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State v. Shelly

Court of Appeals of Kansas

February 14, 2014

STATE of Kansas, Appellee,
v.
Charles E. SHELLY, Appellant.

Syllabus by the Court

1. The filing of a timely notice of appeal is jurisdictional. Generally, the appellant's failure to file a timely notice of appeal requires dismissal of the appeal.

2. The Kansas Supreme Court has recognized three exceptions that allow an untimely direct appeal from a conviction and sentence if the defendant either (1) was not informed of the right to appeal at sentencing or by counsel, (2) was indigent and not furnished counsel to perfect an appeal, or (3) was furnished counsel for that purpose who failed to perfect and complete an appeal.

Page 667

3. A sentencing judge is required to advise the defendant of his or her right to appeal within 14 days of the hearing and that an attorney will be appointed for the appeal if the defendant cannot afford one. However, Kansas statutes do not require the sentencing judge to specifically advise the defendant of his or her right to appeal the severity level of the sentence.

Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, for appellant.

Kevin M. Hill, county attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., BUSER, J., and HEBERT, S.J.

MALONE, C.J.

Charles E. Shelly appeals the district court's findings that none of the exceptions to the requirement of filing a timely notice of appeal set out in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), apply to his case. Specifically, Shelly argues that his sentencing judge failed to properly inform him of his right to appeal. He also argues that his retained counsel failed to file a direct appeal of the sentence even though Shelly asked him to do so. We agree with the district court's findings that none of the Ortiz Exceptions apply to Shelly's case, which results in the dismissal of his appeal.

On March 5, 2012, pursuant to a plea agreement, Shelly pled no contest to one count of unlawful distribution of a drug precursor, a severity level 2 drug felony, and one count of unlawful possession of a drug precursor, also a severity level 2 drug felony. The district court found Shelly guilty of both crimes and, on April 6, 2012, sentenced him to concurrent terms of 56 months' imprisonment for unlawful distribution of a drug precursor and 49 months' imprisonment for unlawful possession of a drug precursor. The district court also ordered Shelly to register as a drug offender. At the conclusion of the hearing, the judge advised Shelly that he had the right to appeal his sentence within 14 days of the hearing and that an attorney would be appointed to help with the appeal if he could not afford one. Shelly did not file a timely direct appeal.

At both his plea hearing and his sentencing hearing, Shelly had been represented by retained counsel, Robert E. Arnold, III. On July 2, 2012, Arnold filed a motion for leave to withdraw as counsel, which the district court granted. That same day, Shelly filed a pro se K.S.A. 60-1507 motion. In the motion, Shelly argued that his sentence should be modified based on the recent Kansas Supreme Court decision in State v. Snellings, 294 Kan. 149, 273 P.3d 739 (2012). The Snellings court had found that the crime of possession of ephedrine with intent to manufacture a controlled substance, a severity level 2 drug felony, has identical elements as the crime of possession of drug paraphernalia with intent to manufacture a controlled substance, a severity level 4 drug felony. 294 Kan. at 158, 273 P.3d 739. Shelly alleged that, under Snellings, he should be resentenced for a severity level 4 drug felony. He also noted that Snellings was issued the day he was sentenced and asserted there was no opportunity for him to present his argument earlier. Shelly's motion made no claim of ineffective assistance of counsel against Arnold.

The district court appointed counsel to represent Shelly and held a hearing on the motion on August 6, 2012. Shelly argued that the district court should resentence him on both his convictions based on Snellings. The State argued that the Snellings decision only applied to Shelly's conviction of possession of a drug precursor and not to his conviction of distribution of a drug precursor. The State also argued that the only chance for Shelly to obtain relief under Snellings would be for him to proceed with a motion to file a direct appeal out of time under Ortiz. After hearing arguments of counsel, the district court found that Snellings applied to unlawful possession of a drug precursor but not to unlawful distribution of a drug precursor. Accordingly, the district court resentenced Shelly only for unlawful possession of a drug precursor, modifying his sentence on that count to 11 months' imprisonment. The district court made no findings under Ortiz.

Page 668

On August 17, 2012, Shelly filed a notice of appeal, stating he was appealing from the district court's orders, " including but not limited to finding of guilt and the sentence entered herein." The State did not cross-appeal the district court's modification of Shelly's sentence. Shelly docketed an appeal with this court and, on April 17, 2013, filed a motion for remand to the district court. In that motion, Shelly acknowledged that he had not filed a timely notice of appeal from his sentencing in April 2012 but only from his resentencing in August 2012. Shelly asserted, however, that he had asked his attorney to appeal his original sentencing but that his attorney had failed to do so. Thus, Shelly asked this court to remand to the district court for a hearing pursuant to Ortiz, which sets forth exceptions to the requirement of filing a timely notice of appeal.

On May 1, 2013, this court granted Shelly's motion, stayed the appellate briefing schedule, and remanded the case to district court for a determination of whether the Ortiz exceptions apply to his case. The order stated that if the district court determined the Ortiz exceptions did not apply, Shelly could appeal that determination to this court.

The district court held the remand hearing on May 17, 2013. At the hearing, Shelly testified that after his sentencing in April 2012, he asked his retained attorney, Arnold, " What are our appeal options?" and Arnold replied that there was nothing to appeal. Shelly also testified that his mother e-mailed Arnold after learning about Snellings, but that Arnold told his mother to tell Shelly to " stop being a jailhouse lawyer." On cross-examination, Shelly acknowledged that the sentencing judge specifically informed him of his right to appeal. Shelly also acknowledged that he had filed an appeal in a separate criminal case in the past, so he was aware of how to instruct his lawyer to file an appeal. Shelly conceded that, after Arnold told him there was nothing to appeal, he did not further direct Arnold to file an appeal.

Arnold testified at the hearing and stated that both before and after sentencing, he discussed with Shelly his right to appeal and he recalled " there being a decision not to proceed with any appeal." Although Arnold admitted that Shelly later sent him communications about other cases that might impact his sentence, Arnold testified " there was never an agreement reached to file any type of additional request for relief from that ...


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