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.
appellate court generally reviews the denial of a
postsentence motion to withdraw a guilty plea for an abuse of
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.
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
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.
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
and Procedural Background
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.
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.
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 ...