State v. Richards

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NOT DESIGNATED FOR PUBLICATION

No. 113,663

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CALVIN EUGENE RICHARDS, II,
Appellant.

MEMORANDUM OPINION

Appeal from Cherokee District Court; KURTIS I. LOY, judge. Opinion filed July 22, 2016.
Affirmed.

Caroline Zuschek, of Kansas Appellate Defender Office, for appellant.

Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for
appellee.

Before GREEN, P.J., MCANANY and ATCHESON, JJ.

Per Curiam: After Calvin E. Richards, II, pled guilty to manufacture of
methamphetamine, but before his sentencing he filed a motion seeking to withdraw his
plea. After holding an evidentiary hearing the court denied the motion. On appeal,
Richards claims he established good cause to withdraw his plea because: (1) he was not
represented by conflict-free and competent counsel; (2) counsel coerced or misled him
into taking the plea; and (3) the plea was not entered knowingly or voluntarily because he
was confused as to the possible sentence he was facing.

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After Richards was arrested, he confessed that he had been involved in
manufacturing methamphetamine. The State originally charged him with manufacture of
methamphetamine, possession of ephedrine or pseudoephedrine, use of or possession
with intent to use drug paraphernalia, possession of methamphetamine, and misdemeanor
possession of drug paraphernalia. Attorney Robert E. Myers was appointed to represent
him. Within weeks, Richards sought to have Myers dismissed and new counsel appointed
because of Myers' claimed attitude toward Richards and the case and the claimed conflict
of interests that arose from the fact that Myers was the city attorney in Baxter Springs,
the city where Richards was arrested. Richards wanted the court to replace Myers with
Candace Gayoso, who had represented Richards in the past. Over the next couple of
months, Richards repeatedly raised these issues with the court.

At Richards' arraignment, the court took up Richards' pro se motion to dismiss
Myers. Richards addressed the court and explained, "nothing against Mr. Myers [but] he's
a prosecuting attorney from the town I was arrested in." He wanted Myers replaced with
Gayoso, who successfully defended him in another matter. Referring to Gayoso and to
the State's recent offer of a plea agreement, Richards stated, "I just feel like . . . Candice
could represent me. I mean try to get me some better deal than ten years." The court
asked for any comments from Myers, who provided a factual summary of the procedural
history of the case, including plea negotiations by the parties. Myers observed:

"I would point out the comments that he's made to the court about Miss Gayoso; I'm not
sure it would be appropriate if she was appointed anyway. Sounds like she may be a
witness from the statements that he's made to the court. So I don't see any issues. I
haven't filed a motion. I don't think communication is broken down to that point."

The court then asked Richards if he and Myers were still communicating. Richards
responded that they were but, apparently referring to the State's plea offer, it was "[j]ust
what they want. I mean, it's—it's like I don't have no say. I don't get no chances of
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anything in this, . . . I'm just going to be sent to prison. That's all they're coming at me
with is ten years for [expletive] nothing, for trash." The court persisted in getting
Richards to say whether he was able to communicate with Myers. Richards responded,
"Evidently not" because Myers is "a prosecuting attorney from the town I was arrested
in." Richards persisted that he wanted to be represented by Gayoso because "she's already
been through this with me on my last case and knows what kind of . . . a person [the
officer assigned to the KBI Drug Task Force] is." At this point the court reminded
Richards that he did not get to select his own court-appointed counsel but that the court
would select the next person on the appointment list. Richards and Myers then had an off-
the-record discussion at counsel table, after which Myers advised the court that Richards
would "like to get this set for trial just as soon as we can." The court noted that from
observing the 2- to 3-minute exchange between counsel and client, "[i]t appears you're
communicating very openly." The court then denied Richards' motion and proceeded
with the arraignment.

Richards persisted in expressing his dissatisfaction with Myers' representation. At
the pretrial conference and hearing on pretrial motions, the court took up Richards'
continued complaints about Myers, which included Richards' claim that "I didn't see him
doing anything for me," and his claim that Myers had not helped him get an assessment
for impatient drug treatment. Richards also complained that when his house was
searched, the officers did not provided him a copy of the warrant.

Myers advised the court of the history of plea negotiations. He told the court that
there was an $85 fee for the drug assessment, which Myers arranged to be waived. The
drug assessment was completed, but there was no available bed space at the treatment
facility and Richards was in custody, which made it difficult for him to get treatment and
the necessary aftercare. Myers stated:

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"The problem that I see is not the issue of counsel or communication. It is he doesn't like
what he's hearing. He doesn't like the offer the State's give; which is fine, he can reject it.
Which he did. He gives a counter proposal which the State has rejected which is fine,
they can do that. That puts us on track to go to trial which we're scheduled to do. You
know standing here I'm telling you I've got a job to do and I'm trying to do it. Sometimes
people don't like what they're hearing and that's the problem, not necessarily the
representation."

The prosecutor then addressed the propriety of the execution of the search warrant and
after some additional remarks from Richards on that subject the court overruled Richards'
second motion to have Myers discharged, stating:

"Mr. Myers is an experienced attorney and the tactics that he determines are in your best
interest in your case are what he will pursue. . . .
. . . .
". . . It is not uncommon in Kansas for attorneys to work as prosecutors in a city
or someplace and work as defense attorneys elsewhere. Attorneys are trained and capable
of working both sides of the street. Actually it might be to your benefit to have an
attorney who also has prosecution experience. Mr. Myers is an experienced and capable
attorney. I've tried jury trials with him. When we were in practice together I tried cases
against him. He's a good attorney and frankly you're lucky to have him for an attorney.
So that motion will be denied."

On the search warrant issue, Myers suggested that it should consider Richards' remarks as
a pro se motion to suppress. The court did so, and the State called a witness to testify
regarding the search. Myers cross-examined the witness for five pages of testimony and
argued on behalf of Richards that although Richards was at home at the time of the
search, the officers failed or refused to provide him with a copy of the warrant or permit
him to see it. The court denied this motion. Richards then requested that he be released on
a personal recognizance bond. The court declined to do so but reduced his bond from
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$100,000 to $50,000. Myers then requested, and was granted, an order in limine as to any
testimony or evidence of Richards' prior bad acts.

A week or so later, Richards filed a pro se motion to produce evidence, noting that
his attorney was not doing "anything," so it was up to Richards to do so. He also moved
to dismiss the charges against him alleging that the court had denied him his
constitutional right to have an attorney because his attorney was inadequate. The court
denied both motions.

Shortly before his trial was set to begin, Richards entered into a plea agreement
and pled guilty to manufacture of methamphetamine. In exchange, the State agreed to
dismiss four other pending charges and to recommend a downward departure sentence of
120 months, 58 months less than the mid-range number in the applicable sentencing grid
box. In connection with the plea agreement, Richards signed a "PETITION TO ENTER
PLEA AGREEMENT" form in which he acknowledged, among other things, that his
plea was made knowingly and voluntarily, and that his "lawyer has done all that anyone
could do to counsel and assist me, AND I AM SATISFIED WITH THE ADVICE AND
HELP HE HAS GIVEN ME."

About 6 weeks later, and before sentencing, Richards moved to withdraw his plea,
claiming that (1) he had been denied his right to counsel of his choosing, (2) he had been
tricked into entering a plea, and (3) his constitutional rights had been violated by
allowing him to enter a plea.

The court appointed new counsel and held an evidentiary hearing. On his conflict
of interests claim, the record does not indicate that any of the State's witnesses were from
the Baxter Springs Police Department. Nevertheless, Richards testified that because
Myers was the city prosecutor of Baxter Springs, Richards didn't "know how [Myers]
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thought he was going to defend me over here when I know dang good and well that he
doesn't want drugs in his town so he's not going to help me."

On his other claims, Richards testified that he felt tricked and pressured into
entering a guilty plea. Notwithstanding what he stated when he entered into the plea
agreement and what he told the court at his plea hearing, Richards claimed that he did not
understand the plea agreement and what was happening. He claimed he was confused
about the length of his sentence.

On cross-examination, Richards admitted that he had been involved in the court
system in the past in connection with his many previous criminal charges. Richards had
entered into plea agreements before, and he was familiar with how the system worked.
Richards admitted that he was properly advised of the recommended sentence in the plea
agreement.

Myers testified that the State initially offered a plea deal before the preliminary
hearing and its terms were the same as those to which Richards eventually agreed. Myers
discussed the terms of the agreement with Richards, who initially rejected the offer.
Myers provided Richards with discovery information, and he met with Richards many
times to discuss the case and prepare for trial. Myers did not file all of the motions
requested by Richards because he considered them frivolous. Myers did not coerce,
threaten, or pressure Richards to take the plea offer. He thoroughly reviewed the plea
agreement with Richards, who did not indicate any confusion about the proposed deal.
Myers was not asked about his role as the prosecutor of Baxter Springs or any potential
conflict of interests in representing Richards.

The district court denied Richards' motion, finding Myers the more credible
witness. Applying the factors set forth in State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986
(2006), the court concluded that Richards had not shown good cause to withdraw his plea
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because: (1) he was represented by competent counsel; (2) he was not misled or coerced
into entering his plea; and (3) and he entered the plea knowingly and with understanding
of its terms and consequences. Consistent with the plea agreement, the court sentenced
Richards to 120 months in prison. Richards appealed, raising the issues set forth in the
first paragraph of this opinion.

Analysis

The standard for allowing a defendant to withdraw a plea before sentencing is
"good cause shown." K.S.A. 2015 Supp. 22-3210(d)(1). We examine the district court's
denial of Richards' motion for any abuse of judicial discretion. See State v. Kenney, 299
Kan. 389, 393, 323 P.3d 1288 (2014). Richards bears the burden of establishing an abuse
of discretion. See State v. Williams, 290 Kan. 1050, 1053, 236 P.3d 512 (2010). In
considering the issue, we do not reweigh the evidence or assess the credibility of the
witnesses. We defer to the district court's findings of fact so long as they are supported by
substantial competent evidence. State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425
(2011). In reviewing Richards' claim of an abuse of discretion, we consider whether there
is substantial competent evidence to support the district court's findings on the three
Edgar factors. Richards relies on all three, though he is not required to establish all three
in order to demonstrate good cause to withdraw his plea. See State v. Ebaben, 294 Kan.
807, 812, 281 P.3d 129 (2012).

First Edgar Factor

Regarding the first Edgar factor of competent counsel, Richards asserts that
because Myers was a part-time attorney for the City of Baxter Springs he had an
irreconcilable conflict of interests. He argues that Myers' duty to prosecute criminals in
Baxter Springs conflicted with his duties as a criminal defense attorney. Because part of
Myers' job was to prosecute drug crimes committed within the city, Myers would not
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work hard to represent Richards on charges of drug crimes committed in Baxter Springs,
even though the charges were filed in the Cherokee County District Court rather than in
municipal court.

The district court is charged with safeguarding a defendant's Sixth Amendment
right to counsel. So when a district court becomes aware of a possible conflict of interests
between an attorney and a defendant charged with a felony, the court has a duty to
inquire further. State v. Vann, 280 Kan. 782, 789, 127 P.3d 307 (2006). Here, the district
court considered Richards' claim of a conflict of interests and found none.

In State v. Rice, 227 Kan. 416, 607 P.2d 489 (1980), defense counsel's law partner
was a part-time municipal judge. The defendant argued that a conflict of interests existed
because "in her position as judge [the partner] works closely with the police department
of the city and that certain members of the police were involved in the investigation in
this case and actually made the arrest of the defendant." 227 Kan. at 420. Our Supreme
Court held that the determination of whether a conflict of interests exists is to be
determined on an individual basis, but it was common throughout Kansas for
municipalities to employ part-time judges "where local municipal courts exist separate
and apart from the district court." 227 Kan. at 420. Further, it is common for such cities
to retain part-time city attorneys to handle prosecutions of criminal cases.

"Lawyers holding part-time positions as judges or prosecuting attorneys should
not appear as counsel for defendants in criminal matters in the courts in which they have
responsibility. However, they may be far enough removed that they can appear in other
courts, in which they have no substantial responsibility by reason of their governmental
employment, as counsel for criminal defendants without giving an appearance of
impropriety and without creating a conflict of interest." 227 Kan. 416, Syl. ¶ 4.

The American Bar Association Committee on Professional Ethics and Grievances
states that "'[t]here is no impropriety in the city attorney of a rural community defending
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indigent prisoners in cases other than those which it is his duty to prosecute.'" 227 Kan. at
421. Thus, the Rice court determined that an attorney's part-time employment as a
government attorney does not preclude the attorney "on a basis of conflict of interest[s],
from representing defendants in criminal cases in other courts." 227 Kan. at 421.

Here, Richards has failed to show that Myers' role as part-time city attorney for
Baxter Springs created a conflict in his representation of Richards in this case. Richards
was charged in the Cherokee County District Court, not the City of Baxter Springs
Municipal Court. Richards does not show that the city attorney prosecuted in municipal
court the types of crimes attributable to Richards. Further, the city attorney's concern
about drug activity in Baxter Springs would be shared by any attorney living in Baxter
Springs. What attorney would not? Under Richards' rationale, no attorney residing in
Baxter Springs could represent him, and by a reasonable extension no attorney living in a
community where there is a drug problem could represent him either. We reject that
notion. See State v. Gleason, 277 Kan. 624, 649-52, 88 P.3d 218 (2004); State v. Wallace,
258 Kan. 639, 650-51, 908 P.2d 1267 (1995).

Relying on cases from other jurisdictions, Richards would have us overturn our
Supreme Court's holdings in Wallace and Rice. See Jamison v. Lockhart, 975 F.2d 1377,
1380 (8th Cir. 1992) (case remanded for district court to explore possibility of possible
conflict of interest due to defense counsel's role as city attorney); People v. Washington,
111 Ill. App. 3d 711, 714-15, 444 N.E.2d 753 (Ill. App. 1982), aff'd 101 Ill. 2d 104, cert.
denied 469 U.S. 1022 (1984) (finding that because defense counsel served part-time as
city prosecutor and the city was significantly involved in the arrest, counsel's professional
commitments conflicted with counsel's role as appointed defense counsel in overlapping
jurisdictions); State v. White, 114 S.W.3d 469, 479 (Tenn. 2003) (concluding that
counsel's "dual roles as assistant district attorney general and criminal defense lawyer in
the same county created an actual conflict of interest"). Of course, we are bound by the
Kansas Supreme Court holdings on this issue absent some indication that the court is
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departing from its earlier decisions. State v. Belone, 51 Kan. App. 2d 179, 211, 343 P.3d
128, rev. denied 302 Kan. ___ (September 14, 2015). We see no such indication.

As an alternative to his claim of an inherent conflict of interests arising from
Myers' job as a prosecutor, Richards claims there was an actual conflict of interests
arising out of Myers' relationship with local law enforcement personnel. But Richards
fails to show an actual conflict arising out of Myers' dealings with the Baxter Springs
police. While Richards testified that Baxter Springs' police officers were involved in the
execution of the search warrant and his arrest, he did not establish what relationship those
officers had with Myers or whether any of those officers were potential witnesses at trial.
The three primary officers—those involved in leading the execution of the search
warrant, Richards' arrest, and the custodial interrogation—did not work for the City of
Baxter Springs.

Richards makes the statement in passing that Myers had a personal conflict
"because he had [a] financial motivation to stay on as Mr. Richards' counsel and he
advocated to do so." Richards makes no effort to show Myers had a financial motive that
dictated his actions over his professional obligation to his client. In terms of a financial
motive to hang on to Richards as a client, Myers was no young, wet-behind-the-ears
lawyer scrambling to take any case available even at the miserly rate provided for
appointed defense counsel. The district court characterized Myers as "an experienced
attorney . . . who also has prosecution experience. Mr. Myers is an experienced and
capable attorney . . . and frankly you're lucky to have him for an attorney." An issue not
briefed is deemed waived and abandoned. State v. Boleyn, 297 Kan. 610, 633, 303 P.3d
680 (2013). Richards has abandoned this issue.

Next, Richards claims a separate conflict of interests based upon the claim that
Myers actively advocating against Richards' position when Richards sought to replace
him, much like defense counsel did in State v. Prado, 299 Kan. 1251, 329 P.3d 473
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(2014). In Prado, the defendant originally was charged with aggravated indecent liberties
with his 12-year-old daughter, a charge which called for a presumptive life sentence with
no chance for parole for 25 years if Prado was convicted. But under a plea agreement, the
State agreed to amend the charge to two counts of rape and to recommend a departure
sentence of 24½ years rather than the possible life sentence. Pursuant to the agreement,
Prado pled no contest to the amended charges, and the court found him guilty. At the
sentencing hearing Prado expressed confusion about what he had pled to. His counsel
stated:

"'I think the best way to summarize what Mr. Prado is attempting to say is that it's his
position that I did not explain to him the nature of the charges, essentially that I did not
communicate to him what it was that he was pleading to, and based on that, he is asking
the Court to allow him to withdraw his plea.'" 299 Kan. at 1254.

After a further colloquy between Prado and the court, defense counsel stated:

"'Mr. Prado . . . is trying to articulate that he did not understand what was going on.
We've had extensive discussions. I didn't file a motion to withdraw based on conflict
because I didn't see a conflict. . . . [H]e is at least implicating that he has not been
counseled, didn't understand what occurred regarding the plea.'" 299 Kan. at 1255.

The district court denied Prado's motion to withdraw his plea and sentenced Prado to the
downward departure sentence specified in the plea agreement.

The Kansas Supreme Court declared that a conflict of interests arose when
"Prado's attorney argued against the merits of Prado's motion to withdraw his plea." 299
Kan. at 1259. According to our Supreme Court, this conflict denied the defendant his
Sixth Amendment right to conflict-free counsel. In doing so, the court recognized a
distinction between an attorney truthfully recounting facts and an attorney taking a
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position adverse to the client and advocating against the client's position. In Prado,
counsel advocated against the client's interests, thereby creating the conflict.

In State v. Pfannenstiel, 302 Kan. 747, 766, 357 P.3d 877 (2015), discussing its
holding in Prado, the Supreme Court found a meaningful distinction between "(1) an
attorney truthfully recounting facts and (2) an attorney going beyond factual statements
and advocating against the client's position. [Citation omitted.]" Factual-based evaluative
remarks regarding trial strategy normally left to the professional judgment of counsel are
appropriate for counsel to make during an inquiry into an alleged attorney-client conflict
of interests. 302 Kan. at 767.

In State v. McGee, 280 Kan. 890, 126 P.3d 1110 (2006), the defendant sought to
have his counsel removed because they were having communication problems and
counsel never discussed McGee's side of the case with him. At the hearing on McGee's
motion his counsel contradicted the factual allegations supporting McGee's motion.
McGee argued on appeal that counsel contradicting McGee's claimed facts created a
conflict of interests. The Supreme Court found that in contradicting McGee's claimed
facts, counsel did not compromise any confidential information or concede McGee's
guilt. Further, counsel's statements did not establish that counsel had any interest that
limited his representation of McGee. Thus, the disagreement between counsel and client
over the facts did not rise to the level of a conflict of interests. 280 Kan. at 895-96.

Here, when asked whether he could communicate with counsel, Richards first told
the court they could communicate but then said "[e]vidently not" because Myers is "a
prosecuting attorney from the town I was arrested in." This response was predicated on
Myers' professional positon, not the personal interaction between attorney and client.

Myers advised the court that there was no breakdown in communication. This
response did not relate to Richards' concern about Myers being a prosecuting attorney in
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Baxter Springs, but it dealt with actual communications between attorney and client. As
such, it did not contradict Richards' assertion or advocate against Richards' interests.
Further, Myers' statement that he did not file a motion was merely a statement of fact and
did not constitute an argument against Richards' interest. Myers did not go beyond that
factual statement and argue that the district court should deny Richards' motion. Finally,
in his remarks to the court, Myers did not compromise any confidential information of
Richards', nor did he concede Richards' guilt or establish through his remarks that he had
any interest that limited his representation of Richards. Thus, any disagreement between
Richards and Myers did not rise to the level of a conflict of interests.

Finally, we must not forget that in reviewing the district court's denial of Richards'
motion to withdraw his plea the issue we are considering is whether Richards had
conflict-free counsel when Richards entered his plea. It is apparent that if there was a
conflict between attorney and client early in the case, that conflict had been resolved
before Richards entered his plea because on that day Richards executed a "Petition to
Enter Plea Agreement" in which he stated, "I believe that my lawyer has done all that
anyone could do to counsel and assist me, AND I AM SATISFIED WITH THE ADVICE
AND HELP HE HAS GIVEN ME."

Richards fails to show, or even allege, that on the day he entered his guilty plea
there existed a conflict of interests between him and his counsel.

As another aspect of the first Edgar requirement that the defendant be represented
by competent counsel, Richard argues that Myers' representation of him was "merely
lackluster." In making this assertion, Richards is not required to show ineffective
assistance of counsel rising to the level of a violation of the Sixth Amendment in order to
demonstrate good cause for setting aside a plea before sentencing. See State v. Aguilar,
290 Kan. 506, Syl. ¶ 1, 231 P.3d 563 (2010).

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There is substantial evidence to support the district court's finding that Richards
was represented by competent counsel. In the face of Richards' laundry list of complaints
about Myers' performance, the district court found Myers' testimony on these matters
more credible than Richards' testimony. We do not reweigh evidence or reassess witness
credibility. Anderson, 291 Kan. at 855.

Myers was an experienced attorney who had previous experience in handling
severity level 1 felonies. Myers adequately investigated the case and communicated with
Richards on many occasions as the trial date approached. Myers appeared and advocated
for Richards at all proceedings, filed multiple motions, obtained discovery, successfully
negotiated a plea agreement, and worked and communicated with Richards throughout
the case. Myers filed a motion to obtain Richards' criminal history report and provided
Richards with discovery documents regarding his case. Myers represented Richards at the
preliminary hearing and during suppression proceedings.

Many of Richards' complaints were refuted by the record. For example, Richards
complained that he was forced to file pro se motions for bond reduction because Myers
would not do so. But the record reflects that Myers filed a motion to reduce bond.
Richards complained about Myers' lack of effort to get him into a treatment facility, but
Myers communicated with the court regarding his efforts to get Richards into drug
treatment, showing his efforts in obtaining a waiver of the fee for assessment and in
obtaining the assessment for Richards.

Richards was facing five charges with significant prison time. Ultimately, Myers
secured a favorable plea agreement for Richards and gave him sufficient time to
contemplate the agreement and make his decision to enter the plea. Myers presented
Richards with the offer prior to the preliminary hearing and then continued to work on
Richards' defense as he contemplated going to trial. As part of the plea, the State agreed
to dismiss four charges and argue for a downward durational departure. As noted earlier,
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in entering into the plea agreement Richards asserted that he was satisfied with Myers'
representation: "I believe that my lawyer has done all that anyone could do to counsel
and assist me, AND I AM SATISFIED WITH THE ADVICE AND HELP HE HAS
GIVEN ME." The record supports the district court's finding that Richards was
represented by competent counsel.

Richards fails to demonstrate that he was denied the assistance of competent
counsel, which is required under the first Edgar factor.

Second Edgar Factor

Richards asserts that he was misled or coerced into entering a plea. He claims
Myers coerced him into accepting the plea agreement by: (1) rushing him into the plea;
(2) failing to give him a copy of the plea agreement until 1 hour before the plea hearing;
(3) telling him that he would be facing more time if he did not take the plea offer; (4)
informing him the judge would be mad at him if he did not quickly accept the plea; and
(5) urging him to accept the plea immediately or he would not have the option of a plea
later.

Richards had about 2 months to consider the plea agreement. As early as June 5,
2014, counsel noted on the record that "[t]here was an offer that was made that was
passed on to the client. You know, obviously whether he makes or accepts a plea or not is
up to him." At the July 11, 2015, hearing, counsel again stated on the record that the State
made an offer to Richards, which he rejected, and a trial had been set. Later, at the
hearing on Richards' motion to withdraw plea, Myers testified that the State made its plea
agreement offer before the preliminary hearing was held. He testified that the initial offer
was the same as that to which Richards ultimately agreed to on August 1, 2014. Myers
testified that he discussed the offer with Richards when it was originally made, and the
parties participated in ongoing discussions about a potential plea throughout the
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pendency of the case. Myers stated that he discussed the agreement with Richards in
detail, going over every part of the written agreement. The district court found Myers'
testimony credible. The record refutes Richards' claim that he was rushed into the
agreement.

Richards' remaining claims were disputed by Myers' testimony. Myers testified
that he did not recall telling Richards that the judge would be mad or upset with him.
Myers admitted that he told Richards that it was a good offer considering the potential
punishment he could face, but this is not the same as coercing or misleading him. Any
statements that Richards could face a much greater punishment if he did not accept the
plea were true statements. The plea agreement offered a much shorter sentence than
Richards would have faced under the sentencing guidelines. The district court found
Myers to be the more credible witness, and we do not reweigh evidence or make
credibility determinations. Anderson, 291 Kan. at 855.

On the day of the plea hearing Richards admitted his plea was freely and
voluntarily made. Richards has failed to show that he was misled, coerced, mistreated, or
unfairly taken advantage of in entering his plea, as set forth in the second Edgar factor.

Third Edgar Factor

Finally, Richards argues that he did not knowingly and understandingly enter his
plea because he misunderstood a statement made by the district court that he was getting
"the benefit of 58 months." He claims this statement led him to believe that he was going
to be sentenced to 58 months.

Once again, the record shows otherwise. At the first hearing on Richards' motion
to remove Myers, he told the court that he wanted Gayoso to represent him because he
thought she could get him a better plea deal than the State's 10-year offer.
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At the beginning of the plea hearing, the district court and the prosecutor made it
clear to Richards that the parties would be recommending 120 months, or 10 years.
Richards specifically acknowledged that he understood the recommended sentence, and
Myers testified at the motion to withdraw plea that he discussed the 120-month sentence
with Richards to make sure he understood. The written petition to enter the plea
agreement also stated that the parties agreed to recommend a sentence of 120 months in
prison. The written agreement informed Richards of the range of possible sentence, from
138 to 204 months in prison.

When the district court informed Richards that he was getting the benefit of 58
months, there is little doubt that Richards understood that the 58 months referred to the
reduction in his possible sentence. He had been informed on numerous occasions that the
offer was for 120 months in prison.

Finally, when Richards was cross-examined at the hearing on his motion to
withdraw his plea, he admitted that he was properly advised of the recommended
sentence in the plea agreement.

We are satisfied that Richards understood that he was being sentenced to 120
months, which was a 58-month reduction from the mid-range guidelines sentence. There
was substantial evidence to support the district court's finding that Richards' plea was
knowingly and understandingly made. Richards fails to satisfy the third Edgar factor.

The district court did not err in overruling Richards' motion to withdraw his plea.

Affirmed.