State v. Williams

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NOT DESIGNATED FOR PUBLICATION

No. 112,228

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LEE E. WILLIAMS,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; ROBERT P. BURNS, judge. Opinion filed September 25,
2015. Affirmed in part, reversed in part, and remanded with directions.

Reid T. Nelson, of Capital and Conflicts Appeals Office, for appellant.

Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., BUSER, J., and WILLIAM R. MOTT, District Judge, assigned.

Per Curiam: Lee E. Williams appeals two rulings of the Wyandotte County
District Court in this criminal case. Williams contends the district court erred by denying
his motion to withdraw his guilty pleas and by revoking his probation. We affirm the
denial of his motion to withdraw guilty pleas, but we reverse the revocation of his
probation and remand for further proceedings.




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FACTUAL AND PROCEDURAL BACKGROUND

On July 2, 2010, the State charged Williams with possession of cocaine with intent
to distribute and no tax stamp. On September 28, 2010, Charles Ball entered his
appearance as Williams' counsel. Almost 6 months later, Williams appeared with Ball,
waived the preliminary examination and arraignment, and entered pleas of not guilty. On
August 8, 2011, Williams appeared for trial with a different attorney. Williams moved to
continue the trial setting, and the case was continued for a status or plea hearing on
September 9, 2011.

On that date, Williams appeared with his newly retained counsel, Josh Allen. The
district court permitted Ball to withdraw as counsel and set the matter for a pretrial
conference. The pretrial conference was continued until November 2, 2011, when the
setting changed to a plea hearing. The plea hearing was then continued until December
16, 2011, but Williams failed to appear. The district court issued a bench warrant for
Williams and, after he appeared on the warrant, continued the matter again.

On April 23, 2012—almost 2 years after he was charged—Williams finally
appeared with Allen for the plea hearing before Judge Robert P. Burns. Judge Burns
placed Williams under oath and asked him whether he was "presently under the influence
of any alcohol or drugs?" Williams said he was not. Williams advised the district court
that he had a high school education, could read and write, had read the Petition to Enter
Plea of Guilty (Petition), and understood all of its terms.

The Petition identified Williams' counsel as Allen. It recited that Williams had
thoroughly discussed the charges, his rights, and the possible sentence with Allen.
Williams signed the Petition under oath, and Allen executed a certificate that he had
counseled Williams on the guilty plea, stating "[t]o the best [of] my knowledge and
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belief, the statements, representations and declarations made by the defendant in the
foregoing petition are in all respects accurate and true."

Judge Burns thoroughly reviewed the Petition with Williams at the hearing,
insuring that Williams understood his rights. Williams also assured Judge Burns he was
satisfied with Allen's legal representation. Williams pled guilty as charged in exchange
for the State's recommendation of probation and "[n]o other departures." While providing
the factual basis, Williams admitted he possessed cocaine with an intent to sell, the crime
occurred in Wyandotte County on or about July 1, 2010, the amount of the drug was
greater than 1 gram, and there was no tax stamp on the cocaine.

Judge Burns accepted Williams' guilty pleas, finding they were knowingly and
voluntarily made, including that Williams was "mentally competent to enter a plea at this
time and . . . he's had the advice of counsel, a competent attorney, with whom he says he
is satisfied."

In advance of Williams' sentencing, the presentence investigation report showed
Williams' criminal history score was B, and that he faced a presumptive prison term for
the possession of cocaine conviction.

On July 27, 2012, Judge Burns sentenced Williams and granted a departure to
probation. The judge warned Williams:

"You know, anytime that someone's placed on probation, it's an opportunity to
avoid going to prison. In your case that's particularly true. The presumption in this case
was for imprisonment. I'm going to honor the plea agreement, but if you come back here,
you understand you've already had your second and final chance, so you've got no margin
for error, you need to do exactly what you're supposed to do."

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Judge Burns signed the order of probation. Williams had already executed the
document under oath after initialing each requirement. The first requirement was:
"Refrain from violation of any local, state, or federal laws." Another requirement was:
"You shall not carry any type of weapon."

On September 5, 2013, Williams' intensive supervision officer filed a motion to
revoke his probation. She alleged: "Failure to refrain from violation of law. Williams is
suspected in the homicide of his girlfriend on 09/04/2013. He presents a significant risk
to public safety at this time." On January 21, 2014, the district court appointed Paul Dent
as Williams' counsel in the revocation matter. Dent was also Williams' counsel in the
murder case pending in Wyandotte County.

We pause to note that the record on appeal in the present drug case contains the
transcript of the preliminary examination from the murder case. The State obtained
addition of the transcript to this record after Williams had filed his initial appellate brief.
In his reply brief, Williams questions whether this transcript is part of the "entire record"
properly before us. See Supreme Court Rule 3.01(a) (2014 Kan. Ct. R. Annot. 20). We
will address that legal issue below. For now, it is sufficient to note that at the preliminary
examination, Judge Robert L. Serra bound Williams over on first-degree murder and
criminal possession of a firearm charges and assigned the case to Judge Burns for jury
trial.

Returning to the present case, on May 6, 2014, Williams filed a motion to
withdraw his guilty pleas in the drug case. Dent argued Williams could file his motion
outside the 1-year limitation because his client "has only recently learned that his primary
counsel, Charles Ball, has been suspended from the practice of law." Dent contended
Williams, "would have filed this motion sooner if he had known that there might be some
question about Mr. Ball's ability to meet his professional obligations."
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On May 14, 2014, Dent filed a supplement to his motion to withdraw plea. He
added an allegation that Williams was "under the influence of drugs or medication at the
time of the plea and did not understand what he was doing or that he had a right to move
to withdraw the pleas."

On May 16, 2014, Williams appeared with Dent before Judge Burns on his motion
to withdraw plea and the State's motion to revoke probation. First, the district court
considered Williams' motion to withdraw plea.

Dent acknowledged that "Mr. Ball . . . was supplanted by Josh Allen, who was
retained as counsel for Mr. Williams, and it was Josh Allen who represented Mr.
Williams at the time of the plea back on April 23rd, 2012." Nevertheless, Dent argued
that Williams had "only recently learned that Charles Ball had been suspended from the
practice of law," and that Williams believed Ball "did not fulfill his professional
obligations as evidenced now by the fact that he's suspended." Dent maintained Williams
was "not aware of a law that there was a one-year limitation" on motions to withdraw
plea. Finally, Dent added, "[M]y client also wants me to state to the Court at the time that
he entered into the plea he was under the influence of drugs or medication."

In his ruling, Judge Burns found no "showing of excusable neglect" in Williams'
filing the motion to withdraw pleas beyond the 1-year time limitation. The judge also
found Williams was "fully aware of what he was doing" when he pled guilty, and as a
result, he had not shown the requisite manifest injustice as required to withdraw the pleas.
Accordingly, the judge denied Williams' motion to withdraw pleas.

Next, the district court addressed the State's motion to revoke Williams' probation
in the cocaine possession case. Although Dent admitted that Williams was bound over for
trial in the subsequent murder case, he did not stipulate to the probation violation. Dent
argued:
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"He has not been convicted of murder, Judge. I know that he's been—I represent him on
the other case, Judge, I'm not about to deny that he's been charged and he's been
arraigned. We had a preliminary hearing. I admit that, Judge. My client has asked me to
deny these allegations upon which they are making their motion."

In response, Judge Burns stated, "I understand. I'm not, obviously, asking him to
concede his guilt." The judge indicated he would "take judicial notice" that Williams was
"charged with one count of murder in the first degree, premeditated murder," that he was
"[a]lso charged with one count of criminal possession of a firearm," and that "a
preliminary hearing was conducted on April 1st, 2014 in front of Judge Serra." Judge
Burns continued: "Judge Serra found probable cause to believe the defendant guilty as
charged and the Court has reviewed that hearing and what ruling Judge Serra made at the
conclusion of that hearing, so I do find sufficient evidence to support" the State's
allegation of a violation. Judge Burns revoked Williams' probation and ordered him to
serve his prison sentence.

Williams appeals.

DENIAL OF MOTION TO WITHDRAW PLEAS

On appeal, Williams contends "because the plea[s were] not voluntary and
knowing, he should be allowed to withdraw [them]." We will not disturb a district court's
denial of a postsentence motion to withdraw plea absent an abuse of discretion. State v.
Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014). Discretion is abused when a judicial
action is arbitrary, fanciful, or unreasonable, or when it is based on an error of fact or
law. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).

K.S.A. 2014 Supp. 22-3210(e)(1) imposes a 1-year time limitation on motions to
withdraw plea. Williams exceeded that limitation, as Dent acknowledged below. The
legislature has provided in such cases: "The time limitation herein may be extended by
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the court only upon an additional, affirmative showing of excusable neglect by the
defendant." K.S.A. 2014 Supp. 22-3210(e)(2).

The State argues that Williams "has shown no excusable neglect." We agree. First,
Williams fails to brief excusable neglect, thereby waiving or abandoning the issue. See
State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013). At most, Williams recites the
excusable neglect arguments raised below, but this is insufficient.

"A failure to support an argument with pertinent authority or to show why the argument
is sound despite a lack of supporting authority or in the face of contrary authority is akin
to failing to brief the issue. Therefore, an argument that is not supported with pertinent
authority is deemed waived and abandoned. [Citation omitted.]" State v. Tague, 296 Kan.
993, 1001, 298 P.3d 273 (2013).

Second, even if we were to consider the time limitation issue, we would not find
merit in Williams' arguments. Beginning with Bell's competence, we agree with the State
that Bell had nothing to do with Williams' plea. Williams pled guilty months after Bell
withdrew from representing Williams' legal interests, and, as the State also points out,
Bell's unrelated suspension from the practice of law was not "prima facie evidence of
ineffective assistance of counsel" in Williams' case.

Another excusable neglect argument Williams raised below was his claimed
ignorance of the 1-year time limitation. Our question, then, is whether such an allegation
establishes excusable neglect. This court has relied on the Black's Law Dictionary's
definition of excusable neglect before. See State v. Delgado, No. 109,601, 2014 WL
1707718, at *3 (Kan. App. 2014) (unpublished opinion), rev. denied 301 Kan. __ (2015).

"excusable neglect . . . A failure—which the law will excuse—to take some
proper step at the proper time (esp. in neglecting to answer a lawsuit) not because of the
party's own carelessness, inattention, or willful disregard of the court's process, but
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because of some unexpected or unavoidable hindrance or accident or because of reliance
on the care and vigilance of the party's counsel or on a promise made by the adverse
party." Black's Law Dictionary 1195-96 (10th ed. 2014).

As the panel noted in Delgado, this definition is consistent with Kansas cases applying
K.S.A. 60-206 and K.S.A. 60-260, which also make allowance for excusable neglect. See
2014 WL 1707718, at *3.

Williams does not make a showing of excusable neglect simply by alleging he was
unaware of the 1-year time limitation. At most, Williams alleges his own carelessness,
inattention, or willful disregard of the district court's procedures. Furthermore, Williams
presented no evidence on the point.

Assuming Williams had presented such evidence, we would conclude the statutes
provided him with constructive notice of the 1-year time limitation. For example, where a
defendant argued his "recent discovery of a statutory provision constitute[d] 'newly
discovered evidence,'" our Supreme Court responded: "The maxim that ignorance of the
law is no excuse is well established, longstanding, and widely known." State v.
Woodward, 288 Kan. 297, 304, 202 P.3d 15 (2009). That well-known maxim also applies
under these circumstances.

Importantly, if Williams survived the 1-year time limitation, he would still have to
show "manifest injustice" to support a withdrawal of his plea. K.S.A. 2014 Supp. 22-
3210(d)(2). On appeal, Williams does not assert that he was under the influence of drugs
or medication, but only that he argued this claim in the district court. In contrast,
Williams swore before Judge Burns that he was not under the influence. At the plea
withdrawal hearing, the district court found Williams was "not only not under the
influence of alcohol or drugs," but he "was fully aware and comprehended what we were
doing there at that time." Given this finding by the district court, Williams' passing
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reference to his argument below, without any evidence to support it, does not prove an
abuse of discretion.

Additionally, Williams claims he "never received any legal advice, whatsoever,
from trial counsel." But Williams again focuses on Bell, who was absent from this
litigation for over 8 months before the guilty pleas. Significantly, Williams made no
substantive allegations in the district court regarding Allen, and he makes none on appeal.
As a result, we disagree that Williams' "contentions, that essentially [he] never received
any legal advice, whatsoever, from trial counsel, went unrebutted." Williams has never
raised ineffective assistance of counsel claims with respect to Allen.

Next, Williams argues issues on appeal that he did not raise before the district
court. These issues are not properly before us. See State v. Kelly, 298 Kan. 965, 971, 318
P.3d 987 (2014). We disallow Williams' arguments for that reason, but also because they
are not meritorious.

Williams argued that at the plea hearing Judge Burns neglected to read the charges
to which he was pleading guilty. Judge Burns stated the following at the plea hearing:

"At this time I'll ask you how you wish to plead to count one. That charges you with
possession of cocaine with the intent to distribute, it's a level 3 drug felony. As to that
charge of possession with the intent to distribute, do you wish to plead guilty or not
guilty?"

Williams maintains this was insufficient because it "left out the date and county of
the allegation." Williams complains that the judge's question for the no tax stamp charge
was similarly insufficient, and that it further "omitted the amount, which is required to be
'in excess of 1 gram.'"

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Williams does not cite authority holding that a district court must recite criminal
charges in detail when taking a guilty plea. The record also does not contain evidence or
even argument below that Williams was ignorant of the charges against him. At the plea
hearing, for example, Williams provided a factual basis for all of the elements appellate
counsel now claims were missing—the venue, the date, and the amount of the drug in
question. This argument is without merit.

Williams also argues Judge Burns did not advise him of his right to trial counsel.
But the Petition informed Williams of his "right to a speedy and public trial by jury," and
"[a]t that trial, and at all stages of the proceedings, the right to the assistance of a lawyer."
Williams told Judge Burns at the plea hearing that he had reviewed the Petition with
Allen, and that he understood its terms. The record does not contain any evidence or even
argument below that Williams was ignorant of his right to trial counsel. This argument
does not establish error.

Given the lack of evidence showing manifest injustice, Williams' citations to the
factors from State v. Edgar, 281 Kan. 30, Syl. ¶ 2, 127 P.3d 986 (2006), are not
persuasive. On the contrary, the record supports the district court's conclusion that
Williams was "represented by competent counsel," was not "mislead, coerced, mistreated,
or unfairly taken advantage of," and that "the plea was fairly and understandingly made."
281 Kan. 30, Syl. ¶ 2. Williams does not show the district court abused its discretion by
denying the motion to withdraw plea.

REVOCATION OF PROBATION

For his second issue on appeal, Williams contends there was insufficient evidence
to prove that he had violated his probation by committing murder. Williams specifically
argues that his admission to being bound over for trial after the preliminary examination
in the murder case was not a sufficient basis to revoke his probation in the present drug
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case. Williams points out that the standards of proof at the hearings differed—probable
cause at the preliminary examination versus preponderance of the evidence at the
probation revocation hearing.

District courts are guided by longstanding standards of review in probation
revocation matters:

"To sustain an order revoking probation on the ground that a probationer has
committed a violation of the conditions of probation, commission of the violation must be
established by a preponderance of the evidence. Once there has been evidence of a
violation of the conditions on which probation was granted, the decision to revoke
probation rests in the sound discretion of the district court." State v. Gumfory, 281 Kan.
1168, Syl. ¶ 1, 135 P.3d 1191 (2006).

Probation revocation hearings are controlled by K.S.A. 2014 Supp. 22-3716(b). In
particular, the State "shall have the burden of establishing the violation." K.S.A. 2014
Supp. 22-3716(b)(2). Importantly, the State acknowledges on appeal that "[t]he district
court revoked Williams' probation based upon the fact that he had been bound over for
trial in his new criminal case."

Williams argues this was not enough, citing in support State v. Bailey, No.
100,918, 2009 WL 2506265, at *1 (Kan. App. 2009) (unpublished opinion). In Bailey,
the district court revoked probation because Bailey had been bound over on new charges
"in another division of the Wyandotte County District Court" and also had been indicted
by a grand jury in Missouri. 2009 WL 2506265, at *1. On appeal, Bailey argued the
district court "erred in revoking his probation based solely on the probable cause findings
made in the new charges in Wyandotte County and in Missouri." 2009 WL 2506265, at
*2.

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Our court in Bailey began by acknowledging, "[t]he State is not obligated to wait
for a conviction on new charges in order to prove a probation violation." 2009 WL
2506265, at *2. The court cited State v. Inkelaar, 38 Kan. App. 2d 312, 314-17, 164 P.3d
844 (2007), rev. denied 286 Kan. 1183 (2008), wherein "the State presented evidence
from a witness and a videotape establishing by a preponderance of evidence that Inkelaar
had stolen money from his employer." 2009 WL 2506265, at *3. The Bailey court then
noted:

"In this case, however, the State put on no evidence other than a copy of the
Missouri indictment and counsel's argument regarding the nature of the pending charges.
It does not seem that the State presented the court with a copy of a preliminary hearing
transcript. Moreover, the trial judge was never a part of the new Wyandotte County
charges. In addition, the record failed to show that the affidavits from arrest warrants or
other evidence that might have risen to a preponderance of the evidence was ever
presented to the court." 2009 WL 2506265, at *3.

The Bailey court concluded that the district court "clearly applied the incorrect
standard in indicating the revocation was based upon the 'probable cause' findings made
in the new cases, rather than based on a preponderance of evidence." 2009 WL 2506265,
at *3. Accordingly, our court held the State had not met its burden:

"Because the trial judge did not preside over the preliminary hearing on the new
charges and because the State presented no evidence other than probable cause findings,
it is questionable whether the State carried its burden of proof when the motion to revoke
Bailey's probation was heard. Moreover, the trial court clearly applied the wrong
standard, probable cause. As a result, we reverse and remand this matter for a new
hearing and for the court to apply the correct standard." 2009 WL 2506265, at *3.

Bailey is analogous, but in the present case, the murder case was assigned to Judge
Burns, and he took judicial notice of it at the revocation hearing. Judge Burns, therefore,
had some evidence before him when he revoked probation. See K.S.A. 60-409; Wentland
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v. Uhlarik, 37 Kan. App. 2d 734, Syl. ¶ 3, 159 P.3d 1035 (2007); In re A.S., 12 Kan. App.
2d 594, 598, 752 P.2d 705 (1988).

Our challenge is to identify the content of the judicial notice. The State asserts
Judge Burns "indicated that [he] had reviewed the transcript of the preliminary
[examination]." The judge did not say so, however. Judge Burns only said he had
reviewed the preliminary examination and Judge Serra's ruling. The transcript of the
revocation hearing certainly does not show that the State presented Judge Burns with the
transcript of the preliminary examination or with any other written statements under oath
as proof of Williams' violation. Indeed, the transcript of the preliminary examination was
produced nearly 2 months after Williams' probation revocation hearing.

We also agree with Williams that the transcript of the preliminary examination in
the murder case is not part of the "entire record" in the present case under Supreme Court
Rule 3.01(a). The entire record is limited to "all original papers and exhibits filed in the
district court," "the court reporter's notes and transcripts of all proceedings," "any other
court authorized record of the proceedings," and "the entries on the appearance docket."
Supreme Court Rule 3.01(a)(1), (2), (4). The improper addition of the transcript of the
preliminary examination to the record on appeal provides another reason not to rely upon
it. See State v. Brownlee, 302 Kan. __, __ P.3d __, 2015 WL 4681185 (2015).

Finally, although Judge Burns did not explicitly say he was ruling on the probation
violation based upon probable cause, neither did he mention the preponderance of the
evidence standard. Where the correct "standard of proof" was "the standard of probable
cause," our Supreme Court refused to "impose a preponderance of the evidence
standard." State v. Ultreras, 296 Kan. 828, 843, 295 P.3d 1020 (2013). Similarly, a
district court may not impose a probable cause standard in place of the preponderance of
the evidence standard. Since the mere fact that Williams was bound over for trial under
the probable cause standard was insufficient evidence to revoke Williams' probation, and
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it appears the wrong legal standard was employed to determine whether Williams
violated his probation, we reverse the district court's order revoking probation and
remand the matter for a new probation revocation hearing.

Affirmed in part, reversed in part, and remanded with directions.