Speer v. State

1
NOT DESIGNATED FOR PUBLICATION

No. 115,782

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

NICHOLAS DEAN SPEER,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wilson District Court; DAVID WILLIAM ROGERS, judge. Opinion filed June 9, 2017.
Affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Jill E. Chard, county attorney, and Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., ATCHESON, J., and FAIRCHILD, S.J.

Per Curiam: Nicholas Dean Speer appeals from the district court's summary
dismissal of his K.S.A. 60-1507 motion. In February 2010, Speer pled no contest to the
manufacture of a controlled substance. Granting the parties' joint motion for a downward
durational departure, the district court sentenced Speer to 89 months in prison. Several
years after his sentencing, Speer filed a pro se K.S.A. 60-1507 motion. The State moved
to dismiss the motion as untimely. In response, Speer conceded that his motion was
untimely but asserted that an extension of the statutory 1-year time limitation was
necessary to prevent manifest injustice. Without a hearing, the district court dismissed
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Speer's motion, finding that Speer failed to establish manifest injustice to extend the time
limitation. Finding no reversible error on the part of the district court, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 28, 2009, Speer was voluntarily admitted to Osawatomie State
Hospital for inpatient mental health treatment. According to his discharge summary,
Speer had a long history of mental illness and entered treatment with depression and
suicidal ideation. The treating physician diagnosed Speer with mood disorder and
alcohol, cannabinoid, and amphetamine dependence. During his hospitalization, the
treating physician prescribed Speer several antidepressant and antianxiety medications.

On October 5, 2009, before his discharge from Osawatomie State Hospital, the
State charged Speer with the manufacture of methamphetamine, possession of
methamphetamine, possession of drug paraphernalia, and obstructing legal process or
official duty. The record on appeal does not indicate that a probable cause affidavit was
attached to the original complaint. The district court appointed defense counsel to
represent Speer in his criminal case.

At the time of Speer's discharge from the hospital on October 9, 2009, Speer
demonstrated general improvement in treating his depression and anxiety and was calm,
cooperative, alert, and oriented. Speer was released to the Wilson County Correctional
Facility.

On October 18, 2009, during his incarceration, Speer requested immediate medical
treatment. In the request, Speer stated that he could not stop shaking, had a severe panic
attack, and could not calm down and sleep. At an appointment on October 26, 2009,
Speer complained of anxiety and "nerves." The treating physician assessed Speer as
having anxiety and depression and increased his anti-anxiety medication. The next day,
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Speer was evaluated at the Four County Medical Health Center. At that evaluation, Speer
presented with anxiety and mood related symptoms.

Speer was later readmitted to Osawatomie State Hospital for emergency
psychiatric care based on an ex parte emergency order by the Wilson County District
Court. During this hospitalization, Speer demonstrated suicidal ideations and was very
upset, angry, threatening, yelling, and screaming. Speer was discharged on November 4,
2009, and transferred back to jail with instructions that he continue taking several
antidepression, antianxiety, and sleep medications.

Speer returned to Osawatomie State Hospital on December 18, 2009, for further
psychiatric treatment. Speer had cut himself with a razor and reported having auditory
hallucinations. Speer also reported that he heard voices in his head telling him to sacrifice
himself to God. At that time, the treating physician diagnosed Speer with adjustment
disorder with mixed disturbance of emotions and conduct, bipolar disorder with episodes
of severe psychotic features, and personality disorder. Speer was discharged on
December 25, 2009.

At a hearing on January 28, 2010, Speer waived a preliminary hearing of the
complaint. The district court asked Speer whether he understood the meaning of his
waiver. Speer responded in the affirmative, stating that he understood and accepted the
waiver.

On February 5, 2010, the State amended the complaint, charging Speer with the
manufacture of a controlled substance, possession of methamphetamine, and obstructing
legal process or official duty. The parties ultimately entered into a plea agreement in
which Speer agreed to plead no contest to the manufacture of a controlled substance in
exchange for the State's agreement to dismiss the remaining charges and a joint
recommendation for a downward durational departure to an 89-month prison sentence.
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That same day, the district court held a plea hearing at which the parties first
briefly recapitulated the terms of the plea agreement. The district court then conducted a
plea colloquy. Among other inquiries, the district court asked Speer whether he was
satisfied with the representation provided to him. Speer responded: "Yes, absolutely."
Speer also stated that he had never had any sort of mental or emotional difficulties or
treatment which would negatively affect his ability to understand his plea and that he had
discussed the plea agreement with his defense attorney and understood it. Based on
Speer's responses, the district court found that Speer was capable of making a knowing
and intelligent decision regarding his rights, accepted his plea, and found him guilty of
manufacturing a controlled substance.

On March 8, 2010, Speer completed a mental health screening through the Kansas
Department of Corrections. At that screening, Speer reported anxiety, tremors, and
bipolar disorder. Speer did not report suicidal ideations, and the screener did not observe
depression, anxiety, or bizarre behavior. At the time, Speer was taking several
antidepressant and antianxiety medications. Speer reported that he had never tried to kill
himself, been depressed, or experienced hallucinations.

At his sentencing on April 2, 2010, the district court granted the parties' joint
motion for a downward durational departure and, as recommended, sentenced Speer to 89
months in prison. Speer did not directly appeal his conviction or sentence.

In a typewritten letter filed September 6, 2013, Speer requested a copy of the
affidavit of probable cause from the Wilson County District Court. Speer requested that
the district court respond "A.S.A.P.," stating that he needed the affidavit for an appeal.
On that same day, the Wilson County Deputy Clerk responded to Speer's letter and
informed him that "[t]here [was] not a document like that in the case." The Deputy Clerk
instructed Speer to contact the county attorney or arresting law enforcement agency.

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On October 21, 2013, Speer moved pro se for the release of the affidavit of
probable cause. In the motion, Speer asserted that he needed the affidavit to pursue
appellate action. The district court addressed Speer's pro se motion at a hearing on
December 6, 2013, and ordered the State to produce the probable cause affidavit if it
existed. In a letter dated December 6, 2013, the county attorney advised Speer that she
was unable to locate a probable cause affidavit but would continue to look for it.

On January 6, 2014, Speer filed a pro se K.S.A. 60-1507 motion. In the motion,
Speer claimed that he was being held in custody unlawfully because (1) the State never
filed a probable cause affidavit in his criminal proceedings and (2) his defense counsel
provided ineffective assistance by providing false information concerning the appeal
process and by failing to file a notice of appeal within 10 days of his conviction.

One day later, the district court informed Speer by letter that the county attorney
had located the probable cause affidavit. The district court further advised Speer that it
had instructed the county attorney to file the original probable cause affidavit with the
court and that the State had not previously filed the original affidavit with the court.

The district court subsequently appointed counsel to represent Speer in the K.S.A.
60-1507 proceedings. At a status hearing on April 16, 2014, the district court allowed
Speer's court-appointed counsel additional time to file an amended motion.

Speer's court-appointed counsel filed an amended motion on January 7, 2015. In
the motion, Speer contended his defense counsel had provided ineffective assistance by
failing to have his competency evaluated. Speer also alleged that (1) he did not freely and
voluntarily enter his plea as a result of his incompetency, (2) he was receiving treatment
and taking nine prescription medications leading up to his arraignment, and (3) some of
the medications affected his mood and hindered him from remaining clear-headed.
Additionally, Speer asserted his defense counsel provided ineffective assistance by
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failing to challenge the absence of a probable cause affidavit supporting the arrest
warrant.

On February 27, 2015, the State moved to dismiss Speer's K.S.A. 60-1507 motion
on the basis that it was untimely. Alternatively, the State requested that the district court
order Speer to provide additional allegations regarding whether the court should extend
the 1-year time limitation to prevent manifest injustice. After a nonevidentiary hearing,
the district court ordered Speer to brief the issue of manifest injustice.

Nearly 1 year later, on February 19, 2016, Speer filed a memorandum in support
of his K.S.A. 60-1507 motion. In the memorandum, Speer conceded his K.S.A. 60-1507
motion was untimely but contended that an extension of the 1-year time limitation was
necessary to prevent manifest injustice. In particular, Speer asserted that his defense
counsel provided ineffective assistance by failing to challenge the absence of the
probable cause affidavit and by failing to request a competency determination.

The district court summarily dismissed Speer's K.S.A. 60-1507 motion,
concluding it was untimely and that Speer had failed to demonstrate manifest injustice to
extend the 1-year time limitation. Acknowledging there was no specific motion filed to
withdraw Speer's plea, the district court also analyzed whether Speer's motion was timely
as a motion to withdraw a plea. The district court concluded that Speer had failed to show
excusable neglect in filing his motion to withdraw a plea beyond the 1-year time
limitation.

Speer timely appeals.

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DID THE DISTRICT COURT ERR IN DISMISSING SPEER'S K.S.A. 60-1507 MOTION
AS UNTIMELY WITHOUT HOLDING AN EVIDENTIARY HEARING?

Speer first argues that the district court erred in dismissing his K.S.A. 60-1507
motion as untimely without holding an evidentiary hearing.

When examining a defendant's K.S.A. 60-1507 motion, a district court has three
procedural options:

"(1) The court may determine that the motion, files, and case records conclusively show
the prisoner is entitled to no relief and deny the motion summarily; (2) the court may
determine from the motion, files, and records that a potentially substantial issue exists, in
which case a preliminary hearing may be held. If the court then determines there is no
substantial issue, the court may deny the motion; or (3) the court may determine from the
motion, files, records, or preliminary hearing that a substantial issue is presented
requiring a full hearing." Fischer v. State, 296 Kan. 808, 822-23, 295 P.3d 560 (2013).

The appropriate standard of appellate review depends on which of those options a district
court utilized. Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014).

Here, the district court dismissed Speer's K.S.A. 60-1507 motion without holding
an evidentiary hearing. When a district court summarily dismisses a K.S.A. 60-1507
motion, we conduct a de novo review to determine whether the motion, files, and records
of the case conclusively establish that the movant is not entitled to relief. Trotter v. State,
288 Kan. 112, 131-32, 200 P.3d 1236 (2009).

Under K.S.A. 2016 Supp. 60-1507(f)(1), a criminal defendant must file a K.S.A.
60-1507 motion within 1 year of his or her conviction becoming final. A district court
may extend the statutory 1-year time limitation "only to prevent a manifest injustice."
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K.S.A. 2016 Supp. 60-1507(f)(2). The movant has the burden to show manifest injustice.
Sola-Morales, 300 Kan. at 881.

In Vontress v. State, 299 Kan. 607, 616-17, 325 P.3d 1114 (2014), the Kansas
Supreme Court articulated the appropriate legal standards when determining whether
manifest injustice mandates an extension of time for a movant's untimely K.S.A. 60-1507
motion. The Supreme Court provided a set of nonexclusive factors for courts to consider
when conducting a totality of the circumstances inquiry under K.S.A. 60-1507(f)(2): (1)
persuasive reasons for failing to file a timely motion; (2) substantial legal or factual
grounds indicative of a claim "deserving of the district court's consideration" on the
merits; and (3) "a colorable claim of actual innocence, i.e., factual, not legal innocence."
299 Kan. at 616. The court also stated that a movant's failure to provide the reasons for
the delay does not automatically exclude the late-filed motion; rather, manifest injustice
must be determined based on the totality of the circumstances in each case. 299 Kan. at
617.

On appeal, Speer relies on the first and second factors—persuasive reasons for
failing to file a timely motion and substantial legal or factual grounds indicative of a
claim deserving of the district court's consideration on the merits. Speer does not rely on
the third factor—a colorable claim of actual innocence.

A. Substantial legal or factual grounds indicative of a claim deserving of the district
court's consideration on the merits

On appeal, Speer asserts that his defense counsel provided ineffective assistance
by failing to have his competency evaluated and by failing to challenge the absence of the
probable cause affidavit. A claim alleging ineffective assistance of counsel "presents
mixed questions of law and fact requiring de novo review." Thompson v. State, 293 Kan.
704, 715, 270 P.3d 1089 (2011). We review "the underlying factual findings for
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substantial competent evidence and the legal conclusions based on those facts de novo."
Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009).

To prevail on a claim of ineffective assistance of counsel, a movant must satisfy
two elements: (1) counsel's performance was deficient, and (2) the deficient performance
resulted in prejudice. In re Care & Treatment of Ontiberos, 295 Kan. 10, 31, 287 P.3d
855 (2012). Deficiency is shown when a defendant establishes that counsel's performance
was so constitutionally deficient that it was less than that guaranteed by the Sixth
Amendment to the United States Constitution. State v. Cheatham, 296 Kan. 417, 431, 292
P.3d 318 (2013). Judicial scrutiny of counsel's performance in a claim of ineffective
assistance is highly deferential and requires consideration of all the evidence before the
judge or jury. Bledsoe v. State, 283 Kan. 81, 90-91, 150 P.3d 868 (2007). The reviewing
court must strongly presume that counsel's conduct fell within the broad range of
reasonable professional assistance. State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987
(2014). "'[S]trategic choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.'" Cheatham, 296 Kan. at
437 (quoting Strickland v. Washington, 466 U.S. 668, 690-91, 104 S. Ct. 2052, 80 L. Ed.
2d 674, reh. denied 467 U.S. 1267 [1984]).

To establish prejudice, the movant must show a reasonable probability that, but for
counsel's deficient performance, the outcome of the proceeding would have been
different, with a reasonable probability meaning a probability sufficient to undermine
confidence in the outcome. See State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828
(2015).

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1. Defense counsel's failure to establish Speer's competency to enter a plea

In his supporting memorandum, Speer argued his defense counsel provided
ineffective assistance by failing to have his competency evaluated. Speer contended that
his hospitalization and medications called into question his ability to give a knowing and
intelligent plea.

"A criminal defendant is incompetent to stand trial when, because of a mental
illness or defect, the defendant is unable to understand the nature and purpose of the
proceedings against him or her or where he or she is unable to make or assist in making a
defense." State v. Kleypas, 272 Kan. 894, Syl. ¶ 32, 40 P.3d 139 (2001), cert. denied 537
U.S. 834 (2002); K.S.A. 22-3301(1)(a) and (b).

K.S.A. 2016 Supp. 22-3302(1) provides:

"At any time after the defendant has been charged with a crime and before
pronouncement of sentence, the defendant, the defendant's counsel or the prosecuting
attorney may request a determination of the defendant's competency to stand trial. If,
upon the request of either party or upon the judge's own knowledge and observation, the
judge before whom the case is pending finds that there is reason to believe that the
defendant is incompetent to stand trial the proceedings shall be suspended and a hearing
conducted to determine the competency of the defendant."

Although the statute uses permissive rather than mandatory language regarding
defense counsel's obligation to seek a competency evaluation, the "'failure to observe
procedures adequate to protect a defendant's right not to be tried or convicted while
incompetent . . . deprives him [or her] of his [or her] due process right to a fair trial.'"
Kleypas, 272 Kan. at 990 (quoting Drope v. Missouri, 420 U.S. 162, 172, 95 S. Ct. 896,
43 L. Ed. 2d 103 [1975]); see State v. White, 263 Kan. 283, 314-16, 950 P.2d 1316
(1997).
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Speer argues his case is similar to State v. Davis, 277 Kan. 309, 85 P.3d 1164
(2004). In that case, Davis had a long history of multiple hospitalizations and treatment
for psychosis and disorganized/aggressive behavior. Davis' past diagnoses included
schizophrenia, bipolar disorder, schizophrenia disorder, antisocial personality disorder,
and borderline intellectual functioning. Initially, the district court found that Davis was
incompetent to stand trial and committed him to Larned State Security Hospital.
Eventually, Davis demonstrated that he was competent to stand trial, and the district court
ordered the proceedings to resume. Before trial, Davis wrote his defense counsel four
partially incoherent letters, some of which demonstrated confusion about his defense. In
his direct appeal, Davis argued his defense counsel provided ineffective assistance for
failing to request a pretrial competency evaluation.

On review, the Kansas Supreme Court agreed and held that Davis' counsel was
ineffective for failing to request a competency hearing. 277 Kan. at 323. The court
reasoned that because counsel had medical reports showing Davis' possible
incompetence, counsel's own communications with Davis, and counsel's receipt of the
four partially incoherent letters, counsel's performance was deficient in failing to seek
another competency hearing. 277 Kan. at 323.

Here, Speer fails to allege facts which, if true, would have established that his
defense counsel provided ineffective assistance in failing to request a competency
evaluation. Speer alleged that he was admitted to Osawatomie State Hospital for
psychiatric treatment in September, October, and December 2009. Speer further alleged
that during those hospitalizations he was heavily medicated and he continued that
medication regimen throughout his incarceration. Beyond that, Speer did not allege that
he was actually incompetent or somehow displayed his mental illness in a fashion that
would have alerted his defense counsel of his possible incompetency. Although he was
taking a significant amount of medication with possible adverse side effects, Speer's
K.S.A. 60-1507 motion did not allege that his medications caused any such side effects
12
preventing him from understanding the nature of the proceedings or assisting in his
defense. Further, while the medical records show that Speer was diagnosed with bipolar
disorder and personality disorder, Speer did not affirmatively contend that these disorders
disrupted his ability to function at the plea hearing. And, unlike Davis, Speer did not
allege that his defense counsel was made aware of those diagnoses before the plea
hearing, thereby alerting counsel to Speer's possible incompetence.

Speer also cites to Zabala v. State, No. 107,048, 2013 WL 1010302, at *1-3 (Kan.
App. 2013) (unpublished opinion), where our court held that the defendant was entitled to
an evidentiary hearing on whether his counsel provided ineffective assistance of counsel
for failing to have the defendant's competency evaluated because the defendant's motion
alleged facts which, if true, would have entitled the defendant to relief. By contrast, Speer
did not allege in either his K.S.A. 60-1507 motion or his supporting memorandum that he
was incompetent. Rather, he alleged only that his counsel should have pursued a
competency evaluation based on his mental health history and medication treatment.
Without any factual allegations showing Speer was actually incompetent, it is
unreasonable to mandate that his defense counsel seek a competency evaluation.

2. Defense counsel's failure to challenge the lack of probable cause affidavit
to support the arrest warrant

Speer also argues his defense counsel provided ineffective assistance by failing to
challenge the absence of the probable cause affidavit. Speer asserts he was entitled to an
evidentiary hearing because the record does not disclose a strategic reason for his defense
counsel's failure to challenge the absence of a factual basis to support the charged crimes.

In his supporting memorandum, Speer asserted that neither the complaint nor the
amended complaint alleged facts sufficient to find probable cause. No particularity
existed as to the specifics of the crime—just a recitation of the crime charged. Speer
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maintained that his defense counsel's failure to alert the district court of the lack of
factual basis supporting the complaints equated to ineffective assistance of counsel.

Prior to his plea hearing, Speer waived his preliminary hearing. As we see it,
Speer's waiver of his preliminary hearing bars his claim. By waiving his preliminary
hearing, the purpose of which is to establish probable cause that the crimes alleged in the
State's complaint were committed by Speer, Speer also waived the right to challenge the
factual basis of the criminal complaint filed against him. See State v. Jones, 125 Kan.
147, 148, 264 P. 40 (1928) (irregularity in criminal complaint waived due to defendant's
waiver of preliminary hearing); see also State v. Matzke, 236 Kan. 833, 839, 696 P.2d
396 (1985) (defendant's failure to subsequently challenge probable cause finding made at
preliminary hearing with timely motion to dismiss constituted waiver).

Moreover, while Speer incidentally asserts in his appellate brief that there was no
evidence in the record that his attorney knew the underlying facts of his case before
negotiating his plea or advising him to accept it, Speer did not raise that claim in either
his original or amended K.S.A. 60-1507 motion. Nor did he raise a claim that his counsel
wrongly advised him to waive his preliminary hearing. Because issues not raised before
the trial court cannot be raised for the first time on appeal, Speer's claims as to the factual
sufficiency of the State's complaint or the lack of a probable cause affidavit are not
properly before us for review. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987
(2014).

B. Persuasive reasons for failing to file a timely motion

Speer next contends that his K.S.A. 60-1507 motion alleges legitimate reasons for
its untimely filing. Speer asserts that, when considered together, his incompetency and
the ineffectiveness of his defense counsel resulted in him being unable to file a direct
appeal or to withdraw his plea within the standard time frame. Speer maintains that those
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factors prevented him from acquiring the documents necessary to file a K.S.A. 60-1507
motion before the expiration of the 1-year time limitation.

Speer directs our attention to his October 2013 request for the probable cause
affidavit. Speer highlights that he did not receive the affidavit until January 2014 and that
the State admitted the affidavit was never filed in his underlying criminal case. But the
timing of the State's response does not provide any reason for Speer's failure to file a
timely K.S.A. 60-1507 motion. Speer's argument may have been compelling if he had
requested the probable cause affidavit within the 1-year time limitation and the State
failed to provide it until after the expiration of time limitation. But that is not the case
here. Speer's factual allegations do not otherwise provide a persuasive reason for failing
to file a timely K.S.A. 60-1507 motion.

Considering the totality of the circumstances, Speer has failed to demonstrate
either that his motion raised a substantial issue of law or fact deserving of the district
court's consideration or that there was a persuasive reason for the untimely filing of his
motion. Accordingly, the district court correctly found that an extension of the 1-year
time limitation was not necessary to prevent manifest injustice.

DID THE DISTRICT COURT ERR IN FINDING SPEER FAILED TO SHOW
EXCUSABLE NEGLECT TO PERMIT WITHDRAWAL OF HIS PLEA OUT OF TIME?

Speer also contends that the district court erred in finding that he failed to show
excusable neglect to permit withdrawal of his plea out of time. Seemingly out of an
abundance of caution, the district court found that Speer's motion was untimely when
considered as either a K.S.A. 60-1507 motion or a postsentence motion to withdraw a
plea. On appeal, neither party affirmatively argues whether the district court
appropriately considered Speer's motion as one to withdraw his plea. In any event, a
15
review of the issue reveals that Speer's motion was untimely and that Speer failed to
demonstrate excusable neglect to extend the 1-year time limitation.

When a district court summarily denies a postsentence motion to withdraw a plea
without argument or additional evidence, our review is de novo because we have the
same access to the motions, records, and files as the district court. State v. Fritz, 299 Kan.
153, 154-55, 321 P.3d 763 (2014).

K.S.A. 2016 Supp. 22-3210(d)(2) authorizes a district court to grant a defendant's
postsentence motion to withdraw a plea to correct manifest injustice. Kansas courts
review at least the following three factors, commonly known as Edgar factors, when
considering whether a defendant has demonstrated the requisite manifest injustice: (1)
whether the defendant was represented by competent counsel; (2) whether the defendant
was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea
was fairly and understandingly made. State v. Edgar, 281 Kan. 30, 35, 127 P.3d 986
(2006); see State v. Green, 283 Kan. 531, 545-46, 153 P.3d 1216 (2007) (applying Edgar
factors to postsentence withdrawal of plea). While the Edgar factors are "viable
benchmarks for judicial discretion," the Kansas Supreme Court has clarified that the
factors should not be relied on to the "exclusion of other factors." State v. Aguilar, 290
Kan. 506, 512, 231 P.3d 563 (2010).

K.S.A. 2016 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." K.S.A. 2016 Supp. 22-3210(e)(2) provides an exception and authorizes a
district court to extend the time limitation "only upon an additional, affirmative showing
of excusable neglect by the defendant."
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Speer points to Ellerman v. State, No. 104,197, 2011 WL 5833333 (Kan. App.
2011) (unpublished opinion), to support his contention that he was entitled to an
evidentiary hearing to show excusable neglect in filing his motion to withdraw his plea
out-of-time. In Ellerman, a criminal defendant filed a postsentence motion to withdraw
his plea in 2009, seeking to set aside convictions from 1999 and 2000. Construing the
defendant's motion as seeking relief under K.S.A. 60-1507, the district court held the
motion was barred as untimely. On appeal, the panel of our court first determined that
Ellerman's motion was properly construed as one to withdraw his plea then explained
that, where a district court does not hold an evidentiary hearing, an appellate court
assumes the facts set out in the motion are true. 2011 WL 5833333, at *2. Applying that
standard, the panel held that Ellerman made no showing whatsoever of any excusable
neglect for failing to file his motion until 2009, concluding that the motion "was simply
made too late." 2011 WL 5833333, at *2.

Even assuming Speer's motion is properly construed as a postsentence motion to
withdraw his plea, as in Ellerman, Speer has made no showing of any excusable neglect
for failing to file the motion until January 6, 2014. In the motion, Speer provided a
factual basis to possibly support that he lacked competence at the time of his conviction
and sentencing. Speer alleged that, during those proceedings, he suffered from anxiety
and bipolar disorder, with acute episodes of auditory and visual hallucinations and
suicidal ideations and compulsions. Speer also alleged that his treatment for mental
illness included psychotropic medications that caused confusion and abnormal thinking
as side effects. Speer maintained that his defense counsel was ineffective for failing to
assure his competency. In his appellate brief, Speer contends that his allegations of
incompetence and ineffective assistance counsel, if true, could have established excusable
neglect during the year after his conviction. However, none of the factual allegations
contained in Speer's motion relate to his mental condition or legal defense in the year
after his conviction. Instead, the allegations pertain to his circumstances before
sentencing and a few weeks after sentencing.
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Speer was sentenced on April 2, 2010. Under K.S.A. 2016 Supp. 22-3210(e)(1),
because he filed no direct appeal, appellate court jurisdiction ended on April 16, 2010.
Speer has failed to allege any factual basis demonstrating why he could not have filed his
motion within the 1-year time limitation—that is, before April 16, 2011. Absent a factual
basis to support an excusable neglect finding, the district court correctly summarily
dismissed Speer's postsentence motion to withdraw his plea as untimely.

Affirmed.