WILLIAM D. ALBRIGHT, Appellant, v. STATE OF KANSAS, Appellee.

No. 102,454.Supreme Court of Kansas.
Opinion filed May 20, 2011.

SYLLABUS BY THE COURT1. APPELLATE PROCEDURE — Notice of AppealTimely NoticeFailure to File Timely Notice Requires DismissalExceptions. 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. There are exceptions to this rule, however.

2. SAME — Notice of AppealTimely NoticeFailure to File Timely Notice Requires DismissalExceptionsSubject Matter JurisdictionAppellate Review. The issues of whether an appellate court will recognize an exception to the rule requiring a timely notice of appeal and, more generally, whether an appellate court has subject matter jurisdiction are questions of law that are subject to unlimited review.

3. JURISDICTION — Subject Matter JurisdictionIssue May Be Raised by Party or Court at Any Time. A question of subject matter jurisdiction may be raised at any time by a party or by a court, including an appellate court.

4. HABEA CORPUS — Appointment of Counsel in K. S.A. 60-1507 ProceedingEffective Assistance of Counsel Required. If a district court appoints counsel to represent a K.S.A. 60-1507 movant after finding the K.S.A. 60-1507 motion presents substantial questions of law or triable issues of fact and the movant is indigent, the movant has a right to receive effective assistance of counsel.

5. SAME — Appointment of Counsel in K.S.A. 60-1507 ProceedingEffective Assistance of Counsel RequiredRules for Determining Whether Effective Assistance Given When Counsel Fails to File Timely Appeal.
The rules for determining if a K.S.A. 60-1507 movant received ineffective assistance of counsel when appointed counsel failed to file a timely appeal are: (1) If the movant requested that an appeal be filed and it was either not filed at all or not timely filed, appointed counsel was ineffective; (2) a movant who explicitly told his or her appointed counsel not to file an appeal cannot later complain that, by following instructions, counsel performed deficiently; or (3) in other situations, such as where appointed counsel has not consulted with the movant or the movant’s directions are unclear, the movant must demonstrate a reasonable probability that, but for appointed counsel’s deficient failure to either consult with the movant or act on the movant’s wishes, an appeal would have been filed. The movant need not show that a different result would have been achieved but for counsel’s performance. If the movant establishes that counsel’s performance was deficient as tested in the first or third prong of this test, the movant will be allowed to file an appeal out of time.

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Review of the judgment of the Court of Appeals in an unpublished order of dismissal. Appeal from Kingman District Court; LARRY T. SOLOMON, judge. Opinion filed May 20, 2011. Judgment of the Court of Appeals is reversed, and the case is remanded with directions to the Court of Appeals.

Gerald E. Wells, of Lawrence, argued the cause and was on the brief for appellant.

Lee J. Davidson, assistant attorney general, argued the cause, an Steve Six, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.:

An appellate court’s jurisdiction depends on several factors, including the timely filing of a notice of appeal. In this appeal, it is undisputed that the notice was not filed by the statutory deadline. Nevertheless, K.S.A. 60-1507 movant William D. Albright asks for a waiver of the rule as a remedy for the deficient performance of his appointed counsel. As evidence of his contention that he received ineffective assistance of counsel, he cites his appointed counsel’s failure to timely file a notice of appeal from the district court’s judgment denying his K.S.A. 60-1507
motion.

His argument was rejected by the Court of Appeals, which dismissed his appeal on June 25, 2009. On petition for review, the parties suggest there is tension in the holdings and rationale of this court’s decisions i State v. Patton, 287 Kan. 200, 195 P.3d 753 (2008); Guillory v. State, 285 Kan. 223, 170 P.3d 403 (2007); Kargus v. State, 284 Kan. 908, 169 P.3d 307 (2007); Brown v. State, 278 Kan. 481, 101 P.3d 1201 (2004); and State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). The variance in the holdings and rationales of those decisions, according to the parties, make it unclear whether there is or should be a recognized exception allowing an out-of-time appeal if the delay resulted from ineffective assistance of appointed 60-1507 counsel.

After discussing the rationale and holding of each of these decisions, we conclude the Court of Appeals should not have dismissed Albright’s appeal because appointed counsel’s performance was deficient and the appropriate remedy is to exercise jurisdiction over Albright’s appeal. Therefore, we remand to the Court of Appeals for its consideration of the merits of Albright’s appeal.

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FACTS AND PROCEDURAL BACKGROUND
Albright was convicted in 1999 of premeditated first-degree murder and received a hard 40 life sentence. This court affirmed in State v. Albright, 271 Kan. 546, 24 P.3d 103 (2001). Then, Albright pursued postconviction 60-1507 relief on the basis of ineffective assistance of trial counsel; the Court of Appeals reversed in an unpublished decision and remanded for a new trial. State v. Albright, No. 90,216, 2004 WL 1041350 (Kan. App. 2004) (unpublished opinion). In his second trial, Albright was again convicted of premeditated first-degree murder and received a hard 40 life sentence. His conviction and sentence were affirmed in State v. Albright, 283 Kan. 418, 153 P.3d 497 (2007).

On March 12, 2008, Albright filed the pro se 60-1507 motion that underlies this appeal. The district court appointed counsel to represent Albright and scheduled a preliminary hearing. At the request of the district court, Albright’s appointed counsel filed a motion clarifying the issues to be addressed at the hearing and asserted three claims of ineffective assistance of trial counsel: (1) counsel failed to interview an alibi witness, (2) counsel failed to present evidence showing that the fingerprints of an individual other than Albright were found at the site of the murder, and (3) counsel failed to request a change of venue.

At a preliminary hearing, after receiving limited evidence (specifically, Kansas Bureau of Investigation fingerprint reports) and hearing appointed counsel’s arguments, the district court found that Albright’s allegations did not present substantial issues of fact requiring an evidentiary hearing. Consequently, on October 14, 2008, the court denied Albright’s 60-1507 motion.

No timely appeal was filed. Then, on February 4, 2009, Albright inquired of the district court whether an appeal had been filed in his case. On February 17, 2009, Albright filed a pro se notice of appeal, accompanied by a motion in which he argued that he should be permitted to file his appeal out of time because “[p]etitioner was represented by appointed counsel and as a result of his ineffectiveness failed to properly and timely file a Notice of Appeal in the instant matter.” Months later, he filed another pro

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se notice of appeal and a motion for appointment of appellate counsel. New counsel was appointed to represent Albright in a hearing pursuant t Ortiz, 230 Kan. 733. Instead of proceeding with a hearing, however, the district court approved an “Agreed Order Allowing Docketing of Appeal Out of Time,” in which the parties stipulated that Albright “would present evidence at a State v. Ortiz hearing that he was not fully informed of his appeal rights in this case.”

An appeal was docketed, but the Court of Appeals issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction due to Albright’s failure to file the notice of appeal within the 30-day limitation of K.S.A. 60-2103(a). After receiving the parties’ responses, the Court of Appeals dismissed Albright’s 60-1507
appeal, citing to Guillory, 285 Kan. 223.

Albright filed the petition for review, which we granted, giving us jurisdiction under K.S.A. 20-3018(b). Before us, the State filed a supplemental brief in which it stipulated for “purposes of this appeal that (a) Albright was furnished an attorney for the purpose of an appeal, (b) the attorney failed to perform, and (c) but for [appointed] counsel’s failure, Albright would have taken a timely appeal.”

ANALYSISPrinciples of Law/Standard of Review

Generally, when presented with a 60-1507 motion, a district court has three options. First, it may determine that the motion, files, and records of the case conclusively show that the movant is entitled to no relief, in which case it will summarily deny the motion without appointing counsel. Second, the court may determine from the motion, files, and records that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the movant. Third, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and records, and then appoint counsel and hold a preliminary hearing to determine whether in fact the issues in the motion are substantial Trotter v. State, 288 Kan. 112, Syl. ¶ 13, 200 P.3d 1236 (2009); Bellamy v. State, 285 Kan. 346, 353,

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172 P.3d 10 (2007). In this case, the district court selected the third option.

Regardless of which option is followed, a request for postconviction relief filed under K.S.A. 60-1507 is a civil proceeding and is governed by the rules of civil procedure. Supreme Court Rule 183(a) ( 2010 Kan. Ct. R. Annot. 255); State v. Richardson, 194 Kan. 471, 472-73,399 P.2d 799 (1965). Accordingly, the procedure for appeal of a judgment in a 60-1507 proceeding is found in K.S.A. 60-2103(a), which governs appeals in civil cases and includes the requirement that a notice of appeal must be filed within 30 days from the entry of judgment. In this case, the parties agree that Albright’s notice of appeal was filed after the 30-day deadline.

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. See Patton, 287 Kan. at 206; State v. Legero, 278 Kan. 109, 111, 91 P.3d 1216 (2004); see also Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 752, 199 P.3d 781 (2009) (parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel). There are exceptions to this rule, however. See, e.g., K.S.A. 60-2103(a) (recognizing exception if party failed to learn of judgment because of “excusable neglect”); Schroeder v. Urban, 242 Kan. 710, 713-14, 750 P.2d 405 (1988) (recognizing “unique circumstances” exception if an untimely filing was result of good faith reliance on court’s error in extending time for filing appeal when it had no authority to do so) Brown, 278 Kan. at 483-85 (recognizing ineffective assistance of appointed counsel exception in 60-1507 proceeding by applying Ortiz
exceptions); cf. Ortiz, 230 Kan. at 735-36 (recognizing limited exceptions if criminal appeal is untimely filed). Albright seeks application of one or more of these exceptions or the extension of an exception to cover his situation.

The issues of whether an exception will be recognized in this situation and, more generally, whether there is subject matter jurisdiction present questions of law that are subject to unlimited review. A question of subject matter jurisdiction may be raised at any time by a party or by a court, including an appellate court. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009), cert. denied 130 S. Ct. 3410 (2010); Patton, 287 Kan. at 205.

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Consequently, it was appropriate for the Court of Appeals to question whether it had subject matter jurisdiction. Albright does not dispute that procedure, but he argues the Court of Appeals erred in applyin Guillory, 285 Kan. 223, to his appeal and in failing to recognize the application of the exceptions recognized in Ortiz, 230 Kan. 733, and applied in Brown, 278 Kan. 481. The State also questions whether Guillory
controls this appeal, but it disputes Albright’s contention that th Ortiz exceptions apply to 60-1507 appeals, and it argues that our decision in Patton, 287 Kan. 200, brings the holding in Brown into question. The State points out that we must also consider the analysis i Kargus, 284 Kan. 908, and determine whether it has any application.

Because Albright seeks the application of the Ortiz exceptions, we begin our discussion with that case and will then discuss how Guillory, Brown, Patton, and Kargus impact the application of the Ortiz exceptions to these facts.

Ortiz

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. Ortiz, 230 Kan. at 735-36; se State v. Phinney, 280 Kan. 394, Syl. ¶ 3, 122 P.3d 356 (2005).

Ortiz does not directly support Albright’s argument, however, because, under its facts, the holding applies to direct appeals of a criminal defendant. The decision does not answer the question of whether an exception applies if an untimely notice is filed in a collateral attack
on a criminal conviction that is brought by a civil petitioner, such as in this 60-1507 action. Hence, for the Ortiz exceptions to apply, we must extend the exceptions to 60-1507 actions in which counsel has been appointed to represent

“[a] prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution or laws

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of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” K.S.A. 60-1507(a).

Albright suggests that, like a defendant in a criminal case, a prisoner who seeks relief from a criminal judgment is entitled to effective assistance of appointed counsel and, if appointed counsel fails to meet this obligation, the prisoner has a due process right to continue an appeal.

Albright’s argument highlights a divide that is created by K.S.A. 22-4506(b) and Supreme Court Rule 183(m), the provisions authorizing the appointment of counsel for some 60-1507 movants but not others. K.S.A. 22-4506(b) limits the right to appointed counsel to those cases in which the district court finds that the 60-1507 motion “presents substantial questions of law or triable issues of fact and if the petitioner or movant has been or is thereafter determined to be an indigent person.” Rule 183(m) extends that right to an appeal from a 60-1507 judgment, stating: “If a movant desires to appeal and contends he or she is without means to employ counsel to perfect the appeal, the district court shall, if satisfied that the movant is an indigent person, appoint competent counsel to conduct such appeal.” (2010 Kan. Ct. R. Annot. 257).

Albright argues the extension of the Ortiz exceptions to cases in which a 60-1507 movant has appointed counsel was recognized in Brown, 278 Kan. 481.

Brown

As Albright points out, Brown, like Albright, was provided with appointed counsel by the district court after Brown filed a pro se 60-1507
motion alleging ineffective assistance of trial counsel. After appointing counsel, the district court held a nonevidentiary hearing and denied the motion. Brown was not aware of any of the district court’s actions because appointed counsel failed to inform Brown of his appointment, of the hearing, of the court’s decision, or of the right to appeal. Further, counsel did not file an appeal. Brown, 278 Kan. at 482.

Over 2 years later, Brown learned of the outcome of his case and filed an untimely appeal, along with a motion asking the district

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court to permit the appeal. The district court denied the motion, citin Robinson v. State, 13 Kan. App. 2d 244, Syl. ¶ 4, 767 P.2d 851 rev. denied 244 Kan. 738 (1989) (holding there is no constitutional right to counsel or the effective assistance of counsel in a 60-1507 proceeding and, therefore, dismissal of the action because counsel failed to timely perfect appeal does not violate due process).

On appeal Brown argued “he should be allowed to file the appeal out of time pursuant to notions of due process and fundamental fairness and pe State v. Ortiz, 230 Kan. 733.” Brown, 278 Kan. at 482-83. In response, the State argued that Ortiz did not apply and that there is no constitutional right to effective assistance of counsel in 60-1507
motions.

In sorting out these contentions, the Brown court acknowledged there is no constitutional right to the assistance of counsel in a 60-1507
proceeding because a 60-1507 proceeding is a civil action, not criminal, and the Sixth Amendment to the United States Constitution applies only to criminal proceedings. Nevertheless, K.S.A. 22-4506(b) grants a statutory right to counsel in some 60-1507 proceedings, and the court considered whether that statutory right included the right to effective assistance of counsel. The court referred to K.S.A. 22-4522(e)(4), which requires the Board of Indigents’ Defense Services to adopt rules and regulations that establish qualifications, standards, and guidelines for public defenders, appointed counsel, and contract counsel, and thereby suggests standards of competence are required for counsel. Brown, 278 Kan. at 484. In addition, the Brown court looked to other jurisdictions where courts held that some standard of competence is required by appointed counsel and quoted the following from the Tenth Circuit Court of Appeals:

“`Although the right to counsel in a civil case is not a matter of constitutional right under the Sixth Amendment, counsel should be appointed in post conviction matters when disposition cannot be made summarily on the face of the petition and record. When counsel is so appointed he must be effective and competent. Otherwise, the appointment is a useless formality.`” (Emphasis added.) Brown, 278 Kan. at 484
(quoting Cullins v. Crouse, 348 F.2d 887, 889 [10th Cir. 1965]).

The Brown court was persuaded by this analysis and affirmatively declared that Brown had a right to the effective assistance of

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his 60-1507 appointed counsel. Further, the court concluded that appointed counsel’s failure to timely notify Brown of an adverse decision in the 60-1507 proceeding and of the right to appeal that decision resulted in the denial of Brown’s statutory right to effective assistance of counsel, entitling him to take his appeal out of time. In so holding, this court overruled any contrary language in Robinson, 13 Kan. App. 2d 244, or its progeny. Brown, 278 Kan. at 484-85.

Guillory

Three years later, however, this court denied another 60-1507 movant the right to file an untimely appeal. In Guillory, 285 Kan. 223, which is the decision relied on by the Court of Appeals in dismissing Albright’s appeal, the court ruled that the Ortiz exceptions did not save Guillory’s out-of-time appeal.

Relying on this holding, the Court of Appeals in this case issued an order to show cause why Albright’s appeal should not be dismissed. In the order, the Court of Appeals stated:

“The court notes the April 29, 2009, order in which the parries agreed to accept the untimely notice of appeal as timely filed, on the theory that Appellant’s counsel failed to perfect his appeal. However, where a defendant files an untimely appeal from the denial of a K.S.A. 60-1507 motion, the exceptions of State v. Ortiz are inapplicable and the appeal must be dismissed. Guillory v. State, 285 Kan. 223, Syl. ¶ 3, 170 P.3d 403 (2007).”

Albright argues that this statement of the Guillory holding is overly broad because it ignores the facts of Guillory, specifically that Guillory was not represented by appointed counsel. The State agrees. Albright further argues the facts of this case and of Brown are distinguishable from Guillory because a district court appointed counsel to represent Brown and Albright.

As Albright notes, Guillory presented a different situation from Brown
because Guillory acted as a pro se petitioner throughout the district court proceeding and did not have counsel to file an appeal when the district court entered a summary denial of Guillory’s 60-1507 motion i.e., a denial that occurred without the appointment of counsel or a hearing. Nevertheless, Guillory, like Brown, contended that his case fell within the first Ortiz exception

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(failure to be informed of his right to appeal). He asserted that the principles of fundamental fairness require that a 60-1507 movant who has not been provided with appointed counsel should either be informed of the right to appeal by the court or be permitted to appeal the denial out of time. Albright makes the same argument.

The Guillory court clearly rejected the notion that a 60-1507 movant can rely on the first Ortiz exception in order to file an untimely appeal. Guillory, 285 Kan. 223, Syl. ¶ 3. The Guillory court explained:

“A fatal flaw in Guillory’s argument is that the first Ortiz exception, excusing an untimely notice of appeal where the defendant was not informed of the right to appeal, was based on the fact that a criminal defendant has a statutory right to be advised of his or her right to a direct appeal. K.S.A. 22-3424(f) requires the sentencing court to inform criminal defendants of the right to appeal. See Phinney, 280 Kan. at 402 (discussing K.S.A. 22-3424[f], which requires trial court to advise defendant in a criminal case of right to appeal, and noting State v. Willingham, 266 Kan. 98, 100-01, 967 P.2d 1079
[1998], and Ortiz indicate fundamental fairness requires that criminal defendant be advised of rights to direct appeal). In contrast, there is no statutory requirement that the district court advise a K.S.A. 60-1507 petitioner of the right to appeal the decision on his or her petition.” Guillory, 285 Kan. at 228.

Consequently if Albright’s argument is founded on the first Ortiz
exception only, the Court of Appeals was correct in dismissing this appeal. But it is not. Before us, Albright’s counsel clarified that, although reasserting his request that this court recognize that a district court has a duty to inform a 60-1507 movant of the right to appeal, Albright also relies on the third Ortiz exception (counsel failed to perfect and complete an appeal). According to Albright, he had presented this issue to the Court of Appeals through (1) his focus on ineffective assistance of appointed counsel in his February 2009 pro se motion and (2) his contention there is “prima facie” evidence of ineffective assistance of appointed counsel. He further argues tha Guillory did not address the third Ortiz exception. Rather, the Guillory
court drew no conclusion regarding the rights of a 60-1507 movant who has appointed counsel. In that regard, he argues, the Guillory court did not overrule Brown’s conclusion that a 60-1507 movant who had appointed counsel had

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the right to file an out-of-time appeal as a remedy for appointed counsel’s deficient conduct.

We agree with these arguments. Contrary to the Court of Appeals’ conclusion in this case, the Guillory court did not reject the potential application of the third Ortiz exception in cases where the district court had determined that the 60-1507 movant had met the threshold to have counsel appointed. In fact, the Guillory court went out of its way to distinguish Brown by noting that “at the heart” of the Brown court’s reasoning was the notion that, under statutory mandate, appointed counsel must provide at least minimally competent assistance. Guillory, 285 Kan. at 228. The Guillory court reasoned the same consideration could not apply to a pro se 60-1507 movant, such as in Guillory’s case. Th Guillory court reiterated that there is no statutory right to counsel at the district court level for indigent 60-1507 movants “until they meet the threshold showing of substantial legal issues or triable issues of fact.” Guillory, 285 Kan. at 228. A pro se 60-1507 movant who fails to meet this threshold does have a right to appointment of counsel on appeal “but not until after a notice of appeal has been filed.” Guillory, 285 Kan. at 228-29; see Supreme Court Rule 183(m). Thus, the court indirectly confirmed that the second Ortiz exception could not apply — there is no obligation to appoint appellate 60-1507 counsel unless counsel had been appointed for purposes of the proceedings in the district court or until after the notice of appeal has been filed. As far as the filing of a timely notice of appeal is concerned, a pro se 60-1507
movant is “in the same position as all other pro se civil litigants and is required to be aware of and follow the rules of procedure that apply to all civil litigants, pro se or represented by counsel.” Guillory, 285 Kan. at 229. Consequently, this court concluded it had no jurisdiction to consider Guillory’s untimely appeal from the district court’s summary denial of the 60-1507 motion. The appeal was dismissed Guillory, 285 Kan. at 229.

Although the Guillory court did not specifically say its decision had no impact on the application of the third Ortiz exception or the portion of the Brown decision that discussed the impact of counsel’s deficient performance in not filing an appeal, the court’s

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efforts to distinguish Brown suggest that its holding regarding the thir Ortiz exception has no application to cases where counsel was appointed. Rather, after the Guillory decision, Brown continues to be potentially applicable to the third Ortiz exception. Albright met the threshold for having and did have appointed counsel, so Guillory does not foreclose the possibility that he has a remedy under the third Ortiz exception.

Patton

The State does not dispute that conclusion but argues Brown was undercut by the subsequent decision in State v. Patton, 287 Kan. 200, 195 P.3d 753 (2008), which it argues “changes the analysis.”

Essentially, the Patton decision clarified the parameters of the Ortiz
exceptions and defined the process for analyzing whether Ortiz mandates an out-of-time appeal in direct appeals from a criminal judgment. The court emphasized that “[w]e set out three narrowly defined, truly exceptional circumstances, when that remedy takes the form of permission for a late direct appeal.” Patton, 287 Kan. at 217. This limitation to direct appeals means that the decision cannot be read to expressly overrule any decisions relating to postconviction proceedings, includin Guillory or Brown. Nevertheless, the State argues that the decision undercuts the application of Ortiz to statutory procedures — such as this 60-1507 action — because the Patton court found that each Ortiz exception was rooted in the constitution. The Patton court explained:

“It is evident to us today that what have come to be known in Kansas as the three ‘Ortiz exceptions’ are grounded not only in fundamental fairness . . . but in the Sixth Amendment right to counsel. The first of the exceptions — applicable when a defendant was not informed of the right to appeal — goes to procedural due process alone. The second and third exceptions — applicable when a defendant was not furnished an attorney to perfect an appeal or was furnished an attorney for that purpose who failed to perfect and complete an appeal — go to the right of counsel and effectiveness of counsel.” Patton, 287 Kan. at 218-19.

As for the first Ortiz exception (failure to be informed of the right to appeal), based on procedural due process, Patton clarified that a criminal defendant may qualify to take a late appeal “if he

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or she has been denied basic procedural due process, i.e., timely and reasonable notice and an opportunity to be heard.” Patton, 287 Kan. at 219. The Patton court went on to describe three Kansas statutes providing specific procedural safeguards of the right to appeal by certain criminal defendants. See K.S.A. 22-3210(a)(2) (district court accepting felony guilty or nolo contendere plea must inform criminal defendant of his or her waiver of right to appeal any resulting conviction); K.S.A. 22-3424(f) (at sentencing, district court must inform criminal defendant of his or her right to appeal the conviction and right to appeal in forma pauperis
if unable to pay costs of an appeal); K.S.A. 22-4505 (district court must inform indigent criminal defendant of right to appeal the conviction and right to have appointed counsel and transcript of trial record for purposes of appeal). Patton indicated that due process is denied by the district court’s failure to abide by these statutes as they have been interpreted by earlier Kansas case law. None of these statutes pertain to postconviction appeals of 60-1507 decisions.

Therefore, with regard to the first Ortiz exception, Patton does not overrule Guillory or change Guillory’s conclusion that “there is no statutory requirement that the district court advise a K.S.A. 60-1507
petitioner of the right to appeal the decision on his or her petition.”Guillory, 285 Kan. at 228. If anything, the Patton analysis reaffirms that the first Ortiz exception is unavailable to a 60-1507 movant.

Regarding the second Ortiz exception (defendant not furnished with counsel to perfect an appeal), the Patton court clarified the exception is based on the right to counsel under the Sixth Amendment to the United States Constitution and “applies only to defendants who were indigent when they desired to take a timely appeal.”Patton, 287 Kan. at 223. The court recognized that a criminal defendant who had appointed counsel at the district court level is entitled to have appellate counsel appointed. The court explained that a criminal defendant who had retained counsel through sentencing proceedings but can no longer afford to retain counsel for his or her direct appeal must make a timely motion for appointment of appellate counsel.

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Nothing in Patton’s discussion of the second Ortiz exception changed Kansas precedent holding that the Sixth Amendment right to counsel does not apply to a 60-1507 motion. See Robertson v. State, 288 Kan. 217, 228, 201 P.3d 691 (2009) (no constitutional right to effective assistance of counsel in a 60-1507 action); Brown v. State, 278 Kan. 481, 483, 101 P.3d 1201 (2004) (same); Taylor v. State, 251 Kan. 272, 279-80, 834 P.2d 1325 (1992) (no constitutional right to counsel in 60-1507
proceeding), disapproved on other grounds State v. Rice, 261 Kan. 567, 932 P.2d 981 (1997). Nor does Patton change the fact that under certain circumstances, postconviction petitioners are statutorily entitled to have counsel appointed to represent them. See K.S.A. 22-4506(b); Supreme Court Rule 183(m) (2010 Kan. Ct. R. Annot. 255).

As for the third Ortiz exception (counsel failed to perfect and complete an appeal), based on the ineffective assistance of counsel Patton reiterated that a late appeal is allowed if a defendant was furnished counsel for the purpose of an appeal or has retained counsel but counsel failed to perform. See Wilkins v. State, 286 Kan. 971, 981, 190 P.3d 957 (2008) (Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel). The third exception does not focus on whether counsel has been assigned to a case through any particular mechanism but “on whether that lawyer performs up to a minimu constitutional standard once that assignment is made.” (Emphasis added.)Patton, 287 Kan. at 223-24. If counsel has failed to file or perfect a criminal defendant’s direct appeal, prejudice is presumed, but the defendant must still demonstrate that he or she would have taken a timely appeal. Patton, 287 Kan. at 225.

As the State argues in this case, the cited authorities and references to a constitutional dimension indicate the Sixth Amendment is the source of the third Ortiz exception, and the Sixth Amendment does not apply in a civil proceeding. Hence, the State makes a valid point that Brown’s
reliance on Ortiz is called into question by Patton.

In response, Albright argues that the Patton court did not intend to limit the application of the third Ortiz exception to the Sixth Amendment
right to counsel. Any legal representation of a litigant,

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under either constitutional authority or statutory authority, must be effective, he argues. Therefore, if appointed counsel in 60-1507
proceedings fails to appeal the district court’s denial of the 60-1507
motion, an untimely appeal should be permitted under the third Ortiz
exception.

We agree with Albright that 60-1507 movants who have counsel are entitled to the effective assistance of that counsel, and if counsel’s performance was deficient for failure to file a timely appeal, as a remedy a 60-1507 movant should be allowed to file an out-of-time appeal. We do not agree, however, that it is the third Ortiz exception that allows an appellate court to accept jurisdiction. We reach these conclusions through several steps of analysis.

First, Patton does not discuss Brown much less overrule it. Even afte Patton, this court has upheld the declaration in Brown that effective assistance of counsel is required where a postconviction petitioner is represented by appointed counsel. Robertson v. State, 288 Kan. at 229
(citing Brown for support in holding that counsel representing defendant on motion for postconviction relief was not authorized to act as an objective assistant to the court or to argue against his client’s position). In fact, we once again emphasized that “[a]ppointment of counsel in a K.S.A. 60-1507 proceeding should not be a useless formality.” Robertson, 288 Kan. at 228. Indeed, today, we reaffirm this conclusion.

Second, even though the doctrinal basis for the third Ortiz exception is the Sixth Amendment right to counsel, a right that does not attach in Albright’s civil case, the rationale in Brown accounted for this doctrinal distinction but concluded that, regardless of the source of the right, a right to counsel, to be meaningful, necessarily includes the right to effective assistance of counsel. Hence, Patton’s implicit conclusion that Ortiz was not available to someone in Brown’s (or Albright’s) situation does not mean the right to effective assistance of 60-1507 counsel has been eviscerated.

Third, albeit before the decision in Patton, we extended the Brown
rationale by applying it to other statutory procedures, specifically, to the petition for review process. See, e.g., Kargus v. State, 284 Kan. 908, Syl. ¶ 1, 169 P.3d 307 (2007) (“A defendant who has been convicted of a felony and has appealed directly from

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that conviction has a statutory right to effective assistance of counsel when filing a petition for review in the direct appeal.”); Swenson v. State, 284 Kan. 931, Syl. ¶ 1, 169 P.3d 298 (2007) (“Appellate counsel’s filing of a petition for review 31 days after a Court of Appeals’ decision falls below an objective standard of reasonableness and effectively denies a defendant a statutory right to counsel. As a remedy, appellate counsel is allowed to file a petition for review out of time.”). Pattern discussed Kargus, noting the Kargus decision “exposed the possibility of analytical tension and confusing overlap among Ortiz” and decisions regarding the test for determining whether counsel had been ineffective. Patton, 287 Kan. at 216. Then, in discussing the thir Ortiz exception, the Pattern court adopted the view we had taken i Kargus regarding the test to be employed to determine whether a court would apply an exception to the rule that an appeal (or, in Kargus’ circumstance, a petition for review) must be timely filed.

Kargus

In Kargus, we dealt with a situation similar to this case in that there is no constitutional right to counsel for the purpose of filing a petition for review of an unfavorable Court of Appeals’ decision, just as there is no constitutional right to counsel for a postconviction 60-1507
proceeding. Kargus, 284 Kan. at 911-12; see, e.g., Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S. Ct. 1300, 71 L. Ed. 2d 475 (1982) (no Sixth Amendment right to counsel in discretionary appeals); Foy v. State, 17 Kan. App. 2d 775, 844 P.2d 744, rev. denied 252 Kan. 1091 (1993) (no constitutional right to counsel in petition for review process allowed by K.S.A. 20-3018[b] seeking this court’s discretionary review of an unfavorable decision by the Court of Appeals). Nevertheless, in Kargus we extended Brown and recognized there is a right to effective assistance of counsel, even where the right to counsel is based on a statute, not the Constitution. Kargus, 284 Kan. at 916 (statutory “right to counsel in the direct appeal of a felony conviction extends to all levels of the state appellate process, including the filing of the petition for review” and that right “includes the right to effective assistance of counsel”).

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That right to effective assistance of counsel did not mean, however, that the Ortiz exceptions applied. In fact, we found that the thir Ortiz exception did not apply because the doctrinal basis for it was both constitutionally and statutorily distinct from Kargus’ situation in which appointed counsel failed to seek this court’s discretionary review of the Court of Appeals’ decision. Nevertheless, we concluded it was appropriate to apply the same test the United States Supreme Court had applied in a Sixth Amendment setting to determine if appointed counsel had represented his or her client effectively. Kargus, 284 Kan. at 928. This test was stated in Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000).

In Flores-Ortega, the United States Supreme Court was faced with an ineffective assistance of counsel claim arising after appointed counsel failed to file a direct criminal appeal. The Court concluded that the traditional two-prong test used to determine the merits of an ineffective assistance of counsel claim, which are stated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984), applied in a situation where counsel’s performance resulted in the forfeiture of a proceeding. Under th Strickland test, it must be established that counsel’s conduct (1) fell below an objective standard of reasonableness and (2) resulted in prejudice to the defendant. Strickland, 466 U.S. at 687; see Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting th Strickland standard).

But the Flores-Ortega Court also determined that the Strickland test had to be applied in a somewhat different way when a procedure had been forfeited. Addressing the first prong, the Court explained:

“We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. See Rodriquez v. United States, 395 U.S. 327, 89 S. Ct. 1715, 23 L. Ed. 2d 340
(1969); cf. Peguero v. United States, 526 U.S. 23, 28, 119 S. Ct. 961, 143 L. Ed. 2d 18 (1999) (‘[W]hen counsel fails to file a requested appeal, a defendant is entitled to [a new] appeal without showing that his appeal would likely have had merit”). This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel’s failure

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to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant’s wishes. At the other end of the spectrum, a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently. [Citation omitted.]” Flores-Ortega, 528 U.S. at 477.

Hence, the Court concluded that when counsel failed to file an appeal, the inquiry of whether counsel’s conduct fell below an objective standard did not need to focus on whether the appeal had been filed but on whether counsel discussed the right to appeal with his or her client and whether the client requested an appeal.

Likewise, the second prong of the Strickland test — determining whether the defendant was prejudiced — required some adjustment. Th Flores-Ortega court explained that courts applying Strickland

“`normally apply a “strong presumption of reliability” to judicial proceedings and require a defendant to overcome that presumption,’ [citations omitted], by `show[ing] how specific errors of counsel undermined the reliability of the finding of guilt.’ [Citation omitted.] Thus, in cases involving mere `attorney error,’ we require the defendant to demonstrate that the errors “actually had an adverse effect on the defense.’ [Citations omitted.]” Flores-Ortega, 528 U.S. at 482.

This presumption and the requisite showing of a different outcome could not be applied, the Flores-Ortrga court concluded, when counsel failed to file an appeal. The Court explained:

“Today’s case is unusual in that counsel’s alleged deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself. According to respondent, counsel’s deficient performance deprived him of a notice of appeal and, hence, an appeal altogether. Assuming those allegations are true, counsel’s deficient performance has deprived respondent of more than a fair judicial proceeding; that deficiency deprived respondent of the appellate proceeding altogether. . . . [T]he complete denial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice because `the adversary process itself has been rendered `presumptively unreliable.’ [Citation omitted.] The even more serious denial of the entire judicial proceeding itself, which a defendant wanted at the time and to which he had a right, similarly demands a presumption of prejudice. Put simply, we cannot accord any ` “presumption of reliability,`” [citation omitted], to judicial proceedings that never took place.” Flores-Ortega, 528 U.S. at 483.

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As a result, the Court reasoned, a presumption of prejudice should be applied to situations where a defendant “demonstrate[s] that there is a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.”Flores-Ortega, 528 U.S. at 484.

In Kargus, we adapted the Flores-Ortega standard to the situation where appointed counsel failed to file a petition for review. Kargus, 284 Kan. at 928. The Flores-Ortega approach was adopted, without need for adaptation, in Patton as the standard for applying the third Ortiz
exception. Patton, 287 Kan. at 224-25.

Hence, although the Patton analysis was premised on a Sixth Amendment
right to counsel and Kargus on a statutory right to counsel, both recognized that, if the law grants a right to counsel, then effective assistance of counsel must be provided. As Brown concluded, no reason exists to carve out a weaker right to counsel in a 60-1507 action, which, as interpreted in Supreme Court Rule 183, may include the right to appellate counsel in certain circumstances. Rather, if a district court appoints counsel to represent a 60-1507 movant after finding the motion presents substantial questions of law or triable issues of fact and the movant is indigent, the movant has a right to receive effective assistance of counsel. Brown, 278 Kan. at 483-84.

Further, as analyzed in Patton and Kargus, regardless of whether that right is based on the constitution, statute, or both, if it is alleged that appointed counsel’s deficiencies resulted in the loss of the ability to pursue a procedure, the Flores-Ortega standard is to be applied. Under that standard, as modified for a 60-1507 proceeding: (1) If the movant requested that an appeal be filed and it was either not filed at all or was not timely filed, appointed counsel was ineffective and the untimely appeal should be allowed; (2) a movant who explicitly told his or her appointed counsel not to file an appeal cannot later complain that, by following instructions, counsel performed deficiently; or (3) in other situations, such as where appointed counsel has not consulted with the movant or the movant’s directions are unclear, the movant must demonstrate a reasonable probability that, but for appointed counsel’s deficient failure to either consult with the movant or act on the movant’s

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wishes, an appeal would have been filed. The movant need not show that a different result would have been achieved but for appointed counsel’s performance.

Applying a similar test in Kargus, we remanded to the district court for a determination of which of these circumstances applied and whether an out-of-time filing of a petition for review would be an available remedy. Here, a remand to the district court is not necessary because, recognizing the potential that the reasoning of Kargus might apply, the State, in its appellate brief, indicated its “willing[ness] to stipulate for the purposes of this appeal that (a) Albright was furnished an attorney for the purpose of an appeal, (b) the attorney failed to perform, and (c) but for counsel’s failure, Albright would have taken a timely appeal.” Given this stipulation, we can conclude Albright’s appointed counsel performed deficiently in failing to file a 60-1507
appeal. As in Kargus, we recognize that the remedy for appointed counsel’s deficient performance is to accept subject matter jurisdiction of Albright’s appeal.

Consequently, we reverse the Court of Appeals’ order denying jurisdiction and remand to the Court of Appeals for consideration of the merits of Albright’s appeal of the district court’s denial of his K.S.A. 60-1507 motion.

Reversed and remanded with directions to the Court of Appeals.

BUSER, J., assigned.[1]

[1] REPORTER’S NOTE: Pursuant to the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution, Judge Michael B. Buser of the Kansas Court of Appeals, was appointed to hear case No. 102,454 to fill the vacancy on the court created by the retirement of Chief Justice Robert E. Davis.

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