Martinez v. State ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,656
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
JOSE E. MARTINEZ,
Appellant,
v.
STATE OF KANSAS and JOE HRABE,
Appellees.
MEMORANDUM OPINION
Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed September 3,
2021. Affirmed in part, reversed in part, and remanded with directions.
Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.
Thomas R. Stanton, district attorney, and Derek Schmidt, attorney general, for appellees.
Before WARNER, P.J., CLINE, J., and WALKER, S.J.
PER CURIAM: Jose Martinez pleaded guilty to committing 29 crimes over the
course of a year. After the court sentenced him to a controlling 91-month prison term,
Martinez filed a pro se motion to withdraw his plea, alleging that his counsel had led him
to believe he would be placed on probation and that the State violated the plea agreement
at sentencing. The district court denied Martinez's motion after an evidentiary hearing.
Martinez appeals the court's ruling, arguing the court should have treated his plea-
withdrawal motion as a claim of ineffective assistance of counsel under K.S.A. 60-1507.
He also argues that he received an illegal sentence because the district court failed to
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include a period of postrelease supervision during his sentencing hearing. For the reasons
we explain in this opinion, the district court did not err when it treated Martinez's pro se
motion as a motion to withdraw his plea, and we affirm the court's denial of that motion.
But we agree with Martinez's second point—the case must be remanded for resentencing
to allow the court to pronounce a period of postrelease supervision in open court.
FACTUAL AND PROCEDURAL BACKGROUND
The State charged Martinez with committing 32 criminal offenses over the course
of a year between October 2016 and November 2017. Martinez pleaded guilty to 29 of
the counts, including 7 counts of theft, 4 counts of making false information, 2 counts of
interference with a law enforcement officer, 2 counts of criminal damage to property, 2
counts of burglary, 2 counts of possession of drug paraphernalia, and 1 count each of
attempted cultivation of marijuana, possession of marijuana with intent to distribute,
aggravated false impersonation, possession of marijuana with intent to sell, driving on a
suspended license, illegal transportation of liquor, illegal display of tag, failure to have
insurance, attempted making false information, and possession of methamphetamine. The
State dismissed the remaining three charges.
At the plea hearing, the prosecutor summarized the plea agreement. The
prosecutor explained that Martinez would plead guilty to each of the pending charges.
Then, "[a]t sentencing the parties [would] recommend standard sentences on all counts."
The prosecutor further explained that the parties agreed that four sentences would be
served consecutively—for possession of marijuana with the intent to distribute, one of the
counts of making a false information, and the two burglary offenses—and all other
sentences would be served concurrently. The prosecutor noted that Martinez was free to
"file a motion for dispositional departure," which "the State is free to oppose." But the
State would continue to recommend the sentence outlined in the plea agreement if
Martinez filed a motion for a durational departure.
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Once the prosecutor had completed his summary, the court addressed Martinez
and his attorney, asking if the State's summary of the agreement was correct. Both
Martinez and his attorney answered, "Yes." Martinez stated he understood the charges
against him. The court explained the penalties for each charge Martinez was facing and
asked him about the factual basis for each offense. Once the court had walked Martinez
through the charges against him, the potential penalties he was facing, and the rights he
was waiving by entering a plea, Martinez confirmed that he understood the nature and
consequences of his plea. He also stated that he was not under the influence of drugs or
alcohol and had no complaints about the representation he had received from his counsel.
Following this discussion, the court accepted Martinez's plea.
After this plea hearing but before sentencing, Martinez filed a motion for a
dispositional departure, asking the court to suspend any prison sentence and order him to
serve probation. Martinez noted that his convictions were largely drug related, and he
indicated that he would benefit from receiving drug treatment instead of being
incarcerated. The State opposed the motion, noting the number of offenses involved and
the fact that Martinez had been previously convicted of similar offenses. The district
court found that Martinez had not shown substantial and compelling reasons to depart
from the presumptive sentence and denied his motion.
The court sentenced Martinez to a controlling 91-month prison term. To reach this
number, the court ordered that the sentences for possession of marijuana with the intent
to distribute, one count of making a false information, and burglary be served
consecutively and the sentences for the other 25 convictions be served concurrently. The
court did not announce any period of postrelease supervision at the sentencing hearing.
However, it included a 36-month supervision term in its journal entry.
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About six months later, Martinez filed a pro se motion titled a "Petition for a Writ
of Habeas Corpus Pursuant to K.S.A. 60-1507." Despite this title, the first paragraph of
the motion indicated that Martinez was asking the court to "withdraw the plea bargain
agreement." The motion alleged that his trial attorney and the State had misrepresented
the terms of his plea agreement. Martinez indicated that he had been under the
impression, based on the representations of both his attorney and the prosecutor regarding
the terms of the agreement, that sentences for all offenses would have been run
concurrently and that any prison sentences would have been suspended to allow him to be
placed on probation. He also alleged that his trial counsel should have objected to
representations by the State at sentencing when it opposed his request for probation, as he
believed some of the evidence the State described would have been inadmissible at trial.
The district court appointed counsel to represent Martinez and eventually held an
evidentiary hearing where Martinez testified. During his testimony, Martinez
acknowledged—contrary to his allegations in his motion—that the State had not agreed
to argue for a dispositional departure as part of his plea agreement. He also indicated that
the representation in his motion that his trial attorney had informed him he would receive
probation was not accurate; the attorney had told him she thought there was a good
chance ("70 to 80%") that he would receive a dispositional departure, but she "never said
100%." Despite these inconsistencies with the allegations in his motion, Martinez
testified that he believed he would receive probation in exchange for entering his plea.
Martinez provided no testimony or other evidence regarding his evidentiary
allegations relating to the State's sentencing arguments. And Martinez made no argument
that the State misstated the facts when it argued against a departure. He conceded that he
knew the charges against him, the penalties associated with each charge, and that he had
informed the court at the plea hearing that he understood the terms of his plea agreement.
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After hearing Martinez's testimony, the court made several findings from the
bench. First, the court found that Martinez was competent at the plea hearing and at
sentencing. The court also found that the plea agreement did not include any promise of a
dispositional departure. The court noted that during the plea hearing and the sentencing
hearing, Martinez confirmed that he understood the plea agreement, as well as "the State's
option to argue against probation." The court observed that Martinez included "an
intentional misstatement of the facts" in his motion to withdraw his plea when he alleged
that the State had agreed to support a request for probation, when he knew that was not
the case.
Based on these findings, as well as its recollection of the previous proceedings, the
court found that Martinez's plea was knowingly and voluntarily given. And the court
emphasized that "Martinez's hope for a departure did not make his acceptance of the plea
agreement involuntary." The court therefore denied Martinez's motion and memorialized
its ruling in a journal entry. This appeal followed.
DISCUSSION
Martinez raises two broad issues on appeal. First, he claims that the district court
erred when it construed his pro se motion as a motion to withdraw a plea, rather than a
claim based on ineffective assistance of counsel under K.S.A. 60-1507. Martinez argues
that the court's factual findings were not sufficient, under Supreme Court Rule 183(j)
(2021 Kan. S. Ct. R. 239), to support its ruling. And he asserts that the court never
addressed whether Martinez's previous counsel provided ineffective assistance of counsel
at sentencing. Second, he claims the court erred when it included a term of postrelease
supervision in the journal entry of sentencing when it did not announce a term of
postrelease supervision at the sentencing hearing.
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We find that the district court properly analyzed Martinez's motion as a request to
withdraw his plea. And the court did not abuse its discretion when, after considering
Martinez's testimony, it denied that request. But we agree with Martinez that his case
must be remanded so the court can impose a period of postrelease supervision from the
bench while Martinez is present.
1. The district court did not err in denying Martinez's motion to withdraw his plea.
Martinez argues that the district court erred in two ways when it denied his
motion. First, he asserts that the court should have analyzed his claim regarding the facts
surrounding the State's arguments at sentencing—when the State opposed a dispositional
departure based on Martinez's conduct giving rise to his convictions—separately from the
plea-withdrawal request. He asserts that the court should have construed these arguments
as a claim brought under K.S.A. 60-1507 for ineffective assistance of sentencing counsel.
Second, Martinez contends the court should have granted his request to withdraw his
plea. We find neither argument persuasive.
Turning to Martinez's first argument, it is not unusual—as Martinez acknowledges
on appeal—for a motion labeled under K.S.A. 60-1507 to be treated as a motion to
withdraw a plea. This is because "[c]ourts are to interpret pro se pleadings based upon
their contents and not solely on their title or labels." State v. Redding, 310 Kan. 15, 18,
444 P.3d 989 (2019). That is, when "construing pro se postconviction motions," courts
should avoid formalism by focusing on "the relief requested." 310 Kan. at 18. Whether
the district court properly construed Martinez's pleading as a motion to withdraw his plea
is a question of law subject to unlimited review. 310 Kan. at 18.
Applying these principles here, the district court properly found that it was not
bound by the title of Martinez's motion: "Petition for a Writ of Habeas Corpus Pursuant
to K.S.A. 60-1507." In fact, the Kansas Supreme Court has indicated that the failure to
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follow a filing's title without analyzing the nature of the relief sought may lead to
reversal. See State v. Kelly, 291 Kan. 563, 565-66, 244 P.3d 639 (2010) (pro se K.S.A.
60-1507 motion should have been construed as motion to withdraw plea under K.S.A. 22-
3210). And the district court noted, upon reviewing the substance of the motion here, that
Martinez sought to withdraw his plea.
We agree with the court's assessment. In the first paragraph (immediately after the
title of his motion), Martinez indicated that he sought to withdraw his plea. The entire
motion concerned this plea-withdraw request: He alleged that he should be allowed to
withdraw his plea because the State violated the plea agreement when it argued against
his request for probation (an allegation he acknowledged at his evidentiary hearing to be
false). And he asserted that he should be allowed to withdraw his plea because his trial
attorney misled him about the sentence he would likely receive and failed to object to the
State's comments during sentencing.
Though Martinez did raise questions in his motion about his attorney's conduct
(before the plea hearing and at sentencing), those questions all were focused on his plea-
withdrawal request. The motion asserted, for example, that his attorney had informed him
that the plea agreement would cause him to be placed on probation, and he should be
allowed to withdraw his plea based on this incorrect information. Martinez asserted in the
motion that he was "adamant that he would have exercise[d] his Constitutional right to a
Trial By Jury" if his counsel had fully apprised him of the terms of the plea agreement.
The motion likewise claimed that by not objecting to the State's comments at sentencing
opposing Martinez's request for probation, the attorney helped the State violate the plea
agreement. Putting aside momentarily the merits of these allegations, it is clear that
Martinez sought to withdraw his plea, not some other postconviction relief. The district
court did not err when it analyzed Martinez's motion as a request to withdraw his plea
under K.S.A. 22-3210.
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We are thus left to consider Martinez's second argument—that the court erred
when it denied his plea-withdraw request. K.S.A. 2020 Supp. 22-3210(d)(2), which
governs requests to withdraw a plea filed after sentencing, allows a court to set aside a
plea to "correct manifest injustice." This court will not disturb a district court's denial of a
postsentence motion to withdraw plea "absent an abuse of discretion." State v. Johnson,
307 Kan. 436, 443, 410 P.3d 913 (2018). A judicial action constitutes an abuse of
discretion if no reasonable person would agree with the court's ruling or if the decision is
based on a factual or legal error. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931(2018). Martinez bears the burden to show the district court abused its discretion. See
State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).
When determining whether a defendant has established manifest injustice, this
court generally looks to the three factors discussed in 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.'" Johnson, 307 Kan. at
443. While these factors establish criteria for a district court to consider when ruling on a
motion to withdraw a plea, the factors are not exclusive, and courts may find that other
relevant facts exist in a particular case. State v. Schaefer, 305 Kan. 581, 588, 385 P.3d
918 (2016).
As a starting point, the district court found that Martinez had not shown that he
had been misled, coerced, or otherwise ill-used. On appeal, as in his original motion,
Martinez alleges the State breached the terms of the plea agreement and misled him about
whether he would be receiving probation. But when Martinez testified, he admitted that
the State never agreed to recommend probation and that his plea counsel did not
guarantee him that outcome. In fact, under the plea agreement, the State was free to
oppose any request for a departure. At the evidentiary hearing, Martinez stated that he
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was confused about what the word "oppose" meant, but the district court did not find this
caveat convincing. The court's conclusion is supported by the record.
On appeal, Martinez has changed his focus, now emphasizing his argument that
his trial counsel provided constitutionally deficient representation. To prevail on this
point, Martinez must show that his trial counsel's performance was objectively
unreasonable and, but for his trial counsel's deficient performance, he would not have
entered his plea. See Johnson, 307 Kan. at 447. Martinez contends his plea counsel did
not fully inform him of the details of his plea, failed to recognize alleged evidentiary
problems in the State's case until after the plea was entered, and failed to make objections
during sentencing.
Martinez only discussed one of these allegations—his attorney's explanation of the
plea—at the evidentiary hearing. Though Martinez originally stated that his trial attorney
had informed him he would receive probation, he acknowledged in his testimony that his
attorney merely stated he had a good chance of receiving probation. But Martinez was
aware that the State would be recommending the presumptive sentence under the
guidelines and could oppose any request for a dispositional departure. Based on this
testimony, the court found that Martinez's attorney had not misrepresented the nature of
the plea agreement. Again, this finding was supported by evidence in the record.
On appeal, Martinez raises two other claims regarding his attorney's alleged
deficiencies. First, he asserts that the attorney should not have allowed him to plead
guilty to attempted cultivation of marijuana, as the attorney made comments at
sentencing questioning the factual basis for that charge. We note that this argument was
never raised below, meaning the district court never had the opportunity to consider the
question or develop a record that would permit review. See State v. Parry, 305 Kan.
1189, 1191-92, 390 P.3d 879 (2017) (Generally, "a reviewing court will consider only
those matters the parties raised in trying their case."). Martinez provides no convincing
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explanation as to why this court should consider the issue for the first time on appeal,
asserting only that it raises a question regarding his fundamental right to competent
representation. This exception is not unbounded, however. Martinez does not
demonstrate how the record before us would permit us to consider this issue or any
compelling reason to do so—particularly when the district court engaged in a discussion
with Martinez of the cultivation charge at the plea hearing, and Martinez personally
acknowledged that he had committed that offense.
Second, Martinez argues that his attorney should have objected at sentencing to
the State's comments that a departure should not be granted, as those comments included
facts that were not otherwise part of the record. In particular, Martinez asserts that some
of the facts the prosecutor mentioned during his argument were not discussed at the plea
hearing. And because there was not a preliminary hearing in this case, he asserts the
prosecutor's comments were improper.
It is generally true that a prosecutor must confine his or her discussion—even at
sentencing—to matters admitted or in evidence. But there are at least three problems with
the argument Martinez raises. First, because these comments were made at sentencing
(that is, after the plea hearing), they could not have influenced Martinez's decision to
enter his plea. Second, to the extent Martinez's motion raised questions regarding the
State's comments at sentencing (and his counsel's lack of objection to those comments),
the questions in the motion were directed toward his argument that the State had breached
the plea agreement—an allegation Martinez acknowledged was unfounded. And third,
even if the prosecutor's comments were not supported by the record, Martinez has not
shown any prejudice flowed from the statements. See Johnson, 307 Kan. at 447. When
the district court denied Martinez's request for a departure, it did not do so based on the
prosecutor's representations. Instead, it was concerned with the number of offenses
involved, as well as Martinez's criminal history (which included multiple charges for
criminal possession of a weapon and at least one other false-reporting offense).
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The other instances of deficient performance Martinez raises are either not
supported by the record or do not show that his plea counsel was objectively ineffective
in negotiating his plea. Thus, Martinez has not shown that his plea resulted from any
unreasonable representation by his attorney.
In his final argument regarding his plea-withdrawal request, Martinez argues his
plea was not knowingly and understandingly made because he did not understand the
terms of the plea agreement. But the transcript of the plea hearing belies this argument.
The State explained the terms of the plea agreement at the beginning of the hearing, and
Martinez confirmed his understanding of that agreement at that time. At the end of the
plea hearing, after discussing all the charges to which he was pleading and their penalties,
Martinez confirmed again that he understood the nature and consequences of his plea and
had no complaints about his counsel's representation.
In short, the district court did not err when it denied Martinez's request to
withdraw his plea.
2. The case must be remanded to allow a term of postrelease supervision to be
pronounced from the bench.
In his second argument on appeal, Martinez argues that the district court entered
an illegal sentence when it included a 36-month term of postrelease supervision in the
sentencing journal entry, even though no supervision term was pronounced at the
sentencing hearing. We agree.
K.S.A. 2020 Supp. 22-3424(a) directs that the "judgment [in a criminal case] shall
be rendered and sentence imposed in open court." To this end, K.S.A. 2020 Supp. 21-
6804(e)(2) requires a sentencing court to "pronounce the complete sentence which shall
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include the: (A) Prison sentence; (B) maximum potential reduction to such sentence as a
result of good time; and (C) period of postrelease supervision at the sentencing hearing."
It is a well-established corollary to these principles that a sentence is effective
when it is pronounced from the bench at a sentencing hearing. State v. McDaniel, 292
Kan. 443, 445, 254 P.3d 534 (2011). A sentence derives its effectiveness from this
pronouncement, not from a subsequent journal entry. See Abasolo v. State, 284 Kan. 299,
Syl. ¶ 3, 160 P.3d 471 (2007). The journal entry
"'is thus a record of the sentence imposed; but the actual sentencing occurs when the
defendant appears in open court and the judge orally states the terms of the sentence.' . . .
Announcing the sentence in the defendant's presence 'protects the defendant's rights, as
"[t]he defendant is personally present [when the sentence is imposed], and thus knows
that at that moment he or she has been sentenced, fined, or placed on probation, or that
the imposition of sentence has been suspended."'" State v. Hilt, 307 Kan. 112, 128, 406
P.3d 905 (2017) (quoting Abasolo, 283 Kan. at 303, 308).
And the district court does not have jurisdiction after the sentencing hearing to change the
sentence that was pronounced, although it may correct clerical errors in a written
judgment. McDaniel, 292 Kan. at 445.
At the same time, K.S.A. 2020 Supp. 21-6804(e)(2)(C) indicates that terms of
postrelease supervision are mandatory. Thus, the "[f]ailure to pronounce the period of
postrelease supervision shall not negate the existence of such period of postrelease
supervision." K.S.A. 2020 Supp. 21-6804(e)(2)(C). To reconcile these two legal
principles—mandatory postrelease supervision and the requirement that postrelease-
supervision terms be pronounced from the bench to be effective—several panels of this
court have determined that a sentencing court's failure to pronounce the period of
postrelease supervision at the sentencing hearing results in an incomplete sentence and
requires a remand to pronounce a term of postrelease supervision and thus complete the
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sentencing hearing. See, e.g., State v. Arrocha, 42 Kan. App. 2d 796, 798, 217 P.3d 467(2009); State v. Bott, No. 120,970, 2020 WL 3487480, at *2-3 (Kan. App. 2020)
(unpublished opinion); State v. Rolls, No. 119,107, 2019 WL 6224398, at *5 (Kan. App.
2019) (unpublished opinion). We find this rationale persuasive.
The district court failed to pronounce a complete sentence when it neglected to
include the postrelease supervision portion of Martinez's sentence while pronouncing his
sentence from the bench. Contrary to the State's arguments on appeal, the court did not
have jurisdiction to fix that omission by merely including a term of postrelease
supervision in the journal entry. Instead, the court's inclusion of postrelease supervision
terms in the journal entry was effectively an imposition of a sentence outside of
Martinez's presence. State v. Baldwin, 37 Kan. App. 2d 140, 143, 150 P.3d 325 (2007)
("Absent a waiver, a sentence imposed outside the defendant's presence is void.").
A sentence is illegal if, among other reasons, it is imposed by a court lacking
jurisdiction or fails to conform to the applicable statutory provisions. K.S.A. 2020 Supp.
22-3504(c)(1). When the district court failed to pronounce a term of postrelease
supervision from the bench at sentencing, the resulting sentence did not comply with
K.S.A. 2020 Supp. 21-6804(e)(2)(C) and K.S.A. 2020 Supp. 22-3424(a). Because
Martinez received an incomplete sentence, we must reverse and remand the case to the
district court so that it may complete the sentencing hearing and pronounce the
appropriate supervision term in open court, in conformance to Kansas law.
Affirmed in part, reversed in part, and remanded with directions.
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