Ramdorsingh v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 117,695

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ELIJAH N. RAMDORSINGH,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed April 20, 2018.
Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.

Rachel L. Pickering, assistant solicitor general, Michael F. Kagay, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before LEBEN, P.J., GARDNER, J., and BURGESS, S.J.

PER CURIAM: Elijah N. Ramdorsingh appeals the summary denial of his
postsentencing motion in which he requested three options for relief in the alternative: (1)
that the district court vacate his sentence and dismiss his case with prejudice; (2) that the
district court vacate his sentence and remand for resentencing; or (3) that the district court
allow him to withdraw his no contest pleas. Ramdorsingh explicitly requested relief
under K.S.A. 2017 Supp. 60-1507, but he never cited K.S.A. 2017 Supp. 22-3210(d)(2).
On appeal, however, Ramdorsingh argues that the district court should have interpreted
his motion as a motion to withdraw pleas under K.S.A. 2017 Supp. 22-3210(d)(2).
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Ramdorsingh also argues the district court erred when it summarily denied his motion
based on its belief that his underlying arguments, which primarily concerned his plea
counsel's representation, were conclusory.

Nevertheless, even though Ramdorsingh's postsentencing motion was brought
under both K.S.A. 2017 Supp. 60-1507 and K.S.A. 2017 Supp. 22-3210(d)(2), his
arguments were conclusory or otherwise disproved by the record in this case. The
summary denial of Ramdorsingh's postsentencing motion is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2010, the State charged Ramdorsingh with one count of possession
of cocaine and one count of driving while suspended in Shawnee County case No. 10 CR
1630. In January 2011, the State charged Ramdorsingh in Shawnee County case No. 11
CR 95 with two counts of kidnapping, two counts of conspiracy to commit kidnapping,
two counts of aggravated burglary, two counts of conspiracy to commit aggravated
burglary, two counts of theft, two counts conspiracy to commit theft, and two counts of
criminal possession of a firearm.

Michael Serra was appointed by the district court to represent Ramdorsingh in
case No. 10 CR 1630. Initially, Serra was appointed to represent Ramdorsingh in case
No. 11 CR 95 as well. Serra eventually withdrew as Ramdorsingh's counsel in both cases
because of a conflict of interest. David McDonald was then appointed to represent
Ramdorsingh in both cases. For reasons unclear from the record on appeal, Serra
withdrew as Ramdorsingh's counsel in the case No.11 CR 95 case in July 2011, but he
did not officially withdraw as counsel in case No. 10 CR 1630 case until November 2011.
Regardless, in case No. 11 CR 95, the district court appointed McDonald to represent
Ramdorsingh immediately after allowing Serra to withdraw as counsel. McDonald then
entered into plea negotiations with the State on behalf of Ramdorsingh. The plea
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negotiations ultimately resulted in Ramdorsingh accepting a plea agreement where his
case Nos. 10 CR 1630 and 11 CR 95 cases were consolidated for purposes of sentencing.

Under the terms of Ramdorsingh's plea agreement, in exchange for pleading no
contest to one count of possession of cocaine in case No. 10 CR 1630 and pleading no
contest to two counts of aggravated burglary in case No. 11 CR 95, the State agreed to
dismiss the remaining charges against Ramdorsingh in both cases and consolidate the
cases for purposes of sentencing. The State further agreed to recommend that
Ramdorsingh's sentences run concurrently. The plea agreement Ramdorsingh signed
stated under the "sentencing agreement" section that Ramdorsingh "serve the standard
number of months according to the Kansas Sentencing Guidelines in the custody of the
Kansas Department of Corrections (KDOC)." Immediately following this provision, the
sentencing agreement stated Ramdorsingh's "understanding [was] that the parties [would]
recommend a sentence of 57 months not including credit received for good time earned
or time spent in the Shawnee County jail."

At the outset of Ramdorsingh's October 13, 2011 plea hearing, McDonald
requested additional time to discuss the plea agreement with his client because the plea
agreement had just "been reduced to writing." Accordingly, the district court took a
recess. After the recess, the district court began the plea colloquy asking Ramdorsingh
questions regarding being convicted solely upon the State's factual basis and the
difference between pleading guilty and no contest. Following the State's factual basis, the
district court asked Ramdorsingh if he understood that the court would be ruling on his
guilt based solely upon the factual basis. Ramdorsingh responded he understood, but the
district court questioned him further because it noted that Ramdorsingh had "hesitated for
a moment" in his response.

During the exchange that ensued, Ramdorsingh told the district court McDonald
was "advising [him] that—stick to the plea agreement and plead no contest." The district
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court then asked Ramdorsingh whether he understood he had the right to go to trial,
whether he wanted to go to trial, whether he needed more time to think about entering his
pleas, and whether he had any questions of the court. Ramdorsingh responded that he
understood he had the right to go to trial but did not want to go to trial. Ramdorsingh
further responded that he did not need more time to think about entering his pleas and had
no questions of the court. In the end, the district court accepted Ramdorsingh's no contest
pleas, finding him guilty of the one count of possession of cocaine in case No. 10 CR
1630 and the two counts of aggravated battery in case No. 11 CR 95.

On November 18, 2011, the district court was set to sentence Ramdorsingh when
McDonald advised the court that the defense needed a continuance. McDonald explained
that during plea negotiations there were "last minute changes" which resulted in
Ramdorsingh's ability to request a departure being removed from the plea agreement.
McDonald stated that he had spoken to Ramdorsingh "about this issue and explained it to
him and stated [that he did not] think [they could] file [a departure]" given the terms of
the plea agreement. Nevertheless, McDonald stressed to the district court that
Ramdorsingh wanted him to file a departure motion. McDonald explained that he was
unwilling to file a departure motion on Ramdorsingh's behalf "without any sort of leave
of the Court or without knowledge of any repercussions of filing a departure." The State
responded that "the idea that [Ramdorsingh] didn't know" he could not depart was
"specious" given that the plea agreement required that he serve 57 months in the custody
of the KDOC. The State then indicated that if a departure motion was filed, it might move
to set aside the plea agreement based upon Ramdorsingh's breach.

Next, Ramdorsingh requested and was granted the opportunity to address the
district court. While addressing the court, Ramdorsingh stated, "I don't know where this
bre[a]ch of the whole agreement came in." Ramdorsingh alleged that he, McDonald, and
the State all understood he would be able to move for a departure when he entered into
the plea agreement. The district court interrupted Ramdorsingh, telling him that it was not
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going to sentence him that day because Ramdorsingh was considering filing a departure.
The district court then warned Ramdorsingh, however, "what you've heard this morning
is, if you file that departure motion, the State may be asking the Court for additional
considerations." The district court advised Ramdorsingh that he should "think about what
you are really asking the Court to do, consider what ramifications might flow from that
by the State."

Before the next sentencing hearing, Ramdorsingh filed a pro se motion for a
dispositional departure, or alternatively, a durational departure. The State responded that
Ramdorsingh's motion constituted a breach of the plea agreement and requested the
district court to quash the motion as a breach of the plea agreement. The State further
argued that if the district court construed Ramdorsingh's motion as a motion to withdraw
plea, he had not established good cause to withdraw his plea.

McDonald filed a motion in response to the State. In his motion, McDonald noted
that he had discussed the "filing a departure with [Ramdorsingh] as it was commonly part
of potential plea agreements." Yet, McDonald asserted that the plea agreement clearly
prohibited the filing of departure motions as it required Ramdorsingh to serve his
sentence in the custody of the KDOC. McDonald believed that he was ethically
prohibited from arguing on behalf of Ramdorsingh's pro se departure motion. To remedy
the situation, McDonald asserted that the district court should either allow Ramdorsingh
to argue his pro se departure motion even though it would be opposed by the State or
allow Ramdorsingh to withdraw his no contest pleas while also appointing new counsel.

Ramdorsingh's joint sentencing hearing for his case Nos. 10 CR 1630 and 11 CR
95 proceeded on December 21, 2011. At the beginning of his sentencing hearing, the
district court addressed Ramdorsingh's pro se motion for a dispositional departure. After
recapping both McDonald's and the State's positions, the district court explained that it
was "going to have to clarify for purposes of proceeding what [Ramdorsingh's] intentions
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[were]. Since both parties have suggested that there might be an issue as to whether
[Ramdorsingh was] seeking to withdraw his plea." The district court explained it would
not consider the issue of whether Ramdorsingh wanted to withdraw his no contest pleas
"on a contingent basis and make optional or alternative rulings." Accordingly, the district
court directly asked Ramdorsingh if he was wanting to withdraw his no contest pleas.

After asking this question, the following exchange between the Ramdorsingh and
the district judge occurred:

"THE DEFENDANT: No, sir. Me and my lawyer talked, and we said that we
just wanted to continue with the plea that we agreed to, which is that I'd be able to argue
anything at sentencing.
"THE COURT: Well, do you understand then that with regard to the law, it is a
lower standard that you would have to withdraw a plea at this point and time, than it
would be after sentencing? If you're dissatisfied with the outcome at sentencing, and then
would seek to withdraw your plea, you would have to demonstrate a much higher or
greater burden to get that relief. At this point, you would have to demonstrate good cause
for withdrawal of a plea. I make no representations in anything I've said how I would
receive that. We would have to have a separate hearing. But I do want to make sure that
you understand that if your intention is to withdraw a plea, the standard at this point is
good cause, which is a lower burden of proof than the standard would be after sentencing
is imposed, which would be a requirement that you demonstrate manifest injustice.
"So with those things, I want to first ask you, do you understand what I just said?
"THE DEFENDANT: Yes, sir. I understand what you're saying.
"THE COURT: And with all that has been said, the confusion at least as to
whether there was an agreement to ask for a specific remedy of 57 months in prison as a
result of the plea, and I told you at the time I took the plea agreement, that the Court may
or may not accept that, do you recall that?
"THE DEFENDANT: Yes, sir.
"THE COURT: It's fair game to argue, perhaps, but the Court is never required
to accept any party's argument. I have full authority to impose the maximum penalty
allowed by law; do you understand that?
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"THE DEFENDANT: Yes, sir.
"THE COURT: Now, do you understand Mr. McDonald's position that he has
taken? He has represented to the Court that he believes in good faith when the plea
agreement was signed, the inquiry was made by the Court, that he believed that you had
agreed to serve 57 months in the penitentiary, less good time, or less credit for time
served, which I believe everyone estimated would require about a 44-month prison
sentence; do you understand that?
"THE DEFENDANT: Well, it was never agreed that was—that would be the
maximum time to set in, but we'd be able to argue whatever we wanted, and that's what
he said to me. And that's the agreement that we came to, was the best part, would be able
to argue whatever you want.
"THE COURT: What I'm saying to you though is, in his representations to the
Court, is he said I thought we had a deal, as representative of the defendant, to serve a 57-
month prison sentence, that some of the other discussions prior to the time the agreement
was reached, included an option to file a departure motion and make arguments. And he's
saying that he has a disagreement in some way with you and your position, because you
want to file and argue for departure motion. And I'm going to allow you to do that, I've
already told you that, argue for a departure motion.
"Some of the reasons that you have set out in your departure motion, I'm
assuming Mr. McDonald will agree, are reasons that he is recommending that the Court
adopt the certain sentence that you impose. You're arguing that you had a juvenile
conviction and that that should be weighted less in the overall spectrum of your case,
because you were young, and the Court should take that into consideration in accepting
your plea agreement and accepting the agreement to impose the 57 months. This
prosecutor, when we open the floor for argument, I'm sure is going to ask that the Court
impose a sentence longer than 57 months if you pursue your departure motion. Do you
understand all that?
"THE DEFENDANT: Yes, sir.
"THE COURT: So you do not want to withdraw your plea; is that correct?
"THE DEFENDANT: Yes, sir.
"THE COURT: Okay. And you're ready to pursue your departure motion?
"THE DEFENDANT: Yes, sir."

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The State asked how the district court would rule on its motion to quash
Ramdorsingh's pro se departure motion. The district court ruled that it would deny the
State's motion to quash, stating, "[I]f the defendant is wishing to pursue a request for a
departure, he has the burden of proof on that departure, and [the State] certainly, because
the Court has not tried to enforce the agreement in all respects, [is] free to argue whatever
you want." The State responded by arguing (1) that the district court should deny
Ramdorsingh's dispositional departure motion because his behavior established he was
not entitled to a departure, and (2) that the district court should impose the standard
presumptive sentence for each of his convictions, running each sentence consecutively.
The State asserted it was not "bound by" sentencing terms of the plea agreement because
Ramdorsingh had "renege[d] on [it]."

McDonald made arguments on Ramdorsingh's behalf concerning the merits of
Ramdorsingh's pro se motion for a departure. The district court then directly asked
Ramdorsingh why he should be granted his departure request. Ramdorsingh began telling
the district court that he was not being "greedy" by asking for the departure because being
able to ask for a departure was part of the "deal that came to [him] on the table." The
district court responded that it "kn[e]w there [was] some confusion, but [it was] letting
[Ramdorsingh] tell [the court] why [it] should depart." Ramdorsingh responded, "Okay.
You want me to stick to that?" The district court again recognized that there was some
earlier confusion, but now Ramdorsingh could go ahead and address the court.
Ramdorsingh proceeded to tell the district court why it should grant his departure request.

After both parties presented their arguments, the district court denied
Ramdorsingh's departure motion. It then sentenced Ramdorsingh to the standard
presumptive sentence for his possession of cocaine conviction in case No. 10 CR 1630
and the aggravated presumptive sentence for his aggravated burglary convictions in case
No. 11 CR 95. The district court ran all of his sentences consecutively, resulting in a
combined controlling sentence for case Nos. 10 CR 1630 and 11 CR 95 of 105 months'
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imprisonment followed by 24 months' postrelease supervision. As the district court was
explaining to Ramdorsingh his appeal rights, Ramdorsingh interrupted the court and
asked, "Can I withdraw my plea?" The court told Ramdorsingh that his "request [was]
denied," and he would have to formally file a motion to withdraw plea if he wanted to do
so now.

Ramdorsingh appealed his sentences in case Nos. 10 CR 1630 and 11 CR 95 in a
consolidated appeal. Because Ramdorsingh merely challenged his presumptive sentences
under the Kansas Sentencing Guidelines Act grid, the Kansas Supreme Court dismissed
Ramdorsingh's appeal for lack of jurisdiction under Supreme Court Rule 7.041A (2013
Kan. Ct. R. Annot. 63). State v. Ramdorsingh, No. 107,914, 2014 WL 349794 (Kan.
2014) (unpublished opinion). The mandate was issued on February 24, 2014.

On May 9, 2014, Ramdorsingh filed a pro se motion entitled "Motion to Correct
Manifest Injustice Pursuant to 60-1507." On February 5, 2015, Ramdorsingh, still acting
pro se, moved to amend his motion. Both motions involve his sentences in case Nos. 10
CR 1630 and 11 CR 95. Ramdorsingh initially filed separate substantively identical
motions in each case. Eventually, his cases were consolidated upon the district court's
order.

In his amended motion, Ramdorsingh asked for three different types of relief in
the alternative: (1) that the district court vacate his sentence and dismiss all charges; (2)
that if this relief was impossible, that the district court "vacate [his] sentence and remand
for [a] new sentencing hearing before a new judge with direction[s] that a hearing and
ruling be made [that he] breach[ed the] plea before freeing the State of their obligations";
and (3) that if this relief was impossible, that the district court allow him to withdraw his
pleas. Ramdorsingh asserted that he was entitled to relief because (1) McDonald provided
ineffective assistance of plea counsel; (2) the prosecutor, Todd Hiatt, committed
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misconduct; (3) the district court never explicitly stated that he was in breach of his plea
agreement; and (4) his sentence was illegal.

Concerning McDonald's representation, Ramdorsingh alleged that McDonald
actually believed that he could depart as part of his plea agreement, but McDonald
refused to make the departure arguments because Hiatt would not allow it. According to
Ramdorsingh, McDonald did not want to ruin his relationship with Hiatt, who allegedly
used to be McDonald's college professor and worked as opposing counsel in many cases
together. Moreover, Ramdorsingh asserted that McDonald's motion in response to the
State, where he agreed with the State that a departure motion was not allowed by the plea
agreement, was filed without his knowledge. Last, many times Ramdorsingh alleged that
Serra could support his contention that moving for a departure was part of the plea
agreement.

Contained within Ramdorsingh's pro se motion to amend was a request for
counsel. The district court immediately appointed Josh Saiden to represent Ramdorsingh.
Saiden filed a second motion to amend on April 25, 2016; in this motion, Saiden focused
on Ramdorsingh's right to conflict-free counsel.

The State responded that the district court should deny the second motion to
amend because (1) the second amended motion was filed past the K.S.A. 60-1507 time
limitations, and (2) the claims concerning conflict-free counsel did not relate back to any
of the claims raised in Ramdorsingh's pro se motions. Regarding the arguments
Ramdorsingh made in his pro se motion, the State asserted that all of Ramdorsingh's
arguments were "conclusory, barred by res judicata, or otherwise facially without merit."

On December 12, 2016, the district court summarily denied Ramdorsingh's
requests for relief. First, the district court ruled that Ramdorsingh's second motion to
amend was not timely filed. Next, the district court found that all but one of
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Ramdorsingh's timely filed arguments were conclusory. The only argument that the
district court found non-conclusory was Ramdorsingh's assertion that McDonald filed the
motion without his knowledge. The district court determined that "this statement is not an
evidentiary basis for any of [Ramdorsingh's] remaining claims."

On February 10, 2017, Saiden filed a notice of appeal on behalf of Ramdorsingh,
requesting that Ramdorsingh be allowed to appeal out of time. The district court held a
hearing and found that Ramdorsingh could appeal out of time because Saiden provided
statutorily deficient counsel by not filing a timely appeal. See Albright v. State, 292 Kan.
193, 203, 251 P.3d 52, 59 (2011) (citing Guillory v. State, 285 Kan. 223, 228, 170 P.3d
403 [2007]). Accordingly, this court retained Ramdorsingh's appeal.

DID THE DISTRICT COURT ERR BY SUMMARILY
DENYING RAMDORSINGH'S POSTSENTENCE MOTION?

Ramdorsingh's argues that the district court erred in two ways when it summarily
denied his postsentencing motion. First, Ramdorsingh argues that the district court should
have treated his postsentencing motion as a motion to withdraw pleas under K.S.A. 2017
Supp. 22-3210(d)(2). Second, Ramdorsingh provides analysis both under K.S.A. 2017
Supp. 22-3210(d)(2) and K.S.A. 2017 Supp. 60-1507 regarding why his arguments are
not conclusory despite the district court's findings to the contrary.

The State responds that the district court did not err by not construing
Ramdorsingh's motion as a motion to withdraw pleas because Ramdorsingh never
requested that the district court construe his motions in that manner. Next, the State
argues that summary denial of Ramdorsingh's motion was appropriate because each of
his arguments were conclusory. The State further argues that the record does not support
Ramdorsingh's allegations of ineffective assistance of counsel.

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Because Ramdorsingh's arguments are either conclusory or disproved by the
record in this case, the district court's summary denial of his postsentencing motion was
properly denied.

Construction of the Postsentencing Motion

"Whether the district court correctly construed a pro se pleading is a question of
law subject to unlimited review." State v. Gilbert, 299 Kan. 797, 802, 326 P.3d 1060
(2014). Pro se pleadings should be liberally construed, and courts should "'[give] effect to
the pleading's content rather than the labels and forms used to articulate the defendant's
arguments.'" Gilbert, 299 Kan. at 802.

K.S.A. 2017 Supp. 60-1507(a) states:

"A prisoner in custody under sentence of a court of general jurisdiction claiming
the right to be released upon the ground that the sentence was imposed in violation of the
constitution or laws of the United States, or the constitution or laws of the state of
Kansas, or that the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack, may, pursuant to the time limitations imposed by subsection (f), move
the court which imposed the sentence to vacate, set aside or correct the sentence."

Meanwhile, K.S.A. 2017 Supp. 22-3210(d)(2) states that "[t]o correct manifest
injustice the court after sentence may set aside the judgment of conviction and permit the
defendant to withdraw the plea." Generally, courts consider at least the three factors
outlined in State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006), "when considering
whether a defendant has demonstrated the requisite manifest injustice. These are: (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
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was fairly and understandingly made." State v. Bricker, 292 Kan. 239, 244-45, 252 P.3d
118 (2011).

In the context of this case, the time limit to bring a motion to withdraw plea under
K.S.A. 2017 Supp. 22-3210(d)(2) is the same as bringing a motion for relief under K.S.A.
60-1507. Both must be brought within a year of the termination of the last appellate
court's jurisdiction. K.S.A. 2017 Supp. 60-1507(f); K.S.A. 2017 Supp. 22-3210(e)(1).
Thus, if Ramdorsingh's postsentencing motion can be interpreted as a motion to withdraw
pleas under K.S.A. 2017 Supp. 22-3210(d)(2), it would be timely.

The State asserts Ramdorsingh has abandoned his ability to assert that his
postsentencing motion should have been construed as a motion to withdraw plea given
that neither Ramdorsingh nor his appointed counsel below made this argument.
Ramdorsingh's appellate attorney, on the other hand, points to language that he believes
establishes Ramdorsingh's postsentencing motion should be construed as a motion to
withdraw pleas. Oddly, Ramdorsingh's appellate attorney failed to point out that
Ramdorsingh explicitly requested to withdraw his plea until filing Ramdorsingh's reply
brief.

While there is a great deal of discussion as to whether Ramdorsingh properly
raised the issue of a request to withdraw plea, several matters are clear. First, the State's
assertion that Ramdorsingh never raised this issue is incorrect. Ramdorsingh explicitly
requested to withdraw his pleas on "the grounds of ineffective assistance of counsel" as
an alternative request for relief in his amended postsentencing motion. Second,
Ramdorsingh's appellate attorney's request to use the liberal construction doctrine. It is
not necessary to resort to this doctrine in that Ramdorsingh explicitly requested to
withdraw his pleas as an alternative request for relief. Third, Ramdorsingh cannot ignore
that his request to withdraw pleas was raised as an alternative request for relief.

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In addition to the request to be allowed to withdraw his plea, Ramdorsingh prayed
in the alternative for the dismissal of all of his charges based upon McDonald's and
Hiatt's alleged misconduct or the remand of his case to the district court for resentencing
with directions for a ruling on whether he was in breach of the plea agreement before
"freeing the State of their obligations." Regarding this second request for relief,
Ramdorsingh wanted a new sentencing hearing where the State was still bound by the
terms of the plea agreement. According to his pleadings, this was based on a combination
of McDonald's, Hiatt's, and the district court's errors. Clearly, Ramdorsingh's other
alternative requests for relief involved a collateral attack on his sentence that had nothing
to do with the withdrawal of his pleas. Therefore, these arguments fall under K.S.A. 2017
Supp. 60-1507. Ramdorsingh cannot argue that the district court should have construed
his entire motion as a motion to withdraw plea. Some of his claims can only be raised
pursuant K.S.A. 2017 Supp. 60-1507.

Ramdorsingh's postsentencing motion included alternative requests for relief with
two of his claims falling under K.S.A. 2017 Supp. 60-1507 and one claim falling under
K.S.A. 2017 Supp. 22-3210(d)(2). When the district court denied Ramdorsingh's
postsentencing motion, the district court denied the entire motion. Nevertheless, the
district court only considered Ramdorsingh's clams in the context of K.S.A. 2017 Supp.
60-1507 and never explicitly referenced his request to withdraw pleas as an alternate
relief. Ultimately, this has no effect on this appeal.

To begin with, Ramdorsingh has not requested a remand specifically for the
purpose of the district court making factual findings and legal conclusions on his
alternative request to withdraw pleas. Indeed, it seems that Ramdorsingh wants this court
to determine if he raised a motion to withdraw pleas argument and to then determine if he
was entitled to an evidentiary hearing based upon that motion to withdraw pleas
argument. Ramdorsingh states in his reply brief that "this Court is in [the] perfect position
to determine if the district court erred in failing to construe and rule" on his motion to
15

withdraw pleas claim, yet he still requests that this court remand for an evidentiary
hearing.

Next, our Supreme Court has held that a defendant's failure to comply with
Supreme Court Rule 165 (2018 Kan. S. Ct. R. 215) in the context of arguing a
postsentencing motion to withdraw plea results in the defendant's waiver of any
inadequate findings of fact or conclusion of law. See State v. Edwards, 290 Kan. 330,
335, 226 P.3d 1285 (2010), abrogated on other grounds by State v. Kelly, 291 Kan. 563,
244 P.3d 639 (2010). Under Supreme Court Rule 165(a), the district court "must state its
findings of fact and conclusions of law in compliance with K.S.A. 60-252." All the same,
a defendant also has a "burden and 'must ensure the findings and conclusions by the
district judge are sufficient to support appellate argument, by filing of a motion invoking
the judge's duty under Rule 165, if necessary.' State v. Seward, 289 Kan. 715, 721, 217
P.3d 443 (2009)." Edwards, 290 Kan. at 335. "When no objection is made to the
adequacy of the district court's findings, we can presume the district court found all facts
necessary to support its judgment." State v. Dern, 303 Kan. 384, 394, 362 P.3d 566
(2015). Thus, when Edwards failed to timely object to the district court's total lack of
findings in support of denying his motion to withdraw plea, Edwards lost all ability to
complain about the lack of factual findings on appeal. Edwards, 290 Kan. at 335. Here,
Ramdorsingh did not object to the district court's lack of findings and legal conclusions
on his alternative request to withdraw pleas. As a result, this court presumes the district
court found all facts necessary to support its judgment.

Notwithstanding the preceding, this court's review over the denial of
postsentencing motions collaterally attacking a sentence under K.S.A. 2017 Supp. 60-
1507 and postsentencing motions to withdraw plea under K.S.A. 2017 Supp. 22-
3210(d)(2) have the same standard of appellate review—the de novo standard of review.
When a defendant's postsentencing motion to withdraw plea is summarily denied without
argument and additional evidence:
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"[W]e apply the same procedures and accompanying standards of review used in cases
involving K.S.A. 60-1507. See State v. Jackson, 255 Kan. 455, 459, 874 P.2d 1138
(1994) ('The K.S.A. 60-1507 procedure governing hearings should apply to motions to
withdraw guilty plea filed after imposition of sentence.'). And we exercise de novo
review because we 'have the same access to the motion, records, and files as the district
court.' State v. Neal, 292 Kan. 625, 629, 258 P.3d 365 (2011). Like the district court, we
must determine whether [the defendant's] 'motion, records, and files conclusively show
that he is entitled to no relief.' See Neal, 292 Kan. at 629." State v. Moses, 296 Kan. 1126,
1127-28, 297 P.3d 1174 (2013).

In past cases where the district court failed to make findings of fact or conclusions
of law as to a defendant's specific claim, this court has at times considered that claim
anyway when it had de novo review over the issue. For example, in Merryfield v. State,
No. 115,680, 2017 WL 945755, at *1 (Kan. App. 2017) (unpublished opinion), rev.
denied 306 Kan. 1319 (2017), when the district court failed to "list its conclusions of law
as to each count of [Merryfield's 42 U.S.C. § 1983] complaint," this court considered
Merryfield's arguments nonetheless because "our standard of review is de novo." The
Merryfield panel continued by explaining that they

"would not defer to the district court's conclusions if they had been expressed; thus, we
need not actually know what those conclusions were. Our review, like the district court's
review at this stage, is based on the written motion and the case file, which we are
equally able to review." 2017 WL 945755, at *1.

In Burden v. State, No. 114,738, 2016 WL 7324420, at *2 (Kan. App. 2016)
(unpublished opinion), this court considered Burden's K.S.A. 60-1507 motion despite the
fact the district court summarily denied his motion by merely stating: "'Amended Petition
Denied.'" The Burden court explained that even though the district court did not comply
with Supreme Court Rule 183(j) (2015 Kan. Ct. R. Annot. 271)—the rule requiring the
district court to make factual findings and conclusions of law on all issues presented in
K.S.A. 60-1507 motions—it could still consider Burden's claims given that this court
17

exercises de novo review over the summary dismissal of K.S.A. 60-1507 motions. 2016
WL 7324420, at *2. Moreover, both the Merryfield and the Burden courts noted that
remand in such situations would not be in the interest of judicial economy. Merryfield,
2017 WL 945755, at *1; Burden, 2016 WL 7324420, at *2. Cf., McRae v. State, No.
112,709, 2016 WL 299073, at *7 (Kan. App. 2016) (unpublished opinion).

Clearly, this case is distinguishable from Merrifield and Burden given that in those
cases, the district court did not fail to consider an alternative claim for relief while
denying Merrifield's and Burden's motions. But, in at least one case, this court has
considered a defendant's arguments concerning his plea counsel's performance under both
K.S.A. 60-1507 and K.S.A. 22-3210(d)(2), even though below, the district court only
considered the defendant's arguments in the context of K.S.A. 60-1507. In Kelley v. State,
No. 105,300, 2012 WL 1970058, at *1 (Kan. App. 2012) (unpublished opinion), Kelley,
acting pro se, filed a motion under K.S.A. 60-1507. In this motion, Kelly argued that his
attorney was ineffective for failing to request a competency evaluation before he entered
his no contest plea. The district court construed Kelley's motion solely as a K.S.A. 60-
1507 motion. The district court then denied it on the merits after an evidentiary hearing.
On appeal, the Kelley court considered and rejected Kelley's arguments under K.S.A. 60-
1507, but it also considered and rejected his arguments under K.S.A. 2011 Supp. 22-
3210(d)(2). 2012 WL 1970058, at *1, 3. The Kelley court explained that it could address
Kelley's arguments under K.S.A. 22-3210(d)(2) because "[a]lthough the district court did
not specifically address the factors bearing on a motion to set aside a plea in that context,
its findings on the 60-1507 cover the same territory." 2012 WL 1970058, at *3.

Similarly, in this case, the district court's findings in support of its denial of
Ramdorsingh's K.S.A. 2017 Supp. 60-1507 claims cover the same territory that any
findings in support of denying Ramdorsingh's request to withdraw pleas would have.
Although Ramdorsingh requested three distinct alternatives for relief, his arguments
supporting why he was entitled to such relief were the same. That is, Ramdorsingh
18

argued that the district court should vacate his sentence and dismiss all his charges,
should vacate his sentence and remand for resentencing, and should vacate his sentence
and allow him to withdraw his pleas for the same reasons. Those reasons being that
McDonald was ineffective, Hiatt committed misconduct, and the district court should
have explicitly ruled whether he had breached his plea agreement. According to
Ramdorsingh, this also made his sentences illegal.

Although the district court did not specifically consider Ramdorsingh's alternative
request to withdraw his no contest pleas, it did address each of his arguments about
McDonald being ineffective, Hiatt committing misconduct, the district court erring at
sentencing, and his sentences being illegal while denying Ramdorsingh relief under
K.S.A. 2017 Supp. 60-1507. Consequently, the district court's findings supporting the
denial of Ramdorsingh's K.S.A. 2017 Supp. 60-1507 motion also address his arguments
under K.S.A. 2017 Supp. 22-3210(d)(2).

This court can consider Ramdorsingh's arguments under K.S.A. 2017 Supp. 22-
3210(d)(2) below, despite the district court's lack of findings and legal conclusions
concerning his alternative request to withdraw pleas. Moreover, although it appears that
Ramdorsingh only wishes this court to construe his postsentencing motion as a motion to
withdraw pleas, because Ramdorsingh continues to make arguments why the district
court erred by summarily denying his motion under K.S.A. 2017 Supp. 60-1507, this
court shall consider his arguments under K.S.A. 2017 Supp. 60-1507 below as well.

Motion Properly Denied

In his brief, Ramdorsingh has divided his arguments into two sections—why the
district court erred by summarily denying his motion under K.S.A. 2017 Supp. 60-1507
and why the district court erred by summarily denying his motion under K.S.A. 2017
Supp. 22-3210(d)(2).
19

Concerning K.S.A. 2017 Supp. 60-1507, Ramdorsingh's argument hinges solely
on whether McDonald provided ineffective assistance of counsel. Ramdorsingh asserts
that if "plea communications between McDonald and [him] had been addressed in a more
reasonable manner, and the particulars of that agreement had been fully flushed out prior
to the plea hearing date, the results would be palpably different." Ramdorsingh further
asserts that had the State's "aims" in entering the plea agreement with him, i.e., wanting
him to "accept responsibility and serve an agreed prison term in order to spare the victims
from testifying . . . been fully explained [to him] prior to the day of the plea hearing, [he]
could and would have fully understood and taken advantage of the [S]tate's largesse."

Concerning K.S.A. 2017 Supp. 22-3210(d)(2), Ramdorsingh asserts that he was
entitled to an evidentiary hearing on his motion to withdraw pleas claim for the following
reasons: (1) because "the [S]tate prosecutor deceived him into taking a plea, with no
intention of fulfilling the [S]tate's promises"; (2) because McDonald misrepresented "his
interests in order to protect his relationship with . . . Hiatt," which constituted
misconduct; and (3) because his pleas were not understandingly made. In making his
arguments, Ramdorsingh asserts that his plea hearing and sentencing hearings support
that he should be allowed to withdraw plea. Ramdorsingh seems to argue that he should
be granted an evidentiary hearing based on the claim that Serra was involved in plea
negotiations. However, "[t]here is nothing in the record with which to ascertain Serra's
role in the plea negotiations" for the court to consider.

In regard to Ramdorsingh's arguments concerning McDonald's performance, to
establish ineffective assistance of counsel, a defendant must prove (1) that counsel's
performance was deficient, and (2) that counsel's deficient performance resulted in
prejudice. Edgar v. State, 294 Kan. 828, 837, 283 P.3d 152 (2012). In his brief,
Ramdorsingh seemingly indicates that when considering his ineffective assistance of
counsel arguments under K.S.A. 22-3210, he would not have to prove prejudice under the
second-prong of the ineffective assistance of counsel test by citing the Cronic exception
20

regarding counsel's complete failure to advocate on his behalf. See United States v.
Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). Nevertheless, this
argument, as well as all of Ramdorsingh's other arguments, are without merit if they are
conclusory or disproved by the motions, records, and files of his case.

"Conclusory contentions without evidentiary basis are not sufficient for relief."
Gilkey v. State, 31 Kan. App. 2d 77, 82, 60 P.3d 351 (2003). Ramdorsingh's arguments
about Hiatt never intending to follow through with the terms of the plea agreement and
McDonald not representing his best interest because of his relationship with Hiatt are
clearly conclusory. In his amended motion, Ramdorsingh did not provide support for his
contention that Hiatt never intended to follow through with the terms of his plea
agreement. Additionally, assuming arguendo that Hiatt used to be one of McDonald's
college professors or that they were opposing counsel in many cases, these facts alone do
not support that McDonald and Hiatt were colluding with one another to ensure that
Ramdorsingh did not get the bargain of his plea agreement.

Ramdorsingh's argument about McDonald colluding with Hiatt is similar to a
claim raised by the defendant in State v. Sprague, 303 Kan. 418, 362 P.3d 828 (2015). In
that case, the defendant alleged that his attorney and the prosecutor were working
together "for [an] unknown personal reason" to "purposefully and intentionally refuse[] to
defend [him] and misuse[] [his] trust in [counsel] in asking [him] not to testify though
[he] voiced he wanted to and was prepared to." 303 Kan. at 426. Our Supreme Court
ruled that this allegation alone was not enough to merit an evidentiary hearing because it
was conclusory. 303 Kan. at 426. Here, although Ramdorsingh suggests that McDonald
did not act on his behalf for specific reasons, i.e., the former teaching relationship and the
sharing of multiple cases, he still has not provided any support for this contention. Like in
Sprague, Ramdorsingh's allegations about McDonald's and Hiatt's alleged misconduct are
conclusory.

21

Ramdorsingh's remaining arguments on appeal involve (1) his belief that
McDonald was ineffective for not better explaining the plea agreement and the State's
objective of entering into the plea agreement and (2) his belief that his pleas were not
understandingly made. Yet, in his pro se motion, Ramdorsingh did not make either of
these arguments. Although Ramdorsingh alleged McDonald was ineffective, he argued
that McDonald "purposely misrepresented [him]." It was not a matter of Ramdorsingh
not understandingly entering his pleas, or McDonald failing to proficiently explain the
pleas. It was a matter of McDonald and Hiatt sabotaging Ramdorsingh after he had
entered his pleas.

Because these arguments were not made below, Ramdorsingh cannot raise these
arguments for the first time on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d
987 (2014). Moreover, Ramdorsingh's failure to address why he is raising these
arguments for the first time on appeal violates Supreme Court Rule 6.02(a)(5) (2018 Kan.
S. Ct. R. 34), which requires appellants to explain why they did not raise an issue below.
In State v. Godfrey, 301 Kan. 1041, 1043-44, 350 P.3d 1068 (2015), our Supreme Court
explained that failure to comply with Rule 6.03(a)(5) results in an appellant failing to
properly brief his or her argument, resulting in abandonment of that argument. The
Godfrey court also explained that Supreme Court Rule 6.03(a)(5) must be strictly
enforced. 301 Kan. at 1044.

Even if Ramdorsingh had presented these arguments to the district court, his plea
hearing and sentencing hearing transcripts conclusively establish that he is not entitled to
relief. Ramdorsingh argues that if McDonald had provided him with a better
understanding of the plea agreement, he would have either not accepted the plea
agreement or "acceded to the [S]tate's terms, and the sentencing court would have been
more lenient in line with the written agreement." Throughout his brief, Ramdorsingh also
points to particular instances during his plea hearing and sentencing hearing as evidence
that he was misled by McDonald and confused when he entered his pleas. Of note,
22

Ramdorsingh often focuses on short excerpts of his plea and sentencing hearing
transcripts to stress there was a great deal of confusion surrounding his pleas. Yet, when
reviewing the entirety of his plea hearing and sentencing hearing transcripts, it is readily
apparent that Ramdorsingh understood what he was doing absent any ineffectiveness on
McDonald's part.

At his plea hearing, the only questions that Ramdorsingh had concerned being
found guilty, despite the fact he was pleading no contest, based upon the State's factual
basis. Ramdorsingh stated that he otherwise understood all the terms of the plea
agreement, including that he was required to serve time in the KDOC.

At the initial sentencing hearing, McDonald explicitly stated on the record that he
did not believe moving for a departure was part of Ramdorsingh's plea agreement with
the State. When Ramdorsingh addressed the district court, he contested McDonald and
Hiatt's contention concerning the ability to depart, and in doing so used the term
"bre[a]ch of . . . agreement." The district court also warned Ramdorsingh to consider the
ramifications of moving for a departure because the State would be asking for "additional
considerations." At the continued sentencing hearing, the district court provided
Ramdorsingh with more warnings and opportunities to change his mind about moving for
a departure. The district court also gave Ramdorsingh the opportunity to move to
withdraw his pleas. Because both the State and McDonald had suggested that
Ramdorsingh may want to withdraw his pleas, the district court directly asked
Ramdorsingh if he wanted to withdraw his no contest pleas. Ramdorsingh responded,
"No, sir. Me and my lawyer talked, and we said that we just wanted to continue with the
plea that we agreed to, which is that I'd be able to argue anything at sentencing."

The district court then told Ramdorsingh the following: (1) that if he chose to
withdraw his pleas now, his burden to withdraw his pleas was good cause as opposed to
manifest injustice; (2) that if he chose to pursue his departure motion, Hiatt would likely
23

ask for a sentence longer than the 57 months stated in the plea agreement; and (3) that
McDonald's position was that when he entered into the plea agreement, the plea
agreement did not allow him to move for a departure. Ramdorsingh responded (1) that he
understood each of the preceding, (2) that he still did not want to withdraw his plea, and
(3) that he still wanted to pursue his departure motion.

Turning back to Ramdorsingh's remaining arguments, the crux of these arguments
is that he was misled and did not know what he was doing when entering his pleas.
Ramdorsingh's answers at his plea hearing support that he understood the terms of his
plea agreement required he serve time in prison. More importantly, what Ramdorsingh
said and what he was told at his sentencing hearing wholly undermines his arguments that
but for McDonald's ineffectiveness, he would not have taken the plea agreement or
withdrawn his pleas.

To establish prejudice under the second prong of the ineffective assistance of
counsel test, a defendant must prove that "'there is a reasonable probability that, but for
counsel's deficient performance, the result of the proceeding would have been different.'
[Citation omitted.]" Edgar, 294 Kan. at 838. Here, regardless of what McDonald told
Ramdorsingh in private, at the sentencing hearings, McDonald clearly explained to the
district court and Ramdorsingh his position that a departure motion was not allowed
under the plea agreement. Likewise, the district court also explained McDonald's position
to Ramdorsingh. Indeed, the district court made a concerted effort to explain to
Ramdorsingh that McDonald did not believe he could argue for a departure under the
plea agreement after Ramdorsingh continued to state that he could move for a departure
agreement. Despite the district court's explanation, as well as multiple warnings that the
State would not likely follow the 57-month sentencing term set out in the plea agreement
if he continued to argue for a departure, Ramdorsingh rejected the opportunity to
withdraw his pleas before his sentencing and continued to argue for a departure.

24

Simply put, Ramdorsingh had been told the important information regarding the
consequences of his actions before he rejected the opportunity to withdraw his pleas and
started arguing for his departure motion. Ramdorsingh's appellate argument that he would
never have entered into the plea agreement but for McDonald's ineffectiveness is
unconvincing because when given the opportunity to withdraw his pleas before
sentencing based on the alleged confusion concerning the ability to move for a departure,
Ramdorsingh rejected the opportunity because he was insistent that he understood the
plea agreement. Ramdorsingh's argument that he might not have moved for a departure
but for McDonald's ineffectiveness is additionally unconvincing because even if
McDonald was ineffective, the district court explained the risks of moving for a
departure. Ramdorsingh ignored the district court's advice.

The summary denial of Ramdorsingh's postsentencing motion brought under both
K.S.A. 2017 Supp. 60-1507 and K.S.A. 2017 Supp. 22-3210(d)(2) is affirmed.

Affirmed.