State v. Rodriguez

494 P.3d 155

STATE of Kansas, Appellee,

v.Jose Jesus RODRIGUEZ, Appellant.

No. 122,002

Court of Appeals of Kansas.

Opinion filed July 16, 2021.

Kevin J. Zolotor, of O'Hara & O'Hara LLC, of Wichita, for appellant.

Russell Hasenbank, county attorney, and Derek Schmidt, attorney general, for appellee.

Before Malone, P.J., Warner and Hurst, JJ.

Malone, J.:

Jose Jesus Rodriguez brings this second appeal of the district court's decision denying his presentence motion to withdraw plea. Rodriguez pled no contest to abuse of a child committed in 2009, but he later filed presentence and postsentence motions to withdraw plea, all of which were denied. In the first appeal, this court affirmed the denial of Rodriguez' postsentence motions to withdraw plea, but we remanded for the district court to reconsider his presentence motion based on newly discovered evidence. State v. Rodriguez , No. 108,505, 2014 WL 1096553 (Kan. App. 2014) (unpublished opinion) ( Rodriguez I ).

By the time the mandate was issued, Rodriguez had completed his sentence and no action was taken to schedule a remand hearing for nearly four years. Rodriguez eventually moved to dismiss arguing that his constitutional due process rights had been violated because the district court did not conduct the remand hearing in a timely manner. The district court denied the motion to dismiss, held an evidentiary hearing on the presentence motion to withdraw plea, and once again denied the motion. Rodriguez appeals, arguing (1) the district court erred in denying his motion to dismiss and (2) the district court erred in denying his presentence motion to withdraw plea. Although we disagree with some of the district court's reasons for denying both motions, we find no reversible error and affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The court in Rodriguez I summarized the facts and procedural history of the case:

"On November 25, 2009, the State charged Rodriguez with one count of abuse of a child under K.S.A. 21-3609, a severity level 5 person felony. It then amended the complaint to add two more counts of abuse of a child. As part of a plea agreement, the State filed a second amended complaint with just one count of abuse of a child in exchange for Rodriguez' plea of no contest to the charge.

"On January 26, 2010, the district court arraigned Rodriguez and engaged in a colloquy with him regarding his plea. The State then provided the court with a factual basis of the evidence that it would have presented had the case gone to trial. Specifically, the State believed the evidence would have shown that Rodriguez was babysitting his 4–month–old son, J.R., on November 23, 2009, when he sent a text message to the baby's mother [F.Q.] stating: ‘ "[T]he baby is scaring me." ’ The State claimed the evidence would then show that

‘[F.Q.] left work, and found the infant in his car seat, and with his eyes rolled up and he was unresponsive. The child began seizure activity shortly thereafter, and was subsequently taken from Southwest Medical Center to Wesley Medical Center in Wichita. He was examined there by numerous physicians, including ones that diagnosed the child with bilateral retinal hemorrhages consistent with Shaken Baby Syndrome. And that it was a very strong probability of Shaken Baby Syndrome, not accidental infliction of those injuries. Those injuries would have been caused, according to medical testimony, by the intentional shaking and possible impact of J.R., date of birth ... 2009. And that did result in great bodily harm to the child, including having bore holes drilled into the skull to alleviate the pressure caused by the bleeding in the brain.’

"Based on the factual basis given by the State, the court found Rodriguez guilty. The court then scheduled sentencing for March 10, 2010, at 10 a.m.

"On March 4, 2010, Rodriguez filed a presentence motion to withdraw his no-contest plea. In support of his motion, Rodriguez argued that good cause existed to withdraw the plea because new evidence had been discovered that might exonerate him. Rodriguez affirmed that ‘he is not guilty of the charges filed against him and has a viable defense to said charges,’ noting that the evidence upon which the charges were based was circumstantial and insufficient to form the basis of a conviction against him. Along with this motion, Rodriguez submitted an affidavit from [F.Q.] stating that she had remembered a coworker at her job had thrown J.R. in the air.

"The district court considered this motion when Rodriguez appeared for sentencing on March 10, 2010. [F.Q.] testified that she was Rodriguez' girlfriend but said she was no longer involved with Rodriguez. She said she remembered Detective Bethany Keating had asked her during the interrogation whether she could remember anyone throwing J.R. up in the air. [F.Q.] testified that she was so worried about her son at the time that she did not think about it and, therefore, told Detective Keating, ‘[N]o.’ But she said she later remembered, however, that a coworker at her job had thrown J.R. in the air when he was around 2 or 3 months old, which was about a month or two before J.R. was hospitalized. [F.Q.] said the coworker threw J.R. pretty high more than once but did not drop him and she then asked the woman to stop doing it. She said her employer probably had the incident on videotape. [F.Q.] said after that incident J.R. slept a lot more than usual but did not vomit and did not refuse to eat. Unlike the later incident involving Rodriguez where J.R.'s eyes were rolling back in his head and it was very obvious to [F.Q.] that something was wrong, she did not notice any signs of anything being wrong with J.R. after the incident at work and did not seek any medical care for J.R. [F.Q.] said when she contacted Detective Keating about what she had remembered, Detective Keating ‘basically threw it off, like, it wasn't that for sure, it wasn't my [coworker] who had done this to him.’

"[F.Q.] also testified that on one occasion J.R. had fallen forward out of his car seat, which had been placed on a couch. She said he hit the front of his face on the carpeted floor but did not cry. She testified that she did not remember if J.R. acted any differently after that incident. [F.Q.] also testified that on another occasion Rodriguez tripped and fell as he walked while carrying J.R. in his car seat. She ‘figured the baby probably whiplashed’ as a result. She did not say when these incidents took place.

"The State called Detective Keating, who acknowledged that she spoke with [F.Q.] on March 1 or 2, 2010. She said [F.Q.] told her she had just remembered that a coworker had been throwing J.R. in the air when he was between 2 and 3 months old. [F.Q.] did not provide the name of the coworker. Detective Keating said she wrote down [F.Q.'s] information but did not do anything further with it. She did not interview anyone about that information, review the videotapes from [F.Q.'s] employer, or provide it to the county attorney's office. Detective Keating testified she did not interview anyone because ‘the information [F.Q.] provided was not consistent with evidence that [she] had received from the medical staff in the investigation in this case.’ Detective Keating was not a medical expert. Although Detective Keating said she had attended numerous seminars on child abuse, including shaken baby syndrome, she also said she had not received specific training on shaken baby syndrome.

"After these witnesses testified, the State told the district court that it could provide additional medical testimony if the court wanted to continue the hearing for that reason. Rodriguez' attorney similarly told the court that he thought they needed to have some sort of medical testimony regarding what type of injury can occur when a baby is thrown in the air. Nonetheless, the district court refused to continue the matter. After hearing argument from both counsel, the district judge found:

‘[T]his child had to have bore holes drilled in his head to relieve pressure from the brain swelling. These are not injuries that surfaced a month after any event. These are injuries that surfaced immediately. And there is no correlation, in my mind, from any incident that occurred with a co-worker at least a month prior to the hospitalization of this child and the injuries. Therefore, you have failed to show good cause and your motion is denied.’ "The court sentenced Rodriguez to 34 months in prison, followed by 24 months of postrelease supervision." Rodriguez I , 2014 WL 1096553, at *1-3.

Rodriguez filed two postsentence motions to withdraw plea, which were denied. Rodriguez appealed, arguing the district court erred in denying his motions to withdraw plea. This court affirmed the district court's denial of Rodriguez' postsentence motions to withdraw plea. 2014 WL 1096553, at *12. But the majority held the district court abused its discretion in denying Rodriguez' presentence motion to withdraw plea. 2014 WL 1096553, at *7. The majority determined that the district court's factual findings that J.R.'s injuries could not have occurred as F.Q. described were not supported by any medical evidence, and the district court had based its decision on the judge's personal opinions. 2014 WL 1096553, at *5-7. The majority reversed the district court's decision to deny the presentence motion to withdraw plea and remanded for the district court to decide "whether the newly discovered evidence produced by Rodriguez is good cause to justify granting his motion to withdraw plea and to make findings of fact and conclusions of law supported by substantial competent evidence to justify it[s] decision." 2014 WL 1096553, at *12.

The district court received the mandate on April 30, 2014. There was no activity in the case except for attempts to collect restitution from Rodriguez. Almost four years later, on April 6, 2018, Rodriguez moved to dismiss, arguing that his "constitutional due process rights" had...