State v. Shelly

Decision Date25 March 2016
Docket NumberNo. 109,292.,109,292.
Parties STATE of Kansas, Appellee, v. Charles E. SHELLY, Appellant.
CourtKansas Supreme Court

Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, argued the cause and was 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. Perry, 303 Kan. 1053, 370 P.3d 754, 2016 WL 1170089 (No. 109,506

, this day decided).

Defendant Charles E. Shelly, along with his codefendant wife, Cara N. Perry, 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. Shelly filed a pro se K.S.A. 60–1507

motion, arguing that he 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 Shelly's sentencing. The district court judge held the Snellings decision applied only to Shelly's possession of a drug precursor conviction and reduced his sentence accordingly.

Shelly appealed, and the Court of Appeals remanded to 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 Shelly's case.

The Court of Appeals affirmed the district judge's decision and dismissed Shelly's appeal. State v. Shelly, 49 Kan.App.2d 942, 318 P.3d 666 (2014)

.

We granted Shelly's petition for review and now hold that the third Ortiz exception permitted Shelly to file an untimely direct appeal. Accordingly, we reverse the Court of Appeals' dismissal and remand this case to it for consideration of the merits of Shelly's Snellings argument on the distribution of a drug precursor conviction.

Detailed Factual and Procedural Background

On March 5, 2012, Shelly 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, he was sentenced to 56 months' imprisonment for unlawful distribution of a drug precursor concurrent to 49 months' imprisonment for unlawful possession of a drug precursor. He was also ordered to register as a drug offender.

At the conclusion of the sentencing hearing, the district judge stated:

“Mr. Shelly, you have a right to appeal the sentence I've handed down, but you must file a written notice of appeal within 14 days from today with the clerk of the district court. If you cannot afford to hire an attorney to help you with the appeal, one will be appointed for you.”

Shelly would later testify that he asked defense counsel after sentencing what his appeal options were. His counsel, Robert Arnold III, said that there was nothing to appeal, and Shelly did not direct Arnold to file an appeal.

Arnold would later testify that he and Shelly had discussed an appeal and how much it would cost, that Shelly had received the benefit of a plea bargain and concurrent sentencing, and that a mutual decision was made not to proceed with an appeal. Arnold's law firm had handled a previous appeal for Shelly.

A timely notice of appeal was never filed.

On the day of Shelly'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 Shelly's crimes of conviction could be subject to reclassification that would reduce his sentence. Snellings, 294 Kan. at 158, 273 P.3d 739

.

According to Shelly's eventual testimony, he became aware of Snellings when he first arrived at prison in April 2012, and he asked his mother to notify Arnold of the ruling. Arnold took no action and advised Shelly to “stop being a jailhouse lawyer.”

Arnold, for his part, would later testify that he had no recollection of Shelly contacting him within 14 days of sentencing and that “it wasn't really an appeal that he wanted me to try to do.” Rather, [i]t was a motion to reduce his sentence, and it was based upon some law.” Arnold could not recall when he learned about the Snellings decision, supposing he had been told by his law partner or by Shelly. Arnold said:

“At different points, I would receive communications for, you know, months and months later, and he had quoted some other cases ..., because there was a change in the law in terms of what the sentencing recommendations would be for precursors. And there was never an agreement reached to file any type of additional request for relief from that sentence, one, because they didn't pay any additional funds for a private attorney to do that, and that's my recollection.”

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

motion, arguing his 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 Shelly's pro se K.S.A. 60–1507 motion in 2012 CV 23 with the criminal case in 2011 CR 165.

Shelly 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 Shelly's sentence for unlawful possession of a drug precursor, the prosecutor said he would like to preserve the issue of Shelly's failure to file a timely direct appeal.

The district judge concluded that Snellings applied to Shelly's unlawful possession of a drug precursor conviction but not to his unlawful distribution of a drug precursor conviction. Shelly was resentenced to 11 months' imprisonment on his 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 Shelly to appeal because clarification was needed on whether the distribution sentence needed to be corrected as well.

On August 17, 2012, Shelly appealed from the district judge's orders, “including but not limited to finding of guilt and the sentence entered herein and the order regarding Defendant's Motion to Correct Illegal Sentence entered on August 6, 2012.” The State did not cross-appeal the district judge's modification of the possession sentence. Nancy Ogle was appointed to represent Shelly on appeal.

The journal entry for the August 6, 2012, hearing was not filed until December 20, 2012. At that point, Shelly filed an Amended Notice of Appeal clarifying that he was appealing from this journal entry and all other adverse rulings and orders.

On April 17, 2013, Shelly filed a motion for remand from the Court of Appeals to the district court, acknowledging that he had not filed a timely notice of appeal after his April 2012 sentencing but only from his August 2012 resentencing. Shelly asserted Arnold failed to file an appeal despite Shelly's request that he do so. The Court of Appeals retained jurisdiction but granted Shelly's motion for remand to district court for a determination of whether an untimely appeal of the sentence should be permitted. It ordered:

“The only appealable issue in the supplemental appeal is whether the district court erred in determining that the Ortiz exceptions did not apply. If this court determines the district court did not err, the appeal will be dismissed for lack of jurisdiction. If this court determines the district court erred, the appeal will be retained and the parties will be ordered to submit briefs on the substantive issues.”

Before the Ortiz hearing in district court, Shelly filed Defendant's Motion for Reconsideration of Sentence for Count I, suggesting that the clarification needed in August 2012 from the appellate courts on appropriate sentencing under Snellings had since been provided. The motion cited State v. Swor, No. 107,622, 2013 WL 781131 (Kan.App.2013)

(unpublished opinion).

On May 17, 2013, the district judge conducted a hearing on Ortiz and the Defendant's Motion for Reconsideration. At the outset, the district judge denied Shelly's motion because the Court of Appeals had retained jurisdiction of the case and had remanded only on the Ortiz issue.

As stated above, Shelly testified that he asked about his appeal options, that Arnold said there was nothing to appeal, and that Shelly did not direct Arnold to file an appeal. When Shelly learned of Snellings in prison, his mother emailed Arnold, but Arnold did not pursue resentencing. Arnold testified that there was a decision not to proceed with an appeal and that, although Shelly later sent him communications about other cases, “there was never an agreement reached to file any type of additional request for relief from that sentence, one, because they didn't pay any additional funds for a private attorney.”

On cross-examination, defense counsel asked Arnold if he made a habit of checking new appellate cases decided each Friday, and the State objected, stating “it appears we're getting more now into a[n] ineffective type allegation, or setting the grounds for that instead of Ortiz. And Ortiz focuses on whether he was directed to file an appeal, and I think we're kind of running astray of that.” The district judge responded that he would...

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