State v. Bradwell

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NOT DESIGNATED FOR PUBLICATION

No. 115,153

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

OLIVER W. BRADWELL, JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed December 9,
2016. Affirmed in part, vacated in part, and remanded with directions.

Sam Schirer, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before STANDRIDGE, P.J., ARNOLD-BURGER and BRUNS, JJ.

Per Curiam: Oliver W. Bradwell Jr. appeals from the district court's summary
denial of his pro se motion for ineffective assistance of counsel and from the imposition
of restitution. First, Bradwell seeks remand of his ineffective assistance of counsel
motion. Second, he contends that restitution violates Section 5 of the Kansas Constitution
Bill of Rights and the Sixth Amendment of the United States Constitution. Although we
agree that the issue of ineffective assistance of counsel should be remanded, we reject
Bradwell's arguments regarding restitution. Thus, we affirm in part, vacate in part, and
remand for further proceedings.
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FACTS

Bradwell pled guilty to aggravated battery following an incident that occurred at
an International House of Pancakes in the early morning hours of August 17, 2014. As
part of a plea agreement, the State agreed to recommend the mid number in the
appropriate sentencing grid box and to recommend a dispositional departure to probation
with community corrections. The State also agreed not to charge Bradwell in an unrelated
incident for which he had been arrested on September 3, 2015. Moreover, Bradwell
agreed to pay for the victim's medical expenses and to have no contact with the victim.

The plea agreement further provided that the State would not be bound by its
terms if Bradwell were arrested, committed a new offense, violated his bond conditions,
or failed to appear for a court hearing prior to sentencing. Likewise, Bradwell
acknowledged that the plea agreement did not bind the district court. Bradwell also
agreed that his defense attorney had done "a good job counseling and assisting [him], and
[he was] satisfied with the advice and help [his] lawyer [had] given [him]."

At the plea hearing held on September 4, 2015, the district court reviewed with
Bradwell the rights he would be giving up by entering a plea, the possible penalties for
aggravated battery, and the terms of the plea agreement. Specifically, the district court
advised Bradwell that it was not required to place him on probation but could incarcerate
him for his offense. In response, Bradwell indicated that he understood his rights and the
terms of the plea agreement. The district court also discussed the sentencing process and
answered Bradwell's questions regarding probation. Bradwell was again informed that the
plea agreement was not binding upon the district court. At the conclusion of the hearing,
Bradwell entered a guilty plea, which the district court accepted.

After Bradwell entered his plea, the district court modified his bond conditions to
include pretrial services. Moreover, the district court advised Bradwell that he was
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required to contact pretrial services. Although the district court stressed the importance of
reporting to pretrial services, Bradwell failed to report as ordered. Accordingly,
Bradwell's bond was revoked on September 16, 2015, he was taken into custody, and his
bond was set at $75,000.

On October 20, 2015, Bradwell moved for a downward dispositional departure to
probation. At the sentencing hearing held the following day, the district court found that
the State was no longer bound by the plea agreement because of Bradwell's violation of
his conditions of release. The State then recommended the district court sentence
Bradwell to prison because his actions demonstrated he was not amenable to probation.
Bradwell's attorney, however, continued to ask the district court to follow the
recommendations set forth in the plea agreement and place his client on probation.
Ultimately, the district court denied Bradwell's request for a downward dispositional
departure, sentenced him to 45 months of prison time with 36 months of postrelease
supervision, and ordered him to pay restitution in the amount of $9,228.24 to reimburse
the Crime Victims Compensation Board plus an additional $3,440.06 to be paid to the
victim.

On October 29, 2015, Bradwell filed a pro se motion for ineffective assistance of
counsel. Bradwell argued his attorney refused to adequately prepare for his case, ignored
his requests to withdraw his plea prior to sentencing, and coerced him into signing the
plea. Specifically, Bradwell stated that he had "attempted to communicate with [his]
attorney several times before sentencing for [the attorney] to file a motion to withdraw
[his] plea and . . . [the attorney] told [him] at sentencing that it was too late to do so." On
November 4, 2015, Bradwell filed a pro se motion to set aside his plea, arguing that his
attorney was not competent, that his attorney misled him into signing the plea agreement,
and that he did not understand the plea at the time he pled.

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In an order entered on November 4, 2015, the district court summarily denied both
of Bradwell's pro se motions. In the order, the district court found Bradwell's allegations
regarding his claim of ineffective assistance of counsel to be conclusory. It also found
that Bradwell's allegations offered in support of his request to withdraw his plea were not
credible. The following day, the district court allowed Bradwell to file an untimely notice
of appeal.

ANALYSIS

Bradwell raises three issues on appeal. The first issue relates to his motion for
ineffective assistance of counsel, contending that the district court erred in not ordering
an evidentiary hearing on his motion. The other two issues relate to the restitution he was
ordered to pay by the district court. Specifically, Bradwell argues that the Kansas
restitution scheme violates the Kansas Constitution and, as applied to him, violates his
rights under the Sixth Amendment of the United States Constitution.

Motion for Ineffective Assistance of Counsel

We have three options as to how to address a claim of ineffective assistance of
counsel on direct appeal:

"First, an appellate court may follow the general rule and decline to address the issue,
leaving the defendant to pursue relief through a timely K.S.A. 60-1507 motion. See State
v. Levy, 292 Kan. 379, 388-89, 253 P.3d 341 (2011). Second, the appellate court may
remand to the district court for examination of the issue in further proceedings pursuant
to State v. Van Cleave, 239 Kan. 117, 119-21, 716 P.2d 580 (1986). See State v. Dull, 298
Kan. 832, 839, 317 P.3d 104 (2014) ('The usual course of action is a request by appellate
counsel for remand to district court for a hearing on the ineffective assistance claim.').
Finally, although rare, '"there are circumstances when no evidentiary record need be
established, when the merit or lack of merit of an ineffectiveness claim about trial
counsel is obvious," and an ineffectiveness claim can therefore be resolved' by an
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appellate court. 298 Kan. at 839 (quoting Rowland v. State, 289 Kan. 1076, 1084-85, 219
P.3d 1212 [2009]); see State v. Carter, 270 Kan. 426, 433, 14 P.3d 1138 (2000) (remand
would serve no purpose where assessment by trial court unnecessary because record on
appeal sufficiently complete for appellate court to decide issue)." State v. Reed, 302 Kan.
227, 233-34, 352 P.3d 530, cert. denied 136 S. Ct. 344 (2015).

The decision of whether to remand a case to the district court for a Van Cleave
hearing is within the discretion of the appellate court. Van Cleave, 239 Kan. at 119-21.
See also Rowland v. State, 289 Kan. 1076, 1084-85, 219 P.3d 1212 (2009); State v. Allen,
No. 101,367, 2010 WL 3636269, at *3 (Kan. App. 2010) (unpublished opinion). To
warrant a Van Cleave hearing, an appellant "must do more than simply . . . argue that he
or she would have handled the case differently." State v. Levy, 292 Kan. 379, 389, 253
P.3d 341 (2011). Rather, an appellant must present an appellate court with grounds
sufficient to show the alleged claim has some merit. 292 Kan. at 389.

Bradwell requests that this court remand the motion for ineffective assistance of
counsel to the district court to determine whether Bradwell asked his attorney to file a
motion to withdraw his plea prior to the sentencing hearing. In response, the State
indicates that there is no need for an evidentiary hearing because the record demonstrates
that Bradwell knowingly and voluntarily pled guilty. Further, the State notes that the
same judge who presided over the plea hearing also decided Bradwell's postsentencing
motions and, as such, would be in the best position to evaluate whether Bradwell should
be allowed to withdraw his plea. The State, however, does not address Bradwell's
allegation that his attorney refused his request to file a motion to withdraw his plea prior
to sentencing.

Although we take no position regarding whether Bradwell will ultimately be
successful in showing that his attorney was ineffective, we find that it is appropriate to
remand the motion for ineffective assistance of counsel to the district court for a Van
Cleave hearing. In particular, we find that the district court should determine whether
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Bradwell did in fact instruct his attorney to file a motion to withdraw his plea prior to the
sentencing hearing and, if so, why his attorney did not do so. Of course, Bradwell will
have the burden to establish that the representation fell below an objective standard of
reasonableness and that the inadequacy caused him to be prejudiced—meaning there
would probably have been a different outcome but for the attorney's errors. Strickland v.
Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

We also note that a defendant's burden of proof for withdrawing a plea prior to
sentencing is different from his or her burden of proof following sentencing. Here, had
Bradwell's attorney filed a motion to withdraw plea prior to sentencing, his burden would
have been to show good cause as opposed to manifest injustice. K.S.A. 2015 Supp. 22-
3210(d). Accordingly, we find that Bradwell has alleged sufficient facts—that he
attempted to communicate with his attorney several times prior to sentencing to request
that he file a motion to withdraw plea—to justify an evidentiary hearing. We, therefore,
vacate the order summarily denying the motion for ineffective assistance of counsel and
remand this matter for further proceedings.

Constitutional Attacks on Criminal Restitution

Bradwell next contends we should vacate the restitution order entered by the
district court. In particular, he contends that the Kansas criminal restitution scheme
violates § 5 of the Kansas Constitution Bill of Rights and, as applied to him, violates the
Sixth Amendment to the United States Constitution. In response, the State points out that
this issue was not raised before the district court. Likewise, the State contends that even if
we decide the issue of constitutionality of the Kansas restitution scheme on the merits,
Bradwell's challenge must fail.

Determining the constitutionality of a statutory provision presents a question of
law subject to unlimited review. State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009).
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Courts are to presume statutes are constitutional, and we must resolve all doubts in favor
of a statute's validity. In other words, we must construe a statute as being constitutionally
valid if there is any reasonable way to do so. State v. Soto, 299 Kan. 102, 121, 322 P.3d
334 (2014).

As a general rule, constitutional grounds for reversal asserted for the first time on
appeal are not properly before us for review. See State v. Godfrey, 301 Kan. 1041, 1043,
350 P.3d 1068 (2015). However, there are three exceptions to this rule: (1) The newly
asserted theory involves only a question of law arising on proved or admitted facts and is
finally determinative of the case; (2) consideration of the theory is necessary to serve the
ends of justice or to prevent the denial of fundamental rights; and (3) the judgment of the
trial court may be upheld on appeal despite its reliance on the wrong ground or having
assigned a wrong reason for its decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d
1095 (2014).

Bradwell contends that the first two exceptions are applicable in this case.
However, we find that the first exception does not apply because a determination of the
restitution issue is not determinative of this case. As indicated above, we are remanding
this case for a Van Cleave hearing on the issue of ineffective assistance of counsel. In
addition, even if we adopted Bradwell's argument and vacated the restitution order, the
issue of restitution could still be presented to a jury. Similarly, we find that the second
exception does not apply because Bradwell did not object to either the imposition of or
the amount of restitution either at sentencing or in his postsentencing motions. See State
v. Jones, No. 113,044, 2016 WL 852865, at *8-9 (Kan. App. 2016) (unpublished opinion)
(citing United States v. Dudley, 739 F.2d 175, 179 [4th Cir. 1984]).

In a related issue, Bradwell also argues that the Kansas criminal restitution scheme
violates the Sixth Amendment to the United States Constitution, as interpreted by
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Once
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again, Bradwell failed to raise this issue before the district court and, for the reasons
stated above, we decline to address the issue on the merits. Furthermore, even if we were
to decide this issue on the merits, we note that a panel of this court in State v. Huff, 50
Kan. App. 2d 1094, 1103-04, 336 P.3d 897 (2014), held that the imposition of restitution
does not implicate Apprendi. Specifically, the Huff court reasoned:

"[B]ecause restitution . . . is limited to the victim's actual loss, it lacks a punitive element
and therefore is not punishment. [Citations omitted.] Because the key language in
Apprendi refers to the requirement that any fact which increases the maximum penalty
for a crime be proven to a jury and because restitution is not a penalty, Huff's Sixth
Amendment rights were not violated when the district court made factual findings to
impose a restitution requirements upon her." 50 Kan. App. 2d at 1100.

Regardless of whether restitution is ordered as a condition of probation under
K.S.A. 2015 Supp. 21-6607(c)(2)—as it was in Huff—or is ordered as part of a prison
sentence under K.S.A. 2015 Supp. 21-6604(b)(1)—as it was in the present case, we find
the reasoning set forth in Huff to be persuasive. Additionally, we note that our Supreme
Court has read both statutes as mandating that "'restitution for a victim's damages or loss
depends on the establishment of a causal link between the defendant's unlawful conduct
and the victim's damages.' [Citation omitted.]" State v. Dexter, 276 Kan. 909, 912, 80
P.3d 1125 (2003). Accordingly, restitution is not punishment but rather is restorative in
nature. See State v. Pister, No. 113,752, 2016 WL 4736619, at *6-7 (Kan. App. 2016)
(unpublished opinion). We, therefore, conclude that Bradwell's Sixth Amendment rights
have not been violated and that the restitution order entered in this case should be
affirmed.

Affirmed in part, vacated in part, and remanded for an evidentiary hearing on the
motion for ineffective assistance of counsel.