In re Elnicki, 107,107.

• Decision Date: 05 April 2013
• Docket Number: No. 107,107.,107,107.
• Citation: In re Elnicki, 298 P.3d 1137 (Kan. App. 2013)
• Parties: In the Matter of Justin ELNICKI.
• Court: Kansas Court of Appeals

298 P.3d 1137

In the Matter of Justin ELNICKI.

No. 107,107.

Court of Appeals of Kansas.

April 5, 2013.

Appeal from Wyandotte District Court; Wesley K. Griffin, Judge.

Patricia Aylward Kalb, of Kansas City, for appellant.

Ryan W. Walkiewicz, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., BRUNS and POWELL, JJ.

MEMORANDUM OPINION

PER CURIAM.

More than 20 years ago, Justin Elnicki pled guilty to felony burglary in juvenile court. In June 2011, Elnicki filed a motion in juvenile court to withdraw his plea. The juvenile court denied his motion, finding that it lacked jurisdiction over Elnicki, who was 33 years old at the time. The juvenile court also found Elnicki's motion to withdraw plea to be untimely. On appeal, Elnicki claims that the juvenile court committed error by failing to follow statutory due process requirements at the time he entered his plea. He also claims that this error rendered his 1993 juvenile adjudication void. We conclude that the juvenile court correctly ruled that it lacked jurisdiction over Elnicki and that his motion to withdraw plea was untimely. Thus, we affirm.

Facts

In March 1993, Justin Elnicki pled guilty to felony burglary in juvenile court. At the same time, the State dismissed two other charges—for felony theft and misdemeanor criminal damage to property. Counsel represented Elnicki at the time he entered his plea. Unfortunately, most of the participants in the juvenile hearing—including Elnicki's attorney, the prosecutor, and the district judge—are now dead.

Since 2001, Elnicki—now an adult—has been dealing with a rape charge in Shawnee County. To date, three jury trials have been held in the rape case. In each of the trials, Elnicki was convicted and sentenced by the district court. Currently, his most recent conviction and sentence in the rape case is pending on appeal.

In June 2011, Elnicki filed a motion in juvenile court to withdraw his 1993 plea, claiming a violation of his due process rights. The juvenile court held a hearing on his motion to withdraw plea, and it found that it no longer had jurisdiction over Elnicki because he was 33 years old and no longer a juvenile. The juvenile court also found that even if it had jurisdiction, the 18–year delay between the entry of the plea and the filing of his motion to withdraw it rendered Elnicki's motion untimely.

Analysis

Jurisdiction over Motion to Withdraw Plea

At the outset, we will address the issue of jurisdiction. The State contends that this court does not have jurisdiction over Elnicki's appeal. Specifically, the State argues that the district court lacked jurisdiction to hear Elnicki's motion to withdraw his 1993 plea because he was 33 years old at the time he filed the motion and was no longer a juvenile.

Whether jurisdiction exists is a question of law subject to unlimited review. See State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009), cert. denied130 S.Ct. 3410 (2010). And if a district court lacks jurisdiction, then this court does not have jurisdiction over the appeal. See State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).

A district court's jurisdiction over a juvenile offender continues until

“(1) Sixty days after sentencing, if the juvenile is committed directly to a juvenile correctional facility; (2) the juvenile has attained the age of 23 years, if committed to the custody of the commissioner pursuant to subsection (c) of K.S.A. 38–1665, and amendments thereto, unless an adult sentence is imposed pursuant to an extended jurisdiction juvenile prosecution. If such adult sentence is imposed, jurisdiction shall continue until discharged by the court or other process for the adult sentence; (3) the juvenile has been discharged by the court; or (4) the juvenile has been discharged under the provisions of K.S.A. 38–1675, and amendments thereto.” K.S.A.2011 Supp. 38–1604(c).

It is undisputed that Elnicki filed his motion to withdraw plea in the juvenile court as a 33–year–old adult. Under K.S.A.2011 Supp. 38–1604(c), the juvenile court's continuing jurisdiction over him terminated long ago. See In re Ferris, 222 Kan. 104, 116–17, 563 P.2d 1046 (1977) (“It was irrelevant on the issue of waiver of juvenile court jurisdiction to examine the facilities available to the probate court after the appellant reached age twenty-one, and was no longer within juvenile court jurisdiction.”). Accordingly, because the juvenile court lacked jurisdiction over Elnicki, this court likewise does not have jurisdiction over his appeal. See McCoin, 278 Kan. at 468.

Timeliness of Motion to Withdraw Plea

Even if we had jurisdiction over Elnicki's appeal, the ultimate result would be the same. It is important to recognize that we review a district court's denial of a motion to withdraw a plea for abuse of discretion. State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006); See K.S.A.2011 Supp. 22–3210(d). A district court abuses its discretion when its decision is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594(2012).

Because the juvenile justice code does not contain provisions for motions to withdraw a plea, we look to the criminal statutes. See In re P.L.B., 40 Kan.App.2d 182, 188, 190 P.3d 274 (2008). Under K.S.A.2011 Supp. 22–3210(d)(2), a court can permit a defendant to withdraw his or her plea after sentencing to correct manifest injustice. A defendant, however, must file a motion to withdraw his or her plea within 1 year of final judgment (termination of appellate jurisdiction or the United States Supreme Court's denial of certiorari). K.S.A.2011 Supp. 22–3210(e)(1). Elnicki's juvenile conviction was from 1993, and neither party claims that he filed his motion within 1 year of final judgment.

There was a 1–year grace period from the enactment of the time limit, which expired on April 15, 2010. See State v. Szczygiel, 294 Kan. 642, Syl. ¶ 2, 279 P.3d 700 (2012); State v. Benavides, 46 Kan.App.2d 563, 568, 263 P.3d 863 (2011). But Elnicki did not file his motion to withdraw plea until June 30, 2011—over 1 year after the expiration of the grace period. And even if we extended the grace period until 1 year after Elnicki reached the age of majority, the motion would still be untimely. Accordingly, the district court appropriately found that Elnicki's motion to withdraw plea was untimely.

Application of K.S.A.2011 Supp. 60–260(b)(4)

In an attempt to avoid the timeliness problem, Elnicki asserts that he entered his 1993 plea in juvenile court without due process. Further, he argues that the alleged error was structural. As such, he asserts that we should treat his motion to withdraw plea as “a motion under the provisions of K.S.A. 60–260(b)(4) to declare a plea/admission that was totally devoid of required due process, void and a nullity.”

Matters of statutory interpretation and of jurisdiction are subject to unlimited review. See Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009); Ellmaker, 289 Kan. at 1147. Certainly, we recognize that under the Kansas Code of Civil Procedure, a void judgment may be set aside. See K.S.A.2011 Supp. 60–260(b)(4). But this is not a civil action.

This court has consistently held that the provisions of 60–260(b) do not apply to criminal convictions, adult or juvenile. See Smith v. State, 199 Kan. 132, 135, 427 P.2d 625 (1967); Abel v.. State, Nos. 103,381, 103,706, 2011 WL 3795240, at *6 (Kan.App.2011) (unpublished opinion), rev. denied March 9, 2012; In re Shobe, No. 101,844, 2010 WL 2545659, at *2 (Kan.App.2010) ...