State v. Nickles

• Docket Number: 123,577
• Decision Date: 10 June 2022
• Parties: State of Kansas, Appellee, v. Marvin M. Nickles Jr., Appellant.
• Court: Kansas Court of Appeals

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State of Kansas, Appellee, v. Marvin M. Nickles Jr., Appellant.

No. 123, 577

Court of Appeals of Kansas

June 10, 2022

NOT DESIGNATED FOR PUBLICATION

Appeal from Sedgwick District Court; Jeffrey Syrios, judge.Affirmed in part, sentences vacated, and case remanded with directions.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett district attorney, and Derek Schmidt, attorney general, for appellee.

Before Schroeder, P.J., Green and Gardner, JJ.

MEMORANDUM OPINION

Per Curiam:

Marvin M. Nickles Jr. appeals the denial of his motion to withdraw his no-contest pleas prior to sentencing for aggravated domestic battery in three cases consolidated for trial resulting in the imposition of consecutive sentences for his three cases on the same day.Nickles argues (1)the district court abused its discretion in denying his presentence motion to withdraw his pleas and (2) his sentences are unconstitutional as applied.We are unpersuaded by Nickels' first argument.But we agree, based on recent decisions from our court, Nickles is correct that K.S.A. 2020 Supp. 21-6819(b)(4), as applied, violated his equal protection rights.Thus, we affirm the district court's denial of Nickles' motion to withdrawal his pleas, but we vacate his sentences and remand for resentencing.

Facts

Between June and August 2018, the State charged Nickles with multiple crimes in three separate cases.In the first case, the State charged Nickles with three counts of aggravated assault and one count each of stalking and aggravated domestic battery.The complaint was later amended to add charges of criminal threat and interference with law enforcement.In the second case, the State charged Nickels with aggravated domestic battery and two counts of criminal threat.In his third case the State charged Nickles with kidnapping, aggravated domestic battery, and domestic battery.

Quentin Pittman was appointed to represent Nickles on the charges, and the cases were consolidated for trial over Nickles' objection.Around the same time, the district court suspended the proceedings to conduct a competency evaluation of Nickles.The district court later determined Nickles was competent and resumed the proceedings.Nickles and the State subsequently entered into a plea agreement addressing all three cases.Consistent with the plea agreement, on February 20, 2020, Nickles pled no contest to one count of aggravated domestic battery in each case.In exchange for his pleas, the State dismissed the remaining counts and agreed not to file charges in two other potential cases.

The following week, Nickles filed a pro se motion to withdraw his pleas.Nickles' motion claimed, among other things, that Pittman misled and coerced him into signing the plea agreement.Terry Beall was appointed to represent Nickles on his pro se motion to withdraw his pleas.Beall then also filed a motion to withdraw pleas, and a hearing was held on the motions.

At the hearing on Nickles' motions to withdraw his pleas, Pittman was the sole witness, and he testified about his actions leading up to Nickles ultimately entering his pleas.Pittman testified that either he or his investigator met with Nickles at the detention center on at least 10 occasions throughout Pittman's representation.Pittman stated that they intended to go to trial prior to receiving the plea offer because "[f]rankly, what [Nickles] wanted and what the State wanted was kind of far apart."Even so, Pittman testified he took the plea deal to Nickles and explained the plea deal to Nickles using his usual precautions, stating:

"Well, the only precautions I took were what I would take with any client, which is when I met with [Nickles] I made sure he understood what the documents are, made sure that he had a grid, which I provided him, made sure he knew what the potential penalties were-and in this case it was fairly easy, which was three sevens-and made it very clear to him that it didn't matter to me what he did.What mattered was that he made an informed decision."

Pittman's testimony reflects, given the prior issues with competency, he"made a concerted effort to make sure that [Nickles] understood exactly what we were talking about."

Pittman could not remember the date he first took the written plea agreement to Nickles but testified he showed Nickles the written plea agreement four days before the plea was entered, and they discussed the plea offer for more than an hour.Even so, Pittman clarified Nickles was aware of the plea agreement's terms prior to the meeting:

"So what [Nickles] and I had talked about, and I'd met him previously in the week, is [Nickles] understood that they'd made an offer to him and [Nickles] understood that there was a drop-dead date for that offer.So when I went to go talk to him the last time before we went to court, my question simply was is this-do you want to do this and what the pros and cons were."

Pittman went on to explain he spoke to Nickles about the plea agreement and Nickles "knew what the offer was.We went over it."And Pittman reiterated that Nickles was aware of the terms despite not having the written document because they had previously discussed it.But because Nickles was unsure if he wanted to accept the plea offer, Pittman did not have him sign the documents and suggested Nickles give him an answer when they met in court for the plea hearing.Nickles ultimately signed the plea agreement the morning of the plea hearing.

After arguments from the parties, in which Beall argued Nickles "felt rushed" and did not understand the plea agreement, the district court denied the motion.The district court concluded Pittman provided competent counsel and "the great weight of the evidence" showed Nickles was not misled, coerced, or threatened.The district court further found Nickles was not rushed into the decision and "[t]he facts are totally contrary to his allegations in his motion that it was within 24 hours of discussing it."

After the hearing, Pittman reviewed his files and determined the dates he visited Nickles.At the hearing, Pittman approximated meeting with Nickles to discuss the plea agreement on February 16, 2020.But upon reviewing his files, Pittman determined the conversation occurred two days later, on February 18, 2020.The parties stipulated to these facts.Based on the stipulation, Beall filed a second amended motion to withdraw Nickles' pleas.His motion alleged Pittman "did not explain to him his rights and the plea" on February 18, 2020, during the jail meeting.

The district court addressed the motion immediately prior to Nickles' sentencing.Nickles testified and claimed Pittman inaccurately informed him of his potential sentence.Making this claim for the first time while testifying, Nickles alleged Pittman told him the State's plea offer called for 60 months' imprisonment, "so that's why [he] signed the plea and went on to accept it."It was not until after Nickles "signed it and everything else" that Pittman informed Nickles that the plea agreement called for a 102- month sentence.Nickles also testified that Pittman did not have the written plea agreement with him during the jail meeting and Nickles did not see the written agreement until he was brought in for the plea hearing.

Upon making its factual findings, the district court noted the discrepancies between the testimony of Pittman and Nickles and determined Pittman's testimony was more credible.Based on the evidence and its credibility determination, the district court denied Nickles' motion to withdraw his plea in all three cases.Even though the cases were consolidated for trial, the district court proceeded to sentence Nickles separately in each case.Based on Nickles' criminal history score of A and the severity level of his crimes of conviction-severity level 7 nondrug person felonies-the district court sentenced Nickles to 34 months' imprisonment for each conviction.The district court then ordered those sentences to run consecutive for a total controlling term of 102 months' imprisonment.

Analysis

The district court properly exercised its discretion in denying Nickles' motions to withdraw his pleas.

Nickles first argues the district court abused its discretion in denying his motions to withdraw pleas because he did not knowingly enter his pleas and Pittman provided lackluster advocacy when he misinformed Nickles of his potential sentence under the plea agreement.The State contends the district court did not abuse its discretion because it found Pittman's testimony credible.

A district court may allow a defendant to withdraw a guilty or nolo contendere plea for good cause any time before sentencing.K.S.A. 2020 Supp. 22-3210(d)(1).Appellate courts review such decisions for an abuse of discretion, which occurs when a district court's decision is arbitrary, fanciful, or unreasonable, or is based on an error of law or fact.State v. Frazier, 311 Kan. 378, 381, 461 P.3d 43(2020).

When determining whether a defendant has demonstrated good cause to withdraw a plea, a district court generally looks to the following three factors from State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986(2006): (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made.Frazier, 311 Kan. at 381.These factors should not "be applied mechanically and to the exclusion of other factors."State v Fritz, 299 Kan. 153, 154, 321 P.3d 763(2014).These factors establish "'viable benchmarks'" for the district court when exercising its discretion, but the court"should not...