State v. Wallace ( 2022 )

No. 123,763
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JUSTIN WAYNE WALLACE,
Appellant.
SYLLABUS BY THE COURT
1.
Neither due process nor K.S.A. 2021 Supp. 22-3210(a) require the district court to
inform defendants of the collateral consequences of entering a guilty or nolo contendere
plea to a felony.
2.
The potential loss of the right to vote is a collateral consequence of entering a
guilty or nolo contendere plea to a felony.
3.
The potential loss of the ability to possess a firearm is a collateral consequence of
entering a guilty or nolo contendere plea to a felony.
Appeal from Morris District Court; MICHAEL F. POWERS, judge. Opinion filed August 19, 2022.
Affirmed.
Jennifer C. Bates, of Kansas Appellate Defender Office, for appellant.
Laura E. Viar, county attorney, and Derek Schmidt, attorney general, for appellee.
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Before MALONE, P.J., SCHROEDER and HURST, JJ.
HURST, J.: Justin Wayne Wallace pled nolo contendere to felony criminal threat,
misdemeanor battery, and misdemeanor criminal damage to property related to an
incident in November 2019. Before sentencing, Wallace moved to withdraw his plea—
the district court denied the motion for lack of good cause. Wallace appeals, arguing that
his pleas were not fairly or understandingly made because the district court failed to
inform him that his felony plea would limit his ability to possess firearms and vote.
However, the deprivation of the right to possess a firearm or the right to vote are
collateral consequences of Wallace's felony nolo contendere plea—not direct
consequences—as such, the district court was not required to inform Wallace of these
collateral consequences. As Wallace alleges no other error, this court affirms the district
court's denial of Wallace's motion to withdraw his pleas.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2019, the State charged Wallace with felony burglary, felony
aggravated battery, felony criminal damage to property, and felony criminal threat for an
incident at an apartment in late November 2019. Wallace entered into a plea agreement
under which the State agreed to dismiss the burglary charge and amend the felony
aggravated battery and criminal damage to property charges to misdemeanors if Wallace
entered nolo contendere pleas to the felony criminal threat, misdemeanor battery, and
misdemeanor criminal damage to property charges.
Before accepting Wallace's pleas the district court asked if he understood the
charges, to which Wallace agreed he did. The court then explained that Wallace had a
right to a speedy trial and that he could change his mind about his pleas and proceed to
trial any time before the court accepted the pleas—but explained that once the court
accepted his pleas, Wallace's ability to withdraw would not be "a sure thing, like it would
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be today." The court then explained the trial rights Wallace would be waiving by entering
a plea together with waiving his right to any defenses to the charges he pled to. Wallace
confirmed he had no questions about his trial rights, and that he understood by entering a
plea he would be giving up his right to a trial.
The court explained Wallace's charges and the possible sentences for each.
Wallace confirmed he understood and did not have any questions about his possible
sentences. The court then asked Wallace if he was promised anything beyond the plea
agreement terms to get him to plead or if he was forced to plead in any way, and Wallace
said he was not. Next, the State summarized the evidence related to Wallace's charges,
and Wallace's counsel made no objections. The court asked Wallace if he understood his
charges or if he wanted the court to "walk [him] through each of [the charges], bit by bit."
Wallace confirmed he understood his charges and declined any additional explanation.
The court then had the following exchanges with Wallace:
"THE COURT: Okay. You're represented by Mr. Bryant. You feel like you've
had enough time to talk with him about your case?
"THE DEFENDANT: I do. (Unintelligible.)
"THE COURT: Okay. Have you—has he gone over, with you, the charges
against you, the facts and elements that the State would have to prove, what kind of
defenses you might have, that sort of thing?
"THE DEFENDANT: Yeah. He's been very thorough, Your Honor.
"THE COURT: Okay. Thank you. Do you—do you need any time to talk with
him, today. I mean, I can give you time, right now, if you need to talk with him.
"THE DEFENDANT: Well, I believe I'm okay. He's—he's been—he's been very
thorough, and kept up, with me, on everything. I think it's—it's all right, Your Honor.
....
"THE COURT: Okay. Mr. Wallace, the last couple things. Are you taking any
medication, right now, that affects your ability to make decisions, and think clearly?
"THE DEFENDANT: No, Your Honor.
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"THE COURT: Is—are—are—do you have some medication prescribed for you
that, actually, helps you make decisions, but that you haven't taken, today?
"THE DEFENDANT: No, Your Honor.
....
"THE COURT: Do you have any reason, at all, why I shouldn't accept the plea
from you?
"THE DEFENDANT: No, Your Honor.
"THE COURT: Okay. The Court finds that Mr. Wallace is alert and intelligent,
understands the charges against him, as amended, at Counts 2 and 3, and as originally
charged at Count 4; find [sic] that he understands the por—potential consequences, and
that is a factual basis for those."
Wallace then pled no contest to the three charges against him, and the district court
accepted his pleas, finding he made them freely, knowingly, and voluntarily with the
advice of counsel.
About two weeks later Wallace had a change of heart and moved to withdraw his
pleas—alleging "innocence in relation to the charges." The motion asserted that he "may
need to make allegations against Counsel" and that his counsel intended to withdraw
from representation. At his plea hearing, Wallace's counsel withdrew from the
representation and the court appointed Wallace new counsel.
In November 2020, the district court held a hearing on Wallace's motion to
withdraw his pleas. Wallace testified that he did not realize he was pleading to a felony
and that he was "not really guilty of this stuff, and I think I can—I can make that known,"
and explained that he did not "want to take the plea, because that's really not the way it
happened." Wallace then complained about his former counsel's representation—stating
that he felt his attorney was not "on [his] team" and did not feel he was there to help him.
Wallace's plea withdrawal counsel then asked if he had discussed with his prior counsel
what the impact of a plea to a felony would include, and Wallace responded, "Well,
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maybe briefly, but not really." Wallace and his counsel then had the following exchange
about his former counsel's representation:
"Q: Did he talk to you about (unintelligible) such as the issue of ownership of firearms?
"A: No. We never talked about that, I don't think.
"Q: Do you know, is that a concern to you, now?
"A: Absolutely. Absolutely. I—I live in the country, and hunt every year, and have
people—relatives come to hunt, and yeah, yeah, that's a big deal.
"Q: Did he talk to you about the fact that a felony conviction may impede your ability to
be employed?
"A: I don't remember talking about that, no.
"Q: Did he discuss, with you, the fact that it may impede your ability to vote, under
certain circumstances?
"A: I don't remember that either."
Wallace's counsel also called his former counsel to testify and asked if he had
discussed the impact Wallace's felony plea could have on his civil rights. Wallace's
former counsel testified that he discussed the consequences of the no-contact order with
the alleged victim but said, "I don't recall whether I went over firearm possession and
voting rights. I, traditional [sic], go over, at least, the voting side of things, but I—I
honestly don't have recollection whether we discussed those or not." Wallace's counsel
asked the court to withdraw Wallace's pleas because, as Wallace testified, his ability to
hunt and possess firearms was important and his prior counsel had no recollection of
discussing the impact of Wallace's felony plea on his firearm possession and voting
rights.
Ultimately, the district court found that Wallace had failed to establish good cause
to withdraw his pleas. In denying Wallace's motion, the district court found that Wallace
was represented by competent counsel, was not misled or mistreated in any way, and that
he was completely advised of his rights. The district court then sentenced Wallace to a
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controlling 12 months' probation for his felony criminal threat conviction, with his
misdemeanor sentences running concurrent to his felony sentence. Wallace timely
appealed.
DISCUSSION
Wallace brings only one issue on appeal—he claims that he was denied due
process in entering his pleas because the district court did not inform him that his pleas
would result in the loss of his right to possess firearms and the loss of his right to vote.
Wallace claims that as a result he did not knowingly and voluntarily enter his pleas and
therefore the district court abused its discretion by denying his motion to withdraw pleas.
Wallace moved to withdraw his pleas before sentencing, and a nolo contendere
plea "for good cause shown and within the discretion of the court, may be withdrawn at
any time before sentence is adjudged." (Emphasis added.) K.S.A. 2019 Supp. 22-
3210(d)(1). Courts look to these three factors to determine if a defendant has shown good
cause to withdraw their plea: (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.
Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). Although these factors should guide a
court's analysis, they are not an exhaustive list. See State v. Aguilar, 290 Kan. 506, 512-
13, 231 P.3d 563 (2010).
This court reviews a district court's denial of a presentence motion to withdraw a
plea for an abuse of discretion. The district court abuses its discretion when its decision is
based on an error of fact or law, or if no reasonable person would agree with the decision.
Wallace carries the burden of proving the district court abused its discretion in denying
his motion, and this court will not reweigh evidence or assess witness credibility in
assessing his claim. See State v. Woodring, 309 Kan. 379, 380, 435 P.3d 54 (2019).
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Wallace's sole argument on appeal is that his pleas were not fairly and
understandingly made. Wallace does not allege that he received incompetent counsel
during his plea process and hearing, or that he was coerced, mistreated, or misled during
his plea hearing—thus Wallace has waived any challenge to the district court's findings
regarding those issues. See State v. Williams, 303 Kan. 750, 758, 368 P.3d 1065 (2016)
(issues not briefed are deemed waived or abandoned). Wallace has made no claims that
he received ineffective assistance of counsel because his attorney failed to inform him
that his felony nolo contendere plea could lead to the loss of his right to possess a firearm
or vote. He also concedes that Kansas caselaw does not require district courts to inform
criminal defendants of the consequences of their pleas that are considered collateral, but
he argues that those cases do not apply to "exercising his second amendment right."
In Kansas, district courts have a statutory duty to inform defendants who plead
guilty to a felony of the direct consequences of their plea—including the possible
maximum sentence. Specifically, the court must inform "the defendant of the
consequences of the plea, including the specific sentencing guidelines level of any crime
committed . . . and of the maximum penalty provided by law which may be imposed
upon acceptance of such plea." K.S.A. 2021 Supp. 22-3210(a)(2). These statutory rights
stem from constitutional due process requirements that a guilty plea be made voluntarily
and intelligently. See, e.g., Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 23
L. Ed. 2d 274 (1969) (requiring the trial record to demonstrate the defendant's knowing,
voluntary waiver of rights when entering a guilty plea); State v. Moody, 282 Kan. 181,
194, 144 P.3d 612 (2006) (K.S.A. 22-3210 "embodies due process requirements as
interpreted by the United States Supreme Court . . . ."). A guilty plea is "more than a
confession" or admission of certain acts, but "is itself a conviction" and before admitting
a confession the court must reliably determine it was voluntarily made in satisfaction of
the defendant's constitutional rights. Boykin, 395 U.S. at 242. But these constitutional due
process and statutory requirements are not boundless.
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District courts have no duty to inform criminal defendants of the collateral—not
direct—consequences of a felony guilty plea. See, e.g., Moody, 282 Kan. at 194; State v.
Sedillos, 279 Kan. 777, 787, 112 P.3d 854 (2005). Direct consequences are definite,
immediate, and typically automatic, whereas collateral consequences do not directly
result from the specific criminal offense or sentence, but result from an external source.
See Moody, 282 Kan. at 195-96; State v. Johnson, No. 113,561, 2017 WL 3575649, at *4
(Kan. App. 2017) (unpublished opinion) (finding revocation of driving privileges under
habitual violator statute is a collateral consequence).
Potential government restrictions resulting from external sources that restrict a
defendant's future rights are not "definite and immediate" results of entering a plea to a
felony charge. See, e.g., State v. Schaefer, 305 Kan. 581, 592, 385 P.3d 918 (2016) (the
mere possibility of involuntary civil commitment resulting from a felony plea constituted
a collateral consequence that did not have to be disclosed to the defendant prior to
accepting a plea); State v. LaMunyon, 259 Kan. 54, 62, 911 P.2d 151 (1996) (the
possibility that the defendant's guilty plea could be used to enhance sentencing for later
crimes is a collateral consequence); City of Ottawa v. Lester, 16 Kan. App. 2d 244, 248,
822 P.2d 72 (1991) (possible suspension of driving privileges was a collateral
consequence). Similarly, in discussing the constitutional due process requirements that a
plea must be voluntarily, intelligently, and knowingly made, the Tenth Circuit noted that
restrictions on firearm ownership and difficulty in obtaining employment, credit, or
financial aid are all collateral consequences of entering a plea. United States v.
Muhammad, 747 F.3d 1234 (10th Cir. 2014).
Although the Kansas Supreme Court has not yet determined the specific issues
raised by Wallace, the natural extension of its prior decisions demonstrates that both the
right to vote and the right to own or possess firearms constitute collateral—not direct—
consequences of pleading nolo contendere to a felony conviction. A panel of this court
has found that the "loss of voting rights, jury eligibility, or right to hold office" were all
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collateral consequences that the district court was not required to disclose to a defendant
before accepting their guilty plea. Cox v. State, 16 Kan. App. 2d 128, 130-31, 819 P.2d
1241 (1991). While Wallace's right to vote and possess a firearm could be affected by his
felony plea, neither are immediate, definite, or automatic. Neither potential consequence
stems directly from the charge or sentence—but result from separate government
intervention. See State v. Jackson, No. 123,286, 2021 WL 4227700, at *2 (Kan. App.
2021) (unpublished opinion) (finding the potential federal firearm prosecution after a
state firearm conviction to be a collateral consequence). Thus, the district court had no
duty to inform Wallace about the potential impact his felony plea would have on his right
to vote or possess firearms.
At Wallace's plea hearing, the district court informed him of the nature of the
charges and of the constitutional rights he was waiving by entering his pleas. The court
also reviewed with Wallace the direct consequences of his pleas and the potential
sentences for each count. Wallace's responses to the court's questions reflected that he
understood the nature of the proceedings and that he was aware of what he was doing.
Wallace entered his pleas voluntarily after being informed of the direct consequences of
his action, and he affirmatively explained that he was waiving certain trial and appeal
rights. Additionally, the same judge that accepted Wallace's pleas also presided over his
motion to withdraw those pleas—so the court was in a good position to evaluate whether
Wallace understood the nature of the charges against him, the constitutional rights that he
would give up, and the consequences. See Schaefer, 305 Kan. at 595 ("The district court
had the opportunity to view Schaefer's affect and body language and assess whether he
was truthfully and unequivocally answering those questions."); see also State v. Perez-
Sanchez, No. 123,660, 2021 WL 5979308, at *5 (Kan. App. 2021) (unpublished opinion)
(finding district court was in the best position to determine whether the defendant fairly
and understandingly entered pleas because same judge presided over preliminary hearing
waiver, plea hearing, and motion hearing). The district court found Wallace knowingly
entered his pleas, and it had no duty to inform Wallace of the collateral consequences of
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his pleas. Wallace has failed to meet his burden to show that the district court abused its
discretion.
CONCLUSION
The district court informed Wallace of the direct consequences of his nolo
contendere pleas, and contrary to Wallace's assertions, the district court had no duty to
inform him of collateral consequences of his felony plea including his potential loss of
his right to possess firearms and vote. Wallace failed to show the district court abused its
discretion when it denied his motion to withdraw his pleas.
Affirmed.
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