State v. Moore

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NOT DESIGNATED FOR PUBLICATION

No. 118,607

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KYLE D. MOORE,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed March 1, 2019.
Affirmed.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before POWELL, P.J., LEBEN, J., and KEVIN BERENS, District Judge, assigned.

PER CURIAM: Kyle D. Moore appeals the district court's rejection of his pro se
motion to correct an illegal sentence, which the district court treated as a motion to set
aside his convictions. Before us, Moore argues the district court erred in refusing to allow
him to withdraw his plea on the grounds that he was never informed of his duty to
register. Assuming Moore's characterization of his motion as being one to withdraw plea
is correct, we find Moore's motion was untimely and did not address excusable neglect,
which is a procedural bar to our consideration of his claim on the merits. Accordingly, we
affirm the district court's dismissal of his motion.
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FACTUAL AND PROCEDURAL BACKGROUND

In 2009, the State charged Moore in Harvey County District Court with violating
K.S.A. 2009 Supp. 21-36a09(a), which prohibited possession of pseudoephedrine with an
intent to use the product to manufacture a controlled substance, a severity level 2 drug
felony. A jury convicted Moore, and the district court sentenced him to 55 months in
prison. State v. Moore, No. 105,851, 2012 WL 2045359, at *1 (Kan. App. 2012)
(unpublished opinion).

Moore appealed and, among other things, argued that he should have been
sentenced under K.S.A. 2009 Supp. 21-36a09(b)(1), which criminalized use of or
possession with intent to use "any drug paraphernalia to . . . [m]anufacture, cultivate,
plant, propagate, harvest, test, analyze or distribute a controlled substance" and was only
a drug severity level 4 felony. 2012 WL 2045359, at *3. Applying State v. Snellings, 294
Kan. 149, 273 P.3d 739 (2012), and State v. Adams, 294 Kan. 171, 273 P.3d 718 (2012),
a panel of this court found that K.S.A. 2009 Supp. 21-36a09(a) was identical to K.S.A.
2009 Supp. 21-36a09(b)(1) and that Moore should have been sentenced consistent with
someone convicted of the lesser severity level 4 drug felony instead of the higher severity
level 2 drug felony. While Moore's conviction was affirmed, the panel ordered that he be
resentenced. Moore, 2012 WL 2045359, at *5.

On remand, the district court resentenced Moore to 20 months in prison. Because
Moore had already served more than 20 months at the time of resentencing, the district
court ordered that Moore be released immediately. Moore was released on June 29, 2012.

Moore was subsequently charged with five counts of failure to register in Reno
County District Court. On June 2, 2014, as part of a plea agreement with the State, Moore
agreed to plead guilty to all counts and to waive his right to directly appeal his
convictions and sentences. On July 14, 2014, the district court sentenced Moore to 32
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months in prison but granted him a dispositional departure to probation for a period of 24
months.

On October 1, 2014, the State sought to revoke Moore's probation, alleging that he
had failed to report, had failed to attend court-ordered substance abuse treatment, and had
used methamphetamine and marijuana. It took over a year to find and arrest Moore. At a
probation violation hearing on December 21, 2015, the district court found Moore in
violation of the terms of his probation and, having previously imposed a three-day jail
sanction, ordered Moore to serve an intermediate sanction of 120 days in prison.

On April 20, 2016, the State again sought to revoke Moore's probation, alleging
that he had committed new crimes, specifically, 10 new counts of failure to register
between December 2014 and September 2015. After a hearing, the district court revoked
Moore's probation and imposed his underlying prison sentence.

On July 27, 2017, Moore filed a pro se motion for correction of sentence, arguing
that his convictions should be vacated because his earlier drug conviction did not require
him to register as a drug offender. Moore was appointed counsel, and the district court
held a hearing on the motion on October 5, 2017.

At the hearing, Moore argued that the Court of Appeals' remand for resentencing
changed his conviction to one under K.S.A. 2009 Supp. 21-36a09(b)(1), which did not
require him to register as a drug offender. Moore further argued that his convictions
should be set aside because he was not told he had to register. Finally, he argued that he
did not have to register because he received a letter from the KBI on July 14, 2017,
telling him he did not have to register.

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The district judge stated:

"Well, just so one thing I'm clear on, technically what we're requesting is a
motion to set aside the conviction because the defendant pled to these charges and was
convicted. So if he was sentenced correctly based upon what he pled to and was
convicted of, so there, I don't see how there can be an illegal sentence. Basically what
he's asking is to set aside a crime he pled to."

Moore agreed with the district court's characterization.

In response, the State argued the fact that Moore was resentenced as a severity
level 4 did not change the nature of the conviction. It argued that Moore's claim that he
was not informed about registering at the time of sentencing did not matter as Kansas
Supreme Court jurisprudence established that the registration requirement occurs at the
time of the conviction, not before or as a part of sentencing. Moreover, with respect to the
KBI letter, the State argued and Moore conceded that he received a follow-up letter dated
August 14, 2017, telling him that the first letter was an error and he did have to register.
Finally, the State argued that Moore had failed to present a prima facie case for setting
aside his plea.

The district court agreed with the State, finding that as a matter of law Moore's
drug conviction was still under K.S.A. 2009 Supp. 21-36a09(a) and Moore could not
claim that resentencing changed his conviction to one under K.S.A. 2009 Supp. 21-
36a09(b)(1). The district court denied Moore's motion because his conviction under
K.S.A. 2009 Supp. 21-36a09(a) required registration.

Moore timely appeals.

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DID THE DISTRICT COURT ERR BY DENYING MOORE'S
MOTION FOR CORRECTION OF SENTENCE?

On appeal, Moore reframes his argument from that made before the district court.
Before the district court, he argued his convictions for failure to register should be set
aside because he was earlier sentenced for a drug offense that did not require registration.
Although his motion before the district court was titled as a motion to correct an illegal
sentence, the district court construed it as a motion to set aside his convictions,
presumably under K.S.A. 60-1507, on the grounds that Moore was not challenging the
legality of his sentences but his convictions. Before us, Moore appears to argue that the
district court erred in refusing to allow him to withdraw his plea on the grounds that he
was never informed of his duty to register.

The State adamantly opposes this characterization, arguing that the district court
did not consider any of the established factors to determine whether plea withdrawal was
appropriate. See State v. Wilson, 308 Kan. 516, 521, 421 P.3d 742 (2018). The State also
insists that we are barred from considering Moore's arguments because they were not
raised below.

However, we need not resolve the question of whether Moore is seeking to
withdraw his plea or some other remedy which results in vacating his convictions for
failing to register. Even if we construe Moore's claim as one seeking to withdraw plea,
the record reveals a fatal, unaddressed procedural defect: Moore's motion was untimely.

Under K.S.A. 2018 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." Such a motion must be filed within one year of either:

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"(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." K.S.A. 2018 Supp. 22-
3210(e)(1).

The one-year time limit may be extended "only upon an additional, affirmative showing
of excusable neglect by the defendant." K.S.A. 2018 Supp. 22-3210(e)(2). When a
defendant fails to make a showing of excusable neglect, appellate courts consider the
motion untimely and deny relief. See State v. Williams, 303 Kan. 605, 608, 366 P.3d
1101 (2016).

The district court sentenced Moore on July 11, 2014, for failing to register.
Consistent with his plea agreement, the record does not show that Moore ever directly
appealed the convictions. Moore's July 27, 2017 motion for correction of sentence was
filed more than three years after Moore's sentence became final. Even if construed as a
motion to withdraw a plea, Moore's motion was untimely under K.S.A 2018 Supp. 22-
3210(e)(1). Moore was therefore required to make a showing of excusable neglect
explaining why the motion was untimely. See K.S.A. 2018 Supp. 22-3210(e)(2). Moore
did not discuss excusable neglect before the district court nor does he make any such
argument before us. As the failure to argue excusable neglect after filing an untimely
postsentencing motion to withdraw a plea is fatal, Moore's motion is procedurally barred.
See State v. Moses, 296 Kan. 1126, 1128, 297 P.3d 1174 (2013); see also K.S.A. 2018
Supp. 60-1507(f)(1) (motion to set aside conviction must be brought within one year);
K.S.A. 2018 Supp. 60-1507(f)(2) (one-year time limitation may be extended upon
prisoner's showing of manifest injustice). The district court correctly dismissed the
motion, albeit for the wrong reasons. See State v. Overman, 301 Kan. 704, 712, 348 P.3d
516 (2015) (decision of district court upheld where right for wrong reason).

Affirmed.