State v. Morris, 69019

• Decision Date: 11 March 1994
• Docket Number: No. 69019,69019
• Citation: 254 Kan. 993,869 P.2d 739
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellee, v. Kenneth E. MORRIS, Appellant.

Page 739

869 P.2d 739

254 Kan. 993

STATE of Kansas, Appellee, v. Kenneth E. MORRIS, Appellant.

No. 69019.

Supreme Court of Kansas.

March 11, 1994.

Syllabus by the Court

1. K.S.A. 22-3210 sets forth the requirements with which a trial court must comply when accepting a plea of guilty and the circumstances under which a plea may be withdrawn.

2. After sentence has been imposed, the trial court in its discretion may allow a defendant to withdraw his or her guilty plea to "correct manifest injustice." K.S.A. 22-3210(d).

3. A trial court's failure to strictly comply with requirements of K.S.A. 22-3210 may be reversible error unless the record, viewed in its entirety, discloses that the plea was accepted in compliance with the statute.

4. In a criminal case in which the defendant appeals the trial court's denial of his motion to withdraw his guilty plea to rape, it is held that the defendant was adequately advised of the maximum penalty and that his plea was entered voluntarily with an understanding of the charge and the consequences of his plea.

M. Kristine Paredes, Assistant Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief for appellant.

John J. Gillett, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

DAVIS, Justice:

The defendant, Kenneth E. Morris, appeals from the district court's denial of his motion to withdraw his guilty plea to a charge of rape. He contends that the district court failed to follow K.S.A. 22-3210 before accepting his plea because it (1) failed to adequately advise the defendant of the maximum penalty and (2) failed to determine whether his plea was entered voluntarily with the understanding of the charge and the consequences of the plea. We affirm.

In April 1990, Kenneth Morris was charged in a five-count complaint with rape, aggravated criminal sodomy, attempted aggravated criminal sodomy, aggravated sexual battery, and sexual battery. The defendant had been convicted of a felony offense in a previous case and was still on probation for that offense. On December 13, 1990, the defendant appeared for jury trial on the five charges. On that same date the defendant also appeared on a motion for revocation of his probation from the earlier felony conviction.

The record on this appearance establishes that the defendant with his counsel, David K. Clark, and the State through its attorney, John J. Gillett, entered into an agreement regarding the disposition of all charges and the revocation motion:

"MR. GILLETT: "Your Honor, the defendant is going to be entering a plea of guilty to the count of rape, to be sentenced to 15 years to life, that will be consecutive to the sentence by law under 89 CR-31 [earlier felony conviction] in which we're dropping a Motion to Revoke his probation. The remaining time of probation he has on that would run during the same period of time that we're recommending 10 years' supervised probation on this new charge. He will have Court costs, I believe Mr. Clark is appointed. He'll have those things to reimburse on that. He will be ordered into counseling, and to abide by whatever the counselor says, and have the other usual terms and conditions. The charge of aggravated sodomy, attempted aggravated sodomy, aggravated sexual battery will all be dismissed.

"THE COURT: The particular count being pled guilty to is Count 1 in the Information?

"MR. CLARK: I believe that's correct, Judge.

"THE COURT: And that's a Class B felony.

"MR. GILLETT: That's correct. Sentence on that would be 15 to life. And the State would have sufficient evidence to obtain a conviction on that count in the event the matter would have gone to jury trial.

....

"THE COURT: All right, what is going to be the conditions recommended? Pay the costs, probation supervision fee?

"MR. GILLETT: Yes.

"THE COURT: Required counseling.

"MR. GILLETT: Yes.

"THE COURT: Inpatient or outpatient.

"MR. GILLETT: Whatever the--

"THE COURT: All right, as per the Court Services Officer. Anything else specifically?

"MR. CLARK: Nothing specifically, Judge, but I will advise the Court that I've talked to the County Attorney's Office, I realize the Court cannot order this, but they have indicated to me that they will be moving from this jurisdiction, probably in the next 90 to 120 days. And we'd agree to that as one of the conditions.

"THE COURT: I presume you're going to recommend transfer of the supervision.

"MR. GILLETT: Yes, that's fine.

"THE COURT: I presume there's going to be a requirement for reimbursement to the Indigent Defense Services.

"MR. GILLETT: Yes.

"MR. CLARK: Also, for purposes of the record, Judge, I'm sure that the County Attorney will join me, we'll waive any PSI report.

"THE COURT: You want to go to sentence today?

"MR. GILLETT: Yes. We'll waive the PSI, Your Honor. I think Mr. Morris is aware that if there is any deviation from the terms of the probation whatsoever, what he's looking at."

On December 13, 1990, the defendant entered a plea of guilty to the charge of rape. Prior to accepting the defendant's plea and after swearing in the defendant, the court asked the following questions:

"THE COURT: All right, you have heard everything that Mr. Clark and Mr. Gillett have been talking about, as far as how to dispose of this case?

"A: [Defendant]: Yes, Your Honor.

"THE COURT: Are all the things that you have heard what you understand to be the agreement between you and the State, as far as how to dispose of the case?

"A: Yes, Your Honor.

"THE COURT: Have there been any suggestions or requirements or offers or comments, other than what has been stated in open Court here today?

"A: No, Your Honor.

"THE COURT: In your previous case, as I recall, that was a plea agreement, too, was it not?

"MR. CLARK: Yes, it was, Your Honor.

....

"THE COURT: I'm still required to make a new record to make sure you understand what your rights are, and that you make a voluntary waiver of those rights. First of all, you have been through a couple of attorneys in this case. Originally, I think, David Rogers, and now Mr. Clark. Are you satisfied at this point with the legal representation you have had?

"A: Yes, sir.

"THE COURT: And have you had all the time you need to discuss your case with Mr. Clark?

"A: Yes, Your Honor.

"THE COURT: And you're satisfied you're ready to proceed today?

"A: Yes, sir.

"THE COURT: For the record, in this case, although you have told me before, that was in another case and another record; but in this case I want you to state briefly your background insofar as education, work history, and marital history, and that type of thing. Just give me a brief background.

"A: Well, I completed the eighth grade and about half of the ninth grade, and I went into the service and spent four years and nine months in the service and got out. I've been married four times. The woman I'm married to now is my fourth wife.

....

"THE COURT: All right, you've been married several years.

"A: About eight years.

"THE COURT: Did you ever get your GED?

"A: Yes, sir, I got it at the V.A. Hospital in Topeka.

"THE COURT: Are you satisfied you understand all of the ins and outs of what we're doing here today?

"A: Yes, sir.

"THE COURT: Is there any part if it that is confusing to you?

"A: No, sir.

"THE COURT: Have you had any mental or emotional problems, or treatment or counseling that would tend to indicate a problem in your understanding what we're doing here today?

"A: No, sir.

"THE COURT: You have been in jail quite sometime?

"A: Yes, sir. Eight months.

"THE COURT: Eight months. And you're not entering your plea today just as a means of getting out of jail? ...

"A: I'm admitting that I did it the way the County Attorney entered it.

"THE COURT: And you are admitting your guilt because that is what you want to do?

"A: Yes, sir.

"THE COURT: I'm going to find for the record that Mr. Morris is capable of waiving his legal and constitutional rights and entering a plea of guilty to the crime charged.

"Now, In regard to those rights, I'm sure you have visited with Mr. Clark about those rights?

"A: Yes, sir.

"THE COURT: It's the same thing we went over in the other case a year ago. It concludes the right to the presumption of innocence, as you sit there today; a right to require that the State convince a jury of twelve beyond a reasonable doubt that you are guilty before you can be found guilty; and do you understand you are waiving both of those rights?

"A: Yes, sir.

"THE COURT: You understand that when you waive those rights, that if at some point down the road you are dissatisfied with the disposition, you would not be able to come back and appeal it on the basis you were deprived of those rights?

"A: Yes, sir.

"THE COURT: By the same token, you're entitled, along with the assistance of Mr. Clark, to question prospective jurors that would hear your case; you're entitled to his help in confronting and cross-examining the witnesses that would testify against you; and in addition to that, you're entitled to take the witness stand and testify in your own behalf, or you can choose not to testify, and no comment can be made to the jury about whether or not you testified. Do you understand those are also legal rights, but once you have waived those, you can't later come back and appeal on the basis that you were deprived of those rights?

"A: Yes sir, I understand.

"THE COURT: Finally, you would normally be entitled to appeal your conviction for whatever reason. When you enter a plea of guilty, and waive your rights, you understand that you are no longer entitled to an appeal of your conviction?

"A: Yes, sir.

"THE COURT: All right, and it is your desire to waive those rights?

"A: Yes, sir.

"THE COURT: I'll find that you have made a valid and knowing and intelligent waiver of your rights. Having made that finding, I'll ask you at this time...