State v. Flores

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 104,099

STATE OF KANSAS,
Appellee,

v.

RAFAEL L. FLORES,
Appellant.


SYLLABUS BY THE COURT

1.
Although attempted voluntary manslaughter is not specifically included in the
K.S.A. 21-3436(a) (Furse 1995) list of inherently dangerous felonies capable of
supporting a felony-murder charge under K.S.A. 21-3401(b), voluntary manslaughter is
included in the K.S.A. 21-3436(b)(3) (Furse 1995) list of felonies which may be
inherently dangerous in certain circumstances. Further, because K.S.A. 21-3401(b)
specifically anticipates that an attempt to commit an inherently dangerous felony may
support a felony-murder charge, an attempted voluntary manslaughter may support a
felony-murder charge if the circumstances identified in K.S.A. 21-3436(b) (Furse (1995)
are met.

2.
A defendant can be charged with and plead no contest to felony murder with the
underlying charge of attempt to commit voluntary manslaughter as long as the underlying
attempted voluntary manslaughter charge was so distinct from the homicide which was
the subject of the felony murder charge as not to be an ingredient of the homicide alleged
to be the felony murder.

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Appeal from Ford District Court; DANIEL L. LOVE, judge. Opinion filed June 3, 2011. Affirmed.

Louis A. Podrebarac, of Meade, was on the brief for appellant.

Natalie K. Randall, assistant county attorney, Terry J. Malone, county attorney, and Steve Six,
attorney general, were on the brief for appellee.

The opinion of the court was delivered by

MORITZ, J.: Rafael Flores appeals the district court's denial of his motion to
withdraw his no contest plea after sentencing. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

After being certified to be tried as an adult, Flores was charged with one count of
premeditated first-degree murder, with an alternative count of felony murder; two counts
of attempted first-degree murder; one count of criminal damage to property; and one
count of criminal possession of a firearm by a juvenile. Flores pled no contest to and was
convicted of one count of first-degree felony murder and one count of attempted
voluntary manslaughter. The district court imposed consecutive sentences of life
imprisonment for the felony-murder conviction and 34 months' imprisonment for the
attempted voluntary manslaughter conviction.

On direct appeal to this court, Flores argued the district court abused its discretion
in sentencing him consecutively. This court dismissed the appeal for lack of jurisdiction.
State v. Flores, 268 Kan. 657, 660, 999 P.2d 919 (2000) (Flores I).

In 2004, Flores filed a pro se motion to correct an illegal sentence pursuant to
K.S.A. 22-3504. Flores argued that a "provision of the Juvenile Offenders Code in effect
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at the time of the shooting, K.S.A. 38-1636(i) (Furse 1993), precluded the imposition of
an adult sentence because the attempted voluntary manslaughter conviction was a lesser
included offense of the originally charged crime of attempted first-degree murder." State
v. Flores, 283 Kan. 380, 381, 153 P.3d 506 (2007) (Flores II). This court affirmed the
district court's denial of Flores' motion to correct an illegal sentence. Flores II, 283 Kan.
at 388.

In 2009, Flores moved to withdraw his plea pursuant to K.S.A. 2009 Supp. 22-
3210(d), arguing the district court lacked subject matter jurisdiction because felony
murder with an underlying felony of attempted voluntary manslaughter is not a crime. In
the alternative, he claimed his trial counsel was ineffective for failing to file a motion to
arrest judgment.

Flores now appeals the district court's denial of his motion to withdraw his plea.
We have jurisdiction over this appeal under K.S.A. 22-3601(b)(1) (off-grid crime; life
sentence). See State v. Kelly, 291 Kan. 563, 244 P.3d 639 (2010).

ANALYSIS

Following sentencing, the district court may set aside the judgment of conviction
and permit the defendant to withdraw the plea in order to correct manifest injustice.
K.S.A. 2009 Supp. 22-3210(d)(2). Absent an abuse of discretion, we will not disturb a
trial court's denial of a motion to withdraw plea after sentencing. State v. Woodward, 288
Kan. 297, 299, 202 P.3d 15 (2009). A district court abuses its discretion if its action is
arbitrary, fanciful, or unreasonable. A trial court does not abuse its discretion if
reasonable persons could differ as to the propriety of the court's action. State v. Gant, 288
Kan. 76, 81-82, 201 P.3d 673 (2009).

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Further, in determining whether the district court abused its discretion, we must
consider whether its ruling was based upon a correct understanding of the law. State v.
Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006); see also State v. Gonzalez, 290 Kan. 747,
756, 234 P.3d 1 (2010) (abuse of discretion review includes consideration of whether the
lower court correctly understood and applied controlling legal standards).

Flores concedes he received a "beneficial plea agreement" but nevertheless
contends he pled to a nonexistent crime because K.S.A. 21-3436 (Furse 1995) does not
include attempted voluntary manslaughter as an inherently dangerous felony.

On appeal, the State agrees "that the plea deal orchestrated by the [S]tate and
defense . . . was not supported by the law." Nevertheless, the State urges this court to
affirm the district court's rationale in denying the motion to withdraw the plea—namely,
that a defendant may plead to a nonexistent crime if the defendant initially was brought
into court on a valid complaint; received a beneficial plea agreement; and voluntarily,
knowingly, and intelligently entered into the plea agreement. See Spencer v. State, 24
Kan. App. 2d 125, 129, 942 P.3d 646 (1997), aff'd 264 Kan. 4, 954 P.2d 1088 (1998); see
also Easterwood v. State, 273 Kan. 361, Syl., 44 P.3d 1209, cert. denied 537 U.S. 951
(2002) (holding that defendant, who had opportunity to challenge felony-murder charge
but knowingly waived that right and pled guilty to felony murder and other charges, was
bound by plea agreement and was not entitled to collaterally attack his convictions);
McPherson v. State, 38 Kan. App. 2d 276, 285, 163 P.3d 1257 (2007) (holding "[a]s long
as due process requirements are met and the bargain is beneficial to the defendant, the
defendant cannot later validly collaterally attack either the plea or the bargained-for
sentence").

However, we need not address the district court's rationale as we have concluded
that the charge to which Flores ultimately pled—felony murder with an underlying felony
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of attempted voluntary manslaughter—was a crime under the circumstances presented
here.

Flores ignores the specific language of K.S.A. 21-3401(b) (Furse 1995), which
defines murder in the first degree as the killing of a human being committed "in the
commission of, attempt to commit, or flight from an inherently dangerous felony as
defined in K.S.A. 21-3436 and amendments thereto." (Emphasis added.) K.S.A. 21-
3301(a) (Furse 1995) defined attempt as "any overt act toward the perpetration of a crime
done by a person who intends to commit such crime but fails in the perpetration thereof
or is prevented or intercepted in executing such crime."

And while Flores correctly contends that K.S.A. 21-3436 (Furse 1995) does not
include "attempted voluntary manslaughter" as an inherently dangerous felony, 21-
3436(b) does define inherently dangerous felonies to include voluntary manslaughter
"when such felony is so distinct from the homicide alleged to be a violation of subsection
(b) of K.S.A. 21-3401 and amendments thereto as to not be an ingredient of the homicide
alleged to be a violation of subsection (b) of K.S.A. 21-3401 and amendments thereto."

Thus, Flores could be charged with and plead no contest to felony murder with the
underlying charge of attempted voluntary manslaughter as long as the underlying
attempted voluntary manslaughter charge was so distinct from the homicide which was
the subject of the felony murder charge as not to be an ingredient of the homicide alleged
to be the felony murder. See State v. Gayden, 259 Kan. 69, 79, 910 P.2d 826 (1996)
(holding that attempted voluntary manslaughter of one victim can be an independent
underlying collateral felony supporting a conviction for felony murder of another victim).

Here, the amended information filed the day of the plea hearing specifically
charged Flores with the felony murder of Justin Mercado based on the underlying felony
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of attempted voluntary manslaughter of John Moses. The transcript of the plea hearing
demonstrates that Flores pled no contest to the amended information. Therefore, the
underlying felony to which Flores pled was distinct from and not an ingredient of the
homicide alleged to be the killing under K.S.A. 21-3401(b), and we reject Flores' claim
that he pled to a nonexistent crime.

Although the district court denied Flores' motion to withdraw his plea for a reason
it need not have considered, it reached the correct result, and we uphold the denial of the
motion. See State v.Murray, 285 Kan. 503, 533, 174 P.3d 407 (2008).

Affirmed.