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NOT DESIGNATED FOR PUBLICATION

No. 123,266

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

HORACIO PADILLA-LOZA,

Appellant.

MEMORANDUM OPINION

Appeal from Clark District Court; SIDNEY R. THOMAS, judge. Opinion filed January 21, 2022. 

Affirmed.

Terry J. Malone, of Williams-Malone, P.A., of Dodge City, for appellant. 

Joseph H. Milavec, county attorney, and Derek Schmidt, attorney general, for appellee.

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

PER CURIAM: As part of an agreement resolving felony and misdemeanor drug 

charges against Defendant Horacio Padilla-Loza, the State joined in recommending a 

personal recognizance bond for him in exchange for his no-contest plea to the felony. The 

Clark County District Court accepted the plea, found Padilla guilty, and granted the bond 

request, allowing Padilla to get out of jail. After changing lawyers, Padilla filed a motion

to withdraw his plea on the grounds the State's agreement to the bond modification 

amounted to an impermissibly coercive inducement, rendering the plea improper. The 

district court denied the motion. Padilla has appealed that ruling.
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In the run of cases, the State's willingness to support a requested bond 

modification as part of a plea agreement is not unduly coercive nor does it otherwise 

impermissibly take advantage of a defendant. This is such a case. Moreover, Padilla's 

shifting positions in requesting and receiving the modified bond and later trying to 

leverage that change to withdraw his plea entails a litigation tactic precluded by the 

judicial estoppel doctrine. We affirm the district court's denial of Padilla's motion to 

withdraw his plea, thereby preserving the conviction and resulting sentence.

FACTUAL AND PROCEDURAL HISTORY

The relevant facts are limited and undisputed. In November 2019, a law 

enforcement officer stopped Padilla for failing to properly signal when merging as he was 

driving through Minneola. The officer and Padilla played out something close to a 

textbook drug interdiction traffic stop, the details of which are irrelevant to the appeal. 

Padilla, a Mexican national, had a Pennsylvania driver's license and was driving a vehicle 

with Pennsylvania plates. He told the officer he was in the midst of a marital breakup and 

was moving from Pennsylvania to California. A search of the vehicle uncovered about 2

ounces of methamphetamine, some of which appeared to be packaged for distribution, 

and a glass pipe of the sort commonly used with illegal drugs. 

The State charged Padilla with possession of methamphetamine, a felony, and 

with possession of drug paraphernalia, a misdemeanor. His bond was set at $10,000—an 

amount he was unable to post. Padilla's appointed lawyer filed a motion for a bond 

modification that a magistrate judge denied on the grounds Padilla had no ties to the 

community and presented a substantial flight risk.

The lawyer then negotiated an agreement with the State calling for Padilla to plead 

no contest to the possession of methamphetamine charge with a joint recommendation for 

a guidelines sentence that everyone anticipated would presumptively call for probation. 
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In addition, the State agreed to drop the misdemeanor charge and to join in a request that 

Padilla be given an own recognizance or OR bond allowing him to immediately get out 

of jail in advance of sentencing. 

At the plea hearing, Padilla told the district court he understood and approved of 

the deal his lawyer had worked out with the State. He was informed of the possible 

penalties he faced and the rights he was giving up by entering a plea. Upon the State's 

evidentiary proffer, the district court accepted Padilla's no-contest plea and adjudged him 

guilty of possession of methamphetamine. The district court then modified the bond in 

conformity with the parties' recommendation. Padilla was released from jail on an OR 

bond.

Before sentencing, Padilla hired a replacement for his court-appointed lawyer. The 

new lawyer filed a motion to withdraw Padilla's no-contest plea under K.S.A. 2020 Supp.

22-3210(d)(1). Testifying in support of the motion, Padilla told the district court he was 

generally satisfied with his first lawyer and understood the proceedings in his case. But 

he indicated he was unaware that he could seek a bond modification without entering a 

plea, although his first lawyer had attempted to do so. Padilla testified that he took the 

plea deal principally to get out of jail because he could not post bond. At the July 2020 

hearing, Padilla's new lawyer suggested it was improper for the State to include a 

recommendation for a bond reduction as part of a plea deal and Padilla, therefore, should 

be allowed to withdraw his plea. The district court denied the motion and later proceeded 

to sentence Padilla in accordance with the plea agreement. The district court placed 

Padilla on probation for 12 months with an underlying sentence of 11 months in prison 

and 12 months on postrelease supervision. Padilla has appealed.
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LEGAL ANALYSIS

For his only issue on appeal, Padilla contends the district court erred in denying 

the motion to withdraw his plea to the methamphetamine charge. Padilla essentially 

reprises his argument to the district court: An offer by the State to join in a bond 

modification that would allow a defendant to get out of jail impermissibly taints a plea 

agreement and renders it unduly coercive.

No Abuse of Judicial Discretion in Denying Padilla's Motion

A defendant has a statutory right to withdraw a plea before sentencing for "good 

cause" and in the district court's "discretion." K.S.A. 2020 Supp. 22-3210(d)(1). District 

courts are to look at three primary factors to determine if a defendant has shown good 

cause to withdraw a plea: (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. 

Garcia, 295 Kan. 53, 62-63, 283 P.3d 165 (2012) (noting that these considerations—

commonly known as the Edgar factors—establish a sound benchmark); State v. Williams, 

290 Kan. 1050, 1053, 236 P.3d 512 (2010); State v. Edgar, 281 Kan. 30, 36, 127 P.3d 

986 (2006). All three factors need not favor the defendant to permit relief from a plea, 

and the district court should consider other relevant circumstances based on the facts of 

the particular case. See Garcia, 295 Kan. at 63 (district court not confined to Edgar

factors); Williams, 290 Kan. at 1054 (all of the Edgar factors need not favor defendant; 

court may consider other circumstances); State v. Aguilar, 290 Kan. 506, 512-13, 231 

P.3d 563 (2010). 

Because the governing statute expressly affords the district court discretion in 

ruling on a defendant's motion to withdraw a plea before sentencing, an appellate court 

reviews the determination for abuse of discretion. State v. White, 289 Kan. 279, 284, 211 
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P.3d 805 (2009). A district court exceeds that discretion if it rules in a way no reasonable 

judicial officer would under the circumstances, if it ignores controlling facts or relies on 

unproven factual representations, or if it acts outside the legal framework appropriate to 

the issue. See State v. Darrah, 309 Kan. 1222, 1227, 442 P.3d 1049 (2019); State v. 

Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).

On appeal, Padilla does not directly incorporate the Edgar factors into his 

argument that a recommendation for a bond modification necessarily taints a plea 

agreement. But the pitch more or less implicates the second factor bearing on whether the 

defendant has been high-pressured, bamboozled, or otherwise treated unfairly in the plea 

process. Here, the evidence is otherwise, as Padilla outlined in his testimony. He 

understood the plea arrangement and entered into it because it conferred benefits on him, 

including the likelihood he could get out of jail. The very nature of plea bargaining

entails a mutual exchange of perceived benefits. The State avoids the uncertainty of a 

trial and conserves prosecutorial time and resources for other endeavors because a 

defendant agrees to plead. A defendant eliminates the same uncertainty and typically 

receives a reduction in charges, a favorable sentencing recommendation, or both. See 

State v. Pollman, 56 Kan. App. 2d 1015, 1042-43, 441 P.3d 511 (Atcheson, J., 

dissenting), rev. granted 310 Kan. 1069 (2019), dismissed as moot March 23, 2021.

By their nature, plea agreements, then, tend to open avenues for lessening the loss 

of liberty defendants face if convicted as initially charged. The State's offer to join in a 

recommendation for a bond modification in exchange for a defendant's plea—permitting 

presentencing release from custody—is, thus, of a kind with the other inducement 

commonly included in plea bargains. As a policy matter, such bond modifications also 

have a certain sensibility for many defendants who have committed nonviolent crimes 

and likely will receive sentences presumptively calling for probation under the sentencing 

guidelines.
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We, therefore, do not see some inherent unfairness or undue coercion in the State's 

offer to recommend an OR bond for Padilla upon his no-contest plea to the felony drug 

charge. This court has found those recommendations do not furnish "good cause" for 

defendants to later withdraw their pleas. See State v. Croft, No. 118,856, 2018 WL 

5730134, at *2 (Kan. App. 2018) (unpublished opinion); State v. Walker, No. 117,909, 

2018 WL 3077089, at *3 (Kan. App. 2018) (unpublished opinion); State v. Thomas, No. 

110,681, 2015 WL 326458, at *6 (Kan. App. 2015) (unpublished opinion). In those cases, 

the defendants argued that significant family circumstances, such as the poor health or 

recent death of a close relative, factored heavily into their decisions to plead in exchange 

for a recommended bond modification. But those kinds of external pressures do not 

render pleas unfair or impermissibly coercive. See State v. Denmark-Wagner, 292 Kan. 

870, 877, 258 P.3d 960 (2011). Here, Padilla labored under no similar emotional weights 

when he decided to accept the plea agreement. In short, a desire to get out of jail as soon 

as possible is not a legally valid basis to withdraw an otherwise knowing and informed

plea. 

Padilla tries to bolster his argument by suggesting some anomaly in the magistrate 

judge's denial of bond modification at the start of the case and the district court's decision 

to grant the same modification after he entered his plea. He says the circumstances were 

comparable and the shift reflects an untoward inconsistency on the State's part and a 

certain arbitrariness in judicial decision-making. But the premise is faulty in at least two 

ways.

First, with the plea agreement in place, Padilla knew the State would support a 

guidelines sentence on the felony. And everyone anticipated Padilla would be a candidate 

for presumptive probation under the guidelines. So after his plea, Padilla would have had 

considerable confidence the district court would not send him to prison. And he would 

have known that absconding then could prompt the district court to look askance at 

probation. That dispositional framework was not in place at the start of the case, when his 
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first lawyer presented the initial motion for bond modification. As a result, Padilla

realistically could have been viewed as a substantially greater flight risk then.

More importantly, however, the State is materially less disadvantaged if a 

defendant absconds after entering a plea and being adjudged guilty than before. A 

defendant who flees while on bond before trial cannot then be tried in absentia. The State 

may request a fugitive warrant for the defendant's arrest. But he or she might evade 

capture for months or years. In the meantime, the State's case against the defendant may 

deteriorate if witnesses are no longer available or their memories dull with the passage of 

time. That degradation of evidence typically falls disproportionately on the State since it 

bears the burden of proving a defendant guilty beyond a reasonable doubt. So holes in the 

evidence resulting from the passage of time may foster reasonable doubts that didn't 

originally exist. 

But after a defendant pleads and is adjudged guilty, the State no longer must

marshal evidence at a trial to convict. If a defendant then absconds, he or she may enjoy 

an extended period of undeserved freedom. But upon capture, the defendant (and the 

State) would face the district court for sentencing rather than a jury for a trial—a position 

that carries comparatively little risk for the State. Here, the potential adverse 

consequences for the State were far fewer if Padilla fled after entering a plea. The State's 

calculus in joining with Padilla in a request for a bond modification as part of a plea deal 

was quite different than it would have been earlier in the case. For the district court, the 

adverse effects of Padilla absconding after pleading were also considerably curtailed, 

even if the risk itself may have been roughly the same. As we have explained, however, 

Padilla had less incentive to flee following a plea that substantially solidified the 

likelihood he would be placed on probation at sentencing.

In sum, we find the reasoning and result in our court's earlier opinions considering 

this issue to be sound. We conclude the State's joint recommendation for a bond 
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reduction in conjunction with Padilla's plea did not create good cause for him to later 

withdraw that plea. The district court neither misunderstood the facts nor misapplied the 

law in denying the motion. Other district courts would have done likewise under the 

circumstances. There was no abuse of judicial discretion.

Judicial Estoppel Precludes Padilla's Motion to Withdraw Plea

Because Padilla joined in the request to the district court for a bond reduction and 

received the requested modification as part of the plea agreement, he could not later 

disavow that decision as legal error to justify the motion to withdraw his plea. The flipflopping tactic runs afoul of the judicial estoppel doctrine. Judicial estoppel precludes a 

party from taking a legal position to obtain an advantage or benefit in one phase of a case 

and then taking a contradictory position in a later phase of the case to gain further 

advantage or benefit. New Hampshire v. Maine, 532 U.S. 742, 749, 121 S. Ct. 1808, 149 

L. Ed. 2d 968 (2001); State v. Hargrove, 48 Kan. App. 2d 522, 548-59, 293 P.3d 787 

(2013). The United States Supreme Court encapsulated the doctrine this way: "'[W]here a 

party assumes a certain position in a legal proceeding, and succeeds in maintaining that 

position, he may not thereafter, simply because his interests have changed, assume a 

contrary position, especially if it be to the prejudice of the party who has acquiesced in 

the position formerly taken by him.'" New Hampshire, 532 U.S. at 749 (quoting Davis v. 

Wakelee, 156 U.S. 680, 689, 15 S. Ct. 555, 39 L. Ed. 578 [1895]). The purpose is "to 

discourage unfair manipulation for tactical advantage and to minimize any effects when it 

happens." Hargrove, 48 Kan. App. 2d at 549.

The circumstances here depict a near paradigm for invoking judicial estoppel. 

Represented by a lawyer, Padilla entered into a plea agreement with the State that 

included a joint recommendation for a bond modification that would secure his release 

from jail before sentencing. Throughout these proceedings, Padilla has acknowledged he 

understood the particulars of the plea deal, including the bond modification. At the time 
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the modification was presented to the district court during the plea hearing, neither 

Padilla nor his lawyer suggested there was something legally amiss or untoward about it

(perhaps because there wasn't). Padilla secured the benefit of the bond modification and, 

in turn, his immediate release from jail—a substantial benefit.

Later, through his new lawyer, Padilla assailed the very bond modification he 

asked for and received as being so pernicious as to warrant the withdraw of his no-contest

plea. Ironically, of course, Padilla was free because of the bond modification when he 

argued that the district court never should have considered it as part of the plea deal. 

Padilla had accepted the manifest benefit without objection until it no longer fit a revised 

strategic approach to the case and only then argued it was improper. The judicial process 

does not countenance that sort of about-face. Padilla's switch in lawyers does not amount 

to an escape hatch from judicial estoppel. Here, judicial estoppel alone provides a 

sufficient basis to reject Padilla's appeal.

Affirmed.