State v. Schaefer

• Decision Date: 23 December 2016
• Docket Number: No. 109,915,109,915
• Citation: 385 P.3d 918
• Parties: STATE of Kansas, Appellee, v. Tony B. SCHAEFER, Appellant.
• Court: Kansas Supreme Court

385 P.3d 918

STATE of Kansas, Appellee,

v.Tony B. SCHAEFER, Appellant.

No. 109,915

Supreme Court of Kansas.

Opinion filed December 23, 2016

Caroline M. Zuschek, of Kansas Appellate Defender Office, argued the cause, and Johnathan M. Grube, of the same office, was on the brief for appellant.

Jodi E. Litfin, assistant district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

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

Pursuant to an agreement that his attorney negotiated with the prosecutor, Tony B. Schaefer pled nolo contendere (no contest) to amended on-grid charges of rape and attempted rape. But prior to sentencing, Schaefer moved to withdraw his plea, arguing that the requisite good cause for withdrawal existed because his trial counsel had failed to advise him that his plea exposed him to possible involuntary civil commitment under the Kansas Sexually Violent Predator Act (KSVPA); his trial counsel and her law partner coerced him to accept the negotiated plea bargain; and his prescription drugs caused a faulty mental state that rendered ineffectual the colloquy with the judge at the plea hearing. Following a hearing, the district court denied the motion to withdraw plea and proceeded to sentencing. On appeal, the Court of Appeals affirmed. This court granted Schaefer's petition for review. We affirm the Court of Appeals and the district court, albeit we do not embrace all of the lower courts' reasoning.

FACTUAL AND PROCEDURAL OVERVIEW

In August 2010, the State filed a criminal complaint against Tony Schaefer, charging him with one count of rape of a child under 14 by an adult, in violation of K.S.A. 21–3502(a)(2). The State alleged that Schaefer had digitally penetrated the vagina of a friend's 13–year–old daughter and that, in an interview with the Topeka Police Department, he had admitted doing so. Schaefer moved to suppress inculpatory post-arrest statements he made, but, after a hearing, the district court denied the motion.

After the State amended the complaint to reduce the severity level of the rape count from an off-grid felony to a level 1 on-grid felony and to add an attempted rape count, Schaefer agreed to plead no contest to both counts. In his written agreement with the State, Schaefer acknowledged that his plea could subject him to sex offender registration, as well as imprisonment and postrelease supervision. The agreement did not mention the possibility of involuntary civil commitment under the KSVPA, following Schaefer's prison term. It did include Schaefer's assurance that he was not under the influence of any substances and that he was in a fit state of mind to enter the plea.

At the plea hearing, the district court conducted an extensive colloquy with Schaefer. It reviewed the changes in the amended complaint, the sentencing grid applicable to the charged offenses, the mandatory term of postrelease supervision, the potential sentences for the two counts, and the likelihood that the two sentences would run consecutive to one another. After the court observed that Schaefer had a minimal criminal history, defense counsel related that Schaefer had confirmed that he only had one prior misdemeanor and no out-of-state issues.

The court further advised, and Schaefer acknowledged, that he would be subject to sex offender registration for life. After advising Schaefer of the trial rights he would surrender by pleading no contest, the court verified that he was currently in a fit mental state notwithstanding a prior head injury. Schaefer assured the court that he had read the plea agreement and reviewed it with his counsel; that he was not being coerced into entering the plea; that the written plea agreement was the entire agreement he had with the State; and that no other promise had induced him to plead no contest to the charges. After waiving a formal reading of the complaint, Schaefer signed the written plea agreement in open court and formally entered a no contest plea to both counts of the amended complaint. The district court found a sufficient factual basis to support the plea and adjudged Schaefer guilty on both counts.

Subsequently, but before sentencing, Schaefer's then-serving appointed attorney moved to withdraw as counsel, indicating that Schaefer had told her that he wished to withdraw his plea. The reason proffered for Schaefer's plea change was his assertion that, due to a change in medication, he was unable to remember counsel explaining the sentencing elements of his no contest plea. The district court granted the attorney's withdrawal motion.

Thereafter, replacement counsel moved to allow Schaefer to withdraw his no contest plea. Schaefer asserted that his plea hearing attorney pressured him to enter into the plea agreement and rushed him through the plea process just prior to trial with no time for him to review the entire agreement. He also argued that the portion of the plea agreement waiving any direct appeal and/or collateral attack was insufficient because it failed to advise him that ineffective assistance of counsel would be a ground to seek habeas corpus relief. Finally, he contended that his plea hearing attorney had failed to advise him that, due to a prior out-of-state sexual allegation involving a minor, he was subject to civil commitment under the KSVPA.

The State responded that Schaefer's claim that his plea had been rushed was belied by the fact that it was entered 1 and 1/2 years after he was charged and after he had received advice from five different appointed attorneys. The State also pointed to Schaefer's representations to the plea hearing judge that no one had pressured him into the agreement. Additionally, the State contended that any alleged defects in the appeal waiver provision of the written plea agreement would not invalidate the plea that Schaefer proffered in open court. Finally, the State argued that treatment under the KSVPA would only be a collateral consequence of the plea, so that being advised of that potential was not a prerequisite to entering the plea.

Further, the State asserted that merely being charged with a sexually violent offense was sufficient to subject a person to KSVPA proceedings. Therefore, the State argued, because the plea did not increase Schaefer's exposure to an involuntary commitment under the KSVPA, counsel's failure to advise Schaefer of the possibility of such commitment before the plea was not prejudicial.

Both Schaefer and his plea hearing attorney testified at the plea withdrawal hearing. Schaefer said that he was rushed to make a decision because of his impending trial; that he was coerced by his attorney and her husband/law partner to abandon his desire to go to trial; that, when he entered the plea agreement, he was confused, dizzy, and experiencing difficulty connecting thoughts because of his medication for a prior traumatic brain injury (TBI); and that he was unaware that he could face indefinite civil commitment under the KSVPA based on his pleading no contest to rape of a minor.

The plea hearing attorney described her interaction with Schaefer, including her advice that Schaefer should consider a plea agreement that would eliminate off-grid sentencing. The attorney related that Schaefer had rejected the first agreement she reached with the prosecutor because the length of the recommended sentence was too long. After the attorney renegotiated the plea offer to shorten the recommended sentence by 1 year, Schaefer willingly accepted it. The attorney denied that either she or her husband had threatened Schaefer and noted that Schaefer appeared at all times to be in a right frame of mind to consider his options. With respect to the possibility of a KSVPA commitment, the attorney related that her file indicated that she had researched its applicability but that she did not believe she had discussed the KSVPA with Schaefer. She opined that she would not have felt the need to discuss the KSVPA with Schaefer because of his seeming lack of the requisite mental disorder to invoke that procedure. On the other hand, she denied making any affirmative representation to Schaefer that he would not be subject to the KSVPA.

The district court took the matter under advisement. Schaefer relied in part on Padilla v. Kentucky , 559 U.S. 356, 367–69, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), in which the United States Supreme Court held that a defense attorney's failure to advise his or her client that a conviction would lead to deportation was constitutionally deficient performance.

In a written order, the district court denied Schaefer's motion to withdraw plea, concluding that Schaefer was represented by competent counsel; that no credible evidence supported Schaefer's claim that his attorney and her husband/law partner pressured him to accept the plea agreement; that, despite any concerns about Schaefer's head injury, he had sufficient time to review and reflect on the plea agreement before entering into it; that Schaefer's plea was fairly and understandingly made; that his attorney's testimony regarding the attorney/client relationship was more credible than Schaefer's; that any errors in the appeal waiver provision of the written plea agreement did not invalidate the plea that Schaefer entered in open court; and that his attorney did not fail to advise Schaefer that his brain injury could be grounds for a diminished capacity defense.

With respect to the KSVPA issue, the district court found that the attorney had neither advised Schaefer of the possibility of involuntary commitment nor affirmatively asserted that the KSVPA did not apply to him; the KSVPA was simply not discussed between attorney and client. The district court distinguished Padilla as involving an automatic deportation for a noncitizen's drug offense convictions, whereas a KSVPA commitment was only a possibility that would require further findings. The district...