STATE OF KANSAS v. CHRISTOPHER LEE HERRING

Topeka, KS - Criminal defense attorney represented Christopher Herring with an aggravated robbery charge.

In November 2016, the State charged Herring with aggravated robbery at a Family

Dollar store. The district court appointed Brandon Hottman to represent him. Before trial,

Herring filed three pro se motions to discharge Hottman. The court denied each motion

after hearings on the merits. His arguments advanced in those motions underlie this

appeal.

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At the first hearing, Herring claimed Hottman had not allowed him to review

audio and video recordings from surveillance cameras at the store. Hottman admitted this

but explained he had reviewed the recordings and discussed them with Herring. The court

instructed Hottman to make them available to Herring. The court then denied the motion,

reasoning his claim was legally insufficient and premature.

At the second hearing, Herring argued Hottman refused to file a motion to dismiss

"for lack of evidence" and had requested a continuance over Herring's objection. Hottman

said he asked for the delay because he had not yet received the preliminary hearing

transcript and there was "an open investigation" concerning Herring's possible alibi

defense. The district court denied the motion.

At the third hearing, Herring repeated earlier arguments, saying he had "bad

communication" with Hottman over his refusal to file the motion to dismiss. Hottman

conceded they had disagreed on that because Hottman believed the motion was

premature. The court again refused to appoint new counsel.

Herring's case went to trial in May 2017, but he pleaded no contest to amended

charges of robbery and aggravated assault just after jury selection. At the plea hearing, he

attributed his reason for taking the plea to additional evidence the State had concerning a

phone call Herring made from jail. The court accepted Herring's plea and found him

guilty of the amended charges.

Herring filed a pro se motion before sentencing to withdraw his plea. Among other

reasons, he asserted ineffective counsel. The court appointed him a new attorney, who

expanded on the pro se claims. Both Herring and Hottman testified at an evidentiary

hearing. Herring made three claims about Hottman's competence: (1) insufficient

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visitations, (2) failure to investigate an alibi defense, and (3) mischaracterization of the

potential adverse impact from the jail phone call.

As to the first claim, Herring said Hottman only visited him "[m]aybe twice."

Hottman denied this, insisting they met at least seven times, with each visit lasting 10 to

30 minutes. As for the second claim, Herring said he gave Hottman information about

possible alibi witnesses, including his sister. He did not know the others' names but

provided their possible addresses. Herring claimed as his alibi that he was eating chicken

with his sister "at one point in time around that time." Hottman testified he tried to verify

this but decided it was not viable because he could not "anchor it in time." He said the

sister first told him she and Herring regularly ate chicken and "indicated she had chicken

with him on a Tuesday." But he said when she learned what day the crimes occurred, she

"changed it to a Thursday." Hottman said he made the "strategic decision" not to pursue

this. As to the other witnesses, Hottman said he believed his investigator attempted to

contact them but did not explain the result of that effort.

Finally, Herring complained Hottman mischaracterized the jail phone call as a

confession and improperly persuaded him "that [was] a reason why [he] should take a

deal." Hottman described the call as Herring telling his sister that "he needed money and

then she [made] a comment that the Family Dollar won't feed you or something along

those lines." Hottman thought it sounded "like [Herring] was explaining his actions." He

also said he had received the recording about a week before trial, but neither he nor his

co-counsel listened to it until the morning of trial just before voir dire. They discussed it

with Herring after completing jury selection. Hottman said Herring's "first comment

[about the call] was that [it] sounds like a confession and [Herring] put his head down.

He maintained that it was taken out of context but admittedly said that it didn't sound

good." The appellate record does not include a transcript or audio recording of that call.

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In ruling on the plea withdrawal, the district court considered Herring's claims in

light of K.S.A. 2019 Supp. 22-3210(d)(1) and the three nonexclusive factors set out in

State v. Edgar, 281 Kan. 30, Syl. ¶ 2, 127 P.3d 986 (2006). The court stated, "The Edgar

factors are, one, whether the defendant was represented by competent counsel, [two]

whether the defendant was misled, coerced, mistreated or unfairly taken advantage of

and, three, whether the plea was fairly and understandingly made."

As to the first Edgar issue, which is the one relevant for this appeal, the court

stated:

"[To address the first factor,] I considered the two-prong test in Strickland v. Washington,

466 U.S. 668, [104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. Those factors are two: First,

counsel committed serious errors that undermine the Sixth Amendment's guarantee to

effective assistance of counsel and, two, counsel's deficient performance prejudiced the

defendant.

"More specifically, [under] Moncla v. State, 285 Kan. 826, [176 P.3d 954

(2008)]. . . , a movant must establish, one, counsel's representation fell below the

objective standard of reasonableness considering all circumstances and then, two, but for

the counsel's deficient performance there is a reasonable probability that the outcome of

the proceeding would have been more favorable to the defendant.

"In considering the first element, defense counsel enjoys a strong presumption

that his or her conduct falls within the wide range of reasonable professional conduct.

Further, courts are highly deferential in scrutinizing counsel's conduct and counsel's

decisions on matters of reasonable strategy and make every effort to eliminate the

distorting effects of hindsight.

. . . .

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"The issue in this case is has the defendant . . . shown good cause to permit a

withdrawal of his plea. My ruling is as following: I deny Mr. Herring's motion. I find

Mr. Hottman, along with Miss McFerren, provided competent and effective

representation of Mr. Herring.

"The question of whether to proceed with an alibi defense is a strategic, tactical,

technical, and professional decision that rests with Mr. Hottman. Furthermore, Mr.

Hottman thoroughly and capably vetted the facts supporting the proposed defense and in

real time as well as hindsight made a strategic decision not to pursue the defense.

. . . .

"Based upon the written motion and the defendant's testimony, I believe Mr.

Herring's position can fairly be broken down into three claims. First, he was not

represented by competent counsel. That's the first Edgar factor. I'm including the alibi

defense issue under this claim because whether or not to pursue an alibi defense is the

attorney's decision. . . . Therefore, the issue should be considered in the context of

ineffective representation of counsel. Was it objectively unreasonable for Mr. Hottman

not to pursue the alibi defense?

. . . .

" . . . Defendant claims Mr. Hottman's representation was incompetent,

incomplete, and insufficient. He claims Mr. Hottman rarely visited him in jail. That is

contrary to the credible facts. Mr. Hottman testified from a detailed file that he saw

defendant seven times, basically once per month. Mr. Hottman provided competent and

reasonable representation.

"Besides seeing defendant in custody, which we all know is not always the best

way to spend time investigating and preparing a defense, Mr. Hottman provided

defendant with discovery, showed him the video early on, in fact, on February 1st, 2017.

He engaged an investigator and when close to trial spent the requisite time preparing

pretrial motions, organizing a trial notebook or binder, in his words, and generally

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preparing for trial. He did all of this while having to endure the defendant's baseless

requests to terminate his representation.

"It is clear Mr. Herring wanted his case to be defended a certain way. He wanted

to act as a lawyer. He's critical of Mr. Hottman for not filing the defendant's motions. But

the law categorized as hybrid representation simply does not allow Mr. Herring to have a

lawyer and be a lawyer.

"Now, regarding the alibi defense, first, whether to pursue the defense is Mr.

Hottman's decision, not Mr. Herring's decision. So the issue is whether Mr. Hottman's

decision not to pursue the defense meets the objective standard of reasonableness. Based

upon the facts, it most certainly does.

"Mr. Hottman took his client's alibi evidence at face value and pursued it. He

took down the names, principally the defendant's sister, and followed up. He spoke to the

sister more than once and had his investigator follow up with the sister, as well as others,

but the sister could not provide an adequate recollection or evidence sufficient to anchor

the defense. Mr. Hottman recognized this and decided the evidence did not meet the legal

requirement to go forward, not to mention that to do so would hurt the credibility of the

defendant's other theories of defense, a most reasonable legal decision.

"In summary, based upon the totality of the circumstances, I find that Mr.

Herring has failed to meet his burden regarding the first Strickland factor and I find that

Mr. Hottman's representation clearly meets the objective standard of reasonableness. He

did a good job for his client. The defendant's fragmentary perspective of Mr. Hottman's

representation, including his argument that Mr. Hottman should have requested a

continuance on the second day of trial, is in fact distorted and unduly magnified through

the lens of hindsight. I do not consider the second Strickland factor."

After denying the motion, the court sentenced Herring to 43 months' imprisonment

for robbery and 13 months for aggravated assault, both to run concurrent. Herring

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appealed, challenging the district court's ruling on the first Edgar factor as an abuse of

discretion based on an error of law.

The panel agreed the district court erred by using the wrong legal standard—the

Strickland test—instead of the correct, less stringent "'lackluster advocacy'" standard

specified under Aguilar, 290 Kan. at 513, ("Merely lackluster advocacy . . . may be

plenty to support the first Edgar factor and thus statutory good cause for presentence

withdrawal of a plea."). Herring, 2019 WL 1413030, at *3-4. But it also held the error

was harmless, so it affirmed. The panel's holding states:

"Regardless, we find this error to be harmless in light of our review of the entire

record and the specific findings made by the district court after hearing the evidence

presented at the motion hearing. See Edgar, 281 Kan. at 37-38 (citing State v. Trotter,

218 Kan. 266, 269, 543 P.2d 1023 (1975) ['While we do not approve of any failure to

comply strictly with the explicitly stated requirements of K.S.A. 22-3210, it does not

follow that every deviation therefrom requires reversal.']). . . . [T]he district court not

only found that Herring's attorneys met the objective standard of reasonableness but also

expressly found that they were 'competent,' 'effective,' 'capabl[e],' and had done a 'good

job' in representing Herring. Each of these findings reveal that the district court

concluded that counsel's performance exceeded the 'lackluster advocacy' standard set

forth in Aguilar.

"On the one hand, the dictionary defines 'lackluster' to mean 'lacking energy or

vitality; boring, unimaginative, etc.' Webster's New World College Dictionary 812 (5th

ed. 2014). On the other hand, the dictionary defines 'effective' to mean 'having an effect;

producing a result' or 'producing a definite or desired result.' Webster's New World

College Dictionary 464 (5th ed. 2014). Accordingly, we find that any error committed by

the district court was harmless because the record conclusively shows that the

representation of Herring provided by Hottman and his cocounsel was far from

lackluster." Herring, 2019 WL 1413030, at *4.

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Herring petitioned this court for review, challenging the panel's application of

harmless error. We note the threshold ruling on the district court's use of the wrong legal

standard is settled because the State did not cross-petition for review about that. See State

v. McBride, 307 Kan. 60, 62, 405 P.3d 1196 (2017) (when appellee does not crosspetition for review of a Court of Appeals holding that error occurred, the Supreme Court

will not consider whether that holding was erroneous when reviewing the appeal).

Jurisdiction is proper. K.S.A. 20-3018(b) (petition for review of Court of Appeals

decision); K.S.A. 60-2101(b) (providing Supreme Court jurisdiction over cases subject to

review under K.S.A. 20-3018).

STANDARD OF REVIEW

The issue is whether the district court's improper use of the Strickland standard

requires remand or is amenable to a harmless error analysis. Our standard of review is de

novo. State v. Ward, 292 Kan. 541, 577, 256 P.3d 801 (2011); see also State v. Belone,

295 Kan. 499, 503, 285 P.3d 378 (2012) (when determining a trial error is harmless, "we

employ a de novo review of the entire record").

DISCUSSION

K.S.A. 2019 Supp. 22-3210(d) allows for withdrawal of a guilty or nolo

contendere plea in the discretion of the court. See K.S.A. 2019 Supp. 22-3210(d)(1)

(presentence; "within the discretion of the court"); State v. Fritz, 299 Kan. 153, 154, 321

P.3d 763 (2014) (postsentence; district court's ruling is reviewed for abuse of discretion).

But the statutory standards for granting withdrawal differ depending on the timing. If the

request is made before sentencing, the plea may be withdrawn for "good cause shown." If

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requested after sentencing, the plea may be withdrawn only "[t]o correct manifest

injustice." K.S.A. 2019 Supp. 22-3210(d)(1), (2).

Under Aguilar, when a defendant moves to withdraw a plea after sentencing, a

district court must use the ineffective assistance standard under Strickland to consider the

first Edgar factor. But when the same motion is made before sentencing, the court applies

the lower "lackluster advocacy" standard. As the Aguilar court explained:

"It is neither logical nor fair to equate the lesser K.S.A. 22-3210(d) good cause

standard governing a presentence plea withdrawal motion to the high constitutional

burden. The Edgar factors do not transform the lower good cause standard of the statute's

plain language into a constitutional gauntlet. Merely lackluster advocacy . . . may be

plenty to support the first Edgar factor and thus statutory good cause for presentence

withdrawal of a plea." (Emphasis added.) 290 Kan. at 513.

In deciding the error was harmless, the panel noted the district court "expressly

found that [Hottman and his co-counsel] were 'competent,' 'effective,' 'capabl[e],' and had

done a 'good job' in representing Herring. Each of these findings reveal that the district

court concluded that counsel's performance exceeded the 'lackluster advocacy' standard

set forth in Aguilar." Herring, 2019 WL 1413030, at *4. In so holding, the panel

apparently relied on Edgar, 281 Kan. at 37-38 (citing Trotter, 218 Kan. at 269), to

conclude the district court's error could be deemed harmless.

The panel's analysis is wrong. To begin with, neither Edgar nor Trotter are on

point. In Trotter, the defendant claimed his guilty pleas were involuntary because the

district court did not strictly comply with K.S.A. 2019 Supp. 22-3210(a): when accepting

the pleas, the court failed to sufficiently advise Trotter about the nature of the charges,

and the possible sentence and consequences of such pleas, nor did it personally question

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him about the voluntariness of his pleas as the statute required. Trotter, 218 Kan. at 268-

69. Based on this, the Trotter court held,

"While we do not approve of any failure to comply strictly with the explicitly

stated requirements of K.S.A. 22-3210, it does not follow that every deviation therefrom

requires reversal. If upon review of the entire record it can be determined that the pleas of

guilty were knowingly and voluntarily made, the error resulting from failure to comply

strictly with K.S.A. 22-3210 is harmless." 218 Kan. at 269.

Trotter challenged the validity of his guilty pleas for the first time on appeal. 218

Kan. at 266-68 (life sentence case; directly appealed to Supreme Court). And that is why

the Trotter court looked at the entire record and determined whether the error was

harmless. Those circumstances are not presented in Herring's appeal.

In Edgar, the court quoted Trotter's holding to explain that while "[a] failure to

strictly comply with the [statutory requirements . . . ] may be harmless error if a review of

the entire record shows the guilty plea was knowingly and voluntarily made," it "may be

good cause for granting a motion to withdraw if the noncompliance results in the

defendant not understanding the nature of the charge or the consequences of entering the

plea." Edgar, 281 Kan. at 37-38.

The simple point is that neither case supports the Herring panel's notion that the

district court's abuse of discretion from applying the incorrect legal standard to

determining "good cause" could be saved by harmless error review. Indeed, our caselaw

holds otherwise. In similar cases when "the district court's decision to deny the

defendant's motion to withdraw plea may have been guided by an erroneous legal

conclusion," the court has consistently reversed and remanded "to ensure that the district

court applies the appropriate legal standard to determine whether defendant made the

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good cause showing." State v. Garcia, 295 Kan. 53, Syl. ¶ 5, 283 P.3d 165 (2012); see

also Aguilar, 290 Kan. at 515 ("The district judge's failure to apply the appropriate

standards in the plea withdrawal hearing was an abuse of discretion requiring reversal

and remand . . . .").

In Garcia, in denying a plea withdrawal, the district court erroneously cited State

v. Ford, 23 Kan. App. 2d 248, 930 P.2d 1089 (1996) (requiring an allegation of

innocence to justify a motion to withdraw a plea prior to sentencing), which was

overruled by State v. Vasquez, 272 Kan. 692, 696, 36 P.3d 246 (2001) ("It is apparent that

this court does not require an allegation that defendant is not guilty as charged as a

prerequisite for withdrawing a plea of guilty or nolo contendere prior to sentencing. Nor

is there such a requirement in the statute, which bases withdrawal on good cause shown

and on the discretion of the trial court."). Garcia, 295 Kan. at 58-59. And despite the

district court's discussion of the Edgar factors, the Garcia court was not "reassured

enough" to "discount or disregard the possibly inappropriate emphasis on Ford and the

absence of an allegation of innocence." 295 Kan. at 63. In other words, because the

district court's ruling "may have been guided by an erroneous legal conclusion," the

"uncertainty" about what it would have done absent the error was enough to reverse its

denial and remand for another hearing to apply the appropriate legal framework. 295

Kan. at 63-64.

Herring's case is even more problematic. Here, all agree the district court

incorrectly used the more stringent, constitutional standard when considering the first

Edgar factor. It explicitly stated "defense counsel enjoys a strong presumption that his or

her conduct falls within the wide range of reasonable professional conduct. Further,

courts are highly deferential in scrutinizing counsel's conduct and counsel's decisions on

matters of reasonable strategy and make every effort to eliminate the distorting effects of

hindsight." (Emphases added.) And it expressly relied on Strickland and found Hottman

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and co-counsel were "competent," "effective," "capabl[e]," and "[Hottman] did a good

job for his client."

Those findings are plainly from the ineffective assistance standard—not the

applicable lackluster advocacy standard. Even worse, no caselaw supplies an exact

meaning of lackluster advocacy, so it is impossible for a reviewing court—like the

Herring panel—to know how its view might square with the district court's on the same

set of facts. The lower court has to rule first to know that. See State v. Schow, 287 Kan.

529, 546, 197 P.3d 825 (2008) (remand ordered to apply the correct law to determine

whether the defendant "established good cause and then to exercise its discretion to rule

on the motion").

This unknown is easily illustrated. As noted by the panel, the dictionary definition

of "'lackluster'" means "'lacking energy or vitality; boring, unimaginative, etc.'" Herring,

2019 WL 1413030, at *4. Although we emphasize that we do not express any opinion on

the merits of Herring's plea withdrawal motion, this record at least shows circumstances

that might be fairly characterized as "lackluster" advocacy, such as Hottman not letting

Herring review the surveillance recordings until the court ordered him to do so; or not

listening to the jail call recording until the first morning of trial despite having received it

the week before. A reviewing court may think it understands how a district court should

view these circumstances, but it cannot know for sure until the lower court does the

analysis. The district court must decide first whether these facts, taken in consideration

with the rest of Herring's case, amount to good cause under the lackluster advocacy

standard.

Just as importantly, remand is consistent with precedent, i.e., Garcia, Aguilar,

Schow, and other Court of Appeals decisions, e.g., State v. Locke, 34 Kan. App. 2d 833,

836, 125 P.3d 584 (2006) ("It is not this court's function to review the record to determine

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if Locke established 'good cause' to withdraw his plea. This judgment must be first

exercised by the district court."); State v. Black, No. 118,570, 2018 WL 6713965, at *4

(Kan. App. 2018) (unpublished opinion) (rejecting the State's argument that the district

court's error was harmless; remanding the case for the district court to apply the correct

legal standard for assessing the competency of counsel in a presentence motion to

withdraw plea); State v. Fritts, No. 96,975, 2007 WL 2915605, at *2 (Kan. App. 2007)

(unpublished opinion) ("Remand for a new hearing is necessary since this court has no

evidence before it now that would allow an informed decision regarding the merits of the

motion. At that hearing, the trial court should apply the appropriate 'for good cause

shown' standard in determining whether Fritts should be allowed to withdraw his plea.");

State v. Krusich, No. 96,766, 2007 WL 2695833, at *2 (Kan. App. 2007) (unpublished

opinion) ("[W]e must remand the case for a rehearing on Krusich's motion to withdraw

plea because the discretionary call as to whether good cause has been shown must first be

made by the district court."); State v. Darby, No. 95,185, 2007 WL 219970, at *5 (Kan.

App. 2007) (unpublished opinion) ("Because Darby was subjected to an inappropriate

standard, we are required pursuant to Locke to remand this case to the district court for

reconsideration of Darby's motion under the proper legal standard.").

We reverse the panel's decision and remand the case to the district court with

directions to reassess the first Edgar factor under the lackluster advocacy standard and then exercise its statutory discretion under K.S.A. 2019 Supp. 22-3210(d)(1).

Reversed and remanded with directions.