State v. Frazier

• Decision Date: 17 April 2020
• Docket Number: No. 117,456,117,456
• Citation: 461 P.3d 43
• Parties: STATE of Kansas, Appellee, v. Reginald FRAZIER, Appellant.
• Court: Kansas Supreme Court

461 P.3d 43

STATE of Kansas, Appellee,

v.Reginald FRAZIER, Appellant.

No. 117,456

Supreme Court of Kansas.

Opinion filed April 17, 2020.

Clayton J. Perkins, of Kansas Capital Appellate Defender Office, argued the cause and was on the brief for appellant.

Jason B. Oxford, assistant county attorney, argued the cause, and Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

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

Reginald Frazier appeals the denial of his motion to withdraw plea of no contest to one count of possession of heroin with intent to distribute. The district court found the plea was fairly made and Frazier fully understood the consequences of his plea; thus there was no good cause for Frazier to withdraw his plea. A Court of Appeals panel affirmed the district court after it likewise found that there was no good cause for Frazier to withdraw his plea and consequently no abuse of discretion on the part of the district court.

Before us, Frazier again argues that the district court abused its discretion because there were misleading or false statements contained in the plea agreement and he demonstrated good cause to withdraw his plea.

For reasons more fully set out below, we reverse the judgment of the district court and the decision of the Court of Appeals and remand to the district court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2015 an officer with the Geary County Sheriff's Department stopped a car on I-70 for a license tag violation. Tracy Lee Gould was driving the car. Frazier was a passenger in the car and did not own the car. The two explained that they were on their way from Las Vegas to Ohio, but they gave differing versions of what they had done in Las Vegas. A canine unit arrived at the scene, and the dog alerted to the odor of drugs. A search of the car revealed two bundles of heroin weighing approximately 2.5 pounds, a pistol under the passenger-side floorboard, and $2,300 in cash in Gould's purse and $10,000 in cash on Frazier's person.

After the stop and search in Kansas, Ohio law enforcement searched Gould's house in Ohio and found significant quantities of drugs and money as well as personal items belonging to Frazier. Frazier denied living at that house.

The State of Kansas charged Frazier in this case with one count of possession of heroin with intent to distribute, one count of a drug tax stamp violation, one count of conspiracy with Gould to possess heroin with intent to distribute, one count of criminal transportation of drug proceeds, one count of possession of drug paraphernalia, and one count of criminal possession of a firearm.

Frazier eventually signed a plea agreement in which he stated he would enter a plea of no contest to one count of possession of heroin with intent to distribute. The State agreed that Frazier would have a criminal history score of E and would seek a downward durational departure to 96 months.

Significantly, the agreement also stated:

"Pursuant to this plea agreement the authorities in Ohio further agree to dismiss and/or not to file any charges resulting out of the search warrant that was obtained as a result of this arrest."

Gould, Frazier's codefendant, also entered into a plea agreement that contained a promise she would not be prosecuted in Ohio. Ohio authorities signed Gould's agreement. They did not sign Frazier's.

The district court filed a journal entry approving Frazier's plea agreement and accepting his nolo contendere plea.

Frazier later filed a pro se motion to withdraw his plea, which is not contained in the record on appeal. His appointed counsel filed a brief in support of the motion, and the district court deemed the brief to serve as a motion. The court conducted an evidentiary hearing relating to the motion.

Lora Ingels had been Frazier's court-appointed attorney through the plea hearing. In her testimony on Frazier's motion to withdraw plea, Ingels said she talked with the Kansas prosecutor. According to him, the Ohio authorities were satisfied that if Frazier served eight years in Kansas, they would not file charges against him in Ohio. Ingels did not speak directly to Ohio authorities, and the plea agreement is signed only by the Kansas prosecutor, Frazier, and Ingels.

To date, Ohio has not filed charges against Frazier.

Frazier testified that Ingels advised him he must take the plea deal if he wanted to avoid federal prosecution in Ohio. (The plea agreement itself is ambiguous as to whether it covers both state and federal prosecution in Ohio.)

The district court denied Frazier's motion, finding that he fully understood the plea agreement and that Ingels told him she did not speak directly with Ohio authorities. The court sentenced him to a downward-departure term of 96 months. Frazier took a timely appeal to the Court of Appeals. In a divided decision, the Court of Appeals affirmed the district court, with Judge Leben concurring. State v. Frazier , No. 117,456, 2018 WL 2375260 (Kan. App. 2018) (unpublished opinion). This court granted Frazier's petition for review.

DISCUSSION

Before sentencing, Frazier moved for leave to withdraw his plea of no contest based on misleading or false statements contained in the plea agreement. He contends on appeal that the district court abused its discretion when it denied his motion.

Standard of Review

When a defendant moves to withdraw a plea before sentencing and the district court denies the motion, the defendant must establish on appeal that the trial court abused its discretion in denying a presentence motion to withdraw plea. State v. DeAnda , 307 Kan. 500, 503, 411 P.3d 330 (2018) ; State v. Schaal , 305 Kan. 445, 449, 383 P.3d 1284 (2016) (court abused its discretion in basing its denial on factual findings unsupported by the record). A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Ingham , 308 Kan. 1466, 1469, 430 P.3d 931 (2018).

Analysis

A defendant may withdraw a plea for "good cause shown" prior to sentencing. K.S.A. 2019 Supp. 22-3210(d)(1). This is the hurdle that Frazier is required to meet. When determining whether a defendant has demonstrated good cause, a district court should consider at least three factors: (1) was the defendant represented by competent counsel; (2) was the defendant misled, coerced, mistreated, or unfairly taken advantage of; and (3) was the plea fairly and understandingly made? State v. Aguilar , 290 Kan. 506, 511, 231 P.3d 563 (2010) ; State v. Edgar , 281 Kan. 30, 36, 127 P.3d 986 (2006). However, it is important to note that courts "should not ignore other [non- Edgar ] factors impacting a plea withdrawal that might exist in a particular case." State v. Schaefer , 305 Kan. 581, Syl. ¶ 2, 588, 385 P.3d 918 (2016).

In denying Frazier's motion to withdraw his plea, the district court explained:

"The Court believes that Mr. Frazier had a sufficient awareness of the relevant circumstances and likely consequences of what this Plea Agreement would be. If nothing else, because the Plea Agreement spells it out. But also because of the questioning that the Court would have done with Mr. Frazier that day. And also because it doesn't seem that Mr. Frazier has been unfairly surprised by any of [the] events that have occurred since exercising the Plea Agreement.

"You know, I guess we could think—sit here and hypothesize what some of those things might be in other worlds, but right now what Mr. Frazier is concerned about, is that Ohio is going to prosecute him down the road. And there's nothing to indicate that that's going to happen. We've got a Plea Agreement that says it's not going to happen. And that's sufficient—that concern is not sufficient for the Court to—to allow Mr. Frazier to back out of this Plea Agreement. ...

"So I'm going to deny the defendant's motion; will proceed to sentencing." (Emphasis added.)

The Court of Appeals panel applied the three factors set out above and affirmed. In particular, the Court of Appeals emphasized that Frazier's plea was made knowingly: he was aware that his attorney had not spoken with Ohio authorities and they had not signed off on his plea agreement. Frazier , 2018 WL 2375260, at *3. The Court of Appeals concluded that Frazier was not misled or coerced about the possibility of being charged in Ohio. 2018 WL 2375260, at *3.

But there is a fundamental problem with the plea agreement that neither the majority nor the concurrence addresses, and it is critical. As the Court of Appeals noted, "The State of Ohio was not a party to the plea agreement and did not sign it." 2018 WL 2375260, at *3. Frazier entered into the agreement with the understanding that he would not face charges in Ohio, but he was relying on a promise of conduct that was not made by a party to the agreement.

Plea bargaining agreements are akin to civil contracts and, subject to due process concerns, may be analyzed in a similar fashion. This court has explained:

" ‘[A] plea agreement is generally subject to contract principles’ and, accordingly, the ‘application of fundamental contract principles is

...