State v. Smith, 304 Kan. 916

Background

In 1993, Shelbert L. Smith (then 16) pleaded nolo contendere and was sentenced to multiple consecutive terms, including life for first-degree felony murder.
Smith asserts he immediately told appointed counsel Max Opperman to file a direct appeal, but counsel advised waiting for a 120-day callback motion to modify the sentence.
Opperman filed a callback motion; it was denied. Counsel did not file a direct appeal, and Opperman later died (2009).
Smith filed a pro se notice and motion for an out-of-time appeal in 2013 (about 19 years after sentencing). The State argued the delay waived review.
The district court denied relief relying on a Court of Appeals decision (Cole) and did not make detailed factual findings about whether Smith instructed counsel to appeal or about Smith’s credibility.
The Kansas Supreme Court reversed and remanded for factual findings under the Ortiz/Patton/Flores-Ortega framework to decide credibility and whether counsel’s failure entitles Smith to an out-of-time appeal.

Issues

Issue	Smith's Argument	State's Argument	Held
Whether Smith may obtain a direct out-of-time appeal under the Ortiz exceptions because trial counsel failed to file a requested appeal	Smith says he told counsel to appeal immediately and counsel failed to file, so he should get an out-of-time appeal	State says Smith waited too long (19 years) and thereby waived any right to seek an untimely appeal	Remanded: court must make factual credibility findings; delay alone is not a jurisdictional bar to an Ortiz claim
Whether a long delay (19 years) is a threshold waiver of the Ortiz exceptions	Smith contends the initial, contemporaneous directive to counsel defeats any waiver argument	State contends long delay shows abandonment/waiver and courts should deny relief	Court rejects a per se temporal bar; delay is a credibility/relevance factor but not an automatic bar
Proper legal standard for third Ortiz exception (counsel failed to perfect appeal)	Smith argues Flores-Ortega presumption of prejudice applies once counsel disregarded instruction to appeal	State argues Smith must show timeliness or otherwise overcome court reluctance to hear untimely appeals	Court: apply Patton/Flores-Ortega — if defendant told counsel to appeal and counsel failed, presume prejudice; defendant must still show he would have timely appealed but credibility is for district court
Whether the district court erred by relying on Cole without making findings	Smith argues the district court failed to make required factual findings and improperly applied Cole	State relied on Cole to justify denial	Court: district court erred; must make explicit findings on (1) whether Smith instructed counsel to appeal, (2) counsel’s failure, and (3) whether Smith would have timely appealed

Key Cases Cited

State v. Ortiz, 230 Kan. 733 (1982) (recognizes narrow judicial exceptions permitting untimely appeals)
State v. Patton, 287 Kan. 200 (2010) (articulates the Patton framework for Ortiz exceptions and integrates Flores-Ortega analysis)
Flores-Ortega v. Roe, 528 U.S. 470 (2000) (presumption of prejudice when counsel fails to file a requested appeal)
Albright v. State, 292 Kan. 193 (2011) (lawyer’s failure to file an appeal when instructed can warrant relief)
State v. Gill, 287 Kan. 289 (2010) (delay may be relevant to credibility; no bright-line temporal rule)
State v. Scoville, 286 Kan. 800 (2008) (appellate jurisdiction reviewed without limitation)
State v. Wilkerson, 278 Kan. 147 (2004) (credibility determinations are for the trial court)