State v. Jackson

• Decision Date: 27 May 1994
• Docket Number: No. 69868,69868
• Citation: 255 Kan. 455,874 P.2d 1138
• Parties: STATE of Kansas, Appellee, v. Andre JACKSON, Appellant.
• Court: Kansas Supreme Court

Page 1138

874 P.2d 1138

255 Kan. 455

STATE of Kansas, Appellee, v. Andre JACKSON, Appellant.

No. 69868.

Supreme Court of Kansas.

May 27, 1994.

Syllabus by the Court

1. A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.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.

2. The decision to deny a motion to withdraw a plea of guilty lies within the sound discretion of the trial court, and it will not be disturbed on appeal absent a showing that the trial court abused its discretion.

3. There is no constitutional right to counsel at each and every post-conviction proceeding or motion.

4. A hearing and appointment of counsel may be required for some motions to withdraw a plea of guilty or nolo contendere. However, if there is no substantial question of law or triable issue of fact and the files and records conclusively show that the defendant is not entitled to relief on the motion, then there is no requirement that a hearing be held or that counsel be appointed.

5. Mere conclusions of a petitioner for which no evidentiary basis is stated or appears are not sufficient basis for relief from conviction.

M. Kristine Savage, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief, for appellant.

David Lowden, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.

ABBOTT, Justice:

Pursuant to a plea agreement, the defendant, Andre Jackson, pleaded guilty to one count of aggravated kidnapping, three counts of aggravated robbery, one count of aggravated battery, and one count of kidnapping. Under the plea agreement, the State agreed not to file charges against Jackson for two other robberies. The State also agreed to, and did, recommend a life sentence on the aggravated kidnapping count and concurrent sentences for the remaining counts, for a controlling term of life imprisonment. This is the sentence the trial court imposed.

After the defendant pleaded guilty, he waived a presentence investigation and was sentenced as recommended in the plea agreement. Some three weeks later, he filed a pro se motion to withdraw his guilty plea, claiming that he was coerced into pleading guilty by his attorney, that he had ineffective assistance of counsel, and that he had discovered new evidence, and he requested appointment of new counsel. His motion was denied without a hearing.

The defendant contends he was denied due process of law when the trial court denied his motion to withdraw his guilty plea without a hearing and without appointing counsel to represent him.

Jackson's handwritten motion to withdraw his guilty plea stated in pertinent part as follows:

"My purpose of withdrawing my plea

1.) On Novenmber [sic ] 13, 1992 I was extremly [sic ] pressured and press [sic ] into this plea.

2.) Insuffent [sic ] cousel [sic ] toward the case.

3.) Compeled [sic ] to plea.

4.) Also new evidence found in the case."

His request for appointment of counsel stated in pertinent part:

"1.) On Nov 13 1992 motion to withdraw plea was filled [sic ] in the above captioned case.

2.) One of the allgation [sic ] in the motion to withdraw my plea--was that my attorney corced [sic ] me into pleaing [sic ] guilty.

3.) That I am finacially [sic ] unable to hire an attorney to represent me in the above case.

4.) That my rights to counsel would be violated if I am represented by the same counsel who I am saying corced [sic ] me."

In neither of these pro se motions did Jackson indicate what new evidence was discovered or how it was discovered, nor did he allege any evidentiary basis for his claims of insufficient counsel and coercion.

K.S.A. 22-3210 controls the entry of pleas of guilty and nolo contendere. Subsection (d) sets forth the circumstances which permit a defendant to withdraw a plea of guilty or nolo contendere:

"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."

Hence, after sentencing a defendant may be permitted to withdraw his guilty plea only if to do so would correct manifest injustice. See State v. Dunham, 213 Kan. 469, 474, 517 P.2d 150 (1972). "The decision to deny a motion to withdraw a plea of guilty lies within the sound discretion of the trial court, and it will not be disturbed on appeal absent a showing that the trial court abused its discretion." State v. Hill, 247 Kan. 377, Syl. p 2, 799 P.2d 997 (1990).

"Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. [Citation omitted.] A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion. [Citation omitted.]" State v. Larry, 252 Kan. 92, 95, 843 P.2d 198 (1992).

Jackson's argument is not that the court abused its discretion in denying his motion to withdraw guilty plea because withdrawal was necessary to correct manifest injustice, but that the court abused its discretion and violated his right to due process by summarily denying his motion without a hearing and without appointing counsel. He argues that in his case the determination of manifest injustice cannot be made by merely reviewing his motion and the record of his guilty plea; thus, a hearing and appointment of counsel was necessary before a decision on the motion could be made. Jackson points to the transcript of his guilty plea hearing, which he claims shows that he was dissatisfied with his court- appointed attorney's representation and that he had attempted to retain an attorney before he agreed to plead guilty.

Although K.S.A. 22-3210(d) sets forth the circumstances under which a guilty plea may be withdrawn, that statute is silent on the procedures governing a motion to withdraw guilty plea. Neither the statute nor case law on K.S.A. 22-3210(d) motions clearly specify whether and in what circumstances a hearing or appointment of counsel is required.

Both the State and the defendant suggest that the procedures governing hearings on K.S.A. 60-1507 motions and motions for new trial under K.S.A. 22-3501 provide guidance for hearings on K.S.A. 22-3210(d) motions. We agree. Indeed, this court has in the past addressed motions to withdraw pleas of guilty or nolo contendere which have been pursued as 60-1507 motions. See Hicks v. State, 220 Kan. 279, 552 P.2d 889 (1976); Morrow v. State, 219 Kan. 442, 548 P.2d 727 (1976); Rhone v. State, 211 Kan. 206, 505 P.2d 673 (1973). K.S.A. 60-1507(b) requires a hearing on a 60-1507 motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief."

This court has also held that when a post-verdict motion for a new trial based on newly discovered evidence (K.S.A. 22-3501) is filed after sentence has been imposed, it is comparable to the procedure provided under K.S.A. 60-1507. State v. Dunn, 243 Kan. 414, 436, 758 P.2d 718 (1988); State v. Bryant, 227 Kan. 385, 391, 607 P.2d 66 (1980). K.S.A. 22-3501 permits the granting of a new trial "if required in the interest of justice." In Bryant, the motion for a new trial was filed less than one-and-a-half months after a jury verdict of guilty and less than two weeks after sentencing, and the denial of this motion was the subject of appeal. The alleged new evidence was that a main witness against the defendant had recanted his testimony. The district court made a preliminary inquiry into the alleged new evidence, at which time the witness repudiated his recantation. The court then denied the defendant's motion for a new trial without further hearing. 227 Kan. at 389-90, 607 P.2d 66. This court held that there was no abuse of discretion in failing to conduct a full evidentiary hearing, noting that under K.S.A. 60-1507 the district court "normally conducts a preliminary inquiry to determine whether the claims asserted in the motion are substantial, before granting a full evidentiary hearing and requiring the petitioner to be present." 227 Kan. at 391, 607 P.2d 66.

The K.S.A. 60-1507 procedure governing hearings should apply to motions to withdraw guilty plea filed after imposition of sentence. Requiring a hearing in every case in which a defendant seeks to withdraw his plea of guilty or nolo contendere would create an extreme burden on the courts, and such a rule is not feasible or justified. A hearing on a motion to withdraw a plea of guilty or nolo contendere is limited to those instances in which the defendant's motion raises substantial issues of fact or law and should be denied when the files and records conclusively show that the defendant is entitled to no relief.

It is clear that "[t]here is no constitutional right to counsel at each and every post-conviction proceeding or motion." State v. Nunn, 247 Kan. 576, 583, 802 P.2d 547 (1990). In State v. Andrews, 228 Kan. 368, 614 P.2d 447 (1980), this court discussed at length the constitutional right to counsel as the issue arose in the context of a motion for a new trial and noted that Kansas statutes provide for counsel at pretrial proceedings, at trial, on appeal, and also on K.S.A. 60-1507 motions if the trial court, after examining the merits of the motion, determines that the motion presents substantial questions of law or triable issues...