State v. Keltner

Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.
Krystal L. Vokins, of Cornwell & Vokins, of Olathe, for appellant. Sheryl L. Lidtke, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.

Eugene Keltner appeals the district court's decision to deny Keltner's postsentence motion to withdraw plea. We affirm the district court's decision for two reasons. First, Keltner's postsentence motion to withdraw plea was not timely filed, and Keltner failed to establish excusable neglect to extend the statutory deadline. Second, even if we were to overlook the untimely filing, Keltner has failed to establish that the district court abused its discretion in denying the motion.

This appeal involves two separate district court cases that were consolidated for purposes of plea and sentencing, which also have been consolidated for this appeal. The material facts were summarized by this court in an opinion issued in Keltner's direct appeal, State v. Keltner, No. 95,754, 2007 WL 881953, at *1 (Kan.App.2007) (unpublished opinion) ( Keltner I ):

“The State charged Keltner with one count of aggravated robbery and one count of first-degree murder. Keltner entered a plea agreement with the State, in which he agreed to plead guilty to one count of aggravated robbery and one count of involuntary manslaughter. Both parties also agreed to recommend consecutive sentences, to recommend the standard sentence for each charge, and to resolve both cases prior to disposition of a third case.

“Before accepting Keltner's guilty plea, the district court informed Keltner of the rights he waived by pleading guilty to the amended charges. The court further informed Keltner that the maximum possible punishment for aggravated robbery was 247 months in prison and/or a $300,000 fine, and the maximum punishment for involuntary manslaughter was 136 months in prison and/or a $300,000 fine. Keltner responded negatively to the court's inquiry as to whether anyone promised, suggested, or predicted Keltner would receive a light sentence, probation, or any other form of leniency in exchange for his guilty plea. Finally, Keltner articulated facts to support a guilty plea for both charges, and the State described the facts it would prove if the case proceeded to trial.

“At the time of the plea agreement, both parties believed Keltner's prior conviction for furnishing alcohol to a minor was a nonperson misdemeanor and, therefore, believed Keltner's criminal history score was a C. With a criminal history of C, Keltner would have been subjected to a maximum of 107 months in prison for aggravated robbery and 60 months in prison for involuntary manslaughter, or a total of 167 months' imprisonment. See K.S.A.2004 Supp. 21–4704(a).

“On the day of sentencing, however, the State advised defense counsel that Keltner's conviction for furnishing alcohol to a minor might be a person misdemeanor. If so, Keltner would have three person misdemeanors, which constituted a person felony. The additional person felony raised Keltner's criminal history score to a ‘B’ and increased Keltner's maximum sentence to 228 months in prison for aggravated robbery and 128 months in prison for involuntary manslaughter, or a total of 356 months' imprisonment. See K.S.A.2004 Supp. 21–4704(a).

“Prior to sentencing, Keltner attempted to withdraw his plea, arguing the amended sentencing range exceeded the range contemplated by the parties during plea negotiations, and but for these representations, Keltner would not have entered the plea. The district court denied Keltner's motion to withdraw his plea and sentenced him to consecutive sentences of 216 months in prison for aggravated robbery and 120 months in prison for involuntary manslaughter, or 336 months' total imprisonment.”

Keltner filed a direct appeal challenging the district court's denial of his presentence motion to withdraw plea. On March 23, 2007, this court affirmed the district court's denial in Keltner I, 2007 WL 881953, at *3.

On August 25, 2008, Keltner filed a K.S.A. 60–1507 motion that again asserted that the parties had made a mutual mistake in predicting Keltner's criminal history score and contended that Keltner should have been allowed to withdraw his plea. Keltner also argued that defense counsel was ineffective for not knowing his criminal history score. The district court summarily denied Keltner's motion, finding that its major argument had been adjudicated and denied by the Court of Appeals in his direct appeal. This court affirmed the district court's denial of the K.S.A. 60–1507 motion in Keltner v. State, No. 101,796, 2010 WL 2348690 (Kan.App.2010) (unpublished opinion) ( Keltner II ).

On August 23, 2013, Keltner filed a postsentence motion to withdraw plea, which is the subject of this appeal. Once again, Keltner argued that he should be allowed to withdraw his guilty plea based on the parties' mutual mistake in predicting his criminal history score. The motion relied primarily on our Supreme Court's decision in State v. Schow, 287 Kan. 529, 197 P.3d 825 (2008), which we will discuss more fully in our analysis of Keltner's claims on appeal.

On March 26, 2014, the district court held an evidentiary hearing on Keltner's postsentence motion to withdraw plea. Keltner testified that when he pled guilty in the two underlying criminal cases, he understood his criminal history score to be a “C,” based on the representations of defense counsel and the district attorney's office. Keltner testified that defense counsel had told him that he would likely receive a sentence of 13.5 years. However, on the day of sentencing, Keltner learned that his criminal history score was determined to be a “B.” Keltner testified that had he known this information prior to pleading guilty, he would not have entered the plea.

Upon cross-examination, Keltner acknowledged that at his plea hearing, the district judge went over all of his constitutional rights. Keltner further acknowledged that the judge told him that he would be sentenced based on his criminal history score in accordance with the sentencing guidelines, notwithstanding any predictions made about his criminal history score by the parties.

The district court ultimately denied Keltner's motion, making detailed findings of fact and conclusions of law. First, the district court found that the motion was untimely and that Keltner had failed to affirmatively establish excusable neglect that would extend the statutory deadline for Keltner to file his motion. Second, the district court found that the Supreme Court's decision in Schow did not apply retroactively to Keltner's case, which was final before Schow was decided. Third, the district court found that even if Keltner had established excusable neglect to avoid the statute of limitations and even if our Supreme Court's holding in Schow applied to this case, Keltner still failed to demonstrate manifest injustice permitting the postsentence withdrawal of his guilty plea. The district court subsequently filed an order denying Keltner's postsentence motion to withdraw plea. Keltner timely appealed the district court's decision.

On appeal, Keltner first argues that excusable neglect justified his failure to file his postsentence motion to withdraw plea within the statutory deadline. Second, Keltner asserts that our Supreme Court's holding in Schow retroactively applies to his case. Third, Keltner contends that manifest injustice exists to permit the postsentence withdrawal of his guilty plea. The State responds that the district court exercised appropriate discretion in denying Keltner's postsentence motion to withdraw his plea. It contends there is insufficient evidence to support Keltner's claim that he should be allowed to file his motion out of time or be permitted to withdraw his plea.

As a threshold matter, we must first determine whether excusable neglect exists to justify Keltner's failure to file his postsentence motion to withdraw his plea in a timely manner. A postsentence motion to withdraw a plea must be filed within 1 year of either: (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 United States Supreme Court's denial of any writ of certiorari or issuance of a final order after the granting of such petition. K.S.A.2014 Supp. 22–3210(e)(l); State v. Moses, 296 Kan. 1126, 1127–28, 297 P.3d 1174 (2013).

The parties agree that Keltner filed his motion outside of the statutory time period. This court decided Keltner's direct appeal on March 23, 2007, and our Supreme Court denied review on September 27, 2007. See Keltner I, 2007 WL 881953. The State asserts that the statutory time period for Keltner to file his postsentence motion to withdraw plea expired 1 year after his direct appeal became final. However, the 1–year limitation for filing a postsentence motion to withdraw plea found in K.S.A.2014 Supp. 22–3210(e)(1) began to run for preexisting claims on April 16, 2009, the date the amendment that added this time limitation became effective. See Moses, 296 Kan. at 1128. Therefore, Keltner actually had until April 16, 2010, to timely file his motion. Nevertheless, he filed his motion on August 23, 2013, well past the statutory deadline.

The 1–year time limitation for filing a postsentence motion to withdraw plea may be extended only “upon an additional, affirmative showing of excusable neglect by the defendant.” K.S.A.2014 Supp. 22–3210(e)(2). There is no statutory definition of “excusable neglect.” This court previously has discussed the term's meaning in the context of an untimely motion to withdraw plea:

“The parties do not cite a case defining excusable neglect as used in K.S.A.2013 Supp. 22–3210(e)(2), and our research located none. The term is defined, however, in Black's Law Dictionary:

‘ “ 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 party'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).

“This definition is consonant with Kansas cases applying K.S.A. 60–206 and K.S.A. 60–260, both of which use the term. See Tyler v. Cowen Construction, Inc., 216 Kan. 401, 406–07, 532 P.2d 1276 (1975); Wilson v. Miller, 198 Kan. 321, 321–22, 424 P.2d 271 (1967). Our Supreme Court has also defined “ ‘[i]nexcusable neglect’ “ to be ‘closely akin to “reckless indifference.” It implies something more than the unintentional inadvertence or neglect common to all who share the ordinary frailties of mankind.’ Jenkins v. Arnold, 223 Kan. 298, 299, 573 P.2d 1013 (1978). Although these are civil cases, our court has conversely examined criminal cases when defining ‘manifest injustice’ under K.S.A. 60–1507(f)(2). See Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007).” State v. Delgado, No. 109,601, 2014 WL 1707718, at *3 (Kan.App.2014) (unpublished opinion).

We will review the procedural timeline leading to Keltner's filing of his postsentence motion to withdraw plea. Keltner first filed a presentence motion to withdraw plea citing the parties' mutual mistake in criminal history as one of his grounds for relief. The district court denied the motion, and this court affirmed the district court's judgment. See Keltner I, 2007 WL 881953. This court, citing State v. Ford, 23 Kan.App.2d 248, 930 P.2d 1089 (1996), found that as a matter of law, a mutual mistake as to criminal history was an insufficient reason to permit a plea withdrawal.

On August 25, 2008, Keltner filed a K.S.A. 60–1507 motion raising the same issues as in his presentence motion to withdraw plea. The district court summarily denied Keltner's motion, finding that its major argument already had been adjudicated and denied by the Court of Appeals in Keltner's direct appeal.

On December 12, 2008, the Kansas Supreme Court published its opinion in Schow, 287 Kan. 529. Schow abrogated this court's decision in Ford, holding that a district court may consider mutual mistake by the parties regarding a defendant's criminal history score to the extent the circumstances giving rise to the mistake implicate the factors applicable to the existence of good cause for a presentence motion to withdraw plea. 287 Kan. at 546.

Keltner appealed the district court's denial of his K.S.A. 60–1507 motion and argued for the first time that the Schow decision entitled him to relief. This court affirmed the district court's denial of the K.S.A. 60–1507 motion. See Keltner II, 2010 WL 2348690. The opinion noted Keltner's argument that Schow applied to his case, but the court found that Schow was not applicable in a collateral proceeding:

“ Schow was decided after Keltner's direct appeal had concluded. Schow and [ Edgar ] [citation omitted] were both direct appeals after there had been denials of motions to withdraw guilty pleas. Neither party cites, nor has our research revealed any appeals from a denial of a K.S.A. 60–1507 motion applying either of these cases.” 2010 WL 2348690, at *3.

Based on this time sequence, Keltner argues that the Schow decision entitling him to relief on the issue of mutual mistake was decided more than 1 year after the direct appeal from his presentence motion to withdraw plea was denied. Thus, he concludes that the grounds for his postsentence motion to withdraw plea did not even exist until the statutory timeline had expired. Keltner argues that this scenario establishes excusable neglect to permit the untimely filing of his postsentence motion to withdraw plea.

Keltner's argument is without merit. As previously explained, Keltner had until April 16, 2010, to timely file his motion. Our Supreme Court issued the Schow opinion on December 12, 2008, which left Keltner with roughly 16 months in which he could have timely filed a motion based on the Schow decision but failed to do so.

To further support his argument for excusable neglect, Keltner points out that his attempt to have the Schow holding applied in his K.S.A. 60–1507 motion was procedurally barred, a fact that Keltner did not realize until this court affirmed the district court's decision to deny the motion. In other words, Keltner contends that his failure to timely file his postsentence motion to withdraw plea is excusable because he was pursing the same relief in his K.S.A. 60–1507 motion which he claims was timely filed.

The timing of Keltner's K.S.A. 60–1507 motion offers some support for his argument. Keltner filed his K.S.A. 60–1507 motion on August 25, 2008, before Schow was decided. The district court denied Keltner's motion on December 16, 2008—4 days after the Schow decision was published. Keltner appealed, requesting relief pursuant to Schow for the first time. This court affirmed the denial of Keltner's K.S.A. 60–1507 motion in June 2010—roughly 2 months after the expiration of his 1–year statutory time period to file a postsentence motion to withdraw plea. In other words, Keltner was not alerted to the fact that Schow was not applicable in a collateral proceeding until after the deadline for filing a motion to withdraw his plea had passed.

But there is one glaring problem with Keltner's reasoning. After this court affirmed the district court's denial of his K.S.A. 60–1507 motion, Keltner took no immediate action. Though he was on notice that relief pursuant to Schow was not available in a collateral proceeding, Keltner waited 3 years before filing his postsentence motion to withdraw plea. As previously stated, excusable neglect is a failure to take some proper step at the proper time, not because of the party's own carelessness or inattention, but because of some unexpected or unavoidable hindrance or accident. Delgado, 2014 WL 1707718, at *3. Keltner has not claimed that any unforeseen hindrance or accident was responsible for his 3–year delay in taking any further action after this court affirmed the denial of his K.S.A. 60–1507 motion.

In summary, Keltner had more than a year after the Schow opinion was issued to file a postsentence motion to withdraw plea but failed to do so. Keltner did file a K.S.A. 60–1507 motion during this period. However, after this court found that Schow was not applicable in a collateral proceeding, Keltner waited 3 years before taking any additional action. Based on these facts, we agree with the district court that Keltner has not demonstrated the excusable neglect necessary to overcome the 1–year statute of limitations for a motion to withdraw plea. Although we could end our analysis here, we also will briefly address the merits of Keltner's postsentence motion to withdraw his plea.

Keltner next argues that our Supreme Court's decision in Schow retroactively applied to his motion to withdraw plea. We do not need to resolve this argument. The district court found that even if Keltner had established excusable neglect to avoid the 1–year statute of limitations and even if our Supreme Court's holding in Schow applied to this case, Keltner still failed to demonstrate manifest injustice permitting the postsentence withdrawal of his guilty pleas. We will examine whether the district court erred in making this finding.

“To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.” K.S.A.2014 Supp. 22–3210(d)(2). Generally, an appellate court will not disturb a district court's denial of a postsentence motion to withdraw plea absent an abuse of discretion. State v. Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014).

Three factors guide a district court's consideration of whether a defendant has demonstrated the good cause required by K.S.A.2014 Supp. 22–3210(d)(1) to withdraw a plea prior to sentencing: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. These factors should not be applied mechanically and to the exclusion of other factors. Fritz, 299 Kan. at 154 (citing State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 [2006] ).

Factors a court generally considers in determining whether a defendant has shown the manifest injustice necessary to withdraw a plea after sentencing mirror those considered when reviewing for good cause to support a presentence motion. See State v. Morris, 298 Kan. 1091, 1100, 319 P.3d 539 (2014); see also Moses, 280 Kan. at 950–54 (noting other factors that may support denial of postsentence motion to withdraw plea include: reasonable promptness of motion; defendant's failure to raise issue in prior direct appeal or K.S.A. 60–1507 proceeding; prejudice to State; defendant's prior involvement in criminal justice system; and defendant's receipt of favorable plea bargain).

Keltner asserts that at the time he entered his plea, he believed that his criminal history score was a “C” and that the maximum sentence he could receive was 13.5 years of imprisonment. After Keltner entered his plea, the parties discovered he had a criminal history score of “B” and that the maximum possible sentence for his crimes had doubled. Keltner asserts that this mutual mistake coupled with the timing of its discovery constitutes manifest injustice to withdraw his plea. The State responds that Keltner's plea was fairly and understandingly made and that Keltner has failed to demonstrate manifest injustice requiring the withdrawal of his plea.

It is important to note that the district court held an evidentiary hearing, as required by Schow, in order to determine whether the mutual mistake in predicting criminal history rendered Keltner's plea involuntary. Though the district court found that Schow was not retroactively applicable to Keltner's case, it went on to state that it had actually considered the parties' mutual mistake when ruling on Keltner's motions to withdraw plea. The district court concluded that this lone factor did not outweigh all the other facts it considered in conducting its Edgar analysis, including Keltner's competent counsel and the lack of any coercion or misinformation influencing his plea.

The district court's conclusion that the parties' mutual mistake did not warrant withdrawal of Keltner's guilty pleas is supported by this court's decision in State v. Milo, No. 108,228, 2013 WL 5507288 (Kan.App.2013) (unpublished opinion). In that case, the defendant appealed the district court's denial of his presentence motion to withdraw plea. He argued that a misunderstanding regarding his likely sentence based on his criminal history score constituted a strong reason in favor of allowing him to withdraw his plea for good cause. 2013 WL 5507288, at *1. This court discussed and ultimately distinguished the Schow decision:

“Here, unlike in Schow, the district court made no findings about the defendant's expected criminal history score when it accepted the plea. Neither the plea agreement nor the plea hearing predicted that Milo would receive a category F history or referenced what a category F history would entail; on the contrary, Milo was advised of the minimum and maximum possible sentences corresponding to a severity level 1 crime. Although the Schow court also declined to attach importance to the defendant being told the maximum possible sentence (which would not be imposed unless the defendant had the worst criminal history score), [citation omitted], the warnings about maximum penalties from the plea hearing support the court's finding that Milo 's plea was fairly and understandably made. [Citation omitted.]

“No one guaranteed Milo he would receive a 214–month sentence. Further, there is no evidence Milo received a guarantee that his criminal history score would be F. Even if both [defense counsel] and the State mistakenly projected Milo 's criminal history, there is no evidence they negotiated based on the projected score; they did not include a projected score in the plea agreement. [Citation omitted.] On the contrary, [defense counsel] testified he told Milo that based on a criminal history category of F, he was probably looking at a sentence of 214 months if all the counts were to run concurrently. However, Milo admitted that in referring to the 214 months, [defense counsel] told him, ‘[I]f that's what you have [criminal history], that's what you'll get.’ There is no evidence that the State or judge misled Milo into believing he had a category F criminal history.” 2013 WL 5507288, at *4.

The Milo court found that the defendant was represented by competent counsel who made diligent inquiries into his criminal history. It also pointed to a lack of any evidence of coercion, mistreatment, or unfair advantage. The court noted that the defendant was a “seasoned offender” and well-acquainted with the criminal justice system. The court took judicial notice of the plea hearing transcript and found that the defendant had been fully informed of the potential sentences. The court ultimately determined that the district court had properly applied the Edgar factors and did not abuse its discretion in finding that the defendant had failed to establish good cause for withdrawal of his plea. 2013 WL 5507288, at *5.

Here, just as in Milo, the district court made no findings about Keltner's expected criminal history score when it accepted the plea. Neither Keltner's written plea agreement nor the discussions at the plea hearing predicted that he would receive a category C criminal history. Rather, Keltner was advised of the minimum and maximum possible sentences. No one guaranteed that Keltner would receive a 13.5–year sentence.

While there is evidence to support Keltner's contention that both defense counsel and the State mistakenly predicted his criminal history, there is no evidence they negotiated based on the projected score. Significantly, they did not include a projected score in the plea agreement. Keltner admitted that the district judge at the plea hearing told him that he would be sentenced in accordance with the sentencing guidelines no matter what kind of prediction had been made about his criminal history score. Keltner further admitted that he was not misled by the judge.

Finally, this court previously held that Keltner was represented by competent counsel throughout the negotiation and entry of his plea. See Keltner I, 2007 WL 881953, at *2–3; Keltner II, 2010 WL 2348690, at *2–3. There is no evidence of coercion, mistreatment, or unfair advantage in Keltner's case. Like the defendant in Milo, Keltner is a “seasoned offender” and this case was certainly not his first brush with the criminal justice system. The plea hearing transcript shows that Keltner was fully informed of the potential sentences he faced and that he knew the district court was not bound by the terms of the plea agreement.

The Milo court determined in a nearly identical situation that a mutual mistake regarding the defendant's criminal history score did not warrant good cause to grant a presentence motion to withdraw plea. If the defendant in Milo could not establish good cause, then Keltner certainly cannot meet the higher burden of showing manifest injustice to warrant the postsentence withdrawal of his plea. Considering all the facts and circumstances of this case, we conclude the district court did not abuse its discretion in denying Keltner's postsentence motion to withdraw his plea.

Affirmed.