Appeal from Saline District Court; DAN D. BOYER, judge.
1. K.S.A. 2006 Supp. 22-3602(b) specifically enumerates four instances, and no others, in which the State may appeal a district court decision: (1) From an order dismissing a complaint, information, or indictment; (2) from an order arresting judgment; (3) upon a question reserved by the prosecution; or (4) upon an order granting a new trial in any case involving a class A or B felony or for crimes committed on or after July 1, 1993.
2. A district court order granting relief under the rule in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), is not an arrest of judgment and not subject to appeal as such by the State.
3. Because K.S.A. 2006 Supp. 22-3602(b) does not include a concept of fundamental fairness, the State cannot raise that issue in an attempt to cross-appeal a grant of Ortiz relief.
4. Under the facts of this case where the defendant was not informed of his right to appellate counsel, the evidence reveals that the first Ortiz exception has been met and this court has jurisdiction to entertain the direct appeal.
The opinion of the court was delivered by: Hill, J.
Sentence vacated and case remanded with directions; cross-appeal dismissed.
Before RULON, C.J., MALONE and HILL, JJ.
This case was previously remanded to the district court to determine whether Casner could file an untimely appeal as permitted in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). It now returns to us because that court said he could so appeal. Both parties appeal. The State contends in its cross-appeal that the court erred in granting Ortiz relief. Meanwhile, in Casner's appeal, he argues that he is entitled to sentencing relief, citing State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), for authority. We dismiss the State's cross-appeal for lack of jurisdiction and uphold Casner's appeal and remand the case for a new sentence.
Background Facts and Prior Proceedings
Gary Casner entered into a plea agreement where he pled guilty to one count of attempting to manufacture methamphetamine in violation of K.S.A. 65-4159. In exchange, the State dismissed all remaining charges and recommended a downward durational departure sentence of 120 months' imprisonment. On August 21, 2001, the district court imposed the negotiated sentence. Casner did not appeal.
Beginning in February 2004 Casner sought relief from his sentence by filing a series of three motions. First, he filed a pro se K.S.A. 60-1507 motion to correct his illegal sentence, claiming McAdam for authority. This motion was followed in March 2004 with a motion to correct illegal sentence, contending that the district court should have sentenced him under K.S.A. 65-4161(a), for a severity level 3 drug felony, instead of under K.S.A. 65-4159(a), a severity level 1 drug felony. Finally, in July 2004 Casner asked to withdraw his guilty plea.
At a hearing on these motions, the State submitted the deposition of Casner's trial counsel. Casner's trial counsel could not recall discussing with Casner the legal defense that a severity level 1 crime of manufacturing, under K.S.A. 65-4159, could be sentenced as a severity level 3 crime of compounding a chemical, under K.S.A. 65-4161, but stated that it was his practice to discuss the consequences of entering into a plea, which included waiving legal defenses.
Casner testified at the hearing and confirmed that he had read the plea agreement prior to signing it, but that his trial counsel failed to discuss with him any legal or factual defenses. Casner further commented that if he had been advised of the possibility of being sentenced at a severity level 3 crime, he would not have agreed to the 120-month downward durational departure sentence. Nonetheless, Casner conceded that he understood that by entering into the plea agreement, the State would dismiss the remaining charges, forego filing an additional charge of aggravated failure to appear, and agree to a reduction in his sentence.
Ruling on these matters in January 2005, the district court denied Casner's motion under K.S.A. 60-1507, ruling that the McAdam holding cannot be applied retroactively in a collateral attack on a sentence imposed in accordance with a favorable plea agreement. Next, the court denied Casner's motion to withdraw his plea on the basis that no manifest injustice would occur in holding the defendant to the consequences of his plea. Casner appealed both decisions. We remanded the case to ...