State v. Smith
| Decision Date | 05 August 2016 |
| Docket Number | No. 110,061,110,061 |
| Citation | 377 P.3d 414,304 Kan. 916 |
| Parties | State of Kansas, Appellee, v. Shelbert L. Smith, Appellant. |
| Court | Kansas Supreme Court |
304 Kan. 916
377 P.3d 414
State of Kansas, Appellee,
v.
Shelbert L. Smith, Appellant.
No. 110,061
Supreme Court of Kansas.
Filed August 5, 2016.
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by Johnson, J.
Shelbert Smith appeals the district court's denial of his motion to file a direct appeal out of time. He argues that he
should be allowed an untimely appeal because his appointed trial counsel failed to file the appeal that Smith requested. Because this case is presented to us without adequate factual findings, we remand to the district court to make the requisite findings pursuant to the framework described in this opinion.
Factual and Procedural Overview
Smith was convicted as an adult in 1993, after pleading nolo contendere to first-degree felony murder, aggravated kidnapping, aggravated robbery, and possession of a firearm by a minor. At the time, Smith was 16 years old. The district court sentenced Smith to life sentences for the murder and aggravated kidnapping convictions, 10 years to life for the aggravated robbery conviction, and 30 days in jail for the firearms conviction, all to run consecutively.
Smith asserts that he told his appointed counsel, Max Opperman, immediately after sentencing that he wanted to file an appeal but that his attorney had advised him to wait until the district court ruled on a motion to modify his sentence before appealing. Under a procedure available at the time, commonly called the 120–day callback, a court could modify a sentence within 120 days of sentencing in certain circumstances. See K.S.A. 21–4603(d)(1) [then K.S.A. 1992 Supp. 21–4603(4)(a) ]. In other words, a successful sentence modification on a callback motion might change the necessity for or character of an appeal of the original sentence.
Smith's attorney did file a modification motion. But after the district court overruled the motion on March 3, 1994, counsel never filed a direct appeal of Smith's sentence.
Nearly 2 decades later, on May 1, 2013, Smith filed a pro se notice of appeal, a motion for an out-of-time appeal, and a motion for appointed counsel. Subsequently, his appointed counsel filed a docketing statement. See K.S.A. 2015 Supp. 22–3601(b)(3). This court ordered Smith to show cause why the untimely appeal should not be dismissed for lack of jurisdiction, and Smith responded that he should be allowed to appeal out of time under one of the exceptions in State v. Ortiz , 230 Kan. 733, 640 P.2d 1255 (1982). This court remanded to the district court to rule on Smith's motion for an out-of-time appeal, which would include an Ortiz hearing if necessary.
At the district court hearing, the only evidence presented was Smith's testimony that, immediately after he was sentenced, he told Opperman that he wanted to appeal, but that Opperman had told Smith to wait for the result of the 120–day callback procedure. Smith said he never heard from Opperman after the 120–day callback period ended, despite persistent attempts to contact him. Smith said he called Opperman's office, two to three times per day, for most of 1994 but was unable to reach him. Smith said his mother also attempted to contact Opperman and was likewise unsuccessful. Smith said he eventually gave up because he “was in limbo” and did not know what to do, until 19 years later when he found someone at the Hutchinson Correctional Facility who helped Smith with his appeal.
Opperman died in 2009. Therefore, the State was unable to present trial counsel's testimony. The State presented no other evidence but argued that based on the Kansas
Court of Appeals decision in State v. Cole , No. 105745, 2012 WL 1649886 (Kan. App. 2012) (unpublished opinion), rev. denied 296 Kan. 1131 (2013), Smith had waived his right to bring an untimely appeal by waiting so long.
The district court denied Smith's motion. The district court did not make any findings of fact as to whether Smith had told Opperman to file an appeal, other than to say, “Well, we have the statement of the defendant somewhat to that effect.” Rather, the district court relied on the Cole decision to find that the passage of time was a bar to Smith's appeal, stating:
“But the thing that the Court cannot get over is the fact that the defendant waited all these years and said absolutely nothing, did absolutely nothing.
“In light of the decision of the Court [of Appeals] in State versus Cole, the [Kansas] Supreme Court would not be receptive. This Court cannot be receptive.”
Smith timely appealed the district court's ruling.
The Passage of Time as a Waiver of an Ortiz exception
Smith argues that he should be allowed to bring his direct appeal out of time, pursuant to Ortiz, because his attorney did not file an appeal despite Smith's direction to do so, and Smith would have timely taken an appeal but for his counsel's nonperformance. The
State argues that the lapse of time between sentencing and Smith's notice of appeal precludes review because, by letting the matter rest, Smith waived his right to an appeal.
Standard of Review
This court exercises unlimited review over the issue of appellate jurisdiction. State v. Scoville , 286 Kan. 800, 803, 188 P.3d 959 (2008). The factual findings underlying a trial court's ruling in an Ortiz hearing are reviewed for substantial competent evidence, while the legal determinations are reviewed de novo. State v. Gill , 287 Kan. 289, 293, 196 P.3d 369 (2008).
Analysis
Appellate courts in Kansas have declined to find a constitutional right to appeal and...
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State v. Myers
...or Kansas Constitutions. If a party appeals in a manner not prescribed by statutes, we must dismiss the appeal. See State v. Smith , 304 Kan. 916, 919, 377 P.3d 414 (2016). In a criminal case, the State's right to appeal is limited by the jurisdictional bases provided by statute. Kansas app......
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State v. Bird
......Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. State v. Smith , 304 Kan. 916, 919, 377 P.3d 414 (2016). B. The State can appeal the partial dismissal of charges when the remaining charges are no longer pending. ......
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State v. McGaugh, 117,599
...Appellate courts are courts of limited jurisdiction and the right to access the appellate courts is wholly statutory. State v. Smith , 304 Kan. 916, 919, 377 P.3d 414 (2016). In defining appellate jurisdiction, "[a]n appellate court has no authority to create an exception to statutory juris......
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State v. Young, 119,265
...within the presumptive range. Whether jurisdiction exists is a question of law over which our review is unlimited. State v. Smith , 304 Kan. 916, 919, 377 P.3d 414 (2016). We do not have discretionary power to entertain appeals from all district court orders. Kansas Medical Mut. Ins. Co. v.......
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Getting to the Merits Kansas Appeals: Jurisdiction, Preservation and More
...ruling it has not even made."). [71] K.S.A. 22-3608(c); Hall, supra, at 983, 988. [72] See Hall, supra, at 983, 988. [73] State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016). [74] State v. Patton, 287 Kan. 200, 217, 195 P.3d 753 (2008). [75] Id. at 218-19. [76] K.S.A. 22-3602(a). [77] St......
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Getting to the Merits Kansas Appeals: Jurisdiction, Preservation, and More
...ruling it has not even made.”). [71] K.S.A. 22-3608(c); Hall, supra, at 983, 988. [72] See Hall, supra, at 983, 988. [73] State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016). [74] State v. Patton, 287 Kan. 200, 217, 195 P.3d 753 (2008). [75] Id. at 218–19. [76] K.S.A. 22-3602(a). [77] St......
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Appellate Decisions
...credibility of Smith's testimony that he repeatedly tried throughout 1993 and 1994 to tell his attorney to file an appeal. State v. Smith, 304 Kan. 916 (2016). Second Ortiz hearing held before a different judge who denied the motion to appeal out of time, finding Smith's testimony was not c......
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Appellate Decisions
...Court reversed and remanded for district court to determine Smith's credibility regarding the third Ortiz exception claim. State v. Smith, 304 Kan. 916 (2016)(Smith I). After second Ortiz hearing district court concluded Smith's testimony was not credible. Smith appealed. Kansas Supreme Cou......