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No. 102,249 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. ROBERT SILHAN, Appellant. SYLLABUS BY THE COURT 1. A court may permit a defendant to withdraw a plea after sentencing and may set aside a judgment of conviction to correct manifest injustice. Manifest injustice has been defined as something obviously unfair or shocking to the conscience.

2. An appellate court reviews a district court's denial of a postsentencing motion to withdraw a plea under an abuse of discretion standard. Under this standard, a defendant has the burden to show that the district court's action was arbitrary, fanciful, or unreasonable.

3. In order to be constitutionally valid, a guilty plea and the inherent waiver of rights must be voluntary, knowing, intelligent, and done with sufficient awareness of the relevant circumstances and likely consequences. The term "voluntary" implicitly requires that the defendant be competent.

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4. A person is incompetent to stand trial when he or she is charged with a crime and because of mental illness or defect is unable to understand the nature and purpose of the proceedings against him or her, or to make or assist in making his or her defense. On the other hand if the person is capable of understanding the nature and object of the proceedings, if he or she rightly comprehends his or her own condition with reference to such proceedings, and if he or she can conduct his or her defense in a rational manner, he or she is, for the purpose of being tried, deemed competent although on some other subject his or her mind may be deranged or unsound.

5. Under the facts of this case, the district court did not abuse its discretion in determining the defendant was competent to enter a guilty plea.

6. An argument that the district court did not strictly comply with the statutory requirement that it advise a defendant of the maximum sentence he or she could receive before accepting a guilty plea cannot normally be raised for the first time on appeal when it was not presented to the district court.

7. A failure of the district court to strictly comply with the requirement that it advise a defendant of the maximum sentence possible before accepting a plea may be harmless error if a review of the entire record shows the guilty plea was knowingly and voluntarily made.

8. Before a plea may be set aside based upon allegations of ineffective assistance of counsel, a defendant must establish two things: that counsel's performance fell below the 2

standard of reasonableness; and that a reasonable probability exists that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial.

9. An appellate court's review of a district court's denial of a motion to set aside a plea based upon ineffective assistance of counsel is limited to whether the district court abused its discretion.

10. When the State charges a defendant with involuntary manslaughter while driving under the influence of alcohol, it has the burden to prove the defendant's conduct was the probable cause of the victim's death.

11. When evaluating an attorney's performance, a court must view the representation in light of knowledge a reasonable attorney possessed, or should have possessed, at the time of the performance in question.

12. Under the facts here, the district court did not abuse its discretion in denying the motion to set aside a plea based upon defendant's allegation of ineffective assistance of counsel.

Appeal from Reno District Court; RICHARD J. ROME, judge. Opinion filed April 1, 2011. Affirmed.

Richard Ney, of Ney & Adams, of Wichita, for appellant.

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Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Steve Six, attorney general, for appellant.

Before HILL, P.J., GREEN, J., and BUKATY, S.J.

BUKATY, J.: After he was sentenced, Robert Silhan filed a motion to set aside his guilty plea. He alleged two grounds: he did not knowingly, voluntarily, and intelligently enter the plea; and he had ineffective assistance of counsel prior to entering the plea. The district court denied the motion, and Silhan brings this appeal. We conclude the district court did not abuse its discretion and we affirm.

The case arises out of a very tragic accident in which two people died and three suffered significant injuries. The State charged Silhan with two counts of involuntary manslaughter while driving under the influence of alcohol and two counts of aggravated battery after he drove his vehicle on the wrong side of a divided highway and crashed head-on into another vehicle. Two people in the other vehicle were killed and two were seriously injured. Silhan himself suffered serious injuries that apparently required he be placed in a medically induced coma and hospitalized for a significant period. The district court appointed attorney Kevin Smith to represent Silhan. Later at his arraignment he heard the charges against him and the possible maximum sentences. He waived a preliminary hearing and pled not guilty.

More than 3 months later, the district court conducted a plea hearing. Silhan told the court that he had discussed the case with his attorney and wanted to plead guilty. The court advised Silhan that at any time he did not understand a question or statement he could ask for an explanation. The district court thoroughly discussed the rights and consequences of a guilty plea. Silhan signed the following written factual basis and it was presented to the court:

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"On April 14, 2006, in Reno County, Kansas, I was operating a motor vehicle while under the influence of alcohol. My blood alcohol was .17, more than double the legal limit of .08. While impaired, I turned onto K-96 on the wrong side of the freeway and crashed into another vehicle. Because of my recklessness, two men in the other vehicle died due to the injuries they sustained in the collision."

The district court found Silhan had voluntarily, knowingly, understandingly, and intelligently waived his constitutional rights in making his plea and a factual basis existed to support each count of the complaint.

Silhan then filed a motion requesting a dispositional departure to a probation sentence or to probation following an alcohol treatment program and/or serve 60 days in jail. He maintained that: (1) he took full responsibility for his actions in waiving a preliminary hearing and pleading guilty, thereby saving the district court time and sparing the victims the ordeal of a trial; (2) he was 25 years old; (3) he had no criminal history; (4) he had full-time employment; (5) he had completed drug and alcohol treatment and attended Alcohol Anonymous; (6) he was a speaker on drunk-driving prevention; (7) he would receive better treatment outside prison; and (8) he would continue his job in order to pay restitution. Silhan attached 32 letters of reference from citizens attesting to his character and arguing for departure.

The district court heard Silhan's motion a few weeks later. At that hearing, Silhan described his remorse for the accident and his actions. At one point, Smith had to step in because Silhan was unable to continue. After several members of the victims' families spoke, Silhan continued his statement concerning his remorse for his actions and how sorry he was for the accident. He offered the testimony of four people: his college football teammate, his college football coach, his alcohol treatment counselor, and his pastor.

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After commenting on the difficult nature of the case, the district court denied the motion for departure and sentenced Silhan to standard presumptive sentences: 41 months on each of the two involuntary manslaughter convictions to run consecutively, and 8 months on each of the two aggravated battery convictions to run concurrent with each other and concurrent to the involuntary manslaughter sentences (a controlling sentence of 82 months).

Silhan appealed both his sentences and the denial of the motion for departure. The Court of Appeals affirmed, finding that Silhan had received a presumptive sentence and the court was without jurisdiction to hear the arguments. See State v. Silhan, No. 98,887, unpublished opinion filed December 5, 2008.

Approximately 1 month after this court's opinion and almost 2 years after the guilty plea, Silhan obtained a new attorney, Richard Ney. He then filed a motion to withdraw his plea pursuant to K.S.A. 22-3210(d) in order to correct a manifest injustice. Silhan claimed he did not knowingly, intelligently, and voluntarily enter his plea because of his low cognitive abilities. He also claimed that the plea resulted from ineffective assistance of his plea counsel, Kevin Smith. After an evidentiary hearing, the district court denied Silhan's motion.

In this appeal, Silhan makes the same arguments he made below and urges that the district court erred in not setting aside the plea.

A district court considering a timely motion to withdraw a plea after sentencing may set aside a judgment of conviction and permit a defendant to withdraw a plea to correct manifest injustice. K.S.A. 22-3210(d)(2); State v. Edwards, 290 Kan. 330, Syl.

Download State v. Silhan.103714 Siler v. U.S.D. No. 512..pdf

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