State v. Smith

510 P.3d 696

STATE of Kansas, Appellee,

v.Shelbert SMITH, Appellant.

No. 123,856

Supreme Court of Kansas.

Opinion filed June 3, 2022.

Richard Ney, of Ney & Adams, of Wichita, argued the cause and was on the briefs for appellant.

Lance Gillett, assistant district attorney, argued the cause, and Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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

The critical issue in this case is whether a criminal defendant may file a second direct appeal to assert claims that would have existed at the time the first appeal was filed, when such claims were either not raised or abandoned in his first direct appeal. We hold he cannot. Because we lack jurisdiction over Smith's untimely appeal, we dismiss it.

FACTS AND PROCEDURAL BACKGROUND

This case represents Smith's fourth appearance before this court and his second overall attempt to appeal his sentences. We set forth the factual and procedural background of Smith's case in State v. Smith , 304 Kan. 916, 377 P.3d 414 (2016) ( Smith I ), State v. Smith , 308 Kan. 778, 423 P.3d 530 (2018) ( Smith II ), and State v. Smith , 312 Kan. 876, 482 P.3d 586 (2021) ( Smith III ). We summarize this history again here.

In 1993, when he was 16 years old, Smith killed Cleo Bell. He was later arrested and charged with various crimes related to the homicide. Smith ultimately pled nolo contendere to first-degree murder, aggravated kidnapping, aggravated robbery, and possession of a firearm by a minor. About a month later, in December 1993, Smith was sentenced and a journal entry reflecting that sentence was filed.

Smith timely moved for sentence modification. (At the time, a motion to modify sentence was contemplated under K.S.A. 1992 Supp. 21-4603 [4].) The district court denied the motion without explanation in a "motion minutes sheet" (MMS), which was filed in the record. The district court did not check a box on the MMS stating that the MMS was a "journal entry," instead directing the State to prepare a journal entry "reflecting" the court's ruling. The prosecutor was not aware of the MMS and no further memorialization of the court's ruling on the motion was filed.

Smith's trial counsel never filed an appeal on Smith's behalf.

In 2013, Smith filed in district court a pro se notice of appeal, motion to appeal out of time, and motion for appointed counsel. After counsel was appointed for Smith, this court ordered Smith to show cause why his appeal should not be dismissed for lack of jurisdiction. Smith argued this court did have jurisdiction to hear his late appeal because an exception to the general rule disallowing late appeals applied in his case. Smith asserted that he should be able to file a late appeal since his attorney failed to appeal despite Smith's instruction for him to do so, which, if proven, would allow a late appeal under the third of three exceptions set forth in State v. Ortiz , 230 Kan. 733, 735-36, 640 P.2d 1255 (1982). Smith I , 304 Kan. at 917-18, 377 P.3d 414. Lacking a sufficient factual basis to rule on Smith's assertions, this court remanded the case to district court for a hearing. The district court held an Ortiz hearing and denied Smith's motion.

Smith timely appealed the district court's denial of his motion but advanced no argument about the other two Ortiz exceptions. Nor did Smith claim that the appeal was otherwise timely. The Smith I court accepted this framing:

"There is no question that Smith's appeal was filed past the statutory deadline and that the general rule would result in its dismissal. 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.

....

"Here, Smith asserts that he falls under the third Ortiz exception .... [Citations omitted.]" Smith I, 304 Kan. at 919-20, 377 P.3d 414.

We also take judicial notice under K.S.A. 60-409(b)(4) that Smith's brief in Smith I argued he "qualified for a late appeal based upon the third exception: he had been furnished an attorney who failed to perfect an appeal," and asked the court to find that he "should be allowed an out of time appeal from sentencing." Because we still required additional findings of fact in order to determine the ultimate issue of whether Smith should be allowed to file a late appeal, we remanded the case to the district court for a second Ortiz hearing.

In the proceedings that followed remand, Smith continued to litigate the third Ortiz exception without addressing the other two and without claiming that the appeal was timely. The district court again rejected Smith's attempt to appeal out of time, finding that he lacked credibility.

Smith again appealed the district court's denial of his motion to file a late appeal. In Smith II , this court again reversed the district court for basing its credibility determination on irrelevant considerations and remanded the matter to a different judge with specific instructions "to consider only evidence in the record that is relevant to Smith's credibility." Smith II , 308 Kan. at 789, 423 P.3d 530.

At the third Ortiz hearing, Smith presented new evidence on his third Ortiz exception claim. But he also advanced two new theories to support the exercise of appellate jurisdiction: his claim that the district court's failure to file a journal entry rendered his appeal timely, and his alternative claim that his untimely appeal should be considered anyway, under the first Ortiz exception, because he was never informed of his appellate rights. After hearing evidence—including the testimony of licensed psychologist Dr. Brian Stone, who discussed Smith's IQ and ability to process and comprehend verbal and written language—the district court denied Smith's motion once more. The district court again found that Smith lacked credibility and that the Smith II mandate precluded consideration of his newly raised issues. But the district court also noted that the facts relating to Smith's missing journal entry argument "are not in dispute" and represented that it had "attempted to make relevant findings of fact" on the first Ortiz exception claim "in an effort to aid in the efficient resolution of this issue."

Smith again appealed. This time, we affirmed the district court's decision that Smith lacked credibility. Smith III , 312 Kan. at 889, 482 P.3d 586. In rejecting Smith's ability to raise new issues following the Smith II remand, we wrote:

"The mandate rule does not constitute an inflexible jurisdictional barrier to a party's ability to raise a new issue following a remand, but where a remand order is stated in specific terms following deliberate litigation choices by the parties—choices reinforced, in the present case, over two prior Ortiz hearings and two prior appeals—the parties are not free to endlessly expand on the issues the district court may consider in the absence of new (or newly discovered) facts. Here, Smith had two previous Ortiz hearings and two previous appeals in which to present these issues; his failure to do so led the Smith I and Smith II courts to winnow the pertinent issues for the district court's consideration down to the singular issue of Smith's credibility vis-à-vis the third Ortiz exception. Under these facts, we believe the district court correctly refused to consider Smith's first Ortiz exception and missing journal entry claims." Smith III , 312 Kan. at 886-87, 482 P.3d 586.

Smith filed this appeal shortly after Smith III , with no intervening events at the district court. Besides recapitulating his journal entry and first Ortiz exception claims, he now sets forth the substantive basis for his appeal: that his sentence violated the Eighth Amendment, as interpreted by Miller v. Alabama , 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), and Montgomery v. Louisiana , 577 U.S. 190, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016). We now turn to those arguments.

ANALYSIS

Smith's present appeal—his second overall attempt to appeal his sentence, and his fourth appearance here—arises nearly 30 years after his sentencing. It also follows close on the heels of the nearly eight year-long litigation process that encompassed Smith's first attempt to appeal. As noted, nothing took place at the district court between the publication of Smith III and Smith's current appeal. Indeed, we had not even issued a mandate for Smith III by the time Smith filed this appeal. Thus, we begin and end by considering our appellate jurisdiction.

Smith appears to assume his second appeal begins with a blank slate, making all appellate jurisdictional theories—other than those addressed in Smith I , Smith II , or Smith III —fair game for our review. But the legal choices Smith made throughout his first appeal—particularly the litigation of Smith I and II —did not simply evaporate with the final denial of his motion to appeal out of time in Smith III , where we also refused to consider his newly raised jurisdictional theories based on the mandate rule. Those same choices compel us to reject Smith's appeal once again.

Smith's prior framing of his appeal as untimely is now the law of the case .

Smith now attempts to argue his appeal is timely, because the statute in effect at the time, commonly called the "120-day callback," allowed Smith a period of time to request modification of his sentence. See K.S.A. 22-3608(1) (Ensley 1988) (granting a defendant "10 days after the expiration of the district court's power to modify the sentence" in which to appeal—a power provided to the district court by K.S.A. 1992 Supp. 21-4603 [4], albeit only for crimes committed before July 1, 1993); State v. Anthony , 274 Kan. 998, 999, 58 P.3d 742 (...