State v. Buchheit

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NOT DESIGNATED FOR PUBLICATION

No. 116,770

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SCOTT JAMES BUCHHEIT,
Appellant.


MEMORANDUM OPINION

Appeal from Jackson District Court; NORBERT C. MAREK JR., judge. Opinion filed March 16,
2018. Affirmed.

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

Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before MALONE, P.J., SCHROEDER, J., and BURGESS, S.J.

PER CURIAM: Scott James Buchheit appeals his conviction and sentence following
his no-contest plea to one count of rape. Buchheit claims the district court erred in
denying his presentence motion to withdraw his plea. He also claims the district court
erred in assessing a $400 KBI lab fee and a $200 DNA database fee at sentencing.
Finding no merit to Buchheit's claims, we affirm the district court's judgment.

We will review the factual and procedural history of the case. On February 10,
2015, C.N.B. reported to the Jackson County Police Department that her stepfather,
Buchheit, had been sexually abusing, raping, and sodomizing her two or three times per
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month since she was approximately nine years old. C.N.B. was 17 years old when she
reported the sexual abuse, and her mother and sister accompanied her to the police station
to corroborate some aspects of her report.

C.N.B. attempted to call and talk to Buchheit about the abuse while law
enforcement was listening, but Buchheit became suspicious and fled the jurisdiction by
taking a vehicle belonging to his employer. He was apprehended the next day in Shawnee
County and was returned to Jackson County. With the permission of C.N.B.'s mother, the
police searched the family residence and identified several semen stains in the bedrooms
and the bathroom where C.N.B. reported the abuse had occurred. The semen samples
were sent to the Kansas Bureau of Investigation (KBI) laboratory for DNA testing in
connection with the investigation of the case.

On February 11, 2015, the State charged Buchheit with three counts of rape, off-
grid felonies; three counts of aggravated criminal sodomy, off-grid felonies; three counts
of rape, severity level 1 person felonies; three counts of criminal sodomy, severity level 1
person felonies; and one count of theft, a severity level 9 nonperson felony. The district
court appointed Russell Roe to represent Buchheit in the criminal proceedings.

At the preliminary hearing on April 14, 2015, C.N.B. testified consistently with
her police report, but she indicated that she did not remember Buchheit actually
penetrating her vagina with his penis prior to when she was in the eighth grade. Based on
C.N.B.'s testimony, the State indicated it would amend the complaint to strike certain off-
grid rape allegations and replace them with allegations of aggravated indecent liberties
with a child. The district court found the evidence was sufficient to bind Buchheit over
for trial on all counts in the amended complaint.

On August 7, 2015, Roe filed a motion to withdraw as defense counsel, citing a
letter of complaint sent by Buchheit to the district court. Buchheit's letter alleged that Roe
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did not visit him regularly at the jail. The district court held a hearing on Roe's motion on
August 11, 2015. At the hearing, Buchheit informed the district court that his biggest
complaint about Roe was that neither he nor his family could reach Roe when they
wanted to speak with him. The district court informed Buchheit that it would be difficult
to find another attorney in the district who would be qualified to handle the case.
Nevertheless, the district court granted Roe's motion to withdraw.

On August 24, 2015, the district court appointed J. Richard Lake to represent
Buchheit, after Lake had met with Buchheit and decided he had time to handle the case.
The parties filed pretrial motions which were scheduled for hearing on January 15, 2016.
However, two days before the motions hearing, Lake filed a motion for a determination
of competency. Lake indicated in his motion that Buchheit did not seem to fully
comprehend the information being conveyed to him.

At the January 15, 2016 motions hearing, the district court addressed the
competency motion first. Lake argued that Buchheit was "not exactly tracking
cognitively," because he kept thinking he was going to make bond, even though Lake
told him that was not realistic. The State argued that if a competency evaluation was
ordered, it should be performed locally to avoid an additional delay in commencing the
trial. The State asserted that if a local evaluation could not be performed for any reason,
then another continuance of the trial could be allowed to provide time for Larned State
Hospital to perform the competency evaluation. The district court agreed to start with the
local evaluation to assess Buchheit's competency to stand trial.

On January 21, 2016, the State filed a motion to set aside the district court's order
for a competency evaluation. The State's motion indicated that it had secured audio
recordings of Buchheit's telephone calls from jail with an unknown male that revealed
Buchheit's plans to seek a delay in his trial by requesting a competency evaluation and
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also by asking that his attorney be removed from the case. Buchheit and the unknown
male also talked about what Buchheit needed to do to appear "not competent."

On January 24, 2016, Buchheit sent a letter to the district court claiming to be "in
need of new counsel." Buchheit claimed that his case was not ready for trial to begin on
February 16, 2016, and that Lake was not explaining matters related to his case in a way
that allowed him to make informed decisions.

On February 3, 2016, the district court held a hearing on the State's motion to set
aside the district court's order for a competency evaluation and also on Buchheit's request
for new counsel. After a lengthy discussion between the district court and counsel, Lake
indicated that he was in a position to try the case. The district court then summarized the
State's motion to set aside the order for a competency evaluation and expressed concern
that Buchheit was "purposely engaged in a pattern to delay these proceedings as long as
[he] can." Buchheit replied, "Your Honor, that is correct. I have been trying to delay it."
Buchheit stated that he wanted to delay his trial because his family was trying to gather
the funds to hire a different lawyer. Buchheit also stated that he would no longer "play
incompetent." Nevertheless, noting that Buchheit's competency evaluation was scheduled
for the next day, the district court denied the State's motion to set aside the order for a
competency evaluation. The district court also denied Buchheit's request for new counsel.
The next day, February 4, 2016, Buchheit was evaluated for competency, and the
evaluator determined that Buchheit was competent to stand trial.

Buchheit's trial was scheduled to begin on February 16, 2016. At a pretrial
conference on the morning of trial, Lake informed the district court that plea negotiations
had been ongoing. Ultimately, Lake announced that Buchheit had decided to take
advantage of the plea offer, and he would plead no contest to one count of rape, a severity
level 1 person felony, in exchange for the dismissal of all other charges.

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The district court addressed Buchheit and explained the rights he would be
waiving by entering a plea; Buchheit indicated he understood. Buchheit stated he was not
under the influence of any drugs, he wanted to enter a plea of his own free will, and no
threats or promises induced him to enter his plea. The judge read count three—the rape of
C.N.B. by use of force or fear, in violation of K.S.A. 2013 Supp. 21-5503(a)(1)(A)—and
told Buchheit that the potential penalty ranged from between 147 months to 653 months.
Buchheit entered a plea of no contest to the charge. The State informed the district court
of the factual basis for the charge and the evidence it would present if the case were to go
to trial. The district court found there was a sufficient factual basis and accepted
Buchheit's plea. The district court found Buchheit guilty of rape as set forth in count
three, a severity level 1 person felony, and the remaining counts in the amended
complaint were dismissed. The district court ordered a presentence investigation report
and scheduled sentencing for March 11, 2016.

In a letter to Lake dated February 17, 2016, and filed on February 18, 2016,
Buchheit instructed Lake to file a motion to withdraw his plea based, in part, on
ineffective assistance of counsel. Buchheit also instructed Lake to file a motion to
withdraw as his defense counsel. On February 19, 2016, Buchheit filed a pro se motion to
"redact/withdraw the original plea." The State filed a motion in opposition to Buchheit's
pro se motion to withdraw his plea.

On February 22, 2016, Lake filed a motion to withdraw as counsel. At a hearing
on March 11, 2016, the district court granted Lake's motion to withdraw. A few days
later, the district court appointed John Kurth to represent Buchheit. Kurth subsequently
filed a supplemental motion to withdraw the plea and attached several exhibits.

On July 15, 2016, the district court held a hearing on Buchheit's motion to
withdraw his plea. Buchheit testified at the hearing and expressed dissatisfaction with
Lake's performance as his counsel. He complained that Lake did not spend enough time
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with him on the case. Buchheit also testified that he felt pressured and coerced into
entering a no-contest plea on the morning the case was set for trial. Lake testified that he
"gave [Buchheit] as much time as I could, and I believe all the time that he needed." Lake
acknowledged it was "probably true" that Buchheit felt pressure to enter a plea because
every defendant feels such pressure, but he stated, "I don't believe he was coerced."

After hearing the evidence and arguments of counsel, the district found that
Buchheit decided to enter his plea after the court had several hearings with him about his
issues. The district court recalled that it "spent considerable time discussing the records
Buchheit wanted." The district court also recalled from the plea hearing that Buchheit
stated he was not coerced into entering his plea, and "in the Court's experience, Mr.
Buchheit has not been shy about voicing issues he has." The district court noted that
Buchheit entered his plea in front of his family, and "the plea was advantageous to the
defendant to a great degree." The district court found Buchheit to be a "sophisticated
legal consumer," and he was not misled or coerced into entering his plea.

The district court found that Lake competently represented Buchheit throughout
the proceedings. The district court recalled the delays involved with Buchheit's
competency evaluation and found that Buchheit had engaged in a purposeful effort to
delay and manipulate the trial in his case. Finally, the district court observed that C.N.B.
planned to testify, and the State also was prepared to present supporting evidence through
corroborating witnesses and Buchheit's attempt to flee the state. Based on the district
court's findings, it denied Buchheit's motion to withdraw his plea.

The district court then proceeded to sentencing. After hearing arguments, the
district court sentenced Buchheit to 226 months' imprisonment and assessed various fees,
including a KBI lab fee of $400 and a DNA database fee of $200. The district court
waived the assessment of attorney fees. Buchheit timely filed a notice of appeal.

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MOTION TO WITHDRAW PLEA

Buchheit first claims the district court erred in denying his presentence motion to
withdraw his plea. Specifically, Buchheit argues that he was not represented by
competent counsel and that he was coerced into making his plea on the morning of his
scheduled trial. He argues that he established good cause to withdraw his plea and that
the district court committed reversible error by denying his motion. The State argues that
Buchheit did not establish good cause to withdraw his plea as he was represented by
competent counsel and was not coerced into entering the plea.

A plea of guilty or nolo contendere may be withdrawn at any time prior to
sentencing for good cause and within the discretion of the district court. K.S.A. 2017
Supp. 22-3210(d)(1). A judicial action constitutes an abuse of discretion if (1) no
reasonable person would take the view adopted by the district court; (2) it is based on an
error of law; or (3) it is based on an error of fact. State v. Marshall, 303 Kan. 438, 445,
362 P.3d 587 (2015). The party asserting the district court abused its discretion bears the
burden of showing such abuse of discretion. State v. Robinson, 303 Kan. 11, 90, 363 P.3d
875 (2015), cert. denied 137 S. Ct. 164 (2016).

In exercising its discretion on a motion to withdraw plea, the district court should
consider 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. State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986
(2006). The district court may also consider other relevant factors in determining whether
good cause exists to allow the withdrawal of a plea and should not rely exclusively on the
Edgar factors. See State v. Anderson, 291 Kan. 849, 856, 249 P.3d 425 (2011).

Buchheit does not argue that the plea was unfair or made without understanding.
However, he contends that he fulfilled the other two Edgar factors: He was not
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represented by competent counsel; and he was coerced into making his plea on the
morning of his scheduled trial. Whether good cause exists to support the withdrawal of a
plea is a question of fact, which an appellate court reviews for substantial competent
evidence. Anderson, 291 Kan. at 855. Substantial competent evidence is "'evidence which
possesses both relevance and substance and which furnishes a substantial basis of fact
from which the issues can reasonably be resolved.' [Citation omitted.]" Wiles v. American
Family Life Assurance Co., 302 Kan. 66, 73, 350 P.3d 1071 (2015). Appellate courts give
deference to the district court's findings of fact and do not reweigh the evidence or assess
witness credibility. State v. Appleby, 289 Kan. 1017, 1038, 221 P.3d 525 (2009).

Competent counsel

Buchheit claims that Lake failed to demonstrate competent representation and, in
fact, demonstrated "lackluster advocacy." Buchheit bases his claim on: (1) his belief that
Lake did not sufficiently communicate with him, i.e., Lake made short term visits to him
in jail; and (2) his perception that Lake failed to investigate his case, i.e., Lake failed to
obtain certain records pertaining to C.N.B., which Buchheit believed would have shown
that she was sexually abused by another man.

The record on appeal does reflect that Lake did not file a motion for certain
materials which Buchheit believed would be admissible at trial under an exception to the
rape shield statute. See K.S.A. 2013 Supp. 21-5502(b). However, the record also
demonstrates that Lake sought a release for the records, as directed by Buchheit, but this
request was refused by the State. Further, Buchheit filed a motion, pro se, in district court
to obtain the records, but the district court denied the motion after a lengthy hearing at
which all of Buchheit's requests were addressed in detail. Finally, Lake testified that he
did not continue to pursue the records because, in his professional opinion, all of the
information within the records was protected by the rape shield statute.

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The district court found that Lake's failure to pursue the records did not rise to the
level of incompetent counsel and Buchheit did not meet his burden to demonstrate good
cause to withdraw his plea on this basis. Buchheit's claims that Lake did not adequately
communicate with him are interwoven into his argument about Lake's failure to pursue
the desired records. Buchheit claims that the frequency and duration of their meetings
was inadequate, but he fails to demonstrate how the result of his case would have been
any different had Lake spent more time pursuing the records. Based on the record, we
conclude that the district court's factual findings in determining Lake provided competent
representation of Buchheit are supported by substantial competent evidence.

Coercion

Buchheit contends that he decided to enter a plea "minutes" before his trial was to
begin because, "[h]e felt he had no other choice because they were not ready for trial and,
therefore, he was coerced." He also contends that he only "took the plea in order to avoid
the Hard 50." The record on appeal reveals that plea negotiations were initiated by the
defense with Buchheit's blessing about three weeks before the trial date. Buchheit was
facing two off-grid person felony charges for rape and aggravated indecent liberties with
a child under the age of 14, in addition to six other felony charges, four of which were
severity level 1 person crimes.

Lake acknowledged that Buchheit probably felt pressure, as all defendants do,
when faced with the decision of whether to proceed to trial or enter a plea, but he denied
any coercion. Lake testified that he did not recall telling Buchheit he was facing a "hard
50," but he agreed that Buchheit was ultimately charged with two off-grid felonies, and if
convicted of both, and if the district court ordered those sentences to run consecutively,
such a lengthy sentence was a possibility. When an attorney delivers harsh but accurate
advice about the consequences of going to trial rather than taking a plea, that advice does
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not constitute undue influence. State v. Taylor, No. 112,442, 2015 WL 6835220, at *4
(Kan. App. 2015) (unpublished opinion), rev. denied 304 Kan. 1022 (2016).

The district court was in a better position to determine witness credibility and
assess the evidence concerning Buchheit's claim that he was coerced into entering a plea.
Buchheit is asking this court to reweigh the evidence on the claim of coercion, which this
court does not do. Appleby, 289 Kan. at 1038. We conclude that the district court's factual
findings that Lake did not mislead or coerce Buchheit into entering his plea are supported
by substantial competent evidence.

In sum, the district court's denial of Buchheit's motion to withdraw his plea was
not based on an error or mistake of law or fact. Based on our review of the record,
reasonable persons could take the view adopted by the district court. Therefore, we
conclude that the district court did not abuse its discretion in denying Buchheit's motion
to withdraw his plea.

ASSESSMENT OF FEES

For the first time on appeal, Buchheit claims the district court erred in assessing a
$400 KBI lab fee and a $200 DNA database fee at sentencing. As to the KBI lab fee,
Buchheit argues that the district court had an obligation to sua sponte consider his ability
to pay the fee before making the assessment. He also contends that the assessment of this
fee was inappropriate because the State ultimately did not intend to use the semen
samples tested by the KBI as evidence at trial. As to the DNA database fee, Buchheit
argues that the district court had an obligation to sua sponte consider his ability to pay the
fee before making the assessment. The State argues that the district court correctly
assessed the $400 KBI lab fee and the $200 DNA database fee.

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Buchheit acknowledges that he did not raise the issue of the fees in district court.
However, he contends that the issue can be raised for the first time on appeal because it is
analogous to the claim addressed in State v. Robinson, 281 Kan. 538, 132 P.3d 934
(2006). In Robinson, the Supreme Court addressed whether it would consider a challenge
to the assessment of Board of Indigent Defense Services (BIDS) attorney fees for the first
time on appeal and stated, "[W]e may reach an issue on appeal despite a failure to raise it
below when the newly asserted theory involves only a question of law arising on proved
or admitted facts and is finally determinative of the case." 281 Kan. at 541.

Buchheit also points to State v. Smith, No. 111,747, 2015 WL 1783770, at *2
(Kan. App. 2015) (unpublished opinion), where a panel of this court agreed to hear the
issue, raised for the first time on appeal, of whether the KBI laboratory fee could be
assessed in a case that was dismissed pursuant to a plea agreement. Without deciding
whether Buchheit has properly preserved this issue for appeal—and while making it clear
that we are not setting precedent for future cases—we will address the merits of
Buchheit's claim.

The district court's assessment of the KBI lab fee and the DNA database fee are
governed by statute. Interpretation of a statute is a question of law over which appellate
courts have unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098
(2015). It is a fundamental rule of statutory construction that the intent of the Legislature
governs if that intent can be ascertained. State v. Jordan, 303 Kan. 1017, 1019, 370 P.3d
417 (2016). An appellate court must first attempt to ascertain legislative intent through
the statutory language enacted, giving common words their ordinary meanings. State v.
Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016). When a statute is plain and
unambiguous, an appellate court should not speculate about the legislative intent behind
that clear language, and it should refrain from reading something into the statute that is
not readily found in its words. 303 Kan. at 813.

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We will first address the DNA database fee. This fee is authorized by K.S.A. 2017
Supp. 75-724, which states in pertinent part:

"(a) Any person convicted or adjudicated of an offense that, pursuant to K.S.A.
21-2511, and amendments thereto, requires submission of a DNA sample upon arrest,
charging or placement in custody, shall pay a separate court cost of $200 as a Kansas
bureau of investigation DNA database fee upon conviction or adjudication.
"(b) The court shall order such fees regardless of whether the person's DNA
sample was already on file with the Kansas bureau of investigation at the time such
person was arrested, charged or placed in custody, unless the person can prove to the
court that the person: (1) Has paid such fees in connection with a prior conviction or
adjudication; and (2) did not submit specimens of blood or an oral or other biological
sample authorized by the Kansas bureau of investigation to the Kansas bureau of
investigation for the current offense of conviction or adjudication.
"(c) The court shall not lessen or waive such fees unless the court has determined
such person is indigent and the basis for the court's determination is reflected in the
court's order."

In State v. Niehaus, 54 Kan. App. 2d 29, Syl. ¶ 3, 395 P.3d 455 (Kan. App. 2017),
rev. denied 307 Kan. ___ (December 22, 2017), this court addressed the exact issue
Buchheit is raising on appeal and held that a district court is not required under the plain
language of K.S.A. 2016 Supp. 75-724 to sua sponte consider a defendant's ability to pay
the DNA database fee. This court reasoned that the language in K.S.A. 2016 Supp. 75-
724 is mandatory and requires assessment of the database fee unless the defendant proves
that the fee does not apply. 54 Kan. App. 2d at 31-33. This court also reasoned that unlike
K.S.A. 22-4513, the statute that authorizes the assessment of BIDS attorney fees, there is
no language in K.S.A. 2016 Supp. 75-724 that requires findings by the district court
concerning a defendant's ability to pay the database fee. 54 Kan. App. 2d at 32. We adopt
the court's reasoning in Niehaus and conclude the district court did not err in assessing
the DNA database fee against Buchheit without first considering his ability to pay the fee.
See also State v. Jackson, No. 116,259, 2017 WL 4081263 (Kan. App. 2017)
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(unpublished opinion) (holding there is no requirement under the DNA database fee
statute that a district court sua sponte engage in a financial analysis of the defendant
before ordering the fee), petition for rev. filed October 16, 2017.

Turning to the KBI lab fee, this fee is authorized by K.S.A. 2017 Supp. 28-176,
which states in pertinent part:

"(a) The court shall order any person convicted . . . of a felony . . . to pay a
separate court cost of $400 for every individual offense if . . . laboratory services . . . are
provided, in connection with the investigation, by: (1) The Kansas bureau of
investigation. . . .
"(b) Such fees shall be in addition to and not in substitution of any and all fines
and penalties otherwise provided for by law for such offense.
"(c) The court shall not lessen or waive such fees unless the court has determined
such person is indigent and the basis for the court's determination is reflected in the
court's order." K.S.A. 2017 Supp. 28-176(a)(1), (b), (c).

Buchheit again argues that the district court had an obligation to sua sponte
consider his ability to pay the KBI lab fee before making the assessment. We disagree.
Although Niehaus does not specifically address the KBA lab fee statute, the language of
the statute is sufficiently similar to that of the DNA database fee statute—and therefore
sufficiently dissimilar from the BIDS fee statute—to suggest the analysis and outcome
should be the same: The statute does not obligate the district court to conduct a financial
assessment of a defendant before imposing the fee. Under the rules of statutory
interpretation, the plain language of K.S.A. 2017 Supp. 28-176 does not require the
district court to consider the defendant's financial condition before ordering the fee.

Buchheit also draws attention to a "boilerplate sample court order" form in the
record, highlighting certain language on that form: "after making due inquiry, the court
finds that the defendant is required to pay the laboratory analysis fee, pursuant to K.S.A.
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28-176." Buchheit acknowledges that it is not clear what "making due inquiry" refers to
in the sample court order form, but he suggests this form is indicative of a court
requirement to conduct a financial assessment prior to imposing the fee on a defendant.
In the context of the form, however, "making due inquiry" more likely refers to the court
inquiring about the type of services that were performed by the KBI in conjunction with
the investigation. In any event, the language of the statute controls our resolution of this
issue, not the language of any sample court order form used by the KBI.

Finally, Buchheit argues that the assessment of the KBI lab fee was inappropriate
because the prosecutor had announced at a pretrial hearing that the State's case against
Buchheit was going to be based primarily on witness testimony and not forensic
evidence. Buchheit contends that because the State did not intend to use the lab results at
trial, he should not be assessed the fee. Again, we disagree with Buchheit's argument.
The relevant portion of K.S.A. 2017 Supp. 28-176 reads: "(a) The court shall order any
person convicted . . . of a felony . . . to pay a separate court cost of $400 for every
individual offense if . . . laboratory services . . . are provided, in connection with the
investigation" by the KBI. (Emphasis added.) K.S.A. 2017 Supp. 28-176(a)(1). The
assessment of the lab fee is mandatory as long as the laboratory services are provided in
connection with the investigation, and it does not matter whether the lab results are used
at trial.

Buchheit cites State v. Aguilar, 42 Kan. App. 2d 768, 217 P.3d 994 (2009), to
support his argument, but Buchheit's reliance on Aguilar is misplaced. Aguilar was
convicted of a DUI, but the lab fee was assessed to him for testing a substance believed to
be marijuana. The Aguilar panel concluded that "because Aguilar was never charged with
or convicted of a drug-related offense, the $400 lab fee for marijuana testing was not
incurred in connection with his case pursuant to K.S.A. 2008 Supp. 28-176(a)." 42 Kan.
App. 2d at 770-71. In Buchheit's case, however, the KBI lab fee was assessed for testing
semen samples collected from the locations in the home where C.N.B. said Buchheit had
15

sexually abused her. The testing was accomplished in connection with the investigation
for sex offenses, including rape, which is Buchheit's crime of conviction.

The State originally filed notice that it intended to use the KBI lab results at trial.
While the prosecutor later made statements on the record that the State's case-in-chief
would not include scientific evidence, those statements were equivocal. In any event, it is
immaterial whether the State intended to use the KBI lab results at trial because a plain
reading of the statute demonstrates that the fee is appropriate if laboratory services are
provided in connection with the investigation. It is clear from the record that the KBI
laboratory services were performed in connection with the investigation of Buchheit for
sex offenses, and he was charged with and convicted of a sex offense. Thus, the district
court did not err in ordering Buchheit to pay the KBI lab fee.

Affirmed.