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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 123,637

STATE OF KANSAS,

Appellee,

v.

DUSTIN WILLIAM EUGENE BILBREY,

Appellant.

SYLLABUS BY THE COURT

1.

Before sentencing, a defendant may withdraw his or her plea for good cause 

shown.

2.

When determining whether a defendant has demonstrated good cause, district 

courts generally look to the following three 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. 

3.

We review a district court's decision to deny a motion to withdraw a guilty or no 

contest plea for an abuse of discretion. A judicial action constitutes an abuse of discretion 

if (1) it is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would take the 

view adopted by the district court; (2) it is based on an error of law, i.e., if the discretion 

is guided by an erroneous legal conclusion; or (3) it is based on an error of fact, i.e.,
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substantial competent evidence does not support a factual finding on which a prerequisite 

conclusion of law or the exercise of discretion is based. 

4.

The applicable legal standard when considering the competence of counsel for 

purposes of withdrawing a plea under the first factor under State v. Edgar, 281 Kan. 30, 

36, 127 P.3d 986 (2006), is well established. When a defendant moves to withdraw a plea 

after sentencing, a trial court must use the Sixth Amendment constitutional ineffective 

assistance standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 

80 L. Ed. 2d 674 (1984), to consider whether the defendant was represented by 

competent counsel. But when the same motion is made before sentencing, a lower 

standard of lackluster advocacy may constitute good cause to support the presentence 

withdrawal of a plea.

Review of the judgment of the Court of Appeals in an unpublished opinion filed April 15, 2022. 

Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed February 10, 2023. Judgment of 

the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. 

Kasper Schirer, of Kansas Appellate Defender Office, argued the cause, and was on the briefs for 

appellant. 

Natalie Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney 

general, was with her on the brief for appellee.

The opinion of the court was delivered by

STANDRIDGE, J.: Before sentencing, Dustin William Eugene Bilbrey moved to 

withdraw his no contest pleas to aggravated robbery, conspiracy to commit robbery, 

burglary, and arson. Bilbrey argued withdrawal of his pleas was warranted by good cause 
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because (1) defense counsel was incompetent by refusing to provide Bilbrey with all 

available video discovery and (2) the State coerced Bilbrey into entering a plea 

agreement by threatening to prosecute his brother on prior drug charges. Finding Bilbrey 

failed to establish good cause to withdraw his pleas, the district court denied Bilbrey's 

motion and sentenced him to prison. A Court of Appeals panel affirmed. 

On review, Bilbrey challenges the panel's ruling, arguing the district court abused 

its discretion by committing legal and factual errors in denying his motion. We disagree.

First, the district court applied the correct legal standard in reviewing Bilbrey's claim that 

his attorney was not competent. Second, we find substantial competent evidence supports 

the district court's factual determination underlying its decision that Bilbrey's plea was 

not coerced. Thus, we affirm the panel's decision finding the district court did not abuse 

its discretion in denying Bilbrey's motion to withdraw his pleas.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2019, the State charged Bilbrey with aggravated robbery, aggravated 

assault, and battery. The State later amended the complaint to include eight additional 

charges: conspiracy to commit aggravated robbery, aggravated robbery, conspiracy to 

commit robbery, aggravated battery, burglary of a motor vehicle, theft, conspiracy to 

commit burglary of a motor vehicle, and arson. 

The district court appointed attorney John Sheahon to represent Bilbrey. Through 

Sheahon, Bilbrey waived his right to a preliminary hearing, pleaded not guilty to all 

charges, and moved to suppress statements he made to law enforcement in June 2019. 

At a hearing on Bilbrey's suppression motion in November 2019, Sheahon advised 

the court that the State had offered Bilbrey a plea agreement with a 138-month prison 
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sentence, but Bilbrey had refused the offer against counsel's advice. Speaking on his own 

behalf at the hearing, Bilbrey told the court he had not yet seen all the evidence against 

him despite asking Sheahon for months to see it. Bilbrey said he did not "have all the 

information to make a decision" on whether to accept a plea deal and felt it was unfair to 

ask him to do so when he had not yet seen most of the video evidence or read witness 

statements the State had provided to Sheahon in discovery. After the State said it would 

leave the plea offer open, Bilbrey agreed to a continuance to allow for additional time to 

review the discovery with Sheahon. 

In January 2020, the parties again appeared before the district court on the 

suppression motion. The prosecutor summarized the parties' ongoing unsuccessful efforts 

to reach a plea agreement. Bilbrey acknowledged to the court that Sheahon had advised 

him to accept the State's most recent plea offer of 111 months, but explained he rejected 

it because he still had not seen all the discovery, which included videos of the vehicle 

burglary and two of the three robberies. Bilbrey advised the court he wanted to personally 

see all the evidence against him before deciding whether to accept the plea agreement. 

For his part, Sheahon advised the court that he had given Bilbrey a box of discovery with 

everything but the videos, explaining he did not include the videos because there was no 

way for Bilbrey to watch them in jail. Sheahon further explained, however, that he had 

viewed the videos and described their contents to Bilbrey. When Bilbrey asked whether 

he had a right to personally watch the videos, the district court replied that it did not 

know of any such right. 

The case proceeded to a jury trial in March 2020. On the morning trial was set to 

begin, the parties again entered plea negotiations and eventually reached an agreement on 

the charges Bilbrey would plead to and the maximum prison sentence he would serve. In 

a handwritten addition to the plea agreement, the parties also agreed the State would not 
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charge Bilbrey's brother with methamphetamine possession stemming from a May 2019

incident. 

Consistent with the plea agreement, Bilbrey pleaded no contest to aggravated 

robbery, conspiracy to commit robbery, burglary of a motor vehicle, and arson. The State 

dismissed the remaining charges with prejudice. The parties jointly recommended a 

prison sentence of 111 months with Bilbrey free to seek a dispositional departure to 

probation and drug treatment. During the plea colloquy, Bilbrey advised the district court 

he had read, signed, and understood the tender of plea document; he had sufficient time 

to discuss his case with his attorney; he had sufficient time to discuss and consider the 

plea agreement; he was not under the influence of alcohol or drugs; he was making a 

clear, informed, and voluntary decision to plead; and he read and understood the charges 

he was pleading to, the rights he was giving up by entering the pleas, and the sentence he 

faced for each charge. Bilbrey denied he had been treated unfairly or had otherwise been 

pressured, threatened, or intimidated to enter the pleas. Bilbrey responded affirmatively 

when the district court asked if he was satisfied with Sheahon's legal assistance and 

advice. 

In June 2020, before sentencing, Bilbrey moved pro se to withdraw his pleas. 

Relevant here, Bilbrey argued Sheahon's representation "fell below a reasonable standard 

of objectiveness" by failing to show him all the video evidence. Bilbrey also claimed the 

State coerced him to enter into a plea agreement by threatening to incarcerate his brother. 

The district court allowed Sheahon to withdraw, appointed new counsel, and scheduled 

the motion for an evidentiary hearing. At the evidentiary hearing, the district court heard 

testimony from Bilbrey, Sheahon, and prosecutor Brock Abbey. 
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Bilbrey testified he had not seen all the State's evidence and Sheahon only 

reviewed one video with him. On cross-examination, however, Bilbrey admitted he 

personally reviewed police reports describing the contents of all the videos. 

Bilbrey also testified that, on the morning of trial, Abbey threatened to arrest or 

file an arrest warrant for his brother if Bilbrey did not take the plea deal. Bilbrey said he 

did not advise the court of his concerns at the plea hearing because everything was 

moving fast, and he was scared his brother would be arrested. 

Sheahon testified he received 10 to 15 videos in discovery and showed Bilbrey 

one of them. But Sheahon also said he watched all the videos and discussed their contents 

with Bilbrey. According to Sheahon, he discussed plea options with Bilbrey during every 

meeting, including the night before trial. Sheahon said Bilbrey initiated the meeting with 

Abbey on the morning of trial to discuss a potential plea deal, and during that meeting the 

parties discussed Bilbrey's brother being charged if Bilbrey did not plead. Sheahon 

understood Bilbrey to be concerned that his choices would impact his brother's life and 

that he did not want his brother to be charged with any crimes. Sheahon denied that 

Abbey ever threatened Bilbrey or that Bilbrey ever complained he felt threatened or 

coerced by Abbey. 

Abbey testified about his office's ongoing plea negotiations with Bilbrey. On the 

morning of trial, Abbey said Sheahon asked him to speak with Bilbrey and explain the 

State's position that it would not agree to a sentence of less than 111 months. Abbey did 

not recall the parties discussing his brother's potential drug charges until that meeting. 

Abbey said he first learned about Bilbrey's request that his brother not be charged when 

he reviewed Bilbrey's June 2019 statements to law enforcement, which he did in 

preparation for the suppression hearing. Abbey requested a charging affidavit for 

Bilbrey's brother a week before trial, which would have included charges for possession 
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of methamphetamine and drug paraphernalia. Abbey did not remember who initiated the 

conversation about his brother's outstanding drug offenses at the meeting on the morning 

of trial. Instead, Abbey tied the issue back to Bilbrey's statements during his 2019 police 

interview, where there is no dispute that Bilbrey expressly asked law enforcement not to 

prosecute his brother for the drug offenses. Abbey denied threatening or intimidating 

Bilbrey. 

After considering the above testimony and argument from counsel, the district 

court denied Bilbrey's motion to withdraw his pleas. Citing K.S.A. 2018 Supp. 22-

3210(d)(1) and the three nonexclusive factors set forth in State v. Edgar, 281 Kan. 30, 36, 

127 P.3d 986 (2006), the court held Bilbrey failed to show good cause to withdraw his 

pleas. The court found Bilbrey was represented by competent counsel; he failed to show 

he was misled, coerced, mistreated, or unfairly taken advantage of; and his pleas were 

fairly and understandingly made. 

At sentencing, the district court denied Bilbrey's renewed motion to withdraw his 

pleas and his motion for a dispositional departure. The court imposed a controlling 111-

month prison sentence with 36 months of postrelease supervision. 

On direct appeal, Bilbrey argued the district court abused its discretion in denying 

his motion to withdraw his pleas. A Court of Appeals panel affirmed, holding substantial 

competent evidence supported the district court's factual finding that the State had not 

coerced Bilbrey into taking a plea. The panel also determined the district court did not err 

in finding Bilbrey was represented by competent counsel. See State v. Bilbrey, No. 

123,637, 2022 WL 1123540, at *5-8 (Kan. App. 2022) (unpublished opinion). 

We granted Bilbrey's petition for review. Jurisdiction is proper. See K.S.A. 20-

3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-
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2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon 

petition for review).

ANALYSIS

We begin our analysis with the controlling principles of law governing withdrawal 

of pleas. Before sentencing, a defendant may withdraw his or her plea for "good cause 

shown." K.S.A. 2021 Supp. 22-3210(d)(1). When determining whether a defendant has 

demonstrated good cause, district courts generally look to the following three factors, 

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. Frazier, 311 Kan. 378, 381, 461 P.3d 43 (2020). These 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). While the Edgar factors establish "viable benchmarks"

for the district court when exercising its discretion, "it is important to note that courts 

'should not ignore other [non-Edgar] factors impacting a plea withdrawal that might exist 

in a particular case.'" Frazier, 311 Kan. at 381 (quoting State v. Shaefer, 305 Kan. 581, 

Syl. ¶ 2, 588, 385 P.3d 918 [2016]). To the extent the district court's exercise of 

discretion is informed by findings of fact, appellate courts will not reweigh evidence or 

reassess witness credibility. State v. DeAnda, 307 Kan. 500, 503, 411 P.3d 330 (2018). 

Having set forth the controlling law, we turn to the applicable standard of 

appellate review. We review a district court's decision to deny a motion to withdraw a 

guilty or no contest plea for an abuse of discretion. Frazier, 311 Kan. at 381. A judicial 

action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable, 

i.e., if no reasonable person would take the view adopted by the district court; (2) it is 

based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; 
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or (3) it is 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. Levy, 313 Kan. 232, 237, 485 P.3d 605 (2021). Bilbrey bears the burden to 

prove the district court erred in denying the motion. See State v. Hutto, 313 Kan. 741, 

745, 490 P.3d 43 (2021).

In his petition for review, Bilbrey claims the district court abused its discretion in 

denying his motion to withdraw pleas by relying on errors of law and errors of fact in 

applying the Edgar factors. We address each of his claims in turn. 

Abuse of discretion based on an error of law

Bilbrey argues the district court abused its discretion by applying the wrong legal 

standard to determine he had competent counsel under the first Edgar factor. Although 

Bilbrey made many complaints about Sheahon's representation in his motion to withdraw 

his pleas, the argument before us is limited to Sheahon's failure to show him all the video 

evidence. In rejecting this specific claim of error, the district court concluded Sheahon's 

representation was competent:

"As to the sixth allegation, the defendant alleges, essentially, that counsel failed to obtain 

and show him full discovery. The defendant testified that he asked multiple times to see 

the evidence, including videotapes and body cams. Mr. Sheahon testified that he received 

and reviewed 10 to 15 videos in the case. The defendant did ask him multiple times to 

watch the videos.

"Mr. Sheahon discussed with the defendant the content of the videos and police 

report. The defendant acknowledged he did watch the video of the incident involving the 

robbery at the truck stop, which showed him with the defendant. The defendant 

acknowledged that he was told what happened at the Shady Lady was on video. The 

defendant testified that he reviewed the typed police reports involving the investigations. 
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The defendant watched one video, including his statements to deputies at the hearing on 

the motion to suppress. 

"The Court found Mr. Sheahon's testimony that he reviewed the videos and 

discussed them with the defendant to be credible. As Mr. Sheahon personally viewed the 

videotapes and discussed the contents with the defendant, and the defendant 

acknowledged that he reviewed the police reports, the Court finds the defendant was, the 

defendant was sufficiently advised of the contents of the videotapes and the evidence in 

the case. 

"The Court is not aware of any statute or caselaw that requires defense counsel 

to provide the defendant with the videos to personally view. After considering the 

defendant's claim and the evidence presented at the hearing, the Court finds that this 

factor favors the State and a finding that the defendant was represented by competent 

counsel." (Emphasis added.)

Bilbrey claims the italicized language in the court's comment set forth above 

indicates the district court applied the wrong legal standard to determine he had 

competent counsel under the first Edgar factor. Specifically, he argues the district court 

improperly used the constitutional ineffective assistance of counsel standard of Strickland 

v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to determine the 

competency of counsel under the first Edgar factor instead of the lesser standard of 

lackluster advocacy. See State v. Aguilar, 290 Kan. 506, 513, 231 P.3d 563 (2010) 

("Merely lackluster advocacy . . . may be plenty to support the first Edgar factor and thus 

statutory good cause for presentence withdrawal of a plea.").

The applicable legal standard when considering the competence of counsel for 

purposes of withdrawing a plea under the first Edgar factor is well established. When a 

defendant moves to withdraw a plea after sentencing, a trial court must use the Sixth 

Amendment constitutional ineffective assistance standard under Strickland to consider 
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whether the defendant was represented by competent counsel. Aguilar, 290 Kan. at 512-

13. But when the same motion is made before sentencing, a lower standard of lackluster 

advocacy may constitute good cause to support the presentence withdrawal of a plea:

"[I]t may be logical and fair to equate the K.S.A. 22-3210(d) manifest injustice standard 

governing a post-sentence plea withdrawal motion to the high burden imposed on a 

constitutional claim of ineffective assistance. [Citations omitted.] . . . [T]he plain 

language of the statute—'for good cause shown and within the discretion of the court'—

should not be ignored. A district court has no discretion to fail to remedy a constitutional 

violation.

"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." Aguilar, 290 Kan. at 513. 

Although "no caselaw supplies an exact meaning of lackluster advocacy," the dictionary 

definition of "'lackluster'" means "'lacking energy or vitality; boring, unimaginative, etc.'"

State v. Herring, 312 Kan. 192, 201, 474 P.3d 285 (2020).

Bilbrey's argument centers on the district court's comment that it was "not aware 

of any statute or caselaw that requires defense counsel to provide the defendant with the 

videos to personally view." He claims the court's comment, along with its failure to 

expressly use the words "lackluster advocacy" on the record when ruling on the first 

Edgar factor, strongly suggests the court improperly applied the Strickland constitutional 

standard in deciding whether he had shown good cause to withdraw his pleas. Bilbrey 

cites Herring in support of his claim. 
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In Herring, the district court denied the defendant's presentence motion to 

withdraw his plea. The court expressly applied Strickland when considering the first 

Edgar factor. On direct appeal, the Court of Appeals found the district court erred by 

using the Strickland test instead of the less stringent lackluster advocacy standard 

specified by Aguilar. But the panel held the error was harmless because, on appellate 

review, the record conclusively showed counsel's representation was "'far from 

lackluster.'" 312 Kan. at 197. 

On review, this court reversed the panel's decision, holding the district court's 

improper use of the Strickland standard was not amenable to a harmless error analysis

because it is the role of the district court, not the appellate court, to apply the lackluster 

advocacy standard and determine counsel's competence under the good cause statutory 

requirement. Thus, we remanded the case to the district court with directions to reassess 

the first Edgar factor under the lackluster advocacy standard. Herring, 312 Kan. at 199-

200, 202. In concluding remand was warranted, we explained:

"Although we emphasize that we do not express any opinion on the merits of Herring's 

plea withdrawal motion, this record at least shows circumstances that might be fairly 

characterized as 'lackluster' advocacy, such as [counsel] not letting Herring review the 

surveillance recordings until the court ordered him to do so; or not listening to the jail call 

recording until the first morning of trial despite having received it the week before. A 

reviewing court may think it understands how a district court should view these 

circumstances, but it cannot know for sure until the lower court does the analysis. The 

district court must decide first whether these facts, taken in consideration with the rest of 

Herring's case, amount to good cause under the lackluster advocacy standard." 312 Kan. 

at 201.

As in Herring, the first question to ask here is whether the district court applied 

the wrong legal standard under the first Edgar factor. Bilbrey correctly points out that, 
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like in Herring, the district court here did not expressly use the words "lackluster 

advocacy" on the record in ruling on his motion. But, as the panel below recognized, our 

caselaw does not require the court to expressly use the words "lackluster advocacy" on 

the record in ruling on a motion to withdraw plea under the first Edgar factor. Bilbrey, 

2022 WL 1123540, at *6. When, as here, a defendant files a presentence motion to 

withdraw a plea based on ineffective assistance of counsel, the court need only evaluate 

whether counsel's representation was competent. See Aguilar, 290 Kan. at 513-14; Edgar, 

281 Kan. at 36. 

And the district court did just that. There is no indication here the court 

erroneously applied a heightened constitutional standard for Bilbrey to meet. Contrary to 

Bilbrey's argument, the court's brief comment on Bilbrey's failure to cite authority 

requiring defense counsel to allow defendants to personally view videos does not suggest 

the court improperly applied the Strickland constitutional standard in deciding whether he 

had shown good cause to withdraw his pleas. And unlike Herring, the court did not cite 

Strickland or otherwise reference the constitutional standard for ineffective assistance of 

counsel. Rather, the court cited and applied the Edgar factors in ruling on Bilbrey's 

motion, including the first Edgar factor regarding attorney competence. The court 

addressed each of Bilbrey's claims and concluded Sheahon was competent in his 

representation. Specific to the video evidence, the court found credible Sheahon's 

testimony that he discussed with Bilbrey the contents of all the videos and police reports. 

The court also noted Bilbrey's testimony that (1) he had seen one of the videos, (2) 

Sheahon advised him of the contents of the other videos, and (3) he had reviewed the 

police reports describing the substance of all the videos. 

In sum, the district court applied the correct legal standard and thus did not abuse 

its discretion in reviewing and ultimately denying Bilbrey's motion to withdraw plea 

under the first Edgar factor. 
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Abuse of discretion based on an error of fact

In support of his good cause argument to sustain his motion to withdraw plea, 

Bilbrey relied on the second Edgar factor to argue the State coerced him into entering the

plea agreement by threatening to prosecute his brother on prior drug charges. In denying 

Bilbrey's motion to withdraw on this point, the district court held, in relevant part,

"As to the claim that he felt threatened by Mr. Abbey on the morning of the trial, 

the Court finds that the defendant told his attorney he wanted to personally speak to Mr. 

Abbey to confirm the offer of 111 months was the best offer. As the defendant requested, 

Mr. Abbey went to meet with the defendant in the holding cell, with Mr. Sheahon 

present. The meeting lasted five to 10 minutes.

"At that meeting with Mr. Abbey and Mr. Sheahon, the defendant requested that 

his brother not be charged. Mr. Abbey had discovered in preparation for the hearing on 

defendant's motion to suppress that defendant's brother had not been charged, but could 

be charged. Mr. Abbey had already requested a charging affidavit from the police 

department relating to defendant's brother's involvement. 

"Mr. Abbey advised the defendant that if he went to trial, his request that his 

brother not be charged would not be honored. . . .

"During the plea colloquy, the defendant was specifically asked whether he felt 

pressured, threatened, or intimidated into entering into the plea agreement. He was asked 

whether he felt he was treated unfairly. The defendant answered, No, to these questions. 

"The Court finds the defendant has failed to show that he was misled, coerced, 

mistreated, or unfairly taken advantage of by either his attorney or the State." (Emphasis 

added.) 
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Bilbrey challenges the district court's italicized finding above as factually 

erroneous and unsupported by the record. Specifically, he argues there is no 

evidence to support a finding that, on the morning of trial, he asked the prosecutor 

not to bring criminal charges against his brother. Through a series of speculations 

and suppositions based on this alleged factual error, Bilbrey contends the district 

court would have found the State coerced him into entering the plea agreement by 

threatening to prosecute his brother on prior drug charges. 

Putting aside the speculation and supposition, we turn to the narrow finding made 

by the district court alleged by Bilbrey to be factually erroneous and unsupported by the 

record: on the morning of trial, Bilbrey asked the prosecutor not to bring criminal 

charges against his brother. Our task is to decide whether this finding is supported by 

evidence in the record. Based on the following excerpt from the motion to withdraw plea 

transcript, we conclude the court's finding is supported by substantial competent 

evidence:

"Q. (BY MR. ALLEN) During the negotiations you were having with Mr. 

Sheahon on Mr. Bilbrey's behalf, were other parties being impacted by those 

negotiations, specifically Mr. Bilbrey's brother and the codefendant?

"A. [BY ABBEY] I don't remember a discussion with Mr. Sheahon regarding the 

defendant's brother until the morning of trial. I was aware of Mr. Bilbrey's request that 

his brother not be charged, and I came upon that information, preparing for the motion to 

suppress, listening to the videotape of his interview and the transcript and the police 

reports of it. That's really how I initially became aware that his brother hadn't been 

charged and could possibly be charged, was in that preparation.

"Q. Okay. So I want to jump forward then to the morning of the trial. Who 

initiated the conversation regarding the status of his brother, if the trial was to proceed?
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"A. I remember a discussion about it. I don't remember who initiated that topic.

"Q. During that discussion—obviously, it included Mr. Bilbrey's brother and the

charges—what do you recall telling Mr. Bilbrey regarding if he chose to exercise his 

right to go to trial?

"A. That his request that his brother wouldn't be charged wouldn't be honored, 

that I had requested—I believe I told him I had requested a charging affidavit to charge 

his brother. And I'm basing that recollection on that I reviewed my own phone records 

and found a call and text with Rachel Larson. The text said, Can I have a minute to talk to 

you? And then the phone record said there was several minutes, 6 to 10 maybe, of a 

phone conversation. And I remember it was at that time on March 3rd that I asked her to 

send over a charging affidavit.

"Q. And the trial date?

"A. Was March 11th, the same day as the plea.

"Q. So a week before you had started contemplating issuing charges for Mr. 

Bilbrey's brother?

"A. Yes."

Having concluded the district court's finding is supported by substantial competent 

evidence, Bilbrey's claim of factual error fails and we find no abuse of discretion in the 

court's decision to deny Bilbrey's motion to withdraw plea based on his allegations of 

coercion. 
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CONCLUSION

The district court applied the correct legal standard in reviewing Bilbrey's claim of 

attorney incompetence. And substantial competent evidence supports the court's 

determination that Bilbrey's plea was not coerced. As a result, the district court did not 

abuse its discretion in concluding Bilbrey failed to establish good cause to withdraw his 

pleas.

Judgment of the Court of Appeals affirming the district court is affirmed.

Judgment of the district court is affirmed.