State v. Smith

482 P.3d 586

STATE of Kansas, Appellee,

v.Shelbert SMITH, Appellant.

No. 121,949

Supreme Court of Kansas.

Opinion filed March 12, 2021.

Richard Ney, of Ney, Adams & Miller, of Wichita, argued the cause, and was on the briefs 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 Wilson, J.:

For the third time, Shelbert L. Smith appeals the decision of the district court denying his motion for leave to appeal out of time. Smith raises multiple issues for our consideration. Twice before, this court has considered Smith's case; twice before, it has reversed the decision of the district court and remanded the matter. See State v. Smith , 308 Kan. 778, 423 P.3d 530 (2018) ( Smith II ); State v. Smith , 304 Kan. 916, 377 P.3d 414 (2016) ( Smith I ). This time, we affirm the district court's ruling.

Smith's argument requires us to consider the exceptions to the general rule prohibiting untimely appeals, as set forth in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). "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." Smith I , 304 Kan. at 919, 377 P.3d 414. Smith's arguments invoke the first and third Ortiz exceptions. Issues concerning the scope of previous mandates and the finality of a journal entry are also raised.

FACTS

Although the Smith I and Smith II opinions have already set forth the factual and procedural history of the case, we will briefly summarize the pertinent facts once more. In 1993, Smith pled no contest to first-degree felony murder, aggravated kidnapping, aggravated robbery, and possession of a firearm by a minor, all arising out of the killing of Cleo Bell. At sentencing, the district court rejected the arguments of Smith's attorney, Max Opperman, and imposed a life sentence each for murder and aggravated kidnapping, a sentence of 10 years to life for aggravated robbery, and a sentence of 30 days in jail for the firearm convictions—all consecutive. The district court also told Smith that it could modify the sentence imposed through a procedure then known as a 120-day callback—a statutory mechanism eliminated with the passing of the Kansas Sentencing Guidelines Act, K.S.A. 1993 Supp. 21-4701 et seq.

Although Opperman filed a timely motion for probation or modification of sentence, the district court denied it in a "motion minutes sheet" dated March 2, 1994. In the motion minutes sheet, the district court directed the State to prepare an appropriate journal entry. Additionally, the district court did not check the box on the motion minutes sheet signifying "[t]hat this document shall serve as the court's order without further journal entry/order." None of the parties or their representatives were present at the time the district court denied the motion for modification, and the then-prosecutor has since represented that he was unaware of the district court's ruling or its order directing the State to prepare a journal entry.

Nearly 20 years later, Smith filed a pro se motion for leave to appeal out of time. Among other things, this motion alleged that Opperman was ineffective because he "failed to inform the defendant upon his options to appeal" and "failed to perfect and complete an Appeal when the defendant specified that he wasn't happy with the decision and told his attorney he wanted to appeal the judgment made." This court remanded the matter in order for the district court to conduct a hearing to evaluate Smith's eligibility to appeal out of time under the exceptions enumerated Ortiz , 230 Kan. 733, 640 P.2d 1255.

At the first Ortiz hearing, Smith testified that he had pled no contest because Opperman—who had died in 2009—had represented that the judge would show leniency and consider his age at sentencing. Additionally:

"Smith further testified that immediately after his sentencing hearing, he told Opperman he wanted to appeal but Opperman said to wait until after the 120-day callback. After the 120-day period had passed with no further word from Opperman, Smith began trying to contact Opperman by phone—sometimes two or three times a day for all of 1994. When these efforts proved futile, Smith gave up out of frustration." Smith II , 308 Kan. at 780, 423 P.3d 530.

No evidence was presented on the adequacy of information provided to Smith concerning his appellate rights (hereinafter, "first Ortiz exception claim"). Smith I , 304 Kan. at 918, 377 P.3d 414. Without making findings of fact, the district court denied Smith's motion, apparently solely because Smith had waited too long to attempt an appeal. Smith appealed, arguing "that he should be allowed an untimely appeal because his appointed trial counsel failed to file the appeal that [he] requested." Smith I , 304 Kan. at 916-17, 377 P.3d 414. In other words, Smith did not present his first Ortiz exception claim in this appeal, but instead limited his arguments to the third Ortiz exception. Smith I , 304 Kan. at 920, 377 P.3d 414.

The Smith I court reversed, taking issue with the district court's failure to make findings of fact in order to evaluate Smith's credibility and, thus, his attempt to show entitlement under the third Ortiz exception. Smith I , 304 Kan. at 922, 377 P.3d 414. The court then remanded the matter "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." Smith I , 304 Kan. at 922, 377 P.3d 414.

A different district court judge held a second Ortiz hearing on December 9, 2016. Smith II , 308 Kan. at 780, 423 P.3d 530. Again, the evidence presented at this hearing focused entirely on Smith's third Ortiz exception argument, in accordance with the Smith I mandate. Smith II , 308 Kan. at 780-81, 423 P.3d 530. Following the second Ortiz hearing, the district court concluded that Smith's testimony was not credible, offering 13 observations to support this finding. Smith II , 308 Kan. at 782-83, 423 P.3d 530.

Smith again appealed, and the Kansas Supreme Court again reversed the district court's decision. This time, the court focused on the district court's improper consideration of Smith's hypothetical musical choices (which had never been discussed before the court) and the district court's sua sponte order to the Kansas Department of Corrections ("KDOC") "to produce records of Smith's ‘tattoos and brands.' " Smith II , 308 Kan. at 784-88, 423 P.3d 530. The court concluded that both actions created the appearance of bias or prejudice and thus warranted reversal. Smith II , 308 Kan. at 788-89, 423 P.3d 530. Ultimately, the court—referencing the mandate of Smith I —reversed the district court's decision and remanded the matter to a different judge, whom it cautioned "to consider only evidence in the record that is relevant to Smith's credibility." Smith II , 308 Kan. at 789, 423 P.3d 530.

Following the Smith II remand, a third Ortiz hearing was held before yet another district court judge. At this hearing, Smith's counsel raised two new arguments not previously addressed by either prior district court decision or by the Smith I and Smith II courts. Specifically, Smith's counsel argued that, because the district court filed no journal entry memorializing its decision with respect to Smith's motion for sentence modification, the time to file an appeal never began to run. Smith's counsel also argued that Smith's circumstances satisfied the first Ortiz exception, i.e., that he was not adequately informed of his appellate rights.

Smith presented testimony from licensed psychologist Dr. Brian Stone. Prior to the hearing, Dr. Stone tested Smith in order to assess his faculty for "problem solving, reasoning," "automatic processing of language or how much auditory memory you can hold," and "different aspects of reading, writing, and math." Based on these tests, Dr. Stone testified that Smith's overall IQ score was 95, or in the 36th percentile, but that his score was significantly lower—88, the 21st percentile—in verbal IQ. Dr. Stone diagnosed Smith with dyslexia and dysgraphia and further testified that, when he entered a plea as a 16-year-old, Smith would have had the auditory memory of an average six-year-old child, which would have made it "difficult" to remember and absorb information in a setting like a courtroom or a school. However, Dr. Stone elaborated that Smith "had better attention than I did"—he just had difficulty absorbing large amounts of auditory information at once. As Dr. Stone put it, "Give it to him just enough at once, he's fine. The minute he gets bombarded with blah, blah, blah, that's hard for him to internalize it." According to Dr. Stone, "One-on-one in a small room without additional noise or filling up his auditory memory," Smith could comprehend information "as long as you're not moving too fast." He opined that courtroom proceedings would generally pass too quickly for Smith to fully understand, although "if he could pause you all or rewind, he could eventually get it."

Dr. Stone also opined that Smith could not have read his plea agreement form at the time he signed it, based on his "fourth and fifth grade reading level": "I would only hope they read it to him slowly."

Smith also testified. According to Smith, Opperman only met him once in jail, after the plea but before sentencing; otherwise, he only saw Opperman on court dates. He also testified that Opperman gave him the plea form while he was in court, on the same day he entered his plea. Smith testified that he did not know about his right to appeal...