State v. Patton

Decision Date14 November 2008
Docket NumberNo. 95,860.,95,860.
Citation195 P.3d 753
PartiesSTATE of Kansas, Appellee, v. Joshua Delore PATTON, Appellant.
CourtKansas Supreme Court

The opinion of the court was delivered by BEIER, J.:

This appeal arises on petition for review of our Court of Appeals' decision foreclosing a late appeal of sentence pursued by defendant Joshua Delore Patton. Patton seeks to take advantage of this court's ruling in State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), through application of this court's decision in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982).

Factual and Procedural Background

Patton was originally charged with seven drug-related offenses. He secured retained counsel, and he agreed to plead guilty to one count of attempted manufacture of methamphetamine and one count of possession of anhydrous ammonia in an unapproved container. His plea agreement—signed by him, his lawyer, and an assistant county attorney—was filed March 3, 2003, and included the following language:

"The Defendant waives his right of appeal, and waives his right to file any motions under K.S.A. 60-1507 arising from this matter. ... The Defendant agrees that he has read and understands the attached Waiver of Rights form and understands that the information contained therein is made a part of this agreement (that is incorporated by reference)."

The Waiver of Rights form does not appear in the record on appeal.

In exchange for Patton's guilty pleas, the State dismissed the remaining five charges against him and agreed to recommend a downward durational departure sentence and to not oppose dispositional departure to a nonprison sanction.

At sentencing, the district court judge accepted the parties' joint recommendation of a downward durational departure but rejected Patton's bid for a dispositional departure, noting that Patton had been unable to remain drug-free while on bond between the plea and sentencing hearings. The district judge told Patton that he had the right to appeal any of the judge's rulings or findings, "specifically, in regards to finding against you on the dispositional departure." The State did not object or otherwise attempt to correct this misstatement of Kansas law. See K.S.A. 21-4721 (denial of downward dispositional departure not among appealable sentences).

No timely direct appeal was filed, although both Patton and his mother attempted to contact Patton's lawyer to pursue one.

In January 2004, this court issued its McAdam decision, holding that K.S.A. 65-4159(a) on unlawful manufacturing of a controlled substance, a severity level 1 felony, was identical to K.S.A. 65-4161(a) on unlawful compounding of a stimulant, a level 3 felony. Thus a defendant convicted of the greater offense can be sentenced only under the lesser penalty provision.

Within weeks of the McAdam decision, Patton filed a motion to correct illegal sentence. The district court denied the motion after a hearing, and a panel of our Court of Appeals affirmed. No. 92,682, unpublished opinion filed May 13, 2005. Patton filed a petition for review of the Court of Appeals' decision with this court.

While the petition for review was pending, Patton filed a K.S.A. 60-1507 motion, alleging that his retained lawyer had provided ineffective assistance of counsel by failing to file a timely sentencing appeal. The district court dismissed the motion without prejudice, because Patton's appeal on his motion to correct illegal sentence was not yet final.

After the petition for review on the motion to correct illegal sentence had been disposed of, Patton again filed a K.S.A. 60-1507 motion. He renewed his argument on ineffective assistance of counsel and sought permission to file a late appeal on the McAdam sentencing issue under this court's decision in Ortiz.

The district judge held an Ortiz evidentiary hearing in December 2005. He heard testimony that Patton's lawyer had faxed a letter to Patton's mother on the last day for a timely appeal of Patton's sentence, saying that he "had all the documents done to file the appeal," that doing so was against his advice, but that the decision was up to her. Patton's mother testified that the decision was not up to her, that it was up to her son and that Patton had already told the lawyer repeatedly that he wished to appeal.

The district judge ruled that Patton should be permitted to file an out-of-time appeal, because of the lawyer's failure to abide by Patton's wish to file an appeal. This action is that appeal. Patton challenges the severity level of the attempted manufacture crime and the sentencing judge's denial of his motion for dispositional departure.

The Court of Appeals' panel hearing this appeal refused to order resentencing under McAdam. Although the appellate judges agreed with the district judge that the facts of this case fit one of the Ortiz exceptions that would ordinarily permit a late appeal, they concluded that they nevertheless lacked jurisdiction because Patton had waived his right to appeal as part of his plea agreement. Unless that plea agreement was set aside, the court said, it could not address the merits of Patton's late appeal.

"Where a defendant bargained with the State and knowingly and voluntarily agreed to waive his or her right to appeal, in exchange for a sentence reduction and dismissal of additional charges, the district court cannot ignore the waiver because it stands as a bar to the defendant filing an appeal unless the plea agreement is set aside." State v. Patton, 37 Kan.App.2d 166, Syl. ¶ 4, 150 P.3d 328 (2007).

Patton made two arguments on his petition for review to this court. He first addressed the merits of the waiver argument, specifically whether it could defeat Ortiz application and cut off this late appeal. Patton asserted that the language in his plea agreement could not divest the appellate court of jurisdiction over his sentencing appeal because it dealt only with his right to appeal his convictions. He also argued process, asserting that the Court of Appeals must be reversed because the issue of waiver was not properly before it. In support of this argument, he pointed to the absence of a discussion of waiver in the district court's decision and the State's failure to cross-appeal.

Analysis

We begin our analysis by briefly addressing Patton's procedural argument. We disagree with his assertion that the Court of Appeals erred in reaching the issue of waiver.

The issue of subject matter jurisdiction may be raised at any time by a party or by the court, including an appellate court. See Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007). Our standard of review on the issue is unlimited. See State v. James, 276 Kan. 737, 744, 79 P.3d 169 (2003). Here, the possibility that Patton had knowingly and voluntarily waived his right to appeal his sentence had a more than purely theoretical potential to affect subject matter jurisdiction, because there was no question that Patton's lawyer did not file a notice of appeal within 10 days of sentencing, see K.S.A. 22-3608(c); and a timely notice of appeal ordinarily is jurisdictional. See State v. Verge, 272 Kan. 501, 521, 34 P.3d 449 (2001) (dismissal necessary if appellate jurisdiction lacking); State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980). The Court of Appeals did not err by addressing this possibility, even if it did so without urging by the State.

We also note, however, that the State's appellate brief was not silent on waiver. Rather, it included waiver among the reasons that the Court of Appeals should reject Patton's invocation of McAdam to obtain a new sentence on his attempted manufacture conviction.

We now turn to the merits of whether Ortiz applied to allow this appeal, in the absence of a knowing and intelligent waiver.

Kansas appellate courts have jurisdiction only as provided by law, see K.S.A. 22-3608, and an untimely notice of appeal usually leads to dismissal of an action. See State v. Moses, 227 Kan. at 404, 607 P.2d 477. In Ortiz, this court recognized three exceptions to the dismissal requirement. Although we applied none of the exceptions in that case, Ortiz, 230 Kan. at 736-37, 640 P.2d 1255, we stated that fundamental fairness would allow a late appeal if a defendant (1) had not been informed of his or her right to appeal, (2) had not been furnished an attorney to perfect an appeal, or (3) had been furnished an attorney who failed to perfect an appeal. Ortiz, 230 Kan. at 735-36, 640 P.2d 1255.

Our Ortiz decision languished in relative obscurity for 22 years, meriting minimal citation and less commentary before McAdam was decided in 2004. The three situations it outlined were characterized as "narrow exceptional circumstances." State v. Willingham, 266 Kan. 98, 101-02, 967 P.2d 1079 (1998).

At the point we filed the McAdam decision, the understandable desire of defendants to take advantage of its holding—and later a similar holding regarding K.S.A. 65-7006(a) and K.S.A. 65-4152(a)(3) in State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005) (adopting reasoning of State v. Frazier, 30 Kan. App.2d 398, 42 P.3d 188 [2002])—catapulted Ortiz into the common-law equivalent of superstardom. See State v. Phinney, 280 Kan. 394, 122 P.3d 356 (2005) (suggesting Ortiz could provide avenue to McAdam-based sentence reduction). From the vantage point of nearly 5 years beyond the McAdam decision, we can see that the rapidly multiplying number of Kansas cases citing Ortiz fall into three general categories.

In the first category are cases that merely refer to Ortiz as authority for reaching the merits of an out-of-time appeal but do not discuss the application of Ortiz exceptions in any detail. See State v. Ehrlich, 286...

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