Appeal from Sumner District Court; R. SCOTT McQUIN, judge.
1. A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review.
2. In order to establish an ineffective assistance of counsel claim, a defendant must show: (1) that counsel's performance fell below an objective standard of reasonableness; and (2) that counsel's deficient performance prejudiced the defense.
3. In a criminal case, the presumption that counsel's assistance is essential requires a court to conclude that a trial is unfair if the accused is denied counsel at a critical stage. The same is true on appeal. Under such circumstances, no showing of prejudice is required because the adversary process itself is presumptively unreliable.
4. Under the facts of this case, where trial counsel's actions resulted in denying defendant the entire judicial proceeding, which the defendant wanted at the time and to which he had a right, we find such ineffective assistance results in a presumption of prejudice. An appellate court cannot accord any presumption of reliability to judicial proceedings that never took place.
5. Under the facts of this case, the deficient performance of the defendant's counsel in failing to timely file an appellate brief resulted in a denial of the defendant's right to a direct appeal of his departure sentence. Such performance is presumptively prejudicial, and the defendant is entitled to a file a direct appeal of his sentence out of time.
The opinion of the court was delivered by: Green, J.
Affirmed in part, reversed in part, and remanded with directions.
Before GREEN, P.J., ELLIOTT and MALONE, JJ.
Douglas King appeals from the trial court's judgment denying his K.S.A. 60-1507 motion. First, King argues that his attorney on direct appeal was ineffective for failing to timely file his appellate brief, resulting in dismissal of his appeal. We agree. Because King's counsel's untimely filing of the brief fell below an objective standard of reasonableness and because such performance was highly prejudicial as it foreclosed King's right to a direct appeal of his sentence, we determine that King is entitled to file a direct appeal of his sentence out of time. We affirm on all other issues. Accordingly, we affirm in part, reverse in part, and remand with directions to allow King to file a direct appeal of his sentence out of time.
In October 1995, King pled no contest to second-degree murder in violation of K.S.A. 21-3402. The parties inform this court that the trial court, on its own motion, imposed an upward durational departure sentence of 206 months in prison. This sentence was double the high end of the guidelines sentence of 103 months in prison.
King filed a notice of appeal and docketing statement with this court. Counsel was appointed to represent King. This court granted several extensions for King to file his brief. Nevertheless, this court denied King's sixth motion to extend the time to file his brief and dismissed the appeal. Several days later, King moved to reinstate the appeal and submitted a brief to this court. This court, however, denied King's motion to reinstate the appeal and returned King's brief to the appellate defender's office. King petitioned our Supreme Court for review, but his petition was denied.
In July 2003, King moved for relief under K.S.A. 60-1507 as a pro se litigant. King alleged that his appellate counsel was ineffective for failing to timely file his appellate brief, resulting in dismissal of his appeal. Moreover, King argued that his appellate counsel, in the untimely brief, did not present the issues in his case that had merit. In addition, King alleged that his trial counsel was ineffective on numerous grounds and that the trial court had violated his constitutional rights by initially refusing to appoint counsel in his criminal case, by failing to dismiss the charges based on a speedy trial violation, by imposing an illegal sentence, and by imposing an upward durational departure sentence.
The trial court appointed counsel to represent King on his K.S.A. 60-1507 motion. The trial court held a nonevidentiary hearing and heard arguments from both parties' attorneys. King was present at the hearing. In two written memorandum decisions, the trial court denied relief to King on all of the issues raised in his K.S.A. 60-1507 motion. Concerning King's argument that his appellate counsel was ineffective in failing to timely file a brief, the trial court noted that the State conceded that appellate counsel's performance was deficient and fell below an ...