Garcia v. State

NOT DESIGNATED FOR PUBLICATION

No. 117,582

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

IRINEO GARCIA,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Seward District Court; BRADLEY E. AMBROSIER, judge. Opinion filed August 17,
2018. Reversed and remanded with directions.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

Russell Hasenbank, county attorney, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., STANDRIDGE, J., and RYAN W. ROSAUER, District Judge, assigned.

LEBEN, J.: Irineo Garcia appeals the district court's denial of his motion to
withdraw his no-contest pleas to three counts attempted second-degree murder. Based on
those pleas, the district court convicted Garcia of the attempted murder of his three
children, who were then four, six and seven. The district court sentenced Garcia to serve
294 months in prison.

Well after sentencing, Garcia moved the district court to let him withdraw his plea.
Garcia based the motion on two factual claims: (1) He said that both the prosecutor and
his trial attorney told him that if he entered the no-contest pleas, his children would be
2

able to visit him in prison; and (2) He said that his attorney told him that he would be out
of prison at age 49. Garcia alleged "[t]hese were the two conditions that I asked for in
exchange for not going to trial," that "making me these promises . . . coerced me into the
plea agreement," and that "[i]f not for my attorney and the prosecution saying that my
kids would be allowed to visit me, I would not have taken the plea bargain and would
have gone to trial."

The district court denied Garcia's motion without holding a hearing. The court
treated the motion as one for habeas corpus relief under K.S.A. 60-1507 and applied the
one-year time limit for those claims. See K.S.A. 2017 Supp. 60-1507(f). The court
recognized that a motion filed beyond that time limit may still be considered if a manifest
injustice would otherwise result, but said that Garcia had made "no attempt at showing
manifest injustice." The court also said that "the very heart of [Garcia's] motion is almost
beyond belief and warrants no further consideration by this Court."

Garcia then appealed to this court.

We begin our analysis by characterizing the motion as one to withdraw a plea.
Somewhat different substantive standards apply to motions to withdraw a plea than to
ones seeking habeas corpus relief, though the procedures for handling these different
motions are essentially the same. Garcia filed his motion without an attorney's help, and
we look to the substance of the motion to determine the standards applicable to it. See
State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010). Garcia's motion cited K.S.A. 60-
1507, the statute for habeas claims, and K.S.A. 22-3210(d), the statute for plea
withdrawals. But the substance of his claim is that he should be allowed to withdraw his
plea. We will apply the standards for plea-withdrawal motions to Garcia's claim.

K.S.A. 2017 Supp. 22-3210(d) provides two different standards that a defendant
might meet for plea withdrawal. Before sentencing, the defendant need only show "good
3

cause," but after sentencing the defendant must show that plea withdrawal is necessary
"[t]o correct manifest injustice." Garcia filed his motion after sentencing, so the manifest-
injustice standards applies.

To make that determination, we look to three factors, commonly known as the
Edgar factors since they were first announced in a case by that name, when considering
whether a defendant has shown manifest injustice. State v. Wilson, 308 Kan. ___, 421
P.3d 742, 747 (2018). Those factors are (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 understandably
made. 421 P.3d at 747; State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006).

When a motion to withdraw plea is denied without a hearing based just on a
review of the court's file, we review the matter independently because we have the same
access to the motion, files, and records as the trial court does. State v. Moses, 296 Kan.
1126, Syl. ¶ 1, 297 P.3d 1174 (2013). The movant is entitled to an evidentiary hearing
unless a review of the record conclusively shows that the defendant's allegations have no
merit. State v. Fritz, 299 Kan. 153, 154-55, 321 P.3d 763 (2014). The movant must allege
facts sufficient to warrant a hearing. Wilson, 421 P.3d at 747.

Garcia's allegations, if proven in an evidentiary hearing, would provide a basis for
relief under the Edgar standards. Under the first factor, we look at attorney competence:
If Garcia's attorney gave him advice on a matter important to Garcia that was
substantially wrong, that may not be competent representation. Under the second factor,
we look to see whether Garcia was misled: He specifically alleges he was. And under the
third factor, we look to see whether the plea was fairly and understandably made: If
Garcia entered the plea relying on significant and misleading information, it may not
have been fairly made. We conclude that the allegations Garcia has made, if proven,
would give the district court discretion to set aside the plea.
4


There is one additional hurdle that Garcia must overcome. K.S.A. 2017 Supp. 22-
3210(e) provides that a motion to set aside the plea must be made within one year of the
defendant's sentencing. That deadline may be extended, but "only upon an additional,
affirmative showing of excusable neglect by the defendant." K.S.A. 2017 Supp. 22-
3210(e)(2). Excusable neglect requires some justification for the late filing beyond mere
carelessness or ignorance of the law. State v. Davisson, 303 Kan. 1062, 1068-69, 370
P.3d 423 (2016).

Here too, Garcia has provided allegations that, if proven in an evidentiary hearing,
would provide a basis for the district court to extend the one-year deadline for excusable
neglect. He was sentenced in March 2013 but didn't sign his motion and send it to the
court clerk until December 2016, more than two years after the deadline. He sets out two
reasons for the delay. First, he had expected for a considerable time period that prison
officials were merely delaying family visits until he qualified, through good behavior, for
placement in a "low-medium [security]" facility: "I was told in Lansing by Unit Team
staff and my wife was also told that I would have to earn low-medium camp before I
would get visits from my kids." Second, he tried to get transcripts of court proceedings to
help him in preparing his motion, but the district court denied that request.

The State argues that Garcia "has produced no witness from [the Kansas
Department of Corrections] that told him he could have visitation after achieving, 'low-
medium camp.'" The State is right that Garcia hasn't identified a specific prison staff
member who would provide that testimony. But he has alleged that both he and his wife
would testify that prison staff made that statement to them. That may well be admissible
under hearsay exceptions applicable to admissions by opposing parties, authorized
admissions, or vicarious admissions. See K.S.A. 2017 Supp. 60-460(g), (h), and (i). To
determine whether an evidentiary hearing should be held on Garcia's allegations, we
5

conclude that he has provided a sufficient basis for excusable neglect to be entitled to an
evidentiary hearing.

In sum, when a defendant moves to withdraw a plea, the defendant is entitled to an
evidentiary hearing if the defendant presents sufficient facts so that we cannot
conclusively say that the defendant is not entitled to relief. Garcia's factual allegations are
enough to warrant an evidentiary hearing. On remand, the district court shall appoint an
attorney to represent Garcia on the motion. See State v. Jackson, 255 Kan. 455, Syl. ¶ 4,
874 P.2d 1138 (1994); State v. Machutta, No. 102,549, 2010 WL 4103360, at *1 (Kan.
App. 2010) (unpublished opinion).

We reverse the district court's judgment and remand the case for further
proceedings.