State v. Moses, 94,113.
| Decision Date | 03 February 2006 |
| Docket Number | No. 94,113.,94,113. |
| Parties | STATE of Kansas, Appellee, v. Steve L. MOSES, Appellant. |
| Court | Kansas Supreme Court |
Steve L. Moses, pro se, was on the brief for appellant.
Jerome A. Gorman, district attorney, and Phil Kline, attorney general, were on the brief for appellee.
In 2004, 12 years after Steve L. Moses pled guilty to first-degree murder and aggravated robbery, he filed a motion to withdraw his guilty pleas. He alleged that the district court violated K.S.A. 22-3210 (Ensley 1988) when it failed to personally advise him, and establish he understood, that by entering guilty pleas, he would be waiving certain constitutional rights. After the district court denied the motion, Moses appealed. Our jurisdiction is pursuant to K.S.A. 22-3601(b)(1) (life sentence imposed).
The sole issue on appeal is whether the district court abused its discretion when it denied Moses' motion to withdraw his guilty pleas. We affirm.
The principal facts are not in dispute. In 1992, Moses was charged with first-degree murder and aggravated robbery for the strangulation death of his 81-year-old next door neighbor, Radar Potter. Following a preliminary hearing, Moses was bound over for trial. After the State filed notice of intent to seek the Hard 40 sentence, Moses agreed to plead guilty as charged in exchange for the State dropping its Hard 40 request.
At the November 18, 1992, plea hearing, the trial court read the information aloud to Moses and then asked him to tell the court what he had done. Moses explained that while he was high on drugs, he went next door to Potter's house to use her phone. When the person he was trying to call did not answer the phone he got mad, grabbed Potter, and strangled her for about 30 minutes until she finally quit breathing. He then took a radio from her house and drove off in her car.
The court asked the State to provide an additional factual basis. The State replied that Moses' common-law wife testified at the preliminary hearing that he admitted to her that he had killed the old lady next door. It also informed the court that another witness — the sister of his common-law wife — testified that she had heard Moses make statements that he saw the old lady next door with some money and he ought to hit her in the head and get her money. The State further said that blood was found on the shoes Moses was wearing at the time, and the victim had bled from her nose. The State additionally told the court that in Moses' statement to police, he said he had done something bad. The State also proffered that the autopsy showed Ms. Potter's death was due to strangulation.
When the court asked Moses if he disputed that the State would present that evidence, he replied,
There was then a lengthy discussion about whether Moses understood the penalty he faced in the event the court accepted his guilty pleas.
The court then noted that a petition to enter a plea of guilty had been signed by Moses, his legal counsel, and the prosecutor. Paragraphs 7 and 8 of the petition contain the following acknowledgments:
Before the court accepted Moses' plea, the following colloquy occurred between the court and Moses:
The court then accepted the plea, stating, "I'm going to consider it freely and voluntarily made." On January 29, 1993, Moses was sentenced to life imprisonment on the first-degree murder conviction and 15 years to life on the aggravated robbery conviction. The sentences were ordered to run consecutive to each other and consecutive to sentences imposed in Case Nos. 83-002 and 83-011 by the State of Arkansas on June 3, 1983, for which Moses had been on parole at the time of Potter's death. The plea hearing was transcribed on October 29, 1993.
In 1993, Moses filed a K.S.A. 60-1507 motion which alleged ineffective assistance of counsel, involuntary plea, and illegal sentence. Counsel was appointed to represent him, the district court held a hearing, and the motion was denied by a journal entry filed April 7, 1994. In 2001, Moses submitted a motion to the district court for leave to file an out of time notice of appeal from denial of his 1507 motion. The court denied the motion, holding it did not support a finding of good cause for the untimely appeal. Moses then filed a motion to alter or amend, claiming he requested his attorney file a notice of appeal of the denial of his 1507 motion and that he had only recently learned his case was not currently on appeal, as was requested in 1994. This motion was also denied. He appealed the denial of his motion to file a notice of appeal out of time and the denial of his motion to alter or amend. These documents are not contained in the record on appeal, but the recited facts are taken from Moses v. State, No. 87,794, 53 P.3d 354, unpublished opinion filed August 30, 2002, where the Court of Appeals affirmed the district court.
While Moses' 1507 issues awaited resolution, on May 29, 2001, he also filed with the district court a motion to correct an illegal sentence under K.S.A. 22-3504. He specifically alleged that convictions of both felony murder and the underlying felony violate the Double Jeopardy Clause of the United States and Kansas Constitutions as well as K.S.A. 21-3107(2)(b), which preclude punishment of a lesser included crime where all elements of the lesser crime are identical to some of the elements of the crime charged. After the district court denied his motion, this court affirmed in State v. Moses, No. 87,855, 56 P.3d 289, unpublished opinion filed October 25, 2002. During the pendency of the appeal, on October 10, 2001, his appellate attorney ordered the transcript of the 1992 plea hearing.
On June 25, 2004, approximately 2 years after this court's opinion was filed in State v. Moses, approximately 2 years after the Court of Appeals' opinion was filed in Moses v. State, and 12 years after Moses' guilty pleas, he filed a pro se motion to withdraw his pleas. Counsel was appointed for him, and that attorney filed another motion to set aside the pleas.
On December 15, 2004, a hearing was held on the motion, and Moses was present. No testimony was presented, and the only exhibit was the transcript of the 1992 plea hearing.
Moses' counsel argued that the trial court had failed to comply with K.S.A. 22-3210 in 1992 because Moses had not been advised of the rights he would be waiving by entering guilty pleas. The State responded that although the court had not orally advised Moses of the rights he would be waiving, the record in its entirety, including the signed plea petition, demonstrated that his pleas were knowingly and voluntarily made.
The State also asserted that the doctrine of laches barred relief. It argued the unexplained 12-year delay was unreasonable, and that the State would suffer prejudice if it was forced to take the case to trial after so much time had passed, as it would be difficult to locate witnesses. The State informed the court that it had tried to find the victim's sister but was unable to locate her at the phone number and address it had for her. The State additionally said it did not know the whereabouts of several of the law enforcement witnesses, and the arresting officer had subsequently been convicted of voluntary manslaughter and would likely be a hostile witness.
The State also argued that the motion to withdraw plea was, in effect, a successive motion barred under K.S.A. 60-1507(c), as Moses' 1507 motion in 1993 had claimed his plea was not voluntarily given due to ineffective assistance of counsel and stress at the time.
On February 14, 2005, the...
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State v. Garcia
...right against self-incrimination, the right to trial by jury, and the right to confront one's accusers. See, e.g., State v. Moses, 280 Kan. 939, 946, 127 P.3d 330 (2006). For that reason, the law requires that a waiver must be knowingly, intelligently, and voluntarily entered. There are num......
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State v. Stevens, 94,187.
...take the view of the district court. The party who asserts abuse of discretion bears the burden of showing it. See State v. Moses, 280 Kan. 939, 945, 127 P.3d 330 (2006). The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conc......
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Harms v. Cline
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