State v. Smith

423 P.3d 530

STATE of Kansas, Appellee,

v.Shelbert L. SMITH, Appellant.

No. 116,968

Supreme Court of Kansas.

Opinion filed August 17, 2018.

Richard Ney, of Ney, Adams & Miller, of Wichita, argued the cause, and David L. Miller, of the same firm, was with him on the briefs for appellant.

Julie A. Koon, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The decision of the court was delivered by Nuss, C.J.:

Shelbert Smith appeals the district court's denial of his motion to file a late appeal. Smith argues the court arbitrarily disregarded undisputed testimony that he told his trial counsel he wanted to appeal—evidence that would help him meet an exception to the rule requiring timely appeal. See State v. Ortiz , 230 Kan. 733, Syl. ¶ 3, 640 P.2d 1255 (1982). As a result, Smith asks that we reverse the court's decision and allow his appeal to be filed out of time.

We decline to so rule. Instead, because of our concerns that the district court improperly considered irrelevant, outside the record information in deciding Smith's testimony was not credible, we reverse and remand the case to a different judge to make that credibility determination anew.

FACTS AND PROCEDURAL HISTORY

In 1993, 16-year-old Shelbert Smith was convicted as an adult, after pleading no contest to first-degree felony murder, aggravated kidnapping, aggravated robbery, and possession of a firearm by a minor. The judge 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 firearm conviction.

At the sentencing hearing Smith's attorney, Max Opperman, made a brief argument that the sentences should be concurrent. The district court was to ultimately disagree. But the court told Smith that the next part of the process would involve his being taken to the Secretary of Corrections for a series of tests and evaluations. The court told Smith that after it received the results, it would determine the "final sentence" in the case.

The court continued:

"I cannot tell you what I'll do at that time. I'll consider all of the factors. Factors I must by law. I'll consider your age, I'll consider the facts of the case, and try to do what is right with everybody concerned.

"It will take at least 30 days to get all of the testing done. ... We'll get you in line soon as we can. Your lawyer will keep you informed what is going on here so you'll know what my final decision is soon as I've made the decision."

The court was referring to its then-authority to modify a sentence through a 120-day callback. After the enactment of the Kansas Sentencing Guidelines Act, K.S.A. 1993 Supp. 21-4701 et seq., this vehicle for sentence modification was eliminated for crimes committed after July 1, 1993. State v. Anthony , 274 Kan. 998, 999, 58 P.3d 742 (2002).

Opperman timely filed a motion for probation or modification of sentence, which the district court denied by a "motion minute sheet" on March 2, 1994. The present record on appeal contains no journal entry or transcript to suggest the court ever held a hearing on the motion. No one filed a direct appeal.

Twenty years after his crimes and convictions, Smith filed a pro se motion to file a direct appeal out of time. He claimed, among other things, that he told Opperman he wanted to appeal but Opperman never acted on that request. This court issued an order remanding to the district court so that, if necessary, it could conduct a hearing under Ortiz , 230 Kan. 733, 640 P.2d 1255, to determine if Smith was eligible to appeal out of time.

At that hearing, the State disclosed Opperman died in 2009. Smith testified that he agreed to plead no contest because Opperman told him the judge was lenient and would consider his age when sentencing. 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.

The district court made no findings of fact at the end of the Ortiz hearing. But it denied Smith's motion to appeal out of time. It stated it simply could not get over "the fact that the defendant waited all these years and said absolutely nothing, did absolutely nothing."

On Smith's appeal, this court ruled that the length of time between Smith telling his attorney to appeal and his attempt to use an Ortiz exception to file a late appeal could be a factor in the test to determine Smith's credibility. But contrary to the district court's apparent holding, "standing alone [it] was not a threshold bar to the untimely appeal as a matter of law."

State v. Smith , 304 Kan. 916, 922, 377 P.3d 414 (2016). So we remanded to the district court for a credibility determination:

"[W]e 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 . [Citation omitted.] 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. [Albright v. State] 292 Kan. [193] 209-10 [251 P.3d 52 (2011) ] (quoting [Roe v.] Flores-Ortega , 528 U.S. [470] 477, 120 S.Ct. 1029 [145 L.Ed.2d 985 (2000) ] ). In that event, Smith will be permitted to appeal out of time. " (Emphasis added.) Smith , 304 Kan. at 922-23, 377 P.3d 414.

A second Ortiz hearing was held—before a different judge—on December 9, 2016. Once again Smith testified that he told Opperman he wanted to appeal immediately after the sentencing hearing but that Opperman said to wait until after the results of the 120-day callback. According to Smith, although he was 16 at the time of his arrest, he was only in ninth grade because he repeated the sixth. He further testified that he was in special education classes and that his reading and writing skills were low enough that he could not understand novels or books.

Smith elaborated on his attempts to contact Opperman. He testified that he called and left Opperman messages throughout the year of 1994, but that he could not achieve any contact with Opperman after the sentencing hearing. When asked why he did not write letters to Opperman, Smith claimed that his reading and writing skills prevented it. He also testified that he did not write any of the pro se documents later filed with the court. Rather, a "jailhouse lawyer" helped him draft them.

During cross examination, Smith testified that although he stopped trying to contact Opperman, he did not give up on the hope of an appeal. He apparently "tried to get as much as [he] could that pertained to [his] case," until he found someone that could help put the motion together. When questioned further about what he collected over the years or what he was doing, Smith could not provide specifics. The State also pointed out an inconsistency. In Smith's interview conducted shortly after the crimes, he told the police he shot the victim. But in his motion to appeal out of time, he indicated that he was not the shooter.

New testimony revealed that Smith also enlisted his mother and grandmother to contact Opperman on his behalf. These attempts were equally unsuccessful and only resulted in promises to call back from Opperman's secretary. Although Smith's mother is deceased, his grandmother testified.

According to his grandmother, she tried to reach Opperman 5 or 10 times. But she was only ever able to reach his secretary. If she had been able to get through, she simply would have told Opperman to call Smith. She testified Opperman never returned her calls.

Six days after the second Ortiz hearing, on December 15, 2016, the district court issued its decision. It held Smith's testimony was not credible. The court held that it did not believe Smith ever asked Opperman for an appeal, nor did it believe that Smith would have appealed but for Opperman's failure to do so. To support its conclusion about Smith's lack of credibility, the court made 13 observations, which include

– Smith's confession and the factual basis for the no contest plea contradicts his later assertions, suggesting dishonesty;

– the level of organization, planning, and behavior required for the crime are inconsistent with the inability to file a notice of appeal if desired;

– Smith's demeanor throughout his multiple court appearances did not convey credibility;

– Smith's affidavit of indigence was signed and dated in a script inconsistent with illiteracy, thus his testimony on that point was not credible;

– the motion for out of time appeal contains a break in the narrative from third to first person, intimating that Smith himself drafted parts of the motion contrary to his testimony;

– Smith's testimony that his attorney told him he would be unlikely to go to jail was not credible as an attorney would not have given this advice in a case involving these facts, such as murder and aggravated kidnapping;

– Smith presents conflicting theories in his motion to appeal out of time;

– if Smith wanted to appeal it is not credible that he would not have been successful in arranging it through his family or friends;

– finally, the sheer amount of time and Smith's inaction make his testimony incredible because they are consistent with a defendant who "was caught red-handed by his own confession, knew he had no legitimate

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