State v. Weston

NOT DESIGNATED FOR PUBLICATION

No. 122,320

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JAMES WESTON III,
Appellant.

MEMORANDUM OPINION

Appeal from Wyandotte District Court, MICHAEL GROSKO, judge. Opinion filed May 14, 2021.
Conviction affirmed, sentence vacated, and case remanded with directions.

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

Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

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

PER CURIAM: A district court convicted James Weston of aggravated robbery in
March 2013. His criminal history score included several out-of-state convictions, two of
which were second-degree robbery convictions from Missouri. When Weston found out
that his criminal history score was higher than he had anticipated, he moved to withdraw
his plea. The district court denied Weston's motion and sentenced him to 198 months'
imprisonment. Weston appeals. Because the district court erroneously categorized
Weston's 1998 Missouri convictions as person felonies, we reverse and remand for
correction of his sentence. But the district court did not abuse its discretion by denying
Weston's motion to withdraw his plea, so we affirm his conviction.
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 Factual and Procedural Background

In September 2012, James Weston robbed a woman of her purse using a semi-
automatic handgun and physical force. He pleaded guilty to aggravated robbery, a
severity level 3 person felony, in March 2013. In exchange for his plea, the State agreed
to recommend an 18-month downward durational departure from the standard sentence of
the appropriate guideline sentencing range.

At his plea hearing, Weston provided appropriate responses during his plea
colloquy, including that he understood his plea and he was not under the influence of
drugs and alcohol. The district court accepted Weston's plea and found him guilty of
aggravated robbery.

But the presentence investigation (PSI) report later showed a higher criminal
history score than either party had anticipated. The PSI categorized Weston's two
previous Missouri second-degree robbery convictions as person felonies, increasing
Weston's criminal history score to a B. Shortly after the PSI was released, Weston moved
to appoint new counsel. During the hearing on that motion, Weston told the district court
he was unhappy with his counsel and wanted to withdraw his plea. The district court
ultimately appointed new counsel, KiAnn McBratney, who then moved to allow Weston
to withdraw his plea.

During the plea withdrawal hearing, McBratney argued several reasons why the
district court should allow Weston to withdraw his plea. The State countered that the plea
was knowingly and voluntarily made because Weston confirmed to the court that he had
read, understood, and reviewed the plea with his attorney before signing it. Weston also
said that he had understood everything that went on during the plea hearing. The district
court found Weston failed to show good cause to withdraw his plea, so it denied Weston's
motion.

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 Weston now appeals. Although there was a considerable delay in docketing
Weston's appeal, it is properly before this court for consideration. See Supreme Court
Rule 2.04 (2021 Kan. S. Ct. R. 15). Weston was not at fault for the filing delay, and this
court allowed Weston to docket his appeal out of time.

Did the District Court Err by Finding Weston's Two Prior Missouri Second-degree
Robbery Convictions Were Person Felonies?

Weston first argues that the district court imposed an illegal sentence by
categorizing his 1998 Missouri second-degree robbery convictions as person felonies in
determining his criminal history score. He contends that the Missouri statute criminalizes
a broader range of conduct than the comparable Kansas offenses, so the district court
should have categorized his prior convictions as nonperson felonies.

Standard of Review

Whether a sentence is illegal under K.S.A. 2020 Supp. 22-3504 is a question of
law over which appellate courts have unlimited review. State v. Lee, 304 Kan. 416, 417,
372 P.3d 415 (2016). A court may correct an illegal sentence at any time while the
defendant is serving the sentence. K.S.A. 2020 Supp. 22-3504(a). A defendant may
challenge an illegal sentence even for the first time on appeal. Thus, a preservation
analysis is unnecessary. See State v. Fisher, 304 Kan. 263, 264, 373 P.3d 781 (2016).

Analysis

Weston argues that Kansas and Missouri differ in defining the offense of robbery.
He contends that Kansas robbery does not include a person's use of force to affect an
escape with peacefully taken property, but Missouri's robbery statute does.

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 The State concedes that our courts have not decided the "timing of force"
argument Weston raises here. Thus the State relies on a general holding by a panel of this
court that the elements of the Missouri second-degree robbery statute are "more specific"
than the Kansas elements for robbery. See State v. Ziegler, No. 118,213, 2018 WL
4517523, at *1, 4 (Kan. App. 2018) (unpublished opinion) (finding that the Missouri
robbery statute is narrower than Kansas' statute because Missouri requires the elements of
"intent" and "purpose" but Kansas does not), rev. denied 310 Kan. 1071 (2019).
Similarly, the State argues the panels in Ziegler and Cunningham found the "statutes
comparable in all relevant respects." See State v. Cunningham, No. 118,011, 2018 WL
5726551, at * 9 (Kan. App. 2018) (unpublished opinion) (finding Missouri's first-degree
robbery statute narrower than Kansas' comparable aggravated robbery statute because
Missouri requires a specific purpose, conduct more than "mere force or threat of force,"
and acts done directly upon a victim's person and not merely in their presence).

General legal principles

A sentence is illegal if it (1) is imposed by a court lacking jurisdiction, (2) fails to
conform to the applicable statutory provisions, or (3) is ambiguous about the time or
manner that the sentence is to be served. K.S.A. 2020 Supp. 22-3504(c)(1). Under K.S.A.
2020 Supp. 22-3504, a defendant may challenge the district court's classification of his or
her prior convictions and the resulting criminal history score used to sentence the
defendant under the revised Kansas Sentencing Guidelines Act (KSGA). State v. Weber,
297 Kan. 805, 813-14, 304 P.3d 1262 (2013). If a district court erroneously classified a
prior conviction in calculating the individual's criminal history score, the resulting
sentence is illegal as not conforming to the statutorily authorized term of punishment. 297
Kan. at 813-14.

Generally, the district court must sentence the defendant according to the
applicable law as it is interpreted at that time. State v. Murdock, 309 Kan. 585, 591, 439

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P.3d 307 (2019) (Murdock II). Thus, a change in the law after a defendant is sentenced
will not allow the defendant to appeal the sentence as one that is now "illegal." 309 Kan.
at 591-92.

In State v. Wetrich, 307 Kan. 552, 562, 412 P.3d 984 (2018), our Supreme Court
held: "For an out-of-state conviction to be comparable to an offense under the Kansas
criminal code," within the meaning of K.S.A. 2017 Supp. 21-6811(e)(3), "the elements of
the out-of-state crime cannot be broader than the elements of the Kansas crime." 307
Kan. at 562. So, "the elements of the out-of-state crime must be identical to, or narrower
than, the elements of the Kansas crime to which it is being referenced." 307 Kan. at 562.

We apply the 2018 Wetrich decision here even though Weston was sentenced in
November 2013. The rule announced in Wetrich was a change in the law. See State v.
Weber, 309 Kan. 1203, 1209, 442 P.3d 1044 (2019). And Kansas courts allow an
appellant to benefit from "a change in the law during the pendency of a direct appeal."
Murdock II, 309 Kan. at 591-92. Although Weston's appeal was filed unusually late, this
is his direct appeal. Thus, he gets the benefit of analysis under Wetrich. State v. Ewing,
310 Kan. 348, 352, 446 P.3d 463 (2019).

In this case, the district court's authority to classify an out-of-state conviction as a
person offense is controlled by K.S.A. 2012 Supp. 21-6811(e). See Wetrich, 307 Kan. at
556-57. In Kansas, a defendant's sentence is determined by the severity level of the crime
and the defendant's criminal history score. A court must classify out-of-state convictions
as felony or misdemeanor according to the out-of-state jurisdiction's classification. Here,
because Missouri categorizes second-degree robbery as a felony, we do the same. See
K.S.A. 2012 Supp. 21-6811(e).

The court then designates the prior convictions as person or nonperson to
determine the defendant's criminal history score. In designating an out-of-state crime as

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person or nonperson, we refer to "comparable offenses under the Kansas criminal code in
effect on the date the current crime of conviction was committed." K.S.A. 2012 Supp. 21-
6811(e). But "[i]f the state of Kansas does not have a comparable offense in effect on the
date the current crime of conviction was committed, the out-of-state crime shall be
classified as a nonperson crime." K.S.A. 2012 Supp. 21-6811(e). Weston relies on this
law.

Our task is thus to compare the elements of the 1998 Missouri second-degree
robbery statute with the elements of a comparable Kansas crime in September 2012, the
date Weston committed his current crime of conviction. As we explain below, because
the Missouri second-degree robbery statute criminalizes broader conduct than the
comparable 2012 Kansas statutes, we remand for a corrected sentence.

A Quick Comparison

In his appellate brief, Weston provides the panel with the 2017 language of the
Missouri second-degree robbery statute, mistakenly citing it as the 1998 version. The two
statutes are different. We set out here the proposed "comparable" Kansas statutes
alongside the applicable Missouri statute:

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Mo. Rev. Stat. § 569.030 (1998) K.S.A. 2012 Supp. 21-5420

1. A person commits robbery in the (a) Robbery is knowingly taking property
second degree when he or she from the person or presence of
forcibly steals property. another by force or by threat of bodily
2. Robbery in the second degree is a harm to any person.
class B felony. (c)(1) Robbery is a severity level 5, person
felony.

Mo. Rev. Stat. § 569.010(1) (1998) K.S.A. 2012 Supp. 21-5412

(1) A person "forcibly steals," and thereby (a) Assault is knowingly placing another
commits robbery, when, in the course of person in reasonable apprehension of
stealing he or she uses or threatens the immediate bodily harm.
immediate use of physical force upon (e)(1) Assault is a class C person
another person for the purpose of: misdemeanor.
(a) Preventing or overcoming resistance to
the taking of the property or to the
retention thereof immediately after the
taking; or
(b) Compelling the owner of such
property or another person to deliver up
the property or to engage in other conduct
which aids in the commission of the theft.

K.S.A. 2012 Supp. 21-5413

(a) Battery is:

(1) Knowingly or recklessly causing
bodily harm to another person; or
(2) knowingly causing physical
contact with another person when done in
a rude, insulting or angry manner

(g)(1) Battery is a class B person
misdemeanor.

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 K.S.A. 2012 Supp. 21-5415

(a) A criminal threat is any threat to:

(1) Commit violence communicated
with intent to place another in fear, or to
cause the evacuation, lock down or
disruption in regular, ongoing activities of
any building, place of assembly or facility
of transportation, or in reckless disregard
of the risk of causing such fear or
evacuation, lock down or disruption in
regular, ongoing activities

Kansas Robbery is Not Comparable.

Weston cites Missouri caselaw to support his argument that the timing of force
required in the 1998 Missouri statute includes circumstances when an offender "takes
unlawful possession of property, and subsequently uses force to effectuate an escape with
that property." State v. Whittaker, 551 S.W.3d 498, 501-02 (Mo. Ct. App. 2018).
Admittedly, Weston cites 2018 caselaw to support his argument of an interpretation of a
1998 statute. But the Missouri appellate court interpreted the 1998 statutory language
similarly in State v. Lloyd, 820 S.W.2d 105, 106 (Mo. Ct. App. 1991) (citing State v.
Sumpter, 655 S.W.2d 726, 732 [Mo. Ct. App. 1983]) ("forcibly stealing" was defined as
including the "use of force against any person to retain possession of stolen property").

A panel of our court recently analyzed this question of "timing of force" in State v.
Kanatzar, No. 119,399, 2020 WL 593965, at *11 (Kan. App. 2020) (unpublished
opinion) petition for rev. filed March 4, 2020. Kanatzar appealed the district court's
decision to categorize his previous Missouri robbery convictions as person felonies.
Kanatzar's previous convictions included two Missouri first-degree robbery convictions.
Although the Kanatzar panel reviewed Missouri's 2003 statute defining first-degree
robbery, the language mirrors the language of the 1998 second-degree robbery statute

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that we must consider here. See Mo. Rev. Stat. § 569.030 (1998); Mo. Rev. Stat. §
569.030 (2003).

The Kanatzar panel determined that the elements of the Missouri first-degree
robbery statute are broader than the elements of the Kansas robbery statute. 2020 WL
593965, at *11-12. This is because in Missouri, a person commits first-degree robbery
when he or she peacefully takes unlawful possession of property and immediately after
the taking uses or threatens to use force to overcome resistance and retain the property.
See State v. Brown, 558 S.W.3d 105, 113-14 (Mo. Ct. App. 2018); Whittaker, 551
S.W.3d at 501-02. But under Kansas law, a person commits mere theft by peacefully
taking unlawful possession of property and then using force to overcome resistance and
escape with the property. See State v. Plummer, 295 Kan. 156, 165-68, 283 P.3d 202
(2012); State v. Bateson, 266 Kan. 238, Syl. ¶¶ 1-3, 970 P.2d 1000 (1998). In Kansas, for
a taking of property to constitute a robbery rather than a theft, "the perpetrator's use of
force against the victim must either precede or be contemporaneous with the perpetrator's
taking of property from the victim." State v. Edwards, 48 Kan. App. 2d 383, 393, 290
P.3d 661 (2012). And theft in Kansas is a nonperson crime. See K.S.A. 2012 Supp. 21-
5801. Thus, Kanatzar held that "if theft is the comparable crime to a form of Missouri
[second]-degree robbery, then the Missouri robbery convictions should be scored as
nonperson crimes." 2020 WL 593965, at *12.

Although this decision is not binding on us, we find Kanatzar's approach
persuasive. The Missouri robbery statute prescribes broader conduct because a person
commits robbery under this statute "when he or she peacefully takes unlawful possession
of property and immediately after the taking uses or threatens to use force to overcome
resistance in order to retain the property." 2020 WL 593965, at *12. Yet a Kansas
robbery conviction cannot be based on the use of physical force to retain peacefully taken
property. Because the Missouri robbery statute covers conduct that does not constitute
robbery in Kansas, it is broader than the 2012 Kansas robbery statute. As a result, the

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Kansas robbery statute is not comparable under Wetrich and cannot serve as a basis for
categorizing the Missouri convictions as person crimes. See Wetrich, 307 Kan. at 557.

Other Comparable Person Crimes

The State alternatively claims that using force to escape with peaceably taken
property is comparable to the Kansas person crimes of battery, assault, and criminal
threat. So even if Weston committed his Missouri robberies by using force only to carry
out his escape after having taken property peaceably, Weston would have committed the
Kansas person crimes of battery, assault, and criminal threat. We disagree.

The State contends that the 1998 Missouri robbery statute has elements identical to
or narrower than these three person crimes. But the State provides little analysis
comparing the relevant portion of the Missouri second-degree robbery statute to the
elements of these Kansas crimes.

The State generally argues that these crimes are narrower than Missouri's
requirement of forcibly stealing, as explained in State v. Coleman, 463 S.W.3d 353 (Mo.
2015). But that case made no comparison of other crimes. Instead, it merely held that
"sufficient evidence support[s] the trial court's finding that Mr. Coleman committed the
crime of robbery in the second-degree because he forcibly stole the money by threatening
the immediate use of physical force for the purpose of both defeating resistance to the
theft of the money and compelling its surrender." 463 S.W.3d at 355. Had that case
examined only Coleman's resistance to his theft of the money, we may be more
persuaded. As it is, we find no Missouri case on point and base our analysis on the
statutory language.

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 Kansas Criminal Threat is Not Comparable.

Criminal threat occurs when a person communicates a threat to commit violence
with intent to put others in fear or to cause the disruption or evacuation of a particular
place of assembly or public building. See K.S.A. 2012 Supp. 21-5415. The Kansas
criminal threat statute has no relation to a "taking" of something from a victim. As a
result, it has little in common with the Missouri robbery which requires "forcibly
stealing" and does not require any threat. Thus, we do not consider the Kansas criminal
threat statute as comparable to Missouri's second-degree robbery statute under Wetrich.
See Wetrich, 307 Kan. at 557.

Kansas Battery is Not Comparable.

Similarly, we find the 2012 Kansas battery statute different from Missouri's
second-degree robbery statute. Kansas battery requires an offender either to cause great
bodily harm to another person or to physically contact another in a rude, angry, or
insulting way. K.S.A. 2012 Supp. 21-5413. On the other hand, the Missouri robbery
statute does not require any direct contact. See Mo. Rev. Stat. § 569.030 (1998). In fact,
the Missouri statute does not require the defendant to cause the victim any harm—the
mere threat of force is enough. Mo. Rev. Stat. § 569.030 (1998); see State v. Rounds, 796
S.W.2d 84, 86 (Mo. Ct. App. 1990) (finding sufficient evidence of force or threat of force
when the defendant told bank teller not to call police or he would "blow [his] head off"
and kept his hand in his pocket, implying that he was armed); State v. Thompson, 588
S.W.2d 36, 39 (Mo. Ct. App. 1979) (holding robbery in the second degree occurs when a
victim relinquishes property due to a threat that injury may be inflicted at some different
time). Because making a threat is enough to violate the Missouri second-degree robbery
statute, the Missouri statute criminalizes broader conduct than the Kansas battery statute.
The Kansas crime of battery is not a comparable offense so it cannot be used to
categorize the Missouri statute as a person crime. See Wetrich, 307 Kan. at 557.

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 Kansas Assault is Not Comparable.

Likewise, the Kansas crime of assault is different from Missouri second-degree
robbery. See K.S.A. 2012 Supp. 21-5412. Kansas assault requires that the offender
knowingly place another in "reasonable apprehension of immediate bodily harm," while
the Missouri robbery statute does not require the victim to be placed in apprehension of
any bodily contact. Compare K.S.A. 2012 Supp. 21-5412(a) with Mo. Rev. Stat. §
569.030 (1998). Making a threat is enough to violate the Missouri statute, "while in
Kansas the threat must result in the victim's apprehension of immediate harm." Kanatzar,
2020 WL 593965, at *12. Thus, the Missouri statute criminalizes threats beyond those
which place the victim in reasonable apprehension and is therefore broader than Kansas's
2012 assault statute. See 2020 WL 593965, at *12. Because the Missouri second-degree
robbery statute is not identical to or narrower than the Kansas battery statute, the Kansas
battery statute is not a comparable crime and therefore may not be used to categorize the
Missouri statute as a person crime. See 2020 WL 593965, at *12.

Conclusion

We find that the Missouri second-degree robbery statute penalizes a broader range
of conduct than the Kansas robbery, battery, assault, or criminal threat statutes. Because
the district court miscategorized Weston's prior Missouri convictions as person felonies,
we vacate his sentence and remand for further proceedings to recalculate Weston's
criminal history score.

Did the District Court Abuse its Discretion by Denying Weston's Motion to Withdraw His
Plea?

Weston next argues that the district court erroneously found that he knowingly and
voluntarily entered his plea. In his motion to withdraw his plea, Weston argued that the

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district court should permit him to withdraw his plea because his attorney did not
effectively review discovery materials or the plea petition with him and because he was
under the influence of narcotics related to dental treatment.

Standard of Review

Under K.S.A. 2020 Supp. 22-3210(d)(1), a guilty plea "for good cause shown and
within the discretion of the court, may be withdrawn at any time before sentence is
adjudged." Weston erroneously urges this court to apply a de novo standard of review
("The present issue requires this Court to interpret and apply K.S.A. 22-3210[d].
Statutory interpretation is a question of law and this Courts' review is unlimited."). But
we apply an abuse of discretion standard. State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986
(2006). "A trial court abuses its discretion if it bases its decision on a legal or factual
error, or if no reasonable person would agree with the decision." State v. Harper, No.
121,943, 2020 WL 7636424, at *3 (Kan. App. 2020) (unpublished opinion) (holding an
abuse of discretion is not found if the district court fails to explicitly reference the Edgar
factors when considering a presentence motion to withdraw a plea). On appeal, the party
asserting the district court abused its discretion bears the burden of showing an abuse of
discretion. See State v. DeAnda, 307 Kan. 500, 503, 411 P.3d 330 (2018).

Analysis

Weston argues that he did not plea voluntarily. He argues that because of a "recent
dental procedure," he was "under the influence of 'normazine and 1,000 [milligrams] of
Tylenol'" when he entered his plea and was unable to think clearly about the
consequences of his actions. And he argues that he did not understand the nature and
consequences of his plea because his attorney failed to adequately explain them to him.

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 When exercising its discretion, the district court must "evaluate whether '(1) the
defendant was represented by competent counsel, (2) the defendant was misled, coerced,
mistreated, or unfairly taken advantage of, and (3) the plea was fairly and
understandingly made. [Citation omitted.]'" Edgar, 281 Kan. at 36 (quoting State v. Bey,
270 Kan. 544, 545, 17 P.3d 322 [2001]). These are not exclusive factors and the court
should not ignore other facts that might exist. State v. Schaefer, 305 Kan. 581, 588, 385
P.3d 918 (2016). But the district court is not required to consider Edgar factors that the
defendant has not argued. State v. Williams, 290 Kan. 1050, 1055-56, 236 P.3d 512
(2010). And the district court need not make express findings on each Edgar factor; an
implicit consideration of the factors is enough. Harper, 2020 WL 7636424, at *3.

Representation by Competent Counsel

The first Edgar factor asks whether Weston had competent counsel. See 281 Kan.
at 36. On appeal, Weston argues solely that his previous attorney "failed to adequately
explain [the plea] to him."

Nothing in the record suggests Weston's previous attorney was incompetent. The
record shows that both judges who presided over Weston's various proceedings believed
Michael Highland to be an experienced, competent attorney and cautioned Weston
against restarting the whole process. Highland told the district court that he thought the
representation was going well and only turned sour when Weston learned of his
unexpected criminal history score. The district court presiding over the plea withdrawal
hearing did not specifically state Weston's previous attorney was "competent," but it
reviewed the plea hearing transcripts when the court asked Weston if he was satisfied
with his attorney's representation and whether he had any complaints about Highland at
that time. Weston answered that he was satisfied and had no complaints.

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 The same judge presided over the plea hearing and the motions hearing. The
district court therefore had a chance to observe the demeanor and behavior of both
Weston and Highland during the plea hearing. The Kansas Supreme Court has held that a
district court is in the best position to observe the demeanor of a defendant and draw
conclusions on whether the plea was knowingly and intelligently made when there is
contradictory testimony. State v. Macias-Medina, 293 Kan. 833, 839, 268 P.3d 1201
(2012). Although the district court did not explicitly find "competent representation," it
considered Weston's responses to its questions about his attorney. Weston failed to
establish that he did not have competent representation when he entered his plea. Thus,
the district court did not abuse its discretion in determining that the first Edgar factor was
not established and could not serve as a basis for good cause. See 281 Kan. at 36.

Misled, Coerced, Mistreated, or Unfairly Taken Advantage of

The second Edgar factor asks whether Weston was misled, coerced, mistreated, or
unfairly taken advantage of. See 281 Kan. at 36. Weston's plea petition and the district
court advised him what the maximum possible punishment for the crime could be.
Weston gave the factual basis to the district court himself as a basis for the plea
agreement. And Weston was not new to the criminal justice system—the district court
stated in the plea withdrawal hearing that Weston had eight prior convictions "dating
back to 1997 including convictions in '98, 2004, two in 2005, 2008, [and] 2009." The
district court also discussed that during the plea, Weston stated he understood the plea
agreement and did not have any questions about it.

Other than Weston's claim that his previous attorney did not discuss the plea with
him but merely put it in front of him to sign, he does not claim on appeal that Highland,
or any other person involved in the proceedings, misled, coerced, mistreated, or took
advantage of him in the plea process. Thus, the district court did not abuse its discretion

15
in determining that the second Edgar factor was not established and could not serve as a
basis for good cause. See 281 Kan. at 36.

Fairly and Understandingly Made

The third Edgar factor requires the district court to consider whether the plea was
"fairly and understandingly made." 281 Kan. at 36. Weston argues he was under the
influence of "narcotics," including the medications of penicillin, "'normazine[,] and 1,000
[milligrams] of Tylenol.'" He argued at his plea withdrawal proceeding that the
combination of the three "made it impossible for him to really fully know what was going
on [during the] plea." Yet Weston has provided no evidence that these medications could
impair his ability to understand the proceedings.

During the plea withdrawal hearing, the district court pointed out that during the
plea colloquy, Weston told the court that he was not under the influence of alcohol or
drugs, that he was of clear mind, and that he understood the proceedings. The district
court held that the plea Weston signed was a standard plea petition that informed him of
all the rights he had and that he freely and voluntarily waived those rights to enter the
plea. The district court also noted Weston's statement that he had reviewed the plea with
his attorney and understood all its conditions. Weston said that he did not have any
questions about the plea. The district court also held that in addition to the information on
Weston's signed plea petition, the district court orally informed Weston of the
constitutional rights he was giving up by entering the plea.

Because the district court presided over both hearings, it had observed the
defendant when he stated that he understood his rights, that he understood the charges
against him, and that he understood he was entering a plea on his own volition. Thus, the
district court would be in the best position to determine whether the defendant's later
claims of misunderstanding are genuine or not. Because the district court relied on the

16
record and its ability to witness Weston's demeanor, the district court did not abuse its
discretion in determining that the third Edgar factor was not established and could not
serve as a basis for good cause. See 281 Kan. at 36.

Conclusion

Weston fails to show that the district court abused its discretion by denying his
motion to withdraw his plea, so we affirm his conviction. But we reverse Weston's
sentence and remand with directions to recalculate his criminal history score.

Conviction affirmed, sentence vacated, and case remanded with directions.

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