State v. Zugg

PER CURIAM:

Appeal from Saline District Court; Jerome P. Hellmer, Judge.
Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BUSER, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.

MEMORANDUM OPINION

PER CURIAM:

Lawrence Zugg appeals the district court's denial of his presentencing motion to withdraw his no contest pleas. As discussed below, we find no error in the district court's ruling that Zugg failed to show good cause to withdraw the pleas. Accordingly, we affirm the district court.

Factual and Procedural Background

Zugg pled no contest to attempted manufacture of methamphetamine and possession of ephedrine as a precursor to manufacture of a controlled substance. In exchange for the pleas, the State agreed, among other provisions, to dismiss numerous other charges against Zugg in this and one other criminal case.

On the day of the plea hearing, February 2, 2011, Zugg and his attorney signed a five-page Defendant's Acknowledgment of Rights and Entry of Plea that set out the terms of the plea agreement. This document stated that Zugg fully understood the terms of the plea agreement, the charges to be dismissed by the State, the charges to which he would plead no contest, and the presumptive sentences. Moreover, Zugg indicated that he understood and waived a myriad of constitutional rights. He also asserted, “[M]y decision to accept such plea bargain is completely voluntary without anyone having threatened me, without promise of benefit, without duress, and without coercion of any kind.”

Of particular relevance to this appeal, the Acknowledgment contained the following specific provision:

“After the Court accepts my plea and I am convicted as set forth above, the parties will jointly recommend that my bond ... be modified to an own recognizance [OR] bond pending sentencing, with the conditions that I be supervised as deemed appropriate by Saline County Court Services and that I participate in substance abuse treatment as recommended by the appropriate assessment.”

At the plea hearing, Zugg stated that he fully understood the implications of his pleas. Zugg also specifically confirmed the provision in the plea agreement which provided for the OR bond pending the sentencing hearing with the condition that Saline County authorities provide supervision and that he obtain substance abuse treatment as recommended.

The district court accepted Zugg's no contest pleas and convicted him of both drug charges. The district court then followed the parties' plea agreement and released Zugg on an OR bond.

A few days after the plea hearing, Zugg admitted to his court services officer that he had smoked a form of synthetic marijuana. This was prohibited by the terms of his OR bond. As a result, the State filed a motion to revoke the OR bond, and, after a hearing, the district court granted the motion. Zugg was jailed and did not appeal this ruling.

Shortly thereafter, Zugg filed a motion to withdraw his pleas before sentencing. According to the motion:

“Defendant believes good cause exists to withdraw his plea herein because defendant did not get the benefit of the bargain in the plea agreement. A primary consideration for defendant to enter into the plea agreement was ... to obtain the own recognizance bond to allow defendant an opportunity to spend time with defendant's family, and to seek inpatient drug and alcohol treatment to establish a substantial and compelling reason to justify a durational departure at the time of sentencing.

“It is defendant's position that the State had no basis to seek the revocation of defendant's own recognizance bond. Further, it is defendant's position that the State tricked defendant into entering into the plea agreement herein, with the intent to revoke defendant's own recognizance bond without cause. Lastly, it is defendant's position that the Court erred in revoking defendant's bond as there was no basis to do so.”

At the hearing on the motion to withdraw pleas, Zugg personally addressed the district court. He admitted, “I accidentally smoked potpourri, it wasn't intentional but I screwed up, okay.... Now I understand I screwed up and you guys took my bond but you didn't have to deny me the treatment, because that's what I needed in the first place.” Zugg clarified that he was not disputing the revocation of his OR bond. Rather, “my good cause is the fact that [the State] didn't let me attend inpatient treatment ..., I wasn't asking to get out of jail, I was asking to attend the [treatment] facility.

The State argued, “Judge, it is absolutely ludicrous to the State that Mr. Zugg can sit here and blame the State for his voluntary actions and his voluntary choices. The State has done nothing to violate the provisions of the plea agreement.... Mr. Zugg received the benefit of the plea agreement and his bond was revoked by his own voluntary actions....”

The district court denied Zugg's motion to withdraw his pleas. The district court explained to Zugg:

“You stipulated that you did violate a condition of your bond, you were revoked and you were placed back in custody. That framework leaves us in a position where the court had no alternative or opportunity to allow you to proceed to a treatment facility and as such the only person or party who had control over that matter would have been you during your OR bond.

“You received the benefit of the doubt, there is no finding by this court that there was any collusion or some type of an agreement to set you up to fail....

“The reality is that the State ... gave you a significant benefit of the bargain, you accepted that benefit of the bargain but you just simply ... weren't able to comply with it.

“That being the case, the court cannot find under all these conditions that good cause has been shown....”

The court then proceeded to sentencing, rejected Zugg's motion for a downward departure from his presumptive prison sentence, and ordered him to serve concurrent sentences of 162 months in prison for attempted manufacture of methamphetamines and 49 months for possession of ephedrine.

Zugg appeals the denial of his motion to withdraw pleas.

Denial of Motion to Withdraw Pleas

On appeal, Zugg does not reprise the arguments he made in the district court that the court erred by revoking his OR bond or that the State tricked him into accepting the plea agreement with the intent to revoke the bond without cause. An issue not briefed by the appellant is deemed waived or abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).

Before our court, Zugg now contends:

“The district court abused its discretion by failing to take into account the circumstances that induced Mr. Zugg into entering into the plea agreement. Mr. Zugg was willing to waive his rights, and enter a plea of no contest, simply to have an opportunity to get treatment for his addiction issues. The district court failed to give adequate weight to [the] fact that Mr. Zugg was forthright and honest about the ‘potpourri’ and the fact that he had violated his bond. Because a desire for treatment was the sole motivating factor in Mr. Zugg's acceptance of the plea, the district court erred in refusing to allow Mr. Zugg to withdraw his plea.”

Prior to sentencing, a district court may, in the exercise of sound judicial discretion, allow a defendant to withdraw a plea of guilty or nolo contendere “for good cause shown.” K.S.A.2009 Supp. 22–3210(d). When determining whether the defendant has shown good cause, Kansas courts generally consider three factors, commonly referred to as the “ Edgar factors”—after 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. [Citations omitted.]” State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010). These “ ‘factors need not apply in a defendant's favor in every case, and other factors may be duly considered in the district judge's discretionary decision on the existence or nonexistence of good cause.’ [Citation omitted.]” State v. Macias–Medina, 293 Kan. 833, 837, 268 P.3d 1201 (2012).

Appellate courts will not disturb a ruling on a presentencing motion to withdraw plea unless the defendant sufficiently demonstrates that the district court abused its sound discretion. Macias–Medina, 293 Kan. at 836, 268 P.3d 1201. “Judical discretion is abused where no reasonable person would take the district judge's view. [Citations omitted.]” State v. Denmark–Wagner, 292 Kan. 870, 875, 258 P.3d 960 (2011).

At the outset, Zugg does not allege which, if any, of the three Edgar factors apply to his claim of error. With regard to the first factor, on appeal Zugg makes no allegation of defense counsel's ineffectiveness. As to the second factor, on appeal Zugg has abandoned his previous claim that the State impermissibly induced the plea agreement in order to improperly revoke his OR bond. The third factor is not implicated because Zugg has never claimed that he did not understand or knowingly consent to the provisions of the plea agreement. Moreover, with regard to all three Edgar factors, our review of the plea and motion to withdraw plea proceedings reveals no evidence to support any impropriety or insufficiency that might warrant a finding of good cause to allow withdrawal of Zugg's pleas.

We are left with Zugg's legal complaint that the district court abused its discretion because it did not find Zugg's claim meritorious. That claim—the only reason Zugg pled no contest was to obtain drug treatment and he did not receive treatment because he was in jail as a consequence of violating his OR bond. Of note, Zugg does not cite to any Kansas or foreign caselaw which supports his claim of an abuse of discretion under similar circumstances. And we know of none.

The record reflects that Zugg and the State entered into a detailed and comprehensive written plea agreement. From Zugg's point of view, this plea agreement was obviously structured to allow him to bond out of jail and to obtain drug treatment in order to present a persuasive case to the district court at sentencing that he should be allowed to continue treatment if granted probation. This particular benefit of the bargain was lost, however, not by any violation of the plea agreement by the State or abuse of discretion by the district court. On the contrary, this particular benefit of the bargain was lost by Zugg's conduct in violating his OR bond, which resulted in incarceration and which necessarily precluded him from obtaining inpatient drug treatment. Under these circumstances we can find no abuse of discretion by the district court in failing to find good cause to allow Zugg to withdraw his pleas.

Affirmed.