State v. Aguilar

1
IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 95,249

STATE OF KANSAS,
Appellee,

v.

SHANNON R. AGUILAR,
Appellant.


SYLLABUS BY THE COURT


1.
The competence of plea counsel is one factor to consider on a presentence K.S.A.
22-3210(d) motion to withdraw plea, but a defendant is not required to show ineffective
assistance rising to the level of a violation of the Sixth Amendment to demonstrate good
cause under the statute.

2.
A district judge's failure to apply the correct legal standard under K.S.A. 22-
3210(d) in a plea withdrawal hearing is an abuse of discretion.

3.
Under the particularly egregious facts of this case, in which a conflict of interest
between the defendant and her codefendant was insurmountable, and the record reveals no
sufficient disclosure by counsel and waiver by the client, the defendant met her
presentence K.S.A. 22-3210(d) burden to show good cause to withdraw her plea.

2
Review of the judgment of the Court of Appeals in an unpublished decision filed February 16,
2007. Appeal from the Wyandotte District Court; ROBERT L. SERRA, judge. Judgment of the Court of
Appeals affirming the district court is reversed. The judgment of the district court is reversed, and the case
is remanded. Opinion filed May 21, 2010.

Carl A. Folsom, III, of Kansas Appellate Defender Office, argued the cause and was on the brief
for the appellant.

Christopher L. Schneider, assistant district attorney, argued the cause, and Jerome A. Gorman,
district attorney, and Phill Kline, former attorney general, were with him on the brief for appellee.

Per Curiam: Shannon Aguilar pleaded guilty to possession of cocaine in a
constructive possession case. Before sentencing, she moved to withdraw her plea. She
claimed, among other things, that her counsel had a conflict of interest because of his
concurrent representation of Aguilar's codefendant. The trial court denied her motion, and
the Court of Appeals affirmed. State v. Aguilar, 95,249 unpublished opinion filed
February 16, 2007. This court granted Aguilar's petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

Police in Kansas City, Kansas, pulled over a vehicle for the driver's failure to use a
turn signal. The driver was Leona Ayalla; Aguilar was the only passenger. Ayalla was a
close family friend whom Aguilar referred to as her "aunt." During the stop, the officers
learned of an outstanding warrant for each woman and arrested both. An inventory search
of the vehicle revealed three baggies of cocaine under Aguilar's passenger seat. While
searching Ayalla, police found an additional two bags of cocaine and two bags of crystal
methamphetamine inside her bra.

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Ayalla was charged with possession of cocaine, possession of methamphetamine,
and possession of a controlled substance without a tax stamp. Aguilar was charged only
with possession of cocaine.

Both women retained Jeff Carlin as defense counsel. Carlin gave them a "deal,"
agreeing to handle both clients' criminal cases for $1,500 total if they both pleaded guilty,
and for $3,000 total if they chose to go to trial. Three days before Aguilar entered her plea,
Carlin filed a motion to withdraw from his representation of Aguilar. According to the
motion, Aguilar had failed to pay the agreed attorney fees, which made it "impossible for
movant to zealously represent Defendant as is ethically required of an attorney licensed to
practice law in the State of Kansas."

Despite this motion, Carlin represented both women at their joint plea hearing 3
days later. There, Ayalla pleaded guilty to one count of possession of cocaine; the State
dismissed all of the other charges against her. Aguilar also pleaded guilty to possession of
cocaine, the only charge against her. The record contains no mention whatsoever of any
discussion or disposition of Carlin's motion to withdraw. Aguilar signed a plea agreement,
which indicated that she was represented by Carlin, that she was satisfied with the advice
he had given her, and that the maximum punishment she faced was 42 months'
imprisonment plus a $100,000 fine.

During the plea hearing, the court conducted a plea colloquy, confirming with
Ayalla and Aguilar in succession that each had reviewed her plea agreement with Carlin
and that neither defendant had any complaints about his representation. Both women
agreed that the State could present the evidence outlined by the prosecutor.

After questioning each codefendant, the court found that the women "voluntarily,
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knowingly, and understandingly waived their constitutional rights and enter[ed] their plea
of guilty, that there's a factual basis for the plea, and that they understand the nature of the
charges and the consequences of the pleas." At no point in the hearing, however, did the
court inform Aguilar pursuant to K.S.A. 22-3210(a)(2) of the maximum punishment she
faced for her crime.

Within days, Aguilar informed Carlin that she wished to withdraw her plea. At a
previously scheduled sentencing hearing before a different district judge, Carlin informed
the court of Aguilar's request. Because Aguilar now wished to "present to the court a
conflicting defense" by withdrawing her plea, Carlin said he believed that he could not
represent both defendants and requested to withdraw. The judge allowed Carlin to do so
and appointed Craig Lubow to represent Aguilar. Per the State's request, the judge then
reassigned the case to the judge who had taken Aguilar's original plea.

Approximately 3 weeks later, Lubow submitted a formal motion to withdraw
Aguilar's plea. The motion claimed that she was not guilty of the crime charged, that she
entered the plea under duress, and that she had ineffective assistance of counsel during the
plea hearing and the negotiations leading to it. According to the motion, Aguilar "felt
pressured to enter the plea" because "the codefendant is her 'aunt', although not
biologically related." The motion also claimed Carlin had a conflict of interest because of
his simultaneous representation of Aguilar and Ayalla. Included in this claim was an
assertion that Carlin told Aguilar that a plea by both defendants would save Aguilar
substantial legal fees she could not afford.

The court held a hearing on the motion to withdraw Aguilar's plea the same day.
Lubow first advised the court that Aguilar had stated that she wanted to withdraw her plea
ahead of sentencing before a different judge, and "it was sent back down here for you to
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consider that." The judge replied: "I have reviewed the motion."

Among other contentions presented at the hearing, Lubow argued that Aguilar "had
ineffective assistance of counsel during the plea negotiations" because Carlin, "was
representing the codefendant simultaneously, and there was a conflict of interest there."
He cited State v. Taylor, 266 Kan. 967, 975 P.2d 1196 (1999), and State v. Ryan, 29 Kan.
App. 2d 297, 26 P.3d 707, rev. denied 272 Kan. 1422 (2001). Lubow further argued that,
"when the trial court becomes aware of a possible conflict of interest between an attorney
and a defendant charged with a felony, the court has a duty to inquire further," again citing
Taylor. Because "the Court was aware that Jeff Carlin was representing two codefendants"
at the plea hearing and because "there was no inquiry as to whether or not that created a
conflict of interest," Lubow requested that Aguilar's plea be set aside. Lubow also told the
judge that the drugs were Ayalla's, not Aguilar's, and that Aguilar had pleaded as charged,
with no concession by the State. Lubow argued "that she did feel duress and was not
wanting to do the plea at the time, but was pressured to do that, and would not have done
that if she had separate counsel."

The State responded that the court had conducted the usual plea colloquy during the
plea hearing and that Aguilar had said she was satisfied with Carlin's performance. The
State also argued that there was no evidence of conflict of interest.

Aguilar provided brief testimony at the hearing after counsels' arguments. Among
other things, Aguilar testified that she had felt financial and personal pressure to plead
guilty as a result of her relationship with Ayalla and her inability to pay Carlin's higher
trial fees: "$750 apiece only if we pled the same plea." (Emphasis added.) Aguilar
suggested that she felt pressure because she believed a not guilty plea would lead to her
charge being added to her aunt's charges. Ayalla was already in jail while Aguilar stayed
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with Ayalla's children. "I did not [have] any idea that she [Ayalla] was going to get all that
stuff dropped, or I would not have pled guilty." On cross-examination, she acknowledged
that she had told the court during the plea hearing that she thought Carlin's services were
satisfactory.

Carlin did not testify, nor was he present at the hearing. The only explanation for
his absence is found in the State's appellate brief, which states "there was not [an]
opportunity to bring Mr. Carlin before the court" because Aguilar's written motion was not
delivered to the State until the day of the hearing.

At the close of the plea withdrawal hearing, the judge ruled from the bench,
denying Aguilar's motion to withdraw her plea saying:

"Ms. Aguilar, the dilemma the Court faces now is, I have to determine when you were
telling the truth, were you telling me the truth in your responses on the day we took the
plea, or are you telling the truth today. I have a hard time finding—really now, at this
point, knowing when you were telling the truth. I spent thirteen pages and about 15
minutes going—asking you and your codefendant various questions about the plea. I had
you under oath. You made what seemed to be appropriate responses and I thought, at the
time, truthful responses; and frankly, at this time, I still think they were truthful. I think
you—either because you don't want to do the [drug] treatment or you don't want to be on
probation—I don't know what the reason is; but I think that the plea was voluntarily
given—given without any threats, any promises. The fact that you say you're not guilty
now, when you clearly stated to me that you were guilty, hasn't changed my mind. I don't
think you were under duress. And—and fourth—the fourth reason, that Mr. Carlin gave
you ineffective assistance of counsel—I've had Mr. Carlin in this courtroom a lot of times.
I think he does a good job. And in addition to me going through this 15 minute recitation,
Mr. Carlin also presented to me a plea petition, which he had gone over with you; and I
asked you, 'Did you go over the plea petition?' In fact, I asked you if you had any
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questions concerning the plea petition, anything in there you didn't understand that you
would like the court to explain to you; and you said no. So you had really two lengthy
opportunities to tell the truth, if you weren't telling the truth. One was after Mr. Carlin
asked you the questions and then when the Court asked them. So you're asking me to
believe that you were not telling the truth on that day but you're telling the truth today. The
Court is not going to accept that. And I don't—I don't feel, at this time, that a case has
been presented to set aside the plea, and the plea will—the Motion to Withdraw Plea is
considered and denied. That will be the order."

ANALYSIS

The decision to grant or deny a motion to withdraw a guilty plea is governed by
K.S.A. 22-3210(d):

"A plea of guilty or nolo contendere, for good cause shown and within the discretion of
the court, may be withdrawn at any time before sentence is adjudged. To correct manifest
injustice the court after sentence may set aside the judgment of conviction and permit the
defendant to withdraw the plea."

K.S.A. 22-3210(d) sets forth two standards by which courts evaluate motions to
withdraw pleas. Before sentencing, the courts have discretion to permit withdrawal of
pleas if a defendant shows "good cause." After sentencing, the courts may permit a plea
withdrawal only when the plea results in "manifest injustice." Because Aguilar moved to
withdraw her guilty plea before sentencing, the district judge was required to determine in
his discretion whether she demonstrated good cause for withdrawal. "[I]n order for the
district court's decision to receive the full measure of that standard's deference, [that
decision] must have been based upon a correct understanding of the law." State v. Schow,
287 Kan. 529, 541, 197 P.3d 825 (2008).

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Our cases dealing with presentence and postsentence motions to withdraw have
sometimes invoked and sometimes not invoked three factors to be considered: (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. Compare Schow, 287 Kan. at 542-43 (reciting three
factors as standard for evaluating presentence motion); State v. Green, 283 Kan. 531, 546,
153 P.3d 1216 (2007) (reciting three factors as standard for evaluating post-sentence
motion); and State v. Moses, 280 Kan. 939, 950-55, 127 P.3d 330 (2006) (factors not
mentioned in evaluating post-sentence motion); State v. Vasquez, 272 Kan. 692, 36 P.3d
246 (2001) (factors not mentioned in evaluating presentence motion).

This court has recently referred to these three considerations as the "Edgar
factors"—after State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006), in which this court
applied these standards to evaluate a defendant's presentence motion to withdraw a plea.
See Schow, 287 Kan. at 546. The factors long predate Edgar, however. In fact, they
appear to have been based on this court's decision in State v. Nichols, 167 Kan. 565, 577,
207 P.2d 469 (1949), in which the court stated: "When the accused is represented by
capable counsel and the plea is freely, fairly[,] and intelligently made, and its
consequences understood, it should not be set aside. When some or all of these factors are
lacking, common justice may authorize or require the setting aside of the plea." Nichols
was decided before the adoption of the modern code of criminal procedure, which sets
forth the good cause and manifest injustice standards for motions to withdraw pleas. See
Vasquez, 272 Kan. at 695; Nichols, 167 Kan. 565, Syl. ¶ 4 ("We have no statute
specifically pertaining to motions to withdraw pleas of guilty in criminal cases. The matter
is handled in each case upon principles of natural justice as applied to the facts of the case
and the legal situation.").

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Our previous inconsistent adherence to the Edgar factors to inform the standard for
considering motions to withdraw pleas—regardless of whether the statutory language
requires good cause or manifest injustice—has no doubt been confusing for practitioners
and the district bench. In Schow, we finally and explicitly recognized the distinction
drawn in the statutory language, characterizing good cause for presentence motions as a
"lesser standard" for a defendant to meet, when compared to manifest injustice for a
defendant advancing a post-sentence motion. Schow, 287 Kan. at 541. This legislative
choice is sensible and appropriate. The longer a defendant waits to file a plea withdrawal
motion, the more the State's case is likely to weaken, if not evaporate. Certainly the plea
withdrawal statute was not intended to be a tool for temporal manipulation; if a defendant
is going to hold the State to its beyond-a-reasonable-doubt burden of proof before a jury,
he or she should not be able to delay the process indefinitely by entering a guilty or nolo
contendere plea and then easily withdrawing it when the timing is opportune.

At least one more clarifying step beyond Schow is necessary to decide this case.

The Edgar factors remain viable benchmarks for judicial discretion but reliance on
them to the exclusion of other factors has not only conflated the good cause and manifest
injustice standards of K.S.A. 22-3210(d) but also may have overemphasized the role of
plea counsel's competence in deciding presentence plea withdrawal motions. Although the
Edgar factors permit counsel's competence or lack thereof to be one consideration when
the motion is filed in the time period between conviction and sentencing, they should not
be mechanically applied to demand that a defendant demonstrate ineffective assistance
arising to the level of a violation of the Sixth Amendment. That level of proof may be
suitable when the vehicle for relief is a K.S.A. 60-1507 motion attacking a defendant's
sentence; and it may be logical and fair to equate the K.S.A. 22-3210(d) manifest injustice
standard governing a post-sentence plea withdrawal motion to the high burden imposed on
10
a constitutional claim of ineffective assistance. Compare Strickland v. Washington, 466
U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); Boldridge v. State, 289 Kan. 618,
215 P.3d 585 (2009) (referencing Kansas' use of Strickland standard of deficient
performance plus prejudice); with Mickens v. Taylor, 535 U.S. 162, 168, 152 L. Ed. 2d
291, 122 S. Ct. 1237 (2002) (ineffective assistance based on conflict of interest requires
showing of existence of conflict with actual effect on representation); Boldridge, 289 Kan.
at 622-23 (employing Mickens' softened Strickland standard to K.S.A. 60-1507 motion
alleging ineffective assistance based on conflict between defendant, counsel). We note,
however, that the plain language of the statute—"for good cause shown and within the
discretion of the court"—should not be ignored. A district court has no discretion to fail to
remedy a constitutional violation.

It is neither logical nor fair to equate the lesser K.S.A. 22-3210(d) good cause
standard governing a presentence plea withdrawal motion to the high constitutional
burden. The Edgar factors do not transform the lower good cause standard of the statute's
plain language into a constitutional gauntlet. Merely lackluster advocacy—or, as here,
evidence of an insurmountable conflict of interest among jointly represented codefendants
that is ignored by a district judge—may be plenty to support the first Edgar factor and
thus statutory good cause for presentence withdrawal of a plea. All of the Edgar factors
need not apply in a defendant's favor in every case, and other factors may be duly
considered in the district judge's discretionary decision on the existence or nonexistence of
good cause.

Here, Aguilar sought to withdraw her plea in part on the basis that her attorney had
a conflict of interest arising out of his concurrent representation of Aguilar's codefendant.
At the plea hearing in this case, Carlin failed to address on the record his pending motion
to withdraw—based on Aguilar's failure to pay her share of Carlin's fees, which, the
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motion claimed, had made it "impossible" for him "to zealously represent" her—and its
possible correlation to her guilty plea entered only 3 days later. Carlin also failed to put on
the record anything concerning his disclosure of the danger of joint representation of two
defendants in a constructive possession drug case or his clients' waivers of the conflict of
interest. See Mickens, 535 U.S. at 175 (multiple representation is "inherently suspect");
State v. Gleason, 277 Kan. 624, 650, 88 P.3d 218 (2004) (same); see also ABA Standards
Relating to the Defense Function, section 4-3.5(c), from ABA Standards for Criminal
Justice: Prosecution Function and Defense Function (3d ed. 1993) (potential for conflict of
interest in representing multiple defendants is so grave that ordinarily defense counsel
should decline to act for more than one; exception when, after careful investigation, clear
either that no conflict likely to develop at trial, sentencing, or any other time, or common
representation will be advantageous). The district judge likewise failed to inquire at the
plea hearing about Carlin's pending motion to withdraw over unpaid fees. It should have
been evident to the district judge immediately from the colloquy with counsel and
defendants that Carlin represented both women. It also should have been clear to the
district judge that the case involved the constructive possession of illegal drugs and that
Aguilar and Ayalla were the only occupants of the vehicle where the drugs were found.
We observe that a number of courts have found these and similar circumstances created an
actual conflict of interest. See, e.g., McFarland v. Yukins, 356 F.3d 688, 701-02 (6th Cir.
2004); Williams v. Jones, 391 F. Supp. 2d 603, 611 (E.D. Mich. 2005); Fitzgerald v.
United States, 530 A.2d 1129, 1139 (D.C. App.. 1987); State v. Ryan, 29 Kan. App. 2d.
297, 26 P.3d 707, rev. denied 272 Kan. 1422 (2001). Indeed, we believe the conflict in
such a situation to be not only actual but insurmountable. The fact that Ayalla received
dismissal of additional charges while Aguilar pleaded guilty as charged intensifies our
concern.

At least some of these problems in Aguilar's plea hearing had the potential to be
12
corrected or ameliorated once she had been given new counsel. Unfortunately, this
potential was not realized. At the hearing on her motion to withdraw plea, there should
have been no doubt whatsoever as to the main issue to be addressed: the conflict of
interest between the codefendants in a constructive drug possession case and whether it
warranted withdrawal of Aguilar's guilty plea for good cause shown. But the district judge
exhibited no awareness of the governing legal standards. He gave no indication that he
correctly applied those standards in this particular case. Instead of addressing the conflict
of interest and its influence on the first of the Edgar factors, the court merely stated: "I've
had Mr. Carlin in this courtroom a lot of times. I think he does a good job." This mere
acquaintance with Carlin's earlier performances and the judge's awareness that Aguilar
had reviewed the plea agreement with her counsel were not enough. The inequalities in
Aguilar's and Ayalla's positions were ignored, as was the financial pressure placed on
Aguilar by Carlin's package deal for her representation, good only as long as she remained
joined at the hip to Ayalla.

The district judge's failure to apply the appropriate standards in the plea withdrawal
hearing was an abuse of discretion requiring reversal and remand so that Aguilar may
withdraw her plea and the State may pursue any additional proceedings it sees fit to
pursue. Under the particularly egregious facts of this case—in which the conflict of
interest between the defendant and her jointly represented codefendant was
insurmountable, and the record reveals no sufficient disclosure by counsel and waiver by
the client—Aguilar met her burden to show good cause to grant her presentence motion to
withdraw her plea under K.S.A. 22-3210(d). No additional district court hearing on the
motion is necessary.

Reversed and remanded.

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* * *

NUSS, J., dissenting: I respectfully dissent. More particularly, I disagree with the
majority's dilution of the constitutional standard articulated in Cuyler v. Sullivan, 446 U.S.
335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980) and restated in Mickens v. Taylor, 535 U.S.
162, 152 L. Ed. 2d 291, 122 S. Ct. 1237 (2002), under the guise of "Kansas good cause"
for withdrawing a plea.

In my view, we should allow Aguilar to make her own decisions. She has decided
to file a motion to withdraw a guilty plea under K.S.A. 22-3210(d). She acknowledges that
because she chose to file her motion before sentencing, the statute requires that she
demonstrate good cause. She has chosen to establish the requisite good cause by
emphasizing what the majority has identified as the "first Edgar factor": whether the
defendant was represented by competent counsel. Slip op. at 7-9; see State v. Edgar, 281
Kan. 30, 36, 127 P.3d 986 (2006).

The majority concedes that Aguilar emphasized the incompetency of her counsel
and, more specifically, that she focused on her counsel's purported conflict of interest
arising out of his concurrent representation of Aguilar's codefendant. Indeed, the majority
concludes: "At the hearing on her motion to withdraw plea, there should have been no
doubt whatsoever as to the main issue to be addressed: the conflict of interest between the
codefendants in a constructive drug possession case and whether it warranted withdrawal
of Aguilar's guilty plea for good cause shown." Slip op. at 10. As a result, the majority
devotes virtually all of its analysis to the conflict of interest claim.

The majority also correctly recites the applicable standard: ineffective assistance of
counsel based upon conflict of interest requires the defendant to show that the conflict
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actually affected the adequacy of the representation. Mickens v. Taylor, 535 U.S. at 172-
73; see also Cuyler v. Sullivan, 446 U.S. at 348-49. The majority further correctly
indicates that this is a "softened," or lesser, standard than the one necessary for
establishing ineffective assistance of counsel purely because of performance. See
Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
The latter standard requires showing that counsel's performance was deficient. More
important, it also requires showing that the deficient performance "prejudiced" the
defense, i.e., that counsel's errors were so serious as to deprive the defendant of a fair trial.
Strickland, 466 U.S. at 687.

To this point, I am in agreement with the majority. I leave their company, however,
when as a matter of law they refuse to require Aguilar to meet the specific standard
articulated in Mickens, which she and the State admit she must meet. The majority simply
declares that "it is neither logical nor fair to equate the lesser K.S.A. 22-3210(d) good
cause standard governing a presentence plea withdrawal motion to the high constitutional
burden [of Mickens.]" Slip op. at 9. Apparently, "good cause" can mean that falling short
of Mickens' standards is nevertheless "good enough."

One obvious problem with diluting a constitutional standard is determining just
how close one must get to it in order to be good enough. Unfortunately, the majority
provides us no guidelines for filling the void created by their removal of the Mickens
standards. Moreover, when the United States Supreme Court first applied a constitutional
standard to a defendant's request to withdraw a guilty plea based upon ineffective
assistance of counsel, the Court warned that approving new grounds for setting aside
guilty pleas represents "inroads on the concept of finality [which] undermines confidence
in the integrity of our procedures." Hill v. Lockhart, 474 U.S. 52, 58, 88 L. Ed. 2d 203,
15
106 S. Ct. 366 (1985).

This particular issue—the appropriate standard for addressing a presentence plea
withdrawal motion based upon ineffective assistance of counsel due to conflict of interest
through concurrent representation—apparently has not yet arisen in Kansas appellate
courts. However, a closely related issue has arisen: the appropriate standard for a
presentence plea withdrawal based upon ineffective assistance of counsel due to conflict
of interest but not because of concurrent representation. According to the majority, the
constitutional standard articulated in Mickens, e.g., a conflict actually affecting the
adequacy of the representation, is somewhat in tension with Kansas' statutory standard of
"good cause." As a result, under the majority's reasoning, these particular Kansas cases
necessarily should also be analyzed under a similarly diluted "close enough to Mickens"
standard. But they were not. Every defendant was required to meet Mickens.

In State v. Whidden, the Court of Appeals clearly applied the Mickens test to a
presentence challenge to a guilty plea based on ineffective assistance of counsel due to
personal conflict of interest. 2009 WL 1312568, at *3 (Kan. App. 2009) (unpublished
opinion). In State v. Adams, this court apparently applied Mickens to the claim of
ineffective assistance of counsel due to conflict of interest because of successive
representation. 284 Kan. 109, 118-125, 158 P.3d 977 (2007). Specifically, in holding that
nothing in the record indicated that counsel's previous representation of a complaining
witness "adversely affected" her performance in defending Adams, the court first cited
State v. Gleason, 277 Kan. 624, 88 P.3d 218 (2004), an opinion in which we expressly
applied the Mickens standard. Adams, 284 Kan. at 125 (citing Gleason, 277 Kan. at 649-
52). As a result, the court concluded that Adams had not shown a conflict of interest that
required setting aside his presentence nolo contendere plea. 284 Kan. at 125.

16
Another closely related issue has often arisen in Kansas appellate courts: the
appropriate standard for a presentence plea withdrawal motion based upon ineffective
assistance of counsel due purely to performance. According to the majority, the
constitutional standards articulated in Strickland, e.g., deficient performance resulting in
actual prejudice to defendant, would be somewhat in conflict with Kansas' statutory
standard of "good cause." As a result, under the majority's rationale, these particular cases
necessarily should also be analyzed under a similarly diluted "close enough to Strickland"
standard. But they were not. Every defendant was required to meet Strickland. See, e.g.,
State v. White, 289 Kan. 279, 285, 211 P.3d 805 (2009); State v. Adams, 284 Kan. 109,
124, 158 P.3d 977 (2007) (in addition to apparently applying Mickens to claim of
ineffective assistance of counsel due to conflict of interest, clearly applied Strickland test
to defendant's claim of ineffective assistance of counsel based upon performance); State v.
Sanchez-Cazares, 276 Kan. 451, 457, 78 P.3d 55 (2003) (applying the Strickland test to a
presentence motion to withdraw guilty plea based upon ineffective assistance of counsel);
State v. Solomon, 257 Kan. 212, 223, 891 P.2d 407 (1995) (same); State v. Dunmore, 2010
WL 445699, at *3 (Kan. App. 2010) (unpublished opinion) (same); State v. Burrous, 2007
WL 4374021, at *1 (Kan. App. 2007) (unpublished opinion ) (same); State v. Ortega,
2007 WL 2080407, at *3 (Kan. App. 2007) (unpublished opinion) (same); State v. Clark,
2006 WL 2440007, at *3 (Kan. App. 2006) (unpublished opinion) (same); State v. Sosa,
2006 WL 1976590, at *3 (Kan. App. 2006) (unpublished opinion) (same); State v. Lewis,
27 Kan. App. 2d 134, 138, 998 P.2d 1141 (2000) (same).

In short, the majority's dilution of the Mickens standard directly contradicts the
longstanding practice of Kansas appellate courts of applying constitutional standards to
resolve 6th Amendment-based presentence motions to withdraw pleas. This dilution also
conflicts with the practice, and case law, of many federal courts.
17
While the particular issue in the instant case has not yet arisen in Kansas, it has
occurred in the federal courts. The case of United States v. Verducci, 384 F. Supp. 2d 495
(D. Mass. 2005), is on point. The Verducci defendant argued that the conflict created by
his attorney's concurrent representation of himself and another was a basis for allowing
withdrawal of his guilty plea before sentencing. The court addressed Federal Rule of
Criminal Procedure 11(d). Similar to the presentencing good cause requirement of K.S.A.
22-3210(d), under the federal rule a defendant may withdraw a plea of guilty before
sentence is imposed where "the defendant can show a fair and just reason for requesting
the withdrawal." 384 F. Supp. 2d at 498; Fed. R. Crim. P. Rule 11(d); see also State v.
Dillon, 242 Kan. 410, 413, 748 P.2d 856 (1988) (noting similarities between 22-3210 and
Rule 11). Under Rule 11(e), a guilty plea may be withdrawn after sentencing only on
direct appeal or collateral attack.

The Verducci court did not dilute the Mickens standard in its search for "fair and
just" reasons permitting presentence withdrawal of the plea. Rather, the court essentially
applied the Mickens standard, holding that defendant had failed to show the concurrent
representation placed him in a more disadvantageous position than he would have
occupied had his attorney not represented the other at all. 384 F. Supp. 2d at 499-500.
Indeed, it quoted Mickens, stating: '"[B]efore this court can presume prejudice to the
defendant, he must first demonstrate that 'the conflict of interest actually affected the
adequacy of his representation.'" 384 Supp. 2d at 500 n.2 (citing Mickens, 535 U.S. at
171).

Similarly, in United States v. Cruz-Camacho, the district court addressed
defendant's presentence motion under Rule 11 to withdraw his plea due to ineffective
assistance of counsel based upon conflict of interest for concurrent representation of
defendant and a potential prosecution witness. 682 F. Supp. 2d 193 (D.P.R. 2010). The
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court did not dilute any constitutional standards but expressly applied Cuyler v. Sullivan
and denied the motion. It held that the defendant failed to show that any conflict actually
affected his counsel's representation, i.e., no fair and just reasons were established.

The case of United States v. Berkeley is of particular importance. 515 F. Supp. 2d
159, 162-65 (D.D.C. 2007), aff'd 567 F.3d 703 (D.C. Cir. 2009). It not only clearly
provides the rationale and standards used by the district court—like Verducci and Cruz-
Camacho—but also the rationale and standards of the appellate court. There, the district
court rejected defendant's presentence motion under Rule 11 to withdraw his plea due to
ineffective assistance of counsel based upon conflict of interest after applying the Cuyler
test. 515 F. Supp. 2d at 162-65. It also denied that part of the motion alleging ineffective
assistance of counsel based upon pure performance after applying the Strickland test. 515
F. Supp. 2d at 162-65. The district court held that because defendant failed to meet these
constitutional standards, no "fair and just reason" was established to warrant withdrawal of
the plea. 515 F. Supp. 2d at 162-65. After applying the two different constitutional
standards to the different bases for the motion, the circuit court of appeals affirmed.
United States v. Berkeley, 567 F.3d 703, 708-10 (D.C. Cir. 2009).

Berkeley represents the typical approach of the federal circuit courts. They
generally require the defendant to meet constitutional standards when they review on
direct appeal a district court's denial of a 6th

Amendment-based presentence motion to
withdraw plea. Specifically, they consider whether the Strickland, Cuyler, Mickens or
other constitutional standards are met. See, e.g., United States v. Wallace, 276 F.3d 360,
366-67 (7th Cir. 2002) (Presentence motion to withdraw plea due to ineffective assistance
of counsel based upon conflict of interest was denied by district court and affirmed by the
appellate court because defendant had not met the Cuyler standards and therefore had no
"fair and just reason" for withdrawal.); United States v. Taylor, 139 F.3d 924, 930 (D.C.
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Cir. 1998) (Presentence motion to withdraw plea due to ineffective assistance of counsel
based upon conflict of interest was denied by district court. Applying Cuyler in its
consideration of "fair and just cause" for withdrawal, appellate court remanded for
evidentiary hearing to determine if conflict of interest adversely affected performance.);
United States v. Fuller, 312 F.3d 287, 291 (7th Cir. 2002) (Presentence motion to
withdraw guilty plea due to ineffective assistance of counsel based upon conflict of
interest was denied by district court. Appellate court affirmed denial because the
defendant could not meet the requirements of Mickens.); United States v. Bailey, 49 Fed.
Appx. 755, 756 (9th Cir. 2002) (Presentence motion to withdraw plea due to ineffective
assistance of counsel based upon conflict of interest was denied by district court and
affirmed by appellate court. Defendant did not meet the Cuyler and Mickens standards and
therefore had no "fair and just reason" for withdrawal.); cf. United States v. Davis, 48 Fed.
Appx. 809, 811 (2d Cir. 2002).

While some of these appellate decisions in the preceding paragraph do not clearly
disclose the exact standards used by the district court, the following cases reveal the
constitutional standards utilized by other district courts when reviewing presentence
motions to withdraw plea for ineffective assistance of counsel, including for conflict of
interest. See United States v. Tolson, 372 F. Supp. 2d 1, 12-14 (D.D.C. 2005) (addressing
defendant's presentence motion under Rule 11 to withdraw plea due to ineffective
assistance of counsel based upon conflict of interest using Cuyler test and ineffective
assistance of counsel based upon performance using Strickland test); United States v.
Berger, 188 F. Supp. 2d 307, 333-35 (S.D.N.Y. 2002) (same); United States v. Rivera,
1992 WL 135231, at **8-9 (E.D.N.Y. 1992) (unpublished opinion) (same).

Finally, I point to United States v. Graham, 2009 WL 902394 (D. Kan. 2009)
(unpublished opinion). There, defendant sought to withdraw his guilty plea before
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sentencing primarily on the basis of the "fifth factor" that courts in the Tenth Circuit Court
of Appeals consider when determining whether "fair and just reason" for withdrawal
exists: whether close assistance of counsel was available to the defendant. 2009 WL
902394, at *3. Like the Kansas appellate courts mentioned earlier that examined Edgar's
similar "competence of counsel" factor and applied constitutional standards, the federal
court applied Strickland. The court held that the Strickland standards had not been met
and therefore denied the motion. 2009 WL 902394, at **3, 5.

In conclusion, I would follow the guidance, and practice, of Kansas appellate
courts. For those defendants filing presentence motions to withdraw their pleas under
K.S.A. 22-3210(d) that allege ineffective assistance of counsel due to conflict of interest
through concurrent representation, I would require them to meet constitutional standards
before concluding they had established "good cause" for withdrawal. This continuation is
consistent with the approach of federal courts which operate under a similar requirement,
Federal Rule of Criminal Procedure 11(d), for addressing presentence motions to
withdraw pleas. In my view, applying anything less than "full strength" constitutional
standards to a defendant's constitution-based arguments creates problems.

MCFARLAND, C.J., and LUCKERT, J., join in the foregoing dissent.