State v. Perez-Sanchez ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,660
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JOSE LUIS PEREZ-SANCHEZ,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed December 17,
2021. Affirmed.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Kristi D. Allen, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before ARNOLD-BURGER, C.J., MALONE, J., and JAMES L. BURGESS, S.J.
PER CURIAM: Jose Luis Perez-Sanchez appeals the district court's denial of his
presentence motion to withdraw plea. Perez-Sanchez pled guilty to robbery and fleeing or
attempting to elude an officer. His main claim on appeal is that because of an alleged
language barrier, he did not understand the consequences of his plea and believed he
would receive a 36-month prison sentence instead of the recommended 60-month
sentence. Finding no abuse of discretion, we affirm the district court's judgment.
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FACTS
On January 29, 2020, the State charged Perez-Sanchez with one count each of
robbery, aggravated assault, and fleeing or attempting to elude an officer. The alleged
facts supporting the charges are not relevant to this appeal. Perez-Sanchez completed a
financial affidavit in English, and the district court appointed counsel to represent him.
At his preliminary hearing, Perez-Sanchez appeared in person, without an
interpreter, and by his attorney, J. Houston Bales. Perez-Sanchez orally moved the district
court to appoint him new counsel. Perez-Sanchez said, "I really don't trust [Bales]." He
also argued that Bales showed a lack of interest in his case and refused to do what Perez-
Sanchez asked him to do. Perez-Sanchez told the judge, "[H]e told me that I was in the H
box and now they [are] saying that I'm in the C box." Perez-Sanchez' conversation with
the judge was in English and covered four pages of the hearing transcript.
In response, Bales explained that his initial discussions about Perez-Sanchez'
criminal history score were based on Perez-Sanchez' account of his past convictions.
According to Bales, because Perez-Sanchez was not truthful about his convictions in
other states, the presentence investigation report yielded a worse criminal history score
than Bales expected. The district court denied Perez-Sanchez' request for new counsel
finding no reasonable basis for replacement. After the district court's ruling, Perez-
Sanchez waived his right to a preliminary hearing.
On August 10, 2020, the district court held a plea hearing where Perez-Sanchez
appeared in person, without an interpreter, and by his attorney, Bales. The district court
conducted the proceedings entirely in English. The parties announced to the court that
Perez-Sanchez agreed to plead guilty to robbery and fleeing or attempting to elude an
officer in exchange for the State dismissing the aggravated assault charge. The parties
agreed to recommend the high number in the appropriate grid box with the sentences on
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each count to run concurrently. The written plea agreement expressly stated the State
anticipated Perez-Sanchez was in criminal history category C. The acknowledgment of
rights form advised Perez-Sanchez that his sentencing range for robbery was 31 to 136
months' imprisonment and his sentencing range for fleeing or attempting to elude an
officer was 5 to 17 months' imprisonment. The district court judge asked Perez-Sanchez
several questions about the plea agreement and the acknowledgment of rights document.
"THE COURT: And did you read both these documents?
"[PEREZ-SANCHEZ]: Yes.
"THE COURT: And did you go over them with your attorney, Mr. Bales, and
have him explain them to you?
"[PEREZ-SANCHEZ]: Yes.
"THE COURT: Do you have any questions about either one of those
documents?
"[PEREZ-SANCHEZ]: No.
"THE COURT: Do you fully understand both documents?
"[PEREZ-SANCHEZ]: Yes."
The district court informed Perez-Sanchez of the rights he was waiving. After the
reading of each right, the district court asked if Perez-Sanchez understood. He answered
affirmatively each time. The district court also told Perez-Sanchez the prison term range
for each count: 31 to 136 months for robbery and 5 to 17 months for fleeing or
attempting to elude an officer. Again, Perez-Sanchez confirmed his understanding.
Then the district court had the following conversation with Perez-Sanchez:
"THE COURT: Now, within the last 24 hours have you used or consumed any
alcohol, medication or other drug, to the extent that your ability to understand your rights
and make decisions would be affected?
"[PEREZ-SANCHEZ]: No, Your Honor.
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"THE COURT: Is there any medical, physical or mental health reason that
would cause you difficulty in understanding your rights, making decisions and moving
forward today?
"[PEREZ-SANCHEZ]: No, Your Honor.
"THE COURT: Are you satisfied with the services of your attorney?
"[PEREZ-SANCHEZ]: Yes, Your Honor.
"THE COURT: Are you satisfied with how the Court has treated you?
"[PEREZ-SANCHEZ]: Yes, Your Honor.
"THE COURT: Is it still your desire to give up your rights?
"[PEREZ-SANCHEZ]: Yes, Your Honor."
Following this conversation, Perez-Sanchez pled guilty to robbery, fleeing or
attempting to elude an officer, and admitted to a factual basis for the plea. The district
court found that Perez-Sanchez understood the nature of the charges and the
consequences of the plea, and that he freely, voluntarily, and intelligently waived his
rights. The district court accepted the plea and scheduled the case for sentencing.
Two weeks later, before sentencing, Perez-Sanchez filed a pro se motion to
withdraw his plea. The motion was five pages long and written in English. In the motion,
Perez-Sanchez generally alleged that he did not understand the consequences of his plea
and that Bales failed to adequately advise him about the plea. The district court appointed
new counsel and set a hearing date for the motion.
On December 2, 2020, the district court held an evidentiary hearing on the motion
to withdraw plea. The same judge who presided over the preliminary hearing waiver and
the plea hearing presided over the hearing on the motion to withdraw plea. Perez-Sanchez
appeared in person, with an interpreter, and by his new counsel, Chrystal Krier. Perez-
Sanchez testified through the interpreter that Spanish was his native language, that he
only understood English "a little bit," and that he did not know how to read or write in
English. He testified that Bales never asked him if he understood English or if he needed
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an interpreter, but he also admitted on cross-examination that he did not express a need or
ask for an interpreter. Perez-Sanchez testified that a Puerto Rican friend responded on his
behalf to the 25 or more emails that Bales sent him because he did not read or write
English. He said that his friend also wrote his pro se motion to withdraw his plea.
Perez-Sanchez testified that Bales read the plea agreement to him very quickly and
told him to sign it. He testified that Bales lead him to believe that the court would
sentence him to 36 months in jail based on a criminal history score of H, not 60 months
based on a score of C. Perez-Sanchez said that he did not ask Bales any questions about
the plea before signing it because, "I trusted [Bales]." Perez-Sanchez also testified that he
was taking medicine in August 2020 for his "mental problem." Perez-Sanchez testified
that Bales never asked about medications, nor did he tell Bales about his medication.
The State called Bales to testify. Bales testified that he had initial concerns about
Perez-Sanchez' ability to understand their conversations—not because of a language
barrier but for competency reasons. Bales testified that he met with Perez-Sanchez at
least three times in person and communicated by email. He testified that all their
conversations were in English and that he never had any indication that Perez-Sanchez
did not understand the communication or required an interpreter. Bales told the district
court that although he was rushed, he read Perez-Sanchez the plea agreement in its
entirety. After hearing the evidence, the district court took the matter under advisement.
On January 8, 2021, the district court denied Perez-Sanchez' motion to withdraw
plea. Relevant to this appeal, the district court found there was no evidence that Perez-
Sanchez lacked understanding when entering his plea. The district court noted that Perez-
Sanchez never said he had a language problem or asked for an interpreter. Instead, he had
discussions where he responded to Bales about specific facts and engaged with the
district court in prior hearings with extensive dialog without the aid of an interpreter. The
district court relied on its own experience with Perez-Sanchez to find that he could
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clearly understand, communicate, and articulate the English language. The district court
also found from the evidence that Perez-Sanchez knew his criminal history score was C.
As a result, the district court found that the plea was fairly and understandably made.
Following its ruling, the district court sentenced Perez-Sanchez to 60 months'
imprisonment with 24 months' postrelease supervision based on the plea agreement.
Perez-Sanchez timely appealed the district court's judgment.
ANALYSIS
On appeal, Perez-Sanchez claims the district court erred in denying his motion to
withdraw plea. He mainly argues that because of the alleged language barrier, he did not
understand the consequences of his plea and believed he would receive a 36-month
prison sentence instead of the recommended 60-month sentence. At the hearing in district
court on the motion to withdraw plea, Perez-Sanchez referred to a "mental problem" and
medication he was taking for this problem which affected his ability to understand the
plea. But Perez-Sanchez does not renew this claim on appeal. An issue not briefed is
deemed waived and abandoned. State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018).
The State asserts the district court did not abuse its discretion in denying the
motion to withdraw plea. The State argues that the record reflected Perez-Sanchez' clear
understanding of English, and he failed to show good cause to withdraw his plea.
We review the district court's decision denying a motion to withdraw plea for
abuse of discretion. State v. Woodring, 309 Kan. 379, 380, 435 P.3d 54 (2019). An 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. State v. Ingham, 308 Kan. 1466,
1469, 430 P.3d 931 (2018). Perez-Sanchez does not argue that the district court made an
error of law or fact, so we review for an abuse of discretion under the first prong. An
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action is arbitrary, fanciful, or unreasonable when no reasonable person would have taken
the action of the district court. State v. Aguirre, 313 Kan. 189, 195, 485 P.3d 576 (2021).
The party asserting the district court abused its discretion bears the burden of showing
such abuse of discretion. State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).
A district court may allow a defendant to withdraw a guilty plea for good cause
any time before sentencing. K.S.A. 2020 Supp. 22-3210(d)(1). In deciding whether good
cause exists to withdraw a plea, the district court considers the following, nonexclusive,
factors: (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. State v. Edwards, 309 Kan. 830,
836, 440 P.3d 557 (2019); State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006).
On appeal, Perez-Sanchez argues that he showed good cause under the third Edgar
factor—whether the plea was fairly and understandingly made. He argues that he
established good cause by testifying that he did not understand the plea agreement
because he did not understand written or spoken English and he was not provided an
interpreter. Perez-Sanchez presented testimony that Bales told him he would get 36
months' prison term based on a criminal history score of H, not 60 months based on a
score of C. And because of the language barrier he did not fairly and understandingly
make his plea. The State argues that Perez-Sanchez' claim is refuted by the record and
that the district court made its judgment based on credibility determinations.
At the hearing on the motion to withdraw plea, Bales testified that he never had
concerns about Perez-Sanchez understanding English. Bales also testified that he read the
acknowledgment of rights form to Perez-Sanchez before he signed it, although Bales
admitted he was rushed on the day of the hearing. The record showed that Perez-Sanchez
understood he was in criminal history category C at the earlier hearing where he asked
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the district court for new counsel. And the written plea agreement expressly stated the
State anticipated Perez-Sanchez was in criminal history category C.
Perez-Sanchez' argument fails because the record establishes that he understood
the consequences of his plea and he failed to show good cause to withdraw it. When the
district court denied Perez-Sanchez' motion to withdraw plea from the bench, the district
court cited these facts in support of its decision: (1) Perez-Sanchez never said he did not
understand English; (2) Perez-Sanchez never asked for an interpreter; (3) Perez-Sanchez
engaged in extensive written and spoken communication with Bales about representation;
(4) Perez-Sanchez interacted with the district court through lengthy, non-scripted
conversation about removal of Bales where he was "clearly understanding, clearly
communicating, clearly articulate in the English language"; (5) Perez-Sanchez
participated in back-and-forth dialog with the district court where Perez-Sanchez
appropriately answered questions about waiving his rights, entering his plea, and
acknowledging his understanding of the plea and proceedings.
The district court found the facts "overwhelmingly" showed that Perez-Sanchez
had "an excellent understanding of the English language" and could communicate as if
English were his first language. The district court also found from the evidence that
Perez-Sanchez knew his criminal history score was C. Perez-Sanchez does not challenge
these findings but points to his testimony and asks this court to find that he established
good cause to withdraw his plea. But it is clear the district court made credibility
determinations against Perez-Sanchez in denying his motion. Perez-Sanchez testified at
the hearing that he did not ask Bales any questions about the plea agreement before
signing it because he trusted Bales. But this testimony was contradicted by Perez-
Sanchez' earlier request for new counsel because he could not trust Bales. This court does
not reweigh evidence or assess witness credibility. Edwards, 309 Kan. at 836.
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We find it significant that the same judge presided over the preliminary hearing
waiver, the plea hearing, and the hearing on the motion to withdraw plea. In denying the
motion to withdraw plea, the district court analyzed the three Edgar factors, focusing on
whether the plea was fairly and understandingly made. See 281 Kan. at 36. Because the
same judge presided over all Perez-Sanchez' hearings and appearances, he observed
Perez-Sanchez when he said that he understood his rights, that he understood the charges
against him, and that he understood he was entering a plea on his own volition. The
district court was in the best position to resolve conflicts in the testimony and determine
that Perez-Sanchez' plea was fairly and understandably made. See State v. Macias-
Medina, 293 Kan. 833, 839, 268 P.3d 1201 (2012).
In sum, the district court relied on the record and its ability to witness Perez-
Sanchez' demeanor in finding that he failed to show good cause to withdraw his plea. The
district court properly analyzed the third Edgar factor in deciding whether the plea was
fairly and understandingly made. See 281 Kan. at 36. On appeal, Perez-Sanchez fails to
show the district court abused its discretion in denying his motion to withdraw plea.
Affirmed.
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