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State v. Unruh

February 29, 2008

STATE OF KANSAS, APPELLEE,
v.
DANIEL UNRUH, APPELLANT.



Appeal from McPherson District Court; RICHARD B. WALKER, judge.

SYLLABUS BY THE COURT

1. Whether a court has jurisdiction presents a question of law over which an appellate court exercises de novo review.

2. Kansas Supreme Court Rule 5.051 (2007 Kan. Ct. R. Annot. 34) allows an appellate court to reinstate a dismissed appeal for good cause shown when an appellant makes application to the court within 30 days of the dismissal order by a trial court. The trial court has no jurisdiction to consider reinstatement of a dismissed appeal.

3. In State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), our Supreme Court recognized a limited exception to the statutory requirements for filing a timely appeal exists in cases where the defendant either (1) was not informed of his right to appeal; (2) was not provided an attorney to perfect the appeal; or (3) was provided an attorney who failed to perfect and complete an appeal. If any of these narrow exceptional circumstances are met, a defendant must be allowed to file an appeal out of time.

4. An appellate court examines the facts underlying an Ortiz exception under a substantial competent evidence standard of review. The ultimate legal conclusion of whether those facts fit the exception are reviewed under a de novo standard.

5. When a trial court fails to determine whether an exception under Ortiz applies, an appellate court can decide the issue if the record is factually and legally sufficient.

6. Because the defendant in this case was furnished an attorney who failed to perfect and complete his appeal, the third Ortiz exception has been met and the defendant is allowed to file a direct appeal of his sentence out of time.

7. An appellate court obtains jurisdiction only over the rulings identified in the notice of appeal. Nevertheless, the notice of appeal should not be overly technical or detailed. The notice of appeal is not a device to alert the parties to all possible arguments on appeal. That is the purpose of the docketing statements and briefs. A liberal construction of notices of appeal is called for in order to secure the just, speedy, and inexpensive determination of every action or proceeding.

8. A defendant who is allowed to file a direct appeal of his or her sentence out of time under Ortiz is not limited to the original notice of appeal that was never perfected and was ultimately dismissed.

9. The legislature's intent, as expressed through the plain language of K.S.A. 21-4705(e), is that the sentence for a second or subsequent conviction of manufacture of a controlled substance shall be a presumptive term of imprisonment of two times the maximum duration of the presumptive term of imprisonment. In the absence of language to the contrary, the legislature did not intend that a defendant's first conviction for manufacture of a controlled substance be subject to the doubling provision of K.S.A. 21-4705(e).

The opinion of the court was delivered by: Green, J.

Sentence vacated and case remanded with directions.

Before MARQUARDT, P.J., GREEN and LEBEN, JJ.

Daniel Unruh appeals from a judgment by the trial court that it lacked jurisdiction to reinstate his direct appeal. We determine that although the trial court lacked jurisdiction to reinstate Unruh's appeal under Supreme Court Rule 5.051 (2007 Kan. Ct. R. Annot. 34), Unruh's motion is more properly construed as a motion to appeal his sentence out of time under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). Because Unruh has shown that he was furnished an attorney who failed to perfect and complete his appeal, he is allowed to file a direct appeal of his sentence out of time under Ortiz. Although the State argues that Unruh should now be confined to the specific issue identified in his original notice of appeal, we determine that Unruh should not be limited to a notice of appeal that was never perfected and was ultimately dismissed in this case. Moreover, even if Unruh was limited to his original notice of appeal, the notice of appeal sufficiently encompassed the sentencing issues now raised by Unruh. Therefore, we have jurisdiction to address Unruh's arguments.

In his appeal, Unruh argues that he is entitled to be resentenced as a severity level 3 offender for his conviction of manufacture of methamphetamine under State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). We agree. Additionally, Unruh argues that the trial court erred in doubling his sentence under K.S.A. 21-4705(e). We also agree. Because the record establishes that Unruh's conviction in this case was his first conviction for manufacture of a controlled substance, his sentence should not have been doubled under K.S.A. 21-4705(e). Accordingly, we vacate Unruh's sentence and remand for resentencing in accordance with McAdam.

In January 2002, based on a plea agreement with the State, Unruh pled guilty to manufacture or attempted manufacture of methamphetamine in violation of K.S.A. 65-4159. At sentencing on April 8, 2002, the State argued that Unruh's presumptive sentence should be doubled under K.S.A. 21-4705(e) based on his February 2002 conviction in Reno County for manufacture of a controlled substance. Determining that the doubling rule under K.S.A. 21-4705(e) applied to this case, the trial court sentenced Unruh to 356 months in prison.

On April 9, 2002, Unruh's attorney representing him at the trial court level filed a notice of appeal. On April 9, 2002, the trial court signed an order appointing the appellate defender's office to represent Unruh in his appeal. Nevertheless, Unruh's appeal was never docketed. On September 3, 2002, the State moved to dismiss Unruh's appeal based on Unruh's failure to file a docketing statement within 21 days as required by Supreme Court Rule 2.04 (2007 Kan. Ct. R. Annot. 12). A copy of this motion was sent to Unruh's trial counsel. Unruh testified that he never received notice concerning the State's motion to dismiss his appeal. The trial court held a hearing, and no one appeared on Unruh's behalf at the hearing. The trial court dismissed Unruh's appeal on September 16, 2002.

In September 2006, Unruh moved, as a pro se litigant, to reinstate his appeal. Unruh argued that the attorney appointed to represent him in his appeal failed to perfect the appeal. Unruh requested that the trial court hold a hearing under Ortiz and allow him to appeal out of time. Alternatively, Unruh moved for resentencing as a severity level 3 felony offender under McAdam.

At the hearing on his motion to reinstate his appeal, Unruh testified that he received the notice of appeal and appointment order but did not receive any communication concerning his appeal. Unruh testified that he never received notice of the State's motion to dismiss his appeal. According to Unruh, he began writing letters approximately a year after his notice of appeal was filed but was unable to receive any response. Unruh eventually sent a letter to the trial court, requesting a copy of the appearance docket in ...


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