State v. Hemphill
| Decision Date | 03 July 2008 |
| Docket Number | Nos. 95,209, 95,210.,s. 95,209, 95,210. |
| Citation | 186 P.3d 777 |
| Parties | STATE of Kansas, Appellee, v. Bobby G. HEMPHILL, Sr., Appellant. |
| Court | Kansas Supreme Court |
Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Thomas R. Stanton, deputy district attorney, argued the cause, and Keith E. Schroeder, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
In 2003, based on pleas of no contest, Bobby G. Hemphill, Sr., was convicted and sentenced for two counts of possession of methamphetamine with intent to distribute within 1,000 feet of a school. In 2004, he filed a post-sentence motion to withdraw his pleas of no contest, which the district court denied after holding a hearing. Several months later, the defendant filed successive motions to appeal out of time from his convictions and sentence and from the denial of his motion to withdraw his pleas. Hearings were held, after which his motions were denied. In a per curiam opinion, the Court of Appeals reversed the district court's decision denying Hemphill an appeal out of time from his sentence, relying on State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), and remanded for an evidentiary hearing on that question. The Court of Appeals affirmed the district court's decision denying an appeal from the disposition of his motion to withdraw his pleas as, in the panel's point of view, any error that resulted from the denial was harmless. State v. Hemphill, Nos. 95,209 and 95,210, unpublished opinion filed April 20, 2007, 155 P.3d 1220, 2007 WL 1175844. We granted the defendant's petition for review.
On January 25, 2001, the defendant was charged with one count of possession of ephedrine or pseudoephedrine, one count of manufacture or attempted manufacture of methamphetamine, one count of possession of methamphetamine, one count of possession of drug-manufacturing paraphernalia, and one count of possession of drug-use paraphernalia in Reno County. On March 2, 2001, he was charged with one count of manufacture or attempted manufacture of methamphetamine and one count of possession of drug-manufacturing paraphernalia for unrelated conduct also occurring in Reno County.
Pursuant to a plea agreement, the defendant entered no contest pleas to two counts of possession of methamphetamine with intent to sell within 1,000 feet of a school. The two cases were consolidated for sentencing purposes, and the State dismissed all other charges. On March 19, 2003, the district court imposed the sentences recommended in the plea agreement, sentencing Hemphill to 48 months' imprisonment for each conviction, to run consecutively, or 96 months' imprisonment total, with 36 months of postrelease supervision. Neither the transcript of the plea hearing nor the transcript of the sentencing hearing contain an explanation of or comment on the defendant's appellate rights.
On April 21, 2004, Hemphill filed a pro se motion to withdraw his pleas in both Reno County cases, claiming that his pleas should be set aside in light of this court's decision in State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), which was decided in January 2004. In his motion, Hemphill recognized that his current convictions, which were severity level 2 offenses, were not subject to relief under McAdam, but the original charges filed against him, severity level 1 offenses, would have required relief under our decision. Construed liberally, the motion claimed that the defendant should be allowed to withdraw his pleas because they were involuntary and lacked a factual basis.
The district court appointed counsel to represent the defendant, held a hearing on these motions on July 23, 2004, and denied relief to the defendant. At the hearing, defendant's appointed counsel told the court that he did not believe that his client's motions had merit and explained why he felt this way. He then requested that the district court allow the defendant to stand up and make his own argument.
Addressing the court, Hemphill stated that he did not know what to argue and stated that his arguments were contained in the motion. When asked by the trial court whether he had anything to add, the defendant replied, He then stated, There is no mention of the defendant's appellate rights in the hearing transcript.
On August 29, 2004, the defendant filed a motion to appeal out of time, requesting a late appeal of his underlying convictions, sentences, and the denial of his motion to withdraw his pleas pursuant to the first reason stated in Ortiz—that he was never informed of his right to appeal. The district court again appointed counsel to represent the defendant, and the motion was set for hearing.
The State appeared on December 3, 2004, for the hearing on the defendant's motion and presented a brief argument for denial of the motion. The defendant did not appear either in person or by appointed counsel. The district court subsequently denied the motion. The record is silent, however, on whether the defendant was ever informed of the district court's ruling from the December hearing. On January 17, 2005, the defendant filed a petition with the court inquiring as to the status of his motion. Again, the record is silent as to whether the defendant received a response to his petition.
On July 5, 2005, the defendant filed an additional motion to appeal out of time both from his underlying convictions and sentences and from the denial of his motion to withdraw his pleas. The defendant was not appointed counsel for this motion, which were heard by the district court on July 15, 2005. Once again, the State appeared and made a brief argument, but the defendant did not appear in person or by counsel. The district court denied the defendant's motion, and this appeal followed.
The Court of Appeals reversed in part and affirmed in part the decision of the district court. In particular, the court reversed that part of the district court's decision denying Hemphill's motion to appeal his conviction and sentence out of time. Hemphill, slip op. at 8. The court affirmed that part of the district court's decision denying the defendant's motion to appeal out of time from the denial of his motion to withdraw his pleas of no contest. Slip op. at 7.
Considering Hemphill's claim that the district court should have held an evidentiary hearing on whether he was ever informed of his right to appeal his sentence, the Court of Appeals found that the "record on appeal" confirmed that the defendant "was never told he had the right to appeal his sentences." Slip op. at 8. The court explained:
Under this reasoning, the Court of Appeals reversed the district court's decision denying the defendant's attempt to file an appeal from his original sentence out of time and remanded the case for an Ortiz hearing to determine "whether Hemphill is entitled to file an untimely notice of appeal of his sentences." Slip op. at 8.
Without deciding whether there was evidence in the record supporting the defendant's claim that he was not informed of his right to appeal the denial of his motion to withdraw his pleas, the Court of Appeals affirmed the district court decision based upon its conclusion that any error was harmless, as no relief could be had by the defendant through an appeal:
We granted the defendant's petition for review on the issues resolved by the Court of Appeals in its decision.
In his petition for review and during oral argument, Hemphill asks this court to affirm that portion of the Court of Appeals decision relating to his attempted appeal from the sentence imposed. However, he argues that the portion of that opinion that affirmed the district court's denial of his request to appeal out of time the denial of his motion to withdraw his pleas is erroneous and should be reversed. We address both these claims.
We agree with the decision of the Court of Appeals to remand this portion of Hemphill's case to the district court for a hearing under Ortiz, 230 Kan. 733, 640 P.2d 1255. This court has held on numerous occasions that the filing of a timely notice of appeal is jurisdictional, and if the appeal is not taken within the 10-day period fixed by statute, it must be dismissed. See K.S.A. 22-3608; State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980). In Ortiz, however, we recognized a limited exception to this rule of appellate jurisdiction. "If these narrow exceptional...
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...of his right to appeal the severity level of his crime because no statute required a court to do so. And in State v. Hemphill , 286 Kan. 583, 591, 186 P.3d 777 (2008), the court held that the first Ortiz exception did not apply to an untimely motion to withdraw a plea because there was no s......
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