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No. 102,060 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. DONALD G. ATTEBERRY, Appellant.

SYLLABUS BY THE COURT 1. Generally, three factors are considered in evaluating both pre- and post-sentencing motions to withdraw pleas: (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.

2. The denial of a post-sentencing motion to withdraw a plea lies within the trial court's discretion, and an appellate court should not disturb that ruling absent an abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

3. If a defendant's post-sentencing motion can be construed as both a motion to withdraw a plea and a K.S.A. 60-1507 motion, appellate review of the summary denial of the motion is de novo.

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4. Whether a statute is unconstitutionally vague is a question of law over which appellate review is de novo and unlimited.

5. The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the Constitution.

6. Due process requires the language of a criminal statute to convey a sufficiently definite warning of the conduct proscribed when measured by common understanding and practice, for without such a sufficiently definite warning the criminal statue is unconstitutionally vague.
Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed September 3, 2010. Affirmed.

Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, for appellant.

Scott M. Schultz, special assistant district attorney, Office of the Securities Commissioner, Chadwick Taylor, district attorney, and Steve Six, attorney general, for appellee.

Before STANDRIDGE, P.J., GREEN and HILL, JJ.

GREEN, J.: This is a second appeal by Donald G. Atteberry. In this appeal, Atteberry seeks review of the trial court's judgment denying Atteberry's pro se motion to withdraw his plea filed under K.S.A. 22-3210(d). Atteberry entered a plea of no contest to 34 counts of violations of the Kansas Securities Act (the Act) and 2 counts of the theft by deception. Atteberry moved to withdraw his plea after sentencing and while his first 2

direct appeal was pending. His first appeal was dismissed for lack of jurisdiction under State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008). Atteberry based his motion to withdraw his plea primarily on his trial counsel's ineffective assistance. He maintained that his trial counsel failed to raise the affirmative defense that the promissory notes involved in the transactions at issue were exempt from the Act under K.S.A. 17-1261(i) (Furse 1995).

On appeal, Atteberry contends that the trial court wrongly denied his motion to withdraw his plea under K.S.A. 22-3210(d). We disagree. Accordingly, we affirm.

On October 11, 2001, the Kansas Securities Commissioner issued an emergency cease and desist order to Atteberry for allegedly violating the Act in connection with an investment opportunity he was offering to Kansas residents. The investment involved the exportation of cattle embryos to Europe. In May 2005, the securities commissioner issued another emergency cease and desist order to Atteberry for his alleged continuing violations of the Act. Atteberry requested a hearing to contest the cease and desist order, but he was arrested before the scheduled hearing.

The State filed its complaint against Atteberry on August 19, 2005, and initially charged him with six counts of violating the Act, K.S.A. 17-1252 et seq. On October 14, 2005, the State filed an amended complaint in which it alleged 36 counts against Atteberry. Of those 36 counts, 34 counts were for alleged violations of the Act, Chapter 17, Article 12, and the remaining 2 counts were allegations of theft by deception in violation of K.S.A. 21-3701. More specifically, Atteberry was charged with 7 counts of securities fraud in violation of K.S.A. 17-1253; 9 counts of offer or sale of unregistered securities in violation of K.S.A. 17-1255; 8 counts of failure to register as broker-dealer or agent in violation of K.S.A. 17-1254; and 10 counts of violating the emergency cease and desist order in violation of K.S.A. 17-1267(a). According to the amended complaint,

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the alleged unlawful acts took place on various dates between January 2003 and June 2005.

Initially, Atteberry was represented by retained counsel, Thomas D. Haney, who entered his appearance on August 24, 2005. As of July 17, 2006, Atteberry, through counsel, had not told the trial court or the State "of any defenses he [intended] to present at trial." At a pretrial conference and motion hearing on September 28, 2006, the court confirmed with Haney that Atteberry had "not disclosed the nature of the defense other than a general denial."

The day following that hearing, Haney moved to withdraw as Atteberry's attorney, citing "an irreconcilable conflict" between himself and Atteberry. In his motion to withdraw, Haney also stated he could not "provide the defendant constitutionally effective assistance of counsel due to the conflict." On October 6, 2006, Haney moved a second time to be allowed to withdraw as Atteberry's attorney and told the trial court that he had been discharged by Atteberry. At the time of this motion, the jury trial in this case had been scheduled to begin on October 16, 2006. The trial court permitted Haney to withdraw, and Carl E. Cornwell entered his appearance as new retained counsel on October 10, 2006.

Because Atteberry's new counsel needed time to review discovery documents and otherwise prepare Atteberry's defense, Cornwell requested a continuance. To meet the requirements for a speedy trial, Atteberry's trial needed to commence on or about October 20, 2006. In order to accommodate defense counsel's need to prepare and his existing trial schedule, Atteberry agreed to waive his right to a speedy trial. The trial was rescheduled for April 2, 2007.

Shortly before the new trial date, Atteberry changed his plea from not guilty to no contest on all 36 counts of the first amended complaint. At the beginning of the plea 4

hearing, the trial court questioned the parties on whether a plea agreement or any agreements on sentencing had been reached. The parties told the court that there were no plea or sentencing agreements.

The State presented facts relating to each count, and Atteberry admitted that those facts could be presented at trial. After hearing the State's factual basis for all counts, Atteberry changed his plea to no contest. The trial court accepted Atteberry's offer to change his plea and accepted his plea of no contest to each of the 36 counts. The court found Atteberry guilty as charged for each of the 36 counts.

Nearly a year before sentencing and 9 months before Atteberry changed his plea to no contest, the State filed a notice of intent to request an upward durational departure under K.S.A. 21-4718(b). The State contended that "a fiduciary relationship . . . existed between the defendant and the victims" and that several counts "involved victims that were particularly vulnerable due to age" or other infirmity. At the conclusion of the plea hearing, Cornwell told the trial court that a motion for both dispositional and durational departure would be filed on behalf of Atteberry. Although the appearance docket for this case does not list a defense departure motion, one was apparently filed with the trial court.

For the primary or base count, unlawful sale of securities

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