State v. Rogers

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NOT DESIGNATED FOR PUBLICATION

No. 117,091

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHELSEA A. ROGERS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed February 23,
2018. Affirmed in part and dismissed in part.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, 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: Chelsea A. Rogers appeals her sentence following her no-contest
plea to one count of abuse of a child. She claims the district court erred in releasing the
State from its obligation under the plea agreement when she originally failed to appear at
sentencing because, according to Rogers, the failure-to-appear clause in her plea
agreement was unconscionable. She also claims the district court failed to properly
consider making border box findings under K.S.A. 2017 Supp. 21-6804(q) when it
imposed her sentence. For the reasons stated herein, we reject Rogers' claims.

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On November 13, 2014, Rogers became frustrated with her five-month-old child
when he would not calm down. She placed him in his swing, but when he still would not
calm down after approximately 15 minutes, she took him out of his swing "real fast."
Rogers then bounced him on her knee harder than normal because she was frustrated. She
estimated on a scale from 1 to 10, the amount of force she used was an 8. For several
days after this incident, the infant was "not acting himself" and had been vomiting.
Rogers took the child to the hospital where a CT scan was done. This test showed the
child had a subdural hematoma. The doctor who examined the child believed he was a
victim of child abuse and that he had been shaken. Rogers acknowledged using "too
much force" on the child, and she knew she was wrong. Nevertheless, she said it was an
accident and she did not mean to hurt her child.

On November 25, 2014, the State charged Rogers with one count of abuse of a
child, a severity level 5 person felony. The district court appointed an attorney for Rogers
that same day. On January 2, 2015, Rogers' bond was reduced from $50,000, and she was
released on her own recognizance; she was to be supervised by Pretrial Services, she was
not to use alcohol or drugs, and she was to comply with all orders in two other cases.

Rogers signed a limited waiver/authorization for personal presence at pretrial
matters, waiving her right to be present in person. This document stated, in part, "I
understand I must personally be present when my attorney requires it and/or when my
case is assigned out for preliminary hearing, for trial, for plea, and for sentencing." The
limited waiver also stated, "I agree to be present in person as required by the Court or my
attorney for trial or other proceeding[s]. My failure to appear when required by the Court
will result in forfeiture of my bond and/or additional charges." Rogers also agreed to keep
her contact information up to date with her attorney.

On April 1, 2015, Rogers waived her preliminary hearing and the district court
found probable cause to believe she committed the offense of abuse of a child. She
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entered a plea of not guilty and requested a jury trial. On September 14, 2015, Rogers
waived her right to a jury trial and requested a bench trial, which was scheduled for
October 7, 2015. Between October 7 and December 2, 2015, the bench trial was
continued five times at the defendant's request.

Rogers ultimately signed a plea agreement with the State on January 13, 2016. In
the plea agreement, Rogers acknowledged that the sentencing judge was not bound to
follow the plea agreement and that the judge could impose any lawful sentence. The plea
agreement also disclosed that Rogers' case was a presumptive prison case, and Rogers
understood that "appellate courts generally will not entertain an appeal from . . . a
presumptive sentence, or . . . the denial of a departure motion." The plea agreement
specified that Rogers was free to argue for any lawful sentence. The agreement also
specified that the "State will stand silent at sentencing, except to correct factual
misstatements. The State is not agreeing to recommend probation at the time of
sentencing." Finally, the agreement contained the following language:

"The State will not be bound by this recommendation and may make any other
sentencing recommendation it deems appropriate, including incarceration, in the event
the defendant is arrested, commits a new offense, violates bond conditions or fails to
appear for a court appearance at any time prior to sentencing." (Emphasis added.)

At the plea hearing on January 13, 2016, the State read into the record the
conditions specified in the agreement. Rogers told the judge that she and her attorney had
meetings on two separate occasions to study the plea agreement and she had no questions
about the agreement. The district court informed Rogers that her sentence could range
from 31 months to 136 months in the Department of Corrections. After receiving a
factual basis for the plea, the district court found Rogers guilty of one count of abuse of a
child and ordered a presentence investigation (PSI) report for sentencing. The district
court indicated that sentencing would be before a different judge; however, the court did
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not set a specific date for sentencing. The court told Rogers that she needed to stay in
touch with her attorney as he would provide her with the date and time of her sentencing.

On April 18, 2016, Rogers' bond was revoked and a warrant was issued for her
arrest for failing to abide by the conditions of the Pretrial Services program. The affidavit
supporting the warrant alleged that Rogers had failed to report to Pretrial Services as
directed. The affidavit further stated that all efforts to contact Rogers had failed and her
whereabouts were unknown.

The district court convened Rogers' sentencing on May 5, 2016; however, Rogers
was not present. Her attorney stated he had not had any recent contact with Rogers:

"[T]his was set over from a previous sentencing hearing to allow Ms. Rogers to get an
evaluation done. An appointment was made, which she missed. And, I understand Pretrial
is looking for her as well. I sent her a letter, tried to phone call her, and even sent her an
email. None of them were returned, so I guess we can assume she got them but has
chosen not to make contact, and she does not appear today."

The district court ordered a bond forfeiture and a bench warrant for Rogers for her
failure to appear at sentencing. Rogers was ultimately taken into custody on October 14,
2016. The district court subsequently scheduled her sentencing for November 16, 2016.

At the sentencing hearing on November 16, 2016, the PSI report indicated that
Rogers' criminal history score was an I with the sentence range of 34/32/31 months in
prison. The report indicated that Rogers' case was a "border box" case. The district court
asked the State for a sentencing recommendation. The State replied that because Rogers
failed to appear for sentencing in May, it was requesting to be released from its
obligations under the plea agreement: "specifically the requirement to stand silent."
Rogers did not object to the State's request to be released from the plea agreement. After
consulting with the plea agreement, the district court noted the failure to appear clause,
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and found that Rogers' failure to appear for her previous sentencing hearing "satisfies the
conditions the parties contemplated in that paragraph." The district court released the
State from any promise to stand silent at sentencing, and the court told the prosecutor,
"You're free to recommend whatever you want."

The State recommended imprisonment and, given the degree of harm to the child,
requested the aggravated term of 34 months in prison. Defense counsel requested the
district court to consider making border box findings. Defense counsel listed several
reasons for this request, such as Rogers having no prior criminal history and the
opportunity for her to seek treatment services. Defense counsel referenced a forensic
psychological evaluation, conducted on November 4, 2016, and summarized its findings
that "a non-prison sanction would serve community safety interests if [Rogers] is to take
advantage of them." Given the opportunity to speak, Rogers admitted she was not being
the parent she could be and spoke of her older daughter. Rogers told the district court she
was capable of doing better but needed the right guidance and support.

After hearing the recommendations, the district court specifically addressed
defense counsel's request for border box findings and went through the evaluation report.
The district court noted that the recommendations in the report were contingent on
Rogers' willingness to participate in treatment efforts. The district court expressed doubts
about Rogers' ability to participate in treatment efforts in light of the fact that she had
failed to appear for sentencing. The district court summed up its comments by stating,
"So, I don't think I have enough here to make border box findings." The district court
sentenced Rogers to 34 months' imprisonment and denied her request for probation,
which constituted the presumptive sentence for her crime of conviction. Rogers timely
filed a notice of appeal as to her sentence.



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WAS THE FAILURE TO APPEAR CLAUSE IN ROGERS'
PLEA AGREEMENT UNCONSCIONABLE?

Rogers claims for the first time on appeal that the failure to appear clause in her
plea agreement was unconscionable, so the district court erred in releasing the State from
its obligation to stand silent at her sentencing hearing. Rogers acknowledges that she did
not raise this issue before the district court. In fact, when the State asked the district court
to be released from the plea agreement at the sentencing hearing, Rogers made no
objection to the request. The State argues that this issue is not properly preserved for
appeal. In the alternative, the State argues that the terms of the plea agreement were not
unconscionable and the district court did not err in releasing the State from its obligations
under the plea agreement when Rogers originally failed to appear for sentencing.

Generally, issues not raised before the district court cannot be raised on appeal.
See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). There are several exceptions
to the general rule that a new legal theory may not be asserted for the first time on appeal,
including the following: (1) the newly asserted theory involves only a question of law
arising on proved or admitted facts and is finally determinative of the case; (2)
consideration of the theory is necessary to serve the ends of justice or to prevent denial of
fundamental rights; and (3) the judgment of the district court may be upheld on appeal
despite its reliance on the wrong ground or having assigned a wrong reason for its
decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).

Rogers suggests that this issue can be raised for the first time on appeal because it
is necessary to serve the ends of justice or to prevent the denial of a fundamental right.
She contends her case is analogous to State v. Meyer, 51 Kan. App. 2d 1066, 360 P.3d
467 (2015), where this court considered for the first time on appeal the issue of the State's
violation of a plea agreement to prevent the denial of the defendant's fundamental rights.
But here, the State did not breach the plea agreement; rather, the district court released
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the State from the plea agreement when Rogers failed to appear for sentencing. Rogers'
argument on appeal is that the plea agreement was unconscionable, so Meyer is not
helpful to her claim that the issue should be considered for the first time on appeal.

Other than referring to Meyer, Rogers does not explain why the consideration of
her issue is necessary to serve the ends of justice or to prevent a denial of fundamental
rights. Supreme Court Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 34) requires an appellant to
explain why an issue that was not raised below should be considered for the first time on
appeal. Our Supreme Court has stated that Rule 6.02(a)(5) should be strictly enforced.
State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015). Without deciding whether
Rogers has properly preserved this issue for appeal—and while making it clear that we
are not setting precedent for future cases—we will address the merits of Rogers' claim.

Rogers claims that the clause in her plea agreement that released the State from its
obligations under the plea agreement if she failed to appear at future court hearings was
unconscionable. Whether a plea agreement contains unconscionable terms is a question
of law over which appellate courts have unlimited review. See State v. Urista, 296 Kan.
576, 583, 293 P.3d 738 (2013) (plea agreements are generally subject to contract
principles); State ex rel. Stovall v. DVM Enterprises, Inc., 275 Kan. 243, Syl. ¶ 1, 62 P.3d
653 (2003) (whether a contract contains unconscionable terms is a question of law
subject to unlimited review). A plea agreement is subject to the same legal principles as
any other contract. State v. Marshall, 21 Kan. App. 2d 332, 336, 899 P.2d 1068 (1995).

Rogers notes 10 factors used to determine whether a contract is unconscionable
and highlights as relevant: boilerplate language; the circumstances surrounding the
execution of the contract; an overall imbalance in rights and obligations; and an
inequality of bargaining power. Rogers' main argument is that the failure to appear clause
was unconscionable because she did not negotiate for the clause in her plea agreement.

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Although fundamental contract principles generally are the best means for
enforcing a plea agreement, the courts must be mindful that plea bargaining may require
a different analysis in some circumstances. Urista, 296 Kan. at 583. Rogers fails to
acknowledge that she was represented by counsel throughout her case, including her plea;
she does not claim she was denied the right to negotiate regarding the failure to appear
clause; and she could have refused to enter a plea and forced the State to prove the charge
against her beyond a reasonable doubt at trial. A contract is not unconscionable solely
because of a bad bargain, or even uneven bargaining power. See Wille v. Southwestern
Bell Tel. Co., 219 Kan. 755, 759-60, 549 P.2d 903 (1976).

The State observes that it was Rogers, not the State, who determined whether it
would be held to the promise of standing silent at her sentencing hearing. Further, the
State points out that defendants in felony cases are required by statute to be present at
sentencing, so making the State's obligation to stand silent contingent on Rogers'
presence was not bad faith by the State. See K.S.A. 2017 Supp. 22-3405(a).

Persuasively, this court has previously found that a failure-to-appear clause in a
plea agreement was not unconscionable in State v. Bell, No. 111,063, 2015 WL 1123022,
*3 (Kan. App. 2015) (unpublished opinion), rev. denied 302 Kan. 1012. The material
facts of Bell are analogous here, and the court in that case rejected many of the same
arguments Rogers is making herein. Ultimately, the Bell court determined that there was
nothing unconscionable about requiring a defendant to appear for future hearings in
exchange for receiving the benefit of a plea agreement. 2015 WL 1123022, at *5.

The record in Rogers' case is clear: She entered into a plea agreement with the
State that indicated that the State would not be bound by its commitment to stand silent at
sentencing if Rogers failed to appear for any future court hearings. Rogers failed to
appear at her required appointments with Pretrial Services and at her original sentencing
hearing. A bench warrant was issued for Rogers' arrest and her whereabouts were
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unknown for five months. At the subsequent sentencing hearing, the State requested from
the district court to be released from its commitment to stand silent, and the district court
granted the State's request without objection from Rogers. There was nothing
unconscionable about requiring Rogers to appear at future hearings in exchange for
receiving the benefit of her plea agreement. Accordingly, we conclude the district court
did not err in releasing the State from its obligations under the plea agreement.

DID THE DISTRICT COURT ERR IN FAILING TO MAKE BORDER BOX FINDINGS?

Rogers contends that her sentence is illegal because the district court declined to
make border box findings under K.S.A. 2017 Supp. 21-6804(q) when requested to do so.
The State contends that this court lacks jurisdiction to review a sentence within the
presumptive sentencing range for Rogers' crime of conviction. Interpretation of a
sentencing statute is a question of law, and the standard of review is unlimited. State v.
Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).

The State's argument is persuasive. Under the Kansas Sentencing Guidelines Act,
appellate courts lack jurisdiction to consider appeals from presumptive sentences. See
K.S.A. 2017 Supp. 21-6820(c)(1); State v. Grebe, 46 Kan. App. 2d 741, 745, 264 P.3d
511 (2011), rev. denied 294 Kan. 945 (2012). In particular, this court has held that a
district court's failure to make border box findings is not subject to appeal provided that
the district court imposes a presumptive sentence under the guidelines. See State v.
Whitlock, 36 Kan. App. 2d 556, Syl. ¶ 3, 142 P.3d 334, rev. denied 282 Kan. 796 (2006).
Here, Rogers was convicted of abuse of a child and she received the presumptive
sentence of 34 months' imprisonment. We lack jurisdiction to address Rogers' claim on
appeal that the district court erred in failing to make border box findings to place her on
probation.

Affirmed in part and dismissed in part.