IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 122,925
STATE OF KANSAS,
Appellee,
v.
BRIAN C. SHIELDS,
Appellant.
SYLLABUS BY THE COURT
1.
K.S.A. 2020 Supp. 22-3210(d)(2) permits a district court to allow a defendant to
withdraw a plea and set aside the judgment of conviction on a showing of manifest
injustice. When assessing whether manifest injustice exists, courts generally consider
three nonexclusive factors: (a) whether the defendant was represented by competent
counsel; (b) whether the defendant was misled, coerced, mistreated, or unfairly taken
advantage of; and (c) whether the plea was fairly and understandingly made.
2.
Appellate courts review a district court's decision to deny a postsentencing motion
to withdraw a plea for an abuse of discretion. On appeal, the movant bears the burden to
prove the district court's error.
3.
When a postsentence motion to withdraw a plea alleges ineffective assistance of
counsel, the constitutional test for ineffective assistance must be met to establish manifest
injustice. That test asks: (a) whether the attorney's performance fell below an objective
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standard of reasonableness; and (b) whether there is a reasonable probability that, but for
the attorney's error, the result of the proceeding would have been different.
Appeal from Neosho District Court; DARYL D. AHLQUIST, judge. Opinion filed March 4, 2022.
Affirmed.
Forrest A. Lowry, of Ottawa, was on the brief for appellant.
No appearance by appellee.
The opinion of the court was delivered by
BILES, J.: Brian C. Shields appeals the district court's denial of his postsentencing
motion to withdraw his no contest plea to first-degree felony murder. He argues he did
not fairly and knowingly enter the plea because his attorney provided ineffective
representation by not giving him enough time to review the plea agreement and by
withholding discovery materials. After an evidentiary hearing, the court found Shields
failed to show the statutorily required manifest injustice. See K.S.A. 2020 Supp. 22-
3210(d)(2). We affirm.
We hold Shields has not met his burden to establish the district court abused its
discretion. See State v. Hutto, 313 Kan. 741, 745, 490 P.3d 43, 47 (2021). His arguments
rely on his version of the conflicting evidence, and appellate courts cannot reweigh that
evidence. See State v. Johnson, 307 Kan. 436, 443, 410 P.3d 913 (2018). The district
court's decision is supported by substantial competent evidence that includes the plea
agreement he executed, his own statements at the plea hearing, and the testimony
received from Shields and his trial counsel at the plea withdrawal hearing.
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FACTUAL AND PROCEDURAL BACKGROUND
The State charged Shields with first-degree felony murder with two underlying
felony crimes: aggravated arson and aggravated burglary. It alleged Shields and his then-
girlfriend entered a Chanute home in 2013 to retrieve items they believed had been stolen
from the girlfriend. Shields lit a homemade explosive that set a mattress on fire and
burned the house down. Weeks later, those clearing the debris found Cristy Wiles' body.
An autopsy concluded she died from smoke inhalation. Shields at first pled not guilty.
Shields' plea agreement
On the day of the pretrial conference, and just a few days before trial, the parties
resolved the pending case and an unrelated drug prosecution. The agreement was for
Shields to plead no contest to one count of first-degree felony murder, with a joint
recommendation for a life sentence with possibility of parole after 20 years. In the drug
case, Shields would plead no contest to one count of possession of methamphetamine
with intent to distribute, with a recommended 51-month prison sentence consecutive to
the hard 20 murder sentence. The State also agreed to recommend to other prosecutors
against new charges being filed at the state and federal levels in Kansas and Missouri
relating to his absence from community corrections and the actions he was pleading
guilty to. The State further agreed to dismiss a pending motion to revoke Shields'
assignment to community corrections. This concession would allow Shields to receive
credit for time served there against the murder and drug sentences.
Shields executed a written plea agreement setting out these terms. It included a
"Certificate of Counsel" signed by Shields' attorney, Kerry Holyoak, and the Neosho
County Attorney. The signed agreement includes the following affirmations by Shields:
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• "I have reviewed the [complaints]. I have reviewed the sentencing guidelines for
[the drug distribution case] and the possible sentences for the off-grid offense for [the
murder case]. I have discussed at length with my lawyer the evidence against me before
deciding how to enter my pleas herein. I fully understand the charges brought against me.
I also understand the possible penalties for my conviction in each case."
• "I have reviewed the investigation reports and witness statements for each case
and have told my lawyer all the facts and circumstances regarding the charges brought
against me and have submitted to a contested preliminary hearing for both cases and have
reviewed the transcript for the same. I believe that my lawyer is fully informed on all
such matters."
• "My lawyer has counseled with and advised me on the nature of each charge, on
all lesser included charges with possible penalties, and on all possible defenses that I
might have."
• "I have had enough time to confer with my lawyer and believe that he has done
all that anyone could do under the circumstances to counsel and assist me. I AM
SATISFIED WITH THE ADVICE AND HELP HE HAS GIVEN ME."
When the parties presented the court with their agreement, Holyoak described its
terms and Shields agreed this description matched his understanding. Shields
acknowledged signing the written plea agreement and told the court he had all the time he
believed necessary to discuss it with his attorney. Holyoak agreed, noting he
corresponded with Shields, sent him copies of the preliminary hearing transcript and
discovery, met with him at the jail "on several occasions," and reviewed possible
defenses and discovery to reach the decision to enter this plea. Shields told the court he
was satisfied with Holyoak's representation and was "well aware" of the circumstances
and the agreement's terms.
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The court found Shields able to make a knowing and intelligent waiver of his
rights. It reviewed with him the rights relinquished by the plea. Shields again agreed he
understood and made the plea decision freely, voluntarily, and with his counsel's advice.
The State then recited its factual basis for the pled-to charges, and Holyoak agreed there
was a reasonable likelihood of conviction at trial. Shields pled no contest to first-degree
felony murder and possession of methamphetamine with intent to distribute.
The court again solicited Shields' acknowledgment that these pleas were made
freely, knowingly, voluntarily, and with counsel's advice. Shields denied any promises or
coercion influenced him to enter the pleas and recognized the sentencing
recommendations were not binding. The court accepted the pleas and found him guilty of
both offenses.
At sentencing, the court followed the plea agreement and sentenced Shields to a
hard 20 sentence for the murder conviction and a consecutive 51 months' imprisonment
for the drug conviction. Shields filed a short-lived notice of appeal, but it was dismissed
and the mandate issued.
Shields' effort to withdraw his pleas
In a letter postmarked about 11 months after the appellate mandate, Shields asked
the district court for a new trial. The court construed this as a motion to withdraw plea
and appointed new counsel, who was the first in a string of attorneys appointed for
Shields who later withdrew. It was not until almost three years later that a formal plea
withdrawal motion was filed on Shields' behalf.
During that interim, this court indefinitely suspended Holyoak from the practice of
law for misconduct unrelated to Shields' case, mainly from Holyoak's tactics in
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negotiating the sale of his own mineral rights with a prospective purchaser, and his
nonlawyer wife's participation in his law practice. See In re Holyoak, 304 Kan. 644, 372
P.3d 1205 (2016). Seizing on this, the plea withdrawal motion alleged Holyoak "failed to
provide and review with [him] available discovery, and deceived and misled [him] . . . by
statements made to [him] and assertions in the plea petition drafted thereby which Mr.
Holyoak requested Defendant sign." Shields claimed Holyoak did not provide him with
discovery including "inconsistent exculpatory statements" by the former girlfriend;
"video and DVD/CD statements by all State witnesses; all photos; the toxicology report
and portions of the autopsy report, and evidence of false statements by" several State
witnesses. Shields also alleged Holyoak misled him by falsely claiming he had shared all
discovery. He asserted he did not "review and know or understand all the [S]tate's
evidence and all terms of the plea agreement or consequences of the plea."
The State moved to dismiss the motion as untimely. A new attorney was appointed
for Shields, who filed a response to the State's motion and a "Second Amended Motion to
Withdraw Plea and For Trial," which alleged manifest injustice arose because:
"a. Defendant's trial attorney, Kerry D. Holyoak, introduced his wife as an
attorney, when she was in fact not an attorney.
"b. Defendant was told that Mr. Holyoak's wife was an experienced
international attorney and had previously worked in Hong Kong.
"c. Defendant was counseled at the Neosho County Jail by Kerry Holyoak's
wife in matters regarding his legal defense.
"d. Defendant's trial attorney has been indefinitely suspended from the
practice of law for conduct in other matters that was occurring at the same time as
defendant's representation.
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"e. Defendant's attorney engaged in the same tactics and conduct described
in the suspension order in In re Holyoak, Docket No. 114[,]836, namely, to wit:
i. Defendant's [sic] wife represented herself as an attorney and was
not licensed or supervised by Mr. Holyoak. . . .
ii. Defendant's attorney engaged in 'fraud and misrepresentation'
regarding the nature and quality of the evidence against Defendant by
withholding specific portions of discovery to have defendant plead to the
charges. . . .
"f. Defendant's decision to plea was materially influenced by the unqualified
counsel of a non-licensed attorney.
"g. Defendant was never provided a complete copy of the discovery and was
unable to make a qualified decision regarding the quality of evidence that was to be
presented against him.
"h. Defendant was misled by his attorney as to the quality and nature of the
testimony of co-defendant . . . [Shields' former girlfriend] by his attorney.
"i. Defendant was led to believe by his attorney that his decision to plead in
his case would materially impact and mitigate charges against his mother[.]
"j. Defendant was never appropriately counseled as to the definition and
effect of concurrent and consecutive sentences by his attorney."
The State did not pursue its argument for dismissal. The court conducted an
evidentiary hearing on the motion to withdraw plea at which both Shields and Holyoak
testified.
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Shields said he met Holyoak and his wife at the jail shortly after Holyoak was
appointed. During that visit, he claimed he mostly reviewed things with Holyoak's wife.
According to Shields, Holyoak's wife told him: she would be helping with the case; she
used to be a trial attorney in Hong Kong; all the witness statements were hearsay that
should be excluded; and if the former girlfriend did not change her initial statement that
Shields was not involved in the crime, the Holyoaks did not see grounds to charge him
with anything. He said this was the only time he met with Holyoak except for a few brief
visits before court dates.
Later, Shields said, attorney Holyoak told him the former girlfriend changed her
statement, and he recommended a plea deal. Shields testified he never saw her revised
statement. On cross-examination, Shields admitted that what he alleged Holyoak's wife
told him did not have "anything to do with why I entered my plea."
As for the plea agreement, Shields said: Holyoak told him he would draft it and
they would review it together, but instead Holyoak gave it to him outside the courtroom
and he did "not [have] even five minutes to look it over . . . it wasn't really even gone
over with me." Shields also testified: he did not understand everything in the agreement,
though he acknowledged he had said otherwise at the plea colloquy; he did not know then
there was discovery he had not seen, which "left some spots out that I would have asked
questions to"; and that "I wasn't aware that I would have to go in front of a parole board
in order to get parole, or else I never would have took the plea to begin with." Shields
alleged Holyoak did not explain the difference between concurrent and consecutive
sentences.
Overall, Shields said he did not feel Holyoak did a good job for him. He felt like
"it was rushed," and that "Holyoak wasn't really trying to look through anything." He said
he did not receive all the discovery and had not seen the items identified in his motions.
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Holyoak testified he believed he met with Shields at the jail several times and at
the courthouse before and after court hearings. He recalled bringing his wife to the jail on
a Saturday to prepare for trial. At the time, she was his paralegal and assistant. He denied
telling Shields she was a lawyer, though he admitted she told Shields she had been a
paralegal doing trial preparation for a British law firm in Hong Kong. He said he brought
her along because of the discovery volume. He said his wife would not have been able to
influence Shields to take a plea bargain from what he observed.
Holyoak also said that after the former girlfriend decided to testify against Shields
he watched the video of her statement with Shields at the courthouse in Erie. Holyoak
said her statement, which he assessed as "fairly believable," was part of what persuaded
him to recommend the plea. He said he "had gone over all the . . . other witness
statements, police reports, photographs, all of it with him. And then we sat and listened to
that and watched it."
Holyoak testified "it would not be accurate" to say he went over the plea
agreement with Shields for only five minutes, but rather that they "went through things
just point by point, line by line, document by document." He said Shields did not want
some of the case materials at the jail because he did not trust other inmates, so he brought
all the material with him and spent several hours going through it because Shields did not
want to take it back to his cell. Holyoak also noted Shields had the chance to see and go
over the autopsy report—an item Shields specifically claimed not to have seen in full.
And finally, Holyoak said he recalled discussing the difference between concurrent and
consecutive sentences with Shields.
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The district court's denial of the plea withdrawal motion
After hearing the testimony, the court directed the parties to prepare competing
findings of fact and conclusions of law, but ultimately did not adopt either party's
proposals. In its written order, the court denied the motion after concluding Shields failed
to show a manifest injustice.
On the allegations about Holyoak's wife, the court found Shields' decision was
"not materially influenced by any legal advice allegedly given to him by Ms. Holyoak."
On the remaining claims, the court first recounted Shields' assertions of inadequate time
to consult with Holyoak and inadequate understanding of the plea agreement's terms.
Then, the court summarized Shields' and Holyoak's conflicting testimony about whether
evidence was withheld from Shields; whether he was misled about the content of the
former girlfriend's testimony; and whether the difference between concurrent and
consecutive sentences was explained to him. It noted Shields did not rebut Holyoak's
testimony that Shields requested discovery not be sent to the jail or his testimony that he
watched the former girlfriend's interview with Holyoak at the courthouse. Otherwise, the
court did not make more detailed findings resolving specific facts in favor of one witness
account or the other.
But after making these observations, the court found that at the time of his plea,
Shields had "extensive experience with the criminal justice system," and that he "received
a favorable plea bargain." Then, in a section designated "conclusion," the court wrote,
"The testimony presented in this matter are very much polar opposites. The
movant complains that Mr. Holyoak did little of anything right and spent little time in his
defense. Mr. Holyoak, on the other hand, presents himself as a competent and diligent
attorney who did everything right in the defense of his client. The truth is probably
somewhere between the two extremes. This court has reason to question the complete
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veracity of both the defendant and his counsel. That said, after an objective review of the
testimony, available transcripts, and documentation, the Court finds:
1. That the defendant was represented by competent counsel who had been
actively practicing law, including criminal law, for over 20 years.
2. That the evidence presented does not establish that the defendant was
misled, coerced, mistreated, or unfairly taken advantage of.
3. That the pleas entered by the defendant were fairly and understandably
[sic] made and with knowledge of the consequences of his pleas.
4. Additionally, the current issues weren't raised in the defendant's direct
appeal; the defendant had extensive prior experience in the criminal justice system, and
the defendant received at least a marginally favorable plea agreement."
Shields appealed. The State did not timely file a response brief, although it
obtained several extensions of time to do so. We denied the State's motion to file a brief
out of time after this appeal was set on the court's summary calendar.
Jurisdiction is proper. See K.S.A. 2020 Supp. 22-3601(b)(3) (listing criminal cases
permitted to be taken directly to Supreme Court, including life sentence and off-grid
crime conviction); K.S.A. 60-2101(b) (Supreme Court jurisdiction over direct appeals
governed by K.S.A. 2020 Supp. 22-3601).
ANALYSIS
Shields argues the district court erred by denying his plea withdrawal motion,
claiming: (1) he did not have adequate time to review the plea agreement, and (2) he did
not have the chance to review all the evidence against him before entering the plea. But
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these contentions go against the district court's factual findings that are supported by
substantial competent evidence that we cannot reweigh. State v. Johnson, 307 Kan. 436,
443, 410 P.3d 913 (2018). Shields essentially asks this court to believe his side of his
story.
Standard of review
A district court's decision to deny a postsentencing plea withdrawal motion is
reviewed for an abuse of discretion. Hutto, 313 Kan. at 745. A district court abuses its
discretion when its decision is based on an error of law or fact or unreasonable. Appellate
courts give deference to the trial court's findings of fact. Johnson, 307 Kan. at 443.
Discussion
A court after sentencing may set aside the judgment of conviction and permit a
defendant to withdraw a plea to correct manifest injustice. K.S.A. 2020 Supp. 22-
3210(d)(2). When assessing whether manifest injustice has been shown, courts generally
consider three factors gleaned from State v. Edgar, 281 Kan. 30, 127 P.3d 986 (2006):
"'(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.'" Johnson, 307 Kan. at 443. A
district court may consider other relevant factors, and the defendant need not show that
all the factors apply in his favor. Johnson, 307 Kan. at 443. Inherent in the manifest
injustice requirement is that the context of the plea agreement "was obviously unfair or
shocking to the conscience." Hutto, 313 Kan. at 745.
In this appeal, Shields intermingles the three Edgar factors to argue Holyoak was
ineffective and misled him to the extent his plea was not fairly and understandingly
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made. He asserts the court erred in giving "too much deference to Mr. Holyoak's
testimony" and in seemingly "ignor[ing] most of defendant's testimony." But while
Shields' testimony supports these factual arguments, Holyoak's testimony refutes them.
And the court found the plea was "fairly and understand[ing]ly made with knowledge of
the consequences," after considering all the arguments and evidence.
"'The question of whether a plea is understandingly made must be weighed in light of
certain constitutional and statutory requirements which attach to a defendant's plea.
United States constitutional due process requirements relating to pleas of guilty or nolo
contendere were imposed upon the States in Boykin v. Alabama, 395 U.S. 238, 242-44,
89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). To be constitutionally valid, guilty pleas and
their resulting waiver of rights "not only must be voluntary but must be knowing,
intelligent acts done with sufficient awareness of the relevant circumstances and likely
consequences."' [Citation omitted.]" State v. Adams, 311 Kan. 569, 575, 465 P.3d 176
(2020).
The record contains substantial competent evidence that Shields understood the
plea agreement's terms and knew its consequences before he entered into it. Shields
affirmed this at the plea hearing. And Holyoak refuted Shields' later claim that they only
spent five minutes reviewing the agreement. Shields also executed the agreement, which
plainly stated the recommended life sentence would entail only a possibility for parole
after 20 years and contained an express representation that Shields understood the
possible penalties for the pled-to offenses.
Shields' representations at the plea colloquy alone provide adequate basis for the
district court's conclusion. See State v. Green, 283 Kan. 531, 548, 153 P.3d 1216 (2007)
(noting defendant's articulate colloquy at the plea hearing showed that her plea was fairly
and understandingly made). And faced with his new claim that these representations were
false, the district court's resolution given the conflicting testimony necessarily
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incorporates what is "tantamount to a credibility determination" that an appellate court is
"ill-suited to question," even though the district court did not make explicit findings about
how much time Holyoak spent reviewing the agreement with Shields. See Johnson, 307
Kan. at 445.
Shields' second claim asserts Holyoak was ineffective in failing to provide him all
the State's evidence, including his former girlfriend's revised statement implicating him in
the felony murder.
"'When a postsentence motion to withdraw a plea alleges ineffective assistance of
counsel, the constitutional test for ineffective assistance must be met to establish manifest
injustice.' That test asks: '(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.' There is a
'strong presumption' that counsel provided '"adequate assistance"' and '"made all
significant decisions in the exercise of reasonable professional judgment."' Prejudice
means 'a reasonable probability that, but for the deficient performance, the defendant
would have insisted on going to trial instead of entering the plea.' A reasonable
probability is a '"probability sufficient to undermine confidence in the outcome."'
[Citations omitted.]" Johnson, 307 Kan. at 447.
The district court found Shields "was represented by competent counsel" and that
Shields' evidence failed to establish "he was misled, coerced, mistreated, or unfairly taken
advantage of." Holyoak's representation at the plea hearing and his testimony that he
reviewed all the discovery with Shields supplies substantial competent evidence to
support the district court's decision that Holyoak was not ineffective in the manner
Shields alleged. See State v. Dinkel, 314 Kan. 146, 148, 495 P.3d 402 (2021) (noting
appellate courts use a mixed standard of review on ineffective assistance of counsel
claims, considering whether substantial competent evidence supports the court's factual
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findings and reviewing the conclusions of law de novo); State v. Jones, 306 Kan. 948,
959-60, 398 P.3d 856 (2017) (necessary findings presumed absent objection). And while
Shields asserts generically that an attorney who fails to share all discovery with a
criminal defendant could fall below the objective standard of reasonableness, he does not
cite evidence to show how his outcome with his attorney would have been different but
for this alleged deficiency.
At its core, Shields' claim is simply that the district court failed to give greater
weight to his testimony, and that contention is outside our scope of appellate review.
Shields has not shown the court erred as matter of law, based its decision on unsupported
facts, or that its decision was otherwise unreasonable. We hold Shields fails to establish
any abuse of discretion in denying the plea withdrawal motion.
Affirmed.
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