1 IN THE SUPREME COURT OF THE STATE OF KANSAS

N o

. 118,608

S TATE OF K ANSAS , Appel l ee ,

v

.
C OTY R YLAN N EWMAN , Appell ant

.

SYLLABUS BY THE COUR T

1. When reviewing a district court's consideration of a motion to withdraw a guilty plea before sentencing, an appellate court does not reweigh evidence or reassess witness credibility, but will reverse the lower court only for an abuse of discretion.

2.
A sentencing court has no authority to impose lifetime postrelease supervision on

an off

- grid, indeterminat e life sentence

.

Appeal from Shawnee D istrict C ourt; E VELYN Z. W ILSON , judge

. Opinion filed February 14
, 20 20

. Affirmed in part and vacated in part

.

Peter Maharry , of Kansas Appellate Defender Office, was on the brief for appellant.

Kristafer R. Ailslieger
, deputy solicitor general, and Derek Schmidt , attorney general, were on the
brief for appellee.2

The opinion of the court was delivered by

R OSEN , J

. : Coty Newman pleaded guilty to first

- degree felony murder and attempted second

- degree intentio nal murder

. Before sentencing, Newman moved to withdraw those pleas. The district court denied h is motions and imposed a life sentence
for the first

- degree murder conviction and a consecutive 59 months ' imprisonment for the
second

- degree murder conviction. The district court also ordered lifetime postrelease supervision for the first

- degree murder conviction and 36 months of postrelease supervision for the second

- degree murder conviction . Newman appeals the denials of his motions to withdraw his pleas and the imposition of lifetime supervision. We affirm the
denials of his motions but vacate the l ifetime postrelease supervision.

F ACTUAL AND P ROCEDURAL B ACKGROUND

On October 27, 2 0 10, the State charged Coty Newman w ith first

- degree felony murder; alternative counts of attempted second

- degree intentional murder or aggravated battery; attempt to distribute marijuana; and conspiracy to distribute marijuana. The State later amended the complaint to add first

- degree inten tional murder as an alternative to
first

- degree felony murder.

Newman agreed to plead guilty to first

- degree felony murder and attempted
second

- degree intentional murder and
, in exchange, the State agreed to dismiss the alternative and remaining counts. The parties agreed to recommend a life sentence for the
first

- degree murder charge and a consecutive 59 months ' imprisonment for the second

degree murder charge. They further agreed that Newman would not be eligible for parole until he served 20 years and 59 months in prison and that neither party would request a departure sentence.3

On March 22, 2013 , the district court held a plea hearing. Newman pleaded guilty
to first

- degree felony murder and attempted second

- degree intentional murder. The
district cour t found that Newman voluntarily entered into the agreement and accepted his pleas.

On July 18, 2013, Newman filed a motion to withdraw his plea s . He argued that
the court should allow the withdrawal for two reasons: his mother had been hospitalized
durin g the plea hearing
, which caused him to experience extreme physical and emotional
distress ; and he had newly discovered evidence that would exonerate him. The State responded to this motion, arguing that Newman had not indicated he was distressed during th e hearing and that the newly discovered evidence was not credible.

At a hearing on Newman's motion, Newman's mother testified that she had been hospitalized on March 21, 2013, due to complications related to diabetes and had spent a day and a half in the intensive care unit. She also testified that she and Newman discussed over the phone ways to withdraw his plea

. The district court admitted State exhibits that both parties stipulated represented recorded jail calls between Newman and
his mother.

James Martin also testified at the hearing. He stated that he met Newman while
incarcerated at the El lsworth Correctional Facility while Newman was there as a result of the charges in this case. Martin stated that he had been present at the time of the alleged killing and that Newman, while present, had not shot anyone.

After t his hearing, the State fil ed a supplemental response and motion to strike Martin's testimony . In this motion, the State alleged that Martin had been incarcerated at4

the time of the alleged crimes and, consequently, could not have been a witness to those crimes. At a second hearing, a records clerk with the Ellsworth Correctional Facility testified that a man named James Martin with the same date of birth, social security number, and DOC number as the James Martin who testified had been in custody at the time of the alleged crimes.

On October 17, 2013, the district court denied Newman's motion to withdraw his plea s

.

On October 25, 2013, Newman filed a pro se "Motion to Vacate Plea Bargain D ue
to Ineffective Assistance of Counsel."

At a hearing on this motion , Newman testified that Jon Whitton had been his counsel at the time he was considering a plea and that he had told Whitton on the day of the plea hearing that he did not want to plead guilty . Newman stated t hat Whitton had
informed him he could plead guilty and then " pull it back" if he "g [ o ] t cold feet" and wanted to go to trial. Newman said that he would not have pleaded guilty if he had known he could not withdraw the plea for any reason. Newman also testified that
, before pleading , he told Whitton about some possible exculpatory witnesses and Whitton told
him he would look into them after he entered his plea . During the State's cross

examination of Newman, Newman testified that he remember ed telling his mother on a phone call that
, if his original motion to withdraw his plea did not work, he was going to
have to claim his counsel had been ineffective

.

Newman's wife also testified at the hearing. She stated that she had not wanted
Newman t o plead guilty but Whitton had informed her and Newman on the day of the5

plea hearing that Newman only had an hour to decide whether to accept the plea and
could later withdraw it.

Whitton also testified at the hearing. He stated that he never told Newm an he could withdraw his plea based on "cold feet." He informed Newman that it is possible to withdraw a plea but it very rarely happens and that Newman should not enter a plea based upon an understanding that he could withdraw it at a later time. Newman a sked for an example of when a defendant can withdraw a plea
, and Whitton told him a court will permit the withdrawal based on ineffective assistance of counsel or newly discovered
evidence. Whitton also stated that he told Newman it is much more difficult to withdraw a plea after sentencing. Whitton testified that he did not believe Newman mentioned any exculpatory witnesses during this conversation with who m Whitton had not already spoken

.

On June 10, 2014, the district court denied Newman's second motion to withdraw his pleas.

On July 23, 2014, the district court sentenced Newman to life in prison with no chance of parole for 20 years for the first

- degree murder conviction and 59 months in prison for the attempted second

- degree murder conviction, to be served consecutively. The court also imposed lifetime postrelease supervision for the first

- degree murder
conviction and 36 mo nths of postrelease supervision for the second

- degree murder
conviction.

Newman appealed the denial s of his motions to wit hdraw his pleas and the district court's imposition of lifetime postrelease supervision to this court

.6 A NALYSIS

Withdraw of pleas

Newman argues that the district court erred when it denied his motions to withdraw his pleas

.

A district court may allow a defendant to withdraw a guilty plea for good cause any time before sentencing. K.S.A. 2018 Supp. 22

- 3210(d)(1). In determining whether the defendant has shown good cause, the court generally considers the following three
"bench mark" factors: "(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." State v. Edwards , 3 09
Kan. 830, 836 , 440 P.3d 557 (2019).

When review ing the district court's consideration of such a motion , we will reverse the lower court only for an abuse of discretion. We will not reweigh evidence or r eassess witness credibility. Edwards , 309 Kan. at 83 6.

First, Newman argues that the district cour t abused its discretion when it
concluded that he had not shown good cause to withdraw his plea based on his claims of emotional distress. Newman insists that the stress and pressure caused by his mother's
hea lth condition and pressure from his attorney to plead guilty "combined to overwhelm him" and rendered his plea involuntary

.

In its ruling, the district court found that Newman had probably been under "some significant pressure at the time of the plea hear ing because trial was fast approaching,"7

but that this pressure was "inevitable." The court also found that Newman had assured the court several times that "he was able to think clearly, was able to understand the proceedings, and had taken enough time to consider whether he wanted to enter a plea of guilt." The court also found that "[a]t no time did [Ne w man] mention any tension caused by his mother's medical condition" and that nothing in the recorded calls suggested that Newman was "nervous, tense, or in any way upset at the time of the plea because of his mother's condition or hospitalization." Based on these findings, the district court
concluded that Newman had failed to sho w that he was misled, coerced, mis t reated, or unfairly taken advantage of.

The district court also found that Newman had an extensive plea hearing, his mental health had not been questioned, and he had not raised any new issues. Consequently, the court c oncluded that Newman's plea was fairly and understandingly
made.

Newman has offered no authority suggesting that the district court abused its
discretion when it concluded that neither his mother's hospitalization n or the pressures of impending trial led to a coerced, misunderstood, or otherwise unfair plea. He simply disagrees with the district court's assessment of the evidence. We will not reweigh that
evidence. We affirm the district court's decision.

Next, Newman argues that the district court erre d when it denied his motion
because his counsel was ineffective. Newman avers that his counsel told him he could withdraw his plea if he de cided he wanted to go to trial and that the evidence does not support Whitton's testimony that he did not make this s tatement.8

In regard to this claim, the district court found that Whitton's testimony was more credible than Newman's, and, consequently, that Whitton had not informed Newman he could withdraw his plea if he had second thoughts

. Accordingly, the court con cluded that
Newman had failed to show good cause to withdraw his plea based on ineffective
assistance of counsel.

Newman acknowledges that we defer to the district court's credibility
determinations but insists we cannot do so here because the evidence is more supportive
of his version of events.

As we noted above, we will not reassess the credibility of evidence. The district
court concluded that Whitton was more credible than Newman and we defer to that finding.

We conclude the district court did n ot abuse its discretion when it denied Newman's motions to withdraw his pleas.

Lifetime Postrelease Supervision

The parties agree that the district court erred when it sentenced Newman to lifetime postrelease supervision on the first

- degree murder conviction. They are correct.

" ' [A] sentencing court has no authority to order a term of postrelease supervision in conjunction with an off

- grid indeterminate life sentence. ' " State v. Summers , 293 Kan. 819, 832, 272 P.3d 1 (2012) . Newman received an off

- grid, indeterminate life sentence
for his first

- degree murder conviction. See K.S.A. 21

- 4706 (c). Consequently , he becomes eligible for parole after serving 20 years of that sentence. K.S.A. 2010 Supp. 22

- 3717(b)(2); K .S.A. 21

- 4706; K.S.A. 21

- 3401; see also State v. Johnson , 309 Kan. 992,9

997

- 98, 441 P.3d 1036 (2019). The district court had no authority to impose lifetime postrelease supervision. Accordingly, we vacate the order for lif etime postrelease supervision.

C ONCLUSION

The district court's decision denying the motions to withdraw Newman's pleas is affirmed. The portion of the district court's sentencing order imposing lifetime postrelease supervision is vacated.

H ENRY W. G REEN , J R ., J. , assigned. 1
S TEVE L EB EN , J. , assigned. 2

1 REPORTER'S NOTE: Judge Green , of the Kansas Court of Appeals, was appointed to hear case No. 118,608 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20

- 3002(c) to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

2 REPORTER'S NOTE: Judge Leben , of the Kansas Court of Appeals, was appointed to hear case No. 1 18,608 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20

- 3002(c) to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.