State v. Barrera

• Decision Date: 24 April 2015
• Docket Number: 111,152,111,153.
• Citation: 347 P.3d 239 (Table)
• Parties: STATE of Kansas, Appellee, v. James M. BARRERA, Appellant.
• Court: Kansas Court of Appeals

347 P.3d 239 (Table)

STATE of Kansas, Appellee
v.
James M. BARRERA, Appellant.

111,152
111,153.

Court of Appeals of Kansas.

April 24, 2015.
Review Denied October 7, 2015.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Charles F. Moser, county attorney, and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.

MEMORANDUM OPINION

PER CURIAM.

James M. Barrera appeals from the district court's decision to deny his request to file a late appeal pursuant to State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). Barrera contends he is entitled to file an untimely appeal because his attorney failed to file a sentencing appeal after being directed to do so.

Facts

Pursuant to a 2012 plea agreement with the State, Barrera pled guilty to and was convicted of one count each of unlawful distribution of a controlled substance and distribution of a controlled substance using a communication facility in case number 11–CR–157. Barrera also pled guilty to and was convicted of identical charges in case number 11–CR–160. The district court ordered the sentences in both cases to run consecutively and sentenced Barrera to a controlling prison term of 112 months.

Barrera filed an untimely notice of appeal in each case, which this court dismissed. The Kansas Supreme Court granted Barrera's petition for review and remanded the cases to the district court for an evidentiary hearing to determine if an Ortiz exception applied to allow Barrera's untimely appeal.

At the evidentiary hearing, the district court heard testimony from Barrera and his trial counsel, Jeffery Mason. Barrera testified that the district court had informed him of his right to appeal his sentence but that Mason never discussed his appeal rights either before or after sentencing. Barrera claimed that Mason would not accept his collect calls, so he asked his mother to contact Mason about filing a notice of appeal. Barrera acknowledged that he did not directly ask Mason to file a notice of appeal.

Mason testified that in his more than 30 years of experience, he had a standard practice of advising his clients of their appeal rights and that he would continue to represent them should they wish to file an appeal. Mason testified that he followed this practice with Barrera and that they discussed Barrera's right to appeal his sentence during the plea process and after sentencing. Mason stated that when he met with Barrera immediately after sentencing, Barrera indicated that he did not want to file an appeal. Mason claimed that his records showed no evidence of Barrera ever...