State v. Kenney

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 106,508

STATE OF KANSAS,
Appellee,

v.

NATHANIEL KENNEY,
Appellant.


SYLLABUS BY THE COURT

A criminal defendant's misinformation from counsel about the applicable law
during plea negotiations—particularly when reinforced later by the written plea
agreement and by counsel's and the district judge's incorrect statements during the
defendant's plea hearing—easily constitutes good cause to withdraw a no contest plea
under K.S.A. 22-3602(a).

Review of the judgment of the Court of Appeals in an unpublished opinion filed October 5, 2012.
Appeal from Wyandotte District Court; JOHN J. MCNALLY, judge. Opinion filed May 16, 2014. Judgment
of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed,
and the case is remanded.

Matthew J. Edge, of Kansas Appellate Defender Office, was on the brief for appellant.

Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for
appellee.

2

The opinion of the court was delivered by

BEIER, J.: Defendant Nathaniel Kenney appeals from denial of his presentencing
pro se motion to withdraw his no contest plea to one count of aggravated kidnapping and
one count of aggravated robbery.

On appeal to the Court of Appeals, Kenney argued that the district judge had
denied his right to counsel under the Sixth Amendment to the United States Constitution
by hearing the motion to withdraw plea without appointing a new lawyer for him. The
Court of Appeals rejected this argument, and we granted Kenney's petition for review.

We reverse the judgment of the district court and the decision of the Court of
Appeals and remand to the district court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Kenney with 13 felonies based on his alleged participation in a
home invasion in Kansas City.

Eleven days before trial was scheduled to start, Kenney's court-appointed defense
counsel, Jeffrey Leiker, filed a motion to withdraw. In the motion, Leiker wrote that
Kenney had demanded Leiker "withdraw as his legal representation and cease all activity
on his behalf." The motion also said that Kenney had sent Leiker "multiple written
communications" expressing dissatisfaction with his representation.

At a hearing on the motion 4 days later, Kenney told the district judge that he and
Leiker had "been having a conflict of interest for a while now." Kenney then recited a
litany of grievances, including allegations that Leiker failed to review discovery material
adequately, failed to investigate the case, failed to file requested motions, failed to ask
3

specific questions during the preliminary hearing, and denied Kenney the opportunity to
cross-examine witnesses and put on evidence directly during the preliminary hearing. The
judge told Kenney that his complaints generally dealt with matters of trial strategy
subject to the discretion of counsel and denied the motion to withdraw.

On the morning trial was set to begin, at a pretrial hearing, Leiker orally renewed
his motion to withdraw at Kenney's request. Leiker explained that he had attempted to
meet with Kenney "six to seven" times in the preceding week, but "they were fruitless
meetings" because Kenney "shut down" and refused to communicate. Kenney told the
district judge that Leiker had been "hostile and belligerent" at their last meeting and had
concluded that meeting by telling Kenney to "go to hell." The district judge told Kenney
that it was not unusual for attorneys and defendants "to get a little bit hot about things
during the course of the case" and again denied the motion.

As communication between Kenney and Leiker deteriorated in the week leading
up to trial, the State's case improved considerably. Kenney's sons, who were
codefendants, agreed to testify against their father. Although Leiker filed a motion for
discovery related to the sons' statements, it yielded nothing. Leiker's motion for a
continuance so that he could get an investigator to talk with Kenney's sons was also
denied.

During a recess between the pretrial hearing and the scheduled trial, Kenney
decided to change his plea from not guilty to no contest. Under the terms of his plea
agreement, Kenney entered his pleas to 1 count of aggravated kidnapping and 1 count of
aggravated robbery in exchange for the State's dismissal of the 11 other felony charges.
The State also agreed to join Kenney's durational departure motion requesting 160
months' imprisonment. Kenney otherwise faced the potential of 714 months'
imprisonment on the two counts.

4

The plea agreement stated that Kenney did "not waive right to appeal court's ruling
on previous motions." And, at Kenney's plea hearing, Leiker told the district judge that,
"as part of the plea in the terms of the plea, my client is not actually waiving his right to
appeal some of the Court's rulings in the motions that have been filed and discussed here
today and previously." The judge did not correct counsel's obvious misimpression that
such a reservation was legally possible. In fact, the judge compounded counsel's mistake.

"THE COURT: You understand that in this matter you have an absolute right to a trial by
a jury?

"DEFENDANT KENNEY: Yes.

"THE COURT: And at that trial the Court would—the State would have to present
evidence against you and they'd have to prove you guilty beyond a reasonable doubt, you
wouldn't have to prove anything yourself; you understand that?

"DEFENDANT KENNEY: Yes.

"THE COURT: In addition, you could call witnesses in your behalf and you could testify
in your own behalf if you wanted, but you wouldn't be required to do so; you understand
that?

"DEFENDANT KENNEY: Yes.

"THE COURT: If this matter went to trial and you were convicted, do you understand
you'd have a right to appeal that conviction to the Kansas Supreme Court; and if you
couldn't afford an attorney for that appeal, one would be appointed to represent you?

"DEFENDANT KENNEY: Yes.

"THE COURT: You understand that by pleading no contest here today, you're giving up
those rights I just talked about and there won't be any trial of this matter either to the
Court or to a jury?
5


"DEFENDANT KENNEY: Yes."

Leiker then interjected: "I'm sorry, Judge. Just kind of a housekeeping matter, as
part of the plea in the terms of the plea, my client is not actually waiving his right to
appeal some of the Court's rulings in the motions that have been filed and discussed here
today and previously."

After the prosecutor summarized the State's agreement to dismiss charges and join
Kenney's departure motion, the exchange between the judge and Kenney continued:

"THE COURT: Mr. Kenney, is that your understanding of the agreement between your
attorney and the State?

"DEFENDANT KENNEY: Yes, it is.

"THE COURT: To your knowledge, is that the entire agreement, what they've told me?

"DEFENDANT KENNEY: What he said, I would have my appeal rights.

"THE COURT: Right. And with that included, that's the entire agreement?

"DEFENDANT KENNEY: Yes, sir."

Still later in the hearing, Leiker referenced the district judge's denial of the motion
to withdraw as an "issue that [Kenney] would like to reserve to appeal, among others."
After the State provided a factual basis for Kenney's pleas, the district judge accepted
them.

Before sentencing, Kenney filed his pro se motion to withdraw his pleas. In the
motion, Kenney asserted that he had not understood that K.S.A. 22-3602(a) would
6

preclude his appeal of the outcome on the motions. At a hearing on the motion to
withdraw, Kenney stated that he had not realized that he would be "giving up a lot of my
constitutional rights." The district judge stated that he had gone over those rights during
the plea hearing. The district judge then asked Leiker if he had anything to add to
Kenney's remarks. Leiker responded:

"Not really, Judge. I mean, if the Court recalls, I believe the Court did go through his
constitutional rights with him before the plea. I went through them when we went
through the plea petition. We actually identified a few issues that he wanted to appeal.
That was actually pursuant to the terms of the plea agreement, that he be allowed to enter
this plea and reserve a few issues for appeal, one of those, I think, being your ruling to
not turn over [discovery] evidence. So I think we went over his rights a little more than in
a normal plea because there [were] a couple there that he was hanging onto and reserving
for appeal."

The district judge then said:

"All right. And those, I think it was pretty clear in the plea because that was, I
think, one of the ways that the plea was worked out, was that [Kenney] would retain
some of those rights.

"I'm going to deny the motion to withdraw the plea at this point. I believe the
defendant was aware of his rights at the time. I think we went through those probably in
more detail than we normally do because of the circumstances."

DISCUSSION

We examine district court rulings on motions to withdraw plea for abuse of
discretion. State v. Ebaben, 294 Kan. 807, 811, 281 P.3d 129 (2012). Judicial action
constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable;
(2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan.
541, 550, 256 P.3d 801 (2011), cert. denied ___ U.S. ___, 132 S. Ct. 1594 (2012).
7

Presentence motions are evaluated on a good cause standard. See K.S.A. 22-3210(d);
K.S.A. 22-3602(a).

Kenney's appellate challenge before the Court of Appeals panel focused on
whether Leiker had a conflict of interest at the hearing on the motion to withdraw plea
and argued that the district judge should have appointed substitute counsel. The panel
labeled Kenney's argument "unpersuasive," because Kenney had not explicitly cited
Leiker's deficient representation as a basis for his motion to withdraw plea. State v.
Kenney, No. 106,508, 2012 WL 4794647, at *3-5 (Kan. App. 2012) (unpublished
opinion).

The panel was correct that, strictly speaking, the competence of Leiker's
representation was not before the district judge on the motion to withdraw plea. However,
we are unwilling to make this case more complicated than it is by exalting form over
substance.

The record on appeal makes it abundantly clear that neither Leiker nor the district
judge understood or communicated all of the appeal rights Kenney would surrender as a
matter of law by entering his no contest pleas. In fact, they misled Kenney about his
continuing ability post-plea to appeal the outcomes on his motions. A criminal
defendant's misinformation from counsel about the applicable law during plea
negotiations—particularly when reinforced by the written plea agreement and by
counsel's and the district judge's incorrect statements during the defendant's plea
hearing—easily constitutes good cause to withdraw no contest pleas under K.S.A. 22-
3602(a).

We recognize that we have previously taken pains to distinguish between analysis
of a Sixth Amendment ineffective assistance of counsel claim and analysis of the general
merit of a motion to withdraw plea. See, e.g., State v. Kelly, 291 Kan. 868, 871, 248 P.3d
8

1282 (2011). Nevertheless, one of the factors that a district judge should always consider
when a motion to withdraw plea has been filed is whether the defendant was represented
by competent counsel. 291 Kan. at 871. Here, the district judge failed utterly to give due
consideration to this factor. This conclusion is inescapable, because the judge failed more
than once to recognize Leiker's faulty legal advice and compounded the issue with his
own incorrect statements. Failure to follow the law is an abuse of discretion, and Kenney
must be allowed to withdraw his pleas to avoid prejudice to his substantial rights under
K.S.A. 60-261.

CONCLUSION

We reverse the judgment of the district court and the decision of the Court of
Appeals and remand this case to the district court for defendant Nathaniel Kenney to be
permitted to withdraw his no contest pleas. He should be appointed substitute counsel
before the prosecution against him continues.