State v. Garcia

283 P.3d 165, 295 Kan. 53

• Court: Supreme Court of Kansas
• Decided: August 17, 2012
• Docket: No. 102,140
• Status: Published

Opinions

Per Curiam:

Juan Garcia appeals the district court’s denial of his motion to withdraw his nolo contendere plea before sentencing. The majority of the Court of Appeals panel affirmed the denial. Garcia’s primary contention is that the district court may have relied upon State v. Ford, 23 Kan. App. 2d 248,930 P.2d 1089 (1996), whose insistence on an allegation of innocence in a presentencing plea withdrawal motion has been rejected by this court.

Garcia’s second argument—that his prior convictions were used improperly to increase his sentence because they were not proved to a jury beyond a reasonable doubt—has no merit and will not be further discussed. See State v. Bennington, 293 Kan. 503, Syl. ¶ 9, 264 P.3d 440 (2011); State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009); State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002).

Because it is unclear whether the district judge relied upon that part of Ford that has been disapproved, we reverse and remand for a new hearing to consider Garcia’s motion under the appropriate legal standard.

Factual and Procedural Background

The chronological order of events in this case and filing of decisions from our court is critical to an understanding of our ultimate holding. We therefore recite this order in some detail.

On June 18, 2008, Juan Garcia was charged with attempted second-degree murder and intentional aggravated battery. Clinton Peterson was appointed to represent Garcia and negotiated a plea bargain with the State. Under the plea agreement, the State agreed to reduce the aggravated battery charge from a severity level 4 felony to a severity level 5 felony. It also agreed to dismiss the second-degree murder charge and the charges pending in another criminal case. At a later arraignment hearing, Garcia pleaded nolo contendere to reckless aggravated battery, and the district court dismissed the other charges.

At that hearing, the district court advised Garcia of the potential minimum and maximum sentences on the reckless aggravated battery and further advised that Garcia’s actual sentence length would depend on his criminal history:

“THE COURT: . . . Mr. Garcia, without knowing your prior criminal history with the aggravated charge being a level five person felony, if you are convicted, you can be sentenced from 31 months to 136 months in the custody of the Secretary of Corrections and fined up to $300,000 depending upon your financial condition. Do you understand?

“THE DEFENDANT: Yes sir.”

The court also informed Garcia that it was not bound by any agreement between the State and his attorney:

“THE COURT: Now, you’ve heard the announcement of the plea negotiations?

“THE DEFENDANT: Yes.

“THE COURT: Has anyone promised if you enter a plea here today that you will get probation?

“THE DEFENDANT: No.

“THE COURT: You understand at the time of sentencing, the Court’s not bound by any agreement between your attorney and tire County Attorney as to what your sentence should be?

“THE DEFENDANT: Yes.

“THE COURT: You understand the Court’s left to its discretion to sentence in compliance with the Kansas Sentencing Guidelines?

“THE DEFENDANT: Yes.”

After Garcia’s plea was accepted and he was found guilty, a Pre-sentence Investigation Report (PSI) was prepared. It showed Garcia’s criminal history score was B. Garcia had expected his criminal histoiy score to be C, apparently believing that only his prior adult criminal convictions would count toward his score, i.e., he was unaware that a prior juvenile adjudication from 13 years before would be treated as a person felony. The score of B more than doubled his presumptive sentence range from 53 to 60 months to 114 to 128 months.

Garcia obtained new counsel and filed a motion to withdraw plea on November 8, 2008, arguing that holding him to his plea would be manifest injustice.

On December 12, 2008, this court filed its decision in State v. Schow, 287 Kan. 529, Syl. ¶ 3, 197 P.3d 825 (2008), which held that “[wjhere a defendant has pled guilty pursuant to a plea agreement which was based upon a mutual mistake as to defendant’s criminal history score, the district court may consider the circumstances giving rise to the mutual mistake to the extent they may implicate the factors applicable to the existence of good cause to withdraw a plea.” Schow also observed that this court’s earlier decision in State v. Vasquez, 272 Kan. 692, 696, 36 P.3d 246 (2001), had rejected the proposition that a presentencing motion to withdraw must allege innocence. 287 Kan. at 541. The Court of Appeals decision in Ford had been among the Kansas cases stating that a presentencing motion should be justified by an allegation “ ‘that defendant is not guilty of the offense charged and that the plea was made because of fraud, duress, mutual mistake, or lack of understanding of the charge and the effect of the plea.’ ” Ford, 23 Kan. App. 2d at 251 (quoting State v. Johnson, 258 Kan 607, 610-11, 907 P.2d 140 [1995]).

Garcia filed an amended motion on December 31, 2008, to correct his invocation of a manifest injustice standard applicable to postsentencing plea withdrawal to the lesser good cause standard applicable to presentencing plea withdrawal. Garcia relied on the fact that his criminal history score was higher than he expected.

Garcia’s amended motion stated that he had informed attorney Peterson that his “criminal history score was a level C, consisting of one person felony conviction and one nonperson/drug felony conviction.” The motion implies that Garcia did not inform Peterson that he had a prior juvenile adjudication: “The Defendant was under the impression that the Court was only going to look at the criminal convictions, thus leading him to believe he had only one person felony conviction and one nonperson/drug felony conviction .... The Defendant spoke with counsel about his criminal history, stating that he had two felony convictions.”

Garcia further stated that the

“focus of plea negotiations was for the duration of the prison sentence and not amending the crime or the nature of the crime .... By agreeing to the level 5 felony, the Defendant had bargained to be placed in a sentencing box with a range of [53 to 60] months .... The sole purpose of this plea was to control the box in which the Defendant fell for the purpose of sentencing.... [I]t cannot be stated nor proven that tire Defendant understood the plea that was made, especially given the nature of plea negotiations and the attempt to control where on the sentencing guidelines the Defendant would be placed as a result of the plea.”

The motion urged the district court to conclude that the plea had not been understandingly or fairly entered and that the absence of any discussion of juvenile adjudications in the time during which the plea was negotiated and accepted meant the defendant had been misled. Refusal to grant the plea withdrawal would violate Garcia’s constitutional rights.

Garcia’s amended motion did not cite to the new Schow decision or to the 2001 Vasquez decision.

The State also did not cite to Schow or Vasquez. It disputed Garcia’s allegation that the parties agreed upon a sentence between 53 and 57 months. In its response motion it stated: “No mention of the Defendant’s criminal history was made during the plea negotiations other than that it was believed the Defendant would receive approximately fifty-five (55) months in the Department of Corrections.” It requested that Garcia’s motion be denied and that, per his criminal history score of B, he be sentenced to between 114 and 128 months in prison.

At the plea withdrawal hearing on January 6, 2009, Garcia’s testimony reinforced that his main focus in the plea negotiations was the amount of time he would be serving. When he entered the plea, his understanding was that he would be facing a 53- to 60-month sentence and, although he had a prior juvenile case, he “did not know [it] was going to affect sentencing.” Garcia also said that he was misled into accepting a plea deal because he believed his criminal history score was C.

For the State, the prosecutor elaborated upon the reference to a 55-month sentence contained in his response to Garcia’s amended motion, alleging it represented only the minimum amount of time Garcia would serve:

“With regard to the negotiations of the plea, I was intimately involved in that, Your Honor. The only reason the 55 months was ever mentioned was to make sure that I was comfortable with the amount of time at a minimum, that he was going to do. It wasn’t a guarantee this is what you’re going to get, any of that. Mr. Peterson [defense counsel] came up to me and said, “We can send him for 55 months.’ I said, That sounds fine.’ There was no guarantee .... That’s the only thing that was ever discussed with regard to the quote unquote, 55 month issue.” (Emphasis added.)

In short, the prosecutor denied that there had been any meeting of the minds or agreement on Garcia’s criminal history score.

The defense nevertheless argued that, because the State wanted Garcia to serve about 55 months:

“[I]t can be [deduced] that the parties were in agreement that that’s where his criminal history score was [‘C’] .... [W]e both agree that that’s the box that we thought he was going to land in and that’s the box where he moved under, and that’s where the sentence was supposed to be.”

Defense counsel also made clear at the plea withdrawal hearing that he and Garcia were not alleging ineffective assistance of Garcia’s plea counsel:

“And I think my brief explains to tire Court that the elements that you must consider for good cause shown [to withdraw a plea] are three. And they are [1] that the defendant was represented by competent counsel. Now, in regards to Mr. Peterson, we’re not making a claim that he’s incompetent. That’s not an issue.”

The district court judge denied Garcia’s motion. He began by mentioning State v. Ford, 23 Kan. App. 2d 248. He then reviewed several factors for determining whether he should permit Garcia’s plea to be withdrawn for good cause.

“THE COURT: Well counsel, I’ve read both briefs and I’ve dealt with these motions on a number of occasions in the past. You know, one of the cases that the Court has looked at and was cited by tire State, was State v. Ford at 23 Kan. App. 2d 248. And the Court’s well aware of the issues on a motion to withdraw for good cause and the considerations of one [factor whether] the defendant was represented by competent counsel. There’s ... no dispute here. And this court is well aware of the experience and the ability of Mr. Peterson as an attorney to represent defendants in criminal matters. And this Court has no doubt about the competence of Mr. Peterson. And that’s not an issue being made here.”

The judge continued by addressing a second factor for determining whether a plea should be withdrawn for good cause:

“[THE COURT:] The second one is that the defendant was misled, coerced, mistreated or unfairly taken advantage of. I don’t know how the Court gets to those points. There is no allegation of coercion. There’s no allegation of mistreatment. And there’s no allegation that he was unfairly taken advantage of. The case law says that the defendant knows his own criminal history and is presumed to know his own criminal history. Now, the argument might be said that he was misled, because he drought he was going to get 55 months. Now, that’s his perception. The Court at the time of his plea, advised him of die minimum and maximum sentence that could be imposed on a level five felony. So, and the Court told him diat that sentence would depend upon his prior criminal history. There’s no misleading here. There may have been a misperception on his part, but die Court does not find that he was misled.”

The judge continued by addressing a third factor:

“[THE COURT:] Finally, diat the plea was fairly and understandingly made. The Court went through a long list of questions with Mr. Garcia at the tíme he entered his plea. Explained the ramifications, the rights that he was giving up. The options that he had. And again, went through the potential sentence range that he would be subjecting himself to if he entered a plea to a level five felony. The Court at the time of his plea had no knowledge whether he was an I or an A [criminal history range] or anywhere in between. All this Court knew was that Mr. Garcia was entering a plea to a level five, and that his sentencing range would depend upon his prior criminal history.

“So diis Court does not find that there was—that the plea was not fairly and understandingly made.”

After addressing these three factors, the judge continued in relevant part:

“[THE COURT:] Now, the Court will also address die questions raised in State v. Ford or the issues.

“There’s no allegation in the motion that this Court has seen, that the defendant is not guilty of the crime that he was convicted of. He—this allegation is that Mr. Garcia entered a plea. Upon entering the plea, now does not like the presentence investigation and wants to withdraw the plea, because he doesn’t like die pre-sentence investigation. That is not a basis and tiiat is not good cause. This Court asked Mr. Garcia at the time of his plea, all of the questions that are required, as tiiis Court is aware of, for the entering of a plea, so that tire Court is aware that the plea was knowingly, voluntarily, and intelligently entered with knowledge of the consequences. Mr. Garcia had knowledge of the consequences by the minimum and maximum number of months that he could be sentenced depending upon his prior criminal history, if any. The Court addressed Mr. Garcia personally, and Mr. Garcia answered the Court’s questions in the appropriate way as the record reflects. This Court, also, advised Mr. Garcia that it was not bound by any agreement.” (Emphasis added.)

The judge ultimately denied the motion:

“THE COURT: And based upon all [these] reasons, the Court finds that the motion to withdraw his plea for good cause shown is denied and fails. That he has shown no good cause, other than the fact that he is now dissatisfied with tire results of the presentence investigation, because it shows that he is a criminal history C instead of a criminal history B. It shows him as to a criminal history B instead of what he thought he would be, a criminal history score C, I’m sorry if I read it backwards. So the motion is denied.”

The judge sentenced Garcia to 128 months’ incarceration. This was the high figure in the grid box applicable to a defendant guilty of a level 5 felony with a criminal history score of B.

On appeal to the Court of Appeals, Garcia relied principally on Schow, arguing that an allegation of innocence is not necessaiy to a showing of good cause and that a mutual mistake of fact on a criminal history score can be. For its part, the State argued that the district judge’s reference to Ford did not indicate his imposition of a requirement of an allegation of innocence and that even Schow prescribed examination of three factors to determine the existence of good cause: (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 fairly and understanding^ made. See Schow, 287 Kan. at 542; State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006).

A majority of the Court of Appeals panel affirmed the motion denial, holding that Garcia had not established that the district judge based his decision on an incorrect understanding of the law. “[T]he district court did not make an innocence allegation a prerequisite to plea withdrawal.” State v. Garcia, No. 102, 140, 2010 WL 3323813, at s4 (Kan. App. 2010) (unpublished opinion). The majority held that, although the district court cited Ford, he simply made a one-sentence observation about the lack of an allegation of Garcia’s innocence. In the alternative, the majority said, the lack of an innocence allegation was appropriately included as one factor in the district court’s plea withdrawal analysis. The majority distinguished this case from Ford, because the district judge had not ruled that the absence of an innocence allegation was dispositive against the defendant.

Judge Leben dissented. His first basis was the district judge’s citation to Ford without a citation to this court’s later decision in Schow. He believed this meant the district judge “operated under a mistaken understanding of the law.” Garcia, 2010 WL 3323813, at *6 (Leben, J., dissenting).

Second, as Garcia had argued, Judge Leben believed the district judge had not followed other Schow dictates. Specifically, the court failed to consider the circumstances giving rise to the “mutual mistake” about Garcia’s criminal histoiy score and their effect on the factors contained in Edgar, 281 Kan. at 36. Rather, the court simply relied upon the standard warnings it had given before taking the plea: cautionary comments about potential máximums and about the final sentence being determined by Garcia’s full criminal history score shown in the presentence investigation report. Judge Leben would have remanded for district court consideration of the motion under the proper legal standards. Garcia, 2010 WL 3323813, at *8 (Leben, J., dissenting).

We granted Garcia’s petition for review.

Analysis

Generally, a district court’s decision to deny a motion to withdraw plea is reviewed for an abuse of discretion. State v. Freeman, 292 Kan. 24, 27, 253 P.3d 1 (2011). But Garcia alleges a particular type of abuse of discretion—application of the wrong legal standard. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011). To the extent we review whether the district court’s discretionary determination was guided by erroneous legal conclusions, we exercise unlimited review. State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 (2010).

As the party alleging abuse of discretion, Garcia bears the burden of establishing it. Schow, 287 Kan. at 541 (citing State v. Harned, 281 Kan. 1023, 1042, 135 P.3d 1169 [2006]).

Garcia primarily contends, as did Judge Leben in his dissent, that the district judge may have abused his discretion by relying upon Ford to require him to allege his innocence as a prerequisite to withdraw his guilty plea. Five years after tire Court of Appeals’ decision in Ford, we held to the contrary: “[T]his court does not require an allegation that defendant is not guilty as charged as a prerequisite for withdrawing a plea of guilty or nolo contendere prior to sentencing.” Vasquez, 272 Kan. at 696. And, more recently, in Schow, we reinforced Vasquez on this point. Garcia also endorses Judge Leben’s dissent in another respect, arguing that the district judge failed to follow Schow by considering the circumstances giving rise to a mutual mistake about Garcia’s criminal his-toiy score. Instead, Garcia asserts, the district judge relied exclusively upon the fact that Garcia received standard warnings given at plea hearings about the instability of predictions of sentencing ranges and a judge’s freedom to depart from the parties’ recommendations. Accordingly, Garcia asks that this case “be remanded for new consideration of Mr. Garcia’s presentence motion to withdraw his plea” under Schow.

As before the Court of Appeals, the State responds that the district judge merely used Ford to outline the Edgar factors and mentioned only in passing that Garcia had not asserted his innocence. The State also asserts that the district judge did follow Schow’s remaining rubric for evaluating whether a mutual mistake on Garcia’s criminal histoiy compelled withdrawal of his plea. Specifically, the judge conducted a thorough Edgar-style analysis that considered the circumstances giving rise to the purported mutual mistake. And, per Schow, Garcia had not been misled or induced unfairly to enter his nolo plea because the State had made no assurances as to his criminal histoiy. In the alternative, the State argues that any criminal histoiy mistake was not mutual, but unilateral, because Garcia would have known about his prior juvenile adjudication and failed to inform his counsel, the prosecutor, and the court until after he was confronted with its appearance in his PSI.

The parties are correct that, because Garcia filed his motion to withdraw his nolo contendere plea before sentencing, the district judge had discretion to allow him to withdraw once he had demonstrated good cause. K.S.A. 22-3210(b). Kansas courts generally consider the three “Edgar factors” when evaluating whether a defendant has presented the requisite good cause. Edgar, 281 Kan. at 36; see State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010) (citing Edgar, 281 Kan. at 36). While the Edgar factors are “viable benchmarks for judicial discretion,” they should not be mechanically applied and should not be relied on to the “exclusion of other factors.” Aguilar, 290 Kan. at 512.

On the Ford allegation-of-innocence issue, Judge Leben accurately and succinctly articulated Kansas law: “[A] trial judge may consider whether the defendant is claiming innocence—such a claim might well support good cause. What the district court can t do is require a claim of innocence to withdraw a plea.” Garcia, 2010 WL 3323813, at ⅞6 (Leben, J, dissenting).

This rule is consistent with the approach in several federal circuits, including the Tenth Circuit. See United States v. Byrum, 567 F.3d 1255 (10th Cir. 2009) (factors to consider on motions to withdraw plea before sentencing included “whether the defendant has asserted his innocence”); United States v. King, 604 F.3d 125,139 (3d Cir. 2010) (same); United States v. Carreto, 583 F.3d 152, 157 (2d Cir. 2009) (same); United States v. Rodgriguez-Leon, 402 F.3d 17, 25 (1st Cir. 2005) (same). It is also consistent with our statement in Aguilar that a district court judge may consider all relevant factors, in addition to Edgar factors. 290 Kan. at 511.

The problem here is that the district judge’s statements at the plea withdrawal hearing—including his explicit reference to Ford and his failure to mention Vasquez or Schow—lead us to the conclusion that he may have given the absence of an allegation of innocence more weight than it deserved. We acknowledge that the district judge also correctly considered the Edgar factors, a calculus in which any mutual or unilateral mistake as to Garcia’s criminal history score may have been adequately included. See Schow, 287 Kan. 529, Syl. ¶ 3. We are simply not reassured enough by the district judge’s discussion of the Edgar factors so as to discount or disregard the possibly inappropriate emphasis on Ford and the absence of an allegation of innocence. As a result, the district judge’s decision may have been guided by an erroneous legal conclusion, making the denial of Garcia’s motion an abuse of discretion. As we said in Schow, “[T]o the extent the district court refused to grant the motion to withdraw plea based upon an erroneous understanding of the law, i.e., that an allegation of innocence was a prerequisite, the ruling would be an abuse of discretion.” 287 Kan. at 541.

Given this uncertainty, we must reverse the district judge’s denial of Garcia’s motion to withdraw plea and remand for another hearing and apply the appropriate legal standards. The judge must determine under the framework discussed here whether Garcia has made his good cause showing under K.S.A. 22-3210(b) and then exercise his discretion in ruling on the motion. Given this outcome on Garcia’s first argument, we do not reach the merits of his second argument on mutual mistake.

Reversed and remanded with instructions.

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