Opinion
No. 106,312.
2012-10-5
STATE of Kansas, Appellee, v. Walter Spencer DIVERS, Appellant.
Appeal from Shawnee District Court; Mark S. Braun, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant, and Walter S. Divers, appellant pro se. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Mark S. Braun, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant, and Walter S. Divers, appellant pro se. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL, J. and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
After his probation was revoked and while serving his prison sentence, Walter Spencer Divers filed a motion to withdraw his guilty plea, contending the time limit for his prosecution had expired and his trial counsel had failed to raise the issue before he entered his plea. Kansas courts have discharged defendants in the past if there is an unreasonable delay between the issuance of an arrest warrant and the actual arrest of the defendant and the time limit for prosecution has expired before the arrest of the defendant. Here, Divers was arrested 5 days after the 5–year statute of limitations had expired. Given the record of this case, we affirm his conviction because the 24–day delay between the issuance of the arrest warrant for Divers and his actual arrest was not unreasonable.
In this opinion, we first give a brief overview of the pertinent facts and then review some fundamental points of law pertaining to the appeal. Then, we show why the 5–year statute of limitations applies and not the 2–year limit. Next, we explain our view why the 24–day delay between issuance of the arrest warrant and Divers' arrest was not unreasonable. Finally, we give our conclusion that there is no abuse of discretion by the district court here.
The State charged Divers; he pied guilty and was sentenced.
On August 18, 2008, the State charged Divers with burglary of a building that was not a dwelling, theft, and criminal damage to property. The State alleged the crimes occurred on or about September 7–9, 2003. An arrest warrant was issued on August 19, 2008. The warrant was executed with the arrest of Divers on September 12, 2008.
Divers pleaded guilty to burglary of a nondwelling and the district court sentenced him to 24 months of probation, with an underlying prison term of 27 months and 12 months of postrelease supervision. In addition, the district court ordered Divers to serve 60 days in the county jail. Later in May 2009, the State asked to revoke Divers' probation. The district court revoked Divers' probation and ordered him to serve his underlying prison sentence.
About a year later, in May 2010, Divers filed a pro se motion to withdraw his plea. Divers asserted that his case should have been dismissed for the State's failure to abide by the statute of limitations and his plea counsel was ineffective for failing to raise the statute of limitations as an affirmative defense. On November 15, 2010, Divers, through appointed counsel, filed an amended motion to withdraw his plea essentially asserting the same arguments as Divers' pro se motion.
The district court denied Divers' motion to withdraw his plea after finding that the 5–year statute of limitations applied and the delay between the issuance of the arrest warrant and its execution was reasonable. The district court then determined that although Divers' plea counsel's performance fell below a standard of reasonableness for failing to raise the statute of limitations issue, there was no reasonable probability that Divers would not have entered into a plea agreement. Therefore, the district court denied Divers' motion to withdraw his plea.
We review the law pertaining to the withdrawal of guilty pleas after sentencing.
Divers contends that to prevent manifest injustice he should be allowed to withdraw his guilty plea. Indeed, K.S.A.2010 Supp. 22–3210(d)(2) states that to “correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.” Our cases have spoken on this point before. In determining whether the defendant has shown manifest injustice to permit a postsentence plea withdrawal, the district court should consider the following factors: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. While these factors are viable benchmarks for judicial discretion, they should not be mechanically applied and should not be relied on to the exclusion of other factors. State v.. Bricker, 292 Kan. 239, 244–45, 252 P.3d 118 (2011).
An appellate court will not disturb a trial court's denial of a motion to withdraw plea after sentencing unless the defendant establishes an abuse of discretion. State v. Plotner, 290 Kan. 774, 777, 235 P.3d 417 (2010). Ajudicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011)cert. denied132 S.Ct. 1594 (2012).
We hold the 5–year limit applies.
In July 2005, K.S.A. 21–3106 was amended to extend the 2–year statute of limitations on the prosecution of crimes to 5 years. See L.2005, ch. 162, sec. 1; K.S.A.2005 Supp. 21–3106(4). Because Divers' crime was committed on September 7, 2003, the 2–year statute of limitations of K.S.A.2003 Supp. 21–3106(8) applied in his case. However, the statute's amendment was made while Divers' crime was still within the 2–year statute of limitations. Our court, in State v. Auch, 39 Kan.App.2d 512, 521–22, 185 P.3d 935 (2008), relying on State v. Nunn, 244 Kan. 207, 218, 768 P.2d 268 (1989), determined that the amendment was a procedural change in the law and not substantive; thus, any crimes committed prior to the amendment for which the statute of limitations had not yet expired could be filed under the extended 5–year statute of limitations. Therefore, the district court did not abuse its discretion when it determined that the 5–year statute of limitations applied in Divers' case and not the 2–year statute of limitations. As such, the State had until September 7, 2008, to commence its prosecution against Divers.
We examine the delay between the date of the crime and the arrest of Divers.
To begin a prosecution of a crime in Kansas, not only a complaint must be filed but the arrest of the defendant must be achieved. Under K.S.A. 21–3106(7):
“A prosecution is commenced when a complaint or information is filed, or an indictment returned, and a warrant thereon is delivered to the sheriff or other officer for execution. No such prosecution shall be deemed to have been commenced if the warrant so issued is not executed without unreasonable delay.”
At this point, we find it helpful to review the facts. The State charged Divers on August 18, 2008. The arrest warrant was issued and given to the sheriff on August 19, 2008. Both of these actions occurred within the requisite time frame of the statute of the limitations. Therefore, the first two requirements of K.S.A. 21–3106(7) were completed in a timely manner. The remaining question is whether the there was an unreasonable delay in the execution of the arrest warrant because the arrest fell outside of the statute of limitations. See State v. McDowell, 33 Kan.App.2d 889, 892–93, 111 P.3d 193 (2005). The time between the issuance of the arrest warrant—August 19, 2008—to the time the arrest warrant was executed—September 12, 2008—was 24 days. In addition, because Divers' crime was allegedly committed on or about September 7–9, 2003, the execution of the arrest warrant was 5 days after the 5–year statute of limitations deadline of September 7, 2008.
When determining the reasonableness of a delay in the execution of an arrest warrant, it is key to look at what the State did do, not what it did not do. State v. Long, 276 Kan. 297, 300, 75 P.3d 1217 (2003).
“These cases do not lend themselves to bright lines and rigid formulas. Rather, each case must be considered given the totality of the events involved and what efforts were made to execute any warrant. If the warrant was not timely served, then the courts are required to ask why. The diligence of those charged with the responsibility of bringing charges and serving warrants will obviously weigh on any court considering whether any delay was or was not reasonable.” 276 Kan. at 303.
In Long, 276 Kan. at 299–304, our Supreme Court determined that a 75–day delay between the issuance of the arrest warrant and the execution of the arrest warrant was unreasonable because the only action taken by the State to locate the defendant was registering the arrest warrant in the National Crime Information Center (NCIC) database without verifying the address, and the sheriff failed to change the address after the correct address was obtained.
Then, in State v. Dozal, 31 Kan.App.2d 344, 346–48, 65 P.3d 217 (2003), our court determined that an 84–day delay between the issuance and execution of the arrest warrant was unreasonable because the only actions taken by the State were mailing the defendant with a request to turn himself in, performing a general employment database check, and entering the arrest warrant into the NCIC database.
Before that, in State v. Washington, 12 Kan.App. 634, 636–37, 752 P.2d 1084 (1988), our court found that a 30–month delay was unreasonable because the State's only actions occurred in the first 2 months and were limited to one computer check and four attempts to locate the defendant at the same address despite being informed on the first attempt that the defendant no longer lived at that address.
In contrast to those prior cases, the State was much more diligent here. In Divers' case, the warrant was entered into the NCIC database on August 20, 2008. On the warrant cover sheet where the officers make notations regarding the service of the warrant, there are several notes pertaining to the officers' attempts to serve the warrant on Divers. In the first notation, on August 21, 2008, an officer spoke with Divers' father, who indicated that Divers did not live at the house and he had not seen him for a while. The officer also spoke with some neighbors who indicated that they had not seen Divers for some time. In the second notation, on the same day, an officer went to Divers' girlfriend's last known address, but she had moved out and new tenants had been living there for 2 weeks. No other action was taken until September 12, 2008, when the arrest warrant was served on Divers while he was in jail.
The 24–day delay does not seem unreasonable under the facts of Divers' case. Although no other action was taken until Divers was in custody on another charge, the facts of this case are more substantial on the State's part than those facts in the cases above. There are no long periods of unexplained inactivity by the State here.
For these reasons, we hold the district court did not abuse its discretion when it denied Divers' motion.
We find no fault with trial counsel.
Divers contends his counsel was ineffective for failing to argue the statute of limitations before he entered his guilty plea. When a defendant raises a claim of ineffective assistance of counsel in a postsentence motion to withdraw a plea, he or she must show (1) that counsel's performance fell below the objective standard of reasonableness, and (2) but for counsel's deficient performance, there is a reasonable probability that the proceeding would have been different. Bricker, 292 Kan. at 245–46.
Since we have already held that the 24–day delay between the issuance and execution of the arrest warrant was not unreasonable and Divers' prosecution was within the legal time limit, we cannot hold his counsel was ineffective for failing to raise the issue. We see no abuse of discretion by the district court in this regard.
We affirm the district court.