State v. Northern

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NOT DESIGNATED FOR PUBLICATION

No. 112,956

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MITCHELL C. NORTHERN,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed February 5,
2016. Affirmed.

Samuel Schirer, of Kansas Appellate Defender Office, for appellant.

Kristiane N. Bryant, assistant district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, P.J, GREEN and STANDRIDGE, JJ.

Per Curiam: Mitchell C. Northern appeals the district court's decision denying his
request to pursue an untimely direct appeal after an Ortiz hearing. See State v. Ortiz, 230
Kan. 733, 640 P.2d 1255 (1982).

FACTS

In August 2010, the State charged Northern with aggravated assault of a law
enforcement officer, eluding a police officer, improper turn signal, and driving while
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suspended. Francis Martin was appointed to represent Northern. In November 2010, the
district court granted Northern's request to be evaluated in order to determine if he was
competent to stand trial. One month later, Martin filed a motion to withdraw from the
case. In support of the motion, Martin claimed Northern no longer wished for Martin to
represent him. The district court granted Martin's motion and appointed Richard Carney
to represent Northern.

The report setting forth the results of Northern's initial competence evaluation
concluded that Northern did not have a complete understanding of the legal proceedings
against him. The report recommended further evaluation at Larned State Hospital
(Larned). The district court ordered Northern to be committed to Larned for up to 60 days
in order to undergo another competency evaluation. The staff at Larned later determined
that Northern was competent to stand trial.

On September 30, 2011, Northern signed a document titled Petition to Enter Plea
of Guilty. The document Northern signed set forth the terms of a plea agreement
involving this case as well as the terms of a plea agreement involving case 10-CR-34, in
which Northern was charged with, among other things, first-degree murder. With regard
to this case, Northern agreed to plead guilty to aggravated assault of a law enforcement
officer. In return, the State agreed to dismiss all other charges and to recommend that his
sentence run concurrent to the sentence imposed for the murder charge in 10-CR-34.
Pursuant to the plea agreements, Northern pled guilty to and was convicted of aggravated
assault of a law enforcement officer and first-degree murder.

Northern was sentenced in this case to 43 months in prison for the aggravated
assault conviction. Northern was sentenced in 10-CR-34 to life in prison without the
possibility of parole for 25 years for the murder conviction. The two sentences were
ordered to run concurrently. The district court informed Northern that he had 14 days to
file an appeal. Northern never filed a notice of appeal.
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On May 19, 2014, Northern filed a pro se motion requesting permission to file an
appeal out of time. In support of his motion, Northern alleged that he asked his attorney
to appeal his sentence but that his attorney failed to do so. The State responded by
requesting an evidentiary hearing.

The hearing was held on September 12, 2014. Northern testified first. Northern
confirmed that he understood his plea agreement recommended a prison sentence of 25
years to life. Northern also testified, however, that he remembered telling Carney that he
wanted to file an appeal of his sentence. According to Northern, Carney responded by
saying that an appeal would not "do any good." After Carney said that, Northern never
asked Carney to file an appeal again.

On cross-examination, Northern stated only that he was "fairly sure" he asked
Carney to file a notice of appeal. He said he was "most of the way sure that [he] did" but
admitted he could have been mistaken. He also admitted that he did not contact Carney
within his initial 14-day window to appeal and never checked to see if an appeal had been
filed until May 2014. When Carney was called to testify, Carney unequivocally stated
that he remembered Northern's sentencing hearing and that Northern never asked him to
file an appeal.

The district court denied Northern's motion. In a written journal entry, the court
specifically found that Northern was notified of his right to appeal, that Northern did not
recall a specific conversation with Carney in which he asked Carney to file an appeal on
his behalf, and that Carney testified that Northern did not request that Carney file an
appeal. The district court ultimately determined that none of the Ortiz exceptions
allowing for a late appeal applied in this case.



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ANALYSIS

The timely filing of a notice of appeal in a criminal case is generally jurisdictional.
State v. Hall, 298 Kan. 978, 986, 319 P.3d 506 (2014). In order to appeal directly from a
criminal conviction, the defendant must file a notice of appeal within 14 days after
sentencing. K.S.A. 2015 Supp. 22-3608(c). Our Supreme Court has recognized
exceptions to the general rule that the filing of a timely notice of appeal is a jurisdictional
requirement. Ortiz, 230 Kan. 733, Syl. ¶ 3. But it has only identified "three narrowly
defined, truly exceptional circumstances" in which a defendant should be permitted to file
a late direct appeal. State v. Patton, 287 Kan. 200, 217, 195 P.3d 753 (2008). These
narrow exceptions allow a defendant to file a late appeal if the defendant "(1) was not
informed of his or her right to appeal, (2) was not furnished an attorney to perfect an
appeal, or (3) was furnished an attorney who failed to perfect an appeal." 287 Kan. 200,
Syl. ¶ 3. These exceptions are referred to as the Ortiz exceptions. 287 Kan. at 218.

Northern argues that his claim falls under the third Ortiz exception and that the
district court erred by denying his request to file a late appeal. This court reviews a
district court's decision following an Ortiz hearing under a bifurcated standard. It reviews
the district court's factual findings to determine if they are supported by substantial
competent evidence, and it reviews the district court's ultimate legal conclusions de novo.
State v. Gill, 287 Kan. 289, 293, 196 P.3d 369 (2008). An appellate court does not
reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of
witnesses. State v. Lewis, 301 Kan. 349, 371, 344 P.3d 928 (2015).

Northern concedes on appeal that the district court found Carney's testimony to be
more reliable that Northern's testimony. Nevertheless, Northern argues that it was
unreasonable for the district court to reach that decision. In support of this argument, he
points to two things. First, he cites K.A.R. 105-3-9(a)(3), which states that an appointed
attorney has a duty to file a timely notice of appeal unless a waiver of the right to appeal
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has been signed by the defendant. Northern admits Carney never testified one way or the
other about whether he complied with this regulation. Notwithstanding this admission,
Northern suggests we can make a reasonable inference from the facts that Carney failed
to comply with the regulation because, according to Carney, Northern never brought up
the possibility of an appeal after the sentencing. The record does not support such an
inference.

K.A.R. 105-3-9(a)(3) does not require the waiver referenced by Northern be filed
with the court, nor does it explicitly require the waiver to be completed at any particular
time during the proceedings. Neither party asked Carney at the hearing whether he
complied with this regulation; thus, Northern could have signed a waiver to his right to
appeal before or after the sentencing hearing. Given the silence in the record concerning
the waiver, however, it would be improper to make any inferences regarding its
existence.

Next, Northern argues that he was attempting to be candid with the court at the
hearing and that the district court erred by not finding that his testimony was accurate.
But to accept Northern's argument would require us to reweigh the evidence and
redetermine the credibility of witnesses, which we cannot do. Carney's testimony that
Northern never requested him to file a notice of appeal supports the district court's
ultimate conclusion that no Ortiz exceptions applied that would have allowed Northern to
pursue a late appeal. For this reason, we affirm the decision of the district court.

Affirmed.