State v. Smith

Summary

The Kansas Supreme Court affirmed the dismissal of Zachary C. Smith's untimely direct appeal and his untimely motion to withdraw his guilty pleas. The court held that although Smith was not properly informed at sentencing of all required appeal-right information under the State v. Ortiz framework, he failed to prove that he would have timely appealed if properly advised. The court also held that Smith waived any challenge to the finding that his motion to withdraw pleas was barred by the statutory time limit and lacked a showing of excusable neglect.

Holdings

1. A sentencing court must inform a criminal defendant that a right to appeal the severity level of the sentence exists, the statutory time limit for taking the appeal, and that appointed counsel will be provided for an indigent defendant who wishes to appeal. Smith established that the sentencing court failed to provide all three required pieces of information, and the State failed to prove that he had actual knowledge of the right to appointed appellate counsel.
2. Smith was not entitled to an out-of-time appeal because he failed to carry his evidentiary burden of proving that he would have pursued a timely appeal if properly advised of his appellate rights.
3. Smith's motion to withdraw his pleas was untimely and procedurally barred because he failed to make the required affirmative showing of excusable neglect.

Questions Presented

1. Whether Smith qualified for an out-of-time appeal under the first State v. Ortiz exception because he was not properly informed of his appellate rights.
2. Whether Smith established that he would have timely appealed if he had been properly informed of his appellate rights.
3. Whether Smith's motion to withdraw his guilty pleas was timely or could be extended based on excusable neglect under K.S.A. 2014 Supp. 22-3210(e).

Disposition

affirmed