State v. Carrera

Decision Date18 November 2022
Docket Number124,710
PartiesState of Kansas, Appellee, v. Jose H. Carrera, Appellant.
CourtKansas Court of Appeals

State of Kansas, Appellee,
v.

Jose H. Carrera, Appellant.

No. 124,710

Court of Appeals of Kansas

November 18, 2022


NOT DESIGNATED FOR PUBLICATION

Appeal from Seward District Court; CLINT B. PETERSON, judge.

Jon R. Hansen, of Wichita, for appellant.

Russell Hasenbank, county attorney, and Derek Schmidt, attorney general, for appellee. Before ATCHESON, P.J., BRUNS, J., and PATRICK D. MCANANY, S.J.

MEMORANDUM OPINION

PER CURIAM:

This is an appeal following the district court's order dismissing Jose H. Carrera's successive motion to withdraw plea. On appeal, Carrera contends that the district court erred by failing to inquire about an alleged conflict of interest regarding an attorney who had represented him early on in his criminal case. Based on our review of the record on appeal, we find that Carrera has not demonstrated excusable neglect to justify the untimely filing of his successive motion to withdraw plea. Likewise, we find that Carrera has failed to show that he was prejudiced by the alleged conflict of interest. Thus, we affirm the district court.

1

On May 1, 2009, the State filed a complaint against Carrera for eight counts of drug charges related to the possession and sale of marijuana and the district court appointed the Public Defender's Office to defend him. Jennifer Chaffee was the first appointed attorney to represent Carrera. Then, for a short period of time in August and September 2009, Aaron Gipson served as Carrera's appointed attorney. However, Gipson filed a motion to withdraw as Carrera's counsel and the district court released him from representing Carrera on September 30, 2009. Gipson has not represented Carrera since that time.

The district court appointed another attorney, Daniel Schowengerdt, to represent Carrera. Schowengerdt assisted him in entering into a plea agreement with the State in December 2009. As part of the agreement, Carrera agreed to plead no contest to one count of selling marijuana and the State agreed to dismiss all of the other counts with prejudice. On February 26, 2010, the district court sentenced Carrera to probation for a term of 18 months with an underlying sentence of 19 months in prison to be followed by 24 months of postrelease supervision. Carrera did not file a direct appeal.

About one year later, another attorney-David K. Link-filed a postsentence motion to withdraw plea on his behalf in February 2011. In the motion, Carrera's attorney argued that the attorney who represented his client during plea negotiations did not fully advise him of the potential immigration consequences of his plea as required by Padilla v. Kentucky, 559 U.S. 356, 366-74, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). On May 11, 2011, the district court held an evidentiary hearing and heard testimony from both Carrera and Schowengerdt. Carrera appeared and testified via telephone because he was in Mexico due to being removed from the United States in April 2011 pursuant to orders of removal by the Department of Homeland Security. The district court subsequently denied the motion.

2

In a journal entry entered on June 6, 2011, the district court found that Carrera had been "adequately informed of the possible immigration consequences of this plea" and that he "knowingly and intelligently entered his plea of no contest with a full understanding of the plea's consequences." Although Carrera filed a timely notice of appeal, the appeal was not pursued and was subsequently dismissed by the district court on March 19, 2013.

On October 29, 2012, yet another attorney, David Phillip Leon, filed a motion to reconsider its order denying Carrera's motion to withdraw plea. In this motion, Leon raised the same argument under Padilla that Link had made in the original motion to withdraw plea. Ultimately, the district court denied the motion to reconsider after Carrera and Leon failed to appear at a hearing. In turn, Leon filed a second motion to reconsider in July 2013.

Shortly thereafter, on August 9, 2013, the State filed a motion to revoke Carrera's probation. In support of this motion, the State alleged that Carrera had been taken into custody by federal authorities and an immigration judge had ordered that he be removed from the United States. The record reveals that Carrera was ordered removed from the United States on November 18, 2010, and was subsequently deported on April 11, 2011.

Ultimately, the district court terminated Carrera's probation on December 19, 2014.

Although Carrera evidently remained in Mexico, Leon filed a third motion to reconsider on his behalf in September 2013. Once again, the motion asserted the same argument under Padilla that had been included in the original motion to withdraw plea as well as in the previous two motions to reconsider. The third motion to reconsider was denied after a hearing in March 2014, at which Leon appeared on behalf of Carrera. In denying the motion, the district court found that there was no intervening change of law

3

or new evidence presented since its earlier rulings to justify the granting of relief to Carrera. The district court also found that Carrera had failed to show manifest injustice.

Leon filed a fourth motion to reconsider-as well as an amended motion-on Carrera's behalf in November 2017. Yet again, he raised the same argument under Padilla that had previously been raised on multiple occasions. At a hearing held on October 26, 2018, the district court denied the amended motion. Interestingly, Gipson- who...

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