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NOT DESIGNATED FOR PUBLICATION

No. 124,282

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

MONTY J. BANISTER,

Appellant.

MEMORANDUM OPINION

Appeal from Sumner District Court; WILLIAM R. MOTT, judge. Opinion filed July 1, 2022. 

Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. 

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before HURST, P.J., BRUNS and GARDNER, JJ.

PER CURIAM: Monty Banister appeals from the district court's denial of his 

request to proceed with an untimely direct appeal of his criminal case. After the 

evidentiary hearing, the district court found Banister's motion meritless. In particular, the 

district court found that Banister was properly informed of his right to appeal as well as 

the deadline for filing an appeal. The district court also found that Banister had failed to 

request that his attorney file a notice of appeal on his behalf. Based on our review of the 

record, we conclude that the district court did not err in denying Banister's motion. Thus, 

we affirm the district court's decision.
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FACTS

A jury convicted Banister of aggravated battery, theft of a firearm, criminal 

possession of a firearm, and criminal damage to property. The underlying facts of these 

convictions are not material to the resolution of this appeal. On April 6, 2021, the district 

court sentenced Banister to 45 months in prison to be followed by 6 months in jail. 

At this sentencing hearing, the district court informed Banister that he had 14 days 

to appeal his convictions and sentences. The district court also advised Banister that he 

would get a "free attorney" to help him with his appeal. On May 5, 2021—nearly a month 

after the sentencing hearing—Banister evidently placed a pro se notice of appeal in the 

jail mail. The notice of appeal was ultimately filed in the district court on May 25, 2021.

The district court treated Banister's untimely notice of appeal as a motion for a 

hearing under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). At an evidentiary 

hearing held on June 21, 2021, the district court heard the testimony of both Banister and 

his trial attorney. Banister testified that he did not remember being advised of his right to 

appeal at the sentencing hearing. Nevertheless, the transcript of the sentencing hearing 

reveals that the district court informed Banister of his right to appeal and his deadline for 

doing so.

Banister also testified that he discussed an appeal with his trial attorney and 

believed he was going to file a notice of appeal. In addition, Banister testified about a 

letter and email he allegedly sent to his trial attorney between his trial and sentencing 

asking about his jail time credit and inquiring "about what's going on, if he did file and

what's going to happen? What I'm supposed to expect from all this?" However, Banister 

testified he did not discuss an appeal with his attorney at the sentencing hearing.
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Banister's attorney testified that his client never requested him to file a notice of 

appeal. Although the attorney agreed that he had received a letter from Banister 

postmarked April 30, 2021, it was not admitted into evidence by either party. Still, the 

attorney testified that Banister did not ask him to file a notice of appeal in the letter. 

Moreover, the attorney testified he did not receive any emails from Banister.

After hearing the evidence, the district court took the issue under advisement in 

order to read the transcript from the sentencing hearing. On July 12, 2021, the district 

court issued an order denying Banister's motion to appeal out of time. In doing so, the 

district court ruled: 

"[R]egarding the first Ortiz factor, the Court finds, subsequent to review the relevant 

transcript, that the Movant was properly and adequately advised of his right to appeal, 

and of the statutory timeframe set forth to perfect such appeal; regarding the second Ortiz

factor, the Court determines that trial counsel Matt Metcalf had been properly appointed 

for all aspects of trial level representation, including perfecting a notice of appeal, should 

he have been directed to do so by Mr. Banister; and finally, the Court found the testimony 

of Matthew Metcalf to be relevant and credible, and that Mr. Banister had not made a 

timely request to his trial counsel to perfect a notice of appeal."

Thereafter, Banister timely filed a notice of appeal from the district court's denial 

of his motion. 

ANALYSIS

On appeal, Banister contends that the district court erred in denying him relief 

under Ortiz. He argues that his trial attorney should have obtained a written waiver of his 

right to appeal and consulted with him regarding a possible appeal following the 

sentencing hearing. In response, the State argues that the district court appropriately 

considered the evidence presented at the motion hearing and found the testimony of 

Banister's trial attorney to be credible. 
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We review a district court's decision on whether an exception under Ortiz, 230 

Kan. 733, applies under a dual standard. First, we review the facts underlying the district 

court's ruling for substantial competent evidence. State v. Smith, 303 Kan. 673, 677, 366 

P.3d 226 (2016). "Substantial competent evidence is legal and relevant evidence a 

reasonable person could accept to support a conclusion. This court normally gives great 

deference to the factual findings of the district court. The appellate court does not 

reweigh evidence, assess the credibility of witnesses, or resolve conflicts in evidence."

State v. Talkington, 301 Kan. 453, Syl. ¶ 3, 345 P.3d 258 (2015). Second, we review the 

ultimate legal conclusion reached by the district court on those facts under a de novo

standard. Smith, 303 Kan. at 677.

A defendant's right to appeal is purely statutory. Neither the United States 

Constitution nor the Kansas Constitution guarantee a right to an appeal. See State v. 

Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016). Under K.S.A. 2020 Supp. 22-3608(c), a 

defendant has 14 days in which to file a notice of appeal and appeals filed past the 

statutory deadline generally result in dismissal for lack of jurisdiction. See Albright v. 

State, 292 Kan. 193, 197, 251 P.3d 52 (2011). But in Ortiz, the Kansas Supreme Court 

recognized several exceptions to the timeliness requirement.

In Ortiz, our Supreme Court recognized three specific exceptions that justify the 

filing of a notice of appeal out of time: (1) the defendant was not informed of his or her 

right to appeal; (2) the defendant was not furnished an attorney to pursue the appeal; or 

(3) the defendant was furnished an attorney who failed to perfect the appeal. State v. 

Patton, 287 Kan. 200, 206, 195 P.3d 753 (2008) (citing Ortiz, 230 Kan. at 735-36). Yet, 

these exceptions are "narrowly defined" and are reserved for "truly exceptional 

circumstances." Patton, 287 Kan. at 217. Here, Banister claims the first and third 

exceptions excuse his untimely appeal.
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First, Banister argues that the district court did not properly inform him of his right 

to appeal. He suggests that the district court should have told him that he "could appeal 

without paying the costs of the appeal nor did it inform [him] that he would be provided a 

free transcript for purposes of the appeal." He also suggests that the district court should 

have told him that his trial attorney was responsible for filing a timely notice of appeal or 

should have explained how to invoke his right to have appellate counsel appointed to 

represent him.

To the extent resolution of this issue requires interpretation of a statute, this panel's 

review is unlimited. State v. Stoll, 312 Kan. 726, 736, 480 P.3d 158 (2021). K.S.A. 2020 

Supp. 22-3424(f) requires that the district court "shall advise the defendant of the 

defendant's right to appeal and of the right of a person who is unable to pay the costs of 

an appeal to appeal in forma pauperis." Under K.S.A. 22-4505(a): 

"When a defendant has been convicted in the district court of any felony, the 

court shall inform the defendant of such defendant's right to appeal the conviction to the 

appellate court having jurisdiction and that if the defendant is financially unable to pay 

the costs of such appeal such defendant may request the court to appoint an attorney to 

represent the defendant on appeal and to direct that the defendant be supplied with a 

transcript of the trial record."

In this case, the transcript of the sentencing hearing confirms that the district court 

informed Banister: "You may appeal the verdict, sentencing, any and all rulings of the 

law that you believe are contrary to law. And you have fourteen days from today in 

which to do that and a free attorney to help you with that."

In Patton, 287 Kan. at 219, our Supreme Court held: "K.S.A. 22-4505 requires 

the district judge to inform an indigent felony defendant of the 'right to appeal . . . [a] 

conviction' and the right to have an attorney appointed and a transcript of the trial record 

produced for that purpose." While the statute requires a defendant be told of the right to 
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appeal and the right to have an attorney appointed to represent them on appeal, there is no 

requirement that the district court inform the defendant that it must produce a transcript to 

accomplish the appeal.

In Patton, our Supreme Court clarified the district judge must inform a defendant 

at sentencing that (1) a right to appeal exists; (2) the time in which to bring the appeal; 

and (3) "if the defendant is indigent, an attorney will be appointed for the purpose of 

taking any desired appeal." 287 Kan. at 220. Furthermore, it is the defendant's evidentiary 

burden to show "that the district judge failed to communicate one or more of these three 

pieces of information at sentencing" and "demonstrate deficiency from the transcript of 

the sentencing hearing." 287 Kan. at 220.

Here, we find that the district court complied with the statutory appeal notice 

requirements. The district court informed Banister (1) of his right to appeal; (2) the time

in which he must bring his appeal; and (3) that he would be provided an attorney to do so 

if he was indigent. We also find that the district court's factual finding regarding the first 

Ortiz exception is supported by substantial competent evidence found in the sentencing 

transcript. In addition, we find that the district court's legal conclusions regarding the first 

Ortiz exception were proper based on these factual findings.

Second, Banister argues that the third Ortiz exception justified his belated filing of 

his notice of appeal. The third exception applies where a defendant is represented by 

counsel, but that attorney failed to timely perfect an appeal. See State v. Shelly, 303 Kan. 

1027, 1051, 371 P.3d 820 (2016). "Evaluation of the third exception allowing a late direct 

appeal under [Ortiz] requires consideration of whether the criminal defendant received 

effective assistance of counsel under Roe v. Flores-Ortega, 528 U.S. 470, 476-77, 120 S. 

Ct. 1029, 145 L. Ed. 2d 985 (2000)." Shelly, 303 Kan. 1027, Syl. ¶ 1.
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As the United States Supreme Court explained in Flores-Ortega, 528 U.S. at 478, 

when a defendant is in the gray area where he or she has neither instructed counsel to file 

an appeal nor asked that an appeal not be taken, the question of counsel's potentially 

deficient performance is "best answered" by first asking "whether counsel in fact 

consulted with the defendant about an appeal." If counsel consulted with the defendant, 

"the question of deficient performance is easily answered: Counsel performs in a 

professionally unreasonable manner only by failing to follow the defendant's express 

instructions with respect to an appeal." 528 U.S. at 478. Only if there is no consultation 

does the analysis then move to the determination of "whether counsel's failure to consult 

with the defendant itself constitutes deficient performance." 528 U.S. at 478.

In Flores-Ortega, the United States Supreme Court stated that the "better practice 

is for counsel routinely to consult with the defendant regarding the possibility of an 

appeal." 528 U.S. at 479. However, the Court refused to establish a bright-line rule that 

every case in which counsel failed to "consult with the defendant about an appeal is 

necessarily unreasonable, and therefore deficient." 528 U.S. at 479-80. The Court gave 

examples of situations in which a consolation might not be necessary, including the 

following example: "[S]uppose a sentencing court's instructions to a defendant about his 

appeal rights in a particular case are so clear and informative as to substitute for counsel's 

duty to consult. In some cases, counsel might then reasonably decide that he need not 

repeat that information." 528 U.S. at 479-80. The Court elaborated that "while States are 

free to impose whatever specific rules they see fit to ensure that criminal defendants are 

well represented, we have held that the Federal Constitution imposes one general 

requirement: that counsel make objectively reasonable choices." 528 U.S. at 479.

Despite Banister's argument to the contrary, our Supreme Court has held on 

several occasions that an attorney's failure to abide by K.A.R. 105-3-9—which applies to 

attorneys appointed to represent defendants under the Indigent Defense Services Act—is 

not determinative of counsel's performance. See, e.g., State v. Northern, 304 Kan. 860, 
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865, 375 P.3d 363 (2016); State v. Phinney, 280 Kan. 394, 405, 122 P.3d 356 (2005);

State v. Willingham, 266 Kan. 98, 100, 967 P.2d 1079 (1998). Of course, as an 

intermediate appellate court, we are duty-bound to follow the precedent established by 

our Supreme Court precedent unless there is some indication that it is departing from its

previous position. Regarding this issue, we see no indication that the Kansas Supreme 

Court is shifting its stance on K.A.R. 105-3-9. See State v. Rodriguez, 305 Kan. 1139, 

1144, 390 P.3d 903 (2017).

Here, the district court heard the evidence, evaluated the credibility of the 

witnesses, and determined that Banister did not ask his attorney for an appeal. This 

factual finding is supported by substantial competent evidence in the record. In fact, 

Banister's trial attorney testified that his client never requested him to file a notice of 

appeal. As the parties are aware, it is not our role to assess the credibility of witnesses, to 

reweigh the evidence presented at the evidentiary hearing, or to engage in independent 

factfinding. See State v. Rizal, 310 Kan. 199, 204, 445 P.3d 734 (2019). Consequently, 

we find that the district court's determination that the third Ortiz exception is not 

applicable to this case was supported by substantial evidence and was legally appropriate.

Affirmed.