Appeal from Douglas District Court; MICHAEL J. MALONE, judge.
1. When dealing with the denial of a K.S.A. 60-1507 motion after an evidentiary hearing in the district court, appellate courts employ a two-part review. First, the appellate court reviews the factual findings of the district court for substantial competent evidence and, second, determines whether those findings are legally sufficient to support its conclusions of law. Ultimately, the denial of a K.S.A. 60-1507 motion involves a legal question subject to unlimited appellate review.
2. A defendant is permitted to plead to a nonexistent or hypothetical crime as part of a plea agreement so long as the defendant (1) was initially brought into court on a valid pleading; (2) received a beneficial plea agreement; and (3) voluntarily and knowingly entered into the plea agreement.
3. If a defendant enters into a beneficial plea agreement voluntarily and intelligently, he or she forfeits the right to collaterally attack any underlying infirmity in the charge to which he or she pled.
The opinion of the court was delivered by: Hill, J.
Before GREEN, P.J., ELLIOTT and HILL, JJ.
In order to receive an anticipated two-thirds sentence reduction, Ronnie L. McPherson entered into a plea bargain and pled no contest to one count of attempted second-degree unintentional murder. This appeal presents the question whether McPherson can now collaterally attack his plea and sentence because our Supreme Court has decided that crime does not exist under current Kansas law. This calls into question the legal effect of entering a plea. We recognize that plea bargaining is an important component of Kansas criminal prosecutions. Such agreements represent compromises between two adversaries where both the prosecution and defense exchange the uncertainties and rigors of trial for the certainty of a plea and the reasonable probability that a court will follow the sentencing guidelines. We hold that McPherson has forfeited his right to attack any underlying infirmity in this charge because the record reveals that McPherson, originally charged with attempted first-degree murder, a valid crime in Kansas, with counsel, voluntarily and intelligently entered into this beneficial agreement. We affirm.
In his criminal case, Ronnie L. McPherson was charged with kidnapping and attempted second-degree murder in March 1999. The victim, Kayla Riley, was shot in the upper thigh, lower abdomen, and right shoulder while running away from McPherson in the parking lot of her apartment.
Subsequently, the State amended the complaint and charged McPherson with attempted first-degree murder. The district court set over the trial to allow the State to receive its evidence back from the lab. McPherson did not object and waived his right to a speedy trial.
Then, before trial, the court attempted to hold a status conference. McPherson and his counsel appeared, but the State did not. After several phone calls by the judge's administrative assistant, and after the administrative assistant went to the district attorney's office to request its presence, the State still did not appear. Because the State did not appear, the court dismissed the complaint without prejudice.
Very soon thereafter, the State asked the court to reconsider. After hearing the State's explanation, the court granted reinstatement of the case over the defendant's objections. After reinstating the complaint, the court issued a summons. McPherson failed to appear, and the court issued a bench warrant. McPherson was arrested in Oklahoma, waived extradition, and returned to Kansas in late October 1999.
Ultimately, the parties reached an agreement. In January 2000, McPherson pled no contest to one count of attempted second-degree unintentional murder and one count of kidnapping. Before accepting McPherson's no contest plea, the court inquired extensively of McPherson in order to determine whether he had made a knowing and voluntary plea. Specifically the district court asked McPherson if he understood he was waiving any and all defenses to the charges against him. McPherson acknowledged that he understood. Additionally, McPherson stipulated to the State's proffer of a factual basis for a finding of guilt by using the testimony of witnesses from the preliminary hearing. McPherson also stipulated that the victim would testify that he was the shooter. The court then found that McPherson entered his plea knowingly and voluntarily and that there was a factual basis to support a finding of guilt.
The court imposed the aggravated presumptive sentences for a severity level 3 person felony and a severity level 4 person felony. Based on McPherson's criminal history score of H, the aggravated presumptive sentence for kidnapping was 59 months. Using a criminal history score of I for the attempted second-degree unintentional murder, the court sentenced McPherson to the aggravated presumptive sentence of 43 months. McPherson did not appeal his plea or sentence.
In July 2001, McPherson moved to withdraw his plea, claiming it was manifestly unjust and it violated due process for the court to reinstate the charges and hold him in jail without informing him of the charges against him. The court denied the motion after concluding McPherson had waived any jurisdictional problems about his arrest by waiving extradition and by making a knowing and voluntary plea. McPherson filed a notice of appeal and had appointed counsel but later dismissed his appeal.
But, prior to dismissing his appeal, McPherson filed a K.S.A. 60-1507 motion pro se. In the motion, McPherson challenged the district court's jurisdiction to reconsider the dismissal of his criminal case or reinstate the case after the dismissal. The court summarily denied the motion. McPherson filed a notice of appeal but never docketed the appeal.
Then, on May 21, 2004, McPherson's counsel filed a K.S.A. 60-1507 motion. In this motion, McPherson requested that his convictions be vacated because his due process rights were violated when he was convicted and sentenced for a nonexistent crime. McPherson also alleged that trial counsel was ineffective for failing to challenge the district court's personal jurisdiction over him; failing to raise speedy trial issues; and failing to be prepared for trial.
The State rebutted, contending that McPherson was not entitled to relief because this was an impermissible successive motion; that he had failed to previously seek relief through a direct appeal; and that the issues raised in his motion to withdraw plea, which McPherson voluntarily dismissed, were therefore moot in this K.S.A. 60-1507 motion. The court held an evidentiary hearing. McPherson was the only witness that testified at the hearing.
After due consideration, the court denied McPherson's motion, holding that because McPherson was originally charged with a valid crime and benefitted from a favorable plea agreement, his plea was acceptable. The court also concluded that McPherson forfeited any challenges to the infirmity of the charge by entering a knowing and voluntary plea. The court denied McPherson's allegations of ineffective assistance of trial counsel after concluding that the K.S.A. 60-1507 motion was successive; that the district court had jurisdiction to reconsider its ruling dismissing the case prior to an appeal being docketed; that his trial was timely because it was held within 180 days as required by statute; and that he had failed to show that his plea was coerced.
In this appeal, McPherson argues that the court did not have jurisdiction to accept a plea to a nonexistent crime, attempted second-degree unintentional murder. He also argues that his sentence is illegal because Kansas does not recognize attempted second-degree unintentional murder and therefore no statute could specify a penalty for an unrecognized crime. McPherson also complains that his trial counsel was ...