State v. Herring

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NOT DESIGNATED FOR PUBLICATION

No. 118,648

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHRISTOPHER LEE HERRING,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed March 29, 2019.
Affirmed.

Kai Tate Mann, 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 BRUNS, P.J., MALONE and POWELL, JJ.

PER CURIAM: Christopher Lee Herring appeals the district court's denial of his
presentencing motion to withdraw his no contest plea to one count of robbery and one
count of aggravated assault. On appeal, Herring contends that the district court abused its
discretion by using an incorrect legal standard in denying his motion. Based on our
review of the record, we conclude that even though the district court partially misstated
the legal standard, this error was harmless because the district court made findings on the
record that trial counsel's representation of Herring was effective, competent, and
reasonable. Moreover, the district court expressly found that trial counsel did a good job
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in their representation of Herring. As such, the district court made adequate findings—
which are supported by the record—to establish that trial counsel's advocacy on behalf of
Herring was not lackluster. Thus, we affirm.

FACTS

Due to the limited issue presented on appeal, we will not set forth the underlying
facts in detail. In summary, Herring was charged with aggravated robbery arising out of
an incident in which a Family Dollar store was robbed at gunpoint in November 2016.
The district court appointed Brandon Hottman to represent Herring. Prior to trial, Herring
filed multiple pro se motions, including several motions to replace Hottman as his
attorney. In denying the motions to replace defense counsel, the district court told
Herring, "It's clear to me . . . that you want to dictate trial strategy."

On May 2, 2017, after voir dire but before the jury was sworn, Herring decided to
plead no contest to amended charges of robbery and aggravated assault. At his plea
hearing, Herring represented to the district court that he was changing his plea after
learning that the State would be presenting as evidence an incriminating phone call he
had made to his sister from the jail. The district court went on to review Herring's rights,
the charges against him, and the possible consequences of entering a no contest plea.

Herring told the district court that he understood his rights and that the plea was
voluntarily made. In addition, Herring acknowledged that he had read and signed the plea
agreement acknowledging his rights. He also confirmed that his attorney had reviewed
the plea documents with him and explained the consequences of signing them. After
Herring advised the district court that he had no questions, he entered a plea of no
contest. The district court accepted the plea and found Herring to be guilty of robbery and
aggravated assault.

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Prior to sentencing, Herring filed a pro se motion to withdraw his plea. In his
motion, he claimed—among other things—that his trial counsel was ineffective. As such,
the district court appointed a new attorney to represent Herring on the motion. The new
attorney filed another motion to withdraw plea in which he expanded on Herring's
allegations. On August 3, 2017, the district court held an evidentiary hearing on the
motion to withdraw plea.

At the hearing, Herring testified that he was innocent and that a jury could not
convict him because of discrepancies between video evidence and eyewitness' testimony
at the preliminary hearing. Herring also testified that Hottman only visited him once at
the jail and he had the impression that Hottman did not listen to him. As such, Herring
claimed that Hottman would not have been prepared for trial. Herring further testified
that he had given Hottman names for alibi witnesses but he believed the investigator
retained on his behalf "wasn't trying to help [him] with [his] case."

In addition, Herring testified that he believed he would have been acquitted at
trial. Moreover, Herring claimed that Hottman told him that if he entered a plea he would
be given presumptive probation based on the sentencing grid. Notwithstanding his
statements on the record at the plea hearing, Herring indicated he did not fully understand
the plea agreement. Specifically, Herring claimed that Hottman gave him contradictory
information about his potential sentence.

On the other hand, Hottman testified that he visited Herring seven times—
approximately once a month—while the case was pending. He confirmed this with a
contact log sheet that he kept and maintained. Hottman also testified that his meetings
with Herring lasted anywhere between 10 to 30 minutes depending on the topic to be
discussed. He testified that he discussed with his client "the facts of the case, plea
offers . . . [as well as] weaknesses, pros and cons of the case."
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Hottman testified that he investigated the possibility of presenting evidence of an
alibi but ultimately chose not to pursue the defense because he did not believe it was
viable. In particular, he testified that he could not verify the alibi or anchor it in time to
any specific event. Likewise, Hottman testified that he never told Herring that the
presumptive sentence was probation. Furthermore, he represented to the district court that
he read the plea agreement to Herring in its entirety and spent 45 minutes to an hour
going over it with his client. Hottman's cocounsel also testified and agreed that using an
alibi defense would have been "a bad idea."

Four days later, the district court issued its ruling on the motion to withdraw plea
from the bench. Herring appeared in person and by his attorney. In denying the motion,
the district court applied the factors set forth in State v. Edgar, 281 Kan. 30, 36, 127 P.3d
986 (2006). Specifically, the district court found that Hottman and his cocounsel had
"provided competent and effective representation of Mr. Herring." The district court
further found that Hottman "did a good job for his client." In addition, the district court
did not find credible evidence to support Herring's claim that he was misled, coerced, or
unfairly taken advantage. Finally, the district court found that Herring failed to prove that
his plea was not fairly and understandably made.

In accordance with the plea agreement, the district court sentenced Herring to 43
months' imprisonment for robbery and 13 months' imprisonment for aggravated assault.
Furthermore, the district court ordered that the two sentences were to be served
concurrently. Thereafter, the district court granted Herring leave to file a notice of appeal
out of time.

ANALYSIS

The sole issue presented on appeal is whether the district court abused its
discretion in denying Herring's motion to withdraw his plea before sentencing. Prior to
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sentencing, a district court may permit a defendant to withdraw his or her guilty or no
contest plea "for good cause shown and within the discretion of the court." K.S.A. 2018
Supp. 22-3210(d)(1). As the movant, Herring has the burden to establish good cause and
to show that the district court abused its discretion. See State v. Brown, 46 Kan. App. 2d
556, 562, 263 P.3d 217 (2011). A district court abuses its discretion only if (1) no
reasonable person would take the view adopted by the district court; (2) the action is
based on an error of law; or (3) the action is based on an error of fact. State v. Schaal, 305
Kan. 445, 449, 383 P.3d 1284 (2016).

In determining if a defendant has shown good cause to withdraw a plea, the
district court must decide: (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.
Garcia, 295 Kan. 53, 62-63, 283 P.3d 165 (2012) (noting that these considerations—
commonly known as the Edgar factors—establish a sound benchmark); State v. Williams,
290 Kan. 1050, 1053, 236 P.3d 512 (2010). A district court may also consider other
relevant circumstances based on the facts of the particular case. See Garcia, 295 Kan. at
63.

The first Edgar factor looks at the competence of the defendant's legal
representation leading up to the plea and weighs both the quality of the representation as
well as its effect. To satisfy this factor, the defendant must show the representation
amounts to "lackluster advocacy," which is a less demanding standard than the
incompetence required to violate the right to counsel under the Sixth Amendment to the
United States Constitution. See State v. Schaefer, 305 Kan. 581, 589, 385 P.3d 918
(2016) (citing State v. Aguilar, 290 Kan. 506, 513, 231 P.3d 563 [2010]). Moreover, the
defendant must show prejudice as a result of the substandard representation. In the
context of a motion to withdraw a plea, the defendant must establish he or she would
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have gone to trial rather than having entered the plea. State v. Richardson, 307 Kan. 2, 6,
404 P.3d 671 (2017).

Here, the district court concluded that competent counsel represented Herring. In a
15-page ruling, the district court reviewed the evidence presented at the evidentiary
hearing and found "that Mr. Hottman, along with [his cocounsel] provided competent and
effective representation of Mr. Herring." Regarding the decision not to present an alibi
defense, the district court noted that it was "a strategic, tactical, technical, and
professional decision that rests with Mr. Hottman. Furthermore, Mr. Hottman thoroughly
and capably vetted the facts" and "made a strategic decision not to pursue this defense."

Likewise, the district court found that Herring "was not at any time told he was
being convicted of a severity level six crime or that he was presumptive probation."
Regarding Herring's allegation that his attorney rarely visited him in jail, the district court
found that Hottman "saw defendant seven times, basically once per month. Mr. Hottman
provided competent and reasonable representation." The district court also found that
Hottman "provided defendant with discovery, showed him the video early on, . . .
engaged an investigator[,]. . . spent the requisite time preparing pretrial motions,
organizing a trial notebook or binder, . . . and generally preparing for trial."

Returning to the alibi defense, the district court found that Hottman "followed up"
by speaking "to [Herring's] sister more than once and had his investigator follow up with
[her], as well as others, but the sister could not provide an adequate recollection or
evidence sufficient to anchor the defense." In addition, the district court found that
Hottman "decided the evidence did not meet the legal requirement to go forward" and
"that to do so would hurt the credibility of the defendant's other theories of defense . . . ."
Thus, the district court concluded that this was "a most reasonable legal decision." In
summary, the district court concluded that Hottman "did a good job for his client."

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We find the district court's findings to be supported by the evidence in the record
on appeal. Herring failed to establish incompetent representation by Hottman and his co-
counsel. Instead, the district court found that Hottman's performance on behalf of Herring
to be "effective," "competent," "reasonable," and "capabl[e]." In fact, after hearing the
evidence, the district court concluded that Hottman was not only competent but that he
had done a "good job" in representing Herring.

Nevertheless, Herring contends that "[w]hile the district court correctly applied the
Edgar factors to some of [his] claims, it failed to do so in regard to Mr. Hottman's
decision to not proceed with an alibi defense . . . ." In particular, Herring argues that the
district court failed to apply the "lackluster advocacy" standard set forth in Aguilar, 290
Kan. at 513. Instead, Herring argues that the district court applied "the higher
constitutional standard for ineffective assistance of counsel" set forth in Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Based on our review of the record, it appears that Herring is likely correct.
Although the district court applied the "good cause" provision of K.S.A. 2017 Supp. 22-
3210(d)(1) and analyzed the Edgar factors, it did not mention Aguilar or the "lackluster
advocacy" standard in its ruling. It did, however, state that "Hottman's representation
clearly meets the objective standard of reasonableness." Accordingly, we must conclude
that the district court erred as a matter of law by failing to articulate a recognition that
"lackluster advocacy" may be sufficient to establish good cause under K.S.A. 22-3210(d).

Regardless, we find this error to be harmless in light of our review of the entire
record and the specific findings made by the district court after hearing the evidence
presented at the motion hearing. See Edgar, 281 Kan. at 37-38 (citing State v. Trotter,
218 Kan. 266, 269, 543 P.2d 1023 (1975) ["While we do not approve of any failure to
comply strictly with the explicitly stated requirements of K.S.A. 22-3210, it does not
follow that every deviation therefrom requires reversal."]). As indicated above, the
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district court not only found that Herring's attorneys met the objective standard of
reasonableness but also expressly found that they were "competent," "effective,"
"capabl[e]," and had done a "good job" in representing Herring. Each of these findings
reveal that the district court concluded that counsel's performance exceeded the
"lackluster advocacy" standard set forth in Aguilar.

On the one hand, the dictionary defines "lackluster" to mean "lacking energy or
vitality; boring, unimaginative, etc." Webster's New World College Dictionary 812 (5th
ed. 2014). On the other hand, the dictionary defines "effective" to mean "having an
effect; producing a result" or "producing a definite or desired result." Webster's New
World College Dictionary 464 (5th ed. 2014). Accordingly, we find that any error
committed by the district court was harmless because the record conclusively shows that
the representation of Herring provided by Hottman and his cocounsel was far from
lackluster.

We, therefore, conclude that Herring did not establish good cause to withdraw his
plea prior to sentencing and that the district court did not abuse its discretion in denying
Herring's motion.

Affirmed.