State v. Smith, 366 P.3d 226

Background

In 2006 Smith pleaded guilty to felony murder and aggravated robbery under a plea agreement that recommended a low grid-box sentence for robbery consecutive to a hard-20 life term for felony murder; he agreed to testify against an accomplice.
Smith did not file a timely notice of appeal; in 2014 he filed an untimely notice of appeal and a motion to withdraw his pleas alleging he was not fully informed of plea consequences and that he lacked understanding at the plea hearing.
At evidentiary hearing, defense counsel Falk testified he told Smith about a 10-day appeal deadline and would file an appeal if requested but did not recall advising Smith about appointed appellate counsel; Smith testified he was told he could not appeal a plea and that he did not understand the plea terms.
The district court denied the out-of-time appeal, finding Falk advised Smith of appeal rights and that Smith would not have timely appealed even if properly informed; the court also denied the untimely motion to withdraw plea as procedurally time-barred for lack of excusable neglect.
On appeal, the Kansas Supreme Court agreed the sentencing court’s brief comment (“you may have a right to appeal”) was insufficient under Patton, and the State failed to show Smith was informed of the right to appointed appellate counsel; however, the Court affirmed because Smith failed to prove he would have timely appealed.

Issues

Issue	Smith's Argument	State's Argument	Held
Whether Smith may pursue an untimely direct appeal under Ortiz (not informed of appeal rights)	Smith: sentencing did not advise the three Patton elements (appeal exists, time limit, appointed counsel) so Ortiz exception applies	State: trial counsel informed Smith of 10-day deadline and would have filed on request; Smith was not indigent	Court: sentencing remark insufficient; State failed to prove Smith knew about appointed counsel, but Smith failed to show he would have timely appealed, so out-of-time appeal denied
Whether Smith’s 2014 motion to withdraw plea is timely or excused by excusable neglect under K.S.A. 22-3210(e)	Smith: he only recently understood plea consequences and thus filed within 12 months of discovery; alleged lack of comprehension due to medication	State: motion is time-barred and Smith failed to prove excusable neglect	Court: motion was untimely; Smith waived challenge on appeal by not contesting district court’s excusable-neglect finding; denial affirmed
Whether counsel’s alleged statement that appeal right was “hollow” creates additional exception to Ortiz time limits	Smith: counsel’s “hollow” remark undermined his appeal rights, warranting extension	State: no authority supports a new exception beyond Ortiz	Court: no new exception recognized; Ortiz framework governs
Standard of review for Ortiz/Patton findings	Smith: N/A (arguments framed under exceptions)	State: district court findings supported by counsel testimony; factual findings reviewed for substantial competent evidence	Court: factual findings reviewed for substantial competent evidence; legal application de novo; district court’s negative factual finding upheld

Key Cases Cited

State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982) (recognizes exceptions allowing late appeals when defendant was not informed of appeal rights, not furnished counsel, or counsel failed to perfect appeal)
State v. Patton, 287 Kan. 200, 195 P.3d 753 (2008) (requires sentencing court to inform defendant of: right to appeal sentence severity, appeal time limit, and right to appointed counsel if indigent)
State v. Phinney, 280 Kan. 394, 122 P.3d 356 (2005) (dual standard of review for Ortiz exception rulings: facts for substantial competent evidence, legal conclusion de novo)
State v. Gill, 287 Kan. 289, 196 P.3d 369 (2008) (discusses burden-shifting framework for Ortiz/Patton claims)
State v. Moses, 296 Kan. 1126, 297 P.3d 1174 (2013) (application of the one-year time limit to preexisting claims)
In re Marriage of Kuzanek, 279 Kan. 156, 105 P.3d 1253 (2005) (standard for reviewing negative factual findings)
State v. Murray, 302 Kan. 478, 353 P.3d 1158 (2015) (negative factual findings upheld absent arbitrary disregard or extrinsic bias)