State v. Shears, 74579
| Decision Date | 25 October 1996 |
| Docket Number | No. 74579,74579 |
| Citation | 925 P.2d 1136,260 Kan. 823 |
| Parties | STATE of Kansas, Appellee, v. Johnnie C. SHEARS, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. K.S.A. 22-3210 sets forth the procedures for acceptance and withdrawal of guilty or nolo contendere pleas. The appropriate standard of review is whether the district court abused its discretion in refusing to allow withdrawal of the plea. The defendant bears the burden of showing such abuse.
2. To set aside a guilty or nolo contendere plea because ineffective assistance of counsel has rendered the plea involuntary, a defendant must show that counsel's performance fell below the standard of reasonableness and that there is a reasonable probability that but for counsel's errors, the defendant would not have pleaded either guilty or nolo contendere and would have insisted on going to trial.
3. The defendant must overcome a presumption that counsel's assistance was reasonable.
4. Before or during trial a plea of guilty or nolo contendere may be accepted when the courtis satisfied that there is a factual basis for the plea. K.S.A. 22-3210(a)(4). The trial court must establish that all elements of the crime charged are present.
5. When a prosecutor presents evidence to the court that shows all elements of the crime charged are present, a factual basis for a plea has been reached.
6. Premeditation can be established by circumstantial evidence.
7. An issue which is not briefed is deemed abandoned.
8. When constitutional grounds are asserted for the first time on appeal, they are not properly before us for review.
9. The record is reviewed in this first-degree premeditated murder, rape, and aggravated robbery case, and it is held: (1) The district court did not abuse its discretion in denying defendant's motion to withdraw his pleas, (2) defendant did not overcome the presumption that the representation by his counsel was reasonable, (3) the evidence described by the State was sufficient to establish a factual basis for premeditated first-degree murder, and (4) the district court did not err (a) in sentencing and (b) in accepting evidence of defendant's prior adjudications as a juvenile offender to calculate defendant's criminal history score.
Hazel Haupt, Assistant Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief, for appellant.
James A. Brown, Assistant District Attorney, argued the cause, and Joan M. Hamilton, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief, for appellee.
Before sentencing, defendant Johnnie C. Shears moved to withdraw his no contest pleas to first-degree premeditated murder, rape, and aggravated robbery. After new counsel was appointed to represent Shears, the district court heard and denied the motion.
The primary issue is whether the district court abused its discretion in denying Shears' motion. Additional issues are whether: (a) Shears' no contest plea to premeditated first-degree murder should be set aside because the factual basis provided failed to establish the elements of that offense; and (b) the district court erred (1) when it used Shears' pleaded-to convictions to enhance his criminal history score and (2) in accepting Shears' prior adjudications as a juvenile offender to calculate his criminal history score.
Our jurisdiction is under K.S.A. 22-3601(b)(1) (). We find no error and affirm.
Shears was charged with premeditated first-degree murder, K.S.A. 21-3401, an alternative count of felony murder, and attempted aggravated robbery, all arising from Shears' killing of David Cook on December 7, 1994 (the murder case). After the preliminary hearing, the State served notice of its intent to seek a hard 40 sentence.
Shears was also charged with: (1) rape, K.S.A. 21-3502, and aggravated battery, K.S.A. 21-3414, arising from an incident on September 27, 1994, at a Motel 6 (the rape case), and (2) aggravated robbery, K.S.A. 21-3427, because of a robbery of Little Caesar's on December 5, 1994 (the robbery case).
Retained counsel Thomas Lietz entered appearances on behalf of Shears in all three cases. At the time of the offenses, Shears was 17 years of age and on probation for three prior juvenile adjudications.
In a January 31, 1995, letter to Lietz, David Debenham, Assistant District Attorney, memorialized the State's plea agreement proposal for the murder and rape cases. Shears would enter a plea of guilty to: (1) premeditated first-degree murder (the State would dismiss the attempted aggravated robbery charge and agree not to seek the hard 40 sentence), and (2) rape (the State would dismiss the aggravated battery charge). In a February 6, 1995, letter, Debenham offered that if Shears would plead in the robbery case, the State would not oppose a sentence concurrent to any sentence imposed in the murder and rape cases.
Shortly after receiving the letters, Lietz reviewed them with Shears, discussing the terms of the proposed plea bargain. However, Shears claims not to have read the letters.
The State followed through with its agreed concessions and further agreed not to seek an upward departure in the robbery case.
Before the plea hearing, District Judge James P. Buchele informed Lietz that he (Judge Buchele) had received a letter from Shears expressing dissatisfaction with Lietz. Lietz talked with Shears, Shears' mother, and Shears' grandparents. Lietz thought they had worked everything out.
The facts of the murder case were provided to District Judge Fred Jackson by the State during the plea hearing. Because Shears limits his claim of an inadequate factual basis to the premeditation elements in the murder case, we need not set out the facts of the rape and robbery cases.
At the beginning of the hearing, the State informed the judge of the terms of the plea agreement and made it clear that there was no agreement concerning departure in the rape case. Lietz agreed that the terms were correctly stated. The judge then asked Shears if he had had enough time to discuss the case with his attorney. Shears said that he did not understand what was said, because he understood there would be no departure. After the judge gave Shears some time to discuss the matter with his attorney, the State agreed not to seek an upward departure. The judge asked if Shears understood what was going on and if the State's statements concerning the plea negotiations agreed with Shears' understanding, and Shears said, "Yes."
The judge asked Shears if he understood the charges in the three cases and repeated those charges to Shears. The following discussion took place:
(Conference with counsel).
(Conference with counsel).
Shears waived formal reading of the charges.
The judge asked Shears if he understood the possible penalties for the charges, and Shears responded, "Not all of them." Shears was given additional time. The judge asked Lietz if he had explained the possible penalties and Shears' rights to Shears. Lietz stated they had gone through it three more times. The judge asked Lietz to state for the record his advice to Shears concerning the penalties. Lietz said:
The State added:
Shears responded "Yes" to the judge's inquiry whether he understood the range of possible penalties. In response to the judge's question, Shears also indicated he understood that his sentence would depend in large part on his criminal history and the results of a presentence investigation, and that his sentences in the cases could be ordered to be served consecutively or concurrently.
The State then orally presented the facts in the three cases. Before accepting Shears' pleas of no contest, the judge asked if there was any reason that Shears knew of why he should not enter a plea, and Shears responded, "No."
On February 10, 1995, Carol Williams, a court services officer, visited Shears as part of the presentence investigation. Shears had a copy of a newspaper article about his plea and a piece of paper with some numbers written on it which he showed to Williams. Shears asked Williams if the newspaper article indicating Shears was going to get 25 years was true, and Williams said that was "pretty realistic." Shears claimed that Lietz had told him something else. Williams described the paper as having two columns of numbers, one under "good" and the other under "bad." At the bottom of "good" was circled the number 9 1/2, and at the bottom of "bad" was circled the number 70 or 72. According to Shears, Lietz wrote down the different crimes, felony murder,...
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