Opinion
111,816 111,817.
06-26-2015
STATE of Kansas, Appellee, v. James E. BAKER, Appellant.
Kristen B. Patty, of Wichita, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Kristen B. Patty, of Wichita, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
James E. Baker appeals the district court's summary denial of his postsentence motions to withdraw pleas in two separate cases which have been consolidated for appeal. The district court denied the motions as untimely and successive. Baker argues that he presented sufficient facts to establish excusable neglect that would have permitted the untimely motions. He also argues that he presented sufficient facts to establish manifest injustice to withdraw his pleas. For the reasons stated herein, we affirm the district court's judgment.
Factual and Procedural History
This is Baker's fifth appeal arising from his attempts to withdraw his pleas in two separate cases. A previous panel of this court set forth a detailed procedural history:
“In August 1997, Baker pled no contest to burglary in case No. 96–CR–1050. He was sentenced to 19 months' imprisonment. In July 2003, Baker pled guilty to burglary and misdemeanor theft in case No. 03–CR–1052. The district court sentenced him to 24 months' probation, which was later revoked. Baker ultimately served the underlying 23–month prison sentence.
“In November 2008, Baker filed a motion to expunge several prior offenses from his record, including the burglary convictions from cases 96–CR–1050 and 03–CR–1052. The district court summarily denied the petition, finding that Baker had failed to give notice to the district attorney.
“On November 2, 2010, Baker filed a motion to set aside his pleas in 96–CR1050 and 03–CR–1052. Baker claimed that he was entitled to have his pleas withdrawn because he was not informed when he made them ‘that the conviction could be used to enhance his sentence in a subsequent proceeding or that lawful state actions could be redefined as unlawful.’ Baker also asserted that he was not made aware that his convictions would have the ‘direct consequence’ of prohibiting him from lawfully possessing ammunition. Baker explained that in 2005, he was found guilty in federal court of possession of ammunition. Based on his prior state convictions, Baker was found to be an ‘armed career criminal’ and was sentenced to serve 235 months in federal prison. Baker claimed that he was not told at the time of his pleas in 96–CR–1050 and 03–CR–1052 that those convictions would be included in his criminal history in federal court. He asserted that his pleas were not knowingly and voluntarily made and should be set aside.
“The State filed a response, arguing the motion was untimely because Baker failed to file it within 1 year of the judgment becoming final. The State further asserted that Baker was unable to show excusable neglect that would have allowed his untimely motion. The State also noted that in 2008 Baker filed a motion under K.S.A. 60–1507 making the same arguments raised in his motion to withdraw his pleas. The district court had dismissed the 60–1507 motion as untimely, and this court affirmed the decision on appeal. See Baker v. State, No. 101,001, 2010 WL 2502871 (Kan.App.2010) (unpublished opinion), rev. denied 290 Kan. 1092 (2010) [Baker I ]. In that case, the Court of Appeals panel also addressed the merits of Baker's argument, finding that he failed to show manifest injustice sufficient to withdraw his pleas. 2010 WL 2502871, at *4.
“On December 7, 2010, the district court denied Baker's motion to withdraw his plea in case 03–CR–1052, finding the motion was time barred. Then on December 15, 2010, the district court denied Baker's motion in case 96–CR–1050, making the same finding.
“On December 22, 2010, Baker moved to reconsider the rulings on his motion to set aside the pleas. He argued that ‘K.S.A.2009 Supp. 22–3210(d) does not provide any time limitation on the filing of a motion to withdraw plea.’ His arguments were otherwise the same as those raised in his original motion to withdraw his pleas. The State filed a response on January 5, 2011, noting that in April 2009, K.S.A. 22–3210 was amended to include a time limitation for filing a motion to withdraw plea.
“On January 10, 2011, the district court denied Baker's first motion to reconsider in case 03–CR–1052, finding that it was successive and an abuse of remedy. Baker filed a timely notice of appeal. The appeal was docketed on June 7, 2011. On July 20, 2012, this court affirmed the district court's decision. See State v. Baker, No. 106,174, 2012 WL 3000355 (Kan.App.2012) (unpublished opinion), petition for rev. filed August 20, 2012 [Baker II ]. The panel determined that ‘Baker failed to make any showing of excusable neglect whatsoever, even after the State asked the district court to deny the motion based on untimeliness.’ 2012 WL 3000355, at *3.
“Also on January 10, 2011, the district court denied Baker's first motion to reconsider in case 96–CR–1050, again finding that it was successive and an abuse of remedy. Baker filed a timely notice of appeal. The appeal was docketed on June 7, 2011. On November 2, 2012, this court affirmed the district court's decision. See State v. Baker, No. 106,171, 2012 WL 5392094 (Kan.App.2012) (unpublished opinion), petition for rev. filed November 30, 2012 [Baker III ]. The panel found that ‘Baker's motion contain[ed] nothing that could be considered as a showing of excusable neglect for failing to comply with the time limitation.’ 2012 WL 5392094, at *2. The panel further determined Baker's appeal could be disposed of by the principle of res judicata, because the Court of Appeals rejected the merits of Baker's argument in Baker v. State, 101,001, 2010 WL 2502871. 2012 WL 5392094, at *3.
“On January 4, 2011—before the district court had ruled on Baker's first motion to reconsider—Baker filed another motion to reconsider his motion to withdraw his pleas in case Nos. 96–CR–1050 and 03–CR–1052, making the same arguments contained in the previous motion. On January 26, 2011, the State responded to this motion to reconsider, arguing that it was successive and constituted an abuse of remedy. On February 9, 2011, the district court filed separate orders denying the motions in case Nos. 96–CR–1050 and 03–CR–1052. In each order, the district court found Baker's second motion to reconsider was successive and an abuse of remedy. Baker filed a timely notice of appeal for each case. We consolidated the appeals.” State v. Baker, No. 107,389, 2013 WL 1444615, *1–2 (Kan.App.2013) (unpublished opinion), rev. denied 297 Kan. 1248 (2013) [Baker IV ].
In Baker IV, this court affirmed the district court's judgment, holding there was ample evidence that it already had decided the merits of Baker's claims. Baker IV, 2013 WL 1444615, at *3–4.
In January 2013, Baker filed a motion to withdraw his plea in 96CR1050. In March 2013, he filed a motion to withdraw his plea in 03CR1052. The district court summarily denied Baker's 2013 motions as untimely, successive, repetitive, and an abuse of remedy. Baker timely appealed each ruling. This court consolidated the appeals.
On appeal, Baker argues that he presented sufficient facts to establish excusable neglect that would have permitted the untimely motions. He also argues that he presented sufficient facts to establish manifest injustice to withdraw his pleas. In the alternative, he argues that he presented sufficient facts to merit an evidentiary hearing. The State asserts that Baker's appeal is successive and should be denied.
“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.2014 Supp. 22–3210(d)(2). Generally, an appellate court will not disturb a district court's denial of a postsentence motion to withdraw plea absent an abuse of discretion. State v. Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014). When a district court summarily denies a postsentence motion to withdraw a plea without argument or additional evidence, appellate review is de novo because the appellate court has the same access to the motions, records, and files as the district court. 299 Kan. at 154–55, 321 P.3d 763.
A postsentence motion to withdraw a plea must be filed within 1 year of either: “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 the United States Supreme Court's denial of any petition for writ of certiorari or issuance of a final order after the granting of such petition. K.S.A.2014 Supp. 22–3210(e)(1) ; State v. Moses, 296 Kan. 1126, 1128, 297 P.3d 1174 (2013). This 1–year time limitation may be extended “only upon an additional, affirmative showing of excusable neglect by the defendant.” K.S.A.2014 Supp. 22–3210(e)(2). The 1–year limitation for filing a postsentence motion to withdraw a plea found in K.S.A.2014 Supp. 22–3210(e)(1) began to run for preexisting claims on April 16, 2009, the date the amendment that added this time limitation became effective. Moses, 296 Kan. at 1128, 297 P.3d 1174.
Pursuant to Kansas Supreme Court Rule 7.042(b)(1) and (2) (2014 Kan. Ct. R. Annot. 67), the district court's ruling may be affirmed by summary opinion if the appellate court finds that no reversible error of law appears and the appeal is frivolous or without merit. Here, there was no reversible error of law, and Baker's appeal is both frivolous and without merit. In Baker IV, we pointed out that this court already had decided the merits of Baker's claims:
“In 2010, we determined that Baker had not shown manifest injustice that would entitle him to withdraw his guilty pleas. See Baker v. State, 2010 WL 2502871. In two separate cases in 2012, we held Baker's motion to withdraw his pleas and his first motion to reconsider in case Nos. 96–CR–1050 and 03–CR–1052 were untimely and Baker had failed to show excusable neglect that would have permitted the late motions. See State v. Baker, 2012 WL 3000355 ; State v. Baker, 2012 WL 5392094. Baker's arguments regarding his second motion to reconsider are no different. In sum, we have already issued opinions on the merits of Baker's claims.” Baker IV, 2013 WL 1444615, at *3.
As demonstrated by the above factual and procedural history, Baker's arguments already have been litigated. This court previously has ruled that Baker has failed to establish excusable neglect that would have permitted an untimely motion to withdraw his pleas. See Baker II, 2012 WL 3000355, at *3 ; Baker III, 2012 WL 5392094, at *3. More significantly, this court previously has addressed the merits of Baker's underlying arguments and found that he failed to show manifest injustice sufficient to withdraw his pleas. Baker I, 2010 WL 2502871, at *4. Even if Baker may be putting a new twist on some of his arguments, the sentencing court is not required to entertain a second or successive motion for similar relief on behalf of the same prisoner. See State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013) (citing K.S.A. 60–1507 [c] ). This principle of law applicable to K.S.A. 60–1507 motions also applies to Baker's repeated attempts to file untimely motions to withdraw his pleas. The district court correctly denied Baker's most recent motions as untimely, successive, repetitive, and an abuse of remedy.
Affirmed under Rule 7.042(b)(1) and (2) (2014 Kan. Ct. R. Annot. 67).