Must inform defendant of denial of motion to start appeal time

Caroline M. Zuschek won in State v. Maberry, No. 120,972 (Kan. App. May 22, 2020), reversing a district court finding that Mr. Maberry was not entitled to a late appeal. After pleading guilty and being sentenced, Mr. Maberry filed a motion to withdraw his plea. The district court denied the motion to withdraw and approximately six months later Mr. Maberry filed a motion to appeal out of time. The district court denied that motion as well. 

On appeal, the KSC held that the Due Process Clause does not require informing a defendant of the right to appeal after denial of a motion to withdraw plea. But the KSC went on to hold that the Due Process Clause does require substantial compliance with Supreme Court Rule 134(a), mandating that if the district court rules on a motion without the presence of a party, the district court must notify the party immediately:

Although the right to appeal is entirely statutory, "where the legislature has provided the right of an appeal, the minimum essential elements of due process of law in an appeal affecting a person's life, liberty, or property are notice and an opportunity to be heard at a meaningful time and in a meaningful manner." "To satisfy due process, notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."

The plain language of Supreme Court Rule 134(a) provides: "If the court rules on a motion or other application when an affected party who has appeared in the action is not present—either in person or by the party's attorney—the court immediately must serve notice of the ruling." Notice is required to ensure that the party with the right to appeal has actual knowledge that an adverse judgment has been rendered.

Importantly, Kansas caselaw provides that the time for taking an appeal does not begin to run until the party entitled to appeal has received notice of the judgment in compliance with Supreme Court Rule 134. In particular, our Supreme Court has held that "[t]he time for filing post-judgment motions or taking an appeal from a final judgment entered without notice commences to run when there has been compliance with K.S.A. 60-258 and Rule No. 134." Daniels v. Chaffee, 230 Kan. 32, 38, 630 P.2d 1090 (1981). While K.S.A. 60-258 does not apply in criminal cases, Rule 134 applies to both civil and criminal cases. 

Since Daniels, Kansas courts have repeatedly stated that compliance with Rule 134 is required before the time to take an appeal begins to run. Because Maberry was an affected party who was not present in court or represented by an attorney when the district court issued its ruling summarily denying his motion to withdraw plea, the time for taking an appeal would begin to run when Maberry was served with notice of the order.

Because the record did not establish whether the district court complied with Rule 134(a), the KSC remanded with directions that if it was not, Mr. Maberry was entitled to an out-of-time appeal.

[Update: the state did not file a PR and the mandate issued on June 30, 2020.]