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NOT DESIGNATED FOR PUBLICATION

No. 123,261

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

SERVANDO LARA-BACA,

Appellant.

MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed November 19,

2021. Affirmed. 

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. 

Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek 

Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., WARNER and ISHERWOOD, JJ.

PER CURIAM: Servando Lara-Baca pled no contest to three counts of rape and the 

district court sentenced him to 310 months in prison. About five months after sentencing, 

he moved to withdraw his plea and the motion was denied following an evidentiary 

hearing. Lara-Baca now appeals the district court's decision. The issues Lara-Baca raises 

for us to resolve are distinctly different from those he presented to the trial court in 

support of his motion. That disparity places them outside the scope of our review. Based 

on our review of the record, the district court's denial of his postsentencing motion to 

withdraw plea is affirmed.
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FACTUAL AND PROCEDURAL BACKGROUND

The State charged Servando Lara-Baca with multiple sex offenses perpetrated 

against multiple child victims, and he ultimately opted to enter a plea to three counts of 

rape. The plea petition outlined a defendant's intent to plead "Guilty," but Lara-Baca's 

counsel inserted that his client intended to "[p]lead no contest to 3 counts of a level 1 

felony, rape." (Emphasis added.) Lara-Baca signed the petition, his counsel certified it, 

and the district court accepted it. 

The court conducted a plea hearing and, following an extensive plea colloquy, the 

court inquired of Lara-Baca, through an interpreter, "So with everything in mind, Mr. 

Lara-Baca, are you entering a plea of guilty today to count one, two and three which 

charge rape, severity level 1 person felony? Are you entering that plea here today?"

(Emphasis added.) Lara-Baca responded in the affirmative and his counsel did not object 

to the district court's classification of the plea as "guilty." The court found Lara-Baca's 

plea was knowingly and voluntarily entered. 

The case proceeded to sentencing, at which time the district court remarked, "At 

the time of the plea it was [pled ]no contest to three counts of level 1 felony . . . ."

(Emphasis added.) The court overruled Lara-Baca's request for a dispositional departure 

and sentenced him to 310 months in prison. Following sentencing, the parties completed, 

and the court signed, a journal entry which reflected Lara-Baca pled no contest to the 

three charges. 

Several months later, Lara-Baca moved to withdraw his plea and cited multiple 

grounds for why his plea was involuntary: (1) The district court failed to verify that the 

accusations matched the elements of the charged crime; (2) he did not understand that by 

entering a plea he was admitting that the elements of the charged offense were satisfied; 

(3) defense counsel failed to thoroughly investigate the alleged crimes; (4) counsel 
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coerced and misled him into pleading to charges for which he was innocent; (5) defense 

counsel coerced him into accepting a plea that lacked a factual foundation; (6) his 

attorney coerced him into agreeing to the plea by promising to secure either probation for 

him or at least a shorter sentence than that in the corresponding grid box for his crimes; 

and (7) his attorney fees were excessive.

The district court held an evidentiary hearing to resolve the matter and appointed 

counsel to assist Lara-Baca. Trial counsel for Lara-Baca testified and insisted he 

thoroughly investigated the charges. He also explained that he believed a plea was 

necessary to open the door for the possibility of probation given the severity level of the 

crimes and the compelling nature of their evidentiary foundation. But he denied that he 

ever promised Lara-Baca that a reduced sentence was a guarantee. Lara-Baca testified 

that counsel failed to adequately explain either the significance of the plea or the extent 

of the sentence he faced. Additionally, Lara-Baca reiterated his aggravation over the fee 

his counsel charged.

The district court denied Lara-Baca's motion to withdraw his plea and Lara-Baca 

now brings the matter before us to resolve. 

ANALYSIS

DID THE DISTRICT COURT ERR WHEN IT DENIED LARA-BACA'S POSTSENTENCE MOTION 

TO WITHDRAW PLEA?

Lara-Baca contends, for the first time on appeal, that his plea was involuntary 

because "the intention of all parties was that he enter a plea of no contest, but, instead, he 

pled guilty to the charges." He directs our attention to the plea hearing transcript, where 

the district court described the plea as "guilty" instead of "no contest." Lara-Baca claims

this isolated misstatement renders his plea invalid because it altered the terms of the deal

to which he agreed. He also raises a second issue, which dovetails with the first, that 
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counsel rendered deficient representation when he failed to object to the district court's 

misstatement about the plea.

To resolve Lara-Baca's appeal, we must first look at K.S.A. 22-3602(a) and K.S.A. 

2020 Supp. 22-3210(d). Following an examination of those provisions, we will review 

the procedural history of Lara-Baca's case to determine whether his claims are properly 

before us. Finally, because we find these claims are not properly preserved, we also 

analyze whether any of the three designated exceptions to the preservation requirement 

are applicable to his case.

Before sentencing, a person may withdraw a guilty plea by establishing good 

cause for his or her request. K.S.A. 2020 Supp. 22-3210(d)(1). But after sentencing, such 

as was the case here, an elevated standard applies, the person wishing to withdraw a plea 

must show manifest injustice would result if the plea remained in place. K.S.A. 2020

Supp. 22-3210(d)(2). In either event, the person seeking to withdraw a plea bears the 

burden of persuading the court that he or she is entitled to relief. State v. Adams, 311 

Kan. 569, 574, 465 P.3d 176 (2020).

An appellate court reviews a district court's dismissal of such a postsentence 

motion for an abuse of discretion. State v. Szczygiel, 294 Kan. 642, 643, 279 P.3d 700 

(2012) (denial of motion to withdraw plea reviewed for abuse of discretion). Judicial 

discretion is abused if judicial action is (1) arbitrary, fanciful, or unreasonable, in that no 

reasonable person would take the view adopted by the trial court; (2) based on an error of 

law, i.e., the discretion is guided by an erroneous legal conclusion; or (3) based on an 

error of fact, i.e., substantial competent evidence does not support a factual finding on 

which a prerequisite conclusion of law or the exercise of discretion is based. State v. 

Beaman, 295 Kan. 853, 865, 286 P.3d 876 (2012). The movant bears the burden to prove 

the district court abused its discretion in dismissing the motion. State v. Bricker, 292 Kan. 
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239, 244, 252 P.3d 118 (2011) (movant's burden to prove abuse of discretion in denial of 

motion to withdraw plea).

When a defendant alleges a claim of ineffective assistance of trial counsel, Kansas 

courts review what are commonly referred to as the Edgar 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. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). These 

factors are "'benchmarks for judicial discretion,'" but "should not be relied on to the 

'exclusion of other factors.'" Bricker, 292 Kan. at 245. 

In other words, a defendant must establish that trial counsel's performance fell 

below the objective standard of reasonableness in order to withdraw his or her plea 

following sentencing. The defendant also carries the burden to establish that there is a 

reasonable probability that, but for the alleged errors of trial counsel, the result of the 

proceeding would have been different. Bricker, 292 Kan. at 245-46. That is, he or she 

would not have entered a plea and would have instead insisted on going to trial but for 

counsel's alleged deficient performance. State v. Morris, 298 Kan. 1091, 1103-04, 319 

P.3d 539 (2014).

Before proceeding further with our analysis, we pause to examine Lara-Baca's 

claims. The seven allegations that he relied on in his motion, and the district court 

rejected as justification for the plea withdrawal, are not preserved for our consideration. 

Accordingly, all of those issues have been abandoned. See State v. Arnett, 307 Kan. 648, 

650, 413 P.3d 787 (2018) (holding that issue not briefed on appeal is deemed waived and 

abandoned).

At the same time, Lara-Baca's claims regarding the district court's alleged 

misstatement of guilty versus no contest, and trial counsel's response to that utterance,
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emerged for the first time on appeal. The State contends Lara-Baca should be barred from 

raising this issue because he did not argue it as part of his motion to withdraw plea before 

the district court. Lara-Baca readily acknowledges this failure, but claims the issue falls 

within exceptions to the preservation rule that allow us to review its merits.

Long-standing caselaw supports the State's position. In State v. Thorpe, 36 Kan. 

App. 2d 475, 141 P.3d 521 (2006), Thorpe pleaded guilty to one count of involuntary 

manslaughter and two counts of aggravated battery. He appealed his convictions and his 

sentences, but this court dismissed the appeal, citing a lack of jurisdiction under K.S.A. 

2005 Supp. 22-3602(a), which provided: 

"No appeal shall be taken by the defendant from a judgment of conviction before a 

district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other 

grounds going to the legality of the proceedings may be raised by the defendant as 

provided in K.S.A. 60-1507 and amendments thereto." 

The Thorpe court went on to find that "[a] defendant may not file a direct appeal 

from a guilty plea unless the defendant first files a motion to withdraw the plea and the 

trial court denies the motion," and since Thorpe did not so move, the issue was not 

properly before the court for review. Thorpe, 36 Kan. App. 2d at 477 (citing State v. 

Solomon, 257 Kan. 212, 219, 891 P.2d 407 [1995]). The court made the added finding

that it was also precluded from considering the issue simply because Thorpe neglected to 

raise it before the district court, and he did not allege any circumstances that might 

potentially alter that landscape. 

The court in State v. Williams, 37 Kan. App. 2d 404, 153 P.3d 566 (2007), 

addressed a similar issue when Williams likewise advanced arguments in support of a 

postsentencing motion to withdraw plea for the first time on appeal. The Williams court 

observed that, from a jurisdictional standpoint, K.S.A. 2006 Supp. 22-3602(a) appears to 

prohibit any appeal from a plea. But it further stated that K.S.A. 2006 Supp. 22-3210(d) 
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gives the trial court a measure of discretion to withdraw the plea provided a written 

motion is first filed in the district court in pursuit of that relief. "If the trial court denies 

this motion, the defendant may appeal the denial to the appellate courts despite K.S.A. 

2006 Supp. 22-3602(a)." Williams, 37 Kan. App. 2d at 406-07. Thus, the filing of a 

motion to withdraw plea in the district court is the key required to open the door for 

appellate review in the limited sphere surrounding pleas. The failure to take that step 

generally precludes review unless circumstances exist which allow the court to deviate 

from that rule.

Filtering Lara-Baca's case through this analytical framework leads to the 

conclusion that his issues are not properly before us for review. First, the language of 

K.S.A. 22-3602(a) remains unchanged from that highlighted in Thorpe and Williams as 

the jurisdictional gatekeeper for claims involving pleas. Thus, if Lara-Baca simply 

entered a plea, without more, he would not have an avenue to pursue appellate relief. 

K.S.A. 2020 Supp. 22-3210(d) likewise remains unchanged and offered Lara-Baca a 

possible pathway for review provided he first filed a written motion in the district court to 

litigate the issue of why he had a right to withdraw his plea. Lara-Baca successfully 

completed that second step but veered off course when he asserted wholly new claims for 

the first time on appeal to demonstrate withdrawal of his plea was necessary to avoid 

manifest injustice. In essence, that is the functional equivalent of never having filed a 

motion before the district court. The analysis would typically end there, but Lara-Baca 

acknowledges the procedural deficiencies in his case and asserts his claims fall within 

two of the three exceptions to the preservation requirement.

Our Supreme Court has identified three exceptions where an appellate court may 

consider an unpreserved issue: (1) cases in which the newly asserted theory involves 

only a question of law arising on proved or admitted facts; (2) when consideration of the 

issue is necessary to serve the ends of justice or to prevent the denial of fundamental 

rights; and (3) when the judgment of a trial court may be upheld even though that court 
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relied on the wrong ground for its decision. State v. Trevino, 290 Kan. 317, 320, 227 P.3d 

951 (2010). Lara-Baca contends his case fits within the first two exceptions. 

First, according to Lara-Baca, his claims present a pure question of law because 

the parties do not dispute that he "accidentally entered a guilty plea instead of a no 

contest plea." But a lack of dispute on appeal is not the touchstone for whether an issue is 

one of fact or law. Rather, the proper inquiry is whether the issue turns on the 

interpretation of the law or the facts. In support of his argument, Lara-Baca highlights 

portions of transcripts from proceedings before the district court, he does not cite statutes 

or caselaw. The occurrences at a plea or sentencing hearing are inherently factual, not 

legal, and it is within the purview of the district court to review and correct any error. The 

reasoning behind the district court's classification of the plea as "guilty" rather than "no 

contest," be it a misstatement or misunderstanding, would be one for the district court, 

not this court, to resolve. Further, as it relates to counsel's conduct, the issue Lara-Baca 

raises requires an inquiry into counsel's lack of an objection at the time the alleged 

misstatement occurred. Again, resolution of that issue is driven by a purely factual, not 

legal analysis. Thus, Lara-Baca's claims do not fit within the parameters of the first 

exception to the preservation rule. 

Lara-Baca also argues that his claims fit squarely within the second exception 

because unknowingly entering a plea "would render the plea constitutionally invalid."

But the fact that the issue is constitutional in nature does not, in and of itself, mean it

avoids application of the preservation rule. To the contrary, a defendant seeking to raise a 

constitutional issue must affirmatively assert, and convince the court, that an exception to 

the preservation rule warrants consideration. State v. Daniel, 307 Kan. 428, 430, 410 P.3d 

877 (2018). For these reasons, we are not persuaded that allowing Lara-Baca's claim to 

go forward under this exception to the preservation rule would "'serve the ends of justice"

or "prevent [the] denial of fundamental rights.'" Trevino, 290 Kan. at 320.
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Lara-Baca has failed to satisfy his burden to provide us with the proper tools to 

undertake a comprehensive analysis of his claims. Consequently, we decline to attempt to 

venture down that road. Based on our review of the record, we are satisfied the district 

court properly exercised its discretion when it denied Lara-Baca's postsentencing motion 

to withdraw his no-contest plea.

Affirmed.