Rivera v. State

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NOT DESIGNATED FOR PUBLICATION

No. 119,577

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MARIO RIVERA,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WILLIAM S. WOOLLEY, judge. Opinion filed February 14,
2020. Affirmed and appeal dismissed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before WARNER, P.J., POWELL, J., and LAHEY, S.J.

PER CURIAM: Mario Rivera untimely appealed the district court's summary denial
of his K.S.A. 60-1507 motion. We remanded the case to the district court for a hearing to
determine if any exception to the requirement of a timely filed notice of appeal, as set
forth in Albright v. State, 292 Kan. 193, Syl. ¶ 5, 251 P.3d 52 (2011), applied to Rivera's
case. At the conclusion of the hearing, the district court found no exception applied. The
only issue in this appeal is whether the district court erred in that finding. After a review
of the record, we affirm the district court and conclude Rivera's appeal is jurisdictionally
barred by his untimely appeal.
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FACTUAL AND PROCEDURAL BACKGROUND

On May 9, 2013, a jury convicted Rivera of one count of aggravated criminal
sodomy. The district court sentenced Rivera to 195 months in prison followed by lifetime
postrelease supervision. A panel of our court affirmed his conviction on direct appeal.
State v. Rivera, No. 110,274, 2014 WL 6909623 (Kan. App. 2014) (unpublished
opinion).

On October 8, 2015, Rivera filed a pro se K.S.A. 60-1507 motion, asserting
various claims of ineffective assistance of trial and appellate counsel. The district court
appointed attorney Michael Brown to represent Rivera in the 60-1507 proceeding. On
December 5, 2016, the district court found that an evidentiary hearing was not required
and denied Rivera's 60-1507 motion. On January 13, 2017, the district court's written
journal entry was filed. Rivera filed a pro se notice of appeal on March 10, 2017. Because
the notice of appeal was filed more than 30 days after the journal entry was filed, we
ordered the parties to show cause why the appeal should not be dismissed for lack of
jurisdiction. See K.S.A. 2017 Supp. 60-2103(a). In response to the show cause order,
Rivera placed the blame for the untimely appeal on his lawyer, and our court remanded
the case to the district court for a hearing to establish whether an Albright exception
justified the untimely appeal.

The Albright hearing

On remand, the district court appointed new counsel for Rivera and conducted an
evidentiary hearing. Rivera and Brown were the only witnesses. Rivera testified he only
went to the seventh grade in school and he does not "read or write at all really." He thus
contended that Brown's communication with him—entirely by letter—was not an
adequate form of communication and consultation.

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At the hearing, Rivera disclosed that a fellow inmate assisted him with the filing
of his original pro se K.S.A. 60-1507 motion. He relied exclusively on his fellow inmate
to read, research, and advise him how to proceed in legal matters. Although Rivera
received a letter notifying him that a lawyer would be appointed to assist him, he testified
he did not know Brown had been appointed and he never met with or received any
correspondence from Brown.

Rivera testified that the inmate who helped with the original 60-1507 motion
informed him that the motion had been denied. On cross-examination, Rivera conceded
he had received a letter notifying him that his 60-1507 motion had been denied, but he
thought it was from the State. Ultimately, he appeared to accept that it was Brown who
wrote that letter. When Rivera was asked whether he filed the notice of appeal as soon as
he knew about the denial, Rivera responded: "'Yes, [the inmate] did. I'm assuming he
did.'" Rivera said the inmate helping him "'takes care of everything' and 'I just give it to
him.'" The inmate would bring him documents, and Rivera would "scribble" his name on
them. When the State asked Rivera how much time elapsed between when he learned of
the denial of his 60-1507 motion and the filing of the notice of appeal, Rivera was unable
to provide a meaningful timeframe, at one point saying it could have been a year. He
said, "I asked the [inmate] who's helping me out to appeal, you know, write everybody
that needs to know that I want to appeal it."

Rivera testified he gave all the letters he received to the inmate helping him and
further explained:

"I didn't fill nothing out. I don't read anything. He does it all. What you want me to say,
that I'm filling stuff out? You keep on asking me the same question, did you fill this out,
did you read this. I cannot read. So I'm not understanding what you want me to say, just
you said—I'm not lying to you. I can't read. This gentlemen gets everything. When the
unit team comes from max, passes out our mail, we get it, here you go, handle that and he
handles it. And when he tells me to sign under here for a motion or anything I sign it.
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That's all I do. I don't know—he'll tell—he's the one that told me I'm coming back to
court. So I said all right, when. We didn't even know yet. I think the CO came and got me
from work."

Rivera admitted he never informed Brown of his desire to appeal. The only person
Rivera told of his desire to file an appeal was the inmate helping him with his legal
proceedings.

Brown testified that after his appointment in May 2016, he sent Rivera his "1507
letter," a two-page document explaining the 60-1507 motion process. Shortly after
sending that letter, Brown received correspondence from Rivera asking Brown to
withdraw so Rivera could hire an attorney to handle the matter. Brown complied with
Rivera's request by filing a motion to withdraw as Rivera's counsel. Brown sent a follow-
up letter to Rivera in early July asking if he had obtained counsel to assist with the 60-
1507 motion but did not receive a response to that inquiry. However, also in July, Rivera
sent Brown an addendum to his original 60-1507 motion. Brown filed it with the district
court and sent a copy to Rivera. He also sent a letter to Rivera in July with his analysis of
the 60-1507 motion. Ultimately, Rivera failed to hire an attorney, and the district court
denied Brown's motion to withdraw.

Brown sent a pretrial questionnaire to Rivera in advance of the pretrial hearing
scheduled in December. After the district court determined that an evidentiary hearing
was not necessary and denied Rivera's K.S.A. 60-1507 motion, Brown wrote a letter to
Rivera—dated December 9, 2016—informing him of the denial of the motion, the
reasons for the denial, and the timeline for filing a notice of appeal. Brown's letter closed
with the following:

"Now then, if you want to appeal Judge [Woolley's] decision, you have 30 days from the
date the order is filed with the clerk in which to file a notice of appeal to the court of
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appeals. If you desire to do so, advise me as quickly as possible so that I can draft the
pleadings to perfect an appeal. Copies will be sent to you."

After receiving the written journal entry memorializing the district court's ruling,
Brown mailed a copy of the journal entry to Rivera on January 17, 2017. Thereafter,
Brown received no direction from Rivera as to how he wished to proceed.

At the conclusion of the evidence, Rivera's counsel argued that Brown's
communication by written letter did not meet the level of consultation required because
of Rivera's limited ability to read and write. He asserted that if Brown had provided
Rivera the information in a different manner, such as by phone call or in person, then
there was a reasonable probability that Rivera would have directed him to file a notice of
appeal in a timely manner. Rivera's counsel also argued that a more informed
consultation would have included a reminder of the 30-day time limit to file an appeal
when Brown sent a copy of the journal entry to Rivera.

The State challenged the credibility of Rivera's claim he did not receive any
correspondence from Brown or know that Brown had been appointed. The State pointed
out that Rivera communicated directly with Brown at least twice: when he wrote to
Brown asking him to withdraw and when he sent the addendum to his original motion.
Noting Rivera's ability to recognize a document when it was handed to him on cross-
examination, the State also challenged Rivera's claimed inability to read.

The District Court's Ruling

After hearing the testimony, the district court identified that its role was to
consider whether Rivera demonstrated "excusable neglect" in not timely filing the notice
of appeal and that, as described in Albright, but for counsel's ineffectiveness in his
consultation with Rivera, a timely notice of appeal would have been filed. The district
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court reviewed the procedural history of the case and noted that Rivera filed his notice of
appeal 23 days out of time.

The district court concluded that Rivera's untimely filing was not excused by any
Albright exception. Rivera's request to Brown to withdraw demonstrated to the district
court Rivera's ability and the knowledge to make his wishes known as to how he wanted
to proceed on the case. The district court found that on December 9, 2016, Brown sent
notice to Rivera that his 60-1507 motion had been denied and informed him of his appeal
rights. The district court further found that when Rivera learned his motion had been
denied, Rivera made the affirmative decision to give the information to his "jailhouse
lawyer" rather than communicate with Brown.

The district court determined that Rivera had some ability to read, based on the
fact that, when presented the document on cross-examination, he recognized it as his 60-
1507 motion and he understood what was on the first page. The district court noted that
Rivera demonstrated some ability to read sufficiently so as to understand what was going
on, and that was bolstered by the evidence that when Rivera got the documents from
Brown, he understood they were important and he took them to his jailhouse lawyer.

As to credibility, the district court noted that Rivera's testimony showed a lack of
memory about the circumstances and Rivera failed to effectively dispute or controvert
Brown's testimony about the information Brown sent to Rivera. The district court also
found that Brown's letter was sufficient communication and consultation about Rivera's
notice of appeal and rights to appeal. The district court stated the law did not require a
phone call or a visit to communicate about the appeal. Finally, the district court found
that Rivera did not demonstrate a reasonable probability that but for appointed counsel's
deficient failure either to consult with him or act on his wishes, an appeal would have
been filed. The district court concluded Rivera did not show excusable neglect that
justified the late filing of his notice of appeal.
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Rivera timely appeals.

DID THE DISTRICT COURT ERR IN FINDING NO ALBRIGHT EXCEPTIONS EXISTED
TO EXCUSE RIVERA'S UNTIMELY NOTICE OF APPEAL?

The right to appeal is purely statutory and is not contained in the United States or
Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have
jurisdiction over an appeal only if the appeal is taken in the manner set forth in the
statutes. See State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016). The procedure for
appealing a judgment in a K.S.A. 60-1507 proceeding requires that a notice of appeal be
filed within 30 days from the entry of judgment. K.S.A. 2018 Supp. 60-2103(a). Here, the
parties agree that Rivera's notice of appeal was filed after the 30-day deadline.

The failure to file a timely notice of appeal generally requires dismissal of the
appeal. However, a movant whose K.S.A. 60-1507 motion is denied may file a notice of
appeal outside the 30-day period if he or she received ineffective assistance of counsel
which deprived him or her of the opportunity to timely appeal the denial of the 60-1507
motion. See Albright, 292 Kan. at 197.

"The rules for determining if a K.S.A. 60-1507 movant received ineffective
assistance of counsel when appointed counsel failed to file a timely appeal are: (1) If the
movant requested that an appeal be filed and it was either not filed at all or not timely
filed, appointed counsel was ineffective; (2) a movant who explicitly told his or her
appointed counsel not to file an appeal cannot later complain that, by following
instructions, counsel performed deficiently; or (3) in other situations, such as where
appointed counsel has not consulted with the movant or the movant's directions are
unclear, the movant must demonstrate a reasonable probability that, but for appointed
counsel's deficient failure to either consult with the movant or act on the movant's wishes,
an appeal would have been filed. The movant need not show that a different result would
have been achieved but for counsel's performance. If the movant establishes that
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counsel's performance was deficient as tested in the first or third prong of this test, the
movant will be allowed to file an appeal out of time." 292 Kan. 193, Syl. ¶ 5.

Whether jurisdiction exists and whether we recognize an exception to the
requirement of filing a timely notice of appeal are questions of law subject to unlimited
review. 292 Kan. at 197. Our courts have not specifically addressed the standard of
review to be applied to a hearing under Albright. But similar to a remand of a direct
appeal alleging ineffective assistance of counsel, the purpose of the remand is "so that
facts relevant to determination of the legal issue may be developed and an evidentiary
record established." Rowland v. State, 289 Kan. 1076, 1084, 219 P.3d 1212 (2009); see
State v. Van Cleave, 239 Kan. 117, 120, 716 P.2d 580 (1986). Our Supreme Court
recently described the standard of review for assessing a district court's Van Cleave ruling
as follows:

"'A claim alleging ineffective assistance of counsel presents mixed questions of
fact and law. Appellate courts review the Van Cleave court's factual findings to determine
whether the findings are support[ed] by substantial competent evidence and support the
court's legal conclusions; appellate courts apply a de novo standard to the district court's
conclusions of law.' [Citations omitted.]" State v. Harris, 310 Kan. 1026, 1045, 453 P.3d
1172 (2019).

We apply the same standard of review here. We review the district court's factual
findings for substantial competent evidence, but we apply a de novo standard when
reviewing the ultimate legal determination by the district court that Rivera is not entitled
to relief under the third Albright exception.

"[K.S.A.] 60-1507 movants who have counsel are entitled to the effective
assistance of that counsel, and if counsel's performance was deficient for failure to file a
timely appeal, as a remedy a 60-1507 movant should be allowed to file an out-of-time
appeal." Albright, 292 Kan. at 207.
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The parties agree the only Albright exception at issue here is the third prong. To
find the third Albright prong applies, Rivera has the burden to show that counsel's
performance was deficient, and he must demonstrate a reasonable probability that, but for
counsel's failure to consult with him or act on his wishes, an appeal would have been
timely filed.

The district court rejected Rivera's assertion that an Albright exception applied
and, based on the evidence presented at the Albright hearing, determined that the delay in
filing a timely notice of appeal was directly caused by Rivera's actions. Although Rivera's
testimony is confusing and contradictory at various points, there is no doubt he did not
communicate his desire to appeal to Brown. Instead, Rivera relied exclusively on his
fellow inmate to comply with the deadline for filing a notice of appeal.

Rivera asserts that Brown's written correspondence could not serve as proper
consultation when one considers his limited ability to read and write. But the district
court observed that Rivera demonstrated some ability to read and identify documents. In
fact, Rivera communicated with Brown twice in written form, and there was no
indication that Rivera told Brown he had a limited ability to read and therefore needed
another method of communication. In addition, there was no evidence presented to show
that Brown knew, or had any reason to know, of Rivera's purported limited ability to read
and write. We find substantial competent evidence supports the district court's view that
Rivera failed to meet his burden to show that Brown's method of consultation was
deficient.

At a minimum, the record is unclear regarding the extent of Rivera's illiteracy as
he testified he "made it to seventh grade." He variously characterized his abilities from
"[did] not read or write real well" to "I cannot read." However, because Rivera was able
to identify his 60-1507 motion when it was shown to him at the hearing, the district court
found that it appeared he had some ability to read and write. Under these circumstances,
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Rivera has failed to show that Brown's method of communicating his right to appeal in
writing constituted a deficient failure to consult with Rivera. The evidence supports the
district court's finding Rivera failed to protect his own interests when he relied on his
fellow inmate, rather than his attorney, to file the notice of appeal.

Rivera appears to suggest that the Albright exceptions fall short under the
circumstances presented when he claims that an Albright analysis "simply is not
workable under his unique circumstances." But he presents no support or argument for
extending those exceptions to the circumstances presented. He also faults his appointed
counsel at the Albright hearing for failing to adequately develop the facts by obtaining
additional documentation or by calling as a witness the inmate who assisted Rivera. As a
result of these deficiencies, Rivera contends there were not enough facts for the district
court to properly effectuate an Albright analysis, and he requests we remand the case for
an additional hearing. This argument again ignores the fact that it was his burden to
present sufficient facts at the hearing to show that his attorney was ineffective and
responsible for the untimely filing. Rivera makes no argument of any newly discovered
evidence, points to no authority for a second Albright hearing, and we find no basis for a
second remand.

In a written letter dated December 9, 2016, Brown informed Rivera of the district
court's denial of his K.S.A. 60-1507 motion and the timeline for filing an appeal. Brown
followed up by sending Rivera the official journal entry shortly after it was filed on
January 13, 2017. Brown did not hear from Rivera about his desire to pursue an appeal.
Rivera argues that when Brown did not hear from Rivera, an ambiguity was created that
placed the burden on Brown to file the notice of appeal. We do not agree. Brown's letter
made it clear that the onus was on Rivera to affirmatively let Brown know if an appeal
was desired. Rivera admits he did not contact Brown. His chosen method of pursuing his
appeal was to do so by contacting his fellow inmate rather than by contacting his
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attorney. Under these circumstances, the district court found that counsel was not
deficient or ineffective in his method of consultation with Rivera.

Based on the record before us, we agree with the district court that Rivera failed to
show any Albright exception applied to excuse his untimely notice of appeal. Without a
finding that Rivera would have filed a timely notice of appeal but for counsel's deficient
performance, the Albright exception does not apply. Accordingly, the district court
properly declined to find that excusable neglect justified the late filing of Rivera's notice
of appeal. As a result, we affirm the district court's order regarding the Albright hearing
and dismiss the appeal due to lack of jurisdiction.

Affirmed and appeal dismissed.