Opinion
No. 106,148.
2012-07-20
Lavance C. WILLIAMS, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Timothy H. Henderson, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, of Topeka, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Timothy H. Henderson, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, of Topeka, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., MARQUARDT and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Williams appeals the district court's summary denial of his K.S.A. 60–1507 motion. We affirm.
On May 27, 2008, Lavance C. Williams pled guilty to burglary and theft in case number 08CR521. On December 4, 2008, he pled guilty to aggravated robbery and attempted aggravated robbery in case number 08CR1818. The two cases were consolidated for sentencing, and the district court granted Williams' request for probation with an underlying 105 months' imprisonment in the consolidated cases. On March 27, 2009, after multiple probation violations, Williams' probation was revoked and he was ordered to serve a modified 71–month controlling sentence.
On October 29, 2010, Williams filed a K.S.A. 60–1507 motion, alleging that his counsel was ineffective at the probation revocation hearing and there was insufficient evidence to support his probation violations. Specifically, Williams claims his counsel failed to inform him of his right to appeal his probation revocation and suggested he “go serve his sentence.” The State asserted that Williams' motion was untimely.
The district court appointed counsel, and on January 21, 2011, it conducted a preliminary nonevidentiary hearing on Williams' motion. Following a review of the motion, files, and record, the court summarily denied the motion as untimely. Williams timely appeals.
The appellate court must give deference to any factual findings made by the district court as a result of the hearing. Further, this court must determine whether the findings are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. Ultimately, the district court's legal conclusions are reviewed de novo. Bellamy v.. State, 285 Kan. 346, 354, 172 P.3d 10 (2007).
The district court summarily denied Williams' K.S.A. 60–1507 motion because it was untimely filed. The 1–year time limitation in K.S.A. 60–1507(f)(1) may be extended only to prevent manifest injustice. K.S.A. 60–1507(f)(2). “Although ‘manifest injustice’ has not been defined in the context of K.S.A. 60–1507(f)(2), this court has interpreted the phrase in other contexts to mean ‘obviously unfair’ or ‘shocking to the conscience.’ “ Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007). Williams argues that it would be manifestly unjust to deny his motion as untimely when “he was not informed of his right to appeal by either the Court or his counsel.” Williams further suggests that the district court was manifestly unjust in “failing to consider the actions of [his] attorney” in summarily denying the motion.
Williams has not articulated any reasons for his failure to file his motion within the 1–year time limitation under K.S.A. 60–1507(f)(1). The only authority Williams provides to support his claim is State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). However, Ortiz only held that a court would consider a late notice of a direct appeal if a defendant “was not informed of the right to appeal at sentencing or by counsel.” Albright v. State, 292 Kan. 193, 198, 251 P.3d 52 (2011). Our Supreme Court in Albright reaffirmed this issue while discussing Guillory v. State, 285 Kan. 223, 170 P.3d 403 (2007).
“ ‘A fatal flaw in Guillory's argument is that the first Ortiz exception, excusing an untimely notice of appeal where the defendant was not informed of the right to appeal, was based on the fact that a criminal defendant has a statutory right to be advised of his or her right to a direct appeal. K.S.A. 22–3424(f) requires the sentencing court to inform criminal defendants of the right to appeal. [Citation omitted.] ... In contrast, there is no statutory requirement that the district court advise a K.S.A. 60–1507 petitioner of the right to appeal the decision on his or her petition.’ [Citation omitted].” Albright, 292 Kan. at 202.
The Guillory court clearly rejected the claim that a 60–1507 movant can rely on an Ortiz exception to excuse the untimely filing of an appeal. The Supreme Court remanded Albright, merely because the argument was based on two of the Ortiz exceptions. Albright, 292 Kan. at 212. Because the first Ortiz exception is unavailable to K.S.A. 60–1507 movants and Williams has failed to allege any other reasons for the delay in filing his motion, Williams has not shown manifest injustice and the district court did not err in summarily denying his K.S.A. 60–1507 motion.
Affirmed.