Tuesday, June 01, 2010

Presentence motion to withdraw does not require same showing as postsentence

Carl Folsom won in State v. Aguilar, No. 95,249 (Kan. May 21, 2010), getting withdrawal of a plea in a Wyandotte County constructive possession case. This case has been in the system quite a while. Carl filed the opening brief in March 2006, lost the case in the COA in February 2007, got the PR granted in June 2007, argued the case at the KSC in December 2007 and then, a two-and-a-half-year wait!

Ms. Aguilar pleaded guilty to possession of cocaine in a constructive possession case. Before sentencing, she moved to withdraw her plea. She claimed, among other things, that her counsel had a conflict of interest because of his concurrent representation of acodefendant.

The main issue of contention between the majority and dissenting opinions was the showing necessary to withdraw a plea before sentencing. Pursuant to K.S.A. 22-3210(d), a district court should allow withdraw of a plea before sentencing for "good cause shown," but after sentencing to "correct manifest injustice." The KSC held recognized that this statutory difference means something:

In [State v. Schow, 287 Kan. 529, 541, 197 P.3d 825 (2008)], we finally and explicitly recognized the distinction drawn in the statutory language, characterizing good cause for presentence motions as a "lesser standard" for a defendant to meet, when compared to manifest injustice for a defendant advancing a post-sentence motion. This legislative choice is sensible and appropriate. The longer a defendant waits to file a plea withdrawal motion, the more the State's case is likely to weaken, if not evaporate. Certainly the plea withdrawal statute was not intended to be a tool for temporal manipulation; if a defendant is going to hold the State to its beyond-a-reasonable-doubt burden of proof before a jury, he or she should not be able to delay the process indefinitely by entering a guilty or nolo contendere plea and then easily withdrawing it when the timing is opportune.

The KSC recognized that it has listed three factors that should be taken into consideration for a motion to withdraw pleas, known as "Edgar" factors from State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006): (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.

The KSC provided guidance for the application of these factors in presentence withdrawal requests:
The Edgar factors remain viable benchmarks for judicial discretion but reliance on them to the exclusion of other factors has not only conflated the good cause and manifest injustice standards of K.S.A. 22-3210(d) but also may have overemphasized the role of plea counsel's competence in deciding presentence plea withdrawal motions. Although the Edgar factors permit counsel's competence or lack thereof to be one consideration when the motion is filed in the time period between conviction and sentencing, they should not be mechanically applied to demand that a defendant demonstrate ineffective assistance arising to the level of a violation of the Sixth Amendment. That level of proof may be suitable when the vehicle for relief is a K.S.A. 60-1507 motion attacking a defendant's sentence; and it may be logical and fair to equate the K.S.A. 22-3210(d) manifest injustice standard governing a post-sentence plea withdrawal motion to the high burden imposed on a constitutional claim of ineffective assistance. We note, however, that the plain language of the statute—"for good cause shown and within the discretion of the court"—should not be ignored. A district court has no discretion to fail to remedy a constitutional violation.

It is neither logical nor fair to equate the lesser K.S.A. 22-3210(d) good cause standard governing a presentence plea withdrawal motion to the high constitutional burden. The Edgar factors do not transform the lower good cause standard of the statute's plain language into a constitutional gauntlet. Merely lackluster advocacy—or, as here, evidence of an insurmountable conflict of interest among jointly represented codefendants that is ignored by a district judge—may be plenty to support the first Edgar factor and thus statutory good cause for presentence withdrawal of a plea. All of the Edgar factors need not apply in a defendant's favor in every case, and other factors may be duly considered in the district judge's discretionary decision on the existence or nonexistence of good cause.

Because Ms. Aguilar showed much more than lackluster advocacy, she showed a real conflict of interest stemming from representation of codefendants in a constructive possession case:
Under the particularly egregious facts of this case—in which the conflict of interest between the defendant and her jointly represented codefendant was insurmountable, and the record reveals no sufficient disclosure by counsel and waiver by the client—Aguilar met her burden to show good cause to grant her presentence motion to withdraw her plea under K.S.A. 22-3210(d). No additional district court hearing on the motion is necessary.
So, nearly five years after sentencing, Ms. Aguilar will be returned to her pre-plea status.

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