Opinion
110,728.
04-03-2015
STATE of Kansas, Appellee, v. Shawn NORTH, Appellant.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., BRUNS, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Shawn North filed an untimely appeal, and we remanded the case to the district court for the sole purpose of conducting a hearing pursuant to State v. Ortiz, 230 Kan. 733, 735–36, 640 P.2d 1255 (1982). After conducting an evidentiary hearing, the district court determined that North had not shown exceptional circumstances to justify his failure to file a timely notice of appeal within the 14–day limitation set forth in K.S.A.2012 Supp. 22–3608(c). Because the district court's decision turned on the credibility of conflicting testimony and substantial competent evidence supports its conclusion, we dismiss North's appeal for lack of jurisdiction.
In April 2013, North pled guilty to the aggravated kidnapping and rape of a 13–year–old girl, both severity level 1 person felonies. On June 14, 2013, the district court denied North's motion for departure and sentenced him on each count to the low presumptive number in the applicable sentencing guidelines grid-boxes. The district court ran the counts concurrently for a total sentence of 240 months in prison. The district court also informed North of his right to appeal within 14 days of that sentencing date.
North filed a pro se appeal of “the imposed sentence” on August 16, 2013. Although we retained jurisdiction, we remanded the case to the district court to determine whether exceptions to the requirement of a timely filed notice of appeal applied to this case under Ortiz and State v. Cook, 12 Kan.App.2d 309, 741 P.2d 379, rev. denied 242 Kan. 904 (1987). On remand, the district court conducted an evidentiary hearing.
At the Ortiz hearing, North testified that immediately after being sentenced he twice let his trial counsel know of his desire to appeal, but his trial counsel told him that he did not have any grounds to appeal. Likewise, North's father testified to being present at the sentencing hearing and having heard his son tell his trial counsel he wanted to appeal. North's father also testified he had a conversation with trial counsel outside the courtroom after sentencing in which trial counsel told him that North wanted to appeal but that the attorney “didn't feel like [an appeal] was something he wanted to pursue or was going to pursue. It was a dead issue.”
In contrast, North's trial counsel testified to having a conversation with North before the plea was entered in which he went over the acknowledgment of rights and entry of plea form. He explained to North that this form limited his right to appeal. Trial counsel testified he made it “abundantly clear” during the conversation that if North felt there was any issue that needed to be raised on appeal he was to contact him before the time to appeal expired.
Trial counsel also testified that he had a brief discussion with North after the district court imposed the sentence in which his client inquired whether “this is an issue we can appeal.” According to the attorney, he advised North that caselaw was not in his favor and that there was no viable issue on appeal because the district court had followed the plea agreement and imposed a presumptive sentence. Specifically, trial counsel testified North “never asked me to appeal.” Ultimately, the district court concluded no Ortiz exceptions applied that would justify the filing of an untimely appeal.
When reviewing an appeal from an Ortiz hearing, we apply a mixed standard of review. First, we ask whether the factual findings of the district court are supported by substantial competent evidence. Next, we look at whether the findings warrant the district court's ultimate ruling on the motion, which is a legal question subject to de novo review. See State v. Phinney, 280 Kan. 394, 404, 122 P.3d 356 (2005). 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). And we may not reweigh the evidence, pass on the credibility of the witnesses, or resolve conflicting evidence. State v. Johnson, 293 Kan. 1, 4, 259 P.3d 719 (2011).
Under K.S.A.2012 Supp. 22–3608(c), North had 14 days from the date of his sentencing on June 14, 2013, to file a timely notice of appeal. North, however, did not file his appeal until 63 days later—on August 16, 2013. The filing of a timely notice of appeal is jurisdictional, and if the appeal is not taken within the 14–day period fixed by statute, it must be dismissed. But a narrowly defined exception to this general rule is recognized in the interest of fundamental fairness in those cases where a 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. State v. Gill, 287 Kan. 289, 294, 299, 196 P.3d 369 (2008) (citing Ortiz, 230 Kan. at 735–36 ). In this appeal, North limits his argument to the third Ortiz exception—whether his trial counsel failed to perfect and complete a timely appeal.
Under the third exception, a defendant cannot simply “ ‘let the matter rest’ “ after being informed of his or her appellate rights and then seek to appeal out of time. State v. Patton, 287 Kan. 200, 216, 195 P.3d 753 (2008) (citing Kargus v. State, 284 Kan. 908, 922, 169 P.3d 307 [2007] ). Here, North testified that immediately after being sentenced on June 14, 2013, he told his trial counsel twice that he wanted to appeal. North's father also testified that he overheard one such request. This testimony, however, is in direct contrast to the testimony of North's trial counsel—who expressly testified that his client never expressed a desire to appeal.
After considering this conflicting testimony, the district court found North's trial counsel more credible. Specifically, the district court concluded that although North discussed and sought the advice of his attorney about his options and his chances of success if he filed an appeal, he never asked his trial counsel to file an appeal on his behalf. Given this testimony, there is substantial competent evidence to support the district court's conclusion that North failed to establish an exceptional circumstance that would entitle him to an untimely appeal. See Johnson, 293 Kan. at 4.
Nevertheless, North contends that his trial counsel understood how disappointed he was with the sentence and should have specifically asked him if he wanted to file an appeal. But the Kansas Supreme Court has found that with respect to a defendant's right to appeal, Ortiz does “not impose affirmative duties on counsel or the court.” Patton, 287 Kan. at 217. Furthermore, North cites no authority that imposes an obligation on counsel to file unsolicited appeals in those instances in which a defendant is disappointed with the outcome. See State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013) (stating that failure to support argument with pertinent authority or to show why argument is sound despite lack of supporting authority is akin to failing to brief the issue, which means the argument is deemed waived and abandoned).
We, therefore, conclude that because no Ortiz exception is applicable in this case, we lack jurisdiction to hear this appeal.
Appeal dismissed.