State v. Perry

• Decision Date: 25 March 2016
• Docket Number: No. 109,506.,109,506.
• Citation: 303 Kan. 1053,370 P.3d 754
• Parties: STATE of Kansas, Appellee, v. Cara N. PERRY, Appellant.
• Court: Kansas Supreme Court

303 Kan. 1053

370 P.3d 754

STATE of Kansas, Appellee,

v.Cara N. PERRY, Appellant.

No. 109,506.

Supreme Court of Kansas.

March 25, 2016.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, argued the cause, and Joanna Labastida, of the same office, was with her on the briefs for appellant.

Kevin M. Hill, county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by BEIER

, J.:

This is a companion case to State v. Shelly, 303 Kan. ––––, –––P.3d ––––, 2016 WL 1168301 (2016)

(this day decided).

Defendant Cara N. Perry, along with her codefendant husband, Charles E. Shelly, entered a no contest plea to one count of unlawful distribution of a drug precursor and one count of unlawful possession of a drug precursor. Defense counsel did not file a timely direct appeal. Perry filed a pro se K.S.A. 60–1507

motion, arguing that she should have been sentenced under the identical offense doctrine discussed in State v. Snellings, 294 Kan. 149, 273 P.3d 739 (2012)

, a case handed down on the date of Perry's sentencing. The district court judge held the Snellings decision applied only to Perry's possession of a drug precursor conviction and reduced her sentence accordingly.

Perry appealed, and the Court of Appeals remanded to the district court for a hearing under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982)

. Ortiz permits untimely appeals when one of three exceptions applies. 230 Kan. 733, Syl. ¶ 3, 640 P.2d 1255 (late appeal permitted if defendant not informed of right to appeal; was not furnished attorney to perfect appeal; or was furnished attorney for appeal who failed to perfect, complete appeal). The district judge held that none of the Ortiz exceptions applied in Perry's case.

On appeal, a panel of the Court of Appeals reversed, holding that the third Ortiz exception applied. The panel also ruled in Perry's favor on the merits of her challenge to her sentence for unlawful distribution of a drug precursor. State v. Perry, No. 109,506, 2014 WL 6676044, at *4–5 (Kan.App.2014)

(unpublished opinion).

We granted the State's petition for review on the Ortiz issue, and we now affirm the panel's decision on that point. Because the State did not contest the panel's ruling on the merits of the identical offense doctrine, we do not reach the issue of whether the doctrine should be applied to reduce Perry's sentence for unlawful distribution of a drug precursor. See Supreme Court Rule 8.03(a)(4)(c)

(2015 Kan. Ct. R. Annot. 79) ("The court will not consider issues not presented or fairly included in the petition."); State v. Tims, 302 Kan. 536, 539, 355 P.3d 660 (2015) (Court of Appeals conclusion unchallenged in petition for review deemed waived).

DETAILED FACTUAL AND PROCEDURAL BACKGROUND

On March 5, 2012, Perry pleaded no contest to one count of unlawful distribution of a drug precursor and one count of unlawful possession of a drug precursor, both in violation of K.S.A. 2011 Supp. 21–5710

and both severity level 2 drug felonies. On April 6, 2012, she was sentenced to 54 months' imprisonment for unlawful distribution of a drug precursor concurrent to 49 months' imprisonment for the unlawful possession of a drug precursor conviction.

Perry's sentencing hearing included the following exchange:

JUDGE: "Ms. Perry, you have a right to appeal this sentence, but you must file a written notice of appeal within 14 days with the clerk of the court, whose office is across the hallway from this office—this courtroom. The appeal must be in writing, and it must be within 14 days. If you can not afford an attorney and need one for purposes of the appeal, we will appoint one for you.

"Ms. Perry, do you understand how to appeal your case?

"THE DEFENDANT: Yes, sir."

Perry would later testify that she and her husband spoke to their counsel, Robert Arnold III, immediately after sentencing and asked if they could appeal; Arnold responded that they "had nothing to appeal." Arnold also said, according to Perry, that Perry and Shelly could file a motion in 18 months to get their time reduced and that such a motion probably would be disposed of "before an appeal could be done." Based on Arnold's advice, Perry did not instruct him to file an appeal. She would later testify that, had she known about the Snellings decision, she would have asked Arnold to pursue an appeal.

Arnold would later testify that he told Perry and Shelly after sentencing that they did not have a great chance on appeal because they had received the benefit of a reduced sentence and reduced charges through their plea agreements. He said that he explained the appeal process, informed them that he would not file an appeal without being paid, and said that they had a right to have counsel appointed. They did not instruct him to file an appeal.

A timely notice of appeal was never filed.

On the day of Perry's sentencing, this court issued its decision in Snellings, holding that possession of ephedrine or pseudoephedrine with intent to manufacture a controlled substance, a severity level 2 drug felony, has elements identical to those of possession of drug paraphernalia with intent to manufacture a controlled substance, a severity level 4 drug felony, which meant that Perry's crimes of conviction could be subject to reclassification that would reduce her sentence. Snellings, 294 Kan. at 158, 273 P.3d 739

.

Perry learned of the Snellings decision when she received a letter written to her in prison by Shelly during June or July 2012. Arnold would eventually testify that he became aware of the Snellingsdecision when he received correspondence from Shelly or during a conversation with his law partner.

On July 2, 2012, Arnold filed a motion to withdraw as Perry's counsel, which was granted by the district judge. On the same day, Perry filed her pro se K.S.A. 60–1507

motion arguing her sentence for unlawful distribution of a drug precursor should be modified to that for a severity level 4 felony based on Snellings. On July 11, 2012, the district judge issued an order consolidating Perry's pro se K.S.A. 60–1507 motion in 2012 CV 22 with the criminal case in 2011 CR 166.

Like Shelly, Perry was represented by court-appointed counsel Andrew Delaney at the district court hearing on August 6, 2012. When asked if the State would concede that Snellings applied to reduce Perry's sentence for unlawful possession of a drug precursor, the prosecutor said he would like to preserve the issue of Perry's failure to file a timely direct appeal.

The district judge concluded that Snellings applied to Perry's unlawful possession of a drug precursor conviction but not to her unlawful distribution of a drug precursor conviction. Perry was resentenced to 11 months' imprisonment on her conviction for unlawful possession of a drug precursor, but the controlling sentence for unlawful distribution of a drug precursor was left as is. The district judge encouraged Perry to appeal because clarification was needed on whether the unlawful distribution sentence needed to be corrected as well.

On August 17, 2012, Perry filed a notice of appeal from the finding of her guilt, her sentence, and the order entered on August 6, 2012. The district judge appointed the appellate public defender to represent her on appeal.

On July 17, 2013, Perry filed a motion for remand to the district court for a hearing on whether any of the Ortiz exceptions applied. The motion stated in part: "If Ms. Perry asked her trial attorney to file a notice of appeal, but her trial attorney dissuaded her from doing [so] because of his lack of awareness of the Snellings decision, Ms. Perry meets the third Ortiz exception."

The Court of Appeals remanded for the sole purpose of allowing the district court to conduct an Ortiz hearing, which would determine whether it treated the appeal of the district court decision on Perry's K.S.A. 60–1507

motion as a late direct appeal of her sentence. Perry, 2014 WL 6676044, at *2.

The Ortiz hearing was held on August 22, 2013, in the district court. Perry testified that she had spoken to Arnold twice about the possibility of an appeal—once before and once after sentencing. Before sentencing, Perry said, Arnold "just kind of dismissed" the idea of an appeal because Perry and Shelly had previously paid for his representation by signing over their car to him and probably could not afford an appeal. After sentencing, as noted above, Arnold advised Perry that she and her husband had nothing to appeal, and Perry testified that she relied on Arnold's advice.

On cross-examination, Perry did not dispute that the sentencing judge had advised her that she had 14 days to file an appeal. She also acknowledged that she was aware the court could appoint an attorney to represent her on appeal if she could not afford to pay one to do so and that she had been involved in a previous appeal. When it was pointed out that she had been the beneficiary of a favorable plea agreement and had received "the lowest sentence possible," Perry testified that, until she and Shelly were sentenced, Arnold had "had us believing that we were going to get probation."

Arnold testified at the Ortiz hearing that he had never told Perry and Shelly that they would get probation. As noted above, he also testified that he told them they had limited appeal options in light of their plea agreement, that he would not file an appeal without being paid, and that they could have counsel appointed for an appeal. Defense counsel attempted to ask Arnold if he made a practice of reading appellate advance sheets on a regular basis, but the State objected to the line of questioning. The district judge ruled that the question was beyond the scope of the remand from the Court of Appeals. The district judge did permit defense counsel to ask Arnold when he became aware of the Snellings decision, but the judge cut defense counsel off on a follow-up question. Defense counsel then asked if Arnold was familiar...