State v. Gonzales

1

NOT DESIGNATED FOR PUBLICATION

Nos. 119,939
120,439


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ACE GONZALES,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed November 1,
2019. Affirmed.

James M. Latta, 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 ARNOLD-BURGER, C.J., GREEN and BUSER, JJ.

PER CURIAM: The State charged Ace Gonzales in two separate criminal cases in
2017. In the first case, Gonzales retained Steven Mank as counsel. In the second case,
Taryn Locke was appointed to represent him. The first case was slated for trial on
November 27, 2017. That morning, Gonzales told the trial court judge he wanted to
proceed pro se and negotiate a plea agreement with the State. The trial court judge
allowed him to do so. Gonzales and the State reached a plea agreement resolving both
pending cases. The trial court held a plea hearing. It called Locke to the courthouse
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because the plea agreement resolved her case as well as the first case. The trial court then
appointed Locke to represent Gonzales in the first case as well as the second. Gonzales
pleaded guilty to three charges. Before sentencing, Gonzales moved to withdraw his plea,
citing ineffective assistance of counsel and arguing his plea was the result of PTSD and
anxiety. After a hearing, the trial court denied this motion. Gonzales now appeals this
ruling. For the reasons stated below, we affirm.

On May 17, 2017, in case No. 17 CR 1416, the State charged Gonzales with a
domestic violence offense: knowingly causing bodily harm in a manner whereby great
bodily harm, disfigurement, or death could be inflicted. Gonzales retained Steven Mank
to represent him in this case. The trial court set 17 CR 1416 for trial on November 27,
2017.

On June 23, 2017 in case No. 17 CR 1844, the State charged Gonzales with two
more domestic violence offenses: knowingly causing great bodily harm or disfigurement
and knowingly violating a no-contact order. Both this case and 17 CR 1416 involve the
same victim. Taryn Locke was appointed to represent Gonzales in this case.

The trial court held a preliminary hearing for 17 CR 1844 on October 5, 2017. At
the hearing, Gonzales told the court he wanted to proceed pro se and have Locke
removed. The court cautioned Gonzales about the risks of proceeding without a lawyer,
and Gonzales confirmed that he chose nevertheless to proceed pro se "with a full
understanding of what the consequences are." Gonzales stated he understood that if he
later decided he needed an attorney, Locke would most likely be reappointed; he also said
that his decision to proceed pro se had "nothing personally to do with Ms. Locke." The
court told Gonzales that his sentence for the primary offense could range from 38 months
to 172 months and was a presumptive prison sentence; Gonzales stated that he
understood. The court excused Locke from the case. Gonzales presented no evidence at
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the preliminary hearing and waived the reading of the complaint. Gonzales pleaded not
guilty on both counts. The court set the case for trial on November 6, 2017.

Shortly after the preliminary hearing, Gonzales moved for reappointment of
counsel in 17 CR 1844. The trial court held a hearing on the motion on October 20, 2017.
The trial court reappointed the public defender's office. The court then continued the trial
in that case until December 4, 2017; Gonzales did not object.

On October 31, 2017, Gonzales moved pro se to remove Locke as counsel. He
alleged that Locke "was handling case [sic] in a [sic] unfavorable way" because he
disagreed with her on case strategy and she would not file particular motions he wanted.
He also alleged that "it would surly [sic] appear Ms. Locke had discuss" his case with law
enforcement and prosecution before she met with him, and she was therefore biased. He
further alleged that he had a "conflict of interest" with "any member of the public
defenders office." The trial court scheduled a hearing on this motion for November 11,
2017, then later rescheduled it for December 1, 2017.

The morning of November 27, 2017, the day of Gonzales' scheduled trial in 17 CR
1416, the trial court held a pretrial meeting in chambers with Gonzales, Mank, and
Assistant District Attorney Alice Osburn. The purpose of the meeting was to review jury
questionnaires for potential conflicts. During the meeting, Gonzales "started into a
colloquy with the Court, and to lesser extent Mr. Mank, about some issues he had had
with Mr. Mank." The trial judge then had Mank and Gonzales confer privately in the
library.

After the private conference, the trial court proceeded on the record to discuss the
issue with Mank, Gonzales, and Osburn present. Mank reported that Gonzales wished to
proceed pro se; the trial court asked Gonzales if this was true. Gonzales responded, "I feel
like I don't really have an option if he's not going to do his due diligence and fully
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represent me to the best of his ability." Gonzales then alleged that Mank "doesn't know
what he's going to do" at trial. Mank clarified that he told Gonzales that the trial strategy
was dependent on what the State did at trial. If the victim testified one way, he would
take one approach. If the victim testified differently, he would take a different approach.

The trial judge asked if there was "any way" Gonzales could continue to work
with Mank. Gonzales responded, "I would like him to because I know he's a good lawyer,
but for whatever reason, he's telling me what he's telling me." The trial judge explained
that oftentimes attorneys and clients disagree because attorneys are more objective when
acting in the best interests of the client, while clients sometimes are unable to see the full
picture. Gonzales said he understood this. The trial judge again asked if Gonzales wanted
Mank to represent him at trial, or if he wanted to represent himself. Gonzales asked, "[I]f
I get stuck out there, will I be able to through my Sixth constitutional right be able to call
for counsel and withdraw if I get stuck out there for whatever reason?" The trial judge
explained that Gonzales would have to apply for a court-appointed attorney; the judge did
not know what attorneys would be available and what their schedules were, but he
cautioned that he was not going to continue the case mid-trial for days or weeks to let a
new attorney get up to speed, that if Gonzales asked for counsel mid-trial it would
potentially result in a mistrial. Mank then offered to act as hybrid standby counsel
wherein he could be "on call" for the trial if Gonzales had a question during trial.
Gonzales stated that he would be okay with this.

The trial judge then cautioned Gonzales about self-representation. Gonzales stated
that he understood the warnings and the rights he was giving up. The trial judge found
that Gonzales knowingly and intelligently waived his right to counsel, opting to proceed
pro se with Mank as standby counsel.

The trial judge and Mank began to discuss the logistics of standby counsel, as the
trial judge had never before presided over a case with standby counsel. As Mank and the
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trial judge conversed, Gonzales interrupted saying, "Just let him do it. Just let him do it.
Just let him do it. If he sells me out, he sells me out. Just let him do it." The trial judge
stated that he was concerned by that statement because it seemed like Gonzales was just
setting Mank up for a "1507." Mank briefly responded:

"I would be happy to assist him, but as far as tactical issues, he's got it in his mind what
needs to be done . . . . I will be happy to stick around or be available for issues regarding
technical matters, and he can try his case the way he sees fit. Because no matter what I
do, he's not going to be happy."

Gonzales replied:

"It's not true. Just do it, Mank, just do it. Just do it. 'Cause just do it. Just do the damn
case. Excuse my French, just do the case. You know, just I'm just doing my best to, you
know, just to make sure I don't get throwed under the bus, and it just felt like I am. And
what am I supposed to do, just stand by and not say anything?"

Both the trial judge and Mank responded, "[N]o." Mank said he was happy to serve as
standby but would not try the case. The court explained to Gonzales that he could
proceed pro se with Mank as standby, or have the case continued so he could get a new
attorney. Gonzales stated that he did not want to continue the case. He stated the
following:

"No. I can't hire—I wouldn't want to continue this today. I would not want to continue
this today either. He's going to represent me, or if he's saying he doesn't want to now
because I was just trying to cover my own, you know, best interests and look out for
myself because I couldn't get a straight answer from him, and so be it. I've walked in the
waters, and if I'm just left there now because, you know, after you went over the review
and I'm thinking about things, if he says that I'm not going to go in the water with you
now, then I guess it is what it is."

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Osburn interjected and stated that Locke represented Gonzales in 17 CR 1844, but
he "ha[d] a motion to terminate her and go pro se on that case." Gonzales responded,
"No, I just have a motion to dismiss her. I didn't have a motion to go pro se. Just a
dismiss motion."

The trial judge then told Gonzales: "All right. You want an attorney, but not Mr.
Mank." Gonzales replied, "No. It's either Mank or me. I don't want to deal with that. So if
Mank doesn't want to do it, then I guess I've opened my mouth, and so it is what it is." He
specifically declined the trial judge's offer to appoint an attorney from the conflicts office.
The trial judge then asked Mank if, after this exchange, he was still willing to serve as
standby counsel. While Mank was discussing this with the trial judge, Gonzales
interrupted. He asked to "propose something off the record" to Osburn. The trial judge
stated that he could not; he said he had not relieved Mank from the case yet. Gonzales
again reiterated his complaints about Mank, then stated:

"So if you're going to allow Mr. Mank not to represent me, then I'll just go pro se.
Like I said, I opened my mouth. And at that point if you're going to let him go, then I
would ask to speak with Ms. Osburn just for a short three minutes. And if me and her
can't conclude on something, because I was going to do that with Mank any way, then
we'll just proceed to go to trial."

The trial court then relieved Mank from the case and stated that he was giving
Gonzales his "three minutes" to speak with Osburn, after which the trial judge would
appoint the conflicts office. The trial judge further stated: "After conferring with the
conflicts attorney, defendant can choose later whether to go to trial with counsel or pro se
or enter a plea."

While acting pro se, Gonzales reached a plea agreement with Osburn: the same
plea agreement the State had extended to Gonzales back in July 2017. Gonzales agreed to
plead guilty to one count of level 7 aggravated battery, one count of level 5 aggravated
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battery, and one count of violation of a protective order, resolving both his cases. In
exchange, the State would recommend the low box sentences and that the sentences be
run concurrent.

Because the parties came to an agreement, the trial court dismissed the jurors and
held a plea hearing. Locke came to court to represent Gonzales. Locke told the trial court
the following: "[T]here is a pro se motion for dismissal of counsel that is set on the
motions docket for Friday." The following discussion ensued:

"MS. LOCKE: And I have advised Mr. Gonzales that he will need to withdraw
that motion in order to proceed with the plea at this time. It's my understanding that it is
his desire to do that and move forward with me as counsel on the 17 CR 1844 case.
"THE COURT: All right. Thank you. Mr. Gonzales, is that correct, that you have
a pending motion to relieve Ms. Locke as counsel of record and proceed pro se in the 17
CR 1844 case?
"THE DEFENDANT: Yeah. I'm going to withdraw it. Yes, sir.
"THE COURT: You have a motion pending and you do wish to withdraw it?
"THE DEFENDANT: Yes, sir.
"THE COURT: And you wish to proceed with her as your attorney today in the
17 CR 1844 case and proceed as your own attorney in the 17 CR 1416 case?
"THE DEFENDANT: Yes, sir.
"THE COURT: All right.
"(Ms. Locke talking to the defendant.)
"MS. LOCKE: Your Honor, I have just briefly spoken to him, and I think it
would be best to appoint me also on the 17 CR 1416 case. Mr. Gonzales did say that that
was his desire as well.
"THE COURT: Okay. You wish Ms. Locke appointed to you in the 17 CR 1416
case?
"THE DEFENDANT: Yes, sir.
"THE COURT: All right. I'll appoint Ms. Locke to represent you in this matter as
well."

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The trial court then questioned Gonzales about his plea. Gonzales stated that he
"read [the plea agreement] completely" and understood and signed both his plea
agreement and acknowledgment of rights and entry of plea. The trial court went over
Gonzales' rights with him. Gonzales stated that he understood his rights and options. The
trial court explained the highest sentences Gonzales would face under the plea agreement.
Gonzales stated that no one had made any threats or promises to induce him to accept the
plea agreement. The court asked Gonzales if he had a history of mental illness or mental
problems that might "affect [his] abilities to understand [his] rights or the consequences
of a plea." Gonzales responded, "I mean, there's stuff, but, I mean, I know what I'm
doing." The trial court inquired further:

"THE DEFENDANT: I've had history, you know, mental history, like
depression, anxiety, PTSD, all that stuff, but I know what I'm doing.
"THE COURT: All right. Have you received treatment or counseling or
medication for those conditions in the past?
"THE DEFENDANT: I was young, yes, sir.
"THE COURT: How long has it been since you've taken any of the medications
prescribed for any of those conditions?
"THE DEFENDANT: Years.
"THE COURT: And you think you've been able to function well without being
on those medications, despite having those conditions?
"THE DEFENDANT: For the most part, yeah. I mean, yes, sir, I'm fine.
"THE COURT: Okay. Are you currently on any drugs or medications or at least
taken any drugs or medications in the last two days that might affect your abilities to
understand your rights or the consequences of a plea?
"THE DEFENDANT: No.
"THE COURT: Ms. Locke, do you have any reservations about your ability—
your client's mental acuity at this time to appreciate the charges, the importance of his
rights, the significance of waiving those rights, and to fully appreciate and understand the
consequences of a plea of guilty to these charges?
"MS. LOCKE: No, Your Honor.
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"THE COURT: Based on my observations of and communications with and
conversation with Mr. Gonzales over most of this morning, I don't either. I find he is
emotionally agitated today, but that's understandable. But I do find he's very focused on
things. He understands why we're here, what we're doing, what the charges are. He
understands what his rights are.
"Mr. Gonzales, in the 17 CR 1844 case, and very recently in the 17 CR 1416
case, you are represented by Ms. Taryn Locke. Have you been satisfied with her services
as your attorney in both of these cases, albeit on a more limited basis in the 17 CR 1416
case?
"THE DEFENDANT: She's fine. Yes, sir.
"THE COURT: And in the 17 CR 1416 case, you had been represented by Steven
Mank, but he was relieved this morning. And you operated briefly pro se in this case.
And you entered into some plea agreement understanding with Ms. Osburn, and now Ms.
Locke has been appointed to represent you in the 17 CR 1416 case. Do you feel that has
placed any situation of coercion or feeling that you're forced into this plea agreement?
"THE DEFENDANT: No, sir.
"THE COURT: Are you entering this plea agreement simply because it's what
you want to do under all the circumstances?
"THE DEFENDANT: I think it's the right thing to do."

Gonzales stated that he did not have any questions about "any of the legal rights,
choices, or options contained" in the plea and acknowledgment of rights. He stated he
fully understood all his legal rights, choices, and options in both cases. The trial court
accepted Gonzales' pleas.

Gonzales moved to withdraw his plea a little over a month later on January 2,
2018. Then, on February 16, 2018, he filed an amended motion to withdraw his plea.

The trial court held a hearing on those motions on May 8 and 9, 2018. During the
hearing, Gonzales testified that he was jailed after he was charged in the second case. He
stated that Mank visited him one time shortly after he was jailed, one time in mid-August,
and once six days before the scheduled trial in late November. He stated that during the
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November visit, Mank told him that the assistant district attorney (ADA) would use the
17 CR 1416 case as a "steppingstone" to worsen his sentence in his other case. He also
stated that during this meeting, Mank mentioned that Gonzales had failed to pay him and
that he would "get a defense equal to what [he'd] paid" which at that point was about
$1,500. He stated that he asked Mank about conflicting police reports that he believed
would support his version of events and Mank "act[ed] like that report didn't exist" and
said he would not use it. He also stated that he told Mank he wanted to argue self-
defense, but Mank stated that it would not matter.

Gonzales recounted his private meeting with Mank in the chambers library on
November 27, 2017. He stated that in the library, he pressed Mank about his lack of a
plan for a defense. He stated that Mank became frustrated and told him, "[Y]ou know
what, you're so smart, you know what you want to do . . . why don't you just go pro se."
He stated that he responded: "[W]hat choice do I have?" He stated that Mank then
walked out.

Gonzales described the meeting immediately after in the judge's chambers with
Mank, Osburn, and the judge. He stated that the judge advised him about his rights, and
he "was trying to ask all the right questions. But then something in [his] mind was telling
[him], you're doing the wrong thing" and he "didn't remember [the judge] ever going
back to finishing the—finishing the pro se procedure." He then stated that he "at one
point" "just told Mank, Mank, just do the case, you know." Then, he said the judge stated
he would relieve Mank, appoint conflict counsel, and continue the case, but that Gonzales
could speak with the ADA for a few minutes.

Gonzales stated that he did speak to Osburn about both cases. He asked for certain
deal terms and she said no, that only the plea deal she had offered back in July or August
was on the table. Gonzales had previously declined this deal. He stated that he told
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Osburn that he thought he could win the first case if he had "proper counsel."
Nevertheless, he stated that he accepted the deal this time.

Then, Gonzales stated that the case proceeded to a plea hearing that same day.
Locke was present with him at the hearing. He stated that he did not tell Locke he did not
want the plea. Locke showed Gonzales the plea paperwork: He "glanced it over" and
thought he asked her one question about it. He signed the plea agreement, he also signed
the defendant's acknowledgement of rights and entry of plea. He further stated that he
signed something about withdrawing motions he had filed, including a motion to remove
Locke as counsel. He testified that Locke knew he had PTSD and anxiety and that Mank
knew or should have known as well. He stated that when he accepted the plea agreement,
he did not think there was any other viable way to resolve the cases.

On cross-examination, Gonzales admitted that he personally hired Mank while he
was out on bond. He met with Mank and Mank gave him some police reports to review.
He also stated that when he was arrested after being charged with the second crime,
Mank visited him in jail and provided him the State's witness list. Later, Mank gave
Gonzales the State's proposed jury instructions and reviewed them with him. The two
also discussed a self-defense argument, and Mank said he thought it was not appropriate.
He stated that Mank visited him in jail three times in the week before his trial. He
admitted that after the private discussion in the chambers library, he told the judge that
"at this point if you're going to let him [Mank] go, then I would ask to speak with Ms.
Osburn just for a short three minutes." He also admitted that he stated, "[I]f me and her
can't conclude on something because I was going to do that with Mr. Mank anyways,"
because he thought he and Mank might work out a plea agreement for the case that day.

Gonzales stated that he did not remember the court asking if he wanted Locke to
represent him at the plea hearing. He stated that he remembered signing papers to
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withdraw his motion for substitute counsel. When asked if he did not want Locke to
represent him when he made his plea, he replied:

"I thought she was still my attorney on record so I didn't even know it was an issue
honestly. Like I said, when I was sitting there, there was a lot of things going on in my
mind. So I just thought it was a formality, to be quite honest with you, to have me sign
the paperwork."

Then, he stated that when the court asked him if he wanted Locke appointed to
represent him on 17 CR 1416 as well as 17 CR 1844, he said yes. He admitted that he
told the judge that he was not coerced, threatened, or promised anything beyond the plea
deal.

Then, Steven Mank testified for the State. He explained that Gonzales hired him to
represent him in 17 CR 1416, but Gonzales did not pay him. Thus, Gonzales could not
afford to hire Mank to defend him in 17 CR 1844. Mank stated that he never indicated
that he would not defend Gonzales to the fullest because he had not been paid. Instead, he
stated that he told Gonzales that he was disappointed that Gonzales had not paid him. He
stated that he visited Gonzales three or four times before he was in custody and five or
six times in jail, including twice the weekend before his trial. He stated that he had
prepared a trial notebook and a 14-page outline for the trial. In terms of self-defense, he
stated that he was prepared to raise self-defense based on a statement by the victim in one
of the police reports that she had started things. He further stated that he included the PIK
instruction on self-defense in his trial notebook, indicating that he anticipated this issue.

Mank testified that at the meeting in chambers on the day of the scheduled trial,
things were "tense" and "somewhat confrontational" because Gonzales told the judge he
thought Mank did not have his best interests at heart and was trying to "screw" him. He
stated that when he met privately with Gonzales in the library, he did not threaten him.
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He stated that he told Gonzales he no longer wanted to represent him because it was a
"lose/lose situation because [Gonzales] was already setting [Mank] up for failure. So if
certain things didn't happen, [Mank] had screwed him. If certain things did happen,
[Mank] had screwed him." Mank stated several times before the day of the scheduled trial
Gonzales stated that he could do a better job representing himself than Mank could.
Gonzales reiterated this claim in the library and Mank told him, "if you feel that you can
represent yourself better than me, do it." Gonzales eventually stated that he thought that's
what he wanted to do.

Mank stated that he did not recall Gonzales mentioning he wanted recordings of
jail calls. He also stated that he did not recall Gonzales saying anything about his father's
health. Mank stated that Gonzales never mentioned anxiety or PTSD. He further stated
that the morning of the scheduled trial, Gonzales had not stated anything to him about
wanting to reach a plea agreement.

Then, Locke testified. She stated that she was appointed to represent Gonzales in
17 CR 1844. She stated that she believed she was his attorney several different times
during their attorney and client relationship: Then he proceeded pro se, then she was
reappointed, and then he proceeded pro se again. She stated that she received a phone call
on November 27, 2017, that Gonzales wanted to accept a plea agreement and she needed
to come to court. She stated that when she arrived at court, she talked with Gonzales
about the plea agreement before it was entered on the record. She stated that Gonzales
withdrew the motion to have her removed from the 17 CR 1844 case and then asked to
have her appointed in his other case as well. She stated that her understanding was that
the plea agreement was what Gonzales wanted to do, and she was just brought in so he
would have an attorney with him during the plea. She further stated that she went over
the acknowledgment of rights and plea document with him. She also stated that he did not
have very many questions and did not say he felt threatened, coerced, or forced to accept
the plea agreement. Moreover, Gonzales did not tell her he was pleading because of his
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anxiety or PTSD. She stated that she did not remember Gonzales signing anything about
withdrawing his motion for substitute counsel; she thought they just took care of it
verbally on the record.

In closing, Gonzales argued that he should be allowed to withdraw his plea
because the State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006), factors weighed in
favor of allowing him to withdraw his plea. He highlighted his loss of faith in Mank and
conflict with him and argued that "by the totality of the circumstances, [he was] coerced
into" pleading. The State argued that Gonzales should not be allowed to withdraw his
plea. The State argued that Gonzales had competent counsel, had the opportunity to claim
he was coerced or under duress but did not do so, and, in fact, was the one who pursued a
plea deal the day of the scheduled trial. The State also emphasized that in the courtroom
immediately after pleading, Gonzales told a family friend of the victim's to tell the victim
that he was sorry and took responsibility.

In denying Gonzales' motion to withdraw his plea, the trial court relied heavily on
the transcripts from the pretrial meeting in chambers as well as the plea hearing. The trial
court concluded: "I find that . . . Mr. Gonzales was represented by competent counsel,
both Mr. Mank and Ms. Locke. That Mr. Gonzales was not misled. Was not coerced.
Was not mistreated or was not unfairly taken advantage of. I find the plea was fairly and
understandably made."

The trial court sentenced Gonzales to 30 months in prison in 17 CR 1416. In 17
CR 1844, the trial court sentenced Gonzales to 122 months in prison for the felony count
and 12 months in jail for the misdemeanor count. Gonzales timely appealed the denial of
his motion to withdraw plea as well as his sentence.


15

Did the Trial Court Err by Failing to Examine the Voluntariness of Gonzales'
Withdrawal of His Motion for Substitute Counsel?

Gonzales first argues that the trial court erred by not appropriately determining the
voluntariness of his withdrawal of his motion for substitute counsel before he pleaded
guilty. The State contends that this court lacks jurisdiction over Gonzales' first argument
because the issue was not identified in either of his notices of appeal.

While Gonzales frames the issues somewhat differently, his argument amounts to
a claim that this court should reverse the trial court's denial of his motion to withdraw his
plea because his right to conflict-free counsel under the Sixth Amendment to the United
States Constitution was violated at his initial plea hearing. Nevertheless, we cannot reach
the merits of this issue because Gonzales is raising a constitutional argument for the first
time on appeal, and he has failed to explain why this court should nevertheless consider
this issue for the first time on appeal. As our Supreme Court pointed out in State v.
Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015), appellate courts may make an
exception to this rule, however, the appellant must explain why this is properly before the
court:

"While we will not generally review constitutional claims raised for the first time on
appeal, we do make exceptions:
'Despite the general rule, appellate courts may consider constitutional issues
raised for the first time on appeal if the issue falls within one of three recognized
exceptions: (1) The newly asserted claim involves only a question of law arising on
proved or admitted facts and is determinative of the case; (2) consideration of the claim is
necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3)
the district court is right for the wrong reason. State v. Spotts, 288 Kan. 650, 652, 206
P.3d 510 (2009).' State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010).
"But an exception must be invoked by the party asserting the claim for the first
time on appeal. Kansas Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 41),
16

describing the required contents of an appellant's brief, clearly states those briefs must
include:
'The arguments and authorities relied on, separated by issue if there is more than one.
Each issue must begin with citation to the appropriate standard of appellate review and a
pinpoint reference to the location in the record on appeal where the issue was raised and
ruled on. If the issue was not raised below, there must be an explanation why the issue is
properly before the court.' (Emphasis added.)
"We have recently reiterated that Rule 6.02(a)(5) means what it says and is
ignored at a litigant's own peril. See State v. Williams, 298 Kan. 1075, 1085, 319 P.3d
528 (2014)."

Here, Gonzales did not discuss the trial court's alleged failure to inquire about the
knowingness and/or voluntariness of his plea when he argued for plea withdrawal below.
Gonzales' first motion to withdraw his plea does not allege any issues with Locke beyond
her failure to connect Gonzales' "emotional state" during the plea hearing with his PTSD.
Instead, the motion focused on Mank and the fact that Gonzales was allowed to negotiate
with Osburn pro se. Gonzales' amended motion to withdraw also focused on his qualms
with Mank and his pro se status while negotiating a plea with Osburn. It mentions Locke
only twice. First, Gonzales argued that because Locke was his counsel in 17 CR 1844 on
November 27, 2017, she should have been brought in to represent him during plea
negotiations since she was available 20 minutes later for the plea hearing itself. Second,
he reiterated that Locke should have known that his PTSD was making him plead.

During closing arguments on Gonzales' motion to withdraw his pleas, the most
Gonzales' attorney stated about the issue was as follows: "Ms. Locke—the defendant had
a motion pending to fire Ms. Locke at that time, but he withdrew that on the record
before entering the plea." He did not argue that Locke had a conflict or that Gonzales'
withdrawal of his motion to fire Locke was not voluntary or knowing. He did not argue
that Locke's continued representation of Gonzales in 17 CR 1844 or appointment to
represent Gonzales in 17 CR 1416 violated his Sixth Amendment rights. The closest
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Gonzales came to raising this issue before the trial court was in his pro se notice of
appeal filed after the judge denied his motion to withdraw his plea, and even then he did
not specifically address Locke's continued representation of him. Rather, he asserted that
his Sixth Amendment rights were violated "in each and every step and stage of
proserution, [sic] in this instant 'plea discussions' for both cases."

Gonzales also does not explain why we should reach his argument about the
voluntariness of his withdrawal of his motion to fire Locke on appeal. Instead, he
erroneously claims that "[B]y filing the motion, in addition to [Locke] raising the issue
again during the hearing, Locke has preserved this issue for appellate review."
Nevertheless, as detailed above, Gonzales did not argue that Locke's continued
representation was error. He just mentioned the motion to withdraw without any
argument whatsoever. Gonzales also references his notice of appeal which stated his
Sixth Amendment right to counsel was violated "in each and every step and stage of
proserution [sic]." As mentioned earlier, this notice of appeal was filed after Gonzales'
motion to withdraw was denied. The record establishes that Gonzales, in fact, failed to
argue the voluntariness of his withdrawal of his motion to fire Locke before the trial
court. Because Gonzales does not acknowledge that he failed to raise this argument
before the trial court, he also does not invoke one of the three recognized exceptions to
justify us reaching this issue for the first time on appeal. Thus, Gonzales has failed to
comply with Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34), and we are
precluded from reaching this argument on its merits.

Did the Trial Court Err by Denying Gonzales' Motion to Withdraw His Plea?

Gonzales next argues that the trial court made two reversible errors when denying
his motion to withdraw his plea. First, he argues that the trial court made factual findings
unsupported by the evidence. Second, he argues that no reasonable person would agree
with the trial court's conclusion that he knowingly and voluntarily pleaded guilty. The
18

State argues that we should affirm the trial court's denial of Gonzales' motion to withdraw
his plea.

Gonzales preserved this issue for our review by moving to withdraw his pleas,
having the motion denied, and appealing his convictions.

Before sentencing, a trial court may grant a defendant's motion to withdraw his or
her guilty plea "for good cause shown"; this decision lies within the trial court's
discretion. State v. DeAnda, 307 Kan. 500, 502, 411 P.3d 330 (2018); see also K.S.A.
2018 Supp. 22-3210(d)(1).

"An appellate court reviews a district court's decision to deny a plea withdrawal
motion and the underlying determination that the defendant has not met the burden to
show good cause for abuse of discretion. State v. Reu-El, 306 Kan. 460, Syl. ¶ 1, 394
P.3d 884 (2017)." State v. Woodring, 309 Kan. 379, 380, 435 P.3d 54 (2019). A trial
court abuses its discretion if it bases a decision on an error of law or fact, or if no
reasonable person could agree with the trial court's decision. A trial court makes an error
of fact if substantial competent evidence does not support a factual finding. State v.
Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011). An appellate court may not reweigh
evidence or reassess witness credibility when reviewing for abuse of discretion. Reu-El,
306 Kan. 460, Syl. ¶ 1. The party arguing the trial court abused its discretion bears the
burden to show such an abuse. State v. Denmark-Wagner, 292 Kan. 870, 875, 258 P.3d
960 (2011).

Here, the trial court denied Gonzales' presentence motion to withdraw his plea.
The trial court concluded that Gonzales "was represented by competent counsel, both Mr.
Mank and Ms. Locke. That Mr. Gonzales was not misled. Was not coerced. Was not
mistreated or was not unfairly taken advantage of . . . the plea was fairly and
understandably made." The trial court also concluded that Gonzales' PTSD and anxiety
19

did not render Gonzales incapable of understanding the charges against him, his rights,
the effect of a plea, or his potential sentence. The trial court concluded that no good cause
existed to allow Gonzales to withdraw his plea. It stated: "Mr. Gonzales gave every
indication objectively that he knew what was he doing, he did what he wanted to do, he
entered a plea in both cases. He admitted guilt in both cases."

On appeal, Gonzales contends that the trial court "committed an error of fact when
it determined that Gonzales never raised an issue concerning Locke's representation." He
cites the following excerpt from the trial court's ruling:

"Pursuant to the record, pursuant to the testimony, pursuant to the motion, Mr.
Gonzales has not specifically raised any basis or claim against Ms. Locke for ineffective
assistance of counsel or any basis upon which to withdraw the plea based on her
representation of him. Relative to Ms. Locke, no Edgar or non Edgar factors were
alleged against her or testified about by Mr. Gonzales relative to Ms. Locke. There is no
basis to set aside the plea on any factor relating to Ms. Locke."

Gonzales contends that the trial court's factual finding that "no Edgar or
non Edgar factors were alleged against" Locke was not supported by substantial
competent evidence and, thus, the trial court's ruling was based on an error of fact.
The Edgar factors are three factors a trial court may consider when analyzing a
defendant's motion to withdraw a plea. They include: (1) whether the defendant
had competent counsel; (2) whether the defendant was misled, mistreated,
coerced, or unfairly taken advantage of; and (3) whether the plea was fairly and
understandingly made. Edgar, 281 Kan. at 36. The factors are nonexhaustive and
not meant to be applied mechanically. State v. Garcia, 295 Kan. 53, 63, 283 P.3d
165 (2012).

On appeal, Gonzales says he did plead that Locke was ineffective—that she
"was not present for the meeting in chambers, she was not aware of current
20

matters regarding his mental state, and she was unaware of matters related directly
to 17CR1416." He further claims that he "alluded that Locke failed to reasonably
advise him of the conditions of the plea agreement or his acknowledgment of
rights." He correctly points out that the trial court instructed Locke that she could
testify about her conversations with Gonzales because "since he's raised
allegations of ineffective assistance and force and coercion, to answer the
questions. They do relate, and you're relieved under the attorney/client privilege
opinion on that matter."

Gonzales' motions can be generously construed as raising a claim that
Locke was ineffective for not connecting Gonzales' emotional state in the
courtroom with his PTSD. For example, Gonzales alleged the following in his two
motions: "Locke saw defendant was in a [sic] emotional state but didn't have any
idea the details of it. Defendant was in a 'manic episode'"; "Locke did see
Gonzales in court room for plea hearing saw Gonzales was in emotional state but
didn't have any details of it." Nevertheless, the trial court did state earlier in the
hearing that Gonzales had raised ineffective assistance claims against Locke.

Gonzales, however, fails to show that the trial court here "based" its
decision on an error of fact, as is required to show abuse of discretion. See State v.
Staten, 304 Kan. 957, 970, 377 P.3d 427 (2016) ("A court abuses judicial
discretion if its action is . . . [3] based on an error of fact." [Emphasis added.]). To
show abuse of discretion a party must establish more than the mere fact that the
trial court made an error of fact; it must establish that the trial court "based" its
decision on an error of fact. Here, Gonzales cannot establish that the trial court
"based" its decision on an error of fact because the trial court, later in its decision,
contradicted and remedied this erroneous factual finding. The trial court held, "I
find that Mr. Gonzales was represented by competent counsel, both by Mr. Mank
and Ms. Locke." Gonzales did not object to the trial court's conflicting factual
21

findings. This court cannot reweigh the evidence when reviewing for abuse of
discretion and must give deference to a trial court's factual findings. State v.
Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011). Gonzales has not born his
burden to show the trial court "based" its ruling on an error of fact because even
though the trial court erroneously stated that Gonzales never claimed Locke was
ineffective, it later remedied this error by explicitly finding that Locke provided
effective assistance of counsel, and Gonzales did not object to this finding.

Next, Gonzales argues that the trial court abused its discretion because no
reasonable person could agree with its decision to deny Gonzales' motion to withdraw his
plea. He asks this court to credit his testimony about his alleged mental distress,
allegations of ineffective counsel, and claims that he actually did not want to represent
himself over the contradictory testimony of Locke and Mank and the transcripts of the
pretrial hearing and the plea hearing. He even admits on appeal that "Locke and Mank
disputed most of the above facts" but argues "nevertheless, based on these facts, no
reasonable person could find that Gonzales' pleas were legitimate." Thus, Gonzales
concedes that to hold in his favor on this issue, we would have to reweigh the evidence
and credit his testimony below even though the trial court apparently did not. We are
prohibited from reweighing evidence when reviewing for abuse of discretion. 291 Kan. at
855. As a result, Gonzales' argument fails.

Affirmed.