State v. Kahin

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NOT DESIGNATED FOR PUBLICATION

No. 115,368

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ABDIAZIZ KAHIN,
Appellant.


MEMORANDUM OPINION

Appeal from Ford District Court; E. LEIGH HOOD, judge. Opinion filed March 3, 2017. Affirmed.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Natalie K. Randall, county attorney, and Derek Schmidt, attorney general, for appellee.

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

Per Curiam: Abdiaziz Kahin appeals the district court's denial of his
presentencing motion to withdraw his no contest plea to one count of aggravated battery.
On appeal, Kahin—who primarily speaks a dialect of the Somali language—contends
that the district court should allow him to withdraw his plea because of communication
difficulties between him and the court-appointed interpreter who translated the
proceedings at the plea hearing. The district court found that Kahin gave no indication
during the plea hearing that he did not understand the proceedings and that his plea was
knowingly and voluntarily entered. Because we find no abuse of discretion or error of
law, we affirm the district court's denial of Kahin's motion to withdraw his plea prior to
sentencing.
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FACTS

On August 23, 2013, Ford County Sheriff's Deputy Brenton Pennington responded
to a call reporting a stabbing at a meat processing plant. While at the plant, he learned of
an altercation involving Kahin and another employee. The other employee suffered
multiple facial wounds and received treatment at a local medical facility.

Deputy Pennington subsequently arrested Kahin, and the State charged him with
aggravated battery in violation of K.S.A. 2011 Sup. 21-5413(b)(1)(A). On January 7,
2014, Kahin advised the district court—through an interpreter—that he intended to waive
his right to a preliminary hearing. He also told the court—with the assistance of the
interpreter—that he understood his right to a preliminary hearing, that he freely and
voluntarily waived this right, and that no one had threatened or forced him to waive this
right. The district court then accepted the preliminary hearing waiver.

After Kahin entered into a plea agreement with the State, a plea hearing was held
on June 10, 2014. As part of the agreement, the State amended the charges against Kahin
to aggravated battery in violation of K.S.A. 2011 Supp. 21-5413(b)(2)(B), which has a
lower severity level. Kahin was present, in person and with his attorney, at the plea
hearing. Moreover, a Somali language interpreter, Nuro Ahmed, appeared by telephone
to translate the proceedings.

The transcript of the plea hearing reveals that Ahmed was duly sworn and did not
hesitate to ask the district court to repeat various statements made during the proceedings
to make sure she could accurately translate them for Kahin. Each time, the district court
repeated or clarified its statements for Ahmed. Through the interpreter, Kahin stated that
it was his desire for the district court to adopt the plea agreement. The district court then
explained Kahin's rights and gave him time to speak privately to his attorney with the
assistance of Ahmed.
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After an off-the-record discussion with his attorney, Kahin entered a plea of no
contest. Kahin, with the assistance of the interpreter, also represented to the court that he
freely and voluntarily entered his plea, that he made the decision on his own, and that he
was not under the influence of drugs or alcohol. In addition, Kahin told the district court
that his attorney had told him about the potential immigration consequences if his plea
were accepted. Furthermore, Kahin's attorney represented to the district court that he had
discussed immigration at length with Kahin and had sought the advice of an immigration
attorney before coming up with the plea agreement in which the parties would jointly ask
for a durational departure to probation with an underlying sentence of 5 months.

After hearing the statements of Kahin, his attorney, and the State's attorney, the
district court then reviewed the arrest affidavit. Finding that there were enough facts in
the record to support the plea, the district court accepted Kahin's plea of no contest and
found him guilty of reckless aggravated battery. The district court then ordered a
presentence investigation and set the case for a sentencing hearing. Finally, the district
court ordered that Kahin would remain free on bond until the sentencing hearing.

Evidently, after members of his family told him that there could be negative
immigration consequences associated with his plea, Kahin filed a motion to withdraw his
no contest plea prior to sentencing. The district court appointed a new attorney to
represent Kahin on his motion and an evidentiary hearing was ultimately held on
December 9, 2015. Although the hearing was held in front of the same judge who had
conducted the plea hearing, a different interpreter was used. At the hearing, Kahin
testified that he had difficulties understanding the interpreter at the plea hearing and that
his attorney had not told him about the immigration attorney's advice.

After considering the factors set forth in State v. Edgar, 281 Kan. 30, 36, 127 P.3d
986 (2006), the district court found that the attorney who represented Kahin at the plea
hearing had done so competently and that Kahin had knowingly entered his plea.
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Moreover, the district court found that the record did not support Kahin's position about
not understanding the earlier proceedings. Accordingly, the district court found that
Kahin had not shown good cause for withdrawing his plea and denied his motion.

The district court then proceeded to sentencing. The district court followed the
recommendation in the plea agreement and sentenced Kahin to a 5-month sentence
suspended to 12 months' probation. In addition, the district court ordered Kahin to pay
$1640.05 in restitution to the Crime Victim's Compensation Board for the victim's
medical bills. Thereafter, Kahin filed a timely notice of appeal.

ANALYSIS

On appeal, Kahin contends that 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. 2015 Supp. 22-3210(d)(1). As such, Kahin must establish that the district court
abused its discretion in concluding that he had not shown good cause to withdraw his
presentence motion to withdraw plea. See State v. Kenney, 299 Kan. 389, 393, 323 P.3d
1288 (2014).

A judicial action constitutes an abuse of discretion if (1) no reasonable person
would take the view adopted by the trial court; (2) 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).
Moreover, three factors—commonly 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. 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
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was fairly and understandingly made. State v. Fritz, 299 Kan. 153, 154, 321 P.3d 763
(2014), citing State v. Edgar, 281 Kan. at 36.

Kahin does not appear to claim on appeal that he was represented by incompetent
counsel. Likewise, it does not appear that he is claiming that he was misled, coerced,
mistreated, or unfairly taken advantage of in entering his no contest plea. Rather, it
appears that Kahin only challenges the district court's determination that he fairly and
understandingly made his plea.

A review of the record reflects that the interpreter at the plea hearing took the time
necessary to make sure that she understood the statements and questions from the district
court and the attorneys so that she could properly translate the proceedings. At no point
did Kahin indicate that he did not understand the interpreter. In fact, he indicated he
understood the nature of the charges as well as his rights. Furthermore, a discussion was
held regarding his immigration status if the district court accepted the plea. Specifically,
when the judge asked Kahin if his attorney had explained that there may be immigration
consequences if he entered a plea, he said, "my lawyer told me what could happen."

As indicated above, the district court also gave Kahin time during the middle of
the plea hearing to speak to his attorney privately with the assistance of the interpreter.
After doing so, Kahin entered his no contest plea. The district court then confirmed with
Kahin that he freely and voluntarily desired to enter a plea. Again, Kahin indicated he
understood, and the district court accepted the plea.

At the evidentiary hearing on the motion to withdraw plea, before the same judge
who had heard the plea hearing, Kahin admitted that his lawyer had explained the
immigration consequences of his plea to him. After hearing the testimony from Kahin
and reviewing the transcript from the plea hearing, the district court appropriately
analyzed the motion using the Edgar factors. In doing so, the district court noted that the
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position Kahin was now taking was "for the most part self-serving" and that the transcript
did not support his position. The district court also noted that Kahin only sought to
withdraw his plea after he had spoken to his family following the plea hearing. Thus, the
district court concluded that Kahin had not shown good cause why his plea should be
withdrawn.

We find that the district court applied the appropriate legal standard in considering
Kahin's motion to withdraw. Moreover, we do not find the district court's decision that
Kahin failed to show good cause to withdraw his plea to be unreasonable, arbitrary, or
capricious. Instead, we find the district court's decision to be well reasoned and based on
the evidence as well as the judge's own observations regarding Kahin's ability to
understand the proceedings at the plea hearing. Ultimately, Kahin received the benefit of
his plea bargain, and we can find nothing in the record to suggest that the district court
abused its discretion in denying Kahin's motion to withdraw his plea.

Affirmed.