State v. Cooper

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NOT DESIGNATED FOR PUBLICATION

Nos. 116,214
116,495

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DETAVIUS COOPER,
Appellant.


MEMORANDUM OPINION

Appeal from Labette District Court; ROBERT J. FLEMING, judge. Opinion filed August 25, 2017.
Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Stephen P. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., STANDRIDGE and SCHROEDER, JJ.

Per Curiam: Detavius Cooper entered a plea agreement on January 4, 2016. After
sentencing, Cooper filed a motion to withdraw his plea asserting, among other things, that
his attorney, Shane Adamson, met with him infrequently and that Cooper did not
knowingly or voluntarily enter the plea agreement. The district court denied Cooper's
motion. On appeal, Cooper argues that the district court unconstitutionally used his prior
juvenile adjudication to enhance his criminal history score and further alleges that the
court abused its discretion when it denied Cooper's motion to withdraw his plea. We
affirm.
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FACTS

In September 2014, the State filed a complaint against Cooper, charging him with:
kidnapping, aggravated robbery, aggravated battery, aggravated burglary, aggravated
assault, criminal use of a weapon, harassment by telecommunication device, domestic
battery, criminal damage to property, and disorderly conduct. Cooper pled not guilty.

On January 4, 2016, Cooper entered a plea agreement with the State. In exchange
for a plea of nolo contendere, the State agreed to file an amended complaint in which it
charged Cooper with aggravated battery and making false information. The State also
agreed to recommend a total prison term of 60 months. In return, Cooper agreed not to
request a dispositional departure. Accompanied by Adamson, Cooper entered a formal
plea before the district court that same day.

At the sentencing hearing held on March 21, 2016, the district court discussed the
particulars of Cooper's prison sentence:

"THE COURT: . . . . Couple other things, Mr. Cooper. You probably know this
from your prior experience, but as a convicted felon, you lose certain civil liberties. And
the most consequential probably is your right to bear a firearm. You lose that for 10 years
following your discharge from responsibility. So absent good time credit, you're looking
at 60 months, which would be five years in prison, and two years of post-release
supervision so that's seven years . . . Do you have any questions of me? Oh, one more
thing. You say you want a day to report. What time do you want to report tomorrow?
"[COOPER]: 2:00 o'clock would be fine.
"THE COURT: 2:00 o'clock, it is.
"[COOPER]: Yes, sir.
"THE COURT: And you'll need to—
"[COOPER]: Your Honor, I want to take it to trial.
"THE COURT: Do what?
"[COOPER]: I want to take it to trial.
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"MR. ADAMSON: He's withdrawing his plea is what he's indicating.
"[COOPER]: I'm going to withdraw my plea and take it to trial.
"THE COURT: Why is it that you want to take it—that you want to withdraw
your plea? Mr. Cooper, you're listening to I assume your family in the audience?
"[COOPER]: Yes, my mother.
"THE COURT: Okay. Were you unaware when you came up here today that you
were looking at a prison sentence?
"[COOPER]: Yes, sir. Yes, sir. It was a lot—I didn't understand a lot of stuff I
feel like I was misrepresented on. I don't feel like my juvenile record has anything to do
with—I know it's possible that it can be brought up, but like I don't feel like this has
anything to do with—like my total record is clean. Like, Your Honor, like I don't feel like
this has anything to do with any—with my adult record, my juvenile record. . . .
"THE COURT: All right, hold on for a minute. . . ."

After some discussion, Cooper decided to take the plea. The district court
sentenced Cooper in accordance with the plea agreement to a total prison term of 60
months and 24 months' postrelease supervision.

On March 31, 2016, Cooper filed a motion to withdraw his plea. That same day,
he also filed a notice of appeal "from any and all rulings and judgments of the District
Court." The district court then held a hearing for Cooper's motion to withdraw his plea on
May 2, 2016. After hearing testimony from both parties, the court denied Cooper's
motion. Cooper timely filed this appeal.

Prior juvenile adjudication

On appeal, Cooper first contends the district court could not use his prior juvenile
adjudication (from 2005) to enhance his criminal history score from I to D "unless it
[was] put to a jury and proved beyond a reasonable doubt." Cooper argues that the district
court's failure to do so violated his constitutional rights and resulted in an illegal
sentence.
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Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question
of law over which appellate courts exercise unlimited review. State v. Lee, 304 Kan. 416,
417, 372 P.3d 415 (2016).

In its brief, the State offers both a statutory and constitutional response to Cooper's
contentions. Regarding the former, the State embarks on a detailed analysis of the recent
amendments to K.S.A. 2016 Supp. 21-6810 and concludes that these statutory updates
should not apply retroactively to Cooper's case. This court's recent decision in Parker v.
State, No. 115,267, 2017 WL 947821, at *2-4 (Kan. App. 2017) (unpublished opinion),
petition for rev. filed May 4, 2017, supports the State's position. However, further
analysis of this issue is unnecessary because Cooper does not raise it in his brief. Instead,
Cooper focuses exclusively on the alleged violation of his Sixth and Fourteenth
Amendment rights to the United States Constitution under Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

Citing State v. Hand, 149 Ohio St. 3d 94, 104-05, 73 N.E.3d 448 (2016), Cooper
argues that because the juvenile code did not guarantee him the right to a jury trial at the
time of his prior conviction, the district court's use of his juvenile adjudication to increase
his criminal history score violated his Sixth and Fourteenth Amendment rights. Cooper
acknowledges the Kansas Supreme Court has already determined that the use of juvenile
adjudications in calculating a defendant's criminal history score does not violate
Apprendi. See State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002). Nevertheless, he
urges this court to overturn that precedent.

Our court is duty bound to follow Kansas Supreme Court precedent, unless there is
some indication the court is departing from its previous position. State v. Meyer, 51 Kan.
App. 2d 1066, 1072, 360 P.3d 467 (2015). We see no indication that the Supreme Court
is departing from Hitt, as evidenced by a litany of recent cases. See, e.g., State v. Waller,
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299 Kan. 707, 728-29, 328 P.3d 1111 (2014); State v. Fischer, 288 Kan. 470, 472-75, 203
P.3d 1269 (2009). Thus, we find no error.

Postsentence motion to withdraw plea

Next, Cooper asserts that the district court abused its discretion when it denied his
postsentence motion to withdraw his plea. Specifically, he argues that "he was virtually
forced into the plea" and that "the plea was not fairly and understandingly made."

To correct manifest injustice, after sentencing, district courts may set aside the
judgment of conviction and permit the defendant to withdraw his or her plea. K.S.A.
2016 Supp. 22-3210(d)(2). Kansas courts have defined "manifest injustice" as something
"'obviously unfair' or 'shocking to the conscience.'" Ludlow v. State, 37 Kan. App. 2d
676, 686, 157 P.3d 631 (2007). Three factors—known as the Edgar factors—generally
guide a district court's consideration of whether a defendant has shown the manifest
injustice necessary to withdraw a plea: (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. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010); see State v. Edgar, 281
Kan. 30, 36, 127 P.3d 986 (2006). These factors should not be applied mechanically to
the exclusion of other factors. State v. Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014).

Appellate courts will set aside the denial of a motion to withdraw only if the
defendant shows the district court abused its discretion. State v. Williams, 290 Kan. 1050,
1053, 236 P.3d 512 (2010). A district court abuses its discretion if: (1) no reasonable
person would have taken the view adopted by the court; (2) its conclusion is based on an
error of law; or (3) its conclusion is based on an error of fact. State v. Marshall, 303 Kan.
438, 445, 362 P.3d 587 (2015).

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Cooper's brief initially addresses both the second and third Edgar factors.
However, the substance of his argument focuses solely on the third Edgar factor, which
we will address below. See State v. Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015)
(point raised incidentally in brief and not argued therein is deemed abandoned).

At the motion to withdraw plea hearing, both Cooper and Adamson agreed that
Cooper first reviewed the substance of the State's plea offer 1 to 2 weeks before he
entered his formal plea. Adamson noted Cooper "was upset, visibly" when Adamson
explained his exposure and the severity of the consequences. Nevertheless, Adamson
maintained that he believed the plea was in Cooper's best interests. Cooper and Adamson
then met in the courthouse on the date of Cooper's plea hearing—January 4, 2016—at
which time Cooper reviewed a physical copy of the plea agreement and signed it. Cooper
stated that he accepted the plea because "[i]t was a lot of pressure between me and Mr.
Adamson. Like everything that was done between me and Mr. Adamson was like last
minute."

After the plea hearing, Adamson testified he did not have any conversations with
Cooper regarding the plea agreement and that it was not until sentencing that he
discovered Cooper had an issue. Cooper contested these assertions and argued that he
called Adamson's office multiple times following the plea hearing but was never able to
speak to him. Adamson's secretary, Ashley Brinson, supported Cooper's testimony,
noting that Cooper called continuously before and after he entered the plea agreement.
According to Brinson, Cooper "was just really unsure of the plea." Although she was not
certain, Brinson speculated that Adamson never returned Cooper's calls.

Ultimately, Cooper complained he did not have sufficient time to review the plea
agreement with Adamson before the plea hearing. He argued that Adamson knew he did
not want to serve 60 months in prison and that he accepted the plea because he "felt like
[he] didn't have any other choice."
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Cooper's testimony did not persuade the district court, which found:

"Well, first of all, I find that Mr. Adamson is a competent legal criminal defense
attorney. He just testified he's been doing this for 26 years. I've been here for 20 years.
And he's handled . . . hundreds of cases, and he's competent to do what he does.
"Regarding whether the defendant was misled, coerced, mistreated or unfairly
taken advantage of, while Mr. Cooper has said today that there was this pressure, this
wasn't the first time you had been through this, Mr. Cooper. You had been convicted on
previous occasions as represented by your criminal history.
". . . I try to always ask individuals before they enter into a plea to take an oath
and to swear that they have read, fully understand, and agree to each and every condition
contained in the document, in your case called the Petition to Enter Plea Agreement. I did
that with you, and you said you understood it.
"And the document . . . clearly reflects that you knew that if you got the benefit
of your plea agreement, if I went along with it, you were going to prison for 60 months. If
I didn't go along with it, you may have gone to prison for longer.
. . . .
"I'd be hard pressed to find any evidence in the transcript of sentencing, of the
transcript of the plea, or today that you did not understand the consequences of your plea
agreement. I'd be hard pressed to find that your plea agreement was not freely, knowingly
and voluntarily made. It was.
"I understand you don't want to go to prison for 60 months. That's normal. But
there's absolutely no evidence of manifest injustice here from which I should grant a
judgment correcting it, and your motion to withdraw your plea is denied."

In his brief, Cooper renews many of the same assertions he raised below, placing
special emphasis on the "very limited communication between [himself] and Adamson."
According to Cooper, this lack of communication "all but forced [him] into the plea,"
even though he had serious reservations about the agreement. Cooper reasons "[a] guilty
plea must be made voluntarily and it can only be voluntarily made after sufficient time to
discuss the matter with counsel." He concludes that his limited interactions with
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Adamson were "simply insufficient to allow the district court to accept a plea and find it
was knowingly and voluntarily made."

Cooper's argument ignores a key fact presented to the district court: Adamson and
Cooper met at least a week before the plea hearing to discuss the specifics of the State's
plea offer. While Adamson testified that Cooper was upset about the prospect of serving
time in prison, he stated that Cooper never gave any indication that he did not understand
the plea agreement or preferred to go to trial. Cooper acknowledged that he did not say
anything to either the district court or Adamson during his plea hearing that might have
indicated he preferred to go to trial.

Contrary to his argument, Cooper had sufficient time to consider the State's plea
offer—at least a week—and had the opportunity to object to the plea agreement both at
his plea hearing and at sentencing. He did neither. In fact, at both hearings Cooper told
the district court that he understood the terms of his plea agreement—including the 60-
month prison term. Based on this evidence, there is no indication the district court abused
its discretion when it denied Cooper's postsentence motion to withdraw his plea.

Affirmed.