Explaining late appeals

Autumn Fox and Doug Thompson won today in State v. Patton, No. 95,860 (Nov. 14, 2008) getting a late appeal for their client. Along the way, the KSC felt the need to refine the substance and procedure for late appeals under State v. Ortiz:

We need not repeat the rest of our Kargus discussion here. Suffice it to say that the decision exposed the possibility of analytical tension and confusing overlap among Ortiz, Strickland, and Flores-Ortega. That possibility, and the rising flood of Ortiz-based arguments we observe in cases coming before our Court of Appeals and in petitions for review addressed to this court–many seeking extremely fact-specific and thus not especially useful rulings on exactly which information about direct appeal must be imparted, and by whom, and when, and on whether defendant's oral or written statements or behavior constitute a waiver, and on what measures defense attorneys are required to take to preserve their clients' appeal rights when there has been no specific direction from those clients–motivate us to attempt clarification and, to the extent necessary, reconciliation of the controlling and persuasive law on the permissibility of late criminal appeals in Kansas.

To begin, it is important to recognize what Ortiz did not do. It did not endow criminal defendants with any additional constitutional rights. It did not impose affirmative duties on counsel or the court. It did not set up new requirements that must be met to prevent a late appeal. Arguments based on any of these approaches twist its intention and application.

Ortiz merely recognized the basic principle that a criminal defendant enjoys certain procedural due process protections, not only at trial or plea but also on appeal. These protections form the parameters and fill in the content of fundamental fairness; when they are ignored or violated, a remedy is necessary. We set out three narrowly defined, truly exceptional circumstances, when that remedy takes the form of permission for a late direct appeal.

We place conscious emphasis on "exceptional." Even after Ortiz, even in the glaring light emitted by its recent superstardom, the general rule remains that timely filing of a notice of appeal is indispensable and jurisdictional.

. . . .

It is evident to us today that what have come to be known in Kansas as the three "Ortiz exceptions" are grounded not only in fundamental fairness (here, procedural due process) but in the Sixth Amendment right to counsel. The first of the exceptions–applicable when a defendant was not informed of the right to appeal–goes to procedural due process alone. The second and third exceptions–applicable when a defendant was not furnished an attorney to perfect an appeal or was furnished an attorney for that purpose who failed to perfect and complete an appeal–go to the right of counsel and effectiveness of counsel. We have attempted to take the distinction in the constitutional bases of the exceptions into account in developing the following rules.

The first exception (not informed of the right to appeal) is based in the Due Process Clause and requires advice regarding the right to appeal, the time limits for an appeal, and the right to appointment of counsel on appeal. The defendant has the burden to show that he/she wasn't informed in the sentencing transcript. If the defendant meets that burden, the burden shifts to the state to show that the defendant had the missing information by another source, perhaps advice of counsel or a written plea agreement. If the defendant was not fully advised of the right to appeal, he/she still has to show that he/she would have appealed had he been informed of the right.

The second exception (not provided an attorney to appeal) is based in the Sixth Amendment right to counsel and only applies to indigent persons. The defendant has the burden to show that he/she timely sought an attorney to appeal and would have instructed counsel to appeal had counsel been appointed.

The third exception (provided an attorney that failed to perfect appeal), is also based in the Sixth Amendment right to counsel, but applies to all criminal defendants. The KSC applies the test from Roe v. Flores-Ortega, 528 U.S. 470, 470-72 (2000). Roe says that (1) if client explicitly tells attorney to appeal and attorney fails to appeal, ineffective assistance of counsel, (2) if client explictly tells attorney not to appeal and attorney does not appeal, no ineffective assistance of counsel, period; (3) if attorney does not receive explicit direction from client regarding appeal, court must make findings whether performance deficient. If client can make this showing, he/she gets a late appeal. He/she does not have to show that he would have prevailed on appeal.

Because the record was clear that Mr. Patton asked for an appeal and his attorney failed to perfect it, the KSC applied the third exception and held that he was entitled to an appeal (and application of McAdam).

For the most part, these refinements should be useful. As many of you know, I have been involved in a lot of Ortiz remands and have often wondered about the burden of proof and exactly what had to be proved under Ortiz. This decision will provide a lot of guidance that way. The KSC did not discuss the effect (if any) of the regulations governing post-trial responsibilities of appointed trial counsel (i.e. that appointed counsel must file a notice of appeal unless he/she has a written waiver of appeal). And the KSC did not expound on what might suffice for proof that a defendant would have appealed had he/she been properly advised of the right to appeal. But the procedure and substance certainly are a lot clearer today than yesterday.