he had not used any substance that would affect his ability to understand his rights. During the hearing, the court completed a plea colloquy, in which Carr stated that he understood the rights he was waiving and the nature of his charge.

Because Carr failed to appear at his sentencing hearing on March 30, 2017, the district court ordered an alias warrant.

A year later, after being arrested on the warrant, Carr filed a pro se motion to withdraw his plea. His new defense counsel adopted the motion, and the district court held a hearing on the matter. The court considered the transcript from the plea hearing, along with testimony by Carr and his previous defense counsel, Josh Wright.

Carr testified he did not recall entering his plea. He only remembered coming to court, talking to his lawyer in the street, and hearing his lawyer say his case was being continued and he would be in contact with him. Carr waited for his lawyer to contact him, but he never did. Carr also testified that while a man in his jail pod helped him write his motion to withdraw his plea, he knew enough to file a motion to withdraw his plea. Lastly, Carr testified he has memory issues and was taking medicine for mood swings and depression. In his pro se motion to withdraw his plea, Carr noted that his medications had affected his better judgment when he agreed to the plea.

Wright testified he had represented Carr when he entered the plea. He had visited with him seven or eight times before the plea. Wright also interviewed potential witnesses, concluding they would not help Carr's case. Wright had no concerns that Carr would not understand his rights at a plea hearing or...

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