State v. Solomon, 70831
| Decision Date | 10 March 1995 |
| Docket Number | No. 70831,70831 |
| Citation | 891 P.2d 407,257 Kan. 212 |
| Parties | STATE of Kansas, Appellee, v. Anthony SOLOMON, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. K.S.A. 22-3602(a) does not preclude a defendant who has pled guilty or nolo contendere from taking a direct appeal from the district court's denial of a motion to withdraw the plea. By permitting a defendant to seek withdrawal of a plea pursuant to K.S.A. 22-3210(d), the legislature implicitly permitted a defendant to appeal from such denial. Following State v. McDaniel, 255 Kan. 756, 877 P.2d 961 (1994).
2. The language in State v. Larry, 252 Kan. 92, 843 P.2d 198 (1992), in syllabus p 2 and the corresponding portion of the opinion, page 95, although correct statements of the law set forth in K.S.A. 22-3602(a), is modified as to appeals from the denial of a motion to withdraw a plea of guilty or nolo contendere filed pursuant to K.S.A. 22-3210, as set forth in State v. McDaniel, 255 Kan. 756, 877 P.2d 961 (1994), and the opinion herein.
3. Pursuant to K.S.A. 22-3210(d), the trial court before sentencing has discretion to allow withdrawal of a plea of guilty or nolo contendere "for good cause shown." After sentencing, a trial court has discretion to allow withdrawal of a plea "to correct manifest injustice."
4. When a guilty plea is entered, the defendant waives his or her privilege against self-incrimination, the right to a trial by jury, and the right to confront his or her accusers. Waiver of these rights will not be presumed on a silent record.
5. A point not raised in the trial court cannot be raised for the first time on appeal.
6. To set aside a guilty plea because ineffective assistance of counsel has rendered the plea involuntary, the 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 pled guilty and would have insisted on going to trial.
7. In considering the entry of a plea of guilty or nolo contendere, defense counsel has an obligation to advise the defendant as to the range of permissible penalties and to discuss the possible choices available to the defendant. A mere inaccurate prediction by defense counsel, however, does not constitute ineffective assistance of counsel.
8. A sentence imposed within the statutory guidelines will not be disturbed on appeal if it is within the trial court's discretion and not a result of partiality, prejudice, oppression, or corrupt motive.
Hazel Haupt, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief for appellant.
Kevin C. Fletcher, Asst. County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.
Anthony Solomon appeals from the district court's denial of his motion to withdraw his plea of no contest to one count of possession of cocaine with intent to sell within 1,000 feet of a school, in violation of K.S.A. 65-4127a, a class B felony, and from the sentence imposed. We affirm.
On October 13, 1992, Anthony Solomon was charged with possession of cocaine with intent to sell within 1,000 feet of a school, possession of cocaine without a tax stamp (K.S.A. 79-5208), and unlawful possession of a firearm (K.S.A.1992 Supp. 21-4204). Following a preliminary hearing, the defendant pled not guilty to all three charges.
On July 26, 1993, the date set for jury trial, defense counsel informed the court that the defendant wished to change his plea. After the court informed the defendant he had the right to a jury trial, he was presumed innocent, the State had the burden of proving his guilt, and he had the right to appeal from a guilty verdict, the defendant indicated he did not wish to change his plea that day. In response, the court told him the jury was waiting in the hallway and a trial would be held.
At that point, defense counsel explained that the defendant was on parole from Oklahoma and was scheduled to report to his parole officer the next week. The defendant did not want another conviction on his record, as it would probably result in the revocation of his parole in Oklahoma. Defense counsel requested that the court give the defendant the opportunity to plead, determine whether the plea was knowingly, intelligently, and voluntarily made, and then wait to make a finding of guilt until the defendant returned from Oklahoma. The court approved the request.
The prosecutor reviewed the terms of the plea agreement, which provided that, in exchange for a plea, the State would drop all charges except for possession of cocaine with intent to sell within 1,000 feet of a school and further agree not to refile charges for sale of cocaine within 1,000 feet of a school in another case. The State agreed not to request a fine but made no agreement regarding sentencing or sentence modification. When the defendant voiced some confusion over the terms of the plea agreement, the court declared a recess so the defendant could consult with his trial counsel. Following the recess, the defendant stated he understood all the terms of the agreement.
The trial court then inquired of the defendant: (1) if he had been threatened to change his plea (he had not); (2) if he had been promised anything good would happen if he changed his plea (he had been promised "nothing good"); (3) if he had been promised probation (he had not); (4) if he understood the charges (he did); and (5) if he understood the maximum penalty was life imprisonment or a $10,000 fine or both (he did). When the court asked how he wished to plead, the defendant stated, "No contest." The court also advised the defendant of the possible effect of the sentencing guidelines upon any sentence imposed.
After the State provided a factual basis for the plea, the court found that the defendant's plea was knowingly, voluntarily, and intelligently made. The court, in accordance with the defendant's request, took the matter under advisement until after the defendant returned from his parole hearing in Oklahoma. The court also ordered that the presentence investigation be commenced.
On September 3, 1993, the defendant appeared before the court for sentencing. When the court asked if there was any reason why sentence should not be imposed, neither party reminded the court that it had deferred the finding of guilt at the prior hearing.
Following allocution, the court advised the defendant that the statutes required it to consider certain factors in sentencing the defendant. The court then stated that the only factor favorable to the defendant was his age of 24. The court noted the defendant's two prior convictions for selling drugs and that the present crime was committed while the defendant was on probation or parole from the prior offenses. The court noted the defendant was not addicted to drugs and sold drugs solely to make money, and that in doing so the defendant accepted food stamps for drugs. In response to the defendant's statements that he was a young black man with six children and had to make a living, the court stated he was not a good example to his children and there were other ways for him to support himself and his family. The court noted the defendant had put himself in this position and that it had to send a message to other drug dealers that they would be punished. The court imposed the maximum sentence of 15 years to life imprisonment.
Later that day, after the sentencing hearing had concluded, defense counsel reminded the court that it had not made a finding of guilt prior to imposing sentence. Court was reconvened and, with all parties present, the court reviewed the transcript of the plea hearing proceedings. The court then formally pronounced the defendant guilty and proceeded to resentence the defendant. During the procedure the defendant advised the court he wanted to withdraw his plea because he had not understood the proceedings and had not made the plea knowingly, intelligently, and voluntarily. Lengthy arguments from counsel and statements from the defendant followed. After completing the sentencing process the court denied the defendant's oral motion to set aside the plea and again sentenced the defendant to 15 years to life. The court also directed the defendant to file a written motion to withdraw the plea. During the arguments and discussion on the defendant's attempt to orally withdraw his plea, the only issue raised was that the defendant was misled as to the sentence he would receive and that he understood he would get a minimum sentence. The defendant asserted his trial counsel had misled him and had urged him to plead rather than go to trial.
The defendant's trial counsel, Joseph L. McCarville, III, filed a written motion to withdraw the no contest plea and then was allowed to withdraw as counsel for the defendant in anticipation of being called as a witness at the hearing on the motion.
On September 14, 1993, a hearing was held on the defendant's motion to withdraw his plea. McCarville was replaced by David F. Holmes, of Hutchinson, upon the defendant's request. The defendant testified that, during the recess at the original plea hearing, he told McCarville he did not want to surrender his rights and get the maximum; McCarville expected the defendant would get minimal time and did not expect anything near the maximum; McCarville told him he would "be looking at something like a 3 to 10 tops"; and McCarville believed it would be in his best interests to plead because the other charges would be dropped and he would not have to worry about spending a lot of time in prison. The defendant asserted he changed his plea based solely on McCarville's advice.
McCarville was then called as a witness and testified that beginning in May 1993, he discussed the possibility of a plea with the defendant and had sent a copy of the State's...
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