State v. Ford, 75143

• Decision Date: 20 December 1996
• Docket Number: No. 75143,75143
• Citation: 23 Kan.App.2d 248,930 P.2d 1089
• Parties: STATE of Kansas, Appellee, v. Darryl S. FORD, Appellant.
• Court: Kansas Court of Appeals

Page 1089

930 P.2d 1089

23 Kan.App.2d 248

STATE of Kansas, Appellee, v. Darryl S. FORD, Appellant.

No. 75143.

Court of Appeals of Kansas.

Dec. 20, 1996.

Review Denied March 18, 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. In determining whether a defendant should be allowed to withdraw his or her plea, the trial court should consider whether the defendant was represented throughout the proceedings by competent counsel; whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and whether the defendant's plea was freely, fairly, and understandingly made.

3. The Kansas Sentencing Guidelines Act provides that any prior convictions discovered after a plea has been accepted shall be counted in a defendant's criminal history.

4. When accepting a plea of guilty in a felony case, the district court must inform the defendant of the consequences of the plea, including the specific sentencing guidelines level of the crime and the maximum penalty that may be imposed upon acceptance of the plea.

5. When accepting a plea of guilty, the district court must address the defendant personally and determine that the plea is being made voluntarily with an understanding of the nature of the charge and the consequences of the plea.

6. If a plea is induced by promises or threats that deprive it of its voluntary character, it is void, and the conviction is open to collateral attack.

7. The fact that the evidence does not support the charge to which a defendant pled guilty does not require that the plea be later vacated if, upon review of the entire record, it can be determined that the plea was knowingly and voluntarily made.

Hazel Haupt, Assistant Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Delia M. York, Assistant District Attorney, Nick A. Tomasic, District Attorney, and Carla J. Stovall, Attorney General, for appellee.

Before RULON, P.J., MARQUARDT, J., and C. FRED LORENTZ, District Judge, Assigned.

MARQUARDT, Judge:

Darryl S. Ford appeals from the district court's denial of his motion to withdraw his guilty plea to one count of attempted robbery and two counts of theft.

The State charged Ford with one count of robbery, two counts of theft of property of a value of less than $500, and one count of forgery. Pursuant to a plea agreement, the State filed an amended information, charging Ford with one count of attempted robbery and two counts of theft of property of a value of less than $500.

At the plea hearing, the district court read the amended information to Ford and made sure that Ford understood the constitutional rights he would give up by entering a guilty plea.

"THE COURT: You heard what they've talked about in regards to what they dismissed and what they believe your sentence may or may not be. I need to make sure you understand this, that even though there's that plea agreement between the State and your attorney, a court--the court's not bound by that agreement. It could still do what it thought was right regarding your case. Do you understand that?

"THE DEFENDANT: Yes, sir.

"THE COURT: Knowing that, do you still want to plead guilty?

"THE DEFENDANT: Yes, sir."

The district court then informed Ford of the maximum sentence that he could receive on each count. As to the attempted robbery charge, the following exchange took place:

"THE COURT: ... [T]his is a severity level seven crime. The way the Court sentences defendants now depends on the severity level of the crime they're convicted of, for you, severity level seven, and your criminal history. I don't know if you have one or not. But there would be a presentence investigation report done on you and it would show what your criminal history was. If you had no record, then you'd be sentenced under criminal history I, and there's the possibility you could be sentenced anywhere from eleven to thirteen months, and in that box [there is] also a presumption for probation. Now, if you go all the way across that line to criminal history A which means you have three or more person felonies in your criminal history, then there is a possibility you could be sentenced anywhere from thirty, thirty-two, or thirty-four months, and that box is imprisonment. And knowing that's the possible range that you might receive, are you still pleading guilty to this--these crimes?

"THE DEFENDANT: Yes, sir."

The presentence investigation (PSI) report indicated that Ford had two previous person felonies and that his criminal history score was a B. Ford's criminal history score removed him from the presumptive probation block of the sentencing guidelines grid. See K.S.A. 21-4704. After receiving the PSI report, Ford moved for a continuance of his scheduled sentencing and challenged his criminal history. Ford subsequently filed a motion to withdraw his plea.

At the hearing on Ford's motion to withdraw his plea, the State and defense counsel both indicated that the "NCIC read-out" which was in the State's file at the time of the plea negotiations indicated that Ford had only one person felony. Ford argued at the sentencing hearing that he had pled guilty because he believed that he had a chance of getting probation.

During the hearing to accept his plea, the district court had asked Ford, "Has anyone promised you, guaranteed you probation in regards to this plea?" Ford responded, "No, sir."

Ford admitted that he knew of his prior convictions but stated that he did not understand whether these were considered to be person or nonperson felonies. Defense counsel argued that it was fundamentally unfair to shift the burden to Ford to determine whether his criminal history contained person or nonperson felonies prior to pleading guilty.

The district court denied Ford's motion to withdraw his plea. It then sentenced him to 29 months in prison on the attempted robbery charge and 12 months in county jail on each of the theft charges, with the three sentences to run concurrently.

Ford argues that the district court abused its discretion in refusing to allow him to withdraw his guilty plea because the State and defense counsel believed that his criminal history contained only one person felony at the time of his plea when it actually contained two.

A district court's denial of a motion to withdraw a plea will be reversed only if the district court abused its discretion. See State v. Johnson, 258 Kan. 607, 610, 907 P.2d 140 (1995). If reasonable persons could disagree as to the propriety of the decision of the district court, then the district court did not abuse its discretion. Johnson, 258 Kan. at 611, 907 P.2d 140.

K.S.A. 22-3210(d) provides:

"A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea."

Ford moved to withdraw his plea before sentence was 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 his plea, the trial court should consider whether the defendant was represented throughout by competent counsel; whether he was misled, coerced, mistreated, or unfairly taken advantage of; and whether his plea was freely, fairly, and understandingly made." State v. Hill, 247 Kan. 377, 385, 799 P.2d 997 (1990).

K.S.A. 21-4707(c)(4) addresses the discovery of prior convictions subsequent to the acceptance of a guilty plea:

"The offense severity level of a crime for which the court has accepted a plea of guilty or nolo contendere pursuant to K.S.A. 22-3210 and amendments thereto, or of a crime of which the defendant has been convicted shall not be elevated or enhanced for sentencing purposes as a result of the discovery of prior convictions or any other basis for such enhancement subsequent to the acceptance of the plea or conviction. Any such prior convictions discovered after the plea has been accepted by the court shall be counted in the determination of the criminal history of the offender." (Emphasis added.)

Thus, the Kansas Sentencing Guidelines Act provides that any prior convictions discovered after a plea has been accepted shall be counted in a defendant's criminal history. It should be noted that Ford never alleged that he was not guilty. However, the question remains as to whether Ford's plea should be deemed involuntary because he relied on the criminal history information that was provided by the State.

When accepting a plea of guilty in a felony case, the district court must inform the defendant of the consequences of the plea including the specific sentencing guidelines level of the crime and the maximum penalty that may be imposed upon acceptance of the plea. State v. Reed, 248 Kan. 506, 508, 809 P.2d 553 (1991). The district court must also address the defendant personally and determine that the plea is being made voluntarily with understanding of the nature of the charge and the consequences of the plea. K.S.A. 22-3210(a)(3). These federal constitutional protections apply to the states through the Due Process Clause. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969); State v. Shaw, 259 Kan. 3, 10, 910 P.2d 809 (1996); Reed, 248 Kan. at 508, 809 P.2d 553. If a plea is induced by promises or threats that deprive it of its...