Diaz v. State

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NOT DESIGNATED FOR PUBLICATION

No. 116,806

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JONATHAN DIAZ,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed January 19, 2018.
Affirmed.

Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before BUSER, P.J., BRUNS, J., and STUTZMAN, S.J.

PER CURIAM: The district court denied Jonathan Diaz' motion for post-sentencing
relief, which was originally filed as a K.S.A. 60-1507 motion, but was construed by the
district court as a motion to withdraw plea. Diaz now contends his counsel in the district
court was ineffective and he was coerced into confessing and entering his pleas. We see
no error in the district court's denial.





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FACTS AND PROCEDURAL BACKGROUND

Beginning in April 2013, several female inmates at the Reno County jail alleged
that correctional officer Jonathan Diaz asked them to expose themselves, fondle
themselves, and engage in sexual contact with other inmates so he could watch. Two
inmates said Diaz threatened to kill them if they said anything. Police interviewed Diaz
and he admitted to engaging in sexual contact with one inmate and watching another
inmate fondle herself, but he denied threatening them. Diaz was charged with two counts
of unlawful sexual relations, two counts of aggravated intimidation of a victim or
witness, and two counts of bribery. The State later amended the complaint to add an
additional charge of unlawful sexual relations after another inmate came forward.

On September 11, 2013, Diaz waived his preliminary hearing, pled no contest to
the two counts of aggravated intimidation of a victim, and pled guilty to all other charges.
Before entering his plea, Diaz told the district magistrate judge that he had adequate time
to discuss the case with his attorney and he understood the guilty pleas would mean he
was admitting the charges were true, while the no contest pleas also would result in
convictions if the State presented a sufficient factual basis for them. Diaz represented to
the court that he had neither been threatened in any way nor promised anything to get him
to change his pleas. The court accepted Diaz' pleas and set a date for sentencing.

The district court sentenced Diaz to 64 months in prison. Diaz appealed, but on
October 30, 2014, the Kansas Supreme Court summarily dismissed the appeal after
finding no error in the sentences imposed by the district court. On May 8, 2015, Diaz
filed a pro se motion for relief under K.S.A. 60-1507. He alleged his attorney in the
district court proceedings provided ineffective assistance, his pleas were taken in
violation of his rights, and his confession was illegally obtained.

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Diaz was the only witness at the evidentiary hearing on his motion on March 28,
2016. He began his testimony by saying he told his attorney, Blake Cooper, that his
confession was invalid. Contrary to one of the claims in his motion, Diaz testified the
officers did advise him of his Miranda rights, but he added "the detectives were wearing
their weapons and it was very intimidating," leaving him with the feeling he could not
leave the interview at any time. He stated he was coerced into making an untrue
statement and was not given anything to drink or any bathroom breaks during the period
of the interview, which he estimated to have been over two hours. Diaz testified he told
Cooper he wanted to explore suppressing his confession but Cooper did not file a motion
to suppress.

As further support for the allegation that Cooper provided ineffective counsel,
Diaz testified he told Cooper there were multiple people who could testify about his
character and his lack of opportunity to commit the crimes because of the size and layout
of the jail and the number of other people working there. Diaz said as far as he knew
Cooper never spoke with any of these potential witnesses.

Finally, Diaz testified the State coerced him into entering his pleas through a threat
to dismiss the case as it was then framed, then refile the charges as separate cases. The
effect would have been to expose Diaz to the potential for a significantly higher total
sentence because of the impact of the multiple separate convictions on his criminal
history score.

During cross-examination, Diaz testified he was a graduate of the Kansas Law
Enforcement Training Center and served as a Reno County sheriff's deputy for about two
years. He acknowledged receiving firearms training, carrying a firearm throughout his
time as a deputy, and being at least somewhat comfortable around firearms since his
coworkers also carried weapons. Diaz also admitted he had been aware there were video
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recordings to corroborate the statements of several women, showing him going to the
cells at the times alleged.

In its analysis, the district court construed Diaz' motion as a motion to withdraw a
plea and applied the factors listed in State v. Edgar, 281 Kan. 30, 127 P.3d 986 (2006), to
Diaz' claims. The factors assess whether "'(1) the defendant was represented by
competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken
advantage of, and (3) the plea was fairly and understandingly made.'" 281 Kan. at 36. The
district court addressed each and found Cooper was not ineffective, the State's threat to
refile the charges in multiple complaints to expose Diaz to a higher sentence was not
coercive, and Diaz' pleas were fairly and understandingly made. Based on those findings,
the district court denied the motion, holding that Diaz failed to establish manifest
injustice. Diaz appeals the denial.

ANALYSIS

In his arguments, Diaz accepts the district court's reframing of his original 60-
1507 motion as a motion to withdraw plea. His argument stems from his testimony—
which is not disputed by the State—that the prosecutor told him he could plead to the five
person and two nonperson felonies as charged or the charges would be dismissed and
refiled as separate cases, substantially increasing his potential controlling sentence. Diaz
contends the district court's principal error was finding that tactic was within the scope of
the State's prosecutorial discretion because its use impacted all three Edgar factors and "it
effectively operated to deprive [him] of his right to effective counsel and to investigate
and attempt to present a defense."




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Standard of review

We review the denial of a postsentencing motion to withdraw a plea for abuse of
discretion. A judicial action constitutes an abuse of discretion if (1) no reasonable person
would take the view adopted by the trial court; (2) it is based on an error of law; or (3) it
is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert.
denied 565 U.S. 1221 (2012).

A district court may permit a defendant to withdraw a plea after sentencing in
order to correct manifest injustice. K.S.A. 2016 Supp. 22-3210(d)(2). When evaluating a
defendant's showing of manifest injustice, Kansas courts consider at least the three
"Edgar factors" we noted above. Those factors "are 'viable benchmarks for judicial
discretion,'" but the Kansas Supreme Court has "made clear they should not be relied on
to the 'exclusion of other factors.'" State v. Bricker, 292 Kan. 239, 245, 252 P.3d 118
(2011) (quoting State v. Aguilar, 290 Kan. 506, 512, 231 P.3d 563 [2010]).

To the extent an element of Diaz' motion to withdraw plea is a claim of ineffective
assistance of counsel, it must meet the test derived from Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984).
Bricker, 292 Kan. at 245-46. This requires Diaz to show (1) that Cooper's performance
fell below the objective standard of reasonableness and (2) that but for Cooper's errors,
there is a reasonable probability that the result of the proceeding would have been
different. 292 Kan. at 245-46.

Representation by competent counsel

Diaz presents two bases for his ineffective assistance of counsel argument. The
first is Cooper's failure to suppress his confession based on the assertion that "the
detectives were wearing their weapons and it was very intimidating." This is not an
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adequate basis upon which to suppress a confession. See State v. Snodgrass, 252 Kan.
253, 258-59, 843 P.2d 720 (1992) (rejecting defendant's argument that he was coerced
into confessing simply because he was arrested at gunpoint when there was no evidence
that the police used their weapons inappropriately). If it were, every confession obtained
by an armed detective or police officer could be suppressed. Diaz' claim also lacks
credibility because of his former employment as a gun-carrying deputy sheriff working
daily in a law enforcement environment. He is not in a strong position to contend he was
shocked and unsettled because those who questioned him wore weapons.

The assertion that Diaz was improperly questioned because he was not offered
food, drink, or a restroom break in approximately two hours is also unconvincing. Diaz
does not assert he even asked for any of those allowances and the duration of the
questioning was comparatively short.

The other basis for the ineffective assistance of counsel claim is Cooper's failure to
investigate the witnesses Diaz said could exonerate him. Diaz claims these witnesses
could have testified about how he lacked the opportunity to commit the crimes because of
his schedule and the layout of the jail. Diaz admitted in the district court, however, that
he was aware of the corroborative video recording of him going to the cells of the
inmates at the times the inmates alleged he was there. He does not explain how Cooper
could have used the witnesses to effectively build a lack of opportunity defense when
contradictory video footage established his opportunity to commit the crimes.

We see nothing in Cooper's actions, especially prior to preliminary hearing, that
supports Diaz' contention that Cooper's representation was objectively unreasonable.
Diaz also fails on the second part of the Strickland test. Even if we were to find Cooper
should have spoken with the witnesses early in the case, the combination of Diaz'
confession, the victims' allegations, and the corroborating jail video made a strong case
for the State. We find no reasonable probability that the result of the proceeding would
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have been different had Cooper approached the case as Diaz contends he should. Diaz
falls short of showing manifest injustice under the first Edgar factor.

Coercion

Diaz cites coercion by the State as the overarching reason manifest injustice
requires withdrawal of his pleas. The fact the prosecutor threatened to dismiss the charges
against Diaz and refile them in separate complaints is undisputed. There is also no
question that the resulting criminal history scoring would have greatly increased the
potential prison sentence for Diaz. The dispute is whether that was a valid exercise of
prosecutorial discretion or was so coercive that Diaz should be permitted to withdraw his
pleas.

The primary determinants for the length of a sentence under the revised Kansas
Sentencing Guidelines Act are an offender's criminal history and the severity level of the
crime of conviction. K.S.A. 2016 Supp. 21-6804. Diaz' criminal history at the time of his
plea placed him in the lowest category, I. When Diaz was sentenced, a conviction for
unlawful sexual relations with a criminal history score of I resulted in a presumptive
sentencing range of 31-34 months in prison, with 32 months as the standard sentence.
K.S.A. 2016 Supp. 21-6804. Diaz received that standard 32-month sentence for each of
his unlawful sexual relations convictions and all sentences were ordered to be served
consecutively, but the controlling sentence was capped at 64 months pursuant to the rule
in K.S.A. 2016 Supp. 21-6819(b)(4) ("total prison sentence imposed in a case involving
multiple convictions arising from multiple counts within an information, complaint or
indictment cannot exceed twice the base sentence").

If the prosecutor had filed the charges against Diaz in separate complaints, the
double rule would not have applied and he would have faced a sentence much longer than
64 months. For example, if the prosecutor obtained a conviction for the first count of
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unlawful sexual relations, a severity level 5 person felony, Diaz would face a
presumptive standard sentence of 32 months and his criminal history score for further
convictions would increase to D. K.S.A. 2016 Supp. 21-6804. If there were then a
conviction for another charge of unlawful sexual relations, Diaz would face a
presumptive standard sentence of 52 months and his criminal history score would
increase again, to category B. A conviction for the third count of unlawful sexual
relations would result in a presumptive standard sentence of 120 months and Diaz'
criminal history score would increase to A. With a criminal history score of A,
convictions for the remaining four counts—two counts of aggravated intimidation of a
witness, severity level 6 person felonies, and two counts of bribery, severity level 7
nonperson felonies—would yield standard presumptive sentences totaling 150 months.
Adding the 150 months to the presumptive sentences for unlawful sexual relations results
in a potential 354 months in prison if all sentences were ordered to be consecutive.

Approached differently, if the prosecutor gained convictions for the three counts
of unlawful sexual relations after Diaz' criminal history score was increased to B by
convictions for the other two person felonies, followed by convictions for the nonperson
bribery charges, the total of the presumptive standard sentences for the unlawful sexual
relations convictions would be 380 months in prison, plus almost 10 years for the other
convictions. Diaz argues that he was pressured into abandoning his not guilty pleas
because of the staggering difference in the possible consequences if the charges were
reconfigured. Either he could change to guilty and no contest pleas before he had the
benefit of a preliminary hearing and a full investigation of his case, or he could maintain
his not guilty pleas, make the State prove the charges, and risk facing what could very
well be the rest of his life in prison.

In Kansas, the authority to make decisions about charging crimes or dismissing
charges rests with the county and district attorneys.

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"A county attorney or district attorney is the representative of the State in
criminal prosecutions. As such, he or she controls criminal prosecutions. It is the county
or district attorney who has the authority to dismiss any charge or to reduce any
charge. State v. Turner, 223 Kan. 707, 709, 576 P.2d 644 (1978). The prosecuting
attorney has broad discretion in discharging his or her duty. The scope of this discretion
extends to the power to investigate and to determine who shall be prosecuted and what
crimes shall be charged. State v. Dedman, 230 Kan. 793, 798, 640 P.2d 1266
(1982); State v. Blount, 13 Kan. App. 2d 347, 351, 770 P.2d 852, rev. denied 245 Kan.
786 (1989). The prosecuting attorney has discretion to dismiss charges, and the court
cannot refuse to allow a dismissal. Foley v. Ham, 102 Kan. 66, 67-72, 169 Pac. 183
(1917). Similarly, the court cannot restrain a prosecutor from prosecuting an action. State,
ex rel., v. Rohleder, 208 Kan. 193, 195, 490 P.2d 374 (1971)." State v. Williamson, 253
Kan. 163, 165-66, 853 P.2d 56 (1993).

In response to Diaz' vindictiveness argument, the State relies on K.S.A. 2016 Supp. 21-
6812, which lists the permitted and prohibited acts available to a prosecutor in plea
discussions with a defendant. As the State notes, the scope of permitted acts includes a
catch-all provision allowing a prosecutor to "make any other promise to the defendant,"
except for two specified promises that are expressly prohibited. K.S.A. 2016 Supp. 21-
6812(f).

The Kansas Supreme Court relied on a United States Supreme Court case in
rejecting a claim of prosecutorial vindictiveness in State v. Smallwood, 264 Kan. 69, 77-
78, 955 P.2d 1209 (1998):

"With respect to Smallwood's claim of prosecutorial vindictiveness,
in Bordenkircher v. Hayes, 434 U.S. 357, [98 S. Ct. 663, 54 L. Ed. 2d 604] (1978), the
United States Supreme Court faced a similar claim. After Hayes refused to plead guilty to
a felony indictment for uttering a forged instrument, the state prosecutor reindicted the
defendant, charging him under the habitual criminal statute and thereby subjecting him to
a greater penalty. Hayes was convicted and received the greater penalty. After the state
appellate courts affirmed the sentence, the defendant filed a writ of habeas corpus in the
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federal district court. It was denied. On appeal, the federal Court of Appeals found
prosecutorial vindictiveness had occurred and reversed.
"After granting certiorari, the Supreme Court, in reversing the Court of Appeals,
found that the defendant's due process rights were not violated when the prosecutor
carried out the threat to reindict the defendant on more serious charges. The Court found
it immaterial that the prosecutor was in possession of the evidence justifying the more
serious charge at the time of the original indictment and that the defendant's refusal to
plead guilty was what led to his second indictment. The prosecutor's conduct did no more
than openly present the defendant with the alternative of foregoing trial or facing charges
on which he was plainly subject to prosecution. It concluded that there is no violation of
due process rights where the State prosecutor, during plea negotiations, threatened to
reindict the defendant on more serious charges if he did not plead guilty. 434 U.S. at 365.
See United States v. Frederick, 551 F. Supp. 1035 (D. Kan. 1982)."

In Smallwood, the State threatened to "reindict [Aaron Smallwood] on a more
serious charge (felony murder) if he refused to plead guilty to second-degree murder."
264 Kan. at 78. Citing similarity to Bordenkircher, the Kansas Supreme Court rejected
Smallwood's claim of prosecutorial vindictiveness because the "charge was one for which
Smallwood was plainly subject to prosecution." 264 Kan. at 78.

Unquestionably, Diaz was faced with a stark choice and prosecutors should be
mindful of their obligation not to abuse the extraordinary—but not unlimited—authority
vested in them. As representatives of the State, with the accompanying power and
resources, prosecutors must always be mindful that their role is "the responsibility of a
minister of justice and not simply that of an advocate." Supreme Court Rule 226, KRPC
3.8, cmt. 1 (2017 Kan. S. Ct. R. 351). Threatening a disproportionately harsh sentence
through manipulation of the sentencing guidelines is a tactic that could be used to gain
pleas in cases where the evidence is weak and the prospect for conviction at a trial is
questionable. As we have noted, from the record here the State's threatened restructuring
of the charges does not appear to have been an attempt to avoid taking a dubious case to
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trial and, as in Smallwood, the charges against Diaz were ones for which he was "plainly
subject to prosecution." On these facts, we find no violation of the second Edgar factor.

Plea fairly and understandingly made

Diaz challenges the fairness of his plea only in the context of the issues we have
already discussed. Before he entered his pleas, Diaz answered questions from the district
magistrate about his understanding of the purpose of a preliminary hearing and his
associated rights. He then waived that hearing and responded to the judge's inquiry about
his understanding of the rights he was relinquishing by changing his pleas. Throughout
the colloquy, he professed satisfaction with his attorney's services and told the court there
had been no threats or promises made to get him to change his pleas. He pled guilty to
five of the seven charges and told the court he did so because he believed he was guilty of
those crimes.

We find no error in the plea process and Diaz has given no persuasive reason to
doubt the truth of his answers in that proceeding.

Conclusion

The district court found no manifest injustice to support withdrawal of Diaz' pleas.
Since we have rejected the arguments that Diaz' counsel was ineffective and that he was
coerced into confessing and changing his pleas, we find no error in that decision by the
district court.

Affirmed.