State of Kansas, Appellee, v. Juan Torres, Appellant. (2026)

MEMORANDUM OPINION

Juan Torres appeals the district court's denial of a postsentence motion to withdraw plea. Torres claims the district court abused its discretion by denying his motion because his plea counsel was incompetent, he was misled or unfairly taken advantage of, the plea was not fairly and understandingly made, and the plea agreement had no value to him. After thoroughly reviewing the record and the parties’ arguments, we affirm the district court's judgment.

Factual and Procedural Background

On October 18, 2017, the State charged Torres with one count of aggravated indecent liberties with a child, an off-grid person felony. The charges were based on allegations that Torres’ wife found Torres and a minor child alone in a room with the child's hand inside Torres’ pants. The child reported to investigators that Torres had touched her vagina with his hand and placed her hand on his penis under his pants. Torres speaks English and Spanish and had an interpreter throughout the case. The State moved before trial to introduce evidence under K.S.A. 60-455(d) of a prior incident of inappropriate touching between Torres and the victim, but the record does not reflect whether the district court addressed the motion.

The case proceeded to a plea hearing where Torres agreed to plead no contest as charged. An interpreter was present at the plea hearing. Torres’ counsel explained that Torres could respond to the district court's inquiries in English, that counsel had met with Torres about the plea agreement, and that Torres had the opportunity to have “anything he wanted read to him” ostensibly by an interpreter. The district court asked Torres if he wanted to enter a plea, and Torres responded, “Yes, Your Honor. Yes. Yes, Your Honor.” Torres responded appropriately to the district's court's colloquy and acknowledged that “[t]he interpreter read [the acknowledgment of rights and entry of plea forms] to me.” Torres agreed that his counsel explained the meaning, nature, and consequences of signing the documents and that he understood what they said and meant. Torres had no questions. The district court acknowledged on the record that Torres, his counsel, and an interpreter had met privately for 30-40 minutes to go over the plea.

The district court advised Torres that the charge carried a life sentence with parole eligibility after 25 years. Torres said he understood. The district court clarified that it could impose any legal sentence it believed was appropriate. Torres said he understood. During the hearing, Torres’ counsel realized there was an error in the acknowledgment of rights form showing that the lowest possible sentence, assuming a departure onto the grid was granted, would be 55 months’ imprisonment instead of the correct number of 29.5 months’ imprisonment. The district judge wrote the corrected number into the agreement. Torres stated that he understood the agreement after the change.

When the district court inquired as to the plea, Torres first responded, “Not guilty.” Immediately following an off-record conversation with his counsel, Torres said, “I take the plea. No contest.” The district court accepted the plea and found that Torres understood his rights and the nature and consequences of the plea and entered the plea knowingly and voluntarily.

Torres moved for a departure sentence where he argued that his family left him in Mexico as a child, that his aunt in Mexico sexually abused him as a child, that his family has worked hard in the United States and still lives here, that he enjoys roofing work, that he accepted the plea because he “didn't want to put children through anything,” and that he “was basically following his belief of accepting responsibility” through his plea. Torres also acknowledged that he would be subject to deportation once released from prison, so he would not receive the benefit of postrelease supervision and would not be allowed to return to the United States once deported.

Torres’ counsel began his argument on the motion by acknowledging that departure sentences were rare in Jessica's Law cases and that he had struggled with how to argue the motion. See K.S.A.21-6627 (imposing mandatory life sentence with 25 year minimum term on defendants convicted of certain sex crimes against children). Torres’ counsel then argued that the offense was isolated and that Torres was subject to deportation so the district court could grant the departure knowing that Torres would never see the victim again. He also argued that Torres’ personal history recounted in the departure motion warranted lenience, and the possibility of a language barrier also warranted lenience.

The district court found no substantial and compelling reasons to depart and imposed a hard 25 to life sentence with lifetime postrelease supervision. By order, this court vacated the lifetime postrelease supervision in lieu of lifetime parole. See State v. Cash, 293 Kan. 326, Syl. ¶ 2, 263 P.3d 786 (2011). The mandate for the order issued on May 29, 2019, and was filed in the district court on June 3, 2019.

On June 4, 2021, Torres filed a pro se K.S.A. 60-1507 motion. Torres’ motion was expansive, and argued in part that his plea should be withdrawn due to ineffective assistance of counsel where his plea counsel had to correct the plea documents to show a possible sentence of 29.5 months, did not advise Torres of the possibility of a life sentence, did not meet with Torres much in jail, did not argue for or inform Torres of the possibility of a lesser included offense, did not conduct a child competency hearing for the victim, did not obtain a translator for every conversation between plea counsel and Torres, and for generally not being effective before Torres was sentenced. Torres also argued that “there was not a plea agreement” given that he pled to the charged offense and was sentenced to the mandatory minimum hard 25 to life sentence.

The district court initially summarily denied the K.S.A. 60-1507 motion as untimely but set aside its order based on the suspension of filing deadlines applicable during the COVID-19 pandemic. Torres later moved through counsel in his criminal case to set aside his plea in a brief motion where he claimed actual innocence.

The district court held a two-day evidentiary hearing, with the second hearing occurring on December 13, 2023. The transcript of the first day of the hearing is not part of the record on appeal. Torres’ plea counsel, Bradley Sylvester, testified on the second day of the hearing. Sylvester acknowledged he met with Torres throughout the case but opined it “probably wasn't that many times.” Sylvester had an interpreter present each time he spoke with Torres. Sylvester went over discovery and defenses with Torres and sometimes he would have the interpreter read documents directly to Torres.

Sylvester described how after the case was filed, Torres wrote a letter to the victim to the effect of apologizing for his conduct. Sylvester found the letter problematic for crafting a defense, he relayed that concern to Torres, and that was the reason why Sylvester recommended working out a plea agreement. Torres and Sylvester spoke about Torres’ right to a trial, but Sylvester was unable to find witnesses willing to testify on Torres’ behalf and the “investigation ha[d] gone nowhere.”

Sylvester considered the letter and lack of witnesses detrimental and determined that the best course was for Torres to accept a plea offer as a showing of acceptance of responsibility to try to improve his odds to secure a departure sentence onto the sentencing guidelines grid. Torres’ potential for deportation also factored into Sylvester's thinking where, “[T]he goal was to get him on the grid, let him get—finish that shorter sentence, then he go [sic] back to Mexico and live out his life there.” Sylvester never told Torres he was guaranteed a departure. With an interpreter, Sylvester walked Torres through the written plea agreement and acknowledgment of rights. The interpreter never indicated to Sylvester that Torres spoke inappropriately or did not understand anything, so Sylvester had no concerns that Torres could not understand the interpreter. Torres never told Sylvester that he could not understand something. Sylvester had no concerns about Torres’ education level affecting his ability to understand the case.

Following Sylvester's testimony and closing arguments, the district court took the matter under advisement. The district court entered separate written orders on February 27, 2024. As to the stand-alone motion to withdraw plea due to actual innocence, the district court found that Torres had failed to show that Sylvester provided deficient counsel in any way, so Torres failed to demonstrate manifest injustice. On the K.S.A. 60-1507 motion, the district court issued detailed findings of fact and conclusions of law, finding in part that Sylvester's testimony was credible; that Torres was advised of his rights; that he was not coerced, misled, or taken advantage of; that he knowingly and voluntarily entered into the plea agreement; and that Sylvester was not ineffective. The district court found that Torres was not entitled to relief or had otherwise waived and abandoned many claims in his K.S.A. 60-1507 motion. Torres timely appealed the district court's judgment in both cases and the appeals have been consolidated.

Analysis

Torres’ sole claim on appeal is that the district court erred by denying his motion to withdraw plea, including both the stand-alone motion and the applicable portions of his K.S.A. 60-1507 motion. The State asserts the district court did not abuse its discretion because Torres failed to demonstrate manifest injustice following an evidentiary hearing. Torres raised other claims in district court that he does not raise on appeal; those claims are waived and abandoned. State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021).

After a full evidentiary hearing on a K.S.A. 60-1507 motion, the district court must issue findings of fact and conclusions of law concerning all issues presented. Supreme Court Rule 183(j) (2026 Kan. S. Ct. R. at 242). An appellate court reviews the district court's findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support the district court's conclusions of law. Appellate review of the district court's ultimate conclusions of law is de novo. Khalil-Alsalaami v. State, 313 Kan. 472, 486, 486 P.3d 1216 (2021).

This court reviews the district court's decision to deny a postsentence motion to withdraw plea for an abuse of discretion. State v. Shields, 315 Kan. 131, 139, 504 P.3d 1061 (2022). A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Younger, 320 Kan. 98, 137-38, 564 P.3d 744 (2025). The party asserting an abuse of discretion bears the burden of showing it. State v. Keys, 315 Kan. 690, 708, 510 P.3d 706 (2022).

K.S.A. 22-3210(d)(2) provides: “To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.” “ ‘Manifest injustice is something ‘obviously unfair or shocking to the conscience.’ ” State v. Terning, 57 Kan. App. 2d 791, 796, 460 P.3d 382 (2020) (quoting State v. Barahona, 35 Kan. App. 2d 605, 608-09, 132 P.3d 959 [2006]). Among the factors a court should consider when determining whether manifest injustice exists are whether the defendant was represented by competent counsel; was the defendant misled, coerced, mistreated, or unfairly taken advantage of; and whether the plea was fairly and understandingly made. State v. Hutto, 313 Kan. 741, 745, 490 P.3d 43 (2021). These factors mirror those considered by a court in deciding whether there is good cause to allow a presentence motion to withdraw plea. See State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). Torres argues he should receive relief based on each of these Edgar factors and adds a fourth argument that his plea agreement had no real value to him.

Was Torres represented by competent counsel?

Torres’ main argument is that he was not represented by competent counsel in district court especially in connection with his no contest plea. The State asserts “the evidence presented to the district court does not support [Torres’] claims.”

“When a defendant seeks to withdraw a plea after sentencing—where relief is available only to correct manifest injustice—claims about counsel's performance are evaluated under the constitutional ineffective-assistance standard set out in Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which requires a defendant to show both deficient performance and resulting prejudice.” State v. Rayton, 321 Kan. 677, 687, 583 P.3d 898 (2026).

This standard differs from presentence motions to withdraw plea, where the defendant may prove incompetent counsel with a less stringent showing of “ ‘lackluster advocacy.’ ” State v. Herring, 312 Kan. 192, 198, 474 P.3d 285 (2020). Torres mistakenly uses the less stringent standard in his appellate brief.

Torres claims his plea counsel was incompetent because he had limited jail visits with Torres, he had no real bargain in the plea agreement, his plea counsel waived the preliminary hearing and did not request pretrial evaluations, and generally his counsel's performance was incompetent. The district court ruled on Torres’ many claims of ineffective assistance of counsel concisely and collectively by generally finding that Sylvester's representation was not deficient and he was not ineffective. The district court also found that some claims were either abandoned or conclusory.

To start, Torres argues briefly that “[t]here were witnesses he felt could help him, but the attorney was not able to locate them nor get them to help.” Sylvester testified at the motion hearing that potential witnesses were not cooperative, and that he noted at the time that all were subject to deportation, so “don't want to be involved. No one is stepping up to help [Torres].” The district court found that Sylvester testified credibly. Sylvester's credible testimony shows that he investigated potential witnesses and determined that none would support Torres. Torres does not explain what witnesses Sylvester might have called, what testimony they might have provided, or how that testimony would have furthered Torres’ defense.

Torres next points out that when the district court at the plea hearing asked Torres to enter his plea, he initially said, “Not guilty” before, after a brief off-the record discussion, changing his mind and pleading, “I take the plea. No contest.” Torres does not explain how this event shows ineffective assistance of counsel to support manifest injustice, and this argument goes more to whether the plea was understandingly made. At most, this argument shows that Torres had a change of heart, or perhaps a misunderstanding when first asked to enter his plea. But nothing in this portion of the plea hearing shows that Sylvester did something below an objective standard of reasonableness—let alone anything prejudicial to Torres.

Torres briefly points out without argument that “the Court file in the criminal case shows that the preliminary hearing was waived, ․ and that only one pretrial motion was filed by the Defense.” Without more explanation, the implied argument that Sylvester should have raised more pretrial motions is conclusory. Torres does not explain what motions Sylvester should have filed or how they might have helped his defense. Torres may be referring to his claim below that Sylvester should have moved for a child competency hearing for the victim. Sylvester testified that he did not move for one because he “didn't have any reason to do so, other than [Torres] wanted one. And I didn't see that as a legal argument that we could even have that ordered.” The decision to challenge a child witnesses’ competence is a matter of trial strategy. See Bledsoe v. State, 283 Kan. 81, 93, 150 P.3d 868 (2007).

Torres then turns to the letter he wrote to the victim, which Sylvester testified included an apology for “what I did to you.” The letter is not included in the record on appeal. Sylvester thought the letter was problematic to Torres and was a primary reason he thought a plea would be more beneficial. Torres argues on appeal that Sylvester never explained how the State would establish foundation for the letter or that it was a confession as opposed to a sympathy letter. Torres also argues that there was no physical, medical, or other corroborating evidence to support the State's allegations. But Torres ignores that Sylvester credibly testified that the record shows that the letter included an apology implying that Torres committed some wrong to the victim. Thus, the record shows the letter was more than a sympathy letter and read closer to a confession and apology. As to the lack of physical or corroborating evidence other than the letter, a lack of such evidence does not bar a guilty finding and is common in similar cases. See State v. Britt, 295 Kan. 1018, 1022, 1035, 287 P.3d 905 (2012) (affirming the convictions in a Jessica's Law case based primarily on the victim's version of events where the physical evidence from a sexual assault kit was inconclusive).

Torres argues that Sylvester “pushed the plea” and points to Sylvester's testimony that he told Torres he thought Torres would lose at trial, so he recommended entering a plea to show acceptance of responsibility and increase the odds of a departure sentence. But, if anything, Torres points to testimony showing that Sylvester made a strategic recommendation based on his assessment of the case and communicated that recommendation to Torres. That testimony supports the district court's findings that Torres was “carefully advised of his rights before his plea ․ [and] chose to follow experienced counsel's advice and enter a plea. The fact that the plea did not produce the desired result does not make Mr. Sylvester's performance as counsel deficient.”

Finally, Torres cites the allegations in his own motion that “there were only a couple of jail visits” and that he “would have testified at trial that he did not do the crime.” Sylvester testified that while there were not very many jail visits, he always used an interpreter and he discussed discovery and possible defenses with Torres. Meanwhile, Torres points to nothing in the record showing that more visits were necessary in the first place, or what might have been discussed in those additional visits that was not adequately addressed already. As to the argument that Torres would have testified at trial, he points only to his own allegations in his K.S.A. 60-1507 motion for support and provides no argument as to how that shows ineffective assistance of counsel. Torres also conveniently overlooks the State's factual basis at the plea hearing that Torres’ wife found Torres and the minor child in a room with the child's hand inside Torres’ pants.

In sum, Sylvester testified that he discussed the case with Torres as necessary and with an interpreter, and Torres seemed to understand everything. Sylvester was concerned based on his experience and assessment of the case that Torres’ odds at trial were slim, so he made a strategic decision to recommend that Torres pursue a plea to improve his odds of obtaining a departure sentence. Torres has not met his burden to show the district court abused its discretion in finding that Torres was represented by competent counsel.

Was Torres unfairly taken advantage of or misled?

This claim is based on the circumstances surrounding the motion for a departure sentence. First, Torres argues that Sylvester led him to believe that he could not pursue a departure sentence after a trial. To support that assertion, he points to Sylvester's testimony about discussing with Torres how he thought it would be advantageous for Torres to seek a plea to show acceptance of responsibility and better the odds of obtaining a departure sentence. Torres takes that testimony to argue the “fallacy” in Sylvester's thinking because Torres also could have pursued a departure after a trial. He also claims this testimony shows mixed signals about the possibility of a departure.

Yet nowhere in Sylvester's testimony did Sylvester say or imply to Torres that he would not be able to seek a departure if he pursued a trial instead of the plea. Nor did the testimony show mixed signals or misleading information. The testimony was merely that Sylvester thought the better odds were through a plea. This evidence directly supports the district court's finding that Torres listened to the advice of experienced counsel to pursue a plea and does not show how the district court abused its discretion by finding that, “Torres was not coerced, misled, or taken advantage of.”

Torres then cites to Sylvester's argument on the departure motion at sentencing which he began by acknowledging that departures in Jessica's Law cases are rare and that he had struggled with how to best argue the motion. Torres criticizes the argument generally and claims it focused too much on his deportation as a reason for departure. He also argues that no meaningful discovery was conducted to create a better argument.

Torres provides no citation supporting a lack of discovery, nor does he explain what might have been discovered to change the argument. He also ignores that Sylvester ultimately argued the motion at length from several angles including Torres’ personal history, his deportation status and how that relates to potential safeguards for the victim, the isolated nature of the crime, and the severity of Torres’ conduct relative to other Jessica's law cases. While Sylvester's opening to his argument may have lacked zeal, that does not render the argument itself invalid. Instead, the record supports that Sylvester made a meaningful argument to the district court based on Torres’ circumstances. There was nothing about how the departure motion was handled that showed Torres was unfairly taken advantage of or misled into entering his no contest plea.

Was the plea fairly and understandingly made?

Torres first points out that all the paperwork was in English and not bilingual, though he attaches no meaningful argument to that point. The district court heard what it deemed as credible testimony that Sylvester discussed the plea agreement through an interpreter with Torres and had no concerns that Torres did not understand anything. At the plea hearing, Torres responded appropriately and affirmed that the interpreter read the plea documents to him, that Sylvester explained the documents to him, that he understood what the documents said and meant, and that he had no questions about them. It is therefore reasonable to conclude based on the record that Torres understood the English documents and what they meant.

Torres next focuses on the portion of the plea hearing where Sylvester noticed a mistake in the plea documents that the minimum sentence with a departure should have been 29.5 months’ imprisonment instead of 55 months’ imprisonment. The record shows that Torres responded appropriately to the district court's thorough colloquy at the plea hearing on his understanding of the plea agreement and his rights in the case. After catching and correcting the mistake, the district court asked Torres, “is that your understanding of the Plea Agreement?” Torres responded, “Yes.” Torres does not challenge on appeal the effectiveness or the substance of the district court's plea colloquy or his responses. A corrected mistake that Torres affirmed he understood and without additional supporting argument does not show manifest injustice or how the district court abused its discretion in denying the motion to withdraw plea.

Did the plea agreement have value to Torres?

Torres argues that the plea agreement lacked consideration where he received no benefit from the agreement such as a favorable sentencing recommendation from the State or dismissed counts. The State argues that Torres received value from the plea agreement because entering a plea increased his chances for a departure sentence.

Plea agreements are subject to the same general principles as any other contract. State v. Marshall, 21 Kan. App. 2d 332, 336, 899 P.2d 1068 (1995). Consideration is “any benefit, profit or advantage flowing to the promisor which he would not have received but for the contract, or any loss or detriment to the promisee. [Citation omitted.]” Temmen v. Kent-Brown Chevrolet Co., 217 Kan. 223, 231, 535 P.2d 873 (1975). This court has unlimited review over the interpretation and legal effect of contracts. Trear v. Chamberlain, 308 Kan. 932, 936, 425 P.3d 297 (2018).

As Sylvester testified, he believed from the evidence that Torres had little to no chance of success by pursuing a trial. He thus believed that the best course for Torres was to enter a plea and seek a departure sentence. Of course, Torres could have moved for a departure sentence after being found guilty at trial, but entering a plea allowed him to argue that he accepted responsibility for the crime and wanted to prevent the victim from having to appear in court. Torres received sound advice from Sylvester, and he acted on that advice. He knew that a departure sentence was not guaranteed. While Torres did not receive the benefit of a reduced charge or a favorable sentencing recommendation from the State, it cannot be said that he received no benefit at all from entering the plea.

Finally, Torres argues that the plea agreement was unconscionable. He argues there was unequal bargaining power in part because of his immigration status. A plea agreement is unconscionable “if it is unfairly surprising, one-sided, or oppressive. But unequal bargaining power alone is insufficient to render a contract unenforceable.” State v. Bannon, No. 113,497, 2016 WL 2610159, at *5 (Kan. App. 2016) (unpublished opinion). There is no basis to conclude under the circumstances of this case that Torres’ plea agreement with the State was unconscionable.

In sum, substantial competent evidence supports the district court's findings that Torres was represented by competent counsel, that he was not misled or unfairly taken advantage of, that the plea was fairly and understandably made, and that the plea agreement had some value to Torres. Torres fails to show the district court abused its discretion in finding no manifest injustice to allow Torres to withdraw his plea.

Affirmed.

Per Curiam: