NOT DESIGNATED FOR PUBLICATION
No. 123,925
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ANDREW I. VILLA,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed April 15, 2022.
Affirmed.
Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.
Kristi D. Allen, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before POWELL, P.J., GREEN, J., and RICHARD B. WALKER, S.J.
PER CURIAM: After entering into a plea agreement, Andrew I. Villa sought to
withdraw his plea after sentencing, arguing his appointed counsel provided ineffective
assistance. After a hearing, the district court denied him relief. Villa now appeals, using
the same arguments he made to the district court and relying mainly on his own
testimony. But the problem with Villa's argument is that he asks us to view the same
evidence as the district court but come to the opposite conclusion. This we cannot do. As
the record supports the district court's findings, we affirm its decision to deny Villa's
motion to withdraw plea.
1
FACTUAL AND PROCEDURAL BACKGROUND
In October 2016, the State charged Villa with a series of offenses stemming from
events at a gas station the month before. The third amended complaint charged Villa with
robbery, aggravated robbery, two counts of fleeing or attempting to elude an officer,
aggravated endangering a child, and aggravated burglary. The district court appointed
Jama Mitchell as Villa's attorney, and the two met for the first time in November 2016. In
March 2018, Villa filed a pro se motion to dismiss Mitchell, but he voluntarily withdrew
it during the hearing on the motion later the same month.
In April 2018, Villa pled guilty to one count each of robbery, fleeing or attempting
to elude an officer, aggravated endangering a child, and aggravated burglary. The district
court later sentenced Villa to 143 months' imprisonment and ordered him to pay
restitution to a victim involved in the case. Villa appealed the district court's restitution
order; another panel of this court vacated the restitution order and remanded the case to
the district court with directions. State v. Villa, No. 119,780, 2019 WL 5090350, at *4
(Kan. App. 2019) (unpublished opinion).
Pursuant to the remand, in March 2020, the district court conducted a new
restitution hearing and recalculated the amount of restitution but did not disturb the
previously imposed prison sentence. Five months later, Villa filed a pro se motion to
withdraw plea. In the motion, Villa alleged various grounds of ineffective assistance of
counsel regarding Mitchell.
The district court held an evidentiary hearing on Villa's motion in March 2021.
During the hearing, Villa said he suffered from mental health issues throughout his life,
which he discussed with Mitchell. At some point, Villa spoke with a psychiatrist about
those issues and a previous diagnosis of schizophrenia. Villa met with the psychiatrist
multiple times and believed the psychiatrist issued a report containing findings from the
2
meetings. However, Villa alleged that Mitchell never showed him that report. Instead, she
told him she did not believe they could use his mental health issues as a defense. Despite
Villa's insistence that his mental health issues were the primary cause of the incident,
Mitchell maintained that they could not use his mental health issues as a defense during a
trial.
Villa said Mitchell provided him with the discovery in the case, but he claimed
Mitchell took months to provide it to him. Villa also claimed Mitchell failed to retrieve
video footage from the gas station where the crimes took place. During Villa's
preliminary hearing, a worker from the gas station where the robbery occurred testified
that Villa pushed her against a wall before he stole the cash register. But Villa claimed he
never put his hands on anyone and he believed the video footage would show that the
worker who testified had lied about what occurred.
Villa said he never wanted to plead guilty and claimed Mitchell coerced him into
doing so by essentially telling him he did not have a chance of winning the case. Villa
also felt that Mitchell misled him by telling him he would receive a harsher sentence if a
jury convicted him rather than if he pled guilty. Similarly, he claimed Mitchell told him
that he would have to go to trial if he did not plead guilty because no more continuances
would occur. Villa could not recall precisely when Mitchell began plea negotiations, but
he claimed she only brought him one plea offer throughout the case. He did not believe
he received any benefit from pleading guilty because the offenses in the plea agreement
were what he felt he should have originally been charged with.
On cross-examination, Villa said he did not want to voluntarily withdraw his
motion to dismiss Mitchell, but he did so because an unidentified person told him to.
Villa acknowledged that he did not renew the motion to the district court before he pled
guilty. Similarly, he mentioned no problems with Mitchell to the district court during his
sentencing hearing.
3
Villa acknowledged that he and Mitchell discussed his mental health issues while
she represented him. He also acknowledged that Mitchell arranged to have a psychiatrist
discuss those issues with him. He again claimed Mitchell failed to discuss possible
defenses with him. He believed she failed to adequately investigate the facts of the case
and failed to adequately explain the charges against him. When asked about the camera
footage, Villa believed it would be important to show the gas station worker lied because
he would not be charged with aggravated robbery if he never touched the worker.
Villa then renewed his claim that he never wished to plead guilty but did so
because he felt forced to. He also could not recall whether he and Mitchell ever discussed
the plea agreement. Yet he acknowledged that he signed the plea agreement and the
acknowledgment of rights forms. He also said he understood that he risked getting a
harsher sentence than was recommended in the plea agreement if a jury convicted him at
trial.
Mitchell testified after Villa. She said that during their first meeting in November
2016, Villa told her he was under the influence of methamphetamine when the offenses
occurred. During that same meeting, Mitchell explained to Villa the difference between
specific intent crimes and general intent crimes.
Mitchell said Villa's mental health issues first came up in August 2017 when she
visited him in jail. The next month, Mitchell and Villa discussed the issues further, and
Mitchell discovered that Villa had previous mental health diagnoses. Though she did not
notice any signs of mental health impairment outside one conversation, she contacted a
psychiatrist to perform a mental health evaluation. By mistake, a competency evaluation
was performed instead. The psychiatrist found Villa to be competent but also believed a
psychological evaluation could be helpful. Mitchell agreed, and the psychiatrist then
performed the evaluation to determine whether Villa had a potential defense of mental
disease or defect. When asked what the evaluation revealed, Mitchell stated:
4
"Dr. Parker met with Mr. Villa, performed some tests and issued a report in
February, I believe, of 2018, indicating that he had not diagnosed Mr. Villa with
schizophrenia. His report indicated that that might provide a defense for Mr. Villa; but,
upon further conversations with Mr. Villa, the use of methamphetamine, Mr. Villa
admitted the use of methamphetamine in the days before the charged offenses occurred,
and so the doctor was unable to determine whether he was suffering from the effects of
methamphetamine or from a mental disease or defect."
These conclusions led Mitchell to believe that a mental disease or defect defense
would not be effective, a conclusion she shared with Villa the same month the
psychiatrist completed the report. She could not recall whether they ever discussed the
possibility of a voluntary intoxication defense, but she remembered going through the
elements of the crimes the State charged Villa with after he completed the psychological
evaluation.
Mitchell believed the plea agreement had been available for a long time before
Villa pled guilty. But until he pled guilty, she had been negotiating with the State to be
allowed to argue for probation or departures. Mitchell said she discussed the plea with
him the Friday and Sunday before his trial, and Villa signed the acknowledgment of
rights and plea agreement forms that Sunday. Villa ultimately pled guilty on April 16,
2018, the Monday his trial was scheduled to begin. Had Villa decided he did not want to
plead guilty, Mitchell said she would have been prepared to go to trial.
As part of her preparation, Mitchell reviewed the evidence, including video
footage. She recalled seeing the video Villa complained about, but she could not recall
whether she made it available for him to see. That said, Mitchell remembered sharing the
discovery from the case with Villa. She also remembered discussing the difference
between aggravated robbery and robbery and how Villa would be pleading guilty to the
lesser of the two. Mitchell denied ever telling Villa he did not have a viable defense in the
case.
5
On cross-examination, Mitchell reaffirmed that she familiarized herself with the
evidence in the case and would have been ready for trial if Villa did not plead guilty.
Similarly, she reaffirmed that Villa decided to seek plea negotiations and ultimately plead
guilty. Mitchell said she and Villa discussed the plea agreement nearly every time the two
spoke because Villa made getting a plea agreement for probation his main priority.
Mitchell continued to negotiate the terms of the plea with the State until the State made it
clear it would not agree to probation or make any better offers. At that point, Villa
decided to plead guilty. Though Mitchell advised him he should accept the plea, she
denied ever advising him that he had little chance to succeed at trial.
At the end of the hearing, the district court took Villa's motion under advisement.
The following month, the district court issued its ruling denying the motion.
Villa timely appeals.
DID THE DISTRICT COURT ERR IN DENYING VILLA'S MOTION TO WITHDRAW PLEA?
On appeal, Villa asserts the district court erred in denying his postsentence motion
to withdraw plea because his counsel was ineffective.
The standard for allowing a defendant to withdraw his or her plea after sentencing
is set out in K.S.A. 2020 Supp. 22-3210(d)(2): "To correct manifest injustice the court
after sentence may set aside the judgment of conviction and permit the defendant to
withdraw the plea." The three factors from State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986
(2006), are applied when determining whether a movant has established manifest
injustice: "'"(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."' [Citations omitted.]"
State v. Johnson, 307 Kan. 436, 443, 410 P.3d 913 (2018).
6
A defendant who alleges ineffective assistance of counsel due to deficient
performance in his or her postsentence motion to withdraw plea "must meet
constitutional standards to demonstrate manifest injustice." State v. Bricker, 292 Kan.
239, 245, 252 P.3d 118 (2011). Put differently, Villa "must meet the commonly known
Strickland test and show that (1) [Mitchell's] performance fell below the objective
standard of reasonableness and (2) there is a reasonable probability that but for
[Mitchell's] errors, the result of the proceeding would have been different." Bricker, 292
Kan. at 245-46; see Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674, reh. denied 476 U.S. 1267 (1984).
We review a district court's decision to deny a postsentence motion to withdraw
plea for an abuse of discretion. "A court abuses its discretion if its decision is arbitrary or
unreasonable, based on an error of law, or based on an error of fact. [Citation omitted.]"
State v. Cott, 311 Kan. 498, 499, 464 P.3d 323 (2020). Villa, as the movant, bears the
burden to prove the district court erred in denying the motion. See State v. Fox, 310 Kan.
939, 943, 453 P.3d 329 (2019). We review the district court's factual findings for
substantial competent evidence and "do not reweigh the evidence or assess witness
credibility." Johnson, 307 Kan. at 443.
In denying Villa's motion, the district court found that Mitchell met with Villa and
discussed his mental health issues. Those discussions led Mitchell to arrange interviews
with a psychiatrist to examine Villa's competency to stand trial, as well as determine
whether any diagnoses regarding Villa's mental health were necessary. After the
psychiatrist issued his findings, Mitchell decided Villa's mental health issues did not
present a viable defense because the psychiatrist could not conclude whether Villa
suffered from the effects of mental health issues or the effects of methamphetamine use
on the day he committed the crimes.
7
The district court also found that Mitchell discussed with Villa the elements of the
crimes he had been charged with. This included discussions about the difference between
aggravated robbery and robbery, as well as the difference between specific intent crimes
and general intent crimes. Similarly, the district court found that Mitchell met with Villa
on April 13 and 15 of 2018, the Friday and Sunday before he pled guilty on April 16,
2018. During those meetings, Mitchell discussed the plea agreement and
acknowledgment of rights forms with Villa and explained the sentencing ramifications of
pleading guilty. The district court concluded that Villa decided to seek and ultimately
enter into the plea agreement.
The district court rejected Villa's contention that Mitchell told him he would not
have a viable defense during trial and would be automatically sentenced to a harsher
sentence if found guilty. Instead, Mitchell provided Villa with candid advice about
whether he should accept the plea. The district court also rejected Villa's contention that
he did not receive a benefit from pleading guilty, pointing to the fact that he did not
receive the maximum sentence. For these reasons, the district court found that Mitchell
did not provide Villa with ineffective assistance of counsel.
In his brief, Villa does not dispute the district court's conclusions. Instead, he relies
mostly on his own testimony from the hearing on his motion to withdraw plea.
Essentially, he asks us to reweigh the same evidence the district court considered but
come to the opposite conclusion. Given our standard of review, this is something we
cannot do.
Villa claims three instances of ineffective assistance of counsel: (1) Mitchell
allegedly told Villa he did not have a chance to prevail at trial because he did not have a
viable defense; (2) Mitchell allegedly failed to adequately inquire or investigate Villa's
mental health issues; and (3) Mitchell allegedly failed to provide Villa with the video
surveillance footage.
8
However, the record does not support Villa's claim concerning what Mitchell
allegedly told him about his chances of prevailing at trial. Villa cites nothing aside from
his own testimony at the motion to withdraw plea hearing to support this allegation.
Moreover, he ignores both Mitchell's testimony and the district court's findings.
On both direct examination and cross-examination during the motion to withdraw
plea hearing, Mitchell said she never would have told Villa he did not have a defense.
She said she never tells her clients they do not have a defense because the State failing to
prove him guilty beyond a reasonable doubt is always an available defense. Similarly, she
said she never gives her clients the odds of prevailing at trial. When denying Villa's
motion, the district court "reject[ed] the contention . . . that Ms. Mitchell gave him the
impression he would automatically be found guilty by a jury and be sentenced to a
harsher prison term if he didn't plead as charged. Again, . . . Ms. Mitchell did not say he
would automatically be found guilty." This conclusion is supported by the record.
As to Villa's assertion that Mitchell failed to adequately investigate his alleged
mental health issues, he claims Mitchell failed to resolve whether Villa's mental health
issues caused him to commit the series of offenses to which he later pled guilty. He also
asserts that Mitchell failed to explain why a mental disease or defect defense would not
be available at trial.
To support his claim, Villa cites K.S.A. 2020 Supp. 21-5209, which states: "It
shall be a defense to a prosecution under any statute that the defendant, as a result of
mental disease or defect, lacked the culpable mental state required as an element of the
crime charged. Mental disease or defect is not otherwise a defense." After citing the
statute, Villa argues "that it was unreasonable for [Mitchell] to fail to follow up on the
issue of his mental health and seek a final determination of the question of whether
mental illness or drug use caused" his conduct.
9
As explained above, Mitchell first learned about Villa's mental health issues in
August 2017. After further discussions, she contacted a psychiatrist to perform a mental
health evaluation. By mistake, the psychiatrist performed a competency evaluation
instead, and the psychiatrist found Villa to be competent. This conclusion meshed with
Mitchell's belief that Villa was competent. Even so, the psychiatrist believed a mental
health evaluation would be helpful, and Mitchell agreed. After performing the evaluation
and having follow-up discussions with Villa, the psychiatrist could not conclude that
Villa's mental health issues caused his conduct because Villa told the psychiatrist he had
used methamphetamine in the days before the charged offenses occurred.
Even before the psychological evaluation, Mitchell also questioned the extent to
which drug use impacted Villa's actions because Villa told her during their first meeting
he had been under the influence of methamphetamine when the offenses occurred.
Additionally, outside of one conversation in September 2017, Mitchell said Villa never
manifested any signs of mental health impairment throughout her representation. Taken
together, the results of the mental health evaluation and her own observations led
Mitchell to believe that a mental disease or defect defense would not be effective in the
case.
In Strickland, the Supreme Court explained that "counsel has a duty to make
reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary." 466 U.S. at 690-91. Villa argues Mitchell's investigation into
his mental health issues was unreasonable, but he fails to explain how completing a
competency evaluation and a mental health evaluation renders Mitchell's efforts
unreasonable. He appears to argue the psychiatrist did not resolve whether his mental
health issues caused his conduct, but Mitchell said the psychiatrist concluded he could
not offer the mental disease or defect defense based on Villa's drug use.
10
"[S]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690. Trial
management, including the decisions made regarding what arguments should and should
not be pursued, is the lawyer's province. McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct.
1500, 1508, 200 L. Ed. 2d 821 (2018).
The district court concluded that Mitchell's investigation into Villa's mental health
issues was reasonable, as was her decision that a mental disease or defect defense would
not be effective at trial. These conclusions are supported by the record.
For his final claim, Villa argues that Mitchell failed to allow him to view the video
surveillance footage from the gas station he robbed. Villa asserts the video would have
shown that he did not make physical contact with the worker from the store, which
refuted the worker's testimony at the preliminary hearing.
When asked about the surveillance video, Mitchell believed she saw it, but she
could not recall whether she made it available for Villa to view. Mitchell did not recall
seeing a push in the video, but she remembered telling Villa that he would be pleading
guilty to a reduced charge of robbery instead of aggravated robbery. Mitchell also
remembered discussing defenses with Villa during these conversations. Villa stresses not
viewing the video when he argues the video would have provided him a defense to the
aggravated robbery charge, but he fails to explain how viewing the video is any different
than discussing the video's contents with Mitchell. Practically speaking, Villa knew what
the surveillance footage showed even without seeing it because the video portrayed his
actions. After viewing it, Mitchell discussed the surveillance footage and explained that
Villa would not be pleading guilty to aggravated robbery. And during these
conversations, Mitchell also discussed possible defenses with Villa.
11
Even assuming Villa can establish deficient performance under the first prong of
the Strickland test on this claim, he cannot establish prejudice under the second prong of
the ineffective assistance of counsel inquiry. See Bricker, 292 Kan. at 246 ("[T]here is a
reasonable probability that but for [counsel's] errors, the result of the proceeding would
have been different."). Villa's primary contention about the video surveillance footage is
that it would show he did not push the gas station worker. And consequently, the State
would be unable to prove him guilty of aggravated robbery due to a lack of bodily harm.
See K.S.A. 2020 Supp. 21-5420(b)(2) (requiring infliction of bodily harm upon a person
as element of offense).
But this contention ignores the fact that Villa never pled guilty to aggravated
robbery; he pled guilty to robbery. To be convicted of robbery, the State had to prove that
Villa "knowingly [took] property from the person or presence of another by force or by
threat of bodily harm to any person." K.S.A. 2020 Supp. 21-5420(a). Put differently,
convicting Villa of robbery did not require the State to prove he inflicted bodily harm
upon a person. See K.S.A. 2020 Supp. 21-5420(a); cf. K.S.A. 2020 Supp. 21-5420(b)(2).
Thus, even if the video showed that Villa never pushed the worker from the gas station
where the robbery occurred, he could still have been convicted of robbery. The district
court also relied on this fact when rejecting Villa's motion.
Additionally, Villa's actions throughout the case undercut his claims on appeal. At
one point, he filed a pro se motion seeking to replace Mitchell, but he withdrew the
motion soon after. Villa also signed the plea agreement and acknowledgment of rights
forms. A portion of the plea agreement stated that Villa made the decision to voluntarily
accept the plea, as did the acknowledgment of rights form. Another portion of the
acknowledgment of rights form stated that Villa agreed he was satisfied with counsel's
representation. During his plea hearing, the district court asked Villa whether he had any
questions about the plea agreement, and he said he did not. Similarly, the district court
12
asked Villa during sentencing whether any reason existed to prevent him from being
sentenced, and Villa said he had no reason.
The record establishes that Mitchell did not provide ineffective assistance of
counsel. Similarly, the record establishes that Mitchell did not coerce Villa into pleading
guilty. For these reasons, we affirm the district court's denial of Villa's postsentence
motion to withdraw plea.
Affirmed.
13