State v. Williams, 72835

• Decision Date: 08 March 1996
• Docket Number: No. 72835,72835
• Citation: 913 P.2d 587,259 Kan. 432
• Parties: STATE of Kansas, Appellee, v. David L. WILLIAMS, Appellant.
• Court: Kansas Supreme Court

Page 587

913 P.2d 587

259 Kan. 432

STATE of Kansas, Appellee, v. David L. WILLIAMS, Appellant.

No. 72835.

Supreme Court of Kansas.

March 8, 1996.

Syllabus by the Court

The record is examined and it is held: (1) The district court did not err in: (a) denying defendant's motion to withdraw his plea and determining that the plea was knowing and voluntary; (b) denying defendant's request for funds to hire a psychologist to present evidence in mitigation; (c) finding that defendant's counsel was effective; (d) determining that the notice requirements of K.S.A.1993 Supp. 21-4624 (the hard 40) were complied with; and (e) completing the pronouncement of sentence after defendant was removed from the courtroom for disruptive behavior; and (2) defendant was not denied the opportunity to present evidence of mitigating circumstances during a hard 40 hearing under K.S.A.1993 Supp. 21-4624.

Appeal from Sedgwick District Court; William D. Rustin, Judge. Affirmed.

Debra J. Wilson, Assistant Appellate Defender, argued the cause, and Steven R. Zinn, Deputy Appellate Defender, was with her on the brief, for appellant.

Doyle Baker, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief, for appellee.

SIX, Justice:

The primary issue is the district court's denial of David L. Williams' motion to withdraw his plea of nolo contendere. Williams pled to first-degree premeditated murder, aggravated kidnapping, rape, aggravated criminal sodomy, and other charges. Our jurisdiction is under K.S.A. 22-3601(b)(1) (Williams was convicted of first-degree murder, an off-grid crime).

Additional issues are whether the district court erred in: (a) denying Williams' request for funds to hire a psychologist to present evidence in mitigation; (b) finding that Williams' counsel was effective; (c) determining that the notice requirements of K.S.A.1993 Supp. 21-4624 (the hard 40) were complied with; and (d) completing the pronouncement of sentence after Williams was removed from the courtroom for disruptive behavior. Williams also contends he was denied an opportunity to present evidence in mitigation at the time of his sentencing.

We find no error and affirm.

FACTS

Williams was charged in a multi-count complaint alleging criminal possession of a firearm, aggravated burglary, seven counts of kidnapping, three counts of aggravated criminal sodomy, three counts of rape, and premeditated murder. On July 26, 1993, carrying a semiautomatic handgun, Williams entered the home of Mildred Adams, with whom he had a discordant common-law marriage. Later, he told the police he took the gun to Adams' home to kill her. Adams was not present. Seven persons in the home, all females or young children, were forced into the bathroom at gunpoint; one of the children was Williams' 12-year-old daughter. The girls were ordered to remove their clothes. Williams took one of the girls into the bedroom, raped her, forced her to perform oral sex, and then tied her up. Williams raped and sodomized his daughter. When Adams' teenage son arrived home, Williams tied and gagged him at gunpoint while repeatedly saying that he intended to kill Adams. Williams raped a third girl and forced her to perform oral sex. When Adams entered the house with a female friend, the friend was ordered into the bathroom. Adams struggled with Williams. He killed her by striking her repeatedly in the head with the butt of his gun and a glass lamp. The killing occurred in full view of some of the children.

Williams was on parole, having previously served 10 years in prison for convictions of rape and aggravated sodomy. The week before Adams was killed, she had obtained a protection from abuse order against Williams.

On January 20, 1994, Williams was arraigned. The prosecutor handed defense counsel and the judge copies of the notice of intent to seek the hard 40 sentence and requested that the judge accept filing of the notice with the court. The judge did accept the filing, but did not write the time and date of receipt on the notice handed to him by the prosecutor. The notice was date-stamped by the clerk of the district court on January 24, 1994.

Williams entered into a plea agreement on the day his jury trial was to commence. Williams' counsel discussed the plea agreement with him for an hour before he decided to accept it. The State agreed to drop three kidnapping charges and seek a hard 40 sentence, with the recommendation that sentences for all other crimes be served concurrent with the hard 40 sentence. Williams agreed to plead "no contest" to the remaining charges. After the judge questioned Williams at length, the district court accepted the plea and scheduled a sentencing date. The State then presented evidence of aggravating factors, including: (1) having a prior conviction for a felony (rape) in which Williams inflicted great bodily harm, disfigurement, or death; (2) knowingly or purposely killing or creating a great risk of death to multiple persons; (3) committing the offense to avoid or prevent a lawful arrest or prosecution; (4) committing the crime in an especially heinous, atrocious, or cruel manner; and (5) killing the victim because she was a witness in a criminal proceeding.

Williams, through his counsel from the Public Defender's office, offered in mitigation: (1) The crime occurred while he was under the influence of extreme mental or emotional disturbances; (2) the victim had treated him poorly in the past; (3) he killed the victim in the heat of passion rather than in cold blood; and (4) he is a good worker and has a family to support. The court determined that the aggravating factors outweighed the mitigating factors, ordered a presentence investigation (PSI) report, and scheduled sentencing for July 7, 1994.

Williams filed a pro se motion to withdraw his plea on the ground that his attorneys coerced him to enter into the plea agreement against his will. New counsel was appointed. Williams, through his new counsel, contested the sufficiency of the hard 40 notice and filed an amended motion to withdraw the plea, asserting that it was unknowing, involuntary, and the result of ineffective assistance of counsel. New counsel also filed a motion to reopen the dispositional phase of the case to present additional evidence in mitigation and to cross-examine the State's evidence of aggravating factors.

The judge denied new counsel's oral request for funds to employ a psychologist to examine Williams for purposes of presenting evidence in mitigation. At the hearing on the motion to withdraw the plea, Williams' original counsel, Jillian Waesche, and her second chair testified about informing Williams of his rights when he decided to accept the plea agreement. The district court denied Williams' motions, determining that his plea was knowing and voluntary, counsel was not ineffective, and sufficient evidence of aggravating and mitigating factors was presented.

The judge proceeded with the sentencing and gave Williams his right of allocution before imposing sentence. Williamsdeclined to make any statement. The judge indicated that the sentence recommended in the plea agreement would be imposed and began reading the sentences for the crimes to which Williams pled. At that time, Williams became verbally abusive and, after repeated warnings from the judge, was found in contempt and escorted out of the courtroom. The judge finished pronouncing sentence. The court imposed a controlling sentence of life imprisonment without parole eligibility for 40 years. Williams also received a sentence of 1 year for the contempt citation, to be served consecutively.

DISCUSSION

The Nolo Contendere Plea

Statutory guidance for accepting a nolo contendere plea is furnished by K.S.A. 22-3210, which embodies the requirements of due process set forth in Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969).

A district court has discretion to allow withdrawal of a plea for "good cause" before sentencing and to correct "manifest injustice" after sentencing. K.S.A. 22-3210(d); State v. Solomon, 257 Kan. 212, 219, 891 P.2d 407 (1995).

Our standard in reviewing a district court's ruling on a motion to withdraw a plea is abuse of discretion. State v. Morris, 254 Kan. 993, 1001, 869 P.2d 739 (1994).

Williams contends that his nolo contendere plea was not knowing or voluntary because neither his counsel nor the district court informed him that by entering the plea, he was waiving his right to have a jury determine if the hard 40 sentence should apply. The record establishes that Williams was advised by counsel that a plea of nolo contendere would result in waiver of his right to have a jury participate in the hard 40 sentencing proceeding. In addition, the right to a sentencing jury is statutory, not constitutional. A waiver on the record is not necessary, because a waiver of the right to a jury trial includes a waiver of the right to have the jury participate in the hard 40 sentencing proceeding.

K.S.A.1993 Supp. 21-4624(2) provides in part:

"The jury at the sentencing proceeding may be waived in the manner provided by K.S.A. 22-3403 [by submission of the parties with the court's consent] and amendments thereto for waiver of a trial jury. If the jury at the sentencing proceeding has been waived or the trial jury has been waived, the sentencing proceeding shall be conducted by the court." (Emphasis added.)

Once a hard 40 defendant is convicted by a jury, the right to have the jury participate in the sentencing proceeding may be waived. However, a defendant cannot waive the jury trial and then insist upon a jury for the sentencing proceeding. K.S.A.1993 Supp. 21-4624(2) is not ambiguous.

During the hearing on Williams' motion to withdraw his plea, his initial counsel, Waesche, was called to testify as to the advice she gave him at the time of the plea agreement. The...