Wednesday, July 25, 2012

Failure to advise of postrelease warrants plea withdrawal

Chirstine Larson won a plea withdrawal for her client in State v. Helms, No. 106,726 (Kan. App. July 20, 2012) (unpublished), allowing the withdrawal of guilty plea to forgery and identity theft charges in a Seward County case.  The appeal followed a pro se K.S.A. 60-1507 motion alleging that the plea was not knowingly entered because Helms was not advised of postrelease supervision at the plea hearing.  The COA ultimately held that the district court's failure to advise Helms of postrelease supervision at the plea hearing constituted manifest injustice because it was a violation of Helms' due process rights.  The manifest injustice showing was required because it was a plea withdrawal motion that was filed after sentencing.

The State originally charged Helms with with one count of forgery, one count of identity theft,  one count of possession of marijuana, and one count of possession of drug paraphernalia.  At his first appearance, Helms was advised of the charges against him and the possible sentences he faced. Helms told the court that he would proceed pro se.  Helms subsequently entered a guilty plea to the felony charges of forgery and identity theft.  At the plea hearing, the court advised him of the statutory range for prison time, but did not advise him of the mandatory postrelease supervision (until the sentencing hearing).  The court also misinformed Helms that he faced a range of 7-23 months incarceration on each count (which is incorrect because criminal history can only be applied to the primary count).
On appeal, the COA panel granted the plea withdrawal, noting that postrelease supervision is a direct consequence of a conviction, just like incarceration or a fine.  The court stated that a defendant must be advised of postrelease release supervision at the plea hearing.  If they are not so advised, it is a violation of the defendant's due process rights, and the plea must be set aside.  The court also ruled that the district court misadvised Helms on the maximum penalty for the two charges.  The court ultimately found the errors in the case were not harmless.  The court applied the constitutional harmless error standard explained in State v. Ward, 292 Kan. 541, 556-65, 256 P.3d 801 (2011) as follows:
The State, as the party benefitting from the error here, has the burden of proving the district court's error was harmless. Other than reciting the basic facts and a conclusory statement that the record clearly reflects Helms made knowing and voluntary pleas, the State fails to brief why the due process violation was harmless. A point raised incidentally in a brief and not argued there is also deemed abandoned.  Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008).
This case is noteworthy because a post-sentencing plea withdrawal is hard to come by.  But it appears that with the new harmless error analysis from Ward, that might not always be the case.

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