State v. Anthony ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 122,385
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
TRAE VAUGHN ANTHONY,
Appellant.
MEMORANDUM OPINION
Appeal from McPherson District Court; JOHN B. KLENDA, judge. Opinion filed October 30, 2020.
Affirmed.
Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.
Amanda G. Voth, chief deputy county attorney, Gregory T. Benefiel, county attorney, and Derek
Schmidt, attorney general, for appellee.
Before POWELL, P.J., GREEN and STANDRIDGE, JJ.
POWELL, J.: Roughly a year and a half after Trae Vaughn Anthony's probation
was revoked, he sought permission to file an appeal out of time, but the district court
denied the motion on the grounds he never asked his attorney to file an appeal. Anthony
now appeals the district court's denial of his motion to appeal out of time, claiming
insufficient evidence supports the district court's conclusion that he failed to ask his
attorney to file an appeal. After reviewing the record, we disagree with Anthony and thus
affirm the district court.
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FACTUAL AND PROCEDURAL BACKGROUND
As part of a plea agreement with the State, Anthony pled no contest to the charge
of possession of marijuana with intent to distribute. Consistent with the plea agreement,
the district court sentenced Anthony to 123 months in prison but granted his departure
motion and placed Anthony on probation from that sentence for 36 months.
Several months into his probation, and after Anthony had already violated the
terms of his probation once before, the State again sought to revoke his probation. At the
probation violation hearing in September 2017, Anthony stipulated to the alleged
violations, and the district court revoked his probation and imposed his underlying prison
sentence. The district court advised Anthony of his right to appeal within 14 days and
advised him to discuss that right in more detail with his attorney, Donald Snapp.
In April 2019, one year and seven months after the district court ordered him to
serve his underlying sentence, Anthony filed an untimely pro se notice of appeal titled
"Petition to Docket Appeal Out of Time." A review of the substance of the motion
indicates it is a motion to file an untimely notice of appeal, so, like the district court, we
will construe it as such. See State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010) ("Pro
se pleadings are liberally construed, giving effect to the pleading's content rather than the
labels and forms used to articulate the defendant's arguments."). In his motion, Anthony
asked permission to file an appeal out of time due to his court-appointed counsel failing
to timely perfect his appeal "or even notify the defendant that he could file his own [pro
se] notice of appeal."
On December 5, 2019, the district court conducted an Ortiz hearing on Anthony's
motion. See State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). At this hearing, Snapp
testified that his practice is to immediately, after a sentencing or a revocation of probation
hearing, ask a defendant if he or she wishes to file an appeal. If so, Snapp stated he files
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"a notice of appeal with the district court well within the 14 days." Snapp testified he did
not have anything in his file regarding Anthony's desire to appeal. He elaborated that if
Anthony had asked to appeal, Snapp would have noted that in the client file and filed a
notice of appeal. However, Snapp could not recall the specific conversation between
himself and Anthony two years prior, nor could he remember Anthony telling him to "go
ahead and file an appeal." But Snapp testified that if Anthony would have said so, he
would have made notation of that request in the file and filed the appeal.
Anthony also testified at the Ortiz hearing. He testified he told Snapp immediately
after the hearing to "go ahead and do it," as in file the notice of appeal. Anthony also
testified he never followed up with Snapp regarding an appeal or the status of any
believed appeal.
The district court ultimately found Snapp's testimony more credible than
Anthony's, specifically crediting Snapp's practice of always advising his clients of their
right to appeal when leaving the courtroom, and had Anthony requested Snapp file a
notice of appeal, Snapp would have done so. It concluded, based on those findings of
fact, that Anthony did not request to file a notice of appeal.
Anthony now appeals the denial of his motion.
ANALYSIS
On appeal, Anthony argues the district court erred in concluding he was not
entitled to an out-of-time appeal. In response, the State argues Anthony's current appeal is
untimely and, alternatively, the district correctly denied Anthony relief.
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1. Timeliness of Anthony's Appeal of the Denial of His Motion to Appeal Out of Time
The State questions the timeliness of Anthony's current appeal, claiming he filed
his notice of appeal one day late. Anthony does not reply to this argument.
The right to appeal is entirely statutory, and, subject to certain exceptions, our
appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the
manner prescribed by the applicable statutes. State v. Smith, 304 Kan. 916, 919, 377 P.3d
414 (2016). A timely notice of appeal is typically required to give an appellate court
jurisdiction over an appeal. Whether jurisdiction exists is a question of law over which
we exercise unlimited review. State v. Patton, 287 Kan. 200, 205-06, 195 P.3d 753
(2008).
K.S.A. 2019 Supp. 22-3608(c) states: "For crimes committed on or after July 1,
1993, the defendant shall have 14 days after the judgment of the district court to appeal."
"'Judgment' in a criminal case" is completed by sentencing. State v. McGaugh, 56 Kan.
App. 2d 286, 289, 427 P.3d 978 (2018). However, the denial of Anthony's motion
seeking to appeal out of time occurred well after sentencing, raising a question as to this
statute's applicability.
K.S.A. 22-3606 instructs us that "[e]xcept as otherwise provided by statute or rule
of the supreme court, the statutes and rules governing procedure on appeals to an
appellate court in civil cases shall apply to and govern appeals to an appellate court in
criminal cases." In a civil case, a party has 30 days from the entry of the judgment to
appeal. K.S.A. 2019 Supp. 60-2103(a).
When examining caselaw on this issue, we note the Kansas Supreme Court
applied the shorter window to appeal found in K.S.A. 2019 Supp. 22-3608(c) to the
denial of a motion to withdraw a defendant's plea in a direct criminal appeal, but the court
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stated it "assumed without deciding" that K.S.A. 22-3608(c) was applicable. See State v.
Hemphill, 286 Kan. 583, 590, 186 P.3d 777 (2008). Perhaps more significantly, the 30-
day time limit to appeal found in K.S.A. 2019 Supp. 60-2103(a) has generally been
applied to appeals involving other postsentencing motions. See State v. Swafford, 306
Kan. 537, Syl. ¶ 1, 394 P.3d 1188 (2017) (applying 30-day limit to motion to correct
illegal sentence).
In our view, Anthony's current appeal is timely under either time limit.
According to the record, the district court orally denied Anthony's motion at the
Ortiz hearing on December 5, 2019. The district court filed its journal entry on the matter
on December 24, 2019. Anthony filed his notice of appeal from the district court's denial
of his motion on December 20, 2019—15 days after the oral denial at the hearing and 4
days before of the filing of the journal entry. Under the time limit rules governing civil
appeals contained in K.S.A. 2019 Supp. 60-2103(a), Anthony's appeal is clearly within
30 days.
Under the 14-day limitation for criminal appeals contained in K.S.A. 2019 Supp.
22-3608(c), Anthony's appeal is also timely. As earlier stated, judgment in a criminal
case is completed by sentencing. McGaugh, 56 Kan. App. 2d at 289. Thus, the time to
file a notice of appeal runs from the oral pronouncement of sentence instead of the filing
of a journal entry of that sentence. See State v. Tafoya, 304 Kan. 663, 666-67, 372 P.3d
1247 (2016); State v. Ehrlich, 286 Kan. 923, 925, 189 P.3d 491 (2008). But here, there
was no sentence imposed or announced; rather, this case involves the denial of a
postsentencing motion to appeal out of time.
When a district judge indicates an oral order is intended to be journalized and
approved by the court before the order is deemed to be formally entered, the order is not
effective until the filing of that journal entry. See State v. Michel, 17 Kan. App. 2d 265,
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267-68, 834 P.2d 1374 (1992); State v. Bohannon, 3 Kan. App. 2d 448, 450-51, 596 P.2d
190 (1979). This was the case here. Moreover, the journal entry denying Anthony's
motion states: "This Order is effective as of the date and time shown on the electronic
file stamp by the electronic signature of the Judge of the District Court attached hereto,"
which is December 24, 2019. Therefore, Anthony's notice of appeal was filed four days
before the journal entry denying his motion was filed, making it premature. But a
premature notice of appeal becomes timely upon the filing of the journal entry. Kansas
Supreme Court Rule 2.03(a) (2020 Kan. S. Ct. R. 14); see State v. Dryden, No. 119,976,
2019 WL 2398027, at *5 (Kan. App. 2019) (unpublished opinion) (applying premature
notice of appeal rules to State's appeal of order dismissing single count of multiple-count
complaint), rev. denied 311 Kan. ___ (February 27, 2020); State v. Dunbar, No. 101,919,
2010 WL 2044939, at *2 (Kan. App. 2010) (unpublished opinion) (applying premature
notice of appeal rules to denial of jail time credit). Thus, even under the shorter 14-day
time limit, Anthony's notice of appeal became effective on December 24, 2019, the same
day the journal entry denying his motion was filed. Therefore, his notice of appeal is
timely.
2. Denial of Ortiz Relief
Turning to the merits of Anthony's appeal, he claims the district court erred in
denying his motion to file an appeal out of time because the district court's conclusion
that he did not request an appeal was not supported by substantial competent evidence.
As we have already stated, a timely notice of appeal is required under most
circumstances for an appellate court to obtain jurisdiction over an appeal. Patton, 287
Kan. at 206. In Ortiz, the Kansas Supreme Court set out three narrow exceptions to this
jurisdictional requirement. A district court may allow a late appeal if a criminal defendant
was: (1) not informed of his or her right to appeal; (2) not furnished an attorney to
perfect an appeal; or (3) furnished an attorney who failed to perfect an appeal. 230 Kan.
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at 735-36. If a defendant meets an exceptional circumstance set out in Ortiz, "he or she
must be allowed to file an appeal out of time." State v. Phinney, 280 Kan. 394, 405, 122
P.3d 356 (2005). Here, Anthony only argues the third factor is applicable.
A district court's decision on whether an Ortiz exception applies is reviewed on
appeal under a dual standard. First, we review the facts underlying the district court's
ruling for substantial competent evidence. Second, the legal conclusions made by the
district court based on those facts are reviewed de novo. State v. Smith, 303 Kan. 673,
677, 366 P.3d 226 (2016). Substantial competent evidence refers to legal and relevant
evidence that a reasonable person could accept as being adequate to support a conclusion.
State v. Doelz, 309 Kan. 133, 138, 432 P.3d 669 (2019). When reviewing the evidence,
we do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine
questions of fact. State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011), cert. denied
565 U.S. 1221 (2012).
At the Ortiz hearing, Snapp testified that it was his practice to speak with
defendants as they were leaving the courtroom and inquire if they wished to appeal. If a
client indicated a desire to appeal, Snapp's practice was to promptly file an appeal. Snapp
further testified that if Anthony had asked him to appeal, he would have noted it in the
client file and promptly filed an appeal. Snapp did not recall Anthony telling him to
appeal.
Anthony testified the district court advised him of his right to appeal and he had a
conversation with Snapp in the courtroom after the revocation of his probation. However,
his testimony differed from Snapp's in one important way: Anthony testified he told
Snapp to file an appeal during that conversation. Anthony never followed up on the status
of his appeal with Snapp.
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At the hearing the State noted there was conflicting testimony and the district
court's decision came down to an issue of credibility. The district court found Snapp
indicated his practice was always to advise his clients of their right to appeal when
leaving the courtroom and if Anthony had requested he file an appeal, Snapp would have
done so. The district court weighed the credibility of the witnesses and concluded, based
on the testimony presented, Anthony "did not request to file an appeal." Given that we
cannot redetermine the credibility of witnesses, our review of the record leads us to
conclude the evidence supporting the district court's finding is adequate to support its
conclusion Anthony did not request an appeal. This conclusion is further bolstered by the
fact Anthony never followed up with Snapp on the status of his alleged requested appeal,
even though significant time had passed.
Anthony argues that Snapp's failure to comply with K.A.R. 105-3-9(a)(3) compels
a conclusion that the district court's findings are not based on substantial competent
evidence. K.A.R. 105-3-9(a)(3) requires counsel to file a notice of appeal unless the
defendant signs a waiver of the right to appeal. We acknowledge the record before us
lacks any such written waiver by Anthony. But the Kansas Supreme Court has held that
"the failure to comply with the provisions of the statute and the administrative regulation
quoted above need not be fatal" where it is clear from the record the defendant was fully
aware of his or her appeal rights. State v. Willingham, 266 Kan. 98, 100, 967 P.2d 1079
(1998). Even though a signed waiver would have simplified the factual findings in the
present case, the district court heard evidence, evaluated the credibility of the witnesses,
and determined Anthony did not ask his attorney for an appeal. That determination is
supported by the record.
Anthony tries to persuade us that State v. Redmon, 255 Kan. 220, 873 P.2d 1350
(1994), and Willingham demand a different result. However, both are distinguishable.
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In Redmon, the Kansas Supreme Court found the third Ortiz exception had been
met when it determined that a letter from trial counsel stating Redmon may appeal his
sentence but he needed to contact the Appellate Public Defender's Office was in direct
contradiction of the duty of trial counsel under K.A.R. 105-3-9(a)(3). 255 Kan. at 223.
And in Willingham, the Kansas Supreme Court permitted an untimely appeal because it
found that neither the sentencing court nor trial counsel had advised Willingham of his
right to appeal. 266 Kan. at 100.
Here, there is no evidence Snapp provided any contradictory or incorrect
information to Anthony about the steps needed to appeal, and Snapp and the district court
informed Anthony of his right to appeal. Moreover, the issue in the present case involves
a credibility determination made by the district court—that Anthony's testimony he told
Snapp to appeal was not credible.
We find State v. Northern, 304 Kan. 860, 865, 375 P.3d 363 (2016), instructive
because while trial counsel in that case did not obtain a signed waiver as required under
the regulation, the record demonstrated the defendant had been informed of his right to
appeal but failed to ask his attorney to file the appeal. The same facts exist in our case.
The record reflects the district court and counsel advised Anthony of his right to appeal.
Even though Snapp did not obtain a signed waiver, Snapp testified that his practice was
to advise his clients immediately after the hearing of their right to appeal and if Anthony
would have asked him to appeal, he would have absolutely done so. The district court
found this testimony credible.
Given that the district court's factual findings are supported by substantial
competent evidence, we find Anthony was not entitled to Ortiz relief on the third factor.
Because Anthony did not request an appeal, his attorney did not fail to perfect one. The
district court did not err in concluding that Anthony was not entitled to file an appeal out
of time.
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Affirmed.
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