Opinion
111,301.
05-29-2015
STATE of Kansas, Appellee, v. Levi A. WHITE, Appellant.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant.
Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., ARNOLD–BURGER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
In Kansas, a criminal defendant's direct appeal must be filed within 14 days of sentencing. An exception to this rule exists if the defendant was provided an attorney who failed to perfect a requested appeal. Levi A. White pled guilty to rape, and the district court sentenced him to 186 months' imprisonment. A year after sentencing, White filed a motion for appointment of counsel and requested that the district court allow him to file an appeal out of time. White claimed that he had asked his trial counsel to appeal but that counsel never acted. Trial counsel, however, contradicted this version of events. After a hearing, the district court denied White's request to appeal out of time. Because we find that there was substantial competent evidence to support the district court's finding that White knew of his appellate rights and failed to request that his attorney appeal his case, we affirm.
Factual and Procedural History
The State charged White with rape and aggravated indecent liberties with a child, both off-grid person felonies. White entered into a plea agreement in which he agreed to plead guilty to rape and the State agreed to dismiss the other charge against him. The State also agreed to recommend that the district court depart from the presumptive sentence and instead sentence White according to the sentencing grid. The plea agreement left White the opportunity to argue for further departure or any other disposition.
White filed a motion for departure and, at sentencing, asked the district court to depart to the shortest sentence possible, 93 months' imprisonment. The district court granted only the departure requested by the State and sentenced White to 186 months' imprisonment.
Over a year after sentencing, White filed a motion for appointment of counsel with the district court. In his motion, White explained that he needed counsel in order to pursue the appeal that his trial counsel, James Crawford, failed to file. The district court appointed counsel in order to hold a hearing and determine whether White's situation fit into one of the three exceptions in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), which would thereby allow him to file his appeal out of time.
At the hearing, White testified first and explained that during sentencing, he “whispered over to [Crawford] and said [he] would like to put an appeal in.” White testified that Crawford “said he would get back with” White but never contacted him about appealing. White stated that he knew he had the right to file an appeal both from the plea agreement and from his conversations with Crawford. When a year passed without any update from Crawford, White decided to file the motion, which he termed “a motion for a new appeal.” White admitted that he never contacted Crawford after sentencing but explained, “I thought I would just have to wait for his convenient time to contact me.”
On cross-examination, White clarified that he asked Crawford to appeal his case after the sentence was imposed but “before [he] got dismissed.” White also admitted that Crawford never said when he would contact White regarding the potential appeal. White acknowledged that he knew there was a time limit as to when an appeal could be filed but said he “misunderstood” the limit to be 1 year rather than just 14 days.
Crawford directly contradicted White's allegation in his testimony, stating that White never asked him to pursue an appeal during sentencing. Crawford recalled telling White about his appeal rights two separate times, and Crawford believed that White understood “the importance of timely letting [Crawford] know when he wanted to appeal.” Crawford further testified that he never heard anything about White wishing to appeal until White filed the motion for appointment of counsel. On cross-examination, Crawford testified that he had first-hand memories of his conversations with White because of the seriousness of the charges against him and his young age. But Crawford also acknowledged that his notes did not indicate whether White ever asked for an appeal.
The district court denied White's requested Ortiz relief. The district court found that White understood both his right to appeal and the time limit associated with that right. Moreover, the district court determined that “Crawford had a distinct recollection that he talked to [White] about [his] appeal rights” and that the severity level of White's crime and the existence of the plea deal indicated that Crawford likely would remember the case specifically. The district court therefore denied the motion. White filed a timely appeal.
Analysis
White contends that the district court should have granted his motion and allowed him to file his appeal out of time. This argument turns on White's assertion that the district court chose to believe Crawford's account over his own despite his clearer, more credible memory of telling Crawford to file an appeal.
In Kansas, a criminal defendant's direct appeal must be filed within 14 days of sentencing. See K.S.A.2014 Supp. 22–3608(c) (14–day time limit for crimes committed on or after July 1, 1993). Despite this general rule, there are three recognized exceptions that allow a defendant to file an appeal out of time. State v. Phinney, 280 Kan. 394, Syl. ¶ 3, 122 P.3d 356 (2005). These exceptions, sometimes called Ortiz exceptions, permit a defendant to file a late notice of appeal provided that
“an indigent defendant was either: (1) 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. If these narrow exceptional circumstances are met, a court must allow an appeal out of time.” Phinney, 280 Kan. 394, Syl. ¶ 3.
When reviewing the district court's decision on whether any of the Ortiz exceptions apply, this court examines the facts under a substantial competent evidence standard. Phinney, 280 Kan. 394, Syl. ¶ 8. 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). Importantly, under this standard, “it is not for this court to reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses.”State v. Hartpence, 30 Kan.App.2d 486, 493, 42 P.3d 1197 (2002). That said, the district court's “ultimate legal determination of whether those facts fit [an Ortiz ] exception should be reviewed under a de novo standard.” Phinney, 280 Kan. 394, Syl. ¶ 8.
Here, White invokes only the third Ortiz exception, claiming that Crawford failed to file his requested appeal. White essentially contends that his testimony at the hearing was more credible than Crawford's and that, as such, the district court's decision was in error.
So at the heart of this case lies the credibility of Crawford's and White's conflicting testimony. White testified that he leaned over and told Crawford he wanted to appeal; Crawford testified that they had no such conversation. But Crawford testified that he clearly remembered White's case due to the severity of the charges and White's young age, that he recalled discussing White's appeal rights with him during the pendency of his case, and that he never noted in his file that White requested an appeal. Moreover, White's testimony shifted slightly; he first said he requested the appeal during the sentencing hearing, but later he clarified that he asked afterward. The district court, having heard and observed this testimony, considered both what White understood regarding his appeal rights and Crawford's conflicting testimony before ultimately denying the motion.
As previously stated, this court cannot reweigh the evidence or reconsider the district court's credibility determinations. See Hartpence, 30 Kan.App.2d at 493. But White asks this court to do exactly that by finding that he did indeed request an appeal during his sentencing hearing. A review of the record indicates that the district court clearly found Crawford more credible, and there is sufficient legal and relevant evidence to support the conclusion that White never actually requested Crawford file an appeal. Accordingly, the district court's decision is affirmed.
Affirmed.