Saturday, October 23, 2021

Affirmatively misadvising client regarding calculation of criminal history score justifies plea withdrawal

Jennifer C. Roth won in State v. McKinzy, Nos. 121,464 (Kan. App. October 1, 2021) (unpublished), obtaining remand for further proceedings in a Wyandotte district court murder prosecution. The state charged Mr. McKinzy with first-degree murder. The parties entered into an agreement where Mr. McKinzy would plead guilty to second-degree murder and a count of aggravated battery in a separate case. Prior to sentencing, Mr. McKinzy filed a motion to withdraw his plea because his attorney affirmatively misinformed him that he would be criminal history C for the murder conviction and criminal history B for the aggravated battery conviction. In fact, under clear Kansas law, Mr. McKinzy fell into criminal history category B for each (because the aggravated battery conviction counted as criminal history for the murder case). 

The COA had little trouble holding that Mr. McKinzy was not represented by competent counsel, one of the factors to consider to determine whether to allow a person to withdraw a guilty plea:

This record shows that the defense counsel's performance can be fairly characterized as "lackluster" advocacy. This was not simply a case of miscalculating a criminal history score. McKinzy's attorney represented him while pleading to two high level felonies, and the attorney did not know, let alone understand, that multiple convictions on the same day in different cases count against each other for criminal history purposes. And, more importantly, failed to inform McKinzy of this very important sentencing rule before entering pleas of guilty. 

The COA also observed that the district court appeared to confuse the standard for a post-sentencing motion to withdraw plea (requiring constitutionally deficient counsel) and a pre-sentencing motion to withdraw plea (requiring only good cause): 

We have two problems with the district court’s ruling. The first is it ignored the defense attorney’s admission of incompetence. The second problem is that the court used an incorrect test for a presentence motion to withdraw a plea.

The COA reversed the denial of the plea withdrawal motion and remanded for further proceedings. 

[Update: the state did not file a PR and the mandate issued on November 9, 2021.]

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