State v. Davis
Decision Date | 23 April 2021 |
Docket Number | No. 121,054,121,054 |
Citation | 485 P.3d 174 |
Parties | STATE of Kansas, Appellee, v. Lee DAVIS IV, Appellant. |
Court | Kansas Supreme Court |
Caroline M. Zuschek, of Kansas Appellate Defender Office, was on the brief for appellant.
Kevin M. Hill, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
Lee Davis IV seeks review of the Court of Appeals' decision affirming the district court's denial of his motion to withdraw his plea as untimely. Although we agree the Court of Appeals erred when it held a showing of manifest injustice is a condition precedent to a finding of excusable neglect, we hold this error was harmless and affirm the panel below because the district court denied his motion to withdraw his plea on its merits and Davis fails to argue the district court erred when it did so.
The State charged Davis with first-degree murder and child abuse for allegedly beating his four-year-old son to death. Pursuant to an agreement, the State amended the complaint and charged Davis with one count of second-degree murder and one count of child abuse and Davis pled no contest to the amended charges on April 29, 2013. The State anticipated Davis' criminal history score would be D for sentencing purposes and the agreement Davis signed stated, "In the event that the defendant's prior criminal history does not qualify him for the ‘D’ box, then the County Attorney shall charge the defendant with another crime which will place the defendant in the ‘D’ box and the defendant agrees to plea either guilty or no contest to said charge." Under the agreement, Davis consented to register as a violent offender for 15 years and to testify against potential codefendants. In a hand-written provision, Davis waived his right to appeal his "conviction[s] and sentence[s]," provided the sentences were within the presumptive guidelines.
The State later charged Davis with misdemeanor battery in a separate case. He pled no contest in both cases on the same day. At the plea hearing, Davis assured the district court he pled knowingly, intelligently, and with full knowledge of the plea agreement's consequences. The district court asked Davis whether he had sufficient time to review the plea agreement's hand-written amendments—including Davis' waiver of his right to appeal:
Davis' criminal history was scored as D, and the district court sentenced Davis to consecutive sentences of 200 months' imprisonment for second-degree murder and 34 months for abuse of a child.
Four years later, in January 2017, Davis filed a pro se K.S.A. 60-1507 motion attacking his convictions. The district court appointed counsel to represent Davis, and in July 2017, Davis' counsel moved to withdraw Davis' plea. Davis claimed excusable neglect for his out-of-time request to withdraw his plea made more than one year after conviction. Specifically, Davis said he had not received the plea hearing transcript until 2017 and believed the plea agreement waiver of his right to appeal his convictions and sentencing also applied to any collateral attack. The district court heard oral arguments on Davis' motion to withdraw plea and later denied the motion in a memorandum opinion. Davis appealed, arguing the district court erred when it denied his motion to withdraw his plea as untimely.
The Court of Appeals affirmed the district court, explaining first:
On review before us, Davis reprises these arguments. But we find no error in the Court of Appeals reasoning and holding as set forth above. The procedural time limitation of K.S.A. 2019 Supp. 22-3210(e)(1) does apply to Davis' motion, and we a...
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...claims Myers raised in district court are not argued on appeal. An issue not briefed is deemed waived or abandoned. State v. Davis , 313 Kan. 244, 248, 485 P.3d 174 (2021).(1) Clark failed to admit evidence that would undermine J.S.’s and J.C.’s identification. First, Myers asserts Clark er......
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...the issue on appeal.Nevertheless, neither party has briefed whether Frantz provided an adequate proffer. See State v. Davis , 313 Kan. 244, 248, 485 P.3d 174 (2021) (an issue not briefed is deemed waived or abandoned). And, more importantly, the State does not object. Thus, we will reach th......
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State v. Frantz
...on appeal. Nevertheless, neither party has briefed whether Frantz provided an adequate proffer. See State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021) (an issue not briefed is deemed waived or abandoned). And, more importantly, the State does not object. Thus, we will reach the merits o......