State v. Moses

127 P.3d 330, 280 Kan. 939, 2006 Kan. LEXIS 15
CourtSupreme Court of Kansas
DecidedFebruary 3, 2006
Docket94,113
StatusPublished
Cited by38 cases

This text of 127 P.3d 330 (State v. Moses) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Moses, 127 P.3d 330, 280 Kan. 939, 2006 Kan. LEXIS 15 (kan 2006).

Opinions

The opinion of the court was delivered by

Nuss, J.:

In 2004, 12 years after Steve L. Moses pled guilty to first-degree murder and aggravated robbery, he filed a motion to withdraw his guilty pleas. He alleged that the district court violated K.S.A. 22-3210 (Ensley 1988) when it failed to personally advise him, and establish he understood, that by entering guilty pleas, he would be waiving certain constitutional rights. After the district [940]*940court denied the motion, Moses appealed. Our jurisdiction is pursuant to K.S.A. 22-3601(b)(1) (life sentence imposed).

The sole issue on appeal is whether the district court abused its discretion when it denied Moses’ motion to withdraw his guilty pleas. We affirm.

FACTS

The principal facts are not in dispute. In 1992, Moses was charged with first-degree murder and aggravated robbeiy for the strangulation death of his 81-year-old next door neighbor, Radar Potter. Following a preliminary hearing, Moses was bound over for trial. After the State filed notice of intent to seek the Hard 40 sentence, Moses agreed to plead guilty as charged in exchange for the State dropping its Hard 40 request.

At the November 18,1992, plea hearing, the trial court read the information aloud to Moses and then asked him to tell tire court what he had done. Moses explained that while he was high on drugs, he went next door to Potter’s house to use her phone. When the person he was trying to call did not answer the phone he got mad, grabbed Potter, and strangled her for about 30 minutes until she finally quit breathing. He then took a radio from her house and drove off in her car.

The court asked the State to provide an additional factual basis. The State replied that Moses’ common-law wife testified at the preliminary hearing that he admitted to her that he had killed the old lady next door. It also informed the court that another witness — the sister of his common-law wife — testified that she had heard Moses make statements that he saw the old lady next door with some money and he ought to hit her in the head and get her money. The State further said that blood was found on the shoes Moses was wearing at the time, and the victim had bled from her nose. The State additionally told the court that in Moses’ statement to police, he said he had done something bad. The State also proffered that the autopsy showed Ms. Potter’s death was due to strangulation.

When the court asked Moses if he disputed that the State would present that evidence, he replied, “[I]f I did go to court with it I probably would lose it. I would lose the case.”

[941]*941There was then a lengthy discussion about whether Moses understood the penalty he faced in the event the court accepted his guilty pleas.

The court then noted that a petition to enter a plea of guilty had been signed by Moses, his legal counsel, and the prosecutor. Paragraphs 7 and 8 of the petition contain the following acknowledgments:

“7. I know that I have the right to plead ‘Not Guilty’ to any offense charged against me. If I plead ‘Not Guilty,’ I know the Constitution guarantees me:
“A. The right to a speedy and public trial by a jury.
“B. At that trial, and at all stages of the proceedings, the right to the assistance of a lawyer.
“C. The right to see and hear all witnesses called to testify against me, and the right to cross-examine those witnesses.
“D. The right to use the power and process of the court to compel the production of any evidence, including the attendance of any witnesses in my favor.
“E. The right not to be compelled to incriminate myself by not taking the witness stand, and if I do not take the witness stand, no inference of guilt may be drawn from such failure.
“F. If I am convicted, I have the right to appeal to the Supreme Court of Kansas and that if I do not have the funds, the court will appoint an attorney for me and pay the costs of such appeal.
“8.1 know that if I plead ‘Guilty’ I am thereby waiving all of the above rights and that there will be no further trial of any kind, either before the court or jury; and further, I realize the court may impose the same punishment as if I had pleaded ‘Not Guilty,’ stood trial, and been convicted by a jury.” (Emphasis added.)

Before the court accepted Moses’ plea, the following colloquy occurred between the court and Moses:

“THE COURT: I think the record should reflect the petition to enter a plea of guilty has been signed by the defendant, defense counsel and also the district attorney. Mr. Moses, did you have a chance to go over this with Mr. Duma [defense counsel] before you signed it?
“THE DEFENDANT: Yes, sir.
“THE COURT: Is there anything in this document now that you don’t understand or that you got a question on?
“THE DEFENDANT: No, sir.
“THE COURT: You understand the contents of it?
“THE DEFENDANT: Yes.
“THE COURT: Is it your intent this afternoon to plead guilty to these counts I’ve asked you about?
[942]*942“THE DEFENDANT: Yes.
“THE COURT: And in pleading guilty you understand all of the circumstances that could happen to youP
“THE DEFENDANT: Yes.
“THE COURT: But it is still your desire to plead guilty because you are guilty?
“THE DEFENDANT: Yes.
“THE COURT: And what you told me is the truth of what happened?
“THE DEFENDANT: Yes.” (Emphasis added.)

The judge then accepted the plea, stating, “I’m going to consider it freely and voluntarily made.” On January 29, 1993, Moses was sentenced to life imprisonment on the first-degree murder conviction and 15 years to life on tire aggravated robbeiy conviction. The sentences were ordered to run consecutive to each other and consecutive to sentences imposed in Case Nos. 83-002 and 83-011 by die State of Arkansas on June 3, 1983, for which Moses had been on parole at the time of Potter’s death. The plea hearing was transcribed on October 29, 1993.

In 1993, Moses filed a K.S.A. 60-1507 motion which alleged ineffective assistance of counsel, involuntary plea, and illegal sentence. Counsel was appointed to represent him, the district court held a hearing, and the motion was denied by a journal entry filed April 7, 1994. In 2001, Moses submitted a motion to the district court for leave to file an out of time notice of appeal from denial of his 1507 motion. The court denied the motion, holding it did not support a finding of good cause for tire untimely appeal.

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Cite This Page — Counsel Stack

Bluebook (online)
127 P.3d 330, 280 Kan. 939, 2006 Kan. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moses-kan-2006.