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State v. Fox

Supreme Court of Kansas

December 6, 2019

State of Kansas, Appellee,
v.
Virgil Patrick Fox, Appellant.

         SYLLABUS

         1. The one-year statute of limitations for moving to withdraw a plea in K.S.A. 2018 Supp. 22-3210(e)(1) begins to run for preexisting claims on the date the amended statute became effective, April 16, 2009. A motion filed after the statute of limitations has expired may be granted only if the movant establishes excusable neglect.

         2. An appellate court generally reviews the denial of a postsentence motion to withdraw a guilty plea for an abuse of discretion.

          Appeal from Cherokee District Court; Lori Bolton Fleming, judge.

          Kristen B. Patty, of Wichita, was on the brief for appellant.

          Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, were on the brief for appellee.

          OPINION

          LUCKERT, J.

         Virgil P. Fox directly appeals the district court's denial of his motion to withdraw his 1982 guilty pleas following an evidentiary hearing on the motion. The Kansas Legislature has established a statute of limitations for filing motions to withdraw pleas, which in Fox's situation required him to file his motion before April 16, 2010, or establish excusable neglect that would equitably toll the running of the limitations period. See State v. Moses, 296 Kan. 1126, 1128, 297 P.3d 1174 (2013). Before the district court, Fox argued that deadline should be equitably tolled because he is a layman, was unaware of the statute of limitations, and could not afford an attorney. The district court rejected these arguments and ruled that Fox did not establish excusable neglect.

         Before us, Fox argues the district court abused its discretion because he was imprisoned in Florida for several years and lacked access to a phone and library materials about Kansas law. Thus, he argues, the statute of limitations should have been equitably tolled.

         We reject Fox's argument and affirm the district court. The record establishes that Fox was held in a Kansas prison for about seven years before the statute of limitations ran. He thus fails to establish a factual basis for his argument and consequently fails to carry his burden of establishing excusable neglect.

         Factual and Procedural Background

         In 1980, the State charged Fox and Richard Carter Adams with two counts of first-degree murder for killing Douglas L. Ashby and Keith Anthony Arthur. In 1982, the State amended its information against Fox to allege Fox aided and abetted Adams in the kidnapping of the men, during which Adams killed them.

         Fox pleaded guilty to the amended counts of aiding and abetting felony murder, class A felonies. During the plea hearing, the State said it agreed not to seek enhancement of Fox's sentence based on the use of a firearm or on the application of the habitual criminal statute. The State also agreed to recommend that the life sentences Fox would receive on the amended information run concurrent with a federal sentence that Fox also had to serve. As for the factual basis for the pleas, Fox testified that he aided and abetted Adams in the kidnapping of two men who they transported from Missouri to Kansas, where Fox watched Adams shoot and kill the men in a strip pit in Cherokee County, Kansas. Fox said he understood that he would receive a life sentence for the class A felonies and that there could be no other sentence.

         After a colloquy with Fox, the district court found there was a factual basis for the pleas and that the pleas were voluntarily and intelligently made. The district court later sentenced Fox to life imprisonment on both counts, to run concurrent with each other and concurrent with Fox's federal sentence. The ...


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