State v. Thompson

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NOT DESIGNATED FOR PUBLICATION

No. 117,719

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRADFORD PAUL THOMPSON,
Appellant.


MEMORANDUM OPINION

Appeal from Pratt District Court; FRANCIS E. MEISENHEIMER, judge. Opinion filed June 29,
2018. Affirmed.

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

Tracey T. Beverlin, county attorney, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., STANDRIDGE, J., and RYAN W. ROSAUER, District Judge, assigned.

ROSAUER, J.: Bradford Thompson appeals the district court's denial of his
presentence motion to withdraw his plea of nolo contendere to the severity level 3 drug
felony of distribution or possession with intent to distribute methamphetamine (this court
notes that while both parties briefed that Thompson pled no contest, the journal entry of
sentencing indicates he pled guilty). After entering his plea, Thompson filed a motion to
depart to probation from the presumptive prison sentence. Then before sentencing,
Thompson filed his motion to withdraw his plea. The court heard the motion, denied it,
and sentenced Thompson to the standard sentence, based on his criminal history, of 59
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months in prison. Thompson appeals the district court's denial of his motion to withdraw
plea.

The district court did not err when it denied Thompson's motion to withdraw his
plea.

FACTUAL AND PROCEDURAL BACKGROUND

The State originally charged Thompson with two counts of distribution or
possession with intent to distribute methamphetamine, one a severity level 2 drug felony
and the other a severity level 3. The State based its charges on controlled drug buys
Thompson made to his wife who was operating as a confidential informant for law
enforcement. The court held a preliminary hearing, and in addition to two detectives, the
State called Thompson's wife as a witness. She offered sworn testimony that had several
inconsistencies. Months after the preliminary hearing, Thompson reached an agreement
with the State where he pled no contest to the level 3 drug felony in exchange for the
State dismissing the level 2 drug felony, recommending the standard number of the
appropriate grid-box sentence, recommending an oral recognizance bond after entry of
the plea, and standing silent on Thompson's motion for a dispositional departure.

After entry of his plea, but before sentencing, Thompson filed a motion to
withdraw from the plea agreement. His basis was the inconsistencies with his wife's
testimony at the preliminary hearing. In sum, he argued his wife's lies at the preliminary
hearing, combined with other evidence affecting her credibility, justified his withdrawal
from the plea agreement. The district court held a hearing on the motion, during which it
applied the factors from State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). The court
also considered the preliminary hearing, plea hearing, and the general performance of
Thompson's defense counsel. The court denied Thompson's motion.

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The court then proceeded to sentencing. Thompson argued his departure motion.
In accordance with the agreement, the State stood mute. The court denied the departure
and sentenced Thompson to prison.

Thompson timely filed his appeal. In his brief, he argues four reasons why the
district court improperly denied his motion to withdraw his plea. First, he argues he did
not fairly make his plea because of all the inconsistencies in his wife's testimony at the
preliminary hearing. He believes had he gone to trial, the combination of her
inconsistencies with other evidence he claims he could present would cause a jury to find
his wife not credible and thus acquit him. Second, he argues the district court considered
improper information when denying his motion, specifically his criminal history and
information about his performance on parole. Third, he argues there is no prejudice to the
State in that were the court to permit him to withdraw his plea the State would have
available to it all the evidence it would have had if Thompson had originally requested a
jury trial. Fourth and finally, he argues the first two reasons he believes justify
withdrawal from the plea agreement constitute "good cause" permitting him to withdraw.

ANALYSIS

For Thompson to prevail, he must show the district court abused its discretion
when it denied his motion to withdraw. See State v. Schaal, 305 Kan. 445, 449, 383 P.3d
1284 (2016). When analyzing Thompson's motion, the district court properly applied the
factors from Edgar, 281 Kan. at 36: (1) whether competent counsel represented
defendant; (2) whether someone mislead, coerced, mistreated, or unfairly took advantage
of defendant; and (3) whether defendant fairly and understandably made his plea
agreement. Thompson did not allege any matters affecting the first two Edgar factors.
Rather, he focused his request to withdraw on the third factor, arguing that because of the
inconsistencies with his wife's testimony he did not fairly and understandably make his
plea agreement.
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As the district court correctly noted, the problem with Thompson's argument is
that he was aware of those inconsistencies in his wife's testimony at the time he made the
plea agreement. The record indicates at the time he made his plea agreement, Thompson
was aware of how he might defend the case against him. He was aware of what he was
giving up in exchange for the plea agreement, including that he was giving up the
opportunity to put his wife's credibility at stake before a jury. Therefore, the district court
held Thompson made his plea fairly and understandably.

Thompson also alleges the district court improperly considered Thompson's
criminal history and record of parole performance when deciding whether to let him
withdraw his plea. Thompson is correct that the district court judge mentioned
"difficulties" he had on parole. But it is clear the judge was simply trying to explain a real
motive for Thompson's trying to withdraw the plea. The judge stated:

"Based upon my review of his record and my review of his difficulties that he
had had in parole and following the parole rules based on his DOC history, which may have
triggered the buyer's remorse, I don't know, but in any event, good cause has not been
shown in this case, and I will deny his request to withdraw his plea."

The district court was stating its belief that Thompson was regretting making the deal,
perhaps because of his prior experience with other cases, but the record does not indicate
the court was using Thompson's criminal history as a reason not to allow him to withdraw
his plea. By the time the court made the statement above, it had already, point-by-point,
analyzed the Edgar factors and applied them to its denial of Thompson's motion. The
district court was not considering Thompson's history when determining whether to let
Thompson withdraw his plea.

Thompson argues there was no prejudice to the State were he to withdraw his plea,
and therefore the court should have let him withdraw his plea. He cites no authority in his
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brief to sustain this proposition. That the district court denied Thompson's motion even
though the State could still present a case at jury trial was not an abuse of discretion.

Lastly, in a variation of a cumulative error argument, Thompson makes a general
argument that he had "good cause" to withdraw his plea. In making this argument,
Thompson rehashes the arguments that his plea was not fairly and understandably made
because of the issues surrounding his wife's testimony combined with his allegation the
district court improperly considered his criminal history in its decision. Again, the court
did not abuse its discretion denying this more general argument because Thompson fairly
and understandably made the plea agreement and the court did not use his criminal
history as a basis to deny his motion to withdraw plea.

We affirm the district court.