In re Emerson

• Decision Date: 12 February 2016
• Docket Number: No. 113,503.,113,503.
• Citation: 52 Kan.App.2d 421,369 P.3d 327
• Parties: In the Matter of the Care and Treatment of Cecil W. EMERSON.
• Court: Kansas Court of Appeals

52 Kan.App.2d 421

369 P.3d 327

In the Matter of the Care and Treatment of Cecil W. EMERSON.

No. 113,503.

Court of Appeals of Kansas.

Feb. 12, 2016.

Review Granted Oct. 21, 2016.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., GARDNER, J., and BURGESS, S.J.

GARDNER, J.

On October 24, 2000, a jury determined Cecil Emerson was a sexually violent predator.His appointed counsel filed a timely notice of appeal but failed to file a brief, thus Emerson's appeal was dismissed.Nearly 12 years later, the district court granted Emerson's motion to file a direct appeal out of time.This case asks whether we have the power to hear Emerson's untimely appeal and, if so, whether the jury's verdict finding him to be a sexually violent predator should be upheld.We answer both questions in the affirmative.

Procedural background

Emerson's trial

In August of 1999, the State filed a petition seeking to commit Cecil Emerson for care and treatment as a sexually violent predator.At Emerson's jury trial, the parties stipulated Emerson had the following prior convictions: (1) lascivious acts with a child in 1975; (2) indecent liberties with a child in 1981; and (3) sexual exploitation of a child in 1990.The 1975 and the 1981 convictions involved sexual contact with two 9–year–old girls, and the 1990 conviction involved sexual contact with a 15–year–old girl.

The State presented two witnesses: Rex Rosenberg, a master's level psychologist, and Dr. Jose Bulatao, a psychiatrist.Both practiced at Larned State Security Hospital.Emerson's sole witness was Dr. William Searle Logan, a psychiatrist.After hearing the testimony, the jury found that the State had proved beyond a reasonable doubt that Emerson was a sexually violent predator.

Posttrial proceedings

Emerson's appointed trial counsel, Michael Lehr, was also appointed to handle Emerson's appeal.Although Lehr timely filed a notice of appeal, he failed to file any brief.Accordingly, on August 21, 2002, this court dismissed Emerson's appeal.In 2006, Lehr voluntarily surrendered his license and was disbarred from the practice of law in Kansas.In re Lehr,281 Kan. 842, 133 P.3d 1279(2006).

In July 2014, Emerson filed a motion to allow an appeal out of time.The district court heard arguments regarding the Ortiz exceptions, which permit a defendant to file an out-of-time appeal.SeeState v. Ortiz,230 Kan. 733, Syl.¶ 3, 640 P.2d 1255(1982).The district court expressed concerns over the lapse in time and wanted "to find out whether or not Mr. Emerson was aware of his appeal and whether or not Mr. Emerson just sat back and decided to do nothing."Emerson testified that around 2003 or 2004, Lehr informed him the court was not paying for his services so he was no longer assisting Emerson with his appeal.Emerson also testified he learned in 2006 that Lehr had been disbarred.Although his testimony regarding the time frame is not clear, Emerson said when he was informed he did not have counselhe"went into a state of kind of depression" and did not believe he would ever be released.He also explained he did not want to use a jailhouse lawyer because he did not want "the Court mad at [him]."After hearing the testimony, the district court determined the third Ortiz exception applied because Emerson's appointed attorney had failed to perfect and complete his appeal, so it granted Emerson's motion to file his appeal out of time.

I.Do we have jurisdiction to consider Emerson's untimely appeal?

We first examine whether we have jurisdiction to consider Emerson's untimely appeal.

The right to appeal is statutory and is not found in the United States or Kansas Constitutions.State v. Legero,278 Kan. 109, 111, 91 P.3d 1216(2004).Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by the applicable statutes.State v. Mburu,51 Kan.App.2d 266, 269–70, 346 P.3d 1086, rev. denied302 Kan. ––––(June 29, 2015).Emerson's appeal is brought long after the statutory time limit.

The district court relied on Ortiz, which creates equitable exceptions to the general rule that this court must dismiss an untimely notice of appeal for lack of jurisdiction.Ortiz's limited exceptions allow a defendant to file an out-of-time appeal when the defendant: (1) was not informed of his or her right to appeal; (2) was not furnished an attorney to exercise that right; or (3) was furnished an attorney who failed to perfect and complete an appeal.230 Kan. at 736, 640 P.2d 1255.These three have been characterized as " ‘narrow exceptional circumstances.’ "State v. Patton,287 Kan. 200, 206, 195 P.3d 753(2008).The State neither appealed nor cross-appealed the district court's ruling that the third Ortiz exception applied.Therefore, neither party actually challenges the district court's finding regarding Ortiz.

Nonetheless, this court has a duty to question jurisdiction on its own initiative.Subject matter jurisdiction may be raised at any time, even on appeal and even on the appellate court's own motion.Shipe v. Public Wholesale Water Supply Dist. No. 25,289 Kan. 160, 166, 210 P.3d 105(2009).

The source of the right to take an untimely appeal in a SVP commitment proceeding.

We first examine the source of the right to take an untimely appeal in a SVP commitment proceeding.Although the district court relied on Ortiz exceptions, those exceptions were originally developed to permit a criminal defendant a direct appeal from a conviction and sentence, in an otherwise untimely appeal.Ortiz,230 Kan. at 735–36, 640 P.2d 1255;Albright v. State,292 Kan. 193, 198, 251 P.3d 52(2011).Ours is not a criminal case.

Our research fails to reveal any published case applying the Ortiz exceptions in a civil commitment context.In a 2004 case appealing the denial of a K.S.A. 60–1507 motion, which is a civil proceeding, the Kansas Supreme Court cited Ortiz as analogous, but based its holding on a principle of fundamental fairness, finding that when counsel is appointed by the court in postconviction matters and fails to notify the client of the right to appeal, the appeal must be allowed.Brown v. State,278 Kan. 481, 101 P.3d 1201(2004).See Supreme Court Rule 183(a)(2014 Kan. Ct. R. Annot. 285).

In Albright, the Kansas Supreme Court disagreed that the third Ortiz exception allows an appellate court to accept jurisdiction when a 60–1507 movant's appointed counsel failed to file an appeal.

In Albright,the appellant successfully argued that where appointed counsel's performance was deficient in an underlying criminal case for having failed to file a timely direct appeal, the 60–1507 movant should be allowed to file an out-of-time direct appeal.The Kansas Supreme Court first found that the source of the right to counsel is not dispositive, stating:

"Further, as analyzed in Patton and Kargus, regardless of whether [the right to counsel] is based on the constitution, statute, or both, if it is alleged that appointed counsel's deficiencies resulted in the loss of the ability to pursue a procedure, the Flores–Ortega standard is to be applied."Albright,292 Kan. at 211, 251 P.3d 52.

The court emphasized the distinction between counsel's deficiencies during the course of a proceeding and deficiencies which result in forfeiture of a proceeding:

"[Flores–Ortega ] distinguishes between situations in which counsel's performance in the course of a proceeding is alleged to be deficient and those cases in which counsel's performance or failure to perform leads to forfeiture of a proceeding.Strickland v. Washington,466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984), governs the former and Flores–Ortega the latter.SeeFlores–Ortega,528 U.S. at 476–86, 120 S.Ct. 1029."Patton,287 Kan. at 224, 195 P.3d 753.

But the court clarified that in the latter situation, it is not the third Ortiz exception that allows us to accept jurisdiction.

"60–1507 movants who have counsel are entitled to the effective assistance of that counsel, and if counsel's performance was deficient for failure to file a timely appeal, as a remedy a 60–1507 movant should be allowed to file an out-of-time appeal.We do not agree, however, that it is the third Ortiz exception that allows an appellate court to accept jurisdiction."Albright,292 Kan. at 207, 251 P.3d 52.

Instead, the court concluded that the analysis of Roe v. Flores–Ortega,528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985(2000) should apply.The Kansas Supreme Court concluded the Court of Appeals should not have dismissed Albright's appeal.Because appointed counsel's deficiencies resulted in the loss of his ability to pursue an appeal, the appropriate remedy was to exercise jurisdiction over Albright's appeal.Albright,292 Kan. at 211–12, 251 P.3d 52.Similarly, in Kargus v. State,284 Kan. 908, 928, 169 P.3d 307(2007), the Kansas Supreme Court found relief may be appropriate under Flores–Ortega rather than under Ortiz or Strickland when appointed counsel fails to file a petition for review following a direct appeal in a criminal case.

After Albright, the Kansas Supreme Court decided In re Care & Treatment of Ontiberos,295 Kan. 10, 25, 287 P.3d 855(2012), holding that persons subject to SVPA proceedings have a due process right to the appointment of counsel at trial.That right carries with it a correlative right to competent, effective counsel.Ontiberos,295 Kan. at 25, 287 P.3d 855;Albright,292 Kan. at 207, 251 P.3d 52.The court disapproved, however, the Court of Appeals' reliance on an analogy to 60–1507 cases in SVPA actions, finding in part that because SVPA proceedings are original actions and 60–1507 proceedings are collateral proceedings, the latter are "inappropriate analogs."295 Kan. at 22, 287 P.3d 855.This...