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State v. Hemphill

July 3, 2008

STATE OF KANSAS, APPELLEE,
v.
BOBBY G. HEMPHILL, SR., APPELLANT.



Review of the judgment of the Court of Appeals in an unpublished opinion filed April 20, 2007. Appeal from Reno district court; RICHARD J. ROME, judge. Judgment of the Court of Appeals affirming in part, reversing in part, and remanding to the district court is affirmed in part, reversed in part, and remanded with directions. Judgment of the district court is reversed.

SYLLABUS BY THE COURT

1. We have long recognized that a defendant has a right to a direct appeal from the denial of his or her motion to withdraw a plea. Such an appeal must be filed within the time frame for criminal appeals found in K.S.A. 22-3608, which is currently 10 days after the district court announces its judgment.

2. The filing of a timely notice of appeal is jurisdictional, and if the appeal is not taken within the 10-day period fixed by statute, it must be dismissed. We have recognized limited circumstances, however, requiring that a defendant be granted an opportunity to file an appeal after this 10-day period has expired.

3. In State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), the court recognized limited exceptions to the rule of appellate jurisdiction requiring timely filing of notices of appeal that allowed defendants to appeal their convictions and sentences when they were (1) not informed of the rights to appeal; (2) not furnished an attorney to perfect an appeal; or (3) furnished an attorney for that purpose who failed to perfect and complete an appeal.

4. Where there is no statutory duty for the court to inform a defendant of the right to an appeal or other judicial proceeding, but the defendant's right to the proceeding was not preserved as a result of counsel's failure to consult with him or her regarding that right, the defendant may be permitted to file an appeal out of time under the rationale of the United States Supreme Court in Roe v. Flores-Ortega, 528 U.S. 470, 145 L.Ed. 2d 985, 120 S.Ct. 1029 (2000).

5. Where the record of trial establishes that an attorney appointed to represent an accused abdicates his or her role as the defendant's counsel, and where the actions of the attorney appointed to represent the defendant are both egregiously ineffective and highly prejudicial, this court may act to remedy such inadequacy.

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

In 2003, based on pleas of no contest, Bobby G. Hemphill, Sr., was convicted and sentenced for two counts of possession of methamphetamine with intent to distribute within 1,000 feet of a school. In 2004, he filed a post-sentence motion to withdraw his pleas of no contest, which the district court denied after holding a hearing. Several months later, the defendant filed successive motions to appeal out of time from his convictions and sentence and from the denial of his motion to withdraw his pleas. Hearings were held, after which his motions were denied. In a per curiam opinion, the Court of Appeals reversed the district court's decision denying Hemphill an appeal out of time from his sentence, relying on State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), and remanded for an evidentiary hearing on that question. The Court of Appeals affirmed the district court's decision denying an appeal from the disposition of his motion to withdraw his pleas as, in the panel's point of view, any error that resulted from the denial was harmless. State v. Hemphill, Nos. 95,209 and 95,210, unpublished opinion filed April 20, 2007. We granted the defendant's petition for review.

Procedural History

On January 25, 2001, the defendant was charged with one count of possession of ephedrine or pseudoephedrine, one count of manufacture or attempted manufacture of methamphetamine, one count of possession of methamphetamine, one count of possession of drug-manufacturing paraphernalia, and one count of possession of drug-use paraphernalia in Reno County. On March 2, 2001, he was charged with one count of manufacture or attempted manufacture of methamphetamine and one count of possession of drug-manufacturing paraphernalia for unrelated conduct also occurring in Reno County.

Pursuant to a plea agreement, the defendant entered no contest pleas to two counts of possession of methamphetamine with intent to sell within 1,000 feet of a school. The two cases were consolidated for sentencing purposes, and the State dismissed all other charges. On March 19, 2003, the district court imposed the sentences recommended in the plea agreement, sentencing Hemphill to 48 months' imprisonment for each conviction, to run consecutively, or 96 months' imprisonment total, with 36 months of postrelease supervision. Neither the transcript of the plea hearing nor the transcript of the sentencing hearing contain an explanation of or comment on the defendant's appellate rights.

Motion to Withdraw Pleas

On April 21, 2004, Hemphill filed a pro se motion to withdraw his pleas in both Reno County cases, claiming that his pleas should be set aside in light of this court's decision in State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), which was decided in January 2004. In his motion, Hemphill recognized that his current convictions, which were severity level 2 offenses, were not subject to relief under McAdam, but the original charges filed against him, severity level 1 offenses, would have required relief under our decision. Construed liberally, the motion claimed that the defendant should be allowed to withdraw his pleas because they were involuntary and lacked a factual basis.

The district court appointed counsel to represent the defendant, held a hearing on these motions on July 23, 2004, and denied relief to the defendant. At the hearing, defendant's appointed counsel told the court that he did not believe that his client's motions had merit and explained why he felt this way. He then requested that the district court allow the defendant to stand up and make his own argument.

Addressing the court, Hemphill stated that he did not know what to argue and stated that his arguments were contained in the motion. When asked by the trial court whether he had anything to add, the defendant replied, "I don't know what I have to say. I really don't have know how to go about this." He then stated, "I thought I was going to have somebody to represent me. I really don't know what to say." There is no mention of the defendant's appellate rights in the hearing transcript.

Motions to Appeal Out of Time

On August 29, 2004, the defendant filed a motion to appeal out of time, requesting a late appeal of his underlying convictions, sentences, and the denial of his motion to withdraw his pleas pursuant to the first reason stated in Ortiz--that he was never informed of his right to appeal. The district court again appointed counsel to represent the defendant, and the motion was set for hearing.

The State appeared on December 3, 2004, for the hearing on the defendant's motion and presented a brief argument for denial of the motion. The defendant did not appear either in person or by appointed counsel. The district court subsequently denied the motion. The record is silent, however, on whether the defendant was ever informed of the district court's ruling from the December hearing. On January 17, 2005, the defendant filed a petition with the court inquiring as to the status of his motion. Again, the record is silent as to whether the defendant received a response to his petition.

On July 5, 2005, the defendant filed an additional motion to appeal out of time both from his underlying convictions and sentences and from the denial of his motion to withdraw his pleas. The defendant was not appointed counsel for this motion, which were heard by the district court on July 15, 2005. Once again, the State appeared and made a brief argument, but the defendant did not appear ...


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