State v. Maberry

465 P.3d 191

STATE of Kansas, Appellee,

v.Christopher Charles MABERRY, Appellant.

No. 120,972

Court of Appeals of Kansas.

Opinion filed May 22, 2020.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Natasha Esau, assistant district attorney, and Derek Schmidt, attorney general, for appellee.

Before Hill, P.J., Buser and Bruns, JJ.

Buser, J.:

After pleading guilty to aggravated escape from custody, Christopher Charles Maberry filed a pro se postsentencing motion to withdraw his plea. The district court summarily denied the motion. More than six months later, Maberry filed a motion to appeal out of time from the denial of his motion to withdraw plea. The district court also summarily denied this motion.

This is Maberry's appeal of the district court's order denying his motion to appeal out of time. He asserts the district court violated his right to due process in two ways: First, he was not informed the district court denied his motion to withdraw plea until after the statutory time to appeal had expired. Second, the district court failed to inform him of his appellate rights at the time the court denied Maberry's motion to withdraw plea.

Upon our review, we hold that Supreme Court Rule 134(a) (2020 Kan. S. Ct. R. 200) requires that if the district court rules on a motion or other application when an affected party who has appeared in the action is not present—either in person or by the party's attorney—the court immediately must serve notice of the ruling.

Moreover, to satisfy the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Section 18 of the Kansas Constitution Bill of Rights, we hold that substantial compliance with Supreme Court Rule 134(a) is required before the time to file a notice of appeal begins to run on the denial of a motion to withdraw plea. As a result, a defendant is entitled to file an out-of-time appeal if the district court does not substantially comply with the service requirement set forth in Rule 134(a).

Accordingly, we vacate the district court's summary dismissal and remand with directions to make findings regarding whether the district court substantially complied with Supreme Court Rule 134(a). Upon remand, if the district court determines that service of the court's order denying Maberry's motion to withdraw plea was not substantially complied with, the district court shall grant the motion to file an out-of-time appeal. On the other hand, if the district court determines that service of the court's order denying Maberry's motion to withdraw plea was substantially complied with, the district court shall reconsider its prior ruling, including, if appropriate, reinstating its prior ruling denying Maberry's motion to file an out-of-time appeal.

With regard to Maberry's second issue on appeal, we hold that because a criminal defendant does not have a statutory right to be informed of the right to appeal from a denial of a motion to withdraw plea, the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Section 18 of the Kansas Constitution Bill of Rights do not require that the district court inform the defendant of the right to appeal and the statutory time limit to appeal the denial of the motion. As a result, Maberry is not entitled to an out-of-time appeal simply because the district court failed to inform him of his rights to appeal the denial of the motion. Thus, we affirm the district court as to the second issue.

FACTUAL AND PROCEDURAL BACKGROUND

On January 5, 2018, the district court revoked Maberry's probation in several criminal cases, imposed the underlying sentences, and ordered him into custody. At the conclusion of the hearing, Maberry ran out of the courtroom. Maberry led officers on a foot chase throughout the courthouse until he encountered a locked door, whereupon he apologized to the officers and was arrested. The State charged Maberry with aggravated escape from custody, in violation of K.S.A. 2017 Supp. 21-5911(b)(1)(A).

At a plea hearing on this charge, the district court informed Maberry of the sentencing range for the crime, and Maberry said he understood the range of possible sentences. Maberry pled guilty as charged, stating, "[M]yself and the cameras in the court know I'm guilty. I'm guilty." The district court accepted Maberry's plea and found him guilty of aggravated escape from custody.

Prior to sentencing, Maberry filed a motion for a dispositional departure to probation. In the departure motion, Maberry noted that his mother was terminally ill, and she cried in the courtroom when his probation was revoked. In desperation, Maberry claimed that he ran from the courtroom afraid of never seeing his mother again.

At sentencing on May 11, 2018, Maberry asked "for the mercy of the courts" and told the district court, "I am really regrettably sorry for what I did." The district court, however, denied his departure motion and sentenced him to 19 months in prison. The district judge informed Maberry of his right to appeal the sentence, stating, "You can appeal this sentence by filing notice of appeal within 14 days in writing. If you can't afford an attorney we will appoint someone to represent you. You can talk to [your attorney]. If you want to appeal he'll file a notice of appeal for you." No appeal was filed.

On July 7, 2018, Maberry mailed our court a letter asking about an appeal in his criminal case. The Clerk of the Appellate Courts informed Maberry there was no appeal docketed in the case and no open appeals in his name. Maberry was referred to the district court to see if a notice of appeal had been filed.

On August 17, 2018, Maberry filed a pro se motion to withdraw his guilty plea in the district court. In the motion, Maberry argued that he was coerced into pleading guilty, and his defense counsel provided ineffective assistance—in particular, failing to file a presentencing motion to withdraw Maberry's plea at his request.

The district court summarily denied Maberry's motion on August 20, 2018. In its order, the district court stated: "The Defendant, on the record, showed the Court that his plea was knowing, intelligent and voluntary. He showed the Court that he [was] satisfied with the service of his attorney. His claim to the contrary at this point is not credible." Additionally, the district court found Maberry made "no claim[s] resembling an assertion of manifest injustice." Relevant to this appeal, the order did not advise Maberry of his right to appeal or the statutory time limit to appeal the district court's adverse ruling.

It does not appear from the record on appeal that the district court's order included a certificate of service or a cover letter indicating that the order was mailed to Maberry or to what address it was sent. At the bottom of the two-page order, however, was typewritten: "CC: Christopher Maberry." This is the only indication in the record that Maberry may have been provided with a copy of the district court's order denying his motion to withdraw plea.

On November 13, 2018—almost three months after the district court filed its order—Maberry handwrote a letter to the district court asking about the status of his motion to withdraw plea. In relevant part the letter read:

"I yet to this day have heard nothing back or have not received any Court dates that have been issued to me.

"Could you please get ahold of me to let me know if a possible Court date is assigned for the motion I had sent back in [August] 17th 2018[?]

....

"I would highly appreciate [it if] this matter could be brought [forthwith] with an [evidentiary] hearing that could be placed in [due] time.

"This matter has been pushed on now for a period of time exceeding ... three months now."

The record does not indicate if the district court replied to Maberry's letter.

On February 25, 2019, Maberry filed a pro se motion to appeal out of time. In the motion, Maberry asserted:

"Defendant was not transported to Court for an evidentiary hearing, not represented by counsel, [not] notified of the Court's denial until November 27, 2018, as well as his right to appeal the decision. As a result no appeal was timely filed. Mr. Maberry recently became aware that he has the right to appeal the Court's decision and wished to exercise his right to do so."

In response, the district court filed an order, dated February 26, 2019, summarily denying Maberry's motion to appeal out of time. In the order, the district court stated that "there is no rule requiring the Court to separately advise [Maberry] of the right to appeal" the denial of a motion to withdraw plea. The district court also indicated that Maberry failed

"to explain the delay between his acknowledgement of his receiving notice of the Court's August 20, 2018 decision which he says he received on November 27, 2018 and the filing of his Motion for Leave to Appeal Out of Time on February 25, 2019. That delay was obviously in excess of the 14 days that the Court informed him of at his sentencing."

Consequently, the district court ruled that Maberry did not allege sufficient facts to show the district court should excuse his failure to file a timely notice of appeal.

Maberry appeals the district court's denial of his motion to appeal out of time.

ANALYSIS

On appeal, Maberry contends the district court erred by denying his motion to file an appeal out of time. Maberry argues that due process of law entitles him to an out-of-time appeal for two reasons: First, the district court failed to notify him that it denied his motion to withdraw plea until after the time to appeal had expired. Second, the district court failed to inform him of his appellate rights upon the denial of his motion to withdraw plea. We will separately address the two arguments.

STANDARDS OF REVIEW AND BASIC STATUTORY AND CONSTITUTIONAL PRINCIPLES

At the outset, it is necessary to briefly summarize our standards of review and some basic statutory and constitutional principles relevant to...