State v. Ruiz
| Decision Date | 20 February 2015 |
| Docket Number | 111,005. |
| Citation | 343 P.3d 544,51 Kan.App.2d 212 |
| Parties | STATE of Kansas, Appellee, v. Guillermo G. RUIZ, Appellant. |
| Court | Kansas Court of Appeals |
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and SCHROEDER, JJ.
Guillermo Ruiz pled no contest to attempted aggravated sexual battery. He now appeals his conviction and sentence contending the district court erred (1) by denying his presentence motion to withdraw his plea; (2) by classifying his 1991 California convictions involving child sex offenses as person offenses for criminal history purposes; and (3) by sentencing him based on his criminal history without requiring the State to prove the criminal history to a jury beyond a reasonable doubt.
We conclude the district court did not abuse its discretion by denying Ruiz' presentence motion to withdraw his plea. We also conclude, under the facts herein, that Ruiz did not invite any error in the calculation of his criminal history score when his counsel stipulated to the criminal history at the sentencing hearing. Applying our Supreme Court's holding in State v. Murdock, 299 Kan. 312, Syl. ¶ 5, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014, we conclude that Ruiz' 1991 California convictions involving child sex offenses must be classified as nonperson offenses for criminal history purposes. Thus, we vacate Ruiz' sentence and remand for resentencing using the correct criminal history score.
On May 2, 2002, the State charged Ruiz with one count of kidnapping, one count of attempted rape, and one count of indecent solicitation of a child. The underlying factual allegations that led to the charges are not pertinent to this appeal. From the record on appeal, it appears that Ruiz absconded in September 2002, after a preliminary hearing but prior to trial, and was not arrested again until June or July 2011. Ruiz was represented by several different attorneys throughout the proceedings in district court.
On January 24, 2013, the district court held a plea hearing. Ruiz was present at the hearing and was represented by counsel, Carl Maughan. The parties had reached a plea agreement whereby Ruiz would plead no contest to attempted aggravated sexual battery, and the remaining charges would be dismissed. Throughout the hearing, Ruiz repeatedly assured the district court that he understood the rights he was giving up by pleading no contest and that he understood the plea agreement.
When the judge asked Ruiz whether he was satisfied with Maughan's services, Ruiz said yes, but when the judge asked if Ruiz had any complaints about his representation so far, Ruiz registered a complaint about his prior attorneys. In a rambling statement, Ruiz claimed that after he was incarcerated, he discovered proof of his innocence but an investigator hired by a prior attorney did not follow up on the evidence. When the judge again asked whether Ruiz was satisfied with Maughan, Ruiz replied,
The judge asked Ruiz whether it was his decision to enter the plea and whether he did so freely and voluntarily. Ruiz replied, “Yes, sir.” Maughan then stated that he had spoken with Ruiz the previous day and immediately prior to the hearing to ensure that Ruiz wanted to enter the plea; Maughan stated he told Ruiz that if he did not wish to enter a plea, they would proceed to trial. Pursuant to the plea agreement, Ruiz then pled no contest to attempted aggravated sexual battery. After hearing the State's factual basis for the charge, the district court found Ruiz guilty and dismissed the remaining charges.
The district court ordered a presentence investigation (PSI) report which revealed, among other prior convictions, two 1991 California convictions of felony child molestation and a separate 1991 California conviction of using a minor for sex acts. Ruiz filed a written objection to his criminal history, specifically objecting to the classification of the California crimes as person offenses, claiming that under State v. Williams, 291 Kan. 554, Syl. ¶ 4, 244 P.3d 667 (2010), they should be classified as nonperson offenses.
On May 28, 2013, Ruiz, represented by new counsel, filed a motion to withdraw plea. In the motion, he argued that he had consistently maintained his innocence and that he had not wanted to enter a plea that could result in his conviction. Ruiz asserted that he “was guaranteed by his defense counsel his right to address the Court, which [Ruiz] assumed could result in the Court actually finding him not guilty and refusing to accept the plea.” Ruiz also argued that Maughan had provided ineffective assistance of counsel by failing to adequately prepare for trial, investigate facts, or prepare a defense.
In July 2013, the district court held an evidentiary hearing on Ruiz' motion to withdraw the plea. Ruiz first called Scott Davis, the chaplain at the Sedgwick County Detention Facility. Davis testified that Ruiz had told him that other people had heard a third party confess to the crimes with which Ruiz was charged.
Next, Ruiz called Christopher Eaves, a criminal defense investigator who had worked on Ruiz' case. Eaves testified that Ruiz had told him that a man named Ted Padgett knew Ruiz was being blackmailed by the alleged victims of the crime. Ruiz also told Eaves that two other inmates—Michael Martinez and Carlos Montidoro—had overheard Padgett telling Ruiz he knew about the blackmail. Eaves testified that he had located Padgett's address and he was in the process of locating Montidoro when defense counsel Brad Sylvester—who had represented Ruiz prior to Maughan—told Eaves to put his investigation on hold. Sylvester told Eaves that the case was going to another attorney, so he submitted his file to Sylvester and did no further work on the case.
Ruiz then testified on his own behalf. He stated that he had believed he would be able to speak at the plea hearing and inform the judge that he was innocent. Ruiz admitted that he understood the English language, but he stated that on one occasion when he asked Maughan for an interpreter, the interpreter did not stay through the entire meeting. Although Ruiz conceded that he told the court that he understood the charges against him and his rights, he claimed he was merely attempting to reach the part of the hearing when he believed he would be able to tell the judge that he was innocent.
Regarding Maughan's alleged failure to prepare and investigate, Ruiz testified that he gave Maughan the names of Montidoro, Martinez, and other witnesses to contact, but Maughan had failed to follow up. Ruiz stated that he always maintained his innocence and never told Maughan he wanted a plea deal; rather, Ruiz testified he was forced to sign a plea agreement because it was the only way he could get in front of a judge. Ruiz testified that he did not understand that he would be found guilty at the plea hearing; rather, he believed the judge would “stop the court and investigate [the] case.” Ruiz said he had informed the court at his plea hearing that he was satisfied with Maughan's representation only because Maughan had told him how to answer.
The State called Maughan, who testified that there was never an interpreter present for his one-on-one meetings with Ruiz and that Maughan never had any impression that Ruiz did not understand him. Maughan acknowledged that an interpreter was present at one meeting between himself, another attorney in his office, and Ruiz; the interpreter had to leave halfway through the meeting, but they finished the conversation without an interpreter. Maughan stated that he and Ruiz discussed whether he actually needed an interpreter and that Ruiz never brought it up again.
Maughan further testified that he had several conversations with Ruiz about the plea negotiations in which he explained the offer to Ruiz and Ruiz instructed him to try again for a more favorable deal. Maughan also discussed with Ruiz the effects of accepting a plea offer, including potential sentences and Ruiz' right to a jury trial. According to Maughan, Ruiz had witnesses he wanted to call at trial, but Maughan understood that none of them could be located. He spoke on several occasions with Ruiz about the danger of proceeding to trial if they were not sure of the witnesses. He explained to Ruiz the benefits of what Maughan perceived as a “fairly generous plea offer,” but told Ruiz they would go to trial if he wanted to do so.
Regarding his investigation of Ruiz' named witnesses, Maughan testified that before the plea hearing he was simply trying to determine whether the case would be disposed of by plea or trial; he intended to follow up with the witnesses if the case went to trial. Maughan believed that Eaves had not been able to talk with Padgett and was unable to locate the other witnesses. Maughan testified that he went over the plea agreement and the acknowledgment of rights form with Ruiz, explaining each paragraph, and left the forms with Ruiz overnight so he could examine them further.
Maughan denied telling Ruiz how to respond at the plea hearing, other than correcting Ruiz when he pled guilty rather than no contest. Maughan believed that Ruiz understood what was happening at the plea hearing and that he entered his plea voluntarily to take advantage of the plea agreement. Maughan testified that Ruiz did not express any confusion after the plea hearing or in subsequent meetings. Ultimately, Maughan testified that it was Ruiz' decision to accept the plea offer and plead no contest.
After hearing the evidence, the district court entered an extensive ruling from the bench. The district court found that Ruiz had offered no credible evidence that Maughan's representation was deficient. The district court also found that no language issues existed to...
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