State v. Cortez-Dorado

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NOT DESIGNATED FOR PUBLICATION

No. 118,683

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

OSCAR CORTEZ-DORADO,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; BARBARA KAY HUFF, judge. Opinion filed December 14,
2018. Affirmed.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Clara E. Melero, legal intern, Kate Duncan Butler, assistant district attorney, Charles E. Branson,
district attorney, and Derek Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., STANDRIDGE, J., and WALKER, S.J.

SCHROEDER, J.: Oscar Cortez-Dorado appeals the summary denial of his motion
to withdraw his plea. We find Cortez-Dorado's motion failed to provide any facts to
support his motion and, as submitted, his motion contained only conclusory statements.
With no facts to support the motion, the district court was correct to summarily deny the
motion. We affirm.

Pursuant to a plea agreement, Cortez-Dorado pled guilty to rape of a child under
the age of 14 and aggravated indecent liberties with a child. At sentencing, Cortez-
Dorado requested a continuance because he intended to retain a new lawyer to pursue a
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motion to withdraw his plea. The district court continued sentencing to give Cortez-
Dorado time to retain a new lawyer. Cortez-Dorado ultimately retained new counsel and
the district court continued sentencing again.

At the sentencing hearing with his new counsel on January 13, 2015, Cortez-
Dorado announced to the court he did not want to withdraw his plea and he was ready for
sentencing. The district court followed the plea agreement and sentenced Cortez-Dorado
to 155 months' incarceration for rape of a child under the age of 14 and 59 months'
incarceration for aggravated indecent liberties with a child. The district court ran the
sentences consecutively. Cortez-Dorado did not appeal.

On April 3, 2017, Cortez-Dorado moved to withdraw his plea. He asserted he was
innocent and was wrongly convicted of a crime that never occurred. Cortez-Dorado
contended he gave a false confession and asked to withdraw his plea. Cortez-Dorado also
asserted excusable neglect excused his untimely motion to withdraw his plea. He alleged
he had requested his case file from his attorney and from the district court and neither
responded to his request. He also contended he spoke very little English and, since the
Ellsworth Correctional Facility's law library has no materials in his native Spanish, the
State "hindered him from exercising his constitutional right of access to the Court with
the ability to file meaningful legal papers."

The district court summarily denied Cortez-Dorado's motion to withdraw his plea.
It noted Cortez-Dorado had admitted to both police and the district court that the acts
occurred and that he offered no facts to contradict these statements.

The district court found Cortez-Dorado was procedurally barred from his motion
to withdraw his plea because he failed to show excusable neglect. It also found there was
no manifest injustice because Cortez-Dorado did not make a colorable claim of actual
innocence and his plea did not shock the conscience.
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Cortez-Dorado argues the district court erred when the district court summarily
denied his postsentence motion to withdraw his plea because the record did not
conclusively show he was not entitled to relief.

ARGUMENT

"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. 2017 Supp. 22-
3210(d)(2). A postsentence motion to withdraw a plea must be filed within one 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 denial of a
petition for 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. 2017 Supp. 22-
3210(e)(1). This one-year time limitation may be extended only "upon an additional,
affirmative showing of excusable neglect by the defendant." K.S.A. 2017 Supp. 22-
3210(e)(2). When a defendant makes no attempt at an affirmative showing of excusable
neglect, an appellate court will find the motion untimely and procedurally barred. State v.
Williams, 303 Kan. 605, 608, 366 P.3d 1101 (2016).

Summary disposition of a motion to withdraw a plea is appropriate if there are no
substantial questions of law or triable issues of fact and the motion, records, and files
conclusively show the defendant is not entitled to relief. State v. Kelly, 298 Kan. 965,
969, 318 P.3d 987 (2014). The movant has the burden to allege adequate facts to warrant
a hearing. As the Kelly court stated, "'[M]ere conclusions . . . are not sufficient to raise a
substantial issue of fact when no factual basis is alleged or appears from the record.'" 298
Kan. at 969. When a district court summarily denies a postsentence motion to withdraw a
plea without argument or additional evidence, appellate review is de novo. This is
because the appellate court has the same access to the motions, records, and files as the
district court. State v. Fritz, 299 Kan. 153, 154-55, 321 P.3d 763 (2014).
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Other panels of this court have held manifest injustice is a condition precedent,
which must be satisfied before a defendant may argue excusable neglect applies to make
an otherwise untimely filing timely. See State v. Allen, No. 107,708, 2013 WL 2991139,
at *5 (Kan. App. 2013) (unpublished opinion); State v. Adkins, No. 106,289, 2012 WL
3171836, at *3 (Kan. App. 2012) (unpublished opinion). Here, the district court found
Cortez-Dorado did not present a colorable claim of innocence or a plea that shocks the
conscience. It also found Cortez-Dorado was procedurally barred from this claim because
he failed to establish excusable neglect. Since we agree manifest injustice is a condition
precedent, we address it first.

No manifest injustice

Cortez-Dorado contends the record did not conclusively show he was not entitled
to relief. He contends the allegation he was innocent was enough to require an
evidentiary hearing. To establish manifest injustice, a defendant must show it would be
"obviously unfair or shocking to the conscience" if he or she is not allowed to withdraw
the plea. State v. Barahona, 35 Kan. App. 3d 605, 608-09, 132 P.3d 959 (2006).

In his motion, Cortez-Dorado asserted he "is an innocent man, wrongfully
convicted of a crime that never occurred." He suggested he gave a false confession and
admitted guilt for "a crime that never happened." Similarly, in his affidavit, Cortez-
Dorado stated, "I am an innocent man of the crime I pled to." However, Cortez-Dorado
neither provides a basis for his claims nor explains why he confessed to a crime that
allegedly never occurred. Without a basis supporting his claims, Cortez-Dorado failed to
meet his burden of alleging any facts to warrant a hearing and only provided conclusory
statements to support his motion.

On appeal, Cortez-Dorado complains the district court weighed his credibility
against the allegations of the victims and found his claims wanting. He contends the
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district court's credibility determination was improper given the procedural posture of the
case. This is a flawed reading of the district court's order. Instead, the district court noted
the victim's statements, Cortez-Dorado's confession, and Facebook communications
between Cortez-Dorado and the victim tended to show the crimes occurred. The district
court noted Cortez-Dorado "proffer[ed] no facts in contradiction of these events."
(Emphasis added.) Although the district court's order could have been clearer, the district
court essentially found Cortez-Dorado failed to provide a factual basis for his claims. It
did not improperly weigh Cortez-Dorado's credibility against the victim's credibility.

The district court did not err when it summarily denied Cortez-Dorado's motion to
withdraw his plea. Cortez-Dorado has failed to show it would be "obviously unfair or
shocking to the conscience" if he is not allowed to withdraw the plea because he
neglected to provide a factual basis for his allegations. Since Cortez-Dorado failed to
show manifest injustice, we deem it unnecessary to address whether the district court
correctly found his motion was procedurally barred.

Affirmed.

* * *

STANDRIDGE, J., concurring: I agree with the result the majority reaches in this
case, but not with its legal holding that manifest injustice is a condition precedent that
must be satisfied before a defendant may argue excusable neglect to toll the one-year
deadline in which to file a motion to withdraw a plea.

A motion to withdraw a guilty plea filed after sentencing is subject to a manifest
injustice standard. K.S.A. 2017 Supp. 22-3210(d)(2). When the defendant files such a
motion, the substantive issue for decision by the court is whether the defendant has
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shown that permitting him or her to withdraw a guilty plea after sentencing is necessary
to correct a manifest injustice.

In 2009, our Legislature imposed a one-year procedural deadline before which
defendants must file any substantive motion to withdraw a guilty plea after sentencing. L.
2009, ch. 61, § 1. Specifically, K.S.A. 2017 Supp. 22-3210(e)(1) provides that any action
under subsection (d)(2) to withdraw a plea after sentencing must be brought within 1 year
of "[t]he 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 "the denial of a petition
for writ of certiorari to the United States supreme court or issuance of such court's final
order following the granting of such petition." Pursuant to subsection (e)(2), however,
this procedural time limit may be extended by the court only if the defendant makes an
affirmative showing of excusable neglect. If the defendant fails to make the necessary
showing of excusable neglect, the motion is rendered untimely and will be procedurally
barred without consideration of any alleged substantive merit. State v. Williams, 303 Kan.
605, 608, 366 P.3d 1101 (2016).

While there is no statutory definition of "excusable neglect" set forth in K.S.A.
2017 Supp. 22-3210, our Supreme Court relied in part on a case interpreting K.S.A. 60-
260(b) to hold that "excusable neglect 'implies something more than the unintentional
inadvertence or neglect common to all who share the ordinary frailties of mankind.'"
State v. Davisson, 303 Kan. 1062, 1069, 370 P.3d 423 (2016) (quoting Montez v.
Tonkawa Village Apartments, 215 Kan. 59, 65, 523 P.2d 351 [1974]). And 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:
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"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).'" State v. Reed, No. 111,663, 2015 WL 4716290, at *3-4 (Kan. App.
2015) (unpublished opinion).

In this case, Oscar Cortez-Dorado did not file his motion until April 3, 2017,
approximately 26 months after his sentence became final and approximately 14 months
after the 1-year deadline set forth in K.S.A. 2017 Supp. 22-3210(e)(1) expired.
Accordingly, whether the district court could consider the possible merits of his motion—
that permitting him to withdraw his plea after sentencing was necessary to correct a
manifest injustice—depended on whether he first could meet his procedural burden of
showing excusable neglect for his late filing. See Davisson, 303 Kan. at 1066-67, 1069,
(whether district court could consider possible merits of defendant's motion depended
upon whether defendant could first meet his burden under K.S.A. 2015 Supp. 22-
3210[e][2] of showing excusable neglect for his late filing).

To support his claim of excusable neglect before the district court, Cortez-Dorado
alleged his retained lawyer and the clerk of the district court failed to provide him the
materials he needed to pursue postconviction remedies. Cortez-Dorado also alleged that
the State of Kansas hindered his access to any law library or aid due to the materials
being in English instead of Spanish and ultimately had to turn to "volunteer inmates" to
file the motion to withdraw his plea.

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The district court summarily denied Cortez-Dorado's motion to withdraw.
Relevant here, the court held Cortez-Dorado's motion to be procedurally barred because
he failed to establish the excusable neglect necessary to extend the one-year deadline:

"Defendant blames his lawyer in an effort to show excusable neglect. Defendant needs
far more than a bald assertion that his lawyer was at fault. State v. Woodward, 288 Kan.
297[, 202 P.3d 15] (2009). The record shows that Defendant retained a lawyer for the
express purpose of investigating whether he should withdraw his plea before sentencing.
After several months while Defendant pondered whether to withdraw the plea or to go
forward with the plea, Defendant, with the advice of his newly retained attorney, decided
not to move to withdraw the plea and to go forward with the negotiated plea."

As he did before the district court, Cortez-Dorado argues on appeal that a failure
by his attorney and the district court clerk to respond to his written correspondence
requesting copies of transcripts and his case file amounts to excusable neglect for failing
to timely file his motion to withdraw his plea. But Cortez-Dorado fails to provide any
evidence to support the conclusory argument he presents. Specifically, Cortez-Dorado
provides no proof that he sent letters to his attorney and the district court clerk. And,
although he claims this correspondence was sent within the one-year time limitation for
filing his particular motion to withdraw, he fails to provide the date upon which he sent
this alleged correspondence. Moreover, Cortez-Dorado's claim that his attorney's failure
to provide information amounts to excusable neglect for the untimeliness of his
postsentence motion to withdraw his plea is directly at odds with his attorney's statements
to the court at his sentencing hearing. At that hearing, Cortez-Dorado's retained attorney
specifically asked the court to continue the hearing so that the attorney could have more
time to investigate the possibility of filing a presentence motion to withdraw his plea.
Cortez-Dorado told the court that he did not want to file a motion to withdraw plea but
instead wanted to proceed directly to sentencing.

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Cortez-Dorado also argues on appeal that the absence of Spanish legal materials in
the prison library amounts to excusable neglect for failing to timely file his motion to
withdraw his plea. We disagree, primarily because the lack of Spanish legal materials in
the prison library did not prevent Cortez-Dorado from ultimately filing his motion. The
United States Supreme Court has held that prisoners do not have an abstract, freestanding
right to a law library or legal assistance but rather a right of access to the courts. Lewis v.
Casey, 518 U.S. 343, 350-351, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996). Access to the
courts means prisoners must have "a reasonable adequate opportunity" to mount legal
claims. Bounds v. Smith, 430 U.S. 817, 825, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977). The
record in this case establishes Cortez-Dorado had reasonable access to present his claims
to the district court within the time allotted.

For the reasons stated above, I would find Cortez-Dorado failed to make the
necessary showing of excusable neglect necessary to extend the one-year deadline for
filing his motion to withdraw his plea. Based on this finding, I would deem Cortez-
Dorado's motion to be untimely and procedurally dismiss his appeal without considering
the substantive merits of his manifest injustice argument. State v. Williams, 303 Kan. 605,
608, 366 P.3d 1101 (2016).