State v. McGinley

1

NOT DESIGNATED FOR PUBLICATION

No. 119,781

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT NICHOLAS MCGINLEY,
Appellant.


MEMORANDUM OPINION

Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed August 16, 2019.
Affirmed in part, sentence vacated in part, and case remanded with directions.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.

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

PER CURIAM: Robert Nicholas McGinley appeals the district court's denial of his
presentence motion to withdraw pleas, and its order for him to pay attorney fees. First,
McGinley contends the district court abused its discretion in ruling that he failed to
demonstrate good cause to withdraw his pleas. Second, McGinley asserts the district
court erred by ordering him to reimburse the Board of Indigents' Defense Services
(BIDS) for attorney fees without explicitly considering his financial resources and the
burden that payment would impose on him.

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Upon our review, we find no abuse of discretion by the district court in denying
McGinley's motion to withdraw pleas. But we hold that the district court erred in
assessing BIDS attorney fees. As a result, we affirm in part, vacate the sentence in part,
and remand for reconsideration of reimbursement of BIDS attorney fees.

FACTUAL AND PROCEDURAL BACKGROUND

On February 14, 2017, the Shawnee County Dispatcher notified police officers of
a vehicle traveling slowly and swerving on the highway. Motorists following the vehicle
believed the driver was either falling asleep or suffering some type of medical problem.
Officers later determined that McGinley was the driver and sole occupant of the vehicle.

A police officer located McGinley's vehicle and observed him driving between 20
miles per hour and a complete stop in a 55 mile-per-hour speed zone. After the officer
activated his emergency lights and siren, McGinley sped away, leading officers on a
high-speed pursuit, with speeds exceeding 120 miles per hour. The pursuit finally ended
in Manhattan when McGinley collided head-on with another vehicle. The driver of the
other vehicle sustained injuries from the collision.

After McGinley's vehicle came to a stop, he raised his hands outside the driver's
side window. After officers ordered him to exit the vehicle, McGinley's hands began to
shake violently. McGinley was removed from the vehicle and emergency medical
services were summoned. Officers restrained McGinley because he was acting
abnormally, and officers believed his erratic behavior was characteristic of excited
delirium—a drug induced mental disorder.

After McGinley was transported to the hospital, he was placed in four-point
restraints to control his bizarre behavior. Doctors treated McGinley for a drug overdose
and drew blood for testing by the Kansas Bureau of Investigation (KBI). The KBI blood
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test results revealed that McGinley was under the influence of methamphetamine,
amphetamine, phencyclidine (PCP), and marijuana.

A search of McGinley's vehicle after the accident revealed more than a kilogram
of crystal methamphetamine, a pound of marijuana, drug packaging materials, scales,
$30,135 in cash, two loaded firearms, and ammunition.

McGinley was charged with possession of methamphetamine with intent to
distribute, possession of marijuana with intent to distribute, aggravated battery,
possession of drug paraphernalia, criminal possession of a firearm, and driving under the
influence.

Three days before a jury trial was scheduled to begin, McGinley appeared for a
pretrial hearing and announced a plea agreement with the State. Under the agreement,
McGinley agreed to plead no contest to all six charges against him. In exchange for
McGinley's pleas, the State agreed to file no additional charges and recommend a
sentence of not more than 230 months in prison. In the acknowledgment of rights
document, McGinley crossed out the paragraph which stated that he was satisfied with
his attorney's assistance. McGinley and his attorney, Lora D. Ingels, initialed the crossed-
out paragraph.

Before signing the plea agreement, however, McGinley indicated that he wanted
new counsel to represent him. The State informed McGinley that the plea offer would not
remain available for acceptance if McGinley obtained new counsel which would
necessarily result in a continuance of the trial. The State also advised that if McGinley
obtained new counsel and trial was continued that the prosecution may move for an
upward durational departure. Ingels informed McGinley that the State could move for an
upward departure sentence and explained the evidentiary basis for the departure which
the State would have to prove.
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In compliance with the plea agreement, McGinley pled no contest as charged.
Before accepting the pleas, the district court engaged in a detailed colloquy with
McGinley, insuring that he understood his rights and the consequences of his pleas.
During the plea colloquy, McGinley agreed that he fully discussed the case with Ingels
and that she had explained any available defenses to the charges. Based on this
consultation, McGinley did not believe that he had viable defenses, which was the reason
he wanted to accept the plea offer.

When asked if anyone made a promise to induce him to enter pleas of no contest,
McGinley said, "I'm being promised that if I fire my lawyer . . . that the State would file
an upward departure." In response, the prosecutor explained that "under the
circumstances we've been going back and forth for months on this, I might consider filing
a motion for an upward durational departure if we were to have to reset this matter for
trial if he were to get a new attorney." According to Ingels, she explained to McGinley
that, while the prosecutor's statements may seem like a threat, McGinley had every right
to reject the plea offer and proceed with trial. McGinley clarified that he took the
prosecutor's statements about the departure motion as a promise and not as a threat.
Regardless of the prosecutor's comments, McGinley informed the district court that he
entered into the plea agreement freely, voluntarily, and of his own free will.

After the extended discussion, the district court determined that McGinley
appreciated the consequences of pleading no contest and that his decision was freely,
voluntarily, and intelligently made. The district court accepted McGinley's pleas and
found him guilty as charged.

Before sentencing, McGinley filed pro se motions to withdraw his pleas and to
appoint new counsel. The district court granted McGinley's request for new counsel.
McGinley moved to withdraw his pleas for three reasons. First, McGinley argued that
Ingels provided incompetent representation by failing to advise him of a possible
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voluntary intoxication defense to his most serious charges. Second, McGinley claimed
Ingels inadequately researched his criminal history score and misinformed him that his
score would be higher than in fact it was. Third, McGinley asserted the State coerced him
into entering the pleas by telling him the plea offer would be withdrawn and an upward
departure may be sought if he requested new counsel.

The district court held an evidentiary hearing on McGinley's motion to withdraw
pleas. At the hearing, McGinley testified about his conversations with Ingels and the
prosecutor. McGinley said Ingels met with him about five times and discussed different
plea offers. During those discussions, McGinley turned down a plea offer made before
his preliminary hearing. According to McGinley, Ingels never discussed a voluntary
intoxication defense with him and she implied that he would likely be found guilty if the
case went to trial. McGinley believed that surrender was his only defense strategy at trial
because he had no viable defense. McGinley testified that he was not satisfied with
Ingels' representation and wanted a new attorney. But he decided not to request a new
attorney after the State explained that it would no longer accept a plea agreement if he
obtained a new attorney.

Finally, McGinley testified that Ingels explained the sentencing grid under the
Kansas Sentencing Guidelines Act and reviewed his criminal history with him. During
plea negotiations, McGinley believed he would have a B criminal history score. In this
regard, McGinley and Ingels had discussed whether his prior Missouri conviction for
armed criminal action would be considered a person or nonperson felony in Kansas.

In opposing the motion, the State called Ingels to testify about her legal
representation of McGinley. Ingels testified that she and McGinley met several times and
reviewed the evidence. She had numerous discussions with the State to consider various
plea offers, but many of the proposed plea agreements were rejected by either McGinley
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or the State. One offer McGinley rejected before the preliminary hearing would have
required the State to recommend a 220-month sentence and dismiss a federal case.

Prior to the pretrial hearing, McGinley told Ingels that he wanted to plead as
charged because he believed his federal case might get dismissed. Ingels counseled
McGinley that the plea offer was not a favorable proposal and noted that better offers
were presented that guaranteed the federal government would dismiss its case.
Nonetheless, Ingels presented the plea offer to the State and the prosecutor accepted. As
part of the plea agreement, Ingels asked the State to recommend a sentence of no more
than 230 months in prison. While McGinley was unhappy with Ingels, he advised her that
he still wanted to finalize the latest plea agreement.

After McGinley informed Ingels that he wanted a new attorney, Ingels asked the
prosecutor whether the plea offer would still be available if McGinley obtained new
counsel. The State responded that it would no longer consider a plea deal and may file a
motion for an upward departure if McGinley requested a new attorney. McGinley then
decided to consummate the plea agreement. According to Ingels, McGinley understood
that he had the right to a jury trial and it was his decision to enter the pleas and waive his
right to a jury trial.

Ingels testified that she did not believe a voluntary intoxication defense was a
viable defense strategy for McGinley's charges of possession with intent to distribute.
Ingels explained that intent to distribute is not only measured at the time of arrest, but it
also can be established at the time prior to McGinley's intoxication. Ingels testified that
she talked to McGinley about his intoxication and explained that it would not help his
defense. Ingels also believed a voluntary intoxication defense would be difficult to
present because she would be limited in her questioning of McGinley to avoid suborning
perjury. In this regard, Ingels explained that McGinley said he was faking being high
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during his arrest. McGinley also changed his story several times about how he obtained
the vehicle in which the drugs were found.

Lastly, although the plea offers were not contingent on McGinley's criminal
history score, Ingels advised McGinley that his criminal history score would be
calculated as a B. This was consistent with the State's assessment of McGinley's criminal
history. The presentence investigation (PSI) report, however, calculated McGinley's
criminal history score as a C. The parties miscalculated McGinley's criminal history score
by assuming his Missouri conviction for armed criminal action would convert to a person
felony in Kansas.

After considering the parties' arguments, the district court denied McGinley's
motion to withdraw pleas. At the outset, the district court noted that a presentence motion
to withdraw pleas may be granted for good cause. First, the district court determined that
Ingels provided competent representation to McGinley. Next, the district court found that
McGinley was not misled or coerced by the State. In this regard, the district court noted
that withdrawing all plea offers and filing a motion for an upward departure was the
prerogative of the State. Finally, the district court ruled that the pleas were fairly and
understandably made.

Before sentencing, the district court also addressed the possibility of any implied
prosecutorial vindictiveness raised in McGinley's argument that he was coerced to enter
his pleas. McGinley argued that the prosecutor sought to punish him for attempting to
exercise his right to effective counsel. But the district court found the State did not
commit prosecutorial vindictiveness by informing McGinley that it would not consider a
plea agreement and might move for an upward departure if he obtained new counsel
shortly before the trial was scheduled to begin.

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At sentencing, both parties agreed that McGinley's criminal history score was a C.
In compliance with the plea agreement, the State requested a 230-month prison sentence.
But the district court sentenced McGinley to 218 months in prison. The district court also
ordered payment of $1,585 in BIDS attorney fees. McGinley appeals.

MOTION TO WITHDRAW PLEAS

On appeal, McGinley first contends the district court abused its discretion when it
denied his motion to withdraw pleas. McGinley argues the district court's findings, which
justified its decision to deny his pleas, were unsupported by substantial competent
evidence. Specifically, McGinley claims: (1) Ingels provided incompetent representation
by failing to pursue a voluntary intoxication defense; (2) Ingels provided incompetent
representation and, as a result, he misunderstood his plea because Ingels misrepresented
his criminal history score; and (3) the State unfairly coerced him into pleading no contest.

At the outset, we briefly summarize the relevant standards of review and law
relating to plea withdrawals. A district court may allow a defendant to withdraw a no
contest plea for good cause any time before sentencing. K.S.A. 2018 Supp. 22-
3210(d)(1). On appeal, the defendant must establish that the district court abused its
discretion in denying a presentence motion to withdraw plea. State v. DeAnda, 307 Kan.
500, 503, 411 P.3d 330 (2018). A judicial action constitutes an abuse of discretion if (1)
no reasonable person would take the view adopted by the district court; (2) it is based on
an error of law; or (3) it is based on an error of fact. State v. Miller, 308 Kan. 1119, 1138,
427 P.3d 907 (2018).

In assessing whether the district court abused its discretion, our court does not
reweigh evidence or evaluate witness credibility. Instead, we defer to the district court's
factual findings provided those findings are supported by substantial competent evidence.
DeAnda, 307 Kan. at 503. Substantial competent evidence is evidence that a reasonable
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person could accept as adequate to support a conclusion. State v. Doelz, 309 Kan. 133,
138, 432 P.3d 669 (2019). As the party alleging error, McGinley bears the burden of
establishing an abuse of discretion. State v. Schaal, 305 Kan. 445, 449, 383 P.3d 1284
(2016).

A district court may grant a defendant's presentence motion to withdraw pleas if
the defendant makes a showing of good cause. K.S.A. 2018 Supp. 22-3210(d)(1). To
determine whether the defendant has shown good cause, the district court should consider
three factors: (1) whether competent counsel represented the defendant; (2) whether
someone misled, coerced, mistreated, or unfairly took advantage of the defendant; and (3)
whether the defendant fairly and understandingly entered the plea. State v. Edgar, 281
Kan. 30, 36, 127 P.3d 986 (2006). The defendant does not need to establish all three
Edgar factors to demonstrate good cause to withdraw the pleas and the district court may
also consider other factors in making its determination. DeAnda, 307 Kan. at 503. We
will individually consider the three Edgar factors.

Competent Representation

To establish good cause for a plea withdrawal based on incompetent legal
representation, a defendant does not need to prove constitutionally ineffective assistance
of counsel. State v. Aguilar, 290 Kan. 506, 512-13, 231 P.3d 563 (2010). Instead, mere
"lackluster advocacy" may support the first Edgar factor and provide good cause to
withdraw a plea before sentencing. 290 Kan. at 513. To engage in competent
representation, plea counsel must advise the defendant of the range of possible penalties
and discuss the choices available to the defendant. State v. Kelly, 298 Kan. 965, 970, 318
P.3d 987 (2014).

McGinley alleges the district court erred in finding Ingels competently represented
him because she failed to advise him of a voluntary intoxication defense and failed to
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adequately research his prior Missouri conviction for armed criminal action. We will
separately analyze the two complaints.

Voluntary intoxication may be used as a defense to negate the intent element of a
specific intent crime. State v. Seba, 305 Kan. 185, 211, 380 P.3d 209 (2016) . In this case,
possession of a controlled substance with intent to distribute is a specific intent crime.
State v. Gibson, 30 Kan. App. 2d 937, 953, 52 P.3d 339 (2002). As a result, voluntary
intoxication was a potential defense to the charges of possessing methamphetamine and
marijuana with intent to distribute.

Criminal defendants have ultimate control over three decisions: (1) what plea to
enter; (2) whether to waive a jury trial; and (3) whether to testify. State v. Brown, 305
Kan. 413, 425, 382 P.3d 852 (2016). "[A]ll other strategic and tactical decisions are the
exclusive province of the lawyer after consultation with his or her client." Bledsoe v.
State, 283 Kan. 81, 92, 150 P.3d 868 (2007). With regard to strategic and tactical
decisions, the attorney does not need to ask a defendant's permission; a consultation
simply "'implies a general discussion between counsel and the client.'" Brown, 305 Kan.
at 425 (quoting State v. Bafford, 255 Kan. 888, 895, 879 P.2d 613 [1994]). But strategic
choices based on less than a complete investigation are reasonable only to the extent that
reasonable professional judgment supports the limitation on the investigation. State v.
Butler, 307 Kan. 831, 854, 416 P.3d 116 (2018).

McGinley argues that Ingels did not reasonably investigate a voluntary
intoxication defense and failed to inform him that the defense could be raised at trial.
McGinley asserts Ingels provided incompetent representation by failing to investigate the
amount of drugs he consumed, the time he ingested them with reference to his arrest, and
the failure to request additional drug testing on his blood sample.

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Although Ingels did not tell McGinley about a voluntary intoxication defense, they
had discussed his intoxication and Ingels explained to McGinley that his intoxication
would not help his defense. According to Ingels, she decided not to pursue a voluntary
intoxication defense for several reasons. First, this defense would require McGinley to
admit he had drugs in his system when arrested, which would be counterproductive to a
defense against the drug charges. Second, the State could easily overcome the voluntary
intoxication defense because intent to distribute is measured over a length of time and not
just at the time of arrest.

A third reason Ingels did not pursue a voluntary intoxication defense was to avoid
suborning perjury from McGinley. An attorney's duty of candor prevented Ingels from
knowingly offering evidence she knew to be false. Kansas Rule of Professional Conduct
3.3(a)(3) (2019 Kan. S. Ct. R. 350). McGinley had disclosed to Ingels that he "was faking
it" during that part of his arrest when he acted unruly. McGinley also provided
inconsistent factual accounts to Ingels during their discussions.

Ingles reasonably expected that a voluntary intoxication defense would be
unsuccessful and counterproductive to McGinley's defense strategy. The State had strong
and compelling evidence that McGinley possessed methamphetamine and marijuana with
intent to distribute given the large amount of drugs and cash, the scales and packaging
materials found with the drugs, and the weapons in the vehicle. See Gibson, 30 Kan. App.
2d at 953. Of course, the effect of a defense strategy on the jury is an appropriate
consideration to take into account when determining whether to raise that defense. See
State v. Mason, No. 117,735, 2018 WL 4517354, at *7-8 (Kan. App. 2018) (unpublished
opinion), rev. denied 309 Kan. ___ (June 24, 2019).

All things considered, Ingels' decision to forego a voluntary intoxication defense
was an exercise of reasonable professional judgment based on substantial competent
evidence that such a defense would be unsuccessful and potentially counterproductive.
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As a result, the district court did not err by ruling that Ingels provided competent
representation.

Next, we consider the second basis for McGinley's claim that defense counsel was
incompetent—informing him of an inaccurate criminal history score.

When the plea agreement was made, Ingels, McGinley, and the State believed
McGinley's criminal history score would be calculated as a B. This predicted score was
calculated assuming that McGinley's prior Missouri conviction for armed criminal action
would be classified as a person felony in Kansas. However, the armed criminal action
was classified as a nonperson felony and McGinley's criminal history was scored a C. As
a result, McGinley's presumptive sentencing range for his base offense was lower than
the parties believed when McGinley pled no contest to the charges.

A mutual mistake about a defendant's criminal history at the time of plea
negotiations and the plea hearing is not an automatic basis for withdrawing a plea. State
v. Schow, 287 Kan. 529, 543, 197 P.3d 825 (2008). But "the district court may consider
the circumstances giving rise to the mutual mistake to the extent they may implicate the
factors applicable to the existence of good cause to withdraw a plea." 287 Kan. at 546.

The Kansas Supreme Court found reversible error when a district court failed to
consider the Edgar factors in determining whether the parties' mutual mistake on the
defendant's criminal history amounted to good cause to withdraw the plea. Schow, 287
Kan. at 546. The Schow court outlined some case specific issues about the mutually
mistaken criminal history that impacted whether counsel provided competent
representation in that case. First, defense counsel withdrew from the case before
sentencing to protect Schow's interests. Second, our Supreme Court noted that
information about the prior convictions which resulted in a higher than anticipated
criminal history score was in a prior PSI report from the same district court. As a result,
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the Supreme Court questioned whether it was reasonable for defense counsel to rely on
the State's representation of the prior convictions when the accurate prior criminal history
was apparent from the court's record. Finally, the Schow court questioned whether
defense counsel failed to understand or apply the sentencing guidelines.

At the hearing on McGinley's motion to withdraw pleas, Ingels testified about her
investigation into McGinley's criminal history and the advice she provided:

"[THE PROSECUTOR:] And the only issue was we all believed that armed
criminal action would be a person felony?
"[INGELS:] It is a person felony in Missouri, I looked into that.
"I just—obviously, I don't know how everything's going to convert, as you never
do, and when it converted under the Kansas law, it converted to a nonperson felony.
"[THE PROSECUTOR:] So even though it's a person felony in Missouri, it was
scored here as a nonperson?
"[INGELS:] Correct, and when I researched it, I was under the assumption that it
would convert here as a person felony and that's what I wanted to advise him of.
"It's always better, in my opinion, error on the side of caution of higher and then
have it be less, which benefits them, then presume he's a C and have him come back as a
higher B, rather than the other way around.
"[THE PROSECUTOR:] Be better to tell him he's a B and it be a C, than saying,
you're a C and then all of a sudden, wow, it's a lot more time?
"[INGELS:] Right, and I always tell them it's not a guarantee because I can't—I
don't have all your priors and I'm not in charge of writing the PSI's and I can't make a 100
percent accurate prediction on what it will be, but I did research it and armed criminal
action is a person felony in Missouri."

Ingels showed that she understood and applied the sentencing guidelines to
McGinley's criminal history. Unlike the information available to counsel in Schow, no
prior Kansas PSI report was available which would have alerted Ingels about how his
Missouri armed criminal action conviction would be classified in Kansas. Moreover,
Ingels did not guarantee that McGinley's criminal history would be scored a B.
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We certainly acknowledge that Kansas' evolving standards on classifying prior
out-of-state convictions has made it difficult for defense counsel to advise criminal
defendants with certainty regarding how a particular prior conviction will be calculated as
part of a criminal history score. See State v. Weber, 309 Kan. 1203, 442 P.3d 1044
(2019); State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018); State v. Dickey, 301 Kan.
1018, 350 P.3d 1054 (2015).

In short, unlike the district court in Schow, in the present case the district court
considered the Edgar factors in determining whether the parties' mutual mistake of
McGinley's criminal history score constituted good cause to withdraw his pleas. We are
persuaded that the district court did not abuse its discretion by finding that Ingels
provided competent legal representation despite overestimating McGinley's criminal
history score.

Fairly and Understandingly Entered Plea

With regard to the second Edgar factor, the district court found that McGinley
fairly and understandingly entered his pleas of no contest. In response, McGinley reprises
his earlier argument and asserts that the parties' mutual mistake about his criminal history
score rendered his pleas unknowingly made.

When entering his pleas, McGinley testified that he understood the charges against
him and the possible penalties. McGinley understood that by pleading no contest he
would waive his constitutional right to a jury trial and would give up any defenses. The
district court advised McGinley that his sentence would depend on the number and kind
of prior convictions in his criminal history. McGinley agreed that he and Ingels discussed
his criminal history.

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Unlike in Schow, the district court made no findings on McGinley's expected
criminal history score or otherwise suggested that McGinley's criminal history would be
scored a B. Additionally, Ingels testified that the plea offers did not hinge on McGinley's
criminal history score. Neither the plea agreement nor the discussion at the plea hearing
predicted that McGinley would receive a B criminal history score. Instead, the district
court advised McGinley of the maximum possible sentences corresponding to his crimes.

We consider the warnings about maximum possible penalties McGinley received
during the plea hearing as support for the district court's finding that McGinley's pleas
were fairly and understandingly made. See State v. Lackey, 45 Kan. App. 2d 257, 270,
246 P.3d 998 (2011). Substantial competent evidence supports the district court's finding
that McGinley fairly and understandingly entered his no contest pleas.

No Coercion or Mistreatment

McGinley next challenges the district court's finding that he was not misled,
coerced, unfairly taken advantage of, or mistreated. McGinley contends the State engaged
in prosecutorial vindictiveness which coerced him into pleading no contest when it
threatened to withdraw all plea offers and possibly file an upward departure if he
obtained new counsel and, as a result, the trial was continued.

The parties agree that McGinley sought the plea agreement from the State three
days before trial was to begin. When McGinley questioned about replacing his attorney,
the State responded that it would not consider the plea deal and may file a motion for an
upward departure if the trial date were continued. The dispute is whether the State's
negotiating conditions were a valid exercise of prosecutorial discretion or so coercive that
McGinley should be permitted to withdraw his pleas.

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A criminal defendant has no constitutional right to a plea agreement. State v.
Morris, 298 Kan. 1091, 1104, 319 P.3d 539 (2014). That said, a defendant's right to due
process prevents the State from punishing or retaliating against the defendant for
exercising a legal right. Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L.
Ed. 2d 604 (1978). As the United States Supreme Court observed: "But in the 'give-and-
take' of plea bargaining, there is no such element of punishment or retaliation so long as
the accused is free to accept or reject the prosecution's offer." 434 U.S. at 363.

Our court has found no improper coercion when a prosecutor informs a criminal
defendant that no further plea deals will be considered if the defendant rejects the offer at
hand. State v. Montgomery, No. 118,558, 2019 WL 1303168, at *4-5 (Kan. App. 2019)
(unpublished opinion), petition for rev. filed April 19, 2019. And McGinley concedes,
"there was nothing wrong with the prosecution stating that if [he] delayed accepting the
plea beyond the pretrial hearing date that the plea would no longer be available." Instead,
McGinley suggests the State's warning that it would withdraw the latest plea offer and
consider filing an upward departure impermissibly coerced him into accepting the plea
offer and refrain from replacing defense counsel.

Our Supreme Court addressed claims of prosecutorial vindictiveness during plea
negotiations in State v. Smallwood, 264 Kan. 69, 77-78, 955 P.2d 1209 (1998). In
Smallwood, the defendant claimed that the State's threat to reindict him on a more serious
charge of felony murder if he refused to plead guilty to second-degree murder constituted
prosecutorial vindictiveness. However, our Supreme Court rejected Smallwood's claim
because the State merely presented Smallwood with the alternatives of foregoing trial or
face a charge for which he was plainly subject to prosecution.

Relying on Smallwood, our court found no improper coercion to support a plea
withdrawal when the State threatened to refile charges in separate complaints—which
would have resulted in a significantly higher possible total sentences—if the defendant
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did not accept a plea agreement. Diaz v. State, No. 116,806, 2018 WL 475511, at *5
(Kan. App.) (unpublished opinion), rev. granted 308 Kan. 1593 (2018). The Diaz court
reasoned, "the State's threatened restructuring of the charges does not appear to have been
an attempt to avoid taking a dubious case to trial and, as in Smallwood, the charges
against Diaz were ones for which he was 'plainly subject to prosecution.'" 2018 WL
475511, at *5.

In this case, the State's warning that it would withdraw the latest plea offer and
might move for an upward departure if the trial date was continued because McGinley
obtained new counsel did not amount to prosecutorial vindictiveness or impermissible
coercion.

The evidence suggests the State's purpose in advising McGinley of its intent to
withdraw its latest plea offer and consider moving for an upward departure if McGinley
proceeded to discharge his attorney was to prevent delaying the trial which was only
three days away—not to retaliate against McGinley for exercising his right to effective
counsel. As the State explained, it would have considered moving for a departure "if we
were to have to reset this matter for trial if he were to get a new attorney." The district
court also observed that when McGinley initially accepted the plea agreement, all parties
were prepared for the jury trial. It is also noteworthy that McGinley had previously
continued the preliminary hearing to seek different counsel. The State's purpose to
prevent McGinley from any further delays in the commencement of jury trial was not an
improper motive that indicates prosecutorial vindictiveness.

The plea agreement McGinley sought three days before trial was not the first plea
offer made in this case. Rather, the parties engaged in extensive plea negotiations during
the criminal litigation. And McGinley made several plea offers to the State before the
final agreement materialized. In one instance, the State accepted McGinley's offer for a
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recommended 120 month sentence, but McGinley later abandoned this plea agreement
after he was unhappy with the charges involved in the agreement.

Moreover, this is not a situation where McGinley was threatened with either
proceeding to trial with ineffective counsel or accepting a plea deal. The district court
noted that Ingles "is a very experienced defense counsel" and found that she provided
competent representation during the plea negotiations. The district judge also believed
that Ingels would have provided effective representation at trial despite McGinley's
discontent:

"So I was aware that Mr. McGinley wasn't happy with Ms. Ingels and with his
representation, but also in the back of my mind, I didn't know if anyone would meet Mr.
McGinley's approval and the Court's feeling is at the time I concluded that Ms. Ingels
could provide effective aid in representing the defendant, Mr. McGinley, and could
present whatever defenses they might have discussed or thought might be there."

Like the greater charge in Smallwood, McGinley was plainly subject to an upward
sentencing departure and the State possessed evidence supporting that departure. When
determining whether substantial and compelling reasons for a sentencing departure exist,
a district court may consider whether a drug crime was committed as part of a major
organized drug manufacture, cultivation, or distribution activity. K.S.A. 2018 Supp. 21-
6816(a)(1).

A major organized drug manufacture, cultivation, or distribution activity may be
shown if: (1) the defendant "derived a substantial amount of money or asset ownership
from the illegal drug activity"; (2) there was a "presence of manufacturing or distribution
materials such as, but not limited to . . . scales or packaging material"; and (3) the
defendant possessed "large amounts of illegal drugs or substantial quantities of controlled
substances." K.S.A. 2018 Supp. 21-6816(a)(1)(A), (D), and (F). In the present case, the
State possessed evidence supporting these three factors because a search of McGinley's
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vehicle revealed $30,135, scales, packaging materials, and substantial amounts of
marijuana and methamphetamine.

Finally, McGinley testified that he did not consider the State's warnings as a
threat. Instead, at the plea hearing, McGinley responded that no one forced or threatened
him to enter no contest pleas. And McGinley informed the district court that he entered
the pleas freely, voluntarily, knowingly, and of his own free will. As a result, we
conclude the district court did not err by finding that McGinley was not coerced into
entering into the plea agreement.

In summary, we find the district court properly applied the three Edgar factors to
the facts of this case, McGinley failed to establish good cause for his plea withdrawals,
and the district court did not abuse its discretion by denying McGinley's motion to
withdraw pleas.

BIDS ATTORNEY FEES

McGinley contends the district court erred when it ordered him to pay $1,585 to
reimburse BIDS attorney fees expended for his legal representation. McGinley claims the
district court failed to satisfy the requirements of K.S.A. 22-4513 and State v. Robinson,
281 Kan. 538, 543-44, 132 P.3d 934 (2006) by neglecting to explicitly consider his
financial resources and the burden that payment would impose on him.

This issue involves interpreting K.S.A. 22-4513. Interpretation of a statute is a
question of law over which we exercise unlimited review. State v. Hernandez, 292 Kan.
598, 609, 257 P.3d 767 (2011).

Under K.S.A. 22-4513(b), when assessing BIDS attorney fees, a district court
"shall take account of the financial resources of the defendant and the nature of the
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burden that payment of such sum will impose." Our Supreme Court in Robinson
explained that a "sentencing court . . . must consider the financial resources of the
defendant and the nature of the burden that payment will impose explicitly, stating on the
record how those factors have been weighed in the court's decision." 281 Kan. at 546.
The remedy for a sentencing court's failure to make these explicit findings is to remand to
the district court for such findings. See 281 Kan. at 548.

At sentencing, McGinley requested that the district court waive any payment of
the BIDS attorney fees. The State argued that McGinley would have "some ability to earn
some money while in prison" and requested that allotments from his prison earnings be
used to pay the BIDS attorney fees. The district court concluded, "Very well. The Court
will order that Mr. McGinley pay attorney's fees of $1,585."

Contrary to the requirements of K.S.A. 22-4513(b) as discussed in Robinson, the
district court failed to explicitly discuss McGinley's financial resources or the burden that
payment of BIDS attorney fees would impose on him. The district court also did not state
on the record how it weighed those two factors in ordering McGinley to reimburse
$1,585 in BIDS attorney fees. Accordingly, we vacate the BIDS attorney fees
reimbursement order and remand to the district court to reconsider its order in
compliance with K.S.A. 22-4513(b) and Robinson.

Affirmed in part, sentence vacated in part, and case is remanded with directions.