IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 125,535
STATE OF KANSAS,
Appellee,
v.
DAVID CORNELL BENNETT JR.,
Appellant.
SYLLABUS BY THE COURT
State v. Ortiz, 230 Kan. 733,
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.
Appeal from Labette District Court; STEVEN A. STOCKARD, judge. Submitted without oral
argument November 3, 2023. Opinion filed June 21, 2024. Affirmed.
Clayton J. Perkins, Caroline M. Zuschek, and Kathryn D. Stevenson, of Capital Appellate
Defender Office, were on the briefs for appellant.
Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, were on the
brief for appellee.
The opinion of the court was delivered by
STEGALL, J.: David Cornell Bennett Jr. pled guilty to one count of capital murder
and three counts of premeditated first-degree murder pursuant to a plea agreement in
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December 2017. As part of that agreement, the State agreed to dismiss other charges for
rape and criminal threat and Bennett agreed to waive his appellate rights. Bennett did not
attempt to subsequently file any timely appeal.
On June 30, 2020, Bennett filed a pro se motion requesting a hearing under State
v. Ortiz, 230 Kan. 733,
640 P.2d 1255 (1982). In his motion, Bennett alleged that he was
entitled to file an out-of-time appeal because his appointed counsel did not file his direct
appeal as requested following his sentencing hearing. The State argued that even if
Bennett's counsel failed to file an appeal, Bennett had already waived his appellate rights
under the plea agreement. Bennett filed a pro se response alleging that his counsel was
ineffective during plea negotiations.
On May 20, 2022, the district court held a hearing on Bennett's pro se motion. The
district court appointed counsel for Bennett and he was able to present evidence, in the
form of his own testimony, that he had directed counsel to file a timely notice of appeal;
that he did not believe he had waived his appellate rights; and that he did not understand
the extent to which he waived his appellate rights under the plea agreement.
The State called one of Bennett's attorneys as a witness. That attorney testified that
he believed Bennett had signed an especially comprehensive "blanket waiver of appeal";
that he had discussed these provisions with Bennett; and that he had been concerned
Bennett was not taking them seriously, so he really had to "slow him down and make
[Bennett] go through the document." The attorney also testified that Bennett did contact
him after sentencing, but unequivocally stated that Bennett did not ask him to file a direct
appeal.
The district court denied Bennett's motion, finding that evidence presented at the
hearing and in the record supported a finding that Bennett clearly waived his appellate
rights and failed to allege why he should be entitled to an Ortiz hearing. The district court
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found the attorney's testimony credible; that Bennett had understood the waiver; did not
ask any questions about it; signed it; and did so freely and voluntarily with the advice of
counsel. The district court also specifically held that Bennett's testimony lacked
credibility, and he was trying to undo what he had knowingly done.
Bennett appealed the district court's denial of his pro se motion to this court. He
offers two arguments for why he is entitled to an Ortiz hearing. First, he argues that his
waiver of appellate rights was ambiguous both on its face and on the record as a whole
and therefore the waiver was not effective as a blanket waiver. Second, he reiterates his
argument that he is entitled to a late appeal under the criteria set forth in Ortiz.
A district court's decision on whether an exception under Ortiz applies in a given
case is reviewed on appeal under a dual standard. We review the facts underlying the
district court's ruling for substantial competent evidence. The legal conclusion made by
the district court on those facts as to whether the exception applies is reviewed de novo.
State v. Smith, 312 Kan. 876, 887,
482 P.3d 586 (2021).
Bennett has not established ambiguity during his plea process.
The relevant language from Bennett's plea agreement states:
"As a condition of this negotiated resolution, and as recognized by State v.
Patton, 287 Kan. 200 (2008), the defendant agrees to waive his right to appeal or
collaterally attack, under Kansas state statutes, the prosecution, convictions, sentence or
terms set forth in this plea agreement. In addition, the defendant waives his right to
pursue habeas corpus claims under the Federal Constitution, statutes or case law
interpreting the same. Further, Defendant David Cornell Bennett Jr. agrees to waive his
right to pursue any claim that the above and foregoing negotiated plea agreement violates
the bar under the Kansas and Federal Constitutions to double jeopardy, statutes or case
law interpreting the same."
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Additionally, Bennett signed an "Entry of Plea" which contained the following
term:
"I understand that despite my plea of guilty, I retain a limited right to appeal. I
may not directly appeal my conviction, and I understand the appellate courts generally
will not directly appeal my conviction, and I understand the appellate courts generally
will not entertain an appeal from (a) an agreed-upon sentence approved by the court on
the record, (b) a presumptive sentence, or (c) the denial of a departure motion. In any
appeal, however, I may challenge my criminal history score and any crime severity level
determinations that affect my sentence. I may appeal from a sentence that departs from
the presumptive sentence. I understand that any appeal must be filed within fourteen days
of the date sentence is imposed and that I must timely tell my attorney about my desire to
appeal. If I cannot afford an attorney or the costs of an appeal, the court will appoint an
attorney to represent me and will order that any relevant transcripts be provided to my
attorney."
At the plea hearing, Bennett stated that he had conferred with his counsel about
the terms of the plea agreement. Bennett also stated that he had signed the plea
agreement; that he understood the agreement; and that he had conferred with counsel
about the agreement. The court also directly asked Bennett "do you understand that if you
thought your Constitutional rights were violated, that by entering this plea, you're
waiving any claims, including any appeal?" to which Bennett answered, "Yes."
At sentencing in February 2018, Bennett appeared in person with counsel. Bennett
waived his right to allocution and to be present during the sentencing hearing, and the
district court accepted his waiver. The State specifically requested that Bennett be in the
courtroom for required court advisories, including those related to his appellate rights,
and the State requested the court also direct Bennett's counsel to reiterate those advisories
to Bennett. The district court then informed Bennett that he had 14 days to appeal adverse
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rulings, to the extent he had not waived that right. The court likewise reminded Bennett's
counsel to inform Bennett he would have 14 days to exercise whatever appellate rights he
had not waived.
A district court must ensure that the defendant understands the consequences of
entering a plea. State v. Moses, 280 Kan. 939, 948-49,
127 P.3d 330 (2006). The
language of a written plea agreement alone cannot satisfy the requirement that the district
court personally inform the defendant of the consequences of the plea. "[T]he failure to
strictly comply with K.S.A. 22-3210 may be reversible error unless a review of the entire
record demonstrates that the plea was knowingly and voluntarily made and otherwise
accepted by the trial judge in compliance with the statute." State v. Ebaben,
294 Kan.
807, 816,
281 P.3d 129 (2012). Courts must look at the entire plea process to determine
whether the defendant understood the nature and consequences of his or her plea. State v.
Reu-El,
306 Kan. 460, 473-74,
394 P.3d 884 (2017).
Bennett argues that the totality of the proceedings created an ambiguity as to what
appellate rights he retained. In making this argument, he claims that because the State
and the district court specifically made efforts to inform him of his "appellate rights,"
including the 14-day deadline for making a direct appeal, this created ambiguity and
confusion as to whether any rights actually existed.
Bennett's arguments do not hold up to cursory inspection. First, as stated above,
the district court was required under Patton to give those disclaimers. State v. Patton, 287
Kan. 200, Syl. ¶ 6,
195 P.3d 753 (2008) (procedural due process requires the court to
inform the defendant of their appellate rights). Second, those disclaimers reference
appellate rights only to the extent they had not been waived. Thus, these disclaimers
functioned as a warning and reminder that Bennett had actually signed a waiver.
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Bennett further argues that the language found in the "Entry of Plea" conflicts with
the language in the plea agreement, creating more procedural ambiguity. He relies on two
Court of Appeals cases to support his argument: State v. Bennett, 51 Kan. App. 2d 356,
347 P.3d 229 (2015), and State v. Shull,
52 Kan. App. 2d 981,
381 P.3d 499 (2016).
In Bennett the defendant challenged her waiver of her right to have a jury for the
departure phase of her sentencing. 51 Kan. App. 2d at 357. The court found that because
the defendant was never informed of this specific right, she did not consent to its waiver.
51 Kan. App. 2d at 363. The court also found that certain language throughout the
proceedings created a legitimate ambiguity. For example, her plea document stated:
"'I may appeal from a sentence that departs from the presumptive sentence.'"
51 Kan.
App. 2d at 365. The sentencing judge additionally stated that she had 14 days to appeal
her sentence, and that error was never corrected. This is especially relevant, since the
departure from a presumptive sentence is precisely what she was trying to appeal.
Further, her lack of understanding regarding her appellate waiver was evidenced by her
timely attempt to appeal.
In Shull the defendant signed a plea agreement waiving his right to appeal his
sentence. Both the defendant and the State requested an upward durational departure.
Although the defendant received the exact sentence he requested, he claimed it was
illegal. He appealed, arguing that the district court did not provide substantial and
compelling reasons justifying that durational departure as required by statute. The court
relied on Bennett to determine that the plea agreement was ambiguous. The facts were
similar to Bennett in that the court specifically informed the defendant that he had a right
to appeal a durational departure and that error was never corrected. Thus, the court's
mistake created an ambiguity. 52 Kan. App. 2d at 989.
The facts in the present case are materially different. While some language may be
shared between documents in all three cases, the overall context differs. In the present
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case, Bennett was properly well informed of his rights and what he was waiving. He
received the sentence contemplated in the plea agreement. He filed no timely appeal. He
is not attempting to appeal based on a right that he was specifically and erroneously
informed that he retained. And even if we were to agree with Bennett that the language of
the plea agreement itself leaves open the potential for appeal of some issues (such as
ineffectiveness of counsel, restitution, and registration requirements), Bennett has not
explained why he should be allowed to appeal on any of these grounds two and a half
years out of time.
Bennett has not shown that he could qualify for a late appeal.
"State v. Ortiz . . . 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." Patton, 287
Kan. 200, Syl. ¶ 3. Addressing each in turn, Bennett has made no credible claim that he
would be entitled to relief.
The first Ortiz exception requires a three-part burden-shifting analysis. First, the
defendant must demonstrate from the transcripts that the sentencing judge failed to
adequately communicate the required information about the right to appeal. If that is
shown, the State bears the burden of proving the defendant nevertheless possessed actual
knowledge of the required information by some other means. If the State is unable to
make this showing, the defendant must then prove that had the defendant been properly
informed, a timely appeal would have been pursued. State v. Smith, 303 Kan. 673, 678,
366 P.3d 226 (2016).
First, as established by Bennett's own briefs, trial transcripts, and his counsel's
testimony, the court informed Bennett more than once about his appellate rights—
specifically the lack thereof. This was why the State requested that Bennett be present at
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sentencing, even though he had waived that right. The court further instructed Bennett's
counsel to discuss Bennett's appellate rights with Bennett. The district court found that
Bennett knowingly waived his rights, and that his testimony to the contrary was not
credible. Those findings are supported by substantial competent evidence. Thus, the first
Ortiz exception does not apply.
Bennett was provided a team of counsel from the Death Penalty Defense Unit.
Thus, the second Ortiz exception does not apply.
The third Ortiz exception includes consideration of the effectiveness of counsel,
including whether counsel misinformed the client of the existence of appealable issues.
State v. Shelly, 303 Kan. 1027, 1051,
371 P.3d 820 (2016). In Albright v. State,
292 Kan.
193,
Syl. ¶ 5, 251 P.3d 52 (2011), we held that K.S.A. 60-1507 movants who have
counsel are entitled to effective assistance of that counsel, and if counsel's performance
was deficient for failure to file a timely notice of appeal, as a remedy a K.S.A. 60-1507
movant should be allowed to file an out-of-time notice of appeal.
While Bennett argues that he asked counsel to file a timely appeal, counsel
directly refutes that claim. The district court found his counsel's testimony to be credible.
We find the court's conclusion is supported by substantial competent evidence. Bennett
has not provided any credible explanation why it took two and a half years to file his pro
se motion.
Taken together, we agree with the district court's summarization that Bennett is
simply trying to undo what he knowingly did.
Affirmed.
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