                                          No. 110,350

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                       STATE OF KANSAS,
                                           Appellee,

                                                v.

                                       NELSON GLOVER,
                                          Appellant.


                                SYLLABUS BY THE COURT


1.

         In light of a district court's discretion to withdraw a presentence guilty plea for
"good cause" under K.S.A. 2013 Supp. 22-3210(d)(1), appellate courts review such an
order under an abuse of discretion standard.


2.

         Abuse of discretion means that the decision was (1) arbitrary, fanciful, or
unreasonable; (2) based on an error of law; or (3) based on an error of fact. The party
asserting that a district court abused its discretion bears the burden of establishing the
abuse.


3.
         In determining whether a defendant has established good cause to withdraw a plea
prior to sentencing, Kansas courts first consider the Edgar factors: (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


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and understandingly made. In addition, courts should consider any other factors relevant
to the concept of good cause.


4.
          To allow a defendant to automatically withdraw his or her plea prior to sentencing
without a showing of good cause would render pleas temporary and meaningless.


          Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed October 10,
2014. Affirmed.


          Carl Maughan, of Maughan Law Group, of Wichita, for appellant.


          Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before BRUNS, P.J., PIERRON and POWELL, JJ.

          BRUNS, P.J.: Nelson Glover appeals the district court's order denying his motion
to withdraw his plea. Glover contends that his counsel coerced him into pleading guilty.
As a result, he contends that he did not voluntarily and knowingly enter a guilty plea. A
review of the record reveals that Glover's decision was not a product of coercion. Instead,
we find that Glover made a tactical decision based on the advice of competent legal
counsel after extensive plea negotiations. Moreover, we reject Glover's argument that he
should be able to withdraw his plea simply because he changed his mind. Accordingly,
because we conclude that the district court appropriately found that Glover failed to show
good cause to withdraw his plea as required by K.S.A. 2013 Supp. 22-3210(d)(1), we
affirm.




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                                           FACTS

       Glover was one of two men charged with the murder of John C. Tolliver II, which
occurred on July 17, 2011. Originally, Glover was charged with second-degree reckless
murder, aggravated burglary, aggravated robbery, and criminal trespass. The State later
filed an amended information alleging the same charges but under a different theory of
aggravated burglary. Subsequently, the State filed a second amended information
charging Glover with first-degree premeditated murder while leaving the remaining
charges unchanged.


       The district court set the case for a jury trial to begin on October 9, 2012. After a
series of continuances, however, the jury trial was eventually rescheduled for December
10, 2012. Throughout the case, Glover was represented by Steven Mank. It is undisputed
that Mank is an experienced criminal defense attorney who has defended numerous
felony cases and has been on the Sedgwick County felony appointment list for
approximately 20 years. In fact, Glover stated that Mank is "[o]ne of the best attorneys
pertaining to a murder case."


       During Mank's representation of Glover, the two met approximately 15 or 16
times. Early in the case, the two discussed the possibility of a plea agreement. At that
point in time, Glover told Mank that he was not interested in negotiating a plea. Later,
after the State filed its second amended information, Mank advised Glover that he did not
believe there was enough evidence for a first-degree murder conviction. Mank, however,
advised Glover that because of his criminal history he would risk being sentenced to
more than 25 years in prison if convicted of a lesser included offense. Accordingly, it was
Mank's advice that Glover should enter into plea negotiations.


       A few days before the jury trial was scheduled to begin, Glover decided that he
wished to enter into a plea agreement. From that point on, a series of discussions took

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place between Glover, Mank, and the prosecutor as to the amount of time Glover could
realistically receive in exchange for a plea. During the negotiations, Mank told the
prosecutor that he believed Glover should receive less prison time than the other
defendant charged with killing Tolliver because he believed Glover to be less culpable.
Evidently, the other defendant pled guilty in exchange for a recommendation of 184
months in prison.


       Ultimately, after significant negotiations, Glover agreed to plead guilty in
exchange for a recommendation of 152 months in prison. As such, Mank prepared a
"Defendant's Acknowledgement of Rights and Plea" and met with Glover to review the
document on December 9, 2012. During their meeting, Mank explained to Glover the
contents of the written plea agreement and informed Glover that it was his choice alone
whether to go to trial or enter a plea. After considering his options, Glover chose to sign
the written plea agreement.


       On the day the case was scheduled to go to trial, a plea hearing was held. During
the hearing, the district court conducted an extensive colloquy with Glover. At one point
during the colloquy, the following exchange occurred:


       "THE COURT: All right, now the lawyers have prepared some documents here,
       including a Plea Agreement and an Acknowledgment of Rights form. There are
       signatures on these documents, including what appear to be your signatures above the
       word defendant on both these documents. Are those your signatures?


       "THE DEFENDANT: Yes.


       "THE COURT: Have you had a chance to sit down with Mr. Mank and go over these
       documents, have him explain them to you, and answer any questions that you might have
       about what's contained in the documents?


       "A. Yes.
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       "THE COURT: And after doing that was it your decision alone to sign both these
       documents?


       "A. Yes."


       Glover represented to the district court that he had no questions or concerns
regarding the plea agreement. When the district court reviewed the factual basis for the
aggravated burglary charge, however, and asked whether the facts were true, Glover
responded, "No, it is not." Mank stated that he believed Glover was confused regarding
the theories of aiding and abetting. Shortly thereafter, Glover told the prosecutor, "There
wasn't an aggravated burglary," and the district court warned him not to speak directly to
the prosecutor but to direct his comments to the bench or to his attorney. The district
court then adjourned the proceedings so Glover and Mank could confer.


       After conferring with his attorney, Glover decided to go forward with the plea
hearing. When the hearing resumed, the district court said to Glover, "I don't want you to
admit to anything you don't want to admit to . . . so you've had a chance to discuss that
with Mr. Mank; is that correct?" Glover responded, "Yes." The district court then asked
Glover, "[A]re you willing to admit that when you went into that residence you went in
there with the intent to help [the codefendant]?" Again, Glover replied, "[Y]es." The
district court then read the remaining facts relating to the aggravated burglary count, and
Glover indicated they were true.


       At the conclusion of the plea hearing, Glover pled guilty to involuntary
manslaughter, aggravated burglary, and robbery. The district court accepted Glover's
guilty pleas and set the case for sentencing. Prior to the sentencing hearing, Mank met
with Glover to discuss the presentence investigation report. Glover told Mank that the
codefendant had been charged with murder in Colorado and that he wanted to withdraw



                                                 5
his plea. Evidently, Glover believed the Colorado charge somehow proved that the
codefendant was the one who actually murdered Tolliver.


       On February 14, 2013, Glover filed a motion to withdraw his plea, alleging that
Mank had placed undue pressure on him. Accordingly, the district court appointed new
counsel to represent Glover. At a hearing on the motion held on March 15, 2013, both
Glover and Mank testified. Specifically, Glover testified:


       "Q. And during the end of [the meeting] did you feel that Mr. Mank had pressured you at
       that point into entering the plea?


       "A. Yeah, because I ended up taking it.


       "Q. Well, can you describe to the Court how you felt that Mr. Mank pressured you into
       taking the plea?


       "A. I felt how he pressured me because he said this is the best that he can do."


       Later, however, Glover admitted that Mank did not actually place undue pressure
on him:


       "Q. Now why do you want to withdraw your plea as to undue pressure?


       "A. Undue pressure, it is not really about undue pressure. I feel that I was conned into
       taking the plea because they kept coming down because of my criminal history. I can't
       change my criminal history."


       In citing State v. Edgar, 281 Kan. 30, 127 P.3d 986 (2006) and State v. Macias-
Medina, 293 Kan. 833, 268 P.3d 1201 (2012), the district court found that there was
"virtually no evidence to support" the withdrawal of Glover's plea. Rather, the district



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court found the extensive negotiations between Glover and the State showed that he was
fully aware of his rights:


               "A review of the transcript indicates to me all the rights were properly gone over
       with the defendant. There was a careful discussion . . . . This Court does not ask the
       defendant specifically to tell everything that occurred, but there [was a] significant
       colloquy between the Court and the defendant about the situation, about the facts,
       particularly the facts involving when he went into the house, why he went into the house,
       [and] the issue of his responsibility for going into the house."


       Thus, the district court denied Glover's motion to withdraw his plea, and it set the
case for sentencing.


       On May 3, 2013, Glover was sentenced to a total of 152 months in prison. The
district court ordered that restitution be left open and decided within 30 days. Glover filed
a notice of appeal on the same day he was sentenced. After the appeal was docketed, we
issued an order to show cause why the appeal should not be dismissed pursuant to State v.
McDaniel, 292 Kan. 443, 254 P.3d 534 (2011). After receiving responses from the
parties, we retained the appeal.


                                               ANALYSIS

Standard of Review

       In light of a district court's discretion to withdraw a presentence guilty plea for
"good cause" pursuant to K.S.A. 2013 Supp. 22-3210(d)(1), we review such an order
under an abuse of discretion standard. State v. Freeman, 292 Kan. 24, 27-28, 253 P.3d 1
(2011). Abuse of discretion means that the decision was (1) arbitrary, fanciful, or
unreasonable; (2) based on an error of law; or (3) based on an error of fact. Fischer v.




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State, 296 Kan. 808, 825, 295 P.3d 560 (2013). The party asserting that a district court
abused its discretion bears the burden of establishing the abuse. Edgar, 281 Kan. at 38.


       Although Glover recognizes that abuse of discretion is the normal standard used to
review cases such as this, he argues that we should instead use a de novo standard of
review because his due process rights are at issue. The Kansas Supreme Court has noted,
however, that the "Edgar factors do not transform the lower good cause standard of the
statute's plain language into a constitutional gauntlet." State v. Aguilar, 290 Kan. 506,
513, 231 P.3d 563 (2010). Further, the cases Glover relies on did not employ a de novo
standard. See State v. Hill, 247 Kan. 377, 385, 799 P.2d 997 (1990) ("Withdrawal of a
plea is discretionary with the trial court and will not be reversed on appeal unless it is
established that the trial court abused its discretion in refusing to permit withdrawal of the
plea."). Thus, we continue to review the withdrawal of a plea prior to sentencing under an
abuse of discretion standard.


Meaning of "Good Cause" under K.S.A. 2013 Supp. 22-3210(d)(1)

       The plain language of K.S.A. 2013 Supp. 22-3210(d)(1) grants a district court the
discretion to allow a defendant to withdraw his or her plea before sentencing upon a
showing of "good cause." To determine whether a defendant has established good cause,
Kansas courts first look to the Edgar factors: (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. Edgar, 281 Kan. at 36. In addition, district courts may consider other relevant
factors in order not to "distort the concept of good cause." Macias-Medina, 293 Kan. at
837.




                                              8
       Nevertheless, Glover encourages us to abandon the Edgar and Macias-Medina
factors and instead adopt the following definition of "good cause" found in an
employment law case decided by the Kansas Supreme Court in 1980:


       "As applied to a teacher dismissal situation, the [Massachusetts Supreme Court] held the
       term 'good cause' to include 'any ground which is put forward by the committee in good
       faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the committee's
       task of building up and maintaining an efficient school system.' (quoting Rinaldo v.
       School Committee of Revere, 294 Mass. 167, 169, 1 N.E. 2d 37 [1936]) . . . The
       definition of 'good cause' adopted in the Massachusetts case could reasonably be applied
       to the dismissal or nonrenewal of teachers in Kansas." (Emphasis added.) Gillett v.
       U.S.D. No. 276, 227 Kan. 71, 78, 605 P.2d 105 (1980).


       Based on Gillett, Glover contends that as long as the grounds for withdrawal are
not "arbitrary, irrational, unreasonable, or irrelevant," district courts should allow
defendants to withdraw their pleas prior to sentencing. On its face, however, Gillett is
limited to cases involving the dismissal of teachers. Moreover, the holding in Gillett was
superseded by statute and is no longer applicable even in teacher dismissal or other
employment law cases. See U.S.D. No. 500 v. Robinson, 262 Kan. 357, 360, 940 P.2d 1
(1997). Accordingly, we have no reason to believe that the Kansas Supreme Court would
adopt the "good cause" definition found in Gillett in cases involving motions to withdraw
pleas pursuant to K.S.A. 2013 Supp. 22-3210(d)(1).


       At oral argument, Glover's attorney argued that defendants should be permitted to
withdraw their pleas prior to sentencing simply because they have changed their minds
upon reflection. Although we find this argument to be intriguing, Glover is basically
asking us to rewrite the language of K.S.A. 2013 Supp. 22-3210(d)(1) by changing the
"good cause" standard to a "no cause" standard; in other words, to make withdrawal of a
plea automatic if it is requested before sentencing. Of course, if such a change in public



                                                     9
policy is to be made, it should be made by the Kansas Legislature—not by this court. See
State v. Cheeks, 298 Kan. 1, 11, 310 P.3d 346 (2013).
       Furthermore, the United States Supreme Court has warned against the adoption of
an automatic withdrawal standard after a plea has been accepted, finding:


       ""'Were withdrawal automatic in every case where the defendant decided to alter his
       tactics and present his theory of the case to the jury, the guilty plea would become a mere
       gesture, a temporary and meaningless formality reversible at the defendant's whim. In
       fact, however, a guilty plea is no such trifle, but a 'grave and solemn act,' which is
       'accepted only with care and discernment.'"'" United States v. Hyde, 520 U.S. 670, 677,
       117 S. Ct. 1630, 137 L. Ed. 2d 935 (1997) (quoting Advisory Committee's Notes on Fed.
       R. Crim. Proc. 32).


See Starrs v. Virginia, 287 Va. 1, 752 S.E.2d 812 (2014); United States v. Molina-
Chavez, 10-CR-0187-CVE, 2011 WL 917716 (N.D. Okla. 2011), aff'd 450 Fed. Appx.
707 (10th Cir. 2011).


       Like Kansas courts, federal courts do not allow defendants to automatically
withdraw their pleas once the district court has accepted them. Rather, under Fed. R.
Crim. Proc. 11(d) (formerly Fed. R. Crim. Proc. 32[e]), a defendant can withdraw a plea
after it has been accepted by a district court only if he or she can show a "fair and just
reason" for the withdrawal. Similar to the factors considered by Kansas courts in
applying the "good cause" standard, federal courts consider the following factors in
applying the "fair and just reason" standard: "(1) whether the defendant has asserted his
innocence, (2) prejudice to the government, (3) delay in filing defendant's motion, (4)
inconvenience to the court, (5) defendant's assistance of counsel, (6) whether the plea is
knowing and voluntary, and (7) waste of judicial resources. [Citation omitted.]" United
States v. Muhammad, 747 F.3d 1234, 1241 (10th Cir. 2014), cert. denied 134 S. Ct. 2741
(2014).


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       Hence, we decline Glover's invitation to expand the definition of "good cause" in
K.S.A. 2013 Supp. 22-3210(d)(1). To do otherwise might render a guilty plea temporary
and a meaningless gesture. Instead, we will continue to apply the factors set forth in
Edgar and Macias-Medina to determine whether a defendant has shown "good cause" for
the withdrawal of a plea.


Application of Edgar and Other Relevant Factors

       In the present case, Glover conceded that his trial attorney was competent. Instead,
Glover sought to withdraw his plea because he claimed his trial attorney unduly
pressured him to accept a plea agreement. At the hearing on the motion to withdraw his
plea, however, Glover admitted "it is not really about undue pressure. I feel that I was
conned into taking the plea because they kept coming down because of my criminal
history. I can't change my criminal history." Thus, it appears that the pressure Glover felt
to enter into a plea agreement was caused by his criminal history and the sentencing
guidelines—not by any coercion from his trial attorney.


       Glover also argues that he should be allowed to withdraw his plea because he was
unfamiliar with the legal system. But a review of the record reveals that Glover has an
extensive criminal background. In addition, Glover refused to negotiate a plea during the
early stages of this case and later rejected two plea offers that he received from the State.
Likewise, the record shows that there were extensive negotiations between Glover and
the State regarding the length of his prison sentence. As such, we do not find that Glover
was unfamiliar with the legal process or that he passively accepted the plea agreement
that was ultimately negotiated.


       Glover also argues that his plea was not voluntarily entered because he tried to
object to the aggravated burglary count during the plea colloquy but was rebuked by the
judge for talking to the prosecutor. But a review of the record of the plea hearing reflects

                                             11
that Glover voluntarily pleaded to aggravated burglary. Although Glover was told to
direct his remarks to the bench or to his attorney rather than the prosecutor, the district
court did not rebuke him. Moreover, the district court took time to discuss the aggravated
burglary charge with Glover and adjourned the proceedings so he could confer with his
attorney before deciding to enter his plea.


       Glover's last argument is that his trial attorney improperly used Glover's mother to
convince him to enter into a plea agreement. But Glover never argued this point at the
district court. He, therefore, cannot raise the issue on appeal. State v. Holt, 298 Kan. 469,
477, 313 P.3d 826 (2013) (A point not raised in the district court cannot be raised for the
first time on appeal.). Moreover, even if he had raised the issue below, we do not find
that this constitutes "good cause" to withdraw his plea. See State v. Denmark-Wagner,
292 Kan. 870, 877, 258 P.3d 960 (2011); State v. Stegnik, No. 104,072, 2013 WL
1234186, at *8 (Kan. App. 2013) (unpublished opinion), rev. denied 297 Kan. 1255
(2013). At most, the record reflects that his trial attorney simply conveyed to Glover that
his mother believed the plea would be a good deal.


       Finally, we pause to note that the same judge presided over both the plea hearing
and the withdrawal hearing. This is relevant in the present case because the trial judge
noted that he recalled portions of the plea hearing. The Kansas Supreme Court has
recognized that this is an important consideration in light of a district court's ability to
observe witnesses:


               "Perhaps most importantly for our purposes, the same judge presided at the plea
       hearing and at the motion to withdraw plea hearing. At the plea hearing, the judge was
       able to observe [defendant] when he stated that he understood the nature of the charges
       against him; that he understood his rights; that he was entering a plea of his own volition;
       and that he was not threatened or coerced into entering the plea. Thus, when [defendant]
       testified at the plea withdrawal hearing that he had been misled, coerced, and forced to
       enter a plea, the judge was able to ascertain that such testimony 'did not comport with

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      what occurred at the time of plea,' and to draw a conclusion as to which contradictory
      testimony was more credible. Likewise, the judge had the opportunity to observe the
      demeanor of the attorney and interpreter when they contradicted [defendant's]
      characterization of the plea discussions." Macias-Medina, 293 Kan. at 839.


      We, therefore, conclude that the district court did not abuse its discretion in
denying Glover's motion to withdraw his plea.


      Affirmed.




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