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NOT DESIGNATED FOR PUBLICATION

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 117,541

STATE OF KANSAS,

Appellee,

v.

CHRISTOPHER J. DUNN,

Appellant.

Review of the judgment of the Court of Appeals in an unpublished order filed June 15, 2017. 

Appeal from Labette District Court; ROBERT J. FLEMING, judge. Opinion filed May 31, 2019. Judgment 

of the Court of Appeals dismissing the appeal is reversed. Remanded with directions. Appellate 

jurisdiction is retained. 

Kai Tate Mann, of Kansas Appellate Defender Office, was on the petition for review for 

appellant.

Stephen P. Jones, county attorney, was on the response to order to show cause for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Christopher J. Dunn seeks credit against his prison sentence for time 

he spent in jail awaiting disposition of his case. At the sentencing hearing, the district 

court ordered the jail time to be credited in the journal entry. Despite this order, after the 

time for an appeal from sentencing had passed, the court filed a journal entry of judgment

that failed to reflect the credit as ordered at the sentencing hearing. Dunn filed a pro se 

motion for jail-time credit, which the district court denied. Dunn appealed, but he did so 

after the deadline for filing an appeal from either the order of sentencing or the order 
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denying his motion. The Court of Appeals issued an order to show cause why the appeal 

should not be dismissed as untimely. Dunn responded, arguing the judicial exceptions to 

the general bar of untimely appeals recognized in State v. Ortiz, 230 Kan. 733, 640 P.2d 

1255 (1982), applied and allowed him to bring an out-of-time appeal. The Court of 

Appeals dismissed the appeal without explaining why it was rejecting Dunn's arguments. 

We summarily vacate that order, concluding Dunn has sufficiently alleged the potential 

for one or more Ortiz exceptions to apply. But factual questions prevent our 

determination that an exception saves Dunn's late appeal from dismissal. We thus remand 

to the district court for further proceedings. 

FACTUAL AND PROCEDURAL BACKGROUND

Dunn pleaded no contest to one count of possession of cocaine with the intent to 

distribute. He did so based on a plea agreement in which the State agreed to dismiss 

multiple pending charges, support his motion for downward durational departure, and ask 

the district judge to award jail credit toward his sentence for Dunn's time spent in the

Labette County jail. According to the transcript of the sentencing hearing, the district 

judge granted Dunn's departure motion and ordered the requested jail-time credit. The 

attorneys informed the judge they had not yet calculated the number of jail credit days 

involved or the sentence begins date. These determinations were necessary because

judges journalize jail credit through the sentence begins date. If the judge allows a credit, 

the sentence begins date is not the date of sentencing. Instead, the judge and parties 

calculate the sentence begins date by starting with the sentencing date and then counting 

back in time by the number of days of awarded jail credit. By statute, the sentencing 

judge must include the sentence begins date in the sentencing journal entry. See K.S.A. 

2018 Supp. 21-6615. 
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Dunn's deadline for appealing his sentence expired before the journal entry of 

sentencing was filed. See K.S.A. 2018 Supp. 22-3608(c) (requiring appeal to be filed 

within 14 days of sentencing hearing). But during the 14-day period, Dunn had no 

apparent reason to file an appeal because he had entered a plea and the judge had 

sentenced him as he had requested. 

With the filing of the journal entry of sentencing more than a month later, things 

changed. The journal entry did not include credit for the 165 days from March 18, 2016,

to August 30, 2016, that Dunn had spent in the Labette County jail—days Dunn 

understood the district judge to have credited during the sentencing hearing. Dunn filed a 

pro se motion for jail credit. The district judge denied his motion. 

Dunn then filed a pro se notice of appeal, but he did so after the deadline had 

passed for either a timely direct appeal of his sentencing or a timely appeal of the order 

denying his motion for jail credit—both of which his notice of appeal seems to address. 

Dunn's pro se notice of appeal clearly indicates that Dunn appeals from the order denying 

his motion for jail credit and also seems to challenge the journal entry of sentencing as 

erroneous. Dunn also states in his notice of appeal that he was denied effective assistance 

of counsel because his court-appointed trial attorney failed "to adequately defend the best 

interest of the defendant and fail[ed] to properly represent the defendant by not notifying 

the court of the error in the jail time credit to be awarded." A day after Dunn filed his 

untimely notice of appeal, the district court appointed a different attorney to represent 

Dunn on appeal. That counsel docketed this appeal in the Court of Appeals, citing in the 

docketing statement K.S.A. 2018 Supp. 22-3601(a) (appeal from a final judgment) and 

K.S.A. 2018 Supp. 22-3602(a) (appeal from any judgment against the defendant) as the 

statutory authority for this appeal.
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Upon docketing, the Court of Appeals issued a show cause order requiring the 

parties to explain why Dunn's appeal should not be dismissed as untimely. In response, 

Dunn argued the Court of Appeals should allow his untimely appeal under one or more of 

the judicial exceptions to the general rule barring untimely appeals created in Ortiz, 

230 Kan. 733, Syl. ¶ 3, which we revisit below in our analysis. Dunn focused on the 

second Ortiz exception, which permits an untimely appeal when an indigent defendant is 

entitled to, but not furnished, an attorney to appeal. He supported his argument with an 

affidavit. (Some arguments therein can be construed to implicate the first exception as 

well. And later, before us, Dunn also asserted the third Ortiz exception might apply.) The 

State argued only that Dunn had to appeal within 14 days of sentencing. It did not address 

the timeliness of an appeal from the denial of Dunn's jail credit motion. The Court of 

Appeals noted the responses to its show cause order and summarily dismissed Dunn's 

appeal without remand for an evidentiary hearing and without a request for briefing. 

This court granted Dunn's petition for review under K.S.A. 20-3018(b), obtaining 

jurisdiction under K.S.A. 60-2101(b).

ANALYSIS

Before us, Dunn again asserts the Ortiz exceptions should be applied and this court 

should reinstate jurisdiction over his appeal. The lack of clarity in the Court of Appeals 

decision about why that court dismissed the appeal complicates our review. Additional 

complications arise because Dunn's pro se notice of appeal, while clearly appealing from 

the order denying his motion for jail credit, does not as clearly state he was appealing the 

sentencing order. Despite the lack of clarity, we can discern two tracks of analysis the 

Court of Appeals might have adopted. First, it might have concluded Dunn did not file 

the type of appeal to which we have applied the Ortiz exceptions. Second, it might have 

concluded Dunn had not established he should be allowed to bring his appeal out of time 
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under an Ortiz exception. Some background about Ortiz and its exceptions helps explain 

these possibilities. 

To reiterate, in Ortiz, this court recognized that fundamental fairness required 

exercising jurisdiction over an untimely direct appeal—that is, an appeal from a 

conviction and sentence—if one of three exceptions applied: (1) The sentencing court 

did not inform the defendant of the right to appeal; (2) the sentencing court did not 

appoint an attorney to pursue an appeal for an indigent defendant; or (3) the defendant's 

attorney failed to file and perfect the appeal. 230 Kan. at 735-36. In State v. Patton, 287 

Kan. 200, Syl. ¶¶ 4, 6, 9, 10, 195 P.3d 753 (2008), we explained the Ortiz exceptions are

based on procedural due process principles and the right to effective assistance of 

appointed counsel. The due process guarantee arises from K.S.A. 2018 Supp. 22-3424(f), 

which requires a sentencing judge to inform a defendant at sentencing of the right to 

appeal and the right for an indigent defendant to have an attorney appointed to take a 

desired appeal. See Patton, 287 Kan. at 219. Indigent defendants with appointed counsel 

have a right to receive adequate representation, including representation that will not 

result in the forfeiture of a proceeding such as an appeal. See Kargus v. State, 284 Kan. 

908, 911-16, 169 P.3d 307 (2007) (discussing right to have appointed counsel provide 

effective representation throughout all stages of direct appeals); Brown v. State, 278 Kan. 

481, 484, 101 P.3d 1201 (2004) (permitting K.S.A. 60-1507 petitioner to file appeal out 

of time from denial of his petition when counsel failed to inform the petitioner of 

counsel's appointment, of the hearing, of the judge's decision, or of petitioner's right to 

appeal). 

1. An Ortiz Exception May Apply.

Dunn's arguments implicate these interests because he asserts he was unaware of 

the statutory deadline, he had no attorney to file his appeal, and he was unable to file 
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personally an appeal within the time limit. Thus, if this appeal arises as a direct appeal, 

Dunn has alleged Ortiz exceptions, which if found valid, would allow a late appeal. 

Those exceptions may not apply if Dunn's appeal relates solely to his motion for 

jail credit, however. When a postconviction motion, such as a motion for jail credit, is at 

issue, no statute imposes a duty on the judge to inform the defendant of the right to 

appeal. Nor does any statute require a judge to appoint an attorney to bring a 

postsentencing motion. See State v. Hemphill, 286 Kan. 583, 591-92, 186 P.3d 777 

(2008) (holding "Ortiz [was] not the appropriate avenue for relief in" untimely appeal 

from postsentencing motion to withdraw plea); Guillory v. State, 285 Kan. 223, 228-29, 

170 P.3d 403 (2007) (holding Ortiz did not apply to appeal of K.S.A. 60-1507 motion

untimely filed).

Perhaps because Dunn filed his motion for jail credit and notice of appeal pro se

he has no claim of ineffective assistance of counsel arising from that portion of the 

proceeding. See Guillory, 285 Kan. at 229 (holding pro se litigants are not excused from 

requirement to be aware of and follow the rules of procedure, including filing a timely 

notice of appeal). But we note that some Court of Appeals panels have allowed Ortiz 

hearings when other defendants have filed untimely appeals from rulings on motions for 

jail credit. See, e.g., State v. Ramsey, No. 111,163, 2015 WL 6444242, at *1 (Kan. App. 

2015) (unpublished opinion) (appeal after remand for Ortiz hearing), rev. denied 304 

Kan. 1021 (2016); State v. Harbacek, No. 111,687, 2015 WL 3632321, at *2 (Kan. App. 

2015) (unpublished opinion) (same).

We need not resolve whether the Ortiz exceptions apply if Dunn's appeal depends 

solely on his motion for jail credit because we conclude this is a direct appeal. Our path 

to that conclusion begins with the general rule that Kansas appellate courts liberally 

construe pro se notices of appeal "'to assure justice in every proceeding.'" State v. Laurel, 
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299 Kan. 668, 673-74, 325 P.3d 1154 (2014); see Fuller v. State, 303 Kan. 478, 492-93, 

363 P.3d 373 (2015) (broadly reading notice of appeal to confer jurisdiction over multiple 

orders even though it explicitly identified only one order because the other orders were 

referenced in or related to the identified order and no one would be misled, surprised, or 

prejudiced). Liberally construed, Dunn's notice of appeal alleges: (1) his trial counsel 

was ineffective for failing to notify the district judge about the error in the jail credit 

awarded on the journal entry of sentencing; (2) he is statutorily entitled to that jail credit; 

(3) trial counsel had a duty to protect this statutory right; and (4) the failure to award jail 

credit renders his sentence illegal. These claims overlap with his motion for jail credit but 

also assert questions that are factually and legally distinguishable from those raised in his 

motion. These distinct claims convey his appeal is a direct appeal. Further, the docketing

statement cites K.S.A. 2018 Supp. 22-3601(a), relating to appeals from final judgment in 

a criminal case, as the basis for appeal. "The final judgment in a criminal case is the 

sentence. [Citation omitted.]" State v. Tafoya, 304 Kan. 663, 666-67, 372 P.3d 1247 

(2016). In other words, he raises issues arising on direct appeal from the sentence. And 

by citing Ortiz exceptions, he has put into play the possibility his direct appeal would be 

considered timely filed. 

2. Dunn Has Not Yet Established an Ortiz Exception; Remand Warranted

More specifically, Dunn argues he was not aware of the deadline for a direct

appeal and the district judge did not appoint an attorney to file an appeal. This argument 

could implicate the first and second Ortiz exceptions. He also argues the record is 

insufficient to determine whether the attorney who had represented him at sentencing 

failed to discuss the possibility of an appeal with him. As Dunn argues in his petition for 

review, this allegation might implicate the third Ortiz exception. 
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Because these allegations relate to the journal entry memorializing the sentence, 

we conclude they relate to Dunn's direct appeal and the Court of Appeals should have 

considered the exceptions. It may be that Dunn's arguments about the exceptions lack

merit. But it is premature to make that determination because the Ortiz exceptions raise

factual questions. And "[a]n appellate court does not weigh evidence to find facts." State 

v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009). Thus, a remand to district court for 

fact-finding is often necessary when a defendant raises the Ortiz exceptions on appeal. 

On occasion, however, we have held a remand is unnecessary when the record presents 

uncontroverted facts supporting an Ortiz exception. See, e.g., State v. Phinney, 280 Kan. 

394, Syl. ¶ 7, 122 P.3d 356 (2005) (holding remand to district court unnecessary where 

record on appeal factually and legally supports determination that Ortiz exception 

applies). But this is not such a case. Dunn's allegations rest largely on whether Dunn's 

trial counsel performed deficiently and upon communications (or lack thereof) between 

Dunn and his counsel about an appeal. These questions raise issues of fact about which 

the record on appeal is virtually silent. Thus, a remand for factual determinations is 

necessary. 

Dunn also raises questions of fact about whether his right to effective assistance of 

counsel was violated. When a defendant makes allegations of ineffective assistance of 

counsel for the first time on appeal, we may remand to the district court for findings of 

fact. State v. Van Cleave, 239 Kan. 117, 120, 716 P.2d 580 (1986). Dunn has not yet had 

an opportunity to make a request for a remand because his appeal was dismissed before 

any briefs had been filed. Nevertheless, we sua sponte determine a remand under Van 

Cleave is appropriate for reasons of judicial economy given the overlapping nature of 

these claims with the basis for the possible application of Ortiz exceptions.
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CONCLUSION

We, therefore, remand to the district court for the appointment of new counsel for 

Dunn and for further proceedings under Ortiz and Van Cleave. For judicial efficiency, we 

are not restricting the scope of remand to the Ortiz and Van Cleave issues only, however. 

Instead, we will allow the district court to consider any other issue raised by the parties. 

We take this step because our review reveals at least two potential issues that 

could cause Dunn's Ortiz and Van Cleave arguments to become moot. First, we note that 

Dunn's docketing statement shows his earliest possible release date is March 13, 2019. 

While we have not received notice of a change of custody, we recognize Dunn could 

have completed his sentence or could do so almost any day. Further, at least on the record 

before us, it appears a nunc pro tunc order could be appropriate and such an order might

render moot all issues. See K.S.A. 2018 Supp. 22-3504(2) ("Clerical mistakes in 

judgments, orders or other parts of the record and errors in the record arising from 

oversight or omission may be corrected by the court at any time and after such notice, if 

any, as the court orders."); State v. Potts, 304 Kan. 687, 707-08, 374 P.3d 639 (2016)

(holding district court must correct journal entry reflecting sentence different from one 

announced at sentencing hearing).

If these or other concerns do not render the Ortiz and Van Cleave issues moot, the 

district court should consider those issues and make the appropriate findings.

We also order the parties to file a copy of the district judge's final decision on 

remand in this court no later than 30 days after its entry.

If Dunn wishes to seek appellate review of any adverse decision from the district 

judge made upon remand, he may submit an amended notice of appeal within 14 days of
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the entry of that judgment. If he does so, he must also file in this court any other 

documents that would be required for docketing an appeal in the first instance under 

Supreme Court Rule 2.04(a)(1) (2019 Kan. S. Ct. R. 15). If Dunn wishes to terminate this 

appeal, a notice of such should be filed. 

Judgment of the Court of Appeals dismissing the appeal is reversed. The case is 

remanded with directions. Appellate jurisdiction is retained.