Plea agreement that may not be enforceable is good cause for withdrawal

Clayton J. Perkins won in State v. Frazier, No. 117,456 (Kan. April 17, 2020), obtaining a reversal of the denial of a motion to withdraw a plea in a Geary County possession prosecution. Part of the plea agreement provided that "[pursuant to this plea agreement the authorities in Ohio further agree to dismiss and/or not to file any charges resulting out of the search warrant that was obtained as a result of this arrest." Because Mr. Frazier filed his motion before sentencing, he only needed to show "good cause" to be entitled to withdraw his plea. 

But there is a fundamental problem with the plea agreement that neither the majority nor the concurrence addresses, and it is critical. As the Court of Appeals noted, "The State of Ohio was not a party to the plea agreement and did not sign it." Frazier entered into the agreement with the understanding that he would not face charges in Ohio, but he was relying on a promise of conduct that was not made by a party to the agreement.

The KSC concluded that the ambiguity in the enforceability of the plea agreement was important when considering "good cause":

At oral argument, the State conceded two things. First, the defendant relied on the idea that his plea agreement was binding on Ohio authorities and, in making his decision, he believed that lack of prosecution was a certainty. Second, if the plea agreement is not binding on Ohio authorities, the defendant prevails on his motion to withdraw. If every party agrees that Frazier believed and relied on the idea of this agreement being absolutely binding on Ohio—and it may not be—it makes whatever communication [defense counsel] had with Frazier regarding who spoke to whom less important. 

From these principles it can be derived that Frazier, contrary to his understanding, signed an agreement containing an important clause that might be binding on no one. While we do not need to conduct the full analysis today, there is a fog of uncertainty regarding whether Ohio authorities have a legally enforceable duty to honor this Kansas plea agreement. It probably would have been possible to obtain signatures from Ohio prosecutors; his codefendant's plea agreement had such signatures. But even then, it is unclear which—if any—Ohio prosecutor would have had authority to guarantee Frazier's protection from state and/or federal prosecution in Ohio. While the district court and the Court of Appeals focused on the fact that Frazier's attorney informed him that she had not spoken with Ohio officials, they paid no heed to the fact that the prosecutor and his attorney presented him with a contract that could be legally unenforceable against any prosecutor in Ohio.

This court has held that misinformation provided to a defendant, especially when that misinformation is memorialized in writing, constitutes grounds for withdrawal from the agreement.

The KSC concluded that the uncertainty in this case constituted "good cause" and therefore remanded with directions to allow Mr. Frazier to withdraw his plea.