State v. Zuspann

                         NOT DESIGNATED FOR PUBLICATION



                                        STATE OF KANSAS,


                                    NICOLE MARIE ZUSPANN,

                                  MEMORANDUM OPINION

       Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed March 12, 2021.

       Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

       Brock R. Abbey, assistant county attorney, and Derek Schmidt, attorney general, for appellee.


       PER CURIAM: Defendant Nicole Marie Zuspann has appealed the Saline County
District Court's denial of her request to pursue a late appeal of her probation revocation in
this case. The district court conducted an evidentiary hearing—commonly called an Ortiz
hearing—at which Zuspann and the lawyer representing her on the probation revocation
testified. The district court credited the lawyer's testimony that Zuspann did not ask him
to file a notice of appeal of the probation revocation and, thus, rejected Zuspann's
contrary testimony. Based on that determination and the other evidence, the district court
rejected Zuspann's request to pursue an out-of-time appeal. We find no error in the
district court's decision and affirm.

       The extended history of this criminal prosecution is largely irrelevant to the
narrow issue before us. Years ago, Zuspann pleaded guilty to a series of property crimes
and was placed on probation with an order to pay a large amount of restitution. The
district court repeatedly extended the probation—at least once as a sanction for Zuspann's
violation of the conditions and several times at her request as she struggled to pay the

       In 2017, the State sought to revoke Zuspann's probation. The district court
appointed a lawyer to represent Zuspann in that proceeding. At the probation revocation
hearing, Zuspann admitted she had absconded and had failed to pay various court costs.
She asked for another chance on probation. The district court turned aside the request and
ordered Zuspann to serve the underlying prison sentence.

       About 18 months later, Zuspann personally drafted and filed a notice of appeal
from the district court's probation revocation order. The notice was long past the statutory
deadline for taking an appeal. K.S.A. 2020 Supp. 22-3608(c). We directed the district
court to hold an Ortiz hearing to determine whether Zuspann could establish legal
grounds warranting a late appeal.

       The timely filing of a notice of appeal is a jurisdictional predicate for appellate
review of an adverse district court judgment. See State v. Shelly, 

303 Kan. 1027

, 1036,

371 P.3d 820

(2016). In Ortiz, the Kansas Supreme Court recognized exceptions to the
timeliness requirement when a criminal defendant's ability to appeal has been inhibited in
any of three specific ways. State v. Ortiz, 

230 Kan. 733

, Syl. ¶ 3, 

640 P.2d 1255

The court has frequently restated the Ortiz exceptions:

               "'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. [Citations omitted.]'" 

Shelly, 303 Kan. at 1036

       (quoting Albright v. State, 

292 Kan. 193

, 198, 

251 P.3d 52


       At the Ortiz hearing, Zuspann testified that immediately following the probation
revocation she and her lawyer spoke about a possible appeal. She testified she told the
lawyer she wanted to think about it and then called the lawyer that same day to tell him to
file an appeal. The lawyer testified that he had no detailed independent recollection of
communications with Zuspann about an appeal of her probation revocation and did not
recall a telephone call from her requesting an appeal. The lawyer explained his standard
procedure is to document discussions with clients about appeals in the case files he
maintains. He reviewed Zuspann's file. The file documents a discussion with Zuspann
about a possible appeal. From the absence of any notation that Zuspann wanted to take an
appeal, the lawyer testified he would conclude she had not requested an appeal.

       During the Ortiz hearing, the State introduced several letters Zuspann had written
to the district court from prison seeking some relief shortening her sentence. The district
court promptly (and appropriately) submitted the letters to the clerk for filing in this case.
In the letters, Zuspann makes no mention of either her belief that an appeal had been filed
or her lawyer's apparent failure to follow through on her request for an appeal. The
omission of any reference to an appeal is, at the very least, consistent with Zuspann
having already made a decision to forgo an appeal.

       The district court made an explicit credibility finding favoring the lawyer's
testimony that Zuspann had not asked him to file an appeal and, in turn, rejecting
Zuspann's conflicting testimony she had requested an appeal during a telephone call with
the lawyer. Having considered the hearing evidence, the district court concluded Zuspann
had presented no legal basis under Ortiz justifying her late appeal of the probation
       In reviewing a district court's ruling on an Ortiz request for a late appeal, we apply
the often-stated bifurcated standard that accords deference to the factual findings, so long
as they are supported by substantial competent evidence, but permits unlimited
examination of whether those findings then justify the ultimate legal conclusion. See
State v. Phinney, 

280 Kan. 394

, 403-04, 

122 P.3d 356

(2005); State v. Stevenson, No.

2020 WL 1493034

, at *2 (Kan. App. 2020) (unpublished opinion), rev. denied
312 Kan. ___ (September 30, 2020). We do not reweigh the evidence or make
independent credibility determinations in that process. See Taylor v. Kansas Dept. of
Health & Environment, 

49 Kan. App. 2d 233

, 238, 

305 P.3d 729

(2013) (noting
deference due on appeal to district court's credibility determinations and resolutions of
conflicting evidence).

       Here, Zuspann's testimony at the Ortiz hearing established she knew she had a
right to appeal the probation revocation and had a lawyer with the authority to file a
notice of appeal for her. The lawyer's office file confirms her understandings. That much
of the evidence was undisputed and eliminated two of the three Ortiz exceptions. The
remaining exception turns on a lawyer failing to carry out his or her client's express
request for an appeal. Here, of course, there was conflicting testimony on the third
exception, and the district court resolved the conflict against Zuspann. The resolution was
within the district court's exceptionally broad purview in making credibility
determinations. We will not disturb that finding on appeal. In turn, the district court's
factual findings support its legal conclusion in denying the late appeal.



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