State v. Garcia

1

NOT DESIGNATED FOR PUBLICATION

Nos. 116,191
116,192

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

PEDRO C. GARCIA,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed
September 15, 2017. Affirmed.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

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

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

PER CURIAM: Pedro C. Garcia claims the district court abused its discretion in
denying his presentencing motion to withdraw his guilty pleas in two consolidated cases.
In his first case Garcia was charged with distributing cocaine. In his second case he was
charged with distribution of methamphetamine. He ultimately pled guilty to one count of
distribution of cocaine and three counts of distribution of methamphetamine.

Garcia was born in Mexico, where he attended school for nine years. He relocated
to the United States over 20 years ago. He can read, write, and speak English, but he
contends that he is not fluent in English and does not understand some legal terms. But he
2

regularly speaks English at work, spoke to his arresting officers in English, was given his
Miranda warnings in English, did not ask for an interpreter when being read his Miranda
rights, invoked his Miranda rights in English, and spoke to his attorney in English.

Garcia hired Jeff Bitner as his attorney. Garcia went to Bitner's office on two or
three occasions to discuss the case and develop a plan for the case. Garcia's plan was for
Bitner to help him get a favorable plea deal because he wanted to avoid going to trial.
Bitner's secretary is fluent in Spanish and English, but according to Bitner, he never
needed to call upon his secretary to act as an interpreter for Garcia.

The State initially offered to recommend to the court a 104-month prison sentence
in exchange for Garcia's guilty plea. Garcia rejected this offer but told Bitner he would
agree to a deal that involved a sentence recommendation that was a "little bit lower."
Garcia told Bitner "to try to get me five years." Bitner obtained seven trial continuances
while trying for a better offer. Finally, shortly before trial, the State reduced the prison
sentence it would recommend in a plea offer to 84 months.

Bitner gave Garcia notice of the State's new offer two days before trial and
reviewed it with Garcia in detail, but Garcia initially turned down the offer. Then, on the
day of trial, when he realized no better offer would be forthcoming, Garcia told Bitner he
would accept the State's offer. Bitner again reviewed the State's proposed agreement with
Garcia, who confirmed that he wanted to accept the deal. At Garcia's appearance in court
that followed, the court gave Garcia time to once again review the proposed agreement
with Bitner and with a language interpreter. The plea hearing commenced after Bitner
and the interpreter went over the plea agreement and the Acknowledgement of Rights
with Garcia once in English and then again in Spanish.

During the plea hearing, the court explained the plea agreement to Garcia. Garcia
confirmed that he understood the agreement and that he had read the statement of his
3

rights under the plea agreement. He also confirmed that Bitner had explained to him the
plea agreement and his rights under the agreement and that he did not have any questions
about the plea agreement.

The court then explained to Garcia the trial rights he would be giving up by
entering into the agreement and waiving his right to a jury trial. Garcia confirmed that he
understood his rights and had no questions about them. Then, after Garcia provided bases
for the charges, the court accepted Garcia's guilty pleas to one count of distribution of
cocaine and three counts of distribution of methamphetamine, found that his pleas were
knowingly and voluntarily made, and found Garcia guilty. Under our sentencing
guidelines, the distribution of cocaine conviction called for a presumptive prison sentence
of from 46 to 83 months. Each count of distribution of methamphetamine called for a
presumptive prison sentence of from 92 to 144 months. Under the plea agreement, the
State agreed to recommend to the court a controlling sentence of 84 months in prison.

Before his sentencing hearing Garcia moved to withdraw his pleas, claiming the
court lacked jurisdiction over him, that the court and the State engaged in misconduct,
that he was denied the effective assistance of counsel, and that his counsel failed to
provide him with an interpreter.

At the evidentiary hearing that followed on Garcia's motion, Garcia claimed that
he felt pressured to sign the plea agreement because the prosecutor "refused to give [him]
any better offer." When the prosecutor asked why Garcia filed the motion to withdraw his
pleas, Garcia responded that "the only thing I'm looking for is a way to try to get
something better." The district court found Bitner's testimony more credible than that of
Garcia and denied relief. This appeal followed.

4

On appeal, Garcia contends the district court abused its discretion in denying his
motion based upon a misapplication of the factors found in State v. Edgar, 281 Kan. 30,
36, 127 P.3d 986 (2006).

Review Standards on Appeal

Garcia contends our standard of review is de novo because he is challenging the
violation of his due process rights arising from the ineffective assistance of counsel he
received, the aid of an interpreter he did not receive, and his right to a speedy trial which
was violated.

We disagree. This is not a constitutional challenge but a challenge of the district
court's decision to deny Garcia's motion to withdraw his guilty pleas. "A plea of guilty or
nolo contendere, for good cause shown and within the discretion of the court, may be
withdrawn at any time before sentencing is adjudged." K.S.A. 2016 Supp. 22-3210(d)(1).
On appeal, we review the district court's decision to deny a presentence motion to
withdraw a plea for any abuse of discretion. State v. Kenney, 299 Kan. 389, 393, 323 P.3d
1288 (2014). The district court abuses its discretion when its action is based on an error
of law or of fact or when no reasonable person would have taken the view adopted by the
district court. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011).

Here, Garcia bears the burden of showing that the district court abused its
discretion. See State v. Hulett, 293 Kan. 312, 319, 263 P.3d 153 (2011). In considering
this claim, we do not reweigh the evidence or assess credibility of the witnesses but rather
we defer to the district court's factual findings so long as they are supported by
substantial competent evidence. State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425
(2011).

5

When determining whether the defendant has established good cause to grant a
motion to withdraw a plea, we apply the factors spelled out in Edgar: that is, whether "(1)
the defendant was represented by competent counsel, (2) the defendant was misled,
coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and
understandingly made. [Citation omitted.]" State v. Bey, 270 Kan. 544, 545, 17 P.3d 322
(2001).

Analysis

 Competency of Counsel

The first Edgar factor relates to the competency of a defendant's counsel. Garcia
claims Bitner was ineffective due to his failure to communicate with Garcia about
upcoming trial events and continuances and due to Bitner's failure to provide Garcia with
an interpreter to assist him in understanding "legal jargon." The facts detailed above
support an opposite conclusion. (We will address the interpreter issue later.)

Garcia and Bitner met on at least four occasions to discuss the case. Bitner
thoroughly explained the range of possible penalties to Garcia and told him his options.
Garcia did not want to go to trial, but he wanted a deal that called for a shorter sentence.
Bitner negotiated a deal for him that reduced the State's recommended prison sentence
from 104 months to 84 months. Bitner obtained trial continuances at Garcia's requests in
order to accomplish this. Bitner was retained counsel, not appointed by the court; if
Garcia was dissatisfied with his services, he could have fired Bitner at any time.

Bitner talked to Garcia about the option of taking a plea deal or going to trial,
about the range of sentences that could be imposed, and about the process leading up to
trial. The minimum standard for competent counsel, which Bitner far exceeded, is to
advise the client on the range of possible penalties and to discuss the options available to
6

the client. See State v. White, 289 Kan. 279, 285-86, 211 P.3d 805 (2009) (quoting State
v. Shears, 260 Kan. 823, 830, 925 P.2d 1136 [1996]).

The district court did not abuse its discretion in finding that Garcia was
represented by competent counsel.

 Whether Misled, Coerced, Mistreated, or Unfairly Taken Advantage of

With respect to the second Edgar factor, Garcia claims he was misled, coerced,
and taken advantage of because he was not provided a language interpreter. Again, the
facts detailed above support an opposite conclusion.

To begin with, given his background, experience, and language proficiency,
Garcia's claimed need for an interpreter appears rather disingenuous.

In any event, Bitner reviewed the State's initial offer in English and understood
that the recommended sentence being proposed was more than he was willing to accept.
He reviewed the State's second offer before trial and again on the day the trial
commenced. He reviewed the State's offer with the aid of an interpreter. He did not ask
the court for more time with the interpreter before proceeding. Only after having at least
two days to consider the offer and reviewing the plea agreement with counsel three times,
one of which was in Spanish with an interpreter, did Garcia enter his pleas.

At the hearing on his motion, Garcia described the pressure that was on him when
he entered his pleas. After seven trial continuances, he could either go to trial (which he
did not want to do) or accept the State's new offer which, although more favorable than
before, was less than Garcia wanted and expected. Every settling criminal defendant
faces the same alternatives. The fact that a defendant must make such a choice does not
7

constitute coercion under Edgar. If it were so, every plea before sentencing could be
undone. Garcia was not coerced into entering his pleas.

 Whether Plea Was Fairly and Understandingly Made

When arguing that the plea was not fairly and understandably made, a defendant
must show that the process was unconstitutional. A plea is unconstitutional if it was not
entered into voluntarily, knowingly, and intelligently. Edgar, 281 Kan. at 36-37. Here,
Garcia again contends his pleas were not fairly and understandably made because of the
language barrier and the lack of a language interpreter. Once again, the record shows
otherwise.

Garcia seems to ignore the fact that he was provided an interpreter with whom he
reviewed the agreement in his native tongue before entering his plea. We will not recount
the evidence already discussed on the language issue and the pains to which the district
court went to explain the agreement and Garcia's rights. It suffices to say that the record
does not disclose that because of a language barrier Garcia was unable to knowingly and
intelligently waive his rights to a jury trial and the various rights that go with that waiver.
Nor did any language barrier interfere with his ability to knowingly and intelligently
accept the State's offer and enter pleas that would avoid a jury trial and provide him with
a more favorable sentence recommendation from the State.

In conclusion, Garcia fails to demonstrate any abuse of discretion in the district
court's denial of his motion to withdraw his guilty pleas.

Affirmed.