Opinion
111,830.
08-14-2015
STATE of Kansas, Appellee, v. James Leon MILLER, Appellant.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Kayla Roehler, legal intern, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant district attorney, Kayla Roehler, legal intern, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
James Leon Miller appeals the district court's denial of his untimely postsentence motion to withdraw his plea approximately 18 months after his sentencing on March 22, 2011. We find no abuse of discretion by the district court and affirm.
Facts
On October 19, 2009, Miller was charged with one count of rape of a child under the age of 14, two counts of aggravated criminal sodomy with a child under the age of 14, two counts of aggravated indecent liberties with a child under the age of 14, and one count of aggravated sexual battery. The affidavit in support of the complaint was based on reports made to the Department for Children and Families Services by K.M. and her sister A.M. alleging sexual abuse by their father, Miller. The affidavit also described abuse to their mother. The report alleged Miller would draw the mother's blood with a hypodermic needle and catheterize her against her will for his sexual gratification.
Pursuant to plea negotiations, the State agreed to dismiss all remaining counts in this case and in a companion case if Miller pled guilty to the amended charges of one count of aggravated indecent liberties with a child, one count of aggravated indecent solicitation with a child, and one count of aggravated sexual battery. The plea agreement provided the parties would jointly recommend to the district court the aggravated sentence under the sentencing guidelines of 247 months' imprisonment. Miller would also agree to not seek a departure sentence. Finally, the agreement provided the State would recommend the 3 sentences run concurrently subject to 36 months' postrelease supervision.
Prior to sentencing on March 22, 2011, the district court disclosed to the State and Miller there was an inconsistency between the written plea agreement and the sentence the district court was required to impose by statute. The statute required lifetime postrelease supervision, not the 36 months contained in the plea agreement. Miller's attorney informed the district court he had explained to Miller that he had two choices upon learning of the discrepancy: (1) He could go forward with the plea or (2) he could file a motion to withdrawal his plea. Miller decided to go forward with the plea. The district court verified and confirmed on the record Miller still wanted to go forward with the plea agreement despite being subject to lifetime postrelease supervision. At sentencing, the district court found Miller had a criminal history score of A. Miller was sentenced pursuant to the plea agreement to a total term of 247 months' imprisonment and the statutorily-required lifetime postrelease supervision. Miller did not appeal his guilty plea or sentence.
Beginning in August 2011, Miller began making numerous pro se filings in the district court attempting to obtain the medical reports and school records of his alleged victims and other documents filed related to his case. On August 2, 2012, the district court sent Miller a response to his pro se filings informing him that any direct appeal of his case was untimely. The district court also informed Miller that because he had not filed a motion under K.S.A. 60–1507, which the district court also noted might be untimely, any request for discovery was premature.
Following the district court's letter, Miller ceased his pro se filings until August 5, 2013, when he requested transcripts for “a pending motion that [he would] be filing soon.” On September 12, 2013, Miller filed a pro se motion to withdraw his guilty plea. In the motion, Miller acknowledged the i-year statute of limitations, but argued the statute should not apply because the law in place at the time of his sentencing did not contain a 1–year statute of limitations. In response, the State argued that Miller's motion failed to show or proffer any “excusable neglect” which is required for the district court to extend the 1–year deadline under K.S.A.2014 Supp. 22–3210(e).
On January 7, 2014, the district court summarily denied Miller's postsentence motion to withdraw his plea without appointing counsel or conducting an evidentiary hearing. The district court found the motion was untimely and that Miller had failed to allege excusable neglect. Miller timely appeals.
Analysis
On appeal, Miller argues the district court erred when it summarily denied his pro se postsentence motion to withdraw his plea without holding an evidentiary hearing because “[he] provided a sufficient factual basis for excusable neglect in filing his motion out of time.”
“An appellate court generally reviews the denial of a motion to withdraw a plea for abuse of discretion. The defendant has the burden of proving abuse of discretion. State v. Macias–Medina, 293 Kan. 833, 836, 268 P.3d 1201 (2012). When a motion to withdraw a plea is summarily denied without argument and additional evidence, this court applies the same procedures and standards of review as in cases arising out of K.S.A. 60–1507. This court exercises de novo review because it has the same access to the motion, records, and files as the district court, and it determines whether the motion, records, and files conclusively show that the defendant is entitled to no relief. State v. Moses, 296 Kan. 1126, 1127–28, 297 P.3d 1174 (2013).” State v. Fritz, 299 Kan. 153, 154–55, 321 P.3d 763 (2014).
K.S.A.2014 Supp. 22–3210(d)(2) provides that “[t]o correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea .” However, the motion to withdraw the plea
“must be brought within one 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 supreme court or issuance of such court's final order following the granting of such petition.” K.S.A.2014 Supp. 22–3210(e)(l).
This 1–year limitation was added to the statute in 2009. In State v. Szczygiel, 294 Kan. 642, 644, 279 P.3d 700 (2012), the Kansas Supreme Court held that the 1–year limitation found in K.S.A.2014 Supp. 22–3210(e)(1) began to run for preexisting claims on the date the amendment to the statute became effective—April 16, 2009. See State v. Moses, 296 Kan. 1126, 1128, 297 P.3d 1174 (2013).
In his motion to withdraw his plea filed in district court, Miller argued that because his alleged offenses occurred on May 1, 2007, the statutory amendments adding the 1–year limitation on filing a motion to withdraw his plea should not apply. Miller continues this argument on appeal. The Kansas Supreme Court has clearly held that the 2009 amendment to the statute was effective as of April 16, 2009. Miller was sentenced on March 22, 2011. He did not pursue a direct appeal. He had until April 5, 2012, to file his motion to withdraw his plea. Miller did not file his pro se postsentence motion to withdraw his plea until September 12, 2013, more than 5 months past the 1–year statute of limitations. The district court did not err in finding Miller's motion untimely.
Despite Miller's motion being untimely, K.S.A.2014 Supp. 22–3210(e)(2) provides that the time limitation may be extended by the court upon an affirmative showing of excusable neglect by the defendant. Where a defendant makes no attempt at an affirmative showing of excusable neglect, an appellate court will find the motion untimely and procedurally barred. See Moses, 296 Kan. at 1128.
In his motion, Miller sought to withdraw his plea because it:
“(a) [was] fatally defective; (b) was not entered knowingly or willingly; (c) [w]as entered without a factual basis; (d) required him to unduly waive many of his constitutional rights; (e) was entered under duress; (f) was coerced by his defense counsel, James Chappas; [and] (g) was a product of a combination of circumstances and mental deficiencies.”
Miller's motion fails to make an affirmative showing of excusable neglect. On appeal, Miller acknowledges he failed to show or proffer excusable neglect in his pro se motion to withdraw his plea; however, he argues his trial counsel's failures constituted ‘manifest injustice’ and support a finding of excusable neglect when coupled with his lack of legal knowledge about the statute of limitations. He also claims the district court should have informed him of the statute of limitations when it received his pro se filings in August 2011, 5 months after sentencing and clearly within the 1–year statute of limitations.
Miller provides no case authority to support his contentions to boost him over the legal threshold required for excusable neglect. With no authority provided by Miller, we turn to another panel of this court's definition of excusable neglect. That panel relied on Black's Law Dictionary and held that its definition of excusable neglect is consistent with Kansas caselaw. State v. Phol, No. 109,964, 2014 WL 2225354 (Kan.App.2014) (unpublished opinion), rev. denied –––Kan.––––(May 12, 2015). Black's Law Dictionary defines excusable neglect as:
“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 parry'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).
In addition, the statute
“require[s] a showing of both excusable neglect for not filing the motion within the 1–year time limitation and a showing of manifest injustice if the plea is not withdrawn. The statute is clear in this respect—the defendant must make ‘an additional, affirmative showing of excusable neglect.’ (Emphasis added.) K.S.A.2012 Supp. 22–3210(e)(2).” Phol, 2014 WL 2225354, at *2.
Miller's excuses clearly fall short of the standard required for a court to entertain his untimely motion. It is not enough to allege the errors made by his trial counsel constituted manifest injustice, his untimely motion to withdraw his plea had to show both excusable neglect and manifest injustice. Miller cannot blame the district court for his untimely motion as it was not the district court's responsibility to advise him about the statute of limitations. It was Miller's duty to meet the statutory deadlines and his failure to meet the statutory time limits was not because of some unexpected or unavoidable hindrance. The district court did not abuse its discretion in summarily denying Miller's pro se postsentence motion to withdraw his plea. “Discretion is abused only when no reasonable person would take the view adopted by the district court. The defendant bears the burden of establishing such an abuse of discretion. State v. Sanchez–Cazares, 276 Kan. 451, 454, 78 P.3d 55 (2003) (citing State v. Bey, 270 Kan. 544, 545–46, 17 P.3d 322 [2001] ).” Moses, 280 Kan. at 945.
Given our determination that Miller has failed to show excusable neglect or manifest injustice supporting reversal of the district court's summary denial of his pro se postsentence motion, we decline to addre ss the merits of his motion.
Affirmed.