the context of a motion to withdraw a plea, courts in this
state generally consider three nonexclusive factors when
judging whether a movant has established manifest injustice:
(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.
a postsentence motion to withdraw a plea alleges ineffective
assistance of counsel, the constitutional test for
ineffective assistance must be met to establish manifest
of the judgment of the Court of Appeals in an unpublished
opinion filed March 6, 2015.
Appeal from Reno District Court; Trish Rose, judge.
Christina M. Kerls, of Kansas Appellate Defender Office, was
on the brief for appellant.
E. Schroeder, district attorney, and Derek Schmidt, attorney
general, were on the brief for appellee.
Johnson appeals the district court's denial of his
postsentencing motion to withdraw pleas. He contends he
should have been permitted to withdraw his pleas for three
reasons: (1) his counsel and the court did not adequately
inform him of the registration required by the Kansas
Offender Registration Act (KORA), K.S.A. 22-4901 et
seq., or the maximum sentence he could receive if he
pled; (2) his attorney misled him regarding the State's
position on probation; and (3) his attorney failed to
investigate the underlying facts and failed to adequately
research possible defenses. For the reasons set forth below,
we hold that the district court did not abuse its discretion
when it denied Johnson's motion. Accordingly, we affirm.
and Procedural Background
State charged Johnson in case 07 CR 368 with one count of
possession of methamphetamine with intent to sell (his second
such offense), one count of criminal possession of a firearm,
and two other drug-related charges. Johnson later entered
into a plea agreement with the State. He agreed to plead
guilty to the possession of methamphetamine with intent to
sell charge, as well as the criminal possession of firearm
charge. In exchange, the State agreed to dismiss the
remaining counts; not oppose a downward dispositional
departure to probation; and recommend that the court impose
August 1, 2008, the district court conducted the plea
hearing. At the outset of the hearing, Thomas Stanton-the
prosecutor-explained the parties' agreement to the court.
Afterwards, the court confirmed with Johnson that this was
indeed their agreement, and Johnson pled guilty to the two
the court could sentence Johnson at a later date, law
enforcement officers arrested Johnson for possession of
methamphetamine. The State then charged Johnson in case 08 CR
790 with possession of methamphetamine with intent to sell
(his third such offense).
appears the attorneys and the court handling the first case
did not become aware of Johnson's post-plea arrest until
the sentencing hearing in 07 CR 368 held on September 26,
2008. As the court was announcing Johnson's sentence,
Stanton interjected to inform the court that he had just
learned that Johnson had been arrested again for possession
of methamphetamine. Donald Snapp-Johnson's attorney-told
the court he was unaware of the arrest. The court thus
postponed the sentencing hearing to consider the new
the court could proceed with sentencing Johnson moved to
withdraw his plea. The motion alleged the State previously
agreed to recommend a dispositional departure to probation.
It further stated that Johnson maintained his innocence and
he wished to submit his case to a jury. A while later, Snapp
moved to withdraw as Johnson's counsel, reasoning that
because he negotiated the plea agreement that was now in
dispute, he was a potential witness. At a hearing on
Snapp's motion, Stanton told the court that he was
"not backing off of [the] agreement" and that he
wished to proceed with sentencing. The court noted that
"the State is not attempting to withdraw from the
agreement" and asked Snapp whether "that change[s]
the motion for withdrawal of plea, or are you still opposing
on the ground your client does not believe he is
guilty?" Snapp told the court that Johnson believed his
case should have proceeded to a jury trial. Thereafter, the
court permitted Snapp to withdraw and appointed Shannon Crane
to represent Johnson.
Following her appointment, Crane filed an amended motion to
withdraw plea in which Johnson "acknowledge[d] the State
is not recommending prison, but maintain[ed] the State's
actions at the sentencing hearing inherently violated the
spirit of the plea agreement." The motion also claimed
that Johnson had ineffective assistance of counsel prior to
acceptance of the plea.
August 2009, Johnson fled to Arizona. Authorities apprehended
Johnson in June 2010 and extradited him to Kansas. Upon his
return, Crane negotiated a new plea deal for Johnson in both
cases 07 CR 368 and 08 CR 790. Stanton later orally recited
the agreement, which was not in writing:
"Mr. Stanton: . . . My understanding [of the plea
agreement] is as follows: The defendant had filed a motion to
withdraw his plea in 07 CR 368. That motion to withdraw his
plea will be withdrawn.
". . . The defendant will plead guilty as charged in [08
CR 790] to the one count of possession of methamphetamine
with intent to sell . . . . The parties will request that
both cases be set over for a special sentencing date, not on
a Friday morning-
"The Court: Okay.
"Mr. Stanton: -for sentencing. The agreement is that the
parties will recommend that the sentences in Case Number 07
CR 368 run concurrent with the sentence in Case Number 08 CR
790. The parties believe based on the defendant's last
PSI in 07 CR 368 that he will be criminal history category C.
The, the parties will recommend the midrange sentence, which
is, I believe, 178 months. Is that correct?
"Ms. Crane: That sounds correct.
"Mr. Stanton: And that will be the controlling sentence
for both cases. Upon successful entry of that, of the plea in
08 CR 790, the state will dismiss Case Number 09 CR 911,
which is an agg[ravated] failure to appear case.
"The defendant reserves the right to file a motion for
downward dispositional departure. . . . The state at this
point in time is taking the position that I will oppose that
downward departure subject to anything, of course, that
happens between now and the time of sentencing. That might
change my, my opinion, but at this point the defendant
realizes that my position is going to be that he go and serve
that 178 months in the Department of Corrections.
"The Court: Shannon?
"Ms. Crane: Yes, Your Honor, I believe that is our, our
agreement. At this time I cannot think of anything that [the
State] has left off.
. . . .
"Ms. Crane: We would just ask the court to approve the
agreement that we have. We would withdraw our motion to
"The Court: So the motion to withdraw plea in 07 CR 368
"Ms. Crane: That's correct, Your Honor.
"The Court: Is that what you want to do, ...