State v. Garcia

Decision Date17 August 2012
Docket NumberNo. 102,140.,102,140.
Citation283 P.3d 165
PartiesSTATE of Kansas, Appellee, v. Juan GARCIA, Appellant.
CourtKansas Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court

1. At any time before sentencing, a district court may, within its discretion, permit a defendant to withdraw a plea of guilty or nolo contendere upon the defendant's showing of good cause.

2. To determine whether a defendant has shown good cause to permit a plea withdrawal, the district court should consider the following 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. While these factors are viable benchmarks for judicial discretion, they should not be mechanically applied and should not be relied on to the exclusion of other factors.

3. In reviewing a presentence denial of a motion to withdraw plea, an appellate court employs an abuse of discretion standard of review. The defendant bears the burden of establishing the abuse of discretion. One way for a district court to abuse its discretion is to base its decision on an error of law.

4. When a defendant has pleaded nolo contendere pursuant to an agreement based upon a mutual mistake about the defendant's criminal history score, the district court may consider the circumstances giving rise to the mutual mistake in evaluating whether there is good cause to permit plea withdrawal.

5. Under the facts of this case, the district court's decision to deny the defendant's motion to withdraw plea may have been guided by an erroneous legal conclusion. Accordingly, the case is reversed and remanded to ensure that the district court applies the appropriate legal standard to determine whether defendant made the good cause showing required under K.S.A. 22–3210(b).

Meryl Carver–Allmond, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Eric L. Witcher, county attorney, argued the cause, and Steve Six, attorney general, was with him on the brief for appellee.

PER CURIAM:

Juan Garcia appeals the district court's denial of his motion to withdraw his nolo contendere plea before sentencing. The majority of the Court of Appeals panel affirmed the denial. Garcia's primary contention is that the district court may have relied upon State v. Ford, 23 Kan.App.2d 248, 930 P.2d 1089 (1996), whose insistence on an allegation of innocence in a presentencing plea withdrawal motion has been rejected by this court.

Garcia's second argument—that his prior convictions were used improperly to increase his sentence because they were not proved to a jury beyond a reasonable doubt—has no merit and will not be further discussed. See State v. Bennington, 293 Kan. 503, Syl. ¶ 9, 264 P.3d 440 (2011); State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009); State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002).

Because it is unclear whether the district judge relied upon that part of Ford that has been disapproved, we reverse and remand for a new hearing to consider Garcia's motion under the appropriate legal standard.

Factual and Procedural Background

The chronological order of events in this case and filing of decisions from our court is critical to an understanding of our ultimate holding. We therefore recite this order in some detail.

On June 18, 2008, Juan Garcia was charged with attempted second-degree murder and intentional aggravated battery. Clinton Peterson was appointed to represent Garcia and negotiated a plea bargain with the State. Under the plea agreement, the State agreed to reduce the aggravated battery charge from a severity level 4 felony to a severity level 5 felony. It also agreed to dismiss the second-degree murder charge and the charges pending in another criminal case. At a later arraignment hearing, Garcia pleaded nolo contendere to reckless aggravated battery, and the district court dismissed the other charges.

At that hearing, the district court advised Garcia of the potential minimum and maximum sentences on the reckless aggravated battery and further advised that Garcia's actual sentence length would depend on his criminal history:

“THE COURT: ... Mr. Garcia, without knowing your prior criminal history with the aggravated charge being a level five person felony, if you are convicted, you can be sentenced from 31 months to 136 months in the custody of the Secretary of Corrections and fined up to $300,000 depending upon your financial condition. Do you understand?

“THE DEFENDANT: Yes sir.”

The court also informed Garcia that it was not bound by any agreement between the State and his attorney:

“THE COURT: Now, you've heard the announcement of the plea negotiations?

“THE DEFENDANT: Yes.

“THE COURT: Has anyone promised if you enter a plea here today that you will get probation?

“THE DEFENDANT: No.

....

“THE COURT: You understand at the time of sentencing, the Court's not bound by any agreement between your attorney and the County Attorney as to what your sentence should be?

“THE DEFENDANT: Yes.

“THE COURT: You understand the Court's left to its discretion to sentence in compliance with the Kansas Sentencing Guidelines?

“THE DEFENDANT: Yes.”

After Garcia's plea was accepted and he was found guilty, a Presentence Investigation Report (PSI) was prepared. It showed Garcia's criminal history score was B. Garcia had expected his criminal history score to be C, apparently believing that only his prior adult criminal convictions would count toward his score, i.e., he was unaware that a prior juvenile adjudication from 13 years before would be treated as a person felony. The score of B more than doubled his presumptive sentence range from 53 to 60 months to 114 to 128 months.

Garcia obtained new counsel and filed a motion to withdraw plea on November 8, 2008, arguing that holding him to his plea would be manifest injustice.

On December 12, 2008, this court filed its decision in State v. Schow, 287 Kan. 529, Syl. ¶ 3, 197 P.3d 825 (2008), which held that [w]here a defendant has pled guilty pursuant to a plea agreement which was based upon a mutual mistake as to defendant's criminal history score, the district court may consider the circumstances giving rise to the mutual mistake to the extent they may implicate the factors applicable to the existence of good cause to withdraw a plea.” Schow also observed that this court's earlier decision in State v. Vasquez, 272 Kan. 692, 696, 36 P.3d 246 (2001), had rejected the proposition that a presentencing motion to withdraw must allege innocence. 287 Kan. at 541, 197 P.3d 825. The Court of Appeals decision in Ford had been among the Kansas cases stating that a presentencing motion should be justified by an allegation ‘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.’ Ford, 23 Kan.App.2d at 251, 930 P.2d 1089 (quoting State v. Johnson, 258 Kan. 607, 610–11, 907 P.2d 140 [1995] ).

Garcia filed an amended motion on December 31, 2008, to correct his invocation of a manifest injustice standard applicable to postsentencing plea withdrawal to the lesser good cause standard applicable to presentencing plea withdrawal. Garcia relied on the fact that his criminal history score was higher than he expected.

Garcia's amended motion stated that he had informed attorney Peterson that his “criminal history score was a level C, consisting of one person felony conviction and one nonperson/drug felony conviction.” The motion implies that Garcia did not inform Peterson that he had a prior juvenile adjudication: “The Defendant was under the impression that the Court was only going to look at the criminal convictions, thus leading him to believe he had only one person felony conviction and one nonperson/drug felony conviction.... The Defendant spoke with counsel about his criminal history, stating that he had two felony convictions.”

Garcia further stated that the

“focus of plea negotiations was for the duration of the prison sentence and not amending the crime or the nature of the crime.... By agreeing to the level 5 felony, the Defendant had bargained to be placed in a sentencing box with a range of [53 to 60] months.... The sole purpose of this plea was to control the box in which the Defendant fell for the purpose of sentencing .... [I]t cannot be stated nor proven that the Defendant understood the plea that was made, especially given the nature of plea negotiations and the attempt to control where on the sentencing guidelines the Defendant would be placed as a result of the plea.”

The motion urged the district court to conclude that the plea had not been understandingly or fairly entered and that the absence of any discussion of juvenile adjudications in the time during which the plea was negotiated and accepted meant the defendant had been misled. Refusal to grant the plea withdrawal would violate Garcia's constitutional rights.

Garcia's amended motion did not cite to the new Schow decision or to the 2001 Vasquez decision.

The State also did not cite to Schow or Vasquez. It disputed Garcia's allegation that the parties agreed upon a sentence between 53 and 57 months. In its response motion it stated: “No mention of the Defendant's criminal history was made during the plea negotiations other than that it was believed the Defendant would receive approximately fifty-five (55) months in the Department of Corrections.” It requested that Garcia's motion be denied and that, per his criminal history score of B, he be sentenced to between 114 and 128 months in prison.

At the plea withdrawal hearing on January 6, 2009, Garcia's testimony reinforced that his main focus in the plea negotiations was the amount of time he would be serving. When he entered the plea, his understanding was that he would be facing a 53– to 60–month sentence and, although he had a prior ...

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