Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge.
BY THE COURT
1. In light of a district court's discretion to withdraw a presentence guilty plea for " good cause" under K.S.A. 2013 Supp. 22-3210(d)(1), appellate courts review such an order under an abuse of discretion standard.
2. Abuse of discretion means that the decision was (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. The party asserting that a district court abused its discretion bears the burden of establishing the abuse.
3. In determining whether a defendant has established good cause to withdraw a plea prior to sentencing, Kansas courts first consider 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. In addition, courts should consider any other factors relevant to the concept of good cause.
4. To allow a defendant to automatically withdraw his or her plea prior to sentencing without a showing of good cause would render pleas temporary and meaningless.
Carl Maughan, of Maughan Law Group, of Wichita, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and POWELL, JJ.
Nelson Glover appeals the district court's order denying his motion to withdraw his plea. Glover contends that his counsel coerced him into pleading guilty. As a result, he contends that he did not voluntarily and knowingly enter a guilty plea. A review of the record reveals that Glover's decision was not a product of coercion. Instead, we find that Glover made a tactical decision based on the advice of competent legal counsel after extensive plea negotiations. Moreover, we reject Glover's argument that he should be able to withdraw his plea simply because he changed his mind. Accordingly, because we conclude that the district court appropriately found that Glover failed to show good cause to withdraw his plea as required by K.S.A. 2013 Supp. 22-3210(d)(1), we affirm.
Glover was one of two men charged with the murder of John C. Tolliver II, which occurred on July 17, 2011. Originally, Glover was charged with second-degree reckless murder, aggravated burglary, aggravated robbery, and criminal trespass. The State later filed an amended information alleging the same charges but under a different theory of aggravated burglary. Subsequently, the State filed a second amended information charging Glover with first-degree premeditated murder while leaving the remaining charges unchanged.
The district court set the case for a jury trial to begin on October 9, 2012. After a series of continuances, however, the jury trial was eventually rescheduled for December 10, 2012. Throughout the case, Glover was represented by Steven Mank. It is undisputed that Mank is an experienced criminal defense attorney who has defended numerous felony cases and has been on the Sedgwick County felony appointment list for approximately 20 years. In fact, Glover stated that Mank is " [o]ne of the best attorneys pertaining to a murder case."
During Mank's representation of Glover, the two met approximately 15 or 16 times. Early in the case, the two discussed the possibility of a plea agreement. At that point in time, Glover told Mank that he was not interested in negotiating a plea. Later, after the State filed its second amended information, Mank advised Glover that he did not believe there was enough evidence for a first-degree murder conviction. Mank, however, advised Glover that because of his criminal history he would risk being sentenced to more than 25 years in prison if convicted of a lesser included offense. Accordingly, it was Mank's advice that Glover should enter into plea negotiations.
A few days before the jury trial was scheduled to begin, Glover decided that he wished to enter into a plea agreement. From that point on, a series of discussions took place between Glover, Mank, and the prosecutor as to the amount of time Glover could realistically receive in exchange for a plea. During the negotiations, Mank told the prosecutor that he believed Glover should receive less prison time than the other defendant charged with killing Tolliver because he believed Glover to be less culpable. Evidently, the other defendant pled guilty in exchange for a recommendation of 184 months in prison.
Ultimately, after significant negotiations, Glover agreed to plead guilty in exchange for a recommendation of 152 months in prison. As such, Mank prepared a " Defendant's Acknowledgement of Rights and Plea" and met with Glover to review the document on December 9, 2012. During their meeting, Mank explained to Glover the contents of the written plea agreement and informed Glover that it was his choice alone whether to go to trial or enter a plea. After considering his options, Glover chose to sign the written plea agreement.
On the day the case was scheduled to go to trial, a plea hearing was held. During the hearing, the district court conducted an extensive colloquy with Glover. At one point during the colloquy, the following exchange occurred:
" THE COURT: All right, now the lawyers have prepared some documents here, including a Plea Agreement and an Acknowledgment of Rights form. There are signatures ...