State v. Shaw

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NOT DESIGNATED FOR PUBLICATION

Nos. 113,127
113,128

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROY A. SHAW,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DAVID L. DAHL and JOHN J. KISNER, JR., judges. Opinion
filed February 19, 2016. Affirmed.

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

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BRUNS, P.J., MCANANY, J., and JOHNSON, S.J.

Per Curiam: In this consolidated appeal, Roy A. Shaw appeals from orders
entered by the Sedgwick County District Court in two cases. In 14CR164 Shaw contends
that the district court abused its discretion when it revoked his probation. In 14CR1097
Shaw contends, first, that the district court abused its discretion when it denied his
presentence motion to withdraw his guilty plea, and, second, that the district court erred
when it increased his sentence using prior convictions not proved to a jury beyond a
reasonable doubt. Finding no error, we affirm the district court's challenged decisions.
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FACTUAL AND PROCEDURAL BACKGROUND

On January 24, 2014, the State, in case 14CR164, charged Shaw with theft for
stealing three boxes of Obsession cologne from a JC Penney store. The value of the
property was far less than $1000, and authorities recovered the property as soon as Shaw
left the store. However, the State charged the theft as a severity level 9 nonperson felony
because Shaw had two or more prior convictions of theft. The parties soon reached a plea
agreement. On February 21, 2014, Shaw pled guilty as charged. The State agreed to join
Shaw in requesting that the sentencing judge impose the mitigated sentence in the
applicable sentencing guidelines grid block and, because the parties expected that the grid
block would provide for presumptive prison, grant a dispositional departure to probation.
The district court specifically informed Shaw that his criminal history probably would
call for presumptive prison. Shaw said he understood. The district court also advised
Shaw that agreements on sentencing were recommendations the sentencing court could
reject. Again, Shaw confirmed that he understood.

District Judge John J. Kisner, Jr., called the case for sentencing on April 4, 2014.
As the parties had expected, Shaw's presentence investigation report indicated that
Shaw's criminal history score was B, which placed him in the 9-B presumptive prison
grid block. The judge noted that Shaw's LSI-R score suggested that he was at a high risk
for recidivism. The State then complied with the plea agreement: it requested that the
judge impose the mitigated sentence in the grid block, a term of 13 months, and depart to
probation because Shaw had timely accepted responsibility and because the loss was
temporary and less than typical for a felony.

Before hearing Shaw's counsel and Shaw's allocution, the judge gave voice to
some reservations about probation. Judge Kisner pointed out that Shaw's lengthy criminal
history included several felony theft convictions, aggravated escape, burglary, making a
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false writing, and deprivation of property. Nevertheless, the judge informed Shaw that he
would keep an open mind and wanted to hear what Shaw had to say.

Defense counsel advanced arguments that diminished, somewhat, Shaw's
culpability and emphasized the positive steps Shaw had taken in his job hunting efforts.
Counsel agreed with the State's request for a "no tolerance" approach to probation if the
judge granted it. Shaw then directly addressed the court, explaining that he only stole
because he had no job and no money but promising that he would comply if the judge
gave him a chance at probation.

Initially, Judge Kisner was moved, but not in the direction Shaw desired. The
judge said he intended to depart downward to a 6-month prison sentence but he would
deny probation because of all of the thefts on Shaw's record. Shaw asked for and received
an additional opportunity to address the court. Shaw implored Judge Kisner to grant
probation, explaining that he had a good chance at a job and he was changed man,
pleading "please help me, please, so I can show you that I'm being honest with you."
Judge Kisner was further moved; he allowed Shaw to elect whether he preferred to go to
prison for a reduced term of 6 months, or be granted probation with 60 days of shock
time subject to work release on an underlying grid block 9-B aggravated sentence of 15
months in prison. Shaw continued to beg for outright probation but to no further avail.
Finally, Shaw opted for probation including the shock time with work release and a 15-
month underlying sentence, which Judge Kisner duly imposed.

It appears that Shaw's work release was promptly put into place. It began on
Tuesday, April 8, 2014. But just 2 days later Shaw left the jail on a "clothing" pass, never
to voluntarily return. The State, in case 14CR1097, charged Shaw with aggravated escape
from custody as of April 10, 2014, a severity level 8 nonperson felony. Authorities
apprehended Shaw in early June 2014. The district court appointed Charles Steve Osburn,
the Sedgwick County chief public defender, to again represent Shaw in the new case and
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to continue his prior representation of Shaw in 14CR164 in newly filed probation
revocation proceedings.

Shaw and the State again reached a plea agreement. On June 24, 2014, before
Judge David L. Dahl, Shaw pled guilty as charged to aggravated escape. The State agreed
to recommend a downward durational departure sentence of 9 months. The State
confirmed that it was seeking a prison sentence in 14CR1097 and revocation of probation
in 14CR164; but it acknowledged that Shaw was free to argue for probation and/or
departure in each case and, if probation was revoked in 14CR164, a reduced prison
sentence. The court set sentencing for August 13, 2014, before Judge Kisner. The court
subsequently rescheduled the sentencing at Osburn's request to allow more time for Shaw
to obtain a new drug treatment evaluation.

Prior to sentencing in 14CR1097, Shaw filed a pro se motion to withdraw his plea,
alleging that he did not have sufficient time to consider the plea agreement before
entering the plea. The district court appointed Shaw a new attorney. The district judge
who conducted the plea hearing, Judge Dahl, heard Shaw's motion on December 3, 2014.
Shaw and his former attorney, Osburn, testified.

Shaw contended that he wanted to withdraw his plea to the escape charge because
after pleading he began to fear that Osburn had misled him. Shaw claimed Osburn
assured him he would be placed in drug treatment in his cases by saying "it was a 95
percent sure thing that I would get drug treatment, and that is why I entered the plea."
Shaw asserted that as his sentencing and revocation hearings approached he recalled that
Judge Kisner had not approved the agreed-upon sentencing recommendations in his theft
case. That caused him to file his motion to withdraw the plea.

Osburn denied that he had ever promised Shaw there was a 95 percent chance he
would get drug treatment. In fact, Osburn recalled telling Shaw that probation was
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unlikely, stating: "I told him Judge Kisner had been reluctant to grant him probation and
it was unlikely that he was going to get another shot, but we would ask. But I said it was
unlikely." Osburn obtained a drug evaluation because substance abuse was a "soft spot"
for Judge Kisner and a bid for treatment might appeal to him. Osburn recalled that he and
Shaw had discussed Shaw's poor chances at probation prior to Shaw's plea hearing.

After hearing testimony and counsels' arguments, Judge Dahl concluded that Shaw
failed to show good cause to withdraw the plea and denied his motion. Judge Dahl
announced his decision in detail, finding that Osburn had represented Shaw competently,
that Osburn had not misled or coerced Shaw into the plea, and that from the documents in
the file and the plea hearing record Shaw had made his plea fairly and understandingly.
Regarding credibility, the judge addressed Shaw directly: "[Osburn] never promised you
probation. He never promised or said there was a 95 percent chance of drug treatment.
And that is what he says, and that is credible to me."

The parties then appeared before Judge Kisner for a combined sentencing and
revocation hearing. Shaw requested that the court reinstate his probation in 14CR164 and
grant a dispositional departure to probation in 14CR1097. Judge Kisner revoked Shaw's
probation in 14CR164 on the ground that Shaw had a new felony conviction and
remanded him to prison for the 15-month term originally imposed. In 14CR1097, the
judge sentenced Shaw to 9 months in prison (a downward departure of 9 months from the
standard sentence in grid box 9-B) consecutive to the sentence in 14CR164. Judge Kisner
denied Shaw's request for a dispositional departure to probation for drug treatment and
remanded him to prison for a total term of 24 months.

Shaw filed timely appeals from the denial of his motion to withdraw his guilty
plea and sentencing 14CR1097 and the denial of probation reinstatement in 14CR164.


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ANALYSIS

We consider Shaw's issues on appeal in the order in which he briefed them rather
than chronologically by case number. There is logic to that order: If we were to find that,
as a threshold matter, the district court erred in denying the motion to withdraw the guilty
plea in the more recent case, then the new felony grounds for the revocation of probation
in the earlier case would have been invalid.

The District Court Did Not Err When It Denied Shaw's Motion to Withdraw Plea in
14CR1097

Under K.S.A. 2015 Supp. 22-3210(d)(1), "[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." The trial court should evaluate the following three
factors, commonly referred to as the Edgar factors, in determining whether a defendant
has demonstrated good cause to withdraw his or her 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. State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006);
see State v. Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014); State v. Aguilar, 290 Kan.
506, 511, 231 P.3d 563 (2010). However, a court should not apply these factors
mechanically or to the exclusion of other factors. Fritz, 299 Kan. at 154 (citing State v.
Garcia, 295 Kan. 53, 63, 283 P.3d 165 [2012]).

This court reviews the denial of a presentence motion to withdraw a plea for abuse
of discretion. Fritz, 299 Kan. at 154.

"'Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable,
i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is
based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion;
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or (3) is based on an error of fact, i.e., if substantial competent evidence does not support
a factual finding on which a prerequisite conclusion of law or the exercise of discretion is
based.'" State v. Macias-Medina, 293 Kan. 833, 836, 268 P.3d 1201 (quoting State v.
Ward, 292 Kan. 541. Syl. ¶ 3, 256 P.3d 801 [2011, cert. denied 132 S. Ct. 1594 [2012]).

The movant has the burden of proving an abuse of discretion. Fritz, 299 Kan. at
154. This court does not reweigh evidence or assess witness credibility. State v.
Hartpence, 30 Kan. App. 2d 486, 493, 42 P.3d 1197 (2002). A significant part of
evaluating testimony depends upon seeing the witnesses on the stand and assessing how
they respond to the questions. State v. Scaife, 286 Kan. 614, 624, 186 P.3d 755 (2008)
("[T]he ability to observe the declarant is an important factor in determining whether he
or she is being truthful."). We generally defer to the trial court's factual findings so long
as those findings are supported by substantial competent evidence. See State v. Anderson,
291 Kan. 849, 855, 249 P.3d 425 (2011).

Shaw argues that he should have been permitted to withdraw his plea in
14CR1097 because he was pressured into accepting the plea by his attorney's alleged
assurance that counsel "was ninety-five percent sure that the district court would impose
probation and drug treatment." Additionally, Shaw contends he was not given adequate
time to consider the agreement before he entered it. Framing Shaw's arguments in terms
of the Edgar factors, Shaw claims that he was "misled, coerced, mistreated, or unfairly
taken advantage of" to such an extent that his plea was not voluntarily made.

Shaw relies on State v. Denmark-Wagner, 292 Kan. 870, 877, 258 P.3d 960
(2011), to advance his argument. In Denmark-Wagner the defendant argued that
psychological pressure from his mother and sister caused him to enter his plea. The
Supreme Court denied relief, noting that Kansas courts have repeatedly held that
psychological pressure to take a plea does not, in and of itself, vitiate the voluntariness of
the resulting plea, noting case holdings in similar circumstances in Wippel v. State, 203
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Kan. 207, 209, 453 P.2d 43 (1969) and State v. Bartlow, No. 96,933, 2008 WL 2051672,
at *3-4 (Kan. App.) (unpublished opinion), rev. denied 286 Kan. 1180 (2008). Denmark-
Wagner, 292 Kan. at 876-77. The Denmark-Wagner court cited this court's Bartlow
decision with favor, referring to its holding in the following:

"In Bartlow, the defendant argued that he demonstrated good cause to withdraw his plea
before sentencing because his parents had pressured him into taking the plea. The Court
of Appeals held that, as there was a thorough plea hearing during which the defendant
was informed of his rights, the defendant stated that he understood his rights, and the
defendant stated he was not coerced into pleading guilty, the plea would not be disturbed
because of a defendant's mere '"change of mind."' 2008 WL 2051672, at *3. Absent any
'evidence his plea was made unwillingly or without an understanding of the
consequences,' such a change of mind was not enough to show good cause. 2008 WL
2051672 at *4. Pressure by the defendant's parents was insufficient. 2008 WL 2051672,
at *4." Denmark-Wagner, 292 Kan. at 877.

Shaw argues that the pressure on him was greater than that on Denmark-Wagner
because Osburn, his own attorney, pressured and misled him. Shaw argues that such a
claim, if true, would fall squarely within the second Edgar factor (i.e., whether the
defendant was misled, coerced, mistreated, or unfairly taken advantage of). Shaw's
problem with this argument is that Judge Dahl specifically found that Osburn did not
mislead or coerce Shaw into the plea because Osburn did not make the "95 percent"
statement Shaw claimed. This finding is supported by substantial competent evidence.
Judge Dahl observed Shaw and Osburn when they testified. Osburn denied making the
statement and recalled that, in fact, he had advised Shaw that probation was unlikely.

In addition, Judge Dahl had conducted the plea hearing during which Shaw
acknowledged that he had signed plea documents advising him of his rights, that he had
reviewed the documents with Osburn, that Osburn had left them with him for some days
before the plea hearing, and that he did review them himself before pleading guilty.
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Moreover, Judge Dahl observed Shaw when he entered his plea. The record confirms that
Judge Dahl engaged in an extensive plea colloquy with Shaw where they discussed the
rights Shaw could pursue if he did not enter a plea, the rights he gave up if he did plead,
the range of consequences that could follow his plea, his understanding of those rights
and consequences, his satisfaction with Osburn, that he was not coerced or threatened
into pleading, and that he was not guaranteed probation. All of Shaw's responses and
statements at the plea hearing are consistent with Judge Dahl's conclusions at the plea
withdrawal hearing that Shaw was not misled or coerced into entering his plea, Shaw
received the competent assistance of counsel, and Shaw entered his plea fairly and with
proper understanding.

Further substantial competent evidence supports Judge Dahl's credibility findings.
Shaw contradicted himself during his plea withdrawal hearing testimony. Shaw testified
that he was first shown the plea agreement documents on the same day he entered his
plea. Upon further questioning, though, Shaw acknowledged that Osburn presented the
agreement documents to him at the jail some time before the plea hearing, reviewed them
with him, and left him copies which he read through on his own in the days leading up to
the plea hearing. Shaw's own testimony, both at the plea hearing and the plea withdrawal
hearing, did not support his claim that he was not provided adequate time to consider the
entry of his plea. In addition, the district court's determination that Osburn was credible
and Shaw was not on the "95 percent" assurance claim is supported by substantial
competent evidence.

In light of the overwhelming evidence that Shaw's plea was entered knowingly and
voluntarily after he received accurate advice from counsel, had ample opportunity to
consider the agreement, and engaged in a detailed colloquy with the district court at his
plea hearing confirming in all his answers that his plea was knowing and voluntary, we
conclude that the district court did not abuse its discretion when it denied Shaw's motion
to withdraw his plea.
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The District Court Did Not Err When It Refused To Reinstate Probation In 14CR164

Shaw asserts that the district court erred when it revoked his probation in
14CR164. This court reviews a district court's revocation of probation for an abuse of
discretion. See State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). As we
noted above, the party asserting abuse of discretion bears the burden of proving such
abuse. Historically, once the State has proven a violation of the conditions of probation,
probation revocation is within the sound discretion of the district court. State v. Graham,
272 Kan. 2, 4, 30 P.3d 310 (2001). Although the legislature has now placed limitations on
the district court's power to revoke probation, those limitations do not apply in Shaw's
situation. See K.S.A. 2015 Supp. 22-3716(c)(8) which specifically provides that if the
offender commits a new felony while on probation, as Shaw did as evidenced by his
conviction in 14CR1097, the district court can revoke probation and remand the offender
to prison without having previously imposed an intermediate sanction.

Shaw asserts that the district court abused its discretion when it revoked his
probation, but he does not explain how the court did so. Rather, he argues that reinstating
probation would have allowed him to obtain drug treatment and that "the mitigating
circumstances" he demonstrated outweighed the severity of his probation violation. That
is not the issue we consider on review of a probation revocation. We consider whether the
district court abused its discretion. We find from the record that the district court's
decision to revoke Shaw's probation was not arbitrary, fanciful, or unreasonable, i.e.,
such that no reasonable person would have adopted the position of the district court. Nor
was the court's decision to revoke based on an error of law or fact. The district court did
not abuse its discretion when it revoked Shaw's probation based on his new felony
conviction.



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The District Court Did Not Err in Its Use of Shaw's Criminal History in Shaw's
Sentencing in 14CR1097

Shaw contends that the district court erred when it increased his sentence in
14CR1097 based on a criminal history that included convictions not set out in the
charging document or proved to a jury beyond a reasonable doubt. He relies on Apprendi
v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), for support.
However, Shaw's claim that the court increased his sentence is not completely accurate:
the district court reduced Shaw's sentence to 9 months, which happened to be the
aggravated term within grid block 8-I, the grid block that would have applied had the
district court refused to rely on Shaw's prior conviction criminal history. See K.S.A. 2015
Supp. 21-6804; K.S.A. 2015 Supp. 21-6820(c)(1)(No appeal from presumptive sentence).
Nevertheless, it is correct that the district court's criminal history finding moved Shaw
into the presumptive prison grid block 8-B, although we fail to see how even that finding
prejudiced Shaw in light of the sentencing facts in this case.

At any rate, Shaw acknowledges that the Kansas Supreme Court has rejected
essentially the same Apprendi contentions he now advances. See State v. Ivory, 273 Kan.
44, 41 P.3d 781 (2002). Nevertheless, Shaw includes this issue "to preserve [it] for
federal review." Our Supreme Court has "repeatedly confirmed Ivory's holding on
numerous occasions thereafter." State v. Castleberry, 301 Kan. 170, 191, 339 P.3d 795
(2014). Our Supreme Court has shown no indication that it is reconsidering Ivory, and we
are bound by its precedent. See State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d
1027 (2011), rev. denied 294 Kan. 946 (2012). We affirm the district court on this issue.

Affirmed.