NOT DESIGNATED FOR PUBLICATION
No. 122,975
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
CEDRIC YWAIN PETERSON,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Geary District Court; BENJAMIN J. SEXTON, judge. Opinion filed September 10,
2021. Affirmed.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.
Jason B. Oxford, assistant county attorney, Krista Blaisdell, county attorney, and Derek Schmidt,
attorney general, for appellee.
Before BRUNS, P.J., GARDNER and CLINE, JJ.
PER CURIAM: Cedric Ywain Peterson—who was convicted of first-degree
premeditated murder in 2007—appeals from the district court's summary dismissal of his
most recent post-conviction motion asserting that his trial counsel was ineffective.
Peterson's current motion is labeled as a motion to withdraw plea or in the alternative as a
K.S.A. 60-1507 motion. On appeal, Peterson contends that the district court erred in
concluding that his current motion was untimely and successive. Based on our review of
the record on appeal, we find Peterson's arguments to be unpersuasive and we find no
reversible error. Thus, we affirm the district court's summary denial of Peterson's motion.
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FACTS
In 2007, Peterson was charged with one count of aggravated burglary, one count
of premeditated first-degree murder, and one alternative count of first-degree felony
murder. Pursuant to a plea agreement, Peterson pled no contest to premeditated first-
degree murder and received a sentence of 25-years to life in prison. By entering into the
plea agreement with the State, the aggravated burglary count was dismissed and Peterson
was able to avoid the imposition of a hard 50 sentence. See Peterson v. State, No.
108,332, 2013 WL 3970189, *1 (Kan. App. 2013) (unpublished decision).
Following sentencing, Peterson filed a direct appeal. However, he ultimately chose
to voluntarily dismiss the appeal and a mandate was issued on September 3, 2008. A few
months later, Peterson filed his first postsentence motion to withdrawal plea.
Subsequently, Peterson filed a second postsentence motion to withdraw plea that was
identical to his first motion. In both motions, Peterson argued—among other things—that
his trial counsel was ineffective.
On the same day that Peterson filed his second postsentence motion to withdraw
his plea, he also filed a K.S.A. 60-1507 motion. Similar to his motions to withdraw his
plea, Peterson alleged in his K.S.A. 60-1507 motion that his legal counsel was
ineffective. In addition, Peterson claimed that he did not understand his plea. On May 13,
2010, the district court denied Peterson's K.S.A. 60-1507 motion as untimely. On appeal,
a panel of this court remanded the K.S.A. 60-1507 motion to the district court. Peterson,
2013 WL 3970189, *1, 3-4. However, we cannot determine the final disposition of that
K.S.A. 60-1507 motion based on the record provided to us.
On June 17, 2010, the district court held an evidentiary hearing to determine
whether Peterson should be allowed to withdraw his plea. At the hearing, Peterson
testified on his own behalf and claimed that he did not understand the minimum sentence
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that he could receive when he entered his plea. Specifically, Peterson claimed that he did
not realize he would not be eligible for parole for at least 25 years. In addition, Peterson
claimed that his trial counsel failed to discuss the possibility of an intoxication defense
with him prior to him entering his plea.
In response, the State called Peterson's trial counsel—JoAn Hamilton-Lindfors—
as a witness. Contrary to Peterson's assertions, Hamilton-Lindfors testified that she
discussed the terms and conditions of the plea agreement with her client in detail. She
further testified that she explained to Peterson the maximum possible prison term as well
as the length of time before parole eligibility if the plea was accepted by the district court.
In addition, Hamilton-Lindfors testified that she and her co-counsel considered an
intoxication defense and even consulted with an expert witness prior to making the
strategic decision not to present this defense.
At the conclusion of the hearing, the district court denied Peterson's postsentence
motion to withdraw his plea. In doing so, the district court found:
"[T]he Court's not able to find manifest injustice in this situation . . . pursuant to
the statute. To the contrary, the defendant's allegations, as contained in his motion to
withdraw the plea, have not been shown, in the record, nor by the evidence.
"[P]aragraph 8, of the plea agreement specifically sets out life with parole
eligibility in 25 years. The testimony, of counsel [was] very believable that—as to the
questions of the defendant, based on her past experience with the parole board; the fact
that 'Hard 50' had been noticed up, filed in the case, and was, specifically the benefit of
the bargain that was involved, here.
"The statements, at the time of the plea, that [Peterson would be] eligible in 25
years [was] taken up. Court can't find anything there that would suggest that it was not
understood.
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"The Court would note the defendant, in that plea agreement, had, also, agreed
not to file any . . . appeal; had, specifically, stated that he has no claim for ineffective
counsel; would note he’s appealed and raised ineffective assistance of counsel, without
merit.
"[N]o manifest injustice, no situation where there was any misrepresentation of
the law, or any ineffective assistance of counsel, or any sort of ambiguity as to what the
sentence was, and what he was looking at.
"So, the Court would find the plea was freely, voluntarily, and intelligently
entered, with the understanding of the possible consequences, including the time before
he was eligible for parole. And the motion to withdraw the plea of no contest is denied."
The next day, Peterson filed a notice of appeal. However, no appeal was ever
docketed. Consequently, on February 14, 2012, the district court dismissed the appeal
pursuant to Kansas Supreme Court Rule 5.051 (2012 Kan. Ct. R. Annot. 35).
On March 2, 2012, Peterson filed a motion to reinstate his appeal in the district
court. In his motion, Peterson alleged that his appellate counsel had failed to properly
docket his appeal in a timely manner. However, the district court denied Peterson's
motion to reinstate his appeal. Next, Peterson unsuccessfully attempted to have the
Kansas Supreme Court reinstate his appeal. Thus, the district court's decision—as
announced by the district court following the evidentiary hearing in 2010—represents the
final order regarding the issue of whether Peterson's trial counsel was ineffective.
Several years later, on December 15, 2016, Peterson filed the "Motion to
Withdraw Plea (Pursuant to K.S.A. 22-3210) or In the Alternative Writ of Habeas Corpus
(Pursuant to K.S.A. 60-1507)" that is the subject of this appeal. In his motion, Peterson
repeated many of the arguments that he raised in his previous post-conviction motions. In
particular, Peterson once again claimed that his trial counsel was ineffective. Moreover,
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Peterson admits that the issues raised in his current motion "do mimic previous motions
and or petitions" that he has filed over the years.
On March 10, 2017, the district court held a non-evidentiary hearing on Peterson's
current motion. At the hearing, the district court reviewed the files and records relating to
the history of the underlying case as well as to the various motions filed by Peterson after
he entered his plea in 2017. Based on its review of the files and records, the district court
summarily dismissed the motion as untimely and successive. The district court also found
that the deadline for filing the motion should not be extended to prevent manifest
injustice. Thereafter, Peterson filed a timely notice of appeal.
ANALYSIS
The sole issue presented on appeal is whether the district court erred in summarily
dismissing Peterson's most recent motion without conducting an evidentiary hearing.
Peterson argues that we should remand the motion to the district court in order to allow
him to develop an evidentiary record. Although it appears from the record that both the
State's attorney and Peterson's attorney represented to the district court at the hearing that
the current motion should be treated as a second K.S.A. 60-1507 motion, Peterson
suggests on appeal that we apply the legal standards for both K.S.A. 60-1507 motions
and postsentence motions to withdraw pleas. Regardless, under either legal standard, we
find the ultimate result to be the same.
When a district court summarily dismisses a K.S.A. 60-1507 motion, we conduct a
de novo review to determine whether the motion, files, and records of the case
conclusively establish that the movant has no right to relief. We are to conduct this
review independently and do not defer to the district court's decision. See Beauclair v.
State, 308 Kan. 284, 293, 419 P.3d 1180 (2018). Similarly, when a district court
summarily denies a motion to withdraw a plea without an evidentiary hearing, our review
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is unlimited because we have the same access to the motions, records, and files as the
district court. See State v. Wilson, 308 Kan. 516, 520, 421 P.3d 742 (2018).
A movant who fails to show manifest injustice is procedurally barred from
pursuing a K.S.A. 60-1507 motion once the deadline for filing has expired. Furthermore,
although excusable neglect for the belated filing of a motion to withdraw plea must be
determined on a case-by-case basis, the burden under K.S.A. 2020 Supp. 22-3210(e)(2) is
on the movant to show that such neglect exists. State v. Fox, 310 Kan. 939, 940, 453 P.3d
329 (2019); see State v. Hill, 311 Kan. 872, 877-78, 467 P.3d 473 (2020). Where a
defendant makes no attempt at an affirmative showing of excusable neglect, an appellate
court will find the motion to withdraw plea is untimely and procedurally barred. See State
v. Parks, 308 Kan. 39, 44, 417 P.3d 1070 (2018).
Here, it is undisputed that Peterson's current motion is untimely on its face.
Nevertheless, the one-year time limitation for bringing a K.S.A. 60-1507 motion may be
extended to prevent a manifest injustice. K.S.A. 2020 Supp. 60-1507(f)(2). Likewise,
Peterson points out that the one-year time limitation for filing a motion to withdraw plea
may be extended upon an "affirmative showing of excusable neglect by the defendant."
K.S.A. 2020 Supp. 22-3210(e)(2). Thus, we look to the record on appeal to determine
whether Peterson has shown either manifest injustice or excusable neglect to justify his
belated filing.
Based on our review of the record, we find that Peterson has failed to show either
manifest injustice or excusable neglect. Even though Peterson now asserts that he is
entitled to proceed with his current motion because of the uncertainty regarding the
resolution of one or more of his prior motions, we do not find this argument to be
persuasive. Peterson has not asserted anything that would rise to the level of manifest
injustice for his belated filing. Furthermore, although he now suggests that his trial
counsel should have raised certain defenses that may have "mitigated" his sentence, he
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does not show why he waited so long to raise these arguments nor does he allege actual
innocence. See K.S.A. 2020 Supp. 60-1507(f)(2)(A).
Likewise, we do not find that Peterson has shown excusable neglect for his failure
to file his current motion sooner. In particular, Peterson provides no explanation why he
waited so long after our Supreme Court refused to reinstate his previous appeal. As the
record reflects, although our Supreme Court denied reinstatement of Peterson's previous
appeal on April 10, 2012, his current motion was not filed until December 15, 2016.
Similarly, although a panel of this court remanded a K.S.A. 60-1507 motion to the district
court in 2012, Peterson has failed to show what—if anything—he did to pursue that
motion before the district court.
Peterson has the burden to provide an explanation for his delay in the filing of his
current motion that is sufficient to either manifest injustice or establish excusable neglect.
See State v. Kingsley, 299 Kan. 896, 900, 326 P.3d 1083 (2014). Here, he has done
neither. In other words, Peterson has not shown any factual or legal basis to support an
extension of the one-year limitation. See Parks, 308 Kan. at 44. Accordingly, we find that
the district court appropriately dismissed Peterson's current motion as untimely.
Furthermore, we agree with the district court's conclusion that Peterson's current
motion is "successive" in addition to being untimely. Under K.S.A. 2020 Supp. 60-
1507(c), district courts need not consider more than one habeas motion seeking similar
relief. Because a movant is presumed to have listed all grounds for relief in his or her
initial K.S.A. 60-1507 motion, "exceptional circumstances" must be shown to justify the
filing of successive motions. Littlejohn v. State, 310 Kan. 439, 446, 447 P.3d 375 (2019);
see Trotter, 296 Kan. 898, Syl. ¶ 2, 295 P.3d 1039 (2013). Exceptional circumstances
include "unusual events or intervening changes in the law which prevent a movant from
reasonably being able to raise all of the trial errors in the first postconviction proceeding."
State v. Kelly, 291 Kan. 868, Syl. ¶ 2, 248 P.3d 1282 (2011).
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The purpose of the exceptional circumstances requirement is to allow movants to
explain why they did not raise an issue during their first postconviction proceeding. See
Trotter, 296 Kan. 898, Syl. ¶ 2. Here, Peterson does not offer such an explanation. He
also does not point to any changes in the law or unusual circumstances that might
validate his filing of successive K.S.A. 60-1507 motions. To the contrary, in his motion,
Peterson boldly admits that the issues raised in his current motion "mimic previous
motions and or petitions filed in this court." Indeed, a review of the record confirms that
since his 2007 conviction, Peterson has repeatedly argued that his trial counsel was
ineffective.
Significantly, the district court granted Peterson an evidentiary hearing in 2010 on
the claim that his trial counsel was ineffective. As discussed above, Peterson took
advantage of this opportunity to testify on his own behalf regarding the ways in which he
believed his trial attorney was ineffective. In response, the State called Peterson's
attorney—who has significant experience in criminal law—to testify. In doing so, she
testified regarding her strategic decisions in defending Peterson as well as her
consultation with him regarding the consequences of entering the plea and his potential
sentence. She also testified that she discussed with Peterson the length of time before he
would be eligible for parole.
After hearing the testimony, the district court found the testimony of Peterson's
trial counsel to be credible. As a result, the district court concluded that Peterson had
failed to establish ineffective assistance of counsel. Again, it is important to recognize
that the appeal following this ruling was subsequently dismissed and Peterson's motions
to reinstate the appeal were denied by both the district court and the Kansas Supreme
Court. Consequently, the district court's decision became binding on Peterson and we
find no justification for him to relitigate his claim of ineffective assistance of trial
counsel.
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In conclusion, based on our review of the record on appeal, we find that the
district court did not err in dismissing Peterson's most recent postconviction motion and
we affirm the district court's decision.
Affirmed.
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