State v. Tipton

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NOT DESIGNATED FOR PUBLICATION

Nos. 115,442
115,443

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GEOFFREY D. TIPTON,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed January 27, 2017.
Affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Daniel D. Gilligan, assistant district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GARDNER, P.J., POWELL, J., and HEBERT, S.J.

Per Curiam: After entering guilty pleas in two cases, Geoffrey D. Tipton filed a
motion to withdraw his pleas. The district court denied that motion, and Tipton timely
appealed. Finding no abuse of discretion, we affirm.




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Factual and procedural background

Tipton was charged with possession of methamphetamine and possession of drug
paraphernalia in January 2014, in case 14CR96. His criminal history score was A. He
was appointed an attorney from private practice, Alice Osburn.

Tipton failed to appear at his arraignment, so a bench warrant for his arrest was
issued. When law enforcement officers attempted to serve that warrant, Tipton ran from
them, refused to halt, and was charged with felony interference with a law enforcement
officer in a separate case—14CR763.

Tipton later entered into a plea agreement in which he agreed to plead guilty as
charged to all three offenses in the two cases, with the recommendation that the sentences
for the two felony counts be the high grid-box numbers and run consecutively, resulting
in 59 months' imprisonment. In return, the State agreed that it would not oppose a motion
to depart to placement on Community Corrections. The agreement provided that the State
could be released from the agreement if Tipton failed to appear for sentencing.

Tipton failed to appear for sentencing. Thereafter, Tipton told Osburn he wanted
to withdraw his plea because he realized that his failure to appear at sentencing would
allow the State to rescind its agreement to depart to probation.

Tipton then alleged that Osburn had not provided competent representation. The
district court continued the sentencing hearing and appointed new counsel. New counsel
filed a motion to withdraw the plea, which the district court denied. At sentencing, the
district court pronounced shorter sentences than those contained in the plea agreement,
using the mitigated grid-box sentences and running them concurrently, for a total of 37
months' imprisonment with 12 months' probation thereafter. Tipton then appealed,
challenging the district court's denial of his motion to withdraw his plea.
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Standard of review

Prior to sentencing, a district court has discretion to permit the withdrawal of a
plea for good cause shown. K.S.A. 2015 Supp. 22-3210. The denial of a motion to
withdraw will be set aside on appeal only if the defendant meets the burden to show that
the district court abused its discretion. State v. Williams, 290 Kan. 1050, 1053, 236 P.3d
512 (2010). A district court abuses its discretion (1) if no reasonable person would have
taken the view adopted by the court; (2) if its conclusion was guided by an erroneous
legal conclusion; or (3) if its conclusion was based on an error of fact, i.e., if 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. Ward, 292 Kan. 541, 550, 256 P.3d
801 (2011).

Discussion

The determination of "good cause" for a withdrawal of plea is guided by three
factors, known as the Edgar factors, drawn from State v. Edgar, 281 Kan. 30, Syl. ¶ 2,
127 P.3d 986 (2006). They are: (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.
Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010). These factors are not to be applied
mechanically. Instead, other matters may be considered by the district court in
determining whether the defendant has carried his or her burden to establish good cause.
Aguilar, 290 Kan. at 513. Tipton argues only the first and third Edgar factors.





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Tipton was represented by competent counsel

Tipton argues on appeal that he should be permitted to withdraw his plea because
his counsel was incompetent. This is the third reason Tipton has given for his motion.
Tipton first told Osburn he wanted to withdraw his plea because he realized that his
failure to appear at sentencing would allow the State to rescind its agreement to depart to
probation. Tipton then testified at the hearing on his motion to withdraw his plea that he
wanted to withdraw his plea because his brothers had told him he should have gotten a
better deal. Tipton's counsel did not argue at the hearing that Tipton's counsel was
incompetent. Only on appeal does Tipton raise the issue of incompetence. Generally,
issues not raised before the trial court may not be raised on appeal. State v. Kelly, 298
Kan. 965, 971, 318 P.3d 987 (2014). We address this issue only because the district court
mentioned it, showing it considered this factor.

Counsel's alleged incompetence

Tipton argues on appeal that his counsel was incompetent because (1) she met
with him only two times; (2) she met with him only very briefly before the plea hearing;
and (3) she failed to have the court consolidate his two cases.

The record reveals, however, that Osburn appeared at seven court proceedings and
met with Tipton at least three times before the first preliminary hearing. Tipton testified
that Osburn met with him for "mere minutes" before the plea hearing, and Osburn
acknowledged that she met with him for "not very long." Although the plea agreement
was not in writing, Osburn did show Tipton an email containing the terms of the
agreement. Osburn did not contact Tipton by phone or letter while he was in Chase
County jail on the interference charge, but she did communicate with him via his
girlfriend.
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Ideally, Osburn would have had more time to confer with Tipton; however, Tipton
did not raise any concern about the competency of Osburn's representation at the plea
hearing. When the district court inquired at the plea hearing whether Tipton had had
enough time to speak with Osburn, Tipton said, "Yes." When asked whether the services
of his lawyer had been satisfactory, Tipton replied, "Yeah." The district court found that
any perceived lack of communication did not have an effect on Osburn's ability to
represent Tipton's desire for probation in the plea negotiations. That finding is supported
by the record. The offer Osburn obtained from the State included its agreement not to
oppose a motion to depart to probation. Moreover, the initial offer she presented to
Tipton earlier in the proceedings was for him to serve only the sentence on the
interference charge, which would have been about 17 months. Tipton rejected that offer
because he wanted a preliminary hearing, and he bears the consequences of that decision.

As to Tipton's last contention that Osburn's representation was not competent, he
testified that he wanted the cases consolidated because his brothers had told him he
would serve less time if they were consolidated. He testified that he asked Osburn to have
them consolidated but she never got back to him. Osburn testified that she had asked the
district attorney to consolidate the cases but was told they would not do so. Thus, even if
Osburn did not relay the result to Tipton, he was not harmed by the omission—regardless
of his knowledge or lack of knowledge, the State refused to consolidate his cases.
Osburn's failure to relay this information to Tipton does not show incompetence.

The district court's legal standard

Tipton also contends that the district court per se abused its discretion by applying
the wrong legal standard to determine counsel's competence. He argues that the district
court applied the standard for constitutional ineffectiveness but should have applied the
standard for statutory incompetence. Tipton relies solely on the following statement by
the district court at the conclusion of the hearing on his motion to withdraw his plea: "I
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have nothing to show there's ineffective assistance of counsel other than he would have
liked to have talked to Miss Osburn more, possibly."

Tipton correctly asserts that it is sufficient for him to show that counsel was a
"lackluster advocate" and thus he did not need to demonstrate ineffective assistance
arising to the level of a violation of the Sixth Amendment to show good cause to
withdraw his plea. Compare Aguilar, 290 Kan. at 513 (stating lackluster advocacy may
be sufficient "good cause" to withdraw a plea), with Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (requiring proof that counsel's
performance was deficient and that the defendant was prejudiced by it).

Our review of the record does not support Tipton's assertion that the district court
relied on the wrong legal standard in making its ruling. Tipton's counsel, during that
hearing, did not allege that counsel was incompetent or that any facts constituted
"lackluster performance"; instead, the sole error alleged by Tipton's counsel was that
Tipton "was not sufficiently informed and did not enter the plea knowingly, voluntarily,
and intelligently." Neither Tipton's attorney, nor the State's attorney, nor the judge
mentioned the Edgar case or the legal standard applicable to the first Edgar factor.
Instead, Tipton's attorney stated that the court could allow the plea "to be withdrawn for
good cause shown," and repeatedly argued that Tipton's confusion and uncertainty over
the exact terms of the plea deal amounted to good cause. No mention of "incompetence"
was made during the hearing.

The district court made findings of fact immediately after the hearing on the
motion to withdraw the plea. Those findings are detailed and comprise over two pages of
the record. Those findings reflect that the district court properly considered matters other
than the three Edgar factors in determining whether the defendant had carried his burden
to establish good cause. Aguilar, 290 Kan. at 513. Those findings include: (1) Tipton
testified that he wanted to withdraw his pleas because his brothers had told him he should
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have gotten a better deal; (2) the court could not imagine how Tipton could have gotten a
better deal since Tipton, who had an A criminal history, got a recommendation for
Community Corrections instead of prison; and (3) the district court had taken Tipton's
plea and knew that Tipton was advised of his rights, knew what the possible sentences
were, and knew that the court was not bound by the plea agreement.

The district court's only reference to counsel followed:

"But I have nothing to show that there's ineffective assistance of counsel other
than he would have liked to have talked to Miss Osburn more, possibly, but he was in
Chase County which is a problem that hopefully we're not going to have in the future.
But there's no indication[] that she didn't work out a plea agreement that got him
probation on offenses that he's clearly presumptive prison and would have been sent to
prison on. I don't know if he wants to withdraw the plea because he didn't appear at
sentencing and he's afraid the state might not agree to the sentence, but that's not a legal
reason. I see no good cause shown."

Having reviewed the record thoroughly, we are convinced that the district court's
reference to "ineffective assistance of counsel" was merely inadvertent, and that the
district court applied the correct standard of competence in determining "good cause
shown." We therefore do not find any error in the legal standard relied on by the court.

Even if we were to assume, however, that the district court erred in finding no
"ineffective assistance of counsel" instead of finding no "incompetence of counsel," we
would find that error to be harmless. The determination of counsel's competence is a fact-
based determination. The facts, summarized in relevant part above, fail to show that
Osburn demonstrated lackluster advocacy or was otherwise incompetent. Where, as here,
a discretionary decision requires fact-based determinations, a district court abuses its
discretion when its decision is based on factual determinations not supported by the
evidence. State v. Jolly, 301 Kan. 313, 325, 342 P.3d 935 (2015). But the factual
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determinations made by the district court here are supported by evidence showing that
Osburn was competent under either the statutory or the constitutional standard. Thus
counsel's performance failed to provide good cause for withdrawing Tipton's plea.

Tipton's plea was fairly and understandingly made

Tipton also argues on appeal that the third Edgar factor was met. This factor
considers whether the plea was fairly and understandingly made. Tipton argues that he
should have been allowed to withdraw his plea because he was confused about the terms
of the plea agreement. Tipton testified that he understood the agreement was for a 51-
month underlying sentence that would be suspended in lieu of 12 months' probation. The
agreement was actually for a 59-month sentence and the State would not oppose a motion
to depart to probation.

The terms of the plea agreement were stated on the record at the plea hearing, and
Tipton stated that he understood them. The range of possible sentences was explained to
Tipton, and he said he understood the charges and the possible penalties. Tipton also
indicated that he understood that the district court was not bound by the agreement at
sentencing. Citing these reasons, the district court rejected Tipton's claim that his plea
was not understandingly made and concluded that Tipton had not shown good cause to
withdraw his plea.

The district court had presided over Tipton's motion hearing and earlier plea
hearing, so was in the best position to assess whether Tipton's pleas were fairly and
understandingly made. For that reason, we do not reweigh evidence or make credibility
determinations. Where there is no abuse of discretion, we defer to the trial court's
findings of fact. State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011).
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We conclude that the district court did not abuse its discretion in finding that
Tipton failed to establish good cause to withdraw his pleas. See State v. Klein, No.
107,102, 2011 WL 9527166 (Kan. App. 2011) (unpublished opinion). Substantial
competent evidence supports the district court's factual findings and conclusions of law
that Osburn provided competent representation and that Tipton entered his plea fairly and
understandingly. Accordingly, we find no abuse of discretion and affirm the district
court's denial of Tipton's motion to withdraw his pleas.

Affirmed.