State v. Ellington

496 P.3d 536

STATE of Kansas, Appellee,

v.Andrew Wallace ELLINGTON, Appellant.

No. 123,145

Supreme Court of Kansas.

Opinion filed October 15, 2021.

Angela M. Davidson, of Wyatt & Davidson, LLC, of Salina, was on the brief for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by Stegall, J.:

Andrew Wallace Ellington seeks review of the district court's decision to deny as untimely his motion to withdraw his plea. We agree with the district court that Ellington has not demonstrated excusable neglect. On that basis, we affirm the district court's decision to deny Ellington's motion.

In 2014, the State charged Ellington with capital murder. After plea negotiations, Ellington pled no contest and was convicted by the district court of first-degree and second-degree murder. In August 2015, the district court sentenced Ellington to a hard 25 life sentence with an additional presumptive sentence of 155 months, to be served consecutively.

In June 2019, approximately four and a half years after being sentenced, Ellington moved to withdraw his no contest plea. The district court summarily denied Ellington's motion in June 2020, specifically finding that Ellington had failed to show the required excusable neglect to extend the one-year statute of limitations. Ellington filed this direct appeal that day under K.S.A. 2020 Supp. 22-3601(b)(3)-(4).

A defendant's right to withdraw a plea is governed by K.S.A. 2020 Supp. 22-3210. Under subsection (d)(2), "[t]o correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea."

Subsection (e)(1) acts as a statute of limitations, restricting a defendant's right to move for plea withdrawal by providing:

"Any action under subsection (d)(2) 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. 2020 Supp. 22-3210(e)(1).

The only exception to the one-year limitation period is found in subsection (e)(2) which provides that a court may extend the time "only upon an additional, affirmative showing of excusable neglect by the defendant." K.S.A. 2020 Supp. 22-3210(e)(2). Our recent decision in Davis clarifies the procedure Kansas courts must follow when applying this statute:

"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." State v. Davis , 313 Kan. 244, 248, 485 P.3d 174 (2021).

An appellate court will generally not disturb a district court's denial of a postsentence motion to withdraw plea absent an abuse of discretion. State v. Cott , 311 Kan. 498, 499, 464 P.3d 323 (2020). Judicial discretion is abused if the action is:

"(1) arbitrary, fanciful, or unreasonable, i.e. , no reasonable person would take the view adopted by the trial court; (2) based on an error of law, i.e. , the discretion is guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e. , substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based." State v. Davisson , 303 Kan. 1062, 1064-65, 370 P.3d 423 (2016) (citing State v. Beaman , 295 Kan. 853, 865, 286 P.3d 876 [2012] ).

Ellington filed his motion on June 15, 2019, nearly three years after the one-year limitation period had expired. Ellington asserts that his untimeliness was a product of excusable neglect and his motion should thus not be procedurally barred under Davis , 313 Kan. at 248, 485 P.3d 174. Ellington argues that the district court erred when it found he failed to show excusable neglect.

Before us, Ellington reprises the arguments made to the district court to show excusable neglect through the following factors: (1) he was not advised by counsel that he could move to withdraw his pleas; (2) he did not learn of the possibility of withdrawing his plea until he was in prison for a lengthy time, and he learned of the option from other inmates; (3) he was only 20 years old with no criminal history at the time of his plea; and (4) he had no knowledge of the criminal justice system.

We hold that the district court properly denied Ellington's motion, as each of the factors amount, at their core, to ignorance of the law. And we have previously held ignorance of the law, alone, cannot establish excusable neglect. Davisson , 303 Kan. at 1068-69, 370 P.3d 423.

" ‘Excusable neglect requires some justification for an error beyond mere carelessness or ignorance of the law on the part of the litigant or his attorney.’ " 303 Kan. at 1069, 370 P.3d 423. Though excusable neglect "resists clear definition and must be determined on a case by case basis," we have noted that excusable neglect " ‘implies something more than the unintentional inadvertence or neglect common to all who share the ordinary frailties of mankind.’ " State v. Hill , 311 Kan. 872, 878, 467 P.3d 473 (2020) ; Davisson , 303 Kan. at 1069, 370 P.3d 423.

Ellington's arguments have been advanced in prior cases, but never successfully. For example, in State v. Hodge , No. 116,644, 2017 WL 2709791 (Kan. App. 2017) (unpublished opinion), the Court of Appeals correctly applied Davisson and found no excusable neglect when the defendant's attorney failed to tell her of the one-year time limit. The court considered the defendant's lack of awareness as just a version of ignorance of the law. 2017 WL 2709791, at *2-3 ; see also State v. Edwards , No. 115,612, 2017 WL 4081449, at *3 (Kan. App. 2017) (unpublished opinion) (no excusable neglect based on defendant's alleged learning disability or his arguments that he did not know he could move to withdraw and his trial counsel did not inform him).

The fact that Ellington became aware of the possibility of withdrawing his plea later when in prison was considered by the Davisson court. In Davisson , the defendant testified he "did not know about the possibility of withdrawing his guilty plea until he overheard two other inmates discussing the topic," and though he had access to a staffed law library, he claimed the sources were inadequate, the process to obtain them was long, and that he had no access to an attorney or computerized legal research. 303 Kan. at 1063-64, 370 P.3d 423. We rejected these arguments and found Davisson had not established excusable neglect. The district court, properly relying on Davisson , concluded that on this point, Ellington failed to "overcome the requirement of some justification for an error beyond mere carelessness or ignorance of the law on the part of the litigant or his attorney."

We have previously declined to find excusable neglect even in more restrictive circumstances. For example in State v. Fox , 310 Kan. 939, 943-44, 453 P.3d 329 (2019), the defendant—acknowledging Davisson 's holding that ignorance is not a valid excuse—argued that...