State v. KellyState v. Kelly
Terrance Kelly appeals the district court’s denial of his pro se motion titled “Motion to Withdraw Plea and to Correct Illegal Sentence and to Vacate Sentence.” The district court construed the motion as an ineffective assistance of counsel claim under K.S.A. 60-1507 and denied it as untimely. On appeal, Kelly argues the district court should have treated his motion as a motion to withdraw his plea. This court has jurisdiction under K.S.A. 22-3601(b)(1) (off-grid crime; life sentence). Because the district court should have construed Kelly’s motion as a motion to withdraw his plea, we reverse and remand for reconsideration.
Factual and Procedural Background
In 1994, Kelly killed a liquor store clerk during a robbery. Kelly was 14 years old. He was charged with first-degree felony murder and aggravated robbeiy. The juvenile court waived jurisdiction, certifying Kelly for adult prosecution. While represented by counsel, Kelly pleaded guilty to both charges. Pursuant to his plea negotiations, the State and Kelly jointly recommended the district court enter a downward durational departure sentence on the aggravated robbeiy charge based on the defendant’s age as a mitigating factor. They also recommended the sentences run consecutively. The district court imposed the presumptive sentence instead of the recommended departure, resulting in a life sentence for the felony-murder charge and a consecutive 172-month sentence for the aggravated robbery charge.
On August 30,2007, almost 12 years after sentencing, Kelly filed a pro se motion titled “Motion to Withdraw Plea and to Correct Illegal Sentence and to Vacate Sentence” and an 11-page memorandum of law supporting that motion. Most of Kelly’s arguments claimed his sentence was illegal because he should have been prosecuted as a juvenile. But he also alleged ineffective assistance of counsel. Kelly pursued this claim in a section of his memorandum titled “Defendant was Denied Effective Assistance of Counsel,” in which he alleged the following: (1) Counsel prevented him from making an informed plea decision because he was not fully apprised of the sentencing ranges and jurisdiction; (2) counsel failed to keep him informed regarding the plea negotiations; (3) counsel failed to investigate or advise Kelly of any defenses or trial strategies available if he did not enter a guilty plea; and (4) counsel failed to advise Kelly of the rights he would be waiving by entering a plea. It also recited the three-prong test for ineffective assistance of counsel and alleged counsel’s conduct fell below an objective standard of reasonableness.
The district court denied Kelly’s motion without holding a hearing. It construed the motion as raising two claims: (1) Kelly’s
Analysis
Kelly argues the district court should have treated his pro se pleading as a motion to withdraw his plea under K.S.A. 22-3210(d). He argues remand is necessary for the district court to consider whether his plea should be withdrawn to correct manifest injustice. Because Kelly claims his counsel was ineffective and his counsel’s failures infected his plea negotiations, we agree the district court should have construed Kelly’s pleading as a motion to withdraw his guilty plea.
Pro se pleadings are liberally construed, giving effect to the pleading’s content rather than the labels and forms used to articulate the defendant’s arguments. A defendant’s failure to cite the correct statutory grounds for his or her claim is immaterial. See
Bruner v. State,
At the time Kelly filed this motion, K.S.A. 22-3210(d) governed the decision to grant or deny a motion to withdraw a guilty plea. It states:
“A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. 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. 22-3210(d).
It should be noted that K.S.A. 22-3210 was amended in 2009. L. 2009, ch. 61, sec. 1. The amended statute imposes a 1-year time
limitation on motions to withdraw a plea, which may be extended upon a showing of excusable neglect. K.S.A. 2009 Supp. 22-3210(e). Under similar facts, this court prematurely analyzed the defendant’s motion to withdraw a plea under the amended statute in
State v. Edwards,
As stated above, K.S.A. 22-3210(d) creates two standards for evaluating motions to withdraw pleas. The first applies before sentencing, when courts have discretion to permit withdrawal upon “good cause” shown. But after sentencing, courts may permit a plea withdrawal only to correct “manifest injustice.” Some factors courts may consider when determining whether to grant a motion to withdraw a plea are: “(1) whether the defendant was represented by competent counsel, (2) whether the defendant was misled, coerced, or unfairly taken advantage of, and (3) whether the plea was fairly and understandingly made.”
State v. Aguilar,
Next, we must determine under our rules requiring liberal construction of pro se
Finally, we should emphasize a point Kelly’s appellate counsel conceded during oral argument, which is that the district court was not required to hold a hearing before determining the merits of Kelly’s claims. The error was that the district court did not consider Kelly’s motion in light of the manifest injustice requirements set out in K.S.A. 22-3210 as that statute existed at the time Kelly filed his motion.
On remand, the district court must determine whether Kelly may withdraw his plea in order to correct manifest injustice. As this court recently stated in Aguilar, the manifest injustice requirement is appropriate when a motion to withdraw plea is filed after sentencing because the State’s case weakens the longer a defendant waits to file a motion to withdraw the plea. The plea withdrawal statute is not intended to provide a tool for temporal manipulation.
Reversed and remanded with directions.