BY THE COURT
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
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).
from Reno District Court; Trish Rose, judge.
Shannon S. Crane, of Hutchinson, was on the brief for
E. Schroeder, district attorney, and Derek Schmidt, attorney
general, were on the brief for appellee.
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.
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.
AND PROCEDURAL BACKGROUND
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).
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.
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
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 ...