State v. Waterman

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NOT DESIGNATED FOR PUBLICATION

No. 119,425

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SHAWN C. WATERMAN,
Appellant.

MEMORANDUM OPINION


Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed August 16,
2019. Affirmed.

James M. Latta, of Kansas Appellate Defender Office, for appellant.

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

Before GREEN, P.J., STANDRIDGE, J., and MCANANY, S.J.

PER CURIAM: The district court initially imposed on Shawn C. Waterman a
sentence that included 24 months of postrelease supervision. Because the law at the time
of Waterman's crime required the imposition of lifetime postrelease supervision, the State
moved to correct Waterman's illegal sentence. The district court agreed and sentenced
Waterman to lifetime postrelease supervision. Waterman did not appeal within the time
allowed. Later, he moved under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), for
leave to file a late appeal, claiming that he was ill advised by his counsel not to pursue a
timely appeal. The district court denied Waterman's motion, and this appeal followed.
Based on our review, we conclude that the district court correctly denied Waterman's
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motion. His lawyer properly advised him regarding his prospects on appeal, and so
Waterman has failed to establish an exception under Ortiz that would excuse an untimely
appeal.

Procedural History

The State charged Waterman with rape. The crime was alleged to have occurred
on either July 1 or July 2, 2006. His trial resulted in a hung jury, and the court scheduled
a retrial. In the meantime, Waterman entered into a plea agreement with the State in
which he agreed to plead no contest to a reduced charge of aggravated sexual battery. The
district court accepted his plea and sentenced him to 57 months in prison followed by 24
months of postrelease supervision.

Several months later, Waterman moved to appeal out of time and to withdraw his
plea. At the hearing that followed, Waterman abandoned his motions and asked that they
be dismissed.

Two years later the State moved to correct Waterman's sentence from 24 months
of postrelease supervision to lifetime supervision, arguing that Waterman's original
sentence was illegal because when his crime was committed the Legislature had recently
changed the period of postrelease supervision in K.S.A. 2006 Supp. 22-3717(d)(1)(G)
from 24 months to lifetime.

At the hearing that followed, Waterman's counsel did not oppose the State's
motion, and the court corrected Waterman's sentence accordingly.

Eleven months later, Waterman moved under Ortiz for leave to appeal out of time
the district court's order correcting his sentence. He claimed that his counsel did not
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properly explain to him that he could appeal the district court's order. The district court
appointed new counsel and set the matter for an evidentiary hearing.

At the hearing, Waterman testified that he did not appeal the change in his
sentence because his counsel told him there were no grounds for an appeal. He contended
that but for his counsel's advice he would have appealed the decision to resentence him to
lifetime postrelease supervision.

Waterman's counsel testified that before meeting with Waterman to discuss the
merits of the State's motion, he researched K.S.A. 22-3717(d)(1)(G) and discussed it with
another attorney and concluded the State's motion was correct—Waterman was subject to
lifetime postrelease supervision. Counsel spoke with Waterman twice over the phone and
once in the hallway before the sentence modification hearing. He told Waterman about
the hearing's procedure, that the court would rule on the motion, and that Waterman
would be resentenced but he had the right to appeal. Waterman asked him, "'Well, do you
think we have a chance of winning it?'" Counsel told Waterman that they did not. He said
that Waterman could contest a modification of his sentence if he chose to do so, but it
was likely that the court would grant the State's motion. Waterman told his counsel that
he did not want to contest the State's motion and, accordingly, his counsel raised no
objections and made no arguments against the State's motion at the hearing that followed.

After the sentence modification hearing, Waterman asked his counsel, "'Well,
what about taking an appeal?'" Counsel advised Waterman an appeal would be fruitless,
but it was Waterman's decision whether to pursue an appeal. He told Waterman an
appellate defender would represent him if he chose to appeal the district court's decision.
Counsel testified that he told Waterman "you want to take an appeal, that's fine, you
know, that's your decision to make. You just need to understand that I don't believe it's
going to go anywhere." Afterwards, Waterman told counsel that he did not want to file an
appeal.
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The district court found Waterman did not meet any of the Ortiz exceptions and
that his counsel's testimony was credible. Waterman appeals.

Analysis

Waterman failed to timely appeal the district court's modification of his sentence,
which ordinarily would be fatal to being afforded any relief. But Ortiz provides for an
otherwise untimely appeal if Waterman (1) was not informed of his right to appeal, (2)
was not furnished an attorney to perfect an appeal, or (3) was furnished an attorney for
that purpose who failed to perfect and complete an appeal. See State v. Smith, 304 Kan.
916, 919, 377 P.3d 414 (2016).

Waterman argues that the third Ortiz exception applies because his counsel failed
to properly advise him about his rights to appeal. Our task on appeal is to review the
district court's factual findings at the Ortiz hearing to determine if they are supported by
substantial competent evidence. We review de novo the legal determination that
Waterman failed to establish that he is entitled to relief under the third Ortiz exception.
See Smith, 304 Kan. at 919. The district court found Waterman's counsel to be credible.
In the course of our review we do not reweigh the evidence, reassess the credibility of the
two witnesses at the hearing, or resolve any conflicts in evidence. See State v. Talkington,
301 Kan. 453, 461, 345 P.3d 258 (2015).

Waterman argues on appeal that but for his counsel's inadequate advice he would
have appealed, and on appeal he would have argued that he was entitled to relief on two
legal theories. First, he claims he could have argued on appeal that the doctrines of
equitable or quasi-estoppel would have applied because of his detrimental reliance on a
term of 24 months' postrelease supervision when he agreed to enter his plea. Second, he
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claims he could have argued on appeal that lifetime postrelease supervision is
unconstitutional because it constitutes cruel and unusual punishment.

The Cases

A review of the relevant cases is appropriate here. In Roe v. Flores-Ortega, 528
U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000), the Supreme Court declared that
counsel must consult with the defendant about an appeal. "We employ the term 'consult'
to convey a specific meaning—advising the defendant about 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 Kansas Supreme Court applied Flores-Ortega in State v. Patton, 287 Kan.
200, 224, 195 P.3d 753 (2008). There, the defendant pled to drug crimes involving the
possession of methamphetamine and anhydrous ammonia. There was no direct appeal.
Then, in 2004, our Supreme Court handed down its decision in State v. McAdam, 277
Kan. 136, 146-47, 83 P.3d 161 (2004), in which the court held that the manufacture of a
controlled substance should be treated as a level 3 rather than a level 1 felony. Patton
sought to pursue a late direct appeal under Ortiz, arguing that he told his counsel to
appeal but his counsel failed to do so. The district court granted a late appeal under Ortiz.
On its review of that order, a panel of the Court of Appeals refused to order resentencing
under McAdam because Patton waived his right to a direct appeal as part of his plea
agreement. On review by our Supreme Court, the court found that the third Ortiz
exception applied because Patton told his counsel to appeal but counsel failed to do so.
The court stated that had Patton's lawyer followed Patton's instructions, he would have
been entitled to resentencing under McAdam. But the court noted that a defendant "need
not show . . . that such a timely direct appeal would have been successful." Patton, 287
Kan. at 225.

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Four years later, our Supreme Court handed down its opinion in State v. Snellings,
294 Kan. 149, 273 P.3d 739 (2012). In Snellings, the court held that possession of
ephedrine or pseudoephedrine with intent to manufacture a controlled substance, a level 2
felony, has the same elements as possession of paraphernalia with intent to manufacture a
controlled substance, a level 4 felony. 294 Kan. at 158-59. Accordingly, the crime of
possession of ephedrine or pseudoephedrine with intent to manufacture a controlled
substance must be treated for sentencing purposes as a level 4 rather than a level 2 felony.

Two years later, in Grazier v. State, No. 109,792, 2014 WL 5312851 (Kan. App.
2014) (unpublished opinion), the defendant pled to possession of drug precursors, a level
2 felony. Our Supreme Court had granted a petition for review in Snellings 10 months
before Grazier was sentenced. Grazier's counsel told him there was no appealable issue,
and Grazier did not appeal his sentence. On review, this court declared that Grazier's
counsel should have informed him of the "identical offense" sentencing doctrine. Grazier
was granted a late appeal based on the finding that had Grazier filed a direct appeal, his
appeal would have been pending when Snellings was decided and Grazier would have
been entitled to relief under Snellings—his conviction would have been reduced from a
level 2 to a level 4 felony. Grazier, 2014 WL 5312851, at *3-4.

Two years later, our Supreme Court handed down opinions on the same day in
State v. Shelly, 303 Kan. 1027, 371 P.3d 820 (2016), and State v. Perry, 303 Kan. 1053,
370 P.3d 754 (2016). Shelly and Perry were husband and wife and both were charged
with drug crimes. Shelly pled to possession and distribution of drug precursors, level 2
felonies, in March 2012. On April 6, 2012, the day of Shelly's sentencing, our Supreme
Court handed down its opinion in Snellings that required Shelly's crimes to be treated as
level 4 rather than level 2 felonies. Shelly was sentenced to level 2 offenses. After
sentencing, Shelly's counsel told him that there was nothing to appeal. During the month
following Shelly's sentencing, and while he was incarcerated, Shelly learned about the
holding in Snellings and had his mother ask his counsel about it. Counsel took no action
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and told Shelly to "'stop being a jailhouse lawyer.'" Shelly, 303 Kan. at 1029. Shelly then
filed a pro se K.S.A. 60-1507 motion based on the holding in Snellings, but the district
court found that Snellings did not apply to his conviction for distribution of a drug
precursor. Shelly filed a late direct appeal of his sentencing, and our court remanded for
an Ortiz hearing. On remand, the district court denied a late direct appeal under Ortiz.

On review, our Supreme Court determined in Shelly that a defendant must have
reasonably demonstrated to counsel that he or she was interested in appealing or that a
rational defendant would want to appeal. If so, counsel was required to consult with the
defendant. To do so successfully, counsel must advise the defendant of the advantages
and disadvantages of taking an appeal and counsel must make reasonable efforts to
discover the defendant's wishes. Counsel who properly consults the defendant will only
fail to perform when counsel fails to follow the defendant's express instructions to file an
appeal. A defendant who explicitly tells such counsel not to file an appeal cannot later
complain that counsel acted deficiently. Shelly, 303 Kan. at 1041-42. Moreover, the
defendant must show there was a reasonable probability he or she would have timely
appealed but for the attorney's failure to consult. The court stated: "The minimal advice
given—that there was nothing to appeal—unreasonably overlooked at least potentially
meritorious grounds for appeal and did not allow [the defendant] to knowingly and
intelligently waive his right to appeal. The consultation was thus inadequate." 303 Kan. at
1051.

In Perry, which involved Shelly's wife, both she and her husband were represented
by the same counsel at their sentencings. Counsel was not aware of the holding in
Snellings issued shortly after Perry's sentencing. Our Supreme Court determined that
counsel had incorrectly advised Perry that there were no grounds for an appeal. If Perry
had known of the Snellings opinion, she would have appealed. Her counsel's failure to
learn of Snellings and advise Perry accordingly was objectively unreasonable and
deprived Perry of her right to an appeal. Perry, 303 Kan. at 1061.
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Waterman's Claims

Back to our present case, Waterman argues he is entitled to an out-of-time appeal
because his counsel failed to advise him of the advantages and disadvantages of
appealing. With regard to the disadvantages of an appeal, Waterman complains that his
counsel never clarified that the only disadvantage to appealing was losing. This claim is
refuted by the record. Waterman and his counsel discussed the merits of the State's
motion both before and after the hearing. Before the hearing, Waterman asked if they had
a chance at winning. Counsel correctly responded that they did not, but that Waterman
could appeal if he wanted to. After the hearing, Waterman asked about an appeal.
Counsel told him an appeal would be fruitless, but Waterman could appeal if he wanted
to because it was his decision to make, and if he chose to appeal an appellate defender
would be appointed to represent him on appeal. We find this advice was accurate and
comprehensive and fully satisfied counsel's obligation to advise his client about the
disadvantages of appealing. He did not discuss the advantages of an appeal because there
were no potentially meritorious appellate issues to discuss.

But according to Waterman, we have overlooked the advantages of appealing on
theories of equitable and quasi-estoppel and unconstitutional cruel and unusual
punishment. We think not. We are convinced that these theories are nonstarters.

Before getting to those theories, we must consider Waterman's argument that his
counsel overlooked telling him about the advantage of appealing in order to have another
court review the case for any errors. That might be necessary for someone wholly
unfamiliar with judicial proceedings in this country, but that would not include
Waterman. It was Waterman who raised the question of pursuing an appeal. He clearly
understood the concept that an appeal would permit a higher court to review his case.
After all, that is what he sought earlier in this case when, several months after his original
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sentencing, he moved for leave to pursue a direct appeal out of time. He obviously
understood that he was asking for a chance to have another court review his case. We
find Waterman's argument wholly unpersuasive.

With regard to Waterman's estoppel theories—equitable or quasi—it is clear to us
that they lead nowhere. Waterman claims equitable estoppel applies because "in agreeing
to plead no contest in accordance with the plea agreement, he reasonably relied to his
detriment on the State's assertion, not to mention the district court's actual sentencing,
that he would serve 24 months post-release supervision." As stated in United American
State Bank & Trust Co. v. Wild West Chrysler Plymouth, Inc., 221 Kan. 523, 527, 561
P.2d 792 (1977),

"Equitable estoppel is the effect of the voluntary conduct of a person whereby he is
precluded, both at law and in equity, from asserting rights against another person relying
on such conduct. A party asserting equitable estoppel must show that another party, by its
acts, representations, admissions, or silence when it had a duty to speak, induced it to
believe certain facts existed. It must also show it rightfully relied and acted upon such
belief and would now be prejudiced if the other party were permitted to deny the
existence of such facts."

Waterman's theory of quasi-estoppel is based on Harrin v. Brown Realty Co., 226 Kan.
453, 458-59, 602 P.2d 79 (1979), in which the court stated that quasi-estoppel "involves
an assertion of rights inconsistent with past conduct, silence by those who ought to speak,
or situations wherein it would be unconscionable to permit a person to maintain a
position inconsistent with one in which he has acquiesced."

Waterman does not explain what "rights" are estopped from being asserted to his
detriment. In view of the fact that estoppel applies to bar certain conduct of a party, is he
now contending that in State v. Waterman one of the parties to this action was the district
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court judge? Is he suggesting that the court should be estopped from correcting a
previously imposed unlawful sentence?

Regardless of what sentence the State and Waterman agreed to recommend to the
sentencing court, Waterman could not agree to an illegal sentence. See State v. Jones, 293
Kan. 757, 757-58, 268 P.3d 491 (2012). The same applies to a prosecutor. The State had
no "right" to seek an illegal sentence. Moreover, the court was obligated to impose a
sentence that was consistent with our Kansas sentencing statutes. These are not "rights"
that the prosecutor or the court could choose to invoke or not. They are duties. The
sentencing court did not have a "right" to impose on Waterman an illegal sentence.
Likewise, when the sentencing error was uncovered, the court did not have a "right,"
which it could either choose to exercise or not, to correct the previously imposed illegal
sentence. The court had the duty to follow the law and correct an illegal sentence
previously imposed. Equitable estoppel clearly does not apply to this situation.

The same can be said for quasi-estoppel. Waterman now has a legal sentence
which includes lifetime postrelease supervision. He would have us apply the doctrine of
quasi-estoppel to change his sentence back to an illegal sentence. As stated in State v.
Alderson, 299 Kan. 148, 151, 322 P.3d 364 (2014): "Equitable principles, such as quasi-
estoppel, cannot be used to convert a legal criminal sentence into an illegal sentence."

We find no merit whatsoever in Waterman's estoppel theories.

Waterman also argues that his counsel should have explained to him the advantage
of appealing so that he could have raised on appeal the argument that the imposition of
lifetime postrelease supervision constituted unconstitutional cruel and unusual
punishment.

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For support Waterman relies on the holding by a panel of our court in State v.
Proctor (Proctor II), No. 104,697, 2013 WL 6726286, at *4-8 (Kan. App. 2013)
(unpublished opinion). Its predecessor, State v. Proctor (Proctor I), 47 Kan. App. 2d 889,
280 P.3d 839 (2012), rev'd and remanded by S. Ct. order June 19, 2013, was a direct
appeal following the district court sentencing Proctor to lifetime postrelease supervision.
Proctor I considered whether the imposition of lifetime postrelease supervision was
unconstitutional as applied to the defendant. The Proctor I court found that under
Proctor's particular circumstances, lifetime postrelease supervision violated both the
Kansas and United States Constitutions. 47 Kan. App. 2d at 942.

Shortly thereafter our Supreme Court handed down opinions in State v. Mossman,
294 Kan. 901, 281 P.3d 153 (2012), and State v. Cameron, 294 Kan. 884, 281 P.3d 143
(2012), finding no categorical state or federal constitutional violations in imposing
lifetime postrelease supervision. Our Supreme Court reviewed Proctor I and summarily
remanded it to the Court of Appeals for reconsideration in light of the holdings in
Mossman and Cameron. On further review, the panel deciding Proctor I issued Proctor II
in which it again found that lifetime postrelease supervision was unconstitutional as
applied to Proctor because of his personal history and circumstances.

Waterman does not argue that his counsel's inadequate advice deprived him of the
chance to argue on appeal that lifetime postrelease supervision is categorically
unconstitutional. That notion was dispelled in Mossman and Cameron. Waterman's claim
is that he has been deprived of the opportunity to argue on appeal that lifetime postrelease
supervision is unconstitutional as applied to him. Such an appellate argument would
necessarily be predicated on a well-developed record before the district court on this
claim, including all the facts from Waterman's personal history that would distinguish his
circumstances from those of other criminal defendants who also face the prospects of
lifetime postrelease supervision. But Waterman did not raise this argument below and
never presented to the district court the facts necessary to support such a claim. Had
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Waterman appealed this resentencing on this ground, he would have had no facts in the
record to support his claim and it would have failed. As stated in State v. Naputi, 293
Kan. 55, 67-68, 260 P.3d 86 (2011):

"We have repeatedly stated that the issue of cruel and/or unusual punishment will
not be reviewed for the first time on appeal because it requires the district court's
findings upon the three-part test established in State v. Freeman, 223 Kan. 362, 367,
574 P.2d 950 (1978). [Citations omitted.] Granted, in State v. Seward, 289 Kan. 715,
720-21, 217 P.3d 443 (2009) . . ., we remanded to the district court to apply the
Freeman factors. . . . However, we cautioned that such an outcome was an exceptional
situation. . . . Central to that decision was the finding that the defendant had adequately
raised the issue before the district court."

Unlike in Seward, Waterman did not raise his constitutional claim before the district
court, so his case would not have been remanded for fact-finding on his claim that
lifetime postrelease supervision was unconstitutional as applied to him. For these reasons,
Waterman's counsel had no duty to advise him that it would be to Waterman's advantage
to appeal his resentencing so he could raise this constitutional argument for the first time
on appeal.

Waterman argues that this discussion of the merits of these possible appellate
arguments is immaterial in deciding what advice counsel must give a defendant who is
contemplating whether or not to pursue an appeal. We disagree. Waterman seems to hang
his hat on language from Patton and ignore the language of Shelly.

In Patton, the court stated that a defendant "need not show . . . that such a timely
direct appeal would have been successful." 287 Kan. at 225. But in Shelly the court
stated: "The minimal advice given—that there was nothing to appeal—unreasonably
overlooked at least potentially meritorious grounds for appeal and did not allow [the
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defendant] to knowingly and intelligently waive his right to appeal." (Emphasis added.)
303 Kan. at 1051.

We understand the Patton court to have relieved a defendant from the heavy
burden of having to prove absolutely that defendant's purported claims on appeal would
carry the day. But this is not to say that any hare-brained theory a defendant can dream up
will trigger counsel's duty to advise the defendant to appeal so as to bring that issue
before the appellate court. We take from Shelly that counsel need only advise the
defendant of potentially meritorious grounds for an appeal. Here, Waterman's counsel
had no duty to advise him about the prospects of raising on appeal any constitutional or
estoppel issues.

The cases discussed earlier support this. In each of those cases the defendant had a
meritorious defense that could have been raised if counsel had given proper advice on the
merits of an appeal. In Patton, had the defendant appealed he would have enjoyed the
benefit of the court's holding in McAdam and had his conviction reduced from a level 1
felony to a level 3 felony. In Grazier, had the defendant been properly advised to appeal,
his appeal would have been pending when Snellings was decided and he would have
received the benefit of that decision—having his conviction reduced from a level 2 felony
to a level 4 felony. Similarly, in both Perry and Shelly, the defendants would have
obtained reduced sentences under Snellings had they been properly advised to appeal.
The third Ortiz exception applied in these cases because counsel for the various
defendants erroneously stated that they had no grounds for an appeal. We find no case in
which the third Ortiz exception was found to apply when counsel failed to advise the
defendant to appeal in order to raise a totally meritless issue.

In Waterman's case, his counsel correctly advised him on the futility of an appeal.
Accordingly, the district court correctly ruled that Waterman failed to show that he was
entitled to a late appeal under Ortiz.
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Affirmed.