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NOT DESIGNATED FOR PUBLICATION

No. 122,425

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

OTIS J. JOHNSON JR.,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed February 19, 2021. 

Reversed and remanded with directions.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant. 

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before ARNOLD-BURGER, C.J., BRUNS and POWELL, JJ.

PER CURIAM: In this appeal, Otis T. Johnson Jr. contends that the district court 

erred in denying his presentencing motion to withdraw plea. Based on our review of the 

record on appeal, we find that the district court applied the wrong legal standard in 

considering Johnson's motion to withdraw his plea for good cause. See K.S.A. 2020 

Supp. 22-3210(d)(1). Likewise, we find that we are not permitted to engage in a harmless

error analysis under these circumstances. Rather, the appropriate remedy is to reverse the 

district court's decision and remand the case with directions to apply the lackluster 

advocacy standard in determining whether counsel was ineffective. 
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FACTS

The facts material to this appeal are not in dispute. The State charged Johnson 

with one count of first-degree murder and one count of aggravated robbery. 

Subsequently, the parties entered into a plea agreement. Consistent with the terms of the 

plea agreement, Johnson pled guilty to voluntary manslaughter and aggravated robbery. 

Prior to sentencing, Johnson filed a pro se motion to withdraw his plea. In his 

motion, he alleged that the first attorney appointed to represent him was ineffective. 

Later, he amended his motion to also allege that the second counsel appointed to 

represent him was ineffective. After another attorney was appointed to represent Johnson, 

he filed a supplemental motion to withdraw plea on his behalf. 

On November 25, 2019, the district court held an evidentiary hearing on Johnson's 

motion to withdraw plea. At the hearing, Johnson testified on his own behalf; and the 

attorney who had represented him when he entered his plea also testified. At the 

conclusion of the hearing, the district court took the motion under advisement. 

Thereafter, on December 13, 2019, the district court denied Johnson's motion to withdraw 

plea on the record.

ANALYSIS

K.S.A. 2020 Supp. 22-3210(d)(1) grants a district court's the discretion to allow a 

defendant to withdraw a guilty or nolo contendere plea prior to sentencing if good cause 

is shown. As a general rule, the three nonexclusive factors set forth in State v. Edgar, 281 

Kan. 30, Syl. ¶ 2, 127 P.3d 986 (2006)—often referred to as the Edgar factors—should 

guide a district court's consideration of whether a defendant has demonstrated the good 

cause required by K.S.A. 2020 Supp. 22-3210(d)(1). These factors are: (1) whether the 

defendant was represented by competent counsel; (2) whether the defendant was misled, 
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coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly 

and understandingly made. 

As to the first Edgar factor—which is relevant to this appeal—the Kansas 

Supreme Court held in State v. Aguilar, 290 Kan. 506, 513, 231 P.3d 563 (2010), that a

district court must use the "lackluster advocacy" standard to determine whether counsel 

was ineffective when a defendant files a motion to withdraw plea prior to sentencing. 

Under the Edgar factors, the competence of counsel is "one consideration when the 

motion is filed in the time period between conviction and sentencing." But a defendant is 

not required to "demonstrate ineffective assistance arising to the level of a violation of 

the Sixth Amendment." 290 Kan. at 512-13.

As our Supreme Court explained: 

"It is neither logical nor fair to equate the lesser K.S.A. 22-3210(d) good cause 

standard governing a presentence plea withdrawal motion to the high constitutional 

burden. The Edgar factors do not transform the lower good cause standard of the statute's 

plain language into a constitutional gauntlet. Merely lackluster advocacy . . . may be 

plenty to support the first Edgar factor and thus statutory good cause for presentence 

withdrawal of a plea." (Emphasis added.) 290 Kan. at 513.

Based on our review of the record on appeal, we find that the district court 

improperly applied the stricter constitutional standard under Strickland v. Washington, 

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), instead of the lackluster 

advocacy standard required by Aguilar and its progeny when it evaluated the first Edgar

factor. Specifically, when evaluating the first Edgar factor, the district court stated that it 

had "considered the two-prong test in Strickland v. Washington . . . [under which] the 

parties are required to prove that counsel committed serious errors that undermine the 

Sixth Amendment guarantee to effective assistance of counsel and, secondly, that the 

deficient performance by counsel prejudiced the defendant." Ultimately, the district court 
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concluded that defense counsel's "representation was competent, it was effective, and it 

was reasonable."

"When a district court applies the wrong legal standard to its consideration of a 

plea withdrawal for good cause under K.S.A. 2019 Supp. 22-3210(d)(1), it is an abuse of 

discretion." State v. Herring, 312 Kan. 192, 192, 474 P.3d 285 (2020). In Herring, our

Supreme Court further held that an appellate court cannot engage in a harmless error 

analysis under these circumstances. Instead, the appropriate remedy "is to reverse the 

decision and remand the case to the district court with directions to ensure the correct 

legal standard is applied." Herring, 312 Kan. 192, Syl. ¶ 2. 

In summary, we remand this case to the district court with directions to reevaluate 

the first Edgar factor in light of the lackluster advocacy standard. Once it has done so, the 

district court can then exercise its discretion under K.S.A. 2020 Supp. 22-3210(d)(1) to 

determine whether Johnson has shown good cause to justify the withdraw of his plea 

prior to sentencing. Moreover, nothing in this opinion should be regarded as an 

expression of our view on the merits of Johnson's motion. Finally, in light of our ruling 

on this issue, we do not reach the issue of whether the district court erred by requiring 

Johnson to pay restitution in this case. 

Reversed and remanded with directions.