State v. Bricker

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 99,394

STATE OF KANSAS,
Appellee,

v.

CORINTHIAN ISIAH BRICKER,
Appellant.


SYLLABUS BY THE COURT

1.
To correct manifest injustice, after sentencing the district court may set aside a
judgment of conviction and permit the defendant to withdraw a plea.

2.
A district court's decision to deny a postsentence motion to withdraw a plea is
reviewed under an abuse of discretion standard. The moving party bears the burden to
prove the court abused its discretion.

3.
A number of considerations comprise the abuse of discretion standard, including
review to determine that the discretion was not guided by erroneous legal conclusions.

4.
In determining whether the defendant has shown manifest injustice to permit a
postsentence plea withdrawal, the district court should consider the following 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
2

was fairly and understandingly made. While these factors are viable benchmarks for
judicial discretion, they should not be mechanically applied and should not be relied on to
the exclusion of other factors.

5.
A postsentence motion to withdraw plea under K.S.A. 22-3210(d) that alleges
ineffective assistance of counsel due to deficient performance must meet the
constitutional standards articulated in Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984), to demonstrate manifest
injustice. The defendant must show that counsel's performance fell below the standard of
reasonableness and that there was a reasonable probability that, but for counsel's errors,
the defendant would not have entered the plea and would have insisted on going to trial.

6.
There is a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.

7.
Under the circumstances of this case, defense counsel's failure to familiarize
himself with the factual admission criteria of the Labette Correctional Conservation
Camp and to advise defendant of those facts before defendant's plea bargain was not
sufficient to meet the performance prong of the test for ineffective assistance of counsel
expressed in Strickland v. Washington, 466 U.S. at 687.

8.
Under the circumstances of this case, defense counsel's failure to advise defendant
that he could file a presentence motion to withdraw his plea was insufficient grounds to
warrant postsentence withdrawal of the plea.

3

Review of the judgment of the Court of Appeals in an unpublished opinion filed March 13, 2009.
Appeal from Johnson District Court; JAMES FRANKLIN DAVIS, judge. Opinion filed June 3, 2011.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.

Joanna Labastida, of Kansas Appellate Defender Office, argued the cause, and Lydia Krebs, of
the same office, was on the brief for appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Sara Pfeiffer, legal intern,
Phill Kline, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by:

NUSS, C.J.: Corinthian Bricker pled no contest to one count each of aggravated
battery (a severity level 5 person felony), driving under the influence (a class B
misdemeanor), and failure to present proof of insurance (a class B misdemeanor).
Contrary to the plea bargain agreement that recommended sentencing to "Labette
Bootcamp Probation," the district court sentenced Bricker to 36 months in prison on the
felony charge and 180 days in jail on each of the misdemeanor charges, with all sentences
to run concurrently.

After sentencing, Bricker filed a motion to withdraw plea alleging his counsel was
ineffective for failing to learn before the plea that Bricker was actually ineligible for
Labette. The district court denied the motion, and the Court of Appeals affirmed. We
granted Bricker's petition for review under K.S.A. 20-3018(b) and now affirm.

FACTS

In the early morning hours of June 21, 2005, Bricker was driving his Ford Ranger
between 58 and 62 mph in a 35-mph zone when he broadsided Andrea Cunningham's
Ford Explorer at an intersection in Lenexa. While Bricker was in the hospital, blood and
4

urine samples were drawn. His blood alcohol level measured .22, and his urine indicated
the presence of cocaine, marijuana, and barbiturates.

The State secured a search warrant for Bricker's truck and discovered a crack pipe.
Police would later learn that Bricker was driving without any insurance. The State
eventually charged Bricker with: (1) aggravated battery in violation of K.S.A. 21-
3414(a)(2)(A) because of Cunningham's serious injuries; (2) driving under the influence
in violation of K.S.A. 8-1567; and (3) operating a motor vehicle without insurance in
violation of K.S.A. 40-3104(d), (g).

Bricker's counsel was Mark Furney. The Friday before his bench trial scheduled
for the following Monday, March 6, Bricker entered into a written plea agreement with
the State. Under its terms, Bricker agreed to plead no contest to all three charges and to
pay a $500 fine on the DUI charge. He also agreed to pay restitution for Cunningham's
vehicle and any of her medical bills not covered by "any available insurance." In return,
the State agreed to join in a recommendation for "Labette Bootcamp Probation," i.e.,
placement at Labette Correctional Conservation Camp (LCCC). In the alternative, the
State agreed to recommend (1) the middle sentence in the applicable grid box for the
felony, (2) 90 days in jail plus a $500 fine on the misdemeanor DUI; and (3) that all
sentences run concurrent. The plea agreement appears to be silent on the specifics of the
disposition of the misdemeanor insurance charge.

The March 6 bench trial was replaced by a hearing for the court to consider
Bricker's plea. There, the judge advised Bricker that the parties' joint recommendation for
LCCC was not binding on the court:

"[Court]: I have your plea agreement, Mr. Bricker. I want you to understand the court is
not obligated or required to follow the recommendations in the plea agreement. They are
simply recommendations to the court. You understand that?
5


"[Bricker]: Yes, I do, sir.

. . . .

"[Court]: . . . I know there is a recommendation to screen your case for possible
placement at Labette. You understand the court does not have to place you at Labette?
You understand that?

"[Bricker]: Yes, sir."

Bricker was further advised of the maximum sentences for all of his charges, and the
court ultimately accepted his no contest plea.

On March 10, the court ordered Bricker screened for LCCC admission. Bricker
would later learn that he was ineligible for admission because he was taking two different
antidepressants. After receiving word of Bricker's ineligibility, Furney filed a motion for
interpretation of plea the day before sentencing.

At sentencing on May 5, Furney argued that even though Bricker was ineligible
for LCCC, the spirit of the plea bargain required treatment and probation. One plea
agreement condition included "follow ADSAP [Alcohol and Drug Safety Action
Program] recommendations," and next to the form's caption "Agreed Disposition," a
handwritten checkmark appeared on the "Probation" line.

The State continued to formally recommend LCCC even though it was not an
option. The State further contended that the form's Probation line was checked only
because it was required for LCCC to be an option. Cunningham and her family testified
that they supported LCCC and treatment but opposed probation.

6

The court then sentenced Bricker to the middle grid box sentence of 36 months'
imprisonment on the felony charge of aggravated battery. It also sentenced him to 180
days in jail on each of the misdemeanor charges, with a $500 fine for the DUI charge,
with all sentences to run concurrently.

On October 16, 2006, Bricker changed to counsel Jessica Travis, who filed a
motion to withdraw his plea. The motion alleged Furney was ineffective because Furney
(1) failed to determine whether Bricker would be eligible for LCCC; and (2) failed to
negotiate an "alternative resolution should Mr. Bricker be rejected" by LCCC.

At the hearing on his motion, Bricker presented testimony of criminal defense
attorney Jason Billam, who stated his policy was to discuss LCCC eligibility with clients
before accepting a plea bargain. Bricker also presented an affidavit from Furney, where
Furney conceded that he "did not advise [Bricker] that because he was on certain
medications, he in fact would not be accepted into [LCCC]."

According to Bricker's testimony, Furney never discussed with him "things that
might disqualify" him from LCCC placement. Bricker testified Furney approached him
the day before sentencing and stated that "he [Furney] screwed up and I wasn't able to get
into boot camp, and Judge Davis was going to sentence me to prison the following day."
Bricker testified that he also was never advised by counsel about the possibility of plea
withdrawal until after sentencing or that the standard permitting withdrawal would then
be higher.

Bricker admitted he understood from his earlier plea acceptance hearing that the
judge was not required to sentence him to LCCC. He believed, however, there was a
chance he would be sentenced to LCCC. He also admitted that although he had not been
sentenced to LCCC, if the judge had instead "granted [him] probation . . . or let [him] go
7

to some sort of drug and alcohol treatment program," he would not be attempting to
withdraw his plea.

The district court denied Bricker's motion, concluding there was no manifest
injustice as required under the plea withdrawal statute. The judge stated:

"So the question here is did Mr. Furney violate some standard of care such that it
changed everything in your mind. And I listened to your testimony. I heard the fact that
had you gotten a less restrictive probation, you wouldn't be here asking to have your plea
withdrawn. You didn't get what you wanted. Not everybody at sentencing gets what they
want. It's the judge's prerogative to pass the sentencing. I make determination[s] based on
all the information, what is proper sentence in your case. And I did agree to give you a
chance at Labette. I did not agree to give you a chance anywhere else. And Labette did
not accept you.

"There is only one other door, and that is the prison door.

"So whether Mr. Furney failed to negotiate a fall-back position or told you about
withdrawing your plea earlier, the point is, it is . . . in the final analysis up to the Court's
good judgment and discretion, and I exercised that discretion by sending you to prison
based on the information that I had in the case.

"I do not find there is manifest injustice shown here such that the plea should be
withdrawn."

Bricker appealed and the Court of Appeals affirmed. State v. Bricker, No. 99,934,
2009 WL 743375 (2009) (unpublished opinion).

Additional facts will be added as necessary.

8

ANALYSIS

Issue: The district court correctly denied Bricker's motion to withdraw plea.

Standard of Review

Motions to withdraw pleas are governed by K.S.A. 2010 Supp. 22-3210(d)(1) and
(2), which provide:

"(1) 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.

"(2) To correct manifest injustice the court after sentence may set aside the
judgment of conviction and permit the defendant to withdraw the plea."

The district court's decision to deny a postsentence motion to withdraw a plea is
reviewed under an abuse of discretion standard. State v. Beauclair, 281 Kan. 230, 235-36,
130 P.3d 40 (2006). Bricker bears the burden to prove the district court abused its
discretion. State v. Sanchez-Cazares, 276 Kan. 451, 454, 78 P.3d 55 (2003). A number of
considerations comprise this standard, including review to determine that the discretion
was not guided by erroneous legal conclusions. State v. Gonzalez, 290 Kan. 747,755-56,
234 P.3d 1 (2010); State v. Skolaut, 286 Kan. 219, Syl. ¶ 3, 182 P.3d 1231 (2008).

Discussion

Bricker filed a postsentence motion to withdraw his plea, and K.S.A. 2010 Supp.
22-3210(d)(2) authorizes the district court to grant a defendant's motion only to correct
manifest injustice. Kansas courts review at least three factors, commonly known as Edgar
factors, after State v. Edgar, 281 Kan. 30, when considering whether a defendant has
demonstrated the requisite manifest injustice. These are: (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
9

understandingly made. Edgar, 281 Kan. at 36; see State v. Green, 283 Kan. 531, 545-46,
153 P.3d 1216 (2007) (applying the Edgar factors to a postsentence plea withdrawal
case); see also State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010) (collecting cases
discussing the Edgar factors).

While the Edgar factors are "viable benchmarks for judicial discretion," we have
made clear they should not be relied on to the "exclusion of other factors." Aguilar, 290
Kan. at 512. See State v. Freeman, Nos. 100,792 and 100,793, 2011 WL 1206373, *3
(Kan. 2011).

As the sole basis for his postsentence plea withdrawal, Bricker argues ineffective
assistance of counsel. Our recent opinion in Aguilar is of some assistance. There, the
defendant filed a presentence motion to withdraw plea alleging ineffective assistance of
counsel due to a concurrent representation conflict of interest. To show a Sixth
Amendment violation, a claim of ineffective assistance of counsel based upon conflict of
interest requires the defendant to show that the conflict affected the adequacy of the
representation. See Mickens v. Taylor, 535 U.S. 162, 172-73, 122 S. Ct. 1237, 152 L. Ed.
2d 291 (2002); Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333
(1980). However, the Aguilar court refused to "equate the lesser K.S.A. 22-3210(d) good
cause standard governing a presentence plea withdrawal motion to the high constitutional
burden" required for Sixth Amendment purposes by Mickens. 290 Kan. at 513. In
reaching its conclusion, the Aguilar court noted that it nevertheless "may be logical and
fair to equate the K.S.A. 22-3210(d) manifest injustice standard governing a postsentence
plea withdrawal motion to the high burden imposed on a constitutional claim of
ineffective assistance." Aguilar, 290 Kan. at 513.

What we recently implied in Aguilar, we plainly express today. A defendant filing
a postsentence motion to withdraw plea under K.S.A. 22-3210(d) that alleges ineffective
assistance of counsel due to deficient performance must meet constitutional standards to
10

demonstrate manifest injustice. See also State v. Muriithi, 273 Kan. 952, 955-56, 46 P.3d
1145 (2002) (applying constitutional standard to a postsentence plea withdrawal motion
alleging ineffective assistance of counsel). Consequently, Bricker must meet the
commonly known Strickland test and show that (1) Furney's performance fell below the
objective standard of reasonableness and (2) there is a reasonable probability that but for
Furney's errors, the result of the proceeding would have been different. See Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S.
1267 (1984); State v. Chamberlain, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting
Strickland standards); Muriithi, 273 Kan. at 955-56. A "'reasonable probability'" is a
probability sufficient to undermine confidence in the outcome. State v. Gleason, 277 Kan.
624, 644, 88 P.3d 218 (2004).

On appeal to this court, Bricker continues to argue Furney's performance was
deficient because, before Bricker's plea entry, Furney (1) failed to familiarize himself
with LCCC admission criteria and (2) failed to advise Bricker of those criteria. He now
abandons his lower court contention that Furney was deficient for failing to negotiate a
fallback plan and instead argues that Furney failed to inform him he could move to
withdraw his plea before sentencing. This failure resulted in Bricker having to meet the
"manifest injustice" standard instead of the lesser "good cause" standard. Although this
two-fold argument was not stated in Bricker's written motion to withdraw plea, it was
sufficiently raised at the hearing to allow its consideration on appeal.

Failure to learn, and advise, of LCCC admission criteria

Bricker first analogizes his case to State v. Davis, 277 Kan. 309, 85 P.3d 1164
(2004), to support his claim that the court should allow withdrawal of his plea to correct
manifest injustice because of Furney's deficiencies regarding LCCC admission criteria.
There, Davis' counsel based the defense on the ground that Davis was not able to
"understand the nature and quality of his acts" and therefore was legally insane at the
11

time of the crime. Davis, 277 Kan. at 325. Unfortunately, the defense of insanity or
diminished capacity had already been abolished in K.S.A. 22-3220. Additionally, the
defense's own expert witness eventually aided the State by opining that Davis did possess
the mental capacity to form the requisite intent to commit the crime. As the Davis court
stated, "Had counsel understood the correct legal standard to be applied, counsel would
have attempted to secure an expert witness whose testimony would not destroy the very
defense he was attempting to establish." 277 Kan. at 328. The court concluded that
defense counsel's actions were both deficient and prejudicial under Strickland entitling
Davis to a new trial.

In a letter Bricker submitted pursuant to Supreme Court Rule 6.09 (2010 Kan. Ct.
R. Annot. 48), he argues withdrawal of his plea to correct manifest injustice is also
required by Wilkinson v. State, 40 Kan. App. 2d 741, 195 P.3d 278 (2008). Wilkinson
was charged with possession of cocaine. While out on felony bond, he was arrested again
and received a second charge of cocaine possession. Wilkinson pleaded guilty to the first
charge and received probation with an underlying sentence of 28 months. Before his
second charge proceeded to a plea, Wilkinson was picked up on a probation violation for
failing a drug test.

Wilkinson eventually admitted his probation violation and agreed to plead guilty
to the second charge of cocaine possession. In exchange, the State agreed to recommend
that Wilkinson's sentences for both charges run concurrent. However, concurrent
sentences were impeded by an obstacle that was "nearly insurmountable." 40 Kan. App.
2d at 745. Specifically, Wilkinson committed his second offense while he was out on
felony bond for the first offense, and Kansas statutes require consecutive sentences in
such situations unless that disposition "would result in a manifest injustice." See K.S.A.
21-4608(d) and K.S.A. 21-4720(a). The Wilkinson court acknowledged that a sentence
results in manifest injustice only when it "is obviously unfair and shocks the conscience
12

of the court." 40 Kan. App. 2d at 742 (citing State v. Medina, 256 Kan. 695, Syl. ¶ 1, 887
P.2d 105 [1994]). The district court ultimately imposed consecutive sentences.

Wilkinson filed a motion to withdraw plea that the district court denied without an
evidentiary hearing. He essentially alleged his attorney was ineffective for failing to
advise him of the manifest injustice requirement for the court to order concurrent
sentences. The Court of Appeals panel held that Wilkinson could not make an informed
decision without being advised of the requirements of K.S.A. 21-4608(d) and K.S.A. 21-
4720(a):

"[I]n Wilkinson's case, a concurrent sentence could be given only if consecutive
sentences would shock the conscience of the court, and that's more than a tilted playing
field—the test is nearly insurmountable. Yet Wilkinson had every reason to believe that
the odds were spread out evenly, not rising to the peak of a mountain. Wilkinson pled
guilty in exchange for the State's recommendation of a concurrent sentence, but the
manifest-injustice standard substantially undercut the value of that bargain. Wilkinson
could not make an informed decision about that plea bargain without knowledge of this
standard." Wilkinson, 40 Kan. App. 2d at 745.

The panel reversed the district court and remanded for an evidentiary hearing to
determine whether Wilkinson's attorney, as alleged, did not tell him about the manifest
injustice standard. If not, "then the attorney's performance fell below the standard of
reasonableness." 40 Kan. App. 2d at 746.

We disagree with Bricker that his situation is sufficiently similar to those of the
defendants in Wilkinson and Davis to require withdrawal of his plea to correct manifest
injustice. In both those cases, defense counsel took positions that were clearly barred by
statute or else contained statutory obstacles that were "nearly insurmountable."

13

In Davis, counsel was ineffective for advocating an insanity defense abolished by
statute. Accordingly, we held counsel "did not adequately prepare for trial because, by his
own admission, he was unaware of the proper legal standard for a defense of mental
disease or defect." (Emphasis added.) 277 Kan. at 327.

Similarly, in Wilkinson, counsel plea bargained for concurrent sentences despite
statutes requiring consecutive sentences unless that disposition "would result in a
manifest injustice." Consequently, we held counsel was ineffective because his client
"needed to know the applicable legal standard so he could intelligently evaluate this plea
agreement." (Emphasis added.) 40 Kan. App. 2d at 746.

By contrast, Bricker's plea bargain was not statutorily barred. Nor did it contain an
obstacle that was almost statutorily insurmountable. More specifically, his counsel did
not fail to advise him of an applicable statutory or other legal standard. Furney's failure to
familiarize himself with the factual admission criteria of the LCCC and his failure to
advise Bricker of those facts before Bricker's plea bargain simply do not approach that
level.

Bricker's witness, Billam, did testify that the type of LCCC-related facts he
discussed with his clients included whether they are mentally ill, have asthma or
"anything that you are going to require medication," and whether they can meet the
physical challenges such as sit-ups, push-ups, running, and "those types of things."
However, the hearing transcript discloses that Billam was never offered as an expert
witness, much less qualified as one by the defense, a designation which might authorize
him to establish standards of performance for criminal defense attorneys. His personal
practices, however exemplary, are insufficient for measuring Furney's performance under
a claim of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668,
687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984) (When
criminal defendant complains of ineffectiveness of counsel's assistance, the proper
14

measure of attorney performance remains simply reasonableness under prevailing
professional norms.); cf. Bowman v. Doherty, 235 Kan. 870, 879, 686 P.2d 112 (1984)
(Expert testimony is generally required to establish the appropriate standard of care by
which professional actions of attorney are measured in malpractice claim because such
matter is outside knowledge of the average person.).

Additionally, the record reveals Bricker understood at all material times (1) his
admission into LCCC was not guaranteed but depended upon LCCC's favorable
screening; and (2) even if admitted to LCCC, he still was not entitled to have the court
order him there. Bricker was clearly advised of these substantial risks when he affirmed
his plea bargain with the court and, unlike the defendant in Wilkinson, was able to make
an informed decision about it. As mentioned, the judge stated at Bricker's plea acceptance
hearing:

"[Court]: . . . I know there is a recommendation to screen your case for possible
placement at Labette. You understand the court does not have to place you at Labette?
You understand that?

"[Bricker]: Yes, sir." (Emphasis added.)

During the colloquy at the later plea withdrawal hearing, Bricker was asked about
this earlier judicial reference to screening:

"[State Attorney]: What did you think it meant when the judge said, 'We're going to
screen your case as a possible placement for Labette?'

"[Bricker]: I just would have said basically that I had a chance to go.

"[State Attorney]: A chance to go?

"[Bricker]: Yes, ma'am. I would be screened to go.
15


"[State Attorney]: You knew it wasn't a done deal?

"[Bricker]: Somewhat, yes." (Emphasis added.)

The judge confirmed this understanding with Bricker at the same hearing: "You
were screened for it [LCCC]. Screening by implication means you may or may not pass
through. There is a possibility you don't go through." Indeed, Bricker's own witness
testified that because many times defendants are not screened for LCCC until after they
plead, he will, if possible, "negotiate alternatives in case they do not get into boot camp."
(Emphasis added.)

Under all of these circumstances, we cannot conclude that Furney's performance
was constitutionally deficient. As a result, Bricker fails to meet the first prong of the
Strickland test. Consequently, we need not consider the second Strickland prong:
prejudice. See State v. Gleason, 277 Kan. 624, 649, 88 P.3d 218 (2004). Therefore we
need not reach Bricker's "frustration of purpose" argument contending that without
Furney's deficient performance, "Bricker would never have entered into a plea agreement
of which placement at LCCC was the primary benefit."

Because Bricker has not met the high burden required under the 6th Amendment
to show ineffective assistance of counsel, he has concomitantly failed to show the
"manifest injustice" pursuant to K.S.A. 2010 Supp. 22-3210(d)(2) to justify withdrawal
of his plea based upon Furney's deficiencies regarding LCCC admission criteria.

Failure to advise of plea withdrawal option before sentencing

Bricker briefly argues that "[c]ompounding Furney's failure to inform Mr. Bricker
that he was presumptively ineligible for LCCC prior to entering the plea agreement is the
fact that" upon learning of LCCC's rejection, Furney failed to inform Bricker of two more
16

points before sentencing. First, he could move to withdraw the plea. Second, he would be
more likely to prevail in filing such a motion before sentencing, rather than after, because
of the resultant change in the standard from good cause to manifest injustice.

In short, Bricker argues these two failures could impact our earlier Strickland
analysis of Furney's performance regarding the LCCC admission criteria. More
specifically, Bricker contends Furney caused him to lose the opportunity to have that
particular performance judged on the lesser good cause standard. See Aguilar, 290 Kan.
506 (presentence motion to withdraw plea for ineffective assistance of counsel merely
requires good cause, while postsentence requirement of manifest injustice requires
meeting 6th Amendment standards). Bricker also appears to suggest these two failures
are additional Furney performance episodes to be analyzed under Strickland to
demonstrate manifest injustice—either aggregated with Furney's LCCC-related
performance, or at least independently.

We begin by analyzing the two failures independently under Strickland to
determine whether Bricker has met his burden to demonstrate manifest injustice. Under
this analysis, Bricker must show that Furney's performance fell below the objective
standard of reasonableness. If so, he must then show there is a reasonable probability that
but for Furney's errors the result of the proceeding would have been different: Bricker
would have then filed a motion to withdraw his no contest plea and would have insisted
on proceeding to bench trial. See Strickland v. Washington, 466 U.S. at 687; State v.
Gleason, 277 Kan. at 644; State v. Muriithi, 273 Kan. at 955-56.

Unlike the factual admission criteria for LCCC, the right to seek plea withdrawal,
and the applicable legal standards, are statutory. See K.S.A. 2010 Supp. 22-3210(d);
Wilkinson v. State, 40 Kan. App. 2d at 746 (if counsel indeed failed to advise client of
statutory manifest injustice requirement for court to order concurrent sentences, "then the
attorney's performance fell below the standard of reasonableness"). Moreover, with the
17

disappearance of one of the factual premises upon which the plea bargain is based, it is
reasonable to expect that a defendant would be advised of alternatives, e.g., the right to
seek plea withdrawal. Bricker's testimony is uncontroverted: Furney never so advised
him.

The State argues it was nevertheless reasonable for Furney to believe he could
convince the judge at sentencing to grant Bricker probation. For example, we have held:
"'A court must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.'" Gleason, 277 Kan. at 644 (citing
Chamberlain, 236 Kan. at 657). We observe, however, that only one sentence of Furney's
affidavit, and not the affidavit itself, is included in the record on appeal. Accordingly,
there is nothing to suggest Furney even considered anything besides arguing probation,
i.e., that there was a strategic choice to be made from various options, including the filing
of a plea withdrawal motion. Moreover, the failure to advise a defendant of such an
important right is difficult to consider as a deliberately chosen strategy. State v. Carter,
270 Kan. 426, 441, 14 P.3d 1138 (2000) (decision to enter a plea of guilty or not guilty to
a criminal charge is a fundamental constitutional right guaranteed to a defendant and lies
solely with the defendant). See also Rowland v. State, 289 Kan. 1076, 1086, 219 P.3d
1212 (2009) (only criminal defendant can make choice of plea).

Accordingly, under these circumstances, Bricker has met his burden to
demonstrate the deficiencies were not the result of Furney's strategic choices. See
Gleason, 277 Kan. at 644. As we stated there, "Strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable,
and strategic choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations on
investigation." 277 Kan. at 644. As a result, we conclude Furney's performance was
constitutionally deficient when he failed to advise Bricker of this important option and its
accompanying good cause standard.
18


The prejudice prong of the Strickland test requires Bricker to show a reasonable
probability that he would have filed a presentence motion to withdraw his plea and
insisted on proceeding to bench trial had Furney advised him of this option. Based upon
our reading of the record on appeal, we conclude Bricker has not made this showing.

First, Bricker never testified that had Furney advised him of this option to file a
presentence withdrawal motion he would certainly, or even probably, have done so.
Indeed, the evidence strongly points the other way. In lieu of prison, the plea bargain
provided for joint recommendation of LCCC. See K.S.A. 21-4603d(5) (6 months in
LCCC residence while on probation plus 6 months additional probation upon release). It
also required payment of restitution for all bills not paid for by any available insurance.
In the alternative, the plea bargain recommended a sentence at the middle number on the
grid box for the level 5 felony of aggravated battery (36 months) and a sentence of 90
days in jail and a $500 fine on the DUI, with all sentences to run concurrently. It does not
specify the sentence for the insurance misdemeanor.

If Bricker had attempted to withdraw his plea, and been successful, he would have
faced considerably worse with his criminal history score of "H." Technically, he could
have received (1) the upper number in the aggravated battery grid box: 38 months
imprisonment; (2) per statute, a maximum of 180 days in jail for the DUI plus $1000
fine; and (3) per statute, a maximum of 180 days in jail for the lack of insurance, or fine
of $300-$1000. The sentences could have been served consecutively, resulting in a
maximum of 38 months in prison, followed by 360 days in jail, or total consecutive
incarceration of slightly more than 4 years.

Moreover, the evidence of Bricker's guilt was overwhelming. His blood alcohol
level was .22, almost three times the minimum needed for proving DUI. See K.S.A. 8-
1567(a)(1) (legal limit for blood alcohol concentration is .08). His urine revealed a
19

mixture of three different drugs in his system, at least two of which were illegal. He
drove a highway speed in the city of Lenexa and eventually broadsided the victim's car at
an intersection. He was belligerent and combative: an officer and firefighter were forced
to hold him down at the scene.

Bricker's victim, Cunningham, sustained a broken pelvis, a broken bone in her low
back, a bruised heart, and a punctured lung. She also sustained damage to her liver,
spleen, and kidneys. Cunningham has scars on her abdomen, right leg, and neck and a
metal rod inserted in her right arm. She additionally suffered memory loss and
depression. Given her injuries and his conduct, we conclude the elements of a level 5
aggravated battery offense are easily met: "recklessly causing great bodily harm to
another person or disfigurement of another person." K.S.A. 21-3414(a)(2)(A) and (b).

Second, once Furney advised Bricker of his LCCC ineligibility, that same day he
filed a motion for interpretation of plea to argue for probation because it was "within the
spirit of the plea agreement." It states in relevant part:

"On March 3, 2006, the State and the accused entered into a plea agreement. Line
3 of that agreement states: Parties make joint recommendation for Labette Bootcamp
Probation. At the bottom of the agreement under the sub-head 'AGREED
DISPOSITION', the 'Probation' box is checked.

"Because Mr. Bricker is taking certain medications, he is medically un-qualified
for the Labette bootcamp. The accused believes the plea agreement clearly contemplated
probation, and that it would be within the spirit of the plea agreement for the defendant
to ask the court to consider other non-prison sentence alternatives in light of his
disqualification from Labette for medical reasons.

"However, the defendant does not want to be accused of breaking the plea
agreement, and for that reason, the accused asks for the Court's guidance in interpretation
on this issue." (Emphasis added.)
20


Consistent with the written motion, at sentencing Furney did ask for the plea
agreement to be interpreted in "the spirit of the plea bargain" to allow for even lesser
sanctions than LCCC: probation in this "border box" case and/or 6 months in a drug
treatment center, the same time period as Bricker's required residence in LCCC. Furney
also provided an Alcohol and Drug Safety Action Program evaluation strongly
suggesting Bricker receive treatment providing that the evaluation was consistent with
the plea agreement condition that the parties "follow ADSAP recommendations." He
further noted that everyone at the hearing had testified they would like to see Bricker
receive treatment. Furney additionally argued they had "bargained for probation," and
screening for the therapeutic community was necessary "in order to live up to the terms
of the plea agreement."

Bricker was present for the hearing, and in his later testimony at the plea
withdrawal hearing, acknowledged hearing these Furney arguments. As mentioned,
Bricker also later testified that had Furney successfully obtained probation, or some type
of drug and alcohol treatment program, Bricker would not be attempting to withdraw his
plea. Although not dispositive of the Strickland prejudice prong, Bricker's admission
undermines his argument that once he learned he was ineligible for the plea-bargained
LCCC, he would have moved to withdraw his plea to face trial—and probable
incarceration.

Under these circumstances, we conclude there was no reasonable probability
Bricker would have moved to withdraw his plea based upon his LCCC ineligibility and
insisted on proceeding to trial had Furney actually advised him of this option. Instead,
Bricker more likely would have approved of Furney's argument "in the spirit of the plea
bargain" for treatment and probation without the accompanying harshness of LCCC.

21

We finally turn to the additional failures' impact on, or aggregation with, Furney's
LCCC-related conduct. As noted, we held this conduct had not independently risen to a
constitutional deficiency under Strickland. We agree with Bricker's implication that
Furney's presentence failure to advise him of the option of filing a motion to withdraw—
with its resultant heightened burden of proving manifest injustice—can itself be
considered in the determination of whether manifest injustice now exists to warrant plea
withdrawal. After all, the failures clearly increased the difficulty of Bricker's task.

However, this new "mixed" claim has the same problem as the claim based upon
Furney's presentence failure to advise Bricker of the ability to file a motion to withdraw
plea. As explained previously, under the circumstances of this case, there simply is no
reasonable probability Bricker would have requested his plea to be withdrawn before the
prison sentence was pronounced. As a result, Bricker has not proven the need to correct
manifest injustice—still his statutory requirement, given the timing of his plea
withdrawal motion—even when influenced by Furney's failure to advise him of the
ability to file such a motion presentence. See State v. Sanchez-Cazares, 276 Kan. 451,
454, 78 P.3d 55 (2003).

The judgment of the district court is affirmed. The judgment of the Court of
Appeals is affirmed.