                         NOT DESIGNATED FOR PUBLICATION

                                            No. 121,281

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          IRINEO GARCIA
                                             Appellant,

                                                  v.

                                        STATE OF KANSAS,
                                            Appellee.


                                 MEMORANDUM OPINION

       Appeal from Seward District Court; BRADLEY E. AMBROSIER, judge. Opinion filed August 14,
2020. Affirmed.


       Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.


       Russell Hasenbank, county attorney, and Derek Schmidt, attorney general, for appellee.


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


       PER CURIAM: Irineo Garcia appeals the trial court judge's judgment not to recuse
from Garcia's case after it was remanded by this court. Garcia also appeals the trial
court's judgment denying his motion to withdraw his guilty plea. Because we conclude
that the trial judge had no duty to recuse from Garcia's case, and that the trial court's
denial of his motion to withdraw plea was supported by substantial competent evidence,
we affirm the trial court.


       In February 2013, Garcia entered no-contest pleas to three counts of attempted
second-degree murder, in violation of K.S.A. 2010 Supp. 21-3402 and K.S.A. 2010 Supp.

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21-3301. Based on those pleas, the trial court convicted Garcia of the attempted murder
of his three children, who were then four, six, and seven years of age. In exchange for
Garcia's plea of no contest to the amended complaint, the State agreed to ask for the three
counts to run consecutively, with an upward durational departure to 294 months'
imprisonment. At the plea hearing, the court asked Garcia if there were any promises
made to cause him to enter his pleas. Garcia said no. The court asked Garcia if the reason
he accepted the plea offer was because he would likely receive a longer sentence if he
went to trial. Garcia said yes. At sentencing in March 2013, the court followed the plea
agreement, found the proposed aggravating factor, and ordered a total sentence of 294
months' imprisonment.


       In December 2016, Garcia moved the trial court for habeas corpus relief under
K.S.A. 60-1507 and moved to withdraw his plea under K.S.A. 22-3210(d). In this
motion, Garcia alleged that if not for "my attorney and the prosecution saying that my
kids would be allowed to visit me, I would not have taken a plea bargain and would have
gone to trial." Garcia alleged the following: "By making me these promises [my counsel]
coerced me into the plea agreement he violated my due-process, because I told him I
would take my case to trial if I could not visit with my kids."


       The trial court treated the motion as one for habeas corpus relief under K.S.A. 60-
1507 and denied it as untimely. See K.S.A. 2019 Supp. 60-1507(f) (one-year time limit).
The trial court's summary denial noted that Garcia made "no attempt at showing manifest
injustice," i.e., the exception allowing for filing beyond the one-year time limit. See
K.S.A. 2019 Supp. 60-1507(f)(2). The court also stated that "the very heart of [Garcia's]
motion is almost beyond belief and warrants no further consideration by this Court."
Garcia appealed.


       On appeal, this court reversed the trial court. Garcia v. State, No. 117,582, 2018
WL 3945932, at *3 (Kan. App. 2018) (unpublished opinion). First, this court

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characterized Garcia's motion as a motion to withdraw his plea. 2018 WL 3945932, at *1.
This court then held that Garcia's allegations, if proven in an evidentiary hearing, would
provide a basis for relief. 2018 WL 3945932, at *2. Then this court remanded the case to
the trial court for an evidentiary hearing.


       At the beginning of the trial court's evidentiary hearing, Garcia asked the judge to
recuse himself based upon "the way you responded to my motion, saying that you
thought it was ludicrous for me to even bring this appeal back up." The trial court denied
the request, determining that "[p]revious rulings are not a basis for recusal." The court
then heard testimony on the circumstances of Garcia's plea agreement.


       First, Garcia testified that his attorney told him that his children could visit him
while he was in prison. He testified that this was "the only reason I took the plea, so that I
would be able to be a father to them." Garcia testified that his attorney worked with the
prosecution to arrange visitation in the Seward County Jail on the day of sentencing, as "a
show of good faith."


       Also, Garcia testified that he did not speak to his children until after sentencing.
Yet, Garcia also stated that, in deciding whether to take the plea, he spoke with his
children during a jail visit and asked them if they wanted to visit him in prison. He
testified that his children said yes, which caused him to enter the plea agreement because
it would allow him visitation with his children.


       Garcia testified that he submitted visitation forms shortly after the Kansas
Department of Corrections (KDOC) took custody of him. Garcia agreed with prison
officials that his initial maximum security setting would be too scary for the children.
And so, Garcia waited to pursue visitation until after he was reassigned to a low-medium
security prison. He then believed the children would not be scared.


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       After Garcia was transferred into a low-medium security prison, the officials there
denied his request for visitation. At this point, Garcia, believing that his plea agreement
contained a condition requiring the prison officials to allow him to see his children,
surmised that the plea agreement was not enforceable. And so, Garcia believed that his
trial attorney and the prosecutor "should have known or they should have investigated" if
the prison would be bound by the plea agreement.


       Next, the children's mother testified that a no-contact order prevented Garcia from
speaking to her or the children before Garcia took the plea agreement. She also testified
that the plea agreement left communication open. ("The kids could communicate with
him if they wished, and visitation was an option.") She testified that the children had not
decided whether to visit Garcia in prison.


       Clint Floyd, Garcia's attorney, also testified. Floyd testified that the plea
agreement did not contain any promise about visits at the prison. Floyd also testified:
"There was some discussions about whether or not he would have a visit here locally at
the Seward County Jail, and that was a driving point from day one." A court order
prevented Garcia from having contact with his children until sentencing. Floyd explained
to Garcia that lifting the no-contact order would allow his children to visit him in jail
immediately after sentencing and would leave open the possibility of prison visits if the
children and their mother wanted to visit him. Floyd negotiated with the county attorneys,
who agreed that the State's recommendations at sentencing would permit contact. Floyd
then worked with the county attorney's office, the victim coordinator, the children's
mother, jail staff, and the sheriff to arrange a visit once the existing no-contact order
ended at sentencing.


       Floyd was also asked whether there were any assurances to Garcia that his
children would visit him at the penitentiary. Floyd testified as follows:


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       "No. We specifically talked about that. We talked about whether or not, you know, he
       could write his children. I said we would have to get through a plea or a trial, get through
       the sentencing phase, and depending on what was in the PSI about whether or not the
       court would continue a no-contact order with his kids as victims of the case . . . . Part of
       our plea did include lifting the no-contact order to allow that type of visitation. The PSI
       does reflect that. There's no marking for no visitation or no contact with the victims."


       Floyd also testified that there were never any plea negotiations that included any
promises that Garcia's children would visit him in prison. The prosecutor who handled
the case also testified that the State never made a plea offer which promised Garcia that
his children would visit him in prison. The trial court denied Garcia's motion to withdraw
his plea.


       Garcia timely appeals the trial court's order denying his motion.


Did the Trial Court Judge Err by Not Recusing Himself on Remand?


       Garcia argues that the trial court erred in denying his request for a recusal. Garcia
points to the court's initial denial of his motion to withdraw his plea, when the trial court
stated: "the very heart of petitioner's motion is almost beyond belief." Garcia argues that
the court expressed not only an opinion but also an extreme opinion and should not have
served as fact-finder on remand.


       The State argues that the trial court properly stated the law when it stated that
previous rulings were not a basis for recusal. The State contends that the trial judge's
initial "almost beyond belief" comment was based on a lack of evidence and knowledge
of the case. The motion judge had never dealt with the defendant before and did not
preside over the underlying case. Therefore, the State argues that the trial judge was in a
different circumstance when he held a hearing on remand and could view the evidence
presented with an open mind. The State further argues that Garcia cannot show that bias
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or partiality, if it existed, was significant enough to warrant reversal. Lastly, the State
argues that Garcia cannot show that any bias or partiality affected the trial court's ruling
in light of the evidence against Garcia's motion.


       Appellate courts exercise de novo review over whether a trial court judge's recusal
is required. State v. Moyer, 306 Kan. 342, 369, 410 P.3d 71 (2017) (addressing recusals
based on due process and statutory factors). The interpretation of a Supreme Court rule,
like the interpretation of a statute, is a question of law. Kansas Judicial Review v. Stout,
287 Kan. 450, 459, 196 P.3d 1162 (2008) (addressing the Kansas Code of Judicial
Conduct).


       A litigant may argue at least three substantive bases for a judge's recusal: (1) the
statutory factors set forth in K.S.A. 20-311d(c); (2) the standards of the Kansas Code of
Judicial Conduct; and (3) the Due Process Clause of the Fourteenth Amendment to the
United States Constitution. Moyer, 306 Kan. at 370; see Supreme Court Rule 601B,
Kansas Code of Judicial Conduct (2020 Kan. S. Ct. R. 439).


       Garcia concedes that the first basis for a judge's recusal does not apply. K.S.A. 20-
311d provides a mechanism to allow litigants to seek a change of the assigned judge in a
case. The Legislature outlined a specific procedure to implement this change of a judge.
Garcia admits that he did not follow these procedures and, therefore, the statutory basis
for a judge's recusal has not been met.


       In addition, "[a] judge shall disqualify himself or herself in any proceeding in
which the judge's impartiality might reasonably be questioned." Supreme Court Rule
601B, Rule 2.11 (2020 Kan. S. Ct. R. 454). The Kansas Code of Judicial Conduct also
requires that "[a] judge shall uphold and apply the law, and shall perform all duties of
judicial office fairly and impartially." Rule 2.2 (2020 Kan. S. Ct. R. 448). ("'Impartial,'"
"'impartiality,'" and "'impartially'" mean absence of bias or prejudice in favor of, or

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against, particular parties or classes of parties, as well as maintenance of an open mind in
considering issues that may come before a judge." Rule 601B, Terminology [2020 Kan.
S. Ct. R. 442].)


       To successfully argue that a judge should have disqualified himself or herself on
appeal, an appellant must show the following: (1) that the judge had a duty to recuse
himself or herself under the Kansas Code of Judicial Conduct and (2) that a showing of
the judge's actual bias or prejudice warrants reversal. In re Lucas, 269 Kan. 785, 794, 7
P.3d 1186 (2000). An appellate court should find that


       "[d]isqualification of a judge is appropriate when the circumstances and facts of the case
       'create reasonable doubt concerning the judge's impartiality, not in the mind of the judge
       himself, or even, necessarily, in the mind of the litigant filing the motion, but rather in the
       mind of a reasonable person with knowledge of all the circumstances.'" State v. Schaeffer,
       295 Kan. 872, 876, 286 P.3d 889 (2012).


When the propriety of recusal is examined in the context of the Code, "the focus is on
assuring that the defendant obtained a fair [hearing]." Moyer, 306 Kan. at 375. If a
litigant can show that the judge "had a duty to recuse under the [Code] and failed to do
so," the litigant must show "that actual bias or prejudice warrants setting the [court's
holding] aside." Schaeffer, 295 Kan. at 875.


       Assuming without deciding that Garcia established a duty to recuse, Garcia fails to
show that actual bias or prejudice would warrant setting aside the court's holding in light
of the evidence. Garcia testified that the plea agreement guaranteed visitation with his
children. The prosecutor, Garcia's attorney, and the children's mother all contradicted his
testimony. They testified that the promise involved a no-contact order. If the trial court
entered a no-contact order, it would be an absolute bar preventing visitation. So, the State
agreed not to recommend such an order. This agreement was thoroughly explained to
Garcia, according to the evidentiary hearing testimony. Thus, Garcia fails to show that
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judicial bias, rather than the weight of the evidence, caused the trial court to deny his
motion to withdraw his plea, which we discuss in the next section.


       Additionally, Garcia fails to show that his due process rights were violated by the
trial judge not recusing. Our Supreme Court applies a two-prong test for whether recusal
is required under the Fourteenth Amendment's Due Process Clause to the United States
Constitution. That test asks "'whether the judge had a duty to recuse from the case
because the judge was biased, prejudiced, or partial. If so, then the test [examines]
whether the judge's failure to recuse resulted in actual bias or prejudice.'" Moyer, 306
Kan. at 375-76 (quoting State v. Sawyer, 297 Kan. 902, 909, 305 P.3d 608 [2013]). As
explained in the preceding paragraph, Garcia has failed to show actual bias; however,
"there has always been a safety valve that relieved a defendant of the obligation to show
actual bias or prejudice." Sawyer, 297 Kan. at 909. That safety valve comes into play
when "'experience teaches that the probability of actual bias . . . is too high to be
constitutionally tolerable.'" 297 Kan. at 909 (quoting Caperton v. A.T. Massey Coal Co.,
556 U.S. 868, 877, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 [2009]). The United States
Supreme Court in Caperton provided a nonexclusive list of four examples, which Garcia
correctly concedes does not apply.


       Instead, Garcia relies on Sawyer to argue that the probability of bias is too high. In
Sawyer, the trial judge had previously recused himself from presiding over the
defendant's bench trial in another matter. 297 Kan. at 904-05. The trial court judge then
refused to recuse himself in the next trial, reasoning that it was a jury trial and, therefore,
the risk of bias was less than with a bench trial. 297 Kan. at 905. Our Supreme Court held
this to be error, recognizing that the "heightened risk of actual bias" put the defendant's
right to due process at risk. 297 Kan. at 910. But the facts of Sawyer stand in stark
contrast to this case because the judge and defendant in Sawyer had a significant history
of acrimonious interactions. That case was Sawyer's third case before that judge. 297
Kan. at 904. The judge had previously told Sawyer to "'be quiet'" and "'shut up.'" 297

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Kan. at 911. Also, the judge had ordered that Sawyer be gagged. 297 Kan. at 908. The
judge's bias was against Sawyer and not against one of his arguments. See 297 Kan. at
911-12. And finally, our Supreme Court thought it inconsistent for the judge to recuse
himself in one trial but not the next trial, even when the second case was before a jury
rather than to the judge. 297 Kan. at 911.


        Conversely, the trial judge in this case had no previous contact with Garcia. A
history of friction between judge and defendant was present in Sawyer but was absent in
this case. The trial judge here was not similarly biased and could approach the case with
"an open mind" on remand from this court. Garcia fails to show actual bias, and he also
fails to establish the exception that the probability of actual bias is too high to be
constitutionally tolerable.


        Because the trial judge properly did not recuse himself, Garcia's argument on
harmlessness need not be addressed.


Did the Trial Court Abuse Its Discretion in Denying Garcia's Motion to Withdraw His
Plea?


        Garcia argues two reasons that he should be allowed to withdraw his plea. First, he
contends that his counsel was not competent in explaining the plea agreement adequately.
Second, Garcia states that he did not understand the plea agreement sufficiently to show
that his plea was fairly and understandingly made. Garcia also points out that he is not
arguing that the plea agreement was breached.


        The State argues that the plea agreement did not guarantee family visits in prison.
The State asserts that Garcia's attorney adequately and competently explained this aspect
of the plea agreement to Garcia. The State maintains that the combined testimonies of the
prosecutor and Garcia's attorney were more credible than Garcia's testimony. Thus, the

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State argues that the trial court correctly ruled that the plea agreement was clear and that
Garcia understood the agreement as explained by his attorney.


       "To correct manifest injustice the court after sentence may set aside the judgment
of conviction and permit the defendant to withdraw the plea." K.S.A. 2019 Supp. 22-
3210(d)(2). Generally, an appellate court will not disturb a trial court's denial of a
postsentence motion to withdraw plea absent an abuse of discretion. State v. Johnson, 307
Kan. 436, 443, 410 P.3d 913 (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).


       Three factors (often referred to as the Edgar factors) generally guide a trial court's
consideration of whether a defendant has shown the good cause required by K.S.A. 2019
Supp. 22-3210(d)(1) to withdraw a plea before sentencing: (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. State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). These
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) (citing Edgar, 281 Kan. at 36). These
factors establish "'viable benchmarks'" for the trial court when exercising its discretion,
but the court should not ignore other facts that might exist in a particular case. State v.
Schaefer, 305 Kan. 581, 588, 385 P.3d 918 (2016). Factors a court generally considers in
determining whether a defendant has shown the manifest injustice necessary to withdraw
a plea after sentencing mirror those considered when reviewing for good cause to support
a presentence motion. See Johnson, 307 Kan. at 443.


       Here, after an evidentiary hearing on remand, the trial court issued its written
order with findings of fact and conclusions of law. Garcia's argument raises mixed
questions of fact and law. When reviewing a mixed question of fact and law, appellate

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courts apply a bifurcated standard of review. Appellate courts generally review the
factual findings under the substantial competent evidence standard and apply unlimited
review to the conclusions of law based on those facts. State v. Johnson, 304 Kan. 924,
950, 376 P.3d 70 (2016). Appellate courts do not reweigh evidence, determine credibility,
or resolve evidentiary conflicts in determining whether a trial court's factual findings are
supported by substantial competent evidence. State v. Talkington, 301 Kan. 453, 461, 345
P.3d 258 (2015).


       First, Garcia asserts that he is entitled to relief because his trial counsel was
ineffective. To prevail on this point, Garcia must show the following: (1) that his trial
counsel's performance was objectively unreasonable and (2) that but for his trial counsel's
deficient performance, he would not have entered his plea. See State v. Morris, 298 Kan.
1091, 1103-04, 319 P.3d 539 (2014). He claims that his attorney was not competent
because he did not adequately explain to him that the agreement did not bind KDOC and
that KDOC could withhold visitation with his children.


       Garcia's argument fails because he asks this court to reweigh evidence or resolve
conflicting testimony, which this court cannot do. See Talkington, 301 Kan. at 461. The
trial court ruled that Garcia's attorney explained the terms of the plea agreement as
follows: (A) one visit in the Seward County Jail and (B) the State would not request a
no-contact order. The prosecutor's testimony supported the finding that this was the plea
agreement conveyed to Garcia. The children's mother also testified that there would not
be an order which prevented contact between Garcia and his children. This shows that
she understood the parameter of the terms of the plea agreement. Therefore, substantial
competent evidence supported the trial court's ruling that Garcia's attorney provided
competent representation. Having made that ruling, the trial court did not err in denying
Garcia's motion on the grounds that his counsel was not competent.




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       Second, Garcia argues that he should be allowed to withdraw his plea because,
regardless of his counsel's competence, he did not understand the plea agreement. Garcia
argues that he was confused between the one visit with his children at the Seward County
Jail versus the later supposed visits with his children while incarcerated with KDOC. The
trial court reviewed the transcript of the plea hearing, comparing it to Garcia's testimony
at the hearing on his motion to withdraw his plea. The trial court found only conjecture
and no credible testimony to support Garcia's professed confusion about the plea
agreement.


       Thus, substantial competent evidence supports the trial court's ruling that Garcia's
plea was fairly and understandingly made. At the plea hearing, Garcia never stated that
anyone promised his children would visit him in prison. Floyd's testimony showed that he
explained to Garcia that visitation would depend on multiple factors, from the existence
of a no-contact order to the desire of his children to visit him. The mother's testimony
showed that the plea agreement was clear and that a layperson could understand it. The
trial court's ruling and the basis for its ruling are properly supported by the record. And
so, the trial court did not err in denying Garcia's motion to withdraw his plea on the
grounds that the plea was not understandingly made.


       For the preceding reasons, we affirm the ruling of the trial court.




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