Saturday, November 07, 2020

Using improper standard for motion to withdraw plea not subject to harmless error analysis

Kai Tate Mann won in State v. Herring, No. 118,648 (Kan. October 16, 2020), obtaining a new hearing for Mr. Herring's motion to withdraw plea in a Sedgwick County aggravated robbery prosecution. Mr. Herring pleaded guilty to an amended charge of robbery and aggravated assault, but before sentencing filed a motion to withdraw plea, citing ineffective assistance of counsel. The district court appointed new counsel and held an evidentiary hearing but found that Mr. Herring did not meet the test for ineffective assistance of counsel under Strickland v. Washington

The COA agreed with Mr. Herring that the district court applied the wrong test. Because this was a presentence motion to withdraw plea, under State v. Edgar, 281 Kan. 30, 127 P.3d 986 (2006), Mr. Herring only needed to show "lackluster advocacy" to show "good cause" for presentence withdrawal. But the COA went on to hold that the error was harmless. The KSC granted review and held that these circumstances are not amenable to harmless error analysis:

The simple point is that neither case supports the Herring panel's notion that the district court's abuse of discretion from applying the incorrect legal standard to determining "good cause" could be saved by harmless error review. Indeed, our caselaw holds otherwise. In similar cases when "the district court's decision to deny the defendant's motion to withdraw plea may have been guided by an erroneous legal conclusion," the court has consistently reversed and remanded "to ensure that the district court applies the appropriate legal standard to determine whether defendant made the 12 good cause showing." State v. Garcia, 295 Kan. 53, Syl. ¶ 5, 283 P.3d 165 (2012)

Because the district court used the incorrect and more stringent standard, the KSC held that the proper remedy was to remand for the district court to apply the correct standard:

Even worse, no caselaw supplies an exact meaning of lackluster advocacy, so it is impossible for a reviewing court—like the Herring panel—to know how its view might square with the district court's on the same set of facts. The lower court has to rule first to know that. 

This unknown is easily illustrated. As noted by the panel, the dictionary definition of "'lackluster'" means "'lacking energy or vitality; boring, unimaginative, etc.'"  Although we emphasize that we do not express any opinion on the merits of Herring's plea withdrawal motion, this record at least shows circumstances that might be fairly characterized as "lackluster" advocacy, such as [defense counsel] not letting Herring review the surveillance recordings until the court ordered him to do so; or not listening to the jail call recording until the first morning of trial despite having received it the week before. A reviewing court may think it understands how a district court should view these circumstances, but it cannot know for sure until the lower court does the analysis. The district court must decide first whether these facts, taken in consideration with the rest of Herring's case, amount to good cause under the lackluster advocacy standard.

As a result, the KSC remanded for a hearing using the "lackluster advocacy" standard.