Sunday, April 29, 2007

Couple of McAdam cases

Michelle Davis won in State v. Thomas, No. 95,733 (Kan. April 27, 2007), getting a late direct appeal and a State v. McAdam resentencing in a McPherson County manufacture prosecution. The district court had already found that an Ortiz factor applied. But the state argued (1) that because McAdam might not yet have been decided if Mr. Thomas had filed a timely notice of appeal, it should not apply in his case and (2) Ortiz shouldn't apply in guidelines cases. The KSC rejected both arguments, agreeing with the COA on the first point that such a prediction is totally speculative and noting that the second point is at least implicitly rejected in State v. Barnes.

Kent Roth won in State v. Harp, No. 94,322 (Kan. April 27, 2007), getting a late direct appeal and McAdam sentence in a Rice County manufacture prosecution. This case had a particularly convoluted procedural history. But the KSC notably agreed with Mr. Harp that general awareness of appeal rights is not sufficient:

A transcript of the Ortiz hearing, which we have reviewed, is included in the record on appeal and does not reflect a defendant with a full awareness of his appellate rights.

At that hearing, Harp testified and indicated that, at his 2002 sentencing, defense counsel did not advise him of his right to appeal the sentence within 10 days. Harp further indicated that, had his attorney so advised him and told him the sentence might be shortened under the identical offense doctrine, he would have instructed defense counsel to appeal. Harp denied being informed of his appellate remedies, the steps necessary to implement an appeal, or the possibility of an appeal on the identical offense doctrine. There was no indication that a written waiver of Harp's right to appeal was obtained pursuant to K.A.R. 105-3-9. Harp's testimony indicated that defense counsel did not present such a document to him in 2002.

On cross-examination, Harp basically admitted having a general awareness of the right to appeal. However, he testified that he did not know he could appeal a plea bargain.

This is pretty significant as we have been arguing a lot of these lingering post-McAdam, post-Bryant, post-Phinney cases where there was some mention of appeal rights, but either it was not adequate or was in some other way ambiguous. This case correctly holds that some knowledge about an appeal is not enough. Full, correct knowledge should be found before waiver.

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