State v. Phillips

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NOT DESIGNATED FOR PUBLICATION

Nos. 119,912
119,913

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TYLER O. PHILLIPS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER JR., judge. Opinion filed October 4, 2019.
Affirmed.

Angela M. Davidson, of Davidson Appellate Law, of Lawrence, for appellant.

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

Before ARNOLD-BURGER, C.J., GREEN and BUSER, JJ.

PER CURIAM: Tyler O. Phillips pled guilty to charges of attempted aggravated
robbery, aggravated robbery, and kidnapping in case 2016-CR-152 and aggravated
robbery and kidnapping in case 2016-CR-154. Phillips filed a presentence motion to
withdraw pleas in both cases, but the district court denied the motion. He appeals the
denial of the motion to withdraw pleas to our court. Finding no error, we affirm.



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FACTUAL AND PROCEDURAL BACKGROUND

On January 15, 2016, Phillips was charged with two counts of kidnapping (K.S.A.
2015 Supp. 21-5408[a][2]), two counts of aggravated robbery (K.S.A. 2015 Supp. 21-
5420[b][1]), and one count attempted aggravated robbery (K.S.A. 2015 Supp. 21-
5301[a], [c][1]) in two separate criminal cases. After numerous continuances, a plea
agreement was reached and Phillips entered guilty pleas as charged in both cases.

The plea agreement provided that Phillips would plead guilty as charged in both
cases, and in exchange the State would recommend that (1) the district court impose the
lowest sentence for each count and (2) the sentences should run concurrent. The plea
agreement further stated that because the criminal cases remained separate, each case
would count against Phillips' criminal history score. Finally, the plea agreement allowed
Phillips to argue for an alternative disposition at sentencing.

On August 31, 2016, Phillips filed a presentence pro se motion to withdraw pleas.
The motion alleged that his trial counsel, David Leon, coerced him into making the pleas
and, as a result, Phillips did not knowingly, voluntarily, and intelligently plead guilty as
charged in both cases. Soon after, Phillips obtained new counsel who filed an additional
motion to withdraw pleas on his behalf. The motion stated numerous claims of ineffective
assistance of counsel:

 Phillips' trial counsel promised he would get his first case dismissed, his
second case reduced to theft, and that he would receive probation.
 Phillips' trial counsel was ineffective in preparing a defense and placed too
much emphasis on obtaining a plea agreement that Phillips did not want to
accept.
 Phillips' trial counsel failed to comply with discovery requests.
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 Phillips' trial counsel misled and coerced him into waiving his rights due to
his lack of understanding of the court system.
 Phillips' trial counsel forced him to choose between 431 months in prison if
he asked for a bench trial or 221 months under a plea agreement.
 Phillips' right to a speedy trial was violated because his trial counsel misled
him into signing numerous continuances.

The district court held an evidentiary hearing on the motion wherein Phillips and
the State presented testimony. The motion was denied. Thereafter, the district court
sentenced Phillips to a controlling sentence of 221 months in prison. Phillips filed a
timely notice of appeal.

DENIAL OF PHILLIPS' PRESENTENCE MOTION TO WITHDRAW PLEAS

Our standard of review provides: "A plea of guilty or nolo contendere, for good
cause shown and within the discretion of the court, may be withdrawn at any time before
sentence is adjudged." K.S.A. 2018 Supp. 22-3210(d)(1). On appeal, the defendant must
establish that the trial court abused its discretion in denying a presentence motion to
withdraw plea. State v. DeAnda, 307 Kan. 500, 503, 411 P.3d 330 (2018).

"'Judicial discretion is abused if judicial action is (1) arbitrary, fanciful, or unreasonable,
i.e., no reasonable person would take the view adopted by the trial court; (2) based on an
error of law, i.e., the discretion is guided by an erroneous legal conclusion; or (3) based
on an error of fact, i.e., substantial competent evidence does not support a factual finding
on which a prerequisite conclusion of law or the exercise of discretion is based.' State v.
Davisson, 303 Kan. 1062, 1065, 370 P.3d 423 (2016) (citing State v. Beaman, 295 Kan.
853, 865, 286 P.3d 876 [2012])." State v. Schaal, 305 Kan. 445, 449, 383 P.3d 1284
(2016).

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When reviewing whether a defendant has demonstrated good cause, courts
generally consider the three 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. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). 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). They establish "'viable benchmarks'" for the district court
when exercising its discretion, but the court should not ignore other facts that might exist
in a particular case. State v. Schaefer, 305 Kan. 581, 588, 385 P.3d 918 (2016).

On appeal, Phillips complains the district court erred by denying his motion
because he demonstrated good cause to withdraw his pleas under the first two Edgar
factors. Both factors will be individually discussed.

Whether Defendant Was Represented by Competent Counsel

In establishing good cause to withdraw no contest pleas, Phillips is not required to
show Leon was unconstitutionally ineffective; rather, he may rely on "'[m]erely lackluster
advocacy'" to support good cause under the first Edgar factor. State v. Schaefer, 305 Kan.
at 589. "To engage in competent representation, plea counsel must advise the defendant
of the range of possible penalties and discuss the choices available to the defendant."
State v. McGinley, No. 119,781, 2019 WL 3850605, at *5 (Kan. App. 2019) (unpublished
opinion) (citing State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014), petition for rev.
filed September 16, 2019.

With regard to Phillips' claims of ineffective assistance of counsel, the district
court ruled that evidence incriminating Phillips in the crimes ranged from fairly strong to
overwhelming. The district court noted that Phillips' confession to police appeared freely
and voluntarily given which made filing a motion to suppress this evidence unnecessary.
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As to Leon's trial preparation, the district judge stated that, although Leon did not
conduct a significant amount of independent investigation or consulting of experts, "I
don't see, again, anything that sticks out in my review of the evidence that would sit there
and go, well, you know competent lawyer would have done this or this, you know, the
fingerprint stuff is very hard to challenge." Moreover, letters between Phillips and Leon
proved that from the beginning of the plea negotiations, Phillips was clearly aware that
probation was not an option. Based on the evidence presented, the district court
concluded that Leon was not incompetent or ineffective.

On appeal, Phillips argues that Leon was ineffective for several reasons. Phillips
contends that, in the 15 days before the scheduled jury trial, Leon did not personally visit
with him to prepare his defense. He contends Leon only filed one motion—a motion to
reduce bond—and forced him into signing motions to continue the trial in violation of his
right to a speedy trial. With regard to discovery, Phillips admits Leon provided him with
police reports, but he complains that Leon failed to show him any video evidence.

Upon our independent review, the record on appeal does not support Phillips'
contentions. On the contrary, the record shows that Leon informed Phillips of the
possible penalties he was facing and discussed available alternatives. At the hearing,
Phillips testified that Leon came to visit him on only four or five occasions. Phillips
admitted, however, that Leon wrote him letters throughout the entire criminal
proceedings. During the visits and through letters, Phillips conceded that Leon
communicated the pros and cons of going to trial or pleading guilty, discussed the
sentences he could receive under either scenario, and reviewed the overwhelming
incriminating evidence the State was going to present at trial. Leon testified that he sent
Phillips letters updating him on the status of his case after every hearing or every
development in the case.

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Additionally, Leon testified that he sought permission to make a special visit with
Phillips on the Saturday before trial, but there was insufficient security to allow the visit.
The district judge, who Leon contacted in an attempt to arrange the special visit,
confirmed this fact. Leon further explained that he probably did not visit Phillips in the
two weeks before the last trial setting because he had prepared for trial at an earlier date
and there was nothing more that needed to be discussed with Phillips regarding trial
preparation.

In addition to the testimony of Phillips and Leon, the district court admitted in
evidence letters that Leon had sent to Phillips during his legal representation. In these
letters, Leon discussed with Phillips how the two separate cases could potentially be used
against him. Leon also advised Phillips that they would proceed to trial at Phillips'
request and that it was his right to request a jury trial. Leon also advised that, during the
negotiating process, he was still preparing for trial because that was Phillips' objective.
Another letter indicated that Leon counseled Phillips that he should not minimize his
right to a trial, but that Leon would continue to pursue a plea agreement based on their
discussions. In sum, Phillips' contentions are directly disputed by the attorney/client
correspondence produced as evidence at trial.

Phillips also alleges that Leon was ineffective in preparing for jury trial and did
not allow him access to discovery. Phillips testified that he asked Leon to bring all of his
discovery items and he could not recall Leon ever discussing any trial preparation with
him during his visits. Phillips specifically remembered asking for a video recording, but
Leon refused to let him view it because it was strictly for trial purposes.

With the exception of the video recording, the record shows that Leon provided
Phillips with discovery and they discussed the evidence together. Although Leon
admitted that Phillips did not view the video recording, Leon testified that he showed
Phillips the still frame pictures from the video. In reviewing the discovery, Leon learned
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that Phillips had made voluntary confessions to the police. Phillips also did not claim that
his incriminating statements were involuntary. As a result, Leon did not believe there was
a basis to file any motions to suppress. Of note, the victims had also positively identified
Phillips from a line up and his fingerprints were left at the scene of one of the crimes.
Based on this discovery information, Leon advised Phillips regarding legal procedures,
and told him he would continue to negotiate the best possible plea agreement for him. In
summary, it appears that Leon shared with Phillips considerable incriminating discovery
in order to inform him of the likelihood of convictions in the event the case proceeded to
jury trial. We find no ineffective assistance with regard to Leon's handling of discovery.

Phillips also claims that Leon was ineffective because he promised that one of the
criminal cases would be dismissed and the other case would have a reduced charge of
simple threat with only a sentence of probation. This claim was directly contradicted by
Leon's testimony and the attorney/client correspondence. Leon testified that he never
promised Phillips that he would receive probation because he knew about Phillips'
criminal history which placed him in the sentencing guidelines range for presumptive
prison. Although Leon repeatedly sought probation, he informed Phillips early on
through a letter that the State would not agree to that disposition. Moreover, Leon advised
Phillips that the controlling sentence was solely up to the sentencing judge's discretion
when they reviewed the acknowledgement of rights form prior to entering the pleas.

In summary, the record reflects Leon discussed Phillips' jury trial rights, the
possibility of obtaining a plea agreement, the possible sentences he was facing under
either a conviction or a plea, and the weight of the evidence against him. The record on
appeal also shows Leon and Phillips remained in contact throughout the entire
representation. Thus, the record supports the district court's finding that Leon provided
competent legal counsel.


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Whether Defendant Was Misled, Coerced, Mistreated, or Unfairly Taken Advantage Of

On appeal, Phillips contends Leon forced him to accept the plea agreement
because he only had two options—accept the plea agreement and obtain a 221-month
sentence or be convicted by a jury at trial and receive a 431-month sentence. Phillips
argues this was his first experience with the felony criminal process and he relied solely
on Leon.

The district court held that although Leon may have been forceful about
recommending the plea agreement, there was no evidence that Leon coerced or
threatened Phillips in any way to effect the plea. Rather, Leon emphasized the necessity
of accepting the plea agreement by explaining the negative consequences if Phillips was
found guilty at trial. According to the district court, the fact that Phillips discussed the
plea offer with his mother just before accepting it bolstered the view that this was a
voluntary and knowing decision. In sum, it is very apparent the district court found Leon
to be more credible than Phillips.

Our review of the evidence in the record supports the district court's decision. At
the hearing, Phillips testified that Leon kept encouraging him to sign the plea agreement
on the day of trial but he repeatedly rejected it and requested a continuance. Phillips
testified that he felt pressured to sign the plea agreement because Leon informed him the
judge was becoming angry due to his indecision.

On the contrary, Leon testified the jury trial could not be continued absent
exceptional circumstances or agreement by the parties because the case was set on a firm
trial schedule. Leon testified that he was prepared for trial and Phillips was the one who
inquired about whether the plea agreement was still available. Leon then asked the
prosecutor if the State would be willing to reoffer the plea agreement and the State
agreed.
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Leon spoke with Phillips for two or three hours about the plea offer. At the
hearing, Leon was asked if he ever told Phillips that his only option was to accept the
plea agreement. Leon testified, "No. I remember—now I remember this very part. I made
it very clear to him, it is your right to go to trial. I can't force you to take a plea. I'm not
going to force you to take a plea. You can go to trial." Leon took considerable time
explaining the situation to Phillips and his mother, and both conversations were described
as congenial.

According to Leon, he informed Phillips that based on his review of the evidence,
if Phillips went to trial and was convicted he faced up to 431 months in prison. Leon
testified that he believed the State had a very strong case against Phillips based on his
years of experience as a criminal defense attorney. In particular, Leon highlighted the
availability of incriminating witnesses, Phillips' identification, his confession, and his
fingerprints left on a purse. Leon testified that he never informed Phillips there was a
high likelihood he would be convicted, but he did advise his client that he could not
guarantee an outcome. Leon also informed Phillips that the decision to convict a
defendant is for the jury, and it was Phillips' sole decision to waive his jury trial rights.

At the motion hearing, Phillips admitted that Leon informed him by letter about
four months before the trial date that the State was seeking prison time and that probation
was not a possible sentencing disposition. Phillips rejected the original offer in July
stating that he wanted to proceed with trial. Thus, Phillips was able to consider and reject
the same plea offer on previous occasions in the months leading up to trial.

The transcript of the plea hearing also supports the district court's determination
that Phillips knowingly and voluntarily entered the pleas of his own accord. At the outset,
throughout the plea colloquy, the district judge requested that Phillips stop him at any
time if he had a question. Phillips was asked numerous times if he understood his rights
and if he was certain that he wanted to enter the guilty pleas. Phillips agreed every time.
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The district court thoroughly explained Phillips' jury trial rights and the details of
the trial procedures. The district court asked, "[T]o proceed with your no contest or
basically an Alford guilty plea here, you have to understand those rights and agree to
waive those rights; do you feel like you understand those rights?" Phillips replied that he
understood his rights, he chose to waive the rights, and that he had a full opportunity to
discuss the charges and his rights with Leon. Phillips stated he was satisfied with Leon's
representation and no one had forced him to enter the guilty pleas. He acknowledged that
Leon explained the terms of the plea agreement and that he signed the plea agreement
forms. Phillips stated that the plea agreement was in his best interest and was beneficial
to him.

At the plea hearing, Phillips stated that no one had promised him anything other
than what was stated in the plea agreement. The district court explained to Phillips that he
was going to enter an Alford plea. Phillips interjected and asked, "Yeah, I just want to
make one thing sure I understand, I'm able to or we're able to argue the charges down,
right, or the time?" The district court responded that Phillips could request a lesser
sentence but he would not be able to lessen the charges.

The district court then explained the potential sentences Phillips could receive
upon conviction and Phillips said that he understood. The district court informed Phillips
that sentencing was solely up to the district judge and no one else, despite what the State
or Leon might request or recommend. Phillips stated that he understood the district
court's admonitions. In summary, the colloquy between the district court and Phillips at
the plea hearing shows that the guilty pleas were made knowingly and voluntarily with a
full understanding of Phillips' constitutional and statutory rights, an awareness of the plea
agreement, charges, and potential sentences.

Upon our review of Phillips' claims of ineffective assistance of counsel, and
applying the relevant Edgar factors to the facts of this case, we hold that Phillips has not
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shown the district court abused its discretion by denying his presentence motion to
withdraw pleas. See DeAnda, 307 Kan. at 503.

Affirmed.