State v. Gable

NOT DESIGNATED FOR PUBLICATION
No. 123,741
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
QUINTIN WILLIAM GABLE,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed February 18,
2022. Affirmed.
Jacob Nowak, of Kansas Appellate Defender Office, for appellant.
Kristi D. Allen, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before WARNER, P.J., CLINE, J., and RACHEL L. PICKERING, District Judge, assigned.
PER CURIAM: Quintin Gable appeals the summary denial of his motion to
withdraw his plea. But Gable did not file that motion within the time frame required by
Kansas law, nor does he provide any explanation to excuse this delay. We therefore
affirm the district court's decision.
The State originally charged Gable with attempted first-degree murder.
Eventually, Gable and the State entered into a plea agreement, where Gable pleaded
guilty to an amended charge of aggravated battery. The district court imposed a 172-
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month prison sentence for his conviction. After an unsuccessful appeal to this court and
the denial of his petition for review by the Kansas Supreme Court, the appellate mandate
was issued in November 2018.
More than a year later, in June 2020, Gable filed a pro se motion to withdraw his
guilty plea. In his motion, he asserted that if he had known the implications of pleading
guilty to aggravated battery, he would not have entered into the plea agreement. He
provided no explanation, however, for why that motion was not filed within one year of
the appellate mandate, as required by K.S.A. 2020 Supp. 22-3210(e)(1). The district court
found that Gable's assertions were vague and conclusory and that the motion was
untimely. The court therefore determined that no hearing was necessary and summarily
denied the motion. Gable appeals.
A court may summarily deny a motion to withdraw a plea only when no
substantial legal or triable factual questions exist, so that the record conclusively shows
the defendant is not entitled to relief. State v. Kelly, 298 Kan. 965, Syl. ¶ 2, 318 P.3d 987(2014). The defendant bears the burden of asserting sufficient facts to warrant a hearing
on his claims. 298 Kan. 965, Syl. ¶ 2. Appellate courts review the summary denial of a
plea-withdrawal motion de novo, as we are in the same position to evaluate the written
motion as the district court. 298 Kan. 965, Syl. ¶ 3.
A postsentence motion to withdraw a plea must be brought within one year after
the final judgment in a criminal case. K.S.A. 2020 Supp. 22-3210(e)(1). For this case,
that means Gable had to file his motion within a year after appellate jurisdiction over his
direct appeal ended. A court may extend this time limit only if the defendant makes "an
additional, affirmative showing of excusable neglect" to explain the reasons for the delay
in seeking relief. K.S.A. 2020 Supp. 22-3210(e)(2). Excusable neglect requires more than
simple unintentional neglect, carelessness, or ignorance of the law. State v. Gonzalez, 56
Kan. App. 2d 1225, Syl. ¶ 2, 444 P.3d 362 (2019).
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Because Gable filed his motion more than a year after his direct appeal ended, he
had to provide a meaningful explanation for his delay—that is, to establish excusable
neglect—before the district court could consider the merits of his claims. But his motion
did not address the delay; he only discussed the merits of the claims themselves.
On appeal, Gable argues the district court erred by summarily dismissing his
motion. He asserts that the record does not conclusively show that he is not entitled to
relief, so the court should have held an evidentiary hearing on the merits of his claim. He
further argues that if the court would have held a hearing, he would have had the
opportunity to provide his reasons for the delay in filing his motion. Yet he does not—
even now—provide any explanation for that delay, let alone a reason that would qualify
as excusable neglect.
Kansas law is clear that a defendant who files an untimely motion to withdraw a
plea must establish excusable neglect before a court may proceed to the merits of the
motion. State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021). Gable has not made that
showing. See State v. Hill, 311 Kan. 872, 878, 467 P.3d 473 (2020) (before court
addresses excusable neglect, defendant must make some effort to demonstrate neglect
exists). Because Gable has not asserted facts that would excuse his untimely filing, the
district court had no obligation to hold a hearing to allow him to cure that omission. See
State v. Louis, 59 Kan. App. 2d 14, 20, 476 P.3d 837 (2020), rev. denied 314 Kan. 1044(2021).
Gable has not shown excusable neglect to explain his untimely filing. Thus, the
district court did not err when it summarily denied his plea-withdrawal motion.
Affirmed.
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