An appellate court’s jurisdiction depends on several factors, including the timely filing of a notice of appeal. In this appeal, it is undisputed that the notice was not filed by the statutory deadline. Nevertheless, K.S.A. 60-1507 movant William D. Alb-right asks for a waiver of the rule as a remedy for tire deficient performance of his appointed counsel. As evidence of his contention that he received ineffective assistance of counsel, he cites his appointed counsel’s failure to timely file a notice of appeal from the district court’s judgment denying his K.S.A. 60-1507 motion.
His argument was rejected by the Court of Appeals, which dismissed his appeal on June 25, 2009. On petition for review, the parties suggest there is tension in the holdings and rationale of this court’s decisions in
State v. Patton,
After discussing the rationale and holding of each of these decisions, we conclude the Court of Appeals should not have dismissed Albright’s appeal because appointed counsel’s
Facts and Procedural Background
Albright was convicted in 1999 of premeditated first-degree murder and received a hard 40 life sentence. This court affirmed in
State v. Albright,
On March 12, 2008, Albright filed the pro se 60-1507 motion that underlies this appeal. The district court appointed counsel to represent Albright and scheduled a preliminary hearing. At the request of the district court, Albright’s appointed counsel filed a motion clarifying the issues to be addressed at the hearing and asserted three claims of ineffective assistance of trial counsel: (1) counsel failed to interview an alibi witness, (2) counsel failed to present evidence showing that the fingerprints of an individual other than Albright were found at the site of the murder, and (3) counsel failed to request a change of venue.
At a preliminary hearing, after receiving limited evidence (specifically, Kansas Bureau of Investigation fingerprint reports) and hearing appointed counsel’s arguments, the district court found that Albright’s allegations did not present substantial issues of fact requiring an evidentiary hearing. Consequently, on October 14, 2008, the court denied Albright’s 60-1507 motion.
No timely appeal was filed. Then, on February 4, 2009, Albright inquired of the district court whether an appeal had been filed in his case. On February 17, 2009, Albright filed a pro se notice of appeal, accompanied by a motion in which he argued that he should be permitted to file his appeal out of time because “[p]etitioner was represented by appointed counsel and as a result of his ineffectiveness failed to properly and timely file a Notice of Appeal in the instant matter.” Months later, he filed another pro
se notice of appeal and a motion for appointment of appellate counsel. New counsel was appointed to represent Albright in a hearing pursuant to
Ortiz,
An appeal was docketed, but the Court of Appeals issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction due to Albright’s failure to file the notice of appeal within the 30-day limitation of K.S.A. 60-2103(a). After receiving the parties’ responses, the Court of Appeals dismissed Alb-right’s 60-1507 appeal, citing to
Guillory,
Albright filed the petition for review, which we granted, giving us jurisdiction under K.S.A. 20-3018(b). Before us, the State filed a supplemental brief in which it stipulated for “purposes of this appeal that (a) Albright was furnished an attorney for the purpose of an appeal, (b) the attorney failed to perform, and (c) but for [appointed] counsel’s failure, Albright would have taken a timely appeal.”
Analysis
Principles of Law/Standard of Review
Generally, when presented with a 60-1507 motion, a district court has three options. First, it may determine that the motion, files, and records of the case conclusively show that the movant is entitled to no relief, in which case it wifi summarily deny the motion without appointing counsel. Second, the court may determine from the motion, files, and records that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the
Regardless of which option is followed, a request for postconviction relief filed under K.S.A. 60-1507 is a civil proceeding and is governed by the rules of civil procedure. Supreme Court Rule 183(a) (2010 Kan. Ct. R. Annot. 255);
State v. Richardson,
The filing of a timely notice of appeal is jurisdictional. Generally, the failure to file a timely notice of appeal requires dismissal of the appeal. See
Patton,
The issues of whether an exception will be recognized in this situation and, more generally, whether there is subject matter jurisdiction present questions of law that are subject to unlimited review. A question of subject matter jurisdiction may be raised at any time by a party or by a court, including an appellate court.
State v. Ellmaker,
Consequently, it was appropriate for the Court of Appeals to question whether it had subject matter jurisdiction. Albright does not dispute that procedure, but he argues the Court of Appeals erred in applying Guillory,
Because Albright seeks the application of the Ortiz exceptions, we begin our discussion with that case and will then discuss how Guillory, Brown, Patton, and Kargus impact the application of the Ortiz exceptions to these facts.
Ortiz
The
Ortiz
exceptions recognize that an untimely appeal may be allowed in the direct appeal from a conviction and sentence if a criminal defendant either (1) was not informed of the right to appeal at sentencing or by counsel, (2) was indigent and not furnished counsel to perfect an appeal, or (3)
Ortiz does not directly support Albright’s argument, however, because, under its facts, the holding applies to direct appeals of a criminal defendant. The decision does not answer the question of whether an exception applies if an untimely notice is filed in a collateral attack on a criminal conviction that is brought by a civil petitioner, such as in this 60-1507 action. Hence, for the Ortiz exceptions to apply, we must extend the exceptions to 60-1507 actions in which counsel has been appointed to represent
“[a] prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution or laws of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” K.S.A. 60-1507(a).
Albright suggests that, like a defendant in a criminal case, a prisoner who seeks relief from a criminal judgment is entitled to effective assistance of appointed counsel and, if appointed counsel fails to meet this obligation, the prisoner has a due process right to continue an appeal.
Albright’s argument highlights a divide that is created by K.S.A. 22-4506(b) and Supreme Court Rule 183(m), the provisions authorizing the appointment of counsel for some 60-1507 movants but not others. K.S.A. 22-4506(b) limits the right to appointed counsel to those cases in which the district court finds that the 60-1507 motion “presents substantial questions of law or triable issues of fact and if the petitioner or movant has been or is thereafter determined to be an indigent person.” Rule 183(m) extends that right to an appeal from a 60-1507 judgment, stating: “If a movant desires to appeal and contends he or she is without means to employ counsel to perfect the appeal, the district court shall, if satisfied that the movant is an indigent person, appoint competent counsel to conduct such appeal.” (2010 Kan. Ct. R. Annot. 257).
Albright argues the extension of the
Ortiz
exceptions to cases in which a 60-1507 movant has appointed counsel was recognized in
Broum,
Brown
As Albright points out, Brown, like Albright, was provided with appointed counsel by the district court after Brown filed a pro se 60-1507 motion alleging ineffective assistance of trial counsel. After appointing counsel, the district court held a nonevidentiary hearing and denied the motion. Brown was not aware of any of the district court’s actions because appointed counsel failed to inform Brown of his appointment, of the hearing, of the court’s decision, or of the right to appeal. Further, counsel did not file an appeal.
Brown,
Over 2 years later, Brown learned of the outcome of his case and filed an untimely appeal, along with a motion asking the district
court to permit the appeal. The district court denied the motion, citing
Robinson v. State,
On appeal Brown argued “he should be allowed to file the appeal out of time pursuant to notions of due process and fundamental fairness and per
State v. Ortiz,
In sorting out these contentions, the
Brown
court acknowledged there is no constitutional right to the assistance of counsel in a 60-1507 proceeding because a 60-1507 proceeding is a civil action, not criminal, and the Sixth Amendment to the United States
“ ‘Although the right to counsel in a civil case is not a matter of constitutional right under the Sixth Amendment, counsel should be appointed in post conviction matters when disposition cannot be made summarily on the face of the petition and record. When counsel is so appointed he must be effective and competent. Otherwise, the appointment is a useless formality.’ ” (Emphasis added.) Brown,278 Kan. at 484 (quoting Cullins v. Crouse,348 F.2d 887 , 889 [10th Cir. 1965]).
The
Brown
court was persuaded by this analysis and affirmatively declared that Brown had a right to the effective assistance of
his 60-1507 appointed counsel. Further, the court concluded that appointed counsel’s failure to timely notify Brown of an adverse decision in the 60-1507 proceeding and of the right to appeal that decision resulted in the denial of Brown’s statutory right to effective assistance of counsel, entitling him to take his appeal out of time. In so holding, this court overruled any contrary language in Robinson,
Guillory
Three years later, however, this court denied another 60-1507 movant the right to file an untimely appeal. In
Guillory,
Relying on this holding, the Court of Appeals in this case issued an order to show cause why Albright’s appeal should not be dismissed. In the order, the Court of Appeals stated:
“The court notes the April 29,2009, order in which the parties agreed to accept the untimely notice of appeal as timely filed, on the theory that Appellant’s counsel failed to perfect his appeal. However, where a defendant files an untimely appeal from the denial of a K.S.A. 60-1507 motion, the exceptions of State v. Ortiz are inapplicable and the appeal must be dismissed. Guillory v. State,285 Kan. 223 , Syl. ¶ 3,170 P.3d 403 (2007).”
Albright argues that this statement of the Guillory holding is overly broad because it ignores the facts of Guillory, specifically that Guillory was not represented by appointed counsel. The State agrees. Albright further argues the facts of this case and of Brown are distinguishable from Guillory because a district court appointed counsel to represent Brown and Albright.
As Albright notes, Guillory presented a different situation from Brown because Guillory acted as a pro se petitioner throughout the district court proceeding and did not have counsel to file an appeal when the district court entered a summary denial of Guillory’s 60-1507 motion, i.e., a denial that occurred without the appointment of counsel or a hearing. Nevertheless, Guillory, like Brown, contended that his case fell within the first Ortiz exception (failure to be informed of his right to appeal). He asserted that the principles of fundamental fairness require that a 60-1507 movant who has not been provided with appointed counsel should either be informed of the right to appeal by the court or be permitted to appeal the denial out of time. Albright makes the same argument.
The
Guillory
court clearly rejected the notion that a 60-1507 movant can rely on the first
Ortiz
exception in order to file an untimely
“A fatal flaw in Guillory's argument is that the first Ortiz exception, excusing an untimely notice of appeal where the defendant was not informed of the right to appeal, was based on the fact that a criminal defendant has a statutory right to be advised of his or her right to a direct appeal. K.S.A. 22-3424(f) requires the sentencing court to inform criminal defendants of the right to appeal. See Phinney,280 Kan. at 402 (discussing K.S.A. 22-3424[f], which requires trial court to advise defendant in a criminal case of right to appeal, and noting State v. Willingham,,266 Kan. 98 , 100-01,967 P.2d 1079 [1998], and Ortiz indicate fundamental fairness requires that criminal defendant be advised of rights to direct appeal). In contrast, there is no statutory requirement that the district court advise a K.S.A. 60-1507 petitioner of the right to appeal the decision on his or her petition.” Guillory,285 Kan. at 228 .
Consequently if Albright’s argument is founded on the first Ortiz exception only, the Court of Appeals was correct in dismissing this appeal. But it is not. Before us, Albright’s counsel clarified that, although reasserting his request that this court recognize that a district court has a duty to inform a 60-1507 movant of the right to appeal, Albright also relies on the third Ortiz exception (counsel failed to perfect and complete an appeal). According to Albright, he had presented this issue to the Court of Appeals through (1) his focus on ineffective assistance of appointed counsel in his February 2009 pro se motion and (2) his contention there is “prima facie” evidence of ineffective assistance of appointed counsel. He further argues that Guillory did not address the third Ortiz exception. Rather, the Guillory court drew no conclusion regarding the rights of a 60-1507 movant who has appointed counsel. In that regard, he argues, the Guillory court did not overrule Browns conclusion that a 60-1507 movant who had appointed counsel had the right to file an out-of-time appeal as a remedy for appointed counsel’s deficient conduct.
We agree with these arguments. Contrary to the Court of Appeals’ conclusion in this case, the
Guillory
court did not reject the potential application of the third
Ortiz
exception in cases where the district court had determined that the 60-1507 movant had met the threshold to have counsel appointed. In fact, the
Guillory
court went out of its way to distinguish
Brown
by noting that “at the heart” of the
Brown
court’s reasoning was the notion that, under statutory mandate, appointed counsel must provide at least minimally competent assistance.
Guillory,
Although the
Guillory
court did not specifically say its decision had no impact on the application of the third
Ortiz
exception or the
Patton
The State does not dispute that conclusion but argues
Brown
was undercut by the subsequent decision in
State v. Patton,
Essentially, the
Patton
decision clarified the parameters of the
Ortiz
exceptions and defined the process for analyzing whether
Ortiz
mandates an out-of-time appeal in direct appeals from a criminal judgment. The court emphasized that “[w]e set out three narrowly defined, truly exceptional circumstances, when that remedy takes the form of permission for a late direct appeal.”
Patton,
“It is evident to us today that what have come to be known in Kansas as the three ‘Ortiz exceptions’ are grounded not only in fundamental fairness . . . but in the Sixth Amendment right to counsel. The first of the exceptions- — applicable when a defendant was not informed of the right to appeal — goes to procedural due process alone. The second and third exceptions — applicablewhen a defendant was not furnished an attorney to perfect an appeal or was furnished an attorney for that purpose who failed to perfect and complete an appeal — go to the right of counsel and effectiveness of counsel.” Patton,287 Kan. at 218-19 .
As for the first
Ortiz
exception (failure to be informed of the right to appeal), based on procedural due process,
Patton
clarified that a criminal defendant may qualify to take a late appeal “if he
or she has been denied basic procedural due process,
i.e.,
timely and reasonable notice and an opportunity to be heard.”
Patton,
Therefore, with regard to the first
Ortiz
exception,
Patton
does not overrule
Guillory
or change
Guillory’s
conclusion that “there is no statutory requirement that the district court advise a K.S.A. 60-1507 petitioner of the right to appeal the decision on his or her petition.”
Guillory,
Regarding the second
Ortiz
exception (defendant not furnished with counsel
to
perfect an appeal), the
Patton
court clarified the exception is based on the right to counsel under the Sixth Amendment to the United States Constitution and “applies only to defendants who were indigent when they desired
Nothing in
Patton’s
discussion of the second
Ortiz
exception changed Kansas precedent holding that the Sixth Amendment right to counsel does not apply to a 60-1507 motion. See
Robertson v. State,
As for the third
Ortiz
exception (counsel failed to perfect and complete an appeal), based on the ineffective assistance of counsel,
Patton
reiterated that a late appeal is allowed if a defendant was furnished counsel for the purpose of an appeal or has retained counsel but counsel failed to perform. See
Wilkins v. State,
As the State argues in this case, the cited authorities and references to a constitutional dimension indicate the Sixth Amendment is the source of the third Ortiz exception, and the Sixth Amendment does not apply in a civil proceeding. Hence, the State makes a valid point that Brown’s reliance on Ortiz is called into question by Patton.
In response, Albright argues that the Patton court did not intend to limit the application of the third Ortiz exception to the Sixth Amendment right to counsel. Any legal representation of a litigant, under either constitutional authority or statutoiy authority, must be effective, he argues. Therefore, if appointed counsel in 60-1507 proceedings fails to appeal the district court’s denial of the 60-1507 motion, an untimely appeal should be permitted under the third Ortiz exception.
We agree with Albright that 60-1507 movants who have counsel are entitled to the effective assistance of that counsel, and if counsel’s performance was deficient for failure to file a timely appeal, as a remedy a 60-1507 movant should be allowed to file an out-of-time appeal. We do not agree, however, that it is the third Ortiz exception that allows an appellate court to accept jurisdiction. We reach these conclusions through several steps of analysis.
First,
Patton
does not discuss
Brown
much less overrule it. Even after
Patton,
this court has upheld the declaration in
Brown
that effective assistance of counsel is required where a postconviction petitioner is represented by appointed counsel.
Robertson v. State,
Third, albeit before the decision in
Patton,
we extended the
Brown
rationale by applying it to other statutoiy procedures, specifically, to the petition for review process. See,
e.g., Kargus v. State,
Kargus
In
Kargus,
we dealt with a situation similar to this case in that there is no constitutional right to counsel for the purpose of filing a petition for review of an unfavorable Court of Appeals’ decision, just as there is no constitutional right to counsel for a postconviction 60-1507 proceeding.
Kargus,
That right to effective assistance of counsel did not mean, however, that the
Ortiz
exceptions applied. In fact, we found that the third
Ortiz
exception did not apply because the doctrinal basis for it was both constitutionally and statutorily distinct from Kargus’ situation in which appointed counsel failed to seek this court’s discretionary review of the Court of Appeals’ decision. Nevertheless, we concluded it was appropriate to apply the same test the United States Supreme Court had applied in a Sixth Amendment setting to determine if appointed counsel had represented his or her client effectively.
Kargus,
In
Flores-Ortega,
the United States Supreme Court was faced with an ineffective assistance of counsel claim arising after appointed counsel failed to file a direct criminal appeal. The Court concluded that the traditional two-prong test used to determine the merits of an ineffective assistance of counsel claim, which are stated in
Strickland v. Washington,
But the Flores-Ortega Court also determined that the Strickland test had to be applied in a somewhat different way when a procedure had been forfeited. Addressing the first prong, the Court explained:
“We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. See Rodriquez v. United States,395 U.S. 327 ,89 S. Ct. 1715 ,23 L. Ed. 2d 340 (1969); cf. Peguero v. United States,526 U.S. 23 , 28,119 S. Ct. 961 ,143 L. Ed. 2d 18 (1999) (‘[W]hen counsel fails to file a requested appeal, a defendant is entitled to [a new] appeal without showing that his appeal would likely have had merit’). This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel’s failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant’s wishes. At the other end of the spectrum, a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently. [Citation omitted.]” Flores-Ortega,528 U.S. at 477 .
Hence, the Court concluded that when counsel failed to file an appeal, the inquiry of whether counsel’s conduct fell below an objective standard did not need to focus on whether the appeal had been filed but on whether counsel discussed the right to appeal with his or her client and whether the client requested an appeal.
Likewise, the second prong of the Strickland test — determining whether the defendant was prejudiced — required some adjustment. The Flores-Ortega court explained that courts applying Strickland
“ ‘normally apply a “strong presumption of reliability” to judicial proceedings and require a defendant to overcome that presumption,’ [citations omitted], by ‘showing] how specific errors of counsel undermined the reliability of the finding of guilt.’ [Citation omitted.] Thus, in cases involving mere ‘attorney error,’ we require the defendant to demonstrate that the errors ‘actually had an adverse effect on the defense.’ [Citations omitted.]” Flores-Ortega,528 U.S. at 482 .
This presumption and the requisite showing of a different outcome could not be applied, the Flores-Ortrga court concluded, when counsel failed to file an appeal. The Court explained:
“Today’s case is unusual in that counsel’s alleged deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself. According to respondent, counsel’s deficient performance deprived him of a notice of appeal and, hence, an appeal altogether. Assuming those allegations are true, counsel’s deficient performance has deprived respondent of more than a fair judicial proceeding; that deficiency deprived respondent of the appellate proceeding altogether. . . . [T]he complete denial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice because ‘the adversary process itself has been rendered ‘presumptively unreliable.’ [Citation omitted.] The even more serious denial of the entire judicial proceeding itself, which a defendant wanted at the time and to which he had a right, similarly demands a presumption of prejudice. Put simply, we cannot accord any ‘ “presumption of reliability,’ ” [citation omitted], to judicial proceedings that never took place.” Flores-Ortega,528 U.S. at 483 .
As a result, the Court reasoned, a presumption of prejudice should be applied to situations where a defendant “demonstrate [s] that there is a reasonable probability that, but for counsel’s deficient failure to consult
In
Kargus,
we adapted the
Flores-Ortega
standard to the situation where appointed counsel failed to file a petition for review.
Kargus,
Hence, although the Patton analysis was premised on a Sixth Amendment right to counsel and Kargus on a statutory right to counsel, both recognized that, if the law grants a right to counsel, then effective assistance of counsel must be provided. As Brown concluded, no reason exists to carve out a weaker right to counsel in a 60-1507 action, which, as interpreted in Supreme Court Rule 183, may include the right to appellate counsel in certain circumstances. Rather, if a district court appoints counsel to represent a 60-1507 movant after finding the motion presents substantial questions of law or triable issues of fact and the movant is indigent, the movant has a right to receive effective assistance of counsel. Brown, 278 Kan. at 483-84.
Further, as analyzed in Patton and Kargus, regardless of whether that right is based on the constitution, statute, or both, if it is alleged that appointed counsel’s deficiencies resulted in the loss of the ability to pursue a procedure, the Flores-Ortega standard is to be applied. Under that standard, as modified for a 60-1507 proceeding: (1) If the movant requested that an appeal be filed and it was either not filed at all or was not timely filed, appointed counsel was ineffective and the untimely appeal should be allowed; (2) a movant who explicitly told his or her appointed counsel not to file an appeal cannot later complain that, by following instructions, counsel performed deficiently; or (3) in other situations, such as where appointed counsel has not consulted with the movant or the movant’s directions are unclear, the movant must demonstrate a reasonable probability that, but for appointed counsel’s deficient failure to either consult with the movant or act on the movant’s wishes, an appeal would have been filed. The movant need not show that a different result would have been achieved but for appointed counsel’s performance.
Applying a similar test in Kargus, we remanded to the district court for a determination of which of these circumstances applied and whether an out-of-time filing of a petition for review would be an available remedy. Here, a remand to the district court is not necessary because, recognizing the potential that the reasoning of Kargus might apply, the State, in its appellate brief, indicated its “willing[ness] to stipulate for the purposes of this appeal that (a) Albright was furnished an attorney for the purpose of an appeal, (b) the attorney failed to perform, and (c) but for counsel’s failure, Albright would have taken a timely appeal.” Given this stipulation, we can conclude Albright’s appointed counsel performed deficiently in failing to file a 60-1507 appeal. As in Kargus, we recognize that the remedy for appointed counsel’s deficient performance is to accept subject matter jurisdiction of Albright’s appeal.
Consequently, we reverse the Court of Appeals’ order denying jurisdiction and remand to the Court of Appeals for consideration of the merits of Albright’s appeal of the district court’s denial of his K.S.A. 60-1507 motion.
Reversed and remanded with directions to the Court of Appeals.