State v. Garcia

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,140

STATE OF KANSAS,
Appellee,

v.

JUAN GARCIA,
Appellant.


SYLLABUS BY THE COURT

1.
At any time before sentencing, a district court may, within its discretion, permit a
defendant to withdraw a plea of guilty or nolo contendere upon the defendant's showing
of good cause.

2.
To determine whether a defendant has shown good cause to permit a 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 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.

3.
In reviewing a presentence denial of a motion to withdraw plea, an appellate court
employs an abuse of discretion standard of review. The defendant bears the burden of
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establishing the abuse of discretion. One way for a district court to abuse its discretion is
to base its decision on an error of law.

4.
When a defendant has pleaded nolo contendere pursuant to an agreement based
upon a mutual mistake about the defendant's criminal history score, the district court may
consider the circumstances giving rise to the mutual mistake in evaluating whether there
is good cause to permit plea withdrawal.

5.
Under the facts of this case, the district court's decision to deny the defendant's
motion to withdraw plea may have been guided by an erroneous legal conclusion.
Accordingly, the case is reversed and remanded to ensure that the district court applies
the appropriate legal standard to determine whether defendant made the good cause
showing required under K.S.A. 22-3210(b).

Review of the judgment of the Court of Appeals in an unpublished opinion filed August 20, 2010.
Appeal from Morton District Court; KIM R. SCHROEDER, judge. Opinion filed August 17, 2012. Judgment
of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed
and remanded with instructions.

Meryl Carver-Allmond, of Kansas Appellate Defender Office, argued the cause and was on the
brief for appellant.

Eric L. Witcher, county attorney, argued the cause, and Steve Six, attorney general, was with him
on the brief for appellee.

Per Curiam: Juan Garcia appeals the district court's denial of his motion to
withdraw his nolo contendere plea before sentencing. The majority of the Court of
Appeals panel affirmed the denial. Garcia's primary contention is that the district court
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may have relied upon State v. Ford, 23 Kan. App. 2d 248, 930 P.2d 1089 (1996), whose
insistence on an allegation of innocence in a presentencing plea withdrawal motion has
been rejected by this court.

Garcia's second argument—that his prior convictions were used improperly to
increase his sentence because they were not proved to a jury beyond a reasonable
doubt—has no merit and will not be further discussed. See State v. Bennington, 293 Kan.
503, Syl. ¶ 9, 264 P.3d 440 (2011); State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578
(2009); State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002).

Because it is unclear whether the district judge relied upon that part of Ford that
has been disapproved, we reverse and remand for a new hearing to consider Garcia's
motion under the appropriate legal standard.

FACTUAL AND PROCEDURAL BACKGROUND

The chronological order of events in this case and filing of decisions from our
court is critical to an understanding of our ultimate holding. We therefore recite this order
in some detail.

On June 18, 2008, Juan Garcia was charged with attempted second-degree murder
and intentional aggravated battery. Clinton Peterson was appointed to represent Garcia
and negotiated a plea bargain with the State. Under the plea agreement, the State agreed
to reduce the aggravated battery charge from a severity level 4 felony to a severity level 5
felony. It also agreed to dismiss the second-degree murder charge and the charges
pending in another criminal case. At a later arraignment hearing, Garcia pleaded nolo
contendere to reckless aggravated battery, and the district court dismissed the other
charges.

4

At that hearing, the district court advised Garcia of the potential minimum and
maximum sentences on the reckless aggravated battery and further advised that Garcia's
actual sentence length would depend on his criminal history:

"THE COURT: . . . Mr. Garcia, without knowing your prior criminal history
with the aggravated charge being a level five person felony, if you are convicted, you can
be sentenced from 31 months to 136 months in the custody of the Secretary of
Corrections and fined up to $300,000 depending upon your financial condition. Do you
understand?

"THE DEFENDANT: Yes sir."

The court also informed Garcia that it was not bound by any agreement between
the State and his attorney:

"THE COURT: Now, you've heard the announcement of the plea negotiations?

"THE DEFENDANT: Yes.

"THE COURT: Has anyone promised if you enter a plea here today that you will
get probation?

"THE DEFENDANT: No.

. . . .

"THE COURT: You understand at the time of sentencing, the Court's not bound
by any agreement between your attorney and the County Attorney as to what your
sentence should be?

"THE DEFENDANT: Yes.

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"THE COURT: You understand the Court's left to its discretion to sentence in
compliance with the Kansas Sentencing Guidelines?

"THE DEFENDANT: Yes."

After Garcia's plea was accepted and he was found guilty, a Presentence
Investigation Report (PSI) was prepared. It showed Garcia's criminal history score was B.
Garcia had expected his criminal history score to be C, apparently believing that only his
prior adult criminal convictions would count toward his score, i.e., he was unaware that a
prior juvenile adjudication from 13 years before would be treated as a person felony. The
score of B more than doubled his presumptive sentence range from 53 to 60 months to
114 to 128 months.

Garcia obtained new counsel and filed a motion to withdraw plea on November 8,
2008, arguing that holding him to his plea would be manifest injustice.

On December 12, 2008, this court filed its decision in State v. Schow, 287 Kan.
529, Syl. ¶ 3, 197 P.3d 825 (2008), which held that "[w]here a defendant has pled guilty
pursuant to a plea agreement which was based upon a mutual mistake as to defendant's
criminal history score, the district court may consider the circumstances giving rise to the
mutual mistake to the extent they may implicate the factors applicable to the existence of
good cause to withdraw a plea." Schow also observed that this court's earlier decision in
State v. Vasquez, 272 Kan. 692, 696, 36 P.3d 246 (2001), had rejected the proposition
that a presentencing motion to withdraw must allege innocence. 287 Kan. at 541. The
Court of Appeals decision in Ford had been among the Kansas cases stating that a
presentencing motion should be justified by an allegation "'that defendant is not guilty of
the offense charged and that the plea was made because of fraud, duress, mutual mistake,
or lack of understanding of the charge and the effect of the plea.'" Ford, 23 Kan. App. 2d
at 251 (quoting State v. Johnson, 258 Kan 607, 610-11, 907 P.2d 140 [1995]).
6


Garcia filed an amended motion on December 31, 2008, to correct his invocation
of a manifest injustice standard applicable to postsentencing plea withdrawal to the lesser
good cause standard applicable to presentencing plea withdrawal. Garcia relied on the
fact that his criminal history score was higher than he expected.

Garcia's amended motion stated that he had informed attorney Peterson that his
"criminal history score was a level C, consisting of one person felony conviction and one
nonperson/drug felony conviction." The motion implies that Garcia did not inform
Peterson that he had a prior juvenile adjudication: "The Defendant was under the
impression that the Court was only going to look at the criminal convictions, thus leading
him to believe he had only one person felony conviction and one nonperson/drug felony
conviction . . . . The Defendant spoke with counsel about his criminal history, stating that
he had two felony convictions."

Garcia further stated that the

"focus of plea negotiations was for the duration of the prison sentence and not amending
the crime or the nature of the crime . . . . By agreeing to the level 5 felony, the Defendant
had bargained to be placed in a sentencing box with a range of [53 to 60] months . . . .
The sole purpose of this plea was to control the box in which the Defendant fell for the
purpose of sentencing . . . . [I]t cannot be stated nor proven that the Defendant understood
the plea that was made, especially given the nature of plea negotiations and the attempt to
control where on the sentencing guidelines the Defendant would be placed as a result of
the plea."

The motion urged the district court to conclude that the plea had not been
understandingly or fairly entered and that the absence of any discussion of juvenile
adjudications in the time during which the plea was negotiated and accepted meant the
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defendant had been misled. Refusal to grant the plea withdrawal would violate Garcia's
constitutional rights.

Garcia's amended motion did not cite to the new Schow decision or to the 2001
Vasquez decision.

The State also did not cite to Schow or Vasquez. It disputed Garcia's allegation that
the parties agreed upon a sentence between 53 and 57 months. In its response motion it
stated: "No mention of the Defendant's criminal history was made during the plea
negotiations other than that it was believed the Defendant would receive approximately
fifty-five (55) months in the Department of Corrections." It requested that Garcia's
motion be denied and that, per his criminal history score of B, he be sentenced to between
114 and 128 months in prison.

At the plea withdrawal hearing on January 6, 2009, Garcia's testimony reinforced
that his main focus in the plea negotiations was the amount of time he would be serving.
When he entered the plea, his understanding was that he would be facing a 53- to 60-
month sentence and, although he had a prior juvenile case, he "did not know [it] was
going to affect sentencing." Garcia also said that he was misled into accepting a plea deal
because he believed his criminal history score was C.

For the State, the prosecutor elaborated upon the reference to a 55-month sentence
contained in his response to Garcia's amended motion, alleging it represented only the
minimum amount of time Garcia would serve:

"With regard to the negotiations of the plea, I was intimately involved in that, Your
Honor. The only reason the 55 months was ever mentioned was to make sure that I was
comfortable with the amount of time at a minimum, that he was going to do. It wasn't a
guarantee this is what you're going to get, any of that. Mr. Peterson [defense counsel]
came up to me and said, 'We can send him for 55 months.' I said, 'That sounds fine.'
8

There was no guarantee . . . . That's the only thing that was ever discussed with regard to
the quote unquote, 55 month issue." (Emphasis added.)

In short, the prosecutor denied that there had been any meeting of the minds or agreement
on Garcia's criminal history score.

The defense nevertheless argued that, because the State wanted Garcia to serve
about 55 months:

"[I]t can be [deduced] that the parties were in agreement that that's where his criminal
history score was ['C'] . . . . [W]e both agree that that's the box that we thought he was
going to land in and that's the box where he moved under, and that's where the sentence
was supposed to be."

Defense counsel also made clear at the plea withdrawal hearing that he and Garcia
were not alleging ineffective assistance of Garcia's plea counsel:

"And I think my brief explains to the Court that the elements that you must consider for
good cause shown [to withdraw a plea] are three. And they are [1] that the defendant was
represented by competent counsel. Now, in regards to Mr. Peterson, we're not making a
claim that he's incompetent. That's not an issue."

The district court judge denied Garcia's motion. He began by mentioning State v.
Ford, 23 Kan. App. 2d 248. He then reviewed several factors for determining whether he
should permit Garcia's plea to be withdrawn for good cause.

"THE COURT: Well counsel, I've read both briefs and I've dealt with these
motions on a number of occasions in the past. You know, one of the cases that the Court
has looked at and was cited by the State, was State v. Ford at 23 Kan. App. 2d 248. And
the Court's well aware of the issues on a motion to withdraw for good cause and the
considerations of one [factor whether] the defendant was represented by competent
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counsel. There's . . . no dispute here. And this court is well aware of the experience and
the ability of Mr. Peterson as an attorney to represent defendants in criminal matters. And
this Court has no doubt about the competence of Mr. Peterson. And that's not an issue
being made here."

The judge continued by addressing a second factor for determining whether a plea
should be withdrawn for good cause:

"[THE COURT:] The second one is that the defendant was misled, coerced,
mistreated or unfairly taken advantage of. I don't know how the Court gets to those
points. There is no allegation of coercion. There's no allegation of mistreatment. And
there's no allegation that he was unfairly taken advantage of. The case law says that the
defendant knows his own criminal history and is presumed to know his own criminal
history. Now, the argument might be said that he was misled, because he thought he was
going to get 55 months. Now, that's his perception. The Court at the time of his plea,
advised him of the minimum and maximum sentence that could be imposed on a level
five felony. So, and the Court told him that that sentence would depend upon his prior
criminal history. There's no misleading here. There may have been a misperception on his
part, but the Court does not find that he was misled."

The judge continued by addressing a third factor:

"[THE COURT:] Finally, that the plea was fairly and understandingly made.
The Court went through a long list of questions with Mr. Garcia at the time he entered his
plea. Explained the ramifications, the rights that he was giving up. The options that he
had. And again, went through the potential sentence range that he would be subjecting
himself to if he entered a plea to a level five felony. The Court at the time of his plea had
no knowledge whether he was an I or an A [criminal history range] or anywhere in
between. All this Court knew was that Mr. Garcia was entering a plea to a level five, and
that his sentencing range would depend upon his prior criminal history.

"So this Court does not find that there was—that the plea was not fairly and
understandingly made."
10


After addressing these three factors, the judge continued in relevant part:

"[THE COURT:] Now, the Court will also address the questions raised in State
v. Ford or the issues.

"There's no allegation in the motion that this Court has seen, that the defendant
is not guilty of the crime that he was convicted of. He—this allegation is that Mr. Garcia
entered a plea. Upon entering the plea, now does not like the presentence investigation
and wants to withdraw the plea, because he doesn't like the presentence investigation.
That is not a basis and that is not good cause. This Court asked Mr. Garcia at the time of
his plea, all of the questions that are required, as this Court is aware of, for the entering of
a plea, so that the Court is aware that the plea was knowingly, voluntarily, and
intelligently entered with knowledge of the consequences. Mr. Garcia had knowledge of
the consequences by the minimum and maximum number of months that he could be
sentenced depending upon his prior criminal history, if any. The Court addressed Mr.
Garcia personally, and Mr. Garcia answered the Court's questions in the appropriate way
as the record reflects. This Court, also, advised Mr. Garcia that it was not bound by any
agreement." (Emphasis added.)

The judge ultimately denied the motion:

"THE COURT: And based upon all [these] reasons, the Court finds that the
motion to withdraw his plea for good cause shown is denied and fails. That he has shown
no good cause, other than the fact that he is now dissatisfied with the results of the
presentence investigation, because it shows that he is a criminal history C instead of a
criminal history B. It shows him as to a criminal history B instead of what he thought he
would be, a criminal history score C, I'm sorry if I read it backwards. So the motion is
denied."

11

The judge sentenced Garcia to 128 months' incarceration. This was the high figure
in the grid box applicable to a defendant guilty of a level 5 felony with a criminal history
score of B.

On appeal to the Court of Appeals, Garcia relied principally on Schow, arguing
that an allegation of innocence is not necessary to a showing of good cause and that a
mutual mistake of fact on a criminal history score can be. For its part, the State argued
that the district judge's reference to Ford did not indicate his imposition of a requirement
of an allegation of innocence and that even Schow prescribed examination of three factors
to determine the existence of good cause: (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. See Schow, 287 Kan. at 542; State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006).

A majority of the Court of Appeals panel affirmed the motion denial, holding that
Garcia had not established that the district judge based his decision on an incorrect
understanding of the law. "[T]he district court did not make an innocence allegation a
prerequisite to plea withdrawal." State v. Garcia, No. 102,140, 2010 WL 3323813, at *4
(Kan. App. 2010) (unpublished opinion). The majority held that, although the district
court cited Ford, he simply made a one-sentence observation about the lack of an
allegation of Garcia's innocence. In the alternative, the majority said, the lack of an
innocence allegation was appropriately included as one factor in the district court's plea
withdrawal analysis. The majority distinguished this case from Ford, because the district
judge had not ruled that the absence of an innocence allegation was dispositive against
the defendant.

Judge Leben dissented. His first basis was the district judge's citation to Ford
without a citation to this court's later decision in Schow. He believed this meant the
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district judge "operated under a mistaken understanding of the law." Garcia, 2010 WL
3323813, at *6 (Leben, J., dissenting).

Second, as Garcia had argued, Judge Leben believed the district judge had not
followed other Schow dictates. Specifically, the court failed to consider the circumstances
giving rise to the "mutual mistake" about Garcia's criminal history score and their effect
on the factors contained in Edgar, 281 Kan. at 36. Rather, the court simply relied upon
the standard warnings it had given before taking the plea: cautionary comments about
potential maximums and about the final sentence being determined by Garcia's full
criminal history score shown in the presentence investigation report. Judge Leben would
have remanded for district court consideration of the motion under the proper legal
standards. Garcia, 2010 WL 3323813, at *8 (Leben, J., dissenting).

We granted Garcia's petition for review.

ANALYSIS

Generally, a district court's decision to deny a motion to withdraw plea is reviewed
for an abuse of discretion. State v. Freeman, 292 Kan. 24, 27, 253 P.3d 1 (2011). But
Garcia alleges a particular type of abuse of discretion—application of the wrong legal
standard. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011). To the extent we
review whether the district court's discretionary determination was guided by erroneous
legal conclusions, we exercise unlimited review. State v. Gonzalez, 290 Kan. 747, 755-
56, 234 P.3d 1 (2010).

As the party alleging abuse of discretion, Garcia bears the burden of establishing
it. Schow, 287 Kan. at 541 (citing State v. Harned, 281 Kan. 1023, 1042, 135 P.3d 1169
[2006]).

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Garcia primarily contends, as did Judge Leben in his dissent, that the district judge
may have abused his discretion by relying upon Ford to require him to allege his
innocence as a prerequisite to withdraw his guilty plea. Five years after the Court of
Appeals' decision in Ford, we held to the contrary: "[T]his court does not require an
allegation that defendant is not guilty as charged as a prerequisite for withdrawing a plea
of guilty or nolo contendere prior to sentencing." Vasquez, 272 Kan. at 696. And, more
recently, in Schow, we reinforced Vasquez on this point. Garcia also endorses Judge
Leben's dissent in another respect, arguing that the district judge failed to follow Schow
by considering the circumstances giving rise to a mutual mistake about Garcia's criminal
history score. Instead, Garcia asserts, the district judge relied exclusively upon the fact
that Garcia received standard warnings given at plea hearings about the instability of
predictions of sentencing ranges and a judge's freedom to depart from the parties'
recommendations. Accordingly, Garcia asks that this case "be remanded for new
consideration of Mr. Garcia's presentence motion to withdraw his plea" under Schow.

As before the Court of Appeals, the State responds that the district judge merely
used Ford to outline the Edgar factors and mentioned only in passing that Garcia had not
asserted his innocence. The State also asserts that the district judge did follow Schow's
remaining rubric for evaluating whether a mutual mistake on Garcia's criminal history
compelled withdrawal of his plea. Specifically, the judge conducted a thorough Edgar-
style analysis that considered the circumstances giving rise to the purported mutual
mistake. And, per Schow, Garcia had not been misled or induced unfairly to enter his
nolo plea because the State had made no assurances as to his criminal history. In the
alternative, the State argues that any criminal history mistake was not mutual, but
unilateral, because Garcia would have known about his prior juvenile adjudication and
failed to inform his counsel, the prosecutor, and the court until after he was confronted
with its appearance in his PSI.

14

The parties are correct that, because Garcia filed his motion to withdraw his nolo
contendere plea before sentencing, the district judge had discretion to allow him to
withdraw once he had demonstrated good cause. K.S.A. 22-3210(b). Kansas courts
generally consider the three "Edgar factors" when evaluating whether a defendant has
presented the requisite good cause: Edgar, 281 Kan. at 36; see State v. Aguilar, 290 Kan.
506, 511, 231 P.3d 563 (2010) (citing Edgar, 281 Kan. at 36). While the Edgar 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." Aguilar, 290 Kan. at 512.

On the Ford allegation-of-innocence issue, Judge Leben accurately and succinctly
articulated Kansas law: "[A] trial judge may consider whether the defendant is claiming
innocence—such a claim might well support good cause. What the district court can't do
is require a claim of innocence to withdraw a plea." Garcia, 2010 WL 3323813, at *6
(Leben, J., dissenting).

This rule is consistent with the approach in several federal circuits, including the
Tenth Circuit. See United States v. Byrum, 567 F.3d 1255 (10th Cir. 2009) (factors to
consider on motions to withdraw plea before sentencing included "whether the defendant
has asserted his innocence"); United States v. King, 604 F.3d 125, 139 (3d Cir. 2010)
(same); United States v. Carreto, 583 F.3d 152, 157 (2d Cir. 2009) (same); United States
v. Rodgriguez-Leon, 402 F.3d 17, 25 (1st Cir. 2005) (same). It is also consistent with our
statement in Aguilar that a district court judge may consider all relevant factors, in
addition to Edgar factors. 290 Kan. at 511.

The problem here is that the district judge's statements at the plea withdrawal
hearing—including his explicit reference to Ford and his failure to mention Vasquez or
Schow—lead us to the conclusion that he may have given the absence of an allegation of
innocence more weight than it deserved. We acknowledge that the district judge also
correctly considered the Edgar factors, a calculus in which any mutual or unilateral
15

mistake as to Garcia's criminal history score may have been adequately included. See
Schow, 287 Kan. 529, Syl. ¶ 3. We are simply not reassured enough by the district judge's
discussion of the Edgar factors so as to discount or disregard the possibly inappropriate
emphasis on Ford and the absence of an allegation of innocence. As a result, the district
judge's decision may have been guided by an erroneous legal conclusion, making the
denial of Garcia's motion an abuse of discretion. As we said in Schow, "[T]o the extent
the district court refused to grant the motion to withdraw plea based upon an erroneous
understanding of the law, i.e., that an allegation of innocence was a prerequisite, the
ruling would be an abuse of discretion." 287 Kan. at 541.

Given this uncertainty, we must reverse the district judge's denial of Garcia's
motion to withdraw plea and remand for another hearing and apply the appropriate legal
standards. The judge must determine under the framework discussed here whether Garcia
has made his good cause showing under K.S.A. 22-3210(b) and then exercise his
discretion in ruling on the motion. Given this outcome on Garcia's first argument, we do
not reach the merits of his second argument on mutual mistake.

Reversed and remanded with instructions.

* * *

ROSEN, J., concurring: I write separately because I believe that a plea should not
result in a sentencing hearing that casts Garcia and similarly situated defendants in the
role of a game show contestant anxiously wondering what criminal history score will be
revealed behind door number one. I have previously thought otherwise about the degree
of knowledge required to make a knowing and intelligent plea, but I have come to the
conclusion that our statutorily derived procedure of determining criminal history
postconviction prevents the defendant from an intelligent understanding of the presumed
consequences of the plea. And further, our interpretation of K.S.A. 22-3210(a)(2) makes
16

meaningless the statute's intention of providing the defendant knowledge of the
maximum nonchallengeable, nonreviewable, presumptive liberty interest at stake.

Most criminal cases are resolved by a plea. A guilty or nolo contendre plea waives
several important constitutional guarantees, including the right against self-incrimination,
the right to trial by jury, and the right to confront one's accusers. See, e.g., State v. Moses,
280 Kan. 939, 946, 127 P.3d 330 (2006). For that reason, the law requires that a waiver
must be knowingly, intelligently, and voluntarily entered. There are numerous
motivations for all of the parties in a criminal case to reach resolution by the plea
negotiation process. The defendant is waiving constitutional rights in exchange for
understanding the presumptive disposition and limiting the potential duration of the
sentence to be imposed, reducing the number of convictions, minimizing the impact on
criminal history, or other benefits. Plea agreements spare victims the trauma of testifying
and save the State time, expense, and uncertainty of trial. Clearly, our overcrowded
courts could not begin to resolve all of the cases in a timely manner if the majority of
cases were not settled through plea agreements. Plea negotiations are vital to the function
of our criminal courts; however, any shortcut employed in reaching final resolution in
these cases must not be at the expense of the heightened constitutional protections
demanded in criminal proceedings.

Following our statutorily derived procedure, a defendant's criminal history score is
not calculated until after the defendant has been convicted. K.S.A. 21-4714. This
procedure makes some sense for completing a final presentence investigation report
(PSI), because the PSI includes the current crime or crimes of conviction. But the delay
in calculating the defendant's criminal history score for the purpose of completing a PSI
compromises the underlying integrity and principles of fair and equitable justice by
requiring defendants to waive their constitutional rights without a basic understanding of
the consequences of their actions. This statute does not preclude the calculation of
17

criminal history prior to the plea, nor should it be applied in a manner that supersedes the
defendant's constitutional rights.

Further, K.S.A. 22-3210(a)(2) requires that, before accepting a plea of guilty or
nolo contendere "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." (Emphasis added.) This statute
recognizes the magnitude of the decision being made, which requires a full understanding
of the consequences to the defendant. The statute explicitly requires that the defendant be
informed of the maximum lawful penalty that may be imposed.

Without an accurate criminal history score calculated before the plea is accepted,
the district court cannot properly inform the defendant of the maximum penalty provided
by law. To accept the entire range provided by the sentencing guidelines as the
"maximum penalty provided by law" is to ignore the reality of the situation. For example,
in this case, Garcia did not enter a plea merely to secure "a level 5" conviction. He
entered a plea with the understanding that his expected criminal history score subjected
him to a presumptive sentence of 53 to 60 months' imprisonment. Instead, his actual
criminal history score more than doubled his presumptive sentence to 114 to 128 months'
imprisonment. Reciting the fact that a level 5 conviction has a minimum sentence of 31
months and a maximum sentence of 136 months, depending on criminal history, does
nothing more than repeat the fact that the defendant is entering a plea to a level 5,
nondrug felony. This range encompasses the actual maximum penalty provided by law
but does not inform the defendant of the actual applicable maximum penalty. The
statutorily required "maximum penalty provided by law" is one that can, and should, be
calculated before the defendant enters a plea of guilty or nolo contendere.

18

The Kansas Sentencing Guidelines Act (KSGA) K.S.A. 21-4701 et seq., provides
detailed and specific methods for determining the sentence applicable to any particular
crime or group of crimes, that is, the "maximum penalty provided by law." The
intersection of the severity level of the current crime of conviction and the defendant's
criminal history score provides a presumptive sentence. If the defendant has been
convicted of more than one crime, other provisions, such as the double-double rule,
further define the maximum sentence that the district court can impose. At a minimum,
the defendant should have this information before entering a plea that is considered
knowing and voluntary.

Requiring no more than the recitation of the potential sentencing range based
solely on a crime's severity level does not provide for a sufficient understanding of the
potential consequence of the voluntary waiver of the right to trial. "Knowingly and
intelligently" implies having the knowledge and being able to apply that knowledge to
one's decision. Being compelled to make such a critical decision without a basic
understanding of the consequences precludes the exercise of an intelligent choice. A
knowing and voluntary waiver of this important constitutional right requires that the
defendant have the applicable knowledge and the information necessary to apply that
knowledge to his or her decision. I now believe that the manner in which the law has
been applied to these situations precludes the full exercise of the concept of a knowing
and intelligent choice.

Some may argue that employing a procedure that reveals criminal history at the
plea stage somehow limits the sentencing court's discretion in imposing sentence. The
sentencing court's power to impose sentence is governed by the KSGA, not by the timing
of when criminal history is gathered and disclosed. Neither the State, nor defendant's
counsel, nor the defendant may bind the district court to any ultimate imposition of
sentence stated during the plea stage; the court always maintains the discretion to depart
on duration and/or disposition, utilization of jail sanctions, and in multiple conviction
19

scenarios, imposition of concurrent or consecutive sentences. However, disclosure of the
criminal history allows for a determination of the presumptive sentence for each crime in
which a plea is entered, and the presumptive sentence is where the required recitation of
any potential sentence should commence. The imposition of a presumptive sentence is
not appealable and is the starting point from which the court will ultimately impose the
controlling sentence. The presumptive sentence and any accompanying sentencing rules
are an important piece of the defendant's knowing and voluntary plea. Providing this
information complies with Kansas law by disclosing the actual maximum penalty which
may be imposed and gives the defendant a reasonable expectation of what lies ahead
upon that entry of a plea.

While I agree with the dissent in concluding that there was no uncertainty as to
whether the district court required Garcia to allege his innocence as a prerequisite to
withdrawing his plea, I cannot follow the dissent's public policy argument regarding the
defendant's disclosure of prior convictions. It has never been the duty or obligation of a
criminal defendant to provide his or her criminal history. Further, to expect any citizen
who is not law trained, let alone familiar with the KSGA, to self-determine criminal
history is unrealistic and contrary to the burdens that are placed on the State in criminal
proceedings. The dissent's concern of trickery or purposeful concealment of prior crimes
by deceitful defendants is eliminated by disclosure of their criminal history prior to
entering a plea.

From this point forward, I would require a criminal history determination, which is
to be used at any subsequent sentencing hearing, to be part of the plea agreement. In that
respect, I would adopt the procedural suggestions made in Dyer, Revising Criminal
History: Model Sentencing Guidelines §§ 4.1-4.2, 18 Fed. Sent'g Rep. 373, 377 (2006).
The gathering of criminal history information and the computation of a criminal history
score are merely issues of timing. While I realize this requirement compels a shifting of
resources not heretofore demanded, whatever inconvenience suffered by those required to
20

assemble this information before the plea hearing should not stand as an obstacle to
justice in light of the critical nature of this determination. Therefore, I would reverse and
allow Garcia to withdraw his plea. And because Garcia would possess the knowledge of
his criminal history, he could then knowingly and intelligently proceed accordingly.

* * *

JOHNSON, J., concurring: Although I believe that the record before us would
support a finding of good cause to grant Garcia's presentence motion to withdraw plea, I
am comfortable joining the majority's decision to remand the case to permit the district
court to rule on the motion in the first instance, utilizing the correct legal standards in the
exercise of its judicial discretion. But I disagree with the majority's declaration that the
district court "correctly considered the Edgar factors," if that statement is intended to
imply that the district court's analysis of those factors comported with the letter and spirit
of our decision in State v. Schow, 287 Kan. 529, 197 P.3d 825 (2008). The only aspect of
the district court's handling of the Edgar factors that I would label as "correct" is its
identification of the three factors. 287 Kan. at 534. Further, while I agree with Justice
Rosen's assessment of what should happen in the future, I will address what I believe
should happen here on remand.

In Schow, everyone at the plea hearing believed that the defendant had a criminal
history score of D which would have placed him in a presumptive probation grid box.
Before sentencing, the presentence investigation report (PSI) revealed three
misdemeanors that were subject to aggregation into an additional felony to make a
criminal history score of B and place Schow in a presumptive prison grid box. Schow's
attorney withdrew, and replacement counsel moved to withdraw the plea. The district
court denied the motion, and the Court of Appeals pronounced that, as a matter of law, a
mutual mistake as to the defendant's criminal history score could not be the basis for
21

good cause to withdraw a plea. State v. Schow, 37 Kan. App. 2d 941, 161 P.3d 222
(2007).

On review, this court rejected the Court of Appeals' purported rule of law,
suggesting that no special rule was necessary for a mutual mistake of criminal history
score. Rather, the mistake is simply a fact or circumstance to be plugged into the court's
analysis of the Edgar factors. We specifically said that "the circumstances giving rise to
the mistake [about defendant's criminal history score] may well implicate the Edgar
factors and should be available for consideration by the court." 287 Kan. at 543.
Moreover, we clarified that "good cause" and "manifest injustice" are not the same
inquiry, i.e., the defendant does not have to establish manifest injustice to show good
cause. 287 Kan. at 540-41.

Later, in State v. Aguilar, 290 Kan. 506, 512, 231 P.3d 563 (2010), we reiterated
that good cause is a lesser standard than manifest injustice. As such, a defendant need not
establish manifest injustice to show good cause. We also pointed out that the statute
provides that a good cause plea withdrawal is "'within the discretion of the court'"; that
"[a] district court has no discretion to fail to remedy a constitutional violation"; that,
therefore, "[i]t is neither logical nor fair to equate the lesser K.S.A. 22-3210(d) good
cause standard . . . to the high constitutional burden"; and that "[t]he Edgar factors do not
transform the lower good cause standard . . . into a constitutional gauntlet." 290 Kan. at
513. In other words, Garcia was not required to show a violation of his constitutional
rights in order to establish good cause to withdraw his plea.

Providing further guidance to the trial bench, Aguilar warned against a mechanical
application of the Edgar factors and clarified that "[a]ll 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." 290 Kan. at 513. In some cases, "lackluster advocacy" by defendant's attorney
22

could be enough to clear the good cause hurdle. 290 Kan. at 513. Aguilar remains good
law in this State, and we have not been asked to revisit it here.

Turning to the district court's analysis in this case, the record suggests that the
court mechanically and superficially applied the three Edgar factors, without relating
them to the defendant's mistaken belief that his plea would result in a 55-month prison
sentence. For instance, with respect to the first factor—whether the defendant was
represented by competent counsel—the majority quotes the trial judge as stating that he
was "well aware of the experience and the ability of [plea hearing defense counsel] as an
attorney to represent defendants in criminal matters. And [the district judge] has no doubt
about the competence of [plea hearing defense counsel]." The district court seemed to be
reading the first Edgar factor as simply requiring the district court to determine whether
the defendant's counsel possessed a general reputation for competency in criminal
defense law, as demonstrated by the attorney's past performance. But, of course, finding
that an attorney is generally recognized as being a competent criminal defense lawyer
does not answer the question of whether the attorney provided lackluster advocacy or
gave incompetent advice with respect to the particular plea sought to be withdrawn.

Although the recitation of the first factor might be read quite literally to mean a
general reputation for competency, that is obviously not what was intended. In the first
instance, if a defendant were to be represented by an attorney who is generally
recognized to be incompetent in the area of criminal defense, the district court would be
faced with a patently obvious and fundamental problem that would transcend any
question of "good cause." In that event, the defendant would be denied his or her
constitutional right to effective assistance of counsel, as well as his or her constitutional
right to due process of law, rendering the resulting plea invalid and subject to being set
aside without the necessity of considering any discretionary factors, Edgar or otherwise.

23

Moreover, even a cursory reading of Schow confirms that Edgar's first,
competency-of-counsel factor was intended to be an analysis of the defense attorney's
performance as it specifically relates to the defendant's plea. There we said:

"With respect to the first factor, the Court of Appeals stated that the record did
not suggest that Schow was not represented by competent counsel. To the contrary, we
find that the record raises a number of questions. An initial indication of performance
problems might be found in the fact that defense counsel felt compelled to withdraw from
the case in order to try to protect Schow's interests. Next, the current PSI indicated that
the information about the Florida misdemeanors, which raised the criminal history score
above that used in the plea bargain, was obtained from a prior PSI from the same district
court. One might wonder whether it was reasonable for defense counsel to rely upon the
State's representations of the number and severity level of prior convictions, when
verification could be obtained from the court's record. Furthermore, in order to reach the
higher score, the misdemeanors had to be aggregated and converted into a person felony,
prompting a question as to whether the current mistake was prompted by counsel's failure
to know or to apply the current sentencing guidelines." Schow, 287 Kan. at 543-44.

Similarly, here, some obvious questions come to mind: whether plea hearing
counsel asked Garcia about juvenile adjudications while discussing criminal history with
his client and, if not, whether the failure to inquire was due to a belief, shared by his
client, that juvenile adjudications were not part of the calculus; whether counsel
performed his own calculation of the criminal history score or simply accepted the
client's assessment; and whether counsel investigated the existence of a readily available
prior PSI or other documentation to confirm the facts relevant to Garcia's criminal
history. Also, it would be interesting to know whether the juvenile adjudication was
omitted from the criminal history scoring in Garcia's prior adult cases, so as to
corroborate his belief that the adjudication just did not matter. Granted, the district court
found that Garcia was not challenging the competency of his plea hearing counsel.
However, the court apparently misconstrued the gravamen of the first factor, and upon
remand, the arguments on this factor may well be different.
24


Moving to the second Edgar factor, the district court analyzed it in the context of
the in-court recitations at the plea hearing. After noting that Garcia had made "no
allegation of coercion . . . no allegation of mistreatment . . . no allegation that he was
unfairly taken advantage of," the court declared that a defendant is presumed to know his
own criminal history and that Garcia's belief that he was going to get 55 months was
simply "his perception." As Justice Rosen suggests in his concurrence, it is unrealistic
and contrary to the allocation of the burden in criminal cases to expect a defendant to
know the legal consequences of his or her prior convictions or adjudications. For
instance, K.S.A. 21-4710(d)(4) provides that certain juvenile adjudications "will decay if
the current crime of conviction is committed after the offender reaches the age of 25." In
my view, a defendant should be able to rely on defense counsel to inform him or her as to
how K.S.A. 21-4710(d)(4) and other sentencing guideline provisions apply to the
defendant's unique circumstances. Not the other way around.

The district court went on to say that, at the time of the plea, it had advised Garcia
of the minimum and maximum sentences that could be imposed on a level five felony
and had advised Garcia that the sentence would depend upon his prior criminal history.
The court concluded: "There's no misleading here. There may have been a misperception
on his part, but the Court does not find that he was misled." Apparently, the district court
was refuting any notion that the judge presiding at the plea hearing had misled the
defendant as to his criminal history score or the applicable grid box sentence, albeit
Garcia was not making that claim.

According to Garcia, he did, in fact, have a misperception of the benefit he was to
receive from the plea bargain; he thought he would receive a 55-month sentence. That
misperception was corroborated by the discourse between defense counsel and the
prosecutor, as related by the prosecutor: Defense counsel said, "'We can send him for 55
months,'" and the prosecutor responded, "'That sounds fine.'" If the attorneys, rather than
25

correcting the defendant's misperception of the applicable sentence, use the defendant's
perceived sentence term of 55 months in their plea bargain discussions, one might well
find that the defendant was misled to believe that he had correctly scored his criminal
history. The district court should have pursued that inquiry.

Further, I agree with Justice Rosen's assessment that advising a defendant of the
sentencing range for the crime severity level applicable to a particular defendant is not
enough. The fact that the court recited that the severity level 5 sentence for a criminal
history of I is 31 months and the sentence for a criminal history of A is 136 months,
neither of which was applicable in this case, did nothing to cure the defendant's
misunderstanding that he would fall within criminal history category C and get a mid-
range sentence of 55 months. If a buyer of a mid-range automobile has been led to
believe that the vehicle will get 30 miles per gallon of gasoline (mpg), but it actually was
rated for 20 mpg, the buyer is not comforted after the purchase by being reminded that
the salesman had told the buyer that the dealer had a hybrid on the lot that gets 48 mpg
and a large pickup truck that gets 14 mpg. Here, Garcia thought he was buying the mid-
range criminal history score and it does not follow logically that such a mistaken belief
would be dispelled by being advised that other defendants with other criminal history
scores would get other sentences.

Moreover, the district court is not making the recitation of the applicable
maximum sentence to resolve any misperceptions the defendant may have about his
actual criminal history score. Rather, in felony cases, the court is required to inform the
defendant "of the maximum penalty provided by law which may be imposed upon
acceptance of such plea." K.S.A. 22-3210(a)(2). Such advice is a matter of constitutional
necessity and not a prophylactic measure for the court to later use to prevent the
defendant's proof of good cause for plea withdrawal. See State v. Anziana, 17 Kan. App.
2d 570, Syl. ¶ 2, 840 P.2d 550 (1992) ("Compliance with the requirements of K.S.A. 22-
26

3210 is essential to protect a defendant's rights under the Fifth, Sixth, and Fourteenth
Amendments of the United States Constitution.").

In short, the district court should consider whether Garcia was misled by
circumstances occurring outside the courtroom, as he explicitly said that he was. In
analyzing this factor, I do not believe that the district court should be bound by the
dissent's characterization of the exchange of information between attorney and client. The
dissent repeatedly declares that Garcia "intentionally withheld" from his attorney the
information about his old juvenile adjudication that occurred when Garcia was 12 years
old. In my view, intimating that Garcia intentionally misled his own attorney is
unwarranted. Garcia said that he did not share the information because he did not believe
that it mattered, not because he intended to deceive or mislead his attorney. I suspect that
Garcia might have also failed to share with his attorney information about any detentions
he might have received at middle school for being tardy or misbehaving in class. Would
that failure to share an immaterial fact also be characterized as an intentional withholding
of information?

Likewise, the inquiry is not whether the prosecutor guaranteed or assured Garcia
that he would receive a 55-month sentence. If the 55-month sentence had been part of the
plea agreement, the prosecutor would have breached the agreement by arguing against
that prison term. See State v. Woodward, 288 Kan. 297, Syl. ¶ 3, 202 P.3d 15 (2009)
(State can breach plea agreement by effectively arguing against the negotiated sentencing
recommendation). In that event, our United States Supreme Court has said what the
district court is to do: It must decide whether justice requires that the State's promise be
fulfilled or whether the defendant should have the chance to withdraw the plea.
Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). That
action is required, separate and independent of the good cause provision or even the
manifest injustice provision of K.S.A. 22-3210(d). In other words, good cause does not
require the defendant to prove that the State breached the terms of the plea agreement.
27


Moreover, if the prosecutor commits the tort of misrepresentation as the dissent
would require Garcia to prove here, one would have to say that the ensuing plea was the
product of manifest injustice, rather than good cause. Again, good cause does not require
the defendant to prove that the State engaged in tortious conduct.

With respect to the third Edgar factor—the plea was fairly and understandingly
made—the district court again focused on what it had said to Garcia at the plea hearing.
The court recited that it had advised Garcia of the rights he was giving up with the plea
and his options; and that it went through the potential sentence range for a level five
felony. The court then stated that it had no knowledge of Garcia's criminal history score,
but rather it only knew that Garcia was pleading to a level five felony.

Again, in my view, the court missed the point. The analysis of whether the
defendant understandingly entered the plea must focus on what the defendant knew, not
on what the presiding judge knew. Moreover, the knowing and intelligent nature of the
plea is not driven so much by the defendant's knowledge of the rights that every
defendant must waive in order to plea as it is by the defendant's belief as to the benefit he
or she will acquire in the case at hand in return for those waivers.

Here, Garcia said he believed he would receive a 55-month sentence if he pled.
Nothing in the record suggests to me that anyone refuted that such was Garcia's belief,
nor did the district court find Garcia's statement of belief to be incredible. To the
contrary, the district court said "that's his perception." If that is what Garcia perceived,
that is what he understood, and correspondingly, that is what kept his plea from being
understandingly made. The district court appeared to reject the notion that the inquiry
was subjective. But, as Justice Rosen explains, "knowingly and intelligently" means that
this particular defendant had actual knowledge and was able to apply that knowledge in
making the plea decision. Therefore, once the district court found that Garcia was
28

mistaken about the sentence he would receive for his plea, it should have included that
factor in the analysis.

One final observation on the good cause analysis: Aguilar instructed that the
district court should consider any fact or circumstance that would impact the good cause
determination. 290 Kan. at 513. The majority and dissent suggest that the absence of a
claim of innocence can be such a factor. Without conceding that point, I would point out
that Garcia has never admitted that he committed the charged offenses. He pled nolo
contendere, which is not an expression of guilt. See State v. Case, 289 Kan. 457, Syl. ¶ 3,
213 P.3d 429 (2009). Granted, a no contest plea is not technically the same as an
affirmative protestation of innocence which might occur in an Alford plea. See Case, 289
Kan. at 460-61. Nevertheless,

"'[t]he basic premise behind [a no contest plea] is that "[a]n individual accused of crime
may voluntarily, knowingly, and understandingly consent to the imposition of a prison
sentence even if he [or she] is unwilling or unable to admit his [or her] participation in
the acts constituting the crime."' 93 Minn. L. Rev. at 730 (quoting Alford, 400 U.S. at
37)." Case, 289 Kan. at 461.

Certainly, the fact that Garcia chose to plead nolo contendere gives some credence to the
notion that he was pleading because he could cut his losses to a 55-month prison term,
rather than because he was guilty.

Even though it will not impact the case on remand, I cannot end without
addressing my concerns with the dissent's public policy discussion. First, the dissent
speaks to defendants who would "withhold criminal history information."
Notwithstanding a criminal defendant's constitutional right against self-incrimination, the
word "withhold" is statutorily misleading. Under the sentencing guidelines, "'the State
has the burden to prove a defendant's criminal history unless the offender admits his or
her criminal history in open court.'" State v. Tolliver, 22 Kan. App. 2d 374, 380, 916 P.2d
29

725 (1996) (quoting State v. Hankins, 19 Kan. App. 2d 1036, 1047, 880 P.2d 271
[1994]). Further, "there is no provision in the KSGA which requires a defendant to come
forward and provide the State with an accurate criminal history." 22 Kan. App. 2d at 381.
In fact, even if the defendant provides false information, there is no implicit rule that
sentencing proceedings are tainted by that misinformation. 22 Kan. App. 2d at 381.
Accordingly, rather than speaking about defendants who withhold criminal history
information, the dissent might be more accurate to refer to defendants who decline to
volunteer criminal history information when they are not statutorily, or perhaps
constitutionally, required to do so.

Besides my quibbling about semantics, I join with Justice Rosen in having
concerns about the dissent's description of the potential for defendant gamesmanship with
plea withdrawals. Often, because the parties cannot control sentencing through their
agreement, a plea bargain will involve the dismissal of some counts, the reduction of
crime severity through a complaint amendment, or an agreement not to file another case
that is pending. If the defendant successfully withdraws his or her plea prior to
sentencing, the defendant can expect that the State will return to prosecuting the
defendant to the maximum permitted by law, sometimes adding counts that were not in
the original complaint. In the dissent's vernacular, upon plea withdrawal, the defendant
must give back the cake without eating so much as one bite.

This case is spot on with the foregoing description of what often happens. Garcia
was originally charged with attempted second-degree murder and severity level 4
intentional aggravated battery, as well as having charges pending in another case. The
murder charge was dismissed, the aggravated battery charged was reduced to the reckless
version at severity level 5, and the other charges in the pending case were dropped. If
Garcia is successful in withdrawing his plea, he most likely will find himself facing the
original charges, with the potential for a great deal longer prison sentence. Indeed, rather
30

than chastising Garcia for manipulative behavior, one might be moved to caution him:
Be careful what you wish for.

In summary, I would have the district court reassess the Edgar factors in the
context of the misunderstanding on criminal history score, as well as have the district
court consider any other factors germane to the good cause determination. In that regard,
I would direct that the district court apply the good cause test as a less stringent standard
than both manifest injustice and a constitutional violation. In other words, good cause to
withdraw a plea prior to sentencing involves something less than a violation of the
defendant's constitutional rights and creates a circumstance that is something less than
manifest injustice.

* * *

NUSS C.J., dissenting: I respectfully dissent. Specifically, I disagree with the
majority's conclusion that it is uncertain whether the district court required Garcia to
allege his innocence as a prerequisite to withdrawing his plea per State v. Ford, 23 Kan.
App. 2d 248, 930 P.2d 1089 (1996) overruled by State v. Schow, 287 Kan. 529, 197 P.3d
825 (2008). The court clearly did not.

I start by placing the references to Ford in context. First, Ford was not referenced
in any of the parties' pleadings with their attached memoranda of law. Rather, both
parties listed three elements for the court to consider—which we recognize as the so-
called Edgar factors. They then argue only about whether these three factors—and no
others—have been met.

According to the record on appeal, the first reference to Ford was at the hearing on
Garcia's motion to withdraw his plea. After Garcia's counsel argued the three factors of
31

analysis for good cause to withdraw his plea, the State addressed these same factors and
argued that State v. Haskins, 262 Kan. 728, 942 P.2d 16 (1997), was on point.

"[PROSECUTOR:] I do believe that State v. Haskins is on point. It says,
'defendant who knowingly entered into a guilty plea to aggravated battery charge, even
though the defendant and the State were mistaken about the defendant's criminal history
score at the time of plea and sentence was imposed on more serious criminal history, was
discovered before sentencing.' Then he files this motion to withdraw. And based upon
that, they said he shouldn't be able to withdraw that."

The prosecutor immediately continued:

"[PROSECUTOR:] State versus Ford, 23 Kan. App. 2d, is very similar to this. In Ford,
at the time of the plea, both the prosecutor and the defense counsel believed that the
defendant had only one prior person felony. However, the defendant's PSI report
subsequently revealed he had two prior person felonies, which removed the possibility of
the defendant receiving presumptive probation. The defendant moved to withdraw his
plea prior to sentencing, and the District Court denied the motion. This happens. The
Court is bound by K.S.A. 21-4707, to use prior convictions that are discovered. And the
court has to sentence this defendant upon his true criminal history."

The parties made no other reference to Ford. Plainly, Ford was mentioned by the
prosecutor only for its alleged factual similarity to Haskins and Garcia's situation. It was
not mentioned for the absolute requirement of an allegation of defendant's innocence.

The district court referred to Ford twice. It began its entire withdrawal analysis by
properly citing Ford as proof of its familiarity with the issues and authority to consider
what were later labeled the Edgar factors:

"THE COURT: Well counsel, I've read both briefs and I've dealt with these
motions on a number of occasions in the past. You know, one of the cases that the Court
32

has looked at and was cited by the State, was State v. Ford, 23 Kan. App. 2d, 248. And
the Court's well aware of the issues on a motion to withdraw for good cause and the
considerations of one [factor that], the defendant was represented by competent
counsel. . . . The second one is that the defendant was misled, coerced, mistreated or
unfairly taken advantage of. . . . Finally, that the plea was fairly and understandingly
made."

The court then examined each Edgar factor and concluded that Garcia failed to
meet any of them. The court correctly found it undisputed that Garcia was not presenting
an argument under the first Edgar factor—competency of counsel. For the second Edgar
factor, the court expressly found that Garcia was not misled, coerced, mistreated, or
unfairly taken advantage of, e.g., "the Court does not find that he was misled." For the
third Edgar factor, the court expressly stated, "So this Court does not find that there
was—that the plea was not fairly and understandingly made."

After completing this Edgar analysis, the district court immediately proceeded
with its second reference to Ford:

"Now, the Court will also address the questions raised in State v. Ford or the
issues.

"There's no allegation in the motion that this Court has seen, that the defendant
is not guilty of the crime that he was convicted of. He—this allegation is that Mr. Garcia
entered a plea. Upon entering the plea, now does not like the presentence investigation
and wants to withdraw the plea, because he does not like the presentence investigation.
That is not a basis and that is not good cause." (Emphasis added.)

For several reasons I conclude the district court cited Ford only to focus its
analysis. The court simply clarified what Garcia was not arguing, i.e., that he was
innocent—because an allegation of innocence is a factor which everyone concedes may
be legitimately considered by a trial court in a plea withdrawal analysis as long as it is not
33

determinative. See, e.g., United States v. Byrum, 567 F.3d 1255 (10th Cir. 2009).
Accordingly, innocence could be eliminated from the district court's withdrawal analysis.
And it was—just like the court eliminated the first Edgar factor of defense counsel's
competence from its analysis.

For my first reason, I point out that the actions of the district court demonstrate its
elimination of the innocence factor and consequent narrowing of its focus. Specifically, if
the court cited Ford to establish the absolute requirement of an allegation of innocence,
then after correctly finding Garcia had not so alleged, its analysis was simple. And done.
Failure to allege innocence alone mandated denial of the motion. Ford, 23 Kan. App. 2d
at 251 (motion should allege defendant not guilty). Yet the district court thoroughly
analyzed the traditional Edgar factors before citing Ford. And it performed additional,
non-innocence-based analysis afterward. Cf. State v. Aguilar, 290 Kan. 506, 231 P.3d 563
(2010) (Edgar factors not exclusive).

For my second reason, I point out that the language of the district court also
demonstrates this innocence factor elimination and its narrowing of focus. The court
simply analyzed what it identified as Garcia's only argument. More particularly, the court
determined that after Garcia entered his plea, he wanted to withdraw it solely "because he
doesn't like the presentence investigation. That is not a basis and that is not good cause."
(Emphasis added.)

Any doubt is erased by the district court's reiteration of this elimination of the
allegation of innocence factor and attendant focusing when it ultimately denied Garcia's
motion. No mention whatsoever is made of a failure to allege innocence. Instead, the
court held that Garcia merely was dissatisfied with his PSI:

"THE COURT: And based upon all [these] reasons, the Court finds that the
motion to withdraw his plea for good cause shown is denied and fails. That he has shown
34

no good cause, other than the fact that he is now dissatisfied with the results of the
presentence investigation, because it shows that he is a criminal history C instead of a
criminal history B. It shows him as to a criminal history B instead of what he thought he
would be, a criminal history score C, I'm sorry if I read it backwards. So the motion is
denied." (Emphasis added.)

In summary, Garcia's guilt or innocence clearly was not a factor in the district
court's plea withdrawal analysis. Because there is no uncertainty about the correctness of
the legal conclusion by which the court was guided, there is no need to reverse and
remand. The court simply did not abuse its discretion in denying Garcia's motion to
withdraw his plea. So I would affirm the district court and the Court of Appeals majority
on this issue.

Because I would affirm on the first issue, unlike the majority I must now address
the second. I agree with the State that the district court essentially followed the direction
provided in State v. Schow, 287 Kan. 529, 197 P.3d 825 (2008). Specifically, the court
conducted a thorough Edgar-style analysis that effectively included consideration of the
circumstances giving rise to the alleged mutual mistake. And per that analysis directed by
Schow, Garcia had not been misled or induced, e.g., the State simply had made no
assurances as to his criminal history score. Instead, it was Garcia who intentionally
withheld material information about his criminal history from the State, the court, and his
own counsel. His omission of a prior juvenile adjudication was not by accident,
oversight, or negligence but was a decision purposely made by Garcia.

A review of Schow is in order. There, Schow appealed the denial of his
presentence motion to withdraw his guilty plea based on mutual mistake as to his
criminal history score. This court reversed and remanded for the district court to apply
the correct standards for establishing good cause to withdraw a plea. During our analysis,
several important points were confirmed or established.

35

First, as previously noted, we confirmed that an allegation of innocence per Ford
is no longer a prerequisite to granting a motion to withdraw plea. Schow, 287 Kan. at 541.
Second, a mutual mistake about the defendant's criminal history, standing alone, is
insufficient reason as a matter of law to permit a plea withdrawal. As we stated: "We
concur that a defendant cannot meet his or her good cause burden by merely declaring
that the parties were mutually mistaken about the defendant's criminal history score." 287
Kan. at 543. Third, neither should the motion necessarily be denied when the defendant
solely declares a mutual mistake about criminal history. 287 Kan. at 543 (noting Court of
Appeals apparently did so). Rather, "the circumstances giving rise to the mistake may
well implicate the Edgar factors and should be available for consideration by the court."
287 Kan. at 543.

The Schow court then analyzed the Edgar factors in its review of the
circumstances giving rise to the mutual mistake. Because Garcia, his plea withdrawal
counsel, and his appellate counsel all have expressly disclaimed questioning his original
counsel's competence, of particular relevance to his case are the Schow court's treatment
of the second and third factors.

For the second Edgar factor of whether "defendant was misled, coerced,
mistreated, or unfairly taken advantage of," the Schow court talked of Schow being
misled or being induced because of assurances. It stated that the correct

"inquiry is whether Schow was misled about his criminal history score or was induced to
enter a plea because of assurances that his criminal history score was D [instead of
higher]. Any caveats in the written [plea] agreement or in the judge's recitation at the plea
hearing might well be germane to the question of whether Schow had actually been
misled or induced, but they need not be determinative." (Emphasis added.) 287 Kan. at
544.

36

The court continued to address whether Schow was being misled or being induced
because of assurances in considering this second Edgar factor:

"If a defendant is given assurances about his or her criminal history score which are
based upon known facts, any caveats about what might happen if the score is different
would be ineffectual to countermand those assurances. For instance, the disputed
misdemeanors in this case were contained in the PSI of a prior case, yet they were
apparently not aggregated in that prior case to score as a felony. The district court might
well find that Schow was misled into believing the same misdemeanor convictions would
receive the same legal treatment in the current case as they received in the prior case, i.e.,
that they would not increase the criminal history score." (Emphasis added.) 287 Kan. at
544-45.

For the third Edgar factor of whether "the plea was fairly and understandingly
made," the Schow court looked to the State's assertions and assurances of defendant's
criminal history. It stated:

"For the third factor, the Court of Appeals found Schow's plea to be fairly and
understandingly made because the district court advised him of his maximum sentence;
the district court informed him that the sentencing court was not bound to the State's
recommendation of probation; and the district court was aware that Schow's counsel
separately conveyed this information to Schow, to which Schow replied, 'Yes, your
honor, that is fine.'

"If Schow reasonably believed the assertions of the prosecutor and defense
counsel that his criminal history score was D, it is difficult to intuit what enlightenment
Schow would find in the court's recitation of the maximum sentence which could be
imposed upon a defendant with a score of A [15-17 months]. This is especially true
where the district court specifically recited the grid box range for a criminal history score
of D. [11-13 months, presumptive probation]

"Moreover, any statement that the sentencing court would not be bound by the
State's recommendation of probation would have been misleading, at best. As noted
37

previously, except for filing a motion for departure, the State has no influence on whether
a defendant who falls within a presumptive probation grid box is sentenced to probation;
the guidelines mandate that sentence. Furthermore, in this instance, the district court
specifically told Schow that, if his score was D, he was 'pretty much assured of . . .
getting probation initially because that will be what the sentencing guidelines tell me to
do.'" (Emphasis added.) 287 Kan. at 545.

I begin my analysis by reiterating that because Garcia is the party alleging abuse
of the court's discretion in denying his motion, he has the burden to establish the abuse.
Schow, 287 Kan. at 541. But as explained below, he has not shown, with required cites to
the record on appeal, any evidence "to establish that he was misled about his criminal
history score or was induced to enter a plea because of assurances that his criminal
history score was" C instead of B. Schow, 287 Kan. at 544; see State v. Bryant, 285 Kan.
970, 980, 179 P.3d 1122 (2008) (appellant's obligation to provide an adequate record on
appeal and to direct appellate court with specific references within such a record).

The record on appeal does unquestionably establish, however, the court notified
Garcia that his eventual sentence would depend upon his criminal history—which the
court did not yet know:

"[THE COURT:] Mr. Garcia, without knowing your prior criminal history with
the aggravated charge being a level five person felony, if you are convicted, you can be
sentenced from 31 months to 136 months in the custody of the Secretary of Corrections
and fined up to $300,000 depending upon your financial condition. Do you understand?

"[THE DEFENDANT:] Yes sir." (Emphasis added.)

The sentencing range of 31-136 months that the court described to Garcia
corresponds to a severity level five person felony—with either a criminal history score of
"I" (minimum 31 months) or a score of "A" (maximum of 136 months). See K.S.A. 21-
4704 table. So unlike the defendant in Schow, any Garcia argument that the court's
38

mention of a narrow sentencing range induced him to reasonably believe he would be
sentenced per that specific grid box would be completely without factual support. See
Schow, 287 Kan. at 531, 545.

In continuing with my opinion that there is no evidence "to establish that Garcia
was misled about his criminal history score or was induced to enter a plea because of
assurances that his criminal history score was" C instead of B, I point to his counsel's
factual concessions at oral arguments before this court. She candidly admitted that Garcia
did not tell his counsel about the juvenile adjudication. This is a wise concession because
in Garcia's amended motion to withdraw his plea, he repeatedly admitted he intentionally
withheld this information. And that motion effectively admitted his "C" criminal history
score was strictly his "impression," e.g.:

"With the Defendant taking the position that he had one person felony and one
nonperson/drug felony conviction, he was of the impression that he would be in category
C." (Emphasis added.)

Similarly, at Garcia's plea withdrawal hearing, his testimony establishes that his
criminal history score and sentence were strictly his "impression," his independent
"understanding," and his "thinking." Two examples suffice:

"[DEFENSE COUNSEL:] And at the time of entering this plea, what was your
impression or what was your understanding of the time that you would serve in the
Department of Corrections?

"[THE DEFENDANT:] That I was going to get 53 to 60 months.

. . . .

39

"[DEFENSE COUNSEL:] And when you entered the plea negotiations, what
was your impression or what did you think counted as convictions or what did you think
counted towards your criminal history?

"[THE DEFENDANT:] Just my adult convictions [one for criminal threat, the
other for attempted possession]." (Emphasis added.)

Absolutely no evidence was provided at that hearing to suggest that he was
induced by assurances or was misled by anyone. Indeed, on cross-examination by the
State, Garcia admitted that the plea-accepting court had told him it was not bound by any
plea agreement. He also admitted that after the court advised him of the minimum and
maximum sentence it told him the length of his future sentence depended upon his
criminal history—which was unknown. Yet he still entered his nolo contendere plea.

Garcia's counsel summarized Garcia's testimony by arguing "he was misled in the
sense that he thought [only] criminal convictions would count." But the court made a
direct finding that Garcia had not been misled about his sentence of 55 months and, by
implication, about the criminal history score that would produce such a sentence. The
court expressly found that it had "told him that that sentence would depend upon his prior
criminal history" so "[t]here's no misleading here." It concluded, "There may have been a
misperception on his part, but the Court does not find that he was misled."

This court finding is amply supported by the record on appeal. Garcia admits he
was aware of his prior juvenile adjudication but that he intentionally withheld this
information from his counsel. There is nothing in the record showing that Garcia
mentioned it to the prosecutor, or the court. Nor is there anything in the record to suggest
that they had any independent knowledge of his juvenile adjudication—which is the basis
for the later increases in his criminal history score and sentence. Consequently, they
could not have misled him, e.g., by their misrepresentations about either his score or his
sentence, because even the mildest form of misrepresentations require (1) false
40

information that is (2) relied upon. This court has recognized that under Sec. 552 of
Restatement (Second) of Torts (1976), the tort of negligent misrepresentation requires
justifiable reliance upon false information supplied by another. Mahler v. Keenan Real
Estate, Inc., 255 Kan. 593, 604, 876 P.2d 609 (1994). There, we cited with approval
Bevins v. Ballard, 655 P.2d 757, 763 (Alaska 1982), for the proposition that even
innocent misrepresentation under Sec. 552(C )(1) requires reliance upon material
misrepresentation.

If Garcia was misled, he misled himself—if that is linguistically possible. The
American Heritage Dictionary of the English Language 839 (1981) defines "mislead" as
"to lead or guide in the wrong direction; to lead into error or wrongdoing in action or
thought; influence badly; deceive." Equally as important, he misled his own counsel and,
by derivation, the prosecutor and the court. The First Circuit Court of Appeals described
a similar plea hearing situation where a defendant withheld some of his criminal history
information:

"[T]he appellant was in a far better position than either the prosecutor or the court to
supply the missing integer in the sentencing equation; his prior criminal record. Under
these circumstances, the appellant cannot claim to be unfairly surprised that his hopes
were dashed." United States v. Torres-Rosa, 209 F.3d 4, 10 (1st Cir. 2000).

Allowing Garcia to withdraw his plea under such circumstances would also create
poor public policy. Defendants would be highly motivated to withhold criminal history
information from their counsel, the State, and the court in the hope that the later PSI
would not reveal certain adjudications or convictions and therefore would result in lesser
sentences. And then if the PSI did reveal those past crimes, the defendant would declare a
mutual mistake on criminal history and be allowed to withdraw the plea on that basis.
The defendant would have his or her cake and eat it too.

41

The district court not only specifically rejected any argument about Garcia being
misled, but it also essentially rejected any argument about another Schow issue—Garcia
allegedly relying upon assurances. It found that Garcia may have "thought he was going
to get 55 months. Now, that's his perception."

Even assuming the court did not perform a "no assurance" analysis, remand for the
court to do so would be pointless. Garcia simply has failed to meet his burden to point to
anything in the record on appeal about receiving "assurances" from his attorney, the
State, or the court that could induce him to enter his plea. See State v. Bryant, 285 Kan.
970, 980, 179 P.3d 1122 (2008). "Assurance" is defined by The American Heritage
Dictionary of the English Language 80 (1981) as "the act of assuring," while "assure" is
defined as "to make certain; ensure." Consequently, Garcia has failed to meet his burden
to demonstrate good cause to withdraw his plea. See Schow, 287 Kan. at 541.

Moreover, the recipient of any assurances can hardly be induced by them, or
justifiably rely upon them, when they were based upon incomplete information caused by
the recipient's intentional withholding of material facts from the assurer. To describe
Garcia's obstacle in Schow language, when he withholds material information from his
counsel, the prosecutor, and the court, he certainly cannot show he was "given assurances
about his or her criminal history score which are based upon known facts." (Emphasis
added.) 287 Kan. at 544.

A case directly on point regarding alleged assurances and misleading statements is
United States v. Mercedes Mercedes, 428 F.3d 355 (1st Cir. 2005). There, defendant
argued that he should be allowed to withdraw his guilty plea because it was involuntarily
given due to misleading statements made by the court and his defense counsel at the plea
hearing. Specifically, he claimed he relied upon these statements believing he would have
the benefit of the so-called safety valve provision which would reduce his statutorily
mandated minimum sentence.
42


The plea agreement noted that defendant would qualify for a reduction of his
mandated sentence under the safety valve provision "if he had no more than one criminal
history point," and it predicted that defendant would have a guideline sentencing range of
46-57 months "so long as he qualified for the safety valve." 428 F.3d at 357.

At the plea hearing, the court stated, "'I understand at this time you don't have any
criminal history,'" to which defense counsel replied, "'Yes, Your Honor.'" 428 F.3d at
358. After acceptance of his guilty plea, a PSI was performed that revealed defendant was
"wrapping up a term of supervised release related to a prior conviction." 428 F.3d at 358.
Ultimately defendant was ineligible for the safety valve reduction and was sentenced to
the 120-month statutory minimum sentence.

Defendant complained that the statements of the court and his counsel comprised
"promises" and their nonfulfillment rendered his plea involuntary. 428 F.3d at 359. In
rejecting this claim, the First Circuit pointed out, among other things, that defendant had
told the court he understood the requirements for safety valve eligibility and
acknowledged that a failure to meet them would subject him to the mandatory minimum
sentence. It further stated:

"[I]it is readily apparent that the fault—if there was one—lies not with what others said
but with the appellant himself. For whatever reason, he was not forthcoming when the
magistrate judge questioned him directly about his criminal history. Given that lack of
candor, the charge that the magistrate judge 'misled' the appellant rings hollow."
(Emphasis added.) 428 F.3d at 360.

The First Circuit then addressed the purported promises made to defendant by his
counsel:

43

"We also reject the appellant's related argument that his former attorney's
statement regarding his criminal history misled him. The attorney's statement that the
appellant had no prior criminal record, quoted supra, was a response to a query from the
bench, not a 'promise' directed at the appellant. Moreover, that statement can logically be
read as mirroring the facts then known to the attorney. That is important because, as we
said in an analogous situation, 'the appellant was in a far better position [than the
attorney] . . . to supply the missing integer in the sentencing equation: his prior criminal
record.' Torres-Rosa, 209 F.3d at 10. Given the appellant's failure to correct the apparent
misstatement and come forward with the information that he undeniably possessed, he
cannot now blame the dashing of his hopes for a lesser sentence on his attorney."
(Emphasis added.)
428 F.3d at 360.

Because the defendant had raised this claim for the first time on appeal, the First
Circuit was able to make its own determinations from the record of whether he had
shown "fair and just" reason under the federal rules for his plea withdrawal. It concluded
"without serious question, that the record contains no hint of error, plain or otherwise,
such as would incline us to set aside the appellant's guilty plea." 428 F.3d at 360.

The facts in Garcia's case are even stronger. He freely admits he never told his
counsel about the prior juvenile adjudication, while that was unclear in Mercedes
Mercedes, 428 F.3d at 360 n.2. But had those been the facts in Mercedes Mercedes, "it
would doom the appellant's request." 428 F.3d at 360 n.2 ("'Clients should answer
truthfully their attorney's inquiries about their past convictions, and lawyers are entitled
to rely reasonably on the explicit representations of clients about their criminal
histories.'") (citing United States v. Colon-Torres, 382 F.3d 76, 86 [1st Cir. 2004]).

See United States v. Torres-Rosa, 209 F.3d 40 (lst Cir. 2000) (defendant's
expectation as to his likely sentence, based upon his deception of the court about his
criminal history, did not provide "fair and just reason" for withdrawal of his guilty plea);
Walker v. Warden Winn Correctional Center, 191 Fed. Appx. 328, 330, 2006 WL
44

2062092 (5th Cir. 2006) (unpublished opinion); State v. Codiga, 162 Wash. 2d 912, 175
P.3d 1082 (2008); State v. Bridgeforth, 357 N.W. 2d 393, 394 (Minn. App. 1984), review
denied (Minn. Feb. 6, 1985); cf. Perry v. State, 595 N.W. 2d 197, 200 (Minn. 1990)
(affirming denial of second postconviction petition for withdrawal of guilty plea based on
mistaken score where defendant knowingly concealed previous felonies). But see State v.
Robinson, 172 Wash. 2d 783, 263 P.3d 1233 (2011) (defendant informed counsel of prior
juvenile convictions but not the State; after receiving higher sentence than expected when
convictions discovered, sought plea withdrawal; affirmed allowance of withdrawal as not
an abuse of discretion).

These cases generally reinforce the conclusion that the issue with Garcia is not
whether he should be compelled to assist the State through self-incrimination by
supplying all of his past convictions and adjudications. Rather, the specific issue is
whether Garcia may purposely omit any of this purely factual information from what he
does voluntarily provide, plead nolo contendere, expect a sentencing range shaped by the
omission—and then withdraw his plea after his knowing omission is discovered and he
learns the sentence he expected will be increased accordingly.

In continuing my Schow-suggested use of Edgar's factors, see State v. Edgar, 281
Kan. 30, 36, 127 P.3d 986 (2006), to review the circumstances giving rise to the alleged
mutual mistake, I turn now to the third factor—whether the plea was fairly and
understandingly made. I agree that in Schow,

"[b]ased on the specific facts presented, [we] declined to attach significance to
information provided by the district court at the plea hearing advising Schow of the
maximum sentence that could be imposed and that the sentencing court was not bound by
the State's recommendation of probation contained in the plea agreement." State v.
Lackey, 45 Kan. App. 2d 257, 270, 246 P.3d 998 (2011).

45

But Schow is easily distinguishable from Garcia's case. While Schow stressed
assertions and assurances in analyzing the third Edgar factor, there simply is no evidence
that Garcia received any which could possibly dilute the effectiveness of the warnings
provided by the district court to him. Schow is also readily distinguishable because
Schow did not intentionally withhold any of his criminal history from his own counsel,
the State, and the court. As a result of Garcia deliberately withholding this material
information, even if assertions or assurances had been given to him, he certainly cannot
establish, in the words of Schow, that he "reasonably believed the assertions of the
prosecutor and defense counsel that his criminal history score was" C. (Emphasis added.)
Schow, 287 Kan. at 545.

Accordingly, Garcia's case contains parallels to the Court of Appeals' decision in
State v. Lackey, 45 Kan. App. 2d 257. There the panel affirmed the district court's denial
of Lackey's motion to withdraw his plea under Schow, noting that under the third Edgar
factor he failed to present any evidence that he received assurances from anybody about
his criminal history score being "E." Consequently, like the Lackey court, I do consider
the court's warnings Garcia received as evidence to support the court's finding that his
"plea was fairly and understandingly made." 45 Kan. App. 2d at 270.

Specifically, similar to Lackey, Garcia was informed at the plea hearing of the
minimum and maximum sentences that could be imposed and that sentencing was left to
the court's discretion in compliance with the Kansas sentencing guidelines. He was
further informed that sentencing would depend upon his criminal history, which the court
had no knowledge of at the time of his plea. Moreover, Garcia was told the court was not
bound by any plea agreement. At the later plea withdrawal hearing, Garcia acknowledged
having heard most of this information at the plea hearing. Finally, as in Lackey, Garcia
was notified at the plea hearing of all his constitutional rights and that he would be
waiving them by entering his nolo contendere plea. 45 Kan. App. 2d at 270.

46

The district court dutifully made many of these findings in denying Garcia's
motion. The evidence amply supports them as well as the court's ultimate determination
that Garcia's plea was fairly and understandingly made per the third Edgar factor. See
Lackey, 45 Kan. App. 2d at 270.

In short, I conclude the district court essentially followed Schow's guidance
regarding the alleged mutual mistake about Garcia's criminal history. It therefore did not
abuse its discretion in denying Garcia's motion to withdraw his plea. For these reasons, I
would affirm the district court and the Court of Appeals majority on this issue.

BILES, J., joins in the foregoing dissenting opinion.