State of Kansas, Appellee, v. Clifton Lane Schow, Appellant, 37 Kan. App. 2d 941

Hill, J.: In this appeal we consider whether the district court made a mistake when it denied Clifton Lane Schow’s motion to withdraw his plea because he objected to the criminal history classification contained in his presentence investigation (PSI) report. Schow expected probation for his crime but received a presumptive incarceration sentence due to his criminal history. He raises two issues. First, Schow argues that the district court abused its discretion when it would not let him withdraw his plea because both sides were mistaken about his criminal history.

This court has held before that a trial court must sentence a defendant in light of his or her true criminal history score. Mutual mistake about a criminal history score is no reason to withdraw a plea in a case where the defendant is represented by competent counsel; where the defendant was not misled, coerced, mistreated, or unfairly taken advantage of; and where his or her plea was freely, fairly, and understandingly made.

Because this record reveals no evidence of Schow being misled, coerced, mistreated, or unfairly taken advantage of and his plea was freely, fairly, and understandingly made, we hold that there was no abuse of discretion by the trial court when it denied his motion to withdraw his plea. Second, Schow contends the district court erred when it said he had to disprove the convictions that Schow thought were incorrect. When there is an objection to a criminal histoiy score, the burden of proof is upon the State to prove the score by a preponderance of die evidence.

But a trial court is permitted to take judicial notice of a defendant’s PSI report filed in a previous case without objection, instead of requiring the State to produce evidence to establish the disputed portion of the criminal history. Since that is the procedure followed by the district court in this case, we find no error by the court when it gave Schow a chance to prove any errors in the history.

Background Facts Schow pled guilty to one count of criminal threat, a severity level 9 felony crime, in exchange for the State dismissing a second count and a recommendation for probation if he was eligible under the Kansas sentencing guidelines. At the plea hearing, the district court informed Schow that his minimum and maximum prison sentence would be 5 to 17 months.

After the defense stated that it was believed that Schow had a criminal history score of D, the district court then advised Schow that his probation sentence could be 11 to 13 months with the caveat that the sentencing judge may decide against imposing probation. Schow’s counsel conferred with him regarding this information, and Schow responded, “Yes, your honor, that is fine.” The district court continued to convey to Schow the consequences of his plea; Schow acknowledged that he understood and pled guilty to count I. Prior to sentencing, Schow’s PSI report showed that he had three adult person misdemeanors.

The source of these misdemeanors came from Schow’s prior PSI report. Under the sentencing rules these misdemeanors were aggregated and converted into an adult person felony. This additional felony increased Schow’s criminal history score from the anticipated D to B, making Schow ineligible for presumptive probation. Schow objected to entries 4 and 5 of his PSI report, which were convictions for domestic battery that occurred in 1992. Schow claimed that these entries were incorrect since he possessed only one conviction (not two) for domestic battery.

Accordingly, Schow alleged that the State had the burden to produce evidence to show that both convictions existed. The district court requested the State to submit certified copies of those questioned convictions. But at a later proceeding, the court reconsidered its position and held that the State had satisfied its burden when it showed that Schow had adopted his prior PSI report without objection. The court went on then and gave Schow the opportunity to refute the two convictions, which Schow was unable to disprove. Accordingly, Schow moved to withdraw his plea.

After reviewing Schow’s motion, the district court determined that at the time of the plea agreement both parties mistakenly believed that Schow’s criminal history score fell within presumptive probation. However, at the plea hearing, the district court noted that it had independently advised Schow of the consequences of his plea and of his maximum penalties under the guidelines. Therefore, the district court ruled that Schow’s plea of guilty was voluntary and denied Schow’s motion. The district court then sentenced Schow within the presumptive prison sentence of 14 months.

In this appeal, Schow asserts that he relied upon the parties’ belief that his criminal history score was D when he entered into his plea agreement. Therefore, when his prior PSI entries increased his criminal histoiy score to B, Schow argues that this outcome constituted sufficient good cause for the withdrawal of his plea. Alternatively, Schow claims that the district court erred in failing to require the State to prove the existence of his prior PSI entries of 4 and 5 after he made his objections.

Instead, Schow contends that “a fair[er] result would [have been] for the trial court to allow [Schow] the option to withdraw tire plea,” and requests this court to rectify this alleged error. Standard of Review The rule applicable to this case is clear. “A plea of guilty . . . , for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.” K.S.A. 2006 Supp. 22-3210(d).

In exercising its discretion under the good cause shown standard, “the trial court should evaluate 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.’ [Citation omitted.]” State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). Mutual Mistake Insufficient Reason to Permit Plea Withdrawal Three cases must be examined in order to solve this problem. They are: State v. Ford, 23 Kan. App. 2d 248, 930 P.2d 1089, rev. denied 261 Kan. 1087 (1997), State v.

Haskins, 262 Kan. 728, 942 P.2d 16 (1997), and State v. Baldwin, 28 Kan. App. 2d 550, 18 P.3d 977, rev. denied 271 Kan. 1038 (2001). In Ford, the defendant relied upon the State’s representation that he had only one prior person felony on his record when he entered a plea of guilty. But, the defendant’s PSI report demonstrated that he had two previous person felonies, which removed the possibility of receiving a presumptive probation sentence. The defendant moved to withdraw his plea, which the district court denied.

At the motion hearing, Ford admitted that he was aware of his two felonies; he stated, however, that he did not understand whether they were nonperson or person felonies. On appeal, Ford argued that his plea was not “intelligently” made because he relied on the State’s representation regarding his criminal history at the time he entered into his plea. This court responded that there was “no recourse for a plea uninteUigently made.” 23 Kan. App. 2d at 252. This approach was reaffirmed in State v. Prater, 31 Kan. App. 2d 388, 396-97, 65 P.3d 1048, rev. denied 276 Kan. 973 (2003).

Prater held that the lack of understanding on the defendant’s part of his criminal history was not a valid reason to withdraw the plea. 31 Kan. App. 2d at 396-97. In Haskins, the defendant pled guilty, expecting that he would receive presumptive probation because both he and the State believed that his criminal history score was F. The PSI report, however, revealed that his criminal history score was C because the prior juvenile adjudication, which both parties mistakenly thought was a nonperson felony, constituted a person felony.

Therefore, under the criminal history score of C, the trial court sentenced the defendant to a term of imprisonment, stating that the defendant knowingly entered a guilty plea despite the mistaken belief of his criminal history score. Haskins directly appealed his sentence, claiming that the State violated the plea agreement when it informed the district court that the defendant’s criminal history score was C instead of F. Haskins first determined that no plea agreement existed between the defendant and the State.

With that in mind, the court next addressed “whether the defendant knowingly entered into a guilty plea, even though he (and the State) were mistaken about his criminal history score at the time of the plea.” 262 Kan. at 731.

Haskins held that the trial court’s findings were supported by substantial competent evidence because: (1) defendant was aware of the maximum penalties that he could receive if he pled guilty; (2) defendant knew that the sentencing court was not bound by any plea agreement or recommendation; (3) defendant understood that his sentence would be fairly substantial; and (4) defendant was not a stranger to the judicial system. 262 Kan. at 731. Therefore, Haskins concluded that “the defendant knowingly entered a guilty plea, even though he was mistaken about his criminal history score.” 262 Kan. at 732.

In Baldwin, this court again affirmed the district court’s decision to deny a defendant’s motion to withdraw his plea. 28 Kan. App. 2d 552. Based on the mistaken belief that his criminal history score was a F, the defendant entered into his plea agreement to avoid the possibility of a prison term. In reality, the defendant’s criminal history score was actually a G and would have automatically entitled the defendant to presumptive probation. As a result, Baldwin moved to withdraw his plea which was denied.

Baldwin reviewed the record and determined that the defendant was represented by competent counsel; that he was not misled, coerced, mistreated, or unfairly taken advantage of; and that his plea was freely, fairly, and understandingly made. Therefore, Baldwin held that the trial court did not abuse its discretion in denying defendant’s motion to withdraw his plea. 28 Kan. App. 2d at 552. With these cases in mind it is clear what should be done in this case. Simply put, mutual mistake of a defendant’s criminal history score, standing alone, is insufficient to justify withdrawal of a plea.

Furthermore, Schow fails to provide any evidence, pertaining to the three factors set forth in Edgar, that would persuade us that the district court abused its discretion when it denied Schow’s motion. First, Schow does not allege that he was not represented by competent counsel. And the record does not suggest otherwise. Second, Schow fails to show that he was misled, coerced, mistreated, or unfairly taken advantage of, when he entered into his plea agreement. Here, the plea agreement expressly stated twice that the State would recommend a probation sentence if Schow was eligible.

Third, Schow’s plea was fairly and understandingly made. The district court advised him of his maximum sentence; the district court informed him that the sentencing court was not bound to the State’s recommendation of probation; and the district court was aware that Schow’s counsel separately conveyed this information to Schow, to which Schow replied, “Yes, your honor, that is fine.” This court has held that when “there is a mutual mistake as to defendant’s criminal history score, the trial court is obligated to sentence defendant on his true criminal history score.” Baldwin, 28 Kan. App. 2d at 552.

The sentencing court here fulfilled this obligation. The district court did not abuse its discretion by finding that the mutual mistake of a criminal history score did not constitute good cause to withdraw Schow’s plea. Judicial Notice Proper Our statutes about objections to criminal histories are clear. When a defendant has filed an objection to his criminal history classification, “[t]he burden of proof shall be on the prosecution officer regarding [the] disputed criminal history issues.” K.S.A. 21-4724(c)(4). The burden of proof is by a preponderance of the evidence. K.S.A. 2006 Supp. 21-4715(

a) and (c). But, a trial court is permitted to “take judicial notice of a defendant’s presentence report filed in a previous case without objection instead of requiring the State to produce evidence to establish the disputed portion of the criminal history by a preponderance of the evidence.” State v. Hobbs, 276 Kan. 44, Syl. ¶ 8, 57, 71 P.3d 1140 (2003). The Supreme Court held that the trial court was permitted to take judicial notice of defendant’s prior PSI report that included a 1994 burglary. Also, K.S.A. 2006 Supp. 21-4714(

f) provides that “the court can take judicial notice in a subsequent felony proceeding of an earlier presentence report criminal history worksheet prepared for a prior sentencing of the defendant for a felony committed on or after July 1, 1993.” The dissent disagrees with the Hobbs decision, saying it reads too much into the language of K.S.A. 2006 Supp. 21-4714(f). But the Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Beck, 32 Kan. App. 2d 784, 788, 88 P.3d 1233, rev. denied 278 Kan. 847 (2004).

Basic to all of this is the view that the important consideration in this type of dispute is the accuracy of a criminal history calculation: “If a mistake is made in a PSI criminal history report, whether it be in favor of the defendant or in favor of the State, the mistake is not etched in stone for the remainder of time. A sentencing court can take judicial notice of an earlier PSI criminal history report for a particular defendant, but if either party objects to the accuracy of the prior [criminal history ] report the objection must be resolved, by the sentencing court.” (Emphasis added.) State v.

Welty, 33 Kan. App. 2d 122, 126, 98 P.3d 664 (2004) (reviewing whether collateral estoppel precludes a sentencing court from including in a defendant’s criminal history a prior conviction which was overlooked in a previous PSI criminal history report, and holding that it does not unless a judgment on the merits has taken place). Here, the district court determined that it would take judicial notice of Schow’s prior PSI report but provided Schow the opportunity to dispute that action. Schow declined the opportunity and filed his motion to withdraw his plea instead. We find no error here. Affirmed.