State v. Brown

1

NOT DESIGNATED FOR PUBLICATION

No. 114,328

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

NATHAN A. BROWN,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOSEPH BRIBIESCA, judge. Opinion filed March 24, 2017.
Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before HILL, P.J., BUSER and LEBEN, JJ.

BUSER, J.: In this appeal, Nathan A. Brown contends the district court erred when
it denied his presentencing motions to withdraw his guilty plea. According to Brown, he
did not receive competent representation from conflict-free counsel and his plea was not
fairly and understandingly made. Based upon our review of the record and the parties'
briefs, we find no abuse of discretion and, therefore, affirm the rulings of the district
court.

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FACTUAL AND PROCEDURAL BACKGROUND

On October 6, 2014, Brown pled guilty to commercial sexual exploitation of a
child, a severity level 5 person felony, after he unlawfully and knowingly procured
transportation, paid for transportation, or transported A.M.A., who was 17 years old at
the time, within the state with the intent to cause, assist, or promote that person to engage
in selling sexual relations. In exchange for Brown's plea, the State promised to make
favorable sentencing recommendations and to dismiss a charge of aggravated human
trafficking, a severity level 1 person felony.

After verifying that no one had threatened or made Brown any promises regarding
his plea; that Brown was satisfied with his attorney's representation; and that he
understood his rights, the charges against him, and the consequences of his plea, District
Judge Joseph Bribiesca accepted Brown's plea as a knowing, intelligent, and voluntary
waiver of his rights and found him guilty.

Prior to sentencing, Brown's newly appointed attorney, Lee H. Woodard, filed a
motion to withdraw his guilty plea. Brown asserted there was good cause for withdrawal
of his plea because his prior appointed attorney, Bradley P. Sylvester, had a conflict of
interest.

On January 28, 2015, Judge Bribiesca held an evidentiary hearing on the motion.
At the hearing, Sylvester, who was assigned to the Sedgwick County Conflicts Office of
the Board of Indigent Defense Services, testified that although he believed he provided
Brown with competent representation, he had recently discovered that his office had
previously represented Brown's victim, A.M.A., on another matter. In particular,
Sylvester's office had represented A.M.A., a juvenile, as a material witness in a prior
unrelated criminal case. According to Sylvester, A.M.A.'s material witness case was
3

closed in 2013, and he began his representation of Brown in this criminal case on May
12, 2014.

Sylvester testified that he first discovered the conflict on October 15 or 16, 2014,
shortly after Brown's plea hearing, while he was reviewing office files to identify cases
that might involve sentencing issues affected by State v. Murdock, 299 Kan. 312, 323
P.3d 846 (2014), overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert.
denied 136 S. Ct. 865 (2016). Sylvester promptly notified all of the appropriate parties, in
writing, of the conflict either that day or the day after he discovered the conflict. When
asked if he knew about the Conflicts Office's prior representation of A.M.A. before
October 15 or 16, Sylvester replied:

"I did not. In fact, it was Pam Parker who represented her. And, of course, in our
office of four attorneys, we talk about our cases, we talk about the negotiations, kind of
bounce ideas off. I don't think I ever mentioned the girl's name, and I'm not sure if Pam
Parker would have even recognized the girl's name, because . . . she was a material
witness [and] that may be the only time our office has ever represented a juvenile as a
material witness that I know of. And I don't think Pam had too much to do with her,
[because] I found the file and went to her. She did recall the girl at that point, [because] I
asked her about it, but I don't think she knew . . . the person's name ahead of time."

Although his office always performs a conflicts check when accepting a new
client, Sylvester surmised A.M.A.'s name did not register when a check was performed
prior to representing Brown because the Conflicts Office does not ordinarily represent
juveniles. Sylvester explained, "I don't do the checks, and . . . I don't know why it wasn't
caught, to be honest. [M]y guess is this: The initials [A.M.A.], it was a juvenile, our
office didn't pursue who [A.M.A.] was because we don't represent juveniles, so it kind of
slipped through."

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Sylvester learned the State did not plan to call A.M.A. to the stand or introduce
any of her prior statements in the commercial sexual exploitation of a child case. He
testified that if he had discovered the conflict at the time the conflicts check was
conducted, he would have notified the district court that his office could not represent
Brown, as "[he] certainly would have assumed that [A.M.A.] was going to be in court,
and [he] would have found that to be a conflict."

At the conclusion of the hearing, Judge Bribiesca denied Brown's motion, finding
that although Sylvester certainly would have had a duty to file a motion to have another
lawyer appointed had he known from the very beginning of the case that his office had
represented A.M.A., the conflict did not rise to the level of good cause to withdraw
Brown's plea because the conflict did not adversely impact Sylvester's representation of
Brown due to the timing of Sylvester's discovery of the conflict.

Subsequently, Brown filed a pro se motion to correct illegal sentence and
withdraw his plea. In this motion, Brown contended his plea should be withdrawn
because neither Judge Bribiesca nor Sylvester informed him prior to the plea that he
would be required to register as a sexual offender for the rest of his life. See Kansas
Offender Registration Act (KORA), K.S.A. 22-4901 et seq. Brown also complained that
he should not be subject to lifetime postrelease supervision. As a result, Brown argued
that his plea was not entered knowingly and voluntarily because he did not understand the
full range of the consequences due to the district judge's failure to conduct a proper plea
colloquy and Sylvester's incompetence. In his motion, Brown also raised an illegal
sentencing issue which he has abandoned on appeal.

Judge Bribiesca held a hearing on Brown's motion on March 27, 2015. Brown
advised Judge Bribiesca that his motion to withdraw plea was based on his belief that he
was not properly informed that a conviction for commercial sexual exploitation of a child
5

carried a lifetime postrelease supervision term. Judge Bribiesca denied Brown's motion
because the transcript of the plea hearing clearly demonstrated otherwise:

"All right. Well, I have a copy of the transcript of the plea hearing here in my
possession. I've read it before the—before the hearing, and at page nine of the transcript
I'm having colloquy with Mr. Brown and I explained to Mr. Brown the potential
sentence. And at the very end I say to him, quote, '. . . and you have lifetime post-release
supervision,' end of quote.

"Then I say to him, 'Mr. Brown, did you understand what I read to you?' And Mr.
Brown says, 'Yes, sir.' 'Any questions about that?' Mr. Brown says, 'No, sir.' Then I
follow up with, 'I trust that Mr. Sylvester explained that to you before the hearing.' Mr.
Brown's answer is, 'Yes, sir.' That addresses the question."

Brown was sentenced on April 15, 2015, to 114 months' imprisonment followed
by lifetime postrelease supervision.

Brown filed this timely appeal, claiming that Judge Bribiesca abused his discretion
when he denied both of Brown's presentencing motions to withdraw guilty plea.

ANALYSIS

Prior to sentencing, a district court may, in the exercise of sound judicial
discretion, allow a defendant to withdraw a plea of guilty or nolo contendere "for good
cause shown." K.S.A. 2016 Supp. 22-3210(d)(1). According to our Supreme Court, the
"'good cause' standard . . . is 'a "lesser standard" for a defendant to meet when compared
to [the] manifest injustice'" standard required for a defendant who files a postsentence
motion to withdraw plea. State v. Macias-Medina, 293 Kan. 833, 836-37, 268 P.3d 1201
(2012).

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Kansas courts generally consider the following three factors, commonly referred
to as the Edgar factors, when determining whether a defendant has shown good cause to
withdraw a plea: "(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. Fritz, 299 Kan.
153, 154, 321 P.3d 763 (2014); see State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006).
These "'factors need not apply in a defendant's favor in every case, and other factors may
be duly considered in the district judge's discretionary decision on the existence or
nonexistence of good cause.' [Citation omitted.]" Macias-Medina, 293 Kan. at 837.
Moreover, while these factors are "viable benchmarks for judicial discretion," district
courts should neither mechanically apply them nor rely upon them to the exclusion of
other factors. State v Aguilar, 290 Kan. 506, 512, 231 P.3d 563 (2010).

Appellate courts will not disturb a ruling on a presentence motion to withdraw
plea unless the defendant sufficiently demonstrates that the district court abused its sound
discretion. State v. Kenney, 299 Kan. 389, 393, 323 P.3d 1288 (2014). When the parties
challenge the district court's factual findings, this court reviews those findings under the
substantial competent evidence standard. State v. Anderson, 291 Kan. 849, 855, 249 P.3d
425 (2011). Substantial competent evidence is evidence possessing both relevance and
substance "that a reasonable person could accept as being adequate to support a
conclusion." State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009). When reviewing
factual findings, we do not reweigh evidence, resolve evidentiary conflicts, or make
determinations regarding witness credibility. Anderson, 291 Kan. at 855.

Brown claims that he established good cause to withdraw his plea because he
fulfilled two of the three Edgar factors—he did not receive competent representation
from conflict-free counsel and his plea was not fairly and understandingly made. We will
address each of these claims separately.

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Was Brown Represented By Competent Counsel?

To insure that defendants receive a fair trial, the Sixth Amendment to the United
States Constitution, made applicable to the states through the Fourteenth Amendment,
guarantees the right to effective assistance of conflict-free counsel. State v. Galaviz, 296
Kan. 168, 174, 291 P.3d 62 (2012). "'An "actual conflict," for Sixth Amendment
purposes, is a conflict of interest that adversely affects counsel's performance.'" State v.
Gleason, 277 Kan. 624, 654, 88 P.3d 218 (2004) (quoting Mickens v. Taylor, 535 U.S.
162, 172 n.5, 122 S. Ct. 1237, 152 L. Ed. 2d 291 [2002]). Consequently, as a general
matter, "[t]o show a Sixth Amendment violation, a claim of ineffective assistance of
counsel based upon a conflict of interest requires the defendant to show that the conflict
affected the adequacy of the representation. See Mickens, 535 U.S. at 172-73; Cuyler v.
Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)." State v. Bricker, 292
Kan. 239, 245, 252 P.3d 118 (2011).

As Brown points out, however, the Aguilar court refused to "equate the lesser
K.S.A. [2016 Supp.] 22-3210(d) good cause standard governing a presentence plea
withdrawal motion to the high constitutional burden" required for Sixth Amendment
purposes by Mickens. Aguilar, 290 Kan. at 513; accord Bricker, 292 Kan. at 245. Instead,
in an apparent effort to give meaning to the plain language of K.S.A. 2016 Supp. 22-
3210(d), the Aguilar court determined that "[m]erely lackluster advocacy—or . . .
evidence of an insurmountable conflict of interest among jointly represented
codefendants . . .—may be plenty to support the first Edgar factor and thus statutory good
cause for presentence withdrawal of a plea." Aguilar, 290 Kan. at 513. Presumably due to
"the particularly egregious facts of th[e] case"—the existence of an insurmountable
conflict of interest based upon counsel's concurrent representation of Aguilar and her
codefendant— "the [Aguilar] majority provide[d] no guidelines for filling the void
created by its removal of the Mickens standards." Aguilar, 290 Kan. at 515; 290 Kan. at
517 (Nuss, C.J., dissenting).
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Nevertheless, the following statement by the Aguilar court is instructive regarding
the manner in which we should consider the claimed conflict of interest in this case: "We
note, however, that the plain language of the statute—'for good cause shown and within
the discretion of the court'—should not be ignored. A district court has no discretion to
fail to remedy a constitutional violation." 290 Kan. at 513. In other words, while a district
court has discretion to grant or deny a presentence motion to withdraw plea when good
cause has been shown, it has no such discretion when a constitutional violation is the
basis for the withdrawal request. See State v. Brown, 46 Kan. App. 2d 556, 562, 263 P.3d
217 (2011) ("If a defendant has shown good cause . . . , the court may allow the
defendant to withdraw the plea, exercising the discretion granted by the legislature.
Stated another way, the court has a choice, but only when the defendant has shown good
cause. However, if the defendant has failed to show good cause, the court has no choice
but to deny the defendant's request to withdraw the plea.").

As summarized earlier, Judge Bribiesca found that any conflict in Sylvester's
unknowing representation of Brown after another attorney in the Conflicts Office
previously represented Brown's victim, A.M.A., in a prior unrelated and concluded case
did not establish good cause for the withdrawal of Brown's plea. Central to the district
judge's decision-making was the fact that the conflict played absolutely no role in the
representation of Brown by Sylvester. Judge Bribiesca explained:

"For purposes of the record, the Court makes the following findings: In perusing
the paperwork that I have in my possession—by paperwork, I mean the file—Mr. Brown
was originally charged with aggravated human trafficking, a severity level 1 person
felony; in the alternative, he was charged with commercial sexual exploitation of a child,
a severity level 5 person felony. He entered a plea to the alternative charge of commercial
sexual exploitation of a child, a severity level 5 person felony, thereby saving himself a
lot of prison time if he would have been convicted of the severity level 1 offense.
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"Based on the evidence presented this morning, the Court finds that at the time of
the representation by Mr. Sylvester of Mr. Brown, up to and shortly after the plea, Mr.
Sylvester wasn't even aware of the potential conflict.
"Now, for the record, the Court finds that under the evidence presented today, if
Mr. Sylvester had known that his office had represented [A.M.A.], if he had known from
the very beginning of the case—and by case, I'm talking about Mr. Brown's case—then I
believe he certainly would have had a duty to file a motion to have another lawyer
appointed, because that certainly on its face appears to be a conflict, but he didn't know.
When he found out, he did the right thing. He notified all the parties to let [them] know
that he thought there was a conflict. That shows that Mr. Sylvester is a very conscientious
individual and he tries to follow the rules of ethics.
"Now, he wasn't aware of this potential conflict at the time of the plea. The plea
was entered on the 6th day of October of [2014]. Mr. Sylvester found out about the
potential conflict on or about the 15th or 16th of October of [2014]. Therefore, the Court
finds that this conflict played absolutely no role in the representation of Mr. Brown by
Mr. Sylvester. Mr. Brown was not adversely impacted whatsoever by the conflict that
he's arguing about this morning. So for all those reasons, the motion is denied."

On appeal, the parties do not dispute the facts of the matter. From the district
judge's findings and the uncontroverted facts developed at the hearing, the following facts
are undisputed: (1) Sylvester and the Conflicts Office represented Brown in this criminal
case where A.M.A. was the alleged victim; (2) Another attorney associated with the
Conflicts Office had previously represented A.M.A. in an unrelated criminal case
wherein A.M.A. was a material witness; (3) The Conflicts Office's representation of
A.M.A. in the material witness case concluded in 2013; (4) Later, on May 12, 2014,
Sylvester and the Conflicts Office began their representation of Brown in this case; (5)
When Sylvester and the Conflicts Office were appointed to represent Brown, negotiated a
plea agreement, and assisted him in the entry of his guilty plea, Sylvester was unaware
that the Conflicts Office had previously provided legal representation to A.M.A.; (6)
Shortly after Brown's guilty plea, Sylvester inadvertently learned of the Conflicts Office's
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prior representation of A.M.A.; and (7) Upon learning of the prior representation,
Sylvester notified all parties in writing of the conflict within a day of the discovery.

Having reviewed the legal principles that guide the analysis and the
uncontroverted facts relevant to this issue, we next consider the nature of the conflict of
interest at issue in this case.

On appeal, Brown is not claiming a Sixth Amendment violation of his right to
effective assistance of conflict-free counsel. And he is not asserting that Sylvester's
conflict of interest adversely affected the adequacy of his representation. Rather, he
contends the district judge erred because Sylvester had a conflict of interest and for that
reason should not have been advising Brown with respect to entering a guilty plea or
representing him when he entered his guilty plea.

On the other hand, the State urges us to affirm Judge Bribiesca's decision because
any conflict that existed did not adversely impact Brown and played no role in the
representation of Brown by Sylvester; therefore, there was not good cause to allow the
plea to be withdrawn.

Was there a conflict of interest? Under the Kansas Rules of Professional Conduct
(KRPC), attorneys owe ethical obligations to both former and current clients; therefore,
as a general rule, attorneys shall not represent a client if that representation creates a
conflict of interest for the attorney with either former or current clients. See KRPC 1.7
(2017 Kan. S. Ct. R. 300) (conflict of interest; current clients); KRPC 1.9 (2017 Kan. S.
Ct. R. 313) (conflict of interest; duties to former clients). Similarly, with some
exceptions, lawyers associated in a law firm shall not "knowingly represent a client when
any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9."
KRPC 1.10(a) (2017 Kan. S. Ct. R. 316).

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The State's argument essentially concedes that at the time of Brown's plea,
Sylvester had a conflict of interest: "However, a review of the testimony shows that
defendant failed to show that the conflict actually affected the adequacy of Sylvester's
representation." (Emphasis added.) Similarly, we understand Judge Bribiesca's ruling is
that although Sylvester had a conflict of interest, "this conflict played absolutely no role
in the representation of Mr. Brown by Mr. Sylvester. Mr. Brown was not adversely
impacted whatsoever by the conflict." (Emphasis added.)

We agree with Brown's assertion, the State's concession, and the district judge's
view that Sylvester had a conflict of interest at the time he represented Brown in this
matter. This conflict of interest is one of successive representation, that is, where defense
counsel has previously represented a codefendant or trial witness. Galaviz, 296 Kan. at
182; Moss v. United States, 323 F.3d 445, 455 n.15, 459 (6th Cir.) cert. denied 540 U.S.
879 (2003).

Does Sylvester's successive representation rise to such a level of good cause that
the district court had no discretion to deny Brown's motion to withdraw his plea in this
case? Neither Brown nor the State refer us to any on-point legal citation, and we cannot
locate any since the seminal Aguilar opinion enunciated a new understanding of good
cause in conflict of interest cases. But given Brown's assertion on appeal and the unique
facts of this case, we do not find any abuse of discretion in the district court's denial of
Brown's motion to withdraw his plea.

Brown contends the mere fact of a successive representation conflict mandates
good cause to withdraw his plea. Yet, in Aguilar, 290 Kan. at 514, a serious case of
concurrent representation of multiple defendants with antagonistic defenses, our Supreme
Court found the conflict was "insurmountable," precisely because of the myriad of
problems such representation actually created for Aguilar. In particular, our Supreme
Court noted that this was a constructive possession of illegal drugs case, for which dual
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representation of clients has been found to be an actual conflict of interest in numerous
courts. 290 Kan. at 514 (citing cases). Indeed, in Aguilar, defense counsel offered both
defendants a joint representation deal ($1,500 total if both pled or $3,000 if both went to
trial). Shortly before the joint plea hearing, however, the attorney sought to withdraw
from Aguilar's case due to nonpayment of attorney fees which made it "'impossible' for
him 'to zealously represent' [Aguilar]." 290 Kan. at 514. Nevertheless, 3 days later, the
attorney represented both defendants at the plea hearing without a ruling on the motion to
withdraw. But our Supreme Court noticed that Aguilar pled guilty as charged while the
other defendant received a dismissal of additional charges which, according to our
Supreme Court, "intensifies our concern." 290 Kan. at 514. In short, our Supreme Court's
focus in Aguilar was not on the fact of the conflict but on "the particularly egregious
facts" that resulted from the conflict. 290 Kan. 506, Syl. ¶ 3.

In the present case, Brown does not claim that Sylvester's successive
representation had any effect, let alone an adverse effect, on the quality of legal services
Sylvester provided him. This is undoubtedly because Sylvester was unaware of the
conflict and, therefore, could not be affected in any way by it.

Moreover, Sylvester testified that he believed he provided Brown with competent
representation, and at the plea hearing, Brown informed the district court that Sylvester
had not made any promises to him or forced him to enter a guilty plea. In fact, Brown
asserted that he was satisfied with Sylvester's legal services.

As the party asserting that the district judge abused his discretion, Brown bears the
burden of showing such abuse. See Fritz, 299 Kan. at 154. In this regard, a judicial action
constitutes an abuse of discretion if it is (1) arbitrary, fanciful, or unreasonable, i.e., "no
reasonable person would have taken the view adopted by the trial court;" (2) guided by an
erroneous legal conclusion; or (3) based upon an error of fact. State v. Marshall, 303
Kan. 438, 445, 362 P.3d 587 (2015).
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In the district court and on appeal, Brown has not shown an abuse of discretion.
He points to no errors of fact or law, nor does he assert that Judge Bribiesca's decision
was arbitrary, fanciful, or unreasonable. Moreover, we are persuaded that Brown has
failed to show that no reasonable person would have taken the view adopted by the
district court.

Was Brown's Plea Fairly and Understandingly Made?

Brown contends his plea was not fairly and understandingly made because he was
not fully aware of the consequences of his plea. In particular, he claims he was not
advised that a conviction for commercial sexual exploitation of a child carried a lifetime
postrelease supervision term and a lifetime registration requirement. The State counters
that we should affirm the district judge's decision because the evidence supports his
conclusion that Brown failed to demonstrate good cause.

Preliminarily, we consider Brown's claim made in his pro se motion that he was
unaware of the lifetime registration requirement under KORA. At the hearing on the
motion, Brown failed to pursue this particular issue or seek a ruling from the district
court. On the contrary, Brown advised Judge Bribiesca that he was seeking relief from
the court's lifetime postrelease supervision term. As clarified by the district judge:

"THE COURT: All right. Now, let's just get to the point here. Mr. Brown is
alleging throughout the motion that he wasn't informed of the lifetime [postrelease]
supervision under the statute, is that your understanding, Mr. Woodard?
"MR. WOODARD: My—that—yes, Your Honor, that he—that he wasn't—in
reading the motion that is my understanding, yes.
"THE COURT: Is that what you're alleging, Mr. Brown?
"[BROWN]: Yes, sir."

14

Based on the responses given by Brown and his defense counsel, Judge Bribiesca
did not consider or rule on Brown's claim that he was never properly advised of the
lifetime registration requirement. As a result, Brown failed to preserve the lifetime
registration issue for our review because issues not raised before the district court
generally may not be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d
987 (2014).

Nevertheless, even if Brown had preserved the lifetime registration issue, in
addition to the lifetime postrelease supervision issue (which was preserved) for our
review, both arguments would fail on the merits. As a result, we will consider the merits
of both the lifetime registration and lifetime postrelease supervision issues.

Critical to our analysis are the facts and statements contained in the transcript of
the plea hearing. This record shows that Judge Bribiesca held a very thorough plea
hearing during which he verified that Brown was entering his plea with a full
understanding of his rights, the charges against him, and the consequences of his plea.
Specifically, Brown informed Judge Bribiesca that he had read, reviewed, and discussed
with Sylvester two form documents—the Defendant's Acknowledgment of Rights and
Entry of Plea and the Plea Agreement. The following conversation then ensued between
Judge Bribiesca and Brown:

"THE COURT: Do you understand all the information in the two forms?
"[BROWN]: Yes, sir.
"THE COURT: Do you have any additional questions for Mr. Sylvester
regarding the information?
"[BROWN]: No, sir."

For purposes of this appellate issue, it is important to note that the Defendant's
Acknowledgment of Rights and Entry of Plea form outlines the range of penalties
associated with a conviction for commercial sexual exploitation of a child, including the
15

fact that this offense carries a lifetime postrelease supervision term. Similarly, the Plea
Agreement provides that Brown understood this conviction would result in him being
required to register as a sex offender pursuant to K.S.A. 22-4901 et seq., the Kansas
Offender Registration Act, and it carries a lifetime postrelease supervision period.

Additionally, Judge Bribiesca advised Brown that if he pled guilty, his potential
sentence would range, depending on his criminal history, from a minimum period of
imprisonment of 31 months up to a maximum period of imprisonment of 136 months, a
maximum fine of $100,000, with a mandatory minimum fine of $2,500, and he would
have lifetime postrelease supervision. Brown subsequently confirmed that he discussed
the sentencing ramifications of his decision to plead guilty with Sylvester prior to the plea
hearing and that he understood the information the district judge imparted regarding his
potential sentence.

At the hearing, after Judge Bribiesca accepted Brown's plea, he inquired as to
whether the offense required registration under KORA. When the prosecutor responded
affirmatively, the district judge questioned the parties as to the notice of duty to register
form and the registration term. During this discussion, Brown acknowledged that he had
discussed the registration requirement with Sylvester prior to the plea hearing and
understood he would need to register pursuant to the terms of the KORA for his lifetime:

"THE COURT: Is there a registration form?
"MR. SYLVESTER: It was—
"THE COURT: Oh, there it is. Okay. All right. I have a registration form, a
notice of duty to register here in front of me. It's been filled out. It hasn't been signed.
Well, no, it hasn't been signed by Mr. Brown.
"Mr. Brown, the information contained in the notice of duty to register, did you
and your attorney sit down and fill out the form?
"[BROWN]: I was waiting to sign it in here, but we talked about it.
16

"MR. SYLVESTER: I filled it out in the holding cell area. I just wrote in the
information about his social security and all that stuff.
"THE COURT: Okay. But, Mr. Brown, have you had an opportunity to review it
for accuracy?
"[BROWN]: Yes. Yes, sir.
"THE COURT: Okay. Is the information in the form accurate?
"[BROWN]: Yes, sir.
. . . .
"THE COURT: All right. Mr. Brown has signed the notice of duty to register.
"Just for the record, that's your signature on the form, correct, Mr. Brown?
"[BROWN]: Yes, sir.
"THE COURT: And you signed it in open court just now?
""[BROWN]: Yes, sir.
"THE COURT: Court is signing the form.
"And, Mr. Brown, you now know that you will have to register, pursuant to the
law, three days upon being released from custody. You understand that?
"[BROWN]: Yes, sir.
"THE COURT: Okay. Mr. Sylvester has explained all that to you?
"[BROWN]: Yes, sir.
. . . .
"THE COURT: And while we're waiting for copies, Mr. Brown, that duty to
register, if memory serves, I don't have the law in front of me, but I believe it's for 15
years in light of the type of offense, or is it longer than that, Miss Hoyt [the prosecutor]?
"MS. HOYT: Actually, Your Honor, it'll be for the defendant's lifetime.
"THE COURT: Registration?
"MS. HOYT: Yeah.
"THE COURT: Okay.
"MS. HOYT: As the law currently stands, it is a lifetime registration.
"MR. SYLVESTER: It was 25 for the first offense, lifetime for second, but I
think last July, 2013, they made it lifetime.
"THE COURT: All right. So it's lifetime registration to go along with the
lifetime post-release [supervision]. All right.
"You understand that, young man?
"[BROWN]: Yes, sir." (Emphasis added.)
17

As shown by this colloquy, Brown was aware of the requirements of lifetime
registration and lifetime postrelease supervision. The record demonstrates that Brown
entered his plea knowingly and intelligently with a full understanding of the
consequences. Accordingly, the district judge did not abuse his discretion when he denied
Brown's presentence motions to withdraw his plea.

Affirmed.