Markovich v. Green

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No. 106,937

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MATTHEW PAUL MARKOVICH,
Appellant,

v.

RANDALL GREEN, et al.,
Appellees.


SYLLABUS BY THE COURT

1.
Under K.S.A. 22-4506(c), an indigent inmate has a statutory right to the
appointment of appellate counsel upon the filing of a notice of appeal of the district
court's ruling on a petition for a writ of habeas corpus filed pursuant to K.S.A. 60-1501.

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed February 8,
2013. Remanded with directions.

Matthew Paul Markovich, appellant pro se.

Jon D. Graves, of Kansas Department of Corrections, of Hutchinson, for appellees.

Before PIERRON, P.J., BUSER and LEBEN, JJ.

BUSER, J.: Mathew Paul Markovich, pro se, appeals the dismissal of his petition
for habeas corpus filed pursuant to K.S.A. 60-1501. Among numerous claims of error,
Markovich contends the district court's failure to appoint appellate counsel for him upon
the filing of his appeal was a violation of K.S.A. 22-4506(c).

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We conclude that under K.S.A. 22-4506(c), an indigent inmate has a statutory
right to the appointment of appellate counsel upon the filing of a notice of appeal of the
district court's ruling on a petition for a writ of habeas corpus filed pursuant to K.S.A. 60-
1501. Accordingly, we remand to the district court with directions.

FACTUAL AND PROCEDURAL BACKGROUND

Markovich filed his K.S.A. 60-1501 petition for a writ of habeas corpus while
incaracerated at the Ellsworth Correctional Facility. In the petition, he alleged numerous
violations of his liberty interests at both the Ellsworth facility and the Larned
Correctional Mental Health Facility. These violations primarily related to disciplinary
actions taken by correctional authorities against Markovich and denial of program credits
and good-time credits. Because Markovich had previously filed a federal civil rights case
raising similar claims, the Ellsworth County District Court summarily dismissed the
K.S.A. 60-1501 petition as duplicative.

Markovich appealed the dismissal to our court. See Markovich v. Green, No.
104,800, unpublished opinion filed February 25, 2011. Our court noted that Markovich's
federal case was voluntarily dismissed without prejudice and without a decision on the
merits. As a result, the Ellsworth County District Court's dismissal of the K.S.A. 60-1501
petition was reversed and the case was remanded for further proceedings. Slip op. at 5.

Upon remand, the Ellsworth County District Court appointed trial counsel for
Markovich. When Markovich was moved to the Hutchison Correctional Facility,
however, venue was transferred to the Reno County District Court. Consequently, the
Ellsworth County District Court allowed Markovich's appointed counsel to withdraw.

Markovich asked the Reno County District Court to appoint trial counsel, but the
court refused after reviewing the petition and concluding it did not contain substantial
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issues of law or triable issues of fact justifying the appointment. The Reno County
District Court held several hearings on Markovich's K.S.A. 60-1501 petition. At the final
hearing on September 27, 2011, the court dismissed the petition.

On October 4, 2011, Markovich filed a timely notice of appeal of the dismissal
and a request for appointment of appellate counsel with the Reno County District Court.
In support of his request, Markovich filed a statement of his inmate account to establish
his indigency. The record does not show whether the Reno County District Court ruled
on the request for appointed appellate counsel. Next, Markovich filed a motion for
appellate counsel with our court, which initially denied the request. Markovich also
petitioned our Supreme Court for a writ of mandamus to compel the Reno County
District Court to appoint appellate counsel. Our Supreme Court denied the petition as
moot.

THE RIGHT TO APPOINTED APPELLATE COUNSEL IN K.S.A. 60-1501 CASES

On appeal, Markovich raises numerous claims of error by the Reno County
District Court in dismissing his K.S.A. 60-1501 petition. For purposes of this opinion,
however, we will only review Markovich's claim that the district court erred in failing to
appoint appellate counsel for him to prosecute this appeal.

Markovich cites K.S.A. 22-4506(c) in support of his contention that he has a
statutory right to appointed counsel in these proceedings despite the district court's "silent
denial" of his request for appellate counsel. The State responds that the district court did
not abuse its discretion because Markovich's petition did not raise substantial questions of
law or triable issues of fact. The resolution of this issue depends on interpretation of
K.S.A. 22-4506(c). Appellate courts exercise unlimited review over statutory
interpretation. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).

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K.S.A. 22-4506 states in relevant part:

"(a) Whenever any person who is in custody under a sentence of imprisonment
upon conviction of a felony files a petition for writ of habeas corpus or a motion
attacking sentence under K.S.A. 60-1507 and files with such petition or motion such
person's affidavit stating that the petition or motion is filed in good faith and that such
person is financially unable to pay the costs of such action and to employ counsel
therefor, the court shall make a preliminary examination of the petition or motion and the
supporting papers.
"(b) If the court finds that the petition or motion presents substantial questions of
law or triable issues of fact and if the petitioner or movant has been or is thereafter
determined to be an indigent person as provided by K.S.A. 22-4504 and amendments
thereto, the court shall appoint counsel . . . to assist such person . . . .
"(c) If an appeal is taken in such action and if the trial court finds that the
petitioner or movant is an indigent person, the trial court shall appoint counsel to conduct
the appeal."

The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. Bergstrom v. Spears
Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). An appellate court
must first attempt to ascertain legislative intent through the statutory language
enacted, giving common words their ordinary meanings. Padron v. Lopez, 289
Kan. 1089, 1097, 220 P.3d 345 (2009).

The language of K.S.A. 22-4506(c) is plain and unambiguous. K.S.A. 60-1501(a)
is the statutory vehicle by which persons "detained, confined or restrained of liberty" in
this state may prosecute a writ of habeas corpus. K.S.A. 22-4506(c) clearly provides that
when an indigent petitioner appeals in such an action "the trial court shall appoint counsel
to conduct the appeal."

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The State implies that, similar to subsection (b), the petition must present
substantial questions of law or triable issues of fact before the petitioner is entitled to the
appointment of appellate counsel under subsection (c). But neither of those preconditions,
while required before appointment of trial counsel under subsection (b), is mentioned
with regard to appointment of appellate counsel under subsection (c). See K.S.A. 22-
4506. When a statute is plain and unambiguous, an appellate court will not read into the
statute something not readily found in it. Double M Constr. v. Kansas Corporation
Comm'n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009). There is no threshold requirement
found in K.S.A. 22-4506(c) that a petition for writ of habeas corpus under K.S.A. 60-
1501 must present substantial questions of law or triable issues of fact in order for an
indigent petitioner to obtain appointed appellate counsel.

Our reading of K.S.A. 22-4506(b) and (c) is consonant with Kansas caselaw
precedent. Our Supreme Court interpreted the language of K.S.A. 22-4506 in Guillory v.
State, 285 Kan. 223, 170 P.3d 403 (2007). In Guillory, an inmate filed a pro se K.S.A.
60-1507 motion which was summarily denied by the district court. Guillory then filed a
pro se appeal to our court, which dismissed it for lack of jurisdiction because the notice
of appeal was not filed in a timely manner. Our Supreme Court granted a petition for
review to consider whether Guillory's untimely appeal should have been permitted as an
exception under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). Guillory, 285 Kan.
at 224.

In its discussion of the "fundamental fairness principle underlying all three
exceptions recognized in Ortiz," our Supreme Court considered the language of K.S.A.
22-4506. Guillory, 285 Kan. at 228.With reference to subsection (b) the court observed
that "[t]here is no statutory right to counsel at the district court level stage for indigent
K.S.A. 60-1507 movants until they meet the threshold showing of substantial legal issues
or triable issues of fact." 285 Kan. at 228. Next, our Supreme Court examined the
statutory language in subsection (c) and concluded that "[m]ovants who fail to meet this
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threshold do have a statutory right to appointment of counsel on appeal but not until after
a notice of appeal has been filed." (Emphasis added.) 285 Kan. at 228-29.

Of course, Guillory dealt with a K.S.A. 60-1507 motion, not a K.S.A. 60-1501
petition. However, because K.S.A. 22-4506(a) clearly applies to both a "petition for writ
of habeas corpus or a motion attacking sentence under K.S.A. 60-1507," we are confident
that K.S.A. 22-4506(c) also applies to a petition filed under K.S.A. 60-1501. See Brown
v. State, 278 Kan. 481, 483, 101 P.3d 1201 (2004) ("'Our statutes provide that an indigent
defendant is entitled to counsel . . . in habeas corpus proceedings and motions attacking
sentence under K.S.A. 60-1507.'" [quoting State v. Andrews, 228 Kan. 368, 375, 614 P.2d
447 (1980)]). This conclusion is also bolstered by our court's opinion in Holt v. Saiya, 28
Kan. App. 2d 356, 17 P.3d 368 (2000), wherein we applied subsection (b) of K.S.A. 22-
4506 to a petition for writ of habeas corpus under K.S.A. 60-1501.

Notwithstanding the district court's ruling that Markovich's K.S.A. 60-1501
petition did not present any substantial legal issues or triable issues of fact, we conclude
that Markovich had a statutory right to the appointment of appellate counsel under K.S.A.
22-4506(c) upon the filing of his notice of appeal.

Finally, the Reno County District Court did not make a finding on whether
Markovich was indigent. The affidavit and statement of inmate account he submitted to
the Reno County District Court, however, did not differ appreciably from his indigency
submission that the Ellsworth County District Court ruled was sufficient to establish his
right to an appointed trial attorney. Accordingly, we conclude that Markovich has
established indigency for purposes of obtaining appointed appellate counsel under K.S.A.
22-4506(c).

The case is remanded to the Reno County District Court for appointment of an
attorney to assist Markovich in filing and prosecuting his appeal. The appointment shall
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be made within 20 days after the filing of this opinion. The clerk of the Reno County
District Court shall submit the order of appointment to the Clerk of the Appellate Courts
within 10 days after the filing of the order of appointment. After counsel is appointed, the
district court should allow counsel 30 days in which to file a notice of appeal and docket
the appeal in accordance with the Rules of the Kansas Supreme Court. See Kargus v.
State, 284 Kan. 908, 929, 169 P.3d 307 (2007).

Remanded with directions.