In re D.L.
124059
| Kan. Ct. App. | Nov 12, 2021Background:
- On February 23, 2009, D.L., represented by counsel, pleaded no contest to one count of criminal discharge of a firearm (severity level 7 person felony); the court found the plea voluntary and supported by a factual basis.
- D.L. was committed to the Commissioner of Juvenile Justice and discharged from custody on August 9, 2010; he did not file a direct appeal.
- On July 8, 2020, D.L. filed a pro se motion to vacate his juvenile sentence, arguing no physical evidence was presented at his plea hearing and asserting actual innocence.
- At the hearing, counsel characterized the filing both as a K.S.A. 60-1507 motion and as a motion to withdraw plea under K.S.A. 22-3210(d)(2), but neither D.L. nor counsel explained the 10+ year delay or made a showing of excusable neglect.
- The district court dismissed the motion as untimely under the one-year postsentence withdrawal rule and, alternatively, as unavailable under K.S.A. 60-1507 because D.L. was no longer in custody when he filed.
- The State did not oppose summary disposition and asked the appellate court to affirm; the Court of Appeals affirmed the district court's dismissal.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether D.L.'s postsentence motion to withdraw plea was timely or extendable | D.L. acknowledged untimeliness but argued the one-year limit can be extended for excusable neglect | Motion is untimely; D.L. made no affirmative showing of excusable neglect to justify extension | Motion untimely; dismissal affirmed because no showing of excusable neglect |
| Whether K.S.A. 60-1507 relief was available when movant was no longer in custody | D.L. suggested the motion might be treated under 60-1507 | 60-1507 applies only to prisoners in custody when filing; D.L. was released when he filed | 60-1507 unavailable to D.L. because he was not in custody when he filed |
Key Cases Cited
- State v. Cott, 311 Kan. 498 (2020) (abuse-of-discretion standard for postsentence plea-withdrawal denial)
- State v. Fox, 310 Kan. 939 (2019) (defendant bears burden to show district court erred)
- State v. Parks, 308 Kan. 39 (2018) (untimely postsentence plea-withdrawal is procedurally barred absent affirmative showing of excusable neglect)
- Mundy v. State, 307 Kan. 280 (2018) (K.S.A. 60-1507 is available only to those in custody when they file; release before final judgment does not automatically confer jurisdiction)