              IN THE SUPREME COURT OF THE STATE OF KANSAS

                                       No. 110,061

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                                   SHELBERT L. SMITH,
                                       Appellant.


                             SYLLABUS BY THE COURT

1.
       The factual findings underlying a trial court's ruling on a motion to appeal out of
time pursuant to State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), are reviewed for
substantial competent evidence, while the legal determinations are reviewed de novo.


2.
       Appellate courts in Kansas have declined to find a constitutional right to appeal
and generally exercise jurisdiction only where an appeal conforms to the applicable
statutes.


3.
       The court in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), created judicial
exceptions to the general rule barring untimely appeals. Under those exceptions, an
untimely appeal may be allowed when: (1) the defendant was not informed of his or her
right to appeal; (2) the defendant was not furnished an attorney to pursue the appeal; or
(3) the defendant was furnished an attorney who failed to perfect the appeal.



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4.
        Under the third exception in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982),
the defendant must establish that: (1) he or she told counsel to appeal, but the attorney
failed to file or perfect the appeal; and, (2) he or she would have timely appealed, but for
counsel's failure. The lapse of time between the defendant's directive to counsel to file an
appeal and defendant's attempt to use the third Ortiz exception to file an out-of-time
appeal, standing alone, is not a threshold bar to the untimely appeal as a matter of law.


        Appeal from Sedgwick District Court; GREGORY L. WALLER, judge. Opinion filed August 5,
2016. Reversed and remanded with directions.


        Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.


        Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.


The opinion of the court was delivered by


        JOHNSON, J.: Shelbert Smith appeals the district court's denial of his motion to file
a direct appeal out of time. He argues that he should be allowed an untimely appeal
because his appointed trial counsel failed to file the appeal that Smith requested. Because
this case is presented to us without adequate factual findings, we remand to the district
court to make the requisite findings pursuant to the framework described in this opinion.


                              FACTUAL AND PROCEDURAL OVERVIEW

        Smith was convicted as an adult in 1993, after pleading nolo contendere to first-
degree felony murder, aggravated kidnapping, aggravated robbery, and possession of a

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firearm by a minor. At the time, Smith was 16 years old. The district court sentenced
Smith to life sentences for the murder and aggravated kidnapping convictions, 10 years to
life for the aggravated robbery conviction, and 30 days in jail for the firearms conviction,
all to run consecutively.


       Smith asserts that he told his appointed counsel, Max Opperman, immediately
after sentencing that he wanted to file an appeal but that his attorney had advised him to
wait until the district court ruled on a motion to modify his sentence before appealing.
Under a procedure available at the time, commonly called the 120-day callback, a court
could modify a sentence within 120 days of sentencing in certain circumstances. See
K.S.A. 21-4603(d)(1) [then K.S.A. 1992 Supp. 21-4603(4)(a)]. In other words, a
successful sentence modification on a callback motion might change the necessity for or
character of an appeal of the original sentence.


       Smith's attorney did file a modification motion. But after the district court
overruled the motion on March 3, 1994, counsel never filed a direct appeal of Smith's
sentence.


       Nearly 2 decades later, on May 1, 2013, Smith filed a pro se notice of appeal, a
motion for an out-of-time appeal, and a motion for appointed counsel. Subsequently, his
appointed counsel filed a docketing statement. See K.S.A. 2015 Supp. 22-3601(b)(3).
This court ordered Smith to show cause why the untimely appeal should not be dismissed
for lack of jurisdiction, and Smith responded that he should be allowed to appeal out of
time under one of the exceptions in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982).
This court remanded to the district court to rule on Smith's motion for an out-of-time
appeal, which would include an Ortiz hearing if necessary.




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       At the district court hearing, the only evidence presented was Smith's testimony
that, immediately after he was sentenced, he told Opperman that he wanted to appeal, but
that Opperman had told Smith to wait for the result of the 120-day callback procedure.
Smith said he never heard from Opperman after the 120-day callback period ended,
despite persistent attempts to contact him. Smith said he called Opperman's office, two to
three times per day, for most of 1994 but was unable to reach him. Smith said his mother
also attempted to contact Opperman and was likewise unsuccessful. Smith said he
eventually gave up because he "was in limbo" and did not know what to do, until 19
years later when he found someone at the Hutchinson Correctional Facility who helped
Smith with his appeal.


       Opperman died in 2009. Therefore, the State was unable to present trial counsel's
testimony. The State presented no other evidence but argued that based on the Kansas
Court of Appeals decision in State v. Cole, No. 105,745, 2012 WL 1649886 (Kan. App.
2012) (unpublished opinion), rev. denied 296 Kan. 1131 (2013), Smith had waived his
right to bring an untimely appeal by waiting so long.


       The district court denied Smith's motion. The district court did not make any
findings of fact as to whether Smith had told Opperman to file an appeal, other than to
say, "Well, we have the statement of the defendant somewhat to that effect." Rather, the
district court relied on the Cole decision to find that the passage of time was a bar to
Smith's appeal, stating:


               "But the thing that the Court cannot get over is the fact that the defendant waited
       all these years and said absolutely nothing, did absolutely nothing.
               "In light of the decision of the Court [of Appeals] in State versus Cole, the
       [Kansas] Supreme Court would not be receptive. This Court cannot be receptive."




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       Smith timely appealed the district court's ruling.


              THE PASSAGE OF TIME AS A WAIVER OF AN ORTIZ EXCEPTION

       Smith argues that he should be allowed to bring his direct appeal out of time,
pursuant to Ortiz, because his attorney did not file an appeal despite Smith's direction to
do so, and Smith would have timely taken an appeal but for his counsel's
nonperformance. The State argues that the lapse of time between sentencing and Smith's
notice of appeal precludes review because, by letting the matter rest, Smith waived his
right to an appeal.


Standard of Review

       This court exercises unlimited review over the issue of appellate jurisdiction. State
v. Scoville, 286 Kan. 800, 803, 188 P.3d 959 (2008). The factual findings underlying a
trial court's ruling in an Ortiz hearing are reviewed for substantial competent evidence,
while the legal determinations are reviewed de novo. State v. Gill, 287 Kan. 289, 293,
196 P.3d 369 (2008).


Analysis

       Appellate courts in Kansas have declined to find a constitutional right to appeal
and generally exercise jurisdiction only where an appeal conforms to the applicable
statutes. 287 Kan. at 293-94. Crimes committed before July 1, 1993, were required to be
appealed within "10 days after the expiration of the district court's power to modify the
sentence." K.S.A. 22-3608(a). For sentences imposed under K.S.A. 21-4603(d)(1), the
district court could modify the sentence within 120 days (the 120-day callback).
Effectively, then, Smith had 130 days from the date of sentencing in which to appeal his
sentence.
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       There is no question that Smith's appeal was filed past the statutory deadline and
that the general rule would result in its dismissal. See Albright v. State, 292 Kan. 193,
197, 251 P.3d 52 (2011). But Ortiz created judicial exceptions to the general rule barring
untimely appeals. Under those exceptions, an untimely appeal may be allowed when: (1)
the defendant was not informed of his or her right to appeal; (2) the defendant was not
furnished an attorney to pursue the appeal; or (3) the defendant was furnished an attorney
who failed to perfect the appeal. State v. Patton, 287 Kan. 200, 206, 195 P.3d 753 (2008)
(citing Ortiz, 230 Kan. at 735-36). In Patton, this court developed rules for each of the
Ortiz exceptions. 287 Kan. at 219-24. In so doing, Patton emphasized that the general
rule barring untimely appeals was still exactly that—the general rule, and that the Ortiz
exceptions were "narrowly defined" and reserved for "truly exceptional circumstances."
Patton, 287 Kan. at 217.


       Patton recognized the second and third Ortiz exceptions are rooted in the concepts
of fundamental fairness and the Sixth Amendment right to counsel. Patton, 287 Kan. at
218-19. Effectiveness of counsel is generally analyzed by the two-prong analysis of
performance and prejudice set forth in Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Patton, 287 Kan. at 224. A defendant must first
establish that counsel's performance was deficient, and second, that counsel's
performance prejudiced the defense. 287 Kan. at 224. But the Patton court held that
under the third Ortiz exception, when counsel's deficient performance results in the
forfeiture of a proceeding, e.g., the right to an appeal process, the Strickland analysis is
modified by Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985
(2000):


               "Under Flores-Ortega, if appointed or retained counsel has failed to file or
       perfect a direct appeal by a criminal defendant, we will presume the existence of

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       prejudice. This is not, however, the same as a finding of prejudice per se, requiring
       application of the third Ortiz exception. The defendant must still demonstrate that, but for
       counsel's failure, he or she would have taken a timely direct appeal. The defendant need
       not show, as he or she would have had to show if we were using the Strickland standard
       as our benchmark, that such a timely direct appeal would have been successful. [Citation
       omitted.]" Patton, 287 Kan. at 225.


       Here, Smith asserts that he falls under the third Ortiz exception because he told his
attorney he wanted to appeal immediately after sentencing and because he unsuccessfully
attempted to contact his attorney about proceeding with an appeal on numerous occasions
during the year following the expiration of the 120-day callback period, but that his
attorney failed to file the requested appeal. Had his attorney filed an appeal, Smith claims
that he would have pursued it.


       In response, the State argued, and the district court agreed, that Smith had waived
his right to appeal because he "let the matter rest" by waiting so many years to attempt to
proceed with the appeal pro se. The district court relied on Cole, where a panel of the
Court of Appeals said whether the defendant "let the matter rest" was a threshold
requirement a defendant must overcome in order to assert an Ortiz exception, and a
failure to timely assert an Ortiz exception could be considered a waiver of that right.
Cole, 2012 WL 1649886, at *2. In effect, Cole said that a defendant may not make an
untimely request to be allowed to make an untimely appeal.


       Cole's threshold requirement that a defendant must establish that he or she had not
"let the matter rest" as a condition precedent to establishing an Ortiz exception was
apparently crafted from the following language in Ortiz:


       "'A defendant properly informed of his appellate rights may not "let the matter rest,"
       Worts v. Dutton, 395 F.2d 341, 344 (5th Cir. 1968), and then claim that he did not waive

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       his right to appeal.'" Ortiz, 230 Kan. at 736 (quoting Norris v. Wainwright, 588 F.2d 130,
       137 [5th Cir. 1979]).


       The quoted Fifth Circuit opinion, Norris v. Wainwright, 588 F.2d 130 (5th Cir.
1979), involved a different factual scenario. There, the defendant had been properly
informed of his appellate rights, but he did not direct his attorney to file an appeal. In
other words, the defendant made no contemporaneous attempt to invoke the right to
appeal which he had been told that he had. Here, the actions that Smith alleges that he
took during the year after he was properly informed of his appellate rights do not comport
with the Norris notion of letting the matter rest. Smith's immediate directive to his
attorney to appeal the sentence imposed is the antithesis of waiving his right to appeal;
rather, it was an invocation of his right to appeal contemporaneous with being advised of
that right. Perhaps a more accurate description of the district court's holding in this case
would be that Smith's suspension of his efforts to enforce his right to appeal for 19 years
constituted an abandonment of his right to appeal, as a matter of law.


       But requiring a defendant to establish the timeliness of his or her attempt to invoke
the third Ortiz exception adds a step to the proper analysis set forth in Patton, to-wit: (1)
Whether the defendant told his or her counsel to appeal, but the attorney failed to file or
perfect the appeal; and, (2) if so, the defendant will enjoy a presumption of prejudice but
must show that he or she would have timely appealed, but for counsel's failure. Patton,
287 Kan. at 225.


       Patton discussed the "let the matter rest" concept, but as a factor in the Flores-
Ortega two-prong performance and prejudice analysis. Patton, 287 Kan. at 225. The
court found that Patton had not "let the matter rest," based on evidence in the record that
showed Patton desired to pursue an appeal and had been attempting to do so, but for his
counsel's nonperformance. 287 Kan. at 225. In other words, as in Patton, Smith's dilatory

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conduct might be relevant to the credibility of his claim that he told his attorney to appeal
or his claim that he would have proceeded with an appeal if his attorney had not failed
him. But the lapse of time between Smith telling his attorney to appeal and Smith's
attempt to use the third Ortiz exception to file an out-of-time appeal, standing alone, was
not a threshold bar to the untimely appeal as a matter of law. But cf. Gill, 287 Kan. at
296-97 (found 8-year delay while attempting to effect appeal warranted denial of out-of-
time appeal, but declined to "suggest[] any bright-line temporal rules").


       Because the district court found the appeal time-barred, it did not conduct a Patton
analysis. Thus, the district court did not make the requisite factual findings that would
support the claimed third Ortiz exception. Moreover, the cold record before us only
contains Smith's testimony. Whether this evidence is sufficient to meet Smith's burden
relies in part on its credibility. A witness' credibility is a determination for the district
court to make. See State v. Wilkerson, 278 Kan. 147, 156, 91 P.3d 1181 (2004) ("It is not
this court's function to weigh witness credibility."); Barger v. United States, 204 F.3d
1180, 1182 (8th Cir. 2000) ("A bare assertion by the petitioner that she made a request
[for counsel to file appeal] is not by itself sufficient to support a grant of relief, if
evidence that the fact-finder finds to be more credible indicates the contrary
proposition.").


       Accordingly, we are compelled to send this back to the district court once again
for the express purpose of determining whether Smith's testimony is credible, i.e.,
whether he told his attorney to appeal, whether the attorney did not file an appeal, and
whether Smith would have appealed if his attorney had not failed to perform. If Smith's
testimony is credible, he has established deficient performance under Flores-Ortega. See
Albright, 292 Kan. at 211. A lawyer who disregards specific instructions to file a notice
of appeal has acted in a professionally unreasonable manner, and the defendant is entitled
to a new appeal without a showing that the appeal would have been successful. 292 Kan.
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at 209-10 (quoting Flores-Ortega, 528 U.S. at 477). In that event, Smith will be
permitted to appeal out of time.


       Reversed and remanded with directions.




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