NOT DESIGNATED FOR PUBLICATION
No. 122,592
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
NICHOLAS AARON MCGEE,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Opinion filed April 30, 2021.
Affirmed.
James M. Latta, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before HILL, P.J., BRUNS and SCHROEDER, JJ.
PER CURIAM: Nicholas Aaron McGee appeals the district court's denial of his
untimely postsentence motion to withdraw his guilty plea following a nonevidentiary
hearing. On appeal, McGee contends that the district court erred by failing to hold an
evidentiary hearing. In response, the State contends that an evidentiary hearing was not
required because McGee never attempted to show excusable neglect to justify the
untimely filing of his motion. Based on our review of the record, we find that the district
court did not err in denying McGee's postsentence motion to withdraw his plea.
Accordingly, we affirm the district court.
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FACTS
In September 1999, McGee was convicted of two counts of indecent liberties with
a child. As a result of those convictions, the Kansas Offender Registration Act required
him to register as a sex offender with the State of Kansas. See K.S.A. 22-4901 et seq.
However, McGee failed to properly do so.
On March 22, 2012, McGee pled guilty to one count of violating his duty to
register as a sex offender. The district court sentenced McGee to an underlying 34-month
prison term. However, the district court granted McGee's request for a downward
dispositional departure and placed him on probation.
Subsequently, McGee violated the terms of his probation. On two occasions, the
district court revoked and reinstated McGee's probation. After McGee again violated the
terms of his probation, the district court revoked his probation for a third time. On this
occasion, the district court ordered McGee to serve his original sentence. Although
McGee filed a notice of appeal, the district court dismissed it for failure to file a
docketing statement.
On September 30, 2019, McGee filed a pro se motion to withdraw plea. In his
motion, McGee asserted that his criminal history score had been incorrectly calculated at
the time of his sentencing seven years before. He further claimed that he had told his
attorney about the alleged error in his criminal history score but that it was never brought
to the district court's attention. Based on these assertions, McGee claimed that his trial
counsel had been ineffective.
The district court appointed an attorney to represent McGee and held a
nonevidentiary hearing. At the conclusion of the November 26, 2019 hearing, the district
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court denied the motion, finding that it was time-barred. See K.S.A. 2020 Supp. 22-
3210(e)(1). Thereafter, McGee filed a timely notice of appeal.
ANALYSIS
McGee contends that the district court erred in summarily dismissing his untimely
filed postsentence motion to withdraw guilty plea. In particular, McGee argues that an
evidentiary hearing was necessary to allow him to explain why his motion was not timely
filed. The State contends that the district court properly denied the motion following a
nonevidentiary hearing where McGee was represented by counsel because McGee failed
to show excusable neglect to justify the untimely filing of the motion.
Generally, we will not disturb a district court's denial of a postsentence motion to
withdraw a plea absent an abuse of discretion. State v. Fox, 310 Kan. 939, 943, 453 P.3d
329 (2019). A judicial action constitutes an abuse of discretion only if: (1) it is arbitrary,
fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error
of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). Here, McGee has the
burden to show an abuse of discretion. See State v. Thomas, 307 Kan. 733, 739, 415 P.3d
430 (2018).
K.S.A. 2020 Supp. 22-3210(d)(2) provides: "To correct manifest injustice the
court after sentence may set aside the judgment of conviction and permit the defendant to
withdraw the plea." However, a defendant must file any postsentencing motion to
withdraw plea within one year of the termination of direct appeal jurisdiction. K.S.A.
2020 Supp. 22-3210(e)(1). After one year has passed, the district court may extend the
time limit "only upon an additional, affirmative showing of excusable neglect by the
defendant." K.S.A. 2020 Supp. 22-3210(e)(2); see State v. Moses, 296 Kan. 1126, 1127-
28, 297 P.3d 1174 (2013).
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"Excusable neglect requires 'something more than unintentional inadvertence or
neglect common to all who share the ordinary frailties of mankind.' [Citation omitted.]"
State v. Gonzalez, 56 Kan. App. 2d 1225, 1229, 444 P.3d 362 (2019), rev. denied 311
Kan. 1048 (2020). Our Supreme Court has made it clear that K.S.A. 2019 Supp. 22-
3210(e)(2) "places the burden on the defendant to at least make an effort to show that it
exists." State v. Hill, 311 Kan. 872, 878, 467 P.3d 473 (2020). In the present case, McGee
acknowledges that his motion to withdraw plea was filed well beyond the one-year time
limit set forth in K.S.A. 2020 Supp. 22-3210(e)(1).
A review of the record reveals that McGee failed to include any allegation of
excusable neglect in his motion. Likewise, he failed to do so at the nonevidentiary
hearing held by the district court and chose to simply "rest on the written motion." Even
in his brief on appeal, McGee simply claims that the district court should have held a
hearing to inquire as to why his motion was untimely filed, but he fails to offer any
explanation why his delay in filing the postsentence motion was excusable. Where a
defendant makes no attempt to establish excusable neglect, we will find the motion
untimely and procedurally barred. State v. Williams, 303 Kan. 605, 608, 366 P.3d 1101
(2016).
Here, the parties agree that McGee filed his postsentence motion to withdraw well
after the statutory deadline had passed. Nevertheless, McGee failed to explain in his
motion, at the hearing, or in his brief on appeal any scenario to establish excusable
neglect for his belated filing. See State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018)
(An issue not briefed is deemed waived and abandoned.). Accordingly, we conclude that
McGee failed to show an abuse of discretion in the district court's decision to deny his
motion following a nonevidentiary hearing.
Affirmed.
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