Whether Mr. Hemphill was entitled to late direct appeal under Ortiz
The KSC affirmed the portion of the COA’s decision remanding for an Ortiz hearing regarding the direct appeal of his sentence. The KSC noted that both the district court and appointed counsel had a statutory duty to inform Mr. Hemphill of his right to appeal. The court held that nothing in the record showed that Mr. Hemphill was advised of the right to appeal his sentence, and thus, "a substantial question of fact exists as to whether Hemphill should be allowed a direct appeal out of time pursuant to Ortiz." The court remanded the case for an Ortiz hearing.
New hearing on motion to withdraw plea
The KSC also ordered a new hearing on Mr. Hemphill’s motion to withdraw his plea (reversing the COA), holding: “we cannot agree with the [COA']s treatment of the defendant's attempted appeal from denial of his motion to withdraw his pleas of no contest, nor are we able to resolve this issue on the basis of harmless error.”
The court summarized the facts surrounding the motion to withdraw the plea:
The court noted that Hemphill was entitled to a new plea withdrawal hearing under Kargus, instead of under Ortiz:The district court appointed counsel to represent the defendant, held a hearing on these motions on July 23, 2004, and denied relief to the defendant. At the hearing, defendant's appointed counsel told the court that he did not believe that his client's motions had merit and explained why he felt this way. He then requested that the district court allow the defendant to stand up and make his own argument.
Addressing the court, Hemphill stated that he did not know what to argue and stated that his arguments were contained in the motion. When asked by the trial court whether he had anything to add, the defendant replied, "I don't know what I have to say. I really don't have know how to go about this." He then stated, "I thought I was going to have somebody to represent me. I really don't know what to say." There is no mention of the defendant's appellate rights in the hearing transcript.
Our review of the arguments and record demonstrate that although the district court did not have a statutory duty to inform Hemphill of his right to appeal the denial of his motion to withdraw his no contest pleas, his attorney's failure to inform him of his right to an appeal denied him the right to that proceeding. We further conclude, based on the record before us, that the attorney appointed to represent the defendant regarding the motion to withdraw his pleas not only failed to inform the defendant of the right to appeal, but completely abandoned his role as counsel during the hearing on that motion. Because the representation provided by defendant's appointed counsel was egregiously ineffective and highly prejudicial, we conclude it is necessary to remand the case for a new hearing on Hemphill's motion to withdraw his pleas.Right to attorney in post-conviction proceedings
The KSC also reiterated that criminal defendants should be represented by counsel in post-conviction hearings when the state is represented by counsel:
Because this case is being remanded for additional proceedings, however, we emphasize our previous holdings that even though a court need not automatically hold a hearing or appoint counsel in all post-conviction matters, when a hearing is held "at which the State will be represented, then due process of law does require that the defendant be represented unless the defendant waives the right to counsel." This procedure was not followed during the hearings on the defendant's motions to appeal out of time.
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