               IN THE SUPREME COURT OF THE STATE OF KANSAS


                                           No. 117,456

                                       STATE OF KANSAS,
                                           Appellee,

                                                 v.

                                      REGINALD FRAZIER,
                                          Appellant.


                                SYLLABUS BY THE COURT

1.
       When a defendant moves to withdraw a plea before sentencing and the district
court denies the motion, the defendant must establish on appeal that the trial court abused
its discretion in denying a presentence motion to withdraw plea.


2.
       A defendant may withdraw a plea for "good cause shown" prior to sentencing.
K.S.A. 2019 Supp. 22-3210(d)(1). In determining good cause, a district court should
consider several factors, including whether the plea was fairly and understandingly made.


3.
       A defendant does not understandingly sign a plea agreement when he relies on an
uncertain provision that works in his favor and he justifiably believes that provision to be
a certainty.


       Review of the judgment of the Court of Appeals in an unpublished opinion filed May 25, 2018.
Appeal from Geary District Court; RYAN W. ROSAUER, judge. Opinion filed April 17, 2020. Judgment of




                                                 1
the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and
the case is remanded with directions.


         Clayton J. Perkins, of Kansas Capital Appellate Defender Office, argued the cause and was on
the brief for appellant.


         Jason B. Oxford, assistant county attorney, argued the cause, and Tony Cruz, assistant county
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.


The opinion of the court was delivered by


         WILSON, J.: Reginald Frazier appeals the denial of his motion to withdraw plea of
no contest to one count of possession of heroin with intent to distribute. The district court
found the plea was fairly made and Frazier fully understood the consequences of his plea;
thus there was no good cause for Frazier to withdraw his plea. A Court of Appeals panel
affirmed the district court after it likewise found that there was no good cause for Frazier
to withdraw his plea and consequently no abuse of discretion on the part of the district
court.


         Before us, Frazier again argues that the district court abused its discretion because
there were misleading or false statements contained in the plea agreement and he
demonstrated good cause to withdraw his plea.


         For reasons more fully set out below, we reverse the judgment of the district court
and the decision of the Court of Appeals and remand to the district court for further
proceedings.




                                                      2
                       FACTUAL AND PROCEDURAL BACKGROUND


       In August 2015 an officer with the Geary County Sheriff's Department stopped a
car on I-70 for a license tag violation. Tracy Lee Gould was driving the car. Frazier was a
passenger in the car and did not own the car. The two explained that they were on their
way from Las Vegas to Ohio, but they gave differing versions of what they had done in
Las Vegas. A canine unit arrived at the scene, and the dog alerted to the odor of drugs. A
search of the car revealed two bundles of heroin weighing approximately 2.5 pounds, a
pistol under the passenger-side floorboard, and $2,300 in cash in Gould's purse and
$10,000 in cash on Frazier's person.


       After the stop and search in Kansas, Ohio law enforcement searched Gould's
house in Ohio and found significant quantities of drugs and money as well as personal
items belonging to Frazier. Frazier denied living at that house.


       The State of Kansas charged Frazier in this case with one count of possession of
heroin with intent to distribute, one count of a drug tax stamp violation, one count of
conspiracy with Gould to possess heroin with intent to distribute, one count of criminal
transportation of drug proceeds, one count of possession of drug paraphernalia, and one
count of criminal possession of a firearm.


       Frazier eventually signed a plea agreement in which he stated he would enter a
plea of no contest to one count of possession of heroin with intent to distribute. The State
agreed that Frazier would have a criminal history score of E and would seek a downward
durational departure to 96 months.




                                             3
       Significantly, the agreement also stated:


       "Pursuant to this plea agreement the authorities in Ohio further agree to dismiss and/or
       not to file any charges resulting out of the search warrant that was obtained as a result of
       this arrest."


       Gould, Frazier's codefendant, also entered into a plea agreement that contained a
promise she would not be prosecuted in Ohio. Ohio authorities signed Gould's agreement.
They did not sign Frazier's.


       The district court filed a journal entry approving Frazier's plea agreement and
accepting his nolo contendere plea.


       Frazier later filed a pro se motion to withdraw his plea, which is not contained in
the record on appeal. His appointed counsel filed a brief in support of the motion, and the
district court deemed the brief to serve as a motion. The court conducted an evidentiary
hearing relating to the motion.


       Lora Ingels had been Frazier's court-appointed attorney through the plea hearing.
In her testimony on Frazier's motion to withdraw plea, Ingels said she talked with the
Kansas prosecutor. According to him, the Ohio authorities were satisfied that if Frazier
served eight years in Kansas, they would not file charges against him in Ohio. Ingels did
not speak directly to Ohio authorities, and the plea agreement is signed only by the
Kansas prosecutor, Frazier, and Ingels.


       To date, Ohio has not filed charges against Frazier.




                                                     4
       Frazier testified that Ingels advised him he must take the plea deal if he wanted to
avoid federal prosecution in Ohio. (The plea agreement itself is ambiguous as to whether
it covers both state and federal prosecution in Ohio.)


       The district court denied Frazier's motion, finding that he fully understood the plea
agreement and that Ingels told him she did not speak directly with Ohio authorities. The
court sentenced him to a downward-departure term of 96 months. Frazier took a timely
appeal to the Court of Appeals. In a divided decision, the Court of Appeals affirmed the
district court, with Judge Leben concurring. State v. Frazier, No. 117,456, 2018 WL
2375260 (Kan. App. 2018) (unpublished opinion). This court granted Frazier's petition
for review.


                                         DISCUSSION


       Before sentencing, Frazier moved for leave to withdraw his plea of no contest
based on misleading or false statements contained in the plea agreement. He contends on
appeal that the district court abused its discretion when it denied his motion.


Standard of Review


       When a defendant moves to withdraw a plea before sentencing and the district
court denies the motion, the defendant must establish on appeal that the trial court abused
its discretion in denying a presentence motion to withdraw plea. State v. DeAnda, 307
Kan. 500, 503, 411 P.3d 330 (2018); State v. Schaal, 305 Kan. 445, 449, 383 P.3d 1284
(2016) (court abused its discretion in basing its denial on factual findings unsupported by
the record). A judicial action constitutes an abuse of discretion if (1) it is arbitrary,
fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error
of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018).


                                               5
Analysis


       A defendant may withdraw a plea for "good cause shown" prior to sentencing.
K.S.A. 2019 Supp. 22-3210(d)(1). This is the hurdle that Frazier is required to meet.
When determining whether a defendant has demonstrated good cause, a district court
should consider at least three factors: (1) was the defendant represented by competent
counsel; (2) was the defendant misled, coerced, mistreated, or unfairly taken advantage
of; and (3) was the plea fairly and understandingly made? State v. Aguilar, 290 Kan. 506,
511, 231 P.3d 563 (2010); State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006).
However, it is important to note that courts "should not ignore other [non-Edgar] factors
impacting a plea withdrawal that might exist in a particular case." State v. Schaefer, 305
Kan. 581, Syl. ¶ 2, 588, 385 P.3d 918 (2016).


       In denying Frazier's motion to withdraw his plea, the district court explained:


               "The Court believes that Mr. Frazier had a sufficient awareness of the relevant
       circumstances and likely consequences of what this Plea Agreement would be. If nothing
       else, because the Plea Agreement spells it out. But also because of the questioning that
       the Court would have done with Mr. Frazier that day. And also because it doesn't seem
       that Mr. Frazier has been unfairly surprised by any of [the] events that have occurred
       since exercising the Plea Agreement.


               "You know, I guess we could think—sit here and hypothesize what some of
       those things might be in other worlds, but right now what Mr. Frazier is concerned about,
       is that Ohio is going to prosecute him down the road. And there's nothing to indicate that
       that's going to happen. We've got a Plea Agreement that says it's not going to happen.
       And that's sufficient—that concern is not sufficient for the Court to—to allow Mr. Frazier
       to back out of this Plea Agreement. . . .


               "So I'm going to deny the defendant's motion; will proceed to sentencing."
       (Emphasis added.)


                                                    6
       The Court of Appeals panel applied the three factors set out above and affirmed.
In particular, the Court of Appeals emphasized that Frazier's plea was made knowingly:
he was aware that his attorney had not spoken with Ohio authorities and they had not
signed off on his plea agreement. Frazier, 2018 WL 2375260, at *3. The Court of
Appeals concluded that Frazier was not misled or coerced about the possibility of being
charged in Ohio. 2018 WL 2375260, at *3.


       But there is a fundamental problem with the plea agreement that neither the
majority nor the concurrence addresses, and it is critical. As the Court of Appeals noted,
"The State of Ohio was not a party to the plea agreement and did not sign it." 2018 WL
2375260, at *3. Frazier entered into the agreement with the understanding that he would
not face charges in Ohio, but he was relying on a promise of conduct that was not made
by a party to the agreement.


       Plea bargaining agreements are akin to civil contracts and, subject to due process
concerns, may be analyzed in a similar fashion. This court has explained:


               "'[A] plea agreement is generally subject to contract principles' and, accordingly,
       the 'application of fundamental contract principles is generally the best means to fair
       enforcement of a plea agreement, as long as courts remain mindful that the constitutional
       implications of the plea bargaining process may require a different analysis in some
       circumstances.' State v. Copes, 290 Kan. 209, 217, 224 P.3d 571 (2010); see also State v.
       Boley, 279 Kan. 989, 992-93, 113 P.3d 248 (2005) (noting the same). Kansas courts have
       recognized that contracts, with the exception of at-will employment agreements, contain
       implied covenants of good faith and fair dealing. Estate of Draper v. Bank of America,
       288 Kan. 510, Syl. ¶ 13, 205 P.3d 698 (2009). . . . Furthermore, '[t]he law implies that
       contractual provisions requiring the exercise of judgment or discretion will be honestly
       exercised and faithfully performed.' Lessley v. Hardage, 240 Kan. 72, Syl. ¶ 7, 727 P.2d




                                                    7
       440 (1986). Thus, parties to a plea agreement must act fairly and in good faith in carrying
       out the promises they have made." State v. Urista, 296 Kan. 576, 583, 293 P.3d 738
       (2013).


       In the context of civil contracts, a contract generally binds only the parties that
enter into the contract and is not enforceable against a third party that did not negotiate
the contract, did not accept the terms of the contract, and did not receive any
consideration for the contract. See GFTLenexa, LLC v. City of Lenexa, 310 Kan. 976,
986, 453 P.3d 304 (2019). This is a basic principle of contract law.


       At oral argument, the State conceded two things. First, the defendant relied on the
idea that his plea agreement was binding on Ohio authorities and, in making his decision,
he believed that lack of prosecution was a certainty. Second, if the plea agreement is not
binding on Ohio authorities, the defendant prevails on his motion to withdraw. If every
party agrees that Frazier believed and relied on the idea of this agreement being
absolutely binding on Ohio—and it may not be—it makes whatever communication
Ingels had with Frazier regarding who spoke to whom less important.


       From these principles it can be derived that Frazier, contrary to his understanding,
signed an agreement containing an important clause that might be binding on no one.
While we do not need to conduct the full analysis today, there is a fog of uncertainty
regarding whether Ohio authorities have a legally enforceable duty to honor this Kansas
plea agreement. It probably would have been possible to obtain signatures from Ohio
prosecutors; his codefendant's plea agreement had such signatures. But even then, it is
unclear which—if any—Ohio prosecutor would have had authority to guarantee Frazier's
protection from state and/or federal prosecution in Ohio. While the district court and the
Court of Appeals focused on the fact that Frazier's attorney informed him that she had not
spoken with Ohio officials, they paid no heed to the fact that the prosecutor and his



                                                    8
attorney presented him with a contract that could be legally unenforceable against any
prosecutor in Ohio.


       This court has held that misinformation provided to a defendant, especially when
that misinformation is memorialized in writing, constitutes grounds for withdrawal from
the agreement.


       "'A criminal defendant's misinformation from counsel about the applicable law during
       plea negotiations—particularly when reinforced by the written plea agreement and by
       counsel's and the district judge's incorrect statements during the defendant's plea
       hearing—easily constitutes good cause to withdraw no contest pleas under K.S.A. 22-
       3602(a).'" State v. Reu-El, 306 Kan. 460, 474, 394 P.3d 884 (2017) (quoting State v.
       Kenney, 299 Kan. 389, 394, 323 P.3d 1288 [2014]).



       Here, immunity from Ohio prosecution was most certainly a significant factor in
Frazier's decision to enter into the plea agreement. The State plainly conceded that
Frazier relied on the enforceability of the plea agreement. This reliance is further
supported by Frazier's concern over the lack of an Ohio signature on his own plea
agreement, once he realized an Ohio signature could be found on his codefendant's plea
agreement. Intuitively, Frazier was worried his own agreement was not as good as
Gould's, and he was right. A defendant does not understandingly sign a plea agreement
when he relies on an uncertain provision that works in his favor and he justifiably
believes that provision to be a certainty.


       It is irrelevant that Frazier has not faced any charges in Ohio so far, or even
whether Ohio will attempt prosecution and thus truly test the enforceability of the plea
agreement. The question does not hinge on whether Frazier will actually get the deal
represented in the plea agreement, but rather on his implicit belief that lack of
prosecution was a certainty.


                                                    9
       In this situation, "so far, so good" is not good enough. The particular
circumstances of this case show that there is enough uncertainty to indicate Frazier's plea
agreement was not understandingly made. The district court's decision in finding no good
cause for Frazier to withdraw his plea was based on errors of fact and law, which are
grounds for finding abuse of discretion. Accordingly, Frazier must be allowed to
withdraw his plea.


                                           CONCLUSION


       We reverse the judgment of the district court and the decision of the Court of
Appeals and remand this case to the district court for defendant Reginald Frazier to be
permitted to withdraw his no contest plea.


       JEFFREY GETTLER, District Judge, assigned.1


                                              ***

       BILES, J., concurs in the result.




1
 REPORTER'S NOTE: District Judge Gettler was appointed to hear case No. 117,456
under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas
Constitution to fill the vacancy on the court by the retirement of Chief Justice Lawton R.
Nuss.

                                               10
