Opinion
No. 110,625.
2014-11-21
STATE of Kansas, Appellee, v. Jeremy CARROLL, Appellant.
Appeal from Riley District Court; Meryl D. Wilson, Judge.Heather Cessna, of Kansas Appellate Defender Office, for appellant.Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Riley District Court; Meryl D. Wilson, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., LEBEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
POWELL, J.
Jeremy Carroll appeals from the district court's denial of his motion to file an out of time appeal and his motion to withdraw plea. Carroll contends he can file an out of time appeal under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), because his attorney failed to file a sentencing appeal after Carroll directed her to do so. Additionally, Carroll argues he can withdraw his plea because he was unaware he would be subject to lifetime postrelease supervision as a consequence of his plea agreement. Because we find the district court failed to conduct an evidentiary hearing on whether Carroll instructed his attorney to file an appeal and on whether Carroll would have entered into his plea agreement knowing the crime to which he was pleading required lifetime postrelease supervision, we reverse and remand for further proceedings.
Facts
Carroll pled no contest to the crime of sexual exploitation of a child after admitting he possessed and accessed child pornography on his computer. The record shows the district court never explicitly told Carroll at his plea hearing he would be subject to lifetime postrelease supervision. Carroll was sentenced to 31 months in prison and lifetime postrelease supervision.
Approximately 1 year later, Carroll filed a pro se motion seeking to appeal his sentence, claiming his attorney had not timely filed his appeal as he had originally requested. The district court, however, treated Carroll's motion as one to withdraw his plea. The court appointed new counsel to represent Carroll and ordered both parties to brief the issue of whether Carroll could withdraw his plea.
Ultimately, the district court denied Carroll's motion for an out of time appeal because Carroll received a presumptive sentence that itself was not appealable. The district court also summarily denied Carroll's motion to withdraw his plea without an evidentiary hearing.
Carroll timely appeals.
Did the District Court Err by Denying Carroll's Motion to File an Out of Time Appeal from Sentencing Without Conducting an Evidentiary Hearing?
First, Carroll argues the district court erred when it failed to make an Ortiz finding when answering whether Carroll should be permitted to file an out of time appeal. Whether this court has jurisdiction to hear an out of time appeal is a question of law subject to unlimited review. State v. Patton, 287 Kan. 200, 205–06, 195 P.3d 753 (2008).
Under Ortiz, appeals taken after the 14–day time limit 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.” Patton, 287 Kan. at 206 (citing Ortiz, 230 Kan. at 735–36). Carroll alleges his out of time appeal is appropriate because his attorney failed to file an appeal of his sentence despite Carroll's request that she do so. Further, Carroll argues the district court erred when it focused on the question of whether Carroll's appeal would ultimately prove successful rather than whether Carroll fit into one of the Ortiz exceptions. We agree.
The district court treated Carroll's pro se motion to file an appeal out of time as one to withdraw his plea. However, treating Carroll's motion in this manner shifted the determination from whether Carroll's attorney had failed to perfect his appeal under Ortiz and instead focused on Carroll's inability to obtain relief on appeal because his original sentence was a presumptive one. As Carroll rightly points out, another panel of this court contemplated this exact circumstance:
“A district court may not avoid making an Ortiz determination based upon that court's predilection of both the potential bases and outcome of any conceivable appeal. Ortiz establishes an exception to the jurisdictional aspect of filing a timely notice of appeal. Our appellate courts have consistently stated that where the narrow exceptional circumstances outlined by Ortiz are met, the appeal must be permitted to proceed out of time.” Fowler v. State, 37 Kan.App.2d 477, 482, 154 P.3d 550 (2007).
Therefore, we must conclude the district court erred in reassigning Carroll's motion as a motion to withdraw a plea and analyzed the wrong question.
In an effort to avoid this result, the State argues “in the interest of judicial economy” that we should bypass ordering a factual finding under Ortiz and exercise our discretion to resolve Carroll's direct appeal issue now. However, this argument ignores Fowler, and we note our Supreme Court recently held the imposition of lifetime postrelease supervision is not included in the presumptive sentence and is therefore open to appellate review. State v. Williams, 298 Kan. 1075, 1080–81, 319 P.3d 528 (2014).
The district court should have held an evidentiary hearing to determine whether Carroll fit into one of the Ortiz exceptions. Thus, a remand for an evidentiary hearing is required.
Did the District Court Abuse its Discretion by Denying Carroll's Motion to Withdraw Plea Without Conducting an Evidentiary Hearing?
Carroll next argues the district court abused its discretion by denying his motion to withdraw plea without first conducting an evidentiary hearing to put to rest a factual question in dispute. Carroll claims neither the district court nor his attorney ever informed him that he would be subject to lifetime postrelease supervision as a result of accepting his plea. He further alleges this lack of information rendered his plea unknowing and involuntary.
We review a district court's decision to deny a postsentence motion to withdraw a plea under an abuse of discretion standard. State v. Bricker, 292 Kan. 239, 244, 252 P.3d 118(2011).
K.S.A.2013 Supp. 22–3210(d)(2) would allow Carroll to withdraw his plea if he were indeed unaware that lifetime postrelease supervision was a consequence of his plea, so long as doing so would “correct manifest injustice.” One of the factors a trial court should consider in determining whether manifest injustice has occurred is whether the plea was fairly and understandingly made. Bricker, 292 Kan. at 244 (citing State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 [2006] ).
It appears from the record that the district court may not have been concerned with whether Carroll was made aware of the lifetime postrelease supervision term; in its order denying Carroll's motion, the district court simply cited K.S.A.2013 Supp. 21–6804(e)(2)(C); “Failure to pronounce the period of postrelease supervision shall not negate the existence of such period of postrelease supervision.” The State argues the district court's reliance on this statute precludes any manifest injustice.
The State also relies on State v. Barahona, 35 Kan.App.2d 605, 132 P.3d 959, rev. denied 282 Kan. 791 (2006), where the defendant similarly sought to withdraw his plea because he was unaware of the inclusion of a 24–month period of postrelease supervision. There too the record was silent with respect to the defendant's postrelease supervision. The defendant pled to a lesser offense and received a much shorter prison sentence accompanied by the 24–month supervision period. The court ultimately determined the defendant's due process rights were not infringed because he did not demonstrate a probability that, but for his ignorance of the postrelease supervision period, he would have proceeded to trial instead of entering the plea. 35 Kan.App.2d at 615.
Here, however, Carroll did not plead to a lesser offense and, more significantly, was subjected to lifetime postrelease supervision as a result of his plea. Mandatory lifetime postrelease supervision is a heavy burden and may have affected Carroll's decision with respect to his plea agreement had he been aware of it. Whether Carroll was actually aware of the accompanying lifetime postrelease supervision is a factual question in dispute. Therefore, we remand this case to the district court to conduct an evidentiary hearing on this point.
Reversed and remanded.