State v. Smith

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NOT DESIGNATED FOR PUBLICATION
No. 119,234
IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,
v.
ROGER R. SMITH II,
Appellant.



MEMORANDUM OPINION


Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed June 21, 2019.
Affirmed.


Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.



Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek

Schmidt, attorney general, for appellee.



Before ARNOLD-BURGER, C.J., HILL, J., and STUTZMAN, S.J.



PER CURIAM: Roger R. Smith II entered into a plea agreement on the morning of
his jury trial. In line with the terms of his agreement with the State, Smith then appeared
before the judge who was to have presided over his trial and pled guilty to one of his
original charges, attempted first-degree murder, and a second amended charge of
kidnapping. A few days later, Smith filed a pro se document with the court clerk
declaring his desire to withdraw those pleas. New counsel was appointed to represent
Smith and, after an evidentiary hearing, the district court found Smith had not shown
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good cause to allow his plea to be withdrawn under K.S.A. 2018 Supp. 22-3210(d)(1) and
denied Smith's motion. Since we find no abuse of discretion by the district court, we
affirm.

FACTS AND PROCEDURAL BACKGROUND


On January 20, 2016, the State charged Smith with one count of attempted first-
degree murder and one count of aggravated kidnapping, both severity level 1 person
felonies. In April, Steven Wagle was appointed to represent Smith, and a preliminary
hearing was held on August 4 of that year. Prior to the preliminary hearing, the State
extended a plea offer to Smith, proposing that Smith would plead guilty to the count of
attempted first-degree murder and one count of kidnapping, a severity level 3 person
felony. The parties would be free to argue for concurrent or consecutive sentences. Smith
chose to reject that offer and go ahead with the preliminary hearing.


At that preliminary hearing, B.T., the alleged victim in this case, testified that
Smith and three others attacked him on January 5, 2016, in Sedgwick County. During the
course of the attack, B.T. said he was tied up and thrown into the trunk of a car where
Smith stabbed him three times and said: "'You better hurry up and die, bitch, or else I'm
going to kill your mother.'" The group then drove B.T., who was still in the trunk of the
car, to an open field at which point he was taken out, forced to kneel down, and was hit
multiple times in the head, neck, shoulders, arms, wrists, hands, and ankles. B.T. was
unable to see what was being used to strike him, but he described it as "getting hit with a
solid object." B.T. testified he later realized the object used to strike him was likely a
gold machete. In B.T.'s estimation, the attack lasted approximately five minutes.



B.T. testified he was bleeding a lot. He said the attack only ended when he
pretended to be dead and he heard Smith say: "'He's dead, let's go.'" Once they were gone,
B.T. got up and walked toward the nearest trailer, but he passed out on the way. He
eventually made it and was able to get treatment by EMS and was taken to a hospital.
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B.T. testified that at the time of the preliminary hearing, his right "pointer" and middle
fingers were still paralyzed, he was only recently able to make a fist with his left hand,
and he still had scarring.


Wichita Police Detective Steven Molde also testified at the preliminary hearing
about his role in the investigation of the attempted murder of B.T. and specifically about
Molde's interview with Smith. Molde testified that over the course of that interview,
Smith admitted he was present during the attack on B.T. but denied any direct
involvement. Smith told Molde about the machete and said one of the other attackers,
Quentin Gable, got the machete from the vehicle. Molde said Smith told him Gable also
was the one who stabbed B.T. when he was in the trunk.


In the interview with Molde, Smith claimed when they were out in the field, he
handed the machete to Gable but then said: "'[D]ude, I'm going to get out of here. I mean
I'm not trying to . . . be down with, you know, trying to kill somebody.'" Smith did,
however, say he had B.T.'s blood on him and they went to his uncle's house to hose it off.
When they got there, Smith's uncle was home, and Smith said they explained their bloody
appearance by making up a story about hitting an animal and needing to clean themselves
up.


After Molde's testimony, the State rested and Smith declined to present any
evidence. The district court found there was probable cause to believe Smith committed
both counts as charged and bound him over for arraignment. Smith pled not guilty to each
count and the case was set for trial.


A number of continuances followed before the case was set for trial, to begin April

17, 2017. The Friday before trial, April 14, 2017, the court held a hearing to address
various pretrial issues, such as a motion in limine and a request by Smith to exclude some
of the State's photos as unnecessary, repetitive "gruesome photos." Another pending item
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was the need for a hearing to determine the voluntariness of Smith's statements to police.
See Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). However,
rather than take up that issue at the pretrial hearing, the district court and the parties
agreed to hold the Jackson v. Denno hearing before beginning jury selection on the first
day of trial.


When the parties convened for trial on Monday, April 17, 2017, they initially
reviewed some of the evidentiary issues that had been argued and decided on April 14
and then began to organize the exhibits for the hearing on Smith's statements. But before
they could begin that hearing, the following exchange took place:


"[Defense counsel]: Judge, can I have one minute with [counsel for the State] out
of the courtroom?
"THE COURT: Sure.

"(A brief pause in the proceedings, after which the following occurred:)
"[COUNSEL FOR THE STATE]: Judge, can counsel approach?
"THE COURT: Sure.

"(A brief conference was had at the bench between the Court and counsel,
outside the hearing of the reporter, after which the following occurred:)
"THE COURT: Okay, go on the record in the State of Kansas versus Roger R.
Smith, II, Case Number 16 CR 192, back on the record, basically. Counsel for both
parties and [counsel] for the State, [defense counsel] and Mr. Smith is present in the
courtroom.
"Mr. Smith, I got the plea paperwork in front of me."



Defense counsel Steven Wagle would testify later that this shift in the direction of
the proceedings was prompted by Smith telling him he wanted to accept the plea deal
offered the preceding Friday. Wagle then used the first break to ask the State whether the
plea offer was still on the table. After confirming that it was, Wagle used a second break
to go over both the plea agreement and the acknowledgement of rights form with Smith.
He did so by reading the forms to Smith and then discussing them with him privately in
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the jury room. Wagle testified that the second break lasted between 30 and 40 minutes
and the plea offer was essentially the same as the one that had been made prior to the
preliminary hearing eight months earlier.


When the parties returned to the courtroom after the second break, they moved
from preparation for the Jackson v. Denno hearing to a hearing on the plea agreement.
Accordingly, the district court engaged in a colloquy with Smith about Smith's
understanding of the agreement and the consequences of a change in his pleas. That
exchange included a reading of the plea agreement, as well as a reminder that the district
court was not a party to that agreement, was not bound by its terms, and was free to
impose any legal sentence it deemed appropriate. The court also asked whether Smith was
making his own choice after being fully advised by his attorney, and whether he was
satisfied with his attorney's services. Finally, the colloquy included a review of the
factual basis for each count, Smith's admission that the factual bases were accurate, and
Smith's confirmation that he was pleading guilty because he was guilty. The district court
found Smith had "knowingly, willingly, voluntarily with a complete understanding of the
consequences waived his constitutional rights, including his right to a jury trial," accepted
the guilty pleas, and found Smith guilty of one count of attempted first-degree murder, a
level 1 person felony, and one count of kidnapping, a level 3 person felony.


On April 28, 2017, the clerk of the district court filed a pro se document from
Smith, dated April 21, 2017, titled as a "copy of correspondence" from Smith to Wagle.
The first paragraph read:


"Dear Mr. Wagle

"I am writing this to tell you that from what I've heard, I'm able to take back my
plea bargain within 14 days. Well I really want to take back my plea. I felt pressured and
now that I've had time to sleep on it, I really know now I don't want to take that plea.
"Please contact me as soon as possible. File whatever motions or whatever need be. I
expect to see you as soon as you get this, please don't delay as I want this to occur within
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the applicable 14 day time limit. I apologize for any inconvenience this may have
caused."


Wagle eventually received the letter from the clerk and, on June 22, 2017, he filed
a motion to withdraw Smith's plea in which he simply stated: "Defendant has instructed
his attorney to withdraw his plea." On June 30, 2017, Smith filed an additional pro se
motion to withdraw plea, which also stated he had instructed his attorney to withdraw his
plea. The district court set the motion for a hearing on August 17, 2017, and appointed
new counsel to represent Smith. Both motions were filed well before the district court
sentenced Smith.


At the hearing on the motion to withdraw plea, Smith testified on his own behalf
and made a number of different claims, including: (1) he misunderstood the plea offer
and thought he was getting a different plea deal; (2) he felt pressured to accept the plea
deal and Wagle was feeding him answers during the plea colloquy; and (3) he did not
think Wagle would make any effort to defend him at trial because he had earlier told
Smith that they were "not going to win and that the case is a bad case," so he should
consider taking a plea. Wagle also testified and, while his testimony confirmed a few
minor aspects of Smith's claims, it largely refuted them. The district court found Smith
had failed to show good cause to withdraw his plea and denied his motion.


The district court sentenced Smith on February 16, 2018, to 241 months in prison
followed by 36 months of postrelease supervision. Smith timely appeals.


ANALYSIS


Smith raises two issues for our review: (1) that the district court committed error
when it denied his motion to withdraw his guilty pleas; and (2) that the district court
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violated his Sixth and Fourteenth Amendment rights by using his criminal history to
increase his sentence without first proving it to a jury beyond a reasonable doubt.


Motion to withdraw plea



Our Supreme Court has set the standard for review of a motion to withdraw plea
before sentencing:


"K.S.A. 2010 Supp. 22-3210(d)(1) provides that a guilty plea may be withdrawn

'for good cause shown and within the discretion of the court' at any time before the
sentence is adjudged. Based on that statutory language, we have held that '[t]his court
will not disturb a district court's decision to deny defendant's presentence motion to
withdraw his [or her] guilty plea unless the defendant demonstrates that the judge abused
his or her discretion. [Citation omitted].' State v. Denmark-Wagner, 292 Kan. 870, 875,
258 P.3d 960 (2011)." State v. Macias-Medina, 293 Kan. 833, 836, 268 P.3d 1201
(2012).


A district court abuses its discretion if its action is:



"(1) 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; 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. Ward, 292 Kan. 541,
550, 256 P.3d 801 (2011).



In exercising that discretion, "the trial court should evaluate whether '(1) the
defendant was represented by competent counsel, (2) the defendant was misled, coerced,
mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understandably
made.' [Citation omitted.]" State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006).
Otherwise known as the Edgar factors, all of them "need not apply in a defendant's favor
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in every case, and other factors may be duly considered in the district judge's
discretionary decision on the existence or nonexistence of good cause." State v. Aguilar,
290 Kan. 506, 513, 231 P.3d 563 (2010).



Smith claims he showed good cause for withdrawal of his plea in two ways: "(1)
he did not understand the plea, and (2) he was coerced." We find neither of these claims
is persuasive.


With respect to his contention that he failed to understand his pleas, Smith points
to the document we referred to above that he filed with the district court clerk not long
after the plea hearing. The full title was "Copy of Correspondence between Attorney M.
Steven Wagle and Myself Roger Ray Smith II." The relevant part for present purposes
stated:


"I am writing this to tell you that from what I[']ve heard, I'm able to take back my
plea bargain within 14 days. Well I really want to take back my plea. I felt pressured and
now that I've had time to sleep on it, I really know now I don't want to take that plea."


Smith contends this shows he did not understand his plea and he argues that the
defendant's acknowledgment of rights associated with his plea failed to inform him that
his plea could only be withdrawn before sentencing for good cause shown. Smith further
faults the district court for failing, during the plea hearing, to tell him he would only be
able to withdraw his plea by showing good cause to do so. In fact, Smith asserts the
district court "acknowledge[d] that [he] had a misunderstanding about whether he could
withdraw his plea within 14 days of entering it."


After hearing from the parties on the motion to withdraw plea, the district court
discussed each of the Edgar factors. The court recognized those factors are nonexclusive,
but limited its findings to the Edgar factors because it found no support elsewhere for
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Smith's motion. First, the court rejected a claim that Wagle did not represent Smith
competently. The district court commented that if a lawyer tells a defendant that he has a
bad case and is likely to lose—and that is his honest professional assessment—he would
not be doing his job if he kept that opinion from his client. The court noted the experience
and competence Wagle had shown in other serious cases and, while acknowledging
incomplete knowledge about Smith's case, the court remarked that nothing it had seen in
Smith's case was inconsistent with Wagle's reported evaluation.


Next, the district court addressed whether Smith was "misled, coerced, mistreated,
or unfairly taken advantage of" and also found no basis for good cause in that category.
The court was persuaded that the plea Smith accepted was the same he was offered at or
before the preliminary hearing, meaning he had at least eight months to consider that
offer before taking it. The district court was persuaded it was Smith who raised the
question of a plea deal as the parties finished preparations for trial, felt he had allowed
sufficient time for Smith to discuss it privately with Wagle, and considered the fact that
Smith was a college graduate.


Finally, as the district court said, "it ultimately comes down to [whether] this [was]
fairly and understandingly made." The court saw no unfairness and referred again to the
period of time Smith had known of that offer, the fact Smith was a college graduate, and
the content of the plea colloquy between the court and Smith. In the district court's view,
Smith understood his plea. The court did mention both "misunderstanding" and "the 14
days issue" in the same sentence, but not as a finding that Smith might have had some
grounds for wrongly thinking he had a time within which he could withdraw his plea.
Rather, the court mentioned that in conjunction with what the court characterized as
"truly a buyer's remorse situation."



After our review, we have no quarrel whatsoever with the district court's conclusion
that there was no basis for a finding of good cause to allow Smith to withdraw
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his plea. Smith now asserts simply that "from what [he] heard" he could take back his
plea within 14 days. Smith does not disclose how he came by the information about
retractions being allowed within 14 days. He offers no analysis that would lead to a
conclusion that such a misunderstanding should rise to the level of good cause to
withdraw his plea. And significantly, Smith does not explain how an incorrect after-the-
fact belief about his ability to take back his plea could have affected the plea he had
already made.


As the district court verified with Smith during the colloquy, Smith had the time

he needed to discuss the plea with Wagle before appearing before the court, and the court
offered to take breaks to allow Smith to speak further with his counsel if a question arose
after that. Smith confirmed the medications he was taking and the absence of any effect
on his ability to understand the proceedings. The district court's plea colloquy was
thorough and clear, and Smith's responses were equally clear about the rights he was
giving up, the consequences of changing his pleas, and the potential sentence he faced.
Smith has not shown the district court committed any error by finding the plea was
knowingly made.


Smith also argues he was coerced into accepting the plea agreement and changing
his pleas because Wagle told him he had a bad case and would likely be convicted. Based
on those statements, Smith claims that he did not think Wagle would even try to defend
him and therefore he "believed his choices were to go to trial with no defense or even an
effort by defense counsel, or enter a plea." But once again, Smith's argument lacks
support in the record.



Wagle conceded he gave Smith his honest assessment of the case based on a
review of all the evidence and in his view, this was "not a good case for Mr. Smith." But
that is not enough to constitute coercion and is instead exactly what Wagle was obligated
to do under the Kansas Rules of Professional Conduct. See KRPC 2.1 (2019 Kan. S. Ct.
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R. 345) ("In representing a client, a lawyer shall exercise independent professional
judgment and render candid advice."). We are unwilling to conclude that Smith was
coerced into changing his pleas because of the subjective belief he now voices about what
Wagle would or would not have done in his defense. Smith did not contemporaneously
express that concern to the district court, through any statement or response, when he
entered his pleas.


We find Smith has failed to show the district court acted upon any error of fact or
law, or that the district court's reasoning and ruling were inconsistent with the view a
reasonable person might take after considering all of the evidence and the record. In other
words, Smith has shown no abuse of discretion.


Use of Smith's criminal history in his sentencing



Smith's other issue is a claim that the district court violated his Sixth and
Fourteenth Amendment rights when it used his criminal history score and the revised
Kansas Sentencing Guidelines Act (KSGA) sentencing grid to increase his sentence
without first requiring the State to prove the previous convictions to a jury beyond a
reasonable doubt. When a defendant challenges the constitutionality of the revised KSGA
sentencing grid, it is a question of law over which appellate courts exercise unlimited
review. State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002).


Smith acknowledges that this issue has been definitively decided by the Kansas
Supreme Court. See Ivory, 273 Kan. at 44. This panel "is duty bound to follow Kansas
Supreme Court precedent unless there is some indication that the court is departing from
its previous position." State v. Beck, 32 Kan. App. 2d 784, 788, 88 P.3d 1233 (2004). Our
Supreme Court has shown no indication of changing its position on this question.


Affirmed.