State v. Guilbeaux

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NOT DESIGNATED FOR PUBLICATION

No. 117,934

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHRISTOPHER ADAM GUILBEAUX,
Appellant.


MEMORANDUM OPINION

Appeal from Labette District Court; ROBERT J. FLEMING, judge. Opinion filed August 24, 2018.
Reversed and remanded with directions.

Christopher A. Guilbeaux, appellant pro se.

Stephen P. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., POWELL and GARDNER, JJ.

POWELL, J.: Christopher Adam Guilbeaux appeals his conviction and sentence pro
se, arguing the district court erred by denying his motion to dismiss under the Uniform
Mandatory Disposition of Detainers Act (UMDDA), K.S.A. 22-4301 et seq. Once
properly invoked, a prisoner is entitled under the UMDDA to have any outstanding
charges disposed of within 180 days, and Guilbeaux claims he was not brought to trial
within the required time frame entitling him to a dismissal of the charges against him.
Guilbeaux also argues the district court improperly refused to appoint him counsel and to
conduct a hearing when considering his motion to dismiss. The State concedes Guilbeaux
is entitled to an evidentiary hearing as to whether he properly invoked the UMDDA. As
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we agree with the parties that a material question of fact exists as to whether Guilbeaux
substantially complied with the UMDDA entitling him to a dismissal of his case, we
reverse the district court's denial of Guilbeaux's motion to dismiss on UMDDA grounds
and remand for an evidentiary hearing.

FACTUAL AND PROCEDURAL BACKGROUND

On March 18, 2011, the State charged Guilbeaux with one count each of
kidnapping, robbery, theft, and battery in Labette County, Kansas. In April 2012,
Guilbeaux was served with a detainer notice of the pending Labette County charges while
serving time at the Ellsworth Correctional Facility (ECF). In August or September 2012,
he submitted a request for final disposition of the pending charges (a 180-day writ) to the
warden of ECF. On September 6, 2012, Guilbeaux signed requests for final disposition,
and Unit Team Manager Richard Sauvain informed him the requests would be mailed to
the district court and county attorney.

On July 8, 2013, Guilbeaux filed a pro se motion to dismiss the pending charges
against him with prejudice under the UMDDA and requested a hearing in the Labette
County District Court. In his motion, Guilbeaux argued that he had properly invoked his
rights under the UMDDA, that the 180-day time limit under K.S.A. 22-4303 had expired
on March 6, 2013, and that the district court was required to dismiss the charges against
him with prejudice. Guilbeaux recognized that while the register of actions in his criminal
case did not show that the district court had received his written request for final
disposition and the warden's certification, he asserted that such omission should not
defeat his motion to dismiss because he properly filed his written request for final
disposition with the warden and it was the warden's duty to mail the requests and
certifications to the district court and county attorney.

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Guilbeaux claimed that he had submitted in writing his 180-day writ requests to
the warden of ECF in August or September 2012 and that those requests were signed by
him and addressed to both the Labette County District Court and the Labette County
Attorney. Attached to his motion was a supporting affidavit and a document Guilbeaux
claimed was a copy of the 180-day writ requests that he signed in Sauvain's office and
that Sauvain assured him he would mail to the district court and the county attorney. The
exhibit is a form, presumably prepared by prison staff, entitled "Uniform Mandatory
Disposition of Detainers Act," and states:

"I, Guilbeaux, Christopher #102235 make application to the County Attorney in
compliance with K.S.A. 22-4301, covering the Uniform Mandatory Disposition of
Detainers Act. I make this application with the purpose of either my detainer being
dropped or that I may be taken from this institution to stand trial. I ask that my
application be granted in the prescribed period of time as granted by Law or that it be
considered null and void."

Below this text is Guilbeaux's signature, the date of the application (September 6, 2012),
the warrant number, the date of issue of the warrant, the county (Labette), and the
specific crimes charged. At the bottom it lists copies to be sent to the county attorney, the
district court clerk, the inmate, and the inmate's file.

On July 24, 2013, the State responded to Guilbeaux's motion by conceding
Guilbeaux's legal arguments but maintaining that a factual question existed as to whether
Guilbeaux had properly invoked the UMDDA to prison officials. The State asserted that
while Guilbeaux had twice requested KDOC staff assistance in completing the 180-day
writ, he cancelled both requests and never completed his statutorily required request for
final disposition, therefore failing to comply with the UMDDA. The State attached to its
response several exhibits:

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1. The first exhibit, dated April 17, 2012, is purportedly a Form 9—a form by
which an inmate may make formal requests to prison staff—from
Guilbeaux to the Records department that reads: "I would like to put in a
180 day writ for Labette County as soon as possible. Please & Thank You."
The bottom half of the document shows that employee "J. Maxwell"
informed Guilbeaux that same day that he was required to pay $11.50 in
certified mail fee to file the 180-day writ pursuant to K.A.R. 44-12-601(3)
[the actual regulation is K.A.R. 44-12-601(f)(3)] and if he wished to
withdraw his 180-day writ request, then he must send another Form 9.

2. The second exhibit, dated April 18, 2012, is purportedly a Form 9 from
Guilbeaux to the Records department and Unit Team that reads: "I would
like to cancel my 180-writ please I didn't know it cost. Please & Thank
You." The bottom half of the form is undated but contains a handwritten
"OK" and signed "J. Maxwell."

3. The third exhibit, dated September 1, 2012, is purportedly a Form 9 from
Guilbeaux to Records department and Sauvain (Unit Team) that reads: "I
received a detainer for case # 11CR78PA on April 13, 2012. I would like
for the staff at this facility to assist me with filing a 180 day writ to the
courts." Guilbeaux included the address for the Labette County Sheriff's
Office. The bottom half of the document shows that employee "K. Seitz"
informed Guilbeaux on September 4, 2012, that his "AWR forms have been
sent to your UTC" and that if he wanted to cancel the request he would
need to send another Form 9.

4. The fourth exhibit, dated September 7, 2012, is purportedly an email from
KDOC records clerk Kimberly Seitz to Sauvain with the subject:
"Guilbeaux 102235 180 day writ." The email reads: "Just received a form 9
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from him. He has now decided that he does not want to do the 180 day writ.
Wow, what a waste of my time calculating and preparing this
documentation on this."

5. The fifth exhibit is a document titled "Uniform Mandatory Disposition of
Detainers Act Pursuant to K.S.A. 22-4301." A handwritten statement at the
bottom of the document indicates that it was the second page of Guilbeaux's
exhibit in his motion to dismiss. The top typewritten paragraph is crossed
out but includes Guilbeaux's information and his calculated good time as of
March 22, 2012. The inmate and records clerk signature lines on the
document are blank.

In a written order filed July 31, 2013, the district court summarily denied
Guilbeaux's motion to dismiss without appointing Guilbeaux counsel and without
conducting a hearing to take evidence. Instead, the district court relied solely upon the
pleadings and attached exhibits, finding that—based on the State's exhibits—Guilbeaux
had failed to request a final disposition under the UMDDA. In particular, the district
court relied upon the State's fourth exhibit, the purported email from Seitz representing
that she had received a Form 9 from Guilbeaux informing her that he did not wish to
pursue the 180-day writ. The Form 9 allegedly sent by Guilbeaux to Seitz was not among
the exhibits presented by the State and is not contained in the record on appeal.

On August 12, 2013, Guilbeaux filed several pro se motions, which included a
motion to alter or amend judgment under K.S.A. 60-259, a request for additional findings
of fact and conclusions of law under K.S.A. 60-252(b), and a motion to appoint counsel
under K.S.A. 22-4501. In relevant part, Guilbeaux argued that the first cancelled request
was involuntary because he did not have $11.50 to pay for the certified mail fee and
KDOC did not inform him that, as an indigent, he did not have to pay it. Guilbeaux also
challenged the evidentiary foundation of the KDOC email that asserted he had cancelled
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his second 180-day writ request on the basis that there was no Form 9 in his file
withdrawing his second request. Finally, Guilbeaux argued that his request for staff
assistance from the KDOC supported his contention that he properly invoked his rights
under the UMDDA and claimed the district court erroneously denied his motion without
holding a hearing.

On October 7, 2013, the State responded and argued that the district court should
not grant Guilbeaux's motions because the evidence did not support that he substantially
complied in completing his request for final disposition with the UMDDA. On March 26,
2014, the district court denied Guilbeaux's motions, holding (1) Guilbeaux improperly
filed his criminal motions under the civil rule of procedure, K.S.A. 60-259, and (2) no
evidence supported Guilbeaux's assertion that he had invoked his rights under the
UMDDA.

On April 21, 2014, Guilbeaux filed another a pro se motion entitled "Motion to
Take Judicial Notice Pursuant to K.S.A. 60-409 and Motion to Reconsider." Guilbeaux
repeated his request that the district court appoint him counsel, address the arguments in
his motion for additional findings of fact and law, and reconsider its ruling that K.S.A.
60-259 did not apply to criminal matters. On October 21, 2014, the district court issued a
final order denying Guilbeaux's motion. In relevant part, the district court held Guilbeaux
was not entitled to the appointment of counsel because he could not meet his burden to
show that he invoked his speedy trial rights under the UMDDA. The district court
advised Guilbeaux to either properly invoke his rights under the UMDDA or file a notice
of appeal of the district court's denial of his motion to dismiss. Guilbeaux chose to file a
notice of appeal on January 5, 2015, appealing the district court's denial of his motion to
dismiss under the UMDDA.

After the denial of Guilbeaux's motion to dismiss on UMDDA grounds, the
criminal case proceeded. After transporting Guilbeaux to Labette County, the district
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court conducted a first appearance on December 17, 2014, and Guilbeaux was appointed
counsel. Not long after his appointment, Guilbeaux's counsel prepared and filed the
aforementioned appeal of the denial of his motion to dismiss.

On March 23, 2015, Guilbeaux was appointed new counsel as his first counsel
withdrew. Ultimately, Guilbeaux agreed to enter a plea of no contest to the robbery
charge in exchange for the dismissal of the remaining charges. On June 9, 2015, the
district court sentenced Guilbeaux to 120 months' imprisonment. No direct appeal of his
conviction or sentence appears in the record.

On July 24, 2017, Guilbeaux filed a pro se motion to correct illegal sentence in the
district court. In this motion, Guilbeaux argued the district court entered an illegal
sentence because it was without jurisdiction to convict and sentence him under the
UMDDA. The record on appeal does not indicate whether the district court ruled on
Guilbeaux's motion.

DID THE DISTRICT COURT ERR IN DENYING
GUILBEAUX'S PRETRIAL MOTION TO DISMISS?

On appeal, Guilbeaux argues that the district court erred in denying his pretrial
motion to dismiss because the State failed to bring him to trial within 180 days of his
request for final disposition under the UMDDA.

A. Preliminary Issue

Before we turn to the merits of Guilbeaux's claim, we must first address a directive
issued by the Kansas Supreme Court while Guilbeaux's appeal was pending before this
court.

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As we noted in our factual discussion above, the district court issued three orders
denying Guilbeaux's requested relief: (1) a summary denial of Guilbeaux's pro se motion
to dismiss pursuant to the UMDDA on July 31, 2013; (2) a denial of Guilbeaux's pro se
motions for reconsideration on March 26, 2014; and (3) a final order again denying
Guilbeaux's efforts at getting the court to change its mind on the UMDDA dismissal issue
on October 21, 2014. Subsequently, on January 5, 2015, Guilbeaux's first appointed trial
counsel filed a notice of appeal challenging the district court's denial of his motion to
dismiss under the UMDDA. The notice of appeal stated: "Notice is hereby given that
Christopher Guilbeaux, defendant, by and through his Attorney, Samuel J. Marsh,
appeals the Denial of the Motion to Dismiss filed herein on March 26, 2014, and the
Final Order and Memorandum Denial of Motion to Dismiss filed herein October 21,
2014, rendered herein."

In July 2017, Guilbeaux filed and this court granted his motion to docket an appeal
out of time. This motion came shortly after Guilbeaux filed a motion to correct an illegal
sentence in the district court but over two years after Guilbeaux had been sentenced.
Then, on August 23, 2017, the motions panel of this court issued a show cause order
questioning its jurisdiction to consider Guilbeaux's appeal and directed Guilbeaux to
submit all journal entries related to the district court's denial of his motion to dismiss.
Guilbeaux did so. The motions panel then issued an order on September 15, 2017,
retaining appellate jurisdiction and concluding that because there was no final appealable
order until Guilbeaux had been sentenced on June 9, 2015, Guilbeaux's notice of appeal
filed on January 5, 2015, did not become effective and timely until after sentencing. The
panel also concluded, relying on State v. Bogguess, 293 Kan. 743, 756, 268 P.3d 481
(2012), that because the notice of appeal only challenged the district court's March 26,
2014 and October 21, 2014 rulings—but not the district court's initial July 31, 2013 order
summarily denying Guilbeaux's pro se motion to dismiss or the legality of Guilbeaux's
sentence—appellate review would be limited to only those two orders. Guilbeaux sought
reconsideration or modification of the panel's order, but the panel denied the motion.
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Guilbeaux then petitioned for review with our Supreme Court, contesting the
motion panel's order limiting his appeal to the rulings specified in the notice of appeal.
On June 14, 2018, the Kansas Supreme Court granted Guilbeaux's petition for review and
remanded the matter to this court with directions to (1) review the district court's July 31,
2013 order summarily denying his motion to dismiss pursuant to State v. Mundy, 307
Kan. 280, 408 P.3d 965 (2018); and (2) resolve Guilbeaux's claim that he is entitled to an
out-of-time appeal of his sentence due to his appointed trial counsels' failure to complete
and perfect his appeal under State v. Ortiz, 230 Kan. 733, 735-36, 640 P.3d 1255 (1982).

Given the Supreme Court's order directing us to consider the propriety of the
district court's initial order denying Guilbeaux's motion to dismiss, the merits of
Guilbeaux's appeal will be addressed. With respect to the Supreme Court's order that we
determine under Ortiz whether Guilbeaux's out-of-time appeal challenging the legality of
his sentence may be considered, as we will explain below, that directive can be satisfied
by our examination of the merits of Guilbeaux's UMDDA claim as both claims rest upon
the jurisdiction of the district court to act, either to convict Guilbeaux or to sentence him.
See K.S.A. 2017 Supp. 22-3504(3) (illegal sentence is one imposed by court without
jurisdiction); Pierson v. State, 210 Kan. 367, 372, 502 P.2d 721 (1972) (failure to timely
prosecute case after defendant's invocation of UMDDA deprives court of jurisdiction).

B. Standard of Review

The standard of review for a denial of a motion to dismiss depends on the ground
on which dismissal was sought. See State v. Garcia, 282 Kan. 252, 259, 144 P.3d 684
(2006). The Kansas Supreme Court has explained that

"[w]hether a defendant's statutory right to a speedy trial was violated is a
question of law subject to de novo review. To resolve the question presented we must
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interpret and apply the UMDDA. Statutory interpretation and the determination of
jurisdiction involve questions of law over which this court's scope of review is unlimited.

"Additionally, . . . this court construes criminal statutes strictly in favor of the
defendant, and any reasonable doubt about a statute's meaning must be decided in favor
of the accused. But this is subordinate to the rule that judicial interpretation must be
reasonable and sensible to effect legislative intent. [Citations omitted.]" State v. Burnett,
297 Kan. 447, 451, 301 P.3d 698 (2013).

C. Merits

Guilbeaux's principal argument is that the district court erred by denying his
motion to dismiss because the record provides that he properly invoked his rights under
the UMDDA. Secondarily, he argues the district court erred in denying his pretrial
motion to dismiss without appointing him counsel and conducting a hearing on the
motion. He also complains that the prison should not have charged him the costs of
mailing his UMDDA request.

Our Legislature originally adopted the UMDDA in 1959 to prevent pending
criminal charges from being indefinitely suspended while a defendant is imprisoned on
other charges and to prevent delays in the administration of justice by requiring courts to
hear cases within a reasonable period of time. State v. Ellis, 208 Kan. 59, 61, 490 P.2d
364 (1971). "The UMDDA provides the manner in which an inmate of a Kansas penal or
correctional institution may require disposition of any criminal charges pending within
the state. State v. Brooks, 206 Kan. 418, 421, 479 P.2d 893 (1971). Burnett, 297 Kan. at
452-53. The right is statutory, not constitutional. State v. Stanphill, 206 Kan. 612, 615-16,
481 P.2d 998 (1971).

At the time Guilbeaux submitted his 180-day writ request, the UMDDA provided
that
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"[a]ny person who is imprisoned in a penal or correctional institution of this state
may request final disposition of any untried indictment, information or complaint pending
against him in this state. The request shall be in writing addressed to the court in which
the indictment, information or complaint is pending and to the county attorney charged
with the duty of prosecuting it, and shall set forth the place of imprisonment." K.S.A. 22-
4301(a).

The UMDDA also outlined the duties of prison officials upon receipt of such request.

"The request shall be delivered to the warden, superintendent or other officials
having custody of the prisoner, who shall forthwith:

"(a) Certify the term of commitment under which the prisoner is being held, the
time already served on the sentence, the time remaining to be served, the good time
earned, the time of parole eligibility of the prisoner, and any decisions of the state board
of probation and parole relating to the prisoner;

"(b) for crimes committed on or after July 1, 1993, certify the length of time
served on the prison portion of the sentence, any good time earned and the projected
release date for the commencement of the postrelease supervision term; and

"(c) send by registered or certified mail, return receipt requested, one copy of the
request and certificate to the court and one copy to the county attorney to whom it is
addressed." K.S.A. 22-4302.

Finally,

"[w]ithin one hundred eighty (180) days after the receipt of the request and
certificate by the court and county attorney or within such additional time as the court for
good cause shown in open court may grant, the prisoner or his counsel being present, the
indictment, information or complaint shall be brought to trial; but the parties may
stipulate for a continuance or a continuance may be granted on notice to the attorney of
record and opportunity for him to be heard. If, after such a request, the indictment,
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information or complaint is not brought to trial within that period, no court of this state
shall any longer have jurisdiction thereof, nor shall the untried indictment, information or
complaint be of any further force or effect, and the court shall dismiss it with prejudice."
K.S.A. 22-4303.

Our Supreme Court explained in Burnett: "Once the prisoner properly initiates
disposition of the other charges under the UMDDA, the State's failure to bring those
charges to trial within 180 days deprives the district court of jurisdiction." 297 Kan. at
448. See also State v. Diederich, 50 Kan. App. 2d 345, Syl. ¶ 2, 326 P.3d 409 (2014)
(untimely prosecution deprives district court of subject matter jurisdiction under
UMDDA).

It is undisputed that Guilbeaux's alleged UMDDA requests never reached the
district court or the county attorney. Guilbeaux asserts this is immaterial because he
properly invoked his right to a speedy trial under the UMDDA, and that once he did so, it
was up to prison officials to forward his requests to the district court and county attorney.

Kansas courts require an inmate's substantial compliance with the UMDDA
statutory provisions to invoke its protections. Burnett, 297 Kan. at 453; In re Habeas
Corpus Application of Sweat, 235 Kan. 570, 575, 684 P.2d 347 (1984); Ekis, Petitioner v.
Darr, 217 Kan. 817, 822-23, 539 P.2d 16 (1975). Under K.S.A. 22-4301(a), an inmate
must complete a written request for final disposition (180-day writ request), address the
request to the correct district court and county attorney where the charges are pending,
and state his or her place of imprisonment. The inmate must then send the completed
180-day writ request to the warden, superintendent or other official having custody of the
inmate. K.S.A. 22-4302.

In Burnett, our Supreme Court also explained that once the facts establish that the
prisoner properly invoked the UMDDA protections, the burden shifts to the prison
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officials to mail the certification and the inmate's 180-day writ request to the district court
and county attorney. 297 Kan. at 454 (citing Pierson, 210 Kan. at 374).

"K.S.A. 22-4302(c) specifies 'the warden, superintendent or other officials having
custody of the prisoner' are obligated to 'forthwith' send the district court and county
attorney the request and certification. Accordingly, if there was a deficiency in the
execution of those statutory responsibilities, that failure is not attributable to [the
prisoner], nor should it prejudice [the prisoner's] ability to invoke the statute. The
UMDDA is the statutory grant to an accused person of a right to which that person
'cannot be deprived by the laches of public officials.' [Citations omitted.]" 297 Kan. at
454-55.

Thus, to succeed on a pretrial motion to dismiss under the UMDDA, the inmate must
establish facts that show he or she substantially complied with K.S.A. 22-4301(a) and
K.S.A. 22-4302. Once established, the fact that the district court or county attorney did
not receive an UMDDA request or certification is not fatal to the inmate's motion to
dismiss under UMDDA.

We agree with Guilbeaux that he is entitled to an evidentiary hearing on the
question of whether he substantially complied with the UMDDA. See Hayes v. State, 210
Kan. 231, 233, 499 P.2d 515 (1972) (evidentiary hearing required "to determine the truth
or falsity" of defendant's UMDDA allegations). In fact, the State concedes this point.
Guilbeaux's motion alleges facts that, if true, would entitle him to relief: He properly
submitted his UMDDA request to prison officials on September 6, 2012; more than 180
days had passed without any action having been taken on his case; and under the
UMDDA the district court lost jurisdiction over the criminal complaint, entitling him to a
dismissal of the charges. The State controverted Guilbeaux's factual allegations with
unauthenticated exhibits attached to its response, the principal one being a purported
email containing hearsay statements from a KDOC records clerk that Guilbeaux had
withdrawn his 180-day writ request. Notably missing from the exhibits—and from the
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record for that matter—is the Form 9 supposedly sent by Guilbeaux withdrawing his
second attempt to initiate a 180-day writ request. Moreover, the district court failed to
make any findings of fact or conclusions of law regarding whether Guilbeaux's assertions
and documents proved that he substantially complied with K.S.A. 22-4301(a) and K.S.A.
22-4302. Instead of appointing Guilbeaux counsel and setting the matter for an
evidentiary hearing to resolve the disputed facts raised in Guilbeaux's motion and the
State's response, the district court chose instead to decide the matter by relying only on
the pleadings. This was error.

According to the record before us, it appears the linchpin of the legal finding that
Guilbeaux had not substantially complied with the UMDDA was the State's factual
assertion that Guilbeaux had withdrawn his second 180-day writ request. The district
court appeared to base its factual finding that Guilbeaux had withdrawn his second 180-
day writ request on a purported email containing hearsay statements that Guilbeaux had
submitted another Form 9 withdrawing his request. The court's reliance on the email is
questionable on a number of evidentiary grounds. See K.S.A. 60-467 (best evidence
rule); K.S.A. 2017 Supp. 60-460 (hearsay); K.S.A. 60-464 (authentication of writing
required).

But even if we assume the email is what it purports to be, the district court's
reliance on it is suspect when considering the KDOC's internal policies that require an
inmate to submit a Form 9 to cancel a request for a 180-day writ. Moreover, as Guilbeaux
argues, in certain factual circumstances, the absence of an entry or a document kept in the
normal course of the business or internal records of an entity tends to prove that such an
entry or document does not actually exist. See K.S.A. 2017 Supp. 60-460(n); State v.
Cremer, 234 Kan. 594, 602-03, 676 P.2d 59 (1984). The email is not a Form 9, and the
State's failure to produce the second Form 9 supports Guilbeaux's argument that he never
sent a second Form 9 withdrawing his second request. Based on KDOC policy, logic
dictates that the State probably needs to show Guilbeaux submitted another Form 9 to
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prove he cancelled his second 180-day writ request. Accordingly, insufficient evidence
supports the district court's finding that Guilbeaux had withdrawn his UMDDA request
and thus failed to substantially comply with the UMDDA.

Because the district court's denial of Guilbeaux's motion to dismiss is unsupported
by the evidence, we reverse the district court and remand for an evidentiary hearing to
sort out the disputed factual allegations. Moreover, given that Guilbeaux's motion to
dismiss could be dispositive of the case and presents substantial questions of law and
triable issues of fact, it constitutes a critical stage of the proceeding entitling Guilbeaux to
the assistance of counsel. See K.S.A. 22-4503 (felony defendant has right to counsel at
every stage of proceedings); State v. Jackson, 255 Kan. 455, 459, 874 P.2d 1138 (1994)
(right to counsel at pretrial proceedings where "motion presents substantial questions of
law or triable issues of fact"). See also Lafler v. Cooper, 566 U.S. 156, 165, 132 S. Ct.
1376, 182 L. Ed. 2d 398 (2012) (right to counsel attaches at critical stages of felony
proceeding); State v. Carr, 300 Kan. 1, 233-34, 331 P.3d 544 (2014) (right to counsel
under K.S.A. 22-4503 not greater than constitutional right to counsel at critical stage of
proceedings), rev. and remanded 577 U.S. ___, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016).
Accordingly, we order that Guilbeaux be appointed counsel to assist him in presenting his
motion to dismiss to the district court and that he be allowed to be personally present at
such hearing. See K.S.A. 2017 Supp. 22-3208(7) (defendant has right to be present at any
hearing on motion to dismiss).

Because we have ordered that an evidentiary hearing be held on Guilbeaux's
motion and that Guilbeaux be appointed counsel with the right to be personally present if
he wishes, the other issues raised by Guilbeaux in his appeal are moot. In particular, we
need not resolve his claim that cancellation of his first 180-day writ request was coerced
due to the prison's unlawful demand for a certified mailing fee of $11.50 because if his
second 180-day writ request was properly invoked, the delay after the second request far
exceeded the 180-day UMDDA time limit. We do note, however, that another panel of
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our court has held that a prison lacks the authority to impose such a fee. See State v.
Lomon, No. 116,497, 2017 WL 1535229, at *4 (Kan. App. 2017) (unpublished opinion)
("[T]here is no statutory authority in the UMDDA requiring the payment of any fee to
pursue a 180-day writ.").

Reversed and remanded with directions.