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State v. Parks

Supreme Court of Kansas

June 1, 2018

State of Kansas, Appellee,
v.
Phillip Parks, Appellant.

         SYLLABUS BY THE COURT

         1. Under the facts of this case, the invited error doctrine applies where the appellant repeatedly invited the district court to construe a pro se motion as a motion to withdraw plea.

         2. An untimely motion to withdraw plea is procedurally barred where the appellant does not meet his or her burden to show excusable neglect under K.S.A. 2017 Supp. 22-3210(e)(2).

          Appeal from Reno District Court; Trish Rose, judge.

          Shannon S. Crane, of Hutchinson, was on the brief for appellant.

          Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

          DECISION

          Nuss, C.J.

         Phillip Parks appeals the district court's denial of his pro se motion to set aside a "void judgment." At the urging of Parks' later-appointed counsel, the court treated the motion as one under K.S.A. 2017 Supp. 22-3210 to withdraw Parks' no contest plea accepted by the court 19 years earlier. Because Parks failed to allege the required excusable neglect under that statute's provision allowing late motions for plea withdrawal, the court held it was untimely and denied it.

         Parks now argues the court should have construed his motion as one under K.S.A. 60-1507 and allowed the untimely filing to prevent manifest injustice under subsection (f)(2) of that statute. We agree with the State, however, that Parks' counsel's earlier urgings qualify as invited error. So we affirm the denial of Parks' motion.

         FACTS AND PROCEDURAL BACKGROUND

         In 1997, Parks pled no contest to the June 1978 premeditated first-degree murder of his wife, Rachel Parks. During the intervening 19 years, Parks was convicted of the attempted murder of his new wife in New Mexico. The Kansas proceedings were initiated after New Mexico trial testimony revealed Parks told his new wife that he had to kill her just like he killed Rachel. State v. Parks, 265 Kan. 644, 645, 962 P.2d 486 (1998).

         At the time of Rachel's killing, the sentence for premediated first-degree murder in Kansas was life imprisonment. K.S.A. 21-3401 (Weeks 1974); K.S.A. 21-4501 (Weeks 1974). In exchange for Parks' plea, the State recommended the life sentence run concurrent with his New Mexico sentence. The State also agreed to recommend jail time credit back-dated to when the Kansas charges were filed.

         At the 1997 plea hearing, Parks was not informed by the State or the district court that the maximum possible sentence was life imprisonment. The State "agreed to recommend . . . that the sentence here run concurrent with the sentence the defendant is presently serving in the State of New Mexico, given credit back to the date the charges were filed in this pending case." When the court asked whether Parks knew the sentence he could be given, Parks responded "[y]es, sir." But his potential sentence was not discussed further.

         At the later sentencing, the district court rejected the plea agreement's recommendation and ran the Kansas life sentence consecutive to New Mexico's sentence. At the conclusion of the hearing, defense counsel requested that Parks still receive credit for time served. But the State indicated that credit was not permitted with a consecutive sentence. The court agreed with the State and declined to give such credit. Parks directly appealed to this court, arguing certain victim impact ...


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