Opinion
111,577.
06-26-2015
STATE of Kansas, Appellee, v. Adam HAMILTON, Appellant.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Darrell Miller, county attorney, and Derek Schmidt, attorney general, for appellee.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant.
Darrell Miller, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BUSER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Adam Hamilton appeals the denial of his motion to withdraw his guilty plea. The district court denied Hamilton's request finding it was time-barred and that he failed to establish manifest injustice. We agree that Hamilton's motion is timebarred under K.S.A.2014 Supp. 22–3210(e)(2).
In 2003, Hamilton pled guilty to reduced charges of aggravated indecent liberties with a child, a severity level 5 person felony, and furnishing alcoholic liquor to a minor, a class B person misdemeanor. Hamilton fell within a border box classification and the district court ordered a 32–month underlying term of incarceration but granted probation for 36 months. Hamilton's probation was revoked in 2005 and early 2006. In both instances, the court reinstated probation. However, in October 2006, the court revoked Hamilton's probation and ordered him to serve his 32–month original sentence. This case lay dormant until March 2011 when the State filed a motion for citation in contempt for Hamilton's failure to pay his fines and fees after his release. A bench warrant was issued for Hamilton's arrest in January 2012.
In September 2013, the State filed a motion for a nunc pro tunc order requesting the district court amend the complaint and all pleadings to reflect that Hamilton had been convicted of and sentenced for the crime of indecent liberties with a child rather than aggravated indecent liberties with a child. However, on December 9, 2013, Hamilton filed a motion to withdraw his plea. Hamilton argued it would be a manifest injustice to not allow him to withdraw his plea based on the inadequate representation he received from trial counsel, failure of counsel to advise him of the sexual offender registration requirement, failure to challenge the probable cause affidavit and complaint, his trial counsel was disbarred in 2008, and the collateral consequences of sex offender registration. The court heard both motions on the same day.
The district court denied Hamilton's motion to withdraw his plea. The court found that after his conviction, Hamilton had filed no direct appeal or complained about the effectiveness of his attorney. Hamilton also made no complaint of his attorney when he appeared in court in 2005 and 2006 on probation revocation proceedings. The court held that under the facts of the case and the passage of time, Hamilton had failed to establish excusable neglect or manifest injustice which would support a withdrawal of his plea. The court stated, “No complaints about counsel were ever lodged by [Hamilton] and more than 10 years have passed since the plea and sentence.” Hamilton appeals.
Our review is limited to determining whether the district court abused its discretion in denying Hamilton's motion to withdraw his plea. See State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009) (“We have repeatedly said that the denial of a post-sentencing motion to withdraw a plea lies within the trial court's discretion, and an appellate court should not disturb that ruling absent an abuse of discretion.”). “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. [Citation omitted.]” State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009). Hamilton has the burden of establishing that the district court abused its discretion. Woodward, 288 Kan. at 299, 202 P.3d 15.
K.S.A.2014 Supp. 22–3210(e)(2) provides that a motion to withdraw a plea must be filed within 1 year of the defendant's final order on appeal in the original criminal case, with extensions beyond the 1–year limit being granted “only upon an additional, affirmative showing of excusable neglect by the defendant.” The 1–year limitation for filing a postsentence motion to withdraw plea found in K.S.A.2014 Supp. 22–3210(e)(2) began to run for preexisting claims on April 16, 2009, the date the amendment that added this time limitation became effective. State v. Moses, 296 Kan. 1126, Syl. ¶ 3, 297 P.3d 1174 (2013). Hamilton pled guilty to the original charges in 2003. Thus, to be considered timely, Hamilton would have needed to file his plea withdrawal by April 16, 2010. Hamilton, however, did not file his motion until December 9, 2013. As a result, Hamilton's motion was untimely. Moreover, Hamilton has made no showing whatsoever of any excusable neglect for failing to move to withdraw the plea he made in 2003.
There is no statutory definition of “excusable neglect.” This court previously has discussed the term's meaning in the context of an untimely motion to withdraw plea:
“The parties do not cite a case defining excusable neglect as used in K.S.A.2013 Supp. 22–3210(e)(2), and our research located none. The term is defined, however, in Black's Law Dictionary:
‘excusable neglect ... A failure—which the law will excuse—to take some proper step at the proper time (esp. in neglecting to answer a lawsuit) not because of the party's own carelessness, inattention, or willful disregard of the court's process, but because of some unexpected or unavoidable hindrance or accident or because of reliance on the care and vigilance of the party's counsel or on a promise made by the adverse party.’ Black's Law Dictionary 1133 (9th ed.2009).
“This definition is consonant with Kansas cases applying K.S.A. 60–206 and K.S.A. 60–260, both of which use the term. See Tyler v. Cowen Construction, Inc., 216 Kan. 401, 406–07, 532 P.2d 1276 (1975) ; Wilson v. Miller, 198 Kan. 321, 321–22, 424 P.2d 271 (1967). Our Supreme Court has also defined “ ‘[i]nexcusable neglect’ “ to be ‘closely akin to “reckless indifference.” It implies something more than the unintentional inadvertence or neglect common to all who share the ordinary frailties of mankind.’ Jenkins v. Arnold, 223 Kan. 298, 299, 573 P.2d 1013 (1978). Although these are civil cases, our court has conversely examined criminal cases when defining ‘manifest injustice’ under K.S.A. 60–1507(f)(2). See Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007).” State v. Delgado, No. 109,601, 2014 WL 1707718, at *3 (Kan.App.2014) (unpublished opinion).
During the hearing on the motion to withdraw his plea, Hamilton testified about the lack of communication with his attorney before entering the plea and sentencing in 2003, how his attorney failed to inform him of sex offender registration, the involuntariness of his statement to the police, how he was told he would only have to register for 10 years, but now he has to register for 25 years, and the collateral consequences of sex offender registration, including lost jobs, difficulty in finding housing, and the stigma associated with (inherent in) being labeled a sex offender. In arguing the motion to the court, Hamilton's attorney also argued that the original attorney in the case had been disbarred for lack of communication and incompetent representation in other cases.
Upon our review of the record, we discern no “unexpected or unavoidable hindrance or accident,” or “reliance on the care and vigilance of the party's counsel” or reliance “on a promise made by the adverse party.” Black's Law Dictionary 1133 (9th ed.2009). Rather, given all the factors in this case, we are persuaded that Hamilton exhibited “reckless indifference” to this matter until after the statutory time limitation expired. We note that even if Hamilton's claims of manifest injustice were considered, we would find those equally without merit for many of the same reasons:
• The statute for which Hamilton was charged and convicted was indecent liberties with a child. He was never convicted of aggravated indecent liberties with a child. The State's motion for a nunc pro tunc order acknowledges this error.
• Hamilton's trial counsel was able to persuade the district court to give Hamilton a probation sentence when the court could just have easily given Hamilton a prison sentence based on his border-box classification.
• At the plea hearing, Hamilton told the court he was satisfied with the services of his attorney, they had discussed his rights, and he was able to meet with counsel when he felt it necessary.
• Hamilton's trial counsel was able to secure a reinstatement of Hamilton's probation after multiple motions to revoke were filed by the State.
• The presentence investigation report and journal entry of conviction both indicate that Hamilton would be required to register as provided by the Kansas Offender Registration Act. The appellate record includes a “Kansas Offender Registration Change of Address/Other Information Form” updating Hamilton's status in early 2006, showing Hamilton's knowledge of required compliance with the Act.
• Even after his probation was revoked in 2006, Hamilton failed to file a habeas corpus motion alleging ineffective assistance of counsel for the issues he now raises in his motion to withdraw his guilty plea.
• Hamilton's challenges to the probable cause affidavit and complaint were cured by his plea. By raising this argument, he is simply trying to use an omission in the factual basis to withdraw his pleas based on a minor technical error. This reason is insufficient. “It has long been the law in this state that when an accused enters a voluntary plea of guilty, he is deemed to have waived any irregularities which may have occurred in the proceedings prior thereto.” Trotter v. State, 218 Kan. 266, 270, 543 P.2d 1023 (1975) (citing Jones v. State, 207 Kan. 622, 485 P.2d 1349 [1971] ).
Considering all these factors together, we hold Hamilton did not meet his burden to show excusable neglect to allow the filing of his motion to withdraw his plea beyond the 1–year time limitation. Hamilton has not made a showing that his failure to timely file a motion to withdraw plea was “justifiable, pardonable, allowable, defensible” neglect which might be considered excusable. Tyler v. Cowen Construction, Inc., 216 Kan. at 407, 532 P.2d 1276. Hamilton's motion was procedurally barred by K.S.A.2014 Supp. 22–3210(e)(2).
Affirmed.