Leffel v. State

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NOT DESIGNATED FOR PUBLICATION

No. 120,798

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JORDAN MYCHAEL LEFFEL,
Appellant,

v.

STATE OF KANSAS,
Appellee.

MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed December 13,
2019. Affirmed.

Shawnah K. Corcoran, of Strongpoint Law, of South Hutchinson, for appellant.

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

Before ARNOLD BURGER, C.J., LEBEN and SCHROEDER, JJ.

PER CURIAM: Jordan Mychael Leffel pleaded guilty to eight charges for his role in
three armed robberies. The State originally brought those charges in one case, but later
refiled them as three separate cases. Once convicted, this caused Leffel's criminal-history
score to increase beyond what it would have been had there been only a single case,
which meant that his presumptive sentences also increased.

After sentencing, Leffel said his court-appointed attorney hadn't told him about
this. So he asked the district court to allow him to withdraw his guilty plea. The court
held an evidentiary hearing and rejected his request, saying that the plea agreement and
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the court's own statements made it clear that Leffel had been aware of the sentences he
faced before pleading guilty.

When the district court holds an evidentiary hearing on a plea-withdrawal motion,
we review its decision for an abuse of discretion, which occurs only when the decision is
based on an error of fact or law or when no reasonable person could agree with it. Leffel
doesn't allege any legal or factual errors and there is nothing unreasonable about the
district court's findings: the plea agreement recited the criminal-history score the court
would use in each case, and the court repeated that information before it accepted Leffel's
plea. The court also told Leffel what his maximum sentences were. We therefore affirm
the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Leffel took part in three armed robberies in 2015. After he was arrested, the State
charged him with three counts of robbery, three counts of burglary, and two counts of
kidnapping. At first, the State brought all the charges in a single criminal case. But it later
refiled the charges as three separate cases—one for each armed robbery. According to
Leffel, the State did that because he refused to testify against his codefendants. Leffel
then pleaded guilty in all three cases, and the State amended the kidnapping charges to
misdemeanors.

The effect of the State bringing three cases, instead of one, was that Leffel's
presumptive sentences changed. Under our state's sentencing guidelines, a presumptive
sentence is based on the current offense and the extent of a defendant's past offenses
(condensed into a criminal-history score ranging from A, the most serious, to I, the least
serious). The greater the defendant's criminal-history score, the greater the presumptive
sentence for the current offense.

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For Leffel, this meant that his presumptive sentence increased. When all of
Leffel's charges were in one criminal case, his criminal-history score for his new
sentences would have been F, based on two juvenile convictions; the new convictions, all
in the same case for which was being sentenced, would not have been counted in the
criminal history at all. But when the State spread the charges out across three cases, the
convictions in each case counted towards Leffel's criminal-history score in the other two.
As a result, Leffel's criminal-history score after pleading rose to an A, which meant he
faced a longer guidelines sentence.

Leffel's plea agreement laid this out for him: "Defendant acknowledges,
understands and agrees that the criminal convictions for each case will be scored in the
others as person crimes which will make him a criminal history 'A' for each case." Then
at a hearing on that plea agreement, the district court told Leffel that the maximum
sentence he faced in each case was 247 months in prison. And before the court accepted
his plea, it explained how Leffel's criminal-history score would be calculated:

"THE COURT: Any questions about anything I have said so far, Mr. Leffel? This
is the time to bring up any concerns or statements.
"A. When I was going over on the agreement on the last sentence it says defendant
acknowledges, understands and agrees that the criminal convictions for each case
will be scored in the others as person crimes which will make him a Criminal History
A for each case. That's just if it's agreed to run consecutive, like?
"THE COURT: Your criminal history is based on your prior convictions. The
criminal history is based upon all convictions in other cases, no matter when they
occurred so based upon the way and you have three separate cases with two of the cases
each containing at least two person felonies. If you have any prior person felonies then it
would appear you are going to be an A history but as far as consecutive or concurrent that
has nothing to do with criminal history. That's a decision I will make at sentencing.
"A. Okay, so it's not guaranteed that I'm going to be sentenced in an A box?
"THE COURT: If you have an A history you will be sentenced as an A history.
"A. As of right now I'm not.
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"THE COURT: Once you enter the convictions then you will be.
"A. Okay.
"THE COURT: You need time to talk to Mr. Osburn? I want to make sure you
understand everything that's happening.
"A. All right. I understand."

At sentencing, the district court sentenced Leffel based on criminal-history score
A and determined that the presumptive sentencing range for each case was between 221
and 247 months in prison. Leffel's attorney objected to that finding because he thought it
was "inherently wrong" that the guilty pleas in each case counted towards the criminal-
history scores in the others. But he acknowledged that the sentencing guidelines provided
for that result.

The district court imposed a 233-month sentence in each case and ran each
sentence concurrently (serving all sentences at the same time) rather than consecutively
(serving each sentence in sequence). Leffel appealed his sentences, but our Supreme
Court summarily dismissed that appeal because an appellate court has no subject-matter
jurisdiction to sentences that fall within the presumptive range under the guidelines, as
Leffel's did.

Without the help of an attorney, Leffel then filed a motion seeking habeas corpus
relief under K.S.A. 60-1507. Leffel complained that his court-appointed attorney, Charles
Osburn, had represented him ineffectively by misleading him about the consequences of
pleading guilty. Leffel claimed that Osburn had said that he faced between 82 and 92
months in prison and that his criminal-history score would be F, not A.

The district court held an evidentiary hearing on the motion. Leffel testified that he
wouldn't have pleaded guilty if he had known that he faced a 233-month sentence based
on criminal-history score A. He acknowledged that the district court had tried to explain
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that his score would be A, but he said that he hadn't understood it then. And he also said
that the goal of the habeas motion was to withdraw his plea.

Osburn also testified. He denied telling Leffel that his sentence would be between
82 and 92 months. He also denied telling Leffel that his criminal-history score would be
F. On the contrary, he said, he told Leffel several times that the score would be A because
the State had refiled the charges as three separate criminal cases. And he said that Leffel
was aware of that.

Based on Leffel's testimony and the substance of Leffel's claim, the district court
treated his habeas motion as a motion to withdraw a plea. The court noted that the plea
agreement said that Leffel's criminal history score would be A in all three cases. The
court also read the transcript of the plea hearing and found that the court had stated both
the maximum sentence (247 months) and the criminal-history score it would use for
sentencing (A). Based on those facts, the court concluded that Leffel had been aware of
the sentences he faced and that Osburn did not provide ineffective assistance. The court
also found that, even presuming ineffective assistance, Leffel was not harmed because the
sentence he would have faced at trial was much like the one the court imposed. The court
denied Leffel's motion.

Leffel now appeals that denial to this court.

ANALYSIS

We will begin our analysis with the characterization of Leffel's claim in the district
court. 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. Leffel filed his motion without an attorney's help, and
this court looks to the substance of the motion to determine the standards applicable to it.
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See State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010). Leffel's motion cited K.S.A.
60-1507, the statute for habeas claims. But as he said at the evidentiary hearing, the
substance of his claim was that he should have been allowed to withdraw his plea. And in
his appellate brief, filed by Leffel's appointed attorney, he has cited to the legal standards
for motions to withdraw a plea. We therefore apply the standards for plea-withdrawal
motions to Leffel's claim.

A defendant may withdraw a plea after sentencing only to avoid manifest
injustice. Kansas courts generally consider "manifest injustice" to mean something that is
"'obviously unfair'" or "'shocking to the conscience.'" State v. Kelly, 291 Kan. 868, 873,
248 P.3d 1282 (2011). In applying that standard to a motion to withdraw a plea, we
consider what we generally call the Edgar 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. State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). We then
review the district court's decision for abuse of discretion, which occurs only when the
decision is based on an error of law or fact or when no reasonable person could agree
with it. See State v. Bricker, 292 Kan. 239, 244, 252 P.3d 118 (2011).

Leffel wants to withdraw his plea because he claims that his court-appointed
attorney was ineffective. To show manifest injustice in this context, a defendant must
show that his or her attorney's performance fell below an objective reasonableness
standard and that there's a reasonable probability that, but for the attorney's inadequate
work, the defendant would not have entered the plea and would have insisted on going to
trial. State v. Adams, 284 Kan. 109, 118, 158 P.3d 977 (2007). In short, Leffel had to
show inadequate representation and prejudice as a result.

The district court found that Leffel couldn't make either of those showings. After
hearing testimony from both parties and reading the plea agreement and transcript of the
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plea hearing, it found that Leffel was well aware that his criminal-history score would be
A and that he faced nearly 20 years in prison. So it rejected Leffel's assertion that Osburn
performed deficiently by misleading Leffel about his sentence. And then on prejudice, the
district court found that the sentence would have been similar had he gone to trial, so
Leffel was not prejudiced by any alleged misconduct.

That's not the right legal standard for the second showing. See 284 Kan. at 118
(noting that prejudice is determined by whether a reasonable probability exists that but
for counsel's errors the defendant would not have pleaded guilty and would have taken
the case to trial). But we need not focus on prejudice because Leffel first had to show that
Osburn's representation was not objectively reasonable. The district court found that
Leffel hadn't done that. The district court made that finding under the proper legal
standard, so we may reverse its decision only if no reasonable person could agree with it.

But a reasonable person could agree with the court's decision. Although Leffel
asserts that he didn't know about the consequences of his plea, Osburn said that they
discussed his criminal-history score and potential sentences several times. That testimony
is supported by the plea agreement, which Leffel signed two months before the plea
hearing: "Defendant acknowledges, understands and agrees that the criminal convictions
for each case will be scored in the others as person crimes which will make him a
criminal history 'A' for each case." Then at the plea hearing, the court told Leffel that if
he pleaded guilty, his criminal-history score would be A and the maximum sentence
would be 247 months in prison for each case. So a reasonable person could believe that
Leffel knew of the sentence he faced before pleading guilty.

We conclude that the district court did not abuse its discretion when it denied
Leffel's motion to withdraw his plea. We therefore affirm the district court's judgment.