Opinion
111,152 111,153.
04-24-2015
STATE of Kansas, Appellee, v. James M. BARRERA, Appellant.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Charles F. Moser, county attorney, and Derek Schmidt, attorney general, for appellee.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Charles F. Moser, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
James M. Barrera appeals from the district court's decision to deny his request to file a late appeal pursuant to State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). Barrera contends he is entitled to file an untimely appeal because his attorney failed to file a sentencing appeal after being directed to do so.
Facts
Pursuant to a 2012 plea agreement with the State, Barrera pled guilty to and was convicted of one count each of unlawful distribution of a controlled substance and distribution of a controlled substance using a communication facility in case number 11–CR–157. Barrera also pled guilty to and was convicted of identical charges in case number 11–CR–160. The district court ordered the sentences in both cases to run consecutively and sentenced Barrera to a controlling prison term of 112 months.
Barrera filed an untimely notice of appeal in each case, which this court dismissed. The Kansas Supreme Court granted Barrera's petition for review and remanded the cases to the district court for an evidentiary hearing to determine if an Ortiz exception applied to allow Barrera's untimely appeal.
At the evidentiary hearing, the district court heard testimony from Barrera and his trial counsel, Jeffery Mason. Barrera testified that the district court had informed him of his right to appeal his sentence but that Mason never discussed his appeal rights either before or after sentencing. Barrera claimed that Mason would not accept his collect calls, so he asked his mother to contact Mason about filing a notice of appeal. Barrera acknowledged that he did not directly ask Mason to file a notice of appeal.
Mason testified that in his more than 30 years of experience, he had a standard practice of advising his clients of their appeal rights and that he would continue to represent them should they wish to file an appeal. Mason testified that he followed this practice with Barrera and that they discussed Barrera's right to appeal his sentence during the plea process and after sentencing. Mason stated that when he met with Barrera immediately after sentencing, Barrera indicated that he did not want to file an appeal. Mason claimed that his records showed no evidence of Barrera ever contacting him thereafter to file an appeal. To the contrary, Mason testified that shortly after sentencing, he attempted to send the journal entry of sentencing to Barrera at the jail but it was returned to Mason after Barrera refused receipt. Mason admitted that Barrera's mother contacted him twice shortly after the sentencing hearing but stated that she did not request or discuss an appeal on either occasion. According to Mason, Barrera's mother contacted him 3 days after sentencing to discuss a problem Barrera was having with the jail commissary and she contacted him 6 days after sentencing to request Barrera's release from jail for a family funeral. Mason stated that 60 to 90 days after sentencing, Barrera's mother left a phone message for him about an appeal. Mason further stated that if Barrera or his mother had timely requested an appeal, he would have noted this in his records, met with Barrera, and immediately commenced the appeal process.
At the conclusion of the hearing, the district court denied Barrera's request to file a notice of appeal out of time, finding that he did not meet any of the exceptions outlined in Ortiz. Barrera filed a timely notice of appeal from that ruling.
Analysis
Barrera argues that the district court erred in denying him the right to file a belated appeal under the exceptions recognized in Ortiz. “The facts underlying an Ortiz exception ruling should be examined on appeal under a substantial competent evidence standard of review. The ultimate legal determination of whether those facts fit the exception should be reviewed under a de novo standard.” State v. Phinney, 280 Kan. 394, 404, 122 P.3d 356 (2005). Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012).
The right to appeal is statutory, and an appellate court only has jurisdiction to entertain an appeal if it is taken in the manner prescribed by statutes. State v. J.D.H., 48 Kan.App.2d 454, 458, 294 P.3d 343, rev. denied 297 Kan. 1251 (2013). Under Ortiz, appeals taken after the 14–day time limit set forth in K.S.A.2014 Supp. 22–3608(c) are allowed “if a defendant (1) had not been informed of his or her right to appeal, (2) had not been furnished an attorney to perfect an appeal, or (3) had been furnished an attorney who failed to perfect an appeal.” State v. Patton, 287 Kan. 200, 206, 195 P.3d 753 (2008) (citing Ortiz, 230 Kan. at 735–36 ). A criminal defendant bears the burden of establishing the applicability of an Ortiz exception. See State v. Singleton, 33 Kan.App.2d 478, 487, 104 P.3d 424 (2005).
There is no dispute that Barrera was informed of his right to appeal and was furnished with an attorney to exercise that right. Thus, only the third Ortiz exception is at issue in this case—whether Barrera's attorney failed to perfect his appeal.
Barrera claims that although he may not have directly communicated to Mason his desire to appeal his sentence, the circumstances after sentencing should have prompted Mason to question whether Barrera wanted to appeal his sentence. Specifically, Barrera contends that Mason should have obtained a written waiver of appeal from him pursuant to K.A.R. 105–3–9(a)(3). Although a written waiver may be relevant in making an Ortiz determination, the lack of a waiver is not determinative of the issue. See State v. Willingham, 266 Kan. 98, 100–01, 967 P.2d 1079 (1998). Here, Barrera failed to present any evidence whatsoever that he or his mother timely instructed Mason to file an appeal on his behalf. Barrera admitted that he did not ever directly ask Mason to file an appeal. And although Barrera alleges he asked his mother to contact Mason about filing an appeal, Barrera could not specify when his mother actually contacted Mason about the appeal. Significantly, Barrera did not call his mother to testify at the Ortiz hearing. Mason, however, testified that Barrera's mother did not request that he file an appeal until 60 to 90 days after sentencing. Moreover, Mason testified that when he spoke with Barrera immediately after sentencing, Barrera indicated that he did not want to file an appeal.
Because Barrera failed to meet his burden under the third Ortiz exception, there is substantial competent evidence to support the district court's denial of Barrera's request to file a late appeal.
Affirmed.