State v. Orona

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NOT DESIGNATED FOR PUBLICATION

Nos. 118,850
118,851

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ARKENTINA ORONA a/k/a TINA ORONA,
Appellant.

MEMORANDUM OPINION


Appeal from Grant District Court; CLINT B. PETERSON, judge. Opinion filed February 8, 2019.
Affirmed.

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

Jessica E. Akers, county attorney, and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., PIERRON and GREEN, JJ.

PER CURIAM: Arkentina Orona pleaded no contest to three counts of unlawful
cultivation or distribution of a controlled substance. She then filed a presentence motion
to withdraw her plea, arguing her attorney had coerced her into accepting the plea
agreement. After an evidentiary hearing, the district court denied her motion. Orona
appeals, challenging the district court's denial of her motion and its use of her criminal
history in determining her sentence. Finding no error, we affirm.

Orona pleaded no contest to two counts of unlawful cultivation or distribution of a
controlled substance in case 16-CR-96 after she sold methamphetamine to a confidential
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informant. She also pleaded no contest to one count of unlawful cultivation or
distribution of a controlled substance in case 17-CR-16 after police found
methamphetamine in her home. At the plea hearing for both cases, the district court
explained the charges and possible sentences. It also advised Orona of her rights,
including the right to be presumed innocent, the right to call witnesses, the right to testify
or not testify, and the right to have the charges against her proven beyond a reasonable
doubt to a jury. Orona told the court that no one had promised her anything or threatened
her. She also told the court that she understood the proceedings and her attorney, Barbara
Nash, had answered all her questions.

Before sentencing, Orona moved to withdraw her plea. She alleged Nash had
pushed her into taking the plea without properly investigating the case or discussing it
with her. The district court held a hearing on the motion at which both Orona and Nash
testified.

Orona told the court she had not been comfortable with the plea deal. She had
wanted to know why she could not get probation, but Nash was always in a hurry and
was never able to sit down and talk to her about it. Just before Orona entered court to
plead, Nash told her she could either take a 9-and-a-half-year prison sentence or a 30-
year sentence.

Orona testified that Nash came to see her in jail only two times, and she stayed for
only five to ten minutes each time. But she later said that Nash had spent 30 to 45
minutes with her going over discovery. She also testified that Nash spent 30 minutes with
her on another occasion trying to help find a bondsman. On cross-examination, Orona
admitted she had met with Nash several times in court.

Unlike Orona's testimony, Nash testified she had visited Orona in jail many times,
and the visits were always longer than five minutes. Between the preliminary hearing and
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the plea hearing, Nash had met with Orona at least twice. Nash explained to Orona the
significance of the testimony at the preliminary hearing and what it would mean at trial.
She also explained the possible sentence based on Orona's criminal history and the
severity of her current charges. She told Orona she was unlikely to get probation. She
denied forcing Orona to take the plea or telling her she would get 30 years in prison if the
case went to trial.

Nash testified the State had offered Orona a deal for seven years before the
preliminary hearing. After the preliminary hearing, the State changed the plea offer to 11
years, but Nash had negotiated it down to 9 years. She met with Orona for a little over an
hour in court before Orona entered her no contest plea. She advised Orona that it was in
her best interest to take the plea offer because of the sentence she faced if they went to
trial. She also told Orona that it was her decision whether to accept the plea agreement.

At the end of the hearing, the district court denied Orona's motion. The court
found Orona was not credible and this was a case of "buyer's remorse." The court noted
Nash spoke with Orona for a long time at the courthouse before Orona entered her plea.
And it pointed out that Orona got a good deal, and probation was not a realistic sentence
for her. The court added that Nash's work was familiar to the court. The court ultimately
sentenced Orona to 48 months' imprisonment in case 16-CR-96, and 62 months'
imprisonment in case 17-CR-16 to run consecutive to her sentence in 16-CR-96. Orona
appeals, and the cases were consolidated.

Orona first argues the district court erred in denying her presentence motion to
withdraw a 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. 2017 Supp. 22-3210(d)(1). On appeal, the defendant must show 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
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of discretion if (1) no reasonable person would take the view adopted by the trial court;
(2) it is based on an error of law; or (3) it is based on an error of fact. State v. Marshall,
303 Kan. 438, 445, 362 P.3d 587 (2015).

Three factors (often called the Edgar factors) generally guide a district court's
consideration of whether a defendant has shown good cause under K.S.A. 2017 Supp. 22-
3210(d)(1) to withdraw a plea before 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 establish "'viable benchmarks'" for the district court when exercising its
discretion, but the court should not ignore other facts that might exist in a particular case.
State v. Schaefer, 305 Kan. 581, 588, 385 P.3d 918 (2016).

The good cause showing for presentence motions to withdraw a plea is a lesser
standard than the manifest injustice showing required for postsentence motions. K.S.A.
2017 Supp. 22-3210(d); State v. Aguilar, 290 Kan. 506, 512, 231 P.3d 563 (2010). In
showing good cause to withdraw a no contest plea, the defendant need not show his or
her counsel was unconstitutionally ineffective. Instead, the defendant may rely on
"'[m]erely lackluster advocacy'" to support good cause under the first Edgar factor. State
v. Schaefer, 305 Kan. 581, 589, 385 P.3d 918 (2016).

On appeal, Orona argues the district court erred in finding she was not coerced
into pleading no contest. She points out she testified she was afraid when she entered her
plea. She also believed if she did not enter the plea, she would receive a 30-year prison
sentence. She asserts "the pressure she experienced to enter a plea substantially hindered
her decision-making ability."

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As the movant, Orona carries the burden to show good cause. See State v. Reu-El,
306 Kan. 460, Syl. ¶ 1, 394 P.3d 884 (2017). At the hearing, Orona testified that Nash
told her if she did not accept the plea, she would receive a 30-year sentence. But the same
judge presided at the plea hearing and at the motion to withdraw plea hearing. That judge
was able to observe Orona at the time of her plea and determine whether her demeanor
comported with her later testimony that Nash forced her to plead. See State v. Macias-
Medina, 293 Kan. 833, 839, 268 P.3d 1201 (2012). And that judge found Orona was not
credible. We do not redetermine witness credibility. As Orona presented no other
evidence to support her claim, she has failed to carry her burden of proof.

Orona cites State v. Denmark-Wagner, 292 Kan. 870, 258 P.3d 960 (2011), in
which the Kansas Supreme Court held that mere pressure from others to enter a plea does
not show coercion that would warrant a plea withdrawal. 292 Kan. at 876-77. Denmark-
Wagner sought to withdraw his plea because family members had pressured him into
accepting it. The court held that this kind of psychological pressure does not rise to the
level of good cause. 292 Kan. at 877.

Orona tries to distinguish her case by arguing she was afraid of the sentence she
faced, and this impeded her decision-making ability. But any pressure Orona felt because
of the sentence she faced resulted from her criminal history and the sentencing
guidelines. See State v. Glover, 50 Kan. App. 2d 991, 999, 336 P.3d 875 (2014). Nash
also testified she had advised Orona of the sentence she was facing and told her accepting
the plea was in her best interest. But "[w]hen an attorney delivers harsh but accurate
advice about the consequences of going to trial rather than taking a plea, that advice does
not constitute undue influence." State v. Taylor, No. 112,442, 2015 WL 6835220, at *4
(Kan. App. 2015) (unpublished opinion). Thus, this is not grounds for finding Orona was
coerced into accepting the plea.

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Next, Orona argues the district court abused its discretion when it relied on
evidence not presented at the hearing. She notes the district court found it was familiar
with Nash's work as an attorney. She contends the court erred in relying on this in
reaching its conclusion, because Nash's prior performance was not relevant to her
performance here.

For support, Orona cites State v. McDaniel, 249 Kan. 341, 819 P.2d 1165 (1991).
The Kansas Supreme Court found the district court had erred when it determined the
defendant's attorney must have informed him of his right to appeal because the attorney
was experienced, even though the attorney testified he could not remember if he had. 249
Kan. at 343-45. The Supreme Court explained: "It is improper for a district court to take
judicial notice of the reputation of a particular individual," and no other evidence
supported the district court's finding. 249 Kan. at 345.

But as the State argues, Orona's case is distinguishable. Here, the district court did
not find that Nash did not pressure or threaten Orona based on its prior interactions with
Nash. Instead, the court commented on prior experiences with Nash in making a
credibility determination between Orona and Nash. Unlike McDaniel, other evidence
supported the district court's decision, specifically Nash's testimony that she did not tell
Orona she would get 30 years if she went to trial. The court did not abuse its discretion in
denying Orona's motion.

Orona also argues the district court violated her Sixth and Fourteenth Amendment
rights under the United States Constitution as recognized in Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when it sentenced her based in part
on her criminal history without first requiring the State to prove her criminal history to a
jury beyond a reasonable doubt. While Orona did not object to the use of her criminal
history in this way, the Kansas Supreme Court has held that appellate courts can consider
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the application of Apprendi for the first time on appeal. State v. Anthony, 273 Kan. 726,
727, 45 P.3d 852 (2002).

Orona concedes that the Kansas Supreme Court has already rejected this argument
in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002), and she raises it now only to
preserve it for possible federal review. We are duty bound to follow Kansas Supreme
Court precedent, absent some indication the Supreme Court is departing from its previous
position. State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). And no such
indication exists here. Thus, the district court did not err in using Orona's criminal history
without first requiring the State to prove it beyond a reasonable doubt to a jury.

Affirmed.