IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 95,860
STATE OF KANSAS,
Appellee,
v.
JOSHUA DELORE PATTON,
Appellant.
SYLLABUS BY THE COURT
1. The issue of subject matter jurisdiction may be raised at any time by a party or by the court, including an appellate court. The standard of review on the issue is unlimited.
2. A timely notice of appeal ordinarily is jurisdictional.
3. State v. Ortiz, 230 Kan. 733, 735-36, 640 P.2d 1255 (1982), may allow a late appeal if a criminal 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.
4. The first of the Ortiz exceptions–applicable when a defendant was not informed of the right to appeal–goes to procedural due process alone. The second and third of the exceptions–applicable when a defendant was not furnished an attorney to perfect an appeal or was furnished an attorney for that purpose who failed to perfect and complete an appeal–go to the right of counsel and effectiveness of counsel.
5. A criminal defendant may qualify to take a late appeal under the first Ortiz exception if he or she has been denied basic procedural due process, i.e., timely and reasonable notice and an opportunity to be heard.
6. Due process is denied–and an out-of-time appeal may be permissible under the first Ortiz exception–if a district judge fails to abide by K.S.A. 22-3210(a)(2), K.S.A. 22-3424(f), and K.S.A. 22-4505, as they have been interpreted by our earlier case law. Thus a district judge must inform a criminal defendant at sentencing, regardless of whether the defendant has entered a plea or gone to trial, that: (1) a right to appeal the severity level of the sentence exists; (2) any such appeal must be taken within 10 days; and (3) if the defendant is indigent, an attorney will be appointed for the purpose of taking any desired appeal. The evidentiary burden of showing that the district judge failed to communicate one or more of these three pieces of information at sentencing is on the defendant, who must demonstrate deficiency from the transcript of the sentencing hearing.
7. When the applicability of the first Ortiz exception is in issue, if the defendant discharges the burden of demonstrating from the sentencing hearing transcript that the district judge failed to communicate one or more of the three required pieces of information, the State still may prevent a late appeal by proving that the defendant possessed actual knowledge of all of the required information by some means other than the district judge's oral statements at sentencing. The source of such actual knowledge may be counsel's advice, the wording of an agreement signed by the defendant, or some other person or document; but the State bears the evidentiary burden on this point.
8. If the sentencing hearing transcript demonstrates that the district judge did not adequately inform the defendant orally, and the State is unable to demonstrate that the defendant had actual knowledge of the required information from some other source, the defendant must then prove that, had he or she been properly informed, a timely appeal would have been sought. This evidentiary burden rests on the defendant.
9. The second Ortiz exception applies only to defendants who were indigent when they desired to take a timely appeal. A defendant who had appointed counsel at the district court level is entitled to have counsel appointed for the purpose of appeal; either district court counsel may continue representation, or new counsel must be appointed. A defendant who, on the other hand, had the resources to retain counsel at the district court level will be assumed to have the resources to retain counsel for any desired appeal as well, unless he or she informs the sentencing judge that the situation is otherwise. If proceedings through sentencing have exhausted a given defendant's resources to retain an attorney to handle an appeal, the defendant must make a timely motion for appointment of counsel for appeal. The defendant bears the evidentiary burden of demonstrating that he or she was in need of appointed counsel to pursue an appeal and that no such counsel was appointed, despite a timely request. The defendant must also demonstrate that, had counsel been made available, he or she would have instructed counsel to file the appeal.
10. The third Ortiz exception may apply to retained counsel as well as appointed counsel, and the standard of performance to be applied to measure the adequacy of appellate counsel under the third Ortiz exception is that found in Roe v. Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000). That case distinguishes between situations in which counsel's performance in the course of a proceeding is alleged to be deficient and those cases in which counsel's performance or failure to perform leads to forfeiture of a proceeding. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), governs the former and Flores-Ortega the latter.
11. Under the third Ortiz exception and Flores-Ortega, if appointed or retained counsel has failed to file or perfect a direct appeal by a criminal defendant, the court presumes the existence of prejudice. The defendant must still demonstrate that, but for counsel's failure, he or she would have taken a timely direct appeal. The defendant need not show that such a timely direct appeal would have been successful.
12. On the record of this case, the third Ortiz exception applies to allow a late appeal.
13. A knowing and voluntary waiver by a criminal defendant of his or her statutory right to appeal is generally enforceable. On the record of this case, defendant did not waive his right to appeal his sentence by signing his plea agreement.
Review of the judgment of the Court of Appeals in 37 Kan. App. 2d 166, 150 P.3d 328 (2007). Appeal from Dickinson district court; BENJAMIN J. SEXTON, judge. Judgment of the Court of Appeals dismissing the appeal is reversed, and the case is remanded to the Court of Appeals with directions. Judgment of the district court is affirmed. Opinion filed November 14, 2008.
Autumn L. Fox, of Abilene, argued the cause, and Doug Thompson, of Thompson Law Office, of Chapman, was on the brief for appellant.
Daryl E. Hawkins, assistant county attorney, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.
The opinion of the court was delivered by
BEIER, J.: This appeal arises on petition for review of our Court of Appeals' decision foreclosing a late appeal of sentence pursued by defendant Joshua Delore Patton. Patton seeks to take advantage of this court's ruling in State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), through application of this court's decision in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982).
Factual and Procedural Background
Patton was originally charged with seven drug-related offenses. He secured retained counsel, and he agreed to plead guilty to one count of attempted manufacture of methamphetamine and one count of possession of anhydrous ammonia in an unapproved container. His plea agreement–signed by him, his lawyer, and an assistant county attorney–was filed March 3, 2003, and included the following language:
"The Defendant waives his right of appeal, and waives his right to file any motions under K.S.A. 60-1507 arising from this matter. . . . The Defendant agrees that he has read and understands the attached Waiver of Rights form and understands that the information contained therein is made a part of this agreement (that is incorporated by reference)."
The Waiver of Rights form does not appear in the record on appeal.
In exchange for Patton's guilty pleas, the State dismissed the remaining five charges against him and agreed to recommend a downward durational departure sentence and to not oppose dispositional departure to a nonprison sanction.
At sentencing, the district court judge accepted the parties' joint recommendation of a downward durational departure but rejected Patton's bid for a dispositional departure, noting that Patton had been unable to remain drug-free while on bond between the plea and sentencing hearings. The district judge told Patton that he had the right to appeal any of the judge's rulings or findings, "specifically, in regards to finding against you on the dispositional departure." The State did not object or otherwise attempt to correct this misstatement of Kansas law. See K.S.A. 21-4721 (denial of downward dispositional departure not among appealable sentences).
No timely direct appeal was filed, although both Patton and his mother attempted to contact Patton's lawyer to pursue one.
In January 2004, this court issued its McAdam decision, holding that K.S.A. 65-4159(a) on unlawful manufacturing of a controlled substance, a severity level 1 felony, was identical to K.S.A. 65-4161(a) on unlawful compounding of a stimulant, a level 3 felony. Thus a defendant convicted of the greater offense can be sentenced only under the lesser penalty provision.
Within weeks of the McAdam decision, Patton filed a motion to correct illegal sentence. The district court denied the motion after a hearing, and a panel of our Court of Appeals affirmed. No. 92,682, unpublished opinion filed May 13, 2005. Patton filed a petition for review of the Court of Appeals' decision with this court.
While the petition for review was pending, Patton filed a K.S.A. 60-1507 motion, alleging that his retained lawyer had provided ineffective assistance of counsel by failing to file a timely sentencing appeal. The district court dismissed the motion without prejudice, because Patton's appeal on his motion to correct illegal sentence was not yet final.
After the petition for review on the motion to correct illegal sentence had been disposed of, Patton again filed a K.S.A. 60-1507 motion. He renewed his argument on ineffective assistance of counsel and sought permission to file a late appeal on the McAdam sentencing issue under this court's decision in Ortiz.
The district judge held an Ortiz evidentiary hearing in December 2005. He heard testimony that Patton's lawyer had faxed a letter to Patton's mother on the last day for a timely appeal of Patton's sentence, saying that he "had all the documents done to file the appeal," that doing so was against his advice, but that the decision was up to her. Patton's mother testified that the decision was not up to her, that it was up to her son, and that Patton had already told the lawyer repeatedly that he wished to appeal.
The district judge ruled that Patton should be permitted to file an out-of-time appeal, because of the lawyer's failure to abide by Patton's wish to file an appeal. This action is that appeal. Patton challenges the severity level of the attempted manufacture crime and the sentencing judge's denial of his motion for dispositional departure.
The Court of Appeals' panel hearing this appeal refused to order resentencing under McAdam. Although the appellate judges agreed with the district judge that the facts of this case fit one of the Ortiz exceptions that would ordinarily permit a late appeal, they concluded that they nevertheless lacked jurisdiction because Patton had waived his right to appeal as part of his plea agreement. Unless that plea agreement was set aside, the court said, it could not address the merits of Patton's late appeal.
"Where a defendant bargained with the State and knowingly and voluntarily agreed to waive his or her right to appeal, in exchange for a sentence reduction and dismissal of additional charges, the district court cannot ignore the waiver because it stands as a bar to the defendant filing an appeal unless the plea agreement is set aside." State v. Patton, 37 Kan. App. 2d 166, Syl. ¶ 4, 150 P.3d 328 (2007).
Patton made two arguments on his petition for review to this court. He first addressed the merits of the waiver argument, specifically whether it could defeat Ortiz application and cut off this late appeal. Patton asserted that the language in his plea agreement could not divest the appellate court of jurisdiction over his sentencing appeal because it dealt only with his right to appeal his convictions. He also argued process, asserting that the Court of Appeals must be reversed because the issue of waiver was not properly before it. In support of this argument, he pointed to the absence of a discussion of waiver in the district court's decision and the State's failure to cross-appeal.
Analysis
We begin our analysis by briefly addressing Patton's procedural argument. We disagree with his assertion that the Court of Appeals erred in reaching the issue of waiver.
The issue of subject matter jurisdiction may be raised at any time by a party or by the court, including an appellate court. See Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007). Our standard of review on the issue is unlimited. See State v. James, 276 Kan. 737, 744, 79 P.3d 169 (2003). Here, the possibility that Patton had knowingly and voluntarily waived his right to appeal his sentence had a more than purely theoretical potential to affect subject matter jurisdiction, because there was no question that Patton's lawyer did not file a notice of appeal within 10 days of sentencing, see K.S.A. 22-3608(c); and a timely notice of appeal ordinarily is jurisdictional. See State v. Verge, 272 Kan. 501, 521, 34 P.3d 449 (2001) (dismissal necessary if appellate jurisdiction lacking); State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980). The Court of Appeals did not err by addressing this possibility, even if it did so without urging by the State.
We also note, however, that the State's appellate brief was not silent on waiver. Rather, it included waiver among the reasons that the Court of Appeals should reject Patton's invocation of McAdam to obtain a new sentence on his attempted manufacture conviction.
We now turn to the merits of whether Ortiz applied to allow this appeal, in the absence of a knowing and intelligent waiver.
Kansas appellate courts have jurisdiction only as provided by law, see K.S.A. 22-3608, and an untimely notice of appeal usually leads to dismissal of an action. See State v. Moses, 227 Kan. at 404. In Ortiz, this court recognized three exceptions to the dismissal requirement. Although we applied none of the exceptions in that case, Ortiz, 230 Kan. at 736-37, we stated that fundamental fairness would allow a late appeal 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. Ortiz, 230 Kan. at 735-36.
Our Ortiz decision languished in relative obscurity for 22 years, meriting minimal citation and less commentary before McAdam was decided in 2004. The three situations it outlined were characterized as "narrow exceptional circumstances." State v. Willingham, 266 Kan. 98, 101-02, 967 P.2d 1079 (1998).
At the point we filed the McAdam decision, the understandable desire of defendants to take advantage of its holding–and later a similar holding regarding K.S.A. 65-7006(a) and K.S.A. 65-4152(a)(3) in State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005) (adopting reasoning of State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188 [2002])–catapulted Ortiz into the common-law equivalent of superstardom. See State v. Phinney, 280 Kan. 394, 122 P.3d 356 (2005) (suggesting Ortiz could provide avenue to McAdam-based sentence reduction). From the vantage point of nearly 5 years beyond the McAdam decision, we can see that the rapidly multiplying number of Kansas cases citing Ortiz fall into three general categories.
In the first category are cases that merely refer to Ortiz as authority for reaching the merits of an out-of-time appeal but do not discuss the application of Ortiz exceptions in any detail. See State v. Ehrlich, 286 Kan. __, 189 P.3d 491 (2008); Mitchner v. State, No. 97,729, unpublished opinion filed June 6, 2008 (affirming denial of K.S.A. 60-1507 after evidentiary hearing; plea knowingly and voluntarily entered); State v. Pritchard, No. 98,232, unpublished opinion filed June 6, 2008; State v. Johnson, No. 97,313, unpublished opinion filed April 18, 2008; State v. Gregor, No. 96,021, unpublished opinion filed November 21, 2007; State v. Kotula, No. 96,556, unpublished opinion filed November 21, 2007; State v. Spooner, No. 97,152, unpublished opinion filed November 21, 2007; State v. Selvey, No. 96,803, unpublished opinion filed October 26, 2007; Gould v. State, No. 96,309, unpublished opinion filed September 14, 2007; see also State v. Thompson, No. 98,257, unpublished opinion filed July 18, 2008 (remanding for Ortiz hearing); Bliss v. State, No. 97,753, unpublished opinion filed April 18, 2008 (remanding for Ortiz hearing); State v. Chase, No. 92,882, unpublished opinion filed May 13, 2005; State v. Abbott, 31 Kan. App. 2d 706, 71 P.3d 1173 (2003) (noting the out-of-time appeal had been retained pursuant to Ortiz); State v. Ypma, No. 89,447, unpublished opinion filed December 19, 2003 (noting untimely appeal had been retained pursuant to Ortiz); State v. Vest, No. 88,314, unpublished opinion filed August 29, 2003, rev. denied 276 Kan. 973 (2003) (noting appeal was before Court of Appeals pursuant to Ortiz); State v. Hunter, No. 89,703, unpublished opinion filed August 22, 2003 (noting appeal retained based on Ortiz exception); State v. Patton, 26 Kan. App. 2d 591, 992 P.2d 819 (1999) (same); State v. Curry, 21 Kan. App. 2d 178, 179, 897 P.2d 1053 (1995) (noting defendant entitled to appeal out-of-time "after K.S.A. 60-1507 proceedings," citing Ortiz); State v. Grant, 19 Kan. App. 2d 686, 875 P.2d 986, rev. denied 255 Kan. 1005 (1994) (rejecting defendant's suggestion that untimely amended notice of appeal, purporting to raise additional issues not contained in timely original notice of appeal, should be entertained under Ortiz); State v. Irvin, 16 Kan. App. 2d 214, 821 P.2d 1019 (1991) (exercising jurisdiction over defendant's untimely appeal where defendant furnished an attorney for purpose of filing his appeal, but attorney failed to perfect and complete appeal); State v. Wilson, 15 Kan. App. 2d 308, 808 P.2d 434 (1991) (noting nothing in record supported application of Ortiz); Robinson v. State, 13 Kan. App. 2d 244, 767 P.2d 851 (1989), overruled Brown v. State, 278 Kan. 481, 101 P.3d 1201 (2004) (distinguishing untimely direct appeals from untimely appeals from postconviction rulings).
The second category of cases is populated by those that specifically discuss application of the Ortiz exceptions, which are not always completely consistent with each other. See State v. Scoville, 286 Kan. __, 188 P.3d 959 (2008) (reversing Court of Appeals' affirmance of district court's denial of out-of-time appeal after Ortiz hearing; failure to inform of 10-day time limit justified direct appeal out-of-time, resentencing under McAdam appropriate); State v. Hemphill, 286 Kan. __, 186 P.3d 777 (2008) (affirming Court of Appeals' remand for Ortiz hearing on late appeal of sentences); State v. Unruh, 39 Kan. App. 2d 125, 177 P.3d 411 (2008) (out-of-time appeal justified when defendant's appointed appellate counsel failed to perfect appeal); State v. Godfrey, No. 98,984, unpublished opinion filed September 19, 2008 (Ortiz exceptions do not apply when defendant was informed of his or her right to appeal); State v. Adams, No. 98,962, unpublished opinion filed September 19, 2008 (defendant cannot invoke Ortiz exceptions when the right to appeal was thoroughly explained in his or her plea agreement); State v. Berry, No. 98,950, unpublished opinion filed September 12, 2008 (Ortiz exceptions apply to indigent defendant and defendant that retains counsel as long as defendant was not informed of his or her right to appeal); State v. LaFave, No. 98,369, unpublished opinion filed September 12, 2008 (Ortiz exceptions apply when court fails to inform defendant of his or her right to appeal and defendant receives incorrect information about appealing in his or her plea agreement); State v. Larson, No. 98,152, unpublished opinion filed September 12, 2008 (out-of-time appeal permitted because trial court failed to inform defendant of his right to appeal and counsel did not explain 10-day filing deadline); State v. Denton, No. 97,472, unpublished opinion filed August 22, 2008 (defendants not informed of their right to appeal may file an out-of-time appeal under Ortiz even when they plead guilty); State v. Young, No. 97,470, unpublished opinion filed July 3, 2008; House v. State, No. 97,333, unpublished opinion filed June 20, 2008 (Ortiz does not allow avoidance of time bar of K.S.A. 60-1507); State v. Leslie, No. 98,243, unpublished opinion filed June 13, 2008 (affirming denial of out-of-time appeal where record revealed defendant aware of limited appeal rights under plea agreement); State v. Anderson, No. 98,655, unpublished opinion filed June 6, 2008 (Ortiz does not extend exception to timely appeal requirement when counsel failed to advise of likelihood of success on appeal); State v. Amack, No. 98,478, unpublished opinion filed June 6, 2008 (late direct appeal permitted under third Ortiz exception; resentencing under McAdam appropriate); State v. Sperling, No. 97,820, unpublished opinion filed May 16, 2008 (invoking Ortiz exception to reach appeal filed prematurely); State v. Gilliland, No. 97,791, unpublished opinion filed May 9, 2008 (affirming denial of out-of-time appeal, holding no Ortiz exceptions apply); State v. Christianson, No. 97,790, unpublished opinion filed May 2, 2008 (reversing denial of out-of-time appeal under Ortiz, resentencing under McAdam appropriate); State v. Reeves, No. 97,344, unpublished opinion filed April 25, 2008 (first exception of Ortiz satisfied when sentencing court failed to inform defendant of his right to have attorney appointed for appeal); State v. Collins, No. 97,360, unpublished opinion filed April 18, 2008 (affirming denial of out-of-time appeal, holding no Ortiz exceptions apply); State v. Barron, No. 97,378, unpublished opinion filed April 11, 2008 (affirming Ortiz exception applied when "court did not specifically tell the defendant that his appointed attorney would represent him to file a notice of appeal and his attorney did not inform him that he would file the appeal for him"); State v. Roberts, No. 98,366, unpublished opinion filed April 4, 2008 (remand for Ortiz hearing to determine whether, despite district court failure to advise of time limit for filing appeal, right to appointed counsel, defendant otherwise aware of appeal rights); State v. Rust, No. 98,528, unpublished opinion filed April 4, 2008 (when both counsel, district court affirmatively advise defendant he or she has no right to appeal, such statements override any acknowledgment to contrary in written plea agreement, giving rise to Ortiz exception); State v. Mendoza, No. 97,660, unpublished opinion filed March 7, 2008 (reversing denial of out-of-time appeal under Ortiz; resentencing under McAdam appropriate); State v. Gray, No. 97,403, unpublished opinion filed February 22, 2008 (holding defendant entitled to appeal out-of-time under Ortiz; dismissing as moot because sentence served); State v. Moore, No. 97,424, unpublished opinion filed February 22, 2008 (reversing denial of out-of-time appeal, remanding for Ortiz hearing, written explanation of appellate rights did not adequately advise); Shaw v. State, No. 98,200, unpublished opinion filed January 25, 2008 (affirming denial of out-of-time appeal when no Ortiz exception applied); State v. Harp, 283 Kan. 740, 748, 156 P.3d 1268 (2007) (Ortiz exception may excuse defendant's untimely appeal of presumptive sentence when the defendant asserts change in law, challenges severity level of crime; when a direct appeal granted under an Ortiz exception, appeal subject to law in effect at time of grant); State v. Thomas, 283 Kan. 796, Syl. ¶ 2, 156 P.3d 1261 (2007) (appeal subject to law existing at time of grant under Ortiz); Guillory v. State, 285 Kan. 223, 170 P.3d 403 (2007) (Ortiz exceptions inapplicable to out-of-time appeal from summary denial of K.S.A. 60-1507 motion); Casner v. State, 37 Kan. App. 2d 667, 674-75, 155 P.3d 1202 (2007) (first exception of Ortiz satisfied when sentencing court fails to fully inform of right to appointed counsel on appeal; State cannot cross-appeal from ruling at Ortiz hearing on ground of fundamental fairness); State v. Romero, No. 96,215, unpublished Kansas Supreme Court opinion filed December 7, 2007 (entertaining merits of appeal after affirming district court's ruling that Ortiz permitted late appeal); State v. Darnell, No. 97,042, unpublished opinion filed November 16, 2007 (affirming denial of out-of-time appeal when no Ortiz exception applied); State v. Lowrey, No. 97,048, unpublished opinion filed November 16, 2007 (affirming denial of out-of-time appeal when defendant failed to meet burden to prove he was not informed of 10-day time limit); State v. Lenz, No. 97,285, unpublished opinion filed November 9, 2007 (affirming denial of out-of-time appeal, holding no Ortiz exception applied); State v. Rust, No. 97,414, unpublished opinion filed November 2, 2007 (remanding for resentencing after determining late appeal permitted under Ortiz); State v. Moyer, No. 96,440, unpublished opinion filed Sept. 21, 2007 (reversing denial of out-of-time appeal when defendant not advised of deadline for appeal); State v. Flynn, 274 Kan. 473, 477-78, 55 P.3d 324 (2002) (defendant's response to Supreme Court's show cause order on why untimely appeal should not be dismissed included affidavit asserting defendant wanted to appeal, instructed her attorney to appeal, believed attorney would file timely notice of appeal, but attorney failed to do so; affidavit sufficient to support review of untimely appeal under Ortiz); State v. Dreiling, 274 Kan. 518, 539-41, 54 P.3d 475 (2002) (defendant had attorney for purpose of perfecting appeal, but attorney failed to do so; "fundamental fairness require[d] this court to retain jurisdiction over the appeal"); State v. Dugan, 29 Kan. App. 2d 71, 25 P.3d 145 (2001), rev. denied (2001), abrogated on other grounds Phinney, 280 Kan. 394 (Ortiz does not supply appellate court with jurisdiction to entertain untimely appeal from a presumptive sentence); Willingham, 266 Kan. at 101-02 (defendant did not knowingly waive right to appeal, when district court failed to advise at sentencing of right to appeal, defense counsel did not advise of time limit); State v. Barnes, 263 Kan. 249, 261, 948 P.2d 627 (1997) (when defendant furnished attorney for purpose of filing notice of appeal, attorney failed to perfect, court would entertain untimely appeal filed 5 days after deadline pursuant to Ortiz); City of Dodge City v. Hadley, 262 Kan. 234, 237-39, 936 P.2d 1347 (1997) (court declines to overrule Ortiz, permits appeal filed late because of counsel's error); State v. Medina, 256 Kan. 695, 701, 887 P.2d 105 (1994) (counsel who files timely appeal that fails to raise all meritorious appealable issues not generally effective counsel; and Ortiz applies both when defendant furnished counsel who fails entirely to perfect appeal, when counsel attempts to perfect an appeal but does so ineptly; remand for Ortiz determination); State v. Shortey, 256 Kan. 166, 168, 884 P.2d 426 (1994) (untimely appeal permitted when appointed counsel's affidavit establishes defendant did everything necessary to ensure appeal prosecuted); State v. Redmon, 255 Kan. 220, 222-23, 873 P.2d 1350 (1994) (circumstances warrant permitting untimely appeal when sentencing court's statement on record did not clearly inform defendant of rights concerning appeal; defendant had informed trial counsel of desire to appeal; counsel failed to perfect appeal; defendant contacted prisoner legal services, Appellate Defender Office, administrative judge in effort to appeal); State v. Parker, 23 Kan. App. 2d 655, 934 P.2d 987, rev. denied 262 Kan. 967 (1997), abrogated on other grounds Phinney, 280 Kan. 394 (Ortiz exceptions do not apply when appeal clearly would raise no issues appellate court could address); State v. Thomas, 21 Kan. App. 2d 504, 900 P.2d 874 (1995) (defendant's untimely appeal seeking conversion under sentencing guidelines denied despite agreement defendant not informed of right to appeal; court upholds denial when not justified by fundamental fairness; defendant not eligible for conversion; appeal would raise no addressable issues); State v. Hervey, 19 Kan. App. 2d 498, 501, 873 P.2d 188 (1994), overruled without reference to Ortiz by State v. Waterbury, 258 Kan. 614, 907 P.2d 858 (1995) (sufficient factual basis existed for appellate court to conclude Ortiz applied to permit untimely amended notice of appeal from denial of motion to modify; attorney appointed to perfect appeal ineffective in filing timely notice of appeal identifying only judgments previously appealed by same counsel in direct appeal); State v. McDaniel, 249 Kan. 341, 342-45, 819 P.2d 1165 (1991) (reversing ruling that Ortiz did not apply to permit untimely appeal; district court based ruling on defense counsel's experience); State v. Mitchell</