State v. Schaal

• Decision Date: 18 November 2016
• Docket Number: No. 111,513,111,513
• Citation: 383 P.3d 1284
• Parties: State of Kansas, Appellee, v. William F. Schaal, Jr., Appellant.
• Court: Kansas Supreme Court

383 P.3d 1284

State of Kansas, Appellee,
v.
William F. Schaal, Jr., Appellant.

No. 111,513

Supreme Court of Kansas.

Opinion filed November 18, 2016

Samuel Schirer, of Kansas Appellate Defender Office, was on the brief for appellant.

Sheryl L. Lidtke, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by Nuss, C.J.:

William F. Schaal, Jr., pled guilty to the crime of eluding a police officer. Before sentencing, he moved to withdraw his plea, which the district court denied. The Court of Appeals affirmed the denial. We now reverse and remand to the district court for further proceedings because it based its denial, in substantial part, on several findings that were unsupported by substantial competent evidence.

FACTS AND PROCEDURAL HISTORY

William Schaal, Jr., was charged with committing five or more moving violations while eluding a police officer in violation of K.S.A. 2012 Supp. 8–1568. In consultation with his attorney, Schaal entered into a plea agreement with the State. It agreed not to bring additional charges and to recommend the mitigated sentence of the presumptive sentencing grid block with no additional departures from the block's provisions.

Eluding a police officer under these circumstances was a level 9 person felony, and Schaal's criminal history score was E. This combination created a presumptive sentence of probation under the grid block of 9 to 11 months. K.S.A. 2012 Supp. 21–6804.

Schaal entered his guilty plea at a hearing in November 2012. Based upon Schaal's responses to its questioning, the district court determined that Schaal “voluntarily, knowingly, and understandingly” waived his rights. It accepted his plea and scheduled sentencing for January 2013.

According to later testimony of Schaal's attorney and in court comments by the prosecutor, it was not until January 2013 that they learned he was already serving probation for another crime in the county. And Schaal's attorney then told his client about the negative effect his probationary status would have on his presumptive sentence for the new crime. Specifically, a sentencing judge is authorized to forego a presumptive sentence of probation and impose a custodial sentence for a new felony offense committed while the accused is on probation. See K.S.A. 2012 Supp. 21–6604(f).

After learning he could receive a custodial sentence, Schaal hired a new attorney who filed a motion to withdraw his guilty plea. A hearing on that motion occurred in May of 2013—6 months after his plea hearing. There, Schaal testified he had understood the plea agreement to mean he would receive probation in the range of 9 to 11 months. He further testified his understanding was based on conversations with his former attorney who assured him he would receive probation.

The district court questioned Schaal and considered whether he honestly answered the questions presented to him during the plea colloquy 6 months earlier. During the court's consideration of that prior hearing, it opined on Schaal's credibility:

“THE COURT: Let me ask you a couple questions. See if you remember these.

“One of them was: Do you understand that any agreement that the pros—that they make—being your attorney and the prosecutor—is not binding on the Court; and if they were to agree to a sentence of probation, that would have absolutely no effect on me in terms of binding effect, and I could sentence you to anything that is

383 P.3d 1286

contained within the statute for this offense and for your criminal history?

“And if you would have answered no, I wouldn't have gone any further.

“Next question: Has anybody promised you anything or threatened you with anything in order to get you to plead guilty today?

“If you would have said yes, I wouldn't have gone further.

“The next question was: Has anybody promised you that you're going to get probation?

“And if you would have said yes, that would have ended it. You obviously said no.

“MR. SCHAAL: (Unintelligible)—

“THE COURT: So you're telling the Court that you lied to me on all of these answers; is that correct?

“MR. SCHAAL: I took my lawyer's advice.

“THE COURT: Okay.

“MR. SCHAAL: I—I—I said there was even on that I—

“THE COURT: Answer my question.

“MR. SCHAAL: Okay.

“THE COURT: You lied on this then ?

“MR. LAMB [defense counsel]: Judge, at this point, I'm going to advise my client to take the fifth.

“MR. SCHAAL: Okay. Okay. Thank you.

“THE COURT: Okay.” (Emphasis added.)

Contrary to the court's recollection at this plea withdrawal hearing in May 2013, it had never actually asked Schaal at the November 2012 plea hearing whether he understood that the plea agreement was not binding on the court. And contrary to the court's May recollection, it also had never actually asked Schaal at that earlier November hearing if anyone promised him probation in exchange for his plea.

The attorney who handled Schaal's plea hearing testified and denied that he had promised Schaal probation. But he did admit that Schaal's probationary status was not made clear to him or his client until sometime after Schaal had entered his guilty plea. The prosecutor admitted to similar confusion at the time.

At the close of brief arguments the court ruled from the bench. It referred to the questions it believed it asked at the plea hearing, opined again on Schaal's credibility, and denied his motion:

“We do plea petitions. I read six pages of instructions and questions at length to make sure that whoever is entering a plea is doing so, as the language of the—of the—our memorandum says, ‘voluntarily, knowingly, and understandingly.

“It was my opinion after we did this, after asking Mr. Schaal these questions , that he was

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