NOT DESIGNATED FOR PUBLICATION
No. 122,308
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
BJ LAURI,
Appellant.
MEMORANDUM OPINION
Appeal from Douglas District Court; JAMES R. MCCABRIA, judge. Opinion filed February 26,
2021. Affirmed.
Peter Maharry, of Kansas Appellate Defender Office, for appellant.
Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before GREEN, P.J., MALONE and WARNER, JJ.
PER CURIAM: BJ Lauri pleaded no contest to kidnapping and aggravated sexual
battery. At sentencing, he moved to withdraw his plea when the district court signaled
that it was not inclined to follow the recommendation in his plea agreement, arguing he
had been misled. The district court denied his motion, concluding Lauri had entered the
plea knowing the court was not bound by the parties' sentencing recommendation. We
agree and affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
The State originally charged Lauri with multiple offenses, including rape,
aggravated criminal sodomy, aggravated human trafficking, aggravated assault, criminal
threat, unlawful administration of a substance, and battery. The State later added charges
of kidnapping and robbery. The facts giving rise to each of these charges are largely
irrelevant to this appeal.
Early in the case, Lauri and the State started working toward a plea agreement.
The parties agreed that Lauri would plead guilty or no contest to kidnapping and
aggravated sexual battery. And the parties initially believed that the presumptive prison
sentences for these two crimes, run consecutively, would result in a controlling sentence
of 117 months' imprisonment. The State agreed to recommend this disposition at
sentencing.
Lauri had previously been convicted of crimes outside of Kansas that could affect
his criminal history score and, thus, his presumptive sentence under the Kansas
sentencing guidelines. To determine whether and how this history would affect his
sentence, the parties requested a presentence investigation report before the plea was
finalized. This report showed that Lauri had two previous felony convictions, one of
which was a sex crime committed in another state. Because of that conviction, Kansas
law classified Lauri as a persistent sex offender—meaning the length of his prison
sentence for aggravated sexual battery would be doubled. See K.S.A. 2020 Supp. 21-
6804(j). As a result, the presumptive sentence from the pending plea agreement would be
longer than the 117-month term the parties previously discussed.
The parties continued to negotiate the plea in light of this new information. They
ultimately arrived upon a plea agreement with the following terms:
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• Lauri would plead no contest to one count of kidnapping and one count of
aggravated sexual battery (as the parties had previously agreed). The State would
dismiss all other charges.
• The parties would recommend that Lauri's sentence for the kidnapping conviction
should be the lowest duration in the sentencing-guidelines gridbox, a sentence of
68 months in prison.
• The parties agreed that Lauri's presumptive sentence for aggravated sexual
battery—34 months in prison—would be doubled under the persistent-sex-
offender rule, resulting in a presumptive sentence of 68 months in prison.
• The parties would recommend that these two sentences should be served
consecutively, understanding that would result in a presumptive sentence of 136
months in prison.
• The State would not oppose Lauri's request for a durational departure that would
result in a controlling sentence of 117 months' imprisonment—the duration the
parties discussed before receiving the presentence investigation report.
Before his plea hearing, Lauri signed a written plea advisory. This advisory
confirmed several matters the court would discuss at the plea hearing, listing rights Lauri
would waive if he entered a no-contest plea. Lauri wrote his initials after each of these
waivers and after several other explanations in the advisory, including the following
statement: "I know that if the State's attorney and my attorney have agreed upon
sentencing recommendations, the judge does not have to follow those recommendations.
The judge can impose any sentence allowed by law."
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At the hearing on Lauri's plea, the district court spoke with Lauri about the
consequences of his plea. The court discussed the rights Lauri would be waiving by
pleading no contest instead of challenging the State's charges at trial. Lauri confirmed
that he had reviewed the written plea advisory with his attorney. He also indicated that he
was not under the influence of drugs or alcohol and did not feel pressured into making his
plea. And Lauri stated that the pre-plea presentence investigation report correctly
described his criminal history, and he acknowledged the potential maximum sentences
for each charge.
The court then discussed the application and effect of the persistent-sex-offender
rule on Lauri's sentence, explaining:
"Kansas law indicates that when you have a prior sexual felony conviction, . . . there is a
special requirement that I double the underlying sentence for the new conviction. So,
whatever the presumptive sentence will come back for you, given your criminal history
for the level of crime that's at issue here, when we look at that spot on the sentencing grid
of the range that's there, I am going to be required to double that."
After it explained this rule, the court asked Lauri, "Do you understand that?" Lauri
replied, "Yes, sir."
The court informed Lauri that even though the parties might recommend a
particular sentence as part of a plea agreement, the court was "not obligated to follow the
recommendations of the attorneys." Instead, it could sentence him to "any sentence
permitted by law up to the maximums." Lauri again indicated that he understood that the
court was not bound by the sentencing recommendations in the plea agreement. The court
went on to note: "I generally do [follow the sentencing recommendation in the plea
agreement], but I just want you to know that I don't have to, so any promise—there is no
promise to you other than to know that you're subject to the maximum sentence." Lauri
responded, "Yes, sir."
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Finally, the court addressed Lauri's indication in the plea agreement that he
intended to request a durational departure:
"Departure means it's a request that I depart from the presumptive sentence that the
guidelines indicate that I should impose, and it's a matter of discretion with the Court.
"The State tells me that they're not going to oppose that request. I have to make
certain findings, as a matter of law, to support the departure. So, using the numbers that
the attorney gave me, if it turns out, based on your criminal history, we're looking at a
presumptive sentence of 136 months, I have to make certain findings in your favor to
reduce that, the number of months, whether that's down to 117 or—if I am convinced I
can impose any lesser number that I would choose, but the attorneys are recommending
the 117. Do you understand all of that?"
Again, Lauri responded, "Yes, sir." The court then accepted Lauri's plea of no contest to
both charges.
Despite the court's explanation of the findings it must make before granting a
departure, the only reason Lauri offered at sentencing to support his departure request
was the parties' plea agreement. He argued the State's decision not to oppose his motion
and his reliance on the plea bargain together created a substantial and compelling reason
to depart from the presumptive sentence under the guidelines. While sympathetic to
Lauri's argument, the court indicated it was inclined to deny the requested departure. The
court explained that the plea agreement was not a sufficient reason to depart from the
presumptive sentence, especially considering the nature of the criminal acts Lauri had
committed.
After the court made these statements, Lauri asked to continue the sentencing
hearing so he could reevaluate his options in light of the court's suggested disposition. He
explained that he would like to consider whether he should move to withdraw his plea
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before the court officially ruled on his departure motion. The court granted the
continuance.
Lauri then moved to withdraw his plea, arguing he had been misled during the
plea colloquy and in his plea negotiations with the State. Lauri noted that although the
district court warned him it was not bound by the plea deal, it also stated that it generally
followed sentencing recommendations—in other words, Lauri thought the court had all
but assured him that he would receive a 117-month sentence. Lauri claimed that he would
never have pleaded if he had known that the court would deny his departure request. The
State opposed Lauri's motion, arguing that the court's decision to impose a different
sentence from what the parties had recommended could not, on its own, constitute good
cause to withdraw a plea Lauri had knowingly and voluntarily entered.
The district court denied Lauri's motion to withdraw his plea. The court then
denied Lauri's request for a departure and sentenced him to a controlling term of 136
months' imprisonment, followed by lifetime postrelease supervision. Lauri appeals.
DISCUSSION
The Due Process Clause of the Fourteenth Amendment to the United States
Constitution protects defendants in criminal cases by requiring that any plea be
knowingly and voluntarily made. Brady v. United States, 397 U.S. 742, 755-56, 90 S. Ct.
1463, 25 L. Ed. 2d 747 (1970). As part of this protection, a court considering a
defendant's plea of guilty or nolo contendere must inform the defendant of the direct
consequences of his or her plea. 397 U.S. at 755-57. And the record must affirmatively
disclose that the defendant understands the potential consequences of the plea and
nevertheless chooses to plead guilty or no contest. See State v. Beauclair, 281 Kan. 230,
237, 130 P.3d 40 (2006).
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K.S.A. 22-3210 was enacted to ensure compliance with these elements of due
process. 281 Kan. at 237; see Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed.
2d 274 (1969). Under this statute, a court considering a defendant's plea must
determine—and the record must affirmatively disclose—that the defendant enters his or
her plea voluntarily and with an understanding of its consequences. Beauclair, 281 Kan.
at 237. K.S.A. 2020 Supp. 22-3210(a)(2) thus requires a court to inform "the defendant of
the consequences of the plea, including the specific sentencing guidelines level . . . and of
the maximum penalty provided by law which may be imposed upon acceptance of
such plea."
Any effort to withdraw a plea, once entered, is governed by K.S.A. 2020 Supp. 22-
3210(d). And the decision to grant or deny a motion to withdraw a plea lies within the
discretion of the district court. State v. Green, 283 Kan. 531, 545, 153 P.3d 1216 (2007).
On appeal, a person challenging a district court's ruling must establish that the court
abused its discretion in reaching that decision. State v. DeAnda, 307 Kan. 500, 503, 411
P.3d 330 (2018). A judicial action constitutes an abuse of discretion if it is arbitrary,
fanciful, or unreasonable; based on an error of law; or based on an error of fact. State v.
Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018).
K.S.A. 2020 Supp. 22-3210(d) sets forth separate standards for evaluating a
motion to withdraw a plea, depending on the timing of the motion. Relevant here, a court
may permit a defendant to withdraw a plea "for good cause shown" at any time before he
or she is sentenced. K.S.A. 2020 Supp. 22-3210(d)(1). When evaluating whether a
defendant has demonstrated good cause to withdraw a plea, a district court generally
considers (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. Frazier, 311 Kan. 378,
381, 461 P.3d 43 (2020); see also State v. Schaefer, 305 Kan. 581, 588, 385 P.3d 918
(2016) (While these three factors are considered "'viable benchmarks for judicial
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discretion,'" they are nonexclusive, and district courts "should not ignore other factors
that might exist in a particular case.").
Lauri argues that his circumstances fall within the last two categories. He claims
that he should have been permitted to withdraw his plea because the district court misled
him during the plea colloquy, leading him to believe that it would grant his departure
motion. He also asserts that his plea was not knowingly made because if he had known
the district court would not follow the parties' recommendation, he would not have
pleaded.
Plea agreements are generally subject to contract principles, and the State—as a
party to the agreement—must act fairly and in good faith in carrying out its promises.
State v. Urista, 296 Kan. 576, 583, 293 P.3d 738 (2013). But a district court is not a party
to a plea agreement and is not bound by the parties' sentencing recommendations. State v.
Hill, 247 Kan. 377, 385, 799 P.2d 997 (1990). Instead, "all plea discussions are premised
upon an understanding" that a district court "may give the agreement consideration, but is
not bound by its terms and can reach an independent decision on whether to approve a
negotiated charge or sentence concessions." 247 Kan. at 385. Thus, both the State and the
defendant "assume the risk" in entering into a plea agreement that "the sentencing court
will impose a sentence different than the sentence recommended." State v. Boley, 279
Kan. 989, 996, 113 P.3d 248 (2005); see also State v. Haskins, 262 Kan. 728, 731-32, 942
P.2d 16 (1997) (no error when a district court entered a sentence based on a criminal
history score different from what the parties believed when they entered into the plea
agreement).
Lauri acknowledges this precedent but argues that this case is distinguishable
because the district court misled him when it informed him at the plea hearing that it
typically followed the parties' sentencing recommendations. It is true that a criminal
defendant may show good cause to withdraw a plea when he or she receives
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"misinformation . . . about the applicable law during plea negotiations—particularly
when reinforced . . . by counsel's and the district judge's incorrect statements during the
defendant's plea hearing." State v. Kenney, 299 Kan. 389, 394, 323 P.3d 1288 (2014). But
there is a difference between a defendant being misled as to the law or facts, and thus
entering a plea without knowing all relevant information, and a defendant's decision to
rely on his or her "'mistaken subjective impressions'" despite being provided accurate
information. State v. Harned, 281 Kan. 1023, 1043, 135 P.3d 1169 (2006).
Lauri claims he only entered his plea because the district court led him to believe
he would receive a 117-month sentence. But the facts do not support his argument.
Lauri's plea resulted in the dismissal of multiple serious charges—charges that could lead
to a significantly longer sentence than the 136-month prison term he ultimately received.
As part of Lauri's plea, the parties agreed that the State would not oppose his request for a
downward departure. But the written plea advisory, which Lauri signed and initialed
before the plea hearing took place, indicated that the district court was not required to
follow the parties' sentencing recommendations. At the plea hearing, the court orally
informed Lauri that it was not bound by the parties' sentencing proposals. And the court
noted that because Lauri's proposed sentence departed from the presumptive sentence
under the Kansas sentencing guidelines, Lauri would have to convince the court that
substantial and compelling reasons justified that departure. Lauri indicated that he
understood these legal principles.
While the court at the plea hearing stated that it generally followed the parties'
sentencing recommendations, the record does not support Lauri's argument that this
statement induced him to enter the plea. At that point, Lauri had been informed on
several occasions, both in writing and in person at the hearing, that the district court was
not bound by the parties' sentencing recommendations. He had also been informed that
before the court could impose the sentence he requested, he would have to provide
substantial and compelling reasons to depart from the presumptive sentence under Kansas
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law. The fact that the sentencing court later found that he failed to make this showing
does not render his plea unknowing or involuntary.
The district court did not abuse its discretion when it denied Lauri's motion to
withdraw his plea.
Affirmed.
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