State v. PattonState v. Patton
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- Before:
- Beier
The opinion of the court was
This аppeal arises on petition for review of our Court of Appeals’ decision foreclosing a late appeal of sentence pursued by defendant Joshua Delore Patton. Patton seeks to take advantage of this court’s ruling in State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), through application of this court’s decision in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982).
Factual and Procedural Background
Patton was originally charged with seven drug-related offenses. He secured retained counsel, and he agreed to plead guilty to one count of attempted manufacture of methamphetamine and one count of possession of anhydrous ammonia in an unapproved container. His plea agreement — signed by him, his lawyer, and an assistant county attorney — was filed March 3,2003, and included the following language:
“The Defendant waives his right of appeal, and waives his right to file any motions underK.S.A. 60-1507 arising from this matter. . . . The Defendant agrees that he has read and understands the attached Waiver of Rights form and understands that the information contained therein is made a part of this agreement (that is incorporated by reference).”
The Waiver of Rights form does not appear in the record on appeal.
In exchange for Patton’s guilty pleas, the State dismissed the remaining five charges against him and agreed to recommend a downward durational departure sentence and to not oppose dis-positional departure to a nonprison sanction.
At sentencing, the district court judge accepted the parties’joint recommendation of a downward durational departure but rejected Patton’s bid for a dispositional departure, noting that Patton had been unable to remain drug-free while on bond between the plea and sentencing hearings. The district judge told Patton that he had the right to appeal any of the judge’s rulings or findings, “specifically, in regards to finding against you on the dispositional departure.” The State did not object or otherwise attempt to correct this
misstatement of Kansas law. See
No timely direct appeal was filed, although both Patton and his mother attempted to contact Patton’s lawyer to pursue one.
In January 2004, this court issued its
McAdam
decision, holding that
Within weeks of the McAdam decision, Patton filed a motion to correct illegal sentence. The district court denied the motion after a hearing, and a panel of our Court of Appeals affirmed. No. 92,682, unpublished opinion filed May 13, 2005. Patton filed a petition for review of the Court of Appeals’ decision with this court.
While the petition for review was pending, Patton filed a
After the petition for review on the motion to correct illegal sentence had been disposed of, Patton again filed a
The district judge held an
Ortiz
evidentiaiy hearing in December 2005. He heard testimony that Patton’s lawyer had faxed a letter to Patton’s mother on the last day for a timely appeal of Patton’s sentence, saying that he “had all the documents done to file the appeal,” that doing so was against his advice, but that the decision was up to her. Patton’s mother testified that the decision was not up to her, that it was up to her son,
The district judge ruled that Patton should be permitted to file an out-of-time appeal, because of the lawyer’s failure to abide by Patton’s wish to file an appeal. This action is that appeal. Patton challenges the severity level of the attempted manufacture crime and the sentencing judge’s denial of his motion for dispositional departure.
The Court of Appeals’ panel hearing this appeal refused to order resentencing under McAdam. Although the appellate judges agreed with the district judge that the facts of this case fit one of the Ortiz exceptions that would ordinarily permit a late appeal, they concluded that they nevertheless lacked jurisdiction because Patton had waived his right to appeal as part of his plea agreement. Unless that plea agreement was set aside, the court said, it could not address the merits of Patton’s late appeal.
“Where a defendant bargained with the State and knowingly and voluntarily agreed to waive his or her right to appeal, in exchange for a sentence reduction and dismissal of additional charges, the district court cannot ignore the waiver because it stands as a bar to the defendant filing an appeal unless the plea agreement is set aside.” State v. Patton, 37 Kan. App. 2d 166, Syl. ¶ 4, 150 P.3d 328 (2007).
Patton made two arguments on his petition for review to this court. He first addressed the merits of the waiver argument, specifically whether it could defeat Ortiz application and cut off this late appeal. Patton asserted that the language in his plea agreement could not divest the appellate court of jurisdiction over his sentencing appeal because it dealt only with his right to appeal his convictions. He also argued process, asserting that the Court of Appeals must be reversed because the issue of waiver was not properly before it. In support of this argument, he pointed to the absence of a discussion of waiver in the district court’s decision and the State’s failure to cross-appeal.
Analysis
We begin our analysis by briefly addressing Patton’s procedural argument. We disagree with his assertion that the Court of Appeals erred in reaching the issue of waiver.
The issue of subject matter jurisdiction may be raised at any time by a party or by the court, including an appellate court. See
Vorhees v. Baltazar,
283 Kan. 389, 397, 153 P.3d 1227 (2007). Our standard of review on the issue is unlimited. See
State v. James,
276 Kan.
737, 744, 79 P.3d 169 (2003). Here, the possibility that Patton had knowingly and voluntarily waived his right to apрeal his sentence had a more than purely theoretical potential to affect subject matter jurisdiction, because there was no question that Patton’s lawyer did not file a notice of appeal within 10 days of sentencing, see
We also note, however, that the State’s appellate brief was not silent on waiver. Rather, it included waiver among the reasons that the Court of Appeals should reject Patton’s invocation of McAdam to obtain a new sentence on his attempted manufacture conviction.
We now turn to the merits of whether Ortiz applied to allow this appeal, in the absence of a knowing and intelligent waiver.
Kansas appellate courts have jurisdiction only as provided by law, see
Our Ortiz decision languished in relative obscurity for 22 years, meriting minimal citation and less commentary before McAdam was decided in 2004. The three situations it outlined were characterized as “narrow exceptional circumstances.” State v. Willingham, 266 Kan. 98, 101-02, 967 P.2d 1079 (1998).
At the point we filed the
McAdam
decision, the understandable desire of defendants to taire advantage of its holding — and later a similar holding regarding
In the first category are cases that merely refer to
Ortiz
as authority for reaching the merits of an out-of-time appeal but do not discuss the application of
Ortiz
exceptions in any detail. See
State v. Ehrlich,
286 Kan. 923, 189 P.3d 491 (2008);
Mitchner v. State,
No. 97,729, unpublished opinion filed June 6, 2008 (affirming denial of
Cases in the third category form a subset of the second category. They discuss not only the
Ortiz
excеptions but in some way relate one or more of them to the constitutional law concept of fundamental fairness or procedural due process and/or the constitutional concept of effective assistance of counsel. See
Penn v. State,
38 Kan. App. 2d 943, 173 P.3d 1172 (2008) (when, through counsel’s errors, movant denied right to appeal adverse decision, movant denied right to competent counsel);
State v. O’Grady,
No. 97,341, unpublished opinion filed June 20,2008 (limited discussion of permitting direct appeal out-of-time for resentencing under
McAdam
because of counsel’s ineffectiveness);
Pouncil v. State,
No. 98,276, unpublished opinion filed May 30, 2008;
Schale v. State,
No. 97,475, unpublished opinion filed April 11, 2008;
Guillory v. State,
285 Kan. 223, 170 P.3d 403 (2007)
(Ortiz
exceptions inapplicable to out-of-time appeal from summary denial of
A few of these cases, including at least one in each categoiy, have also discussed whether counsel for a criminal defendant was appointed or retained. See,
e.g., State v. Unruh,
39 Kan. App. 2d 125, 126-31 (appointed attorney failed to perfect and complete appeal);
State v. Irvin,
16 Kan. App. 2d at 217 (same);
State v. Berry,
No. 98,950, unpublished opinion filed September 12, 2008
(Ortiz
exceptions apply to indigent defendants, defendants who can retain counsel). The majority have not. See,
e.g., State v. Abbott,
31 Kan. App. 2d 706, 71 P.3d 1173 (2003);
State v. Bost,
21 Kan. App. 2d 560, 903 P.2d 160 (1995);
State v. Curry,
21 Kan. App. 2d 178, 897 P.2d 1053 (1995);
State v. Grant,
19 Kan. App. 2d 686, 875 P.2d 986,
rev. denied
255 Kan. 1005 (1994). Some also have focused on the court’s obligation to inform a defendant of his or her appeal rights. See
State v. Reeves,
No. 97,344, unpublished opinion filed April 25, 2008 (court obligated to inform defendant of right to appeal within 10 days, explain right to apрointed attorney);
State v. Barron,
No. 97,378, unpublished opinion filed April 11, 2008 (same);
Casner v. State,
37 Kan. App. 2d at 674 (defendant may file out-of-time appeal when court fails to inform of right to appeal). Some have focused on counsel’s obligation to advise a client. See
Scoville,
286 Kan. at 807
Relatively recent case law discussing
Ortiz
and its underpinning of fundamental fairness includes
Guillory v. State,
285 Kan. 223, in which we ruled that
Ortiz
could not be applied to allow a late appeal from denial of a
Also, in Kargus v. State, 284 Kan. 908, 169 P.3d 307 (2007), on the way to setting forth rules for when counsel must file a petition for review after denial of a direct appeal, we engaged in a full comparison of the standards applicable under (1) the second and third of the three Ortiz exceptions, which implicate adequacy of counsel’s performance; (2) the performance and prejudice prongs of Sixth Amendment ineffective assistance of counsel analysis pursuant to Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), which this court adopted in Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985), and which we have applied to allegations of constitutionally deficient representation in the course of a proceeding; and (3) Roe v. Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000), when counsel’s behavior has caused complete forfeiture of a proceeding. Kargus, 284 Kan. at 918-22.
We stated in Kargus that Kansas had never directly applied Flores-Ortega to determine whether an attorney provided ineffective assistance in failing to file an appeal. Rather, under our “somewhat different approach,” i.e., Ortiz, there could, in limited circumstances, be a “two-step process. The first step . . . focuses upon the three exceptions and is applied in every Ortiz analysis. Under the secоnd step, ‘ “A defendant properly informed of his appellate rights may not let the matter rest’ . . . and then claim that he did not waive his rights to appeal.” ’ ” Kargus, 284 Kan. at 922. We characterized this second step, necessarily applicable only when a defendant pursued a late appeal under the second or third exceptions of Ortiz, as a “type of prejudice requirement.” Kargus, 284 Kan. at 922.
We need not repeat the rest of our Kargus discussion here. Suffice it to say that the decision exposed the possibility of analytical tension and confusing overlap among Ortiz, Strickland, and Flores-Ortega. That possibility, and the rising flood of Ortiz-based arguments we observe in cases coming before our Court of Appeals and in petitions for review addressed to this court — many seeking extremely fact-specific and thus not especially useful rulings on exactly which information about direct appeal must be imparted, and by whom, and when, and on whether defendant’s oral or written statements or behavior constitute a waiver, and on what measures defense attorneys are required to take to preserve their clients’ appeal rights when there has been no specific direction from those clients — motivate us to attempt clarification and, to the extent necessary, reconciliation of the controlling and persuasive law on the permissibility of late criminal appeals in Kansas.
To begin, it is important to recognize what Ortiz did not do. It did not endow criminal defendants with any additional constitutional rights. It did not impose affirmative duties on counsel or the court. It did not set up new requirements that must be met to prevent a late appeal. Arguments based on any of these approaches twist its intention and application.
Ortiz
merely recognized the basic principle that a criminal defendant enjoys certain procedural due process protections, not only at trial or plea but also on appeal. These protections form the parameters and fill in the
We place conscious emphasis on “exceptional.” Even after Ortiz, even in the glaring light emitted by its recent superstardom, the general rule remains that timely filing of a notice of appeal is indispensable and jurisdictional.
The
Ortiz
court relied on
Brizendine v. State,
210 Kan. 241, 242-44, 499 P.2d 525 (1972). In that case, counsel had been appointed to perfect a defendant’s direct appeal from his conviction of burglary. Because of a misunderstanding, the appeal was not perfected. Defendant filed a
In so holding, this court noted that several federal courts had expressed a similar amenability to a limited exception, when ineffective assistancе of counsel had prevented filing of a timely direct appeal. See Brizendine, 210 Kan. at 244 (citing, inter alia, Kent v. United States, 423 F.2d 1050 [5th Cir. 1970]; Benoit v. Wingo, 423 F.2d 880 [6th Cir. 1970]; Atilus v. United States, 406 F.2d 694 [5th Cir. 1969]).
Ortiz specifically held that any exception to the general rule requiring a timely notice of appeal for jurisdiction was “limited.” Ortiz, 230 Kan. at 736. And it relied upon a decision of the Fifth Circuit for the idea that a defendant who had been properly informed of his or her appellate rights could not “ let the matter rest’ ” and avoid waiver. Ortiz, 230 Kan. at 736 (quoting Norris v. Wainwright, 588 F.2d 130, 137 [5th Cir. 1979] [quoting Worts v. Dutton, 395 F.2d 341, 344 (5th Cir. 1968)]). Norris had specifically stated that neither the Sixth Amendment nor the Fourteenth Amendment to the United States Constitution required the record to reflect that a defendant “made a knowing and intelligent decision not to appeal before he [or she] can be precluded from appellate review.” Ortiz, 230 Kan. at 736 (quoting Norris, 588 F.2d. at 137). Neither the State nor the court would have to demonstrate a subjective waiver, Ortiz said. Rather,
“[t]he courts only can be expected and required to show on the record that a defendant was advised of the right to appeal and that an attorney was or would have been appointed to assist the dеfendant in such an appeal. . . . [W]hen that is done, there is no further requirement that will enable a defendant to obtain a right of appeal [out-of-time] merely because he or she asserts that no knowing and intelligent decision not to appeal was made.” 230 Kan. at 736.
Ortiz did not apply the “exception recognized in Brizendine” to defendant Celestino Ortiz in that case. After conviction and sentencing, Ortiz signed a written waiver of his right to appeal. He had been provided with an attorney and an interpreter before doing so, and the waiver recited that it had been read and explained to him before signature. Our opinion concluded: “No lack of fundamental fairness is shown which would justify authorizing an appeal [out-of-time] at this late date.” Ortiz, 230 Kan. at 736-37.
Our syllabus in
Ortiz
repeated that the limited exceptions to the requirement of timely notice to support appellate jurisdiction existed “in the interest of fundamental fairness,” invoking a due process rather than a Sixth Amendment right to counsel concept. See
Ortiz,
230 Kan. 733, Syl. ¶ 3; see also
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 (here, procedural due process) but in the Sixth Amendment right to counsel. The first of the exceptions—
applicable when a defendant was not informed of
First Ortiz Exception
A criminal defendant may qualify to take a late appeal under the first Ortiz exception if he or she has been denied basic procedural due process, i.e., timеly and reasonable notice and an opportunity to be heard. See State v. Willingham, 226 Kan. 98, 100-01, 967 P.2d 1079 (1998); State v. Reeves, No. 97,344, unpublished opinion filed April 25,2008; State v. Barron, No. 97,378, unpublished opinion filed April 11, 2008; Casner v. State, 37 Kan. App. 2d 667, 674, 155 P.3d 1202 (2007).
Three Kansas statutes provide specific procedural safeguards of the right to appeal by certain criminal defendants. First,
Due process is denied — and an out-of-time appeal may be permissible under the first
Ortiz
exception — -if a district judge fails to abide by one of these statutes, as they have been interpreted by our earlier case law. Thus a district judge must inform a criminal defendant at sentencing, regardless of whether the defendant has entered a plea or gone to trial, that: (1) a right to appeal the severity level of the sentence exists; (2) any such appeal must be taken within 10 days (see
Phinney,
280 Kan. at 400;
Willingham,
266 Kan. at 100-01 [citing
Mitchell,
231 Kan. at 146]); and (3) if the defendant is indigent, an attorney will be appointed for the purpose of taking any desired appeal. Compare
The evidentiary burden of showing that the district judge failed to communicate one or more of these three pieces of information at sentencing is on the defendant, who must demonstratе deficiency from the transcript of the sentencing hearing. Based on analogous United States Supreme Court decisions, we are confident that this allocation of the evidentiary burden does not offend due process.
In
Medina v. California,
505 U.S. 437, 120 L. Ed. 2d 353, 112 S. Ct. 2572 (1992), the United States Supreme Court held that, while the criminal trial of an incompetent defendant would violate due process, there was no due process violation in a statutory presumption of competence, which placed the burden on defendant to prove his or her incompetence by a preponderance of the evidence. In so holding, the
Medina
Court recognized that the traditional balancing test of
Mathews v. Eldridge,
424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), that applied to procedural due process claims in civil cases, did not provide an appropriate framework for assessing the validity of state procedural rules in
The issue in Patterson was whether defendant’s conviction of second-degree murder under a New York statute deprived him of due process by placing on him the burden to prove, by a prepon derance of the evidence, the affirmative defense of acting under the influence of extreme emotional distress, in order to reduce the crime to manslaughter in the first degree. The Court held it did not. Patterson, 432 U.S. at 209-10. In particular, the Patterson decision held that the power of a State to regulate procedures for carrying out criminal laws, including the burden of producing evidence, “is not subject to proscription under the Due Process Clause unless it ‘offends some principle of justice so rooted in the traditions and conscience of our people so as to be ranked as fundamental/ ” Patterson, 432 U.S. at 201-02; see Medina, 505 U.S. at 445.
The high Court’s rationale underlying this “less intrusive” inquiry into due process concerns in criminal cases is that many aspects of criminal procedure are already defined by specific guarantees of the United States Constitution Bill of Bights, and that, beyond those, the Due Process Clause has limited operation. See Medina, 505 U.S. at 443 (citing, e.g., Dowling v. United States, 493 U.S. 342, 352, 107 L. Ed. 2d 708, 110 S. Ct. 668 [1990]). Although we have not previously adopted the “less intrusive” due process analysis set out in Medina for criminal cases, we have acknowledged or relied upon other asрects of that decision. See State v. Davis, 281 Kan. 169, 176, 130 P.3d 69 (2006) (citing Medina for State v. McKinney, 265 Kan. 104, 107, 961 P.2d 1 (1998) Medina in holding Kansas’ competency statutes, presuming competence and implicitly requiring defendant to prove incompetence by preponderance of the evidence, do not violate due process); State v. Cellier, 263 Kan. 54, 948 P.2d 616 (1997) (same).
When the applicability of the first Ortiz exception is in issue, if the defendant discharges the burden of demonstrating from the sentencing hearing transcript that the district judge failed to communicate one or more of the three required pieces of information, the State still may prevent a late appeal by proving that the defendant possessed actual knowledge of all of the required information by some means other than the district judge’s oral statements at sentencing. The source of such actual knowledge may be counsel’s advice, the wording of an agreement signed by the de fendant, or some other person or document; but the State bears the evidentiary burden on this point.
If the sentencing hearing transcript demonstrates that the district judge did not adequately inform the defendant orally, and the State is unable to demonstrate that the defendant had actual knowledge of the required information from some other source, the defendant must then prove that, had he or she been properly informed, a timely appeal would have been sought. This evidentiary burden rests on the defendant. This requirement for application of the first Ortiz exception is consistent with this court’s original admonition that a defendant may not “let the matter rest” and with our previous decisions. See Phinney, 280 Kan. at 405-06; Mitchell, 231 Kan. at 147. In addition, we believe it is true to United States Supreme Court precedent. See Peguero v. United States, 526 U.S. 23, 24, 143 L. Ed. 2d 18, 119 S. Ct. 961 (1999) (relief from sentencing court’s error in failing to inform defendant of appeal right requires showing of prejudice); Cody v. United States, 249 F.3d 47, 52 (1st Cir. 2001); Soto v. United States, 185 F.3d 48, 55 (2d Cir. 1999).
Second Ortiz Exception
As stated above, the Sixth Amendment right to counsel informs the second
Ortiz
exception, which focuses on whether the defendant has been provided counsel. Read literally, the second exception would apply only to those defendants for whom appointed counsel is provided at public expense,
i.e.,
those who are indigent at the
However, not all of our Ortiz cases appear to have read the exception so narrowly. Compare Phinney, 280 Kan. at 405-06, with Ortiz, 230 Kan. at 735-36, and Brizendine, 210 Kan. at 243. Indeed, although most cases in this area have involved indigent defendants, see, e.g., Phinney, 280 Kan. 394; Willingham, 266 Kan. at 98; Ortiz, 230 Kan. at 733; Brizendine, 210 Kan. 241; State v. Singleton, 33 Kan. App. 2d 478, 104 P.3d 424 (2005); some have not, Bryant v. State, 280 Kan. 2, 118 P.3d 685 (2005); and the difference has been of no significance.
We rectify this anomaly now by stating that the second Ortiz exception applies only to defendants who were indigent when they desired to take a timely appeal. A defendant who had appointed counsel at the district court level is entitled to have counsel appointed for the purpose of appeal; either district court counsel may continue representation, or new counsel must be appointed. A defendant who, on the other hand, had the resources to retain counsel at the district court level and had been advised by the court of the right to be appointed counsel will be assumed to have the resources to retain counsel for any desired appeal as well, unless he or she informs the sentencing judge that the situation is otherwise. Ortiz did not create additional constitutional rights, and it did not create a common-law right to appointed appellate counsel for those who can afford to retain a lawyer. If proceedings through sentencing have exhausted a given defendant’s resources to retain an attorney to handle an appeal, the defendant must make a timely motion for appointment of counsel for appeal. If the defendant fails to seek such an appointment, then he or she cannot later complain that counsel was not furnished to facilitate timely filing of a notice of appeal under the second Ortiz exception.
Further, to pursue a late appeal under the second Ortiz exception, the defendant bears the evidentiary burden of demonstrating that he or she was in need of appointed counsel to pursue an appeal and that no such counsel was appointed, despite a timely request. The defendant must also demonstrate that, had counsel been made available, he or she would have instructed counsel to file the appeal.
Third Ortiz Exception
The third Ortiz exception allows a late appeal if a defendant was furnished an attorney for the purpose of an appeal but the attorney faded to perform. Again, read literally, the use of the word “furnished” could apply only to counsel appointed for an indigent defendant at public expense. However, read sensibly, this third exception, in contrast to the second exception, does not focus on whether a lawyer has been assigned to a case through any particular mechanism; it focuses on whether that lawyer performs up to a minimum constitutional standard once that assignment is made. Thus we hold that the third Ortiz exception may apply to retained counsel as well as appointed counsel. A defendant who hires private counsel “furnishes” his or her own lawyer.
Furthermore, we hold that the standard of performance to be applied to measure the adequacy of appellate counsel under the third Ortiz exception is that found in Roe v. Flores-Ortega, 528 U.S. 470, 470-72, 145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000). That case distinguishes between situations in which counsel’s performance in the course of a proceeding is alleged to be deficient and those cases in which counsel’s performance or failure to perform leads to forfeiture of a proceeding. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), governs the former and Flores-Ortega the latter. See Flores-Ortega, 528 U.S. at 476-86.
We have long employed
Strickland
to judge whether a criminal defendant received ineffective assistance of counsel under the Sixth Amendment in the course of a criminal proceeding in the district court. See
Chamberlain
v.
State,
236 Kan. 650, 656, 694 P.2d 468 (1985) (adopting and applying
Strickland
two-part standard). Under that standard, before counsel’s assistance is determined to
The situation contemplated by the third Ortiz exception is different, involving as it does the complete destruction of the right to pursue a direct аppeal through counsel’s failure to file a timely notice or otherwise protect his or her client’s right. As recognized in Flores-Ortega, where appointed counsel said he or she would file a notice of appeal on behalf of the defendant but failed to do so, no “presumption of reliability” can be afforded a “proceeding . . . that never took place.” Thus, the two-part Strickland deficiency-plus-prejudice analysis must bend.
Under Flores-Ortega, if appointed or retained counsel has failed to file or perfect a direct appeal by a criminal defendant, we will presume the existence of prejudice. This is not, however, the same as a finding of prejudice per se, requiring application of the third Ortiz exception. The defendant must still demonstrate that, but for counsel’s failure, he or she would have taken a timely direct appeal. The defendant need not show, as he or she would have had to show if we were using the Strickland standard as our benchmark, that such a timely direct appeal would have been successful. Compare Peguero, 526 U.S. at 30-31 (O’Connor, J., concurring).
Application of Ortiz Exceptions to Patton
In this case, Pаtton was informed of his right to appeal his sentence, although the district judge’s misstatement of Kansas law meant he may have been misled about the issues that would be appropriate for appellate consideration. Patton had retained counsel who clearly understood that any appeal would be counsel’s responsibility to perfect and otherwise pursue, and Patton expressed his desire to have an appeal filed.
This situation calls for application of the third Ortiz exception. Patton should be permitted to file a late direct appeal. The undisputed testimony in the record before us is that Patton did not “let the matter rest.” He attempted to ensure that his lawyer would protect his appeal rights. Had the lawyer followed Patton’s instructions, Patton would have been entitled to resentencing under McAdam.
One final note on general applicability of the Ortiz exceptions bears mention: The rules we have outlined in this opinion shall be applied to all cases not yet final on direct appeal and those to be appealed in the future. See State v. Gould, 271 Kan. 394, 414, 23 P.3d 801 (2001).
Effect of Waiver Language in Plea Agreement
We now аddress the substance of the State’s-argument that, regardless of the applicability of any of the Ortiz exceptions, Patton waived his right to appeal his sentence when he signed his written plea agreement.
A defendant who pleads guilty may still challenge the sentence imposed in some circumstances. State v. Phinney, 280 Kan. 394, 398, 122 P.3d 356 (2005). However, a “knowing and voluntary waiver by the defendant of his statutory right to appeal is generally enforceable.” State v. Campbell, 273 Kan. 414, 424-25, 44 P.3d 349 (2002) (citing United States v. Hernandez, 134 F.3d 1435, 1437 [10th Cir. 1998]).
In Campbell, defendant Kenyon Campbell bargained with the State for a reduced sentence in exchange for his cooperation, testimony against another individual, and a waiver of his “right to appeal the verdict against him.” 273 Kan. at 425. In his direct appeal, Campbell challenged both his convictions and sentence. The court entertained Campbell’s challenge to his sentence but held that Campbell had knowingly and voluntarily waived his right to appeal his convictions when he entered into the sentencing agreement with the State.
“[T]lie State bore the risk that Boley would appeal his sentence. The prosecutor could have protected against this risk by including a provision in the plea agreement requiring the defendant to waive his right to appeal or indicating that if the defendant successfully challenged his sentence, such action would be considered a breach of the agreement.” Boley, 279 Kan. at 997.
In this case, again, the plеa agreement stated that Patton waived “his right to appeal” and that he had read and understood an attached and incorporated “Waiver of Rights form.” We do not have the Waiver of Rights form in the record on appeal, so it can add nothing to our understanding of Patton’s intent in signing the plea agreement. The waiver language in the agreement is general. Although, given its timing and other content, it must refer to appeal of Patton’s two convictions, it need not be understood as specifically addressing his sentence for either offense, neither of which, of course, had yet been handed down.
In addition, the record shows that, when sentencing did occur, the district judge told Patton he had a right to appeal any of the judge’s rulings or findings. The sentencing transcript demonstrates irrefutably that the judge told Patton his right to appeal remained intact, at least, incorrectly, as to denial of a downward dispositional departure, on which the waiver in the plea agreement had no bearing. The judge said that, if the plea agreement waiver was to concern “such issues,” it should have stated that it “applied to all issues involved at sentencing.”
Moreover, to the extent the immediately subsequent behavior of the defendant is revealing of his understanding of what he had waived and what he had not waived at the time of his plea and/or sentencing, there is no dispute that Patton attempted to appeal his sentence within 10 days. In other words, it is apparent he believed he would not be prevented from doing so. Counsel was on the same page. He would not have inquired of Patton’s mother about her son’s desire to appeal if counsel believed no right of appeal existed. See State v. Harmon, 243 S.W.2d 326, 330 (Mo. 1951) (appellate court should not hold criminal defendant waived right to appeal unless record, acts of defendant, all circumstances inconsistent with any other interpretation).
Furthermore, Patton is correct that the decisions relied upon by the Court of Appeals to dismiss his late appeal here actuаlly support him. Those decisions involved defendants who had explicitly and unambiguously waived the particular appeal right they later sought to exercise. In Ortiz itself, the defendant had signed an explicit written waiver of his right to appeal his sentence, disqualifying himself from application of any of the exceptions permitting late appeals laid out in his case. Ortiz, 230 Kan. at 734; see also Campbell, 273 Kan. at 425 (defendant’s plea agreement specifically stated “[defendant] waives any right to appeal the verdict against him”); State v. Willingham, 266 Kan. 98, 101, 967 P.2d 1079 (1998) (in dicta, the court commented that the defendant may not have been granted the ability to file an out-of-time appeal if he had signed a written waiver of his right to appeal).
The Tenth Circuit and sister jurisdictions also have recognized the need to tread carefully when courts are asked to hold that a criminal defendant waived his or her right to appeal a sentence. See
United States v. Hahn,
359 F.3d 1315, 1325-28 (10th Cir. 2004) (rejecting suggestion that presentencing waiver of appellate rights can never be enforceable, but noting defendаnt who waives right to appeal does not subject himself or
As the district court suggested in this case, it is not too onerous a burden to require the State to be explicit about the terms it requires in plea agreements. The State was not explicit about a waiver of appeal of sentence in this case. The agreement’s general waiver language is, at best, ambiguous about the availability of any appeal of the sentences yet to come. We have previously stated: “Where a statute is ambiguous, we require that it be strictly construed in favor of the accused. [Citation omitted.] We find no compelling reason to adopt a different rule in interpreting ambiguous plea agreements.” State v. Wills, 244 Kan. 62, 69, 765 P.2d 1114 (1988); see also United States v. Chavez-Salais, 337 F.3d 1170, 1173 (10th Cir. 2003) (court will not enforce waivers of appellate rights beyond scope of plea agreement; “[l]ike most waivers, a defendant’s waiver of his right to appeal . . . is to be construed narrowly”); United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (in determining waiver’s scope, “any ambiguities in . . . agreements will be read against the Government and in favor of a defendant’s appellate rights”).
Conclusion
Because Patton qualifies for application of the third Ortiz exception—he was furnished an attorney who failed to perfect his direct appeal—and because the waiver in his plea agreement did not address appeals from sentencing, the Court of Appeals erred in dismissing his late appeal.
The judgment of the district court allowing defendant’s late appeal is therefore affirmed. The decision of the Court of Appeals dismissing defendant’s late appeal is reversed; and the case is remanded to the Court of Appeals for further proceedings consistent with the opinion of this court.
NUSS, J., not participating. Buser, J., assigned.