                           NOT DESIGNATED FOR PUBLICATION

                                             No. 120,644

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                  v.

                                           KELLY RAY LUTHI,
                                              Appellant.


                                    MEMORANDUM OPINION

        Appeal from Riley District Court; MERYL D. WILSON, judge. Opinion filed February 28, 2020.
Affirmed.


        Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.


        Bethany C. Fields, deputy county attorney, Barry R. Wilkerson, county attorney, and Derek
Schmidt, attorney general, for appellee.


Before MALONE, P.J., ATCHESON and SCHROEDER, JJ.


        PER CURIAM: Kelly R. Luthi appeals the denial of his presentence motion to
withdraw his plea of no contest to two counts of violation of the Kansas Offender
Registration Act (KORA), K.S.A. 2019 Supp. 22-4901 et seq., and one count of unlawful
possession of a controlled substance. The district court denied Luthi's motion and
sentenced him to 43 months' imprisonment. Luthi failed to show the district court abused
its discretion when it did not find good cause to allow the withdrawal of his plea. Finding
no error, we affirm.



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                                           FACTS


       The State charged Luthi with eight counts of KORA violations in November 2017.
While out on bond, the State arrested Luthi and charged him in another case with
possession of methamphetamine and drug paraphernalia. Luthi entered into a plea
agreement, which provided Luthi would plead no contest upon the State amending the
information to charge him with two KORA violations and one count of unlawful
possession of a controlled substance. All other charges would be dismissed. The plea
agreement also reflected the State agreed not to file a pending charge for another KORA
violation currently under investigation.


       At the plea hearing, the district court engaged Luthi in a plea colloquy. Luthi
stated he had read the two-page plea agreement, signed it, and discussed its contents and
all of the questions he had with his counsel. Luthi further stated no one had made threats
or promises to get him to sign the document, and he understood he was giving up his
right to a trial by jury. Luthi proceeded to plead no contest to the three charges. The
district court accepted the factual basis provided by the State for Luthi's pleas. The court
found Luthi knowingly, voluntarily, and intelligently waived his rights, accepted his
pleas, and found Luthi guilty.


       Before sentencing, Luthi moved to withdraw his pleas, arguing he was under the
influence of methamphetamine before and during discussions at the plea hearing. The
motion to withdraw his plea was addressed at sentencing. Luthi testified he remembered
reviewing and signing the plea agreement. However, he was requesting to withdraw his
plea because he was "going through really hard times, and [he] was using drugs, simply
methamphetamines and marijuana." Luthi further testified he remembered using
methamphetamine intravenously the day before his plea hearing and snorting it on the
day of the plea hearing. Luthi did not tell the district court or his counsel he was under
the influence of methamphetamine at the plea hearing because he did not want to get in

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trouble. He further claimed he answered the district court's questions at the plea hearing
quickly and correctly to seem coherent and avoid detection. But he claims because he
was under the influence of methamphetamine, he did not knowingly and intelligently
enter his no-contest pleas.


       On cross-examination, Luthi testified he had an extensive criminal history and had
taken a plea for every charge. Luthi also stated he knew, generally, how pleas worked
based on his past and the dismissed charges would be brought against him again if the
court allowed the plea to be withdrawn. However, Luthi believed this case was different
than his past cases because he had a "chance in jury trial." The district court denied
Luthi's motion to withdraw his plea and imposed his sentence.


                                          ANALYSIS


       Luthi now argues the district court abused its discretion when it denied his
presentence motion to withdraw plea. "A plea of guilty or nolo contendere, for good
cause shown and within the discretion of the court, may be withdrawn at any time before
sentence is adjudged." K.S.A. 2019 Supp. 22-3210(d)(1). "[A]n appellate court reviews a
district court's decision to deny a plea withdrawal motion and the underlying
determination that the defendant has not met the burden to show good cause for abuse of
discretion." State v. DeAnda, 307 Kan. 500, 503, 411 P.3d 330 (2018).


       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).




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       A district court typically considers three factors when it addresses whether a
defendant has shown good cause: (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. DeAnda, 307 Kan. at 503 (citing State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986
[2006]). The above factors, known as the Edgar factors, should not be applied
mechanically and to the exclusion of other factors. State v. Fritz, 299 Kan. 153, 154, 321
P.3d 763 (2014).


       The prosecutor questioned Luthi about each Edgar factor individually at the
sentencing hearing. Luthi testified that his counsel was "very, very competent." Luthi
also testified he did not believe he was taken advantage of, misled, coerced, or
mistreated. The district court found Luthi had competent counsel and he was not misled,
coerced, mistreated, or unfairly taken advantage of based on his testimony. Luthi does not
challenge these findings on appeal and instead relies solely on the third Edgar factor in
challenging the denial of his motion to withdraw his plea.


       Luthi asserts he demonstrated good cause under the third Edgar factor to withdraw
his plea and the district court acted unreasonably when it rejected his testimony. Luthi
testified at the sentencing hearing that because of his drug use, "everything was different
than the way it is now." Luthi testified while he understood the terms and consequences
of the plea, he was not fully listening to his counsel or reading the plea because all he
wanted to do was finish the plea hearing without the district court discovering he was
high on methamphetamine. Luthi felt like "everybody was after [him], so [he] signed
[his] papers, [he] answered the Judge's questions." However, the record reflects he was
able to rationalize the need to act fully aware and competent by answering all of the
questions presented to him by his attorney before the hearing and by the court during the
plea hearing.


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       In considering Luthi's motion to withdraw his plea, the district court noted it
previously asked Luthi:


          • If he had read the plea agreement;
          • If he had signed it;
          • If he had the opportunity to discuss the plea agreement's contents with his
               attorney;
          • If he had any questions, and whether his attorney answered his questions to
               his satisfaction;
          • Other than what was contained in the written plea agreement, whether
               anyone had made threats or promises to get him to sign either document;
          • Whether his pleas were made freely and voluntarily; and
          • Whether he understood that by entering his pleas he would waive his right
               to trial by jury.


       To each of these questions, the record reflects Luthi answered yes or no as was
appropriate. The district court found: "All of his answers were absolutely what this Court
would have expected. They were appropriate, and there was no confusion, and they were
respectful."


       The district court judge went on to state he had taken thousands of pleas and
observed defendants under the influence of drugs or alcohol. And he had stopped
numerous proceedings based on his observations and made defendants answer specific
questions about drug use or submit to urinalysis if he had concerns about drug use based
on their actions. The judge further indicated this was not the first time he had had a
chance to observe Luthi. Next, the district judge described the characteristics of people
who had recently used methamphetamine and stated Luthi did not exhibit any of those



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characteristics at the plea hearing. The district court denied Luthi's presentence motion to
withdraw plea finding it was "fairly made . . . and understood" by Luthi.


       Appellate courts generally will not overturn a trial court's weighing of the
evidence or assessment of witness credibility from a cold record. State v. Schaefer, 305
Kan. 581, 595, 385 P.3d 918 (2016). The district court asked Luthi throughout the plea
colloquy whether he read the plea agreement and discussed it with his counsel and
whether he understood the rights he was giving up. Luthi answered yes to all of these
questions. This was not Luthi's first experience with the court system and its procedures.
Luthi argues the district court acted unreasonably when it rejected the credibility of his
testimony, but the record supports the district court's findings. Luthi has failed to show
good cause to withdraw his no-contest pleas under the third Edgar factor. Thus, Luthi has
not met his burden to show the district court abused its discretion.


       Affirmed.




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