State v. Hodge

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NOT DESIGNATED FOR PUBLICATION

No. 116,644


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

NATASHA G. HODGE,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed June 23,
2017. Affirmed.

Michael G. Highland, of Bonner Springs, for appellant.

Jennifer S. Tatum, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., HILL, J., and HEBERT, S.J.

Per Curiam: Defendants who want to withdraw their pleas must file a motion
within 1 year of the end of appellate jurisdiction over their case. Natasha G. Hodge
claims that she did not know of this time limit and the district court erred when it
summarily denied her motion. Because our Supreme Court has expressly ruled that
ignorance of the law is insufficient to show excusable neglect that justifies the late filing
of a motion to withdraw a plea, we hold Hodge has failed to show us any reversible error
by the district court. We affirm.

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When Hodge agreed with the State to enter a guilty plea to an amended charge,
she signed a petition seeking the district court's acceptance of her guilty pleas to amended
charges of involuntary manslaughter and aggravated assault. In this petition, Hodge
asserted that she understood the charges against her, the maximum punishment for the
charges, and her constitutional rights concerning a not guilty plea. Additionally, she
stated that her mind was clear, she was not under the influence of drugs or alcohol, she
was not under the care of a doctor, and she had never been voluntarily or involuntarily
committed for mental illness.

Later, at a plea hearing the judge asked her all of the statutorily required
questions. Hodge stated she was taking Zoloft to treat post-traumatic stress disorder, but
the medicine did not affect her ability to understand the proceedings. When the district
court asked if Hodge's attorney had adequately counseled and assisted her, she
responded, "I am very satisfied with my attorney." The State proffered the evidence it
would put on at trial, and Hodge's attorney discussed his counseling of Hodge concerning
a theory of self-defense. Hodge acknowledged that her attorney's statements reflected
what he had told her. Hodge then pled guilty to involuntary manslaughter and aggravated
assault.

The court sentenced Hodge on October 8, 2010. Over 2 years later, on April 29,
2013, Hodge filed her posttrial motion to withdraw her guilty plea. She gave many
reasons for her request:

 At the time of the plea her judgment was impaired due to psychological
conditions and medications for those conditions;
 she was traumatized by the shooting and did not talk to anyone
concerning the shooting for 11 months;
 her trial attorney strongly advised her to accept the plea to avoid a trial
and extended prison sentence;
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 before sentencing, a psychologist diagnosed her with multiple mental
and personality disorders;
 her trial attorney "was less than effective" in her defense and did not
inform her of the ability to withdraw a plea within a year; the failure of
being advised of the statute of limitations was the reason for Hodge's
delay in filing the motion to withdraw the plea; and
 her trial attorney "failed to maximize the many conflicting and self-
serving statements given by various witnesses." Hodge raised various
allegations concerning the evidence not raised.

The district court summarily dismissed her motion in July 2013. The court found
Hodge was out of time to file a direct appeal, and no State v. Ortiz, 230 Kan. 733, 640
P.2d 1255 (1982), factors would permit an out-of-time appeal. Additionally, based upon
the record and pleadings, there was no issue of manifest injustice in her case.

On appeal, Hodge argues that her pro se motion is a motion under K.S.A. 60-1507
and she made an adequate showing of manifest injustice to overcome the 1-year statute of
limitations. To the contrary, the State argues the motion is a motion to withdraw a plea
and Hodge was required to show excusable neglect in order to overcome the 1-year
statute of limitations for a motion to withdraw a plea. Both parties agree that Hodge's pro
se motion was filed out of time.

How we construe Hodge's motion makes a difference. Even though similar
procedures apply to both motions to withdraw a plea and motions filed under K.S.A. 60-
1507, according to State v. Williams, 303 Kan. 605, 607, 366 P.3d 1101 (2016), we apply
different standards to the two. K.S.A. 60-1507(f)(2) provides that a court may extend the
1-year statute of limitations in order to prevent manifest injustice. On the other hand,
K.S.A. 2016 Supp. 22-3210(e)(2) allows a court to extend the statute of limitation "upon
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an additional, affirmative showing of excusable neglect by the defendant." In other
words, we are looking for different things in the two motions.

We must judge Hodge's motion by the words she uses. When we do so, we
conclude that we should treat her motion as a motion to withdraw her plea. The document
is entitled, "Motion to Withdraw Guilty Plea post sentence." More importantly, the
content of the motion shows that it is a motion to withdraw a plea. In the motion, Hodge
provides reasons why she would suffer manifest injustice if the plea is not allowed to be
withdrawn. In order for a plea to be withdrawn after sentencing occurs, a litigant must
show manifest injustice in order to have the court set aside a conviction. K.S.A. 2016
Supp. 22-3210(d)(2). The content of the pro se motion is an argument that conforms to
the statute to withdraw a plea.

Additionally, one paragraph of Hodge's motion addresses the reason her motion
was untimely filed—her attorney did not tell her of the 1-year time limit. Basically, she
argues this is excusable neglect. In order for the court to grant an untimely motion to
withdraw a plea, the movant must make an affirmative showing of excusable neglect.
K.S.A. 2016 Supp. 22-3210(e)(2).

Finally, Hodge's prayer in the motion was for the district court to allow her to
withdraw her guilty plea. In order to construe the pleading to give effect to the content of
the pleading, the pro se motion should be construed as a motion to withdraw a plea. See
State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010).

This means that for us, the question becomes whether the motion, files, and record
conclusively show that Hodge is not entitled to relief. We review this question de novo.
State v. Fritz, 299 Kan. 153, 155, 321 P.3d 763 (2014).

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The court sentenced Hodge on October 8, 2010. Hodge did not file her motion
until April 29, 2013. Nothing in the record shows that Hodge sought a direct appeal of
her conviction. Thus, Hodge had 1 year from sentencing to file her motion to withdraw
her plea. See K.S.A. 2016 Supp. 22-3210(e)(1). The motion was filed well outside of this
1-year limit. Hodge concedes the motion was filed outside of the 1-year statute of
limitations in her brief to this court.

Courts may permit an untimely motion to withdraw a plea if the movant shows
excusable neglect. K.S.A. 2016 Supp. 22-3210(e)(2). Excusable neglect requires
"something more than 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). In her motion, Hodge essentially argues excusable neglect is
present because she did not know of the 1-year statute of limitations and her attorney did
not inform her of the requirement.

The Kansas Supreme Court has addressed a similar argument in State v. Davisson,
303 Kan. 1062, 1067-70, 370 P.3d 423 (2011). In Davisson, a prisoner argued excusable
neglect for a motion to withdraw a plea based upon ignorance of the ability to bring the
action. The Supreme Court rejected this argument and held that ignorance of the statute
of limitations or the ability to withdraw a plea is not sufficient to establish excusable
neglect to overcome the statute of limitations. 303 Kan. at 1069-70.

Based upon the holding in Davisson, Hodge's argument that she was unaware of
the 1-year statute of limitations and that her trial attorney did not inform her of the ability
to withdraw the plea is not sufficient to show excusable neglect. See 303 Kan. at 1069-
70.

Hodge is not entitled to relief. The district court did not err in summarily denying
her motion.
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Affirmed.