                                         No. 120,972

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                     STATE OF KANSAS,
                                         Appellee,

                                              v.

                            CHRISTOPHER CHARLES MABERRY,
                                      Appellant.


                              SYLLABUS BY THE COURT

1.
       Supreme Court Rule 134(a) (2020 Kan. S. Ct. R. 200) provides that if the district
court rules on a motion or other application when an affected party who has appeared in
the action is not present—either in person or by the party's attorney—the court
immediately must serve notice of the ruling.


2.
       To satisfy the Due Process Clause of the Fourteenth Amendment to the United
States Constitution and Section 18 of the Kansas Constitution Bill of Rights, substantial
compliance with Supreme Court Rule 134(a) is required before the time to file a notice of
appeal begins to run on the denial of a motion to withdraw plea. As a result, a defendant
is entitled to file an out-of-time appeal if the district court does not substantially comply
with the service requirement set forth in Rule 134(a).


3.
       The Due Process Clause of the Fourteenth Amendment to the United States
Constitution and Section 18 of the Kansas Constitution Bill of Rights do not require the
district court to inform a defendant of the right to appeal and the statutory time limit to


                                               1
appeal the denial of a motion to withdraw plea. As a result, a defendant is not entitled to
an out-of-time appeal simply because the court failed to inform the defendant of his rights
to appeal the denial of the motion.


        Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed May 22,
2020. Affirmed in part, vacated in part, and remanded with directions.


        Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.


        Natasha Esau, assistant district attorney, and Derek Schmidt, attorney general, for appellee.


Before HILL, P.J., BUSER and BRUNS, JJ.


        BUSER, J.: After pleading guilty to aggravated escape from custody, Christopher
Charles Maberry filed a pro se postsentencing motion to withdraw his plea. The district
court summarily denied the motion. More than six months later, Maberry filed a motion
to appeal out of time from the denial of his motion to withdraw plea. The district court
also summarily denied this motion.


        This is Maberry's appeal of the district court's order denying his motion to appeal
out of time. He asserts the district court violated his right to due process in two ways:
First, he was not informed the district court denied his motion to withdraw plea until after
the statutory time to appeal had expired. Second, the district court failed to inform him of
his appellate rights at the time the court denied Maberry's motion to withdraw plea.


        Upon our review, we hold that Supreme Court Rule 134(a) (2020 Kan. S. Ct. R.
200) requires that if the district court rules on a motion or other application when an
affected party who has appeared in the action is not present—either in person or by the
party's attorney—the court immediately must serve notice of the ruling.


                                                     2
       Moreover, to satisfy the Due Process Clause of the Fourteenth Amendment to the
United States Constitution and Section 18 of the Kansas Constitution Bill of Rights, we
hold that substantial compliance with Supreme Court Rule 134(a) is required before the
time to file a notice of appeal begins to run on the denial of a motion to withdraw plea.
As a result, a defendant is entitled to file an out-of-time appeal if the district court does
not substantially comply with the service requirement set forth in Rule 134(a).


       Accordingly, we vacate the district court's summary dismissal and remand with
directions to make findings regarding whether the district court substantially complied
with Supreme Court Rule 134(a). Upon remand, if the district court determines that
service of the court's order denying Maberry's motion to withdraw plea was not
substantially complied with, the district court shall grant the motion to file an out-of-time
appeal. On the other hand, if the district court determines that service of the court's order
denying Maberry's motion to withdraw plea was substantially complied with, the district
court shall reconsider its prior ruling, including, if appropriate, reinstating its prior ruling
denying Maberry's motion to file an out-of-time appeal.


       With regard to Maberry's second issue on appeal, we hold that because a criminal
defendant does not have a statutory right to be informed of the right to appeal from a
denial of a motion to withdraw plea, the Due Process Clause of the Fourteenth
Amendment to the United States Constitution and Section 18 of the Kansas Constitution
Bill of Rights do not require that the district court inform the defendant of the right to
appeal and the statutory time limit to appeal the denial of the motion. As a result,
Maberry is not entitled to an out-of-time appeal simply because the district court failed to
inform him of his rights to appeal the denial of the motion. Thus, we affirm the district
court as to the second issue.




                                               3
                        FACTUAL AND PROCEDURAL BACKGROUND

       On January 5, 2018, the district court revoked Maberry's probation in several
criminal cases, imposed the underlying sentences, and ordered him into custody. At the
conclusion of the hearing, Maberry ran out of the courtroom. Maberry led officers on a
foot chase throughout the courthouse until he encountered a locked door, whereupon he
apologized to the officers and was arrested. The State charged Maberry with aggravated
escape from custody, in violation of K.S.A. 2017 Supp. 21-5911(b)(1)(A).


       At a plea hearing on this charge, the district court informed Maberry of the
sentencing range for the crime, and Maberry said he understood the range of possible
sentences. Maberry pled guilty as charged, stating, "[M]yself and the cameras in the court
know I'm guilty. I'm guilty." The district court accepted Maberry's plea and found him
guilty of aggravated escape from custody.


       Prior to sentencing, Maberry filed a motion for a dispositional departure to
probation. In the departure motion, Maberry noted that his mother was terminally ill, and
she cried in the courtroom when his probation was revoked. In desperation, Maberry
claimed that he ran from the courtroom afraid of never seeing his mother again.


       At sentencing on May 11, 2018, Maberry asked "for the mercy of the courts" and
told the district court, "I am really regrettably sorry for what I did." The district court,
however, denied his departure motion and sentenced him to 19 months in prison. The
district judge informed Maberry of his right to appeal the sentence, stating, "You can
appeal this sentence by filing notice of appeal within 14 days in writing. If you can't
afford an attorney we will appoint someone to represent you. You can talk to [your
attorney]. If you want to appeal he'll file a notice of appeal for you." No appeal was filed.




                                               4
       On July 7, 2018, Maberry mailed our court a letter asking about an appeal in his
criminal case. The Clerk of the Appellate Courts informed Maberry there was no appeal
docketed in the case and no open appeals in his name. Maberry was referred to the
district court to see if a notice of appeal had been filed.


       On August 17, 2018, Maberry filed a pro se motion to withdraw his guilty plea in
the district court. In the motion, Maberry argued that he was coerced into pleading guilty,
and his defense counsel provided ineffective assistance—in particular, failing to file a
presentencing motion to withdraw Maberry's plea at his request.


       The district court summarily denied Maberry's motion on August 20, 2018. In its
order, the district court stated: "The Defendant, on the record, showed the Court that his
plea was knowing, intelligent and voluntary. He showed the Court that he [was] satisfied
with the service of his attorney. His claim to the contrary at this point is not credible."
Additionally, the district court found Maberry made "no claim[s] resembling an assertion
of manifest injustice." Relevant to this appeal, the order did not advise Maberry of his
right to appeal or the statutory time limit to appeal the district court's adverse ruling.


       It does not appear from the record on appeal that the district court's order included
a certificate of service or a cover letter indicating that the order was mailed to Maberry or
to what address it was sent. At the bottom of the two-page order, however, was
typewritten: "CC: Christopher Maberry." This is the only indication in the record that
Maberry may have been provided with a copy of the district court's order denying his
motion to withdraw plea.


       On November 13, 2018—almost three months after the district court filed its
order—Maberry handwrote a letter to the district court asking about the status of his
motion to withdraw plea. In relevant part the letter read:


                                               5
                 "I yet to this day have heard nothing back or have not received any Court dates
         that have been issued to me.
                 "Could you please get ahold of me to let me know if a possible Court date is
         assigned for the motion I had sent back in [August] 17th 2018[?]
                 ....
                 "I would highly appreciate [it if] this matter could be brought [forthwith] with an
         [evidentiary] hearing that could be placed in [due] time.
                 "This matter has been pushed on now for a period of time exceeding . . . three
         months now."


The record does not indicate if the district court replied to Maberry's letter.


         On February 25, 2019, Maberry filed a pro se motion to appeal out of time. In the
motion, Maberry asserted:


                 "Defendant was not transported to Court for an evidentiary hearing, not
         represented by counsel, [not] notified of the Court's denial until November 27, 2018, as
         well as his right to appeal the decision. As a result no appeal was timely filed. Mr.
         Maberry recently became aware that he has the right to appeal the Court's decision and
         wished to exercise his right to do so."


         In response, the district court filed an order, dated February 26, 2019, summarily
denying Maberry's motion to appeal out of time. In the order, the district court stated that
"there is no rule requiring the Court to separately advise [Maberry] of the right to appeal"
the denial of a motion to withdraw plea. The district court also indicated that Maberry
failed


         "to explain the delay between his acknowledgement of his receiving notice of the Court's
         August 20, 2018 decision which he says he received on November 27, 2018 and the filing
         of his Motion for Leave to Appeal Out of Time on February 25, 2019. That delay was
         obviously in excess of the 14 days that the Court informed him of at his sentencing."


                                                      6
Consequently, the district court ruled that Maberry did not allege sufficient facts to show
the district court should excuse his failure to file a timely notice of appeal.


       Maberry appeals the district court's denial of his motion to appeal out of time.


                                          ANALYSIS

       On appeal, Maberry contends the district court erred by denying his motion to file
an appeal out of time. Maberry argues that due process of law entitles him to an out-of-
time appeal for two reasons: First, the district court failed to notify him that it denied his
motion to withdraw plea until after the time to appeal had expired. Second, the district
court failed to inform him of his appellate rights upon the denial of his motion to
withdraw plea. We will separately address the two arguments.


   STANDARDS OF REVIEW AND BASIC STATUTORY AND CONSTITUTIONAL PRINCIPLES

       At the outset, it is necessary to briefly summarize our standards of review and
some basic statutory and constitutional principles relevant to this appeal. When the
material facts underlying a district court's decision are not in dispute, we exercise
unlimited review over the legal conclusion as to whether an exception applies to the
requirement of a timely appeal. State v. Smith, 303 Kan. 673, 677, 366 P.3d 226 (2016).
Likewise, the issue of whether due process has been afforded is a question of law subject
to unlimited review. Requena v. State, 310 Kan. 105, 108, 444 P.3d 918 (2019).


       "A defendant has a right to appeal from the denial of a motion to withdraw a plea."
State v. Hemphill, 286 Kan. 583, 593, 186 P.3d 777 (2008). However, the right to appeal
is entirely statutory and is not contained in the United States or Kansas Constitutions.
State v. Rocheleau, 307 Kan. 761, 763, 415 P.3d 422 (2018). Filing a timely notice of
appeal is a prerequisite to appellate jurisdiction. Smith, 303 Kan. at 677. As a general


                                               7
rule, the failure to file a notice of appeal before the statutory deadline requires dismissal
of the appeal. Albright v. State, 292 Kan. 193, 197, 251 P.3d 52 (2011).


       An appeal from the denial of a motion to withdraw plea must be filed within the
time frame for criminal appeals found in K.S.A. 2019 Supp. 22-3608. Hemphill, 286 Kan.
at 590. Under the current statute, a criminal defendant has 14 days from the entry of
judgment to file a notice of appeal. K.S.A. 2019 Supp. 22-3608(c).


       With regard to due process, the Fourteenth Amendment to the United States
Constitution provides that no State "shall . . . deprive any person of life, liberty, or
property, without due process of law." U.S. Const. amend. XIV, § 1. Additionally,
Section 18 of the Kansas Constitution Bill of Rights states: "All persons, for injuries
suffered in person, reputation or property, shall have remedy by due course of law."
Historically, Kansas courts construe the due process protections of Section 18 to be the
same as those guaranteed by the Fourteenth Amendment. State v. Boysaw, 309 Kan. 526,
537-38, 439 P.3d 909 (2019).


       Finally, when a State provides the right to an appeal, the minimum essential
elements of due process of law must be provided. Evitts v. Lucey, 469 U.S. 387, 393, 105
S. Ct. 830, 83 L. Ed. 2d 821 (1985); Johnson v. Brooks Plumbing, LLC, 281 Kan. 1212,
1215, 135 P.3d 1203 (2006). Constitutional due process is a flexible concept in that the
protections required vary depending upon the importance of the specific interests at stake.
But the basic elements of procedural due process are notice and an opportunity to be
heard at a meaningful time and in a meaningful manner. In re Care & Treatment of
Ellison, 305 Kan. 519, 526, 385 P.3d 15 (2016).




                                               8
                 DOES DUE PROCESS REQUIRE A DISTRICT COURT TO
       INFORM A DEFENDANT OF THE DENIAL OF A MOTION TO WITHDRAW PLEA?

       Maberry asserts the district court erred by denying his out-of-time appeal because
"the district court's failure to notify him of the adverse decision in his case violated due
process."


       When reviewing a due process claim, we first consider whether the government
deprived a person of a protected liberty or property interest. If a protected liberty or
property interest is implicated, we must then determine the nature and extent of the
process that is due. Village Villa v. Kansas Health Policy Authority, 296 Kan. 315, 331,
291 P.3d 1056 (2013). Due process is flexible in that not all situations calling for
procedural safeguards call for the same kind of procedure. See In re Care & Treatment of
Ellison, 305 Kan. at 526.


       Although the right to appeal is entirely statutory, "where the legislature has
provided the right of an appeal, the minimum essential elements of due process of law in
an appeal affecting a person's life, liberty, or property are notice and an opportunity to be
heard at a meaningful time and in a meaningful manner." Nguyen v. IBP, Inc., 266 Kan.
580, 588, 972 P.2d 747 (1999). "To satisfy due process, notice must be reasonably
calculated, under all the circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their objections." 266 Kan. at 588.


       The plain language of Supreme Court Rule 134(a) (2020 Kan. S. Ct. R. 200)
provides: "If the court rules on a motion or other application when an affected party who
has appeared in the action is not present—either in person or by the party's attorney—the
court immediately must serve notice of the ruling." Notice is required to ensure that the
party with the right to appeal has actual knowledge that an adverse judgment has been
rendered. McDonald v. Hannigan, 262 Kan. 156, 163, 936 P.2d 262 (1997).


                                              9
       Importantly, Kansas caselaw provides that the time for taking an appeal does not
begin to run until the party entitled to appeal has received notice of the judgment in
compliance with Supreme Court Rule 134. McDonald, 262 Kan. at 163-64. In particular,
our Supreme Court has held that "[t]he time for filing post-judgment motions or taking an
appeal from a final judgment entered without notice commences to run when there has
been compliance with K.S.A. 60-258 and Rule No. 134." Daniels v. Chaffee, 230 Kan.
32, 38, 630 P.2d 1090 (1981). While K.S.A. 60-258 does not apply in criminal cases, see
State v. Moses, 227 Kan. 400, 403, 607 P.2d 477 (1980), Rule 134 applies to both civil
and criminal cases.


       Since Daniels, Kansas courts have repeatedly stated that compliance with Rule
134 is required before the time to take an appeal begins to run. See, e.g., McDonald, 262
Kan. at 163-64; JPMorgan Chase Bank v. Taylor, No. 117,774, 2018 WL 2170210, at
*4-5 (Kan. App. 2018) (unpublished opinion). Because Maberry was an affected party
who was not present in court or represented by an attorney when the district court issued
its ruling summarily denying his motion to withdraw plea, the time for taking an appeal
would begin to run when Maberry was served with notice of the order.


       Did the district court substantially comply with the requirement that it serve
Maberry with notice of the ruling denying his motion to withdraw plea? Unfortunately,
the record is insufficient for us to definitively answer this important question.


       On the one hand, the order did not include a certificate of service or cover letter
indicating that it was mailed to Maberry and, if so, where it was sent. Maberry's
November 13, 2018 letter to the district court alleged that he had not heard about the
district court setting the motion for a hearing and indicating displeasure at the delay. This
suggests that if the order was sent, Maberry did not receive it. Moreover, there is no
indication that the district court responded to this letter or provided Maberry with a copy
of the order in response to his letter.

                                             10
       On the other hand, the order did have a "CC: Christopher Maberry" typed at the
bottom of the order, and in Maberry's February 25, 2019 pro se motion to appeal out of
time, he asserted that he was not "notified of the Court's denial until November 27,
2018." While Maberry acknowledges being notified of the order as of this late date,
whether this notification came from the district court is unknown. The contents of this
notice are also not described.


       Under these circumstances, we are unable to determine whether the district court
substantially complied with Supreme Court Rule 134(a). And without knowing whether
the district court followed the rule's directive and immediately served notice of the ruling
on Maberry, we are unable to conclude whether, in accordance with Daniels and its
progeny, Maberry's due process right to notice and an opportunity to be heard has been
violated. See In re Care & Treatment of Ellison, 305 Kan. at 526. In short, without
findings of fact regarding whether the district court substantially complied with Supreme
Court Rule 134(a), we are unable to conclude as a matter of law whether Maberry is
entitled to file an out-of-time appeal. The lack of specific findings of fact on this
important issue precludes meaningful appellate review and necessitates a remand to the
district court. See State v. Thurber, 308 Kan. 140, 232, 420 P.3d 389 (2018).


       Accordingly, we vacate the district court's summary dismissal of the motion to
appeal out of time and remand with directions to make findings of fact regarding whether
the district court substantially complied with Supreme Court Rule 134(a). Upon remand,
if the district court determines that service of the court's order denying Maberry's motion
to withdraw plea was not substantially complied with, the district court shall grant the
motion to file an out-of-time appeal. On the other hand, if the district court determines
that service of the court's order denying Maberry's motion to withdraw plea was
substantially complied with, the district court shall reconsider its prior ruling, including,
if appropriate, reinstating its prior ruling denying Maberry's motion to file an out-of-time
appeal.

                                              11
          DOES DUE PROCESS REQUIRE A DISTRICT COURT TO INFORM A
 DEFENDANT OF THE RIGHT TO APPEAL THE DENIAL OF A MOTION TO WITHDRAW PLEA?

        On appeal, Maberry contends the Due Process Clause of the Fourteenth
Amendment to the United States Constitution and Section 18 of the Kansas Constitution
Bill of Rights requires the district court to inform him of the right to appeal and the
statutory time limit to appeal the denial of his motion to withdraw plea. Since the district
court did not inform him of his appellate rights, Maberry claims he is entitled to an out-
of-time appeal and the district court erred by denying his motion to file an appeal out of
time.


        In State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), our Supreme Court
recognized three judicial exceptions to the general rule barring untimely direct appeals.
The Ortiz exceptions provide that an untimely direct appeal will be allowed if the
criminal defendant "'(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.'
[Citations omitted.]" State v. Shelly, 303 Kan. 1027, 1036, 371 P.3d 820 (2016) (quoting
Albright, 292 Kan. at 198).


        Following the Ortiz decision, our Supreme Court has elaborated on the concepts
underlying the first Ortiz exception—not being informed of the right to appeal. See State
v. Patton, 287 Kan. 200, 219-22, 195 P.3d 753 (2008). In Patton, our Supreme Court
explained that three Kansas statutes provide procedural safeguards to a criminal
defendant's rights to appeal. 287 Kan. at 219. First, K.S.A. 22-3210(a)(2) requires a judge
to inform a felony defendant of the consequences of a guilty or nolo contendere plea,
including waiver of the right to appeal any resulting conviction. Second, as interpreted by
caselaw, K.S.A. 22-3424(f) requires a sentencing court to advise a defendant of the right
to appeal and of the right of an indigent defendant to appeal in forma pauperis. Third,


                                             12
K.S.A. 22-4505(a) requires a district court to inform a felony defendant of the right to
appeal a conviction. In summary: "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
one of these statutes." Patton, 287 Kan. at 220.


       The Ortiz exceptions to an untimely appeal, however, do not apply in the context
of a motion to withdraw plea. Hemphill, 286 Kan. at 591-92. Our Supreme Court in
Hemphill explained that the first Ortiz exception was created to comply with statutory
requirements to inform a defendant of the right to appeal and a district court has no
similar statutory obligation regarding the denial of a motion to withdraw a plea.
Hemphill, 286 Kan. at 591-92. In addition to the first Ortiz exception:


               "The fundamental fairness principle underlying all three exceptions recognized in
       Ortiz and its progeny is based on the facts that the defendant's failure to timely appeal
       was the result of being deprived of a right to which he or she was entitled by law: the
       statutory right to be advised of the right to appeal; the statutory right to be provided an
       attorney to file an appeal; or the right to have the appointed attorney perform effectively
       in perfecting the appeal." Guillory v. State, 285 Kan. 223, 228, 170 P.3d 403 (2007).


       Maberry argues that the first Ortiz exception applies, and the Hemphill court
wrongly held that the Ortiz exceptions were inapplicable on an appeal of a motion to
withdraw plea. Of course, we are duty bound to follow Kansas Supreme Court precedent
unless there is some indication the court is departing from its previous position. State v.
Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). We find no indication that our
Supreme Court is departing from its clearly stated precedent that the Ortiz exceptions are
inapplicable on a motion to withdraw plea. Accordingly, we find that Maberry is not
entitled to an out-of-time appeal under the Ortiz exceptions.




                                                    13
       Next, Maberry claims that—independent of Hemphill—due process required the
district court to inform Maberry of his right to appeal the denial of his motion to
withdraw plea.


       To establish a due process violation, Maberry must show that he was denied a
specific procedural protection to which he is entitled. Winston v. Kansas Dept. of SRS,
274 Kan. 396, 409, 49 P.3d 1274 (2002). When considering the procedural protections
required, we weigh:


       "'(1) the individual interest at stake; (2) the risk of erroneous deprivation of the interest
       through the procedures used and the probable value, if any, of additional or substitute
       procedural safeguards; and (3) the State's interest in the procedures used, including the
       fiscal and administrative burdens that any additional or substitute procedures would
       entail.'" In re A.A.-F., 310 Kan. 125, 145, 444 P.3d 938 (2019) (quoting In re J.D.C., 284
       Kan. 155, 166-67, 159 P.3d 974 [2007]).


       When considering the first factor—the individual interest at stake, we find this
factor weighs against Maberry. The right to appeal is not found in the United States or
Kansas Constitutions. Rocheleau, 307 Kan. at 763. Indeed, according to the United States
Supreme Court, "a State is not obliged to provide any appeal at all for criminal
defendants." Ross v. Moffitt, 417 U.S. 600, 606, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974).
For this reason, courts have rejected claims that a trial court violated a criminal
defendant's due process rights by failing to inform the defendant of the right to appeal a
determination about the voluntariness of a plea. See, e.g., Samuels v. Crickmar, No. CV
113-084, 2014 WL 4463240, at *8-9 (S.D. Ga. 2014) (unpublished opinion).


       In finding that a criminal defendant has no federal due process right to counsel
when pursuing a discretionary appeal on direct review of a conviction, the United States
Supreme Court in Ross noted the difference between a defendant's interests at trial and on
appeal. 417 U.S. at 610-11. The court noted:
                                                     14
               "[I]t is ordinarily the defendant, rather than the State, who initiates the appellate
       process, seeking not to fend off the efforts of the State's prosecutor but rather to overturn
       a finding of guilt made by a judge or a jury below. . . . This difference is significant for,
       while no one would agree that the State may simply dispense with the trial stage of
       proceedings without a criminal defendant's consent, it is clear that the State need not
       provide any appeal at all. The fact that an appeal has been provided does not
       automatically mean that a State then acts unfairly by refusing to provide counsel to
       indigent defendants at every stage of the way. [Citation omitted.]" 417 U.S. at 610-11.


       Since postconviction relief is even further removed from the original criminal
proceedings than discretionary direct review, the considerations in Ross apply with even
more persuasive force when considering due process requirements for postconviction
review. Pennsylvania v. Finley, 481 U.S. 551, 556, 107 S. Ct. 1990, 95 L. Ed. 2d 539
(1987).


       Regarding the second In re A.A.-F. factor, Maberry also argues that the risk of
erroneous deprivation of a pro se defendant's rights to appellate review is significant. He
reasons that when a motion to withdraw plea is summarily denied—as occurred in this
case—the defendant is never appointed counsel who could advise the defendant of his or
her appellate rights.


       But contrary to Maberry's position, pro se litigants are not excused from the
requirement to be aware of and follow rules of procedure, including filing a timely notice
of appeal. Guillory, 285 Kan. at 229. In Guillory, our Supreme Court noted that after the
district court summarily denied the defendant's pro se motion, "[t]he certificate of mailing
shows that a copy of the decision was sent to Guillory at the El Dorado Correctional
Facility." 285 Kan. at 223-24. Importantly, our Supreme Court considered whether
fundamental fairness excused the K.S.A. 60-1507 movant's untimely appeal when the
district court failed to inform Guillory of his appellate rights after summarily denying his
motion. Because no statute required the district court to advise a K.S.A. 60-1507 movant

                                                     15
of his or her appellate rights, our Supreme Court did not excuse the movant's untimely
appeal. 285 Kan. at 228-29.


       Although Guillory involved a K.S.A. 60-1507 motion, many procedural aspects of
K.S.A. 60-1507 proceedings are incorporated into postsentencing motions to withdraw a
plea, including when appointment of counsel is required. State v. Laughlin, 310 Kan. 119,
122-23, 444 P.3d 910 (2019). As a result, "if there is no substantial question of law or
triable issue of fact and the files and records conclusively show that the defendant is not
entitled to relief on the motion, then there is no requirement that a hearing be held or that
counsel be appointed." State v. Jackson, 255 Kan. 455, 461, 874 P.2d 1138 (1994). In
Maberry's case, since the district court did not find a substantial issue of law or triable
issue of fact in his motion to withdraw plea, Maberry's statutory right to counsel was not
triggered. Laughlin, 310 Kan. at 123-24. Thus, like the movant in Guillory, provided
Maberry was served with notice of the summary denial, he was required to comply with
the statutory deadline to file a timely notice of appeal.


       While we acknowledge that the third factor—the financial burden to the State—
would be slight, upon balancing all three relevant factors stated in In re A.A.-F., we hold
that due process did not require the district court to inform Maberry of his right to appeal
and the statutory time limit to appeal the denial of his motion to withdraw plea. When a
defendant is not informed of appellate rights, fundamental fairness only excuses an
untimely notice of appeal if the defendant had a statutory right to be advised of the right
to appeal. See Guillory, 285 Kan. at 228. Because the district court was not required by
Kansas law to advise Maberry of his rights to appeal the denial of his motion to withdraw
plea, due process did not mandate that he was entitled to an out-of-time appeal simply
because of the court's failure to inform him of his appellate rights. Thus, we affirm the
district court as to the second issue.


       Affirmed in part, vacated in part, and remanded with directions.

                                              16
