State v. Hernandez

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NOT DESIGNATED FOR PUBLICATION

Nos. 116,279
116,280

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

STEVEN R. HERNANDEZ,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed September 8,
2017. Affirmed.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

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

Before HILL, P.J., ATCHESON and SCHROEDER, JJ.

PER CURIAM: Steven R. Hernandez appeals the denial of his postsentence motion
to withdraw his plea to attempted aggravated indecent liberties with a child. On appeal,
Hernandez has failed to show how counsel's strategic decision not to interview and call a
witness for his jury trial caused him to enter an Alford plea. Our review of the record
reflects Hernandez failed to establish that a reasonable probability exists that, but for his
counsel's decision, he would have insisted on going to trial instead of entering an Alford
plea. We affirm.
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FACTS

In 2008, a jury convicted Hernandez of aggravated indecent liberties with a child
(R.F.) and a lesser included offense, attempted aggravated indecent liberties with a child.
Our Supreme Court reversed Hernandez' convictions and remanded for a new trial,
finding: "It is a legal impossibility to both attempt the commission of a crime and
complete the commission of the same crime, because the failure to complete commission
of the crime is an element of attempt." State v. Hernandez, 294 Kan. 200, 204, 273 P.3d
774 (2012). The underlying facts supporting Hernandez' plea are not relevant to the issue
now on appeal and we disperse with setting them out here.

On remand, Hernandez was appointed counsel. He met with his attorney and told
her he wanted to proceed to trial as soon as possible and wished to pursue a voluntary
intoxication defense. He gave her the name and contact information of a potential
witness, Ricardo Ponce, who had been with Hernandez before he went to R.F.'s home.
Hernandez told his counsel Ponce could testify regarding his level of intoxication on the
night of the incident. Hernandez' counsel advised him that, in her experience, a voluntary
intoxication defense rarely worked and could potentially be seen by the jury as an
admission the act occurred.

Hernandez' counsel reviewed the trial transcripts and the reports from the arresting
officers. She noted Hernandez told the officers he drank two or three beers prior to the
incident. The arresting officer had indicated he did not detect an odor of alcohol on
Hernandez' person and did not believe Hernandez was intoxicated at the time of the
postarrest interview—approximately 30 minutes after the incident. Additionally, counsel
believed that based on her review of Hernandez' interview, he was able to answer the
officer's questions clearly and appropriately and did not show signs of being intoxicated.
Ultimately, based on her review of the entire record, counsel concluded voluntary
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intoxication was not an appropriate defense. She did not contact or subpoena Ponce and
did not discuss her decision with Hernandez prior to trial.

On the morning of trial, Hernandez asked his attorney to see if the State was
willing to offer a plea deal. As part of the plea deal, the State offered to join in a
recommendation to the court for a downward durational departure to 165 months'
imprisonment in exchange for Hernandez pleading guilty to one count of attempted
aggravated indecent liberties with a child. Hernandez agreed and entered a guilty plea
pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162
(1970). Based on Hernandez' crime of conviction and his criminal history score, the
Kansas Sentencing Guidelines Act provided for a sentencing range of 240 to 267 months'
imprisonment. The district court granted Hernandez a downward durational departure but
declined to follow the joint recommendation and sentenced Hernandez to 214 months'
imprisonment.

Approximately nine months later, Hernandez filed a motion to withdraw his plea,
alleging his counsel was ineffective for failing to subpoena Ponce, thereby forcing him to
enter a plea rather than go to trial. After an evidentiary hearing, the district court denied
Hernandez' motion, finding Ponce's testimony would not have changed the outcome at
trial. Hernandez timely appealed to this court. Another panel of this court reversed,
finding the district court applied an incorrect legal standard. The matter was remanded
with instructions to hold a new evidentiary hearing to determine (1) whether Hernandez'
counsel's failure to subpoena Ponce was objectively deficient; and (2) whether Hernandez
would have gone to trial but for counsel's failure to subpoena Ponce. See State v.
Hernandez, No. 111,718, 2015 WL 6629788, at *1, 3 (Kan. App. 2015) (unpublished
opinion).

On remand, the district court heard testimony from Hernandez and his counsel.
Ponce did not testify at the evidentiary hearing. Hernandez testified that he only sought
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and entered a plea because his counsel told him she had not subpoenaed Ponce and did
not plan to call him as a witness. Hernandez' counsel testified she had not discussed with
Hernandez the fact Ponce would not be testifying before he asked her to approach the
State to discuss the benefit of entering a plea. The district court denied Hernandez'
motion, finding his counsel's decision not to contact Ponce or pursue a voluntary
intoxication defense was objectively reasonable under the circumstances; based on her
investigation, the defense would not be advantageous for Hernandez. The district court
further found that even if counsel's performance was deficient, Hernandez was not
prejudiced; he would have entered a plea irrespective of his counsel's decision.

Hernandez timely appealed.

ANALYSIS

Hernandez argues the district court erred in denying his motion to withdraw his
plea. "To correct manifest injustice the court after sentence may set aside the judgment of
conviction and permit the defendant to withdraw the plea." K.S.A. 2016 Supp. 22-
3210(d)(2). Generally, an appellate court will not disturb a district court's denial of a
postsentence motion to withdraw plea absent an abuse of discretion. State v. Davisson,
303 Kan. 1062, 1064-65, 370 P.3d 423 (2016). A judicial action constitutes an abuse of
discretion if (1) no reasonable person would take the view adopted by the trial court; (2)
the ruling is based on an error of law; or (3) is based on an error of fact. State v.
Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).

Hernandez asserts his counsel was ineffective, thereby forcing him to enter the
plea deal rather than go to trial. A claim alleging ineffective assistance of counsel
presents mixed questions of fact and law. When the district court conducts a full
evidentiary hearing on such claims, the appellate court determines whether the district
court's findings are supported by substantial competent evidence and whether the factual
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findings support the court's legal conclusions; the appellate court applies a de novo
standard to the district court's conclusions of law. Fuller v. State, 303 Kan. 478, 485, 363
P.3d 373 (2015).

To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must establish: (1) the performance of defense counsel was deficient under the totality of
the circumstances; and (2) prejudice, i.e., "a reasonable probability exists that, but for
[counsel's] errors, [he] would have insisted on going to trial." State v. Adams, 297 Kan.
665, 669, 673, 304 P.3d 311 (2013). A reasonable probability means a probability
sufficient to undermine confidence in the outcome. State v. Sprague, 303 Kan. 418, 426,
362 P.3d 828 (2015).

Judicial scrutiny of counsel's performance is highly deferential and requires
consideration of all the evidence before the judge or jury. The reviewing court must
strongly presume that counsel's conduct fell within the broad range of reasonable
professional assistance. State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014). "It is
within the province of a lawyer to decide what witnesses to call, whether and how to
conduct cross-examination, and other strategic and tactical decisions." Thompson v. State,
293 Kan. 704, 716, 270 P.3d 1089 (2011). "[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable."
Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh.
denied 467 U.S. 1267 (1984).

Here, the district court correctly found Hernandez failed to establish his counsel's
performance was objectively deficient under the totality of the circumstances. Hernandez'
counsel indicated she discussed the voluntary intoxication defense with him and, in her
experience, it was rarely successful. She also advised him it could hurt his case because
asserting the defense essentially conceded he committed the acts charged. In reaching her
decision, Hernandez' counsel considered his statement to police that he drank two or
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three beers prior to the incident and his demeanor during the videotaped interview. She
also considered the fact the officers did not indicate any impairment or odor of alcohol
and Hernandez was able to respond clearly and appropriately to the officers' questions.
She believed the evidence did not show Hernandez was intoxicated and, therefore, did
not support a voluntary intoxication defense. Thus, it appears Hernandez' counsel
investigated the use of Ponce as a witness and then made a decision not to interview or
call him since she believed his testimony would be detrimental to Hernandez' defense. A
strategic decision "after thorough investigation of law and facts relevant to plausible
options," upon appellate review is "virtually unchallengeable." Strickland, 466 U.S. at
690.

While Hernandez' counsel conceded she did not contact or subpoena Ponce,
Hernandez did not call Ponce to testify at the evidentiary hearing on remand.
Accordingly, Ponce's willingness to testify, the nature of his testimony, and its veracity
and credibility have not been established. The facts and reasoning Hernandez' counsel
relied on in deciding not to pursue a voluntary intoxication defense are well supported in
the record. Ponce's testimony is the only evidence that could undermine counsel's
otherwise virtually unchallengeable strategic decision. Hernandez has the burden to show
his counsel's performance was objectively deficient under the totality of the
circumstances and to demonstrate that there exists a reasonable probability, but for
counsel's decision, he would have insisted on going to trial. See Adams, 297 Kan. at 673.
This court must strongly presume counsel's conduct fell within the broad range of
reasonable professional assistance. Kelly, 298 Kan. at 970. Hernandez' evidence fails to
rebut this presumption; therefore, he failed to meet his burden. Hernandez has failed to
show the withdrawal of his plea is required to correct manifest injustice. The district
court properly denied his motion to withdraw his plea.

Affirmed.