State v. Johnson, 71882
| Decision Date | 08 December 1995 |
| Docket Number | No. 71882,71882 |
| Citation | 907 P.2d 140,258 Kan. 607 |
| Parties | STATE of Kansas, Appellee, v. Joe JOHNSON, III, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A plea of guilty, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. K.S.A. 22-3210(d).
2. 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.
3. A party claiming an abuse of district court discretion bears the burden of showing abuse of discretion.
Benjamin C. Wood, Lawrence, argued the cause and was on the brief, for appellant.
Anthony W. Mattivi, Assistant District Attorney, argued the cause, and Joan M. Hamilton, District Attorney, and Carla J. Stovall, Attorney General, were on the brief, for appellee.
Pursuant to a plea agreement, Joe Johnson, III, was convicted of aggravated kidnapping (K.S.A. 21-3421), first-degree murder (K.S.A.1992 Supp. 21-3401), and theft (K.S.A. 21-3701), for which he received two life sentences and a 1- to 5-year sentence, to run consecutively.
On April 25, 1993, defendant, one of his brothers, his sister, and the sister's boyfriend murdered 16-year-old Amanda Gardner in Topeka, Kansas, to obtain the victim's automobile. The murder was premeditated and particularly brutal. Defendant's sister, Donice M. Johnson, pled guilty to aggravated kidnapping and first-degree murder. We affirmed her convictions in State v. Johnson, 258 Kan. 100, 899 P.2d 484 (1995). Although the convictions of defendant and his codefendant sister were each by guilty pleas, the issues in the two appeals are uniquely interrelated and focus on the sentencing of Donice. Defendant does not contend that the entry of his plea and the sentences imposed upon him were, in any respect, improper or violative of the plea agreement into which he entered. Rather, he contends that his pleas were conditioned upon his understanding that no one would be permitted to argue in favor of consecutive life sentences for Donice. He contends this condition was violated by the letters received by the district court from the public and the victim's family as well as the statements made at sentencing by the victim's sister on behalf of the Gardner family.
Both defendant and Donice were present at the joint proceeding in which their pleas were accepted on June 28, 1993. Defendant's plea was heard first. The State made a statement as to what the plea agreement was, which made no reference to Donice. The following then occurred between the district court and defendant:
Although defendant waived formal reading of the complaint, the district court read the complaint to him. A factual basis for the plea was established, and defendant then pled guilty to the charges. The district court proceeded with Donice's pleas. In exchange for Donice's guilty pleas to first-degree murder and aggravated kidnapping, the State agreed: (1) to dismiss a theft charge; (2) not to ask the court for the "hard 40" or to proceed to trial on the "hard 40"; and (3) to take no position as to whether concurrent or consecutive sentences should be imposed. As both crimes were class A felonies with life being the only possible sentence of incarceration, the only issue at sentencing would be concurrent versus consecutive life sentences. After making proper inquiry of Donice and receiving appropriate responses, her pleas were accepted.
The sentencing of both defendant and Donice was set for August 24, 1993. On the day set for sentencing, defendant filed a motion to withdraw his guilty pleas, stating in pertinent part:
This motion was apparently triggered by the large amount of correspondence received by the district court from the public specifically requesting that Donice be given consecutive sentences. These letters had been the subject of a July 14, 1993, hearing. At that time, the district court had ruled that letters from the victim's immediate family would be delivered to court services, with all other letters to be held by the court reporter. This procedure had been suggested by defendant's counsel.
Defendant's counsel testified at the hearing on defendant's motion to withdraw the plea that as the victim's family had approved the plea agreement, he had assumed the family's position would be consistent with that of the State. The district court reviewed the transcript of the entry of the pleas of defendant and Donice. The district court denied the motion on the ground that insufficient cause had been given to warrant withdrawal of the plea. Specifically, the court stated: "[T]he presentation of the views of the victim's family inconsistent with the prosecutor's position was not and is not a breach of the plea agreement." Additionally, the court found that defendant had not alleged that he was innocent of the offenses charged or that his plea was made because of fraud, duress, or mutual mistake, as required by State v. Larry, 252 Kan. 92, 843 P.2d 198 (1992). Sentence was then pronounced. No claim of error is made as to the sentencing procedure utilized or to the sentences imposed.
K.S.A. 22-3210 sets forth the procedures for acceptance and withdrawal of guilty or nolo contendere pleas as follows:
"(a) Before or during trial a plea of guilty or nolo contendere may be accepted when:
(1) The defendant or counsel for the defendant enters such plea in open court; and
(2) in felony cases the court has informed the defendant of the consequences of the plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
(3) in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea; and
(4) the court is satisfied that there is a factual basis for the plea.
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