State v. Schow

• Decision Date: 12 December 2008
• Docket Number: No. 96,820.,96,820.
• Citation: 197 P.3d 825
• Parties: STATE of Kansas, Appellee, v. Clifton Lane SCHOW, Appellant.
• Court: Kansas Supreme Court

197 P.3d 825

STATE of Kansas, Appellee, v. Clifton Lane SCHOW, Appellant.

No. 96,820.

Supreme Court of Kansas.

December 12, 2008.

Reid T. Nelson, of Capital and Conflicts Appellate Defender Office, argued the cause and was on the brief for appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Paul J. Morrison, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

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

Clifton Lane Schow seeks review of the Court of Appeals' decision affirming the district court's denial of Schow's motion to withdraw his plea and affirming the district court's ruling on Schow's criminal history challenge. State v. Schow, 37 Kan.App.2d 941, 161 P.3d 222 (2007). We reverse, vacate the sentence, and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Schow was originally charged with one count each of criminal threat and violation of a protective order. He entered into a plea agreement with the State in which he agreed to plead guilty to the criminal threat count, a severity level 9 felony. In return, the State agreed to dismiss the second count and to recommend the mitigated sentence in the applicable grid box and "probation per LSIR at level of at least [residential] center if eligible under guidelines." Further, Schow's sentence was to run consecutive to a prior misdemeanor conviction on which probation had been revoked. In the preprinted plea agreement form the agreed disposition was indicated as probation, "if eligible."

At the August 5, 2005, plea hearing, defense counsel advised the court of additional discussions that had occurred during plea negotiations that had not been specifically noted in the written agreement. Schow was attempting to get his probation reinstated in the prior misdemeanor case so that he could "do both sentences at the Residential Center," i.e., serve the sentences from the prior misdemeanor and the current felony cases on probation at the Residential Center. According to defense counsel, the prosecutor on the current case had indicated a willingness to assist with Schow's efforts to get probation reinstated in the misdemeanor case. The prosecutor did not contest the accuracy of defense counsel's recitation.

Prior to accepting Schow's plea, the district court advised Schow that the minimum sentence for a level 9 felony would be 5 months and the maximum sentence would be 17 months. Further, the court advised that, unless Schow was a criminal history A or B, his sentence "would be presumptive probation ordinarily." After being advised by defense counsel that the parties believed Schow to be a criminal history D, the court stated, "If you are a D, then the sentence would be 11 months on the low side, 13 months on the high side, still presumptive probation." (Emphasis added.) The judge then clarified that he had no control over what the other judge assigned to the misdemeanor case might do. After ascertaining that Schow had been afforded time to discuss the matter with his attorney, the district judge further explained:

"THE COURT: I don't have a lot of discretion in a felony sentencing like I do in misdemeanors. So if you are a D, you are pretty much assured of 11, 12 or 13 months and getting probation initially because that will be what the sentencing guidelines tell me to do. The only fly in that ointment is that if Judge Phalen wouldn't put you on probation [in the misdemeanor case], then obviously you won't be able to do my probation. That could create some problem. And I don't know how to figure that out ahead of time."

After the foregoing recitation, defense counsel asked for time to speak with Schow to explain what the court had just said. Following that discussion, defense counsel asserted: "He understands." Schow then said, "Yes, your honor, that is fine."

Ultimately, the district court accepted Schow's guilty plea to criminal threat and dismissed the remaining count of the complaint. The court set sentencing for September 22, 2005.

A presentence investigation report (PSI) was prepared and, according to the face of the document, was submitted on September 8, 2005. The PSI reflected a criminal history category B, rather than D, because three prior person misdemeanors were aggregated and scored as a person felony.

Just prior to the sentencing hearing, Schow filed an objection to the criminal history reflected in the PSI. He specifically denied the validity of two misdemeanor domestic battery convictions out of Leon County, Florida, which were listed as items 4 and 5 on the schedule of prior convictions. The PSI indicated that the source of the information on the challenged convictions was a prior PSI, apparently from a 1997 Johnson County case. The court granted a 1-week continuance to permit the parties to retrieve a copy of the prior PSI from the archives.

At the continued hearing, defense counsel noted that there was a question as to the accuracy of the PSI, in that it reflected the occurrence dates of items 4 and 5 as 1992 and 2002, respectively, although both carried the same case number. Counsel observed that, from other information, it appeared that the discrepancy in dates might have been a typographical error. We note that the PSI in the record on appeal, showing a file date of January 20, 2006, reflects the same 1992 conviction date for both items.

Defense counsel further noted that in the prior case, the defense had not objected to the inclusion of the two Florida misdemeanors in that PSI. Apparently, Schow had no reason to object in the prior case because the misdemeanors were not aggregated and did not impact the criminal history score. Although Schow continued to maintain that he had only one domestic battery conviction in Florida, the State took the position that Schow was bound by the prior criminal history schedule; that his current criminal history was B; that the plea agreement precluded a defense motion for departure; and that the court should proceed to impose the presumptive prison sentence. Defense counsel requested leave to withdraw because she perceived that the plea agreement precluded her from moving for departure, but her client believed that a dispositional departure to probation was appropriate under the circumstances. The district court indicated that it wanted to know Schow's correct criminal history before sentencing and directed the State to obtain factual information on the Florida convictions, suggesting that the State obtain certified copies of the conviction records.

On October 27, 2005, the court reconvened the sentencing hearing. However, before the district court could pronounce sentence, defense counsel renewed her motion to withdraw. Her recitation suggests that the judge and attorneys had met in chambers and that defense counsel anticipated that the court would rule that Schow's criminal history had been fixed by the prior PSI and that he was precluded from requesting a dispositional departure by the plea agreement. The court granted defense counsel's motion to withdraw as Schow's attorney.

After the district court appointed new counsel, a hearing was held on January 5, 2006. The transcript indicates that, at some point, the district court had previously ruled that the State had satisfied its burden of proving Schow's criminal history by presenting the prior, uncontested PSI from the 1997 case. However, the court had apparently left the issue open, by permitting the defendant to present evidence that the criminal history in the prior PSI was not accurate. The court specifically said that the burden had shifted to the defendant to show that the prior criminal history schedule was not true. Defense counsel announced that she did not intend to proceed with any evidence to prove the negative that Schow did not have the two Florida convictions, but rather she would be proceeding upon the motion to withdraw plea which had been recently filed.

With respect to the motion to withdraw plea, the district court observed that it was clear to the court from the plea agreement that when the plea was entered "the parties expected probation at that point." Before announcing that the motion would be taken under advisement, the judge further opined:

"But I do see from the plea agreement that it talks about probation pursuant to the LSI-R. If the parties had known he was a B, they wouldn't have been talking about probation. I'm confident that at least at the time of the plea the parties were thinking that he was not a B and that was a surprise."

On January 17, 2006, the district judge continued his consideration of the motion to withdraw plea, ultimately denying the motion and summarizing its rationale as follows:

"So the only issue then is whether it's good cause when someone mistakenly believes they're going to get probation, pleads guilty with that understanding, and finds out later that criminal history wasn't as he expected. And I can't—I have read the Ford case. I can't see any case as close to this case in terms of what happened and consequences of what happened. And in that case, the Court of Appeals said that was not good cause. And I think I'm more or less bound by the Appellate Court decision on that even though I understand the mutual mistake aspect which was one of the criteria shown there. They're looking for more than just that here. Looking also for an assertion that the defendant actually was not guilty of the crime in addition to one of these other criteria."

The district court then proceeded immediately to sentence Schow to the mid-range grid box sentence, based on a criminal history B, and imposed the presumptive imprisonment. Schow appealed, claiming that his case was factually distinguishable from State v. Ford, 23 Kan.App.2d 248, 930 P.2d 1089 (1996), rev. denied 261 Kan. 1087 (1997), relied upon by the district court, and that it was error to relieve the State from its obligation to prove the challenged Florida...