State v. Edwards

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,198

STATE OF KANSAS,
Appellee,

v.

DARRON EDWARDS,
Appellant.


SYLLABUS BY THE COURT

1.
Under K.S.A. 2009 Supp. 22-3210(d)(2) and K.S.A. 2009 Supp. 22-3210(e)(1)(A),
a court considering a timely motion may set aside a criminal judgment of conviction and
permit a defendant to withdraw a plea after sentencing in order to correct manifest
injustice. To be timely, any action pursuant to K.S.A. 2009 Supp. 22-3210(d)(2) must be
filed within 1 year of the final order of the last appellate court in this state to exercise
jurisdiction on a direct appeal or within 1 year of the termination of appellate jurisdiction.
The time limitation may be extended by the court only upon an additional, affirmative
showing of excusable neglect by the defendant.

2.
The denial of a postsentencing motion to withdraw a plea lies within the district
court's discretion, and an appellate court should not disturb that ruling absent an abuse of
discretion. The appellant carries the burden of establishing an abuse of discretion.

3.
An issue not briefed by an appellant is deemed waived or abandoned.

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4.
To facilitate meaningful appellate review, a district court must make sufficient
findings of fact and conclusions of law on the record.

5.
Supreme Court Rule 165 (2009 Kan. Ct. R. Annot. 239) imposes a duty on a
district judge to make adequate findings of fact and conclusions of law. In addition,
however, a party has a burden to ensure the findings and conclusions made by the district
judge are sufficient to support appellate argument and must file a motion invoking the
judge's duty under Rule 165, if necessary.

6.
A motion to reconsider is generally treated as a motion to alter or amend under
K.S.A. 60-259(f), which requires that such motions be filed no later than 10 days after
entry of judgment.

7.
Generally, issues not raised before the district court cannot be raised for the first
time on appeal. This includes constitutional grounds for reversal.

8.
There are three exceptions to the general rule that an issue cannot be raised for the
first time on appeal: (1) The newly asserted claim involves only a question of law arising
on proved or admitted facts and is determinative of the case; (2) consideration of the
claim is necessary to serve the ends of justice or to prevent the denial of fundamental
rights; and (3) the district court was right for the wrong reason.

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Appeal from Sedgwick District Court; ERIC R. YOST, judge. Opinion filed April 2, 2010.
Affirmed.

Clark F.A. Maughn and Catherine A. Zigtema, of Maughn & Maughan LC, of Wichita, were on
the brief for appellant.

David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and
Steve Six, attorney general were on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Darron Edwards appeals the district court's denial of his April 9,
2008, pro se motion to withdraw guilty pleas; his April 23, 2008, pro se supplemental
motion to withdraw guilty pleas; and his June 20, 2008, pro se motion to reconsider. On
appeal, he argues the district court's denial of his motions (particularly his motion to
withdraw guilty pleas) violated his due process rights, resulting in manifest injustice.
Because Edwards advances this argument for the first time on appeal, his motions are
untimely, and he has failed to establish manifest injustice, we affirm.

FACTS

On January 17, 1992, Edwards, pursuant to a plea agreement, entered guilty pleas
to aggravated criminal sodomy, aggravated burglary, attempted rape, two counts of rape,
and two counts of aggravated kidnapping. Edwards waived preparation of a presentence
investigation report and was sentenced the same day. State v. Edwards, 254 Kan. 489,
867 P.2d 355 (1994). Specifically, the crimes and sentences were as follows:

Count 1, aggravated kidnapping, life term
Count 2, aggravated kidnapping, life term
Count 3, rape, 15years to life
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Count 4, aggravated criminal sodomy, 15 years to life
Count 5, aggravated burglary, 5 to 20 years
Count 6, attempted rape, 5 to 20 years
Count 7, aggravated battery, 5 to 20 years
Count 8, rape, 15 years to life

Counts 1, 2, 3, and 4 were ordered to run concurrent with each other, which
established one life sentence as the controlling term. Counts 5, 6, and 7 were ordered to
run concurrent with each other, for a term of 5 to 10 years, but consecutive to the
sentence for counts 1 through 4. The 15-years-to-life term on count 8 was ordered to run
consecutive to the sentences in counts 5, 6, and 7.

Subsequent to the sentencing, Edwards has filed more than 10 appeals from
adverse decisions of the district court. The basic theme of Edwards' prior appeals—
involving postconviction motions and original actions—was to reduce the aggravated
kidnapping convictions to simple kidnapping, and the primary supporting argument was
that the complaint failed to allege bodily harm to the victims. As noted in a Court of
Appeals' unpublished opinion, the defendant has made numerous attempts "to put a new
cover on a worn out issue." State v. Edwards, No. 85,355, unpublished opinion filed
January 25, 2002.

In his 1994 direct appeal, Edwards argued, for the first time, that the district court
lacked jurisdiction over the aggravated kidnapping charges because the complaint was
fatally defective for omitting the "bodily harm" element of the offense. See K.S.A. 21-
3421 (Ensley). However, after oral arguments but prior to this court's decision, Edwards'
appellate attorney withdrew Edwards' request to be relieved from the plea agreement, the
arguments for which included the argument related to the district court's jurisdiction over
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the aggravated kidnapping charges. We noted the voluntary dismissal of these claims.
Edwards, 254 Kan. at 489.

Thereafter, Edwards filed several motions challenging the legality of the sentences
imposed for his convictions of aggravated kidnapping. He argued the district court
lacked jurisdiction because the charging instrument lacked an element of the crime,
depriving the court of jurisdiction over the aggravated kidnapping charges. Affirming the
district court's denial of the motions in State v. Edwards, 260 Kan. 95, 97-98, 917 P.2d
1322 (1996), this court refused to address the merits of Edwards' jurisdiction claim,
finding Edwards had abandoned the claim by withdrawing it from consideration in his
prior appeal.

In the present case, Edwards filed a pro se motion to withdraw pleas, again
seeking the same relief—reduction of the sentences associated with his aggravated
kidnapping convictions. This time he based his argument on the underlying rationale that
the State breached the plea agreement by recommending to the district court a plea of
guilty on a crime (aggravated kidnapping) for which Edwards was not charged. In his
supplemental motion to withdraw pleas, Edwards further argued that the plea bargain was
based upon the State's promise to recommend an "illegal sentence," in that he was
sentenced to aggravated kidnapping rather than simple kidnapping.

In the State's response, it contended that Edwards was again challenging his
aggravated kidnapping convictions based on the notion that the complaint merely charged
simple kidnapping and that Edward "has raised this issue in a multitude of postconviction
motions." The State requested that the district court deny Edwards' motion to withdraw
pleas because of res judicata and waiver.

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On May 2, 2008, the district court summarily denied Edwards' motions to
withdraw pleas by checking a box on a preprinted form. After first unsuccessfully
attempting to file a pro se appeal, on June 20, 2008, Edwards filed a motion requesting
the district court to reconsider the denial of his motions to withdraw pleas. This motion
was also summarily denied by the district court. Again using a preprinted form, the
district court checked the "overruled" box, and also wrote the explanation: "Same motion
as before."

Edwards filed an untimely appeal, and we ultimately granted his motion to file the
appeal out of time. This court's jurisdiction arises under K.S.A 22-3601(b)(1) (off-grid
crime; life sentence).

ANALYSIS

Edwards argues that the district court violated his due process rights by denying
his motion to withdraw pleas, his supplemental motion to withdraw pleas, and his motion
for reconsideration. Edwards also argues that the district court's summary denials were
inappropriate in that the court failed to make any findings on the record with which to
facilitate appellate review. He contends a remand, therefore, is necessary. Edwards'
contentions lack merit.

The standard of review for withdrawal of a guilty plea after sentencing states that a
court considering a timely motion may set aside a judgment of conviction and permit a
defendant to withdraw a plea to correct manifest injustice. K.S.A. 2009 Supp. 22-
3210(d)(2). To be timely, any action under K.S.A. 2009 Supp. 22-3210(d)(2) must be
brought within 1 year of the final order of the last appellate court in this state to exercise
jurisdiction on a direct appeal, or the termination of such appellate jurisdiction. K.S.A.
2009 Supp. 22-3210(e)(1)(A). The time limitation may be extended by the court "only
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upon an additional, affirmative showing of excusable neglect by the defendant." K.S.A.
2009 Supp. 22-3210(e)(2).

This court has consistently stated that the denial of a postsentencing motion to
withdraw a plea lies within the district court's discretion and an appellate court should not
disturb that ruling absent an abuse of discretion. See, e.g., State v. Woodward, 288 Kan.
297, 299, 202 P.3d 15 (2009); State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208
(2007). The appellant carries the burden of establishing an abuse of discretion. State v.
Harned, 281 Kan. 1023, 1042, 135 P.3d 1169 (2006).

In arguing that the district court erred in denying his motions, Edwards continues
his ongoing quest for a reduction of the aggravated kidnapping convictions. As for
Edwards' April 2008 contentions that (1) the State breached the plea agreement by
informing the district court that Edwards had entered a plea of guilty on an uncharged
crime (aggravated kidnapping) or (2) the plea bargain was based upon the State's promise
to recommend an "illegal sentence," these arguments were merely a rehash of his
previous attempts to request a sentence comparable to simple kidnapping. See, e.g., State
v. Edwards, 281 Kan. 1334, 1336-43, 135 P.3d 1251 (2006); Edwards, 254 Kan. at 490.

The district court expressed this sentiment by indicating in its denial of Edwards'
motion to reconsider the motions to withdraw pleas that this matter involved the "[s]ame
motion as before."

Edwards must have recognized this weakness in his arguments because he does
not advance on appeal any arguments related to the State's recommendation on
aggravated kidnapping or the State's promise to recommend what was an "illegal
sentence." An issue that is not briefed by an appellant is deemed waived or abandoned.
See State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007).

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Despite abandoning on appeal the issues presented to the district court, Edwards
argues that a remand is required because the district court failed to make any findings
specific to its denial of Edwards' motions to withdraw pleas. He complains that the
district court's mere checking of a box on a preprinted form constitutes an inadequate
appellate record. It was Edwards' motion to reconsider—in which he complained about
the court's lack of findings—which prompted the court to indicate on its denial of the
motion to reconsider that the matter involved the "[s]ame motion as before."

It is true that to facilitate a meaningful appellate review, the district court must
make sufficient findings of fact and conclusions of law on the record. State v. Moncla,
269 Kan. 61, 65, 4 P.3d 618 (2000); Supreme Court Rule 165 (2009 Kan. Ct. R. Annot.
239). This obligation is emphasized in Rule 165, which states in part that "[i]n all
contested matters submitted to a judge without a jury . . . , the judge shall state the
controlling facts required by K.S.A. 60-252, and the legal principles controlling the
decision." While this rule imposes a duty on the district judge, we recently held that a
party also has a burden and "must ensure the findings and conclusions by the district
judge are sufficient to support appellate argument, by filing of a motion invoking the
judge's duty under Rule 165, if necessary." State v. Seward, 289 Kan. 715, 721, 217 P.3d
443 (2009); see Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279
(2006) (litigant must object to inadequate findings of fact and conclusions of law before
the trial court to preserve the issue for appeal).

Here, as the State points out, Edwards objected but did not do so in a timely
manner. A motion to reconsider is generally treated as a motion to alter or amend under
K.S.A. 60-259(f). K.S.A. 60-259(f) requires that such motions are to be filed no later
than 10 days after entry of judgment. See State v. Marks, 14 Kan. App. 2d 594, 597, 796
P.2d 174, rev. denied 247 Kan. 706 (1990). Edwards's pro se motion was filed well
beyond the 10-day period.
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Regardless of whether Edwards' motion to reconsider was timely, the district
court's notation on the denial of Edwards' motion to reconsider—indicating that this
matter involves the "[s]ame motion as before"—implies that there was no merit in
Edwards' contentions because courts have previously ruled on those issues. And while
Edwards criticizes the district court for not making findings of fact, no such findings are
necessary to facilitate appellate review here, especially where Edwards does not advance
on appeal the same arguments presented to the district court.

Edwards takes a different approach on appeal. Placing a new "cover" on the worn-
out "withdrawal of pleas" issue, Edwards argues solely that he should have been
permitted to withdraw his pleas because the State violated the plea agreement "by
recommending a life plus 20 plus life sentence," which was allegedly different from the
negotiated recommendation. He contends that such violation of the plea agreement has
violated his due process rights and "thereby resulted in manifest injustice which should
be remedied by allowing the defendant to withdraw his plea."

Edwards' contention fails for several reasons.

First, this argument is presented to this court for the first time on appeal.
Generally, issues not raised before the district court cannot be raised for the first time on
appeal. See State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). This includes
constitutional grounds for reversal. State v. Gant, 288 Kan. 76, 82, 201 P.3d 673 (2009).
Nevertheless, this court has recognized three exceptions to the general rule: "(1) The
newly asserted claim involves only a question of law arising on proved or admitted facts
and is determinative of the case; (2) consideration of the claim is necessary to serve the
ends of justice or to prevent the denial of fundamental rights; and (3) the district court is
right for the wrong reason." State v. Ortega-Cadelan, 287 Kan. 157, 159, 194 P.3d 1195
(2008); see Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858
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(1967). The State concedes that the first exception "may apply" in that the issue raised
by Edwards involves a question of law arising upon proven facts. But Edwards never
seeks to justify the applicability of any exception.

Second, if we consider the argument in light of the State's concession, his
argument fails because it was untimely. As previously noted, K.S.A. 2009 Supp. 22-
3210(e)(1) imposes a 1-year statutory deadline. More specifically, the statute requires
that a motion to correct manifest injustice by permitting a defendant to withdraw a plea

"must be brought within one year of: (A) The final order of the last appellate court in this
state to exercise jurisdiction on a direct appeal or the termination of such appellate
jurisdiction; or (B) the denial of a petition for a writ of certiorari to the United States
supreme court or issuance of such court's final order following the granting of such
petition." K.S.A. 2009 Supp. 22-3210(e)(1).

Edwards filed his motions to withdraw pleas 14 years after his direct appeal. And
although the 1-year time limitation may be extended upon an affirmative showing of
excusable neglect by the defendant, Edwards has made no such showing. See K.S.A.
2009 Supp. 22-3210(e)(2).

Finally, we reject Edwards argument because there is no merit to his contention
that the State violated the plea agreement. A review of the record reveals that the plea
agreement set out the penalties for each crime. The plea agreement stated in part that
"[u]pon successful plea to counts 1-8[, the] State will recommend sentence of one life
sentence plus 20 years consecutive to each other and consecutive to any [parole
violation] but concurrent with all other counts in this case and concurrent to any other
case(s)." (Emphasis added.)

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Edwards argues that the State breached its agreement by recommending at the
sentencing hearing "a life plus 20 plus life sentence." Our review of the transcript of the
sentencing hearing shows otherwise. The following colloquy occurred:

"[Court]: Now, as I read this, State is recommending that on Count[s] 1 and 2
that there would be a concurrent sentence, and that on the other cases they would just
recommend that the minimum time would be granted plus one of those sentences, up to
twenty to life, would run consecutive with the first two?

"[Prosecutor]: Excuse me. May I help you? What we have talked about would
be Counts 1, 2, 3 and 4 maximum sentences concurrent with each other, and consecutive
to Counts 5, 6 and 7, maximum concurrent, but consecutive to Count 8 maximum, which
is the life plus twenty consecutive year sentence. So it's Counts 1, 2, 3 and 4 maximum
concurrent, consecutive to 5, 6 and 7 maximum concurrent, consecutive to Count 8."
(Emphasis added.)

While there was some discussion about which sentences should run concurrently
and which sentences should run consecutively (about which Edwards does not complain),
the bottom line is that the State did recommend a "life plus 20 consecutive" sentence.
Edwards ultimately received a controlling life sentence as anticipated. See Edwards, 254
Kan. at 490 ("Edwards received the sentences for which he had bargained").

The district court did not abuse its discretion in refusing to allow Edwards to
withdraw his pleas.

Affirmed.

DAVIS, C.J., not participating.
LARSON, S.J., assigned. 1

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1 REPORTER'S NOTE: Senior Judge Edward Larson was appointed to hear case No.
101,198 vice Chief Justice Davis pursuant to the authority vested in the Supreme Court
by K.S.A. 20-2616.