A man who requested to withdraw his guilty pleas to drug charges was sentenced on those charges instead Thursday morning in Ellis County District Court.
Thomas James Grubb was sentenced to a total of 74 months in prison, as recommended in the plea agreement he reached with the prosecutor in November, one he repeatedly asked his attorneys to withdraw since November. Judge Glenn Braun denied his request in a hearing prior to Thursday’s sentencing.
Grubbs originally was charged with three counts of distribution of methamphetamine, two of them a drug severity level 2 felony and one a level 3 felony. If convicted at trial, he could have been sentenced to just over 19 years due to his prior convictions. He has 28 prior convictions, including 12 felonies as an adult and one as a juvenile. His last conviction was in 1995.
In the agreement, Grubbs entered a guilty plea to two charges of distributing meth at severity levels 3 and 4 with a recommended sentence of 64 months, or 74 months if he violated his bond agreement, which he did when he later attempted to tamper with an electronic monitoring device.
Wichita attorney Roger Falk — Grubbs’ third defense lawyer in the case — argued the court must take into consideration three factors to determine if a defendant has good cause for withdrawing a plea before sentencing — whether the defendant was represented by competent counsel; whether the defendant was misled, coerced, mistreated or unfairly taken advantage of; and whether the plea was fairly and understandingly made.
Falk said he was not going to argue prior counsel — Kip Johnson and Mitchell Christians — were incompetent, because Falk said he has advised clients to make similar deals with the courts. Rather, he argued, the plea was not made with understanding because Grubbs was not aware of the state’s evidence against him.
Johnson, who was called as a witness by Ellis County Attorney Tom Drees, testified that on Nov. 17, he believed he was making a court appearance with Grubbs on a preliminary hearing, but it turned into the plea agreement. He said he wasn’t sure how that came about.
Johnson said the discovery documents — the state’s evidence against Grubbs — had been logged into his office’s computer system that morning but he had not had a chance to look at it before meeting with Grubbs.
“A defendant should have the right to view the evidence against him before making this kind of decision,” Falk said.
Under questioning from Drees, Johnson said Grubbs had been very involved in negotiating the plea agreement. Grubbs was motivated by wanting to get out of jail to see his young son for Christmas, Falk said.
Upon learning Johnson had not seen the discovery documents, Falk said, Grubbs asked Johnson to withdraw his plea. Johnson said the plea was in Grubbs’ best interest and would not file to withdraw. When Grubbs persisted, Johnson withdrew as his counsel. Mitchell took the case in late December, but was fired by Grubbs in March.
“The client has repeatedly said he wants to withdraw,” Falk said. “If he’s telling his attorney he wants to withdraw, we are duty-bound to do that.”
Drees outlined through his arguments and questioning of Johnson that Grubbs had understood the plea agreement, its sentencing and his constitutional rights to a preliminary hearing and trial. That was supported by the court documents and the transcript of the Nov. 17 hearing.
“In your opinion, did he make a knowing and voluntary plea?” Drees asked Johnson.
“Yes,” Johnson said.
Drees also said the defense has never shown evidence from the discovery files that would change the facts as presented in the affidavit for prosecution, which the plea was based on.
After a 10-minute recess and hearing final arguments from each side, Braun issued his ruling against Grubbs’ motion to withdraw his plea, saying he read the third factor — if the plea was knowingly made — differently than the defense.
What was important was if the defendant knows his constitutional rights, Braun said.
“Knowing doesn’t mean knowing every fact against you before entering a plea,” he said.
Both sides then agreed to continue with sentencing on the drug charges. Grubbs addressed the court, asking Braun to consider he had not been in trouble for 25 years until his wife died. He also told the judge he has a 2-year-old son, a daughter facing health issues and he owns two businesses and several properties.
“I’m not a drug dealer like the state’s making me out to be,” Grubbs said.
Grubbs said he felt like he had been “railroaded,” and that he and Drees have a “long history of not liking each other.”
“I just ask the court to consider I was a drug addict and had a lot going on,” he said.
Grubbs will receive credit for 178 days served in Ellis County Jail. He still faces the charges of tampering with the monitoring device.