State v. Ebaben

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,129

STATE OF KANSAS,
Appellee,

v.

ANTHONY ALEXANDER EBABEN,
Appellant.


SYLLABUS BY THE COURT

1.
K.S.A. 22-3210(a)(4) provides that a trial court may accept a guilty plea when the
court is satisfied a factual basis exists for the plea. To make this determination, the trial
court must establish that all elements of the crime charged are present.

2.
Under the facts of this case, when the trial court merely summarized an amended
complaint for the record and made no further effort to satisfy itself that there was a
factual basis for the plea, the requirements of K.S.A. 22-3210(a)(4) were not met.

Review of the judgment of the Court of Appeals in an unpublished opinion filed March 19, 2010.
Appeal from Marion District Court; MICHAEL F. POWERS, judge. Opinion filed July 20, 2012. Judgment
of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed.

Donald R. Snapp, of Newton, was on the brief for appellant.

Susan C. Robson, county attorney, and Steve Six, attorney general, were on the brief for appellee.

2



The opinion of the court was delivered by

BILES, J.: Anthony Ebaben appeals from the district court's denial of his pre-
sentence motion to withdraw an Alford plea to one count of sexual battery. By entering an
Alford plea, Ebaben pleaded guilty without admitting he committed the crime. He now
claims he should be permitted to withdraw this plea because: (1) the trial court erred by
accepting his plea without establishing a factual basis for it; and (2) he felt pressured to
enter the plea because his attorney had not subpoenaed any trial witnesses. The Court of
Appeals affirmed. State v. Ebaben, No. 102,129, 2010 WL 1078464 (Kan. App. 2010)
(unpublished opinion). We reverse and remand to the district court to permit Ebaben to
withdraw his plea because the district court erred by not establishing the factual basis for
the plea as required by K.S.A. 22-3210(a)(4). We do not address the second claim.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Ebaben with one count of indecent liberties with J.P., a child
between 14 and 16 years of age; one count of sexual battery of T.R., a person 16 years of
age or older; one count of furnishing alcohol to a minor; and one count of driving on a
suspended, canceled, or revoked license. But under a plea agreement all charges were
dropped, except for a revised misdemeanor sexual battery charge naming J.P. as the
victim. J.P. was 1 month short of her 16th birthday at the time of the offense. A written
plea agreement is not included in the appellate record. A description of what occurred at
the plea hearing is necessary to discuss the issues presented.

On the day Ebaben's jury trial was to begin, the State advised the district court that
Ebaben had agreed to plead guilty to the revised misdemeanor sexual battery charge
under North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 27 L. Ed. 2d 162
(1970) (accused may plead guilty without admitting the commission of the offense if
3



accused intelligently concludes his or her interests so require and the record strongly
evidences guilt). See State v. Case, 289 Kan. 457, Syl. ¶ 2, 213 P.3d 429 (2009) ("An
Alford plea is a plea of guilty to a criminal charge but without admitting to its
commission, i.e., to the truth of the charge and every material fact therein. The defendant
may accomplish this in two ways: by affirmatively protesting innocence or by simply
refusing to admit the acts constituting the charge."). The district court confirmed this with
Ebaben's attorney and then summarized the charge to Ebaben and advised him the
maximum penalty was 1 year in county jail and a $2,500 fine.

The district court's summary of the charge contained most of the details from the
amended complaint, except that it omitted the victim's date of birth and the location of
the offense. The amended complaint stated:

"That on or between the 1st day of August, 2007, and the 30th day of August,
2007, in Marion County, Kansas, Anthony Alexander Ebaben, then and there being
present did unlawfully, intentionally and without consent touch JP (DOB: 9/4/91), who
was 16 or more years of age and not the spouse of the defendant, with the intent to arouse
or satisfy the sexual desires of the defendant or another, in violation of K.S.A. 21-3517,
SEXUAL BATTERY, a class A person misdemeanor."

Ebaben was not asked at the time he entered his plea whether he was furnished a
copy of the amended complaint.

The district court informed Ebaben that by entering a plea he would be giving up
his right to a jury trial with appointed counsel at which the State would have to prove
beyond a reasonable doubt that he committed the charged crime. Ebaben stated that he
did not have any questions and agreed that no one had "threatened [him] in any way or
pressured [him] to get [him] to plead" to the charge. Ebaben also indicated he understood
the plea agreement and that the other charges would be dismissed if he pleaded to sexual
4



battery. The district court then asked Ebaben, "[H]ow do you plead?" and Ebaben replied,
"No contest." The district judge responded by stating, "I don't think that's an option
(unintelligible)." Then, the following discussion between the district judge and Ebaben's
attorney occurred:

"MR. HARGER: I'm not sure exactly what plea this is that's being entered."
"THE COURT: Uh—
"MR. HARGER: I'm not sure how to do the Alford plea, or what process you want
to go through.
"THE COURT: I think he can—he can plead, and I'll go through the questioning
process with him, but if he's going to plead, uh, Alford fashion, I
think he needs to plead guilty.
"MR. HARGER: Okay. Well, we—we don't want to make an admission to . . .
that misdemeanor through a guilty plea.
"THE COURT: Well, let me make . . . the inquiry in advance, and then we'll go
back to this point.
"MR. HARGER: That makes sense."

The district court asked Ebaben whether he thought it was in his best interest to
enter a plea to the charge, even though he did not necessarily want to admit to the specific
allegations. Ebaben said, "Yes." The court then stated:

"It is possible for someone to plead to something that they say they didn't
specifically do, if they feel like there are other charges the State could bring that, uh,
could, that they might have some . . . exposure to. . . . [T]hey feel like it's in their best
interest, as a part of a plea bargain to plead to something that they don't necessarily admit
that they did, or that they don't necessarily . . . think the State could prove. And that's
called an Alford plea. Basically, it means that, uh, you are pleading to something because
you feel like you're getting the benefit of the bargain you entered into, but you're not
necessarily admitting that it happened. Is that what you wish to do here?"

5



Ebaben indicated this was what he wanted to do, and the district judge informed
him that he was "going to have to plead guilty," stating "I don't think you can plead no
contest in—in an Alford plea. So, if you can make that plea . . . by pleading guilty
because you feel it's in your interest to do so, as a part of your plea agreement."

After the court's Alford plea description, Ebaben's attorney stated that he would
"allow [Ebaben] to go ahead and plead guilty" based on the court's inquiry and the record
of the nature of the plea. Then, the district court asked Ebaben a second time how he
would plead, and Ebaben stated "guilty." The judge then stated, "I don't need a factual
basis from [the State]."

The district court found the plea was free, knowing, and voluntary, and it
pronounced Ebaben guilty of sexual battery. A sentencing hearing was scheduled for
another date, but before sentencing Ebaben filed a written motion to withdraw the plea.
He claimed the district court had failed to comply with K.S.A. 22-3210(a)(4), the statute
for accepting pleas, by not stating a sufficient factual basis of the evidence supporting the
charge. He also claimed he was pressured into pleading guilty.

At the motion hearing, the district court found Ebaben had entered his plea freely,
knowingly, and voluntarily, and had not established good cause to withdraw it. The
district court noted that Ebaben had met with his attorney several times, that defense
counsel was prepared for trial, and that the court and defense counsel had reviewed
Ebaben's rights with him on the day of the plea, although the court acknowledged this
review was less extensive because Ebaben was pleading to a misdemeanor charge. The
court also found there was clear evidence Ebaben benefitted from the plea.

As to the argument regarding the factual basis for the plea, the district court
admitted the better practice would have been to require a proffer from the State and
6



conceded that "we got . . . a little cross-wise" based on the confusion as to whether
Ebaben intended to plead guilty or no contest. But the court found that regardless of that
confusion, the failure to proffer a factual basis was not relevant to whether there was
good cause to set aside the plea and that it was less important to proffer a factual basis
under an Alford plea because it allows a defendant to plead to something for which there
may not be any factual basis.

Ebaben was sentenced to 42 days in jail with credit for time served as a condition
of release on 12 months' probation, with an underlying 12-month jail sentence. He timely
appealed to the Court of Appeals, which affirmed. Ebaben, 2010 WL 1078464, at *4.
Ebaben petitioned this court for review, which was granted. Jurisdiction arises under
K.S.A. 20-3018(b) (review of Court of Appeals decision).

ANALYSIS

Ebaben claims he established good cause to withdraw his Alford plea and
advances two theories as to why the district court should have allowed him to proceed to
a jury trial on the felony charges. First, Ebaben contends the trial court was required by
K.S.A. 22-3210(a)(4) to satisfy itself that there was a factual basis for the plea before it
was accepted and that no factual basis was presented. Second, he argues he was pressured
into entering a plea because his trial was supposed to begin that morning and his attorney
had not subpoenaed any witnesses for his defense. Because we agree with Ebaben that
the district court erred when accepting the plea under the statute, we do not address the
second argument.

7



Standard of Review

An appellate court reviews the district court's decision on a presentencing motion
to withdraw a plea for an abuse of discretion. See K.S.A. 22-3210(d); State v.Williams,
290 Kan. 1050, 1053, 236 P.3d 512 (2010). Judicial discretion is abused if judicial action
is (1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken
the view adopted by the trial court; (2) based on an error of law, i.e., if the discretion is
guided by an erroneous legal conclusion; or (3) 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. McCullough, 293 Kan.
970, Syl. ¶ 5, 270 P.3d 1142 (2012).

Was a Factual Basis for Ebaben's Plea Established?

A district court considers three factors when determining if the defendant
demonstrates good cause, including whether: (1) the defendant was represented by
competent counsel; (2) the defendant was misled, coerced, mistreated, or unfairly taken
advantage of; and (3) the plea was fairly and understandingly made. Williams, 290 Kan.
at 1053. But all three factors need not apply in the defendant's favor, and the district court
may consider other factors when determining if good cause is shown. 290 Kan. at 1054
(citing State v. Aguilar, 290 Kan. 506, 513, 231 P.3d 563 [2010]).

Ebaben argues he established the good cause necessary to withdraw his plea
because there was no proffer of a factual basis given for the plea before it was accepted
by the trial court as required by K.S.A. 22-3210(a)(4). The State argues the trial court's
summary of the complaint was sufficient. We must first address what is required to
establish the factual basis for Ebaben's plea. K.S.A. 22-3210 states in relevant part:

8



"(a) Before or during trial a plea of guilty or nolo contendere may be accepted
when:

(1) The defendant or counsel for the defendant enters such plea in open
court; and

2) in felony cases the court has informed the defendant of the
consequences of the plea, including the specific sentencing guidelines level of
any crime committed on or after July 1, 1993, and of the maximum penalty
provided by law which may be imposed upon acceptance of such plea; and

(3) in felony cases the court has addressed the defendant personally and
determined that the plea is made voluntarily with understanding of the nature of
the charge and the consequences of the plea; and

(4) the court is satisfied that there is a factual basis for the plea."
(Emphasis added.)

K.S.A. 22-3210(a)(4) requires a trial court to establish that all elements of the
crime charged are present before accepting a defendant's plea. State v. Edgar, 281 Kan.
30, 42-43, 127 P.3d 986 (2006) (Alford plea); State v. Shaw, 259 Kan. 3, 7, 910 P.2d 809
(1996) (no contest plea). But Ebaben argues that K.S.A. 22-3210(a)(4) requires more
when the defendant pleads guilty while maintaining his or her innocence. We need not
consider that argument because the factual basis set out for Ebaben's plea was insufficient
without regard to whether his plea was based on Alford.

We have held in both Alford and no contest plea cases that a factual basis for a
plea may be satisfied: (1) by a complaint or information given or read to the defendant
which sets forth the factual details and essential elements of the particular crime charged;
(2) by the prosecutor or defendant's factual statement presented to the court at the plea
9



hearing; or (3) based on the evidence presented at a preliminary hearing at which the
same judge presided. Edgar, 281 Kan. at 42; Shaw, 259 Kan. at 10-11. But only the first
method is applicable under the facts in this case because the district court merely
attempted to summarize the complaint when accepting the plea, while dismissing the
need for any proffer of evidence and making no mention of a preliminary hearing. This
circumstance requires us to determine just how factually detailed the complaint or
information must be to comply with the statute.

To demonstrate that Ebaben committed misdemeanor sexual battery, the essential
elements the State was required to show were: (1) Ebaben intentionally touched J.P.; (2)
the touching was done with the intent to arouse or to satisfy the sexual desires of the
defendant or another; (3) J.P. was not Ebaben's spouse; (4) J.P. did not consent to the
touching; (5) J.P. was 16 or more years of age; and (6) the date the act occurred. See
K.S.A. 21-3517; PIK Crim. 3d 57.19. As noted above, the trial court summarized the case
against Ebaben by stating:

"[T]he charge against you alleges . . . between the 1st of August, '07, and the 30th of
August, '07, . . . that you had, . . . intentional, . . . physical contact and . . . it was without
consent, with a minor . . . identified with the initials J.P., who was 16 years of age or
more, but under 18 and not your spouse . . . with the intent to satisfy sexual desires of
yourself or others and (unintelligible)."

The caselaw holding that a factual basis can be established by reading a complaint
containing the facts and essential elements of the crime derives from this court's decision
in Widener v. State, 210 Kan. 234, 237-40, 499 P.2d 1123 (1972); see also State v.
Snyder, 10 Kan. App. 2d 450, 454-55, 701 P.2d 969 (1985) (stating that the factual basis
requirement may be satisfied by an information given or read to the defendant which sets
forth the factual details and essential elements of the crime; citing Widener and other
cases). In Widener, the defendant pleaded guilty and later relied on federal caselaw to
10



claim that his plea was involuntary because the court failed to personally interrogate him
and determine whether he understood the charges. The Widener court held that a district
court should not convict based on a plea without inquiring of the accused and satisfying
itself that there is a factual basis for it. 210 Kan. at 237-38. And it noted that those
requirements had been recently codified by statute, although the statute did not apply in
Widener's case. 210 Kan. at 238.

The Widener court then held that the factual basis requirement was satisfied
because the "factual circumstances were meticulously set forth in separate informations."
210 Kan. at 238-40. The burglary information in Widener stated the essential elements of
the crime:

"[O]n June 11, 1970, in the night-time, Mr. Widener had unlawfully, feloniously and
burglariously broke into a concession stand in the city ball park in Arkansas City by
ripping tin from the roof of the stand, entered an inner room by opening a window and
had stolen and carried away various described items of merchandise located therein
which were the property of the Arkansas City, Kansas Baseball Association." 210 Kan. at
239.

Widener indicates the defendant had waived the reading of the information but
acknowledged during the plea hearing that he had received a copy of it. The defendant
also had confessed to the crime, stating that he was pleading guilty because he had
burglarized the concession stand. See 210 Kan. at 238-39.

The amended complaint at Ebaben's trial lacked any of the factual details
presented in Widener, except that Ebaben's complaint included the defendant's name.
Moreover, Ebaben did not confess to the crime.

11



Many of the other no contest pleas affirmed by this court also involved the reading
of an information or complaint—coupled with a confession or stipulation. See State v.
Bey, 270 Kan. 544, 546-50, 17 P.3d 322 (2001) (describing factual basis for no contest
plea as "rather Spartan"; however, amended information was read twice, State proffered
limited factual statement, and the defendant's signed motion admitted the facts were
sufficient to support the plea); Shaw, 259 Kan. at 9 (no contest plea upheld based on
reading of the complaint and the defendant's stipulation that the State had sufficient
evidence to convict); see also Noble v. State, 240 Kan. 162, 170, 727 P.2d 473 (1986) (no
contest plea predating K.S.A. 22-3210 was upheld after defendant waived reading of
complaint and testified that he committed each element of the offense).

This court's remaining cases relied upon the State's proffer of a factual basis. See
State v. Shears, 260 Kan. 823, 835-36, 925 P.2d 1136 (1996) (no contest plea upheld
when defendant waived reading of complaint and the State described the evidence to the
court); State v. Reed, 248 Kan. 506, 512-13, 809 P.2d 553 (1991) (no contest plea upheld
based on State's proffer and judicial notice of evidence from a codefendant's case).

The facts in Ebaben's case are most similar to the evidence presented in Snyder, 10
Kan. App. 2d 450. In that case, the Court of Appeals held there was insufficient evidence
to support the factual basis of a guilty plea for attempted aggravated interference with
parental custody. 10 Kan. App. 2d at 455-57. At the plea hearing, the State read the
amended complaint to the defendant and defense counsel stipulated that a factual basis
existed. But the complaint was similar to the charge read to Ebaben. It simply recited the
elements of the crime by stating the defendant "unlawfully, willfully and feloniously
attempted to commit the crime of aggravated interference with parental custody as
defined in K.S.A. 21-3422a but failed in the [perpetration] thereof in violation of K.S.A.
21-3301 and K.S.A. 21-3422a."10 Kan. App. 2d at 456.The Snyder court held the
purpose of K.S.A. 22-3210(a)(4) is to ensure that a plea was knowingly and voluntarily
12



entered, and that purpose is defeated when there is no evidence presented to the district
court showing that the defendant's conduct falls within the charge to which the defendant
pleaded. Therefore, it held the error required reversal. See 10 Kan. App. 2d at 456-57.

A comparison of the facts in Ebaben's case with our prior caselaw demonstrates
the recitation at the plea hearing was simply too bare-boned to conclude on review that
the trial court fulfilled its statutory duty of "satisfying itself" that a factual basis for the
plea existed. Without fulfilling that duty, the trial court as a matter of law had no basis to
find that Ebaben's plea was fairly and understandingly made. See Williams, 290 Kan. at
1053. We hold the trial court abused its discretion in finding a sufficient factual basis to
support the plea. The remaining question is whether Ebaben is entitled to withdraw his
plea based on that error.

Does the error require reversal?

This court has held that the failure to strictly comply with K.S.A. 22-3210 may be
reversible error unless a review of the entire record demonstrates that the plea was
knowingly and voluntarily made and otherwise accepted by the trial judge in compliance
with the statute. Shaw, 259 Kan. 3, Syl. ¶ 4; see also Trotter, 218 Kan. 266, 269-70, 543
P.2d 1023 (1975) (failure to comply with K.S.A. 22-3210 was harmless error, but
disapproving of any failure to fully comply with K.S.A. 22-3210 since full compliance
protects the accused's due process guarantees).

In Ebaben's case, the record does not demonstrate that the plea was knowingly and
voluntarily made because there was no statement of the evidence presented to the district
court showing the defendant's conduct fell within the charge to which the defendant
pleaded. As to this point, we agree with the Court of Appeals' rationale in Snyder, 10
Kan. App. 2d at 456-57. K.S.A. 22-3210(a)(4)'s purpose of ensuring that a plea is
13



knowingly and voluntarily entered is defeated if the district court is presented with no
evidence to establish the defendant's conduct falls within the elements of the charged
crime.

The State argues that the error was harmless based on McPherson v. State, 38 Kan.
App. 2d 276, Syl. ¶ 1, 163 P.3d 1257 (2007). In that case, the Court of Appeals held that
a party may plead to a nonexistent or hypothetical crime, as long as the defendant: "(1)
was initially brought into court on a valid pleading; (2) received a beneficial plea
agreement; and (3) voluntarily and knowingly entered into the plea agreement." 38 Kan.
App. 2d at 281. But McPherson is distinguishable because that court did not address
whether a sufficient factual basis for the plea was established.

We hold that the district court committed reversible error because it did not
establish a factual basis for Ebaben's plea.

Reversed and remanded.