NOT DESIGNATED FOR PUBLICATION
No. 120,389
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JAMESIA UNIQUE JONES,
Appellant.
MEMORANDUM OPINION
Appeal from Coffey District Court; PHILLIP M FROMME, judge. Opinion filed October 23, 2020.
Appeal dismissed.
Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.
Christopher Phelan, of Burlington, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., HILL and ATCHESON, JJ.
PER CURIAM: Jamesia Unique Jones was charged and convicted of possession of
opiates with intent to distribute. Before sentencing, Jones moved for a departure from the
presumptive sentence. Jones chose not to testify at the sentencing hearing. Instead, her
attorney presented her version of events when arguing that departure was appropriate.
The State presented evidence and argued that a departure was not warranted.
The district court denied Jones' motion, stating that Jones' decision to not testify
on her own behalf weighed against her. The district court sentenced Jones to a
presumptive sentence. Jones did not file a timely notice of appeal.
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Several months after sentencing, Jones filed a pro se notice of appeal. The district
court held an Ortiz hearing to determine whether Jones could file an untimely appeal. The
district court found that an exception applied which allowed Jones to file an untimely
appeal. On appeal, Jones argues that the district court erred when it considered her
decision not to testify at sentencing when it denied her motion for a departure.
FACTUAL AND PROCEDURAL HISTORY
On February 19, 2017, Rodney Pumphrey, an investigator with the Drug
Enforcement Administration, was investigating the burglary of a pharmacy in Minnesota.
The pharmacy was burglarized by two individuals who used a yellow crowbar to pry
open the door. One of the individuals wore a mask with a skull on the front of it. The
individuals stole several hundred opiates from the pharmacy.
Later that same day, Zackary Rogers, a deputy sheriff with the Coffey County
Sheriff's Office, made a traffic stop. Jones was a passenger in the vehicle that was
stopped. Two other individuals, Anthony Ven Wright and Roy Perro, were present in the
vehicle. Rogers searched the vehicle and located a yellow crowbar and a mask with a
skull on the front. Rogers also found thousands of opiates hidden in the vehicle. A receipt
found in the vehicle showed that Jones bought food in Minnesota, even though Jones
claimed that they had only gone to Kansas City. Jones told Rogers that she saw Wright
and Perro throwing large pill containers into a dumpster.
Jones ultimately pled no contest to possession with intent to distribute opiates.
Before sentencing, Jones filed a motion for a dispositional or durational departure. Jones
argued, in part, that the district court should depart from the guideline sentence because
(1) she did not have any prior criminal convictions, (2) did not know what Wright was
planning when she went on the trip with him, (3) was not present when the pills were
stolen, (4) took responsibility for her actions, and (5) was a good fit for probation.
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At sentencing, the district court considered Jones' motion. Jones chose to not speak
or testify on her own behalf. Instead, Jones' attorney relayed her version of events leading
to her arrest. The district court expressed concern that Jones was not willing to speak or
testify on her own behalf, noting that her attorney was "telling her story to the Court. We
don't have anything to confirm that she, in fact, says which story is correct or what her
under oath statement is."
The State argued that Jones failed to provide substantial and compelling reasons
justifying a departure from the grid sentence. The State pointed out inconsistencies in the
testimony from the officers and Jones' version of events. The State also noted that Jones
pled no contest instead of guilty, obviating some level of acceptance of responsibility.
The district court denied Jones' motion. The court stated:
"I guess from the evidence I heard I have serious questions as to what her involvement in
this was. However, I do believe she knows a lot more than she's telling us. And, I guess,
part of what bothers me is that she chose not to testify under oath and asked you to tell
her story. That's pretty suspect to me. Apparently, the story she's telling or asking you to
tell today is different in many respects to stories she told the officers."
The district court sentenced Jones to 98 months' imprisonment. Nearly a year after
sentencing, Jones filed a pro se notice of appeal.
Because Jones' notice of appeal was filed outside the 14-day limitation, this court
issued a show cause order. After a response from the parties, this court remanded the case
to the district court for what is commonly known as an Ortiz hearing.
At the Ortiz hearing, Jones testified that she spoke with her attorney at the time,
Bryan Hastert, after the district court sentenced her. According to Jones, she was "in tears
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but [she] asked to have appeal for lower sentence." Jones testified that Hastert replied
"Okay." Other than that conversation, Jones did not discuss an appeal with Hastert.
The State called Hastert as a witness. According to Hastert, he had no recollection
of Jones requesting that a notice of appeal be filed on her behalf. Hastert said that if Jones
had requested an appeal, he would have filed the notice. Hastert acknowledged that he
remembered that Jones was crying after sentencing but maintained that she did not say
that she wanted to appeal the sentence.
After hearing argument from both parties, the district court found:
"A defendant who communicates dissatisfaction with their sentence to their
defense attorney can be construed as asking for an appeal to be filed without saying those
words explicitly. At a minimum it should lead to discussion of her options. Miss Jones'
upset demeanor prevented Mr. Hastert from clearly understanding her desire, she was not
explicit in her communication.
"Miss Jones took the affirmative step of communicating her dissatisfaction with
the attorney which indicates her desire to this Court to seek remedy at the appellate level.
Her attorney did not perfect the appeal."
The district court allowed Jones to file her notice of appeal out of time based on
the miscommunication between her and Hastert. In its written journal entry, the district
court noted that Jones "did not explicitly communicate to Mr. Hastert that she was
dissatisfied with her sentence."
ANALYSIS
The State argues that this court does not have jurisdiction to hear the appeal for
two reasons. First, it argues that the district court misapplied the factors in State v. Ortiz,
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230 Kan. 733, 640 P.2d 1255 (1982), when it allowed Jones' untimely appeal. Second, it
argues that because Jones was given a presumptive sentence, there is no statutory right to
appeal.
Whether jurisdiction exists is a question of law over which this court's scope of
review is unlimited. State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016).
The right to appeal is entirely statutory and is not contained in the United States or
Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have
jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by
statutes. Smith, 304 Kan. at 919. In a criminal case, a defendant has 14 days after the
judgment of the district court to file his or her notice of appeal. K.S.A. 2019 Supp. 22-
3608(c). An appellate court lacks jurisdiction over an appeal if the notice of appeal is not
timely filed. Ortiz, 230 Kan. 733, Syl. ¶ 2.
That said, the 14-day limit is subject to certain exceptions. Under Ortiz, an
untimely notice of appeal may be filed when the defendant (1) was not informed of the
right to appeal, (2) was not provided an attorney to perfect the appeal, or (3) the provided
attorney either failed to perfect or complete an appeal. 230 Kan. 733, Syl. ¶ 3.
A district court's decision on whether an exception under Ortiz applies in a given
case is reviewed on appeal under a dual standard. First, the appellate court reviews the
facts underlying the district court's ruling for substantial competent evidence. However,
this court reviews de novo the legal conclusion made by the district court on whether the
exception applies. State v. Smith, 303 Kan. 673, 677, 366 P.3d 226 (2016).
The State begins by arguing that the district court erred in finding that the third
Ortiz exception applied because it was not supported by substantial competent evidence
and the court's legal conclusions were erroneous. It is unclear whether the State can
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appeal a district court's decision after an Ortiz hearing without filing a notice of appeal.
But this court need not address that issue here because even if the district court correctly
granted Jones relief under Ortiz, this court would not have jurisdiction over Jones' appeal
consistent with the State's second argument.
The State argues this court lacks jurisdiction to hear Jones' appeal because the
court imposed a presumptive sentence. Under K.S.A. 2019 Supp. 21-6820(c)(1), this
court lacks jurisdiction to review "[a]ny sentence that is within the presumptive sentence
for the crime." The court sentenced Jones to the standard presumptive sentence for her
crimes.
Still, Jones responds by arguing that this court can review the sentence under a
narrow exception set out by this court in State v. Warren, 47 Kan. App. 2d 57, 270 P.3d
13 (2012). In Warren, the defendant was convicted of bringing a small amount of
marijuana into a correctional facility. He requested a shorter sentence than the guidelines
called for because it was a small amount of marijuana. The district court ruled that, by
statute, it could not consider Warren's departure argument.
On appeal, Warren argued that the district court misinterpreted its sentencing
options and needlessly limited its own authority. This court agreed, holding that an
appellate court has "jurisdiction to consider the limited argument . . . that the district
court wrongly interpreted its statutory sentencing authority and therefore refused to
consider matters before it that were potentially relevant to the sentence." 47 Kan. App. 2d
at 62.
Jones argues that Warren applies here because the district court misinterpreted its
statutory authority by considering Jones' choice not to testify as a reason to deny her
departure request. But the district court's actions here do not fit within the narrow
exception carved out by this court in Warren.
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The district court did not artificially limit itself by believing that it could not
consider Jones' departure argument. Instead, the court found that her argument was not
compelling given the circumstances. The district court is authorized, by statute, to
consider a "nonexclusive list of mitigating factors" when determining whether to grant a
defendant's motion for departure. K.S.A. 2019 Supp. 21-6815(c)(1). Whether that
nonexclusive list can include a defendant's silence is not something this court can
consider because the district court sentenced Jones to a presumptive sentence.
Nor does the constitutional nature of Jones' argument change the outcome. In State
v. Huerta, 291 Kan. 831, Syl. ¶ 3, 247 P.3d 1043 (2011), the Kansas Supreme Court held
that "[a] criminal defendant's allegation of constitutional infirmity in an individual
presumptive sentence does not make the sentence amendable to direct appeal." In Huerta,
the court sentenced Huerta to a presumptive sentence. He appealed to the Kansas Court
of Appeals, alleging that the State violated his due process rights during sentencing. The
Court of Appeals dismissed the case for lack of jurisdiction because Huerta was
sentenced to a presumptive sentence.
The Kansas Supreme Court affirmed the dismissal, noting that Kansas appellate
courts "do not review cases such as Huerta's on direct appeal, when a defendant merely
argues that his or her individual presumptive sentence has a constitutionally based
infirmity." 291 Kan. at 840. The court was also clear to note that its holding did not leave
a defendant who believed there was a constitutional issue with his or her sentence with no
remedy. The court pointed out that the sentence could qualify as an illegal sentence or
that collateral attack through a K.S.A. 60-1507 motion may be available. 291 Kan. at 841.
Ultimately, this court need not reach any other issues raised by the parties because
the court lacks jurisdiction to reach the merits of Jones' appeal. Because the district court
sentenced Jones to a presumptive sentence, this court has no jurisdiction to hear the
appeal under K.S.A. 2019 Supp. 21-6820(c)(1).
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Appeal is dismissed for lack of jurisdiction.
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