NOT DESIGNATED FOR PUBLICATION
No. 129,045
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ANDREW PAUL MARLAR,
Appellant.
MEMORANDUM OPINION
Appeal from Leavenworth District Court; GERALD R. KUCKELMAN, judge. Submitted without oral argument. Opinion filed August 21, 2026. Affirmed.
Andrew J. McGowan, of Kansas Appellate Defender Office, for appellant.
Tyler W. Winslow, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee.
Before ARNOLD-BURGER, P.J., MALONE and PICKERING, JJ.
PER CURIAM: Andrew Paul Marlar pled guilty to a felony count of criminal damage to property and a misdemeanor count of aggravated assault on a law enforcement officer, then he moved to withdraw his plea before sentencing. Marlar appeals the district court's decision to deny his motion. Finding no error, we affirm.
FACTUAL AND PROCEDURAL HISTORY
In January 2024, the State charged Marlar with felony criminal damage to property, misdemeanor assault on a law enforcement officer, and misdemeanor
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interference with law enforcement. The charges stemmed from an incident in which Marlar allegedly fled from officers trying to serve outstanding warrants, resisted being placed in handcuffs, and attempted to bite an officer's knee. In addition, he damaged the interior of the patrol vehicle while being transported. At the time of his arrest, the district court set a $10,000 cash/surety bond. About a week later, the court appointed Anthony Russo to represent Marlar.
Over the next three months, Russo represented Marlar through the waiver of his right to a preliminary hearing and entry of a not guilty plea. During this time, the district court set a trial date for June 2024 with corresponding deadlines for pretrial motions and pretrial hearings in the month leading up to the trial date. District Judge Gerald Kuckelman presided over these hearings.
In early May 2024, Marlar sent a letter to the district court articulating that he was dissatisfied with Russo's representation in this case as well as another one. Marlar claimed Russo had not visited him in jail, had not provided access to any discovery, and was working with the prosecution against Marlar's interests. The court forwarded the letter to Russo.
Around this time, the State also filed several timely pretrial motions, including a notice of proposed exhibits, a notice of proposed witnesses, a motion to endorse witnesses, and a joint order of reciprocal discovery signed by the prosecutor and Russo.
At a hearing in mid-May 2024 set to address Marlar's request for replacement counsel and the State's pretrial motions, Judge Kuckelman began by noting the parties appeared to have reached a resolution and asked Marlar if he still wanted a new attorney. Marlar responded that he was "just trying to get this done with, to be honest," adding that he resolved his "complications . . . getting in touch with [Russo]." Marlar confirmed that he wanted to proceed with Russo representing him.
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Russo explained that Marlar had agreed to plead guilty to the charges of criminal damage to property and assault on a law enforcement officer, while the State would dismiss the interference with law enforcement charge. As for sentencing, the parties only agreed that Marlar would not object to the amount of the State's restitution request. The State explained that the restitution would likely be more than $4,000 and that "[e]verything else is open for . . . argument at sentencing." Marlar likewise confirmed that was his understanding of the agreement.
The district court then reviewed the plea agreement, which Marlar had both signed and initialed in the form of a motion to accept plea, indicating his acknowledgment of the terms. Marlar verbally confirmed that he read and understood it and that Russo had explained the terms to him. The court asked Marlar if he understood that the criminal damage to property charge was "a level 9 nonperson felony, which carries from 5 months up to 17 months with the Department of Corrections, depending upon criminal history" and that the assault on a law enforcement officer charge was "a class A misdemeanor, which carries up to one year in the county jail and up to a $2500 fine." Marlar agreed that he understood the possible penalties.
The district court judge next asked Marlar if he had "discuss[ed] all the possible consequences with [Russo]," to which Marlar said, "Some of them, I'm not su—I don't think completely all of them, no. I just—I'm not sure exactly all the punishments. It's— it's just left as an open sentence, so I don't—I don't know what exactly all the punishments could require, no." The following exchange then occurred:
"THE COURT: All right. Well, maybe we should take a moment and have your attorney explain it to you. We need to make sure you understand what you're getting into before you enter this plea.
"THE DEFENDANT: I just—like I said, I just understand that it's an open sentence. I don't know if that—that just means like it—it could be anything; right?
"THE COURT: Well, it has—
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"MR. RUSSO: Well, it's— "THE COURT: —to be within the range that I just described. "THE DEFENDANT: Okay. Within the—within the sentencing grid. "THE COURT: Yes. "THE DEFENDANT: Okay, yeah. Then I understand that, yeah."
Satisfied with Marlar's responses, the district court asked Marlar how he would like to plead, to which Marlar said he would plead guilty to the charges of criminal damage to property and assault on a law enforcement officer. The court then asked Marlar a series of questions to confirm that he was entering the plea knowingly, voluntarily, and intelligently, including that Marlar understood he was waiving his constitutional rights, had not been threatened or coerced into entering the plea, had not used any substances that affected his ability to understand the proceedings, that there was a sufficient factual basis for the charges, and that he had adequate time to confer with Russo before going forward with the plea. Satisfied with Marlar's responses, the court accepted Marlar's guilty plea and set the matter for sentencing.
The initial presentence investigation (PSI) report reflected that Marlar had a B criminal history score based on six prior person misdemeanors that were converted to two person felonies. Russo filed an objection to the PSI on Marlar's behalf, challenging the person classification for a 2023 misdemeanor conviction for third degree assault in Colorado, arguing that it should be a nonperson misdemeanor because the Colorado statutory elements were broader than the comparable Kansas offense. With that change, Marlar should have a D criminal history score. Because Russo filed the objection just before the sentencing was set to occur, Judge Kuckelman reset sentencing to occur two weeks later.
A few days before the hearing, Marlar sent a second letter to the district court articulating his dissatisfaction with Russo's representation and requesting appointment of new counsel in both this case and another unrelated case. In addition to reiterating his
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previous claims about inadequate communication, Marlar now asserted that Russo had "threatened me into taking a plea deal that was not explained or understood."
District Judge Clinton W. Lee—who was presiding in the unrelated case—took up Marlar's request at a subsequent hearing. Although Russo disputed Marlar's reasoning, he did not object to the request for replacement counsel. So, Judge Lee granted Marlar's request and appointed Joel Rook to represent Marlar going forward, resetting the sentencing for the next month.
Rook filed a formal motion on Marlar's behalf to withdraw his guilty plea, arguing there was good cause to withdraw his plea because it was not fairly and understandingly made and that he was coerced. The motion asserted that Marlar "was made aware of the plea offer on the same date that the plea took place, and that he was advised that if he did not accept the offer that day, he would go to prison," which "amounts to coercion, pressure, and threats, and that he was thereby coerced into pleading guilty or no contest, and that he had not had sufficient time to consider the offer and fully understand it." The motion did not mention Marlar's previous allegations of ineffective assistance levied toward Russo.
The State opposed allowing Marlar to withdraw his plea, contending that Marlar chose to proceed with the plea after withdrawing his previous request to replace Russo and pointed to the district court's lengthy colloquy at the plea hearing. Yet, the State conceded that Marlar's 2023 Colorado conviction for third-degree assault would be properly classified as a nonperson misdemeanor, which would in turn reduce his criminal history score from B to D.
Marlar, however, failed to appear at the hearing. Accordingly, the district court entered an order forfeiting bond and authorizing a bench warrant for his arrest. Marlar was arrested five months later on the bench warrant.
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Both Russo and Marlar testified at the evidentiary hearing on Marlar's motion to withdraw his plea. According to Russo, he met with Marlar "several times" before he entered his plea "and discussed what the nature of the plea was, what we believed the outcome would end up to be, you know, what it would require from Mr. Marlar to agree to and admit to[, and] I showed him the digital discovery several times." Based on his email notes and recalling that Marlar's plea hearing was on Friday, May 17, 2024, Russo said he met with Marlar on three occasions: first, on Thursday, May 9, 2024; second, on Monday, May 13, 2024; and lastly, on Tuesday, May 14, 2024. Russo spent those three days "going over any questions that [Marlar] had" because Marlar "wanted to discuss it, he wanted to go over just about every aspect of the plea that he could think of." Russo added that he showed Marlar the video and discussed with him "the possibilities of what the outcomes would be and going over his case." Russo also denied that Marlar was only made aware of the plea offer on the date of the plea hearing, but he acknowledged that the State sent him the plea offer several months in advance of the plea hearing.
For his part, Marlar testified that the only discussion he had with Russo about a plea offer occurred on the date of the plea hearing. Marlar said the discussion involved "no details" about the plea offer and their conversation was simply that "there was going to be a plea offer. [Russo] was waiting for the—for them to come in and he was going to let me know." Marlar added that Russo "wouldn't even help me figure out what box I was in." According to Marlar, on the day he entered the plea, he "was going through mental health problems[,] . . . was depressed, suicidal, had anxiety attacks, [and] just wanted to get this over with." Marlar added that he had not been taking his prescribed medications because he was in jail.
Marlar acknowledged he had signed the plea agreement and that the district court had reviewed it with him during the hearing. Yet, Marlar said he did not understand the rights he was waiving and believed he would not have asked the judge any clarifying questions because of his mental state at the time. Marlar agreed "it wouldn't surprise
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[him]" to learn that he had in fact asked questions about specific terms of the plea agreement he did not understand.
The district court denied Marlar's motion, explaining that from reviewing the written plea agreement, the plea colloquy, and the testimony presented at the hearing, the court "does not believe that the Defendant was misled in any way." The court noted that Marlar had declined the opportunity to confer with his counsel at the plea hearing before entering his plea. The court also assessed whether Marlar had shown good cause to withdraw his plea under the factors from State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006), explaining in regard to the first factor—"whether the Defendant was represented by competent counsel"—that "Mr. Russo has practiced law a long time and he practices in numerous courts and is very knowledgeable about the criminal law system and so the Court has no problem with the first Edgar standard."
Regarding the second Edgar factor—whether Marlar "was misled, coerced, mistreated, or unfairly taken advantage of"—the district court explained:
"[T]he Court went over the plea with him at the time and there was nothing that indicated that he was misled in any way. There was nothing to indicate he was coerced, mistreated, or unfairly taken advantage of. The Court asked him whether he had used alcohol or drugs, and he said no. The Court asked him whether he understood, and he said he did. The Court went over all of those factors. In addition, there is a written plea agreement that has all of those things listed and the Defendant signed that plea agreement, and the Court asked him whether or not he had read the agreement before he signed it, and the Defendant acknowledged he had and that he had gone over it with his attorney. So, there simply was no misleading or coercion in this case."
As for the third and final Edgar factor—whether "the plea was fairly and understandingly made"—the district court explained that from "the plea colloquy—it appears the Defendant fully understood his plea at the time. The Court did not have any
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questions whether he understood it. If the Court did, the Court would never have accepted his plea."
At a later sentencing hearing, the court imposed the standard 12-month presumptive sentence for each conviction, running the sentences consecutively for a total term of 24 months, but he suspended the sentence to the terms of an 18-month probation.
Marlar timely appealed.
ANALYSIS
The sole issue Marlar raises on appeal is whether the district court abused its discretion in denying his motion to withdraw his guilty plea. An abuse of discretion occurs if the judicial action is (1) arbitrary, fanciful, or unreasonable, i.e., no reasonable person would have taken the view adopted by the court; (2) based on an error of law, i.e., guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e., substantial competent evidence does not support an underlying factual finding. State v. Bilbrey, 317 Kan. 57, 62-63, 523 P.3d 1078 (2023). Appellate courts do not reweigh evidence or assess witness credibility and must give deference to a district court's factual findings if supported by substantial competent evidence, which is evidence that a reasonable person could accept as adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012); State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011). As the party asserting the court abused its discretion, Marlar bears the burden of showing such abuse. Bilbrey, 317 Kan. at 63.
But before we reach his specific arguments on appeal related to the withdrawal of his plea, we must determine which arguments have been preserved for appellate review and which have not.
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Marlar's argument before the district court for withdrawing his plea was based on the following two factual claims: (1) He only learned about the plea offer on the date of the plea hearing, and (2) Russo told Marlar that he would go to prison if he did not accept the plea offer. He contended only that these factual claims demonstrated good cause to withdraw his plea because "the plea was not fairly and understandingly made, and that he was coerced."
But Marlar raises several new grounds for relief on appeal that were not included in his motion or argued at the evidentiary hearing. He now asserts: (1) The plea agreement incorrectly listed assault on a law enforcement officer as a nonperson misdemeanor; (2) Russo failed to ensure that Marlar's expected criminal history was included in the plea agreement as required by the court's pretrial order; (3) neither Russo nor the court advised Marlar about the possible presumptive dispositions based on his criminal history; (4) Russo did not meet with Marlar until after a pretrial motions deadline had passed; and (5) there was no evidence presented about Russo's experience as an attorney. Marlar also argues these new factual claims, along with the ones he made before the district court, demonstrated good cause to withdraw his plea because of the inadequacy of Russo's representation.
Marlar recognizes this court's general prohibition of addressing legal theories raised for the first time on appeal—even those of constitutional dimension. State v. Gutierrez-Fuentes, 315 Kan. 341, 347, 508 P.3d 378 (2022). Yet he asserts that because he has a constitutional right to effective counsel, consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights. See State v. Williams, 275 Kan. 284, 288-89, 64 P.3d 353 (2003) (recognized preservation exception where "consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights"). Even so, this court is not obligated to review a newly raised claim even if an exception applies because an appellate court's decision to review an unpreserved claim under a recognized exception is prudential. State v. Mendez, 319
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Kan. 718, 730, 559 P.3d 792 (2024). Moreover, our Supreme Court has recently warned that when an insufficient record prevents resolving an issue raised for the first time on appeal, an appellate court abuses its discretion by invoking an exception to the general rule against doing so. State v. Unruh, 320 Kan. 260, 264-65, 565 P.3d 825 (2025). Such is the case here.
The withdrawal of a plea rests in the discretion of the court. If the request is made before sentencing, the plea may be withdrawn for good cause shown. K.S.A. 22- 3210(d)(1). In exercising its discretion, a Kansas court typically uses the list of nonexclusive factors adopted in Edgar, 281 Kan. at 36. The district court examines whether (1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understandingly made. But see Bilbrey, 317 Kan. at 62 (explaining the Edgar factors "should not be applied mechanically and to the exclusion of other factors"); State v. Aguilar, 290 Kan. 506, 512, 231 P.3d 563 (2010) (describing the Edgar factors as "viable benchmarks").
Marlar's motion to withdraw his plea was based on the following two factual claims: (1) He only learned about the plea offer on the date of the plea hearing, and (2) Russo told Marlar that he would go to prison if he did not accept the plea offer. Marlar relied on these justifications to show that he did not fairly and understandingly enter the plea and was coerced into accepting it. Because Marlar narrowed the focus of the district court's good cause inquiry to two factual claims, he is effectively asking this court to decide, unaided by any meaningful review or factual findings by the district court, if these new claims establish good cause to withdraw his plea under all three Edgar factors. The Unruh court, 320 Kan. at 264, citing State v. Allen, 314 Kan. 280, Syl. ¶ 2, 497 P.3d 566 (2021), noted that in order for the court to consider addressing an unpreserved issue, the unpreserved issue must be amenable to resolution on appeal. But "[i]t is not this court's function to review the record to determine if [defendant] established 'good cause'
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to withdraw his plea. This judgment must be first exercised by the district court." State v. Locke, 34 Kan. App. 2d 833, 836, 125 P.3d 584 (2006).
Accordingly, we will only consider the factual basis argued before the district court that Marlar's plea was not knowingly and voluntarily made because (1) he only learned about the plea offer on the date of the plea hearing, and (2) Russo told Marlar that he would go to prison if he did not accept the plea offer.
Was Marlar represented by competent counsel?
Under the first Edgar factor, a court must consider whether a criminal defendant seeking to withdraw their plea was represented by competent counsel. When, as here, the defendant makes the request before sentencing, they need only show their counsel provided "lackluster advocacy" to establish good cause to withdraw their plea. Bilbrey, 317 Kan. at 64-65.
Marlar's only complaints related to withdrawal of his plea were that he became aware of the plea offer on the date it was accepted and that Russo coerced him by stating that he would "go to prison" if he did not accept the plea offer that day. He did not argue that Russo's lackluster performance leading up to the decision to enter the plea demonstrated good cause to withdraw his plea. Although the district court judge nonetheless addressed the first Edgar factor by briefly discussing his personal knowledge of Russo's experience as an attorney, the court was simply never asked to determine whether Russo provided competent counsel under the circumstances.
Moreover, Russo's testimony from the evidentiary hearing contradicts Marlar's claim that he only became aware of the plea offer on the date he accepted it. Russo testified that he met with Marlar three times in the week leading up to the plea hearing in May 2024 to discuss the plea offer. In contrast, Marlar said they only generally discussed
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the plea offer without getting into details, which resulted in Marlar having insufficient time to consider and understand the specific terms on the date of the hearing. He also said he was experiencing mental health problems and had not been taking his prescription medications while in jail. But this court cannot reweigh evidence or assess witness credibility and must defer to a district court's factual findings that are supported by substantial competent evidence. May, 293 Kan. at 862.
As for the claim that Russo coerced Marlar into accepting the plea by stating he would "go to prison" if he did not accept the plea, there is simply no support in the record for such a statement. Again, Russo testified about meeting with Marlar multiple times before the eventual plea hearing to discuss the case. Even Marlar's testimony lends no support to Russo making such a specific threat, as Marlar only testified that they discussed "no details about the plea offer" and that Russo went through the motion to accept plea "[v]ery briefly" because "[he] said . . . he was on a short time limit." While a review of the record also shows that the May 2024 hearing was originally set in part to discuss Marlar's pro se request to replace Russo due to his alleged ineffective assistance, Marlar apparently agreed to withdraw the request because they "ended up working that out, I guess." Accordingly, even if Marlar had properly argued before the district court that Russo provided lackluster advocacy, we find he has not persuasively shown the district court abused its discretion in weighing the first Edgar factor against Marlar.
Was Marlar misled or coerced into accepting the plea?
Under the second Edgar factor, a court must consider whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of in the context of entering a plea. Bilbrey, 317 Kan. at 62. Marlar incorporates the arguments made in support of the previous factor, asserting they "apply equally well here." His claim is that he was misled, coerced, mistreated, or unfairly taken advantage of because he did not learn about the
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plea offer until the day of his plea hearing and Russo misled him by stating that he would "go to prison" if he did not accept the plea.
As explained previously, Russo and Marlar offered conflicting testimony about how many times they met to discuss the plea offer and the extent of their conversations. Just as before, this court cannot reweigh evidence or assess witness credibility and must defer to a district court's factual findings that are supported by substantial competent evidence. May, 293 Kan. at 862. And contrary to Marlar's claim, there is simply no support in the record that Russo coerced Marlar to accept the plea by stating that he would "go to prison" otherwise. We hold that Marlar has failed to show the district court abused its discretion in concluding that the second Edgar factor weighed against finding that Marlar showed good cause to withdraw his plea.
Was Marlar's plea fairly and understandingly made?
Under the third Edgar factor, a court must consider whether the plea was fairly and understandingly made. 281 Kan. at 36-37. Although Marlar does not challenge them directly, this factor correlates to the statutory and constitutional requirements for accepting a guilty plea. See K.S.A. 22-3210(a); State v. Moses, 280 Kan. 939, 945-46, 127 P.3d 330 (2006). Marlar's argument that his plea was not fairly and understandingly made is based entirely on his newly raised factual claims. He makes no meaningful attempt to challenge the district court's conclusion on this factor based on the claims set forth in his motion to withdraw his plea or from the evidence presented at the hearing, so he essentially abandons this argument. See State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021). We find Marlar has failed to show the district court abused its discretion in concluding that the third Edgar factor weighed against finding that Marlar showed good cause to withdraw his plea
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In sum, Marlar has not shown the district court abused its discretion by concluding that Marlar failed to establish good cause to withdraw his plea before being sentenced. The judgment denying his motion to withdraw his plea is affirmed.
Affirmed.