State v. Drown

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NOT DESIGNATED FOR PUBLICATION

No. 115,809

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CURTIS W. DROWN,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed August 11,
2017. Affirmed.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., STANDRIDGE and SCHROEDER, JJ.

Per Curiam: Curtis W. Drown pled guilty to two counts of aggravated sexual
solicitation and one count of attempted rape. Prior to sentencing, Drown filed a motion to
withdraw his plea. Following an evidentiary hearing, the district court denied his motion.
Drown appeals, arguing that the district court erred in denying his motion to withdraw his
plea of guilty.



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FACTS

In January 2014, the State charged Drown with three counts of aggravated
indecent liberties with a child, with each count constituting an off-grid person felony with
a potential sentence of 25 years to life. See K.S.A. 2016 Supp. 21-5506(c)(3).

Drown eventually accepted a plea agreement. Under the plea agreement, the State
filed an amended complaint charging Drown with two counts of aggravated indecent
solicitation of a child and one count of attempted rape. Drown agreed to plead guilty to
the charges in the amended complaint, while the State agreed to recommend the high
number in the appropriate sentencing guidelines gridbox for each count and to
recommend that the attempted rape count run consecutive to one of the aggravated
indecent solicitation counts, with the remaining aggravated indecent solicitation count to
run concurrently.

Before the plea hearing, Drown signed a form titled "Defendant's
Acknowledgment of Rights and Entry of Plea." In the form, Drown acknowledged that he
had fully discussed the plea agreement with his attorney and understood the plea
agreement, the charges against him, and the penalties he faced. Drown also
acknowledged that he had read the form, that he understood the rights to which he was
entitled and the rights he was giving up, and that he was accepting the terms and
conditions of the plea agreement.

At the plea hearing, Drown stated that he was 25 years old, had completed 10th
grade, and had no problems or difficulties reading, writing, or understanding English.
Drown acknowledged that he had read the plea agreement, he had read the
acknowledgment of rights and entry of plea form, he understood all the rights and options
contained in the documents, and he had personally signed the documents. The district
court then proceeded to orally explain the rights, choices, and options Drown was giving
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up by pleading guilty. Drown again stated that he understood his rights, choices, and
options and that he had no questions for his attorney about them. Drown also expressed
an understanding of the plea agreement and the potential sentence he faced for each count
to which he was entering a plea of guilty. Drown confirmed there had been no promises
or threats made in order to get him to enter the plea and denied he had any mental
problems or taken any drugs or medications that might affect his ability to understand his
rights or the consequences of his plea. Drown agreed that he had sufficient time to
discuss his legal rights and options with his attorney, that he had been satisfied with his
attorney's services, that he fully understood his legal rights and options and the
consequences of his guilty plea to the charges in the case, and that he had no further
questions about any of the rights, choices, or options available to him. The court found
that Drown understood the charges against him and the consequences of his guilty pleas,
that he understood his rights, and that he waived those rights knowingly, intelligently,
and voluntarily. Thereafter, Drown pled guilty to the charges set forth in the State's
amended complaint.

After this plea hearing but before his scheduled sentencing hearing, Drown
engaged new counsel and filed a motion to withdraw his plea of guilty. In the motion,
Drown claimed that (1) his plea attorney failed to advocate on his behalf, (2) he was
coerced into accepting the plea, and (3) the plea was not fairly or understandingly made.
The district court conducted an evidentiary hearing on the motion to withdraw plea and
heard testimony from the following witnesses.

Curtis W. Drown

Drown testified that he had retained Chris O'Hara to represent him shortly after the
State filed charges against him. Drown said he told O'Hara from the beginning that he
wanted to go to trial and did not want to take a plea deal because he was innocent of the
crimes. Drown testified he only met with O'Hara about four times, that each visit was
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relatively short, and that O'Hara rarely communicated with him or his family and was not
very responsive when they tried to get ahold of him. Drown claimed he gave O'Hara a list
of witnesses who were present on the night of the alleged crimes, but he did not know if
O'Hara ever contacted them. Drown further claimed O'Hara was not adequately focused
on his case as evidenced by the fact that O'Hara did not respond or provide any
information when asked and never elaborated on what his defense would be at trial.
Drown did not feel that O'Hara was ready to go to trial or that O'Hara wanted to put in the
work necessary to take the case to trial.

According to Drown, O'Hara began discussing the possibility of a plea agreement
the week before trial. Drown acknowledged he had authorized O'Hara to enter into plea
negotiations but said he only would have considered a plea that contemplated a sentence
of probation. On the Friday before Monday's scheduled jury trial, O'Hara visited Drown
at the jail and presented Drown with a plea offer. Drown said O'Hara discussed the
possibility of obtaining another offer with a dispositional downward departure to a
guaranteed grid sentence. This offer ultimately was presented to Drown at a plea hearing
that took place later that afternoon. Drown testified that O'Hara did not attend the
hearing; instead, Kevin Zolotor, an attorney from O'Hara's law firm, represented Drown
at the hearing. O'Hara had never met Zolotor and was confused as to why he was there.
Drown testified that he only had about 10 minutes to go over the plea documents with
Zolotor that afternoon. Drown also testified that his reading comprehension was low and
that he often had to read things more than once to understand them. Drown testified it
was only after reviewing the plea agreement Friday afternoon that he learned for the first
time he was facing lifetime postrelease supervision or lifetime registration. Given this
new information, Drown told Zolotor that he did not want to take the plea. Zolotor left
the courtroom to call O'Hara, who Drown says pressured him over the phone to take the
plea. According to Drown, O'Hara told him that if he were convicted at trial, he would
receive a life sentence. Drown said he had to make the decision in a matter of minutes
and was not given the opportunity to consult with his family. Drown ultimately pled
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guilty, and the court engaged in the colloquy set forth above. Drown said he and his
family later tried to contact O'Hara about withdrawing the plea, but they never received a
response. Drown said he had been advised of the possible consequences if the court
granted his request to withdraw his plea but still wanted to do so.

Drown agreed that O'Hara had filed several motions on his behalf and that
O'Hara's investigator had interviewed two of the three alleged victims. Drown admitted
that during the time O'Hara represented him, he never told the district court he was
unhappy with O'Hara, he never asked for or attempted to get a new attorney, and he never
indicated he needed more time to discuss the plea agreement. When asked about the
representations he made at the plea hearing, Drown testified he had lied to the district
court when he expressed satisfaction with the manner in which O'Hara and Zolotor
represented him throughout the proceedings.

Angel Nicholson

Angel Nicholson, Drown's wife, testified that Drown had not completed high
school or obtained a GED. According to Nicholson, Drown usually sought input from his
family about major decisions and had difficulty making major or quick decisions on his
own. Nicholson said O'Hara never contacted her and he failed to timely respond to her
efforts in contacting him. Nicholson said she was never contacted by O'Hara's
investigator. Nicholson also said she did not believe O'Hara was prepared to go to trial on
the charges against her husband. Nicholson testified that neither she nor Drown's other
family members were told about the plea hearing and only learned that Drown had
entered a plea of guilty after it happened. Nicholson claimed she attempted to contact
O'Hara after the plea hearing to express her concerns, but he did not return her calls or
messages.


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Chris O'Hara

O'Hara testified that he had been an attorney for 11 years and that his practice
focused primarily on state and federal criminal defense. O'Hara said Drown's family
retained his firm to represent Drown with regard to the charges filed against Drown.
O'Hara was Drown's primary attorney, but O'Hara said it was common in his three-person
firm for the attorneys to help each other out and cover hearings for each other when
necessary, as all attorneys in the firm were experienced in criminal defense work. O'Hara
recalled work he performed early on in Drown's case when the State attempted to revoke
his bond. O'Hara did not recall how many times he visited Drown in jail but claimed that
he spoke with Drown often enough to ensure that Drown knew what was going on in the
case. O'Hara said that the crux of the case involved statements made by the alleged
victims and that his investigator spoke to the alleged victims. O'Hara also said he
interviewed several witnesses who had not been already interviewed by the police.

O'Hara testified that Drown claimed to be innocent of the crimes. O'Hara said that
he was planning to go to trial, that he was prepared to do so, and that plea discussions did
not come up until near the time of trial. O'Hara testified that he believed Drown
eventually directed him to pursue plea negotiations because the trial date was looming,
Drown was scared about the possibility of facing three 25-years-to-life sentences, and
Drown wanted to see what his options were. The Friday prior to the jury trial scheduled
for Monday, O'Hara went to Drown with a proposed plea agreement. In discussing the
terms of the plea agreement, it appeared to O'Hara that Drown believed lifetime
postrelease supervision was not going to be imposed. Nevertheless, O'Hara said Drown
wanted to enter into the plea agreement and expressed no hesitation in telling O'Hara that
he wanted to do so. O'Hara said he explained to Drown that the plea hearing would take
place that afternoon and that he could not personally be at the plea hearing because he
had another hearing in Kansas City. O'Hara told Drown he had arranged for Zolotor,
another attorney in his office, to represent Drown at the plea hearing. O'Hara claimed
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Drown understood the plea hearing would take place that afternoon and that O'Hara
would not be there.

O'Hara explained that Zolotor called him that afternoon based on Drown's concern
after reading the provision in the plea agreement reflecting lifetime postrelease
supervision. O'Hara testified that he then spoke directly with Drown on the phone,
explaining lifetime postrelease supervision was statutorily mandated and was therefore
not negotiable within the plea agreement. O'Hara said he made it known that it was up to
Drown to decide whether to enter into the plea agreement. Drown then told O'Hara that
he was going to accept the plea offer. O'Hara denied Drown's claim that he threatened or
forced Drown to take the plea. O'Hara said he told Drown from the beginning that it was
Drown's decision whether to accept a plea offer and that he would support whatever
decision Drown made. O'Hara testified he had no concerns about Drown understanding
the plea agreement or being coerced into entering a plea to the amended charges.

Kevin Zolotor

Zolotor testified that he covered Drown's plea hearing for O'Hara, a normal
occurrence at the firm. He said he was familiar with Drown's case and had a general
understanding of the issues involved. Zolotor understood that Drown had already agreed
to the plea and that he was just there to facilitate it. Zolotor said he knew Drown might
have questions about the duration of the postrelease supervision term. Zolotor said
Drown expressed concern relating to lifetime postrelease supervision when he and Drown
discussed the plea agreement, so he called O'Hara to discuss the issue with Drown. After
the phone conversation between Drown and O'Hara ended, Zolotor testified Drown went
forward with the plea. Zolotor said Drown did not indicate or otherwise express any
hesitancy about going forward with the plea pursuant to the terms of the agreement. If
Drown had shown any reluctance about going forward, Zolotor said he would have
stopped the proceedings.
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After considering the evidence presented, the plea hearing transcript, and
arguments from counsel, the district court found Drown had failed to establish that he
was entitled to relief under any of the factors set forth in State v. Edgar, 281 Kan. 30, 36,
127 P.3d 986 (2006). In the absence of good cause to justify withdrawing the plea, the
court denied Drown's motion. The district court later sentenced Drown to a controlling
prison term of 95 months with lifetime postrelease supervision and lifetime offender
registration.

ANALYSIS

On appeal, Drown contends the district court erred in denying his motion to
withdraw plea. "A plea of guilty or nolo contendere, for good cause shown and within the
discretion of the court, may be withdrawn at any time before sentence is adjudged."
K.S.A. 2016 Supp. 22-3210(d)(1).

Because granting leave to withdraw a plea prior to sentencing is within the
discretion of the district court, a defendant generally has the burden to show on appeal
that the district court abused its discretion in denying his or her motion to withdraw plea.
See State v. Kenney, 299 Kan. 389, 393, 323 P.3d 1288 (2014). Drown asserts that his
due process rights are implicated and therefore urges us to abandon the abuse of
discretion standard and review this issue de novo. Notably, Drown cites no authority for
his claim that a district court's decision to deny a presentence motion to withdraw plea
may be subject to unlimited review; thus, we are bound by the standard of review set
forth by our Supreme Court. See State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273
(2013) (failure to support point with pertinent authority or show why it is sound despite
lack of supporting authority or in face of contrary authority is akin to failing to brief
issue); State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015) (Court of
Appeals is duty bound to follow Kansas Supreme Court precedent, absent some
indication Supreme Court is departing from its previous position).
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We review a district court's decision to deny a presentence motion to withdraw a
plea for an abuse of discretion. Kenney, 299 Kan. at 393. A judicial action constitutes an
abuse of discretion if the action is: (1) arbitrary, fanciful, or unreasonable, i.e., no
reasonable person would take the view adopted by the district court; (2) based on an error
of law; or (3) based on an error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d
587 (2015). Applying an abuse of discretion standard does not involve reweighing
evidence or assessing witness credibility; we defer to district court fact finding in these
matters. State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011).

To determine whether a defendant has shown the required "good cause" necessary
to withdraw a plea under K.S.A. 2016 Supp. 22-3210(d)(1), a court is guided by the
following three factors, commonly referred to as the Edgar factors: "(1) whether the
defendant was represented by competent counsel; (2) whether the defendant was misled,
coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly
and understandingly made." State v. Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014)
(citing State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 [2010]). But these factors
should not be applied mechanically or to the exclusion of other factors. Fritz, 299 Kan. at
154. A defendant does not need to establish all three factors in order to demonstrate good
cause to withdraw a plea. State v. Ebaben, 294 Kan. 807, 812, 281 P.3d 129 (2012).
Nevertheless, a defendant's determination, in hindsight, that a plea was not the best
course of action, without more, is not sufficient good cause to withdraw the plea. See
State v. Schow, 287 Kan. 529, 542, 197 P.3d 825 (2008).

Drown claims that all three of the Edgar factors are present in his case: (1) he was
not represented by competent counsel; (2) he was misled, coerced, and taken advantage
of; and (3) his plea was not voluntarily and understandably made.



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Represented by competent counsel

To establish good cause, a defendant need not "demonstrate ineffective assistance
arising to the level of a violation of the Sixth Amendment [to the United States
Constitution]"; mere "lackluster advocacy . . . may be plenty to support the first Edgar
factor and thus statutory good cause for presentence withdrawal of a plea." Aguilar, 290
Kan. at 512-13. The established minimum standard for reasonable representation by plea
counsel, however, is advising the defendant of the range of possible penalties and
discussing the choices available to the defendant. State v. White, 289 Kan. 279, 285-86,
211 P.3d 805 (2009).

With respect to the first Edgar factor, Drown contends that O'Hara provided no
meaningful advocacy on his behalf, often failed to communicate with him, was
unprepared to go to trial, and did not believe his consistent assertions of innocence.
Although conceding O'Hara visited him in jail the morning of his plea, Drown asserts he
did not receive a written plea agreement or a written acknowledgment of rights and entry
of plea form at that time. Drown also claims he was unaware that O'Hara would not be at
the plea hearing that afternoon and complains that he was provided with an attorney who
he did not know, who was unfamiliar with the case, and who could not answer his
questions.

Drown's claims are not supported by the record. O'Hara testified that he met with
Drown on multiple occasions, apprised him of developments in the case, and investigated
and interviewed potential witnesses and the alleged victims. O'Hara was aware that
Drown claimed to be innocent of the crimes. O'Hara testified that he had planned to go to
trial but that Drown had directed him to pursue plea negotiations with the State in the
week before trial. Drown was potentially facing three consecutive sentences of 25 years
to life in prison, and O'Hara ultimately obtained a plea offer that recommended a
significantly lower sentence: 94 months in prison. O'Hara testified that after receiving
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the final plea offer from the State, he discussed the terms and consequences of the plea
with Drown and informed Drown that he could not be present at the plea hearing.
According to O'Hara, Drown did not object to Zolotor representing Drown at the plea
hearing. O'Hara and Zolotor both testified that Zolotor was familiar with the plea
agreement and was aware that the duration of postrelease supervision could be a concern
for Drown. When Drown did express concern about this issue, Zolotor contacted O'Hara
by phone, who informed Drown that lifetime postrelease supervision was required by
statute and could not be negotiated within the plea agreement. Thereafter, Drown
informed both O'Hara and Zolotor that he wanted to take the plea.

In addition to the evidence set forth above, Drown himself informed the district
court at the plea hearing that he was willing to proceed with Zolotor representing him,
that he had read the plea agreement and the acknowledgment of rights and entry of plea
form and fully understood the rights and options contained therein, and that he had no
questions about any of those rights and options. Drown further expressed an
understanding of the sentences he faced on each of the State's amended charges, which
included lifetime postrelease supervision. Finally, Drown agreed that he had sufficient
time to discuss all his legal rights and options with O'Hara and Zolotor and that he was
satisfied with their performance.

The district court made a specific finding that Drown was represented by
competent counsel. Based on the record before us, the district court correctly applied the
first Edgar factor in coming to this conclusion.

Misled, coerced, mistreated, or unfairly taken advantage of

In support of the second Edgar factor, Drown argues O'Hara coerced him into
accepting the plea agreement, despite his claims of innocence and his assertions that he
did not want to plead guilty to the crimes. Drown alleges that he felt pressured to accept
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the plea agreement, based in part on his lack of confidence in O'Hara's ability to represent
him at trial.

But Drown affirmed at the time he entered into the plea that he was not coerced or
threatened in any way and was not promised anything in exchange for his plea. As
previously discussed, it appears that O'Hara was working toward preparing the case for
trial. O'Hara testified that he planned to go to trial and denied that he had threatened or
forced Drown to take the plea. O'Hara also testified he told Drown that it was his choice
whether to accept the plea offer and that he would support Drown's decision.

The district court, relying on O'Hara's testimony, found that Drown was not
misled, coerced, mistreated, or unfairly taken advantage of when accepting the plea. This
court does not reweigh the credibility of witnesses, so we must give deference to the
district court's findings on this point. See Anderson, 291 Kan. at 855. Drown's argument
under the second Edgar factor necessarily fails.

Plea voluntarily and understandingly made

Finally, Drown argues he cannot be deemed to have voluntarily and
understandingly entered into a plea of guilty to the charges against him because he
demonstrated a lack of capacity to comprehend written material, did not complete high
school or earn a GED, and had no opportunity to seek advice from his family before
making the decision to enter the plea.

But the record does not support Drown's argument. Before entering his plea,
Drown reviewed the plea documents and specifically expressed concern about the term of
postrelease supervision in the plea agreement. Only after talking to O'Hara on the phone
did Drown ultimately sign the acknowledgment of rights and entry of plea form. By
doing so, he acknowledged he had fully discussed the plea agreement with his attorney
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and understood the plea agreement, the charges against him, and the penalties he faced.
At the plea hearing itself, Drown responded to specific questions posed by the court
regarding his understanding of the plea agreement and the rights he had and was giving
up. Drown told the court that he had no problems or difficulties reading, writing, or
understanding English. He acknowledged to the court that he had read the plea agreement
and the acknowledgement of rights and entry of plea form, understood all the rights and
options contained in the documents, and signed the documents. Drown communicated to
the court that he had no questions for his attorney about these rights and options and
orally expressed an understanding of the plea agreement and the potential sentence he
faced for each count. Drown told the court that he did not have mental problems and that
he had not taken any drugs or medications that might affect his ability to understand his
rights or the consequences of his plea. Drown told the court that he had sufficient time to
discuss his legal rights and options with his attorney, that he fully understood his legal
rights and options and the consequences of his guilty plea to the charges in the case, and
that he had no further questions about any of the rights, choices, or options available to
him. Finally, O'Hara testified that Drown never expressed any indication that he did not
understand the plea agreement. Drown is not entitled to relief under the third Edgar
factor.

CONCLUSION

Based on the record before us, Drown is not entitled to relief under any of the
Edgar factors. Rather, it appears that Drown has determined, in hindsight, that his plea
was not the best course of action. Unfortunately for Drown, without more, there was
insufficient good cause to withdraw his plea. See Schow, 287 Kan. at 542. As a result, the
district court did not abuse its discretion in denying Drown's motion to withdraw his plea.

Affirmed.