State v. Gill
| Decision Date | 05 December 2008 |
| Docket Number | No. 96,531.,96,531. |
| Citation | 196 P.3d 369,287 Kan. 289 |
| Parties | STATE of Kansas, Appellee, v. Raymond GILL, Appellant. |
| Court | Kansas Supreme Court |
Rachel Pickering, of Kansas Appellate Defender Office, was on the brief for appellant.
Jared S. Maag, deputy attorney general, was on the brief for appellee.
Raymond Gill challenges the district court's summary denial of his motion to file a direct appeal out of time, claiming that he received inadequate notification of his right to appeal his criminal sentence. Finding that Gill failed to establish the applicability of an exception to the time limits within which to file an appeal, we affirm.
Gill was originally charged in 1997 with first-degree murder and aggravated criminal sodomy. Following plea negotiations, he entered guilty pleas on March 30, 1998, to an amended charge of murder in the second degree-intentional, in violation of K.S.A.1996 Supp. 21-3402(a), an off-grid person felony, and to the pending charge of aggravated criminal sodomy, a violation of K.S.A. 21-3506(a)(3)(A) & (B) (Furse 1995), a severity level 2 person felony. In conjunction with the pleas, Gill signed a document titled Entry of Plea, Acknowledgment of Rights and Stipulation, which included the following language:
"6. I understand from discussions with my attorney that by entering a plea pursuant to the plea agreement that I am surrendering and waiving the following legal rights which I would otherwise be able to exercise if I choose to go to trial.
....
j. If I were to be convicted of any offenses in this Court, and should my motion for a new trial be denied, I would have the right to appeal my convictions and sentences to the Kansas Court of Appeals or the Supreme Court of Kansas where I would be entitled to have such court review the transcripts and record of my trial for any prejudicial error."
During the plea hearing, the district court made direct inquiries of the defendant, including the following exchange:
On April 15, 1998, the court imposed concurrent sentences of life imprisonment for the second-degree murder conviction and 200 months' imprisonment for the aggravated criminal sodomy conviction. In calculating the term of imprisonment under the sentencing guidelines, the district court designated aggravated criminal sodomy as the primary crime for determining the base sentence, i.e., the sentence to which Gill's total criminal history score was assigned. Gill objected, arguing that the second-degree intentional murder conviction was the primary crime and so should be assigned the base sentence, so that the sentence for the sodomy conviction would then be calculated utilizing a criminal history score of I. The court rejected Gill's argument as being contrary to explicit statutory language: "An off-grid crime shall not be used as the primary crime in determining the base sentence when imposing multiple sentences." K.S.A.1996 Supp. 21-4720(b)(2).
Just shy of 2 years later, on February 7, 2000, Gill commenced efforts to obtain transcripts and case records of his district court proceedings. His initial motion indicated that he was requesting the materials in order to pursue relief from his conviction and/or a K.S.A. 60-1507 motion. On February 9, 2000, the district court filed a journal entry denying the pro se motion. The court indicated that the 60-1507 motion had to be filed prior to the court's consideration of a transcript request.
Approximately 3 1/2 years later, on September 24, 2003, Gill filed a pro se motion asking the court to furnish him with transcripts without cost. Again, the district court found that the request was premature and denied the motion because a proper motion pursuant to K.S.A. 60-1507 had not been filed. Shortly thereafter, in December 2003, Gill wrote a letter to the Clerk of the District Court of Crawford County requesting information on how to obtain his transcripts so that he could "perfect my appeal action." The letter indicated that Gill's trial attorney and his or her firm were under investigation for possible embezzlement or fraud. The district court responded with a letter stating that the order denying the earlier request was still binding.
On August 20, 2004, Gill again wrote to the county clerk, stating that he was seeking postconviction remedy without the benefit of an attorney. He requested copies of any documentation on file for his case, as well as requesting information on how to obtain a transcript of his statement to investigating officers. A notation by the county clerk shows that "info & motions" were mailed to Gill. Gill followed up with another letter, filed October 7, 2004, asking for a copy of his journal entry and for information on how to obtain transcripts. The district court responded by letter, providing a copy of the journal entry and directing Gill to contact his attorney or the court reporter for transcripts.
Apparently, Gill filed another pro se motion requesting transcripts on January 31, 2005; however, it is not in the record on appeal. The record does contain a February 4, 2005, journal entry denying a motion for transcripts because a K.S.A. 60-1507 motion had not been filed.
Another year later, on February 21, 2006, Gill filed a pro se motion to allow him to file an appeal out of time pursuant to the holdings in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). The motion argued that Gill had not been advised pursuant to 22-3608(c) that he had a right to appeal his sentence within 10 days of its imposition and, therefore, in the interest of fundamental fairness, he should be permitted to appeal out of time. The motion also alleged that Gill had been sentenced pursuant to a different grid box than the one his counsel had informed him would apply.
In a February 23, 2006, journal entry, the district court summarily denied the motion. The court noted that Gill's motion had failed to state the basis of any intended appeal, even though Gill did allege that he was sentenced from a grid box different from that which his trial attorney had said would apply. The court referred to the written plea agreement, which provided that a presentence investigation would determine the defendant's criminal history in order for the court to impose a proper sentence under the Kansas Sentencing Guidelines Act. Thus, finding that the defendant had never objected to his criminal history score, the district court opined that Gill had "received exactly the sentence he plea bargained for when the guilty pleas were entered." Moreover, the court observed that Gill had not manifested a desire to appeal until nearly 8 years after sentencing.
On appeal, Gill contends that the district court erred in summarily denying his motion for an out-of-time appeal. However, Gill does not complain about the summary nature of the motion denial and does not ask us to remand for an evidentiary hearing. Rather, his prayer is that we reverse the district court based upon the record before us and order that he be allowed to proceed with his appeal. Gill specifically argues that he received inadequate notice of his right to appeal because: (1) the written plea agreement incorrectly stated that a guilty plea would waive Gill's right to appeal his sentence; (2) the district court's advice that "it may be possible" to appeal "an illegal or improper sentence" failed to notify Gill that he had "an affirmative right to appeal of his sentence"; and (3) the court failed to advise Gill of the 10-day limitation on filing an appeal.
The parties agree that we review the factual findings underlying a trial court's Ortiz ruling for substantial competent evidence, but that we apply a de novo standard when reviewing the ultimate legal determination of whether those facts fit within an Ortiz exception. See State v. Phinney, 280 Kan. 394, 404, 122 P.3d 356 (2005).
The appellate courts of this state have been unable or unwilling to find a right to appeal among the provisions of the United States Constitution or the Kansas Constitution; rather, our courts have declared that the right to appeal emanates solely from our statutes. See, e.g., State v. Legero, 278 Kan. 109, 111, 91 P.3d 1216 (2004). Accordingly, we have opined that Kansas appellate courts obtain jurisdiction to entertain an appeal only where the appeal is taken in the manner prescribed by our statutes. 278 Kan. at 111, 91 P.3d 1216. Moreover, an appellate court has a duty to question jurisdiction on its own initiative and to dismiss an appeal if the record indicates an absence of jurisdiction. Phinney, 280 Kan. at 398, 122 P.3d 356 (citing State v. Verge, 272 Kan. 501, 521, 34 P.3d 449 [2001]).
One of the applicable procedural rules is found in K.S.A. 22-3608(c), which provides: "For crimes committed on or after July 1, 1993, the defendant shall have 10 days after the judgment of the district court to appeal." We have specifically said that the filing of a timely notice of appeal is jurisdictional and if the defendant has not complied with the filing deadline, the appellate court must dismiss the appeal. State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980).
The district court sentenced Gill on April 15, 1998; Gill filed his motion to appeal...
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