Opinion
No. 107,708.
2013-11-4
STATE of Kansas, Appellee, v. Jauwon A. ALLEN, Appellant.
Appeal from Sedgwick District Court; Jeffrey Goering, Judge. Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Jeffrey Goering, Judge.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jauwon A. Allen appeals from a judgment of the trial court denying his posttrial motions following a preliminary hearing at which he had court-appointed counsel. At the hearing, the trial court held that Allen's motions were untimely and that he had failed to demonstrate that the 1–year time limitation should be extended to prevent manifest injustice. On appeal, Allen raises the following arguments: (1) that the trial court erred when it construed one of his posttrial motions as a motion under K.S.A. 60–1507 instead of as a motion to withdraw his pleas; (2) that the trial court applied the wrong legal standard when determining whether he met the 1–year statute of limitation exception; and (3) that the trial court erred when it denied his motions without holding an evidentiary hearing. We disagree and affirm.
On September 3, 2009, Allen pled guilty to kidnapping and robbery in case No. 09CR338. That same day, Allen also pled guilty to aggravated battery in the present case—No. 09CR1313. On October 14, 2009, Allen was granted a downward dispositional departure for his kidnapping and robbery convictions, and he was sentenced to 36 months' residential probation with an underlying prison sentence of 100 months. Similarly, Allen was granted a downward dispositional departure for his aggravated battery conviction, and he was sentenced to 36 months' residential probation with an underlying prison sentence of 162 months. The trial court ran Allen's sentences concurrently, essentially giving him a controlling sentence of 36 months' residential probation with an underlying sentence of 162 months.
In March 2010, Allen escaped from the residential facility. Because of his escape, Allen's probation for his 2009 convictions was revoked. Nevertheless, the trial court reinstated his residential probation. In December 2010, Allen escaped and fled from the residential facility a second time. Allen's second escape led to convictions of obstructing legal process or official duty and assault of a law enforcement officer. Moreover, the trial court revoked Allen's probation; the trial court imposed and ordered Allen to serve his underlying sentence, along with concurrent terms of 6 months for his new convictions.
In July 2011, Allen filed a pro se motion captioned as “Motion for Ineffective Assistance of Counsel,” and states it is made “pursuant to K.S.A. 60–1507.” Allen's motion asserted that he received ineffective assistance of counsel. On August 17, 2011, the State responded to Allen's motion, arguing that Allen's motion was untimely because it was filed outside the 1–year time limit and it lacked any argument to establish that the time limitation should not apply.
Over the next several months, Allen continued to file pro se motions. Under these motions, Allen sought to withdraw his guilty pleas. Later, Allen was appointed counsel, and his counsel filed a brief outlining why manifest injustice required consideration of the allegations set forth in Allen's untimely motions. On October 25, 2011, the trial court held a limited hearing on the issue of whether Allen had filed his motions timely. The trial court ruled that Allen had failed to show manifest injustice to allow him to file a 1507 motion out of time. The trial court went on to rule, for the same reasons, that Allen had failed to show excusable neglect to file a motion to withdraw plea out of time. Consequently, the trial court denied Allen's motions as untimely and did not allow him to withdraw his pleas. Did the trial court err when it construed one of Allen's motions as a motion under 60–1507 instead of as a motion to withdraw his pleas?
Allen's first argument on appeal is that the trial court “abused its discretion when it applied a manifest [in]justice standard to procedurally bar Mr. Allen's pro se motions as untimely.” In other words, Allen maintains that the trial court abused its discretion when it construed one of his posttrial motions as a 60–1507 motion instead of construing all of his motions as motions to withdraw guilty pleas.
The trial court denied all of Allen's posttrial motions because they were untimely filed. See K.S.A. 60–1507(f)(1); K.S.A.2011 Supp. 22–3210(e)(1). Under Kansas law, the 1–year time limitation under K.S.A. 60–1507(f)(1) may be extended only to prevent manifest injustice. K.S.A. 60–1507(f)(2). “Although ‘manifest injustice’ has not been defined in the context of K.S.A. 60–1507(f)(2), this court has interpreted the phrase in other contexts to mean ‘obviously unfair’ or ‘shocking to the conscience.’ “ Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007). K.S.A.2011 Supp. 22–3210(e)(1) also contains a 1–year time period and K.S.A.2011 Supp. 22–3210(e)(2) states that “[t]he time limitation herein may be extended by the court only upon an additional, affirmative showing of excusable neglect by the defendant.”
On appeal, Allen does not deny that his motions were untimely. Instead, he maintains that one of his motions should have been construed as a motion to withdraw his plea instead of as a motion under 60–1507. Allen's argument concerning the construction of that motion is misplaced. Under Kansas law, pro se pleadings are construed liberally. State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010). Thus, Kansas courts give effect to the pleading's content rather than the labels and forms used to articulate the defendant's arguments. A defendant's failure to cite the correct statutory grounds for his or her claim is immaterial. See Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004) (construing pro se K.S.A. 60–1507 motion as a request for DNA testing under K.S.A. 21–2512). Whether the trial court correctly construed a pro se pleading is a question of law subject to unlimited review. Kelly, 291 Kan. 563, Syl. ¶ 2.
When Allen filed his motion, K.S.A.2011 Supp. 22–3210(d) governed the decision to grant or deny a motion to withdraw a guilty plea. K.S.A.2011 Supp. 22–3210(d) reads as follows:
“(d)(1) A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.
“(2) To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.”
As stated above, K.S.A.2011 Supp. 22–3210(d) creates two standards for evaluating motions to withdraw pleas. The first applies before sentencing, when courts have discretion to permit withdrawal upon “good cause” shown. But after sentencing, courts may permit a plea withdrawal only to correct “manifest injustice.” Some factors courts may consider when determining whether to grant a motion to withdraw a plea are: “(1) whether the defendant was represented by competent counsel, (2) whether the defendant was misled, coerced, or unfairly taken advantage of, and (3) whether the plea was fairly and understandingly made.” State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010). As these factors demonstrate, whether plea counsel was ineffective is relevant to determining whether a motion to withdraw a plea should be granted. Even so, we still must determine whether the contents of Allen's filings could be construed as raising a motion to withdraw plea.
Here, both the form and substance of Allen's first posttrial motion arguably lead to the conclusion that it should have been construed as a 60–1507 motion. As mentioned earlier, Allen filed several posttrial motions after his probation was revoked and he was ordered to serve his original sentence. The posttrial motion at issue here is the motion that Allen filed on July 19, 2011. In that motion, which was captioned as “Motion for Ineffective Assistance of Counsel,” Allen alleged that he received “ineffective assistance of counsel pursuant to K.S.A. 60–1507.” Although not dispositive, the caption of Allen's petition coupled with its multiple references to 60–1507 support the conclusion that the petition should have been construed as a 60–1507 motion. As for the substance of Allen's motion, it stated that he received ineffective assistance of counsel because his counsel failed to inform him about the details of the sentencing procedure and failed to tell him about his criminal history. Moreover, Allen's motion maintained that his counsel was ineffective because he failed to object to Allen's criminal history score and failed to appeal Allen's conviction.
Because both the substance and form of Allen's July 19, 2011, motion could have been construed as a motion under 60–1507, the trial court properly determined that the motion was untimely. Indeed, it is disingenuous for Allen to argue that the trial court applied the wrong legal framework to this motion. After Allen filed the first posttrial motion, he filed two separate motions to withdraw his pleas. After conducting a hearing on all of Allen's posttrial motions, the trial court issued its written journal entry on November 4, 2011. The trial court's journal entry addressed each of Allen's motions independently, applying the manifest injustice standard to his 60–1507 motion and the excusable neglect standard to his motions to withdraw guilty pleas.
We note, however, that in Kelly our Supreme Court reversed and remanded to the trial court because it misconstrued a defendant's posttrial motion as a 60–1507 motion instead of a motion to withdraw plea. 291 Kan. at 566. For whatever reason, Allen has failed to cite to Kelly and does not rely on it. But even if Allen had relied on Kelly, his reliance would be misplaced because the underlying facts of Kelly are distinguishable from the facts here.
In Kelly, our Supreme Court held that the trial court erred because it should have construed the defendant's posttrial motion as a motion to withdraw plea instead of a motion under 60–1507. 291 Kan. at 566. In that case, the defendant filed a single post-trial motion entitled: “Motion to Withdraw Plea and to Correct Illegal Sentence and to Vacate Sentence.” 291 Kan. at 564. The substance of defendant's posttrial motion asserted in part that he received ineffective assistance of counsel for the following reasons:
“(1) Counsel prevented him from making an informed plea decision because he was not fully apprised of the sentencing ranges and jurisdiction; (2) counsel failed to keep him informed regarding the plea negotiations; (3) counsel failed to investigate or advise Kelly of any defenses or trial strategies available if he did not enter a guilty plea; and (4) counsel failed to advise Kelly of the rights he would be waiving by entering a plea.” 291 Kan. at 564.
The Kelly court believed that the defendant's allegations were sufficient to warrant construction of his filing as a motion to withdraw his plea because he had alleged that his counsel was ineffective based on failures surrounding his plea negotiations.
But unlike Kelly, where the defendant's motion made no reference to 60–1507 and was captioned as a “Motion to Withdraw Plea and to Correct Illegal Sentence and to Vacate Sentence,” Allen's motion was captioned as “Motion for Ineffective Assistance of Counsel” and made multiple references to 60–1507. The facts here are also distinguishable from Kelly because Allen filed multiple motions while the defendant in Kelly filed only one. Allen's other posttrial motions were captioned as motions to withdraw pleas and stated why he should have been allowed to withdraw those pleas. The filing of separate motions shows that Allen's July 19, 2011, motion should have been classified as a 60–1507 motion. Otherwise, there would have been no need for Allen to file later motions seeking to withdraw his pleas.
But even if the trial court should have construed Allen's July 19, 2011, motion as a motion to withdraw plea, this error was harmless. In Kelly, our Supreme Court reversed and remanded because the trial court had dismissed the defendant's motion as untimely without holding a hearing and without considering “the manifest injustice requirements set out in K.S.A. 22–3210.” 291 Kan. at 567. That is not the case here. In this case, the trial court conducted a hearing on all three of Allen's post-trial motions. After which, it held in its written journal entry that Allen “has failed to establish manifest injustice that would permit him to pursue relief pursuant to K.S.A. 60–1507 out of time.”
In other words—and as the trial court correctly points out—regardless of whether construed as a 60–1507 motion or as a motion to withdraw plea, Allen still would have to show “manifest injustice” before his pleas could be set aside. See K.S.A.2011 Supp. 22–3210(d)(2). The trial court reached the correct result, finding that Allen had failed to meet the manifest injustice burden. If the trial court reaches the correct result, its decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision. See State v. May, 293 Kan. 858, 869–70, 269 P.3d 1260 (2012) (criminal); Hockett v. The Trees Oil Co., 292 Kan. 213, 218, 251 P.3d 65 (2011) (civil). Accordingly, Allen's first argument on appeal fails. Did the trial court apply the wrong legal standard to determine whether Allen met the 1–year statute of limitations exception?
Next, Allen argues that the trial court “misapplied the excusable neglect standard when it ruled that, for the same reasons Mr. Allen had failed to show manifest injustice, he had failed to show excusable neglect.” Allen's argument is misplaced because it misinterprets the statutory language applicable to a party who seeks to withdraw his or her plea after sentencing. Interpretation of a statute is a question of law over which appellate courts have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009) (civil); State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011) (criminal).
As previously stated, the following statutory language, applicable when a defendant seeks to withdraw his or her plea after sentencing has occurred, reads as follows: “To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.” K.S.A.2011 Supp. 22–3210(d)(2). But a motion to withdraw a plea after sentencing must be brought within 1 year of “[t]he 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 within 1 year after the United States Supreme Court denies a petition for writ of certiorari or issues a final order after granting such a petition. K.S.A.2011 Supp. 22–3210(e)(1). This time limitation may be extended only on “ an additional, affirmative showing of excusable neglect by the defendant.” (Emphasis added.) K.S.A.2011 Supp. 22–3210(e)(2). For pleas made before K.S.A 2011 Supp. 22–3210(e)(1) became effective, the time limit for a motion to withdraw plea was extended to 1 year after the statute became effective, which was April 16, 2009. State v. Benavides, 46 Kan.App.2d 563, 568, 263 P.3d 863 (2011).
Allen concedes that his motions to withdraw were untimely because he did not file them within the 1–year time requirement, which expired October 24, 2010. Here, Allen's excusable neglect argument is misplaced because the plain language of K.S.A.2011 Supp. 22–3210(e)(2) indicates that manifest injustice is a condition precedent, which Allen had to satisfy before he could argue excusable neglect. In short, the trial court applies the excusable neglect standard only after manifest injustice has been shown. As previously mentioned, the trial court determined that Allen had failed to establish that manifest injustice should allow him to withdraw his pleas. Because Allen failed to establish manifest injustice, the trial court properly determined that he had failed to establish excusable neglect to withdraw his plea for the same reasons.
In fact, this court has reached the same conclusion under similar facts. In State v. Adkins, No. 106,289, 2012 WL 3171836, at *3 (Kan.App.2012) (unpublished opinion) our court stated the following:
“Because the trial court correctly determined that Adkins had failed to show manifest injustice, it was not necessary for the trial court to consider whether Adkins' motion was timely based on excusable neglect. As stated earlier, Adkins first had to show manifest injustice. Manifest injustice was a condition precedent which Adkins had to satisfy before he could argue excusable neglect in the late filing of his motion to withdraw his plea for possession of cocaine. Indeed, the trial court applies the excusable neglect standard only after manifest injustice has been shown. Because Adkins failed to show manifest injustice, the trial court did not err in failing to apply the excusable neglect standard.”
As a result, we determine that Allen's second argument also fails.
Because we have affirmed the trial court on Allen's first two issues, we need not address his third issue.
Affirmed.