State v. Longbine

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NOT DESIGNATED FOR PUBLICATION

No. 117,758

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

NATHAN A. LONGBINE,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed June 29, 2018.
Affirmed in part and dismissed in part.

Carl Maughan, of Maughan Law Group, of Wichita, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before GREEN, P.J., MCANANY and BRUNS, JJ.

PER CURIAM: In 2009, Nathan Longbine pled guilty to attempted rape and
attempted aggravated criminal sodomy. The district court sentenced him to 234 months in
prison. Our Supreme Court summarily vacated the order for lifetime electronic
monitoring but otherwise affirmed his sentence. State v. Longbine, No. 102,993 (order
dated October 7, 2011) (unpublished).

In September 2012, Longbine filed a timely motion to withdraw his pleas. The
district court summarily denied relief, and this court affirmed. State v. Longbine, No.
110,464, 2014 WL 5347344 (Kan. App. 2014) (unpublished opinion).
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In November 2016, Longbine again moved to withdraw his pleas. The district
court again summarily denied relief, and Longbine appeals.

On appeal we consider de novo the district court's summary denial of relief on
Longbine's motion. See State v. Fritz, 299 Kan. 153, 154-55, 321 P.3d 763 (2014).

Under K.S.A. 2017 Supp. 22-3210(d)(2), "the court after sentence may set aside
the judgment of conviction and permit the defendant to withdraw the plea" in order to
prevent manifest injustice. Under K.S.A. 2017 Supp. 22-3210(e)(1), such a motion 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."

See State v. Moses, 296 Kan. 1126, 1127-28, 297 P.3d 1174 (2013). Under K.S.A. 2017
Supp. 22-3210(e)(2), this one-year time limitation may be extended only "upon an
additional, affirmative showing of excusable neglect by the defendant." When the
defendant fails to show excusable neglect, the motion is untimely and procedurally
barred. State v. Williams, 303 Kan. 605, 607-08, 366 P.3d 1101 (2016). Ignorance of the
statute's existence or other assertions of ignorance of the law do not constitute excusable
neglect under K.S.A. 2017 Supp. 22-3210(e)(2). State v. Davisson, 303 Kan. 1062, 1069-
70, 370 P.3d 423 (2016).

The one-year limitation period for Longbine's motion began to run on October 7,
2011. K.S.A. 2017 Supp. 22-3210(d). Longbine's current motion was filed many years
after the limitation period expired, so he had to show excusable neglect. K.S.A. 2017
Supp. 22-3210(e)(2). But he failed to assert any reason to excuse his late filing which
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would constitute excusable neglect. Instead, he simply stated that applying the one-year
limitation period would "clearly be unfair, shocking and unconstitutional." This is not
excusable neglect. The district court did not err in summarily denying Longbine's motion
for failure to provide any facts that would constitute excusable neglect for his late filing.
See Williams, 303 Kan. at 608.

But Longbine argues without any authority that because he was proceeding pro se
in filing his motion, the court should have appointed counsel for him at this stage of the
proceedings. Longbine's failure to support this point with pertinent authority or to show
why his point is sound despite a lack of supporting authority or in the face of contrary
authority is akin to failing to brief the issue. See State v. Murray, 302 Kan. 478, 486, 353
P.3d 1158 (2015). The issue has been abandoned and, therefore, is dismissed. Besides,
his argument lacks merit: the appointment of counsel was not necessary at this stage in
the proceedings. See State v. Jackson, 255 Kan. 455, Syl. ¶ 4, 874 P.2d 1138 (1994).

Finally, Longbine contends his motion should have been treated as a motion to
arrest judgment under K.S.A. 22-3503. But as stated in State v. Sellers, 301 Kan. 540,
547, 344 P.3d 950 (2015), "K.S.A. 22-3503 is not a procedural vehicle that supports a
defense motion for arrest of judgment long after a direct appeal has been pursued and
decided. It is meant to permit a district judge to arrest judgment sua sponte before a direct
appeal is taken." Longbine's motion was filed about seven years after he initiated his
direct appeal. We are not persuaded by his argument based on K.S.A. 22-3503. The
district court did not err in summarily dismissing Longbine's November 2016 motion to
withdraw his pleas.

Affirmed in part and dismissed in part.