IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS

DIVISION FOUR

CITY OF TOPEKA,

Plaintiff,

v.                         Case. No. 04-MC-1055

MALISA M. NAVE,

Defendant.

MEMORANDUM DECISION AND ORDER

           The above matter comes before the Court on Defendant’s Motion to Dismiss pursuant to K.S.A. § 22-3208. After careful consideration, the Court finds and concludes as follows:

FINDINGS OF FACT

1. On November 23, 1999, the Topeka Police Department issued Defendant citation number H016928 for driving while suspended and for no seatbelt for a child over the age of 13.

2.On July 13, 2002, the Topeka Police Department issued Defendant citation number K003479 for an improper left turn.

3.On September 18, 2002, the Kansas Department of Revenue, Division of Vehicles [hereinafter “Division of Vehicles”] recorded a Notice of Suspension for failure to

           comply with citation number K003479.

4.On January 27, 2003, the Topeka Police Department issued Defendant citation number K024777 for driving while suspended.

5.On January 28, 2003, the Topeka Municipal Court issued a notice reinstating Defendant’s driver’s license, which was suspended as a result of citation number K003479.

6.On April 24, 2003, the Division of Vehicles recorded a Notice of Suspension for failure to comply with citation number K024777.

7.On August 2, 2003, the Topeka Police Department issued Defendant citation number L011991 for driving while suspended and for displaying an illegal tag.

8.On August 4, 2003, Defendant appeared without counsel at a 3:00 p.m. walk-in docket at the Topeka Municipal Court. She was directed by the Court to discuss the status of her matters with the City Attorney. After a brief discussion with City Prosecutor Kathryn Gonzales, she entered into a plea agreement. Defendant and Gonzales agreed that the 1999 charges of driving while suspended and no seat belt for child over 13 (citation number H016928) and the 2003 charge of illegal tag (citation number L011991) would be dismissed; in exchange Defendant would plead no contest to driving while suspended first (citation number K024777) and driving while suspended second (citation number L011991). A waiver of counsel form was signed and the plea was taken and accepted by Judge Pro Tem Matthew B. Works. Judge Works sentenced Defendant to 5 days in jail, assessed fines and

courts costs, and a signed a custody slip listing the times and dates Defendant would serve her sentence.

9.Court records indicate that sometime after the judgment of the August 4, 2003 plea was entered by Judge Works, Defendant’s no contest pleas were set aside, the charges of driving while suspended were dismissed, and Defendant was found guilty of displaying an illegal tag and assessed a fine and Court costs. It is unclear when, under what circumstances and for what reasons Defendant’s no contest pleas were set aside and the judgment altered, but the evidence indicates that these changes occurred outside the presence of Gonzales and without her or any other city prosecutor’s knowledge.

10.On August 11, 2003, the Topeka Municipal Court wrote a letter to the Division of Vehicles asking it to withdraw the April 2003 suspension. The letter indicated that the suspension was due to an error by the Topeka Municipal Court, and the citation referenced was number K024777.

11.At some point on or after August 11, 2003, the Division of Vehicles removed the April 2003 suspension from Defendant’s driving record.

12.On August 13, 2003, the Division of Vehicles notified Defendant that her driving privileges were reinstated.

13.On February 12, 2004, the City of Topeka re-filed the August 2, 2003 charges contained in citation number L011991.

14.On June 10, 2004, the Topeka Municipal Court found Defendant guilty of driving while suspended second and imposed a five-day jail sentence, a $100 fine, and required her to pay $119 in court costs.

15.On June 15, 2004, Defendant filed a Notice of Appeal with this Court, appealing her June 10, 2004 conviction of driving with suspended second.

DISCUSSION

           Neither party disputes and the record indicates that the waiver of counsel and plea entered by the Defendant and the subsequent 5 day jail sentence imposed by the Court on August 4, 2003 were enforceable and legally binding. The first issue this Court must determine is whether Defendant’s no contest pleas were then properly set aside or withdrawn. K.S.A. § 22-3210(d) provides that:

[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. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.

Id.

           The Kansas Supreme Court has addressed when a plea pursuant to K.S.A. § 22-3210(d) may be withdrawn, not when a plea may be set aside. State v. Dillon, 242 Kan. 410, 413 (1988). In Dillon, the Court reasoned that “[i]nasmuch as a defendant enters a plea of guilty or nolo contendere it would appear only a defendant making such a plea may seek to withdraw it under the statute.” Id. (emphasis in original). Because K.S.A.

§ 22-3210 only addresses the withdrawal of a plea by a defendant, it does not provide authority for the sua sponte (of his own will) setting aside of a defendant’s plea.

           In this case, Defendant has not filed a motion to withdraw her pleas, and there is no evidence of an oral motion. There is also no evidence establishing that either the City Prosecutor or Defendant was involved in the setting aside of the previously accepted pleas. Thus, it appears that Judge Works may have set aside the pleas sua sponte.

           Notably, the sua sponte setting aside of a defendant’s plea is not always invalid. Kansas courts have held that a Court may set aside a plea sua sponte where fraud was perpetrated on the Court in the making or accepting of the plea. Dillon, 242 Kan. at 416-17. The Court’s power to set aside pleas sua sponte, however, is limited to such a situation. Id. Unless it can be shown that the making or accepting of the plea entered by Defendant constituted fraud, the Court lacks the authority to sua sponte set it aside. There is no evidence of fraud perpetrated on the Court, and neither party contends that fraud was involved. Thus, if the setting aside of Defendant’s pleas was done sua sponte, it would be void as an unwarranted exercise of judicial authority.

           Furthermore, even if the pleas were withdrawn after a motion by Defendant, they were not properly withdrawn. Because K.S.A. § 22-3210(d) does not address the procedures governing the withdrawal of a plea, Kansas courts have applied the procedures laid out in K.S.A. § 60-1507. State v. Jackson, 255 Kan. 455, 458-59 (1994). K.S.A. § 60-1507 provides that unless it is conclusively shown that the petitioner is not entitled to relief, the petitioner must serve notice upon the prosecuting attorney and a hearing must be promptly held. Therefore, a defendant seeking to withdraw his or her plea must serve notice upon the prosecuting attorney requesting the appropriate relief prior to a hearing being held.

            In this case, the City Prosecutor did not receive any notice that Defendant sought to withdraw her pleas. Further, the City Prosecutor was not apprised of any hearing held on a motion to withdraw the pleas. Therefore, if Defendant did move to withdraw her pleas, she failed to comply with and the Court failed to enforce the applicable procedures for making such a motion, thus her pleas were not properly withdrawn.

           In short, because the withdrawal of Defendant’s pleas was done either sua sponte without evidence of fraud or done at Defendant’s behest without notification to the City Attorney or a hearing on the matter, this Court concludes the setting aside or withdrawal of the pleas was improper, and under these circumstances invalid.

           Next, the Court must determine what the effect is of the improper setting aside or withdrawal of Defendant’s pleas. The Kansas Supreme Court has noted that when a plea is improperly set aside, the normal procedure is to remand the case for re-sentencing on the conviction that resulted from the plea that was originally accepted. Dillon, 242 Kan. at 416-17. Here, there has been no evidence presented that the original plea taken on August 4, 2003 was improper or ineffective. Further, the Municipal Court then imposed the appropriate minimum sentence for a driving while suspended second conviction.

           Because the setting aside or withdrawal of Defendant’s pleas was improper, the Court cannot simply affirm the conviction resulting from the City’s refiling and second prosecution of Defendant. Jeopardy attached the moment Judge Works accepted Defendant’s pleas and imposed a sentence, prohibiting any subsequent prosecution of Defendant based on the same conduct. 21 Am. Jur. 2d Criminal Law § 337 (2004). While a defendant can waive his or her double jeopardy protection by voluntarily withdrawing his or her plea, F. M. English, Annotation, Plea of Guilty as Basis of Claim of Double Jeopardy in Attempted Subsequent Prosecution for Same Offense, 75 A.L.R.2d 683, *7 (2004), his or her plea must be properly withdrawn.

           The City of Topeka cites City of Salina v. Amador, 32 Kan. App. 2d 548 (2004) for the proposition that “jeopardy does not attach until witnesses are sworn and testimony presented to the Court.” (Response to Motion to Dismiss at 2.) In Amador, the Kansas Court of Appeals held that because no evidence was heard and no witnesses were sworn in at trial in an action that was re-filed against the defendant after being dismissed without prejudice, double jeopardy did not attach. The City argues that because the Municipal Court’s decision to dismiss the prior action against Defendant was not a decision based on the merits of the case, jeopardy did not attach. Id.

           However, Amador can be distinguished from this case based upon its unique procedural posture. In Amador, the defendant was convicted in Municipal Court of battery and criminal damage. Then, on appeal in a trial de novo the District Court dismissed the charges without prejudice for failure to prosecute after the City of Salina’s witnesses did not appear. The City of Salina subsequently re-filed charges against the defendant in municipal court, and the Kansas Court of Appeals held that this subsequent prosecution did not violate the defendant’s double jeopardy rights.

           Here, while the judge’s actions of setting aside or withdrawing the Defendant’s pleas and the dismissal of the driving while suspended charges were improper and invalid, it does not negate or nullify the fact that jeopardy attached on August 4, 2003 when the court accepted the original underlying plea and imposed sentence. Thus, Defendant retained the double jeopardy protections that attached when she entered her legally valid and binding pleas. As a result, the second prosecution of Defendant is barred by her constitutional protections against double jeopardy.

           This case presents a special and unique situation. On one hand, the City Attorney never filed an appeal from Judge Works’ decision setting aside the plea, consequently making the jurisdiction of this Court’s power to vacate his decision necessarily unclear. On the other hand, by the time the City Attorney learned of the judge’s action, it was too late to file an appeal. (K.S.A. § 22-3609(2) sets the appeal time at ten days). Should the City Attorney be penalized for not filing an appeal that would have been rejected as untimely? To enforce such a requirement and allow the Court’s improper conduct to stand seems disharmonious with the requirement of a fair and intelligent legal process. Thus, holding the City Attorney to the 10-day appeal time would work a great injustice to the integrity of our legal system, while allowing the Defendant to be twice prosecuted works a great injustice upon one of the very ideals on which our country was founded. This Court cannot sanction or simply allow injustice to work at either end. “[A] court has certain inherent powers it may exercise, those reasonably necessary for the administration of justice, provided these powers in no way contravene or are inconsistent with substantive statutory law.” Wilson v. Am. Fid. Ins. Co., 229 Kan. 416, 421 (1981). It is in this rare instance that the inherent power of a court to administer justice with fairness and impartiality must supercede enforcing the technical application of time driven procedural rules. It appears that the only action taken on these matters with binding legal effect occurred on August 4, 2003 when the original pleas were taken and the sentence imposed. Consequently, Defendant’s original pleas of no contest, the subsequent convictions, and the sentence imposed on citation number K024777, driving while suspended first, and citation number L011991, driving while suspended second, are reinstated. This Court finds the Municipal Court’s subsequent action of setting aside the plea improper, invalid, and thus void. Further, the Court grants Defendant’s motion to dismiss the convictions based upon the re-filing and June 10, 2004 re-trial of these matters.

CONCLUSION

           While our Courts have their faults, as does any human institution, the compounding of the improprieties in this matter has the cumulative effect of eroding the public’s confidence that each citizen, upon entering the Court, will receive equal, fair, and just treatment. This Court appreciates that our Municipal Court and City Attorney’s Office have the difficult burden of handling a very high volume of cases dealing with a multitude of traffic and misdemeanor criminal matters. However, the action taken in this case at both the prosecution and court level cannot be explained, excused, or justified by too much volume or too few resources. Simply, both entities appear to have lost sight of their critical function of ensuring that justice be the end result for the citizens that appear before them.

           CITY ATTORNEY: “Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.”

Brady v. Maryland, 373 U. S. 83, 87 (1963).

           The evidence produced during this appeal indicated that Defendant appeared in Topeka Municipal Court without counsel at a walk-in 3:00 p.m. docket. She was informed by the judge to talk to one of several assistant city prosecutors located at a table in the courtroom. She was then told of a pending 1999 driving while suspended ticket, the January 27, 2003 driving while suspended ticket (and was not informed of the subsequent January 28, 2003 Topeka Municipal Court notice reinstating her driving privileges), and the August 2, 2003 driving while suspended ticket. She then was apparently offered some sort of “deal,” dismissing the 1999 driving while suspended citation and allowing her to plead to first and second charges of driving while suspended and to be sentenced to the statutory minimum 5 days in jail and a fine. The legality of such a disposition is suspect at best. It is certainly possible that the 1999 ticket would not have been actionable due to statute of limitations issues, leaving the two pending driving while suspended tickets with no prior convictions of ever operating her motor vehicle with a conviction for driving while suspended. A plea to both tickets simultaneously does not satisfy a legal basis for a DWS second and the mandatory 5 days incarceration. Then, even more perplexing, the City waited six months after acquiring knowledge of the Court’s actions setting aside the plea and dismissing the DWS second and re-filed the case in spite of the knowledge that the suspension for which the Defendant was cited was made in error and no longer existed. While prosecutors should not be advocates for the uninformed, unrepresented citizenry, neither should they exploit that circumstance to achieve an improper result. Most certainly, they should not allow room for speculation that personal favor, animosity, or political considerations toward an individual or tribunal interferes with their extraordinary responsibility and duty to uphold the law. Significant liberty interests are at stake in these proceedings, and fair, competent representation must be the city’s foremost priority to ensure a just outcome. Nearly seventy years ago, the United States Supreme Court recognized this duty, and there are no more compelling words to express it:

“The [prosecuting attorney] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”

Berger v. United States, 295 U.S. 78, 88 (1935).

            MUNICIPAL COURT:

“A fair trial in a fair tribunal is a basic requirement of due process. . . . [O]ur system of law has always endeavored to prevent even the probability of unfairness. . . . [T]o perform its high function in the best way, ‘justice must satisfy the appearance of justice.’”