State v. Smith, 482 P.3d 586

In 1993 Shelbert Smith pled no contest to murder and other charges and received consecutive life sentences; defense counsel Max Opperman requested a 120-day callback and filed a motion to modify sentence that the district court denied in a motion minutes sheet but did not journalize.
Smith claimed Opperman promised to appeal after the 120-day callback, then ceased communicating; Smith filed a pro se motion in 2013 for leave to appeal out of time alleging counsel failed to inform and failed to perfect an appeal.
This case produced two prior Kansas Supreme Court reversals: Smith I remanded for findings on credibility tied to the third Ortiz exception (counsel failed to perfect appeal), and Smith II reversed again for apparent bias and extraneous record use, instructing the district court to consider only evidence relevant to Smith’s credibility.
On the third remand Smith raised two new issues—(1) the district court never journalized its denial of the modification motion (so timeliness never ran) and (2) he was not informed of appellate rights (first Ortiz exception)—and presented expert testimony about learning disabilities.
The district court refused to consider the new issues as beyond the narrow Smith II mandate, found Smith not credible on his claim that counsel failed to perfect an appeal, and denied leave to appeal out of time; the Kansas Supreme Court affirmed.

Issue	Plaintiff's Argument (Smith)	Defendant's Argument (State/District Court)	Held
Scope of remand/mandate	Smith: New issues (missing journal entry; lack of notice) are proper on remand and were not foreclosed	State: Smith II mandate was narrow—limited to credibility on the third Ortiz exception; new issues exceed remand scope	Court: Mandate was narrow; district court correctly refused new issues
Effect of missing journal entry on appeal time	Smith: No journal entry denying modification means appeal period never began	State: Issue was not within the narrow remand and was not a late-breaking fact; district court file available earlier	Court: Declined to reach merits because issue exceeded remand scope
First Ortiz exception (lack of notice of appellate rights)	Smith: Opperman failed to inform him of appellate rights; his learning disabilities made comprehension inadequate	State: First-exception claim was not timely raised on prior remands and exceeds mandate; evidence did not compel relief	Court: Refused to consider (beyond mandate); not decided on merits
Third Ortiz exception (counsel failed to perfect appeal)	Smith: He told Opperman to appeal; Opperman failed to file appeal — entitlement to appeal out of time	State: District court found Smith not credible and thus no entitlement	Court: Affirmed district court; adverse credibility finding supported by substantial competent evidence

State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982) (establishes three exceptions allowing untimely appeals)
State v. Smith, 304 Kan. 916, 377 P.3d 414 (2016) (Smith I) (remanded to evaluate credibility under third Ortiz exception)
State v. Smith, 308 Kan. 778, 423 P.3d 530 (2018) (Smith II) (reversed for appearance of bias; limited remand to credibility evidence)
State v. Soto, 310 Kan. 242, 445 P.3d 1161 (2019) (explains mandate rule limits and when late-breaking facts justify new post-remand issues)
State v. Phinney, 280 Kan. 394, 122 P.3d 356 (2005) (articulates bifurcated review for Ortiz rulings: substantial competent evidence for facts; de novo for legal application)
State v. Doelz, 309 Kan. 133, 432 P.3d 669 (2019) (defines substantial competent evidence standard)
State v. DuMars, 37 Kan. App. 2d 600, 154 P.3d 1120 (2007) (permitted district court to address issues on remand that were not inconsistent with appellate mandate)