State of Kansas, Appellee, v. Lorenzo C. Gary, Appellant. (2026)

MEMORANDUM OPINION

Lorenzo C. Gary pled guilty to four charges across multiple cases. Gary now timely appeals the district court's order denying his motion to withdraw his plea prior to sentencing, arguing the district court failed to appoint him conflict-free counsel to present his motion. He also claims there are errors in the journal entry of sentencing as to his global sentence and fees assessed. Upon reviewing the record, we agree Gary should have been provided conflict-free counsel to address his presentence motion to withdraw his plea. With this determination, we decline to address Gary's other claims on appeal. We therefore reverse and remand with directions.

Factual and Procedural Background

In August 2024, Gary agreed to plead guilty to several crimes in a global plea agreement involving four cases in Sedgwick County. In case No. 23CR207 (Case 1), Gary pled guilty to one count of aggravated kidnapping and two counts of aggravated indecent solicitation of a child. The victim of all three charges was a child less than 14 years old at the time of the crimes. In case No. 23CR1807 (Case 2), Gary pled guilty to one count of incest committed against a person who was over 18 years old at the time of the crime.

In exchange for Gary's plea, the State agreed to dismiss the remaining counts in Case 1 and all counts in their entirety in two other pending cases. At sentencing, the State agreed to recommend Gary be sentenced in both cases according to the high number in the appropriate Kansas Sentencing Guidelines grid box. The partes jointly agreed the sentences in Case 1 would run consecutive to each other, and the sentence in Case 2 would run concurrent with Case 1. The State anticipated Gary's criminal history in Case 1 would be C, while in Case 2 it would be A. The plea agreement also reflected Gary would pay a $400 lab fee to the Sedgwick County Regional Forensic Science Center; a $1,200 Child Advocacy Center fee; and a $725 SANE/SART fee.

At the plea hearing, the district court began by confirming Gary had signed the written plea agreement after reviewing it with his defense counsel. The district court confirmed Gary was 39 years old at the time of the plea, had completed 14 years of school, and understood written and spoken English. The district court further determined Gary had not consumed any alcohol, drugs, or medication, nor did he have any physical or mental health issues that made it hard for him to understand the terms of the plea agreement. Gary said he understood he was waiving his rights by entering the guilty pleas and he had discussed those rights with his attorney.

After the State read the terms of the plea agreement into the record, the district court confirmed Gary understood the sentencing range for each charge in both cases. After additional colloquy confirming Gary was not being threatened into entering the plea agreement and had decided to plead guilty on his own accord, Gary verbally stated that he was pleading guilty to the crimes identified in the plea agreement. After the State provided a factual basis for each charge, Gary agreed he had committed the offenses as described. Thus, the district court found Gary guilty based upon his pleas and set the matter for sentencing.

After the plea hearing, a presentence investigation (PSI) report was prepared, reflecting Gary had a criminal history score in Case 1 of B, not C.

At sentencing, the district court began by asking the parties if they had any objections to the PSI report. The State had no objections, while defense counsel asserted there were a few issues Gary wanted to address because he wanted to withdraw his plea “based on ineffective assistance of counsel.” The district court then turned to Gary, asking him to “make your arguments for withdrawing your plea and your arguments for ineffective counsel at this time.”

Gary explained that entering the plea was a “last-minute decision,” and “[e]verything about my counsel has been last minute.” According to Gary, his attorney had only visited him before court hearings and, while they had “talk[ed] about certain things about the case, ․ he never goes through his process. This has been the only plea that has been offered.” Gary believed he was not getting “full” representation because counsel's efforts “as far as private investigators ․ seems like it's been going against me [and] hasn't benefited me at all.”

Gary continued, explaining that he felt “forced” into the plea and that the discrepancy with his criminal history was “making [him] feel uneasy about it.” Although defense counsel had advised him that morning the information would be corrected, Gary said he felt “like this is, like, not right representation, and I've been feeling that [way] for a while sometime.” Gary wanted to speak up about his concerns previously but never got the opportunity to discuss it with his counsel, who was focused on “trying to force me to take the plea, take the plea, take the plea.”

The district court asked if defense counsel had any response, to which counsel acknowledged that he had consulted private investigators and reviewed all the discovery with Gary, but stated he was ready to go to trial before Gary entered his plea. Counsel added he had spoken with Gary the previous week about the sentencing “mistake,” so he disputed any suggestion Gary had only learned about it that morning. Counsel finished by stating he “can't speak to whether or not [Gary] felt he was forced into the plea or not.”

The district court then asked Gary if the sentence potentially doubling was the reason he wanted to withdraw his plea. Gary responded, “That isn't the only one. [Defense counsel] said that he was ready for trial.” The district court asked Gary why he had not moved to withdraw his plea in the two months before learning about the sentencing issue. Gary responded, “Well, that's something that I would expect my counselor to do. There's a lot of things I don't know, you know?”

The State responded by explaining that it was willing to honor the terms of the original plea negotiations, which provided Gary would receive a total prison sentence of 353 months. One “fix” proposed by the State was for Gary to withdraw his original plea and to enter a new plea agreement with the cases now consolidated. According to the State, Gary had rejected that offer because “he still wants to just straight withdraw his plea.” Alternatively, the State said it would support a durational departure.

As for the ineffective assistance of counsel claim, the State believed Gary was given a chance to raise any of his concerns at the plea hearing and did not do so. The State believed Gary was suffering from “buyer's remorse” and, although the State was “very confident” the outcome would be worse for Gary if the case went to trial, the State was willing to honor the original agreement to avoid putting the victims on the stand.

The district court then discussed the good cause standard for withdrawing a plea before sentencing, describing the three factors from State v. Edgar, 281 Kan. 30, 127 P.3d 986 (2006): “Number one, the defendant was represented by competent counsel. Number two, the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and three, the plea was fairly and understandably made.” As to the first factor, the district court said, “[B]ased on [defense counsel]’s proffer, as well as the Court's observance of his representation in this case,” Gary received competent representation. As to the second factor, the district court explained that “the record of trial or plea speaks to that.” And on the third factor, the district court found that “for the same reasons, ․ the plea was fairly and understandably made.” The district court denied Gary's request to withdraw his plea and proceeded to sentencing.

In Case 1, the district court granted the parties’ joint request for a durational departure, treating Gary as if he had a criminal history score of C. The district court imposed a controlling sentence of 353 months in prison, which consisted of a 285-month sentence for the aggravated kidnapping conviction and consecutive 34-month sentences for each of the aggravated indecent solicitation convictions. In Case 2, the district court followed the plea agreement based on Gary's criminal history score of A, imposing a 13-month prison sentence to run concurrent with the sentences in Case 1.

The district court announced that it would not impose fines on any of the counts, although it would assess “standard court costs,” and it would waive appointed attorney fees, except for the $100 BIDS application fee. The district court also stated it was “assessing as restitution the following: $400 to be payable to the Sedgwick County Regional Forensic Science Center; $1,200 payable to the Child Advocacy Center; [a]nd $725 for the SANE/SART fee[,]” noting those amounts were “stated in the plea agreement.”

Analysis

The district court erred by failing to provide Gary with conflict-free counsel.

Gary first argues the district court erred by failing to appoint conflict-free counsel before summarily ruling on his oral motion to withdraw plea before sentencing.

The Kansas and United States Constitutions guarantee a criminal defendant the right to effective assistance of counsel at critical stages of a prosecution. See State v. Turner, 318 Kan. 162, 171, 542 P.3d 304 (2024). District courts must ensure a defendant's right to counsel under the Sixth Amendment to the United States Constitution is honored. State v. Cromwell, 253 Kan. 495, 499, 856 P.2d 1299 (1993). Because the district court held a hearing on Gary's motion to withdraw his plea before sentencing and the State was represented, Gary had a constitutional right to conflict-free counsel at the hearing. See State v. Taylor, 266 Kan. 967, 975, 975 P.2d 1196 (1999).

When a defendant provides “ ‘an articulated statement of attorney dissatisfaction,’ ” a district court has a duty to inquire into a potential conflict. State v. Bacon, 309 Kan. 1235, 1238, 443 P.3d 1049 (2019). We review a district court's inquiry about a defendant's potential conflict with counsel for abuse of discretion. An abuse of discretion occurs when judicial action is based on an error of law or fact or is unreasonable. State v. Valdez, 316 Kan. 1, 25, 512 P.3d 1125 (2022).

As to the duty to inquire, the district court can abuse its discretion in three ways: (1) when the district court becomes aware of a potential conflict of interest but fails to inquire; (2) when the district court is aware of a conflict and investigates but fails to conduct an appropriate inquiry; and (3) when the district court conducts an appropriate inquiry but abuses its discretion in deciding whether to appoint substitute counsel. McDaniel, 306 Kan. at 606-07. As the party asserting the district court abused its discretion, Gary bears the burden of showing it. See State v. Peters, 319 Kan. 492, 497-98, 555 P.3d 1134 (2024). Gary has met his burden.

Under these facts, Gary presented a sufficient reason for the district court to appoint him conflict-free counsel to present his presentence motion to withdraw his plea. He should not have been required to present his reasons to the district court without the benefit of conflict-free counsel. At the district court's direction, Gary explained he wanted to withdraw his plea and was dissatisfied with his attorney because counsel's minimal communication and being unprepared for trial led to Gary being forced into accepting the plea. Regarding these concerns, defense counsel disputed he was unprepared for trial and explicitly declined to comment on whether Gary felt forced into accepting the plea. Turning back to Gary, the district court briefly asked why he had not tried to withdraw his plea earlier, prompting Gary to offer that he expected defense counsel to make that request.

Even so, the more fundamental problem here is the district court forced Gary into the position of arguing his motion to withdraw plea without the assistance of conflict-free counsel by intertwining the discussion of both issues. From the moment defense counsel brought up Gary's wish to withdraw his plea, the district court should have known there was a potential conflict and that it had a duty to inquire further. See State v. Prado, 299 Kan. 1251, 1259, 329 P.3d 473 (2014) (“ ‘[S]imply allowing a defendant to make a statement regarding his or her complaints is an insufficient inquiry.’ ”). Instead, the district court here required Gary to argue why he was dissatisfied with the assistance his counsel had provided to him and then argue his motion to withdraw his plea—a double whammy.

We find the record before us is sufficient to show an actual conflict existed between Gary and his counsel. Once it appeared there was a conflict, the district court was required to continue the hearing and appoint Gary conflict-free substitute counsel to address the merits of his presentence motion to withdraw his plea. As a result, the district court abused its discretion by failing to recognize the conflict between Gary and his counsel and conduct an appropriate inquiry. See Prado, 299 Kan. 1260. We reverse and remand with directions to appoint conflict-free counsel to present Gary's presentence motion to withdraw his plea before a different district court judge. With this determination, we find Gary's remaining issues can be addressed by the district court on remand, depending on how it resolves Gary's presentence motion to withdraw his plea.

Reversed and remanded with directions.

Per Curiam: