State v. McDaniel, 69776

• Decision Date: 08 July 1994
• Docket Number: No. 69776,69776
• Citation: 255 Kan. 756,877 P.2d 961
• Parties: STATE of Kansas, Appellee, v. John McDANIEL, Appellant.
• Court: Kansas Supreme Court

Page 961

877 P.2d 961

255 Kan. 756

STATE of Kansas, Appellee, v. John McDANIEL, Appellant.

No. 69776.

Supreme Court of Kansas.

July 8, 1994.

Syllabus by the Court

1. K.S.A.1993 Supp. 22-3602 does not preclude a defendant who has pleaded guilty or nolo contendere from taking a direct appeal from the district court's denial of a motion to withdraw the plea. By permitting a defendant to seek withdrawal of his or her plea pursuant to K.S.A. 22-3210(d), the legislature implicitly permitted that defendant to appeal from such denial.

2. The language found in the third full paragraph of State v. Alsup, 239 Kan. 673, 674, 722 P.2d 1100 (1986), is overruled, and Syl. p 2 and the corresponding portions of the opinion in State v. Flowers, 19 Kan.App.2d 563, 565, 568, 873 P.2d 226 (1994), are also overruled.

3. A notice of appeal must be filed either within 130 days of sentencing or within 10 days of the district court's determination of an authorized, timely filed post-trial motion, whichever period is longer.

4. After sentencing, a defendant may be permitted to withdraw a guilty plea only if to do so would correct manifest injustice. 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.

5. A point not raised in the trial court cannot be raised for the first time on appeal.

J. Patrick Lawless, Jr., Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

Jerome A. Gorman, Asst. Dist. Atty., argued the cause, and Nick A. Tomasic, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.

ABBOTT, Justice:

This is a direct appeal by the defendant, John McDaniel, from the denial of his motion to withdraw his pleas of guilty to the offenses of first-degree murder (felony murder) and aggravated escape. The appeal also involves jurisdictional issues concerning appeal after entering a plea of guilty or nolo contendere and the timeliness of the appeal.

McDaniel was originally charged with multiple crimes in four separate cases. He entered into a plea agreement whereby all charges were dismissed except the first-degree murder charge and the charge of aggravated escape from custody. Defendant pleaded guilty to those charges.

McDaniel informed the court of the facts surrounding the offenses to which he pleaded guilty. As to the first degree-murder charge, McDaniel stated that he was in a car with two friends. The victim stopped them and asked if they would sell him some drugs. They agreed. One of McDaniel's friends took a .45 caliber gun and entered the victim's car. McDaniel saw the two wrestling over the gun, and he heard the gun discharge. McDaniel then took a .357 Magnum walked back to the victim's car, opened the driver's door, and shot the victim one time in the chest. As to the aggravated escape charge, McDaniel stated that he was incarcerated (in the Wyandotte County Jail) pending the murder charge. He knew the bars on a cell window were cut, and he went out the window and climbed down some sheets to the ground. He was arrested two days later at a motel.

McDaniel entered his pleas of guilty on June 12, 1992, after signing a Petition to Enter Plea of Guilty. Following completion of a presentence investigation report, McDaniel was sentenced on August 12, 1992, to consecutive sentences of life imprisonment for murder and one to five years for aggravated escape.

Shortly after sentencing, McDaniel sent a letter dated August 17, 1992, asking the court to set aside his guilty pleas in both cases. McDaniel claimed in his pro se motion that his trial counsel, Charles Dixon, had informed him that he would receive a sentence of 15 years to life, rather than life, if he pleaded guilty. New counsel, Thomas Fields, was appointed to represent McDaniel on the motion. The court denied McDaniel's motion after a February 10, 1993, hearing at which McDaniel testified. The journal entry denying McDaniel's motion was filed on February 26, 1993. McDaniel filed a notice of appeal on February 17, 1993. He filed an amended notice of appeal on February 19, 1993.

Although McDaniel appealed from and speaks of withdrawing his "pleas," his brief is directed solely at the first-degree murder plea.

I. JURISDICTION

This court ordered McDaniel to show why his appeal should not be dismissed for lack of jurisdiction because it was filed more than 10 days after the expiration of the district court's power to modify the sentence. The appeal was retained subject to reconsideration of jurisdiction.

The jurisdictional issue here consists of two questions: First, does a defendant have a right to a direct appeal from the district court's denial of his or her motion to withdraw a guilty plea? Second, if so, what is the time frame governing that right?

K.S.A.1993 Supp. 22-3602 grants a defendant an appeal "as a matter of right from any judgment against the defendant in the district court." However, that statute precludes appeals "from a judgment of conviction before a district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60-1507 and amendments thereto."

K.S.A. 22-3210(d) permits the trial court to set aside the judgment of conviction and allow a defendant to withdraw his or her plea of guilty or nolo contendere before sentencing for good cause shown or after sentencing to correct manifest injustice. This court has previously heard and decided direct appeals from a district court's refusal to permit withdrawal of a plea of guilty or nolo contendere without questioning jurisdiction. See, e.g., State v. Larry, 252 Kan. 92, 843 P.2d 198 (1992); State v. Reed, 248 Kan. 506, 809 P.2d 553 (1991); State v. Hill, 247 Kan. 377, 799 P.2d 997 (1990). Implicit in the legislature's enactment of K.S.A. 22- 3210(d), permitting withdrawal of a plea of guilty or nolo contendere independent of K.S.A. 60-1507, is the right to a direct appeal from the trial court's denial of a motion to withdraw plea. Cf. State v. Gonzales, 255 Kan. 243, 247, 874 P.2d 612 (1994) (direct appeal from district court's refusal to convert indeterminate sentence to one under the Kansas Sentencing Guidelines Act); State v. VanReed, 245 Kan. 213, 217, 777 P.2d 794 (1989) (direct appeal from district court's refusal to impose statutory presumptive sentence of probation). This court has held that K.S.A.1993 Supp. 22-3602 does not preclude a defendant who has pleaded guilty or nolo contendere from taking a direct appeal from the sentence imposed where the sentence exceeds the minimum. State v. Harrold, 239 Kan. 645, 649, 722 P.2d 563 (1986). We hold K.S.A.1993 Supp. 22-3602 does not preclude a defendant who has pleaded guilty or nolo contendere from taking a direct appeal from the district court's denial of a motion to withdraw the plea.

However, the Court of Appeals in State v. Flowers, 19 Kan.App.2d 563, 873 P.2d 226 (1994), held to the contrary. The Court of Appeals dismissed the defendant's appeal, holding that K.S.A. 22-3602(a) precluded the defendant's direct appeal from the denial of his motion to withdraw plea. 19 Kan.App.2d 563, Syl. p 2. Flowers had already taken a direct appeal from his sentence, and he had not sought to withdraw his plea until after his sentence was affirmed by the Court of Appeals. The court reasoned that a direct appeal from the denial of a motion to withdraw plea is indeed a challenge to the conviction itself because if the appeal is successful, the conviction will be reversed. The fact that Kansas appellate courts have considered similar appeals without questioning jurisdiction was deemed irrelevant on the theory that those cases stand only for the issues actually addressed, not for issues which were not raised by the parties. The Court of Appeals panel opined that K.S.A. 22-3210(d), permitting withdrawal of a plea of guilty or nolo contendere, relates only to the proceedings in the trial court and does not relate to the question of appellate jurisdiction. Finally, the Court of Appeals recognized that the defendant was not without a remedy--he could pursue a K.S.A. 60-1507 action. 19 Kan.App.2d 563, Syl. p 3.

Further, this court in State v. Alsup, 239 Kan. 673, 674, 722 P.2d 1100 (1986), indicated without any discussion that 22-3602(a) precludes a direct appeal from a conviction after a plea of guilty or nolo contendere, including a direct appeal from the denial of a motion to withdraw plea. However, this court considered the merits of the appeal, treating it as proceeding under K.S.A. 60-1507 because the trial court had permitted additional discovery and held additional hearings before pronouncing sentence.

This court has permitted direct appeals after a plea of guilty or nolo contendere. See State v. Gonzales, 255 Kan. at 244, 874 P.2d 612; State v. VanReed, 245 Kan. at 217, 777 P.2d 794; State v. Harrold, 239 Kan. at 649, 722 P.2d 563. Though these cases relate to direct appeal concerning sentencing issues, the same rationale applies. If a defendant is permitted to seek withdrawal of his or her plea of guilty or nolo contendere independent of a K.S.A. 60-1507 motion, as K.S.A. 22-3210(d) provides, there must also be a right to a direct appeal from the denial of that motion. To require a defendant to first file a 60-1507 motion, which would be filed in the same court which has just denied withdrawal of the plea, before being permitted to appeal from the denial of withdrawal is not in the interest of judicial economy and should not be required. By permitting a defendant to seek withdrawal of his or her plea pursuant to K.S.A. 22-3210(d), the legislature implicitly permitted that defendant to appeal from such denial, despite the appearance of 22-3602(a)...