1 IN THE SUPREME COURT OF THE STATE OF KANSAS

N o

. 123,145

S TATE OF K ANSAS , Appellee,

v

.
A NDREW W ALLACE E LLINGTON ,

Appellant.

SYLLABUS BY THE COURT

1. For a criminal defendant to withdraw a guilty or no contest plea after the one

- year statutory deadline in K.S.A

. 20 20 Supp. 22

- 3210(e)(1), the defendant must first make a procedural showing of excusable neglect. After a court finds excusable neglect, the defendant must make a substantive showing of manifest injustice.

2. A lack of criminal history or lack of experience with the criminal justice system will not generally constitute excusable neglect.

Appeal from Sedgwick D istrict C ourt; E RIC W ILLIAMS , judge. Opinion filed October 15, 20 21

. Affirmed.

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.2

The opinion of the court was delivered by

S TEGALL , 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 201 4 , the State charged Ellington with c apital m urd er . 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 senten ce 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 find ing 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

. 20 20 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."

S ubsection (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 terminat ion of such appellate jurisdiction; or (B) the denial of a petition for3

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

. 20 20 Supp. 22

- 3210(e)(1).

The only exc eption to the one

- year limitation period is found in s ubsection (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 decisio n 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 limit ation, 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 app ellate 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. , subs tantial 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) ( ci ting 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 of4

excusable neglect and his motion should thus not be procedurally barred under Davis , 313 Kan. at 248. 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 i nmates; (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.

"' E xcusable 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. 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 unintent ional 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.

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

- ye ar time limit. T he court considered the defendant's lack of awareness as just a version of5

ignorance of the la w . 2017 WL 2709791, at *2

- 3 ; s ee also State v. Edwards , No. 115,612, 2017 WL 4081449, at *3 (Kan. App. 2017) (unpublished opinion) (no excusable n eglect 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 be came 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. 3 03 Kan. at 1063

- 64. We rejected these arguments and found Davisson had not establish ed 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 litig ant or his attorney."

We have previously declined to find excusable neglect even in more restrictive circumstances

. F or 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 the "extraordinary circumstance" of being incarcerated in Florida without access to a law library or Kansas statute books was beyond his control and constituted excusable neglect.

Yet, in Fox th e defendant had been back in Kansas for several years before the

one

- year time limit was added into the statute in 2009 and had ample access to Kansas legal and statutory materials for three years before the time to withdraw expired. 310
Kan. at 943

- 44. We refused to find excusable neglect on these grounds because there was no evidence that the defendant was barred from pursuing his claim within the requisite timeframe. See State v. Smith , 303 Kan. 673, 675, 681, 366 P.3d 226 (2016) (affirming6

district cour t's determination that defendant's lack of knowledge of the right to withdraw his plea or the requisite time period in which to do so did not constitute excusable neglect)

.

Moreover, as a general rule, age or relative youth alone cannot be used to establish excusable neglect, because it amounts to only a version of ignorance of the law. One recent Court of Appeals case addressed a similar argument. State v. Landers , No. 116,652, 2018 WL 385697, at *4, 7 (Kan. App. 2018) (unpublishe d opinion). There, a defendant attempted to "avoid the holding of Davisson " by asserting excusable neglect based on his seventh

- grade education and mental health issues. The court rejected the defendant's argument because he testified that he could read an d write. 2018 WL 385697, at *4, 7.

Here, Ellington has completed 12 years of formal education and has a high school diploma. He certified his competency both in the plea deal and orally at the hearing. The record does not indicate that Ellington lacked t he education or mental capacity to act within the one

- year statutory deadline. And, considering that Ellington was 20 years old at the time of his plea, he was "hardly of tender years in the eyes of . . . criminal law." See United States v. Cerno , 220 F ed

. Appx

. 822, 823

- 24 (10th Cir. 2007) (unpublished opinion) (referring to the statutory definition of a "juvenile" as a person under 18 and finding a 21

- year

- old defendant's attempt to justify his untimely appeal due to his "youth and inexperience with felon y

- level crimes" wholly unpersuasive).

Finally, Ellington ' s cl aim about h is lack of experience in the ways of the criminal justice system is unavailing. He suggests this distinguishes his case from Davisson , because Davisson had a lengthy criminal history

— and thus a presumptive knowledge of the criminal system

— while Ellington had no prior experience with the criminal system.7

However, the Davisson court did not rely on Davisson's criminal history in finding a lack of excusable neglect . T hat holding rested solely on the premise that "ignorance of the law should not constitute excusable neglect." Davisson , 303 Kan. at 1066, 1068. Davisson offered "no other argument for why the late filing of his motion [was] justified by excusable neglect. He only arg ue[d] he did not know about the option to withdraw his guilty plea or its statutory deadline

— i.e. , that he was ignorant of the law." 303 Kan. at 1069. Indeed, it would be strange to conclude that because an individual had never before in his life had to pl ead guilty (or no contest) to a serious crime, that this somehow constitutes " neglect " to properly prepare himself to comply with the one

- year limitation period following the first such plea. Lack of criminal history is a good thing, and we will not hold otherwise.

In sum, we agree with the district court that Ellington has failed to show excusable neglect as required by K.S.A

. 20 20 Supp. 22

- 3210(e)( 2 ).

Affirmed.