State v. Morgan

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NOT DESIGNATED FOR PUBLICATION

No. 113,552


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SHEILEN J. MORGAN,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DAVID L. DAHL, judge. Opinion filed June 3, 2016.
Affirmed.

Peter Maharry, 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 HILL, P.J., STANDRIDGE and ATCHESON, JJ.

Per Curiam: Sheilen J. Morgan asks us to set aside his plea of guilty to
aggravated burglary because he did not have his first appearance for almost 8 weeks after
his arrest. Under the circumstances here, where Morgan had his bond set and reduced at
his request and had received a court-appointed attorney who negotiated a plea bargain
with the district attorney's office—all before his first appearance— Morgan has failed to
demonstrate any prejudice that would induce us to overturn the district court's refusal to
set aside his plea. We affirm.

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Another man with the same last name was brought to court from the jail.

Morgan was arrested around October 24, 2013. Four days later, the State charged
him with one count of aggravated burglary, a severity level 5 person felony, and one
count of theft after a prior conviction, a severity level 9 nonperson felony. Morgan was
called to court and filed a financial affidavit for a court-appointed attorney on October
28.

The district court was to hold a first appearance for him on October 28, but a man
named Simon Morgan was brought up for that hearing instead. The district court set
Morgan's bond in the amount of $25,000. Attorney Mark Orr was appointed to represent
Morgan on October 28.

In November, Morgan filed pro se motions for a bond reduction and dismissal
because he was never arraigned (never had a first appearance). Orr refiled the motion to
reduce bond, but not the motion for dismissal. The court reduced Morgan's bond to
$5,000 surety. Morgan did not post bond.

Orr met with Morgan, and Morgan complained about not having a first
appearance. Orr told him he would see what he could do about it. Morgan had a
preliminary hearing set for November 13. But Orr continued Morgan's preliminary
hearing twice so that he could research the first appearance issue. On December 18,
Morgan was brought to court for a preliminary hearing, but Orr was not there. Morgan
told the judge he had not had a first appearance and the judge read him the charges and
set bond. This was almost 8 weeks after his arrest.

Later, Morgan met with Orr again and Orr told him that nothing could be done
about the late first appearance. Orr advised Morgan that the State had offered a plea deal
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and Morgan agreed. In January 2014, Morgan entered into a plea agreement with the
State in which Morgan agreed to plead guilty to aggravated burglary.

The State agreed to dismiss the theft charge, recommend the low number in the
grid box, recommend that the sentence run consecutively with Morgan's other cases, and
recommend a dispositional departure to probation.

Morgan signed an acknowledgment of rights in which he acknowledged the many
rights he would give up by pleading guilty, including the right to a speedy trial. A plea
hearing was held on January 8, 2014. The State dismissed the theft charge. Morgan pled
guilty to aggravated burglary. The district court found that Morgan understood the nature
of the charges against him and the consequences of the plea, and that Morgan knowingly,
willingly, and voluntarily waived his constitutional rights and entered the plea. Morgan
did not raise the issue about his first appearance at the plea hearing.

In February 2014, Morgan was sentenced to a downward dispositional departure
sentence of 36 months' probation with an underlying prison term of 38 months—the low
number in the grid box.

In April 2014, a warrant was issued for Morgan based on allegations that he failed
to report on multiple occasions, was unsuccessfully discharged from drug/alcohol
treatment, and committed the offenses of tag violation and driving while suspended and
improper equipment. Later in the month, another warrant was issued based on allegations
that Morgan committed the offense of theft-stolen property. In May 2014, a warrant was
issued for Morgan based on allegations that he committed the offense of felony theft.

In September 2014, Morgan filed a motion to withdraw his plea. A hearing was
held on December 29, at which Morgan and Orr testified. Morgan testified that in April
or May, he went to the law library and researched first appearance law and decided then
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to withdraw his plea. He testified he was "manipulated into taking a plea" and "misled
[by] counsel." He wanted to withdraw his plea solely because it was unjust that his rights
were violated by not having a first appearance.

Orr testified that after Morgan complained about not having a first appearance at
their first meeting, he did Westlaw research to determine if they could turn it into a
bargaining chip or a dismissal. But he found nothing helpful. He also sent the issue out to
a Listserv of the "best criminal defense attorneys in the State of Kansas" and no one
could point to any benefit to be gained. Orr subsequently discussed plea offers with the
State. Orr also testified that he met with Morgan about his probation violations in April or
May and told him that the judge would likely not reinstate his probation.

The district court denied Morgan's motion to withdraw his plea. The court stated
that it had found no case support that the delay in the first appearance could have resulted
in a dismissal. Concerning his plea, the court analyzed the factors in State v. Edgar, 281
Kan. 30, 127 P.3d 986 (2006), and held that Orr was represented by competent counsel,
he was not misled, coerced, mistreated, or unfairly taken advantage of, and the plea was
fairly and understandably made. The court found that Morgan did not meet his burden to
show manifest injustice.

Morgan contends that the State's failure to bring him before a judge for a timely
first appearance pushed him into a plea deal and, thus, it is manifestly unjust to deny him
to withdraw his plea.

We review some general points of law.

After sentencing, the court may allow a defendant to withdraw a plea to correct
manifest injustice. K.S.A. 2015 Supp. 22-3210(d)(2). Manifest injustice is a more
stringent standard for a defendant to meet than the good cause standard applied when the
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defendant requests to withdraw a plea before sentencing. State v. Macias-Medina, 293
Kan. 833, 836-37, 268 P.3d 1201 (2012). Manifest injustice means "obviously unfair or
shocking to the conscience." State v. Barahona, 35 Kan. App. 2d 605, 608-09, 132 P.3d
959 (2006).

When dealing with motions to withdraw pleas, a court considers three factors,
sometimes called the Edgar 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. See State v. Morris, 298 Kan. 1091, 1100, 319 P.3d 539 (2014). But these factors
should not be applied mechanically and to the exclusion of other factors. State v. Fritz,
299 Kan. 153, 154, 321 P.3d 763 (2014).

On appeal, we will not disturb a district court's denial of a postsentence motion to
withdraw plea absent an abuse of discretion. Fritz, 299 Kan. at 154. A judicial action
constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable;
(2) is based on an error of law; or (3) is based on an error of fact. State v. Mosher, 299
Kan. 1, 3, 319 P.3d 1253 (2014). The defendant bears the burden to prove an abuse of
discretion. Fritz, 299 Kan. at 154. Appellate courts do not reweigh the evidence or pass
on the credibility of witnesses. State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425
(2011).

We find no error here.

The statute, K.S.A. 2015 Supp. 22-2901(1), directs that a "person arrested shall be
taken without unnecessary delay before a magistrate . . ." But the statute sets no sanction
in the event there is unnecessary delay. Generally, the purpose of the rule requiring a
person to be taken before a magistrate without unreasonable delay after an arrest is to
safeguard individual rights. Unlawful detention provides an opening for improper
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pressure by the police. The rule is designed to reduce "third-degree practices" from police
officers by ensuring the prisoner is advised of his constitutional rights by a judge. State v.
Crouch, 230 Kan. 783, 785-86, 641 P.2d 394 (1982).

But delay in taking a prisoner before a magistrate is not itself a denial of due
process unless the delay has in some way prejudiced the right of the accused to a fair
trial. Whether a delay has prejudiced the accused depends on the facts and circumstances
of each case. State v. Goodseal, 220 Kan. 487, 500, 553 P.2d 279 (1976), overruled on
other grounds by State v. Underwood, 228 Kan. 294, 306, 615 P.2d 153 (1980). The
burden to show prejudice by the delay is on the defendant. State v. Taylor, 217 Kan. 706,
708, 538 P.2d 1375 (1975). The defendant must show that something happened during
the delay that might not have happened after a first appearance. See Taylor, 217 Kan. at
708-09.

In Crouch, the court considered whether incarceration of two defendants for 11
days before giving them a first appearance resulted in such prejudice as to warrant
dismissal of the charges. The court established the policy for these questions—dismissal
of the charges only under extreme circumstances:

"We have concluded that the dismissal of a criminal complaint with prejudice because of
a violation of K.S.A. 22-2901 is a sanction which should be imposed only under
extremely compelling circumstances. We recognize, however, that, in a proper case, a
district court in this state has the power to dismiss a criminal complaint with prejudice, if
the interests of justice require such action. Such power should be exercised, however,
with great caution and only in cases where no other remedy would protect against abuse.
Where a trial court finds that a violation of K.S.A. 22-2901 has resulted in prejudice to
the defendant's right to a fair trial, then the trial court should take appropriate action. The
trial court, in its discretion, may suppress a confession or physical evidence, if such is the
product of the wrongful misconduct. In determining the appropriate remedy, a trial court
should consider the four factors identified in Barker v. Wingo: the length of the delay, the
reason for the delay, the defendant's assertion of his rights, and prejudice resulting to the
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defendant. In addition, the court should consider the severity of the crime charged. We
want to emphasize that the purpose of K.S.A. 22-2901 and similar statutes is not to
penalize the police or the public but to protect the rights of the accused." 230 Kan. at 788.

The phrase, "without unnecessary delay" is not statutorily defined and no
definition has been created by the courts. The concept is flexible, dependent on the
circumstances. State v. Cuchy, 270 Kan. 763, 766-67, 19 P.3d 152 (2001). Our Supreme
Court has stated that "[u]nexplained, a delay of [nearly two weeks] indicates indifference
on the part of law enforcement officers toward their official responsibilities. It also
infringes the right of every person arrested for a crime to an early examination before a
magistrate [Citation omitted]. We are not disposed to condone such official
shortcoming." Cooper v. State, 196 Kan. 421, 423, 411 P.2d 652 (1966).

But the court stated that the case before it was not one to challenge the validity of
the arrest, to recover damages for an illegal detention, nor to gain release prior to trial.
196 Kan. at 423. Rather, the defendant argued that the failure to timely take him before a
magistrate per se invalidated his sentence. The court held that was clearly not the law.
There was nothing in the record to indicate that the delay tainted the defendant's guilty
plea or sentence. 196 Kan. at 425.

Our examination of this record reveals that there was unnecessary delay here.
Morgan was arrested on October 24, 2013. He did not have a first appearance until
December 18. If we look closely, however, Morgan most likely would have been brought
before a judge on November 13, the date of his original preliminary hearing. His attorney
delayed the hearing to research the first appearance issue. Morgan may not complain
about a delay of his own making. See State v. Hartman, 27 Kan. App. 2d 98, 100-101,
998 P.2d 128 (2000). Still, a delay of 20 days was certainly unnecessary. See Crouch,
230 Kan. at 786-87.

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More importantly, Morgan was not prejudiced by the delay. Morgan did assert his
right to a first appearance from the beginning. But the delay here was a mistake. Morgan
must point to something that happened during the delay that tainted his guilty plea. See
Cooper, 196 Kan. at 425. Our Supreme Court has stated more than once that there is no
denial of due process unless the failure to timely provide a first appearance in some way
prejudiced the defendant's right to a fair trial. See e.g., Goodseal, 220 Kan. at 500.

Morgan had an attorney very early in the process, he was not subjected to coercive
law enforcement questioning, he was able to file motions, his bond was reduced, and his
attorney negotiated a favorable plea deal where one of the charges would be dismissed
and the State would recommend probation on a presumptive prison crime. Moreover, this
court has held that a defendant waives any right to complain about a violation of K.S.A.
22-2901 by pleading guilty. Hartman, 27 Kan. App. 2d at 101.

Morgan essentially argues that the State's failure to timely take him before a
magistrate per se invalidates his plea. But without more, he has not shown a due process
violation that would warrant any sanctions. See Cooper, 196 Kan. at 425. Moreover, he
has shown nothing obviously unfair nor shocking to the conscience that occurred because
of the delayed first appearance.

We review his plea circumstances.

When determining whether a defendant has shown manifest injustice, Kansas
courts 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. Morris, 298 Kan. at 1100.
The district court analyzed each factor and determined Morgan did not meet his burden to
show manifest injustice.
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Morgan complains that his attorney did not file a motion to dismiss based on the
K.S.A. 22-2901 violation; rather his attorney told him the violation did not matter.
However, Orr testified that he researched the first appearance issue on Westlaw to
determine if they could turn it into a bargaining chip or a dismissal. But he found nothing
helpful. He also sent the issue out to a Listserv of criminal defense attorneys and no one
could point to any benefit to be gained. Indeed, Kansas law provides that a violation of
K.S.A. 22-2901 only warrants dismissal in "extremely compelling circumstances." The
defendant must show that the delay resulted in prejudice to the defendant's right to a fair
trial. Crouch, 230 Kan. at 788.

As we pointed out, Morgan points to no prejudice suffered as a result of the delay.
Morgan was represented by competent counsel 4 days after he was arrested. Counsel got
his bond reduced from $25,000 to $5,000 surety. And, counsel negotiated a favorable
plea deal, as Morgan requested.

Morgan complains that he was "pushed into the plea agreement" and "manipulated
into taking a plea" because the State failed to provide him a first appearance. However,
there are some logical steps missing in this argument. When Orr informed him that his
case would not be dismissed because of the untimely first appearance, Morgan could
have defended against the charges. He chose instead to enter into a favorable plea
agreement. Moreover, at his plea hearing, the district court asked Morgan if anyone had
promised him anything in order to get him to sign the plea agreement and Morgan
responded "no." Morgan was not misled, coerced, mistreated, or unfairly taken advantage
of to get him to plead guilty.

The plea was fairly and understandingly made. The State agreed to dismiss one
charge, to recommend the low number in the grid box, and to recommend probation on a
presumptive prison crime. Morgan signed an acknowledgment of rights stating that he
acknowledged he was waiving the right to a speedy trial, among other rights. The district
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court reiterated his rights and made sure he understood the plea agreement. Morgan does
not contend that he did not understand the plea.

Even though there was unnecessary delay in bringing Morgan before a magistrate
after his arrest, nothing obviously unfair nor shocking to the conscience occurred during
the delay. The district court's denial of Morgan's motion was not arbitrary, fanciful, or
unreasonable, nor based on an error of fact or law.

Affirmed.