December 5th. The Kansas Supreme Court has issued its decision in State v. Gill, No. 96,531 – a unanimous decision in a criminal case authored by Justice Johnson – the Court continues its work clarifying the applicability of the Ortiz exceptions to the rule that appeals must be filed within ten days. To recap, the Ortiz exceptions are a judicially created reason to file a late appeal, where circumstances at trial denied the defendant the fundamental fairness aspect of due process. A three step process is used to determine whether this applies:
- First the one filing the appeal must prove that they were not informed of their right to appeal (or the time limit thereon).
- If they succeed at this, the State can counter by proving that they knew of this right anyway.
- If the State is unable to do this, the defendant must prove that they wanted to appeal their sentence (‘would not let the matter rest’) at the time and would have done so had they known how.
This case itself is essentially a meritless action brought by Raymond Gill appealing his life sentence for second degree murder, which results in Mr Gill being denied his appeal. The reason the Court appears to have taken it is to express some guidance about how to judge the third step in the Ortiz process, since the trial judge’s statement to him was deficient and the State made no attempt to prove that Gill knew of his appeal rights. In the end it comes down to the long delay between Gill’s sentence in 1998 to his first attempts at putting together an appeal (in 2000, a putative appeal against his conviction which would have been invalid under his plea agreement anyway) to his filing a request for an out of time appeal (in 2006). the Court suggests (without saying the dates involved are significant) that Gill’s actions show that he ‘let the matter rest’, and therefore fails the third step of the Ortiz analysis.