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State v. Gonzalez

Court of Appeals of Kansas

May 31, 2019

State of Kansas, Appellee,
v.
Felipe M. Gonzalez, Appellant.

         SYLLABUS

         1. The district court may extend the one-year time limitation for a postsentence motion to withdraw a plea only if the defendant shows excusable neglect. K.S.A. 2018 Supp. 22-3210(e)(2).

         2. Excusable neglect under K.S.A. 2018 Supp. 22-3210(e)(2) requires something more than unintentional inadvertence or neglect common to all who share the ordinary frailties of mankind. It requires some justification for an error beyond mere carelessness or ignorance of the law on the part of the litigant or his or her attorney.

         3. A defense attorney must advise a client whether a conviction likely will lead to deportation if that effect can be readily determined. When deportation is less clear, the attorney need only inform the noncitizen client that an uncertain risk exists of adverse immigration consequences. Padilla v. Kentucky, 559 U.S. 356, 367-69, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

         4. In this case, the acknowledgment of rights and entry of plea form that defendant received during his plea hearing, reviewed with his attorney, understood, and signed, satisfied the Padilla requirements, as its language clearly identified deportation as a likely outcome instead of a mere abstract possibility.

          Appeal from Sedgwick District Court; Jeffrey E. Goering, judge.

          Heather Cessna, of Kansas Appellate Defender Office, for appellant.

          Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

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

          GARDNER, J.

         Felipe Gonzalez pleaded guilty to various criminal charges, was granted probation, and then violated the terms of his probation. The district court revoked his probation and imposed a modified sentence. After serving that sentence, Gonzalez was ordered to be deported from the United States.

         Gonzalez later filed an untimely postsentence motion to withdraw his plea, arguing his trial attorney had failed to tell him about the effect his guilty plea could have on his immigration status. Gonzalez also claimed he did not know that as a permanent resident noncitizen he would be treated differently than a United States citizen. The district court denied the motion finding it untimely. It found that Gonzalez' ignorance of his status and of the law did not rise to the level of excusable neglect as was necessary to consider the merits of his untimely motion. Because we agree that Gonzalez made no showing of excusable neglect, we affirm.

         Factual and Procedural Background

         In 2012, the State charged Gonzalez with multiple offenses:

• possessing a controlled substance;
• driving under the influence;
• driving with a suspended ...

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