Opinion
Editorial Note:
This decision has been designated as "Supreme Court of Kansas Decisions without Published Opinions." in the Pacific Reporter. See KS R S AND A CTS RULE 7.04
Review of the April 17, 2008 order of the Court of Appeals dismissing the appeal. Opinion filed December 12, 2008. Reversed and remanded with directions.
Calvin L. Strong, appellant, was on the brief pro se.
Jon D. Graves, of Kansas Department of Corrections, was on the brief for appellee.
MEMORANDUM OPINION
OPINION
NUSS, J.:
Inmate Calvin Strong appeals the Court of Appeals' dismissal of his appeal because of his failure to pay for, and supply, a hearing transcript supporting one of his claims. As more fully discussed below, we agree with Strong.
In October 2004, Strong filed a petition for habeas corpus relief pursuant to K.S.A. 60-1501 because of various disciplinary decisions taken against him in the Hutchinson correctional facility. District Judge William F. Lyle granted him indigent status and appointed Bryan Hitchcock as counsel. See K.S.A. 22-4506(b). After a hearing at the prison attended by Strong, Hitchcock, and counsel for respondent, Judge Lyle dismissed Strong's petition.
Strong appealed and requested a free transcript of the Judge Lyle hearing. In granting the motion, the Court of Appeals observed that
" K.S.A. 22-4506(c) provides that an incarcerated indigent appellant may obtain a copy of the trial record without cost to the appellant. The district court [Judge Lyle] has determined that the appellant is indigent for appeal purposes. The appellant's obligation for payment of the transcript cost is accordingly waived, and the appellant will be provided a copy of the transcript without cost to him."
Strong's appeal also included the allegation that Judge Lyle's " decision was made without appointment of effective counsel." Accordingly, the Court of Appeals eventually remanded for a hearing on this particular claim. In November 2007, District Judge Joseph McCarville conducted a telephone hearing in which Strong, pro se, and counsel for respondent participated. Judge McCarville denied Strong's ineffective assistance claim.
The Court of Appeals then ordered Strong to file a notice of appeal of Judge McCarville's decision and a supplemental docketing statement, if he " intends to include issues relating to that order in this appeal [of Judge Lyle's decision.]." (Emphasis added.)
Strong timely complied, including in his filings a request for a free transcript of Judge McCarville's hearing. The next month, the court reporter submitted a letter to the Clerk of the Appellate Courts stating that she had not received payment for the transcript, which she had previously requested.
The Court of Appeals then issued an order to show cause requiring Strong to demonstrate why his appeal should not be dismissed pursuant to Rule 3.03(e) ( 2008 Kan. Ct. R. Annot. 24) for failure to timely pay the transcript fee, noting that " failure to file the requested [payment] ... will result in dismissal of the appeal without further notice."
Strong responded that both Judge Lyle and the Court of Appeals had previously allowed him to proceed in forma pauperis. He also argued that he was still indigent. The Court of Appeals, without explanation, denied Strong's request for a free transcript of Judge McCarville's hearing. The court reporter then submitted another letter indicating that the transcript fee still had not been paid.
Strong filed a motion for reconsideration, asserting that the McCarville hearing transcript was " necessary in order to pursue his appeal raising issues under ineffective counsel." Among other things, he claimed that " new evidence was discovered" during that hearing which supported his ineffectiveness claim. He attached to the motion his inmate account statement showing he had no money in his account. On April 14, 2008, the Court of Appeals denied, without explanation, Strong's motion for reconsideration.
Three days later, the Court of Appeals dismissed Strong's entire appeal-both the disciplinary claims presented to Judge Lyle and the ineffective assistance of counsel claims presented to Judge McCarville. The dismissal was asserted according to Supreme Court Rule 5.05 (2008 Kan. Ct. R. Annot. 35) because of Strong's " failure to advance payment of the cost of a transcript in accordance with Supreme Court Rule 3.03(e)." The order further stated that the court had " repeatedly determined" that Strong was " not entitled to have a transcript [of the McCarville hearing] provided for him." The order additionally provided that Strong had been required to pay the court reporter's demand by March 24, 2008, and in the absence of any evidence of payment, the court had to assume that Strong " does not intend to comply with Rule 3.03(e)."
In short, Judge Lyle found that Strong was indigent; based at least in part on that judicial finding, the Court of Appeals ordered for Strong to receive a free transcript of the Lyle hearing for purposes of his original appeal, i.e., of the disciplinary claims. Yet after Strong argued to the Court of Appeals that a transcript of the McCarville hearing was necessary to pursue that portion of the appeal concerning his added ineffective assistance of counsel claims, and demonstrated that he was still indigent, that court denied his request for a free copy. Because Strong did not pay the transcript fee for that single claim, it then dismissed his appeal of all claims.
We are unable to perceive the consistency between the Court of Appeals' orders regarding transcript fees when the record reveals that Strong has remained indigent throughout. See K.S.A. 22-4506(c). And even if the Court of Appeals determined that Strong was now required to pay the transcript fee for a particular claim on appeal, e.g., because he was no longer indigent, we are unable to perceive why that would necessarily require dismissal of a separate claim on appeal which was itself already supported by a free transcript. Our perception inability is due, in part, to the Court of Appeals' apparent failure to demonstrate that it had fully considered all the factors present in this case-including its own prior orders-before ordering dismissal of the appeal. Under these circumstances, we must conclude that the Court of Appeals abused its discretion granted under Rule 5.05. See Vorhees v. Baltazar, 283 Kan. 389, 153 P.3d 1227 (2007) (dismissal of an appeal is discretionary pursuant to Rule 5.05).
Accordingly, the Court of Appeals' order dismissing Strong's appeal is reversed.
The portion of the appeal supported by the present transcript, i.e., the claims presented to Judge Lyle in Strong's K.S.A. 60-1501 petition, is remanded to the Court of Appeals for consideration on the merits.
As for the portion of the appeal for which a free transcript has been denied, i.e., the claims presented to Judge McCarville concerning ineffective assistance of counsel, we also remand to the Court of Appeals. If, after full consideration of the record, that court determines that Strong's request for a free transcript should nevertheless still be denied, then the findings sufficient to support that denial should be stated in its order. Failing that particular determination, the Court of Appeals should grant Strong's request for a free transcript and also proceed with the appeal of that claim on the merits.
Reversed and remanded with directions.