State v. Christensen

• Decision Date: 02 May 1997
• Docket Number: 76051,Nos. 76050,s. 76050
• Citation: 937 P.2d 1239,23 Kan. App. 2d 910
• Parties: STATE of Kansas, Appellee, v. Cherri Q. CHRISTENSEN, Appellant.
• Court: Kansas Court of Appeals

Page 1239

937 P.2d 1239

23 Kan.App.2d 910

STATE of Kansas, Appellee, v.Cherri Q. CHRISTENSEN, Appellant.

Nos. 76050, 76051.

Court of Appeals of Kansas.

May 2, 1997.

Syllabus by the Court

1.To justify a motion to withdraw a plea prior to sentencing, the motion should allege that the defendant is not guilty of the offense charged and that the plea was made because of fraud, duress, mutual mistake, or lack of understanding of the charge and the effect of the plea.

2. K.S.A. 22-3210 requires that the district court address a defendant personally and determine that the guilty plea is being made voluntarily and with an understanding of the nature of the charge and the consequences of the plea.

3.A defendant who is taking prescription drugs, and who informs the court that he or she is not under the influence of any intoxicating drugs, is able to make a voluntary plea.

4. K.S.A. 21-4608(a) provides that when a defendant is sentenced for separate crimes on the same date, the court has discretion to run the sentences concurrently or consecutively, but must exercise that discretion on the record.A sentence imposed under the mistaken belief that consecutive sentences are mandatory must be vacated and remanded for resentencing.

5. K.S.A. 21-4603d(a) does not apply to a defendant who has committed a new felony while on bond in a prior felony case.

6.The "double rule" contained in K.S.A. 21-4720(b)(4), which provides that the total prison sentence in a multiple conviction case cannot exceed twice the base sentence, only limits the sentence for multiple convictions arising from a single complaint, information, or indictment.

7. K.S.A. 21-4720(b)(6) applies to sentencing in multiple conviction cases regardless of whether the crimes were charged in one document or several.

8.When a defendant is sentenced for multiple crimes and the sentence for the primary crime is a prison term, all consecutive sentences will be served in prison.

Steven R. Zinn, Deputy Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Phyllis K. Webster, Assistant County Attorney, and Carla J. Stovall, Attorney General, for appellee.

Before BRAZIL, C.J., MARQUARDT, J., and EDWARD E. BOUKER, District Judge, Assigned.

MARQUARDT, Judge:

Cherri Q. Christensen appeals from the denial of her motion to withdraw her guilty pleas and the sentences subsequently imposed on three drug convictions in two cases.

On October 10, 1995, Christensen pled guilty in case No. 94 CR 465 to possession of methamphetamines with intent to sell or distribute, a drug severity level 3 felony, and in case No. 95 CR 230 to possession of methamphetamines, a drug severity level 4 felony, and to possession of marijuana, a class A nonperson misdemeanor.

On December 4, 1995, Christensen filed a motion to withdraw her guilty pleas.Christensen alleged that at the time of the plea hearing, she was unaware that the district court was required to order the sentences to run consecutively.On December 6, 1995, the district court denied the motion and proceeded to sentencing.

At sentencing, the State made the following remarks:

"[THE STATE:] In 95 CR 230, the guidelines call for a presumption of probation, the recommendation if the Court follows that, is for community corrections.But, as a practical matter I don't know how the defendant could report to community corrections or comply with any terms of community corrections if she's incarcerated on the other case.And I believe the guidelines allow the Court, if one case has a presumption of prison and one doesn't, to impose prison on both of them and not be considered a departure, and so that would be our recommendation in that case."(Emphasis added.)

Christensen filed a motion for downward departure in both cases based on her medical problems and the drug-related nature of the crimes.The State informed the district court that the two felony sentences should be served consecutively.

The district court sentenced Christensen to 22 months in prison in 94 CR 465 and 15 months in prison for possession of methamphetamines in 95 CR 230, ordering that these sentences be served consecutively.The district court also sentenced Christensen to 12 months in jail for possession of marijuana and ordered that this sentence run concurrent with the felony crimes.

Plea Withdrawal

Christensen argues that the district court abused its discretion by denying her motion to withdraw her guilty pleas.

A district court's denial of a motion to withdraw a plea will be reversed only if the district court abused its discretion.SeeState v. Johnson, 258 Kan. 607, 610, 907 P.2d 140(1995).

Christensen moved to withdraw her pleas before sentences were imposed."To justify a motion to withdraw the plea prior to sentencing the motion should allege that defendant is not guilty of the offense charged and that the plea was made because of fraud, duress, mutual mistake, or lack of understanding of the charge and the effect of the plea."Johnson, 258 Kan. at 610-11, 907 P.2d 140.

In determining whether a defendant should be allowed to withdraw a plea, the district court should consider whether the defendant was represented throughout by competent counsel; whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and whether the plea was freely, fairly, and understandingly made.State v. Hill, 247 Kan. 377, 385, 799 P.2d 997(1990).

K.S.A. 22-3210(a)(3) requires the district court to address a defendant personally and determine that the guilty plea is being made voluntarily and with an understanding of the nature of the charge and the consequences of the plea.See generallyState v. Shaw, 259 Kan. 3, 10-11, 910 P.2d 809(1996).

Christensen argues that at the time of the plea, the district court did not adequately inquire about her mental state after she informed the court that she was taking prescription medications.Christensen also argues that the district court did not adequately ascertain that her guilty pleas were made voluntarily and with an understanding of the charges and the consequences.

At the plea hearing, the district court asked Christensen if she was presently under the influence of any intoxicating liquors or drugs, to which Christensen replied, "No, just prescription drugs."Christensen does not allege that any of the drugs she had been taking possessed intoxicating or mind-altering effects.The district court did not make any further inquiry into the effect of the prescription medications on Christensen.

Christensen cites U.S. v. Cole, 813 F.2d 43, 46(3d Cir.1987), as support for her position that her pleas were not voluntary.However, Cole is distinguishable in that Cole claimed that he had ingested a substantial amount of heroin and cocaine the night prior to and through the early morning hours of the day of his plea hearing.

Christensen also cites U.S. v. Rossillo, 853 F.2d 1062, 1065-67(2d Cir.1988), where the district court asked Rossillo if he was under the influence of any drug, alcohol, or other intoxicants.Rossillo did not personally answer the question or address the district court in any way.The federal court of appeals held that the failure to make an on-the-record determination whether Rossillo was under the influence of any medication and whether his plea was voluntarily and knowingly entered constituted reversible error.853 F.2d at 1067.

Christensen argues that because she had been taking prescription medications and had been suffering from severe emotional problems, she did not understand that her sentences might run consecutively.We hold that a defendant who is taking prescription drugs, and who informs the court that he or she is not under the influence of any intoxicating drugs, is able to make a voluntary plea.The district court asked Christensen if she understood that in 95 CR 230the court would order her sentence to run consecutive to her sentence for 94 CR 465, and Christensen responded, "Yes, sir."

The record indicates that Christensen was represented by counsel throughout the plea hearing, that she did not allege in her motion to withdraw her pleas that she was not guilty, and that she understood the district court would order her sentences to be served consecutively.The district court did not abuse its discretion in denying Christensen's motion to withdraw her pleas.SeeState v. Reed, 248 Kan. 506, 512-13, 809 P.2d 553(1991).

Mandatory Consecutive Sentencing

Christensen argues that the district court erred in concluding that consecutive sentencing was mandatory because Christensen had committed the offense in 95 CR 230 while she was on bond in 94 CR 465.Christensen also argues that the sentences are illegal because the districtcourt imposed sentence based on an erroneous view of the law.

The other issues raised by Christensen require this court to interpret the Kansas statutes governing sentencing in multiple conviction cases.Interpretation of a statute is a question of law subject to unlimited appellate review.Blomeyer v. State, 22 Kan.App.2d 382, 384, 915 P.2d 790, rev. denied260 Kan.(1996).

At both the plea hearing and sentencing, the State informed the district court that because Christensen was out on bond when she committed the second offense, the law required that the sentences run consecutively.The district court ordered the two felony sentences to be served consecutively without stating on the record that it was exercising its discretion in doing so.

In State v. LaGrange, 21 Kan.App.2d 477, 901 P.2d 44, rev. denied258 Kan. 861(1995), this court addressed a nearly identical situation.In LaGrange, the district court found that it was required by law to impose consecutive sentences because the defendant was on bond in the first case when he committed the offense in the second case.Following State v. Owens, 19 Kan.App.2d 773, 875 P.2d 1007(1994), the LaGrange court held that K.S.A. 21-4608(a)"provides...