State v. Heard

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NOT DESIGNATED FOR PUBLICATION

No. 120,531

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DWONE CASSANOVA HEARD,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed November 1,
2019. Affirmed.

Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before GARDNER, P.J., BUSER, J., and LAHEY, S.J.

PER CURIAM: This is an appeal by Dwone Cassanova Heard of the district court's
denial of his postsentence motion to withdraw guilty pleas to aggravated assault of a law
enforcement officer and possession of marijuana. Finding no reversible error, we affirm
the district court's judgment denying the motion.

FACTUAL AND PROCEDURAL BACKGROUND

On September 11, 2017, Heard was charged with possession of marijuana with
intent to distribute in violation of K.S.A. 2017 Supp. 21-5705(a)(4), (d)(5), possession of
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drug paraphernalia with intent to distribute a controlled substance for sale in violation of
K.S.A. 2017 Supp. 21-5709(b)(1), (e)(2)(A), and possession of drug paraphernalia in
violation of K.S.A. 2017 Supp. 21-5709(b)(2), (e)(3). During plea negotiations before the
preliminary hearing, Heard informed his counsel, Shannon Crane, that he did not want to
plead guilty to a felony drug charge but he was willing to plead guilty to any other felony.
Ultimately, the State agreed to allow Heard to plead guilty to aggravated assault of a law
enforcement officer under K.S.A. 2017 Supp. 21-5412(d)(1), and possession of marijuana
with one prior offense under K.S.A. 2017 Supp. 21-5706(b)(3), (c)(2)(A).

Prior to sentencing, Heard filed a motion to withdraw his pleas. In the motion,
Heard asserted that Crane and the prosecutor mistakenly believed the aggravated assault
of a law enforcement officer was a severity level 7 crime, but later learned it was, in fact,
a severity level 6 crime. Heard argued that this error increased his criminal history score
and his presumptive prison sentencing range by 10 months.

At sentencing on March 16, 2018, Heard withdrew his motion to withdraw pleas
because he wanted to begin serving his sentences. The district court granted Heard's
motion for a dispositional departure and sentenced him to a controlling sentence of 39
months' probation with community corrections and an underlying 24-month prison term.
Three months after sentencing, on June 29, 2018, the district court revoked Heard's
probation and imposed the prison sentences after he committed multiple violations of his
probation.

Two months later, on August 3, 2018, Heard filed a pro se motion to withdraw his
pleas. In the motion, Heard alleged: (1) his defense counsel was not interested in
contesting his case, (2) his decision to plead guilty was made under duress because Heard
had a newborn baby, and (3) his defense counsel advised him to enter a plea to an offense
he did not commit—aggravated assault on a law enforcement officer.

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After an evidentiary hearing, the district court denied Heard's motion. In a journal
entry memorializing the basis for the ruling, the district court found that unlike Heard's
testimony, Crane's testimony regarding the plea negotiations and entry of the guilty pleas
was credible. The district court found that Crane's performance as counsel was not
deficient because she provided proper legal advice and it was against that advice Heard
decided to plead guilty to the charge of aggravated assault of a law enforcement officer.
In particular, the district court found that Heard was insistent on accepting the plea
bargain, and the terms were favorable towards him. The district court concluded that
"[t]he Defendant received what he bargained for, proceeding against advice of counsel."

Heard filed a timely notice of appeal.

DENIAL OF THE POSTSENTENCE MOTION TO WITHDRAW PLEAS

We begin our analysis with a brief summary of our standard of review and the
pertinent Kansas law relating to a postsentence motion to withdraw pleas. "To correct
manifest injustice the court after sentence may set aside the judgment of conviction and
permit the defendant to withdraw the plea." K.S.A. 2018 Supp. 22-3210(d)(2). Factors a
court generally considers in determining whether a defendant has shown the manifest
injustice necessary to withdraw a plea after sentencing mirror those considered when
reviewing a presentence motion to withdraw a plea for good cause. State v. Johnson, 307
Kan. 436, 443, 410 P.3d 913 (2018).

To determine whether a defendant knowingly and voluntarily entered a plea,
courts look to the following 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. 307 Kan. at 443. Generally, an appellate court will not disturb a district court's
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denial of a postsentence motion to withdraw plea absent an abuse of discretion. 307 Kan.
at 443.

Preliminarily, although Heard's motion in the district court claimed manifest
injustice due to ineffective assistance of counsel, Heard does not raise or brief that issue
on appeal. Consequently, that issue is not before our court. See State v. Arnett, 307 Kan.
648, 650, 413 P.3d 787 (2018) (Issues not adequately briefed are deemed waived or
abandoned.).

Moreover, on appeal, although Heard contends he was under duress at the time he
entered his guilty pleas, he seeks relief because his pleas were not fairly and
understandingly made. He supports this claim by asserting that he only entered his guilty
pleas in order to be released from jail so that he could see his newborn child. Heard
argues that his concern for the well-being of his child clouded his judgment and "caused a
sense of desperation to interfere with his decision making." For legal support, Heard cites
to analogous caselaw which recognizes that the State's threat of harm to a child or to
separate the defendant from one's child may render an incriminating statement
involuntary and inadmissible at trial.

Although Heard is correct that such threats may invalidate a plea, a plea will not
be invalidated if the defendant's decision to plead was based on self-coercion. As our
Supreme Court has determined: "Every man charged with crime is influenced by
personal considerations which may later not appear valid to him, but psychological self-
coercion is not the coercion necessary in law to destroy an otherwise voluntary plea of
guilty." Williams v. State, 197 Kan. 708, 711, 421 P.2d 194 (1966); see also State v.
Denmark-Wagner, 292 Kan. 870, 876-77, 258 P.3d 960 (2011) (the defendant argued he
was coerced into pleading guilty purely because his mother and sister wanted to be able
to see him sooner and hug him during visitation); Wippel v. State, 203 Kan. 207, 209, 453
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P.2d 43 (1969) (the defendant entered a guilty plea with the understanding that he would
serve such a short sentence that his children would not be placed in foster homes).

Our court has addressed a similar situation in State v. Bloom, No. 98,492, 2008
WL 4291546 (Kan. App. 2008) (unpublished opinion). In Bloom, the defendant argued
her plea was involuntarily made because it was induced by fear. In particular, the
defendant received information about child in need of care proceedings while her
criminal case was pending that indicated her children may be placed for adoption if she
and her husband were sent to prison. As our court summarized the claim: The defendant's
"fear of her children being adopted influenced her to enter into a plea agreement with
the State; she wanted to get out of jail and get custody of her children. Bloom also
believed that if she cooperated with law enforcement, the State would return her children
to her." 2008 WL 4291546, at *3.

Our court observed that "'mistaken subjective impressions, in the absence of
substantial objective proof showing that they were reasonably justified, do not provide
sufficient grounds upon which to vacate a guilty plea.'" 2008 WL 4291546, at *4. We
found that the defendant received appropriate legal representation before entering the
plea and there was no indication the State used her children as a bargaining chip during
the plea negotiations. In particular, the State never told the defendant that she must plead
guilty or risk losing custody of her children. In fact, during the plea hearing, the
defendant acknowledged that she had not been threatened or promised anything in
exchange for entering the plea. As a result, our court found the defendant failed to show
good cause to withdraw her plea. 2008 WL 4291546, at *5.

Heard testified at the motion hearing that he principally entered his guilty pleas
because he had post-traumatic stress disorder stemming from his newborn child being
taken away from him during the proceedings, and he was concerned for the child's safety.
Of note, however, the district court specifically found that Heard's testimony was not
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credible. Moreover, there was no evidence presented that Heard had been diagnosed with
post-traumatic stress disorder, and there was no mention of concerns about his child
during the plea negotiations or the plea hearing.

Similar to Bloom, Heard failed to present credible evidence that his pleas were
induced by promises or threats of the State taking custody of his child. Neither the State
nor Crane used the child as a bargaining chip. Nor does it appear that Heard's child was
in danger of being taken into custody by the State. On the contrary, it appears the child
was safely in the mother's custody. In short, Heard's decision to enter his guilty pleas was
not motivated by his concern that the child would not be cared for or that he would lose
parental custody. While the State acknowledges that during plea negotiations Heard
stated he wanted to see his child, his desire to plead guilty, obtain probation, and be
reunited with his child, if true, was a matter of self-coercion based on purely personal
considerations.

Also similar to Bloom, as found by the district court, Heard was represented by a
competent attorney who counseled him during plea negotiations. Crane advised Heard
that if he did not accept the plea agreement he could face an additional six months in jail
awaiting trial. However, Crane testified that she never informed Heard that he must plead
guilty, only that he must weigh his options of the plea offer compared to any potential
witness testimony offered against him in the event of trial.

Heard's statements made during the plea hearing further indicate that his pleas
were knowing, voluntary, and not coerced. Heard acknowledged that he understood the
charges and the possible penalties he faced. He waived his right to have charges formally
read to him. Heard stated he understood his jury trial rights and was satisfied with Crane's
legal representation. Heard did not have any complaints or questions before the district
judge asked him to enter the pleas. In short, in addition to the evidence presented at the
motion hearing, the transcript of the plea colloquy persuades us that Heard knowingly
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and voluntarily understood the plea agreement and the decision to plead guilty was made
of Heard's own accord. Finally, Heard had an opportunity to withdraw the pleas before
sentencing but declined to do so. He only sought to withdraw the pleas after his probation
was revoked.

On this record, we hold that the district court did not abuse its discretion in
denying Heard's motion to withdraw his guilty pleas. We find the defendant was
represented by competent counsel, he was not misled, coerced, mistreated, or unfairly
taken advantage of, and his pleas were fairly and understandingly made. See Johnson,
307 Kan. at 443.

Affirmed.