0IN THE SUPREME COURT OF THE STATE OF KANSAS
Nos. 90,639,
91,068
STATE OF KANSAS,
Appellee,
v.
JUSTIN E. PHINNEY,
Appellant.
SYLLABUS BY THE COURT
1. Despite the general rule that a criminal defendant can appeal following judgment, no
appeal can be taken from a judgment of conviction upon a guilty or no contest plea,
except that jurisdictional or other grounds going to the legality of the proceedings may be
raised as provided by K.S.A. 60-1507. K.S.A. 2004 Supp. 22-3602(a).
2. The filing of a timely notice of appeal is jurisdictional. If a sentencing appeal is not taken
within the 10-day period fixed by K.S.A. 22-3608(c), it must be dismissed.
3. An exception to the general rule that the filing of a timely notice of appeal is jurisdictional
is recognized in the interest of fundamental fairness only in those cases where an indigent
defendant was either: (1) not informed of the rights to appeal; (2) was not furnished an
attorney to perfect an appeal; or (3) was furnished an attorney for that purpose who failed
to perfect and complete an appeal. If these narrow exceptional circumstances are met,
a
court must allow an appeal out of time.
4. A sentence is illegal if it is: (1) imposed by a court without jurisdiction; (2) does not
conform to the statutory provision, either in the character or the term of the punishment
authorized; or (3) ambiguous with respect to the time and manner in which it is to be
served.
5. Where a K.S.A. 2004 Supp. 60-1507 motion raises a Frazier or
McAdam claim, the
appellate courts have jurisdiction over such cases, but the claims will not be successful
unless a direct appeal of the sentence was pending at the time Frazier or
McAdam was
filed. See State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied
274 Kan. 1115
(2002); State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004).
6. A defendant who benefits from a favorable plea has a right to file an appeal of his or her
sentence out of time where the circumstances fit the Ortiz exception. See State
v. Ortiz,
230 Kan. 733, 640 P.2d 1255 (1982).
7. Where the record on appeal is factually and legally sufficient to support an
Ortiz exception
determination, such determination can be made by the appellate court without remanding
to the district court.
8. The facts underlying an Ortiz exception ruling should be examined on appeal
under a
substantial competent evidence standard of review. The ultimate legal determination of
whether those facts fit the exception should be reviewed under a de novo standard.
9. If a defendant can meet the narrow exceptional circumstances outlined in
Ortiz and
applied in Willingham, that defendant's out-of-time appeal should be treated as if it
were a
timely filed direct appeal. See State v. Willingham, 266 Kan. 98, 967 P.2d 1079
(1998).
Review of the judgment of the Court of Appeals in an unpublished decision filed July 9,
2004. Appeal from Harvey district court; CARL B. ANDERSON, JR., judge. Judgment of the
Court of Appeals affirming the district court is reversed. In case No. 90,639, the appeal is
dismissed. In case No. 91,068, judgment of the district court is reversed, and the case is remanded
with directions. Opinion filed November 10, 2005.
Randall L. Hodgkinson, deputy appellate defender, argued the cause and was
on the briefs
for appellant.
David E. Yoder, county attorney, argued the cause, and Donna L.
Longsworth, assistant
county attorney, and Phill Kline, attorney general, were on the brief for appellee.
The opinion of the court was delivered by
ALLEGRUCCI, J.: Defendant Justin E. Phinney pled no contest to possession of
pseudoephedrine and brings both an appeal from the district court's denial of his motion to reduce
sentence and, pursuant to State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), an
out-of-time
direct appeal of his sentence. He argues he should be resentenced under the identical offense
doctrine as applied in State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev.
denied 274 Kan.
1115 (2002). The Court of Appeals affirmed the district court in an unpublished opinion filed July
9, 2004, and we granted Phinney's petition for review.
Phinney was charged with four drug-related violations, stemming from offenses occurring
July 10, 2001. Counsel was appointed. At the preliminary hearing on December 14, 2001, the
State agreed to dismiss Counts 2 through 4 and to recommend probation in exchange for
Phinney's plea of no contest to the remaining count of possession or sale of ephedrine,
pseudoephedrine, or phenylpropanolamine, in violation of K.S.A. 2001 Supp. 65-7006, a drug
severity level 1 felony.
On February 7, 2002, Phinney received the standard 150-month prison sentence, with a
dispositional departure to 36 months' probation. Phinney did not file a notice of appeal.
On March 15, 2002, the Court of Appeals decided State v. Frazier, 30 Kan.
App. 2d 398,
holding that possession of pseudoephedrine, under K.S.A. 2001 Supp. 65-7006(a), and
possession of drug paraphernalia, under K.S.A. 2001 Supp. 65-4152 (a)(3), are identical crimes,
and a defendant convicted under 65-7006(a) may be sentenced only under the lesser penalty
provision of 65-4152.
In November 2002, Phinney violated his probation; new counsel was appointed for
Phinney, and probation revocation proceedings began. Phinney moved the district court to reduce
his sentence from a severity level 1 felony to a severity level 4 felony based on the decision in
Frazier.
On December 20, 2002, the district court denied Phinney's motion, ruling that "[n]othing
in the Frazier case . . . makes it retroactive." The court revoked Phinney's probation
and ordered
him to serve the original 150-month sentence.
On December 26, 2002, Phinney filed a notice of appeal from the district court's denial of
his motion to reduce his sentence. The appeal was not timely docketed, but in May 2003 the
Court of Appeals granted Phinney's motion to docket the appeal out of time.
On July 3, 2003, the Court of Appeals decided Wilson v. State, 31 Kan. App.
2d 728, 71
P.3d 1180, rev. denied 276 Kan. 974 (2003). Wilson refused to apply
Frazier retroactively on a
K.S.A. 60-1507 collateral attack. In that case, the movant had pled no contest to possession of
ephedrine or pseudoephedrine and had failed to appeal his sentence, which was imposed 2 years
before Frazier was decided. The court reasoned that Wilson "could have raised the
precise
question decided by Frazier on appeal, but he failed to do so." 31 Kan. App. 2d at
730-31.
On August 14, 2003, Phinney filed a second notice of appeal stating his "intention to
appeal from all adverse judgments, rulings, and findings of fact entered by the district court at
sentencing held on February 7, 2002." On August 18, 2003, Phinney filed a motion to consolidate
this appeal with the earlier appeal from denial of his motion to reduce sentence, and, in the
absence of objections or jurisdictional challenges, the Court of Appeals granted it.
On September 19, 2003, the Court of Appeals issued an order requiring the parties to
show cause why the appeal should not be dismissed for lack of jurisdiction based on all notices of
appeal being filed outside the 10-day limitation period in K.S.A. 22-3608(c) and the original
sentencing date.
In response, Phinney filed two affidavits and a copy of a portion of the sentencing
transcript. One affidavit was from Phinney. It stated that his attorney had not informed him of his
right to appeal his sentence, the appellate remedies available, or the steps necessary to implement
them. Phinney's affidavit also noted that his attorney never specifically discussed the possibility of
an appeal raising the identical offense doctrine. Phinney asserted that had he been so informed, he
would have instructed his attorney to file and perfect a timely appeal. The second affidavit was
from Phinney's defense attorney in the district court, corroborating his failure to inform Phinney of
his right to appeal his sentence, describe available remedies, or outline the steps necessary to
implement them. The sentencing transcript demonstrated that the district judge also failed to
inform Phinney on the record of his right to appeal his sentence or the procedures for doing so.
The State was granted three extensions of time but nevertheless failed to file any response
to the Court of Appeals' show cause order.
On October 17, 2003, the Court of Appeals decided to retain jurisdiction of Phinney's
direct appeal pursuant to Ortiz, 230 Kan. 733, as applied in State v.
Willingham, 266 Kan. 98,
967 P.2d 1079 (1998). Phinney's case was assigned to the summary calendar, and no oral
arguments were heard.
In its July 9, 2004, opinion, the Court of Appeals held that Phinney was not entitled to
retroactive application of Frazier on his "collateral attack." The Court of Appeals
relied on
Wilson, 31 Kan. App. 2d 728, Syl., and on Easterwood v. State, 273
Kan. 361, 383, 44 P.3d 1209
(2002). Phinney, slip op. at 4-5.
The Court of Appeals' opinion ignored its earlier implicit decision to hear the case under
an Ortiz exception. It considered the appeal as a collateral attack, stating: "Phinney
had been
sentenced and the time for filing a notice of appeal had run by the time Frazier was
decided." Slip
op. at 5. It did not discuss the source of its jurisdiction to make the ruling it made on the merits of
the Frazier claim or evaluate the factors that are usually considered in granting or
denying an
Ortiz exception.
On March 1, 2005, this court granted Phinney's petition for review. On March 29, Phinney
filed a supplemental brief in this court and has filed notices of additional case authority. The State
has not filed a brief or pleading since filing its brief before the Court of Appeals.
The issue of appellate jurisdiction is one of law over which this court has unlimited, de
novo review. State v. James, 276 Kan. 737, 744, 79 P.3d 169 (2003). The right to
appeal is
purely statutory, and an appellate court has a duty to question jurisdiction on its own initiative. If
the record indicates that jurisdiction does not exist, the appeal must be dismissed. State v.
Verge,
272 Kan. 501, 521, 34 P.3d 449 (2001).
Despite the general rule that a criminal defendant can appeal following judgment, no
appeal can be taken from a judgment of conviction upon a guilty or no contest plea, "except that
jurisdictional or other grounds going to the legality of the proceedings may be raised" as provided
by K.S.A. 2004 Supp. 60-1507. K.S.A. 2004 Supp. 22-3602(a). Following a plea, a defendant
may, however, challenge the sentence imposed. There are a limited number of methods by which a
defendant may challenge his or her criminal sentence before an appellate court. The three that are
potentially pertinent in this case are: (1) a direct appeal from sentencing; (2) an appeal from denial
of a motion to correct an illegal sentence under K.S.A. 22-3504; and (3) a civil proceeding
collaterally challenging the sentence under 60-1507. Phinney has, at various points in this
litigation, attempted to employ all three of these methods, and on appeal he argues he is entitled
to relief under all three.
We first consider Phinney's assertion that his sentence was illegal. A defendant may
challenge his or her sentence before an appellate court if the sentence qualified as "illegal." K.S.A.
22-3504 gives the court jurisdiction to correct an illegal sentence at any time. Neither the district
court nor an appellate court has jurisdiction of an untimely request to modify a sentence unless the
sentence is illegal, as that word has been defined in interpreting case law. See State v.
McCoin,
278 Kan. 465, 468, 101 P.3d 1204 (2004).
A sentence is illegal if it is: (1) imposed by a court without jurisdiction; (2) does not
conform to the statutory provision, either in the character or the term of the punishment
authorized; or (3) ambiguous with respect to the time and manner in which it is to be served.
State
v. Barnes, 278 Kan. 121, 123-24, 92 P.3d 578 (2004) (citing State v. Duke,
263 Kan. 193, 194,
946 P.2d 1375 [1997]).
Here, there is no question that the district court had jurisdiction to find Phinney guilty and
impose a sentence under K.S.A. 2001 Supp. 65-7006(a). Phinney's sentence conformed to
65-7006(a) as to both its character and term of punishment. His sentence was not ambiguous in
the
time or manner in which it was to be served. Thus, Phinney's sentence was not illegal under the
statute. See Barnes, 278 Kan. at 123-24 (underlying sentence attacked under identical
offense
doctrine as applied in State v. McAdam, 277 Kan. 136, 83 P.3d 161 [2004], not
illegal); see also
United States v. Batchelder, 442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979)
(no
constitutional right to lesser penalty when two applicable statutes proscribe identical conduct).
McCoin involved a similar situation. In that case, the defendant filed a motion
attacking
his sentence as illegal in light of McAdam, decided after he was sentenced. This court
held that
because McCoin's sentence was not illegal, the district court never acquired jurisdiction to rule on
that motion because it was untimely. Consequently the appellate courts had no jurisdiction to
review the district court's ruling. McCoin, 278 Kan. at 468.
The situation is almost identical here. The sentence Phinney received under 65-7006(a)
does not qualify as "illegal" under K.S.A. 22-3504. The filing of a timely notice of appeal is
jurisdictional, and if the appeal is not taken within the 10-day period fixed by statute, it must be
dismissed. See State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980). Clearly,
Phinney failed
to appeal within 10 days of sentencing as required by K.S.A. 22-3608(c). Since Phinney's
sentence was legal, the district court never acquired jurisdiction to hear his untimely motion to
reduce sentence. Consequently, the Court of Appeals lacked and this court lacks jurisdiction to
entertain an appeal from the district court's denial of the motion. Thus, that appeal (90,639)
should be dismissed.
A defendant also may challenge a sentence in an appellate court collaterally pursuant to
60-1507. This court indicated that the proper procedure for raising the application of the identical
offense doctrine under McAdam or, in Phinney's case, Frazier, would be
60-1507. See McCoin,
278 Kan. at 468. The Court of Appeals' decision in Wilson, however, clearly held that
Frazier
would not be retroactively applied to a 60-1507 attack on a sentence when an unappealed
conviction followed a favorable plea agreement and was "already final" at the time
Frazier was
filed. Wilson, 31 Kan. App. 2d at 730-34.
In Barnes, 278 Kan. at 122-28, we held that a defendant whose direct appeal
on a
McAdams-type issue was still pending at the time McAdams was
decided, is entitled to be
resentenced. On the other hand, in Bryant v. State, 280 Kan. 2, Syl. ¶ 3, 118
P.3d 685 (2005), we
held that a defendant who enters a plea and does not file a direct appeal cannot collaterally
challenge the sentence imposed on the ground that the offense he or she pled guilty to and a
second offense having a lesser penalty have identical elements. Thus, where a 60-1507 motion
raises a Frazier or McAdam claim, the appellate courts have
jurisdiction over such cases, but the
claims will not be successful unless a direct appeal of the sentence was pending at the
time
Frazier or McAdam was decided.
In addition, even if we were to construe Phinney's motions as a 60-1507 pleading,
although it might be properly before this court, it would provide him no relief. However, Phinney
did not institute a 60-1507 proceeding. Phinney concedes that he was not collaterally attacking his
conviction or sentence but seeking a legal sentence. The Court of Appeals nevertheless insisted in
its opinion that "this is a collateral attack" and found Wilson, a 60-1507 case,
dispositive. Slip op.
at 4-5. This was incorrect.
Phinney complied with none of the detailed procedures required to institute a 60-1507
proceeding, and he was not pro se. Moreover, even if Phinney's motion were to be considered a
60-1507 motion, the issue of retroactivity has been disposed of in the Frazier setting
by the Court
of Appeals in Wilson, and disposed of in the analogous McAdam setting
by this court in Bryant.
In the circumstances of Bryant, "[a] defendant who enters a guilty plea but does not
file a direct
appeal cannot collaterally challenge the sentence imposed." Bryant, 280 Kan. 2, Syl.
¶ 3.
Phinney also asserts that his most recent notice of appeal is a direct appeal from his
sentence under Ortiz and is properly before this court. Phinney did not file a notice of
appeal
within 10 days of his sentencing. In fact, Phinney did not file a notice of appeal challenging his
underlying sentence until just over a year and a half after he was sentenced. Accordingly, this
court is required to dismiss his appeal for lack of jurisdiction unless the exception articulated in
Ortiz applies to excuse the untimeliness of his direct appeal.
A limited exception to the general rule requiring a timely appeal from sentencing is
recognized in the interest of fundamental fairness only in those cases where an indigent defendant
was either: (1) not informed of the rights to appeal; (2) was not furnished an attorney to perfect
an appeal; or (3) was furnished an attorney for that purpose who failed to perfect and complete an
appeal. Ortiz, 230 Kan. at 735-36 (relying on Brizendine v. State, 210
Kan. 241, 242-44, 499
P.2d 525 [1972]). If these narrow exceptional circumstances are met, a court must allow an
appeal out of time. See Willingham, 266 Kan. at 99-102.
After imposing a sentence in a case which has gone to trial on a not guilty plea, the trial
court is required to advise the defendant of his or her right to appeal and of the right of an
indigent to appeal in forma pauperis. K.S.A. 22-3424(f); Willingham, 266 Kan. at 100
(quoting
K.S.A. 22-3424[f]). "'The purpose of K.S.A. 22-3424(f) logically is the same as that of [then Fed.
R. Crim. Proc. 32(a)(2)]: "to insure that all defendants who might wish to appeal are fully aware
of their appeal rights." [Citations omitted.]'" 266 Kan. at 101. A full awareness of these rights
necessarily includes the knowledge that there is a time frame within which these rights must be
exercised. 266 Kan. at 101.
In Willingham, on review of the record from an Ortiz hearing, the
court found that no
appeal was filed by Willingham's counsel; the limited advice given by counsel was insufficient to
establish a voluntary waiver; no written waiver was obtained; and the court failed to advise the
defendant at the time of sentencing concerning his appeal rights, in violation of K.S.A.
22-3424(f). 266 Kan. at 101. The court noted that the posture of the case would be more like
Ortiz
had counsel followed the provisions of K.A.R. 105-3-9 or testified that he fully advised the client
of his right to appeal, including time limits, or if there had been a full discussion of the rights at
sentencing. 266 Kan. at 101-02.
No Kansas case law prevents a defendant from claiming an Ortiz exception to
appeal his
or her sentence out of time after benefitting from a favorable plea. In State v.
Redmon, 255 Kan.
220, 222-23, 873 P.2d 1350 (1994), a defendant who entered a guilty plea still had the right to
file an appeal of his sentence out of time when the circumstances fit the
Ortiz exception. As noted
previously, Willingham and Ortiz indicate that fundamental fairness
requires all defendants to be
advised of their rights to appeal. See Willingham, 266 Kan. at 100-01;
Ortiz, 230 Kan. at 735-36.
Here, the Court of Appeals did not remand this case to the district court for an Ortiz
determination but rather made that determination itself.
At least one case has held explicitly that the proper procedure for determining applicability
of an Ortiz exception is to first raise the issue before the district court to allow a
proper factual
record to be created. See State v. Van Cleave, 239 Kan. 117, 119-21, 716 P.2d 580
(1986). This
is consistent with cases arising in other settings, holding that absent a district court record, there is
nothing for an appellate court to review; thus, if a district court was never given an opportunity to
consider an issue, the case is not properly before the appellate court. See, e.g.,
State v. Porter,
Green & Smith, 228 Kan. 345, 615 P.2d 146 (1980). At times, however, such cases
hold that in
order to prevent denial of fundamental fairness upon which Ortiz is premised, a court
may
consider granting an Ortiz exception for the first time on appeal. See Van
Cleave, 239 Kan. at
119.
In several recent cases seeking application of Frazier or McAdam
through out-of-time
appeals based on Ortiz, Court of Appeals panels have regarded remand as mandatory
in accord
with Willingham so the district court could hold hearings to determine if the movants
were
advised of their rights to appeal and whether they requested appeals to be filed. See,
e.g., State v.
Singleton, 33 Kan. App. 2d 478, 488-89, 104 P.3d 424 (2005).
However, in as many other similar cases, other Court of Appeals panels have simply
considered the Ortiz issue and made determinations without remanding to the trial
court. See,
e.g., Phinney, slip op. at 3-5.
Presumably, in those cases remanded for Ortiz hearings, such as
Singleton, the record on
appeal was insufficient for the Court of Appeals to make a ruling, and, in the other cases, such as
Phinney's, the Court of Appeals considered the record sufficient to enable it to make the
Ortiz
determination itself. This is the proper procedure to follow for making an Ortiz
determination.
Here, we find that the record is factually and legally sufficient to support an
Ortiz
determination being made for the first time on appeal. Thus, the Court of Appeals was
empowered to decide the two questions that could have been before the district court. They are
akin to those before a court on a motion to suppress: What are the facts, based on substantial
competent evidence? And what is the ultimate legal conclusion drawn from those facts after our
de novo standard of review?
The Court of Appeals has consistently said that whether the exception articulated in
Ortiz
excuses a defendant's failure to timely file a direct appeal is a question of law over which an
appellate court has unlimited, de novo review. See, e.g., State v.
Mitchell, 30 Kan. App. 2d 1090,
1091-92, 54 P.3d 969, rev. denied 275 Kan. 967 (2002) (citing State v.
Parker, 23 Kan. App. 2d
655, 658, 934 P.2d 987, rev. denied 262 Kan. 967 [1997]); State v.
Dugan, 29 Kan. App. 2d 71,
72, 25 P.3d 145, rev. denied 271 Kan. 1039 (2001) (citing Parker);
Parker, 23 Kan. App. 2d at
658 (citing Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 [1991]). The
cases applying
this de novo standard cite other Court of Appeals cases for that proposition. We do not agree that
review is entirely de novo.
Gillespie, 250 Kan. 123, the Supreme Court case upon which the Court of
Appeals relied
in its initial pronouncement of this standard, involved a suit by trust beneficiaries against a trustee,
a factual setting completely distinct and divorced from the cases relying on it.
Gillespie most
certainly does not hold that the question of whether Ortiz excuses a criminal
defendant's untimely
direct appeal is one of law entitled to de novo review. 250 Kan. at 129. The Court of Appeals'
reliance on Gillespie does not support a de novo standard of review of an
Ortiz exception
determination. Instead, we adopt the same standard of review for Ortiz exceptions
that is applied
in the suppression context. The facts underlying an Ortiz exception ruling should be
examined on
appeal under a substantial competent evidence standard of review. The ultimate legal
determination of whether those facts fit the exception should be reviewed under a de novo
standard. If, in Phinney's case, his response to the Court of Appeals' show cause order, combined
with the record, provides sufficient evidence for an appellate court to make an Ortiz
determination, this court should review the Court of Appeals' determination under that standard.
See State v. Gleason, 277 Kan. 624, 644-45, 88 P.3d 218 (2004).
Phinney's affidavit states that his attorney did not inform him of his right to appeal his
sentence, the appellate remedies available, or the steps necessary to implement them. Further,
Phinney's affidavit notes that his attorney never specifically discussed the possibility of an appeal
on the identical offense doctrine. Phinney asserts that had he been so informed, he would have
instructed his attorney to timely file and perfect an appeal. The record also contains an affidavit
from Phinney's defense attorney, who corroborates that he did not inform Phinney of his rights to
appeal or describe the available appellate remedies or the steps necessary to implement them. The
transcript from sentencing also demonstrates that the district court never informed Phinney of the
right to appeal or its attendant procedures. Unlike Ortiz, Phinney did not sign a waiver of his
rights. A waiver might be found had Phinney's counsel followed K.A.R. 105-3-9, or testified that
he had fully advised Phinney of his appeal rights and the attendant procedures. As in
Willingham,
no such waiver may be found in Phinney's case.
Three extensions of time were granted to the State, but the State failed to file any
response or objections to Phinney's affidavits. The State also did not file a brief in this court after
Phinney's petition for review was granted. These failures do not affect the sufficiency of the
record, and, absent an objection, omissions in the record will not be considered on appeal. See
Galindo v. City of Coffeyville, 256 Kan. 455, 467, 885 P.2d 1246 (1994). We
conclude that,
under these circumstances, a remand for an Ortiz hearing before the district court is
unnecessary.
The record is sufficient to have permitted the Court of Appeals and to permit this court to
evaluate Phinney's claim to an Ortiz exception.
As stated above, the Court of Appeals initially retained Phinney's appeal "pursuant to
State
v. Willingham and State v. Ortiz." Slip op. at 3. Curiously, however, it later
appeared to reject
application of an Ortiz exception in this case. It confused the jurisdictional and
procedural
question of whether the exception applied with the substantive question of whether
Frazier should
allow resentencing. Slip op. at 5.
If a defendant meets the "narrow exceptional circumstances" as set out in
Ortiz and as
applied in Willingham, he or she must be allowed to file an appeal out of time.
See Willingham,
266 Kan. at 101-102. Given the content of the affidavits and the sentencing transcript in this case,
substantial competent evidence supports the facts requiring an Ortiz exception, and
we conclude,
as a matter of law, the exception applies. Phinney's direct appeal of his sentence is properly before
this court.
Having determined that Phinney's direct appeal is properly before this court, does the
Frazier rule compel that Phinney be resentenced? The Court of Appeals approach to
this issue is
confusing. Although it initially allowed Ortiz and Willingham to excuse
the untimeliness of
Phinney's appeal, it ultimately ruled his case was final when Frazier was decided
because he had
been sentenced and the time for filing a notice of appeal had expired. Slip op. at 4-5.
This court clearly held in State v. Campbell, 279 Kan. 1, 106
P.3d 1129 (2005), and State
v. Barnes, 278 Kan. 121, that a defendant should benefit from a ruling made while his direct
appeal is pending. Campbell involved a direct appeal pending when
Frazier was decided, and this
court ultimately affirmed the holding in Frazier by finding that 65-7006(a) was
identical to 65-4152(a)(3) and that the defendant should have been sentenced under the lesser
penalty provision.
Campbell, 279 Kan. at 16-17. Barnes involved a direct appeal pending
when McAdam was
decided, and this court found the defendant was entitled to resentencing under
McAdam. Barnes,
278 Kan. at 130.
Phinney argues that Campbell and Barnes control his case. The
State has not responded
to this argument because it has not submitted a brief since the one it filed in the Court of Appeals.
That brief was filed before this court's decisions in Campbell and Barnes.
The rationale for allowing an Ortiz appeal out of time is fundamental fairness.
It is a
device to put the defendant into the position he or she would have been in if fully informed of his
or her appeal rights after sentencing. If a defendant can meet the narrow exceptional
circumstances outlined in Ortiz and applied in Willingham, that
defendant's out-of-time appeal
should be treated as if it were a timely filed direct appeal. See Willingham, 266 Kan.
at 101-02.
Thus, Phinney's appeal should be treated as if it had been filed timely. Had that occurred, it
would have been pending when Frazier was decided, and Frazier should
apply to reduce
Phinney's sentence, in accord with the holding in Campbell. This case must be
remanded for
resentencing as a drug severity level 4 felony.
This conclusion is also supported by this court's opinion in Bryant v.
State, 280 Kan. 2.
While we refused in Bryant to apply McAdam on a collateral attack, the
final paragraph of the
opinion contemplated an "alternative means to the end Bryant seeks," i.e., retroactive
application
of McAdam may be achieved by perfecting a direct appeal out of time, as Phinney has
done here.
See Bryant, 280 Kan. at 13.
The appeal from the district court and the Court of Appeals on the motion to reduce
sentence (90,639) is dismissed for lack of jurisdiction. In case No. 91,068, the Court of Appeals
and the district court are reversed, and the case is remanded for resentencing in accord with
Frazier.
LOCKETT, J., Retired, assigned.1
1 REPORTER'S NOTE: Justice Tyler C. Lockett, Retired,
was assigned to hear case Nos.
90,639 and 91,068 pursuant to the authority vested in the Supreme Court by K.S.A. 20-2616 to
fill the vacancy on the court resulting from Justice Gernon's death.
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