State v. Black

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NOT DESIGNATED FOR PUBLICATION

No. 118,570

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

IAN JAMEEL NORVELL BLACK,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; MARK S. BRAUN, judge. Opinion filed December 21, 2018.
Affirmed in part, reversed in part, and remanded.

Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant.

Jon S. Simpson, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., STANDRIDGE, J., and WALKER, S.J.

PER CURIAM: Subject to the terms of a plea agreement, Ian Jameel Norvell Black
pled guilty to two counts of attempted aggravated sexual battery and one count of
domestic battery, third offense. After he entered his guilty plea but before his sentencing,
Black filed a motion to withdraw his guilty plea and to set the matter for trial. The district
court denied that motion. Black appeals, claiming the district court abused its discretion
by denying his motion to withdraw his plea. For the reasons stated below, we affirm in
part, reverse in part, and remand.


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FACTS

Black was charged with one count of rape, one count of aggravated criminal
sodomy, and one count of domestic battery. At the preliminary hearing, the alleged
victim, M.B., testified she was living with Black at the Topeka Rescue Mission at the
time the crimes occurred. Black recently had been released from prison and was married
to M.B. While Black had been in prison, however, M.B. had an affair with another man,
T.W., and became pregnant. Black reportedly knew about the affair and the pregnancy
and was upset about it, but he was willing to try to work things out with M.B. The two
did not discuss the pregnancy very often, but when they did, Black encouraged M.B. to
get an abortion.

On the evening of the attack, Black and M.B. were alone together in their room at
the Topeka Rescue Mission when Black found a video of M.B. and T.W. on M.B.'s old
phone. This discovery sparked another discussion about M.B.'s pregnancy. During the
discussion, Black again told M.B. that he wanted her to get an abortion. She refused, and
the conversation quickly escalated into an argument. As the argument wore on, Black
became more upset and eventually struck M.B. on the left side of her face with enough
force that she felt dizzy and saw "stars." He then pulled up a picture of M.B. and one of
her female friends and told M.B. that he was going to make them both perform oral sex
"and then he was going to . . . fuck her."

After showing her the picture, Black grabbed M.B. by her hair and pushed her
head down towards his crotch. His penis was exposed and he forced M.B. into oral sex,
telling her that if she refused he was going to "fuck [her] up." M.B. stated that she was
afraid of Black and that she understood his comment to mean that he would hit her again
if she did not do what he wanted. The forced oral sex lasted for approximately two to
three minutes, after which Black pushed M.B. back onto the bed and climbed on top of
her. M.B. reported that Black was crying and telling her that she had "broke him" and
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"fucked up the marriage." Black then raised M.B.'s dress, exposing her genitals, and
began to forcibly have sexual intercourse with her. This continued for approximately 10
additional minutes, during which time M.B. repeatedly told Black that she was afraid and
that she did not want to have sex with him. Eventually, Black ended the assault and laid
down on the bed next to M.B.

As soon as Black laid down on the bed, M.B. got up, left the room, and went
downstairs to the front desk of the mission where she told a staff member that Black had
hit her but refrained from mentioning the sexual assault. The staff member put M.B. in a
separate room and told Black to stay away from her. Black initially hung around the
mission but left soon after learning that M.B. had called the police. When the police
arrived, M.B. told them about the attack, including the sexual assault. M.B. was
transported to the hospital for an examination.

Based on the testimony set forth above, the district court found probable cause at
the preliminary hearing to proceed to trial on all three counts. Black waived formal
arraignment, and the court set the trial for August 31, 2015.

Immediately after the preliminary hearing, Black attempted to contact M.B. and
was subsequently charged with two additional counts: one for intimidation of a
witness/prevent testimony or attendance and one for violation of a protective order. Black
was therefore facing a five-count complaint, that carried with it a potential punishment of
54 years in prison if convicted on all counts, when trial proceedings began on August 31,
2015.

On the day of trial, after the jury was selected but before it was sworn in, the State
approached Black with a plea offer: if Black would plead guilty to two reduced counts of
attempted sexual battery and one count of domestic battery, the State would dismiss the
remaining two counts and recommend that Black be sentenced to a cumulative total of 59
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months in prison. Black's attorney at the time, Joseph Huerter, testified later that the plea
offer came about because M.B., who recently had given birth, was suffering from
postpartum depression and was therefore not in a mental state conducive to providing
testimony for the State as a witness. Black accepted the State's offer and pled guilty the
next day to the amended charges. The district court accepted his guilty pleas, and the
matter was set for sentencing on October 30, 2015.

Before sentencing, however, Black indicated that he wanted to withdraw his guilty
plea and take the case to trial. Huerter subsequently filed a motion to withdraw as
counsel, which the district court granted on October 30, 2015. The district court then
continued the matter to allow time for Black to obtain new counsel. But before obtaining
new counsel, Black filed a pro se motion to withdraw his plea. In support of this motion,
Black argued that his plea was involuntary and he entered into the plea agreement
without full knowledge of the charge or the sentence that could be imposed. Black's pro
se motion also expressed a desire to go to trial because he was innocent.

After new counsel was appointed, Black, with the assistance of his new counsel,
filed an expanded motion in which he argued that good cause existed to withdraw his
plea because: (1) he consistently denied committing a sex crime and the case against him
had weaknesses, (2) his former counsel provided ineffective assistance, and (3) emotional
factors unduly influenced him to plead guilty at the time he entered his plea.

An evidentiary hearing on Black's motion was held over the course of three
different days. At the close of the evidentiary hearing, the district court issued a written
order denying Black's request to withdraw his guilty plea. Specifically, the district court
found: (1) that Black failed to establish a claim of actual innocence; (2) that under the
Strickland standard for ineffective assistance of counsel, Huerter's representation of
Black was competent and that any deficiencies were not prejudicial to Black; and (3) that
Black's claim that he was unduly influenced by emotional factors at the time he took the
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plea was not supported by credible evidence. Following that denial, and in accordance
with the plea deal, the district court sentenced Black to 59 months in prison. Black
appeals from the district court's decision to deny his presentence motion to withdraw
plea.

STANDARD OF REVIEW

Generally, an appellate court will not disturb a district court's decision to deny a
presentence motion to withdraw a plea unless the defendant can show the district court
abused its discretion. State v. DeAnda, 307 Kan. 500, 503, 411 P.3d 330 (2018). A
judicial action constitutes an abuse of discretion if (1) no reasonable person would take
the view adopted by the district court, (2) the action is based on an error of law, or (3) the
action is based on an error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587
(2015). Black bears the burden of establishing an abuse of discretion. See State v. Fritz,
299 Kan. 153, 154, 321 P.3d 763 (2014). This court does not reweigh evidence or assess
witness credibility; we give deference to the district court's factual findings so long as
those findings are supported by substantial competent evidence. State v. Anderson, 291
Kan. 849, 855, 249 P.3d 425 (2011). Nevertheless, we have unlimited review over
whether the district court's discretionary decision was guided by erroneous legal
conclusions.

ANALYSIS

By statute, the district court has discretion to grant a defendant's presentence
motion to withdraw a plea if the defendant shows good cause for doing so. K.S.A. 2017
Supp. 22-3210(d)(1). To determine whether good cause exists to grant a motion to
withdraw filed before sentencing, the district court considers three factors: (1) whether
competent counsel represented the defendant; (2) whether someone misled, coerced,
mistreated, or unfairly took advantage of the defendant; and (3) whether the defendant
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fairly and understandingly entered the plea. State v. Edgar, 281 Kan. 30, 36, 127 P.3d
986 (2006). The defendant does not need to establish all three factors to demonstrate
good cause to withdraw the plea; the district court may also consider other factors in
making its determination. State v. Ebaben, 294 Kan. 807, 812, 281 P.3d 129 (2012).

Black claims the district court abused its discretion in finding that the following
factors did not establish the good cause necessary to grant his motion to withdraw plea:
(1) his counsel failed to provide him competent representation, (2) he did not fairly and
understandingly enter into his plea, and (3) he was innocent.

1. Competent representation

Black argued to the district court that counsel's failure to competently represent
him was sufficient good cause to grant his motion to withdraw his plea. Finding defense
counsel provided Black with competent representation, the district court held Black had
failed to establish the requisite good cause necessary to grant the motion.

On appeal, Black argues the district court abused its discretion in finding his
counsel competently represented him because the court's decision was the result of both
legal and factual mistakes.

a. Legal mistake

Black claims the district court erred as a matter of law by evaluating the
competency of Huerter's representation under the constitutional standard for ineffective
assistance of counsel rather than the much less stringent lackluster advocacy standard that
should have been applied under K.S.A. 2017 Supp. 22-3210(d).

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As set forth above, the first Edgar factor to consider when evaluating whether
good cause exists to grant a presentence motion to withdraw his plea is the competence of
counsel's representation. 281 Kan. at 36. That factor, however, "should not be
mechanically applied to demand that a defendant demonstrate ineffective assistance
arising to the level of a violation of the Sixth Amendment [to the United States
Constitution]." State v. Aguilar, 290 Kan. 506, 512-13, 231 P.3d 563 (2010). Indeed:

"It is neither logical nor fair to equate the lesser K.S.A. 22-3210(d) good cause
standard governing a presentence plea withdrawal motion to the high constitutional
burden. The Edgar factors do not transform the lower good cause standard of the statute's
plain language into a constitutional gauntlet. Merely lackluster advocacy . . . may be
plenty to support the first Edgar factor and thus statutory good cause for presentence
withdrawal of a plea." 290 Kan. at 513.

By contrast, the constitutional standard for ineffective assistance of counsel requires a
defendant to show that "(1) counsel's performance was deficient, and (2) counsel's
deficient performance was sufficiently serious to prejudice the defense and deprive the
defendant of a fair trial." Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007) (citing
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]).

Here, citing Bledsoe, the district court first noted that to establish a claim for
ineffective assistance of counsel, "a defendant must prove (1) that counsel's performance
was deficient, that it fell below standard; and (2) that the deficiency was serious enough
to prejudice the defendant and his [or her] ability to receive a fair trial." The district court
then went on to find that Black "failed to meet his burden to establish the first ground—
that counsel's conduct or performance was deficient." The district court also found that
even if Huerter's performance was deficient, Black "would still have taken the plea" and
therefore "was not prejudiced by any assumed failures of prior counsel." As a result, the
district court concluded that Huerter "was competent in the advice and recommendations
regarding [Black's] plea agreement."
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The State concedes in its brief that the district court's analysis incorrectly applied
the constitutional standard when, under K.S.A. 2017 Supp. 22-3210(d), it should have
applied the much less stringent lackluster advocacy standard. The district court's finding
that Huerter competently represented Black is therefore based on an error of law and
constitutes an abuse of discretion by the district court.

Although conceding the district court abused its discretion based on an error of
law, the State argues the district court's error was harmless and therefore does not warrant
either reversal or remand. In support of this argument, the State points to a number of
unpublished decisions by this court. See State v. Tipton, No. 115,442, 2017 WL 383437,
at *3 (Kan. App.) (unpublished opinion), rev. denied 306 Kan. 1330 (2017); State v.
McMillan, No. 112,802, 2016 WL 463780, at *7-8 (Kan. App. 2016) (unpublished
opinion), rev. denied 306 Kan. 1327 (2017); State v. Brown, No. 107,724, 2013 WL
195907, at *2-3 (Kan. App. 2013) (unpublished opinion). But each of the cases cited by
the State are legally distinguishable from the case at hand. Specifically, none of the cases
hold that the district court applied the wrong legal standard; instead, the cases
hypothesize that if the district court had applied the wrong legal standard, such an error
would be harmless. Tipton, 2017 WL 383437, at *3; McMillan, 2016 WL 463780, at *7-
8; Brown, 2013 WL 195907, at *2-3. We agree with the decision made by a panel of our
court; application of the wrong legal standard requires a reversal and remand. See State v.
Locke, 34 Kan. App. 2d 833, 836, 125 P.3d 584 (2006). Accordingly, we remand this
case with directions for the district court to apply the correct legal standard for evaluating
the competency of counsel in a presentence motion to withdraw plea. See 34 Kan. App.
2d at 836 ("It is not [the Court of Appeals'] function to review the record to determine if
[the defendant] established 'good cause' to withdraw his plea. [That] judgment must first
be exercised by the district court.").



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b. Factual mistake

At the hearing before the district court on the motion to withdraw plea, Black
argued to the court that Huerter's failure to provide him with full access to discovery in
this case established the good cause necessary to allow him to withdraw his plea.
Specifically, Black pointed to discovery in the form of an audio recording of M.B.'s
interview with police, which Black claimed was inconsistent with the written police
report on the issue of whether the mess in the room at the shelter was caused by the kids
(as stated in the audio recording) or by the assault (as stated in the police report). Black
claimed he never would have considered taking the plea if he had been provided the
audio recording establishing this inconsistency.

The district court was not persuaded by Black's argument. First, the court found
Huerter did provide Black with a transcript of M.B.'s recorded statement "as part of the
written discovery." Next, the court found Detective Brian Hill's report made no mention
of a mess in the room, which the court found to be consistent with M.B.'s recorded
statement regarding the cause of the mess. Finally, the court found that even if counsel
was deficient as alleged, Black "would still have taken the plea" and therefore Black "was
not prejudiced by any assumed failures of prior counsel."

On appeal, Black alleges the district court abused its discretion in finding his
counsel competently represented him because its decision was based on factual mistakes.
Black alleges the first factual mistake occurred when the district court found that Huerter
provided Black with a transcript of M.B.'s recorded statement "as part of the written
discovery." Black claims the district court's finding is not supported by the evidence in
the record. The State concedes that, to the extent the district court was under the
impression that Huerter provided written discovery to Black that included a verbatim
transcript of M.B.'s recorded statement, it was a factual error.
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Black alleges the second factual error occurred when the district court found
Detective Hill's report made no mention of a mess in the room. The State concedes the
court's finding that Detective Hill makes no mention of a mess in the room is factually
incorrect. Indeed, Detective Hill's report makes direct reference to the cause of the mess
in the room when, in the section describing the interview with M.B., it states: "[M.B.]
had advised that the room was a mess from the assault and that there would be a torn up
marriage license that [Black] tore up, a wash rag on the bed area and a pillow that was
used."

Notwithstanding these two factual errors made by the district court, both of which
the State concedes, the district court found that even if counsel was deficient as alleged,
Black's claim that he would not have taken the plea but for the errors was not credible
and therefore Black "was not prejudiced by any assumed failures of prior counsel." But as
noted in the preceding subsection, the court's analysis incorrectly applied the
constitutional standard of deficient performance and prejudice when, under K.S.A. 2017
Supp. 22-3210(d), it should have applied the much less stringent lackluster advocacy
standard. Because we already have ordered the matter to be remanded based on a legal
error, we direct the court on remand to consider only those facts supported by the record
in applying the correct legal standard for evaluating the competency of counsel in a
presentence motion to withdraw plea. See Locke, 34 Kan. App. 2d at 836 ("It is not [the
Court of Appeals'] function to review the record to determine if [the defendant]
established 'good cause' to withdraw his plea. [That] judgment must first be exercised by
the district court.").

2. Fairly and understandably enter into plea

Black argues that the district court abused its discretion when it found that his
pleas were fairly and understandably made. Specifically, Black claims the court's finding
in this regard was based on the two mistakes of fact set forth above: the court's finding
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that Black was provided with a transcript of M.B.'s recorded statement "as part of the
written discovery" and that Detective Hill's report made no mention of a mess in the room
and was therefore consistent with M.B.'s recorded statement regarding the cause of the
mess.

In addition to the competence of counsel, another factor that the district court
should consider when evaluating Black's presentence motion to withdraw his plea is
whether the plea was fairly and understandably made. Edgar, 281 Kan. at 36. Our
Supreme Court has held that the judge presiding over a plea hearing is in the best position
to observe the defendant's demeanor at the hearing in order to compare it to the testimony
and evidence presented at a later hearing on the defendant's motion to withdraw plea.
State v. Macias-Medina, 293 Kan. 833, 839, 268 P.3d 1201 (2012). As a general rule,
"appellate courts will not overturn a trial court's weighing of the evidence or assessment
of witness credibility from a cold record." State v. Schaefer, 305 Kan. 581, 595, 385 P.3d
918 (2016).

At the hearing on the motion to withdraw his plea, Black argued he never would
have entered the plea agreement if he had known about certain factual inconsistencies
between the victim's recorded statement and law enforcement's description of the victim's
statements provided to Black in the discovery process. In rejecting Black's argument, the
district court specifically determined that Black was not credible when he claimed that he
would never have pled guilty if he had known about and been given a chance to review
the audio recording of M.B.'s statement prior to entering his plea. Specifically, the district
court stated:

"[T]he court believes that [Black] understood exactly what he was doing when he entered
his pleas. He is relatively intelligent. While his spelling is not the best, but he appears [to]
be fairly articulate and with a broad vocabulary. The court believes his primary goal was
to avoid the possibility of one or two severely long sentences for Level 1 sex offenses
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with a criminal history of 'A'. He met that goal by entering pleas to two Level 7 felonies
and an unclassified felony with a probable combined 59-month sentence. While the court
believes he is fairly intelligent, the court also believes he will say what he needs to now
get his plea withdrawn. He lied to [M.B.], or states he did. He states he lied to (or was
'dishonest' with) the court at the time of the plea. The court does not find [Black] to be
credible."
. . . .
"Based on all evidence that the court has seen and heard, the court finds that the outcome
would not have been different. The court believes that there is so little new real
information gained in the discovery that should have been available to [Black] through
his counsel, that in the end, [Black] would still have had to weigh the possibility of one or
two severely long sentences against the certainty of a much shorter sentence. The court
finds that [Black] would still have taken the plea under those circumstances."

As is apparent from this excerpt from the district court's memorandum decision
and order, the district court did not rely on any factual error in coming to the conclusion
that Black fairly and understandably entered his plea of guilty. And based on our review
of the record as a whole, a reasonable person could take the view adopted by the district
court on this issue. Accordingly, we conclude the district court did not abuse its
discretion in finding Black fairly and understandably entered his plea of guilty.

3. Actual innocence

As we noted at the outset, the district court is not limited to the three Edgar factors
in deciding whether a defendant has demonstrated good cause to withdraw a plea.
Ebaben, 294 Kan. at 812. In his third claim for relief on appeal, Black argues the district
court abused its discretion in denying his motion to withdraw plea based on innocence,
which necessarily establishes the good cause necessary to grant the motion. Claims of
innocence are factual, not legal. Vontress v. State, 299 Kan. 607, 616, 325 P.3d 1114
(2014). Therefore, we give deference to the district court's factual findings with regard to
Black's claim of innocence so long as those findings are supported by substantial
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competent evidence. Anderson, 291 Kan. at 855. To that end, the court's memorandum
decision and order stated as follows:

"CLAIM OF ACTUAL INNOCENCE
"A. [Black]'s Position
"[Black] argued in his written motion and testified at the hearing, that he is not
guilty of rape or aggravated sodomy, and further denies he committed any act
constituting a sex offense against [M.B.]. [Black] further argues there is no corroborating
evidence of any kind, physical, forensic, or by eye witness testimony, and that the case
comes down to his word against [M.B.]'s word about what happened or did not happen.
[Black] also points out that another resident of the Rescue Mission, [J.K.], would have
testified in [Black]'s favor in this, though there is no evidence to support this. [Black]
concludes that a review of all the evidence—which [Black] was not provided until after
his plea—'supplies the weakness of the facts against' [Black], with reference to the claims
of ineffective assistance of counsel.
"B. State's Position
"The State argues that [Black]'s argument of actual innocence is 'weak tea.' The
State points out that [Black] is no longer cloaked with the presumption of innocence; has
been convicted of three felonies; and bears the burden to establish that he did not commit
a sex offense against [M.B.].
"The State reviews [M.B.]'s preliminary hearing testimony about the acts
committed against her by [Black]; the anger and jealousy regarding [M.B.]'s infidelity
and pregnancy; and [Black]'s acknowledgement in his police interview, as well as his
own testimony, about being angry and ripping up the marriage certificate. The State
reviews a considerable volume of police reports and testimony.
"C. Court's Conclusion
"It is clear that [Black] has interpreted all the evidence in his favor. However, the
court heard the preliminary hearing—for purposes of probable cause—and recalls the
testimony of several witnesses who, if believed by a jury, could reasonably find that
[Black] was indeed angry and jealous about [M.B.]'s infidelity and her refusal to get an
abortion. [Black] initially denied—and continues to deny—that he committed any sex
offense, much less the originally charged Rape and Aggravated Criminal Sodomy. The
court rejects that it is just [Black]'s word against [M.B.]'s word. The preliminary hearing
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included testimony of [C.R.] that [Black] acknowledged hitting [M.B.], but that the two
then had make-up sex. [Black] denied to police that he had hit [M.B.], or that the two had
sex that day.
"It is not really known what [J.K.] would testify about or how [J.K.] would do on
cross-examination. [Black] did have a subpoena issued for [J.K.].
"The court also notes that in one of [Black]'s letters to [M.B.], written well after
his plea and the filing of his pro se motion to withdraw his plea, [Black] admitted that he
did not know what happened. . . . He admits that he 'smacked' her a couple of times, but
that all he knew was that he 'put his hands on her.' He then states he 'was so fucking
scared because (he) couldn't remember.' He then appears to believe it must have been
consensual because there was only one time she 'ever denied me my pussy.' There were
comments in the letter about him being 'so fucking angry' about a video on [M.B.]'s
telephone of [M.B.] with the suggested father of the child. Again, he claimed he did not
know what happened—but if everything she claimed happened, . . . he was so 'fucking
sorry.' He then claims that 'for all these months ive (sic) been trying to remember but I
cant (sic). Why not deny it all if I cant (sic) remember?!'
"The court recognizes that [Black] stated in a later letter . . . that he was 'lying his
ass off' in the last letter, and that, as a matter of fact, he had been lying in most of his
letters. [Black]'s letters and some of the recorded jail visits . . . indicate [Black] has his
own credibility problem for a jury to consider. It is also clear that [Black] is trying to get
[M.B.] to change her testimony. As noted earlier in one of the recorded jail visits, [M.B.]
asks [Black] why she would change her mind and lie about what happened.
"[Black] testified that there are a number of inconsistencies in her various
statements to law enforcement and others. Most of those are not necessarily
inconsistencies in the form of contradictions, but rather, as appears common in the court's
experience of hearing witnesses testify and be cross-examined, various things
remembered and/or forgotten as multiple interviews are done, or different people asking
questions a different way.
"The court has reviewed all exhibits admitted in this case. There are multiple
examples in the letters, the recorded visits, and testimony in which [Black]'s statements
are generally self-serving in order for him to get out of jail, to get back with [M.B.], and
to get back with his daughters. One of those is the reference in the State's argument
regarding State's Exhibit Nos. 7 and 8. [Black] also just wants to go back to the way
things were before these events occurred in March 2015, and just have this all
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disappear—to get the results he wants, not necessarily because, as he claims, nothing
happened.
"The court finds and concludes that [Black] has not established a claim of actual
innocence."

The district court thoroughly reviewed Black's claim of innocence and cited
substantial competent evidence to support its conclusion that Black had failed to offer
credible evidence to support his claim of innocence. We find that reasonable persons
could share the district court's conclusion and that the court's decision was not based on
an error of law or an error of fact. For these reasons, we conclude the district court did
not abuse its discretion in denying Black's motion to withdraw plea based on his claimed
innocence.

We affirm the district court's decision denying Black's motion to withdraw his plea
based on Black's claim that he did fairly and understandably enter his plea and based on
Black's claim of innocence. We reverse the district court's decision denying Black's
motion to withdraw his plea based on Black's claim that counsel failed to provide him
competent representation and remand that claim with directions for the district court to
reconsider it by applying the correct legal standard for evaluating the competency of
counsel in a presentence motion to withdraw his plea and by considering only those facts
supported by the record.

Affirmed in part, reversed in part, and remanded.