IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 121,054
STATE OF KANSAS,
Appellee,
v.
LEE DAVIS IV,
Appellant.
SYLLABUS BY THE COURT
A showing of manifest injustice is not a condition precedent to a finding of
excusable neglect. If a motion to withdraw a plea is filed outside the one-year time
limitation, courts must decide whether a defendant has shown excusable neglect before
reaching the question of whether manifest injustice requires that a defendant be permitted
to withdraw a plea.
Review of the judgment of the Court of Appeals in an unpublished opinion filed May 1, 2020.
Appeal from Brown District Court; JOHN L. WEINGART, judge. Opinion filed April 23, 2021. Judgment of
the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
Caroline M. Zuschek, of Kansas Appellate Defender Office, was on the brief for appellant.
Kevin M. Hill, county attorney, and Derek Schmidt, attorney general, were on the brief for
appellee.
The opinion of the court was delivered by
STEGALL, J.: Lee Davis IV seeks review of the Court of Appeals' decision
affirming the district court's denial of his motion to withdraw his plea as untimely.
1
Although we agree the Court of Appeals erred when it held a showing of manifest
injustice is a condition precedent to a finding of excusable neglect, we hold this error was
harmless and affirm the panel below because the district court denied his motion to
withdraw his plea on its merits and Davis fails to argue the district court erred when it did
so.
The State charged Davis with first-degree murder and child abuse for allegedly
beating his four-year-old son to death. Pursuant to an agreement, the State amended the
complaint and charged Davis with one count of second-degree murder and one count of
child abuse and Davis pled no contest to the amended charges on April 29, 2013. The
State anticipated Davis' criminal history score would be D for sentencing purposes and
the agreement Davis signed stated, "In the event that the defendant's prior criminal
history does not qualify him for the 'D' box, then the County Attorney shall charge the
defendant with another crime which will place the defendant in the 'D' box and the
defendant agrees to plea either guilty or no contest to said charge." Under the agreement,
Davis consented to register as a violent offender for 15 years and to testify against
potential codefendants. In a hand-written provision, Davis waived his right to appeal his
"conviction[s] and sentence[s]," provided the sentences were within the presumptive
guidelines.
The State later charged Davis with misdemeanor battery in a separate case. He
pled no contest in both cases on the same day. At the plea hearing, Davis assured the
district court he pled knowingly, intelligently, and with full knowledge of the plea
agreement's consequences. The district court asked Davis whether he had sufficient time
to review the plea agreement's hand-written amendments—including Davis' waiver of his
right to appeal:
2
"THE COURT: And it also indicates that you'll waive the right to appeal your
conviction provided the sentence is within sentencing guidelines; is that correct?
"[DAVIS:] Yes.
"THE COURT: And that is in paragraph it looks like addendum to paragraph
6e—
"[DAVIS:] Yes.
"THE COURT: —of the agreement. Do you understand that waiving your right
to appeal means that whatever happens happens?
"[DAVIS:] Yes.
"THE COURT: Okay. Did you have a chance to visit with Mr. Kraushaar about
the contents of this document?
"[DAVIS:] Yes.
"THE COURT: Did you sign it?
"[DAVIS:] Yes."
Davis' criminal history was scored as D, and the district court sentenced Davis to
consecutive sentences of 200 months' imprisonment for second-degree murder and 34
months for abuse of a child.
Four years later, in January 2017, Davis filed a pro se K.S.A. 60-1507 motion
attacking his convictions. The district court appointed counsel to represent Davis, and in
July 2017, Davis' counsel moved to withdraw Davis' plea. Davis claimed excusable
neglect for his out-of-time request to withdraw his plea made more than one year after
3
conviction. Specifically, Davis said he had not received the plea hearing transcript until
2017 and believed the plea agreement waiver of his right to appeal his convictions and
sentencing also applied to any collateral attack. The district court heard oral arguments on
Davis' motion to withdraw plea and later denied the motion in a memorandum opinion.
Davis appealed, arguing the district court erred when it denied his motion to withdraw his
plea as untimely.
The Court of Appeals affirmed the district court, explaining first:
"Davis argues the plain language of K.S.A. 2019 Supp. 22-3210(e)(1) does not
limit the time a defendant has to file a postsentencing plea withdrawal motion when the
defendant failed to file a direct appeal. Davis claims the clock never started to run on his
motion because he never filed an appeal.
"Appellate jurisdiction must be invoked within 14 days after the judgment of the
district court. K.S.A. 2019 Supp. 22-3608(c); see Scaife v. State, 51 Kan. App. 2d 577,
581,
350 P.3d 1 (2015) (party has 14 days to perfect appeal). Once 14 days pass,
appellate jurisdiction is terminated.
"K.S.A. 2019 Supp. 22-3210(d)(2) permits a defendant to file a postsentencing
plea withdrawal motion to correct manifest injustice. That motion
'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 the
issuance of such court's final order following the granting of such
petition.' K.S.A. 2019 Supp. 22-3210(e)(1).
"A district court may extend the time limit 'only upon an additional, affirmative
showing of excusable neglect by the defendant.' K.S.A. 2019 Supp. 22-3210(e)(2).
Because Davis did not file a direct appeal, he argues there was never any appellate
4
jurisdiction to terminate. Davis asserts that if the Legislature wanted the one-year time
limit to apply to defendants who did not directly appeal, then it could have specifically
said so in K.S.A. 2019 Supp. 22-3210(e)(1).
....
". . . K.S.A. 2019 Supp. 22-3608(c) plainly states the time to appeal expires after
14 days. K.S.A. 2019 Supp. 22-3210(e)(1) plainly states the one-year time limit for plea
withdrawal motions begins to run upon the expiration of the time to appeal. Accordingly,
the wording of these statutes demonstrates the Legislature's desire to place a one-year
time limit on a defendant's ability to withdraw a plea. Davis' effort to create an exception
to that rule for defendants who either intentionally chose not to file an appeal or
negligently did not appeal runs contrary to the legislative intent as expressed in the
language of these statutes. Davis' suggestion that there be no time limit in instances
where a defendant fails to file an appeal would create a loophole so large as to effectively
allow all defendants to escape the consequence for not timely filing a direct appeal
contrary to plain language of K.S.A. 2019 Supp. 22-3210(e)(1) and K.S.A. 2019 Supp.
22-3608(c).
"Accordingly, we hold Davis had one year from the date his appeal rights expired
to file his motion to withdraw plea. Because he filed his motion more than three years
after that date, his motion was untimely." State v. Davis, No. 121,054, 2020 WL
2089612, at *2-4 (Kan. App. 2020) (unpublished opinion).
On review before us, Davis reprises these arguments. But we find no error in the
Court of Appeals reasoning and holding as set forth above. The procedural time
limitation of K.S.A. 2019 Supp. 22-3210(e)(1) does apply to Davis' motion, and we
affirm the Court of Appeals on this point.
5
The Court of Appeals then went on to analyze whether Davis had shown sufficient
excusable neglect to justify filing out of time:
"K.S.A. 2019 Supp. 22-3210(e)(2) allows a district court to extend the one-year
time limit 'only upon an additional, affirmative showing of excusable neglect by the
defendant.'
"The district held a hearing on Davis' motion to withdraw his plea, and both sides
argued whether excusable neglect existed to allow Davis to file his motion out of time.
After hearing argument, the district court took the issue under advisement. The district
court subsequently issued a written memorandum decision in which it did not discuss
excusable neglect. Instead, the district court dismissed Davis' motion as untimely because
Davis was always represented by competent counsel, informed of his right to appeal, and
agreed not to appeal.
"Even though the district court did not make a specific finding on the existence
of excusable neglect, the law likely does not require the district court to do so. . . .
"In its memorandum opinion, the district court addressed the merits of Davis'
motion. . . . Although the district court used the words manifest injustice, it found Davis'
claims lacked merit because he had been represented by competent counsel, had been
informed of his right to appeal, and had agreed not to appeal. . . . Therefore, Davis did not
show manifest injustice and, as a result, did not satisfy the condition precedent to
excusable neglect. We hold the district court applied the appropriate standard to Davis'
plea withdrawal motion." 2020 WL 2089612, at *4.
Davis now contends the Court of Appeals erred when it held that a showing of
manifest injustice is a "condition precedent" to a finding of excusable neglect. On this
point of law, Davis is correct. As our colleague and then-Judge Standridge explained in a
different Court of Appeals opinion:
6
"A motion to withdraw a guilty plea filed after sentencing is subject to a manifest
injustice standard. K.S.A. 2017 Supp. 22-3210(d)(2). When the defendant files such a
motion, the substantive issue for decision by the court is whether the defendant has
shown that permitting him or her to withdraw a guilty plea after sentencing is necessary
to correct a manifest injustice.
"In 2009, our Legislature imposed a one-year procedural deadline before which
defendants must file any substantive motion to withdraw a guilty plea after sentencing.
L. 2009, ch. 61, § 1. Specifically, K.S.A. 2017 Supp. 22-3210(e)(1) provides that any
action under subsection (d)(2) to withdraw a plea after sentencing must be brought within
1 year of '[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 writ of certiorari to the United States supreme court or issuance of such
court's final order following the granting of such petition.' Pursuant to subsection (e)(2),
however, this procedural time limit may be extended by the court only if the defendant
makes an affirmative showing of excusable neglect. If the defendant fails to make the
necessary showing of excusable neglect, the motion is rendered untimely and will be
procedurally barred without consideration of any alleged substantive merit. State v.
Williams, 303 Kan. 605, 608,
366 P.3d 1101 (2016)." State v. Cortez-Dorado, No.
118,683, 2018 WL 6580091, at *3 (Kan. App. 2018) (unpublished opinion) (Standridge,
J., concurring).
We agree. The lower courts essentially got the relationship between excusable
neglect and manifest injustice backwards. Excusable neglect is a procedural standard that
permits a defendant to seek to withdraw a plea out of time. Manifest injustice is the
substantive standard used to determine whether a motion to withdraw a plea should be
granted or denied. The procedural timeliness fork-in-the-road comes first along this
particular analytical path. In other words, if a motion to withdraw a plea is filed outside
the one-year time limitation, courts must decide whether a defendant has shown
excusable neglect before reaching the question of whether manifest injustice requires that
a defendant be permitted to withdraw a plea.
7
The lower court errors, however, are harmless. Davis concedes the district court
denied his motion on its merits. And he fails to argue that the district court erred when it
denied his motion on the merits. Issues not briefed are deemed waived or abandoned.
State v. Arnett, 307 Kan. 648, 650,
413 P.3d 787 (2018). With an unchallenged lower
court ruling on the merits, any legal error putting the substantive cart before the
procedural horse is rendered harmless.
Affirmed.
8
