State v. Cook

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NOT DESIGNATED FOR PUBLICATION

Nos. 119,620
119,621
119,622

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SHAY D. COOK,
Appellant.


MEMORANDUM BY THE COURT


Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed September 27,
2019. Affirmed in part, sentence vacated in part, and case remanded with directions.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before HILL, P.J., LEBEN, J., and WALKER, S.J.

PER CURIAM: In the first two of the three cases consolidated for appeal, Shay D.
Cook asks us to reverse the district court's denial of his motions to withdraw his guilty
pleas in two felony cases filed in 2016. He contends his pleas were coerced by his
attorney and they were not understandingly made. We affirm the denial of his motions
because Cook has failed to show good cause to withdraw his pleas and we find no abuse
of discretion by the district court on this issue.

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A third case filed in 2017 was consolidated for appeal with the two prior cases.
We agree with Cook that a special sentencing rule does not apply. Because Cook was not
serving a felony sentence when he committed the third crime, the court erred when it
ruled that it was legally obliged to impose a sentence consecutive to the two sentences
imposed on Cook in the 2016 cases. We vacate that sentence and remand for
resentencing.

For the sake of clarity, we point out that our appellate no. 119,620 pertains to
district court no. 16 CR 15; appellate no. 119,621 pertains to district court no. 16 CR 492;
and appellate no. 119,622 pertains to district court no. 17 CR 1772.

We begin with the two 2016 prosecutions.

The State charged Cook with felony theft, misdemeanor domestic battery, and
misdemeanor criminal damage in 16 CR 15 and burglary and felony theft in 16 CR 492.
Cook told his attorney that he would agree to a plea agreement with the State but only if
the State agreed to recommend probation. The parties did agree and the State offered to
dismiss the misdemeanor criminal damage charge and recommend probation in exchange
for Cook pleading guilty to the remaining four charges.

Cook violated the conditions of his plea agreement when he failed to report to
pretrial services and at sentencing. Cook was arrested for violating his bond conditions.
But when he discovered the State was no longer bound by the plea agreement, he tried to
withdraw his guilty pleas before sentencing. He contended that his attorney coerced or
misled him into accepting the plea agreement and he did not knowingly make the
agreement. The district court denied the motions to withdraw after finding Cook failed to
show good cause.

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Cook now claims that the court abused its discretion when it denied his motions to
withdraw his guilty pleas.

Several rules guide our decision.

Within its sound discretion, a district court may allow a defendant to withdraw a
guilty plea for good cause any time before sentencing. K.S.A. 2018 Supp. 22-3210(d)(1).
When doing so, the court should consider three factors—also known as the Edgar
factors—to determine whether a defendant has shown good cause to withdraw a plea.
State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). These factors include whether:

 the defendant was represented by competent counsel;
 the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and
 the plea was fairly and understandingly made. State v. Aguilar, 290 Kan. 506,
511, 231 P.3d 563 (2010).

But these factors are not to be applied mechanically or to the exclusion of other factors.
State v. Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014).

For our part, we review the denial of a motion to withdraw a plea for an abuse of
discretion. Fritz, 299 Kan. at 154. As it has been often said, a judicial action constitutes
an abuse of discretion if:

 no reasonable person would take the view adopted by the trial court;
 it is based on an error of law; or
 it is based on an error of fact.

State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).

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The defendant has the burden of proving the district court abused its discretion. Fritz, 299
Kan. at 154.

We will not reweigh evidence or assess witness credibility. State v. Hartpence, 30
Kan. App. 2d 486, 493, 42 P.3d 1197 (2002). This court generally defers to the trial
court's factual findings so long as those findings are supported by substantial competent
evidence. See State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011).

Cook has proved none of the Edgar factors required to compel a plea withdrawal.

Cook centers his attack on the second and third Edgar factors. He claims he was
misled or coerced by his lawyer and he did not understand what he was doing.

We look first at whether Cook was misled or coerced by his counsel. At the
hearing on his plea withdrawal motion, Cook, and his attorney, Dwayna McFerren, both
testified. Their evidence is not identical.

Cook testified that McFerren did not provide him with discovery, but she had gone
over his charges, made sure he understood them, and discussed facts and details of his
cases. Cook testified that he wanted to go to trial and told her he was innocent, but
McFerren "kept insisting" he take a plea and told him he would be "found guilty if it went
to trial." Cook stated that he told McFerren he would only accept a plea agreement if he
could be released on his own recognizance.

Cook stated that after McFerren presented him with an acceptable plea agreement,
she started to go over it but he told her she did not need to. Cook testified he told
McFerren, "You don't even have to go over it. . . . I'm willing to take . . . the plea, and all
she did she just had me sign it, and then I went to court the next day and had it heard."
Cook added that he "took the plea to eliminate . . . the variables, the risk of a trial and to
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take advantage of the probation I was being offered, and especially the immediate release
to Pretrial." Cook also testified that McFerren did not go over his acknowledgement of
rights and entry of plea form because she brought it with his plea agreement and he was
ready to sign both.

Cook testified that he was not satisfied with McFerren because they "bumped
heads the whole time" and he "felt like she was against me." Cook also added that he
believed it was important that the court know "[t]hat the State I just . . . they're now trying
to exploit my errors by reneging on their own plea agreement pursuant to the escape
clause . . . which I had no understanding of when I signed the plea in the first place."

He later said that he intentionally failed to report to pretrial services because he
did not want to go back to jail on a child support warrant he claimed to have. He also said
that he did not go to his sentencing because he knew missing his pretrial services "was
gonna get [him] thrown in jail." On cross-examination, Cook testified that he understood
the benefit of the plea bargain and understood the unique terms of the plea agreement,
including domestic violence tags and potential restitution.

The State asked Cook why he felt he was under duress to take the plea agreement,
and Cook testified that he felt scared because McFerren told him he would lose at trial.
Cook stated, "I'm under duress 'cause I'm scared that I'm gonna—am gonna lose at trial."
Cook also testified that he was "willing to say whatever it takes" to get probation and out
of custody.

McFerren described the process she used with Cook to explain the charges,
evidence, and his criminal history. She testified that Cook told her he wanted a plea but if
there was not an offer of probation, he would go to trial.

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McFerren testified that after she obtained an acceptable plea agreement, she went
over the acknowledgement of rights and plea agreement with Cook. McFerren testified
that she did not remember Cook telling her she did not need to go over the agreement.
McFerren denied telling Cook to lie to the court, denied that he told her he was innocent,
and stated that he had no reservations about taking the plea deal.

McFerren also testified about her general practice with clients about bond. It is her
common practice to ask the prosecutor for a bond reduction, or anything similar, after the
parties reach a plea agreement. McFerren followed this practice with Cook, and she said
she offered Cook no promises about bond in exchange for his plea.

The district court made some important findings in denying Cook's motion.

The court held that Cook was represented by competent counsel, and he was not
misled, coerced, mistreated, or unfairly taken advantage of. In support of this finding, the
court made factual findings that McFerren negotiated a favorable plea agreement, which
Cook specifically requested. That agreement recommended probation and would not seek
imposition of the special felony rule. The court also found that McFerren read the plea
agreement and the acknowledgement of rights to Cook before he entered his guilty plea.
The judge found that Cook was aware of his rights, and his plea was fairly and
understandably made.

The court also found that Cook's guilty plea was not conditioned upon his bond
being modified. The court noted that after Cook was released from jail, he violated the
conditions of his release which caused him to be arrested again. The court found that
Cook's testimony was not credible when he claimed that he did not understand he had a
right to a jury trial or a right to face his accusers. The court found McFerren's testimony
on this issue to be credible.

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Cook makes an awkward argument to us. Even though his attorney negotiated a
plea agreement that he wanted, he claims he was coerced by counsel to plead guilty to a
crime he says he did not commit because he received a favorable plea agreement. In other
words, he was coerced because he got what he wanted.

In his brief, Cook adds that he "felt forced to choose between sticking with his
attorney—who he believed was effectively coercing him to take 'a favorable plea
agreement'—and the 'favorable plea agreement' itself. This is not a voluntary choice." He
tries to explain this reasoning by citing to his testimony that he told McFerren he was
innocent, but she had only told him that he would lose at trial, which he claimed was
"kind of scary." In other words, McFerren's assertion that he would lose at trial,
combined with his awareness of the State's ability to seek prison and a high criminal
history score, coerced him into taking the plea because he felt like he had to eliminate the
variables, such as the risk of trial.

We remain unconvinced. The record reflects that Cook told McFerren that he
specifically wanted a plea that offered probation; otherwise, he would go to trial.
McFerren testified that Cook never told her he would not take the plea agreement because
he was innocent. She further testified that she discussed trial and defense strategy with
Cook "but he kept saying he wanted to plea to probation, so we didn't talk much about it,
just briefly through . . . our meetings."

The district court weighed Cook's and McFerren's evidence and credibility and
found that the evidence weighed in favor of Cook's plea being voluntary because he had
not been misled or coerced. The record shows that McFerren did exactly what Cook
asked of her when she negotiated this plea agreement and she did not coerce or mislead
him into agreeing to it. In fact, Cook's own testimony shows that he was more than
willing to agree to the plea when he stated,

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"Whenever [McFerren] came to me with the plea, she told me it's the one I
wanted, I didn't ask no questions or nothing. Whenever she went to go over it I told her,
Don't even have to go over it. Where do I sign? I was ready to accept it no matter what
the—no matter what it would have said. It was irrelevant to me 'cause I knew that I was
getting out that day."

Thus, the district court did not abuse its discretion when it found that McFerren
negotiated a favorable plea agreement in which the State would recommend probation,
and Cook's attorney did not mislead or coerce him into entering a guilty plea.

We turn now to whether Cook understood his plea. Cook argues that he did not
understand that the State would not be bound by the plea agreement if he violated the
agreement before sentencing. He presents no additional evidence not already considered
by the district court on this point. He does argue that the district court did not advise him
that the State will not be bound by the plea agreement if he failed to appear.

The court went over a comprehensive list of subjects with Cook before he entered
his guilty plea. These included:

 Cook's right to a jury trial;
 his presumed innocence;
 the State's burden to prove him guilty beyond a reasonable doubt;
 his right to a speedy trial;
 his right to present evidence at trial;
 his right to testify;
 his right to confront the State's witnesses; and
 his right to appeal.

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The district court also acknowledged that it specifically asked Cook twice if he had any
questions, and Cook did not.

Cook's argument suggests that because the district court did not advise him that
the State is not bound by the plea agreement if he violated its conditions, then he could
not have understandably made the plea agreement. Despite having read the agreement,
unless the court told him of that provision the court could not find that he understood the
agreement. Indeed, the court did not address this specifically at Cook's plea hearing. The
court, however, made a factual finding that Cook was nevertheless advised of this
provision. Substantial competent evidence supports the district court's finding that he was
advised of this provision when McFerren testified that she went through and explained
the plea agreement with Cook.

Cook also tries to spin his testimony when he says he told McFerren that she did
not need to go over the plea agreement with him and asked her, "[w]here do I sign? I was
ready to accept it no matter what." Cook unpersuasively argues that by stating this, he
was not testifying that he knowingly and understandably entered into the plea agreement.
Instead, it means he "'accepted it no matter what' because he believed that was the only
thing he could do."

This argument is simply not persuasive. McFerren testified that Cook had rejected
a previous plea agreement offer and they had discussed trial strategy and defense. Cook
admitted that he rejected "a couple different plea agreements" before McFerren
negotiated an acceptable one. Thus, the record shows that Cook did know he had other
options when he entered his pleas, and his plea was fairly and understandably made.

We find no error of law or fact here. Reasonable people could agree with the
district court's finding that Cook did not show good cause for withdrawing his pleas
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before sentencing. Thus, the court did not abuse its discretion when it denied Cook's
motion to withdraw his pleas.

We turn to the third case consolidated for appeal.

The special sentencing rule did not apply here. In the third case, 17 CR 1772, the
State charged Cook with trafficking in contraband in a correctional institution after Cook
had someone sneak tobacco products into the jail. Cook pled guilty to an amended charge
of attempted trafficking in contraband. The court imposed a consecutive sentence for that
third case. We note that the district court also sentenced Cook in another case, 17 CR
1922, which is the subject of another appeal with this court. It was mentioned by the
district court at Cook's sentencing, but it is not pertinent to this appeal.

To us, Cook correctly claims the special sentencing rule in K.S.A. 2016 Supp. 21-
6604(f)(1) and K.S.A. 2016 Supp. 21-6606(e)(1) does not apply to this case because he
was not serving a sentence for a felony when he was incarcerated. In opposition, the State
argues that Cook did not preserve this issue for appeal, did not affirmatively designate a
record to show prejudicial error, and is requesting an improper form of relief.

Cook concedes that he did not make this argument at his sentencing but believes
we should consider the matter because there is no dispute about the facts relevant to this
issue, and the newly asserted theory is a question of law. The State disagrees and argues
that this issue is not only a question of law, but also a factual issue because it is not clear
from the record what statute the district court relied on when ordering consecutive
sentences. We are not convinced by the State. The record of the sentencing hearing, the
presentence investigation reports, and the journal entry of sentencing provide us with
enough facts to rule on this question.

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At the sentencing hearing, the district court reviewed Cook's criminal history for
all of his cases. The court then sentenced Cook in each case, addressing each case
individually and imposed a sentence specific to each offense. When the court addressed
whether the sentences would be consecutive or concurrent with each other, it held:

"In regard to all four of these—well, in regard to that sentence of the
consolidated 16 CR cases relative to the two 17 CR cases, I am going to run them
consecutive to each other. . . . 17 CR 1772 is consecutive to the two 16 CR cases and then
17 CR 1922 is consecutive to the 17 CR 1772 cases and both 16 CR cases. . . .

"There are special rules as stated in the PSIs. I think I've identified those. I
believe in each one of these cases, including the consolidated 16 CR cases, there is a
special rule that states the imposition of consecutive treatment of the cases. So I am
following that special rule. I am also applying the special rule that affects the
presumption in 17 CR 1922."

The court then addressed Cook's motion for a durational or dispositional departure
and held,

"I am going to deny those motions. I am following the presumption in 17 CR
1772. I'm following the presumption in 17 CR 1922 that is both rule ten and rule 26,
which is a subsequent felony drug possession. I'm also applying the special rule in the
two 16 CR cases. I'm finding that there are no special and compelling factors or basis to
depart.

"I believe that finding is required in the two 17 CR cases. But as [Cook's
attorney] has argued the same factors, to the degree it would apply, I am making a finding
there's no basis to depart in the two 16 CR cases. I'm following the legislative directive in
the two 17 CR cases and the special rule in the two 16 CR cases."

The district court found that a "special rule" applies to each case at sentencing and
stated that the special rules are stated in the PSI reports. The PSI report for 17 CR 1772
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states that special rule nine applies. The district court also said that it was following the
"presumption," that it believed the finding for 17 CR 1772 was "required," and that it was
"following the legislative directive in the two 17 CR cases and the special rule in the two
16 CR cases."

The journal entry for sentencing in 17 CR 1772 distinctly marks that a "special
rule" applies and that special rule includes when a crime is committed while incarcerated,
on probation, parole, conditional release, or postrelease supervision for a felony.

The court sentenced Cook on the same day for all three cases—16 CR 15, 16 CR
492, and 17 CR 1772. This means that Cook could not have been serving a felony
sentence for the charges in 16 CR 15 and 16 CR 492 when he committed his new crime
in 17 CR 1772 because sentences for the two 2016 cases had not yet been imposed.

When we look at the cases that have dealt with this subject, we are convinced that
Cook's sentence for 17 CR 1772 must be vacated. Two cases are persuasive on this point.
The Supreme Court has considered a similar issue under K.S.A. 1996 Supp. 21-4603d(a),
the predecessor statute to K.S.A. 2016 Supp. 21-6604(f)(1). That court found the critical
provision of this statute is that it applies when a new felony is committed while the
offender is incarcerated and serving a sentence for a felony. State v. Marsh, 263 Kan.
773, 775, 952 P.3d 933 (1998). This court then addressed a nearly identical situation as
on appeal here, and held that when a defendant has been convicted of a felony and
incarcerated, but not serving a felony sentence, then the district court is not required to
order consecutive sentences under the predecessor statute to K.S.A. 2016 Supp. 21-
6606(e)(1). State v. Bailey, No. 110,583, 2014 WL 4388578, at *3 (Kan. App. 2014)
(unpublished opinion).

We find that Cook was not serving a felony sentence when he committed the
felony in 17 CR 1772. A sentence imposed under the mistaken belief that consecutive
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sentences are mandatory must be vacated and remanded for resentencing. See State v.
Christensen, 23 Kan. App. 2d 910, 915, 937 P.2d 1239 (1997), disapproved of on other
grounds in State v. Bolin, 266 Kan. 18, 968 P.2d 1104 (1998); State v. LaGrange, 21
Kan. App. 2d 477, 484-85, 901 P.2d 44 (1995).

We vacate Cook's consecutive sentence in 17 CR 1772 because the special
sentencing rule cited by the court did not apply. We remand for resentencing.

We affirm the district court's denial of Cook's motions to withdraw his pleas in
16 CR 15 and 16 CR 492.

Affirmed in part, sentence vacated in part, and remanded with directions
consistent with this opinion.