State v. Zurita-Cruz

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NOT DESIGNATED FOR PUBLICATION

No. 110,442

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

EMILIO ZURITA-CRUZ,
Appellant.


MEMORANDUM OPINION

Appeal from Finney District Court; ROBERT J. FREDERICK, judge. Opinion filed September 18,
2015. Affirmed.

Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.

Tamara S. Hicks, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and
Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., ARNOLD-BURGER, J., and JOHNSON, S.J.

Per Curiam: In 2008 Emilio Zurita-Cruz was convicted by a jury of rape and
aggravated criminal sodomy. He did not appeal. More than 5 years after his sentencing he
wrote to the district court, claiming that his appointed attorney had been directed to but
had failed to file an appeal. That allegation, if true, would entitle Zurita-Cruz to a late
appeal under the third Ortiz exception to the jurisdictional requirement of a timely appeal.
See State v. Ortiz, 230 Kan. 733, 735-36, 640 P.2d 1255 (1982). The district court
appointed counsel for Zurita-Cruz and conducted an evidentiary hearing on his claims,
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but it determined that his testimony was not credible and denied him a late appeal. We
affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2008 a jury convicted Zurita-Cruz of the 2001 rape of his daughter,
F.C., and the 2004 commission of aggravated criminal sodomy upon his daughter, L.C.
The dates of the offenses were prior to the enactment of Kansas' version of Jessica's Law
so, even though each child was under 14 at the time of the crime against her, the offenses
were not offgrid. The rape was a severity level 1 person felony on the sentencing grid.
With Zurita-Cruz' criminal history of I the maximum sentence in the applicable gridbox
for that offense was 165 months. The aggravated criminal sodomy was a severity level 2
person felony, with a maximum sentence of 123 months. On March 25, 2008, the district
court sentenced Zurita-Cruz to those maximums, to be served consecutively, for a
controlling prison term of 288 months. Zurita-Cruz did not file an appeal.

By a letter dated April 15, 2013, Zurita-Cruz asserted to the district court that his
trial counsel, Linda Eckelman, had not filed an appeal although he had specifically asked
her to do so. He also claimed he instructed his interpreter to tell Eckelman that he wanted
to file an appeal. Zurita-Cruz asked the court for help in getting his appeal filed and
docketed. The district court treated Zurita-Cruz' letter as a motion to file an appeal out of
time. The district court appointed counsel and had Zurita-Cruz transported back from
prison to the county jail. On June 6, 2013, Judge Robert J. Frederick, who had presided
over Zurita-Cruz' jury trial and imposed sentence, held an evidentiary hearing on the
motion in order to determine if an Ortiz exception applied to allow an untimely appeal.

At the hearing Zurita-Cruz testified, through a Spanish/English interpreter, that
immediately after his sentencing while still at counsel table he asked Eckelman to file an
appeal and she agreed to do so. He said he then waited to hear from her but never did. He
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claimed that sometime within the last year before the motion hearing he sent Eckelman a
letter asking what happened to his appeal, but she never responded. Zurita-Cruz admitted
that he had Eckelman's business card the whole time he was in prison. He contended that
he waited so long to check on the status of his appeal because he trusted that Eckelman
had filed it and because everyone he asked told him that appeals take a long time.

Mary Aronson, the interpreter at Zurita-Cruz' 2008 sentencing hearing, testified
that she had no memory of that proceeding, nor did she recall ever talking about an
appeal with Zurita-Cruz and Eckelman.

Eckelman testified that she had been appointed to represent Zurita-Cruz for his
2008 jury trial. She communicated with him through Aronson. According to Eckelman,
Zurita-Cruz had told her during the trial that he had given money to someone to hire
another attorney for him. Eckelman recalled that, at sentencing, Zurita-Cruz indicated
that he just wanted to get his money back from the person he had given it to and did not
want to hire another attorney. Eckelman testified that she discussed with Zurita-Cruz his
right to appeal after the sentencing and asked, "'What do you want to do, do you want to
appeal this?'" He did not tell her to appeal. Rather, he continued to ask her to help get his
money back. When Eckelman asked who had his money, Zurita-Cruz could not give her a
name, so she declined to help with that. Eckelman acknowledged that she did not think
Zurita-Cruz ever actually said he did not want to appeal.

Eckelman confirmed that she had given Zurita-Cruz her business card at the
sentencing hearing. She stated that she had moved her office in October 2010 and
updated her address on her website and with the Kansas Supreme Court. Eckelman
denied receiving a letter from Zurita-Cruz in 2012 or receiving any other communication
from him or anyone else (unit team at the prison, family, or otherwise) indicating that
Zurita-Cruz wanted to file an appeal.

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At the conclusion of the hearing Judge Frederick announced his decision, finding
that Zurita-Cruz had not met his burden of proof to demonstrate that Eckelman had
"failed to perfect and complete an appeal when requested to do so." He denied Zurita-
Cruz' request to file his appeal out of time, explaining that denial as follows:

"From the evidence that's been presented, this Court finds it very difficult to
accept, if not impossible to accept, Mr. Zurita-Cruz's version of this event. It's just
incomprehensible to me that someone could have directed someone to file an appeal and
then sat back on the couch for more than five years before doing anything about it.

"Simply stated, the testimony of Mr. Zurita-Cruz is not credible. The Court
declines to accept as credible his testimony, and the Court finds that the testimony of Ms.
Eckelman is the more believable of the two, and that in light of all of that, the Defendant
has failed to meet his burden of proof with regard to establishing an exception."

The district court confirmed these findings in its journal entry from the hearing,
specifically finding that Eckelman's testimony was credible and Zurita-Cruz' testimony
was not. Zurita-Cruz timely appealed.

ANALYSIS

Zurita-Cruz argues that the district court erred in denying him leave to appeal out
of time under the third exception recognized in Ortiz for his attorney's failure to file an
appeal. He faults the district court's factfinding and further asserts that Eckelman's failure
to obtain the written appeal waiver from him required by K.A.R. 105-3-9 is, in and of
itself, enough to entitle him to an out of time appeal.

When reviewing the district court's decision on whether any of the Ortiz
exceptions apply, this court examines the facts found by that court under a substantial
competent evidence standard. State v. Phinney, 280 Kan. 394, 404, 122 P.3d 356 (2005).
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Substantial evidence refers to legal and relevant evidence that a reasonable person could
accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269
P.3d 1260 (2012). Under this standard, "it is not for this court to reweigh the evidence,
substitute its evaluation of the evidence for that of the trial court, or pass upon the
credibility of the witnesses." State v. Hartpence, 30 Kan. App. 2d 486, 493, 42 P.3d 1197
(2002). We then conduct an unlimited review of the district court's ultimate legal
conclusion on whether the facts as found by the district court fit within an Ortiz
exception. Phinney, 280 Kan. at 404.

The right to appeal is statutory, and an appellate court only has jurisdiction to
entertain an appeal if it is taken in the manner prescribed by statute. State v. J.D.H., 48
Kan. App. 2d 454, 458, 294 P.3d 343, rev. denied 297 Kan. 1251 (2013). Ordinarily,
then, only a timely filed appeal can confer appellate jurisdiction. Under Ortiz, appeals
filed after the statutory time limit has passed (here, 10 days after sentencing under K.S.A.
22-3608[c]) are only allowed "if a defendant (1) had not been informed of his or her right
to appeal, (2) had not been furnished an attorney to perfect an appeal, or (3) had been
furnished an attorney who failed to perfect an appeal." State v. Patton, 287 Kan. 200,
206, 195 P.3d 753 (2008) (citing Ortiz, 230 Kan. at 735-36). A criminal defendant bears
the burden of establishing the applicability of an Ortiz exception. See State v. Singleton,
33 Kan. App. 2d 478, 487, 104 P.3d 424 (2005).

Zurita-Cruz essentially contends that his testimony at the hearing was more
credible than Eckelman's and that, as such, the district court's decision was in error. In
particular, he argues that the court ignored his testimony that he took so long to check on
the status of his appeal because he trusted that Eckelman had filed it and because he knew
that appeals take a long time. Zurita-Cruz also notes that Eckelman only testified that he
never requested an appeal, not that he affirmatively stated he did not want to file one.
Under these circumstances, Zurita-Cruz claims that Eckelman should have contacted him
prior to the expiration of the time for filing an appeal in order to get a definitive answer
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as to whether he wanted to appeal. He also asserts that Eckelman should have obtained a
written waiver of appeal from him pursuant to K.A.R. 105-3-9(a)(3).

Contrary to Zurita-Cruz' contentions regarding the filing of an appeal, Ortiz does
"not impose affirmative duties on counsel or the court." Patton, 287 Kan. at 217. It was
therefore incumbent on Zurita-Cruz to tell Eckelman to appeal. Although a written
waiver may be relevant in making an Ortiz determination, the lack of a waiver is not
determinative of the issue. See State v. Willingham, 266 Kan. 98, 100-01, 967 P.2d 1079
(1998). Other than his own testimony, Zurita-Cruz provides no evidence to support his
contention that after sentencing he instructed Eckelman to file an appeal for him. He
acknowledges that he waited at least 4 years after sentencing before he allegedly wrote to
Eckelman about the status of his appeal and over 5 years before contacting the district
court. As the district court noted, these facts conflict with Zurita-Cruz' now-claimed
desire to immediately appeal. Conversely, Eckelman testified that Zurita-Cruz did not ask
her to appeal, and when she tried to pin him down he would change the subject to the
recoupment of money he had given to someone he could not name.

Again, we cannot reweigh the evidence or reconsider the district court's adequately
supported credibility determinations. See Hartpence, 30 Kan. App. 2d at 493. Here the
district court heard and observed Zurita-Cruz and Eckelman testify. It resolved the
contradictions between their recollections by finding Eckelman's testimony more credible
than that of Zurita-Cruz. The district court did not ignore Zurita-Cruz' explanation of why
it took him so long after sentencing to act regarding his appeal, it simply did not believe
that explanation. We are satisfied that substantial competent evidence supports the district
court's conclusion that Zurita-Cruz never actually requested that Eckelman file an appeal.
As a result, the district court properly denied Zurita-Cruz' request to file a late appeal
under the third Ortiz exception.

Affirmed.