This post originally appeared at The Kansas Progress, before this blog went live. Consequently the date in the title does not tally with the date on the post.
November 14th. The Kansas Supreme Court today handed down two unanimous decisions. Both decisions impact Criminal Law in the light of the Court’s jurisprudence on untimely appeals.
In Barr v. State, No. 94,429, the Court issued a per curiam decision affirming the Court of Appeals’ dismissal of Keith Barr’s attempt to file a late appeal against his 2002 conviction for producing methamphetamine. Barr had entered into a plea agreement in which he pled guilty in return for the state requesting a light sentence. Barr filed a motion noting that the crime he pled to was identical to another crime which carried a misdemeanor sentence, and therefore requested that sentence. The trial court dismissed his motion, but departed from the plea agreement and gave Barr the option of a longer sentence (142 months) converted to probation. Barr accepted and waived his rights to appeal.
A year later, Barr violated his probation by testing positive for meth, and was sent to prison to complete his sentence. In the meantime the Kansas Supreme Court ruled in State v. McAdam that where two identical crimes carry different sentences the lesser sentence must prevail, i.e. the motion Barr had made. Barr therefore tried to institute a late appeal. In its ruling the Court again affirmed the principle that appeals are entirely governed by statute and that an untimely appeal will therefore fail except where the ability to file an appeal has been stopped by a breach of a constitutional right. Barr made two arguments that this exception applied to him: that he was not told that he had only ten days to file an appeal, and that his counsel was inneffective for not filing an appeal over his failed sentencing motion. The Court rejected both arguments, the first because Barr had explicitly waived the right to appeal in his plea agreement (and therefore knew of it) and the second because there was no way to suppose that his counsel would have known how the court would rule in McAdam (which had not been brought before the court at the time) and therefore Barr could not show that his counsel’s actions had been deficient.
In State v. Patton, No. 95,860, in a decision authored by Justice Beier, the court stepped into a thicket of cases that like the decision described above have sprung up in the wake of the decision in State v. McAdam. That case held that where two identical crimes carry different sentences the lesser sentence must prevail. Most old cases would be timed out by this point due to rules of appellate procedure which require appeals to be filed in ten days. However in 1982 the Court had created three exceptions to this rule in State v. Ortiz. These exceptions arise where a criminal defendant (1) was not informed of his or her right to appeal, (2) was not furnished an attorney to perfect an appeal, or (3) was furnished an attorney who failed to perfect an appeal. Since reactivating appeal rights this way could potentially lead to lowered sentences using a McAdam claim many such cases have been filed. The Court has used this case to enunciate some rules governing the application of Ortiz.
The Court held that the first exception applies if the defendant can show from the record that they were not informed of their right to appeal and the time limits thereon and the state cannot prove that they would have known about it otherwise. The second exception applies where an indigent defendant was not assigned a lawyer for the purposes of considering an appeal (It also applies to a defendant who had a paid lawyer but had properly requested another be assigned for appeal purposes due to running out of funds). The third exception, more controversially due to Ortiz‘s use of the word ‘furnished’, applies to a situation where either a public defender or defendant’s paid lawyer failed to carry out the defendant’s instruction to file an appeal. The Court reaches this conclusion by arguing that the 6th Amendment right to [effective] counsel informs this Ortiz rule, and that that right applies to both public defenders and paid attorneys. In this case, the Court held for Patton on the grounds that Patton had asked his lawyer to file the appeal and his lawyer had not done so. The case has therefore been back referred to the Court of Appeals which will now examine Patton’s claim under McAdam.
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