Snyder v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 119,579

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JUSTIN ROBERT SNYDER,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wabaunsee District Court; GARY L. NAFZIGER, judge. Opinion filed August 16,
2019. Affirmed.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before GARDNER, P.J., PIERRON, J., and BURGESS, S.J.

PER CURIAM: Justin Robert Snyder appeals the denial of his motion to reinstate
his notice of appeal, arguing the district court erred in finding the first and third
exceptions under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), did not apply.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Snyder with one count each of aggravated assault, aggravated
endangering of a child, assault, battery, abuse of a child, criminal threat, and two counts
of aggravated battery. The district court initially appointed Russ Roe to represent Snyder.
2

Later, Snyder retained Troy V. Huser as his defense counsel. On December 1, 2015,
Snyder entered and the district court accepted his pleas of no contest to one count of
abuse of a child and one count of criminal threat. In exchange for his pleas, the State
agreed to dismiss the remaining charges and to file no additional charges. The district
court found Snyder guilty and dismissed the remaining charges.

Before sentencing, Nicholas J. Heiman entered his appearance as defense counsel.
Through counsel, Snyder filed a presentencing motion to withdraw his pleas in February
2016. After the March 21, 2016 hearing, the district court denied Snyder's motion and
proceeded to sentencing. The district court sentenced Snyder to a controlling prison term
of 32 months with 24 months' postrelease supervision. The district court assessed no
Board of Indigents' Defense Services attorney fees on finding Snyder was not in the
position to pay attorney fees. Before adjourning, the district court advised Snyder:

"You have the right to appeal the sentence, judgment, and order of this Court. If
you wish to do so, you need to notify your attorney within 15 days. You may also have a
right, depending on the law that exists at the time, to come back and ask to have these
convictions annulled, depending on the law then and what your situation is then."

On March 23, 2016, Snyder's counsel filed a timely notice of appeal. That same
day, counsel filed motions for transcripts and an appeal bond. On April 1, 2016, his
counsel filed motions to withdraw the notice of appeal and the motion for appeal bond.

On March 16, 2017, Snyder filed a pro se K.S.A. 60-1507 motion. Relevant to the
present issues on appeal, Snyder's motion stated, after sentencing, he informed Heiman
he wanted to appeal and Heiman told Snyder he would file an appeal. Snyder argued
Heiman misled him into voluntarily dismissing the notice of appeal by telling Snyder he
had no meritorious issues to appeal and an appeal would be frivolous and a waste of
3

money. The district court appointed Joseph A. Desch as counsel. With counsel, Snyder
filed a motion to reinstate his direct appeal under Ortiz.

At the hearing to reinstate the appeal on October 16, 2017, Heiman and Snyder
each testified to the events that led up to Snyder's withdrawal of his notice of appeal.
Heiman testified Snyder had retained him to work on his motion to withdraw his pleas.
Heiman filed a notice of appeal after Snyder indicated to him at sentencing he wanted to
appeal. Heiman discussed the appeals process with Snyder, reviewed the pros and cons of
a successful motion to withdraw a plea, and the possible outcomes of an appeal. Although
Heiman could not remember the conversations from a year ago verbatim, he stated that
he typically counsels his clients by reviewing the pros and cons but leaves the ultimate
decision to the client.

Heiman stated he never threatened Snyder that his continuing representation was
contingent on Snyder paying more money. While Heiman could not recall discussing
money for the appeal with Snyder, he testified Snyder had been up front with him that he
only had so much money, and he took the case with that understanding. Heiman testified
he contemplated continuing work on the case after filing the notice of appeal because he
was the trial counsel of record and had appellate experience, including familiarity with
docketing appeals, writing briefs, and arguing before appellate courts. Heiman confirmed
he saw no issue with moving forward on the appeal, and he had several phone calls with
Snyder regarding the appeal.

After filing the notice of appeal, Heiman testified that he received an email from
Snyder's girlfriend. In relevant part, the email read:

"I talked to Justin on the phone last night and he is needing to talk to you about the
appeal. The other night he stated that he would rather just leave the appeal on the plea
agreement alone and serve his two years and be done with it. Then last night he stated
4

that he didn't know if that was the right thing to do. I think he could really use a phone
call from you so that you can both discuss the pros and cons about the situation without
me being the middle man. He did say that he wasn't sure if you thought he could appeal
the sentencing where they sent him to prison versus giving him the opportunity to be on
probation and get the treatment that was directed by Pawnee Mental health."

Heiman testified he found the email inconsistent with their prior conversations. At
the time, Heiman could not contact Snyder so he waited for Snyder to call him on the
phone. Heiman testified he could not recall the conversation with Snyder verbatim but
stated he would have discussed the repercussions of a successful motion to withdraw
plea, that he believed Snyder had a meritorious claim regarding the adequacy of his plea
advisories, and that Snyder may have a less successful appeal of his sentence. Heiman
stated he would have ultimately advised Snyder the decision of whether to pursue an
appeal was purely his own.

Heiman testified he withdrew the notice of appeal based on Snyder's affirmative
request. On cross-examination, Heiman stated he could not recall whether Snyder
specifically stated "'I don't want to appeal'" but he stated he would not withdraw a notice
of appeal unless a client tells him that that is their choice. Heiman also could not believe
he would tell Snyder no meritorious issues existed to appeal because he still believed
Snyder had appealable issues, such as the adequacy of his plea advisories. Heiman also
denied telling Snyder he did not want to represent him on appeal or saying an appeal was
a waste of money. Heiman also continued working on Snyder's case after withdrawing
the notice of appeal, including working on property dispositions and a nunc pro tunc
motion filed in January 2017.

In contrast, Snyder testified he had never seen the email his girldfriend sent to
Heiman and stated he never told her to do anything for him. Snyder testified he called
Heiman on April 1, 2016, or about a week after his sentencing. According to Snyder,
Heiman informed him there was nothing to appeal, an appeal would cost more money,
5

and it would be a waste of money to file a frivolous appeal. Snyder stated he had only a
single, two-minute phone conversation with Heiman. Snyder admitted he did not discuss
the cost of the appeal with Heiman. But Snyder stated he withdrew the notice of appeal
because he could not afford an attorney and Heiman knew he had no money. Snyder
testified that he had an understanding with Heiman that if the motion to withdraw plea
was successful and the case went to trial, he would need to pay Heiman an additional
$2,500.

Snyder testified that had he known he had the right to an appellate lawyer free of
cost, he would have filed an appeal. Snyder stated Heiman did not advise him of his right
to a free appeal and that Heiman stated he was not an appellate attorney and he would not
represent Snyder on appeal. Snyder admitted that Heiman filed motions in the district
court after withdrawing the notice of appeal. Snyder also admitted he had appointed
counsel at the start of the case and Heiman was his second retained counsel. But Snyder
stated he had no funding from his family and he could not afford to hire a third attorney
for an appeal.

The district judge denied Snyder's motion, finding the evidence and testimony did
not show Snyder was denied his right to appeal under Ortiz.

"He filed an appeal. He had private counsel. And when—at his own request,
private counsel dismissed the appeal, and after the expiration of that, the State relied on
the fact that there's been an appeal filed and the appeal had been dismissed, evidence was
apparently removed or destroyed.
"It's significant to note that the defendant originally, with the advice and
assistance of retained counsel, entered a plea, then sought to have the plea vacated, then
filed an appeal, then dismissed it, and is here now asking to have it reinstated.
"I do not find from the evidence and testimony presented that the defendant was
denied the right of appeal. He exercised it. For that reason, the defense motion to reinstate
his appeal is denied. . . .
6

"I'm not convinced that Ortiz, under the facts of this case, demands that an appeal
be allowed to be initiated some two years after the original appeal was dismissed by the
[appellant].
. . . .
"Well, I understand both sides' arguments, but under the facts of this case, I think
he was prosecuted. He received a plea bargain. He accepted the plea bargain. He wanted
to vacate the plea, then he was sentenced, then he wanted to have an appeal, then he
abandoned or dismissed the appeal, and now he's here today, years later, wanting to
reinstate the appeal, and I do not see here, under the facts of the case, on the part of the
Court and the way counsel handled the representation as far as the appeal is concerned.
For that reason, motion is denied."

The district court certified its decision as a final judgment and found there was no
just reason for delay under K.S.A. 2018 Supp. 60-254(b).

Snyder timely appeals. The analysis includes additional facts as needed.

ANALYSIS

Snyder argues the district court erred in denying his motion to reinstate his notice
of appeal under Ortiz because (1) he was not fully informed of his rights to appeal and (2)
his attorney provided ineffective assistance of counsel by inadequately consulting with
and advising him before he withdrew his notice of appeal.

DID THE DISTRICT COURT ERR IN DENYING SNYDER'S MOTION TO REINSTATE HIS
DIRECT CRIMINAL APPEAL UNDER ORTIZ?

Standard of Review

An appellate court reviews a district court's ruling on whether an Ortiz exception
applies under a dual standard, reviewing the factual findings for substantial competent
evidence and the legal conclusions de novo. State v. Smith, 303 Kan. 673, 677, 366 P.3d
7

226 (2016). "'Substantial competent evidence is legal and relevant evidence a reasonable
person could accept to support a conclusion.' This court normally gives great deference to
the factual findings of a district court [and will] not reweigh evidence, assess the
credibility of witnesses, or resolve conflicts in evidence. [Citations omitted.]" State v.
Talkington, 301 Kan. 453, 461, 345 P.3d 258 (2015).

The Ortiz Exceptions

A criminal defendant must file a notice of appeal within 14 days of sentencing.
See K.S.A. 2018 Supp. 22-3608(c); State v. Shelly, 303 Kan. 1027, 1036, 371 P.3d 820
(2016). "'The filing of a timely notice of appeal is jurisdictional. Generally, the failure to
file a timely notice of appeal requires dismissal of the appeal. [Citations omitted.]'" 303
Kan. at 1036. But the three Ortiz exceptions may apply in the interest of fundamental
fairness to allow an untimely appeal:

"'The Ortiz exceptions recognize that an untimely appeal may be allowed in the
direct appeal from a conviction and sentence if a criminal defendant either (1) was not
informed of the right to appeal at sentencing or by counsel, (2) was indigent and not
furnished counsel to perfect an appeal, or (3) was furnished counsel for that purpose who
failed to perfect and complete an appeal. [Citations omitted.]'" 303 Kan. at 1036.

Snyder argues the first and third Ortiz exceptions should allow him to reinstate his
notice of appeal.

Does the first Ortiz exception apply?

Snyder does not contest whether he knew of his right to an appeal. Rather, Snyder
argues the district court did not inform him of his right to have counsel appointed for his
appeal, if he could not afford an attorney.
8

Under the first Ortiz exception: "A defendant may now qualify to take an
untimely appeal when the defendant was not informed of his or her appeal rights if
denied basic procedural due process." Smith, 303 Kan. at 678. In State v. Patton, 287
Kan. 200, 219-20, 195 P.3d 753 (2008), our Supreme Court held a court must inform a
defendant of the procedural safeguards of his or her right to appeal as provided in three
Kansas statutes: K.S.A. 22-3210(a)(2), K.S.A. 22-3424(f), and K.S.A. 22-4505. As a
result, district courts must inform criminal defendants: "(1) that a right to appeal the
severity level of the sentence exists; (2) the time limit for taking an appeal; and (3) that, if
the defendant is indigent, an attorney will be appointed for the purpose of taking any
desired appeal." Smith, 303 Kan. at 678 (citing Patton, 287 Kan. at 220).

"Claims arising under the first Ortiz exception are tried using a three-part burden-
shifting framework. First, the defendant must demonstrate from the sentencing hearing
transcript that the sentencing judge failed to communicate one or more of the three
required pieces of information. If that is shown, the State bears the burden in the second
part of proving the defendant nevertheless possessed actual knowledge of all the required
information by some means other than the district judge's statements at sentencing.
Finally, if the State cannot demonstrate this, the burden shifts back to the defendant to
prove that had he or she been properly informed, a timely appeal would have been
pursued." Smith, 303 Kan. at 678.

First Ortiz Exception

After sentencing, the district court advised Snyder:

"You have the right to appeal the sentence, judgment, and order of this Court. If
you wish to do so, you need to notify your attorney within 15 days. You may also have a
right, depending on the law that exists at the time, to come back and ask to have these
convictions annulled, depending on the law then and what your situation is then."

9

From the transcript, Snyder met his burden. The sentencing court provided no
information to Snyder of his right to appeal in forma pauperis under K.S.A. 22-3424(f) or
his right to appointed counsel for appeal, if indigent, under K.S.A. 22-4505. See Patton,
287 Kan. at 219. The State concedes Snyder met his burden. While neither party relies on
this deficiency, the district court also inadequately informed Snyder of the time for filing
a criminal appeal under K.S.A. 2018 Supp. 22-3608(c)—14 days from sentencing. Thus,
Snyder met his burden to show the district court did not fully advise him of his rights on
appeal.

The State may obviate the failure to fully advise Snyder of his right to appeal by
demonstrating Snyder had actual knowledge of his appeal rights outside of the district
judge's oral statements at sentencing. "The source of such actual knowledge may be
counsel's advice, the wording of an agreement signed by the defendant, or some other
person or document; but the State bears the evidentiary burden on this point." Patton, 287
Kan. at 221-22.

The State recognizes Heiman testified he did not advise Snyder of his right to an
appointed attorney for appeal, thus, Snyder did not receive actual knowledge of this right
from his counsel. The State argues instead Snyder had actual knowledge of his right to
appointed counsel, if indigent, because (1) Snyder filed an application for appointed
counsel in the district court and he had an appointed trial attorney earlier in the case; and
(2) in his pro se K.S.A. 60-1507 motion, Snyder stated he asked Heiman to file a request
for counsel with the appellate defender's office.

The State points to Snyder's "Application for Appointed Defense Services,"
completed during the pretrial proceedings to show his awareness that he could have
requested appointed counsel. However, the application Snyder completed provides no
notice of Snyder's right to an appointed attorney for appeal or to proceed in forma
pauperis on appeal. The State also argues Snyder had actual knowledge of his appeal
10

rights because in his pro se K.S.A. 60-1507 motion Snyder stated that he asked Heiman
to file a "request [for] counsel from the appellate defender's office on 3/23/16." Arguably,
the pro se K.S.A. 60-1507 motion may provide some support Snyder had knowledge of
his appeal rights but his pro se motion was filed in March 2017, almost one year after he
asked Heiman to withdraw his notice of appeal. The State has not met its burden to show
Snyder had actual knowledge of his rights on appeal.

Ultimately to succeed under the first exception to Ortiz, Snyder must show, had he
been properly informed, he would have sought a timely appeal. See Patton, 287 Kan. at
222. On appeal, Snyder argues he met his burden because he unequivocally testified he
would have pursued an appeal and would have not dismissed the notice of appeal had he
known his appeal rights and because Heiman could not recall why Snyder requested to
withdraw his appeal.

Here, the central issue concerns whether Snyder can show he would not have
withdrawn the timely notice of appeal had he known of his right to appointed counsel, if
indigent. The district court here did not expressly find Snyder did not meet his burden to
show he would have timely appealed, if he had known his appellate rights. Snyder
challenges the district court's implied finding he failed to carry his burden, arguing he
unequivocally testified he would not have withdrawn his appeal had he known of his
right to have counsel appointed, if indigent. In reviewing the record, Snyder also
presented evidence to support he was indigent and the potential cost of the appeal played
a role in his decision not to appeal.

Heiman testified that he discussed with Snyder the pros and cons of pursuing a
motion to withdraw his plea, that he felt Snyder had a meritorious issue on appeal
regarding the plea advisory, and the possible outcome of an appeal of his sentence. In all
events, Heiman testified that he left the decision to appeal solely up to Snyder. Heiman
testified that when he undertook representation of Snyder prior to sentencing, Snyder had
11

been upfront and told Heiman he had little money. Heiman elected to take the case with
that understanding. Heiman further testified that he did not recall discussing money for
the appeal with Snyder and stated he never told Snyder that his continued representation
was contingent on Snyder paying him more money. Heiman testified he saw no issue
with moving forward on the appeal.

Snyder admitted he did not discuss the cost of an appeal with Heiman but he
claims that the potential cost of an appeal affected his decision to withdraw the notice of
appeal. Snyder testified that Heiman told him an appeal would be a waste of money
which Heiman denies. Snyder claims that his decision not to pursue an appeal was purely
financial and that he would have pursued the appeal had he known of the availability to
have counsel appointed.

Heiman had taken the necessary steps to perfect an appeal on Snyder's behalf. The
appeal could have moved forward but for Snyder's direction to Heiman not to pursue the
appeal. In fact, Heiman continued to act on Snyder's behalf without apparent cost to
Snyder after the appeal was withdrawn.

Clearly there was conflicting evidence. In denying Snyder's motion, the district
court resolved the conflicting evidence in Heiman's favor and found Snyder's testimony
less credible. An appellate court does not reweigh evidence, assess the credibility of
witnesses, or resolve conflicts in evidence. Talkington, 301 Kan. at 461. Regardless of
not being fully advised as to his appeal rights, Snyder was not denied the right to appeal.
His appeal was proceeding. The trial court determined that there was nothing to keep the
appeal from proceeding forward other than Snyder's decision to withdraw the appeal.




12

Third Ortiz Exception

Snyder argues that the third Ortiz exception applies because Heiman provided
ineffective assistance of counsel in failing to adequately consult with him about his
ability to pay for an appeal and not advising Snyder of his right to appointed counsel, if
indigent, before Snyder withdrew his notice of appeal.

The third Ortiz exception applies where counsel was appointed or retained for an
appeal but counsel failed to perform and, by failing to file a timely notice of appeal or
otherwise protect the defendant's rights, destroyed the defendant's right to pursue a direct
appeal. See Patton, 287 Kan. at 224. "[C]ounsel's effectiveness is part and parcel of the
third Ortiz exception." Shelly, 303 Kan. at 1047. When analyzing prejudice, our Supreme
Court has adopted the United States Supreme Court's standard of counsel's performance
in Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000):

"[I]f appointed or retained counsel has failed to file or perfect a direct appeal by a
criminal defendant, the court presumes the existence of prejudice. The defendant must
still demonstrate that, but for counsel's failure, he or she would have taken a timely direct
appeal. The defendant need not show that such a timely direct appeal would have been
successful." Patton, 287 Kan. 200, Syl. ¶ 11.

See Flores-Ortega, 528 U.S. at 484. Under the third Ortiz exception, "the defendant must
establish that: (1) he or she told counsel to appeal, but the attorney failed to file or perfect
the appeal; and, (2) he or she would have timely appealed, but for counsel's failure." State
v. Smith, 304 Kan. 916, Syl. ¶ 4, 377 P.3d 414 (2016).

In this case, Snyder directed Heiman to file a notice of appeal in the courtroom at
sentencing. Heiman filed a timely notice of appeal. After filing the notice of appeal,
Snyder directed Heiman to withdraw the notice of appeal. Heiman spoke with Snyder
before withdrawing the notice of appeal and testified he would have withdrawn it only
13

upon Snyder's affirmative request. Heiman followed Snyder's directions to file the notice
of appeal and to withdraw the notice of appeal. Thus, Snyder cannot now complain
Heiman performed deficiently in following his directions to file and then to withdraw the
timely notice of appeal. See Flores-Ortega, 528 U.S. at 477.

Snyder argues Heiman performed deficiently in failing to consult with him
regarding his ability to pay for the appeal and failing to inform him of his right to
appointed counsel if he could not afford it based on the Kansas Supreme Court's decision
in Shelly. In Shelly, Shelly expressed a desire to appeal but his counsel told him there was
nothing to appeal. 303 Kan. at 1051. Our Supreme Court held Shelly met his burden to
show his counsel had a duty to consult and had shown prejudice:

"While defense counsel clearly articulated the disadvantages of taking an appeal, he did
not advise Shelly of the advantages, i.e., preserving an argument in favor of application
of the identical offense sentencing doctrine. The minimal advice given—that there was
nothing to appeal—unreasonably overlooked at least potentially meritorious grounds for
appeal and did not allow Shelly to knowingly and intelligently waive his right to appeal.
The consultation was thus inadequate.
"Because a rational defendant in Shelly's place would want to appeal on the
[State v.] Snellings[, 294 Kan. 149, 273 P.3d 739 (2012)] identical offense issue, a duty to
consult existed. Flores-Ortega, 528 U.S. at 480. Moreover, Shelly expressed a
contemporaneous interest in appealing and implied in his later testimony that he would
have appealed if he had been advised about Snellings. This substantial competent
evidence satisfies Flores-Ortega's requirement of both a duty to consult and prejudice.
Flores-Ortega, 528 U.S. at 485-86. Under Patton, Shelly need not further demonstrate
that he would have succeeded on the merits to invoke the third Ortiz exception. Patton,
287 Kan. at 225. It is enough that counsel's objectively unreasonable performance
prevented Shelly from filing a timely appeal." Shelly, 303 Kan. at 1051.

The Shelly decision is distinguishable from this case. As stated above, Heiman
filed a notice of appeal upon Snyder's specific directions at sentencing. Heiman testified
14

he spoke with Snyder and he withdrew the timely notice of appeal upon Snyder's
affirmative request. Though Heiman could not recall his conversations with Snyder
verbatim, Heiman testified that he would have discussed with Snyder the pros and cons
of an appeal. Heiman testified he would have discussed with Snyder the repercussions of
a successful motion to withdraw his plea, he believed Snyder had a meritorious claim
regarding the adequacy of his plea advisories, and Snyder may have less success in an
appeal of his sentence. Heiman stated that he ultimately would have left the decision of
whether to pursue an appeal to Snyder. Contrary to Snyder's claims below, Heiman also
testified he did not believe he told Snyder no meritorious issues existed for appeal
because he still believed there were appealable issues. And Heiman denied telling Snyder
an appeal was a waste of money. From its ruling, the district court believed Heiman over
Snyder, and this court does not judge the credibility of witnesses on appeal. See
Talkington, 301 Kan. at 461. Thus, the issue of Heiman's allegedly deficient performance
here differs from Shelly.

Snyder provides no additional authority or argument to support his claim that the
third Ortiz exception applies where counsel fails to advise a defendant of his or her rights
to appeal when discussing whether to withdraw a timely notice of appeal.

"A failure to support an argument with pertinent authority or to show why the
argument is sound despite a lack of supporting authority or in the face of contrary
authority is akin to failing to brief the issue. Therefore, an argument that is not supported
with pertinent authority is deemed waived and abandoned." State v. Tague, 296 Kan. 993,
Syl. ¶ 3, 298 P.3d 273 (2013).

Thus, Snyder waived or abandoned his claims on appeal.

Moreover, the Flores-Ortega decision discusses the duty to consult with a
defendant on whether to appeal differently than how Snyder would require this court to
interpret it. Unlike the circumstances in this case, the Flores-Ortega court imposes a duty
15

to consult on appellate counsel in situations where the defendant provides no specific
directions on whether to appeal. See 528 U.S. at 477-78. Where a duty to consult arises,
the United States Supreme Court has stated: "We employ the term 'consult' to convey a
specific meaning—advising the defendant the advantages and disadvantages of taking an
appeal, and making a reasonable effort to discover the defendant's wishes." 528 U.S. at
478. The constitutionally imposed duty applies "when there is reason to think either (1)
that a rational defendant would want to appeal [for example, because there are
nonfrivolous grounds for appeal], or (2) that this particular defendant reasonably
demonstrated to counsel that he was interested in appealing." 528 U.S. at 480.

Assuming Heiman had a duty to consult with Snyder, Snyder has not shown
Heiman did not meet his duty based on Heiman's testimony. Heiman followed Snyder's
specific directions on whether to pursue an appeal, and Heiman discussed the pros and
cons of the appeal with Snyder. While Heiman did not advise Snyder of his right to
appointed counsel, if indigent, Heiman likely made a reasonable effort to discover
Snyder's wishes under the reasoning in Flores-Ortega.

That said, the Flores-Ortega Court advises courts to "take into account all the
information counsel knew or should have known" when analyzing whether counsel met
his or her duty to consult. 528 U.S. at 480. Here, Heiman admitted at the hearing that he
took on Snyder's case with the understanding Snyder had little money. Nevertheless, the
facts show Heiman did not perform deficiently in failing to discover that Snyder desired
to withdraw the notice of appeal because of his inability to afford an appeal. Heiman
could not recall whether money was discussed in regards to the appeal, and Snyder
admitted he did not discuss the cost of an appeal with Heiman. Heiman was Snyder's
retained counsel. Heiman had already filed a timely notice of appeal when Snyder
contacted him about withdrawing the notice of appeal. Heiman discussed with Snyder the
pros and cons of filing an appeal before following Snyder's instruction to withdraw the
16

notice of appeal. Under the circumstances, Heiman met his duty to consult with Snyder
on whether he desired to pursue an appeal.

Under the circumstances of this case, the district court did not err in finding the
third Ortiz exception did not apply. Heiman followed Snyder's specific directions to file a
notice of appeal, and only after discussing the pros and cons of an appeal with Snyder,
withdrew Snyder's notice of appeal upon Snyder's specific instruction. Accordingly, the
third Ortiz exception does not apply.

Affirmed.