Opinion
No. 106,185.
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 appeal is the companion of Case No. 106,165, which we have considered and decided this same date. The issue in this case is the same: whether the district court erred in finding that no exception under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), applied so as to excuse James E. Gary's untimely appeal.
Gary has not included in the record on appeal the transcript of the proceedings at his Ortiz hearing, but it apparently was the same hearing that is discussed in our opinion in Case No. 106,165. The court's ruling was predicated on the same facts, as indicated by the September 15, 2011, journal entry in the record which noted that Gary and his former trial counsel, David Leon, testified at the hearing and which provided:
“1. That at the date of sentencing in the above captioned matters, September 29, 2009, Defendant was notified in person by the court and counsel of his right to file an appeal within 10 days.
“2. That on September 30, 2009, Mr. Leon sent a letter to Defendant notifying Defendant that Mr. Leon had reviewed the matter and did not believe that any basis for an appeal existed.
“3. That Defendant never made a timely request of counsel to file timely notice of appeal on his behalf.”
Based upon these findings the district court determined that Gary was informed of his right to appeal and did not meet an Ortiz exception that would allow him to file a notice of appeal out of time.
Gary appeals this ruling. We incorporate here our analysis in Case No. 106,185 and determine that the district court did not err in finding no applicable Ortiz exception.
Affirmed.