State v. Pillow

1

NOT DESIGNATED FOR PUBLICATION

No. 117,136

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CLIFTON PILLOW,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; BRUCE C. BROWN and STEPHEN J. TERNES, judges.
Opinion filed March 9, 2018. Affirmed.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, P.J., SCHROEDER, J., and BURGESS, S.J.

PER CURIAM: Clifton Pillow appeals the denial of his presentence motion to
withdraw his plea. Pillow alleges his plea was not fairly and understandingly made
because he did not realize the district court would find him guilty based on his plea of no
contest. Pillow also contends his counsel pressured him into accepting the plea. We
affirm.



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FACTUAL AND PROCEDURAL BACKGROUND

The State charged Pillow with aggravated battery, a severity level 4 felony. A jury
trial was scheduled for May 2, 2016. Before trial began, Pillow entered into a plea
agreement and pled no contest to severity level 7 aggravated battery. As part of the plea
agreement, the State agreed to request the low number in the sentencing grid box. Pillow
was free to argue for an alternative disposition. The State intended to request a prison
sentence and request Pillow's sentence run consecutive to any other sentences.

Prior to sentencing, Pillow moved to withdraw his plea. Pillow alleged his
counsel, Jama Mitchell, intimidated and coerced him into taking the plea agreement and
further alleged he was misled with regard to the plea. Both Pillow and Mitchell testified
at the hearing on the motion to withdraw a plea.

Pillow testified he was coerced into entering a plea. Pillow indicated he signed the
plea agreement but did not read or understand it. Pillow claimed he did not read the
defendant's acknowledgment of rights and entry of plea form before signing it because he
was rushed. Pillow alleges he did not understand a no contest plea was "basically
pleading guilty" until he got back to the jail and other inmates explained it to him. Pillow
testified he assumed his no contest plea "was like a not guilty plea" and did not
understand the judge when he explained the ramifications of taking a plea. Pillow "was
just ready to get it over with." Pillow indicated he did not believe Mitchell was prepared
to go to trial.

Mitchell testified Pillow wanted a plea offer with either probation, concurrent
sentences with his prior Oklahoma conviction, or a misdemeanor charge. She told Pillow
a jury could likely be convinced to convict him of severity level 7 aggravated battery, but
the jury could convict him of severity level 4 aggravated battery. Mitchell indicated she
subpoenaed the witness Pillow requested and had been preparing to go to trial for weeks.
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Mitchell testified the State's final plea offer was for the low number of the grid box with a
plea of no contest and Pillow would be free to argue whatever he wanted. Mitchell
believed she had plenty of time to discuss the decision with Pillow and did not feel
rushed. Mitchell testified she did not threaten, coerce, or force Pillow into accepting a
plea so she would not have to try the case. Mitchell indicated Pillow was initially hesitant
to accept the plea, but she did not speak with him long before he accepted the plea
agreement. Finally, Mitchell testified she read Pillow both the plea agreement and the
defendant's acknowledgment of rights and entry of plea.

The same district court judge who presided over the motion to withdraw a plea
hearing also presided over Pillow's plea. He recalled Pillow receiving ample time to
discuss his options with his attorney. The district judge also reviewed a transcript of the
plea hearing and noted he had discussed the ramifications of entering a no contest plea
multiple times before accepting Pillow's plea. The district judge noted the transcript even
indicated a jury was waiting downstairs if Pillow preferred to proceed to a jury trial. The
judge noted Pillow did not seem shocked or surprised when he was pronounced guilty.
The district judge concluded:

"Pillow's testimony today was—it was vague at times, I felt at times that it was evasive
and clearly conflicts his sworn testimony to me at the time of taking this plea. That is my
conclusion is that this is a case of buyer's remorse. Once the plea's done and Mr. Pillow is
back in jail and reflects and the fact that the trial's looming over him fades away, I think it
is simply buyer's remorse, which is not good cause."

The district court denied Pillow's motion to withdraw his plea.

Pillow subsequently filed a motion for durational or disposition departure. The
district court denied his motion and sentenced Pillow to 29 months' incarceration. Pillow
appealed.

4

THE DISTRICT COURT DID NOT ERR WHEN IT DENIED
PILLOW'S MOTION TO WITHDRAW HIS PLEA

Pillow argues the district court erred when it denied his motion to withdraw his
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. 2016 Supp. 22-3210(d)(1). A judicial action constitutes an abuse of discretion if
(1) no reasonable person would take the view adopted by the trial court; (2) the action is
based on an error of law; or (3) the action is based on an error of fact. State v. Marshall,
303 Kan. 438, 445, 362 P.3d 587 (2015). On appeal, the defendant must establish that the
trial court abused its discretion in denying a presentence motion to withdraw plea. State v.
Schaal, 305 Kan. 445, 449, 383 P.3d 1284 (2016). "Applying an abuse of discretion
standard does not involve reweighing evidence or assessing witness credibility; we defer
to district court fact finding in these matters." State v. Reu-El, 306 Kan. 460, 472, 394
P.3d 884 (2017).

Three factors, often referred to as the Edgar factors—after State v. Edgar, 281
Kan. 30, 36, 127 P.3d 986 (2006)—generally guide a district court's consideration of
whether a defendant has demonstrated the good cause required by K.S.A. 2016 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). 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).

5

Pillow makes two arguments. First, he argues his plea was not fairly and
understandingly made. Pillow contends he did not believe pleading no contest would
result in a finding of guilt. Pillow also argues the plea was a product of his counsel's
pressure despite his making clear he would only accept a plea if the State agreed to
recommend probation and concurrent sentencing. Neither argument is persuasive.

At the plea hearing, the district judge specifically asked Pillow, "Now, you
understand by pleading no contest, if I accept that plea, you will be found guilty? You
understand that?" Pillow responded, "Yes, sir." Later, the judge reiterated, saying:

"The bottom line is, Mr. Pillow, by entering a plea today there will be no trial,
you'll be admitting the charge is true, . . . and I'll find you guilty just as if you'd had a trial
in front of a jury where they had found you guilty. You understand that?"

Pillow again indicated he understood.

At the evidentiary hearing, Pillow also testified he felt rushed and did not believe
Mitchell was prepared for trial. In contrast, Mitchell testified she was prepared to try the
case at the time Pillow agreed to the plea. Mitchell indicated they were not rushed to
accept the plea. Although the district court was ready to try the case she had plenty of
time to discuss Pillow's options with him. Further, while Mitchell admitted the plea
agreement did not fulfill any of the objectives Pillow originally gave her, she also
indicated she did not speak with Pillow very long before he stated he would accept the
plea agreement.

At the plea hearing, Pillow testified he wanted to enter into the plea agreement and
no one was forcing, threatening, or promising him anything in order to get him to plea.
Pillow also indicated he was satisfied with Mitchell's services and was satisfied with how
the district court treated him.
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Although Pillow testified he did not understand a no contest plea would result in
him being found guilty and Mitchell pressured him into taking the plea, the district court
determined Pillow's statements at his plea hearing were more credible than his testimony
at the hearing on his motion to withdraw his plea. This district court is in a better position
to assess a witness' credibility. See State v. Fulton, 292 Kan. 642, 647, 256 P.3d 838
(2011). As such, Pillow's plea was fairly and understandingly made, and he was not
coerced into accepting the plea. Pillow did not show good cause and the district court did
not err when it denied his motion to withdraw his plea.

Affirmed.