Tuesday, January 31, 2006

On the road again . . .

I'll be heading out for a four-city tour doing Ortiz hearings in the next couple of weeks. (Hutchinson, Saline, Mound City, Burlington). I should have t-shirts made. Bryant and Phinney have made this the wave of the future for these manufacture clients that are still sitting around wondering why their cell-mate got out a year ago. I know that a lot of practitioners are dealing with these hearings across the state and probably will continue to do so until these cases are exhausted. Here is an exceprt from a brief I just filed where a client was given some information about a right to appeal, but I am arguing that it is insufficient under Ortiz:

In State v. Mitchell, 231 Kan. 144, 642 P.2d 981 (1982), the Kansas Supreme Court considered whether advice given was sufficient in light of Ortiz. Mitchell was told by his trial attorney that he could appeal, but was not told about the time frame for an appeal and was not advised that the district court had a statutory duty to file the appeal if requested. The Court observed that Kansas statutes, similar to federal rule counterparts, are designed to "insure that all defendants who might wish to appeal are fully aware of their appeal rights." Mitchell, 231 Kan. at 147 (quoting United States v. Benthien, 434 F.2d 1031, 1032 (1st Cir. 1970)). "A full awareness of one’s rights surely must include the knowledge that there is a time frame within which those rights must be exercised." Mitchell, 231 Kan. at 147; State v. Willingham, 266 Kan. 98, 101, 967 P.2d 1079 (1998). "The Constitution requires that the client be advised not only of his right to appeal, but also of the procedure and time limits involved and of his right to appointed counsel on appeal." United States v. Faubion, 19 F.3d 226, 231 (5th Cir. 1994) (considering claim that failure to inform regarding appeal rights violates Sixth Amendment).

In State v. Redmon, 255 Kan. 220, 873 P.2d 1350 (1994), the Kansas Supreme Court again considered the sufficiency of advice regarding appeal rights given to a defendant. Before sentencing Redmon, the district court indicated that "any defendant who should receive probation has a right to expungement of the proceedings and a right to appeal relative to jury sentencing and the probation aspect you should confer with your attorney regarding those matters." The Court held that such advice "does not clearly inform defendant of his rights concerning appeal." 255 Kan. at 223 (emphasis added). And Redmon’s trial attorney sent him a letter informing him that he could appeal his sentence if he believed the sentence was too severe, but directed Redmon to contact the Appellate Defender Office to file such an appeal. The Kansas Supreme Court observed that this advice "directly contradicts the duty of trial counsel as stated in K.A.R. 105-3-9(a)(3)." 255 Kan. at 223. Under these circumstances of ambiguous and inaccurate advice, the Kansas Supreme Court held that Redmon was entitled to file a late direct appeal.

The rule that can be extrapolated from these cases is that, for purposes of Ortiz, a defendant is entitled to a late direct appeal if he or she is not clearly, fully, and
accurately advised regarding the right to appeal, either by the district court or possibly by his or her trial attorney. If advice is given, but that advice is ambiguous, incomplete, or inaccurate, the defendant should be allowed to proceed with a direct appeal under Ortiz.

Thus, in some cases (like Pratt County), there is a general notice of right to appeal sentence in a plea form, but no information about procedure (time limits, appointment of counsel). In other cases (like Sedgwick County), there is a pretty good notice regarding procedure, but the plea form tells clients that if they get a sentence pursuant to plea agreement, appellate court will not review sentence. That is inaccurate advice (at least where client gets sentence pursuant to plea agreement). So in any of these cases, even though it facially appears that clients have some information about appeals, there is still quite a bit of room to argue that Ortiz applies. And we will see how those arguments pan out in 2006.

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