Robinson v. State

• Decision Date: 27 January 1989
• Docket Number: No. 61844,61844
• Citation: 13 Kan.App.2d 244,767 P.2d 851
• Parties: Dan Lee ROBINSON, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Court of Appeals

Page 851

767 P.2d 851

13 Kan.App.2d 244

Dan Lee ROBINSON, Appellant, v. STATE of Kansas, Appellee.

No. 61844.

Court of Appeals of Kansas.

Jan. 27, 1989.

Review Denied April 25, 1989.

Syllabus by the Court

1. Although K.S.A. 60-1507 proceedings are part of the criminal review process, they are civil proceedings governed procedurally by the civil rules.

2. The "excusable neglect" provision of K.S.A.1988 Supp. 60-2103(a) applies to appeals from orders denying relief under K.S.A. 60-1507.

3. The dismissal of a criminal defendant's direct appeal violates the defendant's due process rights when the dismissal is the result of ineffective assistance of counsel. A criminal defendant pursuing a direct appeal from his or her conviction has not only a right to counsel in the pursuit of that appeal, but also a right to effective assistance of counsel.

4. When appealing the dismissal of a motion filed pursuant to K.S.A. 60-1507, a petitioner has no due process right either to counsel or to the effective assistance of counsel. Therefore, petitioner's due process rights are not violated when his appeal from the dismissal of his 1507 motion is dismissed due to failure of counsel to timely perfect the appeal.

Steven R. Zinn, Supervising Atty. and Laura Fishman, Legal Intern, of Kansas Appellate Practice Clinic, Lawrence, and Benjamin C. Wood, Chief Appellate Defender, Topeka, for appellant.

Steven L. Opat, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before ABBOTT, C.J., BRISCOE, J., and R. DAVID LAMAR, District Judge, Assigned.

BRISCOE, Judge:

Dan Lee Robinson appeals the denial of a post-conviction motion filed pursuant to K.S.A. 60-1507 in which he sought to set aside his convictions of aggravated robbery and corruptly influencing a witness. We dismiss the appeal for lack of jurisdiction as untimely filed.

Robinson filed this 1507 motion pro se. He alleged the complaint had incorrectly named him as Danny Robinson although his true name is Dan Lee Robinson. At the hearing on the motion, Robinson, who was then represented by counsel, sought permission to amend his 1507 motion to allege that his plea was not voluntarily given. According to Robinson, he was told by his prior counsel before entering his plea that he would receive a 5-20 year sentence upon the entry of his plea. Robinson was subsequently sentenced to a term of 7-20 years. The State argued that, if the court allowed the amendment, it should dismiss the 1507 motion because the issue of whether Robinson's plea was voluntary had already been determined by the Supreme Court in Robinson's direct appeal. State v. Robinson, 233 Kan. 384, 662 P.2d 1275 (1983). The court, after apparently allowing the amendment, held the issue had been determined adversely to Robinson by the Supreme Court and dismissed the petition for lack of jurisdiction.

The sole issue which Robinson seeks to raise on appeal is whether the district court erred in dismissing his 1507 motion. He argues his 1507 motion raised a different issue concerning the voluntariness of his plea than was raised in his direct appeal. According to Robinson, in his direct appeal he argued he was "tricked" into the plea agreement because the prosecutor threatened to invoke the Habitual Criminal Act if he did not enter a guilty plea. In his present 1507 motion, he argues his plea was involuntary because his counsel promised he would receive a lesser sentence than that which the court imposed. Robinson has styled the issue in his 1507 motion as an issue of ineffective assistance of counsel. Before we can address this issue, we must first determine whether this court has jurisdiction.

From the record on appeal, it appears Robinson's appeal from the district court's dismissal of his 1507 motion was untimely filed. The journal entry was filed October 15, 1987, and the notice of appeal was filed December 8, 1987. On January 19, 1988, Robinson filed a motion with this court asking us to treat the notice of appeal as timely filed. K.S.A.1988 Supp. 60-2103(a) provides that appeals shall be taken within 30 days from the entry of judgment. Robinson concedes his notice of appeal was not filed within the 30-day period, but offers two arguments to support our retaining the appeal. First, he argues the appeal may be saved under the "excusable neglect" provision of 60-2103(a). Second, he argues that dismissal due to failure of counsel to perfect the appeal would deprive him of the Fourteenth Amendment due process right to effective assistance of counsel. The State does not challenge Robinson's right to appeal this action.

EXCUSABLE NEGLECT

K.S.A.1988 Supp. 60-2103(a) provides in part:

"When and how taken. When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be 30 days from the entry of the judgment, as provided by K.S.A. 60-258, and amendments thereto, except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of judgment the district court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed." (Emphasis added.)

While 1507 proceedings are part of the criminal review process, they are civil proceedings governed procedurally by the civil rules. Stahl v. Board of County Commissioners, 198 Kan. 623, 627-28, 426 P.2d 134 (1967). See State v. Thomas, 239 Kan. 457, 458-59, 720 P.2d 1059 (1986). Since 60-2103(a) is a rule of civil appellate procedure, it follows from the dichotomy of civil and criminal proceedings and the classification of 1507 proceedings as civil proceedings that the "excusable neglect" provision of 60-2103(a) applies to appeals from orders denying relief under 60-1507.

A party's ability to learn of the entry of judgment is a further reason for applying the "excusable neglect" provision of 60-2103(a) to appeals from orders denying relief under 60-1507, but not to criminal appeals. Our Supreme Court has clearly rejected the contention that 60-2103(a) and its "excusable neglect" provision apply to criminal appeals. State v. Moses, 227 Kan. 400, 403-04, 607 P.2d 477 (1980). According to the court in Moses, there can be no "excusable neglect based on a failure of a party to learn of the entry of judgment" in criminal cases because the defendant will either be present personally or represented by counsel. Therefore, the defendant in a criminal case may never claim "excusable neglect" based upon failure to learn of the entry of judgment. In 1507 proceedings, however, the petitioner is required to be present only when there are substantial issues of fact as to events in which he participated, and counsel need not be appointed unless there are substantial issues of law or triable issues of fact. Rule 183(h), (i) (1988 Kan.Ct.R.Annot. 108). Therefore, it is possible that a 1507 motion may be denied in summary fashion without the presence of counsel or petitioner. As a result, petitioner could fail to timely learn of the judgment. We conclude for this additional reason that the "excusable neglect" provision of 60-2103(a) does apply to appeals from orders denying relief under 60-1507.

Although the "excusable neglect" provision applies, it does not save Robinson's appeal in this case. The statute provides that the district court may extend the time for appeal. Here, the record does not indicate that a motion for extension of time was filed with the district court. Instead, the motion was filed with this court over a month after the notice of appeal was filed. Robinson concedes these facts but contends that, in view of the State's refusal to oppose the motion and its agreement with the facts which Robinson contends support a finding of "excusable neglect," this court should make the finding of "excusable neglect." We do not agree. The statute clearly provides that it is the district court, not this court, which is authorized to extend the time for appeal. Robinson's failure to follow the clear provisions of the statute precludes relief.

Robinson's appeal should be dismissed because he has not shown "excusable neglect based on a failure of a party to learn of the entry of judgment." According to Robinson, counsel prepared and filed the journal entry but, due to delays in filing the final journal entry, the notice of appeal was not filed at the same time and that failure to timely file the notice of appeal constituted excusable neglect. Petitioner does not argue that failure to perfect the appeal was due to his failure to learn of the judgment. Counsel's delay in filing a journal entry and his failure to then file a timely notice of appeal are not within the definition of "excusable neglect" contained in the statute. Therefore, 60-2103(a) does not save Robinson's untimely appeal.

DUE PROCESS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL

Robinson contends he is entitled under the Fourteenth Amendment to effective assistance of counsel on his appeal from the denial of his 1507 motion. According to Robinson, if he is denied his right to appeal because of failure of counsel to perfect his appeal, he will be denied his due process right to effective assistance of counsel.

Robinson relies primarily upon Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), to support his argument. In that case, the Supreme Court held the dismissal of a criminal defendant's direct appeal violated the defendant's due process rights when the dismissal was the result of ineffective assistance of counsel. In Evitts, d...