State v. Calel

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NOT DESIGNATED FOR PUBLICATION

No. 118,909

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

WALTER JOSE CALEL,
Appellant.


MEMORANDUM OPINION

Appeal from Ford District Court; E. LEIGH HOOD, judge. Opinion filed March 1, 2019. Reversed
and remanded.

Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant.

Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for
appellee.

Before ARNOLD-BURGER, C.J., ATCHESON, J., and BURGESS, S.J.

PER CURIAM: Walter Jose Calel pled no contest to one count of criminal threat
and one count of endangering a child. The district court found him guilty. Just before
sentencing, Calel filed a motion to withdraw his plea claiming that he was not informed
of his right to a jury trial and that he did not explicitly waive his right to a jury trial. The
district court found that he was adequately informed of these rights at his preliminary
hearing and denied the motion. We disagree and reverse and remand for further
proceedings.

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FACTUAL AND PROCEDURAL BACKGROUND

Calel was originally charged with criminal threat, endangering a child, domestic
battery, and criminal damage to property. Before the preliminary hearing, the State filed
an amended information that added an additional count of criminal threat. At the
preliminary hearing, Calel's defense counsel informed the magistrate judge that the
parties worked out a plea agreement. Before proceeding further, the magistrate judge
stated that because the crimes were felonies, the court was required to advise Calel of his
right to a preliminary hearing. The district court briefly explained what the preliminary
hearing entailed and informed Calel that if he wished to waive that right, they would
proceed to the arraignment portion of the proceedings. Then the following exchange took
place:

"[DEFENSE COUNSEL]: [Calel] just told me he's changed his mind and he
wants a contested prelim now rather than the plea.
"THE COURT: Absolutely. You want a contested preliminary hearing? You
have that right. Before—You can talk to him.
"[DEFENSE COUNSEL]: You want to take the plea then?
"THE DEFENDANT: Yeah.
"[DEFENSE COUNSEL]: Okay. He wants to take the plea, Your Honor."

The district court then explained to Calel that there had been an amended charge
that added the second count of criminal threat and if he wanted to enter a plea to that
charge, he would have to waive his right to a preliminary hearing. The district court again
explained what a preliminary hearing was. Calel then waived his right to a preliminary
hearing.

Next, the State informed the district court that the parties agreed Calel would
either plead no contest or guilty to one count of criminal threat and endangering a child
and the State would dismiss the other three charges. The State also informed the district
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court that Calel was not a United States citizen. The district court then proceeded to
arraignment where it informed Calel of the remaining two charges and the penalties for
each. The district court also explained that entering the plea could have serious
ramifications on his citizenship status, including deportation. Calel stated that he
understood these ramifications. Then the following colloquy took place:

"THE COURT: Okay. [Defense Counsel], have you had an opportunity to talk to
him about that?
"[DEFENSE COUNSEL]: Yes, Your Honor.
"THE COURT: And do you think he understands what that means?
"[DEFENSE COUNSEL]: Yes, and he also advises there's an ICE hold on him
that—part of the agreement is for an OR bond, but he realizes that ICE will probably
come and pick him up.
"THE COURT: Very well. Okay. Very well. Well, at this time, Mr. Calel, you're
presumed to be innocent of these charges. You have a right to go to trial if you plead not
guilty. If you plead not guilty, we'll set it for trial. That trial can be in front of a judge or a
jury. At that trial, the State of Kansas would have to prove your guilt beyond a reasonable
doubt. At that trial, you'd have the right to the assistance and advice of your attorney and
have the right to confront the State's witnesses and ask them questions. You'd have the
right to call witnesses to testify for you, you'd have the right to testify in your own
defense if you want. And if convicted at that trial, you'd have the right to appeal that.
Secondly, you may plead guilty or no contest. If you enter a guilty or no-contest plea, that
terminates your presumption of innocence and your right to a trial, then you're gonna be
found guilty. Do you understand those pleas?
"THE DEFENDANT: Yes, Sir.
"THE COURT: Have you talked to [Defense Counsel] about this case?
"THE DEFENDANT: (Inaudible response.)
"THE COURT: Have you talked to your attorney about this?
"THE DEFENDANT: We went over it on the phone.
"THE COURT: Okay. Are you satisfied with his advice?
"THE DEFENDANT: Yes, Sir.
THE COURT: Okay. Well how do you want to plead to Count Number Two and
Count Number Three?
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"THE DEFENDANT: No contest.
"THE COURT: No contest? Has anyone promised you anything in exchange for
this plea, other than the agreement that your attorney made with the State of Kansas?
"THE DEFENDANT: No, Sir.
"THE COURT: No? Do you feel like you've been forced or—I mean coerced
into—to enter the plea of no contest?
"THE DEFENDANT: No, Sir.
"THE COURT: Are you entering that plea of your own freewill today?
"THE DEFENDANT: Yes, Sir.
"THE COURT: Today are you under the influence of any medication, drugs or
alcohol?
"THE DEFENDANT: No.
"THE COURT: Your mind's clear?
"THE DEFENDANT: Yes, Sir.
"THE COURT: You understand what we're doing?
"THE DEFENDANT: Yeah."

The State then recited the facts of the case. The district court accepted Calel's plea
and found him guilty of criminal threat and endangering a child.

Just before sentencing, Calel retained new counsel. Calel's new counsel filed a
motion to withdraw the plea arguing that Calel was not adequately informed of his right
to a jury trial because: (1) the magistrate judge did not inform Calel of all the
consequences of waiving a jury trial, (2) the district court did not explain the difference
between a bench trial and a jury trial, and (3) the district court did not mention what a
jury trial was or who makes the decision in a jury trial. Because Calel was not adequately
informed, he argued that he did not knowingly and intelligently waive this right.

The district court held a hearing on the motion. Calel testified that he spoke to his
attorney on the phone where they discussed a possible plea. Calel stated that they never
discussed a jury trial and his attorney did not inform him of how a jury trial worked.
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Calel testified that he did not speak with his attorney after the phone conversation until
the preliminary hearing. Calel stated that he spoke with his attorney outside the
courtroom just before the preliminary hearing where they discussed the plea agreement
again but did not talk about a jury trial. Calel also testified that neither his attorney nor
the district court explained to him what a jury trial was. Calel stated that he would not
have pled no contest had he known he could have had a jury trial.

Calel further testified that he was not born in the United States but understands
English. Calel stated that he remembered the district court telling him that he had a right
to a jury trial but could not recall the district court telling him that the case would be set
for trial if he pled not guilty. Calel stated that he did not recall many of the district court's
statements at the preliminary hearing but remembered pleading no contest. Calel also
testified that he understood a conviction could result in deportation and that is why he
wanted to withdraw his plea. Calel stated that, at the time he entered his plea, he had little
communication with his attorney and his attorney asked him to just "go along with what
he was saying." Calel stated that he only entered the plea because his attorney told him
to. Calel's original defense counsel did not testify at the hearing.

The district court found that this was a legal issue with undisputed facts. The
district court stated that it reviewed that caselaw presented in Calel's brief on the motion
and performed further research on the subject beyond Calel's presented cases. The district
court stated that, based on the caselaw he read, a district court does not have to use magic
words when informing a defendant of his rights to a jury trial but must make sure the
defendant understands that he has that right. The caselaw also holds that the defendant
must clearly waive that right. The district judge framed the issue as whether the law
requires that the "judge has to personally communicate with you your right to a jury trial"
and whether the defendant has "to clearly on the record pronounce that yes, I understand
it and I want—I want to waive that right."

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The district court found that K.S.A. 2017 Supp. 22-3210 requires: (1) a defendant
to state the plea in open court, (2) the district court must inform the defendant of the
consequences of the plea, (3) the district court must address the defendant personally and
determine that the defendant made the plea voluntarily with the understanding of the
nature of the charge and consequences of the plea, and (4) there is a factual basis for the
plea. The district court also consulted a criminal law handbook in which it found that
"[n]owhere in that Criminal Law Handbook does it specifically say when you're taking a
plea does the Court have to directly inform that Defendant of his right to a jury trial, and
that he has to get that waiver." The district court recognized that this handbook was not
legal authority or a court rule.

The district court then ruled that the magistrate judge presiding at the preliminary
hearing clearly told Calel the consequences of the plea in open court, including the
sentence penalties and the impact on his immigration status. Calel was also told that he
was presumed innocent, had a right to go to trial if he pled not guilty, and if he pled not
guilty, the district court would set the matter for trial to be held in front of a jury or a
judge. Calel was also informed of the burden of proof, the right to counsel, and the right
to present evidence at trial. The district court found the record reflected that Calel entered
his plea freely and voluntarily and then the State gave a factual basis for the plea.

The district court ultimately denied Calel's motion to withdraw the plea. The
district court sentenced Calel to 12 months' probation and an underlying sentence of 7
months in prison and 12 months' postrelease supervision. Calel filed a timely notice of
appeal to this court.

On appeal, Calel argues he was not adequately informed of his right to a jury trial
and that he did not explicitly waive this right before he entered his no contest plea.


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LEGAL ANALYSIS

Under K.S.A. 2017 Supp. 22-3210(d)(1), with the district court's discretion, a plea
may only be withdrawn when the defendant has shown good cause. Accordingly,
appellate courts review a denial of a motion to withdraw a plea under an abuse of
discretion standard of review. State v. DeAnda, 307 Kan. 500, 503, 411 P.3d 330 (2018).
In making the plea, courts should evaluate 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).

However, whether an individual was informed of his constitutional right to a jury
trial is a legal question. That standard of review provides:

"Whether a defendant waived the right to a jury trial is a factual question, subject
to analysis under a substantial competent evidence standard of review. But when the facts
of the district court's determination to accept a jury trial waiver are not disputed, the
question whether the defendant voluntarily and knowingly waived the jury trial right is a
legal inquiry subject to unlimited appellate review." State v. Beaman, 295 Kan. 853, 858,
286 P.3d 876 (2012).

Because the facts here are undisputed, this court exercises an unlimited standard of
review.

As to the denial of the motion to withdraw the plea, Calel argues that the district
court abused its discretion when it denied the motion using the incorrect standard of law.
Because the magistrate judge did not explicitly explain the right to a jury trial nor did it
explicitly ask Calel to waive his right to a jury trial, his waiver was not voluntarily and
understandingly made. Rather, Calel contends that he only implicitly waived his right to a
jury trial by accepting a plea. Additionally, Calel points out that there was no written plea
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agreement or waiver of jury trial rights. Calel also argues that the district court abused its
discretion in relying on a criminal law handbook to make its decision rather than the
caselaw presented by Calel. Calel argues that the facts of the case clearly demonstrate
that the district court should have granted his motion.

Further, Calel argues he testified that he did not understand what a jury trial was or
how a jury trial worked. Calel only learned what a jury trial was when he obtained new
counsel after he already entered his plea. This testimony was unrefuted because his
original attorney did not testify at the hearing. Calel also asserts that the transcript of the
preliminary hearing shows that he was hesitant to accept the plea and clearly stated that
he wanted to go ahead with the preliminary hearing. Calel contends that even the district
court found there was no specific articulation of the right to a jury trial or an explicit
waiver. Calel asks this court to issue a mandate to grant the motion, or in the alternative,
remand the case for the district court to hold proceedings using the correct legal
standards.

Conversely, the State argues the magistrate judge did inform Calel of his right to a
jury trial and explained that he would be giving up that right if he accepted a plea. After
Calel heard the colloquy, the magistrate judge asked how he wanted to plead and Calel
responded, "No contest" in open court. The State also contends that the magistrate judge's
explanation of his rights was sufficient because it was not required to use magic words;
form is less important than substance. The State also contends that Calel's supporting
caselaw is inapplicable because there is a difference between waiving one's right to a jury
trial in favor of a bench trial and waiving one's right to a jury in favor of a plea.

The State also argues the magistrate judge followed the procedure outlined in
K.S.A. 2017 Supp. 22-3210 which was enacted to ensure that an individual's right to due
process was not violated. The State claims the magistrate judge was only required to
inform Calel of his right to a jury trial but was not required to provide a detailed
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explanation of a jury trial. Additionally, the State asserts that Calel freely admitted he
only wanted to withdraw his plea because he was facing deportation and was fully aware
of this risk when he entered his plea. Thus, Calel's plea was made knowingly and
voluntarily and he had failed to show good cause as to why his plea should be withdrawn.

Kansas has laid out a procedure for district courts to use when accepting a guilty
or no contest plea. K.S.A. 2017 Supp. 22-3210 provides:

"(a) Before or during trial a plea of guilty or nolo contendere may be accepted
when:
(1) The defendant or counsel for the defendant enters such plea in open court;
and
(2) in felony cases the court has informed the defendant of the consequences of
the plea, including the specific sentencing guidelines level of any crime committed on or
after July 1, 1993, and of the maximum penalty provided by law which may be imposed
upon acceptance of such plea; and
(3) in felony cases the court has addressed the defendant personally and
determined that the plea is made voluntarily with understanding of the nature of the
charge and the consequences of the plea; and
(4) the court is satisfied that there is a factual basis for the plea."

The district court must also inform the defendant of his right to a jury trial before
accepting the plea. "[F]or a criminal defendant to effectively waive his right to a trial by
jury, the defendant must first be advised by the court of his right to a jury trial, and he
must personally waive this right in writing or in open court for the record." State v.
Irving, 216 Kan. 588, 590, 533 P.2d 1225 (1975). Past courts have not definitively stated
what language is required when a district court is advising the defendant of his or her
right to a jury trial. However, it seems clear that a district court must make sure the
defendant affirmatively knows that he or she has a right to a jury trial, although a district
court is not required to warn a defendant of every right pertaining to a jury trial. State v.
Thomas, No. 118,082, 2018 WL 3598878, at *3 (Kan. App. 2018) (unpublished opinion).
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Past courts have upheld waivers even when the district court did not directly tell
the defendant about the right to a jury trial. In Beaman, the Supreme Court held that,
despite the district court's failure to explicitly state that the defendant had a right to a jury
trial, the district court affirmatively inquired that the defendant wanted to waive the jury
trial. 295 Kan. at 860. "And while the district court did not actually say the words 'right to
a jury trial' in its inquiry of Beaman, it did use the phrase 'your desire to waive a jury for
this trial' at the outset." 295 Kan. at 860. The Beaman court also cited to State v.
Clemons, 273 Kan. 328, 45 P.3d 384 (2002). In Clemons, the Supreme Court accepted a
jury trial waiver even though the district court did not use the phrase "right to a jury trial"
because, based on the facts and circumstances of the case, the defendant was aware he
had a right to a jury trial. 273 Kan. at 340-41.

Beaman also recognized the importance of the district court's actual use of the
word waiver in the discussion. Beaman noted that the purpose of informing the defendant
of his or her right before accepting a waiver is so that the defendant knows what rights he
or she is giving up. The Supreme Court then found that "the district court communicated
that Beaman had a right he would be relinquishing, and the dialogue between them
confirmed that the judge and defendant were talking about the same thing, i.e., Beaman's
right and the abandonment of that right." 295 Kan. at 861. The Supreme Court upheld the
waiver because the record reflected the district court affirmatively engaged the defendant
in a discussion about the possible consequences of his jury trial waiver.

It should be noted that Beaman focused on the whether the defendant knowingly
and voluntarily waived his right to a jury trial in favor of a bench trial. Still, the
discussion surrounding whether the district court conveyed the right to a jury trial to the
defendant and whether he understood he was waiving that right is helpful to Calel's case.

Thus, it seems a district court's duty to inform the defendant of his or her right to a
jury trial will be met so long as it is clear that the district court conveyed to the defendant
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that he or she had a right to a jury trial under the facts of each case. "[T]he ultimate
question is not what specific words the trial judge used but whether the defendant
sufficiently understood he or she had a jury-trial right." State v. Ortiz, No. 116,432, 2017
WL 4581947, *4 (Kan. App. 2017) (unpublished opinion).

Overall, the magistrate's explanation of rights was extensive, but his explanation
of the right to a jury trial was terse and in some respects incorrect. It is clear that the
magistrate did little to distinguish a jury trial from a bench trial or what rights are part of
a jury trial compared to a bench trial. He did not specifically state, "You have a right to a
jury trial." It is clear that there are no "magic words" that must be utilized in advising a
defendant of the right to a jury trial and there is no requirement that a defendant be
advised of every right pertaining to a jury trial. However, before a plea can be accepted
the court taking the plea must make sure the defendant affirmatively knows that he or she
has a right to a jury trial and that entering a waiver is an abandonment of that right.

In this colloquy, the magistrate judge told Calel that if he pled not guilty the matter
would be set for trial and that trial could be before a judge or a jury. The fact of the
matter is that if Calel pled not guilty the matter would have been set for jury trial and at
that point he would have the right to decide solely for himself whether he wanted to
waive that right and set the matter for a bench trial. The right to a jury trial is a
fundamental right, and as Beaman makes clear, the record must show that the defendant
was made aware of that fundamental right and what he would be abandoning if he waived
that right. To expressly waive that right, the right must be accurately conveyed. The same
can be said whether a defendant is waiving a jury trial to have a bench trial or waiving a
jury trial to enter a plea. In this case, the explanation of the fundamental right to a jury
trial was, at best, ambiguous.

The failure to clearly explain a fundamental right raises constitutional
considerations. It is equally true that the failure to clearly explain a fundamental right
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prior to a waiver of that right would constitute good cause to grant a motion to withdraw
a plea. In either event, the result is the same. The order denying Calel's motion to
withdraw his plea is reversed. The case is remanded for hearing to correctly inform Calel
of his right to a jury trial and to determine whether it was Calel's intention to (1) not
waive the right to a jury trial in which case the plea would be vacated and the case set for
jury trial or (2) waive the right to a jury trial in which case the plea and sentence
previously entered would remain intact.

Reversed and remanded.