Opinion
No. 110,777.
2014-10-31
STATE of Kansas, Appellee, v. Antonio TORO, Appellant.
Appeal from Seward District Court; Clint B. Peterson, Judge.Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Seward District Court; Clint B. Peterson, Judge.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ARNOLD–BURGER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Antonio Toro pled no contest to two counts of aggravated indecent liberties with a child and was sentenced to two consecutive 61–month sentences. More than 4 years after his sentencing, he moved to withdraw his pleas. The district court summarily denied his motion, and he now appeals. Because we find that Toro has failed to establish the manifest injustice necessary to withdraw his pleas after sentencing, we affirm the decision of the district court.
Factual and Procedural History
In November 2007, the State charged Toro with rape of a child under 14 years of age. Shortly thereafter, in February 2008, Toro agreed to plead to two counts of aggravated indecent liberties with a child in return for the State's dismissal of the rape charge. Due to Toro's limited knowledge of English, he spoke through an interpreter at the plea hearing. Toro showed some confusion in speaking through the interpreter but generally answered the district court's questions appropriately after some clarification. However, after pleading guilty, Toro struggled to provide a factual basis for the charges. Instead, Toro entered into a lengthy explanation regarding the series of events that led to the charges and ended by saying (per the interpreter), “The truth is, I don't know, because I was really, really drunk, and I'm only going by I was told that I did or that I can remember.' “
When the district court informed Toro that the guilty plea required that Toro himself provide a factual basis, Toro's attorney asked for a recess so he could inquire whether Toro would instead enter pleas of no contest. After the recess and more questioning from the district court, Toro indeed pled no contest to the two charges. The State then provided the factual basis for the offenses, including that Toro touched the minor victim sexually twice on the night in question. Neither Toro nor his attorney objected to the factual basis; in fact, when asked whether “two separate, distinct acts” occurred, Toro's attorney answered, “Yes, Your Honor.” The State and Toro's attorney also noted that Toro entered into the plea agreement to receive the benefit of the two reduced charges. The district court specifically inquired whether Toro understood and agreed with the factual basis, to which Toro answered, ‘ “Yes.* ” Accordingly, the district court found Toro guilty and convicted him of the two charges.
At sentencing in April 2008, Toro once again demonstrated some difficulty understanding the exact scope of the proceedings, as he questioned the district court about deportation during the portion of the hearing usually reserved for an allocution. He also requested to either be placed on probation or deported. However, Toro acknowledged that he understood that he had been convicted. Although Toro faced a presumptive sentence of life in prison without the possibility of parole for 25 years on each charge, the district court granted a durational departure from the presumptive sentences. See K.S.A. 21–4643(a)(1)(C). The district court sentenced Toro to 61 months' imprisonment for each offense, with the sentences to run consecutively.
In July 2012, more than 4 years after Toro's sentencing, Toro filed a motion to correct an illegal sentence with the district court. Although that motion is not in the record on appeal, Toro's second motion, titled “Motion to Construe Motion to Correct Illegal Sentence as Motion to Withdraw Plea” and filed in October 2012, is included. In that motion, Toro essentially abandoned the first motion and instead alleged that his convictions violated double jeopardy principles as the amended complaint constituted a “carbon-copy indictment.” Toro further claimed excusable neglect in not filing his motion to withdraw plea within the statutory time limits, alleging that he “[cannot] read or write English and his knowledge and ability to understand the law is a severe disadvantage .”
The district court reviewed the motions, determined that Toro alleged no grounds for which he was entitled relief, and summarily denied them both. Toro timely appealed.
Analysis
After sentencing, a district court may set aside a conviction and permit a defendant to withdraw his or her plea only to correct manifest injustice. K.S.A.2013 Supp. 22–3210(d)(2). Generally, an appellate court will not disturb a district court's denial of such a postsentence motion absent an abuse of discretion. State v. Moses, 296 Kan. 1126, 1127, 297 P.3d 1174 (2013). However, when a district court summarily denies a postsentence motion to withdraw a plea without argument or additional evidence, appellate review is de novo because the appellate court has the same access to the motion, records, and files as the district court. 296 Kan. 1126, Syl. ¶ 1.
A postsentence motion to withdraw a plea must be filed within 1 year of either the “[t]he 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 “the denial of a petition for a writ of certiorari to the United States supreme court” or that Court's final order after granting certiorari. K.S.A.2013 Supp. 22–3210(e)(1). This time limit may be extended “upon an additional, affirmative showing of excusable neglect by the defendant.” K.S.A.2013 Supp. 22–3210(e)(2). If the defendant makes no attempt at such an affirmative showing, the appellate court will find the motion untimely and procedurally barred. See 296 Kan. at 1128.
Because the 1–year time limit began to run on April 16, 2009, for any preexisting claims, Toro's motion was untimely by approximately 2 1/2 years. See 296 Kan. 1126, Syl. ¶ 3. Toro contends that this delay is excusable because his limited mastery of the English language severely disadvantaged him. But because the district court simply dismissed the motion as meritless, it never ruled on the timeliness of the motion or Toro's excusable neglect argument. The record on appeal certainly suggests that Toro struggled with English and understanding his interpreter, making it possible that excusable neglect exists. Accordingly, we will assume that the delay was excusable for purposes of our analysis.
In his motion, Toro contends that his pleas must be withdrawn because the charges against him violated double jeopardy. Specifically, he contends that the amended complaint—which uses the exact same language to allege the two separate incidents of aggravated indecent liberties—charges him twice for the same act. But this argument fails on two grounds. First, our Kansas statutes clearly provide that
“[a] plea of guilty or a consent to trial upon a complaint ... shall constitute a waiver of defenses and objections based upon the institution of the prosecution or defects in the compiaint ... other than it fails to show jurisdiction in the court or to charge a crime.” K.S.A. 22–3208(4).
Generally, a plea of no contest is only distinguishable from a guilty plea in that the former “ ‘may not be used as an admission in any other action based on the same act.’ “ State v. Todd, 262 Kan. 916, 925, 941 P.2d 1374 (1997). Accordingly, like with a guilty plea, a defendant who pleads no contest waives nonjurisdictional defenses but maintains those which are jurisdictional. See State v. Browning, 245 Kan. 26, 27, 774 P.2d 935 (1989). Double jeopardy and multiplicity are both nonjurisdictional defects. State v. Edwards, 281 Kan. 1334, 1341, 135 P.3d 1251 (2006). By this logic, Toro cannot now allege manifest injustice due to double jeopardy because he waived that defense by pleading no contest.
Second, the factual basis for Toro's no contest pleas clearly stated that Toro touched his minor victim sexually twice on the night in question. Toro's attorney agreed that “two separate, distinct acts” occurred. Moreover, the district court specifically asked Toro whether he understood and agreed with the factual basis, and Toro expressed that he did. Because a party cannot invite error and then complain of the error on appeal, Toro cannot now argue that the amended complaint charged him twice for the same act when he agreed that two separate acts occurred. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011).
On appeal, Toro appears to recognize that the allegation of double jeopardy alone cannot sustain his motion to withdraw his pleas. Unlike in his motion before the district court, his appellate brief argues that the pleas were not knowingly and understandingly made because “he did not believe there was more than one act during the alleged incident” and because his limited knowledge of the English language interfered with his ability to understand the proceedings against him. He also now contends that his attorney was ineffective because he “usurped [Toro's] power to decide whether to plead guilty or go to trial” by encouraging him to change his plea. We pause to note that Toro's inability to communicate in English was cited in his motion but only for the proposition that it was evidence to support a finding of excusable neglect to allow the motion to be filed out of time. So, in short, Toro's appellate brief raises entirely new grounds for withdrawing his pleas than those presented to the district court.
As a general rule, an appellant may not assert a new legal theory for the first time on appeal. State v. Anderson, 294 Kan. 450, 464–65, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012). Although Toro's broadest theory of relief—that is, the argument that he is entitled to withdraw his pleas—remains the same, his appellate brief moves far beyond his singular double jeopardy allegation and focuses on (1) whether he knowingly and understandingly entered into the plea and (2) whether his trial counsel represented him effectively or misled him into a plea he did not desire. These are not the issues the district court considered in summarily dismissing Toro's motion. Moreover, Toro offers no explanation as to why he failed to raise these issues before the district court as required by Supreme Court Rule 6.02(a)(5) (2013 Kan. Ct. R. Annot. 39).
As Toro notes on appeal, the issues presented in his brief raise issues that likely would require an evidentiary hearing. However, these issues were never brought before the district court as Toro failed to raise them in his initial motion. And although pro se pleadings are to be liberally construed, his appellate issues are not even tangentially raised in his motion before the district court. See State v. Kelly, 291 Kan. 563, Syl. ¶ 1, 244 P.3d 639 (2010) (liberal construction gives effect to “pleading's content rather than the labels and forms used to articulate the arguments”).
In sum, the record demonstrates that under the grounds alleged in his motion, Toro is not entitled to withdraw his pleas. He waived all nonjurisdictional defects, including double jeopardy, by entering those pleas, and he invited any error that may have occurred. As such, he cannot now allege manifest injustice on those grounds. Accordingly, we affirm the district court's summary denial of Toro's motion to withdraw his plea.
Affirmed.