State v. Palmer ( 2024 )

NOT DESIGNATED FOR PUBLICATION
No. 125,885
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
CURTIS PALMER,
Appellant.
MEMORANDUM OPINION
Appeal from Harvey District Court; MARILYN M. WILDER, judge. Submitted without oral
argument. Opinion filed January 12, 2024. Affirmed.
Charles A. O'Hara, of O'Hara & O'Hara Law Offices, LLC, of Wichita, for appellant.
Natalie Chalmers, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee.
Before HILL, P.J., MALONE and ISHERWOOD, JJ.
PER CURIAM: Curtis Palmer appeals the denial of his postsentencing motion to
withdraw his plea. He claims the district court failed to adequately inform him of his right
to a jury trial. Our review reveals the district court did tell Palmer he had the right to a
trial, which could be to a jury. Considering the facts of this case, we find no abuse of
discretion in the district court's finding that Palmer understood the consequences of his
plea. We affirm the denial of his motion to withdraw his plea.
Palmer committed several violent domestic crimes, including strangling his
girlfriend three times. The State filed seven cases against Palmer. The State made a plea
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agreement with Palmer. In exchange for Palmer pleading no contest to certain counts in
two of the cases, the State agreed to dismiss the remaining counts in those two cases and
dismiss the five additional pending cases against Palmer.
At the plea hearing, the district court addressed Palmer's plea and the
consequences of making a no-contest plea. The district court ensured Palmer knew he had
various legal rights, including but not limited to the right to a trial; the State's burden of
proof at trial; the right to question and subpoena witnesses; and the right to testify. The
district court informed Palmer he had a right to a trial "to a jury or to the Court sitting
alone." The record shows a lengthy discussion between the judge and Palmer.
Palmer and the district court engaged in the following exchange concerning his
trial rights:
"THE COURT: Thank you, sir. Mr. Palmer, do you understand, sir, that you have
the absolute right to a trial in these cases?
"THE DEFENDANT: Yes, ma'am.
"THE COURT: Do you understand that trial can be to a jury or to the Court
sitting alone?
"THE DEFENDANT: Yes, ma'am.
"THE COURT: Do you have a question about that, sir?
"THE DEFENDANT: No.
"THE COURT: And you also understand, sir, that the State has the burden of
proof at those trials meaning you don't have to prove anything at trial? The State has to
prove beyond a reasonable doubt that you committed charged offenses. Do you
understand they have the burden of proof?
"THE DEFENDANT: Yes, ma'am.
"THE COURT: Do you also understand, sir, if these matters would go to trial
you have the right to those trials to question witnesses brought by the State to testify
against you, you have the right to subpoena witnesses to testify for you, and you have the
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right to testify as well as the right to choose not to testify? Do you understand you have
those rights at trial?
"THE DEFENDANT: Yes, ma'am."
After that exchange, the court reviewed the possible pleas and their consequences:
"THE COURT: Do you understand if you enter pleas of either guilty or no
contest there's not going to be a trial, you're giving up that right, you will be found guilty,
and you will be subject to sentencing by the Court?
"THE DEFENDANT: Yes, ma'am.
....
"THE COURT: Sir, do you understand if you plead no contest you're not
admitting to anything, but you're not denying it either? You're allowing the Court to find
you guilty without a trial because you're giving up your right to the trial, you would be
found guilty and you would be subject to sentencing by the Court? Do you understand
that's the impact of a no contest plea?
"THE DEFENDANT: Yes, ma'am.
"THE COURT: Mr. Palmer, has anyone threatened you with anything to get you
to waive your right to trial and enter a plea in these cases?
"THE DEFENDANT: No.
"THE COURT: Has anyone promised anything to you to get you to waive your
right to trial and enter a plea in these cases?
"THE DEFENDANT: No."
The court then discussed Palmer's plea with his counsel:
"THE COURT: Mr. Studtmann, have you reviewed with Mr. Palmer his right to
trial in these cases and the related rights he has as well as the charges and the potential
penalties he faces under this agreement?
"MR. STUDTMANN: We have, Your Honor. And we did even go through
everything, every case yesterday afternoon, and I gave him a very good detailed letter and
we've had a close relationship throughout this case, and I think Curtis understands each
and every charge and each and every thing he is admitting through a no contest plea, and
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I think he has made a decision based upon all the evidence and taking everything into
consideration."
Ultimately, Palmer pled no contest to aggravated burglary, a severity level 4
person felony; two counts of aggravated intimidation of a witness, a severity level 6
person felony; and three counts of aggravated domestic battery, a severity level 7 person
felony.
At sentencing, the district court denied Palmer's request for a dispositional
departure but granted him a durational departure in one case to a prison sentence of 80
months instead of 162 months. In the second case, the district court sentenced Palmer to
32 months in prison to be served consecutively to the first sentence. After the sentencing
hearing, Palmer retained new counsel.
With new counsel, Palmer moved to withdraw his plea. In the plea withdrawal
motion, Palmer argued that he did not adequately waive his jury trial right. The district
court held a hearing on the motion. Largely, Palmer relied on the colloquy between
himself and the district court at the plea hearing as evidence for his motion. Palmer also
supported his argument by citing the Kansas Supreme Court's ruling in State v. Harris,
311 Kan. 371, 461 P.3d 48 (2020). Harris involved a defendant waiving his right to a
jury trial in favor of a bench trial, not a plea hearing. Palmer did not testify at the motion
hearing.
The district court denied Palmer's motion. The court made several findings. First,
the court found that when defendants enter a plea and waive their right to trial, the court
need not engage a "specific type of questioning." The district court noted Palmer was
represented by counsel at the plea hearing and that the court "spent a lot of time going
through that plea agreement" with Palmer. The court asked Palmer if he had any
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questions about the plea. And the court asked defense counsel whether he believed the
defendant understood the consequences of his plea and his rights. The court was assured
that Palmer understood his rights.
To us, Palmer contends he did not effectively waive his right to a jury trial at the
plea hearing because he was never told he had the absolute right to a jury trial; he was
only informed of his right to a trial in general. The word "jury" was only uttered once
during the plea hearing. He argues this makes the plea ineffective and void. He also
argues manifest injustice occurred because the plea was not fairly and understandingly
made.
We review a district court's decision to deny a motion to withdraw a guilty or no-
contest plea for an abuse of discretion. See State v. Ellington, 314 Kan. 260, 261, 496
P.3d 536 (2021). "The movant bears the burden to prove the district court erred in
denying the motion." State v. Hutto, 313 Kan. 741, 745, 490 P.3d 43 (2021).
After sentencing, the court may set aside the judgment and permit a defendant to
withdraw a plea if necessary to "correct manifest injustice." K.S.A. 2022 Supp. 22-
3210(d)(2). Factors a court generally considers in determining whether a defendant has
shown the manifest injustice necessary to withdraw a plea after sentencing include (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. Hutto, 313 Kan. at 745; State v. Frazier, 311 Kan.
378, 381, 461 P.3d 43 (2020). These factors should not "be applied mechanically and to
the exclusion of other factors." State v. Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014).
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Under K.S.A. 2022 Supp. 22-3210(a), a no-contest plea may be accepted by the
trial court when:
"(1) The defendant or counsel for the defendant enters such plea in open court;
and
"(2) in felony cases the court has informed the defendant of the consequences of
the plea, . . . ; and
"(3) in felony cases the court has addressed the defendant personally and
determined that the plea is made voluntarily with understanding of the nature of the
charge and the consequences of the plea; and
"(4) the court is satisfied that there is a factual basis for the plea."
An accused who enters a plea of guilty or no contest waives certain fundamental
constitutional rights, including the right to trial by jury. State v. Moses, 280 Kan. 939,
946, 127 P.3d 330 (2006). K.S.A. 2022 Supp. 22-3210(a)(2) and (3) require the court to
inform the accused that by a entering such plea, he or she is waiving these constitutional
rights and to determine that the accused voluntarily entered the plea with an
understanding of the consequences. See Moses, 280 Kan. at 946.
"Long-standing caselaw has required sufficient jury trial waivers before a
defendant proceeds to a bench trial or pleads guilty." State v. Bentley, 317 Kan. 222, 230,
526 P.3d 1060 (2023) (citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23
L. Ed. 2d 274 [1969]). "'[I]n order for a criminal defendant to effectively waive his right
to a trial by jury, the defendant must first be advised by the court of his right to a jury
trial, and he must personally waive this right in writing or in open court for the record.'"
State v. Harris, 311 Kan. 371, 376, 461 P.3d 48 (2020).
There is no "checklist" to which district courts must adhere in advising defendants
of their right to a jury trial. When a defendant reveals confusion or a misunderstanding
about a jury trial, then the district court must address those misconceptions and try to
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explain and clarify the right before accepting a purported waiver of that right. Harris, 311
Kan. at 377.
If the district court fails to inform the defendant of the consequences of a plea, the
error can be deemed harmless and the plea need not be set aside if, upon review of the
entire record, the purpose of K.S.A. 2022 Supp. 22-3210(a)(2) is otherwise served—i.e.,
if a defendant is advised of the plea's consequences in a written plea agreement, by
defense counsel, or in some other way. A court considering a motion to withdraw a plea
should look at the entire plea process—the written plea agreement, if any, counsel's
advice, and the plea colloquy—to see whether the defendant understood the nature and
consequences of a plea. State v. Reu-El, 306 Kan. 460, 473-74, 394 P.3d 884 (2017); see
also State v. Soloman, No. 111,596, 2015 WL 5155081, at *6 (Kan. App. 2015)
(unpublished opinion) (failure of the district judge to specifically state at plea hearing
defendant could have a trial by jury was harmless).
There is no magic number of times the district court needs to say "jury" trial at a
plea hearing. The district court informed Palmer he had the "absolute right to a trial" and
that the trial could be to a jury. The court informed Palmer that by entering a no-contest
plea he was giving up his right to a trial.
Palmer stated he was not threatened or coerced into waiving that right. Palmer was
represented by competent counsel who informed him of his right to trial and all related
rights. Palmer made the decision to plead no contest based on all the evidence in the
seven pending cases and taking everything into consideration. He gave no indication at
the plea hearing that he was confused about his right to a jury trial, and he did not testify
such was the case at the plea withdrawal hearing. Nothing in the record indicates Palmer
would have chosen to exercise his right to a jury trial if the district court had been more
explicit about it. Looking at the entire plea process and the facts and circumstances of this
case, we cannot say the district court abused its discretion in finding Palmer understood
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the nature and consequences of his plea and denying his postsentence motion to withdraw
his plea. Simply put, we find no manifest injustice here.
Affirmed.
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