State v. Collins

• Docket Number: 125,761
• Decision Date: 01 March 2025
• Citation: State v. Collins, 125,761 (Kan. Mar 01, 2025)
• Parties: State of Kansas, Appellee, v. Casinroyial Donje Caszarone Collins, Appellant.
• Court: Kansas Supreme Court

1

State of Kansas, Appellee, v. Casinroyial Donje Caszarone Collins, Appellant.

No. 125,761

Supreme Court of Kansas

March 1, 2025

SYLLABUS BY THE COURT 1.

Kansas appellate courts have jurisdiction only as provided by law and an untimely notice of appeal usually leads to dismissal of an action.But in State v. Ortiz, 230 Kan. 733640 P.2d 1255(1982), we recognized three exceptions to this rule: where a defendant(1) was not informed of the rights to appeal, or (2) was not furnished an attorney to perfect an appeal, or (3) was furnished an attorney for that purpose who failed to perfect and complete an appeal.

2.

The first Ortiz exception is based on procedural due process concerns, whereas the second and third exceptions are based on the right of counsel and effectiveness of counsel.

3.

The first Ortiz exception involves a three-step burden shifting analysis to determine whether a defendant received the process they were due.First, the defendant bears the burden of showing the district court failed to inform them of their right to appeal, the timeline to file an appeal, and the right to appointed appellate counsel if the defendant is indigent.Second, if the defendant shows they did not receive all three pieces of information from the court, the burden shifts to the State to show the defendant had actual knowledge of all that information.Third, if the State fails to make this showing, then the burden shifts back to the defendant to demonstrate they would have taken a timely appeal had they been properly informed.

4.

A defendant satisfies their evidentiary burden in the first phase of the first Ortiz exception by showing an absence of the appellate right advisories in the relevant transcript.

5.

Trial counsel's failure to meet the requirements of K.A.R 105-3-9(a)(3) is insufficient, without more, to support a finding of deficient performance under the third Ortiz exception.

6.

The defendant bears the burden of showing their counsel's deficient performance under the third Ortiz exception.

Oral argument held December 10, 2024.

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 7, 2024.

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge.

Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part.Judgment of the district court is affirmed in part and reversed in part, and the case is remanded with directions.

Kasper Schirer, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Chelsea Anderson, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Kris W. Kobach, attorney general, were with her on the brief for appellee.

OPINION

WILSON, J.:

Casinroyial Donje Caszarone Collins appealed the district court's decision holding that his out-of-time appeal from a probation revocation was not excused by an exception found in State v. Ortiz, 230 Kan. 773, 736, 640 P.2d 1255(1982).A panel of the Court of Appeals affirmed the district court.On petition for review, we affirm in part, reverse in part, and remand to the district court for a proper advisement of Collins' appellate rights and for findings of fact, based on the evidence in the original Ortiz hearing, regarding whether Collins would have appealed had he been fully aware of his appellate rights.

FACTS AND PROCEDURAL BACKGROUND

On July 15, 2022, Collins pled guilty to aggravated robbery kidnapping, and aggravated battery.At sentencing, the district court granted a downward dispositional departure to probation, placing Collins on probation for 36 months with a controlling 161-month sentence.

Around a month after sentencing, Collins' probation officer filed a warrant alleging that Collins had violated his probation by committing several new crimes, among other violations.At the probation violation hearing on October 17, 2022, Collins admitted to the eight alleged violations and waived an evidentiary hearing.The district court revoked Collins' probation and imposed his 161-month underlying sentence.SeeK.S.A. 22-3716(c)(7)(B)(district court may revoke probation and impose underlying sentence without prior sanction when the original sentence was granted because of a dispositional departure).The district court said nothing of Collins' right to appeal, of his right to have counsel appointed for his appeal, or of the time limit for his appeal.

Collins' counsel filed a notice of appeal on November 3, 2022, three days past the statutory deadline.SeeK.S.A. 22-3608(c)(14 days to file notice of appeal after judgment of district court).The Court of Appeals issued a show cause order directing Collins to explain why the appeal should not be dismissed for lack of jurisdiction.In response, Collins argued his failure to appeal within the statutory deadline should be excused based on an exception outlined in State v. Ortiz.There, we clarified out-of-time appeals are excused "only in those cases where a defendant either was not informed of his or her rights to appeal or was not furnished an attorney to exercise those rights or was furnished an attorney for that purpose who failed to perfect and complete an appeal."230 Kan. at 736.The Court of Appeals then remanded Collins' case to the district court to determine whether an Ortiz exception applied.

Collins moved to reinstate his appeal, arguing both the first and third Ortiz exceptions excused his untimely appeal.Collins argued the district court's failure to advise him of his appellate rights satisfied the first exception, and the third exception was met because his attorney's failure to obtain a "written waiver of [appeal]" created "an ambiguity in the appeal" that prevented "either the complete pursuit of the appeal or a knowingly-executed waiver of the right."

At the Ortiz hearing before the district court, both Collins and his previous attorney, Garrett Heath, testified.According to Heath, at the end of the probation revocation hearing he"briefly" told Collins that he had the right to appeal and told him to reach out if he was interested in speaking more.Heath estimated they spoke less than 90 seconds after the hearing.Collins called Heath later that day and told Heath he wished to discuss his right to appeal.

A little over a week later, on October 26, Heath visited Collins in jail.Heath then:

"walked him through his rights to appeal.I had told him that I do believe, based off of my understanding of case law and precedent, that Judge Brown had the authority to do what he did, but that he still was afforded the right to appeal and that there are appellate attorneys that are more versed in appellate law and that if he wanted to file the appeal, I would file the appeal, it would then be out of my hands and he can talk to an appellate attorney about it."

According to Heath, Collins said, in response, "something to the effect of no, I just wanna get my time started."Heath reminded him that the statutory deadline to appeal was approaching, so Collins needed to alert Heath soon if he changed his mind and chose to appeal.Heath did not obtain a written waiver of appeal at this meeting.Heath testified that he next heard from Collins on November 3, three days after the deadline to file a notice of appeal.During that interaction, Collins expressed his desire to take an appeal, and Heath filed the untimely notice of appeal the same day.

According to Collins, Heath told him on October 17-the day of the probation revocation hearing-that he would come visit later to discuss the appeal.Collins also claimed that he decided to appeal on October 17 or the next day but was unable to speak to Heath.He remembered meeting Heath in jail, though he did not know what day the meeting happened, and he did not remember what they discussed at the meeting.At one point, Collins testified that he did not remember telling Heath he wanted to appeal, but at other points Collins testified he said he wanted to appeal at that time.Collins also testified that he mentioned to Heath he wanted to start his sentence so he could "hurry up and get more time done, too."He called Heath again, on November 3, and told him he wanted to appeal "[b]ecause nobody ever came back to talk to me" and he had "been callin' and callin' since after that court date on October 17th."Collins claimed he left messages with Heath's secretary, but nobody followed up on them.

As to the first Ortiz exception, the court acknowledged its failure to inform Collins of his appellate rights at the October 17 probation revocation hearing.But the court found:

"[W]e have Mr. Heath testifying, the attorney, that he informed Mr. Collins immediately after the hearing that he could appeal and that he could help him with the appeal and that he should let him know if he wants to appeal.

"Mr Heath indicated that when he got back to his office there was a phone message that Mr. Collins wanted to file an appeal and so he went over to talk with him.And at that meeting he discussed the appeal, the 14-day time limit, and his different options.So I do find that the first element, the defendant was informed of his right to appeal, was informed of the 14-day time limit and beyond that, the attorney discussed that with him in depth. ....

"Third, the defendant was furnished an attorney-the third element of Ortiz, the defendant was furnished an attorney, who failed to perfect the appeal.And I do not find this, either.That Mr. Heath, when he knew that Mr. Collins wanted to file an appeal, did so immediately, but that that, when he was informed that he wanted to appeal, was three days after the expiration.

"In fact, he had told him, Mr. Collins had told Mr. Heath that he didn't...