NOT DESIGNATED FOR PUBLICATION
No. 124,154
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ALFRED N. OBIERO,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed January 27,
2023. Affirmed.
Alfred Obiero, appellant pro se.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before MALONE, P.J., HURST and COBLE, JJ.
PER CURIAM: Alfred N. Obiero appeals the district court's denial of his admittedly
delayed postsentence motion to withdraw his plea as untimely, arguing that he
demonstrated excusable neglect for the untimely filing. Having found no excusable
neglect for Obiero's years-long tardiness, this court affirms the district court's denial of
his motion to withdraw plea.
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FACTUAL AND PROCEDURAL BACKGROUND
The material facts of this appeal are undisputed. In 2005, Obiero was convicted of
two separate misdemeanor charges of driving under the influence (DUI), one of which
was in Wichita Municipal Court. Obiero was again arrested for allegedly driving under
the influence on July 11, 2006, and—based on his two previous DUI convictions—the
State charged Obiero with felony DUI and two other misdemeanors related to his
operation of the vehicle. Obiero, with representation from an appointed public defender,
pled guilty to the felony DUI charge and the misdemeanor offenses of no proof of
liability insurance and driving while a habitual violator. On October 25, 2007, the district
court sentenced Obiero to 12 months' probation with an underlying jail term of 12
months. Later, Obiero admitted to violating the terms and conditions of his probation, and
the district court revoked his probation and ordered him to serve the remainder of his
underlying jail term.
Over a decade later, on May 4, 2020, Obiero filed a pro se motion to withdraw his
2007 guilty plea based upon the Kansas Supreme Court's decision in State v. Gensler,
308 Kan. 674, 423 P.3d 488 (2018). In Gensler, the Kansas Supreme Court held:
"A prior municipal court conviction for driving under the influence (DUI) under
a Wichita ordinance prohibiting operation of a vehicle under certain circumstances, when
the element of 'vehicle' is defined more broadly than the 'vehicle' element in the state DUI
statute, cannot be used to elevate a later violation of the state statute to a felony." 308
Kan. 674, Syl. ¶ 1.
Therefore, according to Obiero's motion to withdraw his plea, "the State improperly
relied upon Defendant's 2005 Wichita Municipal Court DUI conviction for sentence
enhancement purposes in the captioned case, which adversely led the Defendant to be
convicted of felony DUI instead of class A misdemeanor." The relevant portions of the
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parties' pleadings in the district court—which form the basis of this appeal—are
discussed in the analysis section below.
In May 2020, the district court appointed counsel to represent Obiero in his motion
to withdraw plea. Obiero did begin the process to dismiss his counsel and engage in self-
representation, but it does not appear those motions were heard before the district court
conducted a nonevidentiary preliminary hearing on Obiero's motion. On August 12,
2020, the district court conducted a hearing in which Obiero was not present, but his
appointed counsel and the State presented arguments on his motion to withdraw plea. At
the end of this preliminary hearing, the district court took the matter under advisement
and explained that it would issue "a written order on whether I grant a hearing or if I deny
the motion."
In its subsequent order denying Obiero's motion to withdraw plea as untimely, the
district court explained:
"[Obiero] argues that the Gensler decision represents a change in the law and
provides him with the requisite 'excusable neglect' necessary to extend the statutory time
limitation. . . .
"[Obiero] waited twenty (20) months after the Gensler decision to file his motion.
[Obiero] offers no explanation for the delay and fails to show excusable neglect. The
motion to withdraw plea is denied as untimely."
Obiero timely appealed, and the district court granted his motion for appointment
of appellate counsel. However, much like his attempt before the district court, Obiero
filed a motion to remove his appellate counsel and proceed pro se, which this court
granted. Obiero now proceeds pro se in this appeal.
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DISCUSSION
Obiero's claim is straightforward—he entered a guilty plea to felony DUI in 2007
and now seeks to withdraw that plea based on a 2018 Kansas Supreme Court case that he
believes renders his plea illegal. Obiero contends the district court wrongly dismissed his
motion to withdraw plea as untimely without an evidentiary hearing.
The parties dispute the appropriate standard of review. The manner in which the
district court decided Obiero's postsentence motion to withdraw plea dictates this court's
standard of review. When the district court conducts an evidentiary hearing prior to ruling
on the motion, this court reviews the district court's decision for an abuse of discretion.
State v. Hutto, 313 Kan. 741, Syl. ¶ 1, 490 P.3d 43 (2021) ("Appellate courts generally
review a district court's decision to deny a postsentencing motion to withdraw a guilty or
no contest plea for abuse of discretion."); State v. Shields, 315 Kan. 131, 139, 504 P.3d
1061 (2022) ("A district court's decision to deny a postsentencing plea withdrawal motion
is reviewed for an abuse of discretion.").
However, when the district court summarily denies a postsentence motion to
withdraw plea without granting an evidentiary hearing, this court exercises de novo
review "because the appellate court has all the same access to the records, files, and
motion as the district court." State v. Smith, 315 Kan. 124, 126, 505 P.3d 350 (2022).
Here, the district court ruled on Obiero's motion without granting an evidentiary
hearing. Accordingly, this court exercises de novo review to "determine whether the
records, files, and defendant's motion conclusively show that he is entitled to no relief."
Smith, 315 Kan. at 126.
A court may set aside a conviction and permit the defendant to withdraw a plea
after sentencing only "[t]o correct manifest injustice." K.S.A. 2021 Supp. 22-3210(d)(2).
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However, the defendant seeking to correct such manifest injustice must still meet the
procedural requirements of such a motion—which include timeliness. Any postsentence
motion to withdraw a plea must be brought
"within one year of: (A) The final order of the last appellate court in this state to exercise
jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (B) the
denial of a petition for a writ of certiorari to the United States supreme court or issuance
of such court's final order following the granting of such petition." K.S.A. 2021 Supp. 22-
3210(e)(1).
And the court can only extend that deadline "upon an additional, affirmative showing of
excusable neglect by the defendant." (Emphasis added.) K.S.A. 2021 Supp. 22-
3210(e)(2). Thus, Obiero must overcome this threshold barrier of demonstrating
excusable neglect for his delayed filing before the court will address his substantive
argument.
Obiero's postsentence motion to withdraw plea was untimely.
Obiero conceded to the district court—and on appeal—that his motion to
withdraw plea was untimely. Obiero was required to file his postsentence motion to
withdraw plea within one year of the termination of appellate jurisdiction. See K.S.A.
2021 Supp. 22-3210(e)(1). The district court sentenced Obiero in October 2007, and his
time to file a notice of appeal expired 14 days later. However, the 1-year limitation period
at issue here was not effective until April 16, 2009, and the Kansas Supreme Court has
consistently held that "[t]he one-year statute of limitations for moving to withdraw a plea
in K.S.A. 2019 Supp. 22-3210(e)(1) begins to run for preexisting claims on the date the
amended statute became effective, April 16, 2009." State v. Hill, 311 Kan. 872, Syl. ¶ 2,
467 P.3d 473 (2020); see State v. Fox, 310 Kan. 939, Syl. ¶ 1, 453 P.3d 329 (2019). The
parties agree, therefore, that the 1-year statute of limitations for Obiero to file his
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postsentence motion to withdraw plea expired on April 16, 2010, more than 10 years
before he filed the motion forming the basis for this appeal. Accordingly, as Obiero
concedes, his motion was untimely.
Having established that Obiero filed his postsentence motion to withdraw plea
after the one-year timeline, he must establish excusable neglect for that delay before the
court will consider his substantive argument. See K.S.A. 2021 Supp. 22-3210(e)(2); Hill,
311 Kan. 872, Syl. ¶ 2 ("A motion filed after the statute of limitations has expired may be
granted only if the movant establishes excusable neglect.").
Obiero failed to show excusable neglect for his untimely filing.
The district court found that Obiero failed to make the affirmative showing that his
delay was excusable. "[N]eglect is not excusable unless there is some justification for an
error beyond mere carelessness or ignorance of the law on the part of the litigant or his
attorney." Smith, 315 Kan. 124, Syl. ¶ 3. Obiero was required to show more than "'the
unintentional inadvertence or neglect common to all who share the ordinary frailties of
mankind,'" and that does not include his mere ignorance of the law. See Smith, 315 Kan.
at 353 (quoting Montez v. Tonkawa Vill. Apartments, 215 Kan. 59, 65, 523 P.2d 351
[1974]); State v. Davisson, 303 Kan. 1062, 1068, 370 P.3d 423 (2016) ("[I]gnorance of
the law should not constitute excusable neglect for inmates or criminal defendants under
K.S.A. 2015 Supp. 22-3210(e)(2).").
Obiero was required to demonstrate this excusable neglect to the district court
through his motion. "A movant must allege in a plea withdrawal motion itself sufficient
grounds for relief, including the existence of excusable neglect when the motion is filed
beyond the one-year time limit." (Emphasis added.) State v. Louis, 59 Kan. App. 2d 14,
Syl. ¶ 4, 476 P.3d 837 (2020). The district court may summarily deny a postsentence
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motion to withdraw plea as untimely when the defendant fails to make a showing of
excusable neglect. 59 Kan. App. 2d at 19-20.
Obiero's only reason for excusable neglect is the alleged change in law resulting
from Gensler. In his motion to withdraw plea, Obiero explained:
"Gensler reflects a change in the law that could furnish manifest injustice to
withdraw the plea by excusable neglect because it exposes the blatant unfairness of the
underlying adjudicatory process and the direct legal consequences of the plea.
". . . Defendant prays this Court will forgive his failure to execute this action at
the proper time not because of his own carelessness, inattention, or willful disregard of
the court's process, but because of some unexpected or unavoidable hindrance or
accident, to wit: incorrect application of the law by the State and sentencing court."
As the district court accurately noted, the Kansas Supreme Court issued its decision in
Gensler on August 10, 2018—but Obiero filed his motion to withdraw plea in May
2020—almost 2 years later. Therefore, even assuming this court would agree with Obiero
that Gensler represents a change in law excusing his delayed filing, Obiero filed his
motion to withdraw plea more than a year after the event that arguably created the
excusable neglect. Even if the one-year statute of limitations began to run again when
Gensler was decided, Obiero's motion was still untimely. And, as the district court further
observed, Obiero's motion offered no explanation for his delayed filing from when
Gensler was decided. Obiero failed to meet his burden of making an additional,
affirmative showing of excusable neglect in his untimely postsentence motion to
withdraw plea.
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CONCLUSION
The district court did not err in finding that Obiero failed to establish excusable
neglect to permit his untimely filing. The district court's summary denial of Obiero's
postsentence motion to withdraw plea as untimely is therefore affirmed.
Affirmed.
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