State v. Bannon

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NOT DESIGNATED FOR PUBLICATION

Nos. 113,497
114,081

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOHN W. BANNON,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER MAGANA, judge. Opinion filed May 6,
2016. Affirmed.

Richard Ney, of Ney & Adams, of Wichita, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before STANDRIDGE, P.J, PIERRON, J., and JOHNSON, S.J.

Per Curiam: In this consolidated appeal, John W. Bannon appeals from the
district court's decision to revoke his probation in Sedgwick County case number 13-CR-
1445 and the court's decision to deny his motion to withdraw his plea in case number 14-
CR-2494. For the reasons stated below, we affirm both of the district court's decisions.



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FACTS

In case number 13-CR-1445, Bannon was convicted of criminal carrying of a
weapon. On June 2, 2014, he was sentenced to 12 months' probation with an underlying
jail term of 12 months.

On June 18, 2014, the State charged Bannon with two counts of criminal threat
and one count of fleeing or attempting to elude an officer in case number 14-CR-1494.
These offenses were alleged to have been committed on June 15, 2014. After a
preliminary hearing, Bannon was bound over on one count of criminal threat and one
count of fleeing or attempting to elude an officer.

On July 24, 2014, Bannon signed a written plea agreement affecting both 13-CR-
1445 and 14-CR-1494. In it, Bannon agreed to enter a plea of no contest to one count of
criminal threat in 14-CR-1494. In return, the State would dismiss the remaining charge of
fleeing or attempting to elude an officer. The parties further agreed to the following in
return for Bannon's plea:

"a. Both parties agree to recommend the following sentences: the low number in the
appropriate sentencing guidelines grid box;
"b. Both parties agree to recommend the sentence imposed in this case run
consecutively to Case No. 13 CR 1445;
"c. Both parties agree to recommend that the statutory presumption be followed in this
case and that Defendant's probation in 13 CR 1445 be reinstated;
"d. The State agrees to recommend that the Court order an LSIR in addition to the PSI
prior to sentencing.
"e. Both parties are free to argue for any conditions of probation they wish the Court to
impose and the level of supervision of Defendant's probation.
"f. The City of Wichita is not a party to this agreement. With that being said, the
attorney representing the City in Wichita Municipal Court Case No. 14CM001677
has indicated that upon Defendant's entry of no contest plea and being sentenced in
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this case, the City will dismiss Case No. 14CM001677 without prejudice and will
consider refiling the same if Defendant has any other police contact relating to
firearms."

Below this list of recommendations, the plea agreement also contained the
following provision: "The State will not be bound by this recommendation and may
make any other sentencing recommendation it deems appropriate, including
incarceration, in the event the defendant is arrested, commits a new offense, violates bond
conditions or fails to appear for a court appearance at any time prior to sentencing."

The district court held a plea hearing on July 24, 2014, the same day Bannon
signed the plea agreement. In accordance with the plea agreement, Bannon pled no
contest to one count of criminal threat and was convicted. After the hearing, Bannon was
released on bond. Among the bond conditions imposed on Bannon was a prohibition
against consuming alcohol and a prohibition against possessing a firearm.

On August 6, 2014, Bannon was stopped by Officer Ronald Sanders of the
Wichita Police Department. During the stop, Sanders smelled the odor of alcohol.
Bannon had an open bottle of wine and a handgun in his car. Sanders ultimately arrested
Bannon for driving under the influence (DUI). Bannon later submitted to an evidentiary
breath test that showed his blood-alcohol content was .076.

On August 7, 2014, the district court issued an arrest warrant for Bannon based on
his violation of the bond conditions in 14-CR-1494. The next day, the State filed a
motion to revoke Bannon's bond.

On August 13, 2014, the State filed a motion for a dispositional departure sentence
in 14-CR-1494. It noted that Bannon faced a presumptive sentence of probation but
argued that a prison sentence was merited because Bannon's violation of bond conditions
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demonstrated that Bannon was not amenable to probation and was a risk to public safety.
After the State filed its departure motion, Bannon filed a motion to withdraw his no
contest plea. In it, Bannon argued the State's actions in filing the departure motion was a
breach of the plea agreement. Bannon claimed he was entitled to withdraw his plea based
on the State's alleged breach of the plea agreement. Bannon further claimed that the
provision in the plea agreement allowing the State to deviate from its agreed upon
sentencing recommendations was unenforceable because the provision lacked
consideration and was unconscionable.

A hearing on Bannon's motion to withdraw his plea was held on October 10, 2014.
The parties did not call any witnesses and provided only argument to the district court.
On October 27, 2014, the district court issued a written decision denying Bannon's
motion to withdraw his plea based on its finding that the State did not breach the plea
agreement.

The sentencing hearing in 14-CR-1494 and probation revocation hearing in 13-
CR-1445 both took place on January 2, 2015. First, the State called Officer Sanders as a
witness to testify about the circumstances surrounding the August 6, 2014, arrest of
Bannon. The purpose of this testimony was to show that the State was no longer bound
by the plea agreement's recommendations affecting both cases on appeal. The district
court eventually granted the State's dispositional departure motion and sentenced Bannon
in 14-CR-1494 to 6 months in prison. The court then revoked Bannon's probation in 13-
CR-1445 based on Bannon's violations of the conditions of probation and ordered
Bannon to serve a modified jail sentence of 8 months in prison.

ANALYSIS

The sole issue presented on appeal is whether the district court erred in denying
Bannon's motion to withdraw plea. Under K.S.A. 2015 Supp. 22-3210(d)(1), a guilty or
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no contest plea may be withdrawn "for good cause shown and within the discretion of the
court" at any time before the sentence is adjudged. This court will not disturb a district
court's denial of a defendant's presentence motion to withdraw a plea unless the defendant
establishes that the district court abused its discretion. State v. Macias-Medina, 293 Kan.
833, 836, 268 P.3d 1201 (2012). A 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. Northern Natural Gas Co. v. ONEOK Field Services Co., 296
Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013). A decision is arbitrary,
fanciful, or unreasonable when no reasonable person would have taken the view of the
district court. State v. Wilson, 301 Kan. 403, 405, 343 P.3d 102 (2015).

Bannon claims the district court abused its discretion in denying his motion to
withdraw plea because the following facts constitute good cause as a matter of law under
the facts presented in this case: (1) the State breached the plea agreement; (2) the plea
agreement was not supported by adequate consideration; and (3) the plea agreement was
unconscionable.

1. Breach of plea agreement

Generally, a plea agreement is subject to contract principles. State v. Urista, 296
Kan. 576, 583, 293 P.3d 738 (2013). "The primary rule for interpreting written contracts
is to ascertain the parties' intent. If the terms of the contract are clear, the intent of the
parties is to be determined from the language of the contract without applying rules of
construction." Anderson v. Dillard's, Inc., 283 Kan. 432, 436, 153 P.3d 550 (2007). In
ascertaining the intent of the parties, a court must construe all provisions together and in
harmony with one another and should not engage in critical analysis of a single or
isolated provision. Iron Mound v. Nueterra Healthcare Management, 298 Kan. 412, 418,
313 P.3d 808 (2013). "A contract is not ambiguous unless two or more meanings can be
construed from the contract provisions. [Citation omitted.]" 298 Kan. at 418. "'Courts
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should not strain to create an ambiguity where, in common sense, there is not one.
[Citations omitted.]'" American Family Mut. Ins. Co. v. Wilkins, 285 Kan. 1054, 1059,
179 P.3d 1104 (2008). But if an ambiguity is found in a plea agreement, the agreement
should be strictly construed in favor of the accused. State v. Wills, 244 Kan. 62, 69, 765
P.2d 1114 (1988).

Bannon argues the State breached the plea agreement and that this alleged breach
constitutes the good cause required to allow him to withdraw his plea as a matter of law.
Bannon's argument is based on language in the plea agreement permitting the State to
make any sentencing recommendation, including a term of prison, if Bannon violated the
conditions of his bond. Notably, Bannon does not dispute he violated his bond conditions
and that these violations released the State from its obligation to make the
recommendations set forth in the plea agreement. Bannon also does not dispute that these
violations permitted the State to make any other sentencing recommendation it deemed
appropriate, including incarceration. Instead, Bannon identifies the State's decision to
affirmatively file a motion seeking an upward dispositional departure in the 2014 case
and its decision to oppose reinstatement of probation in the 2013 case as the basis for his
claim that the State breached the plea agreement. Specifically, Bannon asserts a motion
for upward dispositional departure is not a "sentencing recommendation" as that phrase is
used in the plea agreement. Bannon claims that a recommendation is merely a suggestion
to the court about what should be done, while a departure motion is "the affirmative legal
trigger that allows the court to determine whether there are 'substantial and compelling'
reasons for the court to impose a sentence other than the presumptive sentence." With
regard to the 2013 case, Bannon asserts that a decision to oppose reinstatement of
probation does not qualify as a sentencing "recommendation" under the facts presented
because Bannon already had been sentenced in that case.


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To begin with, we are not persuaded by Bannon's assertion that filing a motion to
depart and opposing reinstatement of probation do not constitute sentencing
recommendations. In direct contradiction to Bannon's assertions—which Bannon
concedes are unsupported by any relevant authority—the Kansas Sentencing Guidelines
use the term "recommend" when discussing departure sentences. K.S.A. 2015 Supp. 21-
6812(c) allows a prosecutor negotiating a plea bargain to "recommend a particular
sentence outside of the sentencing range only when departure factors exist and such
factors are stated on the record." (Emphasis added.) But more importantly, the plain
language of the plea agreement in this case was remarkably broad. In this written
document, the parties agreed that if Bannon violated the conditions of his bond, the State
could "make any other sentencing recommendation it deems appropriate, including
incarceration." (Emphasis added.) By filing a dispositional departure motion, the State
was doing precisely what the plea agreement authorized it to do: ask the district court to
incarcerate Bannon. The State did not breach the plea agreement in doing so.

Based on our finding that the State did not breach the plea agreement, we conclude
the district court did not abuse its discretion in finding that Bannon had failed to show the
good cause required to allow him to withdraw his plea.

2. Consideration

Next, Bannon argues that the provision relieving the State of its obligation to make
the agreed upon sentencing recommendations was not supported by consideration. "It is
an elementary principle of law that to be enforceable a contract must be based upon
valuable consideration." Apperson v. Security State Bank, 215 Kan. 724, 734, 528 P.2d
1211 (1974). Consideration is "any benefit, profit or advantage flowing to the promisor
which he [or she] would not have received but for the contract, or any loss or detriment to
the promisee." Temmen v. Kent-Brown Chevrolet Co., 217 Kan. 223, 231, 535 P.2d 873
(1975). But, "an agreement to do or the doing of that which a person is already bound to
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do does not constitute a sufficient consideration for a new promise." Apperson, 215 Kan.
at 734. The interpretation and legal effect of written instruments present questions of law
subject to unlimited review by this court. In re Marriage of Traster, 301 Kan. 88, 104,
339 P.3d 778 (2014).

In support of his argument that the plea agreement lacked consideration, Bannon
notes he had a preexisting legal duty to obey the law, appear at sentencing, and abide by
his bond conditions. As a result, he argues that his promises to do those things prior to
sentencing could not have served as consideration for the State's promises regarding
sentencing. To accept Bannon's argument, however, we would be required to improperly
isolate one provision within the plea agreement. The provision that released the State
from its obligation to make certain sentencing recommendations was merely one of many
terms found in the binding plea agreement. The provision clearly described what would
happen if Bannon failed to obey the law, show up for court, or abide by his bond
conditions. And notably, this provision would have had no effect on the parties'
agreement had Bannon not violated his bond conditions.

When viewed in its entirety, the parties agreed that Bannon would plead no contest
to one count of criminal threat and that, in return, the State would dismiss one count of
fleeing or attempting to elude an officer. The dismissal of this count was unquestionably
a benefit to Bannon. Because this exchange of promises alone is sufficient consideration
to form a binding contract, we find the plea agreement as a whole was supported by
consideration.

To the extent Bannon is arguing that some amount of consideration was needed
above and beyond the dismissal of one of the counts against him in order for the State to
be relieved of its obligation to make the agreed upon sentencing recommendations, this
argument fails. In Moler v. Melzer, 24 Kan. App. 2d 76, 77, 942 P.2d 643 (1997), the
parties entered into a real estate contract that included the following clause: "'In the case
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that the client should become dissatisfied with the inspection, it's [sic] findings, or future
occurrences, the client will hold the inspector or the company represented liable for the
cost of the inspection only.'" Moler argued the clause was a release of liability that must
be supported by separate consideration. But this court found the clause was not a release
of liability and noted that "Kansas has never imposed a requirement that a contract clause
limiting liability be supported by separate consideration." 24 Kan. App. 2d at 78.

The plea agreement provision at issue here is comparable to the clause in Moler.
When Bannon violated his bond conditions, the State was released from its promise to
make certain recommendations at sentencing. But the State was not released from its
promise to dismiss the second count against Bannon. In the same way one party sought to
limit its liability under the contract in Moler, the State here only sought to limit its
obligations in the event Bannon failed to cooperate with the court or act in a lawful
manner. These are legitimate concerns for the State when agreeing to recommend
probation to a criminal defendant. Accordingly, no additional consideration was needed
to support the provision in the contract challenged by Bannon.

3. Unconscionability

Finally, Bannon argues that the plea agreement provision relieving the State of its
responsibility to make the agreed upon sentencing recommendation was unconscionable
and therefore unenforceable. A contract may be deemed unconscionable if it is unfairly
surprising, one-sided, or oppressive. But unequal bargaining power alone is insufficient
to render a contract unconscionable. Wille v. Southwestern Bell Tel. Co., 219 Kan. 755,
757-60, 549 P.2d 903 (1976).

In his brief, Bannon acknowledges the holding of State v. Bell, No. 111,063, 2015
WL 1123022 (Kan. App.) (unpublished opinion), rev. denied 302 Kan. __ (September 23,
2015). There, a panel of this court found that the precise plea agreement clause at issue
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here was not unconscionable. 2015 WL 1123022, at *1, 5. In Bell, the State agreed to
recommend the lowest guideline sentences for all of the criminal offenses charged against
Bell. The State entered into a written plea agreement with Bell containing the same
clause that Bannon challenges in this case. Bell failed to appear at his sentencing hearing.
Relieved of its obligation to recommend the lowest guideline sentences, the State instead
recommended the maximum guidelines sentences. 2015 WL 1123022, at *1. Bell did not
file a motion to withdraw his plea but directly appealed his sentence by arguing that his
plea agreement was unconscionable. 2015 WL 1123022, at *2. This court disagreed and
affirmed his sentence. 2015 WL 1123022, at *5-6.

Bannon argues that his case is distinguishable from Bell. First, he points out that
the State sought a dispositional departure in this case but only sought higher guidelines
sentences in Bell. Bannon also points out that Bell did not seek to withdraw his plea. But
in both cases the provision authorizing the State to disregard the agreed upon sentencing
recommendation was identical. Bannon fails to explain why Bannon's motion to
withdraw his plea, which occurred after the plea agreement was signed, should affect our
analysis of whether the written contract provision was unconscionable. Generally, courts
must look to the circumstances that existed when the agreement was entered into to judge
whether it is conscionable. Estate of Link v. Wirtz, 7 Kan. App. 2d 186, 189, 638 P.2d
985, rev. denied 231 Kan. 800 (1982).

Bannon does, however, cite the State's dispositional departure motion as evidence
that the plea agreement was unfairly surprising. He again argues that the term "sentencing
recommendation" as it was used in the plea agreement did not include the filing of a
dispositional departure motion. In addition to the reasons discussed above in denying
Bannon relief on this claim, we find it difficult to see how Bannon could have been
surprised by the State's departure motion. The plea agreement specifically stated that the
State could recommend incarceration if Bannon violated his bond conditions. Since
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Bannon did violate his bond conditions, he cannot now credibly claim that he was
unfairly surprised by the State's motion seeking to have him incarcerated.

In Wille, the Kansas Supreme Court noted 10 factors that courts could use to
determine if a given contract is unconscionable:

"(1) The use of printed form or boilerplate contracts drawn skillfully by the party in the
strongest economic position, which establish industry wide standards offered on a take it
or leave it basis to the party in a weaker economic position [citations omitted]; (2) a
significant cost-price disparity or excessive price; (3) a denial of basic rights and
remedies to a buyer of consumer goods [citation omitted]; (4) the inclusion of penalty
clauses; (5) the circumstances surrounding the execution of the contract, including its
commercial setting, its purpose and actual effect [citation omitted]; (6) the hiding of
clauses which are disadvantageous to one party in a mass of fine print trivia or in places
which are inconspicuous to the party signing the contract [citation omitted]; (7) phrasing
clauses in language that is incomprehensible to a lay[person] or that divert his [or her]
attention from the problems raised by them or the rights given up through them; (8) an
overall imbalance in the obligations and rights imposed by the bargain; (9) exploitation of
the underprivileged, unsophisticated, uneducated and the illiterate [citation omitted]; and
(10) inequality of bargaining or economic power. [Citations omitted.]" 219 Kan. at 758-
59.

Bannon argues that his plea agreement was unconscionable because of the
boilerplate nature of the provision relieving the State of its obligation to recommend a
certain sentence and because of the unequal bargaining power between the parties. Even
if true, the fact that the language was boilerplate is merely one factor in many to consider
when determining if a provision is unconscionable. As the panel in Bell pointed out,
under the challenged provision, it is the defendant who ultimately controls whether he or
she will receive the bargained-for sentencing recommendation. See Bell, 2015 WL
1123022, at *3. If Bannon had abided by his bond conditions, the State presumably
would not have filed a dispositional departure motion.
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Bannon also asserts that he and the State had unequal bargaining power. He cites
Wills, in which the Kansas Supreme Court noted that a defendant has only one bargaining
chip: the ability to insist on a trial. 244 Kan. at 68. Bannon argues that this unequal
bargaining power combined with the boilerplate provision challenged on appeal render
the plea agreement unconscionable. He notes, as an example, that the plea agreement
allowed the State to make any sentencing recommendation it deemed appropriate in the
event Bannon was merely arrested for a crime, whether he was innocent of the charges or
not. While this hypothetical situation may be troubling, it is irrelevant to this case. The
State argued at sentencing that it was the violations of Bannon's bond conditions and not
his arrest that allowed it to recommend a dispositional departure sentence.

To that end, Bannon argues that he was entitled to a presumption of innocence in
the face of charges stemming from his August 6, 2014, traffic stop. As a preliminary
matter, we note that Bannon has never argued the district court erred in finding that he
violated his bond conditions. An issue not briefed is deemed waived and abandoned.
State v. Jones, 300 Kan. 630, 639, 333 P.3d 886 (2014). But even if he had not
abandoned his argument, it has no merit because the State presented sufficient evidence
to support the district court's finding that Bannon violated his bond conditions. Officer
Sanders testified that Bannon had a gun and an open bottle of wine in his car. Sanders
also testified that an evidentiary breath test showed that Bannon had consumed alcohol.

Bannon's final argument is that the plea agreement was unconscionably one-sided
because the State retained the benefit of its bargain while he lost his. But as noted above,
part of the benefit Bannon received from the plea agreement was the dismissal of one
count of fleeing or attempting to elude an officer. Bannon acknowledges the dismissal of
this count in his brief but downplays its significance by stating that he "did not receive
any other benefit under the plea agreement." The fleeing or attempting to elude charge
against Bannon was a severity level 9 person felony. Dismissal of a person felony charge
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is a significant benefit. As a result, we find that the plea agreement was not
unconscionably one-sided.

Affirmed.