Opinion
No. 110,693.
2014-10-31
STATE of Kansas, Appellee, v. James Thomas BROWN V, Appellant.
Appeal from Cowley District Court; Nicholas M. St. Peter, Judge.Heather Cessna, of Kansas Appellate Defender Office, for appellant.Christopher E. Smith, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Cowley District Court; Nicholas M. St. Peter, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Christopher E. Smith, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and DANIEL L. LOVE, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Among other charges, James Thomas Brown V was convicted of possession of anhydrous ammonia with intent to manufacture a controlled substance, a severity level 2 felony, and possession of drug paraphernalia with intent to manufacture a controlled substance, a severity level 4 felony. He did not file an appeal. Two years later, the Kansas Supreme Court held, under similar-though not identical-facts, that because the elements of these two offenses are identical, a defendant convicted of both can only be sentenced to the lesser sentence of the severity level 4 felony. State v. Snellings, 294 Kan. 149, 158–59, 273 P.3d 739 (2012). Two months after Snellings was decided, in hopes of receiving the benefit of the rule announced in Snellings, Brown filed a motion with the district court to allow him to file a notice of appeal out of time pursuant to State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). The district court denied the motion, finding that none of the three exceptions that the Ortiz court indicated would justify an untimely appeal applied in this case. Because we find that there was substantial competent evidence to support the district court's legal conclusion, we affirm.
Factual and Procedural Background
Brown pleaded guilty to and was convicted of possession of anhydrous ammonia with intent to manufacture a controlled substance, a severity level 2 felony; possession of drug paraphernalia, a severity level 4 felony; and possession of drug paraphernalia with intent to manufacture a controlled substance, a severity level 4 felony. The district court sentenced Brown to a total of 95 months' imprisonment.
On March 29, 2010, at the sentencing hearing, the court made the following comments pertaining to Brown's right to appeal:
“The Court will advise that you have a right to appeal the sentence that I've imposed on this date. If you wish to appeal, you must file a Notice of Appeal with the Clerk of the District Court of Cowley County, Kansas, within 10 days of today's date. Failure to file a Notice of Appeal would result in an absolute waiver of that right. In the event you cannot afford an attorney to prosecute that appeal, an attorney would be appointed for you.”
On April 25, 2012, Brown filed a pro se motion to correct an illegal sentence, arguing that because the elements of possession of anhydrous ammonia, a severity level 2 felony, and possession of drug paraphernalia with intent to manufacture, a severity level 4 felony, are identical, his conviction for possession of anhydrous ammonia should have been assigned a severity level 4 because of the identical offense sentencing doctrine as laid out in Snellings, 294 Kan. at 151–52.
Later, Brown's original trial attorney filed a motion asking the district court to allow Brown to file a direct appeal out of time in order to raise his issue pertaining to the identical offense sentencing doctrine.
A full evidentiary hearing was held where both Brown and his trial attorney testified about the circumstances surrounding their discussions on Brown's right to appeal. The district court determined that none of the exceptions allowing for an appeal out of time, as set out in Oritz, applied in Brown's case and denied his motion.
Brown filed a timely notice of appeal from that ruling.
Analysis
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). Pursuant to K.S.A. 22–3608(c), Brown had 10 days from March 29, 2010, which was the date of his sentencing, to timely file his notice of appeal. However, Brown never filed a notice of appeal.
A limited exception to this general rule is recognized in the interest of fundamental fairness only in those cases where an indigent defendant: (1) was not informed of the rights to appeal; (2) was not furnished an attorney to perfect an appeal; or (3) was furnished an attorney for that purpose who failed to perfect and complete an appeal. Ortiz, 230 Kan. 733, Syl. ¶ 3. These are commonly known as the “ Ortiz exceptions.”
Brown contends that the district court erred when it denied his motion to file his direct appeal out of time, arguing that he was not properly informed of his right to appeal the severity level of his sentence and that his attorney failed to perfect and complete his appeal.
“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).
On appeal, Brown argues that the first and third Ortiz exceptions apply to his case, so we will examine each. We decline to consider the application of the first Ortiz exception because Brown conceded in the district court that it did not apply and he fails to assert why we should consider the issue for the first time on appeal.
Brown argues that under State v. Patton, 287 Kan. 200, 195 P.3d 753 (2008), the district court was required, at the time of sentencing, to specifically inform Brown of his right to appeal the severity level of his sentences. By the court failing to do so, Brown was not properly informed of his right to appeal.
But contrary to his assertion on appeal, Brown's attorney conceded at the evidentiary hearing that the first Ortiz exception did not apply. In fact his attorney specifically stated, “That prong doesn't apply.” There is nothing in the record indicating that Brown ever discussed or relied on Patton to assert that the first Ortiz exception applied to his case. Even if we were to assume-without finding-that it was error for the district court to find that this exception did not apply, it was clearly invited error. A party may not invite or prompt error in a case and then complain of that error as a ground for reversing an adverse judgment. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011).
Moreover, generally issues not raised before the district court cannot be raised for the first time on appeal. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). Although the first Ortiz exception implicates a constitutional procedural due process claim, even constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012); Pattern, 287 Kan. 200, Syl. ¶ 4. Although there are limited exceptions to this rule, Brown does not argue that any of those exceptions apply here. See State v. Anderson, 294 Kan. 450, 464–65, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012) (outlining exceptions when constitutional grounds for reversal are asserted for the first time on appeal). The reason for such a rule is to allow the trial court the opportunity to fully consider the issue and the parties to properly argue the issue and develop the necessary record for appellate review. For example, if an issue is not raised before the district court, the party against whom the new claim is being asserted would not be alerted to the fact that additional evidence may be necessary to support his or her position.
Brown failed to present this new legal theory to the district court and has failed to indicate why this issue should be considered even though it was not raised below. See Supreme Court Rule 6.02(a)(5) (2013 Kan. Ct. R. Annot. 39) (requiring appellant to explain why an issue that was not raised below should be considered for the first time on appeal). Litigants who fail to comply with this rule risk a ruling that the issue is improperly briefed and will be deemed waived or abandoned. State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014) (cautioning future litigants to comply with rule).
Because Brown conceded before the district court that the first Ortiz exception did not apply and then fails to explain why this court should consider its application for the first time on appeal, we find the issue is not properly preserved and decline to consider it. There was substantial competent evidence to support the district court's finding that the third Ortiz exception did not apply.
The third exception to the general rule requiring a timely direct appeal from a conviction and/or sentence exists if the defendant was furnished an attorney for that purpose who failed to perfect and complete an appeal. State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008). Brown argues that the district court erred when it determined that the third Ortiz exception did not apply because his trial attorney did not recall the specifics of the discussion pertaining to Brown's right to appeal and he never obtained a written waiver of appeal from Brown.
Brown's trial attorney testified that he probably talked to Brown after sentencing about his right to appeal but could not recall what the conversation was about and he was sure that he had not discussed the possibility of appealing the assigned severity levels of Brown's convictions. In addition, Brown never indicated one way or the other whether he wanted to appeal.
Brown testified that his trial attorney never discussed his right to appeal after he was sentenced. Brown also testified that he never specifically told his trial attorney to file a notice of appeal but assumed that his attorney was taking care of any of the necessary details.
The district court found that Brown and his trial attorney briefly discussed the prospect of an appeal and Brown never directed his trial attorney to file an appeal. Thus, the district court determined that the third exception did not apply in Brown's case. The district court's factual findings were supported by substantial competent evidence based on both Brown's and his attorney's testimony at the evidentiary hearing. That factual finding correctly led the district court to find that the third Ortiz exception did not apply here.
Brown also asserts that his trial attorney should have obtained a written waiver of appeal from Brown as required by K.A.R. 105–3–9(a)(3). However, with respect to a defendant's right to appeal, “[ Ortiz ] d[oes] not impose affirmative duties on counsel or the court.” Patton, 287 Kan. at 217. 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).
The decision of the district court denying Brown relief under Ortiz is affirmed.