1 NOT DESIGNATED FOR P UBLICATION

No

. 12 0,644

IN THE COURT OF APPE ALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appellee ,

v.

K ELLY R AY L UTHI , Appellant

.

MEMORANDUM OPINION

Appeal from Riley District Court; M ERYL D. W ILSON , judge. Opinion filed February 28, 20 20

. Affirmed.

Ryan J. Eddinger , of Kansas Appellate Defender Office, for appellant.

Bethany C. Fields , deputy county attorney, Barry R. Wilkerson , county attorney, and Derek
Schmidt , attorney general, for appellee

.

B efore M ALONE , P .J., A TCHESON and S CHROEDER , J J

.

P ER C URIAM : Kelly R

. Luthi appeals the denial of his presentence motion to withdraw his plea of no contest to two counts of violation of the Kansas Offender Registration Act (KORA) , K.S.A. 2019 Supp. 22

- 490 1 et seq., and one count of unlawful possession of a controlled substance. The district court denied Luthi's motion and
sentenced him to 43 months ' imprisonment. Luthi failed to show the district court abused
its discretion when it did not find good cause to allow the withdraw al of his plea

. F ind ing

no error , w e affirm.2 F ACTS

The State charged Luthi with eight counts of KORA violations in November 2017.
While out on bond , the State arrested Luthi and charged him in another case with

posse ssion of methamphetamine and drug paraphernalia

. Luthi entered into a plea agreement , which provided Luthi would plead no contest upon the State amend ing the
information to charge him with two KORA violations and one count of unlawful possession of a contr olled substance . All other charges would be dismissed. The plea agreement also reflected the State agreed not to file a pending charge for another KORA
violation currently under investigation.

At the plea hearing , t he district court engaged Luthi in a plea colloquy

. Luthi
stated he had read the two

- page plea agreement, signed it, and discussed its contents and
all of the questions he had with his counsel. Luthi further stated no one had made threats or promises to get him to sign the document, and he un derstood he was giving up his right to a trial by jury. Luthi proceeded to plead no contest to the three charges. The
district court accepted the factual basis provided by the State for Luthi's plea s . The court found Luthi knowingly, voluntarily, and intel ligently waived his rights , accepted his plea s, and found Luthi guilty

.

Before sentencing , Luthi moved to withdraw his plea s , arguing he was under the influence of methamphetamine before and during discussions at the plea hearing . The
motion to withdraw his plea was addressed at sentencing. Luthi testified he remembered reviewing and signing the plea agreement. H owever, he was requesting to withdraw his plea because he was " going through really hard times, and [he] was using drugs, simply methamphetamines and marijuana. " Luthi further testified he remembered using methamphetamine intravenously the day before his plea hearing and snorting it on the day of the plea hearing. Luthi did not tell the district court or his counsel he was under
the influence of me thamphetamine at the plea hearing because he did not want to get in3 trouble. He further claimed he answered the district court's questions at the plea hearing quickly and correctly to seem coherent and avoid detection. But he claims because he

was under the influence of m ethamphetamine , he did not knowingly and intelligently
enter his no

- contest pleas.

On cross

- examination, Luthi testified he had an extensive criminal history and h ad taken a plea for every charge . Luthi also stated he knew, generally, how pleas worked based on his past and the dismissed charges would be brought against him again if the court allowed the plea to be withdraw n

. However, Luthi believed this case was dif ferent than his past cases because he had a " chance in jury trial. " The district court d enied
Luthi's motion to withdra w his plea and imposed his sentence

.

A NALYSIS

Luthi now argues the district court abused its discretion when it denied his presentence motion to withdraw plea. " A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged ." K.S.A. 2019 Supp. 22

- 3210(d)(1)

. " [A]n appellate court reviews a
distric t court's decision to deny a plea withdrawal motion and the underlying
determination that the defendant has not met the burden to show good cause for abuse of
discretion. " State v. DeAnda , 307 Kan. 500, 503, 411 P.3d 330 (2018)

.

A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful , or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Ingham , 308 Kan. 1466, 1469, 430 P.3d 931 (2018) . The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. State v.
Thomas , 307 Kan. 733, 739, 415 P.3d 430 (2018)

.4 A district court typically considers three factors when it addresses whether a
d efendant has shown good cause: (1) W hether 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. DeAnda , 307 Kan. at 503 (citing State v. Edgar , 281 Kan. 30, 36, 127 P.3d 986 [2006] ). The above factors, known as the Edgar factors, should not be applied mechanically and to the exclusion of other factors. State v. Fritz , 299 Kan. 153, 154, 321 P.3d 763 (2014)

.

The prosecutor questioned Luthi about each Edgar factor individually at the sentencing hearing. Luthi testified that his counsel was " very, very competent. " Luthi
also testified he did not believe he was taken advantage of , misled , coerced, or
mistreate d. The district court found Luthi had competent counsel and he was not misled , coerced, mistreated, or unfairly taken advantage of based on his testimony. Luthi does not challenge these findings on appeal and instead relies solely on the third Edgar factor in challenging the denial of his motion to withdraw his plea.

Luthi asserts he demonstrated good cause under the third Edgar factor to withdraw his plea and the district court acted unreasonably when it rejected his testimony. Luthi testified at the sentencing hearing that because of his drug use, " everything was different than the way it is now. " Luthi testified while he unders tood the terms and consequences of the plea, he was not fully listening to his counsel or reading the plea because all he
wanted to do was finish the plea hearing without the district court discovering he was high on methamphetamine. Luthi felt like " everybody was after [ hi m ] , so [he] signed [his] papers, [he] answered the Judge's questions. " However, the record reflect s he was
able to rationalize the need to act fully aware and competent by answ er ing all of the questions presented to him by his attorney before the hearing and by the court during the plea hearing.5 In consider ing Luthi's motion to withdraw his plea , the district court noted it previously asked Luthi:

• If he had read the plea agreement ;

• If he had signed it ;

• If he had the opportunity to d iscuss the plea agreement's contents with his attorney ;

• I f he had any questions, and whether his attorney answer ed his questions to his satisfaction ;

• Other than what was contained in the written plea agreement , whether anyone had made threats or promises t o get him to sign either document ;

• Whether his pleas were made freely and voluntarily; and

• Whether he underst oo d that by entering his pleas he would waive his right

to trial by jury

.

To each of these questions , the record reflects Luthi answered yes or no as was appropriate. The district court found : "All of his answers were absolutely what this Court would have expect ed . They were appropriate, and there was no confusion, and they were respectful."

T he district court judge went on t o state he had taken thousands of pleas and observed defendants under the influence of drugs or alcohol. And he h ad stopped

numerous proceedings based on his observations and made defendant s answer specific questions about drug use or submit to urinalysis if he had concerns about drug use based

on their actions. The judge further indicated this was not the first time he had had a chance to observe Luthi. Next, the district judge described the characteristics of people who had recently used methamphetamine a nd stated Luthi did not exhibit any of those6 characteristics at the plea hearing. T he district court denied Luthi's presentence motion to withdraw plea finding it was " fairly made

. . . and understood " by Luthi

.

Appellate courts generally will not overtu rn a trial court's weighing of the evidence or assessment of witness credibility from a cold record. State v. Schaefer , 305 Kan. 581, 595, 385 P.3d 918 (2016) . The district court asked Luthi throughout the plea colloquy whether he read the plea agreement a nd discuss ed it with his counsel and
whether he understood the rights he was giving up

. Luthi answered yes to all of these questions. This was not Luthi's first experience with the court system and its procedure s

. Luthi argues the district court acted unreasonably when it rejected the credibility of his testimony, but the record supports the district court's findings. Luthi has failed to show good cause to withdraw his no

- contest pleas under the third Edgar factor

. Thus, Luthi has
not met his burden to show the district court abuse d its discretion

.

Affirmed.