State v. Carrera ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,710
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JOSE H. CARRERA,
Appellant.
MEMORANDUM OPINION
Appeal from Seward District Court; CLINT B. PETERSON, judge. Opinion filed November 18,
2022. Affirmed.
Jon R. Hansen, of Wichita, for appellant.
Russell Hasenbank, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., BRUNS, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: This is an appeal following the district court's order dismissing Jose
H. Carrera's successive motion to withdraw plea. On appeal, Carrera contends that the
district court erred by failing to inquire about an alleged conflict of interest regarding an
attorney who had represented him early on in his criminal case. Based on our review of
the record on appeal, we find that Carrera has not demonstrated excusable neglect to
justify the untimely filing of his successive motion to withdraw plea. Likewise, we find
that Carrera has failed to show that he was prejudiced by the alleged conflict of interest.
Thus, we affirm the district court.
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FACTS
On May 1, 2009, the State filed a complaint against Carrera for eight counts of
drug charges related to the possession and sale of marijuana and the district court
appointed the Public Defender's Office to defend him. Jennifer Chaffee was the first
appointed attorney to represent Carrera. Then, for a short period of time in August and
September 2009, Aaron Gipson served as Carrera's appointed attorney. However, Gipson
filed a motion to withdraw as Carrera's counsel and the district court released him from
representing Carrera on September 30, 2009. Gipson has not represented Carrera since
that time.
The district court appointed another attorney, Daniel Schowengerdt, to represent
Carrera. Schowengerdt assisted him in entering into a plea agreement with the State in
December 2009. As part of the agreement, Carrera agreed to plead no contest to one
count of selling marijuana and the State agreed to dismiss all of the other counts with
prejudice. On February 26, 2010, the district court sentenced Carrera to probation for a
term of 18 months with an underlying sentence of 19 months in prison to be followed by
24 months of postrelease supervision. Carrera did not file a direct appeal.
About one year later, another attorney—David K. Link—filed a postsentence
motion to withdraw plea on his behalf in February 2011. In the motion, Carrera's attorney
argued that the attorney who represented his client during plea negotiations did not fully
advise him of the potential immigration consequences of his plea as required by Padilla
v. Kentucky, 559 U.S. 356, 366-74, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). On May
11, 2011, the district court held an evidentiary hearing and heard testimony from both
Carrera and Schowengerdt. Carrera appeared and testified via telephone because he was
in Mexico due to being removed from the United States in April 2011 pursuant to orders
of removal by the Department of Homeland Security. The district court subsequently
denied the motion.
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In a journal entry entered on June 6, 2011, the district court found that Carrera had
been "adequately informed of the possible immigration consequences of this plea" and
that he "knowingly and intelligently entered his plea of no contest with a full
understanding of the plea's consequences." Although Carrera filed a timely notice of
appeal, the appeal was not pursued and was subsequently dismissed by the district court
on March 19, 2013.
On October 29, 2012, yet another attorney, David Phillip Leon, filed a motion to
reconsider its order denying Carrera's motion to withdraw plea. In this motion, Leon
raised the same argument under Padilla that Link had made in the original motion to
withdraw plea. Ultimately, the district court denied the motion to reconsider after Carrera
and Leon failed to appear at a hearing. In turn, Leon filed a second motion to reconsider
in July 2013.
Shortly thereafter, on August 9, 2013, the State filed a motion to revoke Carrera's
probation. In support of this motion, the State alleged that Carrera had been taken into
custody by federal authorities and an immigration judge had ordered that he be removed
from the United States. The record reveals that Carrera was ordered removed from the
United States on November 18, 2010, and was subsequently deported on April 11, 2011.
Ultimately, the district court terminated Carrera's probation on December 19,
2014.
Although Carrera evidently remained in Mexico, Leon filed a third motion to
reconsider on his behalf in September 2013. Once again, the motion asserted the same
argument under Padilla that had been included in the original motion to withdraw plea as
well as in the previous two motions to reconsider. The third motion to reconsider was
denied after a hearing in March 2014, at which Leon appeared on behalf of Carrera. In
denying the motion, the district court found that there was no intervening change of law
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or new evidence presented since its earlier rulings to justify the granting of relief to
Carrera. The district court also found that Carrera had failed to show manifest injustice.
Leon filed a fourth motion to reconsider—as well as an amended motion—on
Carrera's behalf in November 2017. Yet again, he raised the same argument under
Padilla that had previously been raised on multiple occasions. At a hearing held on
October 26, 2018, the district court denied the amended motion. Interestingly, Gipson—
who had briefly represented Carrera early on in this case—appeared at the hearing on
behalf of the State. Subsequently, Gipson also signed off on the journal entry denying the
amended motion.
On April 23, 2021, Leon filed a fifth motion to reconsider on behalf of Carrera,
which is the subject of this appeal. In this motion, Leon once again repeated his previous
arguments and also raised the issue of Gipson appearing on behalf of the State at the 2018
hearing after previously representing Carrera. On July 27, 2021, the district court entered
an order denying the fifth motion to reconsider. At the same time, the district court also
dismissed the following for lack of prosecution: Carrera's notice of appeal dated March
28, 2014; Carrera's notice of appeal dated March 31, 2014; Carrera's notice of appeal
dated November 9, 2018; and Carrera's notice of appeal dated December 24, 2019.
Furthermore, the district court dismissed all other outstanding motions and
prohibited Leon—who has subsequently been indefinitely suspended from the practice of
law by the Kansas Supreme Court—from filing future motions in this case. In doing so,
the district court found that "100% of Mr. Leon's motions and notices of appeal filed
since and including September 9, 2013 have been and are frivolous." The district court
also found that "these filings were made for the sole purpose to use as delay tactics for
the defendant's immigration issues." However, the district court did not specifically
address the issue of Gipson's conflict of interest.
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ANALYSIS
On appeal, the sole issue is whether the district court erred in failing to address
Gipson's alleged conflict of interest in its order denying his most recent motion to
reconsider his request to withdraw his 2010 plea. Generally, we review a district court's
decision to deny a postsentence motion to withdraw plea for an abuse of discretion. State
v. Cott, 311 Kan. 498, 499, 464 P.3d 323 (2020). Moreover, the movant—in this case
Carrera—bears the burden to prove the district court erred in denying the motion. State v.
Fox, 310 Kan. 939, 943, 453 P.3d 329 (2019). When a district court summarily denies a
motion to withdraw plea, we exercise unlimited review because we have the same access
to the motions, records, and files as the district court. State v. Wilson, 308 Kan. 516, 520,
421 P.3d 742 (2018).
After sentencing, a district court may allow a defendant to withdraw a plea only to
correct manifest injustice. K.S.A. 2021 Supp. 22-3210(d)(2). A defendant must bring a
postsentencing motion to withdraw plea within one year of the end of the defendant's
direct appeal. K.S.A. 2021 Supp. 22-3210(e)(1). A district court may allow a defendant to
withdraw a plea after the one-year period "only upon an additional, affirmative showing
of excusable neglect by the defendant." K.S.A. 2021 Supp. 22-3210(e)(2).
When a defendant has filed a motion to withdraw plea outside the one-year period,
we must "decide whether [the] 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). In other
words, the "procedural timeliness fork-in-the-road comes first" in the analysis. 313 Kan.
at 248. Similarly, we treat motions to reconsider the denial of a motion to withdraw plea
under the same excusable neglect analysis. See State v. Baker, No. 107,389, 2013 WL
1444615, at *2 (Kan. App. 2013) (unpublished opinion); see also State v. Arellano, No.
122,805, 2021 WL 4032858, at *4 (Kan. App. 2021) (unpublished opinion), rev. denied
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315 Kan. 969 (2022). In other words, if a motion is not timely and the movant cannot
show excusable neglect to justify the late filing, the motion should be denied without
considering its merits.
Here, Carrera's conviction and sentence became final on February 26, 2010—the
date of sentencing—because he did not file a direct appeal. Moreover, the district court
denied his postsentence motion to withdraw plea seeking relief based on Padilla v.
Kentucky following an evidentiary hearing held on May 11, 2011. Likewise, his appeal
was dismissed on March 19, 2013. Subsequently, Carrera has filed multiple motions to
reconsider seeking relief on the same grounds as asserted in his motion to withdraw plea
and each were denied.
Carrera's most recent motion to reconsider his postsentence motion to withdraw
plea was filed on April 23, 2021. This motion falls well outside the one-year time limit
for the filing of such motions. As a result, he was required to make an "affirmative
showing of excusable neglect." K.S.A. 2021 Supp. 22-3210(e)(2). Excusable neglect
requires more than carelessness, ignorance of the law, or unintentional inadvertence or
neglect. State v. Gonzalez, 56 Kan. App. 2d 1225, Syl. ¶ 2, 444 P.3d 362 (2019), rev.
denied 311 Kan. 1048 (2020). Rather, it requires "'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.'" 56 Kan. App. 2d at 1229-30
(quoting Black's Law Dictionary 1133 [9th ed. 2009]).
A review of the record on appeal reveals that Carrera has failed to show—either to
the district court or this court—excusable neglect to justify the belated filing of his most
recent motion. Carrera's current motion made no claim about why excusable neglect
existed. Carrera also makes no attempt on appeal to demonstrate excusable neglect.
Moreover, Carrera has repeatedly presented the same argument in his numerous motions
seeking to withdraw his plea. The only argument raised in the present motion that was not
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previously rejected by the district court relates to the alleged conflict of interest with
Gipson.
In his motion, Carrera claimed that the alleged conflict of interest had "come to
light" since the hearing held on October 26, 2018, at which Gipson appeared on behalf of
the State. However, Carrera offers no explanation for why he did not know about the
alleged conflict with Gipson at the hearing held more than two years before he filed the
present motion nor does he offer any explanation why he did not object at that time.
Without a showing of excusable neglect, we cannot address the merits of Carrera's
untimely motion.
Nevertheless, we point out that even if Carrera had established excusable neglect
to allow consideration of his untimely motion, he would not prevail on the merits. It is
important to recognize that he does not challenge any part of the district court's ruling
other than its failure to inquire regarding the alleged conflict of interest by Gipson.
Specifically, Carrera raises the issue of whether it was appropriate for an attorney who
represented him briefly back in 2009 to appear at a hearing on behalf of the State in 2018.
Significantly, Carrera makes no allegation that the counsel who represented him at
the 2018 hearing had a conflict of interest. Hence, this case is distinguishable from State
v. Toney, 39 Kan. App. 2d 1036, 187 P.3d 138 (2008), which is the only case cited by
Carrera in support of his argument. As Carrera's brief appears to recognize, Toney
involved a potential conflict between a defendant and his own attorney in which
prejudice is presumed. 39 Kan. App. 2d at 1044. Unlike this case, Toney did not involve a
potential conflict between the defendant and the State's attorney.
In the present case, Carrera has failed to show that he was prejudiced in any way
by the fact that Gipson had briefly represented him nine years before the hearing in 2018.
It seems reasonable that both Carrera and Gipson may have forgotten this brief encounter.
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Regardless, the record reflects that Gipson's involvement in Carrera's criminal case was
short, and it did not involve negotiating the plea agreement that was ultimately entered
into. Further, Carrera has previously been heard on the merits regarding his legal
argument under Padilla v. Kentucky and there is no reason to conclude that the results of
his most recent motion to reconsider would have been different had Gipson not
previously represented him for a few months in 2018.
We, therefore, conclude that the district court did not err by denying Carrera's
most recent motion to reconsider the denial of his postsentence motion to withdraw plea.
Affirmed.
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