State v. Cox
| Decision Date | 24 November 2021 |
| Docket Number | No. 123,587,123,587 |
| Citation | 498 P.3d 1249 (Table) |
| Parties | STATE of Kansas, Appellee, v. Stephen Wayne COX, Appellant. |
| Court | Kansas Court of Appeals |
Judd L. Herbster, of Herbster Law Firm, L.L.C., of Prairie Village, for appellant.
Megan Williams, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before Schroeder, P.J., Warner and Isherwood, JJ.
Stephen Wayne Cox pleaded guilty to aggravated battery and later moved to withdraw the plea, which the district court denied. Cox filed a motion to reconsider the denial, which the district court also denied. Prior to sentencing, Cox objected to the validity of certain municipal convictions contained within his criminal history and filed a motion asking the judge to recuse. Both motions were denied. Cox now appeals the denials of all these motions. Because Cox has failed to show that error occurred in the denial of the motions, the decisions of the district court are affirmed.
In May 2016, the State charged Cox with aggravated battery, aggravated assault, and criminal damage to property. He entered a not guilty plea and the court set the case for trial. On the morning of trial, Cox accepted the State's plea offer and pleaded guilty to aggravated battery.
Post-plea filings
Shortly before the scheduled sentencing hearing and at Cox's request, defense counsel withdrew as his attorney. Cox retained new counsel and moved to withdraw his guilty plea. He argued that his prior counsel pressured him into entering the plea. The State countered that Cox had simply changed his mind which did not rise to the level of good cause to withdraw his plea.
The district court conducted a hearing to determine whether to allow Cox to withdraw his plea. At the hearing, Cox's prior counsel testified that the State agreed to recommend that Cox serve 162 months in prison, and he planned to argue for both durational and dispositional departures. He further testified that he informed Cox it was possible he could persuade the judge to impose a departure sentence by arguing that "based upon the facts of the case, that [Cox] saw a guy with his significant other, and how emotions sometimes get the better of you" in those situations. Prior counsel acknowledged that the argument was a long shot, but he still thought there was at least a possibility of success. He also testified that he explained to Cox that they needed to convince the judge there were substantial and compelling reasons for a departure.
Cox's new counsel argued that prior counsel's explanations were insufficient. He asserted that Cox was "hopeful, based on conversations with defense counsel, that there would be a departure, but there was little or no conversation about how a departure would actually happen." His new counsel proposed that the court, upon acceptance of a guilty plea, should be required to inform defendants that they must show substantial and compelling reasons to obtain a downward departure. He also argued that since Cox was unaware of the improbability of receiving a downward departure, he had established good cause to allow withdrawal of his plea.
The court found that Cox's plea was knowingly and voluntarily given and denied his motion to withdraw.
Cox also challenged his criminal history score. He argued that his two misdemeanor convictions from 2014 should not be used to calculate his criminal history because the court in those cases neglected to advise him of his right to trial, the State's burden of proof at trial, his right not to testify, his right to confront witnesses, his right to use subpoena power, and the maximum penalty for the charges he faced.
The court held a hearing on the matter and Cox reiterated that the challenged convictions were infirm because at the plea hearing there was "no discussion of the charges, possible sentence, a factual basis, or anything else." Thus, since the pleas were improper, the State should be barred from including them in his criminal history report.
The court denied Cox's motion. In so doing, it found that Cox's counsel entered the 2014 pleas for him, which the statute permits. See K.S.A. 2020 Supp. 22-3210(a)(1). And since the convictions were never overturned on appeal, they were properly included as part of Cox's criminal history score.
Following the hearings on the plea withdrawal and criminal history score, Cox asserted that the presiding judge in the case should recuse himself. As support for his contention, Cox argued that his prior attorney's statements at the plea withdrawal hearing were "extremely prejudicial" to his request for a sentencing departure. And since the presiding judge reviewed the transcript from that hearing to analyze Cox's motion to reconsider the denial of his request to withdraw his plea, then the presiding judge could not be unbiased when weighing Cox's request for a departure at sentencing.
The judge denied the motion and asserted that he did not recall any prejudicial statements that Cox's prior counsel might have made. He also stated that even if he did remember the remarks, that would not provide sufficient grounds for recusal because they were likely invited error. Cox sought review from the chief judge in accordance with statutory directives. That judge also declined to find Cox's case presented adequate grounds for recusal.
Cox then timely filed this appeal to bring his issues before us to resolve.
In his first claim of error, Cox contends the district court abused its discretion when it denied his presentence motion to withdraw his guilty plea because, at the time he entered his plea, he was "unaware of trial counsel's actual dim view of the merits and likelihood of a departure sentence."
K.S.A. 2020 Supp. 22-3210(d)(1) gives district courts discretion to allow defendants to withdraw guilty pleas before sentencing when good cause exists to do so. Kansas appellate courts review these decisions for an abuse of discretion. State v. Edwards , 309 Kan. 830, 836, 440 P.3d 557 (2019). In determining whether good cause exists, courts consider three 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. State v. Edgar , 281 Kan. 30, 36, 127 P.3d 986 (2006). Guilty pleas must be knowingly and voluntarily made. See Brady v. United States , 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). But mistaken subjective impressions of the plea deal, without substantial objective proof showing that they were reasonably justified, do not provide sufficient grounds on which to vacate a guilty plea. State v. Harned , 281 Kan. 1023, 1043, 135 P.3d 1169 (2006).
In State v. Johnson , 307 Kan. 436, 410 P.3d 913 (2018), the Kansas Supreme Court dealt with an argument like what Cox presents to us. In that case, Johnson argued his attorney coerced him into entering a plea by telling him the State would not oppose probation as part of the deal. But the court pointed to the transcript of the plea hearing, where the prosecutor told the district court he would, in fact, oppose probation at sentencing. The district court then asked the defendant and his attorney if they agreed with the prosecutor's rendition of the plea deal, and they both affirmed. The Supreme Court held that this exchange highlighted that Johnson had a chance to clarify his understanding of the plea agreement prior to entering the plea and he opted not to do so. 307 Kan. at 446.
Here, the district court also turned to the plea hearing transcript for guidance in arriving at its decision. In the eyes of the judge, that transcript established that Cox was clearly advised that the sentencing court was not bound by the sentencing recommendations in the plea agreement and Cox stated that he understood that reality. If Cox truly believed that a downward departure was guaranteed, he could have either questioned the court at that point or asked to speak with his attorney. Instead, he acknowledged that he understood the district court's power to reject counsel's arguments for a departure and moved forward with his guilty plea. While Cox may have held a subjective belief that his counsel's arguments would prevail, there is no escaping the fact that the district court properly advised him that it had the discretion to reject those arguments. See Harned , 281 Kan. at 1043 (). The record before us reflects that Cox voluntarily entered his plea with a full understanding of its possible consequences. The district court properly exercised its discretion when it found there was not good cause to allow Cox to withdraw his plea. The decision of the district court is affirmed.
Cox's second argument consists of a claim that his two 2014 misdemeanor convictions should be excluded from his criminal history worksheet. In support of his claim, he contends that the court in those cases violated K.S.A. 22-3210, which outlines the mandatory framework courts should follow during plea hearings. The State counters that Cox is procedurally barred from raising the issue.
The State contends that the holdings in Custis v. United States , 511 U.S. 485, 114 S. Ct. 1732, 128 L. Ed. 2d 517 (1994), and State v. Delacruz , 258 Kan. 129, 899 P.2d 1042 (1995), direct the resolution of this issue. We agree. In Custis , the defendant argued that the district court should not have used two of his prior convictions to enhance his sentence because his counsel in those cases rendered deficient representation. Custis relied on Burgett v. Texas , 389...
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