Opinion
111,663.
07-31-2015
STATE of Kansas, Appellee, v. Samuel L. REED, Appellant.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Samuel L. Reed appeals the district court's order summarily denying his untimely postsentence motion to withdraw his plea. He argues the court erred in interpreting his pleading exclusively as a motion to withdraw his plea instead of also construing it as a K.S.A. 60–1507 motion. As a result, Reed contends the court applied the wrong legal standard to determine whether he met an exception to the 1–year time limit for filing the motion.
Facts
In September 2009, Reed pled no contest in case 09 CR 595 to two counts of criminal threat and one count each of criminal possession of a firearm, criminal damage to property, and battery against a law enforcement officer. The district court sentenced Reed to 24 months' probation with an underlying prison term of 26 months. Reed did not file an appeal from his sentence.
In February 2010, the district court revoked and reinstated Reed's probation and ordered him to serve 30 days on house arrest after Reed admitted to violating the terms of his probation by associating with gang members.
In March 2011, the district court revoked Reed's probation and ordered him to serve his underlying 26–month prison sentence after he was convicted of attempted first-degree murder in case 10 CR 2939. Reed did not appeal the revocation of his probation.
On November 13, 2013, Reed filed a pro se “Motion to Withdraw Plea to Correct Manifest Injustice.” Reed's motion alleged that he should be allowed to withdraw his plea pursuant to K.S.A.2012 Supp. 22–3210(d) because (1) his attorney had not filed a motion to suppress evidence obtained by a police search, (2) his attorney mistakenly told him that his pleas would not increase his criminal history score, and (3) the district court failed to obtain a factual basis to support his pleas or make a determination of guilt. In response, the State argued that Reed's motion should be dismissed as untimely because it was filed outside the 1–year time limitation of K.S.A.2012 Supp. 22–3210(e)(1), and Reed had failed to make any affirmative showing of excusable neglect under K.S.A.2012 Supp. 22–3210(e)(2) to justify his late filing.
The district court summarily denied Reed's motion, stating: “Defendant failed to file his motion in a timely manner. Having proffered no substantive grounds showing the existence of incompetent counsel or manifest injustice the motion is denied.”
Analysis
Reed argues the district court erred in summarily denying his motion, claiming the court erroneously interpreted it exclusively as a motion to withdraw plea instead of also construing it as a K.S.A. 60–1507 motion. As a result, Reed contends the court applied the wrong legal standard to determine whether he met an exception to the 1–year time limit for the filing of the motion. Whether the district court correctly construed a pro se pleading is a question of law subject to unlimited review. State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010).
A postsentence motion to withdraw plea must be brought within 1 year of the final order issued by the last court to exercise jurisdiction. See K.S.A.2014 Supp. 22–3210(e)(1). The 1–year time limit “may be extended by the court only upon an additional, affirmative showing of excusable neglect by the defendant.” K.S.A.2014 Supp. 22–3210(e)(2). Likewise, the time for filing a K.S.A. 60–1507 motion is 1 year following the issuance of the final order of the last court to exercise jurisdiction. See K.S.A. 60–1507(f)(1). This time limit may be extended to prevent manifest injustice. K.S.A. 60–1507(f)(2).
Reed was sentenced on December 3, 2009. No direct appeal was filed; thus, no appellate court ever exercised jurisdiction over the matter or terminated its jurisdiction thereof. As such, the 1–year time limitation for filing Reed's motion began to run on December 17, 2009, which was the deadline before which Reed would have had to request the appellate court exercise jurisdiction on direct appeal. See K.S.A. 22–3608(c) (“For crimes committed on or after July 1, 1993, the defendant shall have 10 days after the judgment of the district court to appeal.”); K.S.A. 60–206(a) (10–day period calculated in business days). In order to be timely, then, Reed was required to file any postsentence motion to withdraw his plea or K.S .A. 60–1507 motion no later than December 17, 2010. Reed concedes that his motion, filed on November 13, 2013, was untimely under both K.S.A.2014 Supp. 22–3210(e)(1) and K.S.A. 60–1507(f)(1).
But because motions to withdraw a plea under K.S.A.2014 Supp. 22–3210(d) and K.S.A. 60–1507 motions are procedurally barred under different circumstances, Reed contends that the district court applied the wrong legal standard in interpreting his pro se motion solely as a motion to withdraw his plea. Reed argues that his motion should have been liberally construed as also invoking K.S.A. 60–1507. Had this happened, the district court would have been required to determine whether Reed's untimely claim could be brought under the manifest injustice exception in K.S.A. 60–1507(f)(2).
Under Kansas law, pro se pleadings are to be construed liberally. Kelly, 291 Kan. at 565. 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 request for DNA testing under K.S.A. 21–2512 ).
Reed's motion was titled “Motion to Withdraw Plea to Correct Manifest Injustice.” The motion alleged that Reed should be allowed to withdraw his pleas pursuant to K.S.A. 22–3210(d), which permits a postsentence plea withdrawal only to correct “manifest injustice.” The motion further cited the following factors that courts may consider in determining whether to grant a motion to withdraw a plea: “(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.” See State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010). To that end, Reed argued that (1) he had not been represented by competent counsel because his attorney had failed to file a motion to suppress evidence, (2) he was misled when his attorney advised that his pleas would not increase his criminal history score, and (3) his plea was not fairly and understandingly made based on counsel's actions and because the district court failed to obtain a factual basis to support his pleas or make a determination of guilt.
The substance of Reed's pleading is clearly that of a motion to withdraw his plea. The motion requests the withdrawal of Reed's pleas and specifically cites and applies rules and caselaw governing motions to withdraw pleas. There is no mention of K.S.A. 60–1507 or the rules governing such a motion. Although Reed's motion complains of his attorney's performance—a common issue raised in K.S.A. 60–1507 motions—whether plea counsel was ineffective is also relevant to determining whether a motion to withdraw a plea should be granted. “Liberal rules of construction cannot transform the reality of a pleading's content or the arguments being advanced, even when a litigant is pro se.” State v. Gilbert, 299 Kan. 797, 798, 326 P.3d 1060 (2014). Additionally, Reed did not argue the manifest injustice necessary to permit an untimely K.S.A. 60–1507 motion. “Manifest injustice” has been interpreted to mean “ “ ‘obviously unfair’ “ or “ ‘shocking to the conscience.’ “ “ State v. Holt, 298 Kan. 469, 480, 313 P.3d 826 (2013). In Holt, our Supreme Court held that the defendant failed to demonstrate he was entitled to the K.S.A. 60–1507(f) time extension because he did not point to any specific facts supporting his claim of manifest injustice and held the district court correctly declined to reach the merits of the claim. 298 Kan. at 481. Here, Reed did not assert manifest injustice in his motion, much less facts supporting such a contention. His failure to allege manifest injustice weighs against construing the motion as one falling under K.S.A. 60–1507 and also supports a conclusion that any K.S.A. 60–1507 argument was insufficiently raised to warrant review by the district court. See Gilbert, 299 Kan. at 803.
Given that the district court appropriately construed Reed's motion solely as a motion to withdraw his plea, we need only address whether the court correctly denied the motion as untimely. When a district court summarily denies a postsentence motion to withdraw a plea without argument or additional evidence, appellate review is de novo. This is because the appellate court has the same access to the motions, records, and files as the district court. State v. Fritz, 299 Kan. 153, 154–55, 321 P.3d 763 (2014).
As previously stated, the 1–year time limitation for filing a postsentence motion to withdraw plea may be extended only “upon an additional, affirmative showing of excusable neglect by the defendant.” K.S.A.2014 Supp. 22–3210(e)(2). While 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), rev. denied 301 Kan. –––– (March 12, 2015).
Reed argues that the circumstances surrounding his case demonstrate excusable neglect, namely, that during the time period when he could have filed a timely motion he was “embroiled in another, much more serious, criminal case.”
Reed's argument fails for multiple reasons. First, Reed did not raise this argument before the district court. Reed's motion did not acknowledge the untimely nature of his filing or otherwise offer any argument with respect to excusable neglect, even after the State asked the district court to deny the motion based on untimeliness. 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.” Wilkerson v. State, 38 Kan.App.2d 732, 734, 171 P.3d 671 (2007) ; State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014) (issues not raised before the district court cannot be raised on appeal). Although there are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, Reed's appellate brief does not acknowledge that his excusable neglect argument is being asserted for the first time on appeal or otherwise argue that an exception applies that would allow this court to consider his claim. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) requires an appellant to explain why an issue that was not raised below should be considered for the first time on appeal. Litigants who fail to comply with this rule risk a ruling that the issue is improperly briefed and will be deemed waived or abandoned. State v. Williams, 298 Kan. 1075, 1085–86, 319 P.3d 528 (2014) (cautioning future litigants to comply with Rule).
Second, Reed's argument ignores the relevant timelines in each of his cases. Reed was sentenced in the present case on December 3, 2009. He was not charged with attempted first-degree murder in case 10 CR 2939 until September 9, 2010. Reed offers no explanation for his failure to file his motion in the 9 months before he was charged in case 10 CR 2939. Further, Reed was sentenced in that case on September 26, 2011, and provides no excuse for why he waited 2 more years after that to file his motion. In any event, the fact that Reed was charged with, and convicted of, attempted first-degree murder does not meet the definition of excusable neglect as set forth above, and therefore, cannot be used as a justification for failing to file his motion in a timely manner.
Because Reed cannot meet the burden to show excusable neglect to allow the filing of his motion to withdraw his plea beyond the 1–year time limitation, the district court properly determined the motion was untimely.
Affirmed.