State v. Graf

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NOT DESIGNATED FOR PUBLICATION

No. 116,755

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ORION MARK GRAF,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; SALLY D. POKORNY, judge. Opinion filed March 16, 2018.
Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Claire Kebodeaux, legal intern, Kate Duncan Butler, assistant district attorney, Charles E.
Branson, district attorney, and Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., GREEN, J., and HEBERT, S.J.

PER CURIAM: Orion Mark Graf was convicted on his plea of no contest to one
count of attempted rape and one count of attempted aggravated criminal sodomy. Prior
to his sentencing, Graf moved to withdraw his plea. The district court denied the motion
and proceeded to sentence Graf to a controlling sentence of 216 months' imprisonment.
Graf now appeals from the denial of his motion to withdraw his plea.

We find no abuse of discretion, and we affirm the judgment of the district court
that Graf failed to show good cause to withdraw his plea.
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Factual and Procedural Background

On May 27, 2014, Graf was charged with three counts of rape, one count of
aggravated assault, and one count of criminal threat. On May 12, 2015, Graf pled no
contest to one count of attempted rape and one count of attempted aggravated criminal
sodomy, as charged in the third amended information.

At his plea hearing, the district court judge discussed the plea and its implications
with Graf. The judge explained the maximum penalties on both counts, and Graf advised
he understood those penalties. Graf also confirmed he understood his right to a jury trial,
the presumption of innocence, his right to confront those testifying against him, his right
to choose whether to testify, his right to appeal if found guilty at trial, his right to
appellate counsel, and that by pleading he gave up his rights to appeal his conviction.
Graf stated he was satisfied with his attorney's advice and representation, he was not
threatened or coerced to enter his plea, and no promises were made to him other than
those in plea negotiations. Graf specifically told the court he was not under the influence
of drugs or alcohol.

The district judge specifically asked Graf if he was "suffering from any mental
disease or defect that would make it difficult" for Graf to understand the proceedings and
the implications of his plea, and Graf responded, "I don't think so." The district judge
ascertained that Graf had filled out a plea advisory with his attorney who had explained
the advisory and answered Graf's questions about the advisory. The district judge found
that Graf freely, voluntarily, and intelligently made his no contest plea, and found Graf
guilty of one count each of attempted rape and attempted aggravated criminal sodomy.

After the plea, Graf filed a pro se motion for an arrest of judgment and a motion to
dismiss counsel. Graf's attorney withdrew and the district court appointed Graf a new
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attorney. Before sentencing, Graf's new attorney filed a motion to withdraw plea, which
is now at issue before this panel.

At the hearing on his motion to withdraw plea, Graf testified he initially felt
hesitant about the plea offer, but his attorney strongly encouraged him to accept the plea
deal. Graf testified he felt emotionally overwhelmed and incompetent on the day of the
plea. He also admitted that he did not tell the district court judge about any of those
feelings because he believed that he could not freely talk with the district court judge,
even though Graf had previously appeared before the district court judge during various
other court appearances, both in this case and in other plea proceedings in another case.
Graf claimed he only knew what he was supposed to say in front of the judge from his
prior plea hearing. Graf testified he told his prior attorney he did not feel competent to
plea before the hearing.

Graf's former attorney, Branden Smith, testified Graf did not tell him that he did
not feel competent to plea before the hearing, and at no point did Graf indicate to him that
he was not competent. Smith testified that while preparing for trial, Graf sent him
handwritten ideas and possible questions for trial and Graf worked with him in preparing
motions in his case. Graf and Smith discussed prior plea offers and Graf suggested a
counteroffer to one of the offered plea deals. The night before the plea agreement at issue
here, Smith gave Graf an eight-page letter explaining the offer and advising him as to
why he should accept the offer. Smith went over this letter with him in detail and spent "a
couple hours" discussing the plea with him. Smith opined Graf had a very good grasp of
the facts, evidence, law, and possible sentence in his case. Graf even repeatedly asked
Smith to preserve his right to appeal. Smith testified that Graf said he wanted to go to
trial the day of the plea hearing, but Graf changed his mind and decided to accept the deal
after all and enter his plea.

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Dr. Robert Barnett, a clinical psychologist who evaluated Graf, also testified at the
hearing on Graf's motion to withdraw his plea. Barnett testified that Graf's competence to
enter the plea was compromised because he felt pressured, agitated, and "emotionally
defenseless" at the time of the plea. Graf was previously diagnosed with bipolar disorder
and posttraumatic stress disorder. However, Barnett testified that someone diagnosed
with bipolar disorder is able to make appropriate life decisions as long as the person is
not in a manic or depressed episode. Barnett testified that he had no idea if or what kind
of episode Graf may have been in when pleading. Additionally, Barnett agreed that the
medications prescribed to Graf generally "improve [one's] decision-making ability," not
decrease one's ability. Importantly, Barnett evaluated Graf four months after the entrance
of Graf's plea, meaning he mostly relied on Graf's self-reporting and "very few records"
of his history in coming to his conclusions. Barnett testified that Graf engaged with him
appropriately and that he was an "intelligent young man" who, immediately before the
criminal charges against him, was a doctoral candidate at the University of Kansas.

During his evaluation, Barnett administered to Graf the Minnesota Multiphasic
Personality Inventory-2 (MMPI-2). Barnett testified that Graf had a "very high F score on
the validly scales," and a score that high can be indicative of "faking bad," "malingering,"
or the fabrication of symptoms of mental disorders. However, Barnett opined the MMPI-
2 is dated, he had concerns about its clinical utility, and he had no reason to doubt Graf's
credibility.

At the conclusion of the hearing, the district judge took a recess to conduct some
legal research. She then returned and walked through each of the factors used to assess if
there is good cause to withdraw a plea before sentencing, then made several findings.
First, the district court judge assessed Graf's competency because, as she stated, it was the
crux of his argument that he should be permitted to withdraw his plea. She stated:
"[N]ow close to the three years of working with Mr. Graf and his various cases, there is
no doubt in my mind that he is competent." She stated that before the plea was accepted,
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Graf was asking several questions about his plea and negotiated additional terms of the
plea agreement, including that no new charges would be filed against him in relation to
an alleged battery of an officer he committed while in custody, an assurance that the
Federal Bureau of Investigation (FBI) would quit attempting to crack the encryption on
his seized hard drive, and his computer would be returned to the State. He also repeatedly
indicated that he wanted to preserve his right to appeal the denial of his motion to
suppress. Smith, the State, and the district court "got together" in the judge's chambers
and did some legal research to see if this was a possibility and determined that through a
bench trial or a plea under current caselaw, such an issue would not be preserved. The
judge found that such interactions and requests indicated Graf was competent at the time
of his plea.

Regarding Barnett's testimony, the district judge made the following credibility
determination:

"I also find it telling that Dr. Barnett gave Mr. Graf the MMPI-2, and my notes
indicate that he testified that he had an elevated F score, which is a signal to the greater
[sic] that the person who is answering the test is faking his answers or malingering, but
then he discounted that or discarded that because the MMPI-2 isn't reliable any more. But
that just simply doesn't make any sense to me. If it's not reliable, why do you give it? You
just wouldn't give it."

She also determined from Barnett's testimony and the rest of the evidence
presented at the hearing, "[t]here is no evidence that was presented here before me that
Mr. Graf is not capable of and could not fairly and understandingly make a plea that he
did fairly and understandingly understand [sic] what was being offered and what the
ramifications were." Further, the judge pointed out that this was the second time Graf had
entered a plea in front of her, and this was the second time that she reviewed all of his
rights under the United States Constitution and the rights he would be giving up by
entering a plea. She remembered Graf was tearful during his plea, but
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"that is not a sign of not knowingly and understandingly entering a plea. By entering this
plea, he knew he was giving up a huge chunk of his life, that he was giving up his
children's childhood as far as being able to participate in that. Just those two things alone
would cause, I think anyone, to be tearful, not just somebody who was suffering from
some mental incapacity."

She also found that Smith competently represented Graf and he was not misled,
coerced, mistreated, or unfairly taken advantage of. She elaborated on the coercion
argument that Graf raised—that Graf was coerced because Smith told him he had no
chance at trial because of the evidence against him and he was facing a potential 1,200
months' imprisonment if he was convicted as charged. The district court judge stated that
she signed the search warrants, presided over the preliminary hearings, ruled on the
motions to suppress, and had seen firsthand the evidence that would be admitted at trial
against Graf. She stated that the photographic evidence against Graf was "extremely
graphic" and the recorded phone call he had with his alleged victim apologizing and
asking her not to call the police were "going to be hard to overcome when presenting this
case to a jury." She found that this advice was not coercion but it was Smith's advice
about the pros and cons of going to a jury trial, and that Smith repeatedly told Graf that
this was his choice to make. Finding all of the above, the district court judge denied
Graf's motion to withdraw plea.

Ultimately, the district court sentenced Graf to 216 months' imprisonment for the
charge of attempted rape and 59 months' imprisonment for attempted aggravated criminal
sodomy to run concurrent. Graf was also ordered to 36 months' postrelease supervision
and informed of his obligation to register as a sex offender for the duration of his
lifetime.

Graf timely appeals the district court's denial of his presentence motion to
withdraw his plea.

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The district court did not abuse its discretion by denying Graf’s motion to withdraw his
plea.

Graf argues the district court abused its discretion when it denied his presentence
motion to withdraw his no contest plea. Specifically, he bases his argument on his
assertion that at the time of the plea he was "emotionally defenseless" because of his
bipolar disorder and was not competent to 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. 2017 Supp. 22-3210(d)(1). On appeal, the defendant must establish that the trial
court abused its discretion in denying a presentence motion to withdraw plea. State v.
Schaal, 305 Kan. 445, 449, 383 P.3d 1284 (2016). "Discretion is abused when judicial
action is arbitrary, fanciful, or unreasonable. Under this standard, an appellate court will
not disturb a discretionary decision unless no reasonable person would have taken the
view adopted by the district court. [Citations omitted.]" State v. Gonzalez, 290 Kan. 747,
755, 234 P.3d 1 (2010).

Three factors, often referred to as the Edgar factors, generally guide a district
court's consideration of whether a defendant has demonstrated the good cause required by
K.S.A. 2017 Supp. 22-3210(d)(1) to withdraw a plea prior to sentencing: (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. Garcia, 295 Kan. 53, Syl. ¶ 2, 283 P.3d 165 (2012);
see State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). These factors should not be
applied mechanically and to the exclusion of other factors. State v. Fritz, 299 Kan. 153,
154, 321 P.3d 763 (2014). These factors establish "'viable benchmarks'" for the district
court when exercising its discretion, but the court should not ignore other facts that might
exist in a particular case. State v. Schaefer, 305 Kan. 581, 588, 385 P.3d 918 (2016).
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When the same district court judge presides over both the plea and the motion to
withdraw the plea, that judge is in the best position to resolve conflicts in the testimony
and credibility issues. State v. Macias-Medina, 293 Kan. 833, 839, 268 P.3d 1201 (2012).
Further, "[a]ppellate courts do not reweigh the evidence or assess witness credibility.
Instead, appellate courts give deference to the trial court's findings of fact." State v.
Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011).

Graf was represented by competent counsel.

We agree with the district court's holding that Graf was represented by competent
counsel. This holding is clearly supported by the record. Smith wrote Graf a very detailed
eight-page letter explaining the pros and cons of the plea and spent several hours with
him explaining things to him and answering his questions. At the plea hearing, Graf had
no complaints about Smith. This factor weighs in favor of a finding that there was not
good cause shown for Graf to withdraw his plea.

Graf was not misled, coerced, mistreated, or unfairly taken advantage of.

Additionally, the record supports Graf was not misled, coerced, mistreated, or
unfairly taken advantage of, as the district court held. Graf is an intelligent individual
who was recently a doctoral candidate. Smith clearly explained the plea, its
consequences, and the advisory form to Graf. The district judge asked Graf if he
understood his right to a jury trial, the presumption of innocence, his right to confront
those testifying against him, his right to choose whether to testify, his right to appeal if
found guilty at trial, his right to appellate counsel, and that by pleading he gave up his
rights to appeal his conviction. Graf indicated he understood. The district court found that
Smith's advice was not coercive, Smith advised about the pros and cons of going to a jury
trial, and Smith repeatedly told Graf that this was his choice to make. There is no
indication in the record that Graf was misled, coerced, mistreated, or unfairly taken
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advantage of and, thus, this factor weighs in favor of a finding there was not good cause
shown for Graf to withdraw his plea.

Graf's plea was fairly and understandingly made.

Finally, the record supports the district court's conclusion that Graf was competent
at the time of his plea and his plea was fairly and understandingly made. First, Graf
entered a plea previously in front of the same judge, so he had experience with this judge,
pleas, and the judicial system. Graf clearly understood the nature of the charges against
him because he helped with his defense by sending his attorney numerous ideas and even
wrote possible questions for trial. He also tried to send a counteroffer to the State, talked
about his desire for his attorney to preserve his rights to an appeal, and asked several
questions about his plea. Graf even negotiated additional terms of his plea agreement,
including that no new charges would be filed against him in relation to an alleged battery
of an officer he committed while in custody and an assurance that the FBI would quit
attempting to crack the encryption on his seized hard drive and return this hard drive to
the State. These actions show that Graf was extremely involved in his own defense and
understood what was going on. Additionally, Graf indicated he understood the potential
consequences and the rights he was giving up. Graf answered all of the district court
judge's questions appropriately.

Although Barnett testified that Graf lacked competence on the day of the plea,
Barnett only evaluated him four months after his plea and relied mainly on Graf's self-
reporting of his state of mind at the time of the plea. He acknowledged that Graf's
personality test showed signs of malingering and his bipolar diagnosis did not necessarily
prevent Graf from understanding the proceedings. Additionally, the district court judge
stated she did not find Barnett's statements completely credible. Importantly, the same
district court judge presided over both the plea and the motion to withdraw the plea, so
that judge was in the best position to resolve conflicts in the testimony and credibility
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issues. See Macias-Medina, 293 Kan. at 839; see also State v. Bailey, No. 95,378, 2007
WL 570191, at *2 (Kan. App. 2007) (unpublished opinion) ("We are similarly skeptical,
as is the State, of the psychiatric testimony on [the defendant's] actual mental condition at
the time of the plea hearing when the psychiatrist testified that he had not examined [the
defendant] for over a month prior to the plea hearing."). As such, this factor weighs in
favor of a finding that there was not good cause shown for Graf to withdraw his plea.

All three of these factors weigh in favor of the district court's conclusion that there
was not good cause shown to allow Graf to withdraw his plea. The district court did not
rely on any error of fact or law, and Graf has failed to show that no reasonable person
would have taken the view adopted by the district court. See Gonzalez, 290 Kan. at 755.

Affirmed.