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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 101,635 STATE OF KANSAS, Appellee, v. THOMAS DALE PLOTNER, Appellant.

SYLLABUS BY THE COURT 1. At any time before sentencing, a district court has discretion to permit a plea to be withdrawn for good cause shown.

2. In reviewing a presentence denial of a motion to withdraw a plea, an appellate court utilizes an abuse of discretion standard of review. Defendants bear the burden of establishing an abuse of discretion.

3. In determining whether a defendant has shown good cause to permit the withdrawal of a plea, factors to consider include 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.

4. An abuse of discretion standard applies to an appellate court's review of a district court's determination as to whether mitigating circumstances presented under K.S.A. 214643(d) are substantial and compelling reasons for a departure sentence.

5. An illegal sentence is one imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served.

6. Generally, constitutional issues cannot be asserted for the first time on appeal unless: (1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the district court is right for the wrong reason.

Appeal from Ford District Court; VAN Z. HAMPTON, judge. Opinion filed June 25, 2010. Affirmed in part and reversed in part.

Heather Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

David Belling, deputy county attorney, argued the cause, and Terry J. Malone, county attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: Thomas D. Plotner appeals his conviction and sentence for three counts of rape of a child under the age of 14 in violation of K.S.A. 21-3502(a)(2). Prior to sentencing, he filed a motion to withdraw his plea to those charges, which was denied. The district court sentenced him on each count to life in prison with a 25-year mandatory minimum sentence under K.S.A. 21-4643, commonly known as Jessica's Law, but 2

ordered the sentences to run concurrently to one another. This court has jurisdiction under K.S.A. 22-3601(b)(1) (off-grid crime; life sentence).

These questions are raised on appeal: (1) Was Plotner entitled to withdraw his plea? (2) Did the district court abuse its discretion by failing to grant a downward durational departure? (3) Did the district court err by issuing a no-contact order? and (4) Is the statutorily-mandated lifetime postrelease supervision order constitutional?

We affirm Plotner's conviction and sentence except for the no-contact order, which the State concedes was an illegal sentence. We reject all other challenges Plotner raises in this appeal. The no-contact order is vacated. The remainder of Plotner's sentence is valid. See State v. Post, 279 Kan. 664, 112 P.3d 116 (2005) (vacating no-contact order; refusing to disturb remainder of sentence). We explain our decision below.

FACTUAL AND LEGAL BACKGROUND The State charged Plotner with seven off-grid crimes after two of his three stepdaughters, all of whom were under the age of 14, alleged he had inappropriately touched them between July 2006 and April 2007. Plotner also admitted to having inappropriate sexual relations with all three. Those charges included three counts of rape of a child under the age of 14 in violation of K.S.A. 21-3502(a)(2); three counts of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A); and one count of sexual exploitation of a child in violation of K.S.A. 21-3516(a)(5).

Plotner entered a plea agreement the day his arraignment was scheduled. In exchange for pleading guilty to the three rape charges, the State dropped the four other charges. There was no joint recommendation for sentencing. Plotner was free to seek a downward departure, and the State could seek the maximum sentence possible. 3

Approximately 6 weeks after entering his guilty plea, but prior to sentencing, Plotner asked to withdraw his plea and have a new attorney appointed to represent him. The district court assigned Plotner new counsel, who filed a motion to withdraw the guilty plea, claiming it was not knowingly or voluntarily made.

The same district court judge who presided over the initial plea proceeding also conducted the hearing on the motion to withdraw Plotner's guilty plea. Plotner testified, as did Linda Eckelman, the court-appointed counsel who had negotiated his plea agreement. The district court denied the motion based on its determination that Eckelman had adequately represented Plotner, and that Plotner had knowingly and voluntarily entered his guilty plea. The district court also noted there was overwhelming evidence of guilt. While it is unnecessary to recite all of the evidence here, it is sufficient to say it included Plotner's videotaped confession, DNA evidence, and a videotape depicting Plotner engaging in sex with the eldest victim.

Plotner then filed a motion seeking a competency evaluation, which was granted. The evaluation reflected Plotner had an I.Q. of 91, an average score, and was suffering some mild to moderate symptoms of depression due to his circumstances.

A motion for a downward durational sentencing departure was filed. In that motion, Plotner asserted the following mitigating circumstances: he was 30 years old; he had no prior felony convictions; at the time of the crimes he was under stress related to the breakup of his marriage; and his intellectual abilities were limited, affecting his ability to comprehend the seriousness of his conduct. At the sentencing hearing, Plotner also asked the district court to consider the mental health evaluation, the motion to depart, letters he had written to the court, his confession to police, and his statement attached to the presentence investigation report. It was argued these showed Plotner had a very 4

limited, and almost childlike, understanding regarding the seriousness of the crimes he committed.

The district court found Plotner had failed to present substantial and compelling reasons to depart from the statutorily-mandated sentence of 25 years to life for each count. But rather than run the three sentences consecutively, as the State had requested, the district court ordered Plotner's sentences to run concurrently. The district court also ordered restitution, lifetime postrelease supervision, payment of some costs, and that Plotner have no contact with the victims. Plotner timely appealed.

ANALYSIS Plotner's motion to withdraw his guilty plea was properly denied Whether Plotner's guilty plea may be withdrawn is controlled by K.S.A. 223210(d), which provides, "A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged." This court will not disturb a district court's decision to deny a presentence motion to withdraw a plea unless the defendant demonstrates the district court abused its discretion. Defendants bear the burden of establishing an abuse of discretion. State v. White, 289 Kan. 279, 284-85, 211 P.3d 805 (2009). "'Judicial discretion is abused when no reasonable person would take the view adopted by the district judge.'" State v. OrtegaCadelan, 287 Kan. 157, 165, 194 P.3d 1195 (2008) (quoting State v. Engelhardt, 280 Kan. 113, 144, 119 P.3d 1148 [2005]).

Plotner argues he did not knowingly or voluntarily plead guilty as K.S.A. 22-3210 and this court's jurisprudence require. In response, the State argues the contrary, but also claims Plotner failed to adequately brief whether the statutory conditions for accepting a 5

guilty plea were met. An issue not briefed or raised incidentally without argument is deemed abandoned. Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008). But Plotner's appellate brief adequately addressed the issue. We reject the State's latter argument without further comment.

When evaluating whether a defendant demonstrates "good cause" sufficient to withdraw a guilty plea under K.S.A. 22-3210(d) factors to consider may include 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. White, 289 Kan. at 285; see also State v. Sanchez-Cazares, 276 Kan. 451, 454, 78 P.3d 55 (2003). In reviewing the record, we hold the district court properly considered whether there was good cause to permit Plotner to withdraw his plea.

At the hearing on the motion to withdraw the guilty plea, Plotner testified his first court-appointed attorney (Eckelman) never visited him in jail. Plotner claimed Eckelman only met with him twice before his plea, and each meeting was only 15 to 20 minutes in duration. He testified Eckelman never reviewed the police reports with him and refused to watch a relevant videotape. He testified he never asked about a plea agreement, nor had he and Eckelman discussed one prior to the day it was presented to him. Plotner alleged he had no notice of the arraignment date and, upon arriving at court, was surprised to see Eckelman and the prosecutor discussing a plea bargain. After the prosecutor left, Plotner said he and Eckelman discussed the plea for 10 minutes.

Eckelman, who by the time of the withdrawal hearing had been replaced by new court-appointed defense counsel, also testified. She contradicted Plotner's account of her representation. She testified she visited Plotner in jail and met with him three times, two of which meetings were approximately an hour in length. She also testified she watched 6

the videotape and discussed with Plotner the overwhelming weight of evidence against him, specifically, that the videotape depicted Plotner and a victim having sex.

Eckelman also stated that from their initial meeting Plotner raised the possibility of a plea and that he had always been extremely remorseful, wishing only to "get this over with." Her version of the plea negotiation also differed from Plotner's. She said after he arrived at court that morning, she requested that the prosecutor discuss the plea with them both to ensure she had the details correct. She estimated she and Plotner met for an hour before he entered his guilty plea.

The plea hearing transcript supports Eckelman's version of the events, showing that she explained Plotner's sentence to him and inquired whether he understood her explanation. She also asked whether he needed more time to make his decision, to which he answered no, and whether he had had access to all the evidence in the case except the videotape, to which he answered yes. She then addressed his mental capabilities. Plotner indicated he was of sound mind and was a high school graduate who had worked in a local company's shipping department for the last 11 years.

The plea hearing transcript also shows the district court made its own inquiry of Plotner as K.S.A. 22-3210 requires. The district court asked him whether he understood he had the right to plead not guilty, receive a jury trial, confront witnesses, and potentially be found not guilty if the State did not meet its burden of proof; whether he understood there was no difference in his maximum punishment for entering a guilty plea; whether he felt like he was under any coercion, threat, force, or timetable; whether he understood the possible sentence; whether he was pleading guilty because he believed he was guilty; and whether he understood the consequences of his plea. As to each inquiry, Plotner indicated he understood and answered he was pleading guilty because he believed he was guilty. This exchange also confirmed Plotner had previously received a 7

copy of the complaint, a reading of the charges subject to the plea agreement, and an explanation that the charges were off-grid crimes requiring a life sentence.

In denying the motion to withdraw the guilty plea, the district court concluded Eckelman adequately represented Plotner and Plotner made his plea knowingly and voluntarily. The district court based the latter conclusion on evidence that Plotner was informed of all the charges and knew which counts would be dismissed in exchange for a plea and was informed of the possible sentence.

The district court found it was clear from the plea transcript Plotner knew his plea would result in a 25-years-to-life sentence. The district court also noted an implication in the record that Plotner viewed the plea as beneficial because it would save his stepdaughters the painful experience of testifying. The transcript reflects the district court properly considered whether there was good cause for withdrawal and found none. Further, reasonable people could agree with the district court's assessment.

We hold the district court did not abuse its discretion by denying Plotner's motion to withdraw his guilty plea.

Plotner's motion for a downward durational departure The sentencing statute in this case mandates a life sentence with a minimum of 25 years served "unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure." K.S.A. 21-4643(a) and (d). But the statute also provides a nonexclusive list of mitigating factors district court judges may consider when determining whether there are substantial and compelling reasons for departure. K.S.A. 21-4643(d)(1)-(6). An appellate court reviews "a district court's

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determination of whether mitigating circumstances presented under [K.S.A. 21-4643] are substantial and compelling" for an abuse of discretion. Ortega-Cadelan, 287 Kan. at 165.

Plotner argues the following mitigating circumstances: (1) He took responsibility for his actions; (2) he showed deep remorse for his actions; (3) he purposefully pled guilty in order to save the victims from testifying at trial; (4) the sexual acts between him and the oldest victim were not committed forcefully; (5) he had no significant criminal record prior to this crime

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