                           NOT DESIGNATED FOR PUBLICATION

                                             No. 120,557

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                   v.

                                       ROY ERWIN CEPHAS JR.,
                                            Appellant.


                                    MEMORANDUM OPINION

        Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed March 20, 2020.
Affirmed.


        Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.


        Ashley R. Iverson, assistant county attorney, Barry R. Wilkerson, county attorney, and Derek
Schmidt, attorney general, for appellee.


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


        PER CURIAM: In accordance with a plea agreement, Roy Cephas Jr. pleaded no
contest to robbery. Before sentencing, Cephas moved to withdraw his plea. After a
hearing, the trial court denied Cephas' motion. Cephas was sentenced to 122 months'
imprisonment with 24 months' postrelease supervision. Cephas appeals the denial of his
plea withdrawal motion. We affirm.

        On July 9, 2017, the State charged Cephas with aggravated robbery, a severity
level 3 felony, in Riley County. The purported victim was a minor, M.M. Kirby


                                                   1
Williamson was also charged by the State for her role in the same robbery. Cephas
reached a plea agreement with the State on March 12, 2018. Cephas agreed to enter a
guilty or no-contest plea to robbery, a severity level 5 felony. In return, the State agreed
to the following: (1) that the low number in the sentencing grid box should be selected
by the trial court; (2) that neither party would file any departure motions; (3) that jail
credit be given for any time Cephas was held in custody; (4) that it would dismiss
probation violation cases for three Riley County misdemeanor convictions; and (5) that
any sentence for a probation violation in Geary County case No. 18CR55 would run
concurrent to the sentence in this case. The parties agreed that Cephas' criminal history
score would likely be A. Cephas also signed a waiver of rights with his plea agreement.
As part of that waiver, he acknowledged he understood that "every three convictions or
juvenile adjudications for either class A or class B person misdemeanors (or any
combination thereof), shall be rated as one adult conviction or one juvenile adjudication
of a person felony for criminal history purposes."


       The trial court held a plea hearing on March 12, 2018. At the hearing, Brenda
Jordan, Cephas' defense counsel, explained the plea agreement also contained an
unattached third page containing a promise from the State not to pursue probation
revocation in Geary County and to dismiss all charges. The trial court proceeded to ask
Cephas about his decision to enter into the agreement. When asked, Cephas responded
that he had an opportunity to review the plea agreement and discuss it fully with his
attorney, Jordan. He stated that he agreed to each provision in the agreement. Cephas told
the trial court he had a chance to review the sentencing grid and agreed his criminal
history score would be A. Cephas understood he was waiving his constitutional rights to
trial and to present a defense by entering into the plea agreement. Cephas also understood
the possible penalties for a severity level 5 person felony. Cephas stated there was no
other promise or inducement outside of the plea agreement to persuade him to enter a
plea of guilty or no contest.


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       The trial court asked Cephas: "Are you telling the court that you're entering this
plea freely, voluntarily, and of your own free will?" Cephas responded, "Yes, Your
Honor." Cephas told the trial court that he was satisfied with Jordan's representation in
this case. Cephas pled no contest to one count of robbery. The trial court accepted his
plea and found him guilty.


       Cephas was scheduled to be sentenced on April 23, 2018, but he failed to appear.
He was arrested on June 4 and sentencing was rescheduled for June 25 2018. At that
hearing, Jordan asked the trial court to allow her to withdraw because Cephas wished to
raise issues with Jordan's representation of him. The trial court allowed Jordan to
withdraw.


       On September 14, 2018, Cephas wrote a pro se letter to the judge asking to
withdraw his plea. On September 27, his new attorney filed a plea withdrawal motion. In
the motion, Cephas asserted that he was not represented by competent counsel; he was
misled; and his plea was not fairly and understandingly made. Cephas stated he was not
on probation in Geary County in case No. 18CR55 as the agreement stated. Cephas
asserted that K.S.A. 2018 Supp. 21-6606(c) would require any sentences imposed in
Geary County to run consecutive to a sentence in this case, which meant the State offered
Cephas a benefit he could not receive. Cephas also maintained he was misled into
believing the controlling sentence in his three Riley County misdemeanor cases was 24
months' imprisonment instead of 12. Cephas contended that Jordan withheld material
evidence regarding Williamson's testimony and plea deal and M.M.'s video interview
with the police. The State filed a response, refuting Cephas' contentions.


       The trial court held a plea withdrawal hearing on October 9, 2018. Cephas testified
on his own behalf. Cephas testified that he was unaware that the three Riley County
misdemeanors would raise his criminal history score to A. Cephas admitted Jordan did
not provide him with that information when he entered a plea to those cases. Also,

                                             3
Cephas was not on probation in 18CR55 as the plea agreement suggested, but the case
was pending. He was on probation in two other Geary County cases. Cephas believed the
plea agreement meant he would remain on probation but not be revoked. Cephas testified
that he requested to view the video evidence, but Jordan never provided it to him. He also
asserted that Jordan led him to believe that his potential sentence in the three Riley
County misdemeanor cases was 24 months. While Cephas admitted Jordan told him that
Williamson, his codefendant, would testify against him at trial, Cephas maintained that
he was unaware that Williamson had provided an updated statement to law enforcement.
Jordan also told him that the State would recommend probation for Williamson in
exchange for her testimony. Cephas later testified that he was not aware of any audio or
visual evidence that he could review. Cephas testified that he never saw any e-mails or a
written agreement from Geary County indicating what it would do in return for his plea
in this case.


       On cross-examination, Cephas admitted that he knew his criminal history score
was an A when he entered into the plea agreement. Cephas acknowledged his cases in
Geary County were dismissed following his plea.


       The State called Jordan to testify. Jordan testified that, when discussing the plea
deal in the three Riley County misdemeanor cases, she told Cephas that any three person
misdemeanors would convert to a person felony for criminal history purposes. Jordan
explained that she told Cephas he faced a 12-month sentence in Riley County for the
probation violations and described her note that she used to explain that to him. On
March 11, 2018, Cephas told Jordan that he did not want to accept the plea agreement. At
his pretrial hearing on March 12, 2018 Cephas asked to speak with his parents and, after
talking to them on the phone, he decided to accept the plea agreement. Jordan testified
that she spoke with the Geary County Attorney, who agreed to dismiss all cases against
Cephas. Jordan stated that she understood that Williamson testified under oath in her own
preliminary hearing and implicated Cephas in the robbery. Williamson was always listed

                                              4
as a witness on the criminal complaint. Jordan furnished Cephas with all of the written
reports in this case, including M.M.'s statement to the police, but he never asked to view
the video of M.M.'s interview. Jordan testified that the video was consistent with the
reports provided to Cephas.


       The trial court considered the Edgar factors to determine if good cause existed to
allow Cephas to withdraw his plea. See State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986
(2006). The trial court found Cephas knew his criminal history score was A and he knew
that pleading to three class of A or class B misdemeanor crimes (or combination of it)
would raise his score to that level. The trial court also found Cephas was aware of his
pending cases in Geary County. The trial court found that Jordan was a competent
attorney and Cephas was represented by competent counsel. The trial court pointed out
that Jordan's testimony was credible regarding Cephas' request to watch M.M.'s video.
And the trial court also found that Jordan told him the sentence for the three probation
revocations was 12 months, not 24, and found that Cephas' testimony regarding those
issues was not credible. The trial court noted that Cephas admitted that he knew
Williamson would testify against him and that he knew about her plea deal with the State.
The trial court ruled then that there was no good cause shown to allow Cephas to
withdraw his plea. So, the trial court denied Cephas' motion to withdraw his plea.


       Immediately following its decision, the trial court proceeded to sentencing. The
trial court sentenced Cephas to 122 months' imprisonment with 24 months' postrelease
supervision.


       Cephas timely appeals.




                                             5
Did the Trial Court Abuse Its Discretion When It Denied Cephas' Motion to Withdraw
His Plea?


       Cephas' sole issue on appeal is whether the trial court abused its discretion when it
denied his plea withdrawal motion. Cephas asserts that his plea was not fairly and
understandingly made because Jordan did not show him the video of M.M.'s police
interview or tell him of Williamson's intent to testify against alyssa69@example.com. Cephas also
argues that he was misled because Jordan told him he would serve 24 months'
imprisonment instead of 12 for his Riley County probation violations. Moreover, he
contends that he was not aware that his plea in those three Riley County misdemeanor
cases would raise his criminal history score to A. The State responds that the trial court
found that Cephas knew his criminal history score and that Cephas testified he was aware
of Williamson's plea agreement and testimony. The State also argues that Cephas was
aware of the potential sentences of his various pending criminal cases and he received a
favorable outcome in all of those cases because of his plea agreement.


       Standard of Review


       An appellate court reviews a trial court's denial of a motion to withdraw a plea,
and the underlying determination that the defendant did not show good cause, for abuse
of discretion. Abuse of discretion exists when the trial court's action: (1) is one where no
reasonable person would take the view adopted by the trial court; (2) is based on an error
of law; or (3) is based on an error of fact. The party seeking to withdraw the plea bears
the burden to establish an abuse of discretion existed. When reviewing for abuse of
discretion, appellate courts do not reweigh evidence or assess witness credibility. State v.
Woodring, 309 Kan. 379, 380, 435 P.3d 54 (2019).


       Analysis


                                              6
      A defendant may withdraw a guilty or no-contest plea before sentencing "for good
cause shown and within the discretion of the court." K.S.A. 2018 Supp. 22-3210(d)(1).
Good cause is "'[a] legally sufficient reason.'" In re Guardianship & Conservatorship of
Burrell, 52 Kan. App. 2d 410, 414, 367 P.3d 318 (2016) (quoting Black's Law Dictionary
266 [10th ed. 2014]). Good cause is a lesser standard for a defendant to meet compared to
the manifest injustice standard required for a postsentencing motion to withdraw. State v.
Aguilar, 290 Kan. 506, 512, 231 P.3d 563 (2010).


      In determining if good cause exists, courts will draw guidance from the three
Edgar factors: (1) was the defendant represented by competent counsel; (2) was the
defendant misled, coerced, mistreated, or unfairly taken advantage of; and (3) was the
plea fairly and understandingly made? Woodring, 309 Kan. at 381 (quoting Edgar, 281
Kan. at 36). Not every Edgar factor needs to weigh in the defendant's favor in every case,
and courts may consider other factors to determine the existence of good cause.
Woodring, 309 Kan. at 381. Courts should not exclusively rely on the Edgar factors
because doing so would "transform the lower good cause standard of the statute's plain
language into a constitutional gauntlet." Aguilar, 290 Kan. at 513. A mere "change of
mind" by the defendant is not sufficient to withdraw a plea without any evidence that the
defendant can satisfy the Edgar factors. Woodring, 309 Kan. at 384.


      Here, Cephas primarily makes two arguments: (1) his plea was not fairly and
understandingly made and (2) he was misled. Cephas briefly argues that his counsel was
not competent. Though listed as the first Edgar factor, Cephas' competency argument is
resolved by his two primary arguments and, thus, will be discussed last.


      A.     Cephas' plea was fairly and understandingly made


      Before a trial court can accept a no-contest plea, the court must address the
defendant personally and determine whether the plea was voluntarily made and the

                                            7
defendant understood the nature of the charge and the consequences of the plea. K.S.A.
2018 Supp. 22-3210(a)(3). Defense counsel has the duty to advise a defendant about the
range of potential penalties and discuss the possible choices available to the defendant to
ensure a plea is voluntarily and intelligently made. State v. Kelly, 298 Kan. 965, 970, 318
P.3d 987 (2014).


       Cephas argues that his plea was not fairly and understandingly made for two
reasons. First, Jordan did not provide Cephas with the video of M.M.'s police interview
when he asked. Cephas contends that he would have gone to trial because the video was
inconsistent with the testimony of M.M. and others at the preliminary hearing. Second,
Cephas asserts that he was not aware of Williamson's plea deal or her intention to testify
against him at his trial. Cephas argues that he could not make an intelligent, informed
decision without knowing what Williamson might testify alyssa69@example.com.


       1.     M.M.'s video interview


       At his plea withdrawal hearing, Cephas testified that he asked to view the video of
M.M.'s police interview. According to Cephas, despite his request, Jordan never
furnished him with this video.


       Jordan's testimony differed from Cephas' testimony. Jordan provided Cephas with
all of the paper discovery that she had, including summaries of M.M.'s police interview
and any statements M.M. made to the police. Jordan testified that Cephas never asked to
view the video. According to Jordan, M.M.'s video interview was consistent with his
testimony at the preliminary hearing.


       After hearing the testimony from Cephas and Jordan, the trial court found Jordan's
testimony regarding the video was more credible than Cephas' testimony. In his brief,
Cephas does not address the trial court's finding but uses his testimony—which the trial

                                             8
court found not credible—to support his argument that his plea was not fairly and
understandingly made. This argument is hampered by the trial court's findings. As stated
earlier, when applying the abuse of discretion standard, an appellate court does not
reweigh evidence or assess witness credibility. We defer to the trial court's factual
findings in these matters. State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011).
Here, Cephas has failed to show that the trial court's determination that Jordan's
testimony was more credible than Cephas's testimony regarding M.M.'s video interview
was an abuse of discretion. Thus, Cephas' argument fails.


       2.     Williamson's testimony


       Cephas also contends that his plea was not fairly and understandingly made
because he was unaware of his codefendant Williamson's plea deal or that she agreed to
testify against alyssa69@example.com. Williamson's testimony was not included in Cephas' plea
agreement. At his plea withdrawal hearing, Cephas admitted that Jordan told him
Williamson would testify against alyssa69@example.com. Cephas also knew from Jordan that the
State would recommend probation for Williamson in exchange for her testimony. When
asked by the State if the trial court could write "wrong" next to the allegation in Cephas'
motion that Cephas did not know what benefit Williamson would receive, Cephas
replied, "Yes."


       Cephas' own testimony contradicts his argument here. Cephas knew Williamson
would testify against him, and he knew the State would recommend that Williamson
receive probation in exchange for her testimony. So, a reasonable person could take the
view of the trial court.


       Cephas' arguments that his plea was not fairly and understandingly made are not
supported by evidence before the trial court. The trial court did not abuse its discretion in
finding Cephas failed to show good cause existed to withdraw his plea.

                                              9
      B.      Cephas was not misled into entering into his plea agreement


      Cephas also argues good cause existed to withdraw his plea because he was misled
into accepting the plea agreement. Cephas provides three reasons to support his claim.
First, Cephas asserts Jordan told him he was facing 24 months' imprisonment if his
probation was revoked in the three Riley County misdemeanor cases. Second, he was not
aware when he made his current plea that his prior pleas in the three Riley County
misdemeanor cases would increase his criminal history score to an A. Third, it was not
clear before or during the plea hearing what benefits Cephas would receive from Geary
County in exchange for this plea in Riley County.


      1.      12 months or 24 months


      Cephas testified that Jordan told him the controlling sentence for his three Riley
County misdemeanor probation violations was 24 months' imprisonment when, in reality,
it was 12 months. Cephas testified that when he arrived at court, Jordan pulled him into
the judge's conference room and told him to either take the plea deal or be sentenced to
24 months' imprisonment for the probation revocations.


      As Cephas acknowledges in his brief, Jordan testified that she told him he was
facing 12 months' imprisonment, not 24. Jordan supported her testimony by describing
her note where she wrote down the pending charges against Cephas and their
corresponding sentences. Jordan underlined "12 months" next to the case numbers for the
Riley County misdemeanors.


      Cephas argues that while "12 months" is underlined, "[t]his note does not establish
or make clear that the total sentence in the three Riley county misdemeanor cases was 12
months, rather than 24, or that Ms. Jordan accurately communicated it to Mr. Cephas."

                                            10
After hearing all of the testimony, the trial court credited Jordan's testimony. Appellate
courts do not reweigh the evidence or reassess witness credibility. Woodring, 309 Kan. at
380.


       The trial court's crediting of Jordan's testimony supports its determination that
Cephas was aware of the sentence he was facing in the three Riley County misdemeanor
cases and that there was no good cause to withdraw his plea.


       2.     Criminal history score


       Cephas also argues he was misled about his criminal history score being an A.
While Cephas admits he knew his score was an A, he argues that he was misled because
he did not realize his A score was a result of his pleas in the three Riley County
misdemeanors, in which Jordan also represented him.


       Jordan testified that she told Cephas that pleading to the three Riley County
misdemeanor crimes would combine to become a felony and increase his criminal history
to the A category. Additionally, Cephas' waiver of rights that accompanied his plea
agreement stated he understood that every three misdemeanor convictions convert into a
felony for criminal history purposes. The trial court credited Jordan's testimony and
found it was clear that Cephas realized that his pleading to three misdemeanors would
increase his criminal history score to an A.


       There is no dispute Cephas was aware that his criminal history score was an A.
His complaint is that he did not know his pleas in the Riley County misdemeanor cases
would raise his score to an A. That complaint is best suited for those cases, not this
current one. Cephas was aware of his criminal history score when he entered into the plea
agreement. The plea agreement stated his likely criminal history score was an A. At the


                                               11
plea hearing, the trial court inquired if Cephas understood his criminal history score was
likely an A, and Cephas responded, "Yes."


       Even if Cephas was not aware that his plea in the three Riley County misdemeanor
cases converted his criminal history score to an A, his claim that he did not know why it
was an A is not sufficient to constitute good cause to withdraw his plea. Thus, a
reasonable person could agree with the trial court's findings.


       3.     Geary County cases


       Finally, Cephas argues that he was misled because Jordan was not sure what
Cephas had pleaded to—or if he had even entered a plea—in Geary County. Cephas
stresses the fact that the plea called for the sentence in a Geary County case for which he
was already on probation to run concurrent with the sentence in this case, but, in fact,
Cephas had not been convicted in that case.


       When he made his plea in this case, Cephas had charges pending in Geary County
in 18CR55. The plea agreement stated he was on probation in that case, and the State
agreed to recommend that any sentence in that case run concurrent with the sentence in
this case.


       Jordan testified that she was not sure about the exact charges Cephas was facing in
Geary County because his attorney there never responded to her inquiries. But Jordan
reached an agreement with the Geary County Attorney to dismiss or terminate any
pending actions against Cephas if he accepted the plea offer in this case. Her testimony
was consistent with her statements at the plea hearing. At the plea hearing, in the
presence of Cephas, she told the trial court that Geary County agreed not to pursue
probation revocation and to dismiss any charges against Cephas. Once Cephas pleaded no
contest, Jordan reached out to the county attorney, and the county attorney terminated

                                              12
Cephas' probation in 17CR7 and 17CR258. And the State dismissed the Geary County
charges in 18CR55.


       The plea agreement did erroneously state that Cephas was on probation in Geary
County case 18CR55. There was no conviction yet in that case. The agreement provided
that the State would recommend any sentence in 18CR55 to run concurrent with the
sentence in this case. Following Cephas' plea, Jordan was able to get the charges in
18CR55 dismissed. Though not the exact result Cephas bargained for in the plea
agreement, it had much the same effect—Cephas would not serve any additional time
beyond his sentence in this case.


       In short, we acknowledge that the resolution of the cases in Geary County did not
provide Cephas exactly what he had bargained for. Nevertheless, Cephas fails to show
that the trial court abused its discretion in finding no good cause existed. For example,
Cephas received a better benefit of his bargain than what he would have received under
his plea agreement. Indeed, because Jordan worked out a deal to have the charges
dismissed, Cephas avoided having to plead guilty to the charges in 18CR55 to get the
same result he angled for under his plea agreement. So, a reasonable person could agree
with the trial court that Cephas received the benefit he wanted from the plea agreement.


       Cephas fails to show he was misled into entering the plea agreement. Cephas was
aware that his potential sentence in the Riley County misdemeanor cases was 12 months.
He knew the Riley County misdemeanor convictions raised him to an A criminal history
score. And Cephas was aware of his pending cases in Geary County, and his plea resulted
in a favorable disposition of those cases. The trial court did not abuse its discretion in
finding good cause did not exist for Cephas to withdraw his plea.




                                              13
       C.     Competency of counsel


       Cephas briefly argues that the issue of his criminal history score also implicates
the competency of his counsel. For the same reasons why Cephas does not prevail in his
argument that he was misled, he does not prevail in this argument.


       Competency of counsel, as used in the first Edgar factor, does not require the
defendant to show ineffective assistance of counsel to the level of a violation of the Sixth
Amendment to the United States Constitution. Aguilar, 290 Kan. at 512-13. "[L]ackluster
advocacy" may be enough to support the first Edgar factor. 290 Kan. at 513.


       The trial court credited Jordan's testimony that she told Cephas when he pleaded in
the three Riley County misdemeanor cases, those convictions would raise his criminal
history score to an A. Cephas was aware his criminal history score was an A. The trial
court found that Cephas had been represented by competent counsel. Nothing in the
record suggests the trial court was unreasonable in reaching that conclusion. Cephas was
well aware of his criminal history. Jordan actively worked, at Cephas' direction, to secure
a favorable plea deal—securing not only an agreement from the State to recommend the
low sentence of a level 5 felony instead of a level 3 felony, but also disposing of three
probation revocation charges in Riley County, the discharge of two probation sentences
in Geary County, and dismissal of a pending charge in Geary County. Thus, the trial
court did not abuse its discretion in finding Jordan provided competent counsel to
Cephas. As a result, we affirm the trial court.

       Affirmed.




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