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State v. Sheppard

Court of Appeals of Kansas

May 24, 2019

State of Kansas, Appellee,
v.
Marlon Sheppard, Appellant.

         SYLLABUS BY THE COURT

         1. A district court's decision to deny a party's request for leave to file a motion out of time is reviewed for an abuse of discretion. A judicial action constitutes an abuse of discretion if no reasonable person would take the view adopted by the trial court, it is based on an error of law, or it is based on an error of fact.

         2. A motion to dismiss must be filed either before arraignment or within 21 days after the plea is entered. The district court may allow the motion to be filed after the time limit has expired if the party can demonstrate that his or her failure to act was a result of excusable neglect. The burden to show excusable neglect is on the party seeking an extension of the time limitation.

         3. What constitutes excusable neglect under a statute must be determined by the court on a case-by-case basis under the facts presented in support of and in opposition to the enlargement of time. The court should consider the circumstances under which the neglect to act occurred as well as the effect of an enlargement upon the rights of all parties affected thereby.

         4. Evidence of good faith, a reasonable excuse for the failure, and that the interests of justice could be served by granting the request are factors the court may use to determine whether a party has demonstrated that his or her failure to act was a result of excusable neglect.

         5. Whether a sentence is illegal is a question of law over which an appellate court has unlimited review. An illegal sentence is a sentence imposed by a court without jurisdiction; that does not conform to the applicable statutory provision, either in character or punishment; or that is ambiguous with respect to the time and manner in which it is to be served at the time it is pronounced.

         6. The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words.

         7. The criminal statutes and penalties that were in effect at the time that the crime occurred are controlling unless the Legislature explicitly gives retrospective effect to statutory changes made after the commission of the crime. A statute generally only operates prospectively unless the language of the statute demonstrates the Legislature's clear intent that it operate retrospectively or the statutory change is procedural and does not prejudice the substantive rights of the parties.

         8. The 2015 statutory amendments to K.S.A. 21-6810 are procedural in nature and shall be construed and applied retroactively.

         9. The 2016 statutory amendments to the juvenile decay rules are substantive in nature and the Legislature has included no clear language that it intended the 2016 amendments to K.S.A. 21-6810 to operate retroactively.

          Appeal from Wyandotte District Court; Wesley K. Griffin, judge.

          Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

          Kayla Roehler, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Standridge, P.J., Gardner, J., and Walker, S.J.

          STANDRIDGE, J.

         In 2006, a jury convicted Marlon Sheppard of one count of second-degree murder and two counts of criminal possession of a firearm. Sheppard appealed, and his convictions were affirmed by a panel of this court in 2009. In 2017, Sheppard filed a pro se motion to dismiss as well as a motion for leave to file the motion to dismiss out of time. The motion for leave to file the motion to dismiss out of time was denied. Sheppard appealed. A few months later, Sheppard filed a pro se motion to correct an illegal sentence. That motion also was denied. Sheppard again appealed. Those appeals have been consolidated for our consideration. Finding no error, we affirm the district court's decision to deny each of Sheppard's motions.

         Facts

         On June 8, 2006, a jury convicted Sheppard of one count of second-degree murder and two counts of criminal possession of a firearm. Following his convictions, Sheppard filed a motion for a new trial and a motion for a departure sentence. The former was denied but the latter was granted, and Sheppard was sentenced to 354 months in prison. Sheppard filed a direct appeal. In its opinion, a panel of this court found the following facts:

"On October 19, 2005, Christopher Schley drove Sheppard in Sheppard's green Pontiac to a house party on Hiawatha Street. Schley parked, and Sheppard got out of the car. Kimberly Norman, a witness that later contacted the district attorney's office with information, stated [Chris] Brewer [the victim] arrived at the party at about 3:30 a.m., and Sheppard arrived 10 or 15 minutes later. Norman saw Brewer and Sheppard talking in Misha Franklin's car outside the party. Franklin was Brewer's girlfriend, and Brewer was driving Franklin's gray Honda Civic that night.
"Norman saw Brewer and Sheppard drive off together at about 4:00 a.m. Norman also saw a car she described as a 'green something, like a teal Grand Prix or something like that.' Norman said the green car drove away from the party before Brewer ...

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