State v. Scoville

• Decision Date: 01 August 2008
• Docket Number: No. 96,405.,96,405.
• Citation: 188 P.3d 959
• Parties: STATE of Kansas, Appellee, v. Antone J. SCOVILLE, Appellant.
• Court: Kansas Supreme Court

188 P.3d 959

STATE of Kansas, Appellee, v. Antone J. SCOVILLE, Appellant.

No. 96,405.

Supreme Court of Kansas.

August 1, 2008.

Review of the judgment of the Court of Appeals in 37 Kan.App.2d 341, 152 P.3d 1262 (2007). Appeal from Dickinson district court; Benjamin J. Sexton, Judge.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Daryl E. Hawkins, assistant county attorney, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.:

Antone J. Scoville appeals out of time from his sentence of 120 months' imprisonment for his 2003 conviction of manufacture of methamphetamine, arguing that his untimely appeal should be heard due to an exception under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), and that he is entitled to resentencing under State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004).

The untimely appeal arises from a sentence imposed after Scoville entered a plea of no contest to one count of manufacture of methamphetamine, a severity level 1 drug felony. K.S.A. 65-4159(a). On June 4, 2003, the sentencing judge imposed a downward durational departure sentence of 120 months' imprisonment.

Scoville did not file a direct appeal from his sentence even though the Court of Appeals had decided State v. McAdam, 31 Kan. App.2d 436, 66 P.3d 252 (2003), on April 11, 2003, and a petition for review of that decision was pending before this court McAdam had raised an issue of whether a defendant, such as Scoville, who was convicted under K.S.A. 65-4159(a) and sentenced for a severity level 1 drug felony should have been sentenced to a severity level 3 drug felony because of application of the identical offense sentencing doctrine.

On July 9, 2003, this court granted the petition for review in McAdam and issued a decision on January 30, 2004. In McAdam, 277 Kan. 136, 83 P.3d 161, this court held that the offense of manufacturing methamphetamine under K.S.A. 65-4159(a), a severity level 1 drug felony, is identical to the offense of compounding methamphetamine under K.S.A. 65-4161(a), a severity level 3 drug felony. Accordingly, by application of the identical offense sentencing doctrine, the defendant could be sentenced only under the lesser penalty provision. This court vacated McAdam's sentence for violation of K.S.A. 65-4159(a) and remanded the case, directing the sentencing judge to resentence McAdam as though he had been convicted of a severity level 3 drug felony for violation of K.S.A. 65-4161(a).

On February 6, 2004—1 week after the McAdam decision—Scoville filed a pro se motion to correct an illegal sentence. Scoville sought the same relief as given to McAdam but did so through a motion to correct an illegal sentence rather than a direct appeal. The district court, after conducting a nonevidentiary hearing on Scoville's motion, concluded this procedural distinction doomed Scoville's motion. The court noted Scoville's motion to correct an illegal sentence impermissibly "seeks to collaterally attack his sentence" and pointed out that McAdam does not apply retroactively. In addition, the district court found that Scoville had "entered a favorable plea agreement" in which he "received a substantial benefit of the bargain," and had failed to appeal from the sentence.

The Court of Appeals affirmed in State v. Scoville, No. 92,829, 113 P.3d 834, 2005 WL 1500961, unpublished opinion filed June 24, 2005, rev. denied 280 Kan. 990 (2005). Accord State v. Harp, 283 Kan. 740, Syl. ¶ 2, 156 P.3d 1268 (2007) (sentence imposed for crime which has identical or overlapping elements with crime of less severe penalty not "illegal" as that term is used in K.S.A. 22-3504; Bryant v. State, 280 Kan. 2, Syl. ¶ 3, 118 P.3d 685 (2005) (invocation of McAdam will be unsuccessful if defendant pled guilty and no direct appeal was taken and invocation occurs for first time on collateral attack); State v. McCoin, 278 Kan. 465, 467-68, 101 P.3d 1204 (2004) (sentence in violation of McAdam not "illegal," and thus not candidate for modification under K.S.A. 22-3504).

Then, on November 30, 2005, Scoville filed a pro se motion in which he asked the district court to allow him to seek McAdam relief by filing a direct appeal out of time. Scoville argued he had not been fully informed of his appeal rights because he was unaware of the time limit for filing an appeal. In making this argument, Scoville relied upon Ortiz, which recognized limited exceptions to the general rule requiring a timely appeal from sentencing, i.e., an appeal within 10 days of the sentencing. See K.S.A. 22-3608(c) (stating time limit as jurisdictional requirement); see State v. Phinney, 280 Kan. 394, 404, 122 P.3d 356 (2005) (discussing rules regarding and grounds for appellate jurisdiction of appeals from sentences and motions to correct illegal sentences).

To support his argument, Scoville pointed to transcripts of the plea and sentencing hearings. Although the transcripts reveal that the judge mentioned the right to appeal during both hearings, the judge did not inform Scoville of the 10-day time limit for filing an appeal during either hearing. At the plea hearing, the judge reviewed the written plea agreement with Scoville. The agreement included Scoville's waiver of his right "to appeal [his] conviction to a higher court." The waiver did not include the right to appeal a sentence—the appeal Scoville brings before this court. At the sentencing hearing, the judge merely informed Scoville: "You may have [the] right to appeal from any rulings or decisions that [the court] made here today." (Emphasis added.)

In addition, during the evidentiary hearing on the Ortiz motion, defense counsel testified that, although his standard practice while reviewing plea agreements with clients was to inform them that they had a right to appeal their sentence if the judge did something unlawful, counsel did not recall telling Scoville about the 10-day time limit for filing appeals. Defense counsel testified, however, that he remembered discussing with Scoville immediately after sentencing whether he had any appealable issues, and he did not believe Scoville had any appealable issues because of the downward departure sentence and favorable plea agreement. He further testified that Scoville did not ask him to file an appeal.

The other evidence at the hearing consisted of Scoville's testimony. He testified that he did not remember being informed of his appeal rights by defense counsel, and, as for his conversation with defense counsel after sentencing, Scoville denied counsel's mentioning any appeal rights at that time. Although he did not recall whether the judge had informed him of his right to appeal at either the plea or sentencing hearing, Scoville conceded that the sentencing transcript confirmed the sentencing judge stated he "may have" the right to appeal any decision made by the judge that day.

After hearing this evidence, the district court denied Scoville's motion to file an appeal out of time, determining that Scoville was apprised of his right to appeal in his plea agreement and at the plea and sentencing hearings. The court also found that Scoville and defense counsel discussed his appeal rights after the sentencing hearing and, nevertheless, Scoville did not direct counsel to file an appeal. In light of its findings, the court concluded that no Ortiz exceptions applied.

The Court of Appeals affirmed. In so holding, the panel declined to address the merits of Scoville's sentencing challenge. State v. Scoville, 37 Kan.App.2d 341, 345, 152 P.3d 1262 (2007).

Scoville then petitioned for this court's review, and his petition was granted. See K.S.A. 60-2101(b); K.S.A. 20-3018(b). In Scoville's petition for review, he contends the Court of Appeals' decision to affirm the district court's denial of his out-of-time appeal conflicts with other Kansas cases providing that a full awareness of appellate rights necessarily includes knowledge of the procedural time constraints for filing an appeal, which are jurisdictional.

Standard of Review

The issue of appellate jurisdiction is one of law over which this court has unlimited review. Harp, 283 Kan. at 744, 156 P.3d 1268; State v. James, 276 Kan. 737, 744, 79 P.3d 169 (2003). The right to appeal is purely statutory, and an appellate court has a duty to question jurisdiction on its own initiative. If the record reveals that jurisdiction does not exist, the appeal must be dismissed. State v. Wendler, 280 Kan. 753, Syl. ¶ 1, 126 P.3d 1124 (2006); State v. Verge, 272 Kan. 501, 521, 34 P.3d 449 (2001).

The facts underlying a district court's Ortiz exception ruling are examined on appeal under a substantial competent evidence standard of review. The ultimate legal determination of whether those facts fit the exception is reviewed under a de novo standard. Phinney, 280 Kan. at 404, 122 P.3d 356.

Ortiz and Willingham

In Ortiz, this court held that an untimely appeal will be allowed only in those cases where an indigent defendant was either: (1) not informed of his or her appellate rights; (2) not furnished with an attorney to perfect an appeal; or (3) furnished with an attorney for that purpose who failed to perfect and complete an appeal. 230 Kan. at 735-36, 640 P.2d 1255. If any of these narrow exceptional circumstances are met, a court must permit an appeal out of time. See State v. Willingham, 266 Kan. 98, 99-102, 967 P.2d 1079 (1998). Scoville asserted the first Ortiz exception applied because he had not been informed of his appellate rights.

The first Ortiz exception—i.e., a defendant is not informed of his or her appellate rights—was more thoroughly discussed in Willingham, 266 Kan. at 99-102, 967 P.2d 1079. In that case, this court reviewed a claim by the defendant that he should be allowed to file an appeal out of time because the sentencing judge had failed to notify...