318 P.3d 666
Kan. Ct. App.2014Background
- Shelly appeals district court denial of untimely appeal under Ortiz exceptions.
- Sentenced April 6, 2012 to concurrent terms for distribution and possession of a drug precursor; ordered to register as a drug offender.
- Judge advised right to appeal within 14 days and that counsel could be appointed if indigent; Shelly did not file timely direct appeal.
- Shelly’s retained counsel Arnold withdrew July 2, 2012; Shelly filed a pro se 60-1507 motion challenging Snellings-based resentencing.
- District court held Arnold did not fail to perfect an appeal under Ortiz; Snellings issue limited to possession count; resentenced only possession count to 11 months.
- Shelly appealed; this court remanded to determine Ortiz applicability; remand hearing found no Ortiz exceptions apply; appeal dismissed
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether first Ortiz exception applies | Shelly (Shelly) argues lack of explicit severity-level notice. | State argues sentencing transcript satisfied informing of right to appeal; no explicit severity-level notice needed. | First Ortiz exception does not apply; proper informing occurred |
| Whether third Ortiz exception applies | Shelly asserts his counsel failed to perfect an appeal after he requested it. | State contends Shelly did not direct Arnold to file an appeal; no failure to perfect by counsel. | Third Ortiz exception does not apply; Shelly did not direct counsel to appeal |
Key Cases Cited
- State v. Patton, 287 Kan. 200 (2008) (trial court must inform right to appeal and indigent appointment; evidentiary burden on defendant)
- State v. Patton, 287 Kan. 220 (2008) (patent requirement to inform about severity-level appeal specifics)
- Albright v. State, 292 Kan. 193 (2011) (three Ortiz exceptions to untimely appeal)
- State v. Gill, 287 Kan. 289 (2008) (de novo review of Ortiz legal determination)
- State v. Snellings, 294 Kan. 149 (2012) (identical elements of related drug offenses; timing of relief)
- State v. Phinney, 280 Kan. 394 (2005) (trial court must advise right to appeal and indigent rights)
- State v. Willingham, 266 Kan. 98 (1998) (defendant must be advised of right to appeal)
- State v. Arnett, 290 Kan. 41 (2010) (legislative intent governs statutory advisement)
- State v. Urban, 291 Kan. 214 (2010) (interpretation of statutory language)
- State v. Barnes, 278 Kan. 121 (2004) (Snellings-like application to pending cases)
- State v. Ortiz, 230 Kan. 733 (1982) (three exceptions to timely appeal)