State v. Hudson

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NOT DESIGNATED FOR PUBLICATION

No. 117,213

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS
Appellee,

v.

SHEILA D. HUDSON,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed March 23,
2018. Affirmed.

Ryan J. Eddinger, 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., MALONE and MCANANY, JJ.

PER CURIAM: Sheila D. Hudson appeals the district court's denial of her
presentence motion to withdraw her plea. Hudson argues that she had good cause to
withdraw her plea and that the district court erred in denying her motion. Finding no
abuse of discretion, we affirm the district court's judgment.

On November 30, 2012, the State charged Hudson with one count of forgery, a
severity level 8 felony, after she attempted to cash a fraudulent check. As a condition of
her bond, the district court ordered Hudson to report to the Pretrial Services Program.
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Because Hudson failed to report as directed, a warrant was issued for her arrest on May
15, 2013. The warrant was executed nearly two years later on March 17, 2015.

On April 14, 2015, Hudson waived her right to a preliminary hearing and pled
guilty to an amended charge of giving a worthless check, a severity level 9 felony. The
amendment allowed Hudson to avoid mandatory jail time and fines that would have been
associated with a forgery conviction. At the plea hearing, Hudson acknowledged that she
completely understood the charge against her, that she had discussed the plea agreement
with her lawyer, that she understood the facts alleged against her, and that she understood
that she was giving up her right to a trial. When the judge asked, "You're pleading guilty
because you are guilty?" Hudson responded, "Absolutely."

The district court accepted the plea, finding that Hudson voluntarily and
understandingly waived her rights. The district court ordered Hudson to return for
sentencing on May 27, 2015, and released Hudson on bond to be supervised by the
Pretrial Services Program. The sentencing hearing eventually was rescheduled for August
28, 2015. Hudson failed to appear for sentencing and another warrant was issued for her
arrest. The warrant was executed nearly a year later on July 20, 2016, and sentencing
ultimately was rescheduled for October 18, 2016.

On September 9, 2016, Hudson's appointed attorney filed a motion to withdraw
the plea. The motion did not include any reasons for withdrawing the plea, but it stated
that Hudson would "more fully proffer [her reasons] when this matter is fully heard." At a
hearing on September 23, 2016, defense counsel asked the district court to allow Hudson
to argue the motion. Hudson argued there was good cause to withdraw her plea because:
(1) she did not receive the amended complaint charging her with giving a worthless check
until recently and the amount in the complaint was incorrect, (2) a guilty verdict would
negatively affect her housing and student loans and she preferred to go to trial on the
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forgery charge, and (3) the crime of giving a worthless check, according to Hudson, was
an upward departure from the original forgery charge.

After hearing the arguments, the district court found that Hudson failed to
establish good cause to withdraw her plea. The district court noted that the amended
charge of giving a worthless check was not a more serious charge than forgery and that
the amended charge eliminated mandatory jail time and fines associated with a forgery
conviction. The district court also stated that Hudson's concerns about housing and
student loans were collateral consequences of a conviction and were insufficient reasons
to allow her to withdraw her voluntary plea. Finally, the district court noted that Hudson
was not offering a substantive defense to the forgery charge.

At the sentencing hearing on October 18, 2016, Hudson raised several complaints
about the assistance of her counsel. The district court tried to answer many of Hudson's
questions and found that she was simply revisiting the arguments she had presented on
the motion to withdraw her plea. The district court sentenced Hudson to 10 months'
imprisonment and placed her on probation for 12 months. Hudson timely appealed.

On appeal, Hudson argues that she had good cause to withdraw her plea and that
the district court erred in denying her motion. Hudson's primary argument is that she did
not understand the amended charge of giving a worthless check when she entered her
plea. According to Hudson, she established that she was not guilty of any offense and she
would have preferred to go to trial on the forgery charge. Hudson further alleges that she
established that she did not understand her right to proceed to trial and how to avoid the
collateral consequences of her conviction.

The State argues that Hudson did not establish good cause to withdraw her plea.
The State asserts that Hudson was represented by competent counsel and that her plea
was voluntarily and knowingly made. The State also asserts that Hudson's concerns about
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losing her housing and student loans are collateral consequences of her plea. Based on the
totality of the record, the State contends that the district court did not abuse its discretion
in denying Hudson's motion to withdraw her plea.

Pursuant to K.S.A. 2017 Supp. 22-3210(d)(1), a defendant may withdraw a guilty
plea before sentencing if, in the discretion of the court, the defendant shows good cause
for doing so. "Judicial discretion can be abused in three ways: (1) if no reasonable person
would have taken the view adopted by the trial court; (2) if the judicial action is based on
an error of law; or (3) if the judicial action is based on an error of fact." State v. Mosher,
299 Kan. 1, 3, 319 P.3d 1253 (2014). "Defendants bear the burden of establishing an
abuse of discretion." State v. Lackey, 45 Kan. App. 2d 257, 266, 246 P.3d 998 (2011).

When considering a defendant's motion to withdraw a plea, the district court must
consider: "'(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. Macias-Medina, 293
Kan. 833, 837, 268 P.3d 1201 (2012) (quoting 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). "All of the
Edgar factors need not apply in a defendant's favor in every case, and other factors may
be duly considered in the district judge's discretionary decision on the existence or
nonexistence of good cause." Aguilar, 290 Kan. at 513.

Hudson's appellate brief focuses on the third Edgar factor, i.e., whether the plea
was fairly and understandingly made. In district court, Hudson argued that she had
received ineffective assistance of counsel; however, she does not renew this argument on
appeal. An issue not briefed by the appellant is deemed waived or abandoned. State v.
Williams, 303 Kan. 750, 758, 368 P.3d 1065 (2016).

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Hudson's primary argument is that she did not understand the amended charge of
giving a worthless check when she entered her plea. She claims that she did not
understand why she was pleading guilty to giving a worthless check instead of going to
trial on the original forgery count. However, the record made at Hudson's plea hearing
belies this claim. At the plea hearing, Hudson acknowledged that she completely
understood the charge against her, that she had discussed the plea agreement with her
lawyer, that she understood the facts alleged against her, and that she understood that she
was giving up her right to a trial. Hudson did not ask any questions regarding the charge
against her or the plea. The district court established a factual basis for the charge and
Hudson affirmed the facts. When the judge asked, "You're pleading guilty because you
are guilty?" Hudson responded, "Absolutely."

"[A] defendant should not get relief from a plea decision simply because he or she
determines, in hindsight, that it was not the most intelligent course of action." State v.
Schow, 287 Kan. 529, 542, 197 P.3d 825 (2008). Likewise, Hudson's concerns about her
housing and student loans do not establish good cause to withdraw her plea. As the
district court found, the negative impact of Hudson's plea on her housing and student
loans were only collateral consequences of her conviction. Finally, as the district court
noted, Hudson never offered a substantive defense to the forgery charge.

The record supports the district court's finding that Hudson voluntarily and
understandingly entered into the plea agreement. Considering the record in its entirety, a
reasonable person could agree with the district court's decision that Hudson failed to
show good cause to withdraw her plea. Hudson makes no claim that the district court's
decision was based on an error of law or fact. Thus, we conclude the district court did not
abuse its discretion in denying Hudson's motion to withdraw her plea.

Affirmed.