Opinion
No. 105,683.
2012-05-18
STATE of Kansas, Appellee, v. DeAndrew DIXON, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens, II, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Clark V. Owens, II, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MARQUARDT, P.J., HILL, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
DeAndrew Dixon appeals from the district court's summary denial of his untimely motion to withdraw his plea, contending he should have been entitled to a hearing so he could show excusable neglect.
Our review of the entire record clearly shows Dixon failed to make any argument for or show excusable neglect for failure to timely file his motion within the 1–year time limit and further his grounds for manifest injustice are not supported by any evidence. Consequently, we affirm.
The record presented to us shows the following:
On July 1, 2003, DeAndrew Dixon was charged with two counts of aggravated battery, a severity level 4 count and a severity level 7 count. On September 8, 2003, Dixon pled guilty to two counts of severity level 7 aggravated battery and the State agreed to recommend probation. At the plea hearing, the court inquired about the factual basis to support two separate charges of aggravated battery, Dixon's counsel said: “There were two separate instances. It was the same fight but over a period of time.” The court asked Dixon's counsel again if there was a separation between the two counts to which his counsel replied, “[Y]es.”
On October 24, 2003, the district court sentenced Dixon to 16 months in custody and placed him on probation for 1 year. About a month later, Dixon admitted to committing several violations of his probation. The district court revoked and reinstated the probation. On November 12, 2004, the district court revoked Dixon's probation for the final time due to a different conviction of aggravated battery and ordered him to serve the underlying sentence.
On June 11, 2010, Dixon filed a pro se motion to withdraw his pleas, alleging that the two counts of aggravated battery were multiplicitous and that both counts were contemporaneous. The State responded to the motion pointing out it was untimely under K.S.A.2009 Supp. 22–3210(e)(1), there was no showing of excusable neglect to explain why it took 7 years to file the motion, and there was no claim raised which could entitle Dixon to relief.
The district court summarily denied Dixon's motion as being untimely under K.S.A.2009 Supp. 22–3210(e)(1).
Dixon appeals contending the district court was required to hold a hearing to allow him to show excusable neglect.
He does not challenge the application of the 1–year time limit imposed by K.S.A.2009 Supp. 22–3210(e)(1) and acknowledges that without a showing of excusable neglect, his motion is time barred.
The appropriate standard of review when the district court's decision to summarily deny a post-sentencing motion to withdraw a plea is challenged, is the same standard used to review summary denial of habeas corpus motions under K.S.A. 60–1507 which is a de novo review. State v. Jackson, 255 Kan. 455, 459, 874 P.2d 1138 (1994). An appellate court conducts de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to any relief. Trotter v.. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).
The district court summarily denied Dixon's motion to withdraw his plea, finding that it was untimely under K.S.A.2009 Supp. 22–3210(e)(1).
K.S.A.2009 Supp. 22–3210(e) provides:
“(1) Any action under subsection (d)(2) must be brought within one year of: (A) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (B) the denial of a petition for a writ of certiorari to the United States supreme court or issuance of such court's final order following the granting of such petition.
“(2) The time limitation herein may be extended by the court only upon an additional, affirmative showing of excusable neglect by the defendant.”
Dixon's motion was filed on June 11, 2010, over a year after the time limit was added on April 19, 2009, to the requirements for withdrawing pleas. His motion contains nothing which could be considered as showing excusable neglect and his suggestion that the two counts he pled to in 2003 were multiplicitous is shown to be without merit because his counsel admitted at his plea hearing there were two separate instances of criminal action.
K.S.A.2009 Supp. 22–3210(e) is a recent addition to the statute governing motions to withdraw pleas and, therefore, caselaw regarding the showing of excusable neglect is limited. In a recent unpublished opinion from this court, Ellerman v. State, No. 104,197, 2011 WL 5833333 (Kan.App.2011) (unpublished opinion), petition for review filed December 9, 2011 (pending). Ellerman argued that he must be provided an evidentiary hearing in order to show excusable neglect. A panel of this court noted that the procedural rules used for motions under K.S.A. 60–1507 were also applicable to the motion to withdraw a plea under K.S.A. 22–3210 and “[u]nder these standards, if the defendant provides some factual basis in support of the claim, the district court should provide an evidentiary hearing unless a review of the full record conclusively shows that the defendant's allegations have no merit.” Ellerman, at *2 (citing Trotter v. State, 288 Kan. 112, 131–32, 200 P.3d 1236 [2009] ). But this court denied his request for an evidentiary hearing because Ellerman “made no showing whatsoever of any excusable neglect for failing to file his motion to withdraw pleas made in 1999 and 2000 until late 2009.” Ellerman, at *2.
Dixon likewise makes no showing whatsoever of any excusable neglect for waiting until 2010 to withdraw a plea he entered in 2003. Further, in his brief on appeal to us, he recognizes he must show excusable neglect but does not set forth any explanation or excuse which we could consider to justify such a late filing.
The district court did not err in not scheduling a hearing before denying Dixon's motion to withdraw his plea as being untimely.
Affirmed.