Opinion
No. 106,165.
2012-08-10
STATE of Kansas, Appellee, v. James E. GARY, Appellant.
Appeal from Sedgwick District Court, Clark V. Owens, II, Judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court, Clark V. Owens, II, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
This case is the companion to Case No. 106,185. The analysis we provide in this opinion applies equally in Case No. 106,185. Here, James E. Gary appeals the district court's determination that there is no exception under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), that permits him to pursue a direct appeal out of time.
Gary was convicted of aggravated assault and multiple counts of criminal possession of a firearm. Gary filed an untimely pro se notice of appeal, which was dismissed. On remand from this court, the district court held a hearing to determine whether the facts surrounding Gary's untimely notice of appeal satisfied one of the exceptions found in Ortiz.
David Leon, Gary's defense attorney, testified at the Ortiz hearing. He testified that Gary and the State entered into a plea agreement pursuant to which Gary would plead guilty in exchange for the State recommending probation. But after Gary's plea and before sentencing, Gary violated his bond provisions and then failed to appear at sentencing. When sentencing finally occurred, the court denied probation and sent Gary to prison.
After sentencing, Leon told Gary that he would see if there was a basis for an appeal. Leon said that he told Gary he would send a letter with his opinion. He told Gary that if Gary wanted to appeal, he should send Leon a letter directing him to file a notice of appeal. In Leon's subsequent letter to Gary, he said that he did not see a basis for an appeal. Neither Gary nor his family contacted Leon thereafter to indicate that Gary wanted to pursue an appeal.
To the contrary, Gary testified that he told Leon at the outset that he wanted to appeal. He did not respond to Leon's letter because he did not think he needed to do so. Gary decided to appeal on his own. When he did so, his notice of appeal was out of time.
The district court found Leon's testimony more credible than that of Gary and denied relief because Gary failed to communicate to Leon his desire to appeal. Gary appeals.
In Ortiz, our Supreme Court stated that there are three exceptions that allow a defendant to file a notice of appeal out of time: (1) The defendant was not informed of the right to appeal, (2) the defendant was not furnished an attorney to exercise the right to appeal, and (3) the defendant was furnished with an attorney who failed to perfect and complete an appeal. 230 Kan. at 735–36. Because Gary was informed of his right to appeal and was furnished with an attorney to exercise that right, only the third Ortiz exception was at issue in this case.
In our review, we consider whether the factual findings underlying the district court's ruling are supported by substantial competent evidence. We consider de novo whether those facts establish an Ortiz exception. See State v. Gill, 287 Kan. 289, 293, 196 P.3d 369 (2008). Substantial competent evidence is legally relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. Johnson, 293 Kan. 1, 4, 259 P.3d 719 (2011). In determining whether the substantial competent evidence standard is met, we do not reweigh evidence, assess the credibility of the witnesses, or resolve conflicting evidence. 293 Kan. at 4.
Here, the district court believed Leon rather than Gary. The applicable Ortiz exception is predicated on Gary being provided an attorney, Leon, who failed to perfect and complete an appeal. The evidence found credible by the district court established that Gary never requested that Leon pursue an appeal, though Leon invited Gary to do so if that was his wish. We do not revisit the issue of Leon's credibility. See Johnson, 293 Kan. at 4.
Leon had no obligation to file a notice of appeal when Gary expressed no desire to pursue an appeal. Gary failed to meet his burden under Ortiz to prove that Leon failed to perfect an appeal, because Gary failed to prove that he asked Leon to file an appeal. See 230 Kan. at 735–36. The district court did not err in its ruling.
Affirmed.