Saline County District Court Judge Rene Young bound Antonio M. "Tony" Brown Sr. over for trial Friday on a charge of aggravated escape but said she needed time to consider whether to allow him to withdraw a plea of no contest
in connection with the death of his girlfriend's 14-month-old son.
"It just didn't sit right with me -- pleading guilty to something I really didn't do,"
Brown said during cross-examination at a hearing on the motion to withdraw the plea.
Brown entered a written plea of no contest Jan. 9 to first-degree murder during commission of a felony crime and two counts of child abuse in connection with the Oct. 4, 2011, death of Clayden Lee Urbanek. He was expected to receive a life sentence with parole eligibility after a minimum of 20 years on the murder charge, and the child abuse sentences could have added additional time.
Attorney Julie Effenbeck, who represented Brown Friday, said he has maintained from the beginning that he did not kill the toddler, who was the son of his girlfriend. She said he accepted the plea because he relied on his attorney's advice regarding what his sentence was expected to be, but that advice was potentially not accurate
"The defendant believes that in a case this serious, manifest injustice would result if his plea was allowed to stand," Brown's motion to withdraw reads.
Young said she will either issue a written decision on the motion or she will notify attorneys to appear for a hearing on the matter. She said she will "try to get it done shortly."
Saline County Attorney Ellen Mitchell stated that if the plea is withdrawn, all deals are off, and Brown's case will go to trial.
According to Kansas law, a court may permit a plea to be withdrawn at the court's discretion and for good cause shown. Three factors to be considered are whether the defendant was represented by competent counsel; if the person was misled, coerced, mistreated or unfairly taken advantage of; and whether the plea was fairly and understandingly made.
Attorneys Pamela Sullivan and C. Richard Comfort, who represented Brown at the time he entered his plea, said plea negotiations began in September, and she maintained contact with Brown throughout that time, visiting him in jail 22 times. She said she drew up the written tender of plea and left it with Brown overnight for him to consider.
"Did the defendant consistently maintain that he did not kill Clayden Urbanek?" Effenbeck asked.
"Yes, that's the reason for the no contest plea," Sullivan said.
Sullivan said she erred when applying Brown's criminal history score to his child abuse sentences and gave Brown a figure that was two years and two months shorter than the sentence the judge could impose. Sullivan said that when she realized her mistake, she visited Brown at the Mitchell County Jail the next day and informed him.
At the time, Brown expressed no interest in withdrawing his plea, Sullivan said.
"I would have filed a motion to withdraw the plea if there was any indication he wanted to do that," Sullivan said.
When Brown testified, Mitchell asked him why he changed his mind about the plea.
"Isn't it true you changed your mind about entering the plea in general?" she asked.
"Yes, ma'am," Brown replied.
Mitchell asked Brown if he was using the 26-month error as an excuse to withdraw the plea, and he agreed that he was.
Brown acknowledged Friday that at the January hearing at which he entered his plea, the judge informed him he faced a possible additional sentence of two years and seven months to 11 years and four months on each child abuse count, depending on his criminal history.
He said he also remembered the judge asking him if he understood that what they were doing was "generally final and binding" and he would not likely be allowed to withdraw his plea.
The day before his scheduled sentencing, a door on a holding cell at the Saline County Jail was inadvertently opened, and Brown left the cell and followed a police car out of the sally port entry to the jail. He was on the lam for two days before turning himself in to U.S. marshals in Wichita.
Two people were arrested for allegedly helping Brown after he left the jail.
Eric Terry is scheduled for trial beginning 9 a.m. June 12, and Joshua Danny Brown, Antonio's brother, is scheduled for trial starting at 9 a.m. June 11.
After turning himself in, Brown was returned to the jail, and his sentencing on the murder and child abuse charges was rescheduled for March 7. It was at that hearing that Brown informed the judge that he wished to withdraw his plea. Effenbeck was appointed, and she drew up the motion to withdraw the plea, alleging that Brown did not receive "competent or correct advice."
"The defendant would not have entered into the plea agreement in this case if he had been fully informed and given accurate advice," the motion reads. "The defendant also felt there was considerable reluctance on his counsel's part to take the case to trial, despite the defendant's desire to do so."