State v. Daniels ( 2022 )

NOT DESIGNATED FOR PUBLICATION
Nos. 123,252
123,253
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DAVINO MARQUAN DANIELS,
Appellant.
MEMORANDUM OPINION
Appeal from Leavenworth District Court; GERALD KUCKELMAN, judge. Opinion filed January
28, 2022. Affirmed.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Shawn M. Boyd, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., BRUNS and WARNER, JJ.
PER CURIAM: Davino Marquan Daniels timely appeals, arguing the district court
abused its discretion by denying his motions to withdraw his pleas and that provisions of
the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-6801 et seq.,
violate his constitutional rights. Daniels pled guilty to one count of aggravated robbery
and one count of aggravated assault in 19CR656 and one count of violating the Kansas
Offender Registration Act (KORA), K.S.A. 2020 Supp. 22-4901 et seq., in 19CR796.
Prior to sentencing, Daniels moved to withdraw his guilty pleas in both cases. Upon our
extensive review of the record, we find the district court did not abuse its discretion when
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it denied Daniels' motions to withdraw his pleas. We further find Daniels' constitutional
challenge to the KSGA was not raised before the district court and is an unpreserved
claim we decline to address. Therefore, we affirm.
FACTS
Daniels was charged with one count each of aggravated robbery, aggravated
assault, criminal possession of a firearm, and possession of stolen property in 19CR656,
and three counts of KORA violations in 19CR796. In compliance with his plea
agreement, Daniels entered guilty pleas to aggravated robbery and aggravated assault in
19CR656 and, in 19CR796, entered a guilty plea to one count of violating KORA.
Daniels, upon signing the plea agreement, acknowledged the following:
"11. . . . My lawyer has informed me that the plea of 'Guilty' or 'No Contest'
could subject me to a maximum punishment, which as provided by law, is 247 months of
imprisonment and a fine of $300,000 for the offense.
....
"17. . . . I fully understand that the Court is not bound by the terms of this
agreement, and may accept or reject said agreement. Further, I understand fully that the
court may impose any sentence within the statutory limits and grant or deny probation
independently of the agreement between the County Attorney, my attorney, and myself."
The plea agreement also reflected the benefit Daniels would receive upon entering
his guilty pleas, with the State agreeing to (1) dismiss the remaining charges in 19CR656
and 19CR796; (2) dismiss all charges in a third case against Daniels; (3) recommend a
departure in 19CR656 to 91 months' imprisonment; and (4) recommend the sentence in
19CR796 run concurrent with the sentence in 19CR656.
At Daniels' plea hearing on March 4, 2020, the district court told Daniels, "Now, I
want to make sure that you understand this. This is a recommendation that the State and
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your attorney are going to make to me, but I'm not required to do that. You understand
that?" Daniels responded, "Yes, sir." Daniels entered his guilty pleas after the district
court explained the rights he would be waiving.
Daniels' sentencing was delayed due to the COVID-19 pandemic. During the
delay, the district judge who presided over Daniels' plea hearing retired, and a new judge
presided at Daniels' sentencing. On July 31, 2020, Daniels appeared to present his motion
to depart and for sentencing. The new judge expressed his concerns with the proposed
durational departure sentence in the plea agreement, stating:
"I know that there's been a change in judges, and perhaps that's done in the past,
but I've got to tell you in good conscience I cannot impose a sentence that is less than half
of the standard sentence without some kind of a substantial or compelling reason."
Given this insight, Daniels' sentencing hearing was continued to allow Daniels
time to file an amended motion to depart more thoroughly outlining his substantial and
compelling reasons for his requested durational departure sentence. Daniels took the
opportunity to file an amended motion to depart along with motions to withdraw his pleas
in both cases. In his motions to withdraw his pleas, Daniels claimed his pleas were not
fairly or understandingly made because the parties "reasonably believed" the judge who
accepted his pleas would preside at the sentencing hearing and follow the plea agreement
recommendations.
At the combined motions and sentencing hearing held September 3, 2020, the
district court denied Daniels' motions to withdraw his pleas and rejected his amended
motion for a durational departure sentence. The district court, citing the written plea
agreements and State v. Edgar, 281 Kan. 30, 127 P.3d 986 (2006), found Daniels was
represented by competent counsel and his pleas were fairly and understandingly made
and did not result from coercion. The district court then proceeded to sentencing and
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imposed a controlling sentence of 233 months' imprisonment in 19CR656 coupled with a
concurrent sentence of 43 months' imprisonment in 19CR796. Additional facts are
provided as necessary herein.
ANALYSIS
Daniels failed to establish good cause to withdraw his pleas.
Daniels argues the district court's denial of his motions to withdraw his pleas
amounts to an abuse of discretion which requires us to reverse. He asserts the district
court's good cause analysis was too rigid. The State responds the district court's good
cause analysis was correct and supported the district court's denial of Daniels' motions to
withdraw his pleas.
Preservation and standard of review
Daniels timely filed his presentence motions to withdraw his pleas, and the district
court denied them on the merits. The issue is preserved for our review. See State v.
Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015) (noting that filing motion to
withdraw plea or lodging contemporaneous objection to plea is sufficient to preserve
claim on appeal).
A guilty plea can be withdrawn at any time before sentencing if good cause is
shown, within the discretion of the court. K.S.A. 2020 Supp. 22-3210(d)(1). We review a
district court's decision to deny a presentence motion to withdraw a plea for good cause
under an abuse of discretion standard. Abuse of discretion occurs when a judicial action
is (1) arbitrary, fanciful, or unreasonable, (2) based on an error of law, or (3) based on an
error of fact. When we analyze for abuse of discretion, we do not reweigh evidence or
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assess witness credibility. The defendant bears the burden of establishing an abuse of
discretion. State v. DeAnda, 307 Kan. 500, 503, 411 P.3d 330 (2018).
We observe no abuse of discretion.
As noted above, K.S.A. 2020 Supp. 22-3210(d)(1) provides district courts the
discretion to grant a presentence motion to withdraw a guilty plea when good cause is
shown. Our good cause standard is not statutorily defined. But district courts typically
consider the three Edgar factors when analyzing whether good cause has been shown:
"(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.'" DeAnda, 307 Kan. at 503;
Edgar, 281 Kan. at 36. But each factor need not apply in the defendant's favor for good
cause to be found, and other factors may be considered. Our Supreme Court has
instructed "exclusive reliance on or mechanical application of the Edgar factors could
distort the concept of good cause." State v. Macias-Medina, 293 Kan. 833, 837, 268 P.3d
1201 (2012).
Motions to withdraw pleas are governed by different rules depending on whether
the motion is presentencing or postsentencing. Defendants seeking to withdraw their
guilty pleas after sentencing may only do so if the district court finds manifest injustice,
analyzing the same three Edgar factors from above. See K.S.A. 2020 Supp. 22-
3210(d)(2); State v. Adams, 311 Kan. 569, 575, 465 P.3d 176 (2020). While manifest
injustice is also not statutorily defined, the Kansas Supreme Court has held that "inherent
in manifest injustice is that it be 'obviously unfair' or 'shocking to the conscience.' State v.
Kelly, 291 Kan. 868, 873, 248 P.3d 1282 (2011)." 311 Kan. at 575. Our Supreme Court
emphasized that the "presentence 'good cause' standard" for a plea withdrawal is a "'lesser
standard'" than the manifest injustice required for postsentence plea withdrawal. Macias-
Medina, 293 Kan. at 836-37.
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Daniels asserts his pleas were not fairly and understandingly made and claims
good cause exists for him to withdraw his pleas. He also argues the district court should
have looked beyond the Edgar factors in its good cause analysis to consider Daniels'
situation was so "obviously unfair" it satisfied the more stringent manifest injustice
standard for withdrawal. The crux of Daniels' argument is centered around his claim he
did not fully understand a different district judge could preside at his sentencing hearing
and could be opposed to the durational departure sentence recommended in the plea
agreement. Given this issue, he claims it cannot be said that the plea was fairly and
understandingly made. He further alleges it was "obviously unfair" and the district court
should have considered this factor in making its good cause determination.
In Daniels' motions to withdraw his pleas, his counsel acknowledged he advised
Daniels that the district judge could decline to follow the sentencing recommendations in
the plea agreement, but it was "unlikely to happen, since such an occurrence is almost
unprecedented in any court in which counsel has practiced during the past fourteen
years." At the hearing on Daniels' motions to withdraw his pleas, Daniels' counsel
testified he "advised [Daniels] that the plea recommendations would most likely be
adopted." But after the change in judges, counsel discovered his "advice to [Daniels] was
not accurate in regards to the relevant circumstances and likely consequences" of the plea
agreement, and, therefore, Daniels' plea agreement was not fairly or understandingly
made.
At the combined motions and sentencing hearing, the district court walked through
the Edgar factors and explained its findings for each:
"First, one: That the defendant was represented by [competent] counsel. I don't
think there's been anything to indicate [Daniels' counsel] has been incompetent. . . .
There's nothing to indicate that [counsel] was incompetent in the handling of this
particular case.
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"Number 2: That the defendant was misled, coerced, mistreated, or unfairly taken
advantage of. Again, there is nothing before the Court to show that the defendant was
misled. The defendant signed the plea agreement, . . . indicating that he understood that
there was no guarantee that the Court would follow the plea agreement. There's nothing
at all to indicate that he was misled.
"I note that in the certificate of counsel on the last page, [Daniels' counsel] signed
that. It says, I have made no predictions or promises to the defendant concerning any
sentence. So everything in here indicates to the defendant that there was nothing
guaranteed.
"Coerced: There's been no evidence at all that [Daniels] was coerced or
mistreated.
"Unfairly taken advantage of: Again, there's simply no evidence that he was
unfairly taken advantage of.
"Number 3: The plea was fairly and understandingly made. There's really been
no evidence that [Daniels] didn't understand it. As a matter of fact, the findings were that
he freely and voluntarily made the plea understanding the consequences. The defendant
may have been hopeful of what the sentence would be, but there was nothing promising
[Daniels] any particular sentence in this case, and he was advised as to the law.
"No attorney can ever guarantee the outcome in one of these cases. That's not
how the system works. The Court is always free to impose an appropriate sentence. And
so I can't believe that anybody misled [Daniels] or gave him a wrong impression or
understanding. Everything shows to the contrary.
....
"So the Court at this time is going to find that there has been no showing that
would rise to the level of good cause."
While the Edgar factors establish "'viable benchmarks for judicial discretion,' a
court should not ignore other factors that might exist in a particular case." State v.
Schaefer, 305 Kan. 581, 588, 385 P.3d 918 (2016). We have been unable to find in the
record where the district court considered the change of judges between Daniels' plea
hearing and his sentencing hearing as a separate factor in its good cause analysis. But we
have also been unable to find any case where the district court is required to consider
such an event. District courts are not required to consider factors outside of Edgar—they
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simply may consider other factors when making their discretionary decisions about good
cause. See Macias-Medina, 293 Kan. at 837. So long as the district court's good cause
analysis of the Edgar factors was not arbitrary or unreasonable and did not involve an
error of law or fact, its denial of a motion to withdraw a plea does not constitute an abuse
of discretion.
Daniels' signed plea agreement reflects Daniels knew he could be sentenced to
prison for a maximum of 247 months in 19CR656 and to 47 months in 19CR796. And
the district court was free to accept or reject the terms of the agreement. Neither Daniels'
counsel nor the district judge who accepted Daniels' plea promised Daniels his departure
motion would be accepted, though his counsel did suggest it would "most likely" be
accepted. By signing the plea agreement, Daniels clearly acknowledged he had been
advised by his counsel and understood that any promised sentencing recommendations
may or may not be followed by the district court. We find this reflects substantial
competent evidence to support the district court's finding Daniels' pleas were fairly and
understandingly made and were not so "obviously unfair" as to rise to the level of
manifest injustice. Whether Daniels' sentencing was carried out by the district judge who
accepted Daniels' plea or by another judge, the record clearly shows Daniels' pleas were
entered with the understanding he might not receive a durational departure sentence.
We find the district court's good cause analysis was reasonable and involved no
error of fact or law. Daniels has not carried his burden to show the district court abused
its discretion by denying his motions to withdraw his pleas.
Daniels' challenge to the KSGA is raised for the first time on appeal and is not preserved.
At the sentencing hearing, the district court reviewed Daniels' prior convictions
and found he had a criminal history score of A for his aggravated robbery conviction in
19CR656 and for his violation of KORA in 19CR796. Criminal history scores can act to
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increase the presumptive sentence for a defendant within the KSGA. See K.S.A. 2020
Supp. 21-6804(a). The KSGA allows the district court to determine by a preponderance
of the evidence a defendant's criminal history score. K.S.A. 2020 Supp. 21-6814(a).
Daniels argues the KSGA, by granting district courts the power to determine a
defendant's criminal history score, violates his constitutional right to a jury trial—both
under section 5 of the Kansas Constitution Bill of Rights and under the Sixth and
Fourteenth Amendments to the United States Constitution.
But Daniels did not challenge the constitutionality of the KSGA below. Typically,
constitutional issues cannot be raised for the first time on appeal. State v. Williams, 298
Kan. 1075, 1084, 319 P.3d 528 (2014). Exceptions to this general rule exist, including
when the issue involves only questions of law and is finally determinative of the case or
when consideration of the issue is necessary to serve the ends of justice or prevent a
denial of fundamental rights. State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019).
Daniels alleges both exceptions apply such that his arguments should be heard on appeal.
Even if we were to consider his arguments, the decision to address an unpreserved
issue for the first time on appeal is a prudential one, even when one of the exceptions is
satisfied. State v. Gray, 311 Kan. 164, 170, 459 P.3d 165 (2020). For this reason, we
decline to address Daniels' constitutional challenge to the KSGA. We further recognize
his claims have been rejected by our Supreme Court in State v. Ivory, 273 Kan. 44, 46-47,
41 P.3d 781 (2002) (KSGA does not violate Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348, 147 L. Ed. 2d 435 [2000], or constitutional right to jury trial), and in State v.
Albano, 313 Kan. 638, 639, 487 P.3d 750 (2021) (KSGA does not violate section 5 of
Kansas Constitution Bill of Rights), and we are duty-bound to follow Supreme Court
precedent. See State v Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017).
Affirmed.
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