State v. Cannici

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NOT DESIGNATED FOR PUBLICATION

Nos. 118,006
118,007
118,008

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

COURTNEY CHRISANN CANNICI,
Appellant.


MEMORANDUM OPINION

Appeal from Crawford District Court; KURTIS I. LOY, judge. Opinion filed June 29, 2018.
Affirmed.

Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant.

Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., MCANANY and BRUNS, JJ.

PER CURIAM: Courtney Cannici appeals from the district court's denial of her
postsentencing motions to withdraw her pleas in three separate cases that are consolidated
on appeal. Cannici argues that she did not knowingly waive her right to a jury trial in the
three cases because she did not understand her rights. As the district court provided a
detailed explanation of her rights—including the right to a jury trial—at the plea hearings
and as Cannici repeatedly told the district court—both in writing and orally—that she
understood her rights, we conclude that she has failed to demonstrate a manifest injustice
that would justify withdrawing her pleas. Thus, we affirm the district court.
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FACTS

The State charged Cannici in case No. 15 CR 97-P with domestic violence and in
case No. 15 CR 98-P with criminal threat. Both charges arose out of a March 2015
incident involving Cannici's mother. On June 30, 2015, the district court consolidated
both cases into 15 CR 98-P and held a plea hearing for both cases. At the plea hearing,
the district court advised Cannici of her rights and there was a detailed colloquy about her
understanding of the charges, the potential sentences she faced, the rights she would give
up by pleading to the charges, and her competency to make a knowing and voluntary
plea. Cannici pleaded no contest, the district court accepted the plea, and found her guilty
of criminal threat and of domestic battery.

The State subsequently charged Cannici in case No. 15 CR 218-P with use of a
communication facility for a drug transaction. While released from jail awaiting trial,
Cannici allegedly violated an order requiring her to have no contact with her mother. A
law enforcement officer stopped Cannici driving near her mother's house and found
suspected illegal drugs and drug paraphernalia in her possession. As a result of this
incident, the State charged Cannici in case No. 15 CR 295-P with possession of
methamphetamine and possession of drug paraphernalia.

On January 19, 2016, Cannici filed a petition to enter plea agreement in case No.
15 CR 218-P and case No. 15 CR 295-P. In the petition, Cannici acknowledged that she
understood the rights she would be waiving by entering a plea to the charges. As part of
the plea agreement, Cannici agreed to plead guilty to use of a communication facility for
a drug transaction and to possession of methamphetamine in exchange for the State
dismissing the possession of drug paraphernalia charge. The State also agreed to seek a
dispositional departure to community corrections in these cases as well as in case No. 15
CR 98-P.

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The same day, the district court held a plea hearing in case No. 15 CR 218-P and
case No. 15 CR 295-P. The district court again explained Cannici's rights to her and held
a detailed colloquy with her to make sure that she understood those rights. Cannici
indicated that she understood her rights and was knowingly waiving them. She then
entered guilty pleas in both cases. The district court accepted her pleas, dismissed the
possession of drug paraphernalia charge, and found her guilty of use of a communication
facility for a drug transaction and of possession of methamphetamine.

On March 22, 2016, the district court sentenced Cannici in case No. 15 CR 98-P,
case No. 218-P, and case No. 15 CR 295-P. The district court sentenced Cannici to an
underlying prison sentence of 59 months to run consecutive to a sentence in another case
that is not part of this appeal. However, the district court suspended the sentence and
placed her on probation under the supervision of community corrections. Unfortunately,
Cannici violated the conditions of her probation. Accordingly, at a hearing held on
August 23, 2016, the district court revoked Cannici's probation and ordered her to serve
her underlying sentence.

On March 17, 2017, Cannici moved to withdraw her pleas in case No. 15 CR 98-
P, case No. 15 CR 218-P, and case No. 15 CR 295-P. At a hearing held on May 3, 2017,
Cannici testified that she did not understand her right to a jury trial and that her attorneys
failed to explain the significance of a jury trial to her before entering pleas in these cases.
After hearing the testimony, the arguments of the attorneys, and reviewing the transcripts
from the plea hearings, the district court denied Cannici's motion to withdraw her pleas.

ANALYSIS

On appeal, Cannici contends that the district court should have let her withdraw
her pleas in the three criminal cases after sentencing because she did not know what a
jury trial was or how many people serve on a jury. The State contends that the district
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court did not err in denying the motion. It points out that when Cannici entered her pleas,
she acknowledged to the district court that she understood the rights she was waiving.
The State also argues that the district court met the requirements of the United States
Constitution to inform defendants of their rights and to determine if they understand
those rights.

Because Cannici filed her motion to withdraw pleas after her sentencing in each of
the cases that are the subject of this appeal, we apply a manifest injustice standard.
Specifically, K.S.A. 2016 Supp. 22-3210(d)(2) states: "To correct manifest injustice the
court after sentence may set aside the judgment of conviction and permit the defendant to
withdraw the plea." (Emphasis added.) Accordingly, we review the district court's denial
of Cannici's postsentence motion to withdraw pleas for abuse of discretion. See State v.
Davisson, 303 Kan. 1062, 1064, 370 P.3d 423 (2016).

The movant—in this case Cannici—bears the burden to prove the district court
abused its discretion in dismissing the motion. Davisson, 303 Kan. at 1065. To establish
an abuse of discretion, the movant must show that the action taken by the district court
was (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on
an error of fact. State v. Beaman, 295 Kan. 853, 865, 286 P.3d 876 (2012). "A district
court's factual findings are reviewed for substantial competent evidence." State v.
Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011). Moreover, in deciding whether a
district court abused its discretion, we "do not reweigh the evidence or assess witness
credibility." 291 Kan. at 855.

In considering whether a defendant has established manifest justice to withdraw a
plea, Kansas courts generally consider what have become known as the Edgar factors:
"'(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.'" State v. Johnson, 307 Kan. 436,
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443, 410 P.3d 913 (2018) (quoting State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006).
"All of the Edgar factors need not apply in a defendant's favor in every case, and other
factors may be duly considered in the district judge's discretionary decision on the
existence or nonexistence of good cause." State v. Aguilar, 290 Kan. 506, 513, 231 P.3d
563 (2010).

In this case, Cannici does not contend that incompetent counsel represented her or
that she was misled, coerced, or treated unfairly in entering her pleas. Instead, Cannici
relies on the third Edgar factor—claiming that her pleas were not understandingly made.
Specifically, that she did not fully understand her right to a jury trial. However, the record
reflects that Cannici repeatedly represented—both orally and in writing—that she
understood and waived her right to a jury trial in each of her cases.

The district court concluded that Cannici sufficiently understood her rights when
she entered her pleas and that she failed to indicate that she had any confusion. The
record supports these conclusions. Cannici received a clear description of her rights at her
plea hearings. She also affirmed that she understood her right to a jury trial in writing
prior to the plea hearing held on January 19, 2016.

A review of the record from the plea hearing held on June 30, 2015, reveals that
the district court explained that Cannici that she had a right to a jury trial, which
included:

 the right to testify or not testify on her behalf,
 the right to subpoena witnesses,
 the right to be represented by an attorney at all stages of the trial,
 the right to require the State to prove all charges beyond a reasonable
doubt,
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 the right to confront her accusers, which included the right to cross-
examine any witnesses against her in the pending matter,
 the right to appeal any convictions from the trial, and
 the presumption of innocence.

After describing these rights, the district court asked Cannici, "Do you understand each of
those rights and that you are waiving those rights?" Cannici responded, "You're your
honor." Likewise, a review of the record from the plea hearing held on January 19, 2016,
reveals that the district court again advised Cannici her rights and Cannici again told the
district court that she understood her rights.

Based on our review of the record, we find that the district court sufficiently
explained the right to a jury trial to Cannici and that she clearly waived her rights.
Furthermore, we find that Cannici had multiple opportunities to tell her attorney or the
district court if she did not understand her rights or the judicial process. In fact, the
district court offered Cannici an opportunity to discuss her rights and the implications of
the pleas with her attorney, but she declined the opportunity and indicated that she did not
need additional time.

It is also important to recognize that for two of the underlying cases—case No. 15
CR 218-P and case No. 15 CR 295-P, Cannici also signed a written plea agreement that
stated that she understood and waived her right to a jury trial. The plea agreement advised
Cannici of the rights described above, including "the right to a speedy and public trial by
jury." The plea agreement goes on to advise Cannici that if she pleads guilty, she waives
her "right to a trial, and that there will be no further trial of any kind, either before a court
or jury. That means that [she is] giving up [her] right to a trial and [she] will never
receive a trial for these charges." Cannici initialed by each of these advisories. Based on
this detailed factual record, the district court did not abuse its discretion by determining
that Cannici voluntarily and knowingly waived her right to a jury trial.
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Finally, we note that the same judge presided over both of the plea hearings and
over the hearing on the motions to withdraw plea. As the Kansas Supreme Court has
recognized:

"Perhaps most importantly for our purposes, the same judge presided at the plea
hearing and at the motion to withdraw plea hearing. At the plea hearing, the judge was
able to observe [defendant] when he stated that he understood the nature of the charges
against him; that he understood his rights; that he was entering a plea of his own volition;
and that he was not threatened or coerced into entering the plea. Thus, when [defendant]
testified at the plea withdrawal hearing that he had been misled, coerced, and forced to
enter a plea, the judge was able to ascertain that such testimony 'did not comport with
what occurred at the time of plea,' and to draw a conclusion as to which contradictory
testimony was more credible. Likewise, the judge had the opportunity to observe the
demeanor of the attorney and interpreter when they contradicted [defendant's]
characterization of the plea discussions." State v. Macias-Medina, 293 Kan. 833, 839,
268 P.3d 1201 (2012).

Accordingly, we conclude that the district court did not abuse its discretion in
denying Cannici's motions to withdraw her pleas.

Affirmed.