State v. Gregory

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NOT DESIGNATED FOR PUBLICATION

No. 113,207

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHRISTOPHER RUSSELL GREGORY,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed March 24,
2017. Affirmed in part and dismissed in part.

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

Andrew R. Davidson, assistant district attorney, Keith Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., ATCHESON and BRUNS, JJ.

Per Curiam: When ruling on a motion to withdraw a plea, a district court should
consider three factors, called the Edgar factors. State v. Edgar, 281 Kan. 30, 36, 127 P.3d
986 (2006). Christopher Russell Gregory argues that the district court made an error of
law by applying the wrong legal standard to his motion to withdraw his plea. While the
district court did not explicitly refer to the Edgar factors, the district court implied in its
analysis that it considered the factors. This is sufficient, as there is no requirement that
the district court explicitly discuss the Edgar factors.
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Under K.S.A. 2016 Supp. 21-6811(e)(3), courts classify out-of-state convictions as
person crimes if there is a comparable Kansas offense. Gregory also argues that the
district court erred in classifying his prior Texas convictions as person felonies. He
asserts that because the Texas statutes are broader than the Kansas ones, the district court
is prohibited by Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d
438 (2013), from finding that the statues are comparable. However, Gregory has now
served his entire sentence, so this sentencing issue is moot.

FACTUAL AND PROCEDURAL HISTORY

In July 2012, Gregory's girlfriend called the police when Gregory began punching
windows out of their car. By the time a police officer arrived, Gregory had already driven
away. The officer pursued Gregory, and at some point Gregory stopped in the middle of
the road. When the officer put his car in park, Gregory rammed into it with his truck,
disabling the officer's car. Two other officers continued the chase. Gregory rammed their
vehicle as well and threw a beer can at it. Gregory continued, striking a third police car
on his way. Eventually Gregory drove into a construction zone and got stuck in the mud
where the police apprehended him. A blood test showed that Gregory had a blood alcohol
level of 0.21.

The State charged Gregory with four counts of aggravated battery of a law
enforcement officer, four counts of criminal damage to property, and one count of felony
fleeing and eluding. The State later amended the complaint to include a charge of driving
under the influence of alcohol (second offense). After a competency evaluation, the
district court found that Gregory was competent to stand trial. The district court bound
Gregory over after a preliminary hearing on January 29, 2013. From that point, the case
was continued for a variety of reasons for over 18 months. These continuances were, with
one exception, all at the request of defense counsel. They involved delays to conduct
further investigation regarding Gregory's mental competency, delays due to Gregory
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firing one attorney and filing an ethical complaint against another resulting in new
counsel entering the case, delays related to scheduling conflicts of defense counsel, and
one court-ordered continuance based on a busy docket.

In June 2014, Gregory filed a pro se motion to dismiss criminal charges due to
speedy trial violations. At a hearing on the motion, the district judge noted that the
defense had requested every continuance, except for the one the court made on its own
motion. The judge found that the State had complied with its burden to bring Gregory to
trial in time, and denied Gregory's motion to dismiss. The trial remained scheduled for
July 29, 2014.

On July 25, 2014, Gregory entered a plea of no contest to the four counts of
aggravated battery of a law enforcement officer and the driving under the influence
(second offense) charge. In exchange, the State agreed to dismiss the other charges.
Before accepting the plea, the district judge asked Gregory if he understood the charges
and their penalties and explained the rights Gregory would forego by pleading guilty or
no contest. In response to questioning, Gregory indicated that he was satisfied with his
attorney and did not have any complaints regarding the way the State or court had treated
him. The court found that Gregory had understandingly, knowingly, intelligently, and
voluntarily waived his right to a jury trial and accepted Gregory's no contest plea.
Gregory executed an acknowledgement of rights and entry of plea form, which was filed
on July 28, 2014.

On August 8, 2014, Gregory made a request to withdraw his plea, arguing that he
"was pressured into accepting it." The district court held a hearing on the motion on
August 15, 2014. The district judge framed the issue as whether or not the plea colloquy
that he had with Gregory at the July 25, 2014, hearing complied with the requirements of
K.S.A. 2016 Supp. 22-3210. "[I]n other words," whether the judge "correctly determined
that [Gregory] knowingly, intelligently and voluntarily entered the plea and there was a
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factual basis for the plea." The district judge noted that "nobody pleads guilty or no
contest without feeling pressure." Then, the district judge denied Gregory's request,
finding that Gregory understood what he was doing when he entered the plea and that it
had a factual basis.

Prior to sentencing, Gregory filed a motion to challenge his criminal history,
arguing that his two prior Texas convictions were wrongly classified as person felonies.
The district court denied the motion and, pursuant to the plea agreement, sentenced
Gregory to 66 months in prison.

Gregory appeals.

ANALYSIS

The district court did not abuse its discretion when it denied Gregory's motion to
withdraw his plea.

Gregory's first argument is that the "district court made an error of law in denying
the motion to withdraw plea by failing to consider all relevant circumstances surrounding
the plea, includ[ing] the prior events of the case, and by ruling based only on the plea
[colloquy] and Mr. Gregory's responses at the plea hearing."

"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). On appeal, the defendant must establish that the trial
court abused its discretion in denying a presentence motion to withdraw plea. State v.
Kenney, 299 Kan. 389, 393, 323 P.3d 1288 (2014). A judicial action constitutes an abuse
of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an
error of law; or (3) is based on an error of fact. 299 Kan. at 393.
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Three factors generally guide a district court's consideration of whether a
defendant has demonstrated the good cause required by K.S.A. 2016 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. 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 are often
referred to as the Edgar factors, after Edgar, 281 Kan. at 36, despite the fact that use of
the factors predates Edgar. State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010).

Gregory argues that the district court committed an error of law by only
considering the third Edgar factor—whether Gregory understood the plea. Gregory
argues that the district court failed to address his claim that he had been "'forced into the
plea' due to a violation of 'multiple rights' during the two years prior to the entry of the
plea." This includes Gregory's right to be present, his right to object to continuances, and
his right to a speedy trial. Gregory argues that the cumulative effect of being denied these
rights "pressured" him into taking the plea—he felt as though he had been forced to
proceed to trial with an attorney he did not want.

Good cause is the cornerstone of the district court's inquiry of whether it should
grant a motion to withdraw a plea before sentencing. K.S.A. 2016 Supp. 22-3210(d)(1).
While the Edgar factors provide guidance to this inquiry, "[t]his court has stated multiple
times that a district court is not required to make an express finding on the record for
each Edgar factor." State v. Simpson, No. 109,063, 2014 WL 1193382, at *4 (Kan. App.
2014) (unpublished opinion). Implicit findings are sufficient. 2014 WL 1193382, at *4.
And, "the district court is not required to consider all three factors if a defendant supports
his or her good cause with only one of the three." 2014 WL 1193382, at *4.

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Here, the district court did not explicitly cite to the Edgar factors before ruling on
Gregory's motion to withdraw his plea. However, the record shows that the district court
addressed Gregory's arguments before ruling on the motion to withdraw plea. In essence,
Gregory argued that he felt pressured to accept the plea because his attorneys kept
continuing the trial in violation of Gregory's speedy trial rights. This claim encompasses
the first and second Edgar factors—the competency of Gregory's attorneys and whether
Gregory was misled, coerced, or mistreated.

The district judge reviewed Gregory's history of attorneys, noting that the first two
attorneys withdrew from representation. The judge then explained: "[W]hen you get your
attorney fired there's going to be a delay and the case law says that those delays, if it's
caused by you, even if you say you don't want a delay, if you do something that causes
the delay it's charged to you." This dialogue shows that the district court considered the
elements of Gregory's claim, which implies that the district court did not ignore the first
two Edgar factors.

The district judge also emphasized the plea colloquy. During the plea colloquy,
Gregory indicated that he was satisfied with his counsel. When the district judge asked
Gregory if he had any complaints regarding how the court or State had treated him,
Gregory replied that he did not. At the hearing on the motion to withdraw plea, the
district judge asked Gregory if he had been lying when he gave those responses during
the plea colloquy. Here, it is important to note that the same judge presided over the entry
of Gregory's plea and the hearing on Gregory's motion to withdraw his plea, a factor our
Supreme Court has deemed important.

"'Perhaps most importantly for our purposes, the same judge presided at the plea
hearing and at the motion to withdraw plea hearing. At the plea hearing, the judge was
able to observe [defendant] when he stated that he understood the nature of the charges
against him; that he understood his rights; that he was entering a plea of his own volition;
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and that he was not threatened or coerced into entering the plea. Thus, when [defendant]
testified at the plea withdrawal hearing that he had been misled, coerced, and forced to
enter a plea, the judge was able to ascertain that such testimony "did not comport with
what occurred at the time of plea," and to draw a conclusion as to which contradictory
testimony was more credible. Likewise, the judge had the opportunity to observe the
demeanor of the attorney and interpreter when they contradicted [defendant's]
characterization of the plea discussions.'" State v. Glover, 50 Kan. App. 2d 991, 1000,
336 P.3d 875 (2014) (quoting State v. Macias-Medina, 293 Kan. 833, 839, 268 P.3d 1201
[2012]), rev. denied 302 Kan. 1014 (2015).

The district court considered Gregory's reasons for wanting to withdraw his plea
and concluded that they did not constitute good cause. While the district court did not
explicitly mention the Edgar factors, the consideration is implied in the district judge's
statements and ruling. Thus, the district court did not make an error of law in denying
Gregory's motion to withdraw his plea, and its decision is affirmed.

Even if we assume that the district court erred when it calculated Gregory's criminal
history score, his claim is moot because he has served his entire sentence.

Gregory's criminal history report showed that Gregory had committed three person
felony offenses in Texas. Gregory challenged the classification of these felonies as
person crimes, but the district court rejected his argument. Based on the criminal history
report, the district court assigned Gregory a criminal history score of A. Gregory argues
that the district court "engaged in impermissible judicial fact finding, a violation of
Apprendi v. New Jersey, 530 U.S. 466, [120 S. Ct. 2348, 147 L. Ed. 2d 435] (2000), and
Descamps" in classifying the felonies as person offenses, thus making his sentence
illegal. On appeal, Gregory only challenges the classification of two Texas convictions as
person felonies—his 1998 conviction for injury to a child and his 1999 conviction for
assault against a public servant.

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K.S.A. 22-3504(1) states that a "court may correct an illegal sentence at any time."
Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question of law
over which the appellate court has unlimited review. State v. Lee, 304 Kan. 416, 417, 372
P.3d 415 (2016). Additionally, determining "[w]hether a prior conviction or adjudication
was properly classified as a person or nonperson crime for criminal history purposes
raises a question of law subject to unlimited review." State v. Dickey, 301 Kan. 1018,
1034, 350 P.3d 1054 (2015).

Unfortunately there is a procedural bar to Gregory's illegal sentence claim: he has
now served his entire jail sentence. A review of the docketing statement that Gregory
filed with the court, as well as the sentencing journal entry, suggest that Gregory was
eligible for release on or about November 22, 2016. A show cause order was sent to the
parties to show why the challenge to Gregory's criminal history score should not be
dismissed as moot. The State confirmed that according to the Kansas Department of
Corrections, Gregory was released from prison on September 22, 2016, and is currently
serving postrelease supervision in Texas. Gregory does not dispute that claim.

Because mootness is a doctrine of court policy, which was developed through
court precedent, appellate review of the issue is unlimited. State v. Hilton, 295 Kan. 845,
849, 286 P.3d 871 (2012). An appeal is moot if it convincingly appears that the only
judgment which could be entered would be ineffectual for any purpose. State v.
Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012). Such is the case here. Gregory has
served his entire term of incarceration. Prior panels of this court have found illegal
sentencing issues moot once the defendant has completed his or her sentence. See, e.g.,
State v. Brown, No. 112,825, 2015 WL 9286987, at *3 (Kan. App. 2015) (unpublished
opinion), petition for rev. filed January 14, 2016; State v. Lawrence, No. 113,470, 2015
WL 7434300, at *3 (Kan. App. 2015) (unpublished opinion); State v. Tipps, No. 113,002,
2015 WL 7434683, at *1 (Kan. App. 2015) (unpublished opinion), rev. denied 305 Kan.
___ (December 20, 2016). When the court corrects an illegal sentence, the defendant
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receives full credit for the time spent in custody under the sentence prior to correction.
K.S.A. 22-3504(1). In this case, Gregory has already completely served his sentence and
is simply serving his period of postrelease supervision. Any actual controversy over
Gregory's sentence has ended, and remanding for resentencing would be ineffectual for
any purpose. This is true even though Gregory is still on postrelease supervision.

Postrelease supervision is mandatory. K.S.A. 2016 Supp. 22-3717(d)(l). The
length of the supervision is dictated by the severity level of the crime of conviction;
criminal history is irrelevant. See K.S.A. 2016 Supp. 22-3717(d)(l)(A)-(C). A 12-month
period of postrelease supervision is the statutory minimum. See K.S.A. 2016 Supp. 22-
3717(d)(1)(C). Gregory was sentenced to 12 months of postrelease supervision.
Assuming without deciding that Gregory's prison sentence was actually too long because
of a mistake in determining his criminal history, the excess time of incarceration could
not be applied to reduce a mandatory period of postrelease supervision. See State v.
Gaudina, 284 Kan. 354, 368, 160 P.3d 854 (2007); State v. Reed, No. 113,845, 2016 WL
2775148, at *2 (Kan. App. 2016) (unpublished opinion); State v. Brown, No. 112,825,
2015 WL 9286987, at *4 (Kan. App. 2015) (unpublished opinion), petition for rev. filed
January 14, 2016; State v. Dunn, No. 111,283, 2015 WL 2414362, at *2 (Kan. App.
2015) (unpublished opinion), rev. denied 303 Kan. 1080 (February 9, 2016). So any
change in Gregory's criminal history score would have no legal effect on his period of
postrelease supervision.

Accordingly, because it is has been clearly and convincingly shown the actual
controversy has ended, the only judgment that could be entered would be ineffectual for
any purpose, and it would not impact any of the parties' rights, Gregory's appeal as to his
sentence must be dismissed as moot. See Montgomery, 295 Kan. at 839-44.

Affirmed in part and dismissed in part.