Opinion
No. 106,174.
2012-07-20
STATE of Kansas, Appellee, v. James E. BAKER, Appellant.
Appeal from Sedgwick District Court; Warren Wilbert, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, for appellee.
Appeal from Sedgwick District Court; Warren Wilbert, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, for appellee.
Before BRUNS, P.J., MARQUARDT and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
James E. Baker appeals from the district court's denial of his motion to withdraw plea. The district court summarily denied the motion because Baker failed to file it within the 1–year time allowed for filing under K.S.A.2011 Supp. 22–3210. On appeal, Baker argues that the district court was required to hold a hearing to allow him to present evidence in an attempt to show excusable neglect for his failure to timely file his motion. Because Baker failed to present the question of excusable neglect below, we find that the district court did not err in summarily denying the motion to withdraw plea without holding an evidentiary hearing. Thus, we affirm.
Factual and Procedural Background
On August 13, 2003, Baker was sentenced to 24 months' probation after he pled guilty to one count of burglary and one count of misdemeanor theft. Baker's probation was eventually revoked, and he completed his underlying 23–month prison sentence. In November of 2008, Baker filed a motion for expungement of his convictions. But the motion for expungement was denied because Baker failed to give notice to the district attorney.
On November 2, 2010, Baker filed a motion to set aside his plea, arguing that he was not informed “that the conviction[s] could be used to enhance his sentence in a subsequent proceeding or that lawful state actions could be redefined as unlawful.” It appears that Baker's request to withdraw his plea came in response to his burglary conviction in this case being used in federal court as a basis for sentencing him as an armed career criminal. According to Baker, he would not have pled guilty in this case had he known about the possibility that his conviction could be used as evidence against him in subsequent criminal cases.
The State filed a response to Baker's motion to withdraw plea, arguing that he did not file his motion within 1 year of the judgment becoming final and that he did not make a showing of excusable neglect for failing to timely file his motion. The State also pointed out that Baker previously filed a K.S.A. 60–1507 motion making the same argument that was dismissed by the district court as untimely. The dismissal of the K.S.A. 60–1507 motion was subsequently affirmed by this court on appeal. See Baker v. State, No. 101,001, 2010 WL 2502871 (Kan.App.2010) (unpublished opinion).
On December 7, 2010, the district court denied Baker's motion to withdraw plea because it was untimely filed. Baker then filed a motion to reconsider, which was denied by the district court. After the district court denied the motion to reconsider, Baker filed a supplemental motion that was also denied. Thereafter, Baker timely appealed to this court.
Analysis
On appeal, Baker argues that the district court erred in denying his motion to withdraw his plea without holding an evidentiary hearing to allow him the opportunity to present evidence of excusable neglect for his failure to timely file his motion.
After sentencing, a district court may set aside a conviction and permit a defendant to withdraw his or her plea in order to correct manifest injustice. K.S.A.2011 Supp. 22–3210(d)(2). Moreover, the Kansas Supreme Court has held that when a district court summarily denies a post-sentencing motion to withdraw a plea, the standard of review is the same standard used to review summary denial of habeas corpus motions under K.S.A. 60–1507. See State v. Jackson, 255 Kan. 455, 459, 874 P.2d 1138 (1994). Accordingly, an appellate court conducts a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief. See Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).
A motion to withdraw a plea filed after sentencing must be brought within 1 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 [S]upreme [C]ourt or issuance of such court's final order following the granting of such petition.” K.S.A.2011 Supp. 22–3210(e)(1). Because the time limitation for filing a motion to correct an illegal sentence became effective on April 16, 2009, Baker's deadline to file a motion to withdraw plea expired in April 2010. See State v. Benavides, 46 Kan.App.2d 563, 263 P.3d 863 (2011).
It is undisputed that Baker was convicted in 2003 and that he completed his sentence in May of 2005. It is also undisputed that Baker did not file his motion to withdraw plea until November 2, 2010. Hence, because Baker's motion was filed after the statutory deadline, it was incumbent that there be “an additional, affirmative showing of excusable neglect by [Baker].” K.S.A.2011 Supp. 22–3210(e)(2).
Baker contends that the district court should have held a hearing to give him an opportunity to present evidence of excusable neglect. In support of this contention, Baker cites Canaan v. Bartee, 272 Kan. 720, 35 P.3d 841 (2001). It is important to note that although Canaan discusses excusable neglect, it is not a criminal case. Rather, it is a civil case considering the sanctions that may be imposed for failure to comply with a discovery order. 272 Kan. at 726. As such, we do not find Canaan to be helpful in resolving the issue presented in the present case.
There are, however, two recent unpublished opinions from this court that do address the issue of excusable neglect in the context of filing a motion to withdraw a plea. These cases are State v. Dixon, No. 105,683, 2012 WL 1919965 (Kan.App.2012) (unpublished opinion), petition for review filed June 18, 2012 (pending), and Ellerman v. State, No. 104,197, 2011 WL 5833333 (Kan.App.2011) (unpublished opinion), petition for review filed December 9, 2011 (pending).
In both Dixon and Ellerman, this court found that the procedural rules used for motions under K.S.A. 60–1507 are also applicable to motions to withdraw a plea under K.S.A.2011 Supp. 22–3210. Accordingly, “if [a] defendant provides some factual basis in support of the claim [of excusable neglect], 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, 288 Kan. at 131–32); see Dixon, at *2. But both panels concluded that an evidentiary hearing is not required when there has been “no showing whatsoever of any excusable neglect” for failing to file a motion to withdraw plea in a timely manner. Dixon, at *2; Ellerman, at *2.
Similar to the manifest injustice exception to the 1–year time limit for the filing of motions under K.S.A. 60–1507, the question of whether a defendant moving to withdraw a plea can show excusable neglect for his or her failure to timely file the motion “must be raised in the motion itself or at least presented to the district court or it will not be considered on appeal.” See Wilkerson v. State, 38 Kan.App.2d 732, 734, 171 P.3d 671 (2007). Based on our review of the record in the present case, we find 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. We conclude, therefore, that the district court did not err by failing to provide Baker with an evidentiary hearing before denying his motion to withdraw plea as being untimely.
Affirmed.