                       NOT DESIGNATED FOR PUBLICATION

                                            No. 120,583

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                        STATE OF KANSAS,
                                            Appellee,

                                                  v.

                                   TIMOTHY SCOTT LAFFOON,
                                         Appellant.


                                  MEMORANDUM OPINION

       Appeal from Bourbon District Court; MARK ALAN WARD, judge. Opinion filed April 3, 2020.
Affirmed.


       Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.


       Jacqie Spradling, county attorney, and Derek Schmidt, attorney general, for appellee.


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


       PER CURIAM: Timothy S. Laffoon pleaded guilty to aggravated assault with a
deadly weapon and criminal threat. He appeals the district court's denials of his motion to
continue a plea withdrawal hearing and his presentence motion to withdraw his plea.
Because we find the district court did not abuse its discretion by denying either motion,
we affirm.




                                                   1
Factual and Procedural Background


      The State charged Laffoon with aggravated assault with a deadly weapon, two
counts of criminal threat, and criminal use of a weapon. Following a signed plea
agreement, he pleaded guilty to aggravated assault with a deadly weapon and one count
of criminal threat. The State dismissed the remaining counts.


      At the plea hearing in April 2018, Burton Harding represented Laffoon. Harding
explained that, after going over the plea agreement, Laffoon wished to plea. Under oath,
Laffoon agreed he had read and discussed with Harding every part of the petition to enter
a plea. Laffoon stated he understood the consequences of pleading to two felonies.
Laffoon confirmed that his plea was voluntary. He also affirmed he had sufficient time to
discuss his plea with Harding and was satisfied with Harding's representation. When the
district court asked him if he was pleading guilty because he was guilty, Laffoon
responded, "Yes, sir."


      The State gave this factual basis for the plea:


      "If the Court please, on the evening of August 22nd, 2017, law enforcement officers were
      dispatched to a home here in Bourbon County, Kansas. There they met and spoke with
      Tamara Royal-Bey, who indicated that this defendant had come over to her house and
      had taken an aggressive stance displaying a switchblade knife in his right hand and
      pointed that knife at her and her family. As a result of the defendant's actions, Ms. Bey
      was placed in a reasonable apprehension of immediate bodily harm. In an attempt to
      protect his mother, her 16-year-old son, DLR, instructed the defendant to leave the
      premises. The defendant told the juvenile, quote, watch who you fuck with, end quote,
      intending that statement to cause fear in the juvenile."




                                                   2
        Laffoon affirmed this would be the State's evidence at trial. Finding Laffoon had
made the plea freely and voluntarily and had admitted to the essential factual elements for
the crimes, the district court accepted Laffoon's plea.


        On May 1, 2018, Harding filed both a motion to withdraw as counsel and a motion
to withdraw Laffoon's plea. The plea withdrawal motion stated Laffoon wished to
withdraw his plea because "Mr. Laffoon has a difference of opinion from his attorney and
no longer wishes to take his attorney's advice." The State responded that the district court
should summarily deny Laffoon's plea withdrawal motion because Laffoon had not
asserted facts showing good cause to withdraw a plea.


        Despite having moved to withdraw as counsel, Harding continued to represent
Laffoon at several hearings. At each hearing, the district court granted continuances to
address issues with representation. On July 5, 2018, the district court granted Harding's
withdrawal as Laffoon's counsel. Five days later, the district court appointed Jason
Wiske.


        On July 12, 2018, Jason Wiske appeared with Laffoon before the district court.
Wiske moved the district court to set the plea withdrawal hearing and sentencing for early
September. This was so Wiske would have time to meet with Laffoon and review the
case before Laffoon's sentence. The district court continued the hearing to September 28,
2018.


        At the start of the September hearing, Wiske moved the district court for a
continuance because Wiske had not been able to meet with Laffoon. He also wanted to
file a "proper motion" once he had heard why Laffoon wanted to withdraw his plea. The
State did not object to a continuance. But instead of continuing the case, the district court
allowed Wiske to confer with Laffoon in the hallway. Upon return, Wiske still requested


                                              3
a continuance to research the issue and file a new motion. The district court denied this
request and proceeded with the hearing.


       While testifying, Laffoon explained he wanted to withdraw his plea because


       "[Harding and I] really didn't have a chance to talk and I really didn't realize how serious
       the charges were. I didn't realize I would go up from my level H to level B on the felony
       scale I guess. That was pointed out to me by my probation officer."


Laffoon also wanted to tell his side of the story, which he felt he never had a chance to
do.


       As to the facts, Laffoon admitted that Harding had sent him the State's documents,
but he alleged Harding had not reviewed the evidence with him. Laffoon admitted
Harding had walked him through the plea agreement, and Laffoon had signed it. Laffoon
also affirmed that he had signed the petition to indicate he had every opportunity to talk
to Harding about the consequences of his plea.


       Harding testified for the State that he had explained to Laffoon on multiple
occasions: the charges, the evidence, the best options, the plea agreement, and the
consequences of his plea. Harding testified that Laffoon was never happy with the plea.
But, based on the evidence, Harding believed a plea would be in Laffoon's best interest.
According to Harding, after many discussions, Laffoon decided to enter the plea
knowingly, voluntarily, and intelligently. Harding also testified that he had told Laffoon
that this conviction would severely affect his criminal history.


       The district court denied Laffoon's plea withdrawal motion. It stated that although
it could have denied Laffoon's motion on its face, it allowed Laffoon a hearing. Based on
the testimony, the district court found that Laffoon had satisfied none of the Edgar

                                                    4
factors. See State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). Instead, it found that
Harding was competent and effective counsel and Laffoon fairly and knowingly entered
his plea. The district court determined that Laffoon's after-the-fact realization that he
would be criminal history score B was not good cause to withdraw a plea.


       The district court then sentenced Laffoon to 24 months of probation with an
underlying 13-month prison sentence.


       Laffoon timely appeals.


Did the District Court Err in Denying Laffoon's Request for a Continuance?


       We first address Laffoon's argument that the district court abused its discretion by
unreasonably denying his motion to continue the plea withdrawal hearing. Laffoon also
contends this denial violated his Sixth Amendment right to counsel.


       Standard of Review

       In a criminal case, the decision to grant a continuance lies within the district
court's sound discretion. As a result, this court reviews a denial of continuance under the
abuse of discretion standard. State v. Haney, 299 Kan. 256, 259, 323 P.3d 164 (2014). 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). The party asserting the district
court abused its discretion bears the burden of showing such abuse of discretion. State v.
Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018). And, under abuse of discretion, this
court defers to the district court's fact finding, declining to reweigh evidence or assess
witness credibility. See State v. Woodring, 309 Kan. 379, 380, 435 P.3d 54 (2019).



                                                5
       Analysis

       After allowing Wiske and Laffoon to meet in the hallway, the district court denied
the renewed request to continue the hearing:


       "Well, I can appreciate your request for a continuance. This case has been pending
       though, for a long time. As I indicated previously, it's a relatively straightforward issue.
       To be quite honest, I could have denied the motion sua sponte without appointing a new
       attorney and scheduling for a hearing based on the law, but I've decided to allow Mr.
       Laffoon the opportunity to have a different attorney on this and to be able to tell the
       Court—if you are going to call him, Mr. Wiske—tell the Court his reasons to withdraw
       the plea. So let's go ahead and complete the hearing. The burden is on the defendant."


       On appeal, Laffoon contends the district court's ruling was unreasonable. First,
Laffoon contends the district court unreasonably justified its denial in mentioning the
length of the case. Wiske represented Laffoon for only two months before the hearing
and during that time Laffoon did not have a phone or transportation.


       Still, a reasonable person could believe that two months was sufficient time for
Wiske and Laffoon to act on this case. And the record shows that, despite Laffoon's lack
of phone or transportation, he had been able to meet with Harding on multiple occasions.
Often, Laffoon and Harding would meet in the hallway of the courthouse, as the district
court allowed here. And the record does not reveal that Laffoon's circumstances
detrimentally changed between Harding and Wiske's representation. Thus Laffoon's
arguments do not convince us that the district court was unreasonable in considering the
length of the case.


       Second, Laffoon argues the district court mistook the issue as straightforward.
Laffoon contends the district court could not know if the issue was straightforward
because "there had been no real motion filed." Yet this fails to show how the district

                                                     6
court was unreasonable. The district court needed to consider only the motion before it—
it could not anticipate grounds not stated in the motion. The district court was not
obligated to hold a hearing on that motion. See Supreme Court Rule 133(c) (2019 Kan. S.
Ct. R. 204) (stating the district court may forego a motion hearing if oral argument would
not materially aid the court). It was not unreasonable for the district court to consider
whether to grant continuance for a hearing on that motion. And, as the district court noted
and Laffoon admits, the motion was facially deficient. Thus, the district court properly
found the motion to be straightforward.


       Third, Laffoon argues the district court was unreasonable because it failed to allow
Wiske to correct the facially deficient motion. But the district court was under no duty to
continue the hearing to allow Wiske to file a new motion. See State v. Beaman, 295 Kan.
853, 864, 286 P.3d 876 (2012) ("[S]imply arguing that there 'may' be an issue worthy of
another motion is insufficient to justify a continuance.").


       Despite Laffoon's failure to amend his plea, the district court allowed Laffoon to
testify why he wanted to withdraw his plea. Then the district court analyzed all the
evidence using the proper legal standard—the three Edgar factors. We find that the
district court acted reasonably and did not abuse its discretion in denying Laffoon's
motion to continue.

Did the District Court Deny Laffoon His Right to Effective Assistance of Counsel in
Violation of the Sixth Amendment?



   Laffoon also claims that the district court's denial of a continuance violated his Sixth
Amendment right to the effective assistance of counsel.




                                              7
       Standard of Review

       When a defendant claims the denial of a continuance deprived him of rights under
the United States Constitution, we review the challenge under a de novo standard. State v.
Robinson, 303 Kan. 11, 85, 363 P.3d 875 (2015), disapproved of on other grounds by
State v. Cheever, 306 Kan. 760, 402 P.3d 1126 (2017).

       Analysis

       The Sixth Amendment right to counsel extends to defendants in postconviction
proceedings where the State is represented by counsel. See State v. Prado, 299 Kan.
1251, 1256, 329 P.3d 473 (2014). So Laffoon had the right to counsel at the motion
hearing because the State was represented by counsel.


       Laffoon does not contend Wiske was ineffective. Instead, Laffoon claims that the
district court violated his Sixth Amendment right to counsel because it "denied the
opportunity to be effectively represented by counsel."


       However, the district court's restriction on Wiske's opportunity to further meet
with Laffoon and to file a new motion is not per se a Sixth Amendment violation. See
Morris v. Slappy, 461 U.S. 1, 11, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983) ("Not every
restriction on counsel's time or opportunity to investigate or to consult with his client or
otherwise to prepare for trial violates a defendant's Sixth Amendment right to counsel.").
A district court's denial of a continuance violates the Sixth Amendment only where it
denies it on "an unreasoning and arbitrary 'insistence upon expeditiousness in the face of
a justifiable request for delay.'" 461 U.S. at 11-12 (citing Ungar v. Sarafite, 376 U.S. 575,
589, 84 S. Ct. 841, 11 L. Ed. 2d 921 [1964]). As shown above, the district court's denial
was reasonable. Thus it does not reach this standard.




                                              8
        Yet Laffoon seeks a constitutional hook by analogizing this case to State v.
Anthony, 257 Kan. 1003, 1019, 898 P.2d 1109 (1995). Laffoon asks this court to use the
five factors Anthony considers when a continuance is sought to retain new counsel—all
of which he believes are in his favor.


        "Anthony applies in situations where defendant seeks a continuance for the
purpose of retaining new counsel, thereby placing the defendant's Sixth Amendment right
to counsel of choice in competition with the court's discretionary power to deny
continuances. 257 Kan. at 1019." Robinson, 303 Kan. at 90. In Anthony, the defendant
requested a continuance twenty days before trial to allow his appointed counsel to
withdraw and his newly retained counsel time to prepare for trial. His motion for new
counsel hinged on receiving a continuance. Thus, the district court's discretion was
placed inapposite to the defendant's right to counsel.


        That is not the case here. When the district court denied Laffoon's continuance,
Wiske had served as his counsel for almost three months. And Laffoon was not seeking
new counsel. Thus, Laffoon's case is not analogous to Anthony and we do not apply its
test. See State v. Ly, 277 Kan. 386, 391, 85 P.3d 1200 (2004) (stating Anthony five-factor
test only applies when defendant requests a continuance so he could retain new counsel).


        Laffoon's claim that he was denied the opportunity to be effectively represented by
counsel does not amount to a Sixth Amendment claim.


Did the District Court Err in Denying Laffoon's Presentence Motion to Withdraw His
Plea?


        The district court denied Laffoon's presentencing motion to withdraw his plea
because Laffoon failed to show good cause. Laffoon argues this was an abuse of
discretion. He first contends the district court incorrectly applied the Sixth Amendment

                                             9
right to counsel standard instead of the lower Edgar competent counsel standard. Second,
Laffoon believes that the first and third Edgar factors are met, showing good cause.
Third, he argues his plea was not fairly and knowingly made because the district court
lacked a sufficient factual basis to accept it.


       Preservation


       If an issue was not raised in the district court, it cannot be raised on appeal. See
State v. Williams, 298 Kan. 1075, 1085-86, 319 P.3d 528 (2014). Under Kansas Supreme
Court Rule 6.02(a)(5) to preserve an issue, an appellant must point to the specific location
in the record where he raised the issue and when the court ruled on that issue. (2019 Kan.
S. Ct. R. 34). The reason for this rule is simple—a trial court cannot wrongly decide an
issue never before it. See State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003).
While some exceptions apply to this rule, failure to argue an applicable exception may
lead to this court to refuse to hear the issue. See State v. Godfey, 301 Kan. 1041, 1043-44,
350 P.3d 1068 (2015).


       Laffoon's motion stated that he wanted to withdraw his plea because of his
disagreements with Harding. At the plea withdrawal hearing, Laffoon offered different
reasons:


           • "We really didn't have a chance to talk and I really didn't realize how
              serious the charges were. I didn't realize I would go up from my Level H to
              Level B on the felony scale I guess."


           • "I'd like to tell my side of the story, actually. I never had a chance to do
              such a thing."




                                                  10
       Using an Edgar factor analysis, the district court ruled Laffoon failed to meet his
burden to show good cause. The district court determined Laffoon's actual rationale for
withdrawing his plea: "I understand what you are saying, Mr. Laffoon. You found out
after the fact that if you commit a new felony in the future, that you are going to be
criminal history B." While Laffoon did not make a legal argument at the hearing,
Laffoon's argument could be interpreted as twofold: (1) Harding was incompetent
counsel, and (2) because Harding did not give the exact new criminal history score,
Laffoon did not enter his plea fairly and understandingly. Viewing these arguments
generously, we find Laffoon's first two issues are preserved—that the district court
incorrectly applied the Sixth Amendment right to counsel standard, and that the first and
third Edgar factors are met.


       But Laffoon's third issue is that the district court failed to find a sufficient factual
basis for his plea. Laffoon contends that factual basis was insufficient because the State
failed to proffer evidence of a true threat. He argues that his statement "Watch who you
fuck with" was "simply a statement . . . warning [the juvenile] to quit messing" with him,
but it is not a threat to commit violence. Yet Laffoon does not show where he raised this
issue in the record. And Laffoon does not identify an applicable exception which would
permit him to raise this issue for the first time on appeal. See State v. Sanders, 310 Kan.
279, 303, 445 P.3d 1144 (2019) (refusing to review related, but distinguishable, issues for
failure to explain why issues were properly before the court). Thus this third issue is not
preserved.


       Standard of Review

       An appellate court reviews the denial of a presentence motion to withdraw a plea
and the underlying determination that the defendant has not met its burden to show good
cause under the abuse of discretion standard, which we explained above.



                                              11
       Analysis

       A defendant may withdraw a plea for good cause and within the discretion of the
district court at any time before sentencing. K.S.A. 2019 Supp. 22-3210(d)(1). In
determining whether the defendant has shown good cause, the district court typically
considers the following three factors—commonly known as the Edgar factors:
(1) whether competent counsel represented the defendant; (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. DeAnda, 307 Kan. 500, 503, 411 P.3d 330
(2018) (quoting Edgar, 281 Kan. at 36). These factors do not form an exclusive list, so
the district court may consider other factors when considering the existence of good
cause. 307 Kan. at 503. If a defendant fails to show good cause, the district must deny the
defendant's request to withdraw his plea. State v. Brown, 46 Kan. App. 2d 556, 562, 263
P.3d 217 (2011).


       No error of law in finding counsel competent

       Laffoon first claims that the district court incorrectly applied a higher legal
standard when considering Harding's representation. When deficient attorney
performance under the Sixth Amendment is alleged, the court applies the two-pronged
Strickland analysis: "(1) whether the attorney's performance fell below an objective
standard of reasonableness and (2) whether there is a reasonable probability that, but for
the attorney's errors, the result of the proceeding would have been different." State v.
Kelly, 298 Kan. 965, 969, 318 P.3d 987 (2014) (citing Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]). However, to show good cause to
withdraw a plea, the defendant need not show counsel's constitutionally deficient
performance. Rather, counsel's "'[m]erely lackluster advocacy'" may be enough to show
good cause under the first Edgar factor. State v. Schaefer, 305 Kan. 581, 589, 385 P.3d
918 (2016).


                                             12
       Laffoon argues he showed good cause because Harding was lackluster. And he
contends the district court incorrectly applied the higher constitutional test, instead of the
Edgar test, and thus failed to find good cause. Laffoon bases this on the district court's
statement: "There's been insufficient evidence presented that Mr. Harding was ineffective
or incompetent counsel. . . . So I'm going to find Mr. Harding was competent and
effective counsel." (Emphases added.)


       Yet merely using the word "effective" does not mean the district court applied the
higher standard. Even so, the district court could have applied both standards without
making an error of law, as long as the lower Edgar standard controlled its analysis. And
the record shows that when reciting the applicable law, the district court cited the correct
Edgar standard—nowhere did the district court cite Strickland or its constitutional test.


       But even assuming the district court misapplied the law, we find such an error to
be harmless. No evidence shows that Harding's representation of Laffoon was arguably
lackluster. As the district court found:


       "In fact, the testimony has been that he had met with you several times, had several
       conversation[s] with you regarding this case. He advised you on several occasions of a
       likelihood of success at trial as opposed to a plea. He negotiated a plea bargain which
       resulted in a dismissal of one-half of your charges, including a person felony what was
       dismissed as a result of this plea bargain."


We find no legal error.


       No abuse of discretion in finding Laffoon failed to show good cause

       Next, Laffoon argues that he showed good cause. To overturn the district court's
finding to the contrary, Laffoon "must establish that no reasonable person would have
agreed with the district court's assessment of the three Edgar factors and its ultimate

                                                      13
conclusion that [Laffoon] failed to establish good cause to withdraw his plea." State v.
Reu-El, 306 Kan. 460, 472, 394 P.3d 884 (2017).


       As to the first Edgar factor—whether competent counsel represented the
defendant—Laffoon contends that two factors show why it was unreasonable to find that
Harding was competent counsel. First, he believes he was improperly charged with the
second criminal threat and criminal use of a weapon. He contends these charges would
have been dismissed, even without a plea agreement. Thus he argues the plea deal
Harding brokered was no bargain at all and its benefits were "illusory." Second, he points
to his ignorance about his new criminal history score. For Laffoon, both factors indicate
that Harding was lackluster and incompetent.


       But Laffoon did not proffer this illusory benefit argument to the district court. It is
the defendant's burden to show good cause. Brown, 46 Kan. App. 2d at 561. While the
plea agreement was discussed in evidence, Laffoon did not make an illusory benefit
argument below or discuss his dissatisfaction with the benefits of the plea agreement. It
was Laffoon's burden to present this issue, as a good cause showing, to the district court.
He failed to do so. A trial court cannot wrongly decide an issue never before it. See
Williams, 275 Kan. at 288. Thus we will not address Laffoon's illusory benefit argument.


       We address whether it was reasonable for the district court to discount Laffoon's
ignorance about his criminal history as a factor indicating Harding's incompetence. While
Harding could not recall if he mentioned the exact level of criminal history, he told
Laffoon that "two person felonies would have a severe impact on his criminal history." A
reasonable person could agree that Harding was not incompetent or lackluster when he
accurately warned Laffoon about the impact of a future felony on his criminal history
score, albeit in general terms.




                                             14
       Further, ample evidence supports the district court's finding that Harding was
competent. Harding had been a criminal defense attorney for almost ten years. Harding
habitually met with Laffoon, despite Laffoon's inability to access a phone or
transportation. Harding sent Laffoon copies of the evidence against him. Harding
discussed with Laffoon many times his options for trial and a plea. And he told Laffoon
the plea would severely affect his criminal history score. Harding negotiated a beneficial
plea agreement with the State. The State agreed to dismiss some charges, to recommend
that the sentences run concurrently, to recommend the "mid box," and to not file a
departure motion. Thus the district court was reasonable in finding that Laffoon failed to
show the first Edgar factor.


       Laffoon does not challenge the district court's finding that he was not misled,
coerced, mistreated, or unfairly taken advantage of—the second Edgar factor.


       As to the third Edgar factor—whether the plea was fairly and understandingly
made—Laffoon argues because he did not know his criminal history score would be a B
if he committed another felony, he showed that his plea was not fairly or understandingly
made. And he contends the district court was unreasonable in finding otherwise.


       We disagree. As we noted above, Harding more than once discussed the plea with
Laffoon. He told Laffoon his plea could have severe consequences on his criminal history
score. Laffoon signed the plea petition, stating he entered the plea freely and voluntarily
and he understood all matters set forth in the complaint. At the plea hearing, Laffoon
testified he had read and discussed with Harding every part of the petition to enter a plea.
Laffoon said he understood the plea agreement, knew its consequences, and entered it
knowingly and voluntarily. Laffoon stated he understood that he was pleading to two
felonies and their consequences. He also stated he had sufficient time to discuss this plea
with Harding and was satisfied with Harding's representation. Thus it was reasonable for
the district court to find that Laffoon failed to show the third Edgar factor.

                                             15
      Conclusion

      The district court did not abuse its discretion by denying Laffoon's motion for a
continuance or his motion to withdraw his plea.


      Affirmed.




                                           16
