State v. Plotner

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,635

STATE OF KANSAS,
Appellee,

v.

THOMAS DALE PLOTNER,
Appellant.


SYLLABUS BY THE COURT

1.
At any time before sentencing, a district court has discretion to permit a plea to be
withdrawn for good cause shown.

2.
In reviewing a presentence denial of a motion to withdraw a plea, an appellate
court utilizes an abuse of discretion standard of review. Defendants bear the burden of
establishing an abuse of discretion.

3.
In determining whether a defendant has shown good cause to permit the
withdrawal of a plea, factors to consider include whether: (1) the defendant was
represented by competent counsel; (2) the defendant was misled, coerced, mistreated, or
unfairly taken advantage of; and (3) the plea was fairly and understandingly made.

4.
An abuse of discretion standard applies to an appellate court's review of a district
court's determination as to whether mitigating circumstances presented under K.S.A. 21-
4643(d) are substantial and compelling reasons for a departure sentence.

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5.
An illegal sentence is one imposed by a court without jurisdiction, a sentence
which does not conform to the statutory provision, either in character or the term of the
punishment authorized, or a sentence which is ambiguous with regard to the time and
manner in which it is to be served.

6.
Generally, constitutional issues cannot be asserted for the first time on appeal
unless: (1) The newly asserted claim involves only a question of law arising on proved or
admitted facts and is determinative of the case; (2) consideration of the claim is necessary
to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the
district court is right for the wrong reason.

Appeal from Ford District Court; VAN Z. HAMPTON, judge. Opinion filed June 25, 2010.
Affirmed in part and reversed in part.

Heather Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

David Belling, deputy county attorney, argued the cause, and Terry J. Malone, county attorney,
and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: Thomas D. Plotner appeals his conviction and sentence for three counts
of rape of a child under the age of 14 in violation of K.S.A. 21-3502(a)(2). Prior to
sentencing, he filed a motion to withdraw his plea to those charges, which was denied.
The district court sentenced him on each count to life in prison with a 25-year mandatory
minimum sentence under K.S.A. 21-4643, commonly known as Jessica's Law, but
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ordered the sentences to run concurrently to one another. This court has jurisdiction under
K.S.A. 22-3601(b)(1) (off-grid crime; life sentence).

These questions are raised on appeal: (1) Was Plotner entitled to withdraw his
plea? (2) Did the district court abuse its discretion by failing to grant a downward
durational departure? (3) Did the district court err by issuing a no-contact order? and (4)
Is the statutorily-mandated lifetime postrelease supervision order constitutional?

We affirm Plotner's conviction and sentence except for the no-contact order, which
the State concedes was an illegal sentence. We reject all other challenges Plotner raises in
this appeal. The no-contact order is vacated. The remainder of Plotner's sentence is valid.
See State v. Post, 279 Kan. 664, 112 P.3d 116 (2005) (vacating no-contact order; refusing
to disturb remainder of sentence). We explain our decision below.

FACTUAL AND LEGAL BACKGROUND

The State charged Plotner with seven off-grid crimes after two of his three step-
daughters, all of whom were under the age of 14, alleged he had inappropriately touched
them between July 2006 and April 2007. Plotner also admitted to having inappropriate
sexual relations with all three. Those charges included three counts of rape of a child
under the age of 14 in violation of K.S.A. 21-3502(a)(2); three counts of aggravated
indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A); and one count of
sexual exploitation of a child in violation of K.S.A. 21-3516(a)(5).

Plotner entered a plea agreement the day his arraignment was scheduled. In
exchange for pleading guilty to the three rape charges, the State dropped the four other
charges. There was no joint recommendation for sentencing. Plotner was free to seek a
downward departure, and the State could seek the maximum sentence possible.
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Approximately 6 weeks after entering his guilty plea, but prior to sentencing,
Plotner asked to withdraw his plea and have a new attorney appointed to represent him.
The district court assigned Plotner new counsel, who filed a motion to withdraw the
guilty plea, claiming it was not knowingly or voluntarily made.

The same district court judge who presided over the initial plea proceeding also
conducted the hearing on the motion to withdraw Plotner's guilty plea. Plotner testified,
as did Linda Eckelman, the court-appointed counsel who had negotiated his plea
agreement. The district court denied the motion based on its determination that Eckelman
had adequately represented Plotner, and that Plotner had knowingly and voluntarily
entered his guilty plea. The district court also noted there was overwhelming evidence of
guilt. While it is unnecessary to recite all of the evidence here, it is sufficient to say it
included Plotner's videotaped confession, DNA evidence, and a videotape depicting
Plotner engaging in sex with the eldest victim.

Plotner then filed a motion seeking a competency evaluation, which was granted.
The evaluation reflected Plotner had an I.Q. of 91, an average score, and was suffering
some mild to moderate symptoms of depression due to his circumstances.

A motion for a downward durational sentencing departure was filed. In that
motion, Plotner asserted the following mitigating circumstances: he was 30 years old; he
had no prior felony convictions; at the time of the crimes he was under stress related to
the breakup of his marriage; and his intellectual abilities were limited, affecting his
ability to comprehend the seriousness of his conduct. At the sentencing hearing, Plotner
also asked the district court to consider the mental health evaluation, the motion to depart,
letters he had written to the court, his confession to police, and his statement attached to
the presentence investigation report. It was argued these showed Plotner had a very
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limited, and almost childlike, understanding regarding the seriousness of the crimes he
committed.

The district court found Plotner had failed to present substantial and compelling
reasons to depart from the statutorily-mandated sentence of 25 years to life for each
count. But rather than run the three sentences consecutively, as the State had requested,
the district court ordered Plotner's sentences to run concurrently. The district court also
ordered restitution, lifetime postrelease supervision, payment of some costs, and that
Plotner have no contact with the victims. Plotner timely appealed.

ANALYSIS

Plotner's motion to withdraw his guilty plea was properly denied

Whether Plotner's guilty plea may be withdrawn is controlled by K.S.A. 22-
3210(d), which provides, "A plea of guilty or nolo contendere, for good cause shown and
within the discretion of the court, may be withdrawn at any time before sentence is
adjudged." This court will not disturb a district court's decision to deny a presentence
motion to withdraw a plea unless the defendant demonstrates the district court abused its
discretion. Defendants bear the burden of establishing an abuse of discretion. State v.
White, 289 Kan. 279, 284-85, 211 P.3d 805 (2009). "'Judicial discretion is abused when
no reasonable person would take the view adopted by the district judge.'" State v. Ortega-
Cadelan, 287 Kan. 157, 165, 194 P.3d 1195 (2008) (quoting State v. Engelhardt, 280
Kan. 113, 144, 119 P.3d 1148 [2005]).

Plotner argues he did not knowingly or voluntarily plead guilty as K.S.A. 22-3210
and this court's jurisprudence require. In response, the State argues the contrary, but also
claims Plotner failed to adequately brief whether the statutory conditions for accepting a
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guilty plea were met. An issue not briefed or raised incidentally without argument is
deemed abandoned. Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008). But
Plotner's appellate brief adequately addressed the issue. We reject the State's latter
argument without further comment.

When evaluating whether a defendant demonstrates "good cause" sufficient to
withdraw a guilty plea under K.S.A. 22-3210(d) factors to consider may include whether:
(1) the defendant was represented by competent counsel; (2) the defendant was misled,
coerced, mistreated, or unfairly taken advantage of; and (3) the plea was fairly and
understandingly made. White, 289 Kan. at 285; see also State v. Sanchez-Cazares, 276
Kan. 451, 454, 78 P.3d 55 (2003). In reviewing the record, we hold the district court
properly considered whether there was good cause to permit Plotner to withdraw his plea.

At the hearing on the motion to withdraw the guilty plea, Plotner testified his first
court-appointed attorney (Eckelman) never visited him in jail. Plotner claimed Eckelman
only met with him twice before his plea, and each meeting was only 15 to 20 minutes in
duration. He testified Eckelman never reviewed the police reports with him and refused
to watch a relevant videotape. He testified he never asked about a plea agreement, nor
had he and Eckelman discussed one prior to the day it was presented to him. Plotner
alleged he had no notice of the arraignment date and, upon arriving at court, was
surprised to see Eckelman and the prosecutor discussing a plea bargain. After the
prosecutor left, Plotner said he and Eckelman discussed the plea for 10 minutes.

Eckelman, who by the time of the withdrawal hearing had been replaced by new
court-appointed defense counsel, also testified. She contradicted Plotner's account of her
representation. She testified she visited Plotner in jail and met with him three times, two
of which meetings were approximately an hour in length. She also testified she watched
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the videotape and discussed with Plotner the overwhelming weight of evidence against
him, specifically, that the videotape depicted Plotner and a victim having sex.

Eckelman also stated that from their initial meeting Plotner raised the possibility
of a plea and that he had always been extremely remorseful, wishing only to "get this
over with." Her version of the plea negotiation also differed from Plotner's. She said after
he arrived at court that morning, she requested that the prosecutor discuss the plea with
them both to ensure she had the details correct. She estimated she and Plotner met for an
hour before he entered his guilty plea.

The plea hearing transcript supports Eckelman's version of the events, showing
that she explained Plotner's sentence to him and inquired whether he understood her
explanation. She also asked whether he needed more time to make his decision, to which
he answered no, and whether he had had access to all the evidence in the case except the
videotape, to which he answered yes. She then addressed his mental capabilities. Plotner
indicated he was of sound mind and was a high school graduate who had worked in a
local company's shipping department for the last 11 years.

The plea hearing transcript also shows the district court made its own inquiry of
Plotner as K.S.A. 22-3210 requires. The district court asked him whether he understood
he had the right to plead not guilty, receive a jury trial, confront witnesses, and
potentially be found not guilty if the State did not meet its burden of proof; whether he
understood there was no difference in his maximum punishment for entering a guilty
plea; whether he felt like he was under any coercion, threat, force, or timetable; whether
he understood the possible sentence; whether he was pleading guilty because he believed
he was guilty; and whether he understood the consequences of his plea. As to each
inquiry, Plotner indicated he understood and answered he was pleading guilty because he
believed he was guilty. This exchange also confirmed Plotner had previously received a
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copy of the complaint, a reading of the charges subject to the plea agreement, and an
explanation that the charges were off-grid crimes requiring a life sentence.

In denying the motion to withdraw the guilty plea, the district court concluded
Eckelman adequately represented Plotner and Plotner made his plea knowingly and
voluntarily. The district court based the latter conclusion on evidence that Plotner was
informed of all the charges and knew which counts would be dismissed in exchange for a
plea and was informed of the possible sentence.

The district court found it was clear from the plea transcript Plotner knew his plea
would result in a 25-years-to-life sentence. The district court also noted an implication in
the record that Plotner viewed the plea as beneficial because it would save his step-
daughters the painful experience of testifying. The transcript reflects the district court
properly considered whether there was good cause for withdrawal and found none.
Further, reasonable people could agree with the district court's assessment.

We hold the district court did not abuse its discretion by denying Plotner's motion
to withdraw his guilty plea.

Plotner's motion for a downward durational departure

The sentencing statute in this case mandates a life sentence with a minimum of 25
years served "unless the judge finds substantial and compelling reasons, following a
review of mitigating circumstances, to impose a departure." K.S.A. 21-4643(a) and (d).
But the statute also provides a nonexclusive list of mitigating factors district court judges
may consider when determining whether there are substantial and compelling reasons for
departure. K.S.A. 21-4643(d)(1)-(6). An appellate court reviews "a district court's
9



determination of whether mitigating circumstances presented under [K.S.A. 21-4643] are
substantial and compelling" for an abuse of discretion. Ortega-Cadelan, 287 Kan. at 165.

Plotner argues the following mitigating circumstances: (1) He took responsibility
for his actions; (2) he showed deep remorse for his actions; (3) he purposefully pled
guilty in order to save the victims from testifying at trial; (4) the sexual acts between him
and the oldest victim were not committed forcefully; (5) he had no significant criminal
record prior to this crime–specifically, no prior sexually-motivated convictions; (6) he
was relatively young at the time the crimes were committed; and (7) even with the
requested downward departure, he would serve a considerable sentence.

A district court judge is required to undertake a two-step analysis when
determining whether a departure motion should be granted. A district court judge first
reviews the mitigating circumstances, and then determines whether substantial and
compelling reasons warrant a departure. State v. Spotts, 288 Kan. 650, 655, 206 P.3d 510
(2009) (citing Ortega-Cadelan, 287 Kan. at 164). Specificity by the district court judge
when making his or her determination is not statutorily required, though specificity is
required if the district court judge decides departure is warranted, i.e., in those
circumstances "the judge shall state on the record . . . the substantial and compelling
reasons for departure." K.S.A. 21-4643(d).

Here, after considering the circumstances Plotner advanced, which included:
listening to arguments made by his attorney, listening to a statement by Plotner, and
reviewing the motion for downward durational departure; listening to the State's
arguments; and reading the victims' statements, the district court concluded Plotner had
failed to present substantial and compelling mitigating circumstances. This was a
sufficient evaluation.

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For its explanation, the district court stated it could not grant a downward
durational departure without substantial and compelling reasons to do so. Further, it noted
the "reprehensible nature" of Plotner's crimes and the legislature's intent to tie Jessica's
Law sentences to the psychological damage children forced into sexual relationships
suffer. The district court concluded that it found no reason to depart, but did order
Plotner's sentences to run concurrently. While the district court did not explain its
conclusion as thoroughly as the district courts in Spotts and Ortega-Cadelan, its
explanation satisfies K.S.A. 21-4643(a) and (d).

Reasonable people could agree with the district court's evaluation and conclusion.
The district court did not abuse its discretion when it denied Plotner's motion for a
downward sentencing departure.

The no-contact order constituted an illegal sentence

Plotner next argues the no-contact order the district court imposed is an illegal
sentence because it fails to conform with K.S.A. 21-4603d(a), the statute governing
authorized dispositions for those found guilty of a crime. He argues this failure requires
remand for resentencing.

An illegal sentence is one imposed by a court without jurisdiction, a sentence
which does not conform to the statutory provision, either in character or the term of the
punishment authorized, or a sentence which is ambiguous with regard to the time and
manner in which it is to be served. State v. Davis, 283 Kan. 767, 769, 156 P.3d 665
(2007). The State concedes the sentence is illegal but argues resentencing is not required.
We agree with the State.

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K.S.A. 21-4603d(a) gives district courts a number of sentencing options. Some
authorized dispositions include prison, jail, fines, or probation. The statute also permits
the district court to impose "appropriate combination[s]" of specific dispositions. K.S.A.
21-4603d(a)(11). But when asked to interpret the statute, this court has held sentencing a
defendant to prison and imposing a no-contact order, i.e., a probation condition, was an
inappropriate combination of the statutorily authorized dispositions and constituted an
illegal sentence. State v. Post, 279 Kan. 664, 112 P.3d 116 (2005) (adopting position that
prison and probation, dispositions permitted under K.S.A. 21-4603d(a), are mutually
exclusive). To remedy this illegality, the Post court vacated the offending no-contact
order, but it did not disturb the sentence's remaining valid portions. 279 Kan. at 669.

Post controls this issue. The district court sentenced Plotner to incarceration with
lifetime postrelease supervision and imposed a no-contact order. The relevant portions of
K.S.A. 21-4603d(a) remain unchanged. See L. 2009, ch. 132, sec. 8. As Plotner argues,
the no-contact order was an illegal sentence. But the State correctly contends Post
provides the appropriate remedy. The illegal no-contact condition of Plotner's sentence is
vacated; the remaining portions of his sentence are valid and remain in force.

Constitutional challenge to lifetime postrelease supervision is unpreserved

Plotner argues for the first time on appeal that sentencing a defendant to lifetime
postrelease supervision as provided for in K.S.A. 22-3717(d)(1)(G) constitutes cruel or
unusual punishment in violation of the Eighth Amendment to the United States
Constitution and § 9 of the Kansas Constitution Bill of Rights.

Generally, parties may not raise constitutional issues for the first time on appeal.
But this general rule has three exceptions that enable appellate review, including: "(1)
The newly asserted claim involves only a question of law arising on proved or admitted
12



facts and is determinative of the case; (2) consideration of the claim is necessary to serve
the ends of justice or to prevent the denial of fundamental rights; and (3) the district court
is right for the wrong reason." Ortega-Cadelan, 287 Kan. at 159 (citing Pierce v. Board
of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 [1967]).

In Ortega-Cadelan, this court reviewed fully the applicability those exceptions
have in the context of a defendant's challenge under § 9 of the Kansas Constitution Bill of
Rights to a life sentence imposed under K.S.A. 21-4643(a)(1) when that challenge was
raised for the first time on appeal. The court noted that whether a life sentence under that
statute was cruel or unusual punishment must be analyzed using the three-prong test set
out in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). Ortega-Cadelan, 287
Kan. at 160-61. Those considerations are:

"(1) The nature of the offense and the character of the offender should be
examined with particular regard to the degree of danger present to society; relevant to this
inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the
extent of culpability for the injury resulting, and the penological purposes of the
prescribed punishment;

"(2) A comparison of the punishment with punishments imposed in this
jurisdiction for more serious offenses, and if among them are found more serious crimes
punished less severely than the offense in question the challenged penalty is to that extent
suspect; and

"(3) A comparison of the penalty with punishments in other jurisdictions for the
same offense." Freeman, 223 Kan. at 367.

In reviewing those factors, the Ortega-Cadelan court determined that a Freeman
analysis necessarily intertwines both factual and legal questions, and further noted that no
single legal consideration under Freeman controls the outcome. 287 Kan. at 161.
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Accordingly, the Oretega-Cadelan court determined it needed a record developed at the
district court level to address the factual aspects embedded within the Freeman analysis
in order for the defendant to properly challenge his or her life sentence under K.S.A. 21-
4643(a)(1).

Plotner acknowledges this court has consistently held none of the Pierce
exceptions apply to his issue and that the issue presents mixed questions of law and fact.
See, e.g., State v. Oehlert, 290 Kan. __, 224 P.3d 561, 563-64 (2010); State v. Easterling,
289 Kan. 470, 485-87, 213 P.3d 418 (2009); State v. Mondragon, 289 Kan. 1158, 1162-
65, 220 P.3d 369 (2009); State v. Spotts, 288 Kan. 650, 652-54, 206 P.3d 510 (2009);
Ortega-Cadelan, 287 Kan. at 159-61.

Plotner urges this court to reverse its precedent and consider the issue here,
claiming his trial record is factually sufficient to address the issue. We find otherwise.
Because this issue was not raised below, the record is devoid of the facts this court needs
to evaluate it, i.e., the facts required to apply Freeman. For the reasons explained in
Oehlert, Easterling, Mondragon, Spotts, and Ortega-Cadelan, Plotner cannot raise this
issue for the first time on appeal.

Affirmed in part and reversed in part.

DAVIS, C.J., not participating.

STEVE LEBEN, Judge, assigned.1

1REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was appointed to
hear case No. 101,635 vice Chief Justice Davis pursuant to the authority vested in the
Supreme Court by K.S.A. 20-3002(c).