              IN THE SUPREME COURT OF THE STATE OF KANSAS

                                         No. 109,778

                                      STATE OF KANSAS,
                                          Appellee,

                                               v.

                                  CHRISTOPHER DAVISSON,
                                        Appellant.


                               SYLLABUS BY THE COURT

1.
       Generally, an appellate court reviews for abuse of discretion a district court
decision to deny a postsentence motion to withdraw plea under K.S.A. 2015 Supp. 22-
3210(d)(2).


2.
       Judicial discretion is abused if judicial 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., substantial competent evidence does not
support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion is based.


3.
       The movant bears the burden to prove the district court abused its discretion in
denying the motion to withdraw plea.



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4.
        K.S.A. 2015 Supp. 22-3210(e)(1) requires that a motion to withdraw plea be
brought within 1 year of: (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.


5.
        The 1-year limit for filing a motion to withdraw plea, found in K.S.A. 2015 Supp.
22-3210(e)(1), began to run for preexisting claims on the date the amended statute
became effective: April 16, 2009.


6.
        K.S.A. 2015 Supp. 22-3210(e)(2) provides the time limit for filing a motion to
withdraw plea may be extended by the court only upon an additional, affirmative
showing of excusable neglect by the defendant.


7.
        Under the circumstances of this case, defendant's ignorance of the law was
insufficient to show excusable neglect that would justify the late filing of his motion to
withdraw plea.


        Appeal from Neosho District Court; DARYL D. AHLQUIST, judge. Opinion filed March 25, 2016.
Affirmed.


        Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.




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        Linus A. Thuston, county attorney, argued the cause, and Derek Schmidt, attorney general, was
with him on the brief for appellee.


The opinion of the court was delivered by


        NUSS, C.J.: Christopher Davisson appeals from the district court's dismissal of his
motion to withdraw his guilty plea as untimely under K.S.A. 2015 Supp. 22-3210(d). We
affirm the court's dismissal because Davisson failed to establish excusable neglect that
would justify the late filing of his motion.


                             FACTS AND PROCEDURAL BACKGROUND

        In November 2000, Davisson pled guilty to felony murder, aggravated kidnapping,
and aggravated robbery. In February 2001, the district court sentenced him to 20 years to
life for felony murder, 246 months for aggravated kidnapping, and 61 months for
aggravated robbery, with all sentences to run consecutively.


        In May 2011, more than 10 years after Davisson entered his guilty plea, he filed a
motion to withdraw it under K.S.A. 2010 Supp. 22-3210(d). The State responded that his
motion was untimely. (For Convenience, throughout this opinion we will refer to the
current statute as it appears in the 2015 Supp., which is identical in wording to the 2010
Supp. in effect in May 2011.)


        The parties stipulated to bifurcated hearings, the first to address whether excusable
neglect could be shown to justify the lateness of Davisson's motion under K.S.A. 2015
Supp. 22-3210(e)(2), and the second to address whether his motion was meritorious if
excusable neglect were found to exist. At the evidentiary hearing on excusable neglect,
Davisson testified that during his incarceration he had access to a law library staffed by
two library workers who would pull materials for inmates. He also testified he was
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familiar with the process for requesting prison library access. But he claimed accessing
the library was a "long process" and the resources were "inadequate." He further testified
he did not have access to an attorney or computerized legal research, e.g., LexisNexis or
Westlaw.


       According to Davisson's testimony, he did not know about the possibility of
withdrawing his guilty plea until he overheard two other inmates discussing the topic a
few months prior to filing his motion. Davisson then received help from a prison "legal
guy" in preparing and filing the motion. The record does not reveal if this person was a
prison employee or another inmate. Davisson also testified he had no knowledge of the 1-
year time limit for filing his withdrawal motion until he submitted his motion to the
district court. See K.S.A. 2015 Supp. 22-3210(e)(1).


       The district court essentially found Davisson's lack of knowledge of the plea
withdrawal statute did not constitute excusable neglect. The court reasoned that
Davisson's alleged grounds were not specific to him but a complaint common to almost
all inmates in the Department of Corrections. It concluded that lack of access to legal
authority was unrelated to the timing of his motion. Because of Davisson's late filing and
his failure to show excusable neglect, the district court dismissed his motion without
considering the merits.


       Davisson timely appealed. Our jurisdiction is proper under K.S.A. 2015 Supp. 22-
3601(b)(3) (maximum sentence of life imprisonment imposed).


       More facts will be added as necessary to the analysis.




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                                           ANALYSIS

Issue: The district court did not abuse its discretion by concluding Davisson did not
establish excusable neglect for the untimely filing of his motion to withdraw his guilty
plea.

       Standard of review


       A motion to withdraw a guilty plea that is filed after sentencing is subject to a
manifest injustice standard. K.S.A. 2015 Supp. 22-3210(d)(2) ("To correct manifest
injustice the court after sentence may set aside the judgment of conviction and permit the
defendant to withdraw the plea."). An appellate court reviews a district court's dismissal
of such a postsentence motion for abuse of discretion. Cf. State v. Szczygiel, 294 Kan.
642, 643, 279 P.3d 700 (2012) (denial of motion to withdraw plea reviewed for abuse of
discretion). Judicial discretion is abused if judicial 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., substantial competent evidence does not
support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion is based. State v. Beaman, 295 Kan. 853, 865, 286 P.3d 876 (2012). The
movant bears the burden to prove the district court abused its discretion in dismissing the
motion. Cf. State v. Bricker, 292 Kan. 239, 244, 252 P.3d 118 (2011) (movant's burden to
prove abuse of discretion in denial of motion to withdraw plea).


       In Davisson's brief, he contends this court should determine whether the discretion
of the district court was guided by erroneous legal conclusions—i.e., whether it was
based on an error of law. At oral argument, however, Davisson contended the particular
test to be applied under our circumstances for abuse of discretion—whether the district
court decision was based on an error of law, or fact, or when no reasonable person would

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agree with the decision—is unclear. According to Davisson, the confusion exists because
this court has not yet defined what constitutes "excusable neglect" under K.S.A. 2015
Supp. 22-3210(e)(2) to permit a late filing. The State responds that the standard of our
review is whether no reasonable person would take the view adopted by the district court.


       Discussion


       K.S.A. 2015 Supp. 22-3210(e)(1) provides that any action under subsection (d)(2)
to withdraw a plea 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." However, subsection (e)(2) of K.S.A. 2015 Supp. 22-3210 provides this time
limit "may be extended by the court only upon an additional, affirmative showing of
excusable neglect by the defendant."


       The legislature added the 1-year time limit under subsection (e)(1) in 2009. L.
2009, ch. 61, sec. 1. But this addition failed to address preexisting claims—i.e., any plea
withdrawal motions yet to be made by defendants who were sentenced prior to the
enactment of the time limitation. See Szczygiel, 294 Kan. at 644. In Szczygiel, we held
that a 1-year grace period applies to those preexisting claims. 294 Kan. at 643-44. In
short, defendants with preexisting claims had until April 16, 2010—1 year after the
statutory addition became effective—to file a motion to withdraw plea. State v. Moses,
296 Kan. 1126, 1128, 297 P.3d 1174 (2013).


       In the present case, Davisson did not file his motion until May 10, 2011, nearly 13
months beyond the Moses deadline. Accordingly, whether the district court could
consider the possible merits of his motion depended upon whether he could meet his
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burden of showing excusable neglect for his late filing. See K.S.A. 2015 Supp. 22-
3210(e)(2) (extension requires "affirmative showing of excusable neglect by the
defendant"); see also Canaan v. Bartee, 272 Kan. 720, 733, 35 P.3d 841 (2001) (party
claiming excusable neglect under K.S.A. 60-260[b][1] has burden to plead and prove its
claim).


       In support of Davisson's assertion that the district court abused its discretion in
denying his motion to withdraw plea, he broadly contends that "lack of knowledge of a
course of action is an excuse for the neglect of that action." So he argues that instead of
procedurally barring the motion, the district court should have heard it on the merits, e.g.,
whether the search of his vehicle was unlawful.


       The State counters that ignorance of the law does not usually constitute excusable
neglect. It also argues that Davisson could have sought information about his options for
postconviction relief by accessing the law library or contacting trial counsel or another
attorney. The State further notes that Davisson's criminal history suggests he has some
knowledge of the criminal justice system and its processes. Among other things, he had
five juvenile felony adjudications and five adult felony convictions between 1989 and
1995. He also was incarcerated with the Department of Corrections on four different
occasions with the most recent one ending in September 1998—2 years before entering
his guilty plea in the present case.


       Finally, the State points out Davisson wrote letters to the Clerk of the District
Court of Neosho County in 2007 requesting information about his case and to Judge
Timothy E. Brazil of that court in 2008 requesting copies of certain pleadings in his case.
The State argues this correspondence shows Davisson had opportunities to ask about
further steps he could take regarding his case.


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       With this background, we now examine what constitutes excusable neglect under
K.S.A. 2015 Supp. 22-3210(e)(2). This is an issue of first impression for this court.


       During oral arguments Davisson's counsel asked this court to consider the
particular circumstances of his case and to make an equitable determination to find
excusable neglect so he could proceed to the merits of his motion to withdraw his plea.
As support, she primarily relied upon Pioneer Investment Services Co. v. Brunswick
Associates Ltd. Partnership, 507 U.S. 380, 392, 113 S. Ct. 1489, 123 L. Ed. 2d 74
(1993), to argue that excusable neglect was a somewhat elastic concept under Federal
Rule of Civil Procedure 6(b). There, respondents filed their bankruptcy proofs of claim
20 days after the bar date along with a motion requesting that the court permit the late
filing under the Federal Rule of Bankruptcy Procedure 9006(b)(1) which permits an
extension when failure to timely file was the result of excusable neglect.


       In recognizing the elasticity of the concept, the Supreme Court observed that
excusable neglect is not limited strictly to omissions caused by circumstances beyond the
control of the movant. But the Court also acknowledged that "ignorance of the rules, or
mistakes construing the rules do not usually constitute 'excusable' neglect." 507 U.S. at
392.


       In opposing Davisson's arguments, the State first emphasizes the basic rationale
underlying Pioneer Investment Services Co.'s acknowledgment, i.e., "ignorance of [the]
law excuses no one." School District v. State, 29 Kan. 57, 67 (1882); see also State ex rel.
Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982) ("'[i]gnorance of the law
is no excuse'" is an "ancient maxim").


       We find valuable guidance in a decision from this court applying this maxim to a
defendant's motion to withdraw a guilty plea: State v. Woodward, 288 Kan. 297, 202
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P.3d 15 (2009). There, similar to Davisson, the defendant pled guilty to felony murder,
kidnapping, and other crimes. He was sentenced to a controlling sentence of life, plus an
additional 30 years to life. Sixteen years later, while an inmate, he moved to vacate his
guilty pleas under K.S.A. 22-3210(d) and altogether dismiss his indictment based on
"'newly discovered evidence.'" 288 Kan. at 304.


       According to the defendant's pro se supplemental appellate brief, the new
"evidence" was his recent discovery of K.S.A. 22-2910. At the time Woodward entered
his plea in 1991, this statute provided that defendants were not required to plead to
criminal charges as a condition for diversion—which Woodward claimed he essentially
had done by providing incriminating information "'under the promise of a proposed
diversion.'" 288 Kan. at 303. The statute prohibited evidentiary use of his statements
made during diversion discussions. But the State allegedly used them to charge him and
provide the factual basis for his guilty pleas. Like Davisson, however, Woodward's
motion to withdraw his guilty plea was denied by the district court.


       When Woodward appealed the denial of his motion to this court, we readily
rejected his "newly discovered statute" argument as constituting postsentence manifest
injustice for withdrawing his plea under K.S.A. 22-3210. As support, we stated: "The
maxim that ignorance of the law is no excuse is well established, longstanding, and
widely known." 288 Kan. at 304. Based upon Woodward's holding and underlying
rationale, Davisson's argument that he only recently discovered K.S.A. 2015 Supp. 22-
3210 is similarly unconvincing. In Woodward we rejected the defendant's use of his
newly found statutory grounds in support of his motion to withdraw his plea, while here
we simply reject the defendant's untimely use of his newly found statutory right to file the
motion.




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       Authority from other jurisdictions also supports the basic proposition that
ignorance of the law should not constitute excusable neglect for inmates or criminal
defendants under K.S.A. 2015 Supp. 22-3210(e)(2). See, e.g., Klein v. Neal, 45 F.3d
1395, 1397 n.2 (10th Cir. 1995) (even though petitioner in postconviction collateral
attack was pro se inmate, court held "ignorance of the statute's existence insufficient to
constitute excusable neglect" to extend time limit on untimely filed petition); United
States v. Gibson, 832 F. Supp. 324, 327 (D. Kan. 1993) (finding late filing of pro se
criminal appeal not due to excusable neglect because "ignorance of the law or
unfamiliarity with the federal rules will almost invariably fall short of excusable
neglect"); see also United States v. Madrid, 633 F.3d 1222, 1227-28 (10th Cir. 2011)
(district court abused its discretion in finding excusable neglect based upon defense
counsel's erroneous belief that he had 30 days in which to file notice of criminal appeal);
State v. Murray, 162 N.J. 240, 246, 744 A.2d 131 (2000) (postconviction relief petition
filed after 5-year time limit was not supported by excusable neglect when criminal
defendant asserted he lacked sophistication in the law).


       Similarly, in the civil arena in Kansas, K.S.A. 2015 Supp. 60-260(b)(1) allows a
court to give relief from a final judgment, order, or proceeding because of excusable
neglect, among other grounds. We have noted that in this context excusable neglect
"implies something more than the unintentional inadvertence or neglect common to all
who share the ordinary frailties of mankind." Montez v. Tonkawa Village Apartments,
215 Kan. 59, 65, 523 P.2d 351 (1974); see also Tyler v. Cowen Construction, Inc., 216
Kan. 401, 407-09, 532 P.2d 1276 (1975) ("[i]nadvertent neglect . . . is not to be equated
with excusable neglect").


       We recently made clear that "ignorance of the rules does not constitute excusable
neglect under" K.S.A. 2015 Supp. 60-260(b)(1). State v. Buser, No. 105,982 (order dated
September 25, 2015) (unpublished); see also, e.g., Pogia v. Ramos, 10 Hawaii App. 411,
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416, 876 P.2d 1342 (1994) ("'Ignorance of court rules does not constitute excusable
neglect."') (quoting Swimmer v. I. R. S., 811 F.2d 1343, 1345 [9th Cir. 1987]); Whitefish
Credit Union v. Sherman, 367 Mont. 103, 109, 289 P.3d 174 (2012) ("Excusable neglect
requires some justification for an error beyond mere carelessness or ignorance of the law
on the part of the litigant or his attorney.").


       Davisson offers no other argument for why the late filing of his motion is justified
by excusable neglect. He only argues 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.


       Accordingly, we hold the district court correctly ruled that Davisson had not
established the requisite grounds for allowing his late withdrawal motion to be considered
on the merits under K.S.A. 2015 Supp. 22-3210(e)(2). Simply put, the court was correct
to hold that under the circumstances of this case there was no excusable neglect;
Davisson's ignorance of the law was insufficient. Thus there is no abuse of discretion.
See Beaman, 295 Kan. at 865 (abuse when discretion guided by erroneous legal
conclusion). The court correctly dismissed Davisson's motion as untimely and correctly
declined to consider its merits.


       Accordingly, the decision of the district court is affirmed.




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