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Kansas Supreme Court: Wrong Standard Used in Review of Plea Withdrawal Motion Requires Remand

The Court’s opinion was issued in an appeal brought by Christopher Herring. In November 2016, Herring was charged with aggravated battery. Attorney Brandon Hottman was appointed to represent him. Underlying the appeal were three pro se motions Herring filed in the district court to discharge Hottman.

The first motion claimed Hottman failed to allow Herring to review the audio and video recordings from the store he allegedly robbed. The district court ordered Hottman to allow Herring to review those recordings. The second motion argued that Hottman refused to file a motion to dismiss “for lack of evidence” and for requesting a continuance over Herring’s objections. The third motion repeated the earlier arguments and stated there was “bad communication” between Herring and Hottman. The district court denied the motions after a hearing on each of them.

Herring’s case went to trial in May 2017. After a jury was selected, Herring agreed to plead no contest to amended charges of robbery and aggravated assault. He attributed the plea to additional evidence the State had concerning a phone call Herring made to his sister from jail. Prior to sentencing, Herring moved pro se to withdraw his plea, alleging ineffective assistance of counsel. He alleged Hoffman was incompetent due to: (1) insufficient visitations, (2) failure to investigate an alibi defense, and (3) mischaracterization of the potential impact from the jail cellphone call.

The district court held a hearing and applied the three nonexclusive factors in State v. Edgar, 127 P.3d 986 (Kan. 2006). At issue here was the first Edgar factor: whether the defendant was represented by competent counsel. In addressing that issue, the district court considered the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). It then found Hottman’s representation “meets the objective standard of reasonableness.” The court denied Herring’s motion and sentenced him to 43 months’ imprisonment for robbery and a concurrent sentence of 13 months for aggravated assault.

Herring appealed. The Court of Appeals found the district court erred by applying the Strickland standard. The correct standard was the less stringent “lackluster advocacy” standard articulated in by the Kansas Supreme Court in State v. Aguilar, 231 P.3d 563 (Kan. 2010). The appellate court, however, found that error was harmless because the district court specifically found Hottman’s actions were “competent,” “effective,” “capable,” and that he had done a “good job” in representing Herring. The Kansas Supreme Court accepted Herring’s petition for review.

The Court noted that K.S.A. 2019 Supp. 22-3210(d) allows for withdrawal of a guilty or nolo contendere plea in the discretion of the court. The standards for granting withdrawal depends upon the timing of the motion, the Court explained. If the request is made after sentencing, the ineffective assistance of counsel standard in Strickland applies. Where the motion is made prior to sentencing, the “lackluster advocacy” standard in Aguilar applies.

The appellate court’s analysis was “wrong,” the Kansas Supreme Court said. The findings that Hottman’s advocacy was “competent ... effective ... capable,” and that he had done a “good job” relies upon the Strickland standard, not Aguilar’s “lackluster advocacy” standard. However, the Court explained that a problem exists because there is no case law supplying the exact meaning of lackluster advocacy. The Court stated that when an appellate court finds a district court has applied the wrong standard when considering withdrawal of a plea under Kansas law, the matter must be remanded to the lower court for review under the proper standard.

The Court instructed that 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.” On remand, the district court should consider Hottman’s failure to allow Herring to view the audio and video recordings until ordered to do so and his failure to not listen to the jail phone call until the morning of trial despite being provided a copy the week before.

The Court expressly stated that it provides no opinion on the merits of Herring’s plea withdrawal motion but observed that “this record at least shows circumstances that might be fairly characterized as ‘lackluster’ advocacy.”

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Related legal case

State v. Herring

 

 

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