Williams v. State ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,323
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
MICHAEL C. WILLIAMS,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed August 26,
2022. Affirmed.
Kristen B. Patty, of Wichita, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, for
appellee.
Before ARNOLD-BURGER, C.J., SCHROEDER and WARNER, JJ.
PER CURIAM: Michael C. Williams timely appeals the summary denial of his
K.S.A. 60-1507 motion, claiming both his plea and sentencing counsel were ineffective
for failing to advise him of the lifetime registration requirements associated with his
aggravated kidnapping conviction. Williams admits he knew he had to register prior to
entering his plea. We hold the fact registration was for his lifetime is a collateral
consequence of his plea, not a penalty as a result of his conviction. Accordingly, we find
nothing in the record reflects his plea or sentencing counsel provided ineffective
assistance. We affirm.
1
FACTS
In September 2015, the State charged Williams with first-degree felony murder, an
off-grid person felony, and abuse of a child, a severity level 5 person felony. Just over a
year after the State charged Williams, he filed a pro se motion asserting ineffective
assistance of counsel, claiming a conflict of interest with his attorney. The district court
conducted a hearing on Williams' motion, which alleged his trial counsel belittled him,
threatened him with a long prison sentence, used racial slurs, and walked out on him
during a meeting. Counsel responded Williams was facing a lifetime prison sentence for
felony murder with parole eligibility after 25 years. Counsel also explained to Williams
his sentence would more probably than not turn into a life imprisonment sentence
because the Kansas Parole Board is generally not inclined to grant parole after the
completion of the minimum 25-year sentence for a first-degree felony murder conviction.
The district court denied Williams' motion, finding it was more probably true than not his
counsel did not say the things Williams claimed.
Williams continued filing multiple pro se motions, including another claim of
ineffective assistance of counsel. The district court determined there was no material
change in circumstances since the previous ineffective assistance of counsel claim and
denied the motion.
As the case proceeded with his counsel, Williams entered into a plea agreement
and pled guilty to an amended complaint of second-degree murder and aggravated
kidnapping, both severity level 1 person felonies. In exchange for Williams pleading
guilty to both crimes, the plea agreement provided:
• The State agreed to recommend the mid-sentence number on the second-degree
murder charge and the low sentence number on the aggravated kidnapping
charge;
2
• Williams was free to argue for concurrent sentences;
• The State would recommend consecutive sentences; and
• Williams could not seek a dispositional or durational departure.
At the plea hearing, the district court determined Williams fully understood and
appreciated the seriousness of the proceedings and had a complete understanding of the
nature of the charges he was pleading to. Williams affirmatively told the district court he
had a chance to visit with his attorneys about the charges he was pleading to and there
was no reason the district court should refuse to accept his guilty pleas. The district court
acknowledged Williams' prior allegations against his counsel and asked Williams if the
complaints about the way his attorneys represented him impacted his decision to plead
guilty. Williams responded, "No."
Williams also indicated he understood the sentencing court was not bound by the
plea agreement and could impose the same punishment as if a jury had convicted him.
Williams acknowledged he read the acknowledgment of rights and entry of plea as well
as the plea agreement before signing the documents. Williams stated he reviewed the
documents with his attorneys, who were available to answer any questions. The district
court ultimately found a factual basis existed for both counts—second-degree murder and
aggravated kidnapping—and Williams made his pleas freely and voluntarily. The district
court explained:
"Well, Mr. Williams, in a minute I'm going to accept your guilty pleas. You
know, it's obvious from body language that this is a difficult decision for you. And it's an
important decision. I don't want you to feel rushed, and I don't want you to feel like we
have to do this today; it's been added onto the docket. And, you know, if this is the
decision you want to make, sometimes it doesn't get any easier to make hard decisions.
It's just one of those things you've got to do. But before I take your guilty plea, is this
what you want to do?"
3
Williams answered, "Yes."
Williams pled guilty to both charges and acknowledged he would have to register
as a violent offender. A few days after entering his pleas, Williams filed pro se a motion
for dismissal, a motion to withdraw plea, and a motion to dismiss for ineffective
assistance of counsel. The motions all largely set forth the same allegations: Counsel
refused to go to trial, told him to lie to the district court, coerced and tricked him to take
the plea agreement, and withheld evidence from him. Williams also accused one plea
counsel of sexual misconduct. The district court appointed Williams new counsel before
conducting a hearing on the motion to withdraw plea. During the hearing, with the aid of
his new counsel, Williams withdrew his motion to withdraw plea.
The district court sentenced Williams to 195 months' imprisonment for second-
degree murder and 147 months' imprisonment for aggravated kidnapping, with the
sentences to run consecutive for a total term of 342 months. The district court noted
Williams' duty to register but did not mention the length of his required registration. The
journal entry of judgment correctly reflected the registration requirements for each
conviction.
Williams appealed his sentences, and a panel of our court issued an order under
Supreme Court Rule 7.041A (2018 Kan. S. Ct. R. 47), summarily affirming in part and
dismissing in part for lack of jurisdiction. Williams' petition for review to our Supreme
Court was denied.
Williams then filed another pro se K.S.A. 60-1507 motion alleging an unduly
harsh and/or excessive sentence, an unlawful sentence, and that both plea counsel and
sentencing counsel failed to adequately represent him. Counsel was appointed to
represent him.
4
The district court conducted two status conferences and ultimately determined the
files and records of the case conclusively showed Williams was not entitled to relief and
there was no need for an evidentiary hearing. The district court summarily denied
Williams' K.S.A. 60-1507 motion, finding:
• Williams was repeating his arguments from his direct appeal and was barred by
the doctrine of res judicata;
• there was nothing harsh or excessive about his sentence;
• Williams' pleas allowed him to avoid a lifetime prison sentence; and
• his sentencing counsel did, in fact, argue for concurrent sentences at the
sentencing hearing despite Williams' contrary allegations.
ANALYSIS
Williams' K.S.A. 60-1507 Motion Did Not Merit an Evidentiary Hearing
On appeal Williams has reduced the five claims from his K.S.A. 60-1507 motion
to one—both plea and sentencing counsel misled Williams about the plea agreement
because they failed to tell Williams his aggravated kidnapping conviction required
lifetime offender registration. Williams argues he was entitled to an evidentiary hearing
on his claim of ineffective assistance of both plea counsel and sentencing counsel for not
advising him, or misadvising him, of the lifetime registration requirement for an
aggravated kidnapping conviction. Williams acknowledges the record reflects he was told
he would have to register as a violent offender but now claims he did not know it would
require lifetime registration.
The State responds, arguing registration under the Kansas Offender Registration
Act (KORA), K.S.A. 22-4901 et seq., was a collateral consequence of his conviction and
5
even a complete failure to advise him of the requirement to register does not constitute
ineffective assistance of counsel.
A district court has three options when handling a K.S.A. 60-1507 motion:
"'(1) The court may determine that the motion, files, and case records conclusively show
the prisoner is entitled to no relief and deny the motion summarily; (2) the court may
determine from the motion, files, and records that a potentially substantial issue exists, in
which case a preliminary hearing may be held. If the court then determines there is no
substantial issue, the court may deny the motion; or (3) the court may determine from the
motion, files, records, or preliminary hearing that a substantial issue is presented
requiring a full hearing.' [Citations omitted.]" White v. State, 308 Kan. 491, 504, 421 P.3d
718 (2018).
Williams suggests the district court essentially exercised the third option because
the alleged facts did not appear in the original record and, if true, would entitle him to
relief. The State, on the other hand, responds the district court determined Williams'
K.S.A. 60-1507 motion, files, and case records conclusively showed he was not entitled
to relief and correctly denied the motion without an evidentiary hearing. The State's
argument is more persuasive.
When the district court summarily denies a K.S.A. 60-1507 motion, we conduct a
de novo review to determine whether the motion, files, and records of the case
conclusively establish the movant is not entitled to relief. Beauclair v. State, 308 Kan.
284, 293, 419 P.3d 1180 (2018). Here, Williams, as the movant, bears the burden to
establish his K.S.A. 60-1507 motion warrants an evidentiary hearing by alleging more
than conclusory contentions. See Noyce v. State, 310 Kan. 394, 398, 447 P.3d 355 (2019).
A district court must set aside a movant's conviction or sentence if "there has been
such a denial or infringement of the constitutional rights of the prisoner as to render the
6
judgment vulnerable to collateral attack." K.S.A. 2021 Supp. 60-1507(b). The right to
effective counsel is embodied in the Sixth Amendment to the United States Constitution
and "plays a crucial role in the adversarial system." Strickland v. Washington, 466 U.S.
668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see Chamberlain v. State, 236
Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting Strickland).
"To prevail on a claim of ineffective assistance of trial counsel, a criminal
defendant must establish (1) that the performance of defense counsel was deficient under
the totality of the circumstances, and (2) prejudice, i.e., that there is a reasonable
probability the jury would have reached a different result absent the deficient
performance. Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh.
denied 467 U.S. 1267 [1984])." State v. Salary, 309 Kan. 479, 483, 437 P.3d 953 (2019).
A reviewing court strongly presumes counsel rendered adequate assistance and
exercised reasonable professional judgment. Strickland, 466 U.S. at 690. "When . . . the
conduct at issue preceded a guilty plea, prejudice means a reasonable probability that, but
for the deficient performance, the defendant would have insisted on going to trial instead
of entering the plea." State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014). Once again,
Williams has the burden as the movant to establish counsel's representation fell below an
objective standard of reasonableness viewed at the time of counsel's conduct. See
Strickland, 466 U.S. at 687-88, 690.
Williams argues his counsel failed to advise him that he would be required to
register as a violent offender for life before he pled guilty to aggravated kidnapping and
before his sentencing counsel convinced him to withdraw his motion to withdraw plea.
Williams contends the plea agreement broadly stated his conviction required him to
register as a violent offender but did not set out it would be for his lifetime. Williams
acknowledges the State's original charge of first-degree murder would have required him
to register as a violent offender for 15 years. See K.S.A. 2015 Supp. 22-4906(a)(1)(F).
7
Even after pleading down to second-degree murder, Williams was still required to
register for 15 years. See K.S.A. 2015 Supp. 22-4906(a)(1)(G).
Williams argues the original charge of child abuse would not have required him to
register as an offender, whereas the aggravated kidnapping charge to which he pled as a
condition of the plea agreement required lifetime offender registration. See K.S.A. 2015
Supp. 22-4906(a) and (d)(10). The record is clear Williams was aware he had to register
as a violent offender, but the record is unclear as to whether he knew the aggravated
kidnapping conviction required lifetime registration. Williams cites authority from other
jurisdictions suggesting defense counsel was ineffective for failing to inform him of the
lifetime registration requirements. However, those authorities are not binding on us.
Our Supreme Court explained:
"To set aside a guilty plea because ineffective assistance of counsel has rendered
the plea involuntary, the defendant must show that counsel's performance fell below the
standard of reasonableness and 'that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have insisted on going to
trial.'
"Defense counsel has an obligation to advise a defendant as to the range of
permissible penalties and to discuss the possible choices available to the defendant.
[Citations omitted]." State v. Solomon, 257 Kan. 212, 223, 891 P.2d 407 (1995).
Our Supreme Court has repeatedly held that the Legislature did not intend for
KORA provisions to be punishment but, rather, nonpunitive and civil in nature. State v.
Meredith, 306 Kan. 906, 911, 399 P.3d 859 (2017). "In distinguishing direct
consequences from collateral consequences of a plea, a test used by our court asks
'"whether the consequences imposed are a definite, immediate, and largely automatic
result of the guilty plea."' [Citations omitted.]" State v. Moody, 282 Kan. 181, 195, 144
P.3d 612 (2006). Another panel of our court found a defense attorney's failure to inform
8
his or her client of the collateral consequences arising from a plea agreement does not
amount to constitutionally deficient representation. State v. Barahona, 35 Kan. App. 2d
605, 612, 132 P.3d 959 (2006). We agree. Williams needed to be informed of only the
direct consequences of entering his plea agreement and resulting pleas. See Moody, 282
Kan. at 194-95.
Williams has failed to show his K.S.A. 60-1507 motion warranted an evidentiary
hearing and has failed to establish plea and sentencing counsels' representation fell below
an objective standard of reasonableness. The duty to register is civil in nature and is a
collateral consequence of Williams' conviction. Plea and sentencing counsel were only
required to discuss direct penal consequences, not the civil registration penalty. Even if
counsel failed to advise Williams of the collateral consequences—including lifetime
offender registration—arising from his plea, that failure does not amount to
constitutionally deficient representation. See Barahona, 35 Kan. App. 2d at 612.
Further, to prove ineffective assistance of counsel, there must be a reasonable
probability that, but for counsel's ineffectiveness, Williams would have insisted on going
to trial. See State v. Adams, 297 Kan. 665, 672, 304 P.3d 311 (2013). Williams does not
clearly make such assertion in his K.S.A. 60-1507 motion. Williams' guilty pleas allowed
him to avoid imprisonment for life with a minimum mandatory term of 25 years. We are
not persuaded Williams would have risked a lifetime prison sentence by going to trial if
he, instead, could serve a definitive prison sentence followed by lifetime offender
registration. We observe nothing in the record to reflect Williams' decision to plead guilty
would have changed had either his plea or sentencing counsel specifically advised him
his registration requirement would be for his life as a collateral consequence he faced
upon pleading guilty to aggravated kidnapping.
Williams also incidentally notes the district court, during a presentencing hearing,
misstated that Williams was facing a hard 50 life sentence rather than a hard 25 life
9
sentence if convicted of first-degree murder. We observe nothing in the record reflecting
this misstatement had any bearing on Williams' decision to plead guilty under the plea
agreement, given the goal of the plea agreement was to avoid imprisonment for life with
a minimum mandatory term of 25 years in exchange for a grid sentence and registration.
Affirmed.
10