Opinion
No. 108,424.
2013-06-7
Gerald W. HARTMAN, Jr., Appellant, v. STATE of Kansas, Appellee.
Appeal from Wabaunsee District Court; Gary L. Nafziger, Judge. Randy M. Barker, of Topeka, for appellant. Norbert C. Marek, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wabaunsee District Court; Gary L. Nafziger, Judge.
Randy M. Barker, of Topeka, for appellant. Norbert C. Marek, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON, J., and JAMES L. BURGESS, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Gerald W. Hartman appeals the summary dismissal of his motion to withdraw his no contest plea. Hartman claims the district court erred in finding that his motion was untimely and that he had failed to establish manifest injustice excusing a belated filing. Based on the record on appeal, we affirm the district court's judgment.
On September 8, 2008, Hartman pled no contest to one count of aggravated indecent liberties with a child and one count of sexual exploitation of a child. The district court imposed a controlling sentence of 126 months' incarceration. Hartman's convictions and sentences were summarily affirmed by the Kansas Supreme Court on direct appeal. State v. Hartman, No. 101,466, 2009 WL 3377995 (Kan.2009) (unpublished opinion). The mandate was issued on November 9, 2009.
In April 2010, Hartman filed various pro se motions with the district court. In the primary motion, Hartman requested a new trial under K.S.A. 22–3501. Hartman alleged that his trial attorney had bullied him into accepting the plea agreement, that he was innocent of the charges, and that there was new evidence to establish his innocence. The district court appointed an attorney, Jonathan Phelps, to represent Hartman and scheduled a pretrial conference for June 21, 2010. But about 1 week before the scheduled pretrial hearing, Phelps filed a notice, which appears to be signed by Hartman, seeking leave to withdraw the motion for new trial.
On or about July 28, 2010, a letter was sent on Hartman's behalf to the district court. Hartman's letter inquired about Phelps' appointment to represent him. Hartman asserted that Phelps withdrew his motion for new trial and advised Hartman that he required payment in order to file the correct papers on Hartman's behalf. Hartman asked the district court to advise him whether Phelps was contracted with the court to represent him as he had no resources to hire a private attorney. There is no indication that the district court responded to Hartman's inquiry.
On February 6, 2012, Hartman filed a pro se motion to withdraw his pleas that are at issue in this appeal. In support of his motion, Hartman reiterated the allegations he made in his 2010 motion for new trial that his trial counsel was ineffective in urging him to accept the plea agreement. The district court treated Hartman's motion as a K.S.A. 60–1507 motion and appointed new counsel to represent Hartman. The State responded by filing a motion to dismiss, arguing that Hartman's motion was untimely. Thereafter, Hartman's counsel filed an amended motion on his behalf. Acknowledging that the motion was untimely, Hartman's counsel asserted that the motion should be considered out of time to prevent manifest injustice.
On June 4, 2012, the district court held a nonevidentiary hearing on Hartman's motion. Thereafter, the district court issued a journal entry finding the motion was untimely, citing both K.S.A.2012 Supp. 22–3210(e)(1) and K.S.A. 60–1507(f). The district court further found that Hartman withdrew his initial motion for a new trial based upon the advice of counsel and that he failed to show manifest injustice to excuse his untimely motion to withdraw his pleas. Hartman timely appealed the district court's ruling.
On appeal, Hartman argues that his motion should be considered timely filed and that there was either manifest injustice or excusable neglect for the late filing. For the first time on appeal, Hartman contends the district court should have liberally construed his letter to the court in July 2010 as a renewed motion for new trial and that his February 2012 pro se motion should relate back to that letter. Hartman also cites to his claims of ineffective assistance of trial counsel to support his claim of manifest injustice. Hartman asserts that without an evidentiary hearing, the district court could not make an informed decision on whether he could prove manifest injustice.
The district court construed Hartman's motion as a K.S.A. 60–1507 motion and denied relief based upon a review of the files and records of the case. Because this court is in the same position as the district court to consider the merits of the motion, our review of the summary denial is de novo. Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007). This same standard applies to summary denials of motions filed under K.S.A.2012 Supp. 22–3210(e). See State v. Moses, 296 Kan. 1126, 1127–28, 297 P.3d 1174 (2013).
A defendant has 1 year from the date his or her conviction becomes final to file a motion under K.S.A. 60–1507. K.S.A. 60–1507(f); Hayes v. State, 34 Kan.App.2d 157, 161–62, 115 P.3d 162 (2005). Similarly, K.S.A.2012 Supp. 22–3210(e)(1) requires postsentencing motions to withdraw pleas to be filed within 1 year of when the conviction becomes final. Hartman's conviction became final on November 9, 2009. Thus, Hartman's motion filed in February 2012 was well beyond the 1–year limitations in each statute.
Under K.S.A. 60–1507(f)(2), the time to file a postconviction motion may be extended to prevent a manifest injustice. Similarly, K.S.A.2012 Supp. 22–3210(e)(2) permits the extension of the 1–year limitation for filing motions to withdraw pleas only upon an additional, affirmative showing of excusable neglect by the defendant. In attempting to establish manifest injustice and/or excusable neglect, Hartman contends the district court should have liberally construed his letter to the court in July 2010 as a renewed motion for new trial and that his February 2012 pro se motion should relate back to that letter. Hartman did not assert this justification in district court. Generally, an issue not asserted in the district court cannot be raised for the first time on appeal. State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009).
In any event, we find no merit to Hartman's argument. Hartman filed his original motion for new trial within 1 year after his conviction became final. However, Hartman withdrew his request for relief. Despite Hartman's letter to the district court several weeks thereafter, there is no claim that Hartman was unaware of the withdrawal of his motion. In fact, the motion appears to contain his signature and he acknowledged in his letter to the district court that the motion had been withdrawn. Hartman fails to justify why he waited nearly 2 years thereafter to file the motion presently on appeal.
Hartman also cites to his claims of ineffective assistance of trial counsel to support his claim of manifest injustice. However, a movant's underlying claims may not supply the grounds for manifest injustice under K.S.A. 60–1507; to hold otherwise would render the limitations period meaningless. Toney v. State, 39 Kan.App.2d 944, 947, 187 P.3d 122,rev. denied 287 Kan. 769 (2008). The mere assertion by the movant that he or she has meritorious claims does not justify an evidentiary hearing or establish manifest injustice to allow for extension of the 1–year time limit. 39 Kan.App.2d at 947.
In summary, Hartman has failed to establish manifest injustice and/or excusable neglect for the district court to have considered his untimely motion. Accordingly, we conclude the district court did not err in summarily dismissing his motion.
Affirmed.