State v. Johnson

344 P.3d 397 (Table)

STATE of Kansas, Appellee

v.Chad M. JOHNSON, Appellant.

111,550

111,551.

Court of Appeals of Kansas.

March 6, 2015.

Christina M. Kerls, Kansas Appellate Defender Office, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.

MEMORANDUM OPINION

PER CURIAM.

Chad M. Johnson appeals the trial court's denial of his motion to withdraw pleas. On appeal, Johnson argues that the trial court erred when it denied his motion because he did not understand his pleas, he was misled to accept the pleas, and he had ineffective assistance of counsel. Finding no merit in these contentions, we affirm.

In April 2007, Johnson was arrested and charged in Reno County Case No. 07CR368. The State charged Johnson with one count of possession of methamphetamine with the intent to sell, second offense; one count of possession of drug paraphernalia with the intent to use to package a controlled substance for sale; one count of criminal possession of a firearm; and one count of possession of methamphetamine without tax stamps affixed. Johnson ultimately entered into a plea agreement. Johnson agreed to plead guilty to one count of possession of methamphetamine with intent to sell, second offense, and one count of criminal possession of a firearm in exchange for the dismissal of the other charges. The prosecutor, Thomas Stanton, additionally agreed not to oppose probation.

On September 7, 2008, after pleading guilty but before sentencing, Johnson was arrested for possession of methamphetamine in Reno County Case No. 08CR790. The State initially charged Johnson with possession of methamphetamine but later amended the charge to possession of methamphetamine with intent to sell, his third offense.

On September 26, 2008, at the sentencing in 07CR368, Johnson's attorney, Donald Snapp, argued for a dispositional departure to probation. As the trial court announced Johnson's sentence, though, the following dialogue occurred:

“MR. STANTON: Judge I didn't know this, this case was attached to my, to my other case here. I don't know. The defendant apparently has been arrested, again, for possession of methamphetamine. He has a presumption of innocence but—

“THE DEFENDANT: May I?

“MR. STANTON: I didn't know that.

“MR. SNAPP: Judge, I was unaware either.

“THE DEFENDANT: I—

“THE COURT: It's probably best not to be talking about this at this time, Mr. Johnson.”

Stanton then suggested that the court take a recess to consider this new information. The trial judge decided to set sentencing over 1 week “so we don't make rash decisions and, so we can look into Mr. Johnson, with regard to Mr. Johnson's life and the community safety in regards to this case.”

On October 6, 2008, Johnson moved to withdraw his guilty plea in 07CR368. In his motion, Johnson stated that he entered the plea because the State agreed to support his departure request. He also asserted that the State “inherently violated the spirit of the plea agreement” by bringing up his recent possession of methamphetamine arrest.

After Johnson moved to withdraw his guilty plea, the court allowed Snapp to withdraw as counsel because he might be called as a witness at Johnson's motion hearing. The court then appointed Shannon Crane to represent Johnson in both 07CR368 and 08CR790. In August 2009, Johnson fled to Arizona. Johnson was arrested in Arizona and returned to Kansas in June 2010. Following Johnson's return, Crane negotiated a plea agreement with Stanton for both 07CR368 and 08CR790.

This plea agreement was not in writing. Nevertheless, Stanton stated the elements of the plea agreement on the record at Johnson's joint hearing on his request to withdraw his motion to withdraw plea in 07CR368 and his plea hearing in 08CR790. Stanton described the plea agreement as follows: if Johnson withdrew his motion to withdraw guilty plea in 07CR368 and pled no contest in 08CR790, then Stanton would dismiss an aggravated failure to appear charge, ask the court to run the 07CR368 and 08CR790 sentences concurrently, and allow Johnson to move for downward dispositional departure. While Stanton maintained that Johnson could move for a downward dispositional departure, Stanton specifically stated on the record that he would oppose the departure motion. At this hearing, both Crane and Johnson affirmed that this was their understanding of the plea agreement.

Moreover, Johnson testified that this was the entire plea agreement, no one had promised him probation, and that he wanted to withdraw his motion to withdraw plea in 07CR368 and plead no contest in 08CR790. After informing Johnson of the consequences of pleading no contest, the trial court granted Johnson's request to withdraw his motion to withdraw plea for 07CR368 and accepted his no contest plea for 08CR790. The court then set a special joint sentencing for 07CR368 and 08CR790.

At the joint sentencing in October 2010, Crane argued for a dispositional departure to probation in both cases. Stanton opposed the dispositional departure. The trial court ultimately denied the dispositional departure motion.

In 07CR368, the trial court sentenced Johnson to 68 months' imprisonment for possession of methamphetamine with intent to sell, second offense, and 8 months' imprisonment for criminal possession of a firearm. The sentencing judge ordered that the 07CR368 sentences run concurrently and for Johnson to additionally serve 36 months' postrelease supervision. In 08CR790, the trial court sentenced Johnson to 178 months' imprisonment for possession of methamphetamine with intent to sell, third offense, and 36 months' postrelease supervision. The sentencing judge ordered that the 08CR790 sentence run concurrent with the 07CR368 sentences.

Johnson then appealed his sentences under K.S.A. 21–4721(g) and (h). Our Supreme Court found no error in the sentences imposed by the trial court. State v. Johnson, No. 105,346, 2012 WL 1253216 (Kan.2012) (unpublished opinion). Following this appeal, Johnson filed a pro se motion to withdraw pleas. In the motion, Johnson alleged that he did not understand the pleas he made, that Crane made an unfulfillable promise to him to get probation, and that Crane did not sufficiently investigate his case.

The trial court held a hearing on the motion in November 2013. Both Johnson and Crane testified at the hearing. Johnson testified that Crane told him if he pled in both cases, the cases would be consolidated. According to Johnson, Crane told him that this meant he would not have a third offense of possession of methamphetamine with intent to sell and that he could get probation. Johnson testified that this is why he accepted the plea agreement and that he would have gone to trial if he knew he was not going to get probation. Johnson further explained that it was his understanding that Stanton would not oppose probation. Additionally, Johnson testified that Crane did not investigate his case or the elements of the crimes with which he was charged.

Crane testified that Stanton agreed to not oppose probation in the 07CR368 and 08CR790 cases if Johnson withdrew his motion to withdraw plea in the 07CR368 case and pled guilty in 08CR790 case. Crane testified that she believed that Stanton did not violate the plea agreement because he did not oppose the departure. She also testified that she informed Johnson about his options and possible defenses.

The trial court found that Johnson did not establish manifest injustice because he had competent counsel; he was not misled, coerced, mistreated or unfairly taken advantage of; and he understood his plea.

Did the Trial Court Err When It Denied Johnson's Motion to Withdraw Pleas?

K.S.A.2014 Supp. 22–3210(d)(2) states: “To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.” Manifest injustice exists if something is “obviously unfair or shocking to the conscience.” State v. Barahona, 35 Kan.App.2d 605, 608–609, 132 P.3d 959, rev. denied 282 Kan. 791 (2006). When considering whether a defendant established manifest injustice, the trial court will consider the Edgar factors: (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 understandingly made. State v. Lackey, 45 Kan.App.2d 257, 266, 246 P.3d 998, rev. denied 292 Kan. 968(2011).

A trial court's decision to deny a motion to withdraw plea will not be disturbed absent an abuse of discretion. State v. Green, 283 Kan. 531, 545, 153 P.3d 1216 (2007). The defendant bears the burden of establishing the abuse of discretion. Green, 283 Kan. at 545. An abuse of discretion occurs when a judicial action

“ ‘(1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.’ “ State v. Macias–Medina, 293 Kan. 833, 836, 268 P.3d 1201 (2012) (quoting State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 [2011] ).

Additionally, this court does not “reweigh evidence or assess witness credibility,” giving deference to the trial court's factual findings so long as those findings are supported by substantial competent evidence. State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011).

On appeal, Johnson makes three arguments: (1) his pleas were not understandingly made; (2) his attorney misled him into accepting his pleas; and (3) his attorney provided ineffective assistance of counsel. Despite his contentions, Johnson is unable to demonstrate that the trial court abused its discretion when it denied his motion...