State v. Johnson

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NOT DESIGNATED FOR PUBLICATION

No. 113,561

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RENA JOHNSON,
Appellant.

MEMORANDUM OPINION


Appeal from Sedgwick District Court; PHILLIP B. JOURNEY, judge. Opinion filed August 18,
2017. Affirmed.

Kristen B. Patty, of Wichita, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before PIERRON, P.J., GREEN and HILL, JJ.

Per Curiam: After appearing pro se and pleading guilty to two traffic
misdemeanors, Rena Johnson learned that she qualified as a habitual violator under
K.S.A. 2013 Supp. 8-286 and was subject to a 3-year revocation of her driving
privileges. She filed a postsentencing motion to withdraw her plea. The district court
denied the motion, ruling that Johnson had not established manifest injustice. Johnson
appeals and argues that her due process rights were violated because she had not been
informed of the revocation of her driving privileges prior to accepting the plea. However,
because the civil action revoking her driving privileges was only a collateral consequence
of her plea, due process did not demand that the State fully inform Johnson prior to her
plea.
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On May 13, 2014, a Wichita State University police officer observed Johnson
driving the wrong way on a one-way street and stopped her car. The State charged
Johnson with Count I— driving the wrong way on a one-way street, contrary to K.S.A. 8-
1521, a traffic infraction; Count II—driving while license is suspended or canceled, a
Class B, nonperson misdemeanor, contrary to K.S.A. 2013 Supp. 8-262(a)(1); and Count
III—no proof of insurance, a Class B misdemeanor, contrary to K.S.A. 2013 Supp. 40-
3104(c).

Johnson appeared pro se on January 23, 2015. In exchange for the State's dismissal
of Count I, she pled guilty to an amended Count II—no driver's license in possession,
contrary to K.S.A. 8-244, and Count III—no proof of insurance. The district court
sentenced Johnson to a $20 fine for Count II, and 10 days in jail plus a $300 fine for
Count III. However, the jail time was suspended if Johnson paid the fines and costs
within 180 days.

On the acknowledgement and waiver of rights form, Johnson certified that she (1)
was aware of the charges, (2) had been notified of the possible penalties, (3) waived
various trial rights, (4) was acting voluntarily, and (5) fully understood her plea. Johnson
also signed a journal entry which, in part, noted that the habitual violator statute had been
explained to her and was applicable to the judgment.

K.S.A. 2013 Supp. 8-286 allows the Kansas Department of Revenue (KDOR) to
initiate a civil action against a driver who within the 5 years prior is convicted of at least
three of the enumerated offenses, including driving under the influence, driving with a
suspended/revoked license, and driving without insurance. The civil action promptly
revokes the individual's driving privileges for 3 years.

This was Johnson's third conviction within 5 years, which exposed her to the
consequences of the habitual violator statute. On February 12, 2015, Johnson asserted
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through her attorney that the assistant district attorney had advised her that the guilty plea
would not trigger the habitual violator action. In a motion to withdraw her plea, Johnson
argued this provided grounds for her to withdraw the guilty plea, even though the district
court had already sentenced her.

The district court held a hearing on Johnson's motion, during which neither side
presented evidence. Johnson's attorney argued her plea had not been fairly and
understandingly given. He argued that (1) Johnson was pro se when she pled, (2) it was
unrealistic to expect a pro se defendant to appreciate the habitual violator statute, (3) the
habitual violator statute was either not explained or Johnson was told that it would not
apply, and (4) the 3-year driving suspension was too harsh, especially since Johnson
transported her disabled father.

In response, the State noted that (1) it would be unusual for an assistant district
attorney to inform an individual that habitual violator status would not apply, since that
was an administrative action taken by the KDOR, and (2) the journal entry of judgment
indicated the habitual violator statute had been explained and it would apply to Johnson's
case.

The district court considered both sides' arguments and determined that Johnson
had failed to establish manifest injustice based on the stated reasons.

Johnson filed an untimely notice of appeal. However, after she secured a remand
from this court, the district court conducted a hearing and ruled that Johnson could pursue
a late appeal of the denial of her motion to withdraw her plea pursuant to the holding in
State v. Hemphill, 286 Kan. 583, 186 P.3d 777 (2008). The district court rejected
Johnson's attempts to appeal her conviction and sentence pursuant to State v. Ortiz, 230
Kan. 733, 640 P.2d 1255 (1982).

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We must determine whether the district court abused its discretion in denying
Johnson's motion to withdraw her guilty plea after sentencing.

A district court may allow a defendant to withdraw a guilty plea after sentencing
to correct manifest injustice. K.S.A. 2016 Supp. 22-3210(d)(2). On appeal, we assess
whether the district court abused its discretion in granting or denying the motion. State v.
Davisson, 303 Kan. 1062, 1064-65, 370 P.3d 423 (2016). A court abuses its discretion if
its action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of fact; or (3)
based on an error of law. 303 Kan. at 1065. To the extent that an error of law exists, our
review is unlimited. Unruh v. Purina Mills, 289 Kan. 1185, 1191, 221 P.3d 1130 (2009).
The party challenging the ruling on the motion bears the burden of proving that the
district court abused its discretion. Davisson, 303 Kan. at 1065.

The manifest injustice standard requires that the defendant produce facts showing
that it would be "obviously unfair or shocking to the conscience" to prohibit a defendant
from withdrawing the plea. State v. Oliver, 39 Kan. App. 2d 1045, 1048, 186 P.3d 1220
(2008). In determining this, Kansas courts rely on at least three factors: (1) whether
competent counsel represented the defendant; (2) whether the defendant was misled,
coerced, mistreated, or unfairly taken advantage of; and (3) whether the defendant fairly
and understandingly accepted the plea. State v. Bricker, 292 Kan. 239, 244, 252 P.3d 118
(2011).

Johnson argues for the first time on appeal that her due process rights were
violated. Specifically, she alleges she was not informed that the habitual violator statute
would apply and that exposure to that statute is a direct penal consequence of her plea.
Because due process requires a defendant be informed of direct penal consequences,
Johnson contends her rights were violated, establishing manifest injustice. She argues the
district court abused its discretion in ruling otherwise.

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Contrary to Kansas Supreme Court Rule 6.02(a)(5) (2017 Kan. S. Ct. R. 34),
Johnson has failed to explain why the due process issue is properly before us for the first
time. If we strictly enforce that rule, then Johnson's due process claim is abandoned. State
v. Godfrey, 301 Kan. 1041, 1043-44, 350 P.3d 1068 (2015). However, even if we
overlook her failure to comply, Johnson loses on the merits.

A violation of due process is sufficient to establish manifest injustice. See State v.
Schow, 287 Kan. 529, 541, 197 P.3d 825 (2008). In the context of a guilty plea, due
process requires that the direct penal consequences of the plea be communicated to the
defendant. State v. Moody, 282 Kan. 181, 194-95, 144 P.3d 612 (2006). However, the
defendant need not be informed of the collateral consequences arising from the plea. 282
Kan. at 194-95.

Direct penal consequences are those which are the "definite, immediate, and
largely automatic result of the guilty plea." City of Ottawa v. Lester, 16 Kan. App. 2d
244, 248, 822 P.2d 72 (1991) (quoting United States v. Lott, 630 F. Supp. 611, 612 [E.D.
Va.], aff'd 795 F.2d 82 [1986]). For example, a mandatory 1-year period of postrelease
supervision is definite, immediately follows imprisonment, and is automatic. Moody, 282
Kan. at 195-96. Failing to inform a defendant of that mandatory supervision prior to a
guilty plea would violate due process and, thus, establish manifest injustice. 282 Kan. at
195-96.

Collateral consequences, on the other hand, arise from a source external to the
criminal offense or provisions for sentencing an individual convicted of that offense.
Lester, 16 Kan. App. 2d at 247 (citing New Hampshire v. Elliott, 133 N.H. 190, 193, 574
A.2d 1378 [1990]). In Lester, for example, the court determined that the suspension of
driving privileges following a DUI conviction was a collateral consequence. 16 Kan.
App. 2d at 248. As justification, the court noted that (1) the driving suspension resulted
from the KDOR's administrative action, and (2) the provision authorizing the suspension
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was separate and distinct from the part of the statute authorizing fines or imprisonment.
16 Kan. App. 2d at 248.

Furthermore, the Lester court cited to several jurisdictions where exposure to a
habitual offender statute is a collateral consequence that need not be explained to a
defendant. People v. McKnight, 200 Colo. 486, 498, 617 P.2d 1178 (1980) (exposure to
habitual traffic offender proceeding); State v. Jackson, 362 So. 2d 1082, 1088 (La. 1978)
(exposure to habitual offender charge); State v. Elliott, 133 N.H. 190, 193, 574 A.2d 1378
(1990) (exposure to habitual traffic offender proceeding); State v. Barton, 93 Wash. 2d
301, 305, 609 P.2d 1353 (1980) (habitual criminal charge). However, no Kansas cases
have specifically held that exposure to the habitual traffic violator statute is a collateral
consequence.

Here, if Johnson was informed that she qualified for the habitual violator statute
prior to accepting her plea, then her due process rights were not violated even if the
revocation of driving privileges was a direct penal consequence. The State asserts it
informed Johnson that the habitual violator statute would apply, and the record provides
some support for that position. The journal entry of judgment, which Johnson signed,
indicates the habitual violator statute was explained and was applicable to her case.
Furthermore, the State asserts it is standard protocol to explain what falls under the
statute and whether the case qualifies.

Even if the statute was not explained, however, the State did not violate Johnson's
due process rights because exposure to the statute is only a collateral consequence of the
plea. Here, as in Lester, the revocation of driving privileges stems from a civil action by a
state administrative agency. The action is initiated by the KDOR, and it is civil, not
criminal, in nature. State v. Boos, 232 Kan. 864, 867, 659 P.2d 224 (1983). Furthermore,
as in Lester, the habitual violator statute, K.S.A. 2013 Supp. 8-286, is separate and
distinct from the statutes providing criminal penalties for Johnson's conduct, K.S.A. 2013
Supp. 40-3104(c) and K.S.A. 8-244.
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The Lester court ruled the suspension of driving privileges was a collateral
consequence; therefore, the revocation of Johnson's privileges pursuant to the habitual
violator statute was also a collateral consequence. Johnson's due process rights were not
violated even if the habitual violator statute was not fully explained to her, since due
process only requires a defendant be informed of direct penal consequences prior to a
guilty plea. The district court did not abuse its discretion in finding that Johnson had
failed to establish manifest injustice.

That being said, Johnson's contention that her suspension of driving privileges
was a direct penal consequence of her guilty plea is not entirely without merit. The
language of the habitual violator statute, after all, describes an action that is largely
definite, immediate, and automatic: "Whenever the files and records of the division shall
disclose that the record of convictions of any person is such that the person is an habitual
violator . . . , the division promptly shall revoke the person's driving privileges for a
period of three years . . . ." (Emphasis added.) K.S.A. 2013 Supp. 8-286. The period is
definite ("three years"), the action is immediate ("promptly"), and the KDOR does not
retain discretion ("shall revoke").

However, since the suspension of driving privileges is a civil action arising from a
distinct and separate provision, exposure to the habitual violator statute is better classified
as a collateral consequence, consistent with Lester. Due process does not require a
defendant be informed of collateral consequences of a plea. The district court did not
abuse its discretion in finding that Johnson had failed to establish manifest injustice.

Affirmed.