State v. Shaw

• Decision Date: 26 January 1996
• Docket Number: No. 71,257,71,257
• Citation: 910 P.2d 809,259 Kan. 3
• Parties: STATE of Kansas, Appellee, v. James Allen SHAW, Sr., Appellant.
• Court: Kansas Supreme Court

Page 809

910 P.2d 809

259 Kan. 3

STATE of Kansas, Appellee, v. James Allen SHAW, Sr., Appellant.

No. 71,257.

Supreme Court of Kansas.

Jan. 26, 1996.

Syllabus by the Court

1. K.S.A. 22-3210(a) allows the trial court to accept a plea of guilty or nolo contendere when, among other requirements, the court is satisfied that there is a factual basis for the plea. In determining the factual basis for the plea, the trial court must establish that all elements of the crime charged are present.

2. K.S.A. 22-3210(d) permits a trial court to set aside a judgment of conviction and allow a defendant to withdraw his or her plea after sentencing to correct manifest injustice. The decision to deny a motion to withdraw a plea lies within the sound discretion of the trial court, and the court's decision will not be disturbed on appeal absent a showing that the court abused that discretion.

3. A constitutional or statutory protection afforded a criminal defendant may be waived by the defendant when done so freely and voluntarily with full knowledge of the possible consequences.

4. K.S.A. 22-3210 sets out the statutory guidelines for the acceptance of a plea of guilty or nolo contendere. Failure to comply strictly with the explicit requirements of that statute may be reversible error unless, upon 5. The purpose of K.S.A. 22-3210(a) is to require the trial court to satisfy itself that the defendant's plea is made voluntarily and understandingly; to be so made, the record must show that the defendant fully understood his or her rights and was aware of the factual basis and consequences of his or her plea.

review of the entire record, it can be determined that a plea was knowingly and voluntarily made and otherwise accepted by the trial judge in compliance with the statute.

6. A factual basis for a plea may be satisfied by a complaint or information given or read to the defendant which sets forth the factual details and essential elements of the particular crime charged, by the evidence presented to the court by the prosecutor, by a statement of the facts made by the defendant at the hearing, or if the judge accepting the defendant's plea conducted the defendant's preliminary examination.

7. In a proceeding under K.S.A. 22-3210(d), where the record reflects that the defendant entered a plea of guilty but was incorrectly informed of the maximum penalty provided by law, the conviction must be reversed and the defendant allowed to withdraw his or her plea.

Review of the judgment of the Court of Appeals in 21 Kan.App.2d 460, 901 P.2d 49 (1995). Appeal from Reno district court; STEVEN R. BECKER, judge. Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed, and the case is remanded for further proceedings.

Kerry J. Granger, of Hutchinson, argued the cause, and Richard J. Rome, of Hutchinson, was on the brief for appellant.

Timothy J. Chambers, County Attorney, argued the cause, and Keith E. Schroeder, Assistant County Attorney, and Carla J. Stovall, Attorney General, were with him on the brief for appellee.

LOCKETT, Justice:

Defendant pleaded nolo contendere to aggravated indecent liberties with a child. He appealed the trial court's denial of his post-sentencing motion to withdraw his plea, claiming the trial court erred (1) in failing to allow the appellant to withdraw his plea of nolo contendere and in failing to find the existence of manifest injustice and (2) by informing him of and in imposing an incorrect sentence. Without determining the issues raised in the appeal the Court of Appeals reversed and remanded because there was no factual basis stated in the record for the district judge to accept defendant's plea as required by K.S.A. 22-3210(a)(4), an issue raised by the court sua sponte. State v. Shaw, 21 Kan.App.2d 460, 901 P.2d 49 (1995). This court granted the State's petition for review.

James Allen Shaw, Sr., was charged with aggravated indecent liberties with a child contrary to K.S.A.1993 Supp. 21-3504(a)(3)(A). A violation of K.S.A.1993 Supp. 21-3504(a)(3)(A) is a severity level 3 person felony. K.S.A.1993 Supp. 21-3504(c). The complaint incorrectly classified the offense as a severity level 4 person felony.

On December 1, 1993, at the preliminary examination, the trial court informed Shaw that he was charged in the complaint with a single count: aggravated indecent liberties with a child. The court, relying on the complaint, informed Shaw that the offense charged was classified for sentencing purposes as a severity level 4 felony, which carries a sentencing range of 38 to 86 months of imprisonment, and that Shaw's specific sentence within that range would be determined by his prior criminal history. Based upon the facts stated in the complaint, Shaw waived his right to a preliminary examination. Shaw was immediately arraigned. After being informed of and waiving his constitutional rights, Shaw entered a plea of nolo contendere to the charge. The following exchange occurred:

"THE COURT: ... I will find that you have voluntarily, knowingly, understandingly, and intelligently waived your constitutional rights, and that you understand the nature of the charge, and the consequences of your plea. That plea is therefore accepted. We need to establish a factual basis [of the crime]. Mr. Fletcher [counsel for the State], I am assuming you do not have the file, nor is it your case?

"MR. FLETCHER: I don't think Mr. Galloway's [Shaw's counsel] client would have problems to stipulating to the facts.

"MR. GALLOWAY: We stipulate there is a factual basis for the finding, your Honor.

"THE COURT: Based upon that stipulation and the defendant's plea of no contest, I will make a finding of guilty of Aggravated Indecent Liberties with a Child."

At the sentencing hearing, the trial court noted that the presentence investigation report stated that the crime severity level was "4" and that Shaw had no criminal history, placing him in category "I". Shaw had requested a dispositional departure of the sentence. After observing that the presumptive sentence for a severity level 4 crime was a range of 38 to 43 months, the judge denied the request for a dispositional departure and sentenced Shaw to the mid-range sentence of 41 months' imprisonment. Shaw's crime of conviction was actually a severity level 3 crime with a presumptive sentence for criminal history category "I" of 46 to 51 months and a mid-range sentence of 49 months. See K.S.A.1993 Supp. 21-4704(a).

Shortly after sentencing, Shaw filed a motion to withdraw his plea, alleging ineffective assistance of counsel and due process violations. See K.S.A. 22-3210(d). The sentencing judge denied the motion to set aside the plea. Shaw timely appealed the denial of his motion to withdraw his plea.

Shaw argued to the Court of Appeals that withdrawal of his plea was necessary because (1) he received ineffective assistance of counsel and (2) he was informed of an incorrect severity level and sentencing range. Ignoring these arguments, the Court of Appeals reviewed the record and sua sponte found that the plea-taking process was fatally flawed because there was no factual basis for Shaw's conviction. In setting aside Shaw's plea, the Court of Appeals stated:

"K.S.A. 22-3210(a)(4) provides in relevant part that before or during trial a pleaof guilty or nolo contendere may be accepted when 'the court is satisfied that there is a factual basis for the plea.'

"Defendant waived the preliminary hearing and, during the arraignment, orally stipulated to a factual basis for the plea. However, not even a cursory recitation of the facts appears in the record. In Widener v. State, 210 Kan. 234, 237, 499 P.2d 1123 (1972), the Kansas Supreme Court found:

'Notwithstanding the express desire of the accused to enter a plea of guilty in a felony case, the court should not enter a judgment upon such a plea without personally making such inquiry of the accused as may satisfy it that there is a factual basis for the plea.'

"The problem in this case is not with stipulations in general. See White v. State, 222 Kan. 709, 713, 568 P.2d 112 (1977). The problem is that this particular stipulation did not recite or refer to any of the facts constituting a factual basis. It was nothing more than a bald statement by defense counsel that '[w]e stipulate there is a factual basis.'

"At oral argument we inquired of counsel concerning this apparent major departure from the statutory process. No satisfactory explanation could be made.

"K.S.A. 22-3210 embodies due process requirements as set out by the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709 (1969), and other United States and Kansas Supreme Court cases. Noble v. State, 240 Kan. 162, 163-64, 727 P.2d 473 (1986).

"The provisions of K.S.A. 22-3210(a)(4) are not onerous, but require some attention to detail. As stated in Noble: 'To assure compliance with [K.S.A. 22-3210] a trial judge would be well advised to follow a written checklist prior to the acceptance of a plea of guilty or nolo contendere in a criminal case.' 240 Kan. 162, Syl. p 2, 727 P.2d 473.

"Under K.S.A. 22-3210(a)(4), only a brief recitation of the necessary facts is required, but that at least must be done. Such a requirement may not be waived, as this would defeat the purpose of the statutory provision, i.e., to assure there is a judicially determined factual basis for the "Under these facts, where defendant waived a preliminary hearing and entered a plea of nolo contendere stating that he stipulated to an unspecified factual basis, the record contains insufficient evidence for the district court to have concluded that a factual basis existed to support the plea. We need not reach the other issues raised by defendant." Shaw, 21 Kan.App.2d at 464-65, 901 P.2d 49.

plea. This is particularly important in this case, where the preliminary hearing was waived and a...