Lapse of time not necessarily fatal to out-of-time appeal

Michelle A. Davis won in State v. Smith, No. 110,061 (Kan. August 5, 2016), obtaining remand to the district court for additional findings on Mr. Smith's motion to file an out-of-time appeal. Mr. Smith was convicted in 1993, when he was sixteen years old, after pleading no contest to several charges. The district court sentenced Mr. Smith to several consecutive life prison sentences.  Mr. Smith said he told his attorney to file an appeal, but that his attorney said to wait until after a 120-day call back (a potential modification process available at that time). But after the modification was denied, defense counsel never filed a notice of appeal. Approximately twenty years later, Mr. Smith filed a pro se notice of appeal and motion for out-of-time appeal. On a first remand to the district court, the only witness was Mr. Smith, who testified that he directed his attorney to filed an appeal, which he never did. Trial defense counsel passed away in 2009. On the first remand, the district court found that Mr. Smith waived his right to appeal based on the passage of time. Analyzing the third Ortiz exception, the KSC disagreed:

But requiring a defendant to establish the timeliness of his or her attempt to invoke the third Ortiz exception adds a step to the proper analysis set forth in [State v. Patton, 287 Kan. 200, 195 P.3d 753 (2008], to-wit: (1) Whether the defendant told his or her counsel to appeal, but the attorney failed to file or perfect the appeal; and, (2) if so, the defendant will enjoy a presumption of prejudice but must show that he or she would have timely appealed, but for counsel's failure. 

Patton discussed the "let the matter rest" concept, but as a factor in the Flores-Ortega two-prong performance and prejudice analysis. The court found that Patton had not "let the matter rest," based on evidence in the record that showed Patton desired to pursue an appeal and had been attempting to do so, but for his counsel's nonperformance. In other words, as in Patton, Smith's dilatory conduct might be relevant to the credibility of his claim that he told his attorney to appeal or his claim that he would have proceeded with an appeal if his attorney had not failed him. But the lapse of time between Smith telling his attorney to appeal and Smith's attempt to use the third Ortiz exception to file an out-of-time appeal, standing alone, was not a threshold bar to the untimely appeal as a matter of law.

Because the district court had never made any real Oritz findings, the KSC remanded for a new hearing on whether Mr. Smith told his attorney to file an appeal. 

[Update: after remand, the district court found that Mr. Smith did not meet the third Ortiz exception. In State v. Smith, No. 116,968 (Kan. August 17, 2018), the KSC reversed and remanded for a new hearing before a different judge because the district court considered improper evidence.]

[Further update: after the second remand, the KSC affirmed the finding of the district court that Mr. Smith did not meet the third Ortiz exception. State v. Smith, No. 121,949 (Kan. March 12, 2021).]