State v. Cox ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,587
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
STEPHEN WAYNE COX,
Appellant.
MEMORANDUM OPINION
Appeal from Leavenworth District Court; GERALD KUCKELMAN, judge. Opinion filed November
24, 2021. Affirmed.
Judd L. Herbster, of Herbster Law Firm, L.L.C., of Prairie Village, for appellant.
Megan Williams, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., WARNER and ISHERWOOD, JJ.
PER CURIAM: Stephen Wayne Cox pleaded guilty to aggravated battery and later
moved to withdraw the plea, which the district court denied. Cox filed a motion to
reconsider the denial, which the district court also denied. Prior to sentencing, Cox
objected to the validity of certain municipal convictions contained within his criminal
history and filed a motion asking the judge to recuse. Both motions were denied. Cox
now appeals the denials of all these motions. Because Cox has failed to show that error
occurred in the denial of the motions, the decisions of the district court are affirmed.
1
FACTUAL AND PROCEDURAL HISTORY
In May 2016, the State charged Cox with aggravated battery, aggravated assault,
and criminal damage to property. He entered a not guilty plea and the court set the case
for trial. On the morning of trial, Cox accepted the State's plea offer and pleaded guilty to
aggravated battery.
Post-plea filings
1. Motion to Withdraw Plea
Shortly before the scheduled sentencing hearing and at Cox's request, defense
counsel withdrew as his attorney. Cox retained new counsel and moved to withdraw his
guilty plea. He argued that his prior counsel pressured him into entering the plea. The
State countered that Cox had simply changed his mind which did not rise to the level of
good cause to withdraw his plea.
The district court conducted a hearing to determine whether to allow Cox to
withdraw his plea. At the hearing, Cox's prior counsel testified that the State agreed to
recommend that Cox serve 162 months in prison, and he planned to argue for both
durational and dispositional departures. He further testified that he informed Cox it was
possible he could persuade the judge to impose a departure sentence by arguing that
"based upon the facts of the case, that [Cox] saw a guy with his significant other, and
how emotions sometimes get the better of you" in those situations. Prior counsel
acknowledged that the argument was a long shot, but he still thought there was at least a
possibility of success. He also testified that he explained to Cox that they needed to
convince the judge there were substantial and compelling reasons for a departure.
Cox's new counsel argued that prior counsel's explanations were insufficient. He
asserted that Cox was "hopeful, based on conversations with defense counsel, that there
2
would be a departure, but there was little or no conversation about how a departure would
actually happen." His new counsel proposed that the court, upon acceptance of a guilty
plea, should be required to inform defendants that they must show substantial and
compelling reasons to obtain a downward departure. He also argued that since Cox was
unaware of the improbability of receiving a downward departure, he had established good
cause to allow withdrawal of his plea.
The court found that Cox's plea was knowingly and voluntarily given and denied
his motion to withdraw.
2. Motion to Challenge Criminal History
Cox also challenged his criminal history score. He argued that his two
misdemeanor convictions from 2014 should not be used to calculate his criminal history
because the court in those cases neglected to advise him of his right to trial, the State's
burden of proof at trial, his right not to testify, his right to confront witnesses, his right to
use subpoena power, and the maximum penalty for the charges he faced.
The court held a hearing on the matter and Cox reiterated that the challenged
convictions were infirm because at the plea hearing there was "no discussion of the
charges, possible sentence, a factual basis, or anything else." Thus, since the pleas were
improper, the State should be barred from including them in his criminal history report.
The court denied Cox's motion. In so doing, it found that Cox's counsel entered the
2014 pleas for him, which the statute permits. See K.S.A. 2020 Supp. 22-3210(a)(1). And
since the convictions were never overturned on appeal, they were properly included as
part of Cox's criminal history score.
3
3. Motion to Recuse Judge
Following the hearings on the plea withdrawal and criminal history score, Cox
asserted that the presiding judge in the case should recuse himself. As support for his
contention, Cox argued that his prior attorney's statements at the plea withdrawal hearing
were "extremely prejudicial" to his request for a sentencing departure. And since the
presiding judge reviewed the transcript from that hearing to analyze Cox's motion to
reconsider the denial of his request to withdraw his plea, then the presiding judge could
not be unbiased when weighing Cox's request for a departure at sentencing.
The judge denied the motion and asserted that he did not recall any prejudicial
statements that Cox's prior counsel might have made. He also stated that even if he did
remember the remarks, that would not provide sufficient grounds for recusal because they
were likely invited error. Cox sought review from the chief judge in accordance with
statutory directives. That judge also declined to find Cox's case presented adequate
grounds for recusal.
Cox then timely filed this appeal to bring his issues before us to resolve.
ANALYSIS
DID THE COURT ERR WHEN IT DENIED COX'S PRESENTENCING MOTION TO WITHDRAW
HIS GUILTY PLEA?
In his first claim of error, Cox contends the district court abused its discretion
when it denied his presentence motion to withdraw his guilty plea because, at the time he
entered his plea, he was "unaware of trial counsel's actual dim view of the merits and
likelihood of a departure sentence."
4
K.S.A. 2020 Supp. 22-3210(d)(1) gives district courts discretion to allow
defendants to withdraw guilty pleas before sentencing when good cause exists to do so.
Kansas appellate courts review these decisions for an abuse of discretion. State v.
Edwards, 309 Kan. 830, 836, 440 P.3d 557 (2019). In determining whether good cause
exists, courts consider three 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). Guilty pleas must be
knowingly and voluntarily made. See Brady v. United States, 397 U.S. 742, 748, 90 S. Ct.
1463, 25 L. Ed. 2d 747 (1970). But mistaken subjective impressions of the plea deal,
without substantial objective proof showing that they were reasonably justified, do not
provide sufficient grounds on which to vacate a guilty plea. State v. Harned, 281 Kan.
1023, 1043, 135 P.3d 1169 (2006).
In State v. Johnson, 307 Kan. 436, 410 P.3d 913 (2018), the Kansas Supreme
Court dealt with an argument like what Cox presents to us. In that case, Johnson argued
his attorney coerced him into entering a plea by telling him the State would not oppose
probation as part of the deal. But the court pointed to the transcript of the plea hearing,
where the prosecutor told the district court he would, in fact, oppose probation at
sentencing. The district court then asked the defendant and his attorney if they agreed
with the prosecutor's rendition of the plea deal, and they both affirmed. The Supreme
Court held that this exchange highlighted that Johnson had a chance to clarify his
understanding of the plea agreement prior to entering the plea and he opted not to do so.
307 Kan. at 446.
Here, the district court also turned to the plea hearing transcript for guidance in
arriving at its decision. In the eyes of the judge, that transcript established that Cox was
clearly advised that the sentencing court was not bound by the sentencing
recommendations in the plea agreement and Cox stated that he understood that reality. If
5
Cox truly believed that a downward departure was guaranteed, he could have either
questioned the court at that point or asked to speak with his attorney. Instead, he
acknowledged that he understood the district court's power to reject counsel's arguments
for a departure and moved forward with his guilty plea. While Cox may have held a
subjective belief that his counsel's arguments would prevail, there is no escaping the fact
that the district court properly advised him that it had the discretion to reject those
arguments. See Harned, 281 Kan. at 1043 (subjective beliefs about a plea deal cannot
provide good cause for a plea withdrawal). The record before us reflects that Cox
voluntarily entered his plea with a full understanding of its possible consequences. The
district court properly exercised its discretion when it found there was not good cause to
allow Cox to withdraw his plea. The decision of the district court is affirmed.
DID THE DISTRICT COURT ERR WHEN IT DENIED COX'S CHALLENGE TO HIS CRIMINAL
HISTORY?
Cox's second argument consists of a claim that his two 2014 misdemeanor
convictions should be excluded from his criminal history worksheet. In support of his
claim, he contends that the court in those cases violated K.S.A. 22-3210, which outlines
the mandatory framework courts should follow during plea hearings. The State counters
that Cox is procedurally barred from raising the issue.
The State contends that the holdings in Custis v. United States, 511 U.S. 485, 114
S. Ct. 1732, 128 L. Ed. 2d 517 (1994), and State v. Delacruz, 258 Kan. 129, 899 P.2d
1042 (1995), direct the resolution of this issue. We agree. In Custis, the defendant argued
that the district court should not have used two of his prior convictions to enhance his
sentence because his counsel in those cases rendered deficient representation. Custis
relied on Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967), for relief
because the Burgett Court held that prior uncounseled convictions could not be used to
enhance a defendant's criminal history score. 389 U.S. at 114. But the Custis Court
6
declined to extend the Burgett rule and held that courts may use prior convictions to
enhance criminal penalties, even if the prior convictions were legally flawed, so long as
the defendant was represented by counsel. 511 U.S. at 496. In Delacruz, 258 Kan. at 137,
the Kansas Supreme Court adopted the Custis rule when Delacruz similarly argued that
certain of his prior convictions should be excluded from his criminal history because his
pleas were made involuntarily. The court wrote that Delacruz' proposed rule would
"require sentencing courts . . . to rummage through frequently nonexistent or difficult to
obtain state court transcripts or records that may date from another era." 258 Kan. at 138-
39. The court also found that adopting Delacruz' argument would blunt the finality of a
court's judgments. 258 Kan. at 139.
Cox argues that review of his claim is permissible under State v. Dickey, 301 Kan.
1018, 350 P.3d 1054 (2015). In that case, the court found that the question of whether a
prior conviction was properly classified as a person felony raised a purely legal issue,
capable of resolution at any time under K.S.A. 22-3504, Descamps v. United States, 570
U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), and Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). See Dickey, 301 Kan. at 1025. Cox
contends this holding establishes a pathway for our court to review whether the court
complied with K.S.A. 22-3210 in Cox's 2014 cases.
But Cox's case is more in alignment with Delacruz and its progeny. For example,
in State v. Kleypas, 305 Kan. 224, 382 P.3d 373 (2016), the defendant argued that a prior
conviction should have been excluded from his criminal history because, before trial in
that case, the court failed to properly inquire into his competence to waive his right to
trial. In rejecting this argument, the Kleypas court applied the rule from Custis and
Delacruz and held that defendants could not collaterally attack prior convictions that
appear in their criminal history unless those convictions were uncounseled. 305 Kan. at
327-28.
7
The issue raised by Cox, challenging the efficacy of the court's guidance at his
earlier plea hearings, essentially invites us to examine the transcripts from those past
hearings. But this is the very thing Delacruz warned against. Application of Custis and
Delacruz is appropriate here. We acknowledge that the district court took a different tack
and denied Cox's challenge to his criminal history upon finding that because counsel
legitimately entered the pleas on behalf of defendant, and those convictions did not get
overturned on appeal, then their inclusion in his criminal history was appropriate. Even
still, we can and do affirm the district court's denial of Cox's criminal history challenge as
right for the wrong reason. See State v. Overman, 301 Kan. 704, 712, 348 P.3d 516(2015).
WHETHER THE DISTRICT COURT ERRED WHEN IT DENIED COX'S REQUEST FOR THE
PRESIDING JUDGE TO RECUSE HIMSELF?
Cox's final claim is that the presiding judge erred when he declined to recuse
himself from the case. Cox argues that prior counsel's testimony at the plea withdrawal
hearing regarding the viability of his downward departure argument was "extremely
prejudicial" and "created a reasonable doubt" about the judge's ability to remain impartial
during Cox's upcoming sentencing proceeding.
Appellate courts exercise de novo review over whether a trial court judge's recusal
is required. State v. Moyer, 306 Kan. 342, 369-70, 410 P.3d 71 (2017) (addressing
recusals based on due process and statutory factors). A judge is impartial when there is no
reasonable doubt about the judge's impartiality in the mind of a reasonable person with
knowledge of all the circumstances. State v. Sawyer, 297 Kan. 902, 908, 305 P.3d 608(2013). Previous rulings of a trial judge, even erroneous ones, are not alone sufficient to
show the required bias or prejudice to disqualify a judge. State ex rel. Miller v.
Richardson, 229 Kan. 234, 238, 623 P.2d 1317 (1981). An appellate court should find
that
8
"[d]isqualification of a judge is appropriate when the circumstances and facts of the case
'create reasonable doubt concerning the judge's impartiality, not in the mind of the judge
himself, or even, necessarily, in the mind of the litigant filing the motion, but rather in the
mind of a reasonable person with knowledge of all the circumstances.'" State v. Schaeffer,
295 Kan. 872, 876, 286 P.3d 889 (2012).
K.S.A. 20-311d outlines the specific framework which allows litigants to seek a
change of the judge assigned to his or her case. In addition, "[a] judge shall disqualify
himself or herself in any proceeding in which the judge's impartiality might reasonably be
questioned." Supreme Court Rule 601B, Canon 2, Rule 2.11 (2021 Kan. S. Ct. R. 493).
The Kansas Code of Judicial Conduct also requires that "[a] judge shall uphold and apply
the law and shall perform all duties of judicial office fairly and impartially." Rule 2.2
(2021 Kan. S. Ct. R. 487).
A litigant may assert at least three substantive bases for a judge's recusal: (1) the
statutory factors set forth in K.S.A. 20-311d(c); (2) the standards of the Kansas Code of
Judicial Conduct; and (3) the Due Process Clause of the Fourteenth Amendment to the
United States Constitution. Moyer, 306 Kan. at 370; see Supreme Court Rule 601B,
Kansas Code of Judicial Conduct (2021 Kan. S. Ct. R. 477).
The claim Cox asks us to review arises out of the statutory factors, which provide:
"(c) Grounds which may be alleged as provided in subsection (b) for change of
judge are that:
(1) The judge has been engaged as counsel in the action prior to the appointment
or election as judge.
(2) The judge is otherwise interested in the action.
(3) The judge is related to either party to the action.
(4) The judge is a material witness in the action.
(5) The party or the party's attorney filing the affidavit has cause to believe and
does believe that on account of the personal bias, prejudice or interest of the judge such
9
party cannot obtain a fair and impartial trial or fair and impartial enforcement of post-
judgment remedies. Such affidavit shall state the facts and the reasons for the belief that
bias, prejudice or an interest exists." K.S.A. 20-311d(c).
His contention falls in alignment with subsection (5). That is, he believes that the
judge had a duty to recuse himself because after being exposed to counsel's statements
regarding the possible weaknesses of their departure request, the judge would be unable
to analyze the arguments offered at Cox's sentencing hearing through a neutral lens. We
are not persuaded.
Following our review of the entire record, as the governing standard of review
directs us to do, we conclude there is no evidence of bias or prejudice on the part of the
presiding judge, and defendant's assertion to the contrary is simply a matter of conjecture
and speculation. In truth, what the record reveals is that the judge did not even recall the
statements defendant highlights as prejudicial enough to require recusal. If those remarks
were not so significant as to take root in the judge's memory, it is unlikely they later led
to bias. This conclusion is also substantiated by the fact that the sentencing transcript
does not contain any reference by the judge at the sentencing hearing to the complained
of comments by counsel. In short, the record fails to support a finding that the evidence
adduced at the prior proceeding adversely impacted the judge's ability to be impartial at
the later sentencing proceeding. For the same reason, the chief judge in that judicial
district likewise did not err when he declined to order the presiding judge to recuse
himself. The foundation for the defendant's motion was beliefs and speculation, not
actual evidence, as required to obtain the relief sought.
We have previously declined to allow such suppositional claims to pave the way
for relief. In Logan v. Logan, 23 Kan. App. 2d 920, 931, 937 P.2d 967 (1997), the
appellants unsuccessfully moved to request recusal of a district court judge who had
heard a hearing in the case and decided against them. The appellants argued the judge's
10
conclusions from the previous probate case showed "'that the judge had already made up
his mind as to all the crucial issues'" in their case. 23 Kan. App. 2d at 931. But a panel of
this court wrote that these allegations were mere speculation, which cannot by itself
disqualify a trial judge. 23 Kan. App. 2d at 932.
The record before us does not support defendant's claim of error. The decision of
the district court, denying defendant's recusal motion, is affirmed.
Affirmed.
11