State v. Smith

• Decision Date: 05 August 2016
• Docket Number: No. 110,061,110,061
• Citation: 377 P.3d 414,304 Kan. 916
• Parties: State of Kansas, Appellee, v. Shelbert L. Smith, Appellant.
• Court: Kansas Supreme Court

304 Kan. 916

377 P.3d 414

State of Kansas, Appellee,

v.Shelbert L. Smith, Appellant.

No. 110,061

Supreme Court of Kansas.

Filed August 5, 2016.

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

Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by Johnson, J.

Shelbert Smith appeals the district court's denial of his motion to file a direct appeal out of time. He argues that he should be allowed an untimely appeal because his appointed trial counsel failed to file the appeal that Smith requested. Because this case is presented to us without adequate factual findings, we remand to the district court to make the requisite findings pursuant to the framework described in this opinion.

Factual and Procedural Overview

Smith was convicted as an adult in 1993, after pleading nolo contendere to first-degree felony murder, aggravated kidnapping, aggravated robbery, and possession of a firearm by a minor. At the time, Smith was 16 years old. The district court sentenced Smith to life sentences for the murder and aggravated kidnapping convictions, 10 years to life for the aggravated robbery conviction, and 30 days in jail for the firearms conviction, all to run consecutively.

Smith asserts that he told his appointed counsel, Max Opperman, immediately after sentencing that he wanted to file an appeal but that his attorney had advised him to wait until the district court ruled on a motion to modify his sentence before appealing. Under a procedure available at the time, commonly called the 120–day callback, a court could modify a sentence within 120 days of sentencing in certain circumstances. See K.S.A. 21–4603(d)(1) [then K.S.A. 1992 Supp. 21–4603(4)(a) ]. In other words, a successful sentence modification on a callback motion might change the necessity for or character of an appeal of the original sentence.

Smith's attorney did file a modification motion. But after the district court overruled the motion on March 3, 1994, counsel never filed a direct appeal of Smith's sentence.

Nearly 2 decades later, on May 1, 2013, Smith filed a pro se notice of appeal, a motion for an out-of-time appeal, and a motion for appointed counsel. Subsequently, his appointed counsel filed a docketing statement. See K.S.A. 2015 Supp. 22–3601(b)(3). This court ordered Smith to show cause why the untimely appeal should not be dismissed for lack of jurisdiction, and Smith responded that he should be allowed to appeal out of time under one of the exceptions in State v. Ortiz , 230 Kan. 733, 640 P.2d 1255 (1982). This court remanded to the district court to rule on Smith's motion for an out-of-time appeal, which would include an Ortiz hearing if necessary.

At the district court hearing, the only evidence presented was Smith's testimony that, immediately after he was sentenced, he told Opperman that he wanted to appeal, but that Opperman had told Smith to wait for the result of the 120–day callback procedure. Smith said he never heard from Opperman after the 120–day callback period ended, despite persistent attempts to contact him. Smith said he called Opperman's office, two to three times per day, for most of 1994 but was unable to reach him. Smith said his mother also attempted to contact Opperman and was likewise unsuccessful. Smith said he eventually gave up because he “was in limbo” and did not know what to do, until 19 years later when he found someone at the Hutchinson Correctional Facility who helped Smith with his appeal.

Opperman died in 2009. Therefore, the State was unable to present trial counsel's testimony. The State presented no other evidence but argued that based on the Kansas Court of Appeals decision in State v. Cole , No. 105745, 2012 WL 1649886 (Kan. App. 2012) (unpublished opinion), rev. denied 296 Kan. 1131 (2013), Smith had waived his right to bring an untimely appeal by waiting so long.

The district court denied Smith's motion. The district court did not make any findings of fact as to whether Smith had told Opperman to file an appeal, other than to say, “Well, we have the statement of the defendant somewhat to that effect.” Rather, the district court relied on the Cole decision to find that the passage of time was a bar to Smith's appeal, stating:

“But the thing that the Court cannot get over is the fact that the defendant waited all these years and said absolutely nothing, did absolutely nothing.

“In light of the decision of the Court [of Appeals] in State versus Cole, the [Kansas] Supreme Court would not be receptive. This Court cannot be receptive.”

Smith timely appealed the district court's ruling.

The Passage of Time as a Waiver of an Ortiz exception

Smith argues that he should be allowed to bring his direct appeal out of time, pursuant to Ortiz, because his attorney did not file an appeal despite Smith's direction to do so, and Smith would have timely taken an appeal but for his counsel's nonperformance. The State argues that the lapse of time between sentencing and Smith's notice of appeal precludes review because, by letting the matter rest, Smith waived his right to an appeal.

Standard of Review

This court exercises unlimited review over the issue of appellate jurisdiction. State v. Scoville , 286 Kan. 800, 803, 188 P.3d 959 (2008). The factual findings underlying a trial court's ruling in an Ortiz hearing are reviewed for substantial competent evidence, while the legal determinations are reviewed de novo. State v. Gill , 287 Kan. 289, 293, 196 P.3d 369 (2008).

Analysis

Appellate courts in Kansas have declined to find a constitutional right to appeal and generally exercise jurisdiction only where an appeal conforms to the applicable statutes. 287 Kan. at 293–94, 196 P.3d 369. Crimes committed before July 1, 1993, were required to be appealed within “10 days after the expiration of the district court's power to modify the sentence.” K.S.A. 22–3608(a). For sentences imposed under K.S.A. 21–4603(d)(1), the district court could modify the sentence within 120 days (the 120–day callback). Effectively, then, Smith had 130 days from the date of sentencing in which to appeal his sentence.

There is no question that Smith's appeal was filed past the statutory deadline and that the general rule would result in its dismissal. See Albright v. State , 292 Kan. 193, 197, 251 P.3d 52 (2011). But Ortiz created judicial exceptions to the general rule barring untimely appeals. Under those exceptions, an untimely appeal may be allowed when: (1) the defendant was not informed of his or her right to appeal; (2) the defendant was not furnished an attorney to pursue the appeal; or (3) the defendant was furnished an attorney who failed to perfect the appeal. State v. Patton , 287 Kan. 200, 206, 195 P.3d 753 (2008) (citing Ortiz , 230 Kan. at 735–36, 640 P.2d 1255 ). In Patton, this court developed rules for each of the Ortiz exceptions. 287 Kan. at 219–24, 195 P.3d 753. In so doing, Patton emphasized that the general rule barring untimely appeals was still exactly that—the general rule, and that the Ortiz exceptions were “narrowly defined” and reserved for “truly exceptional circumstances.” Patton , 287 Kan. at 217, 195 P.3d 753.

Patton recognized the second and third Ortiz exceptions are rooted in the concepts of fundamental fairness and the Sixth Amendment right to counsel. Patton , 287 Kan. at 218–19, 195 P.3d 753. Effectiveness of counsel is generally analyzed by the two-prong analysis of performance and prejudice set forth in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Patton , 287 Kan. at 224, 195 P.3d 753. A defendant must first establish that counsel's performance was deficient, and second, that counsel's performance prejudiced the defense. 287 Kan. at 224, 195 P.3d 753. But the Patton court held that under the third Ortiz exception, when counsel's deficient performance results in the forfeiture of a proceeding, e.g. , the right to an appeal process, the Strickland analysis is modified by Roe v. Flores–Ortega , 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) :

“Under Flores–Ortega, if appointed or retained counsel has failed to file or perfect a direct appeal by a criminal defendant, we will presume the existence of prejudice. This is not, however, the same as a finding of prejudice per se, requiring application of the third Ortiz exception. The defendant must still demonstrate that, but for counsel's failure, he or she would have taken a timely direct appeal. The defendant need not show, as he or she would have had to show if we were using the Strickland standard as our benchmark, that such a timely direct appeal would have been successful. [Citation omitted.]” Patton , 287 Kan. at 225, 195 P.3d 753.

Here, Smith asserts that he falls under the third Ortiz exception because he told his attorney he wanted to appeal immediately after sentencing and because he unsuccessfully attempted to contact his attorney about proceeding with an appeal on numerous occasions during the year following the expiration of the 120–day callback period, but that his attorney failed to file the requested appeal. Had his attorney filed an appeal, Smith claims that he would have pursued it.

In response, the State argued, and the district court agreed, that Smith had waived his right to appeal because he “let the matter rest” by waiting so many years to attempt to proceed with the appeal pro se. The district court relied on Cole, where a panel of the Court of Appeals said whether the defendant “let the matter rest” was a threshold requirement a defendant must overcome in order to assert an Ortiz exception, and a failure to timely assert an Ortiz exception could be considered a waiver of that right. Cole , 2012 WL 1649886, at *2. In effect, Cole said that a defendant may not make an untimely request to be...