                          NOT DESIGNATED FOR PUBLICATION

                                            No. 120,120

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                        STATE OF KANSAS,
                                            Appellee,

                                                  v.

                                    DAMIAN MIGEL BATEAST,
                                          Appellant.


                                  MEMORANDUM OPINION

       Appeal from Crawford District Court; LORI BOLTON FLEMING, judge. Opinion filed April 24,
2020. Appeal dismissed.


       Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.


       Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.


Before POWELL, P.J., HILL and STANDRIDGE, JJ.


       PER CURIAM: Following a jury trial, Damian Migel Bateast was convicted of one
count of distribution of methamphetamine and sentenced to 49 months in prison. About a
year later, Bateast filed a pro se notice of appeal. The notice was filed after the deadline
had expired so this court remanded the matter to the district court to decide whether any
caselaw exceptions applied to excuse the untimely notice of appeal. After an evidentiary
hearing, the district court concluded that none of the exceptions applied to this case.
Bateast appeals, claiming that the district court erred in reaching that conclusion. Finding
no error, we dismiss this appeal.




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                                           FACTS

       The district court sentenced Bateast on August 30, 2017. On September 4, 2018,
Bateast filed a pro se notice of appeal alleging various errors with his trial and
sentencing. He acknowledged that his notice of appeal was filed out of time but argued
the appeal still should be allowed to go forward because his trial counsel failed to inform
him of his right to an appeal. The appeal was docketed, but a panel of our court issued an
order on October 29, 2018, requesting the parties show cause why the appeal should not
be dismissed for lack of jurisdiction due to the untimely notice of appeal. After both
parties responded to the show cause order, we remanded the matter to the district court
for an evidentiary hearing to determine whether any caselaw exceptions applied to excuse
the untimely notice of appeal.


       An evidentiary hearing was held on March 19, 2019. Bateast testified that he had
multiple discussions with his trial attorney, Robert Myers, about the possibility of an
appeal throughout the district court proceedings. But when asked if he had discussed the
subject of appealing with Myers after sentencing, Bateast could not remember and
instead said, "I think that I wrote Mr. Myers a letter telling him that I wanted to pursue
the appeal but I was going to take it upon myself to do it." Bateast then summarized the
reasons he wanted to pursue an appeal, most of which tracked with the reasons he listed
in his pro se notice of appeal. On cross-examination, Bateast was asked to produce a copy
of the letter that he purportedly sent to Myers, but he was unable to do so. Bateast
testified that he had not provided the letter to his own appellate counsel either. Bateast
also admitted that, in an affidavit he submitted to appellate counsel, he did not mention
asking Myers to file an appeal for him and, in fact, did not decide that there were issues
that he wanted to appeal until he began doing some research in the summer of 2018.


       Myers also testified at the hearing. On direct examination, Myers confirmed that
he represented Bateast in a number of criminal cases. Myers said case No. 16 CR 46G


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was the first of those cases to go to trial. The jury found Bateast guilty, and Bateast
directed him to file a notice of appeal, which he did. The case at issue here was the
second case to go to trial. Myers testified that Bateast told him after the guilty verdict in
this case that he did not want to file a direct appeal. This struck Myers as odd,
particularly because Bateast was pursuing an appeal in the other case. But Myers said
Bateast made the decision at the end of the sentencing hearing and after a full discussion
of Bateast's appellate rights. Myers confirmed that such a discussion took place by
writing "Appeal x NO x" on his copy of Bateast's presentence investigation (PSI) report
and having Bateast sign his name next to the notation. Myers provided the court with a
copy of the PSI report, with the additional notation and signature, and the court admitted
the document into evidence.


       On cross-examination, Myers admitted that he did not discuss specific appealable
issues with Bateast; instead, he simply had a general discussion with Bateast about his
appellate rights. But Myers also said that if he felt or believed there was an issue that
needed to be appealed, he "would have said here's an issue that you may want to have
addressed or raised to appellate counsel once they're appointed and then have a
conversation with him about whether he wishes to appeal or raise any issues on appeal."
And Myers specifically remembered that even though Bateast had filed an appeal in the
first case, Bateast was adamant that "he did not want to appeal any issues in this one."


       Following Myers' testimony, the State rested. Bateast asked to continue the
balance of the hearing so that he could have time to look for the letter he purportedly sent
to Myers. That request was granted, and the matter was continued to April 26, 2019.
Upon reconvening, Bateast reported that he was unable to find the letter. Despite this
failure, he testified in rebuttal that he did not have any substantive discussions with
Myers about his appellate rights after his sentencing hearing. Bateast also said he could
not remember signing the copy of the PSI report that previously was introduced into



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evidence but then immediately backtracked and said, "[W]hen I did sign the document, I
believe I mentioned to [Myers] that I would try to do the appeal on my own."


       On April 30, 2019, the district court issued a written ruling denying Bateast's
motion to file his appeal out of time. Relevant here, the district court stated:


                "Here, the Court finds that Myers specifically asked the Defendant if he wished
       to appeal. The appealable issue the Defendant complains of had been discussed in both an
       earlier case, and during his present sentencing. Defendant specifically, and repeatedly,
       stated he did not wish to appeal, and signed a document indicating his intent. The Court
       finds Myers' recount of these actions to be credible. There is simply no evidence in the
       record, other than Defendant's testimony, that supports the idea that Defendant wished to
       appeal until he decided much later to do so. It is clear that at sentencing, the Defendant
       was notified of his right to appeal by both the Court and his attorney. In fact, the
       Defendant conceded that he did not even decide he wanted to appeal until the summer of
       2018. Under these facts, as more fully contained in the record, the Defendant is not
       entitled to relief."


                                               ANALYSIS

       On appeal, Bateast argues the district court erred when it determined that he was
not entitled to relief under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). Appellate
courts apply a dual standard when reviewing district court's ruling on whether an Ortiz
exception applies. State v. Smith, 303 Kan. 673, 677, 366 P.3d 226 (2016). "The facts
underlying the district court's ruling are reviewed for substantial competent evidence,
while the legal conclusion as to whether the exception applies is reviewed de novo." 303
Kan. at 677. Substantial competent evidence refers to legal and relevant evidence that a
reasonable person could accept as being adequate to support a conclusion. State v. Doelz,
309 Kan. 133, 138, 432 P.3d 669 (2019).




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       In Kansas, a criminal defendant's direct appeal must be filed within 14 days of
sentencing. See K.S.A. 2019 Supp. 22-3608(c) (establishing 14-day time limitation for
crimes committed after July 1, 1993). "The filing of a timely notice of appeal is
jurisdictional. Generally, the failure to file a timely notice of appeal requires dismissal of
the appeal." Albright v. State, 292 Kan. 193, 197, 251 P.3d 52 (2011). But in the interest
of fundamental fairness, the Kansas Supreme Court has recognized three exceptions to
the dismissal requirement. See State v. Patton, 287 Kan. 200, 206, 195 P.3d 753 (2008)
(citing Ortiz, 230 Kan. at 735-36).


               "The Ortiz exceptions recognize that an untimely appeal may be allowed in the
       direct appeal from a conviction and sentence if a criminal defendant either (1) was not
       informed of the right to appeal at sentencing or by counsel, (2) was indigent and not
       furnished counsel to perfect an appeal, or (3) was furnished counsel for that purpose who
       failed to perfect and complete an appeal." Albright, 292 Kan. at 198 (citing Ortiz, 230
       Kan. at 735-36).


       The third Ortiz exception applies when an attorney is appointed or retained for an
appeal but fails to timely file a notice of that appeal or otherwise protect a defendant's
rights, thereby destroying that defendant's right to pursue a direct appeal. See Patton, 287
Kan. at 224. As such, the third Ortiz exception is part and parcel with an attorney's
effectiveness. State v. Shelly, 303 Kan. 1027, 1047, 371 P.3d 820 (2016); see also Patton,
287 Kan. at 218-19 ("The second and third exceptions—applicable when a defendant was
not furnished with an attorney to perfect an appeal or was furnished with an attorney for
that purpose who failed to perfect and complete an appeal—go to the right of counsel and
effectiveness of counsel."). The standard of performance that is to be applied to measure
the adequacy of an attorney's performance under the third Ortiz exception is found in Roe
v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2016). Patton, 287
Kan. 200, Syl. ¶ 10.




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               "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." 287 Kan. 200,
       Syl. ¶ 11.


Accordingly, to satisfy the third Ortiz exception, "the defendant must establish that: (1)
he or she told counsel to appeal, but the attorney failed to file or perfect the appeal; and,
(2) he or she would have timely appealed, but for counsel's failure." State v. Smith, 304
Kan. 916, Syl. ¶ 4, 377 P.3d 414 (2016).


       Specifically citing to Flores-Ortega, Bateast claims that Myers' performance was
deficient because he had not only had a duty to ask him if he wanted to file an appeal but
he also had an affirmative duty to consult with him about the specific advantages and
disadvantages of taking an appeal. But Bateast's claim fails to place the Flores-Ortega
consultation language in its proper context. We do so here.


               "In those cases where the defendant neither instructs counsel to file an appeal
       nor asks that an appeal not be taken, we believe the question whether counsel has
       performed deficiently by not filing a notice of appeal is best answered by first asking a
       separate, but antecedent, question: whether counsel in fact consulted 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. If counsel has consulted with the
       defendant, the question of deficient performance is easily answered: Counsel performs in
       a professionally unreasonable manner only by failing to follow the defendant's express
       instructions with respect to an appeal. If counsel has not consulted with the defendant, the
       court must in turn ask a second, and subsidiary, question: whether counsel's failure to
       consult with the defendant itself constitutes deficient performance." (Emphasis added.)
       Flores-Ortega, 528 U.S. at 478.




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       Applying the legal principles set forth in Flores-Ortega to the facts of this case,
Bateast has failed to establish the prerequisites for filing an untimely appeal under the
third Ortiz exception. After hearing all of the evidence, the district court found that
Bateast "specifically, and repeatedly, stated he did not wish to appeal, and signed a
document indicating his intent." The court's finding of fact is supported by substantial
competent evidence in the record: Myers' testimony and the PSI report signed by Bateast
indicating he did not want to appeal. In making an assessment of whether there is
substantial competent evidence to support a district court's findings, we neither reweigh
evidence nor make independent credibility determinations. K.S.A. 2019 Supp. 60-
252(a)(5) ("Findings of fact must not be set aside unless clearly erroneous, and the
reviewing court must give due regard to the trial court's opportunity to judge the witness'
credibility."); State v. Hartpence, 30 Kan. App. 2d 486, 493, 42 P.3d 1197 (2002). A
significant part of evaluating testimony rests on seeing the witnesses on the stand and
observing how they respond to questions both on direct and cross-examination. State v.
Scaife, 286 Kan. 614, 624, 186 P.3d 755 (2008) ("[T]he ability to observe the declarant is
an important factor in determining whether he or she is being truthful."); State v. Franco,
49 Kan. App. 2d 924, 936, 319 P.3d 551 (2014) ("'The judicial process treats an
appearance on the witness stand, with the taking of an oath and the rigor of cross-
examination, as perhaps the most discerning crucible for separating honesty and accuracy
from mendacity and misstatement.'"). Appellate courts have no comparable vantage point
when they read a trial transcript, and that is precisely why they do not make credibility
determinations. We will not do so here.


       The fact that Bateast affirmatively told Myers that he did not want to appeal is
important and distinguishes this case from Flores-Ortega, where defense counsel did not
discuss the issue of an appeal with the defendant at all. Under our case facts, Flores-
Ortega precludes Bateast's untimely appeal under the third exception of Ortiz: "[A]
defendant who explicitly tells his [or her] attorney not to file an appeal plainly cannot
later complain that, by following his [or her] instructions, his [or her] counsel performed


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deficiently." 528 U.S. at 477. Accordingly, his appeal is dismissed for lack of
jurisdiction.


       Appeal dismissed.




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