State v. Herring ( 2020 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 118,648
STATE OF KANSAS,
Appellee,
v.
CHRISTOPHER LEE HERRING,
Appellant.
SYLLABUS BY THE COURT
1.
It is an abuse of discretion for a district court to apply the wrong legal standard
when considering a plea withdrawal for good cause under K.S.A. 2019 Supp. 22-
3210(d)(1).
2.
When an appellate court determines a district court abused its discretion by
applying the wrong legal standard to its consideration of a plea withdrawal for good
cause under K.S.A. 2019 Supp. 22-3210(d)(1), the correct disposition is to reverse the
decision and remand the case to the district court with directions to ensure the correct
legal standard is applied.
Review of the judgment of the Court of Appeals in an unpublished opinion filed March 29, 2019.
Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed October 16, 2020. Judgment
of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed,
and the case is remanded with directions.
1
Kai Tate Mann, of Kansas Appellate Defender Office, was on the brief for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.
The opinion of the court was delivered by
BILES, J.: When a district court applies the wrong legal standard to its
consideration of a plea withdrawal for good cause under K.S.A. 2019 Supp. 22-
3210(d)(1), it is an abuse of discretion. State v. Aguilar, 290 Kan. 506, Syl. ¶ 2, 231 P.3d
563 (2010). In this case, Christopher Herring challenges a Court of Appeals decision that
used a harmless error analysis to save a district court's denial of his motion to withdraw
his plea—even though the panel agreed the wrong legal standard was applied. State v.
Herring, No. 118,648, 2019 WL 1413030, at *3-4 (Kan. App. 2019) (unpublished
opinion). Herring argues an appellate court cannot engage in harmless error analysis in
this circumstance. We agree. For that reason, we reverse the panel's decision and remand
his case to the district court with directions to use the proper legal standard, i.e., K.S.A.
2019 Supp. 22-3210(d)(1) ("A plea of guilty or nolo contendere, for good cause shown
and within the discretion of the court, may be withdrawn at any time before sentence is
adjudged. [Emphasis added.]").
FACTUAL AND PROCEDURAL BACKGROUND
In November 2016, the State charged Herring with aggravated robbery at a Family
Dollar store. The district court appointed Brandon Hottman to represent him. Before trial,
Herring filed three pro se motions to discharge Hottman. The court denied each motion
after hearings on the merits. His arguments advanced in those motions underlie this
appeal.
2
At the first hearing, Herring claimed Hottman had not allowed him to review
audio and video recordings from surveillance cameras at the store. Hottman admitted this
but explained he had reviewed the recordings and discussed them with Herring. The court
instructed Hottman to make them available to Herring. The court then denied the motion,
reasoning his claim was legally insufficient and premature.
At the second hearing, Herring argued Hottman refused to file a motion to dismiss
"for lack of evidence" and had requested a continuance over Herring's objection. Hottman
said he asked for the delay because he had not yet received the preliminary hearing
transcript and there was "an open investigation" concerning Herring's possible alibi
defense. The district court denied the motion.
At the third hearing, Herring repeated earlier arguments, saying he had "bad
communication" with Hottman over his refusal to file the motion to dismiss. Hottman
conceded they had disagreed on that because Hottman believed the motion was
premature. The court again refused to appoint new counsel.
Herring's case went to trial in May 2017, but he pleaded no contest to amended
charges of robbery and aggravated assault just after jury selection. At the plea hearing, he
attributed his reason for taking the plea to additional evidence the State had concerning a
phone call Herring made from jail. The court accepted Herring's plea and found him
guilty of the amended charges.
Herring filed a pro se motion before sentencing to withdraw his plea. Among other
reasons, he asserted ineffective counsel. The court appointed him a new attorney, who
expanded on the pro se claims. Both Herring and Hottman testified at an evidentiary
hearing. Herring made three claims about Hottman's competence: (1) insufficient
3
visitations, (2) failure to investigate an alibi defense, and (3) mischaracterization of the
potential adverse impact from the jail phone call.
As to the first claim, Herring said Hottman only visited him "[m]aybe twice."
Hottman denied this, insisting they met at least seven times, with each visit lasting 10 to
30 minutes. As for the second claim, Herring said he gave Hottman information about
possible alibi witnesses, including his sister. He did not know the others' names but
provided their possible addresses. Herring claimed as his alibi that he was eating chicken
with his sister "at one point in time around that time." Hottman testified he tried to verify
this but decided it was not viable because he could not "anchor it in time." He said the
sister first told him she and Herring regularly ate chicken and "indicated she had chicken
with him on a Tuesday." But he said when she learned what day the crimes occurred, she
"changed it to a Thursday." Hottman said he made the "strategic decision" not to pursue
this. As to the other witnesses, Hottman said he believed his investigator attempted to
contact them but did not explain the result of that effort.
Finally, Herring complained Hottman mischaracterized the jail phone call as a
confession and improperly persuaded him "that [was] a reason why [he] should take a
deal." Hottman described the call as Herring telling his sister that "he needed money and
then she [made] a comment that the Family Dollar won't feed you or something along
those lines." Hottman thought it sounded "like [Herring] was explaining his actions." He
also said he had received the recording about a week before trial, but neither he nor his
co-counsel listened to it until the morning of trial just before voir dire. They discussed it
with Herring after completing jury selection. Hottman said Herring's "first comment
[about the call] was that [it] sounds like a confession and [Herring] put his head down.
He maintained that it was taken out of context but admittedly said that it didn't sound
good." The appellate record does not include a transcript or audio recording of that call.
4
In ruling on the plea withdrawal, the district court considered Herring's claims in
light of K.S.A. 2019 Supp. 22-3210(d)(1) and the three nonexclusive factors set out in
State v. Edgar, 281 Kan. 30, Syl. ¶ 2, 127 P.3d 986 (2006). The court stated, "The Edgar
factors are, one, whether the defendant was represented by competent counsel, [two]
whether the defendant was misled, coerced, mistreated or unfairly taken advantage of
and, three, whether the plea was fairly and understandingly made."
As to the first Edgar issue, which is the one relevant for this appeal, the court
stated:
"[To address the first factor,] I considered the two-prong test in Strickland v. Washington,
466 U.S. 668, [104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. Those factors are two: First,
counsel committed serious errors that undermine the Sixth Amendment's guarantee to
effective assistance of counsel and, two, counsel's deficient performance prejudiced the
defendant.
"More specifically, [under] Moncla v. State, 285 Kan. 826, [176 P.3d 954(2008)]. . . , a movant must establish, one, counsel's representation fell below the
objective standard of reasonableness considering all circumstances and then, two, but for
the counsel's deficient performance there is a reasonable probability that the outcome of
the proceeding would have been more favorable to the defendant.
"In considering the first element, defense counsel enjoys a strong presumption
that his or her conduct falls within the wide range of reasonable professional conduct.
Further, courts are highly deferential in scrutinizing counsel's conduct and counsel's
decisions on matters of reasonable strategy and make every effort to eliminate the
distorting effects of hindsight.
....
5
"The issue in this case is has the defendant . . . shown good cause to permit a
withdrawal of his plea. My ruling is as following: I deny Mr. Herring's motion. I find
Mr. Hottman, along with Miss McFerren, provided competent and effective
representation of Mr. Herring.
"The question of whether to proceed with an alibi defense is a strategic, tactical,
technical, and professional decision that rests with Mr. Hottman. Furthermore, Mr.
Hottman thoroughly and capably vetted the facts supporting the proposed defense and in
real time as well as hindsight made a strategic decision not to pursue the defense.
....
"Based upon the written motion and the defendant's testimony, I believe Mr.
Herring's position can fairly be broken down into three claims. First, he was not
represented by competent counsel. That's the first Edgar factor. I'm including the alibi
defense issue under this claim because whether or not to pursue an alibi defense is the
attorney's decision. . . . Therefore, the issue should be considered in the context of
ineffective representation of counsel. Was it objectively unreasonable for Mr. Hottman
not to pursue the alibi defense?
....
" . . . Defendant claims Mr. Hottman's representation was incompetent,
incomplete, and insufficient. He claims Mr. Hottman rarely visited him in jail. That is
contrary to the credible facts. Mr. Hottman testified from a detailed file that he saw
defendant seven times, basically once per month. Mr. Hottman provided competent and
reasonable representation.
"Besides seeing defendant in custody, which we all know is not always the best
way to spend time investigating and preparing a defense, Mr. Hottman provided
defendant with discovery, showed him the video early on, in fact, on February 1st, 2017.
He engaged an investigator and when close to trial spent the requisite time preparing
pretrial motions, organizing a trial notebook or binder, in his words, and generally
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preparing for trial. He did all of this while having to endure the defendant's baseless
requests to terminate his representation.
"It is clear Mr. Herring wanted his case to be defended a certain way. He wanted
to act as a lawyer. He's critical of Mr. Hottman for not filing the defendant's motions. But
the law categorized as hybrid representation simply does not allow Mr. Herring to have a
lawyer and be a lawyer.
"Now, regarding the alibi defense, first, whether to pursue the defense is Mr.
Hottman's decision, not Mr. Herring's decision. So the issue is whether Mr. Hottman's
decision not to pursue the defense meets the objective standard of reasonableness. Based
upon the facts, it most certainly does.
"Mr. Hottman took his client's alibi evidence at face value and pursued it. He
took down the names, principally the defendant's sister, and followed up. He spoke to the
sister more than once and had his investigator follow up with the sister, as well as others,
but the sister could not provide an adequate recollection or evidence sufficient to anchor
the defense. Mr. Hottman recognized this and decided the evidence did not meet the legal
requirement to go forward, not to mention that to do so would hurt the credibility of the
defendant's other theories of defense, a most reasonable legal decision.
"In summary, based upon the totality of the circumstances, I find that Mr.
Herring has failed to meet his burden regarding the first Strickland factor and I find that
Mr. Hottman's representation clearly meets the objective standard of reasonableness. He
did a good job for his client. The defendant's fragmentary perspective of Mr. Hottman's
representation, including his argument that Mr. Hottman should have requested a
continuance on the second day of trial, is in fact distorted and unduly magnified through
the lens of hindsight. I do not consider the second Strickland factor."
After denying the motion, the court sentenced Herring to 43 months' imprisonment
for robbery and 13 months for aggravated assault, both to run concurrent. Herring
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appealed, challenging the district court's ruling on the first Edgar factor as an abuse of
discretion based on an error of law.
The panel agreed the district court erred by using the wrong legal standard—the
Strickland test—instead of the correct, less stringent "'lackluster advocacy'" standard
specified under Aguilar, 290 Kan. at 513, ("Merely lackluster advocacy . . . may be
plenty to support the first Edgar factor and thus statutory good cause for presentence
withdrawal of a plea."). Herring, 2019 WL 1413030, at *3-4. But it also held the error
was harmless, so it affirmed. The panel's holding states:
"Regardless, we find this error to be harmless in light of our review of the entire
record and the specific findings made by the district court after hearing the evidence
presented at the motion hearing. See Edgar, 281 Kan. at 37-38 (citing State v. Trotter,
218 Kan. 266, 269, 543 P.2d 1023 (1975) ['While we do not approve of any failure to
comply strictly with the explicitly stated requirements of K.S.A. 22-3210, it does not
follow that every deviation therefrom requires reversal.']). . . . [T]he district court not
only found that Herring's attorneys met the objective standard of reasonableness but also
expressly found that they were 'competent,' 'effective,' 'capabl[e],' and had done a 'good
job' in representing Herring. Each of these findings reveal that the district court
concluded that counsel's performance exceeded the 'lackluster advocacy' standard set
forth in Aguilar.
"On the one hand, the dictionary defines 'lackluster' to mean 'lacking energy or
vitality; boring, unimaginative, etc.' Webster's New World College Dictionary 812 (5th
ed. 2014). On the other hand, the dictionary defines 'effective' to mean 'having an effect;
producing a result' or 'producing a definite or desired result.' Webster's New World
College Dictionary 464 (5th ed. 2014). Accordingly, we find that any error committed by
the district court was harmless because the record conclusively shows that the
representation of Herring provided by Hottman and his cocounsel was far from
lackluster." Herring, 2019 WL 1413030, at *4.
8
Herring petitioned this court for review, challenging the panel's application of
harmless error. We note the threshold ruling on the district court's use of the wrong legal
standard is settled because the State did not cross-petition for review about that. See State
v. McBride, 307 Kan. 60, 62, 405 P.3d 1196 (2017) (when appellee does not cross-
petition for review of a Court of Appeals holding that error occurred, the Supreme Court
will not consider whether that holding was erroneous when reviewing the appeal).
Jurisdiction is proper. K.S.A. 20-3018(b) (petition for review of Court of Appeals
decision); K.S.A. 60-2101(b) (providing Supreme Court jurisdiction over cases subject to
review under K.S.A. 20-3018).
STANDARD OF REVIEW
The issue is whether the district court's improper use of the Strickland standard
requires remand or is amenable to a harmless error analysis. Our standard of review is de
novo. State v. Ward, 292 Kan. 541, 577, 256 P.3d 801 (2011); see also State v. Belone,
295 Kan. 499, 503, 285 P.3d 378 (2012) (when determining a trial error is harmless, "we
employ a de novo review of the entire record").
DISCUSSION
K.S.A. 2019 Supp. 22-3210(d) allows for withdrawal of a guilty or nolo
contendere plea in the discretion of the court. See K.S.A. 2019 Supp. 22-3210(d)(1)
(presentence; "within the discretion of the court"); State v. Fritz, 299 Kan. 153, 154, 321
P.3d 763 (2014) (postsentence; district court's ruling is reviewed for abuse of discretion).
But the statutory standards for granting withdrawal differ depending on the timing. If the
request is made before sentencing, the plea may be withdrawn for "good cause shown." If
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requested after sentencing, the plea may be withdrawn only "[t]o correct manifest
injustice." K.S.A. 2019 Supp. 22-3210(d)(1), (2).
Under Aguilar, when a defendant moves to withdraw a plea after sentencing, a
district court must use the ineffective assistance standard under Strickland to consider the
first Edgar factor. But when the same motion is made before sentencing, the court applies
the lower "lackluster advocacy" standard. As the Aguilar court explained:
"It is neither logical nor fair to equate the lesser K.S.A. 22-3210(d) good cause
standard governing a presentence plea withdrawal motion to the high constitutional
burden. The Edgar factors do not transform the lower good cause standard of the statute's
plain language into a constitutional gauntlet. Merely lackluster advocacy . . . may be
plenty to support the first Edgar factor and thus statutory good cause for presentence
withdrawal of a plea." (Emphasis added.) 290 Kan. at 513.
In deciding the error was harmless, the panel noted the district court "expressly
found that [Hottman and his co-counsel] were 'competent,' 'effective,' 'capabl[e],' and had
done a 'good job' in representing Herring. Each of these findings reveal that the district
court concluded that counsel's performance exceeded the 'lackluster advocacy' standard
set forth in Aguilar." Herring, 2019 WL 1413030, at *4. In so holding, the panel
apparently relied on Edgar, 281 Kan. at 37-38 (citing Trotter, 218 Kan. at 269), to
conclude the district court's error could be deemed harmless.
The panel's analysis is wrong. To begin with, neither Edgar nor Trotter are on
point. In Trotter, the defendant claimed his guilty pleas were involuntary because the
district court did not strictly comply with K.S.A. 2019 Supp. 22-3210(a): when accepting
the pleas, the court failed to sufficiently advise Trotter about the nature of the charges,
and the possible sentence and consequences of such pleas, nor did it personally question
10
him about the voluntariness of his pleas as the statute required. Trotter, 218 Kan. at 268-
69. Based on this, the Trotter court held,
"While we do not approve of any failure to comply strictly with the explicitly
stated requirements of K.S.A. 22-3210, it does not follow that every deviation therefrom
requires reversal. If upon review of the entire record it can be determined that the pleas of
guilty were knowingly and voluntarily made, the error resulting from failure to comply
strictly with K.S.A. 22-3210 is harmless." 218 Kan. at 269.
Trotter challenged the validity of his guilty pleas for the first time on appeal. 218
Kan. at 266-68 (life sentence case; directly appealed to Supreme Court). And that is why
the Trotter court looked at the entire record and determined whether the error was
harmless. Those circumstances are not presented in Herring's appeal.
In Edgar, the court quoted Trotter's holding to explain that while "[a] failure to
strictly comply with the [statutory requirements . . . ] may be harmless error if a review of
the entire record shows the guilty plea was knowingly and voluntarily made," it "may be
good cause for granting a motion to withdraw if the noncompliance results in the
defendant not understanding the nature of the charge or the consequences of entering the
plea." Edgar, 281 Kan. at 37-38.
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
11
good cause showing." State v. Garcia, 295 Kan. 53, Syl. ¶ 5, 283 P.3d 165 (2012); see
also Aguilar, 290 Kan. at 515 ("The district judge's failure to apply the appropriate
standards in the plea withdrawal hearing was an abuse of discretion requiring reversal
and remand . . . .").
In Garcia, in denying a plea withdrawal, the district court erroneously cited State
v. Ford, 23 Kan. App. 2d 248, 930 P.2d 1089 (1996) (requiring an allegation of
innocence to justify a motion to withdraw a plea prior to sentencing), which was
overruled by State v. Vasquez, 272 Kan. 692, 696, 36 P.3d 246 (2001) ("It is apparent that
this court does not require an allegation that defendant is not guilty as charged as a
prerequisite for withdrawing a plea of guilty or nolo contendere prior to sentencing. Nor
is there such a requirement in the statute, which bases withdrawal on good cause shown
and on the discretion of the trial court."). Garcia, 295 Kan. at 58-59. And despite the
district court's discussion of the Edgar factors, the Garcia court was not "reassured
enough" to "discount or disregard the possibly inappropriate emphasis on Ford and the
absence of an allegation of innocence." 295 Kan. at 63. In other words, because the
district court's ruling "may have been guided by an erroneous legal conclusion," the
"uncertainty" about what it would have done absent the error was enough to reverse its
denial and remand for another hearing to apply the appropriate legal framework. 295
Kan. at 63-64.
Herring's case is even more problematic. Here, all agree the district court
incorrectly used the more stringent, constitutional standard when considering the first
Edgar factor. It explicitly stated "defense counsel enjoys a strong presumption that his or
her conduct falls within the wide range of reasonable professional conduct. Further,
courts are highly deferential in scrutinizing counsel's conduct and counsel's decisions on
matters of reasonable strategy and make every effort to eliminate the distorting effects of
hindsight." (Emphases added.) And it expressly relied on Strickland and found Hottman
12
and co-counsel were "competent," "effective," "capabl[e]," and "[Hottman] did a good
job for his client."
Those findings are plainly from the ineffective assistance standard—not the
applicable lackluster advocacy 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. See State v. Schow, 287 Kan.
529, 546, 197 P.3d 825 (2008) (remand ordered to apply the correct law to determine
whether the defendant "established good cause and then to exercise its discretion to rule
on the motion").
This unknown is easily illustrated. As noted by the panel, the dictionary definition
of "'lackluster'" means "'lacking energy or vitality; boring, unimaginative, etc.'" Herring,
2019 WL 1413030, at *4. 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 Hottman 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.
Just as importantly, remand is consistent with precedent, i.e., Garcia, Aguilar,
Schow, and other Court of Appeals decisions, e.g., State v. Locke, 34 Kan. App. 2d 833,
836, 125 P.3d 584 (2006) ("It is not this court's function to review the record to determine
13
if Locke established 'good cause' to withdraw his plea. This judgment must be first
exercised by the district court."); State v. Black, No. 118,570, 2018 WL 6713965, at *4
(Kan. App. 2018) (unpublished opinion) (rejecting the State's argument that the district
court's error was harmless; remanding the case for the district court to apply the correct
legal standard for assessing the competency of counsel in a presentence motion to
withdraw plea); State v. Fritts, No. 96,975, 2007 WL 2915605, at *2 (Kan. App. 2007)
(unpublished opinion) ("Remand for a new hearing is necessary since this court has no
evidence before it now that would allow an informed decision regarding the merits of the
motion. At that hearing, the trial court should apply the appropriate 'for good cause
shown' standard in determining whether Fritts should be allowed to withdraw his plea.");
State v. Krusich, No. 96,766, 2007 WL 2695833, at *2 (Kan. App. 2007) (unpublished
opinion) ("[W]e must remand the case for a rehearing on Krusich's motion to withdraw
plea because the discretionary call as to whether good cause has been shown must first be
made by the district court."); State v. Darby, No. 95,185, 2007 WL 219970, at *5 (Kan.
App. 2007) (unpublished opinion) ("Because Darby was subjected to an inappropriate
standard, we are required pursuant to Locke to remand this case to the district court for
reconsideration of Darby's motion under the proper legal standard.").
We reverse the panel's decision and remand the case to the district court with
directions to reassess the first Edgar factor under the lackluster advocacy standard and
then exercise its statutory discretion under K.S.A. 2019 Supp. 22-3210(d)(1).
Reversed and remanded with directions.
BEIER, J., not participating.
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MICHAEL E. WARD, Senior Judge, assigned.1
1
REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 118,648
under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on
the court by the retirement of Justice Carol A. Beier.
15