State v. Romero

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NOT DESIGNATED FOR PUBLICATION

No. 112,891

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LUIS A. ROMERO,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed February 5,
2016. Affirmed.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

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

Before ARNOLD-BURGER, P.J, GREEN and STANDRIDGE, JJ.

Per Curiam: Luis A. Romero appeals from the district court's order denying his
untimely postsentence motion to withdraw his guilty plea to felony burglary and
misdemeanor theft. Romero contends he demonstrated excusable neglect sufficient to
justify an extension of the statutory 1-year time limitation because he was unaware of
potential immigration consequences arising from his plea at the time he entered his plea.
For the reasons stated below, we affirm the decision of the district court.


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FACTS

On July 25, 2011, Romero pled guilty to one count each of felony burglary and
misdemeanor theft pursuant to a plea agreement with the State. Prior to entering his plea,
Romero reviewed and signed an acknowledgment of rights and entry of plea with his
counsel. The acknowledgment of rights and entry of plea contained the details of the
agreement, its potential effect, and the constitutional protections a defendant relinquishes
when entering a plea. Moreover, paragraph 9 of the acknowledgment of rights and entry
of plea stated that "[i]f I am not a United States citizen, I understand that a conviction of a
felony offense most likely will result in my deportation from the United States." At the
plea hearing, Romero advised the court that he had read and understood the plea
agreement and the acknowledgment of rights and entry of plea, that he had reviewed
these documents with counsel, and that he had no additional questions about these
documents at that time. On August 30, 2011, the district court sentenced Romero to a 12-
month term of probation with an underlying prison term of 11 months. Romero did not
appeal from either his plea or his sentence.

On April 4, 2012, Romero appeared at a probation violation hearing where he
admitted to violating the terms of his probation. As a result, the district court revoked,
reinstated, and extended Romero's probation for an additional 12 months.

On March 1, 2013, Romero consented to an order extending his probation to
April 4, 2014, for the purpose of allowing him to pay all financial obligations related to
the case.

On November 20, 2013, Romero appeared at another probation violation hearing
and again admitted to violating the terms of his probation. This time, the district court
revoked Romero's probation and ordered him to serve the underlying 11-month prison
sentence.
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On July 7, 2014, Romero filed a motion to set aside his plea. In support of the
motion, Romero alleged he did not fully understand the consequences of his plea because
his trial counsel had failed to discuss with him the potential immigration consequences
arising from his plea, as required by Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473,
176 L. Ed. 2d 284 (2010). The district court heard argument from counsel at a
nonevidentiary hearing. Romero was not present at the hearing, as he apparently was in
the custody of Immigration and Customs Enforcement. Following argument, the district
court held that Romero's motion was untimely under K.S.A. 2015 Supp. 22-3210(e)(1)
and that Romero had not met his burden to show excusable neglect to justify an extension
of the statutory 1-year time limitation. Romero timely appeals.

ANALYSIS

Romero argues the district court erred in denying his motion to withdraw his plea
without holding an evidentiary hearing. Specifically, he claims that he demonstrated
excusable neglect sufficient to justify an extension of the statutory 1-year time limitation
because the immigration consequences arising from his plea were not made clear until
after his probation was revoked in November 2013, well after the 1-year deadline to file
his motion had passed.

An appellate court generally reviews the denial of a motion to withdraw a plea for
abuse of discretion. The defendant has the burden of proving abuse of discretion. State v.
Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014). But here, the district court summarily
denied Romero's motion after finding that he had failed to establish excusable neglect to
file an untimely motion. The district court made this determination based on arguments of
counsel without hearing evidence. In this instance, this court exercises de novo review
because we are in the same position as the district court to determine whether the motion,
records, and files conclusively show that Romero is entitled to no relief. See State v.
Moses, 296 Kan. 1126, 1127-28, 297 P.3d 1174 (2013).
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K.S.A. 2015 Supp. 22-3210(d)(2) provides that a district court may allow a
defendant to withdraw his or her plea after sentencing to prevent manifest injustice.
Relevant to the facts presented here, a motion 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."
K.S.A. 2015 Supp. 22-3210(e)(1)(A). The time limitation herein may be extended by the
court only upon "an additional, affirmative showing of excusable neglect by the
defendant." K.S.A. 2015 Supp. 22-3210(e)(2).

Romero was sentenced on August 30, 2011. He did not pursue a direct appeal.
Thus, he had until September 13, 2012, to file his postsentence motion to withdraw his
plea. See K.S.A. 2015 Supp. 22-3210(e)(1)(A) (postsentence motion to withdraw plea
must be brought within 1 year of termination of appellate jurisdiction); K.S.A. 2015
Supp. 22-3608(c) (14 days to perfect appeal after judgment of the district court). Romero
did not file his motion until July 7, 2014. Romero acknowledges that his written motion
to withdraw his plea was filed outside the 1-year time limitation provided for in K.S.A.
2015 Supp. 22-3210(e)(1). Thus, Romero's motion was untimely and can be reviewed
only if he shows excusable neglect in failing to file his motion in a timely manner.

Although it appears there are no published cases defining excusable neglect as the
term is used in K.S.A. 2015 Supp. 22-3210(e)(2), panels of this court have referred to the
following definition of excusable neglect found in Black's Law Dictionary:

"'[E]xcusable 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 par[t]y'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).
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"This definition is consistent with Kansas cases applying K.S.A. 60-206 and
K.S.A. 60-260, both of which use the term excusable neglect. See Tyler v. Cowen
Construction, Inc., 216 Kan. 401, 406-07, 532 P.2d 1276 (1975); Wilson v. Miller, 198
Kan. 321, 322-23, 424 P.2d 271 (1967). Our Supreme Court has also defined
'"[i]nexcusable neglect"' to be 'closely akin to "reckless indifference." It implies
something more than the unintentional inadvertence or neglect common to all who share
the ordinary frailties of mankind.' Jenkins v. Arnold, 223 Kan. 298, 299, 573 P.2d 1013
(1978). Although these definitions are found in civil cases, our court has conversely
examined criminal cases when defining 'manifest injustice' under K.S.A. 60-1507(f)(2),
which is part of the civil code. See Ludlow v. State, 37 Kan. App. 2d 676, 686, 157 P.3d
631 (2007)." State v. Phol, No. 109,964, 2014 WL 2225354, *2-3 (Kan. App. 2014)
(unpublished opinion), rev. denied 301 Kan. __ (May 12, 2015).

Applying these authorities to the question presented here, we find Romero failed
to make a showing of excusable neglect. Specifically, the evidentiary record on appeal
contradicts Romero's claim that he was unaware of the immigration consequences of his
plea until his probation was revoked in November 2013. When Romero entered his plea
in 2011, he was informed in the acknowledgment of rights and entry of plea document
that a felony conviction would "most likely" result in deportation. Romero admitted at the
plea hearing that he had reviewed this document with counsel and understood it. In State
v. Lowe, No. 103,678, 2012 WL 139264 (Kan. App. 2012) (unpublished opinion), rev.
denied 296 Kan. 1133 (2013), the defendant reviewed and signed an acknowledgment of
rights and entry of plea identical to the one signed by Romero in this case. At the plea
hearing, the district court determined that Lowe had gone over the document with his
lawyer and understood it. A panel of this court found that this satisfied the requirements
of Padilla in that the language clearly identified deportation as a likely outcome and not
merely an abstract possibility. 2012 WL 139264, at *4. Although Romero may not have
learned that his deportation was imminent until his probation was revoked in November
2013, the evidentiary record here establishes he was made aware at the time he entered
his guilty plea that his legal status in the United States was at risk and that there was a
likelihood that he would be deported as a consequence of his plea. As such, Romero's
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failure to timely file his motion to withdraw his plea cannot be blamed on an "unexpected
or unavoidable hindrance or accident." See Phol, 2014 WL 2225354, at *2.

Romero did not meet his burden to show excusable neglect to allow the filing of
his motion to withdraw his plea beyond the statutory 1-year time limitation. Accordingly,
the district court correctly held that Romero's motion was procedurally barred by K.S.A.
2015 Supp. 22-3210(e)(1)(A).

Affirmed.