I take back what I said: Kansas Court of Appeals says recanted testimony constitutes excusable neglect to withdraw plea

In re. E.J.P., No. 123,930, 2023 WL 5498969 (Kan. Ct. App. Aug. 25, 2023).

Gabby Phillips, Staff Editor

Issue: Is a key witness’s testimonial recantation sufficient new evidence for courts to permit an untimely motion to withdraw plea?

Answer: Yes. A key witness’s testimonial recantation is sufficient new evidence for courts to permit an untimely motion to withdraw plea.

Facts: In 2005, E.J.P. pled no contest to a single count of criminal threat against his then-girlfriend, J.G. Fourteen years later, J.G. recanted her testimony in an affidavit, stating she had made up the allegation against E.J.P. Based on this recantation, E.J.P. moved to withdraw his no-contest plea. However, the district court denied the motion because it was filed outside the one-year statute of limitations. The court reasoned that E.J.P. failed to show the excusable neglect required for the untimely motion because E.J.P. had known J.G. was lying when he pled no contest.

Discussion: The Kansas Court of Appeals reversed the district court’s decision on this issue, holding that the recantation sufficiently established excusable neglect to permit E.J.P.’s untimely motion. The court reviewed this issue for abuse of discretion.

The statute of limitations for moving to withdraw a plea is one year.[1] However, this statute of limitations may be extended if the defendant affirmatively shows “excusable neglect.”[2] Excusable neglect requires “some justification beyond mere carelessness or ignorance of the law.”

In State v. Betts, the Kansas Supreme Court granted a motion for a new trial based on testimonial recantation.[3] The Betts court reasoned that the recanted testimony was newly discovered and could not, with reasonable diligence, have been produced at trial—even though the defendant knew the testimony was false at the time given. The Kansas Court of Appeals found that Betts’s reasoning also applied to untimely motions to withdraw plea. Here, the court reasoned that J.G.’s recanted testimony was newly discovered and could not have been produced before E.J.P.’s plea, even though E.J.P. knew J.G.’s testimony was false at the time given. Therefore, the court held that E.J.P. showed excusable neglect sufficient to permit the untimely motion to withdraw plea. However, the Court of Appeals ultimately affirmed the district court on other grounds—namely, that E.J.P. failed to establish manifest injustice to withdraw his plea.

Key Authorities: Kan. Stat. Ann. § 22-3210(e)(1)­–(2); State v. Betts, 33 P.3d 575 (Kan. 2001), overruled on other grounds by State v. Davis, 158 P.3d 317 (Kan.  2006)

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[1] Kan. Stat. Ann. § 22-3210(e)(1) (Supp. 2022).

[2] Id. § 22-3210(e)(2).

[3] State v. Betts, 33 P.3d 575 (Kan. 2001), overruled on other grounds by State v. Davis, 158 P.3d 317 (Kan.  2006)