State v. Llamas

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NOT DESIGNATED FOR PUBLICATION

No. 113,310

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DESIREE DANIELLE LLAMAS,
Appellant.

MEMORANDUM OPINION


Appeal from Shawnee District Court; MARC S. BRAUN, judge. Opinion filed January 8, 2016.
Affirmed.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before SCHROEDER, P.J., PIERRON, J., and HEBERT, S.J.

Per Curiam: In this direct criminal appeal, Desiree Danielle Llamas challenges
both the district court's denial of her presentence motion to withdraw her no-contest plea
to possession of methamphetamine and her resulting sentence. We affirm.

In April 2014, the State charged Llamas with one felony count of possession of
methamphetamine and misdemeanor counts of interference with law enforcement and
unlawful use of drug paraphernalia. The underlying facts are not well developed in the
record on appeal. According to a confidential affidavit filed with the complaint, the
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police officer received a description of a woman wanted on a felony warrant who was last
seen in a particular area of Topeka. Shortly thereafter, he saw a woman in that same area
who appeared to match the description. As he approached the woman to confirm or deny
his suspicions, the woman took off running. The officer soon caught up with the woman,
who eventually identified herself as Llamas. After the officer arrested Llamas on an
outstanding city warrant, another officer searched her and found a small plastic bag with
residue in it, which field tested positive for methamphetamine, and a glass smoking pipe.

Less than a month later, Llamas entered a plea agreement with the State. In return
for Llamas' no-contest plea to possession of methamphetamine, the State agreed to
dismiss the other two charges.

Before accepting Llamas' no-contest plea, the district court engaged in a rather
lengthy plea colloquy with her. Llamas acknowledged her understanding of the various
rights she was giving up and the possible sentence she faced by entering a plea. Llamas
assured the court that no one had forced, threatened, or coerced her to plead; nor had
anyone promised her a certain outcome. When asked about her court-appointed attorney,
Megan Walsh, Llamas responded that she was satisfied with her conversations with
Walsh.

Prior to her sentencing, however, the court allowed Walsh to withdraw and
appointed new counsel for Llamas so she could move to withdraw her plea based on
Walsh's alleged ineffective assistance. Pertinent to this appeal, Llamas complained that
Walsh failed to understand and explain to Llamas that she could move to suppress the
evidence against her based on discrepancies between the description of the woman the
officer was on the lookout for and Llamas. Llamas stated that had Walsh properly
advised of her right to seek suppression, she would not have entered a plea.

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The district court conducted an evidentiary hearing on Walsh's motion to withdraw
her plea. Notably, Llamas and Walsh gave sometimes conflicting testimony about what
they did or did not discuss prior to Llamas' plea.

For the most part, Llamas testified consistently with the allegations in her motion
to withdraw her plea. Llamas recalled that during her first of two 15- to 20-minute
meetings with Walsh at the jail, Llamas asked Walsh why the officer had stopped her that
day when she was not doing anything wrong. Llamas could not recall Walsh ever
mentioning that she could try to keep the evidence out as a result, i.e., move to suppress
the evidence based on the officer's supposed lack of reasonable suspicion to stop her.
Rather, it was only after Llamas had entered her plea and Walsh had provided her with a
copy of the officer's narrative and report that Llamas came to the conclusion that she did
not match the description of the wanted woman, nor was she heading in that woman's
anticipated direction of travel when the officer approached her. For example, the officer's
report described the wanted felon as a white female with dark hair who was
approximately 5 foot, 4 inches tall, 120 pounds, and wearing a pink tank top and blue
jeans. Llamas testified that she is 5 foot 6 inches tall, 105 pounds, Hispanic, and was
wearing a red tank top, brown hat, and jeans adorned by sparkles and rips. Llamas said
that if she had known of these discrepancies, she would have filed a motion to suppress
rather than entering a plea.

Walsh testified she and Llamas had discussed possible suppression issues during
their meetings at the jail. Those discussions came after Walsh had conducted 1 to 2 hours
of research and consulted with other attorneys in her office about possible suppression
issues. Walsh vaguely recalled that she and Llamas had discussed the officer's initial
contact with Llamas. But that initial contact was not focused on researching suppression
issues or discussing the issues with Llamas because Walsh believed the description in the
police report was similar to Llamas. Consequently, Walsh advised Llamas that a motion
to suppress would not be particularly strong or a "slam dunk," which Walsh could tell
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frustrated Llamas. The focus of their conversation then changed to whether Llamas
should enter a plea. At some point during that discussion, Llamas asked about appealing a
plea, but Walsh advised her it was difficult to withdraw a plea.

At the close of the hearing, the district court pronounced its findings in support of
its denial of Llamas' motion to withdraw her plea. In particular, the court highlighted the
conflicting testimony about what Llamas and Walsh did or did not discuss regarding
possible suppression issues. Noting that the merits of any suppression issue were not
before it, the court found Walsh had discussed suppression issues with Llamas. Although
the court did not expressly find Llamas not credible, it did highlight some inconsistencies
in Llamas' testimony about what she did or did not understand at the time of her
discussions with Walsh and at the evidentiary hearing on her motion to withdraw. In sum,
the court found Walsh was competent in that she "did exercise due diligence, did focus
on the issues, did do research and did have consultation with others and apparently
advised her client based on the information that she had."

The district court further found Llamas had not been "misled, coerced, mistreated
or unfairly taken advantage of" when she entered her plea, noting that, as is its normal
practice, it carefully went through a lengthy plea colloquy with Llamas before accepting
her plea—a process Llamas was already familiar with given her criminal history. Based
on the collective evidence presented at the evidentiary hearing, including the plea hearing
transcript, the court found Llamas' "plea . . . was fairly and understandingly made," and
she had not shown good cause to withdraw it.

The district court subsequently imposed a presumptive sentence of 18 months'
intensive-supervision probation subject to an underlying 20-month prison sentence.
Llamas appeals.

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Llamas first complains the district court abused its discretion in concluding she
had failed to establish good cause to withdraw her plea.

Standard of review

By statute, "[a] plea of guilty or nolo contendere, for good cause shown and within
the discretion of the court, may be withdrawn at any time before sentence is adjudged."
K.S.A. 2014 Supp. 22-3210(d)(1). Thus, we review a district court's denial of a motion to
withdraw a plea for an abuse of discretion. See State v. Macias-Medina, 293 Kan. 833,
836, 268 P.3d 1201 (2012). A district court abuses its discretion when: (1) no reasonable
person would take the view adopted by the judge; (2) a ruling is based on an error of law;
or (3) substantial competent evidence does not support a finding of fact on which the
exercise of discretion is based. State v. Huddleston, 298 Kan. 941, 960, 318 P.3d 140
(2014). The defendant has the burden of proving an abuse of discretion. Macias-Medina,
293 Kan. at 836. And when, as here, the district court makes factual findings based on
evidence presented at a hearing, we must defer to those findings as long as they are
supported by substantial evidence. See State v. Anderson, 291 Kan. 849, 855, 249 P.3d
425 (2011). In reviewing for substantial evidence, we cannot reweigh the evidence or
assess witness credibility. See 291 Kan. at 855.

As recognized by the district court here, certain factors can be considered by a
district court in exercising its discretionary decision on the existence (or lack thereof) of
good cause to withdraw a plea. Those factors, often referred to as the "Edgar factors"
include: (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. Freeman, 292 Kan. 24,
28, 253 P.3d 1 (2011) (citing State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 [2006]).
Notably, these factors have been deemed "viable benchmarks for judicial discretion," but
not all of these factors must be in the defendant's favor in every case and other factors
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may be considered by the district court in making its discretionary decision on the
existence or nonexistence of good cause. See State v. Aguilar, 290 Kan. 506, 511-13, 231
P.3d 563 (2010). In fact, as Llamas stresses in her brief, our Supreme Court has
recognized, "[m]erely lackluster advocacy . . . may be plenty to support the first Edgar
factor and thus statutory good cause for presentence withdrawal of a plea." 290 Kan. at
513.

Llamas focuses her argument on appeal primarily on the first factor, i.e., Walsh's
competence. According to Llamas, Walsh's failure to realize all of the discrepancies and
information in the police reports that may have strengthened a motion to suppress
rendered Walsh's advice on that issue incompetent. Particularly, Llamas complains that
Walsh rendered lackluster advocacy when Walsh essentially failed to fully investigate the
reports, discover the discrepancies, and discuss the favorable evidence with Llamas. See
Shumway v. State, 48 Kan. App. 2d 490, 498-99, 293 P.3d 772 (2013) (discussing how
counsel's responsibility to make tactical decisions withstands constitutional scrutiny in
habeas action under K.S.A. 60-1507 only to the extent of how well informed those
decisions were). As a result of Walsh's failure to properly advise her of the strength of the
State's case, Llamas argues she did not knowingly and understandingly enter her plea.
Accordingly, Llamas believes she established good cause to withdraw her plea.

The State responds that substantial evidence supports the district court's findings
that Llamas made a tactical decision to enter a plea based on the advice of competent
legal counsel after discussion and plea negotiations. In support, the State highlights
Walsh's testimony and the district court's findings that despite Llamas' testimony to the
contrary, she and Walsh had discussed suppression, including the propriety of the
officer's initial contact with her. In so finding, the court acknowledged the testimony
about the somewhat conflicting descriptions but stressed that it was not tasked with
deciding the actual suppression issue. Rather, the court's focus was on Walsh's
representation. In that regard, the court pointed out that Walsh had concluded after her
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research and consultation with other attorneys that suppression was not a slam dunk. The
court then found credible Walsh's belief that Llamas fully understood their discussions
but simply "did not like what she was hearing." The State further notes the court also
rejected Llamas' suggestion that her plea was not knowingly or understandingly made
given the court's extensive colloquy with her prior to accepting her plea, which included
confirmation that Llamas had sufficient time to discuss with Walsh the facts of her case
and possible trial strategies, defenses, etc. In that regard, the court found "it appears from
the nature of both Ms. Llamas's testimony and Ms. Walsh's testimony, that there was
quite a bit of discussion, quite a bit of detail about where this case was headed."

The district court's extensive findings of fact and conclusions of law demonstrate
that the court carefully weighed the evidence and assessed credibility contrary to Llamas'
contention that Walsh's deficient representation presented her with good cause to
withdraw her plea. Again, we cannot reassess credibility or weigh the evidence. Llamas
has not met her burden of showing the district court abused its discretion in denying her
motion.

Llamas also complains the calculation of her criminal history score violated her
right to trial by a jury as discussed in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000). Llamas concedes we are duty bound to follow our
Supreme Court's rejection of this same argument in State v. Ivory, 273 Kan. 44, 47-48, 41
P.3d 781 (2002). She raises it here solely to preserve the issue for federal review.

We can afford no relief to Llamas on this issue.

Affirmed.