Decision: State v. Schow

12th December. The Kansas Supreme Court has issued its decision in State v. Schow (No. 96820), a criminal law case from Johnson County. The Court unanimously, in an opinion written by Justice Johnson, vacated the conviction and sentencing of Clifton Lane Schow for a criminal threat. In doing so the Court overturned or restated one of its prior precedents which by extension is likely to have several impacts on the way Court of Appeals has interpreted it.

Schow had originally been charged with two crimes: criminal threat and violation of a protective order. In return for a guilty plea on the first item, the State dropped the latter. For his part Schow benefited by this conviction making him fall into the probation category of the sentencing guidelines as detailed in conversations with the Johnson County prosecutors prior to the plea agreement. Schow therefore pled guilty. At sentencing, the Court Services Officer produced a pre-sentencing investigation (PSI) which indicated that Schow’s criminal history fell in a higher category based on two domestic battery convictions in Florida. Schow objected to these two items, insisting there should only be one, although a prior Johnson County PSI in a different case which he had not objected to was the source for this information. The District Court rejected this motion. Schow also requested to withdraw his guilty plea, on the grounds he had (unwittingly) been misled about what to expect. The District Court rejected this motion as well, on the grounds that to withdraw a guilty plea at that stage would require an allegation of actual innocence on Schow’s part. Schow was then sentenced to prison.

On Appeal, the Court of Appeals affirmed the District Court, though it noted that the District Court was in error to require an allegation of innocence to withdraw the plea. Nevertheless it found that the plea still could not have been withdrawn, since the defendant had to show good cause to withdraw their plea, and based on its tests the Schow had not done so.

The Supreme Court disagreed on both points. On the issue of the prior convictions from Florida it ruled that Schow’s objection to their inclusion required the State to prove (by a preponderence of the evidence standard) that they were real. Merely relying on a prior PSI which was included in the record, when a defendant was objecting to its contents was not enough. The Court noted that in this case when the prior PSI was drawn up the way the two Florida convictions were included had no impact, while this time it did. Since Schow denied that one of them existed, the State had an obligation to prove otherwise. As a result, Schow’s sentence was vacated and remanded to the District Court for a new sentencing hearing (i.e. with the State needing to prove whether the second Florida conviction was real). The Court of Appeals had relied on its reading of the case State v. Hobbs to reach its conclusion, and the Supreme Court disapproved any such interpretation of Hobbs. [The Court did note that once a defendant has objected to a PSI once and lost, that they cannot keep doing so in future cases].

Since the Court also overturned the lower courts over the motion to withdraw the guilty plea, Schow’s case is put back one step further in the process. The Court ruled that the Court of Appeals was mistaken to conclude that Schow had not shown good cause to withdraw his plea. The Court made this determination by looking at length at the circumstances of the case suggesting that Schow had a decent argument based on the mutual misunderstanding of the impact of his criminal history on sentencing and the competence of his counsel. While not ruling on these fact based issues, it therefore vacated his conviction and sent the case back to the District Court to determine whether Schow has good cause to withdraw his plea.

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