State v. Lara-Baca ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,261
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SERVANDO LARA-BACA,
Appellant.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed November 19,
2021. Affirmed.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., WARNER and ISHERWOOD, JJ.
PER CURIAM: Servando Lara-Baca pled no contest to three counts of rape and the
district court sentenced him to 310 months in prison. About five months after sentencing,
he moved to withdraw his plea and the motion was denied following an evidentiary
hearing. Lara-Baca now appeals the district court's decision. The issues Lara-Baca raises
for us to resolve are distinctly different from those he presented to the trial court in
support of his motion. That disparity places them outside the scope of our review. Based
on our review of the record, the district court's denial of his postsentencing motion to
withdraw plea is affirmed.
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FACTUAL AND PROCEDURAL BACKGROUND
The State charged Servando Lara-Baca with multiple sex offenses perpetrated
against multiple child victims, and he ultimately opted to enter a plea to three counts of
rape. The plea petition outlined a defendant's intent to plead "Guilty," but Lara-Baca's
counsel inserted that his client intended to "[p]lead no contest to 3 counts of a level 1
felony, rape." (Emphasis added.) Lara-Baca signed the petition, his counsel certified it,
and the district court accepted it.
The court conducted a plea hearing and, following an extensive plea colloquy, the
court inquired of Lara-Baca, through an interpreter, "So with everything in mind, Mr.
Lara-Baca, are you entering a plea of guilty today to count one, two and three which
charge rape, severity level 1 person felony? Are you entering that plea here today?"
(Emphasis added.) Lara-Baca responded in the affirmative and his counsel did not object
to the district court's classification of the plea as "guilty." The court found Lara-Baca's
plea was knowingly and voluntarily entered.
The case proceeded to sentencing, at which time the district court remarked, "At
the time of the plea it was [pled ]no contest to three counts of level 1 felony . . . ."
(Emphasis added.) The court overruled Lara-Baca's request for a dispositional departure
and sentenced him to 310 months in prison. Following sentencing, the parties completed,
and the court signed, a journal entry which reflected Lara-Baca pled no contest to the
three charges.
Several months later, Lara-Baca moved to withdraw his plea and cited multiple
grounds for why his plea was involuntary: (1) The district court failed to verify that the
accusations matched the elements of the charged crime; (2) he did not understand that by
entering a plea he was admitting that the elements of the charged offense were satisfied;
(3) defense counsel failed to thoroughly investigate the alleged crimes; (4) counsel
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coerced and misled him into pleading to charges for which he was innocent; (5) defense
counsel coerced him into accepting a plea that lacked a factual foundation; (6) his
attorney coerced him into agreeing to the plea by promising to secure either probation for
him or at least a shorter sentence than that in the corresponding grid box for his crimes;
and (7) his attorney fees were excessive.
The district court held an evidentiary hearing to resolve the matter and appointed
counsel to assist Lara-Baca. Trial counsel for Lara-Baca testified and insisted he
thoroughly investigated the charges. He also explained that he believed a plea was
necessary to open the door for the possibility of probation given the severity level of the
crimes and the compelling nature of their evidentiary foundation. But he denied that he
ever promised Lara-Baca that a reduced sentence was a guarantee. Lara-Baca testified
that counsel failed to adequately explain either the significance of the plea or the extent
of the sentence he faced. Additionally, Lara-Baca reiterated his aggravation over the fee
his counsel charged.
The district court denied Lara-Baca's motion to withdraw his plea and Lara-Baca
now brings the matter before us to resolve.
ANALYSIS
DID THE DISTRICT COURT ERR WHEN IT DENIED LARA-BACA'S POSTSENTENCE MOTION
TO WITHDRAW PLEA?
Lara-Baca contends, for the first time on appeal, that his plea was involuntary
because "the intention of all parties was that he enter a plea of no contest, but, instead, he
pled guilty to the charges." He directs our attention to the plea hearing transcript, where
the district court described the plea as "guilty" instead of "no contest." Lara-Baca claims
this isolated misstatement renders his plea invalid because it altered the terms of the deal
to which he agreed. He also raises a second issue, which dovetails with the first, that
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counsel rendered deficient representation when he failed to object to the district court's
misstatement about the plea.
To resolve Lara-Baca's appeal, we must first look at K.S.A. 22-3602(a) and K.S.A.
2020 Supp. 22-3210(d). Following an examination of those provisions, we will review
the procedural history of Lara-Baca's case to determine whether his claims are properly
before us. Finally, because we find these claims are not properly preserved, we also
analyze whether any of the three designated exceptions to the preservation requirement
are applicable to his case.
Before sentencing, a person may withdraw a guilty plea by establishing good
cause for his or her request. K.S.A. 2020 Supp. 22-3210(d)(1). But after sentencing, such
as was the case here, an elevated standard applies, the person wishing to withdraw a plea
must show manifest injustice would result if the plea remained in place. K.S.A. 2020
Supp. 22-3210(d)(2). In either event, the person seeking to withdraw a plea bears the
burden of persuading the court that he or she is entitled to relief. State v. Adams, 311
Kan. 569, 574, 465 P.3d 176 (2020).
An appellate court reviews a district court's dismissal of such a postsentence
motion for an abuse of discretion. State v. Szczygiel, 294 Kan. 642, 643, 279 P.3d 700(2012) (denial of motion to withdraw plea reviewed for abuse of discretion). Judicial
discretion is abused if judicial action is (1) arbitrary, fanciful, or unreasonable, in that no
reasonable person would take the view adopted by the trial court; (2) based on an error of
law, i.e., the discretion is guided by an erroneous legal conclusion; or (3) based on an
error of fact, i.e., substantial competent evidence does not support a factual finding on
which a prerequisite conclusion of law or the exercise of discretion is based. State v.
Beaman, 295 Kan. 853, 865, 286 P.3d 876 (2012). The movant bears the burden to prove
the district court abused its discretion in dismissing the motion. State v. Bricker, 292 Kan.
4239, 244, 252 P.3d 118 (2011) (movant's burden to prove abuse of discretion in denial of
motion to withdraw plea).
When a defendant alleges a claim of ineffective assistance of trial counsel, Kansas
courts review what are commonly referred to as the Edgar factors: (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. State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). These
factors are "'benchmarks for judicial discretion,'" but "should not be relied on to the
'exclusion of other factors.'" Bricker, 292 Kan. at 245.
In other words, a defendant must establish that trial counsel's performance fell
below the objective standard of reasonableness in order to withdraw his or her plea
following sentencing. The defendant also carries the burden to establish that there is a
reasonable probability that, but for the alleged errors of trial counsel, the result of the
proceeding would have been different. Bricker, 292 Kan. at 245-46. That is, he or she
would not have entered a plea and would have instead insisted on going to trial but for
counsel's alleged deficient performance. State v. Morris, 298 Kan. 1091, 1103-04, 319
P.3d 539 (2014).
Before proceeding further with our analysis, we pause to examine Lara-Baca's
claims. The seven allegations that he relied on in his motion, and the district court
rejected as justification for the plea withdrawal, are not preserved for our consideration.
Accordingly, all of those issues have been abandoned. See State v. Arnett, 307 Kan. 648,
650, 413 P.3d 787 (2018) (holding that issue not briefed on appeal is deemed waived and
abandoned).
At the same time, Lara-Baca's claims regarding the district court's alleged
misstatement of guilty versus no contest, and trial counsel's response to that utterance,
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emerged for the first time on appeal. The State contends Lara-Baca should be barred from
raising this issue because he did not argue it as part of his motion to withdraw plea before
the district court. Lara-Baca readily acknowledges this failure, but claims the issue falls
within exceptions to the preservation rule that allow us to review its merits.
Long-standing caselaw supports the State's position. In State v. Thorpe, 36 Kan.
App. 2d 475, 141 P.3d 521 (2006), Thorpe pleaded guilty to one count of involuntary
manslaughter and two counts of aggravated battery. He appealed his convictions and his
sentences, but this court dismissed the appeal, citing a lack of jurisdiction under K.S.A.
2005 Supp. 22-3602(a), which provided:
"No appeal shall be taken by the defendant from a judgment of conviction before a
district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other
grounds going to the legality of the proceedings may be raised by the defendant as
provided in K.S.A. 60-1507 and amendments thereto."
The Thorpe court went on to find that "[a] defendant may not file a direct appeal
from a guilty plea unless the defendant first files a motion to withdraw the plea and the
trial court denies the motion," and since Thorpe did not so move, the issue was not
properly before the court for review. Thorpe, 36 Kan. App. 2d at 477 (citing State v.
Solomon, 257 Kan. 212, 219, 891 P.2d 407 [1995]). The court made the added finding
that it was also precluded from considering the issue simply because Thorpe neglected to
raise it before the district court, and he did not allege any circumstances that might
potentially alter that landscape.
The court in State v. Williams, 37 Kan. App. 2d 404, 153 P.3d 566 (2007),
addressed a similar issue when Williams likewise advanced arguments in support of a
postsentencing motion to withdraw plea for the first time on appeal. The Williams court
observed that, from a jurisdictional standpoint, K.S.A. 2006 Supp. 22-3602(a) appears to
prohibit any appeal from a plea. But it further stated that K.S.A. 2006 Supp. 22-3210(d)
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gives the trial court a measure of discretion to withdraw the plea provided a written
motion is first filed in the district court in pursuit of that relief. "If the trial court denies
this motion, the defendant may appeal the denial to the appellate courts despite K.S.A.
2006 Supp. 22-3602(a)." Williams, 37 Kan. App. 2d at 406-07. Thus, the filing of a
motion to withdraw plea in the district court is the key required to open the door for
appellate review in the limited sphere surrounding pleas. The failure to take that step
generally precludes review unless circumstances exist which allow the court to deviate
from that rule.
Filtering Lara-Baca's case through this analytical framework leads to the
conclusion that his issues are not properly before us for review. First, the language of
K.S.A. 22-3602(a) remains unchanged from that highlighted in Thorpe and Williams as
the jurisdictional gatekeeper for claims involving pleas. Thus, if Lara-Baca simply
entered a plea, without more, he would not have an avenue to pursue appellate relief.
K.S.A. 2020 Supp. 22-3210(d) likewise remains unchanged and offered Lara-Baca a
possible pathway for review provided he first filed a written motion in the district court to
litigate the issue of why he had a right to withdraw his plea. Lara-Baca successfully
completed that second step but veered off course when he asserted wholly new claims for
the first time on appeal to demonstrate withdrawal of his plea was necessary to avoid
manifest injustice. In essence, that is the functional equivalent of never having filed a
motion before the district court. The analysis would typically end there, but Lara-Baca
acknowledges the procedural deficiencies in his case and asserts his claims fall within
two of the three exceptions to the preservation requirement.
Our Supreme Court has identified three exceptions where an appellate court may
consider an unpreserved issue: (1) cases in which the newly asserted theory involves
only a question of law arising on proved or admitted facts; (2) when consideration of the
issue is necessary to serve the ends of justice or to prevent the denial of fundamental
rights; and (3) when the judgment of a trial court may be upheld even though that court
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relied on the wrong ground for its decision. State v. Trevino, 290 Kan. 317, 320, 227 P.3d
951 (2010). Lara-Baca contends his case fits within the first two exceptions.
First, according to Lara-Baca, his claims present a pure question of law because
the parties do not dispute that he "accidentally entered a guilty plea instead of a no
contest plea." But a lack of dispute on appeal is not the touchstone for whether an issue is
one of fact or law. Rather, the proper inquiry is whether the issue turns on the
interpretation of the law or the facts. In support of his argument, Lara-Baca highlights
portions of transcripts from proceedings before the district court, he does not cite statutes
or caselaw. The occurrences at a plea or sentencing hearing are inherently factual, not
legal, and it is within the purview of the district court to review and correct any error. The
reasoning behind the district court's classification of the plea as "guilty" rather than "no
contest," be it a misstatement or misunderstanding, would be one for the district court,
not this court, to resolve. Further, as it relates to counsel's conduct, the issue Lara-Baca
raises requires an inquiry into counsel's lack of an objection at the time the alleged
misstatement occurred. Again, resolution of that issue is driven by a purely factual, not
legal analysis. Thus, Lara-Baca's claims do not fit within the parameters of the first
exception to the preservation rule.
Lara-Baca also argues that his claims fit squarely within the second exception
because unknowingly entering a plea "would render the plea constitutionally invalid."
But the fact that the issue is constitutional in nature does not, in and of itself, mean it
avoids application of the preservation rule. To the contrary, a defendant seeking to raise a
constitutional issue must affirmatively assert, and convince the court, that an exception to
the preservation rule warrants consideration. State v. Daniel, 307 Kan. 428, 430, 410 P.3d
877 (2018). For these reasons, we are not persuaded that allowing Lara-Baca's claim to
go forward under this exception to the preservation rule would "'serve the ends of justice"
or "prevent [the] denial of fundamental rights.'" Trevino, 290 Kan. at 320.
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Lara-Baca has failed to satisfy his burden to provide us with the proper tools to
undertake a comprehensive analysis of his claims. Consequently, we decline to attempt to
venture down that road. Based on our review of the record, we are satisfied the district
court properly exercised its discretion when it denied Lara-Baca's postsentencing motion
to withdraw his no-contest plea.
Affirmed.
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