State v. Hinz

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NOT DESIGNATED FOR PUBLICATION

Nos. 113,800
113,801

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CALVIN JACKSON HINZ,
Appellant.


MEMORANDUM OPINION

Appeal from Barton District Court; RON SVATY, judge. Opinion filed February 26, 2016.
Affirmed.

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

Douglas A. Matthews, county attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., McANANY and ARNOLD-BURGER, JJ.

Per Curiam: Calvin Hinz asked the district court to withdraw his two no contest
pleas to two counts of possession of methamphetamine because his pleas were "not in his
best interests." His motion was denied, and he now asks us to overturn the court's ruling.
Because Hinz presents us with no good reason to withdraw his pleas, we affirm the
district court.

Hinz and the State entered into a plea agreement that resolved four cases. Hinz
agreed to plea to two counts of possession of methamphetamine and one count of theft. In
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exchange, the State agreed to dismiss the remaining charges. The State agreed that
sentencing would be based on the Kansas Sentencing Guidelines Act. The guideline
sentence was presumptive probation. Hinz acknowledged that he had not been threatened
or coerced into entering the plea agreement. Hinz also acknowledged that the court was
not bound by the agreement.

At the plea hearing, the district court explained the possible penalties for the
charged crimes. The district court further explained that Hinz was giving up his rights to
a trial, to challenge the State's evidence, and to present a defense by entering his pleas.
The district court accepted Hinz' no contest pleas and found that they were freely given
with the advice of counsel.

Before he was sentenced, Hinz filed a motion to withdraw his pleas, contending
that the plea agreement was "not in his best interest." The court considered the motion
before Hinz' sentencing hearing. Counsel for Hinz reiterated that the pleas were not in
Hinz' best interest. The district court found Hinz' contention "not a basis for withdrawing
pleas" and denied the motion.

The court imposed 18 months' imprisonment and 12 months' postrelease
supervision for the theft charge and 15 months' imprisonment suspended with 18 months'
probation for the possession of methamphetamine charges. The sentences were
consecutive. Hinz filed a timely notice of appeal. The cases were consolidated on appeal.

To us, Hinz contends that the court abused its discretion by failing to inquire why
Hinz wanted to withdraw his pleas and by failing to hold a meaningful hearing on the
matter. He argues the district court should have inquired whether he had competent
counsel, whether he was coerced into the plea, and whether he fully understood the pleas.
We note that Hinz does not actually assert on appeal that he was coerced into the pleas or
that he did not understand the pleas; he merely contends it "is possible" he was seeking to
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withdraw his plea due to ineffective assistance of counsel and wants a meaningful
hearing on his motion.

The traditional standards we follow on such questions are well established by
cases that have come before this one. "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. 2015 Supp. 22-3210(d)(1). Three factors, sometimes called
the "Edgar factors," see State v. Edgar, 281 Kan. 30, 36, 127 P.3d 987 (2006), generally
guide a district court's consideration of whether a defendant has demonstrated the good
cause required by K.S.A. 2015 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).

We must emphasize these are serious matters.

"A hearing on a motion to withdraw a plea of guilty or no contest is limited to
those instances in which the defendant's motion raises substantial issues of fact or law.
When the files and records conclusively show that the defendant is entitled to no relief
the motion must be denied. [Citation omitted.] Mere conclusions of the defendant are
insufficient to raise a substantial issue of fact when no factual basis is alleged or appears
in the record. [Citations omitted.]" 299 Kan. at 156.

When a motion to withdraw a plea is summarily denied without argument and
additional evidence, appellate courts exercise de novo review and determine whether the
motion, records, and files conclusively show the defendant is entitled to no relief. See
299 Kan. at 154-55.

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The Fritz case is instructive. In Fritz, the defendant moved to withdraw his plea,
asserting that he was vulnerable to pressure from his attorney, who urged him to plea but
misled him as to the likely sentence. He also believed there were defenses to the charges
against him. But Fritz asserted no specific facts indicating that he involuntarily or
unknowingly pled guilty, other than he had not been sleeping well. The record showed
that at Fritz' plea hearing the district court went over the plea agreement with Fritz,
inquired whether he was satisfied with his attorney, and asked if he had been threatened
or made any promises other than the language in the plea agreement. The district court
heard brief argument from the parties and then denied the motion without holding an
evidentiary hearing. The Kansas Supreme Court affirmed, holding that Fritz' conclusory
allegations lacked the substance required to avoid summary dismissal. 299 Kan. at 156-
57.

Here, Hinz asserted no substance whatsoever. Hinz' motion to withdraw his pleas
asserted only that the plea agreement was "not in his best interest." He asserted no factual
basis for this claim. The district court considered the motion at the beginning of Hinz'
sentencing hearing. The following exchange occurred:

"THE COURT: I guess, I—there's the motion, very short. That's the issue, he's
decided the plea agreement is not in his best interest?
"MS. BERAN: Yes, Your Honor.
"THE COURT: Is that—(interrupted)
"THE DEFENDANT: Yes, sir.
"THE COURT: Stop. You have a lawyer. Your lawyer filed the motion. Is that
his argument?
"MS. BERAN: Yes, Your Honor.
"THE COURT: That is not a basis for withdrawing pleas. The motion is denied."

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A defendant's determination, in hindsight, that his plea was not the best course of action,
without more, is not sufficient good cause. See State v. Schow, 287 Kan. 529, 542, 197
P.3d 825 (2008). Hinz' only argument was akin to buyer's remorse, not good cause.

No factual basis for Hinz' motion appears in the record either. The record shows
that Hinz had competent counsel. At beginning of the motion and sentencing hearing, the
following exchange occurred:

"THE COURT: And are you satisfied with Ms. Beran's representation of you so
far?
"THE DEFENDANT: Very, very well pleased, sir.
"THE COURT: Any complaints whatsoever about her representation of you?
"THE DEFENDANT: No, not at all.
"THE COURT: Do you want her to continue to represent you?
"THE DEFENDANT: Yes."

The record also shows that Hinz was neither threatened nor coerced into entering
his pleas. In his plea agreement, Hinz affirmed that he had "not been threatened or
coerced nor [had] any promises been made to persuade [him] to enter a plea . . . ." The
district court found that Hinz' pleas were freely given with the advice of counsel.

And, the record shows that the pleas were fairly and understandingly made. The
State dropped eight criminal charges in four cases in exchange for Hinz' pleas to three
charges. At the plea hearing, the district court explained the mechanics of a no contest
plea and the possible penalties for each of the charged crimes. The district court further
explained that by entering a plea, Hinz was giving up his rights to a trial, to challenge the
State's evidence, and to present a defense.

The record is devoid of any facts that support good cause for Hinz to withdraw his
pleas. Rather, the record shows that Hinz had competent counsel, he was neither
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threatened nor coerced, and the pleas were fairly and understandingly made. Therefore,
the motion, files, and records conclusively show that Hinz is entitled to no relief and the
district court did not err by summarily dismissing his motion to withdraw his pleas.

Hinz' reliance on State v. Taylor, 266 Kan. 967, 975 P.2d 1196 (1999), is
misplaced for it offers him no support. The duty to inquire expressed in Taylor stems
from a defendant's right to conflict-free counsel. In Taylor, the Kansas Supreme Court
held that where a trial court became aware of a possible conflict of interest between an
attorney and a defendant, it was an abuse of discretion to deny the defendant's motion to
withdraw his plea without making a meaningful inquiry. See 266 Kan. at 967, Syl. ¶¶ 2-3.
Taylor filed a motion to withdraw his plea before sentencing and requested a continuance
to hire new counsel. At the sentencing hearing, Taylor complained about his
representation, implying that he agreed to the plea because his counsel "was unwilling or
unprepared to try his case on the day of trial." 266 Kan. at 973. The district court denied
Taylor's request for a continuance and his motion to withdraw his plea. The Supreme
Court recognized that Taylor's statements may have created a conflict of interest between
Taylor and his counsel. 266 Kan. at 973-74. The court held that the district court erred by
failing to inquire into the potential conflict because without the assistance of conflict-free
counsel, Taylor was given no meaningful opportunity to show good cause to withdraw
his plea. 266 Kan. at 977.

There is no such duty to inquire when a possible conflict has not been raised
before the district court. See State v. Williams, 290 Kan. 1050, 236 P.3d 512 (2010). In
Williams, Williams moved to withdraw her plea because she did not "'believe that taking
the plea [was] the best for [her].'" At a hearing on her motion, Williams addressed the
court and expressed concerns regarding the nature of the plea. The district court denied
Williams' motion without inquiring into the competence of her counsel. On appeal,
Williams argued that the district court erred because it did not determine whether she had
been represented by competent counsel and whether she had been misled, coerced,
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mistreated, or unfairly taken advantage of (the first two Edgar factors). The Supreme
Court cited its prior discussion of the "Edgar factors" in State v. Aguilar, 290 Kan. 506,
512-13, 231 P.3d 563 (2010):

"'The Edgar factors remain viable benchmarks for judicial discretion but reliance
on them to the exclusion of other factors has not only conflated the good cause and
manifest injustice standards of K.S.A. 22-3210(d) but also may have overemphasized the
role of plea counsel's competence in deciding presentence plea withdrawal motions. . . ."
"'. . . All of the Edgar factors need not apply in a defendant's favor in every case,
and other factors may be duly considered in the district judge's discretionary decision on
the existence or nonexistence of good cause.' [Citation omitted.]" Williams, 290 Kan. at
1054.

The Williams court held that the district court did not abuse its discretion by not
"address[ing] a nonexistent, possible conflict of interest between Williams and her
attorney" because "[n]othing in Williams' discussion with the judge indicated that she
was concerned with the representation provided by her attorney . . . ." Williams' concerns
were the nature of the plea, not her representation. 290 Kan. at 1055-56.

Our Supreme Court explained the difference between Taylor and Williams in State
v. Hulett, 293 Kan. 312, 263 P.3d 153 (2011). "[T]he defendant in Taylor brought the
allegation of a counsel's conflict to the attention of the court at the hearing on the motion
withdraw plea"; the defendant in Williams did not. 293 Kan. at 320-21.

The present case is easily distinguishable from Taylor. Hinz made no claim of a
conflict with his counsel. In fact, the district court did inquire into Hinz' representation
and Hinz stated he was "[v]ery, very well pleased" and wanted her to continue to
represent him.

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Because Hinz` did not claim a conflict with his counsel, the duty to inquire from
Taylor was not triggered. Therefore, unlike Taylor, Hinz did have the assistance of
conflict-free counsel to attempt to show good cause to withdraw his plea at the hearing.
However, Hinz' counsel made no argument that would support good cause. Hinz also did
not make any such allegations when given the opportunity to speak in his own defense at
the sentencing portion of the hearing. Rather, Hinz argued that he was a "sovereign
citizen of the United States," that "man's law" did not apply, that "[d]rugs don't matter,"
that "[m]ind control is a very real thing," and that he did not think he should be punished
for theft.

Finally, Hinz argues that the district court violated the ruling in Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), because the district
court used his prior convictions to increase his sentence without requiring the prior
convictions be proved to a jury beyond a reasonable doubt. Hinz acknowledges that the
Kansas Supreme Court considered and rejected a similar argument in State v. Ivory, 273
Kan. 44, 41 P.3d 781 (2002), but raises the issue to preserve the matter for federal
review.

In Ivory, the Kansas Supreme Court held that the use of criminal history to
calculate the presumptive sentence does not violate due process as interpreted by
Apprendi. Ivory, 273 Kan. at 46-48. Our Supreme Court recently reaffirmed Ivory in
State v. Barber, 302 Kan. 367, 386, 353 P.3d 1108 (2015). Since there is no indication
that our Supreme Court is departing from its holding in Ivory, this court is duty bound to
affirm. See State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev.
denied 294 Kan. 946 (2012).

Affirmed.