In the Interest of P.L.B.

190 P.3d 274, 40 Kan. App. 2d 182
CourtCourt of Appeals of Kansas
DecidedAugust 22, 2008
DocketNo. 99,429
StatusPublished
Cited by2 cases

This text of 190 P.3d 274 (In the Interest of P.L.B.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of P.L.B., 190 P.3d 274, 40 Kan. App. 2d 182 (kanctapp 2008).

Opinion

Green, J.:

P.L.B. appeals from a judgment of the trial court denying his motion to withdraw his plea and to set aside his juvenile adjudication for aggravated indecent liberties with a child. On appeal, the State challenges our jurisdiction to consider this issue. Nevertheless, we determine that we have jurisdiction over this matter. Meanwhile, P.L.B. argues that the trial court abused its discretion in denying his motion to withdraw his plea and to set aside his conviction. We agree. Accordingly, we reverse the juvenile adjudication, vacate the plea, and remand for further proceedings.

On June 21, 2006, the State charged P.L.B. in Shawnee County District Court, Juvenile Law Division, with one count of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A) (Furse). On June 30, 2006, counsel entered an appearance on behalf of P.L.B.

On July 25,2006, the trial court held a plea hearing. The hearing included the following colloquy:

[COURT]: You have a right to a trial. And if you exercise that right, the State would have to prove this charge against you, do you understand? Beyond a reasonable doubt.
"[P.L.B.]: Yes, sir, I know.
“[COURT]: You would not be required to present any evidence. The burden would be on the State and it would never shift. Do you understand that?
“[P.L.B.]: Yes, sir.
“[COURT]: In other words, all you would have to do is show up. You wouldn’t have to come with any witnesses, any evidence, anything, because you’re presumed to be innocent. It would be the State that would have to prove the case against you. Do you understand?
Yes, sir. [P.L.B.]:
[184]*184“[COURT]: All right. However, you could present evidence if you chose to do so. Do you understand that?
“[P.L.B.]: Yes, sir.
“[COURT]: And that evidence could include your taking the stand to testify on your own be — behalf. Do you understand?
1P.L.B.]: Yes, I do.
‘[COURT]: You could also have witnesses brought in here to testify for you. And if they refused to cooperate, I could issue subpoenas and get them in here. Do you understand?
“[P.L.B.]: Yes, sir.
“[COURT]: Throughout this entire trial process, if you cannot afford a lawyer, this Court would appoint a lawyer to malee sure you were ably represented. Do you understand that?
‘[P.L.B.]: Yes, sir.
“[COURT]: If at the end of the trial you and your lawyer did not like the outcome, you could appeal that outcome to a higher court. Do you understand?
Yes, sir. “[P.L.B.]:
Has anyone threatened you to get you to enter a plea today? “[COURT]:
No, sir. “[P.L.B.]:
Have you been promised anything if you plead today? “[COURT]:
“[COUNSEL FOR P.L.B.]: Judge, he understands what the agreement is, but we’ve discussed that you’re not going to be bound by any sentencing in this matter.
“[COURT]: All right. You understand that the final disposition of this matter will be up to me?
“[P.L.B.]: Yes, sir.
“[COURT]: Now if you’re entering a plea because you are guessing as to what this Court would do when it comes to sentencing, don’t enter the plea. Do you understand that?
“[P.L.B.]: Yes, sir.
“[COURT]: You understand this is a serious offense here?
“[P.L.B.]: Yes, sir.”

After the State presented the factual basis, P.L.B. pled no contest to the charge of aggravated indecent liberties in violation of K.S.A. 21-3504(a)(3)(A) (Furse). The trial court found the plea knowingly, voluntarily, and intelligently made and found P.L.B. to be a Violent Offender II as defined by K.S.A. 38-1601 et seq.

The trial court and the parties then discussed P.L.B’s placement in a treatment program at Marillac. At the conclusion of the hearing, the trial court placed P.L.B. in the temporary custody of the [185]*185juvenile justice authority, “with the understanding that placement is to be sought immediately for him in the Marillac program.” The court ordered that sentence be imposed upon the completion of the Marillac program.

At sentencing on April 17, 2007, the trial court determined that P.L.B. had completed the Marillac sex offender program, then sentenced P.L.B. to commitment in a juvenile correctional facility for 24 months with 12 months’ aftercare. The court further ordered P.L.B. to register as a sex offender, including the posting of his photograph on the Internet/KBI website, to complete DNA registration and pay the accompanying fee, and to pay court costs of $25.

On May 23, 2007, P.L.B. moved to modify sentence. P.L.B. expressed concern that the sentence imposed would cause any progress made during his treatment to be lost. Moreover, he asked the trial court to allow him to complete an independent living program, to place him on probation, and to allow him to follow through with his counseling, therapy, and medication. P.L.B. attached numerous treatment documents to his motion. Although there is no journal entry in the record, the appearance docket reflects that this motion was denied after a hearing on August 15, 2007.

On May 31, 2007, P.L.B.’s original counsel moved to withdraw, which motion was granted by the trial court. On June 4, 2007, new counsel filed an appearance on behalf of P.L.B.

On August 28, 2007, P.L.B. moved to withdraw his plea and to set aside his conviction. P.L.B. asserted that the plea was entered without the trial court informing him of the presumption of innocence or the sentencing alternatives available for a juvenile offender, as required by K.S.A. 2007 Supp. 38-2344(b) and (c). P.L.B. argued that this failure prevented him from entering a knowing, voluntary, and intelligent plea, thereby depriving him of his constitutional rights and constituting reversible error.

The State filed a response to the motion on September 12, 2007, pointing out that the plea hearing transcript reflected that P.L.B. had been informed of the presumption of innocence. The State also suggested that P.L.B. and his counsel left little doubt at the [186]*186plea hearing that P.L.B. understood the sentencing options available to the court.

The parties presented their arguments at a hearing on September 27, 2007. At the conclusion of the hearing, the trial judge recited the colloquy he had held with P.L.B. at the plea hearing regarding his rights and concluded:

“I am satisfied that this young man was made aware of his rights as the law requires.

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190 P.3d 274 (Court of Appeals of Kansas, 2008)

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Bluebook (online)
190 P.3d 274, 40 Kan. App. 2d 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-plb-kanctapp-2008.