State v. Egan ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,566
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
CHRISTOPHER SCOTT EGAN,
Appellant.
MEMORANDUM OPINION
Appeal from Butler District Court, DAVID A. RICKE, judge. Opinion filed April 2, 2021.
Affirmed.
Stephen T. Ariagno, of Wichita, for appellant.
Cheryl M. Pierce, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., GARDNER and WARNER, JJ.
PER CURIAM: Christopher Egan pleaded guilty to three counts of sexual
exploitation of a child in exchange for the State's promise to drop the remaining 34
counts. A few days later Egan regretted his decision, so he hired new counsel and moved
to withdraw his plea. The district court denied that motion. Egan appeals, yet finding no
error we affirm.
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Factual and Procedural Background
This case began when Google reported to the National Center for Missing and
Exploited Children (NCMEC) Cybertipline hotline that someone had uploaded 303 files
to a Dropbox online storage account linked to an email address listed as eganc@cox.net.
That account was owned by Egan.
The district court later bound Egan over for trial on 37 counts of felony sexual
exploitation of a child. Egan agreed to plead no contest to three of those counts and the
State agreed to drop the remaining charges. At the plea hearing, Egan's attorney, Darren
Patterson, told the district court he had reviewed with Egan the amended plea agreement
and possible sentences and that Egan was prepared to plead to the amended charges. The
district court then went through the routine plea colloquy discussing Egan's rights. Egan
told the district court that he understood the extended reporting requirements, that he
would be on lifetime postrelease supervision because of the nature of his crimes, and that
he would face offender registration consequences for the plea. The district court then
asked Egan if he was being threatened or promised anything to enter the plea, and Egan
replied, "No." Egan said that he was satisfied with Patterson's representation. The district
court then accepted Egan's plea of no contest to three counts of sexual exploitation of a
child and found Egan guilty of those charges.
Within a few days, Egan had hired new counsel, Stephen Ariagno, and had moved
to withdraw his plea. At the hearing on that motion, Ariagno stated that Egan maintained
his innocence, that Egan never intended to plea, that Egan had felt coerced and pressured
to enter the plea, and that Egan had felt pressured to say he was satisfied with Patterson's
legal services. Patterson did not testify. Egan testified:
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• He wanted Patterson to hire a computer expert to look into the computer evidence
and independently investigate the IP addresses and the files found on the
computer;
• the expert did not review the computers until the day before the plea hearing;
• Egan went to Patterson's office the day of the plea hearing thinking they would be
asking for a continuance; but
• Patterson pressured Egan to accept the plea, which he reluctantly did.
The State presented no evidence but argued that Egan had entered the plea
knowingly and voluntarily and then later regretted it. The State also argued that the
district court had conducted a thorough and appropriate plea colloquy and had given
Egan plenty of opportunity at the plea hearing to speak up about his concerns. The district
court denied Egan's motion.
Egan timely appeals.
Did the District Court Abuse Its Discretion by Denying Egan's Presentence Motion to
Withdraw His Plea?
Egan argues the district court abused its discretion by denying his presentence
motion to withdraw his plea. He argues his testimony met all three of the Edgar factors:
counsel competency, coercion to enter the plea, and whether the plea was
"understandingly made." State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). In
contrast, the State contends Egan met none of those factors.
Standard of Review and Basic Legal Principles
Because the district court, in its discretion, determines whether to allow the
defendant to withdraw his plea before sentencing, we review that decision under an
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"abuse of discretion" standard. State v. Williams, 290 Kan. 1050, 1053, 236 P.3d 512(2010). An abuse of discretion occurs if the decision stemmed from an error of law or
fact, or no reasonable person would agree with the decision. State v. Jones, 306 Kan. 948,
Syl. ¶ 7, 398 P.3d 856 (2017). As the moving party, Egan bears the burden of showing an
abuse of discretion. See Williams, 290 Kan. at 1053.
Generally, a defendant may not withdraw a no-contest or guilty plea. K.S.A. 2020
Supp. 22-3602(a). But under K.S.A. 2020 Supp. 22-3210(d), the district court may allow
the defendant to withdraw the plea once "good cause is shown." See State v. Brown, 46
Kan. App. 2d 556, 562, 263 P.3d 217 (2011).
The Edgar court set out three factors that the district court should evaluate to
determine whether the defendant has shown "good cause" to withdraw his or her plea:
1. Was the defendant represented by competent counsel;
2. was the defendant misled, coerced, mistreated, or unfairly taken
advantage of, and
3. was the plea fairly and understandingly made? 281 Kan. at 36.
A district court abuses its discretion by failing to consider the Edgar factors when
deciding whether good cause exists to withdraw a plea. See State v. Freeman, 292 Kan.
24, 30, 253 P.3d 1 (2011). But the district court need not make express findings on each
Edgar factor; an implicit consideration of the factors is enough. State v. Harper, No.
121,943, 2020 WL 7636424, at *3 (Kan. App. 2020) (unpublished decision) (discussing
that the district court does not have to make express findings on each Edgar factor
because the district court's implicit reference to the factors is enough), petition for rev.
filed January 21, 2021. And the district court need not find that all three factors weigh in
Egan's favor to establish "good cause." 290 Kan. at 513. The district court may consider
factors other than the three Edgar factors. See State v. Aguilar, 290 Kan. 506, 512-13,
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231 P.3d 563 (2010). But the district court is not required to consider Edgar factors that
the defendant has not argued. Williams, 290 Kan. at 1055-56.
Although the district court did not explicitly cite Edgar, the record shows that it
reviewed Edgar's factors in making its decision.
Representation by Competent Counsel
The first Edgar factor requires the district court to determine whether Egan was
represented by competent counsel. See 281 Kan. at 36. Although Egan raised several
reasons at the plea withdrawal hearing why Patterson's representation was not competent,
his appellate brief mentions only one—that Egan had outstanding discovery questions for
Patterson yet he ignored his repeated inquiries. "'Where [a party] fails to brief an issue,
that issue is waived or abandoned.'" Mid-Continent Specialists, Inc. v Capital Homes, 279
Kan. 178, 191, 106 P.3d 483 (2005). We thus address only the discovery issue Egan has
briefed, as Egan has waived all others.
According to Egan's testimony, Patterson presented the plea to him an hour before
the plea hearing. Egan thought Patterson was going to ask for a continuance so the
computer expert could have time to complete his theory on the computer evidence. But
on cross-examination, Egan admitted that although Patterson had ignored Egan's emails
for the previous two weeks, Patterson had finally replied, "'I'll work on the plea.'" And
Egan shows no evidence that he objected to that approach or told Patterson to work on
discovery rather than the plea.
Egan also testified that Patterson forced him to tell the judge that he had
"competent counsel." When asked whether he was untruthful to the court during his plea
hearing, Egan replied, "Under duress, yes." But the same judge presided over both
hearings—the change of plea hearing and the motion to withdraw plea hearing. The judge
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recalled Patterson and his performance. He reviewed Patterson's qualifications to serve as
an attorney, determined that Patterson was an experienced trial attorney, and had dealt
with Patterson before yet could not recall any other complaint where Patterson had
improperly pressured a client to accept a plea. The district court thus discredited Egan's
testimony that Patterson had forced him to commit perjury by saying he was satisfied
with his representation. We cannot revisit that credibility issue. See Creecy v. Kansas
Dept. of Revenue, 310 Kan. 454, 469, 447 P.3d 959 (2019) ("In reviewing a court's
findings, an appellate court will not weigh conflicting evidence, pass on the credibility of
witnesses, or redetermine questions of fact.").
We find no error in the district court's finding that Egan had competent counsel.
Misled, Coerced, Mistreated, or Unfairly Taken Advantage of
The second Edgar factor requires the district court to determine whether the State,
the court, or Patterson had misled, coerced, or taken unfair advantage of Egan. See
Edgar, 281 Kan. at 36. Egan argues that he stressed to the district court "on several
occasions through his testimony that he felt coerced by counsel, describing the plea as
being 'jammed down [his] throat.'" Again, Egan alleges that Patterson forced him to tell
the district court that he received adequate representation.
To the contrary, the district court found Egan was not misled, coerced, mistreated,
or unfairly taken advantage of. For the same reasons set forth above, we find no error in
that determination. Egan failed to prove the second Edgar factor.
Fairly and Understandingly Made
The third Edgar factor requires the district court to determine whether the plea
was fairly and understandingly made. 281 Kan. at 36. Here, Egan argues that he
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maintained his innocence throughout his case and that Patterson pushed him to accept a
plea offer just hours before the plea hearing, yet a decision of that magnitude "requires
reflection and consideration."
The district court found that Egan understood what he was doing when he entered
the plea. The district court also held that Egan appeared to understand the nature of
entering a plea and that Egan "answered all questions to this Court without hesitation and
without concern." (Emphasis added.) The district court found nothing in the record that
suggested Egan's plea was "anything but fairly and understandingly made." Thus, the
district court determined that the third Edgar factor was not established and could not be
the basis for "good cause."
We find no error in that conclusion. The Kansas Supreme Court has held that a
district court is in the best position to observe the demeanor of a defendant and draw
conclusions about whether the plea was knowingly and intelligently made. State v.
Macias-Medina, 293 Kan. 833, 839, 268 P.3d 1201 (2012). Here, the same judge
presided over both the plea hearing and the plea withdrawal hearing. The district court
observed Egan's behavior and demeanor during the plea colloquy and was in the best
position to determine whether the defendant's later claims of misunderstanding were not
enough to overcome its conclusion the plea was fairly and understandingly made.
Conclusion
The district court denied Egan's motion because Egan failed to show "good
grounds" for the court to allow him to withdraw his plea. The record shows that the
district court relied on a proper understanding of the law in determining that Egan failed
to show "good cause" to allow Egan to withdraw his plea. See Aguilar, 290 Kan. at 511.
We find no errors of law or fact and find that a reasonable person could have taken the
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view adopted by the trial court. Egan thus fails to show that the district court abused its
discretion by denying his motion to withdraw his plea.
Affirmed.
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