State v. Louis

59 Kan.App.2d 14

476 P.3d 837

STATE of Kansas, Appellee,

v.Caesar K. LOUIS, Appellant.

No. 121,572

Court of Appeals of Kansas.

Opinion filed October 23, 2020

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Malone, P.J., Buser and Powell, JJ.

Powell, J.:

Caesar K. Louis appeals the district court's summary denial of his second motion to withdraw plea. He claims the district court erred by not conducting an evidentiary hearing to determine whether excusable neglect justified the untimely filing of his motion. He also asserts, for the first time, that we should remand his case to the district court so it may determine if his prior 2009 conviction for criminal threat was wrongly included in his criminal history. Louis claims the presentence investigation (PSI) report is unclear as to whether this prior conviction was for reckless criminal threat, which has been declared unconstitutional by the Kansas Supreme Court in State v. Boettger , 310 Kan. 800, 450 P.3d 805 (2019), cert. denied ––– U.S. ––––, 140 S. Ct. 1956, 207 L.Ed.2d 1089 (2020). If so, Louis argues it was wrongly included in his criminal history, making his criminal history score incorrect and his sentence illegal.

After a careful review of the record, we conclude Louis fails to establish the requisite excusable neglect necessary to justify the untimely filing of his second motion to withdraw plea. Alternatively, we find no merit to his claim that his plea was not knowingly and understandably made. As to his allegation that his sentence is illegal, we hold Louis' sentence is not illegal because reckless criminal threat had not yet been declared unconstitutional by our Supreme Court at the time he was sentenced or before his sentence became final. Thus, this prior conviction was properly included in his criminal history and his sentence is not illegal. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

As part of a plea deal with the State, Louis pled guilty to a reduced charge of second-degree murder, aggravated burglary, and aggravated robbery. In his acknowledgement of rights and entry of plea, Louis said he knew of no reason his mental competence should be questioned. Louis listed that he was taking a drug called Haldol. When asked by the district court at the plea hearing, Louis explained Haldol helped him focus and kept his thoughts from racing. The medicine did not affect Louis' ability to understand his rights or comprehend his plea. The district court accepted Louis' plea and found him guilty.

Louis' PSI report included in his criminal history a prior 2009 conviction for criminal threat and calculated his criminal history score as C. On October 22, 2013, the district court sentenced Louis to a presumptive prison term of 345 months' imprisonment.

Louis appealed his sentence, and the Kansas Supreme Court summarily affirmed his presumptive sentence and dismissed his appeal. The mandate was issued on December 3, 2014.

On November 23, 2015, Louis filed a pro se motion to withdraw his guilty plea. Among other things, Louis claimed that Haldol impaired his mental faculties and rendered him incompetent, causing him not to knowingly and voluntarily enter his plea because he did not fully comprehend his circumstances and the consequences of his plea. Counsel was appointed to represent Louis at the plea withdrawal hearing.

At the hearing on his motion, Louis' counsel tried to raise a claim that plea counsel had been ineffective, but the State objected on the grounds that claim had not been included in Louis' original motion and was time barred. The district court agreed and refused to consider it.

Louis testified his plea counsel told him he would be convicted of first-degree murder if he did not plea and claimed plea counsel did not know how to defend him. Louis admitted he told the district court that Haldol did not affect his ability to understand his rights or aid in his defense. Louis testified that when he arrived at the El Dorado Correctional Facility, the medication was ended. Louis felt like he was waking up from a haze and was shocked his sentence was longer than what he believed he had received.

Dr. Katherine Girrens testified she prescribed Haldol to Louis because she believed he had episodic agitation and Haldol had low side effects. Dr. Girrens prescribed 1 mg out of a maximum dose of 100 mg.

Louis' plea counsel testified Haldol made Louis calmer and more focused. Plea counsel informed Louis that Louis' concession he was present at the house where the aggravated robbery and aggravated burglary took place would make it hard to avoid a felony murder conviction.

The district court denied Louis' plea withdrawal motion, finding Louis fairly, understandingly, knowingly, and voluntarily entered his guilty plea. The district court also found, despite its refusal to consider Louis' ineffective assistance of counsel claim, the evidence presented at the hearing did not establish plea counsel had been ineffective.

On March 25, 2019, Louis filed a second pro se motion to withdraw his plea. Louis again asserted his plea had not been knowingly made because he was suffering from a mental disorder and had been under the influence of psychotropic drugs. Louis further claimed his plea counsel had been ineffective for not developing a mental defect defense, not investigating his mental disorder, and not calling an expert witness vital to Louis' defense. Finally, Louis argued the trial court should have granted his earlier motion for new counsel due to conflict of interest. The district court summarily denied Louis motion, finding it had failed to present a substantial question of law or fact, was time barred, and was an abuse of remedy.

Louis timely appeals.

I. DID THE DISTRICT COURT ERR IN SUMMARILY DENYING LOUIS' PLEA WITHDRAWAL MOTION ?

Louis argues the district court erred in summarily denying his second plea withdrawal motion and asserts a hearing should have held because his allegations of ineffective assistance of counsel required evidence to prove if they were true or false. Louis also argues the district court erred in finding his motion was time barred instead of analyzing the timeliness of his motion under the proper standard of excusable neglect. Finally, Louis claims his filing of successive motions was not an abuse of remedy because exceptional circumstances justified filing a second motion.

Standard of Review

When a district court summarily denies a defendant's postsentence plea withdrawal motion, we exercise de novo review because we " ‘have the same access to the motion, records, and files as the district court.’ Like the district court, we must determine whether [the] ‘motion, records, and files conclusively show that [the defendant] is entitled to no relief.’ [Citations omitted.]" State v. Moses , 296 Kan. 1126, 1128, 297 P.3d 1174 (2013).

Analysis

Postsentencing, a district court may set aside a conviction and allow a defendant to withdraw a plea to correct manifest injustice.

K.S.A. 2019 Supp. 22-3210(d)(2). A defendant must bring a postsentencing motion to withdraw plea within one year after the termination of appellate jurisdiction of the defendant's direct appeal. K.S.A. 2019 Supp. 22-3210(e)(1). This time limit may be extended "only upon an additional, affirmative showing of excusable neglect by the defendant." K.S.A. 2019 Supp. 22-3210(e)(2).

Louis' direct appeal ended on November 4, 2014, and the mandate was issued December 3, 2014. He filed his first plea withdrawal motion on November 23, 2015. This motion was timely, but after a hearing the district court denied it, and Louis did not appeal the district court's adverse ruling. Louis then filed his current motion to withdraw plea, his second, on March 25, 2019. Louis admits his motion falls well outside of the one-year time limit. Given the untimeliness of Louis' second motion, he was required to make an "affirmative showing of excusable neglect." See K.S.A 2019 Supp. 22-3210(e)(2).

"Excusable neglect requires ‘something more than unintentional inadvertence or neglect common to all who share the ordinary frailties of mankind.’ Montez v. Tonkawa Village Apartments , 215 Kan. 59, 65, 523 P.2d 351 (1974)." State v. Gonzalez , 56 Kan. App. 2d 1225, 1229, 444 P.3d 362 (2019), rev. denied 311 Kan. –––– (February 27, 2020). The Gonzalez panel relied on Black's Law Dictionary to define 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 par[t]y'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)." 56 Kan. App. 2d at 1229-30, 444 P.3d 362.

" ‘[I]gnorance of the [law] does not constitute excusable neglect ....’ " State v. Davisson , 303 Kan. 1062, 1069, 370 P.3d 423 (2016).

Unfortunately for Louis, his second and untimely motion to withdraw plea stumbles out of the gate because his motion makes no claim about why excusable neglect existed. His brief also makes no attempt to show excusable neglect. Louis acknowledges that unpublished opinions issued by other panels of our court have held summary denial is appropriate when a plea withdrawal motion does not raise an additional, affirmative showing of excusable neglect. See State v. Marshall , No. 112,875, 2016 WL 197744, at *4 (Kan. App. 2016) (unpublished opinion); State v. Baker , No. 106,171, 2012 WL 5392094, at *2 (Kan. App. 2012) (unpublished opinion). But Louis argues those cases were based on a misinterpretation of State v. Jackson , 255 Kan. 455, 874 P.2d 1138 (1994).

According to Louis, Jackson did not examine the excusable neglect...