State v. Terning

• Decision Date: 07 February 2020
• Docket Number: No. 119,904,119,904
• Parties: STATE of Kansas, Appellee, v. Aaron TERNING, Appellant.
• Court: Kansas Court of Appeals

460 P.3d 382

STATE of Kansas, Appellee,

v.Aaron TERNING, Appellant.

No. 119,904

Court of Appeals of Kansas.

Opinion filed February 7, 2020.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before Malone, P.J., Standridge and Warner, JJ.

Warner, J.:

In 2008, Aaron Terning pleaded no contest to aggravated kidnapping and rape; he was sentenced to two consecutive 165-month prison terms, plus 36 months of postrelease supervision. The parties agree that Terning should have been sentenced to a lifetime term of postrelease supervision, not the 36-month term given. Terning has now moved to withdraw his plea based on that error, claiming he would not have entered his plea if he had known he would be subject to lifetime postrelease supervision following his prison sentence. The district court denied his motion, finding Terning's plea—despite this error—was knowingly and voluntarily made. Under the unique facts of this case, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2007, Terning and Stephen Greger abducted a 14-year-old girl, R.R., from her home. R.R. was washing her brother's truck when Terning came up behind her, knocked her over, pepper-sprayed her, put a ball gag in her mouth and a hood over her head, and tasered and handcuffed her. Terning then dragged R.R. into his truck and took her to a shed at Greger's house, where the pair shackled her to a table and repeatedly raped her. The next morning, Terning and Greger took R.R. out to the woods and chained her up between several trees. Somehow, R.R. was able to escape and fled to a neighbor's house. R.R. identified Greger and Terning as the culprits.

The State initially charged Terning with aggravated kidnapping, two counts of rape, and aggravated sodomy; it later amended the complaint to include only aggravated kidnapping and rape. The State filed a motion for an upward durational departure based on the vulnerability of the 14-year-old victim and the brutality of Terning's conduct.

The morning the case was set for trial, Terning entered into a plea agreement: Terning would plead no contest to the aggravated kidnapping and rape charges; the State would withdraw its upward-departure motion but reserve the right to seek any sentence authorized by the Kansas sentencing guidelines; and Terning would reserve the right to seek a downward departure.

At the plea hearing, consistent with the terms of the plea agreement, the State withdrew its previous motion for an upward durational departure. The district court informed Terning that aggravated kidnapping and rape are severity level 1 person felonies, each carrying a possible punishment of 147 to 653 months in prison, depending on his criminal history score. The court made no mention of any term of postrelease supervision. Terning stated he understood the possible punishment and informed the court he was entering the plea freely and voluntarily. The court accepted Terning's plea. Terning was 37 years old when he entered his plea.

At sentencing, the court denied Terning's motion for a downward departure. The court again informed Terning that each of his convictions carried possible sentences of 147 to 653 months' imprisonment. Though Terning had a criminal history of I because he had no previous criminal record, the court found the grave nature of the crimes necessitated the aggravated sentences within the applicable sentencing box under the guidelines. The court thus sentenced Terning to 165 months' imprisonment for each crime, to be served consecutively, for a controlling term of 330 months (27 years and 6 months) in prison. The court also ordered 36 months of postrelease supervision.

Terning appealed, and the Kansas appellate courts summarily dismissed. But due to various procedural delays in the petition for review process, the mandate was not issued in Terning's direct appeal until May 2017.

That same month, Terning himself filed a pro se motion to correct an illegal sentence under K.S.A. 22-3504, arguing the sentencing court improperly designated aggravated kidnapping as the primary crime and thus sentenced him to an incorrect period of postrelease supervision. Terning stated that he should have received a lifetime term of postrelease supervision under K.S.A. 2018 Supp. 22-3717(d)(1)(G). (The State filed a similar motion in 2015 but withdrew it as premature pending Terning's direct appeal.) After Terning filed his motion in 2017, the State also filed a motion under K.S.A. 22-3504, agreeing that the district court should have sentenced him to lifetime postrelease supervision.

The district court appointed counsel to represent Terning, and in October 2017 Terning moved to withdraw his original plea. He argued that because "[he] was never informed of the lifetime post-release supervision period," his plea was not knowingly and voluntarily made. He also asserted he was innocent of the charges against him.

The district court held a hearing on all pending motions. Terning testified that he was not advised of the mandatory lifetime postrelease supervision before entering his plea, between his plea and sentencing, at the sentencing hearing, or in the journal entry. He stated he was unaware at that time that his plea entailed lifetime postrelease supervision; he believed the postrelease supervision period "was only going to be a couple years ... and then that would be over." Although Terning noted in his K.S.A. 22-3504 motion that lifetime postrelease supervision is the proper postrelease sanction for rape, he testified that he only learned that fact when he saw the State's motion in 2015.

The district court denied Terning's motion to withdraw his plea. The court agreed that Terning was not told about any postrelease supervision when he entered his plea and that he was told the wrong term of postrelease supervision at sentencing. But the court noted that "[s]entencing imperfections can exist if the entire record shows that the plea was made knowingly and voluntarily." The court observed that Terning was advised at his plea hearing that the maximum penalty for each charge was 653 months in prison and that he was advised in his written plea agreement that the court could order those sentences to be served consecutively. He nevertheless pleaded no contest to both charges. Thus, the court found the error regarding the postrelease term did not prejudice him. In short, "[t]he purposes of K.S.A. 22-3210(a) were fulfilled." Terning appeals.

DISCUSSION

The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects defendants in criminal cases by requiring that any plea be knowingly and voluntarily made. Brady v. United States , 397 U.S. 742, 755-56, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). As part of this protection, a court considering a defendant's plea of guilty or nolo contendere must inform the defendant of the direct consequences of his or her plea. 397 U.S. at 755-57, 90 S.Ct. 1463. And the record must affirmatively disclose that the defendant understands the potential consequences of the plea and nevertheless chooses to plead guilty or no contest. See State v. Beauclair , 281 Kan. 230, 237, 130 P.3d 40 (2006). The Kansas Supreme Court has held that postrelease supervision is a direct consequence of a plea because it is definite, automatic, and immediately follows a period of imprisonment.

State v. Moody , 282 Kan. 181, 195-96, 144 P.3d 612 (2006) ; State v. Barahona , 35 Kan. App. 2d 605, Syl. ¶ 7, 132 P.3d 959 (2006).

K.S.A. 22-3210 was enacted to ensure compliance with these elements of due process. Beauclair , 281 Kan. at 237, 130 P.3d 40 ; see also Boykin v. Alabama , 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Under this statute, a court considering a defendant's plea must determine—and the record must affirmatively disclose—that the defendant enters his or her plea voluntarily and with an understanding of its consequences. Beauclair , 281 Kan. at 237, 130 P.3d 40. K.S.A. 2018 Supp. 22-3210(a)(2) thus requires a court to inform "the defendant of the consequences of the plea, including the specific sentencing guidelines level ... and of the maximum penalty provided by law which may be imposed upon acceptance of such plea."

Any effort to withdraw a plea, once entered, is governed by K.S.A. 2018 Supp. 22-3210(d). The decision to deny a motion to withdraw a plea lies within the discretion of the district court. State v. Green , 283 Kan. 531, 545, 153 P.3d 1216 (2007). On appeal, a person challenging a district court's denial must establish that the court abused its discretion in reaching that decision. State v. DeAnda , 307 Kan. 500, 503, 411 P.3d 330 (2018). A judicial action constitutes an abuse of discretion if it is arbitrary, fanciful, or unreasonable; based on an error of law; or based on an error of fact. State v. Ingham , 308 Kan. 1466, 1469, 430 P.3d 931 (2018).

K.S.A. 2018 Supp. 22-3210(d) sets forth separate standards for evaluating a motion to withdraw a plea, depending on the timing of the motion. A court may permit a defendant to withdraw a plea "for good cause shown" at any time before he or she is sentenced. K.S.A. 2018 Supp. 22-3210(d)(1). But when a defendant moves to withdraw a plea after sentencing—as Terning has done here—a court may only permit withdrawal "[t]o correct manifest injustice." K.S.A. 2018 Supp. 22-3210(d)(2).

Manifest injustice is something "obviously unfair or shocking to the conscience." Barahona , 35 Kan. App. 2d at 608-09, 132 P.3d 959. In determining whether a defendant has established manifest injustice in a postsentence motion to withdraw a plea, courts consider the three factors set forth in State v. Fritz , 299 Kan. 153, 321 P.3d 763 (2014) : "(1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was...