1

No. 120,972

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

CHRISTOPHER CHARLES MABERRY,

Appellant.

SYLLABUS BY THE COURT

1.

Supreme Court Rule 134(a) (2020 Kan. S. Ct. R. 200) provides that if the district 

court rules on a motion or other application when an affected party who has appeared in 

the action is not present—either in person or by the party's attorney—the court 

immediately must serve notice of the ruling.

2.

To satisfy the Due Process Clause of the Fourteenth Amendment to the United 

States Constitution and Section 18 of the Kansas Constitution Bill of Rights, substantial 

compliance with Supreme Court Rule 134(a) is required before the time to file a notice of 

appeal begins to run on the denial of a motion to withdraw plea. As a result, a defendant 

is entitled to file an out-of-time appeal if the district court does not substantially comply 

with the service requirement set forth in Rule 134(a).

3.

The Due Process Clause of the Fourteenth Amendment to the United States 

Constitution and Section 18 of the Kansas Constitution Bill of Rights do not require the 

district court to inform a defendant of the right to appeal and the statutory time limit to 
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appeal the denial of a motion to withdraw plea. As a result, a defendant is not entitled to 

an out-of-time appeal simply because the court failed to inform the defendant of his rights 

to appeal the denial of the motion.

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed May 22, 

2020. Affirmed in part, vacated in part, and remanded with directions.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Natasha Esau, assistant district attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., BUSER and BRUNS, JJ.

BUSER, J.: After pleading guilty to aggravated escape from custody, Christopher 

Charles Maberry filed a pro se postsentencing motion to withdraw his plea. The district 

court summarily denied the motion. More than six months later, Maberry filed a motion 

to appeal out of time from the denial of his motion to withdraw plea. The district court 

also summarily denied this motion.

This is Maberry's appeal of the district court's order denying his motion to appeal 

out of time. He asserts the district court violated his right to due process in two ways: 

First, he was not informed the district court denied his motion to withdraw plea until after 

the statutory time to appeal had expired. Second, the district court failed to inform him of 

his appellate rights at the time the court denied Maberry's motion to withdraw plea.

Upon our review, we hold that Supreme Court Rule 134(a) (2020 Kan. S. Ct. R. 

200) requires that if the district court rules on a motion or other application when an 

affected party who has appeared in the action is not present—either in person or by the 

party's attorney—the court immediately must serve notice of the ruling.
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Moreover, to satisfy the Due Process Clause of the Fourteenth Amendment to the 

United States Constitution and Section 18 of the Kansas Constitution Bill of Rights, we 

hold that substantial compliance with Supreme Court Rule 134(a) is required before the 

time to file a notice of appeal begins to run on the denial of a motion to withdraw plea. 

As a result, a defendant is entitled to file an out-of-time appeal if the district court does 

not substantially comply with the service requirement set forth in Rule 134(a).

Accordingly, we vacate the district court's summary dismissal and remand with 

directions to make findings regarding whether the district court substantially complied 

with Supreme Court Rule 134(a). Upon remand, if the district court determines that 

service of the court's order denying Maberry's motion to withdraw plea was not 

substantially complied with, the district court shall grant the motion to file an out-of-time 

appeal. On the other hand, if the district court determines that service of the court's order 

denying Maberry's motion to withdraw plea was substantially complied with, the district 

court shall reconsider its prior ruling, including, if appropriate, reinstating its prior ruling 

denying Maberry's motion to file an out-of-time appeal.

With regard to Maberry's second issue on appeal, we hold that because a criminal 

defendant does not have a statutory right to be informed of the right to appeal from a 

denial of a motion to withdraw plea, the Due Process Clause of the Fourteenth 

Amendment to the United States Constitution and Section 18 of the Kansas Constitution 

Bill of Rights do not require that the district court inform the defendant of the right to 

appeal and the statutory time limit to appeal the denial of the motion. As a result, 

Maberry is not entitled to an out-of-time appeal simply because the district court failed to 

inform him of his rights to appeal the denial of the motion. Thus, we affirm the district 

court as to the second issue.
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FACTUAL AND PROCEDURAL BACKGROUND

On January 5, 2018, the district court revoked Maberry's probation in several 

criminal cases, imposed the underlying sentences, and ordered him into custody. At the 

conclusion of the hearing, Maberry ran out of the courtroom. Maberry led officers on a 

foot chase throughout the courthouse until he encountered a locked door, whereupon he 

apologized to the officers and was arrested. The State charged Maberry with aggravated 

escape from custody, in violation of K.S.A. 2017 Supp. 21-5911(b)(1)(A).

At a plea hearing on this charge, the district court informed Maberry of the 

sentencing range for the crime, and Maberry said he understood the range of possible 

sentences. Maberry pled guilty as charged, stating, "[M]yself and the cameras in the court 

know I'm guilty. I'm guilty." The district court accepted Maberry's plea and found him 

guilty of aggravated escape from custody.

Prior to sentencing, Maberry filed a motion for a dispositional departure to 

probation. In the departure motion, Maberry noted that his mother was terminally ill, and 

she cried in the courtroom when his probation was revoked. In desperation, Maberry 

claimed that he ran from the courtroom afraid of never seeing his mother again.

At sentencing on May 11, 2018, Maberry asked "for the mercy of the courts" and 

told the district court, "I am really regrettably sorry for what I did." The district court, 

however, denied his departure motion and sentenced him to 19 months in prison. The 

district judge informed Maberry of his right to appeal the sentence, stating, "You can 

appeal this sentence by filing notice of appeal within 14 days in writing. If you can't 

afford an attorney we will appoint someone to represent you. You can talk to [your 

attorney]. If you want to appeal he'll file a notice of appeal for you." No appeal was filed.
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On July 7, 2018, Maberry mailed our court a letter asking about an appeal in his 

criminal case. The Clerk of the Appellate Courts informed Maberry there was no appeal 

docketed in the case and no open appeals in his name. Maberry was referred to the 

district court to see if a notice of appeal had been filed.

On August 17, 2018, Maberry filed a pro se motion to withdraw his guilty plea in 

the district court. In the motion, Maberry argued that he was coerced into pleading guilty, 

and his defense counsel provided ineffective assistance—in particular, failing to file a 

presentencing motion to withdraw Maberry's plea at his request.

The district court summarily denied Maberry's motion on August 20, 2018. In its 

order, the district court stated: "The Defendant, on the record, showed the Court that his 

plea was knowing, intelligent and voluntary. He showed the Court that he [was] satisfied 

with the service of his attorney. His claim to the contrary at this point is not credible." 

Additionally, the district court found Maberry made "no claim[s] resembling an assertion 

of manifest injustice." Relevant to this appeal, the order did not advise Maberry of his 

right to appeal or the statutory time limit to appeal the district court's adverse ruling.

It does not appear from the record on appeal that the district court's order included 

a certificate of service or a cover letter indicating that the order was mailed to Maberry or 

to what address it was sent. At the bottom of the two-page order, however, was 

typewritten: "CC: Christopher Maberry." This is the only indication in the record that 

Maberry may have been provided with a copy of the district court's order denying his 

motion to withdraw plea.

On November 13, 2018—almost three months after the district court filed its 

order—Maberry handwrote a letter to the district court asking about the status of his 

motion to withdraw plea. In relevant part the letter read:
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"I yet to this day have heard nothing back or have not received any Court dates 

that have been issued to me.

"Could you please get ahold of me to let me know if a possible Court date is 

assigned for the motion I had sent back in [August] 17th 2018[?]

. . . .

"I would highly appreciate [it if] this matter could be brought [forthwith] with an 

[evidentiary] hearing that could be placed in [due] time.

"This matter has been pushed on now for a period of time exceeding . . . three 

months now."

The record does not indicate if the district court replied to Maberry's letter.

On February 25, 2019, Maberry filed a pro se motion to appeal out of time. In the 

motion, Maberry asserted:

"Defendant was not transported to Court for an evidentiary hearing, not 

represented by counsel, [not] notified of the Court's denial until November 27, 2018, as 

well as his right to appeal the decision. As a result no appeal was timely filed. Mr. 

Maberry recently became aware that he has the right to appeal the Court's decision and 

wished to exercise his right to do so."

In response, the district court filed an order, dated February 26, 2019, summarily 

denying Maberry's motion to appeal out of time. In the order, the district court stated that 

"there is no rule requiring the Court to separately advise [Maberry] of the right to appeal" 

the denial of a motion to withdraw plea. The district court also indicated that Maberry 

failed

"to explain the delay between his acknowledgement of his receiving notice of the Court's 

August 20, 2018 decision which he says he received on November 27, 2018 and the filing 

of his Motion for Leave to Appeal Out of Time on February 25, 2019. That delay was 

obviously in excess of the 14 days that the Court informed him of at his sentencing."
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Consequently, the district court ruled that Maberry did not allege sufficient facts to show 

the district court should excuse his failure to file a timely notice of appeal. 

Maberry appeals the district court's denial of his motion to appeal out of time.

ANALYSIS

On appeal, Maberry contends the district court erred by denying his motion to file 

an appeal out of time. Maberry argues that due process of law entitles him to an out-oftime appeal for two reasons: First, the district court failed to notify him that it denied his 

motion to withdraw plea until after the time to appeal had expired. Second, the district 

court failed to inform him of his appellate rights upon the denial of his motion to 

withdraw plea. We will separately address the two arguments.

STANDARDS OF REVIEW AND BASIC STATUTORY AND CONSTITUTIONAL PRINCIPLES

At the outset, it is necessary to briefly summarize our standards of review and 

some basic statutory and constitutional principles relevant to this appeal. When the 

material facts underlying a district court's decision are not in dispute, we exercise 

unlimited review over the legal conclusion as to whether an exception applies to the 

requirement of a timely appeal. State v. Smith, 303 Kan. 673, 677, 366 P.3d 226 (2016). 

Likewise, the issue of whether due process has been afforded is a question of law subject 

to unlimited review. Requena v. State, 310 Kan. 105, 108, 444 P.3d 918 (2019).

"A defendant has a right to appeal from the denial of a motion to withdraw a plea." 

State v. Hemphill, 286 Kan. 583, 593, 186 P.3d 777 (2008). However, the right to appeal 

is entirely statutory and is not contained in the United States or Kansas Constitutions. 

State v. Rocheleau, 307 Kan. 761, 763, 415 P.3d 422 (2018). Filing a timely notice of 

appeal is a prerequisite to appellate jurisdiction. Smith, 303 Kan. at 677. As a general 
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rule, the failure to file a notice of appeal before the statutory deadline requires dismissal 

of the appeal. Albright v. State, 292 Kan. 193, 197, 251 P.3d 52 (2011).

An appeal from the denial of a motion to withdraw plea must be filed within the 

time frame for criminal appeals found in K.S.A. 2019 Supp. 22-3608. Hemphill, 286 Kan. 

at 590. Under the current statute, a criminal defendant has 14 days from the entry of 

judgment to file a notice of appeal. K.S.A. 2019 Supp. 22-3608(c).

With regard to due process, the Fourteenth Amendment to the United States 

Constitution provides that no State "shall . . . deprive any person of life, liberty, or 

property, without due process of law." U.S. Const. amend. XIV, § 1. Additionally, 

Section 18 of the Kansas Constitution Bill of Rights states: "All persons, for injuries 

suffered in person, reputation or property, shall have remedy by due course of law." 

Historically, Kansas courts construe the due process protections of Section 18 to be the 

same as those guaranteed by the Fourteenth Amendment. State v. Boysaw, 309 Kan. 526, 

537-38, 439 P.3d 909 (2019).

Finally, when a State provides the right to an appeal, the minimum essential 

elements of due process of law must be provided. Evitts v. Lucey, 469 U.S. 387, 393, 105 

S. Ct. 830, 83 L. Ed. 2d 821 (1985); Johnson v. Brooks Plumbing, LLC, 281 Kan. 1212, 

1215, 135 P.3d 1203 (2006). Constitutional due process is a flexible concept in that the 

protections required vary depending upon the importance of the specific interests at stake. 

But the basic elements of procedural due process are notice and an opportunity to be 

heard at a meaningful time and in a meaningful manner. In re Care & Treatment of 

Ellison, 305 Kan. 519, 526, 385 P.3d 15 (2016).
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DOES DUE PROCESS REQUIRE A DISTRICT COURT TO

INFORM A DEFENDANT OF THE DENIAL OF A MOTION TO WITHDRAW PLEA?

Maberry asserts the district court erred by denying his out-of-time appeal because 

"the district court's failure to notify him of the adverse decision in his case violated due 

process."

When reviewing a due process claim, we first consider whether the government 

deprived a person of a protected liberty or property interest. If a protected liberty or 

property interest is implicated, we must then determine the nature and extent of the 

process that is due. Village Villa v. Kansas Health Policy Authority, 296 Kan. 315, 331, 

291 P.3d 1056 (2013). Due process is flexible in that not all situations calling for 

procedural safeguards call for the same kind of procedure. See In re Care & Treatment of 

Ellison, 305 Kan. at 526.

Although the right to appeal is entirely statutory, "where the legislature has 

provided the right of an appeal, the minimum essential elements of due process of law in 

an appeal affecting a person's life, liberty, or property are notice and an opportunity to be 

heard at a meaningful time and in a meaningful manner." Nguyen v. IBP, Inc., 266 Kan. 

580, 588, 972 P.2d 747 (1999). "To satisfy due process, notice must be reasonably 

calculated, under all the circumstances, to apprise interested parties of the pendency of 

the action and afford them an opportunity to present their objections." 266 Kan. at 588.

The plain language of Supreme Court Rule 134(a) (2020 Kan. S. Ct. R. 200) 

provides: "If the court rules on a motion or other application when an affected party who 

has appeared in the action is not present—either in person or by the party's attorney—the 

court immediately must serve notice of the ruling." Notice is required to ensure that the 

party with the right to appeal has actual knowledge that an adverse judgment has been 

rendered. McDonald v. Hannigan, 262 Kan. 156, 163, 936 P.2d 262 (1997).
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Importantly, Kansas caselaw provides that the time for taking an appeal does not 

begin to run until the party entitled to appeal has received notice of the judgment in 

compliance with Supreme Court Rule 134. McDonald, 262 Kan. at 163-64. In particular, 

our Supreme Court has held that "[t]he time for filing post-judgment motions or taking an 

appeal from a final judgment entered without notice commences to run when there has 

been compliance with K.S.A. 60-258 and Rule No. 134." Daniels v. Chaffee, 230 Kan. 

32, 38, 630 P.2d 1090 (1981). While K.S.A. 60-258 does not apply in criminal cases, see 

State v. Moses, 227 Kan. 400, 403, 607 P.2d 477 (1980), Rule 134 applies to both civil 

and criminal cases.

Since Daniels, Kansas courts have repeatedly stated that compliance with Rule 

134 is required before the time to take an appeal begins to run. See, e.g., McDonald, 262 

Kan. at 163-64; JPMorgan Chase Bank v. Taylor, No. 117,774, 2018 WL 2170210, at 

*4-5 (Kan. App. 2018) (unpublished opinion). Because Maberry was an affected party 

who was not present in court or represented by an attorney when the district court issued 

its ruling summarily denying his motion to withdraw plea, the time for taking an appeal 

would begin to run when Maberry was served with notice of the order.

Did the district court substantially comply with the requirement that it serve 

Maberry with notice of the ruling denying his motion to withdraw plea? Unfortunately, 

the record is insufficient for us to definitively answer this important question.

On the one hand, the order did not include a certificate of service or cover letter 

indicating that it was mailed to Maberry and, if so, where it was sent. Maberry's 

November 13, 2018 letter to the district court alleged that he had not heard about the 

district court setting the motion for a hearing and indicating displeasure at the delay. This 

suggests that if the order was sent, Maberry did not receive it. Moreover, there is no 

indication that the district court responded to this letter or provided Maberry with a copy 

of the order in response to his letter.
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On the other hand, the order did have a "CC: Christopher Maberry" typed at the 

bottom of the order, and in Maberry's February 25, 2019 pro se motion to appeal out of 

time, he asserted that he was not "notified of the Court's denial until November 27, 

2018." While Maberry acknowledges being notified of the order as of this late date, 

whether this notification came from the district court is unknown. The contents of this 

notice are also not described.

Under these circumstances, we are unable to determine whether the district court 

substantially complied with Supreme Court Rule 134(a). And without knowing whether 

the district court followed the rule's directive and immediately served notice of the ruling 

on Maberry, we are unable to conclude whether, in accordance with Daniels and its 

progeny, Maberry's due process right to notice and an opportunity to be heard has been 

violated. See In re Care & Treatment of Ellison, 305 Kan. at 526. In short, without 

findings of fact regarding whether the district court substantially complied with Supreme 

Court Rule 134(a), we are unable to conclude as a matter of law whether Maberry is 

entitled to file an out-of-time appeal. The lack of specific findings of fact on this 

important issue precludes meaningful appellate review and necessitates a remand to the 

district court. See State v. Thurber, 308 Kan. 140, 232, 420 P.3d 389 (2018).

Accordingly, we vacate the district court's summary dismissal of the motion to 

appeal out of time and remand with directions to make findings of fact regarding whether 

the district court substantially complied with Supreme Court Rule 134(a). Upon remand, 

if the district court determines that service of the court's order denying Maberry's motion 

to withdraw plea was not substantially complied with, the district court shall grant the 

motion to file an out-of-time appeal. On the other hand, if the district court determines 

that service of the court's order denying Maberry's motion to withdraw plea was 

substantially complied with, the district court shall reconsider its prior ruling, including, 

if appropriate, reinstating its prior ruling denying Maberry's motion to file an out-of-time 

appeal.
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DOES DUE PROCESS REQUIRE A DISTRICT COURT TO INFORM A

DEFENDANT OF THE RIGHT TO APPEAL THE DENIAL OF A MOTION TO WITHDRAW PLEA?

On appeal, Maberry contends the Due Process Clause of the Fourteenth 

Amendment to the United States Constitution and Section 18 of the Kansas Constitution 

Bill of Rights requires the district court to inform him of the right to appeal and the 

statutory time limit to appeal the denial of his motion to withdraw plea. Since the district 

court did not inform him of his appellate rights, Maberry claims he is entitled to an outof-time appeal and the district court erred by denying his motion to file an appeal out of 

time.

In State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), our Supreme Court 

recognized three judicial exceptions to the general rule barring untimely direct appeals. 

The Ortiz exceptions provide that an untimely direct appeal will be allowed if the 

criminal defendant "'(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.]" State v. Shelly, 303 Kan. 1027, 1036, 371 P.3d 820 (2016) (quoting 

Albright, 292 Kan. at 198).

Following the Ortiz decision, our Supreme Court has elaborated on the concepts 

underlying the first Ortiz exception—not being informed of the right to appeal. See State 

v. Patton, 287 Kan. 200, 219-22, 195 P.3d 753 (2008). In Patton, our Supreme Court 

explained that three Kansas statutes provide procedural safeguards to a criminal 

defendant's rights to appeal. 287 Kan. at 219. First, K.S.A. 22-3210(a)(2) requires a judge 

to inform a felony defendant of the consequences of a guilty or nolo contendere plea, 

including waiver of the right to appeal any resulting conviction. Second, as interpreted by 

caselaw, K.S.A. 22-3424(f) requires a sentencing court to advise a defendant of the right 

to appeal and of the right of an indigent defendant to appeal in forma pauperis. Third, 
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K.S.A. 22-4505(a) requires a district court to inform a felony defendant of the right to 

appeal a conviction. In summary: "Due process is denied—and an out-of-time appeal 

may be permissible under the first Ortiz exception—if a district judge fails to abide by 

one of these statutes." Patton, 287 Kan. at 220.

The Ortiz exceptions to an untimely appeal, however, do not apply in the context 

of a motion to withdraw plea. Hemphill, 286 Kan. at 591-92. Our Supreme Court in 

Hemphill explained that the first Ortiz exception was created to comply with statutory 

requirements to inform a defendant of the right to appeal and a district court has no 

similar statutory obligation regarding the denial of a motion to withdraw a plea. 

Hemphill, 286 Kan. at 591-92. In addition to the first Ortiz exception:

"The fundamental fairness principle underlying all three exceptions recognized in 

Ortiz and its progeny is based on the facts that the defendant's failure to timely appeal 

was the result of being deprived of a right to which he or she was entitled by law: the 

statutory right to be advised of the right to appeal; the statutory right to be provided an 

attorney to file an appeal; or the right to have the appointed attorney perform effectively 

in perfecting the appeal." Guillory v. State, 285 Kan. 223, 228, 170 P.3d 403 (2007).

Maberry argues that the first Ortiz exception applies, and the Hemphill court 

wrongly held that the Ortiz exceptions were inapplicable on an appeal of a motion to 

withdraw plea. Of course, we are duty bound to follow Kansas Supreme Court precedent 

unless there is some indication the court is departing from its previous position. State v. 

Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). We find no indication that our 

Supreme Court is departing from its clearly stated precedent that the Ortiz exceptions are 

inapplicable on a motion to withdraw plea. Accordingly, we find that Maberry is not 

entitled to an out-of-time appeal under the Ortiz exceptions.
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Next, Maberry claims that—independent of Hemphill—due process required the 

district court to inform Maberry of his right to appeal the denial of his motion to 

withdraw plea.

To establish a due process violation, Maberry must show that he was denied a 

specific procedural protection to which he is entitled. Winston v. Kansas Dept. of SRS, 

274 Kan. 396, 409, 49 P.3d 1274 (2002). When considering the procedural protections 

required, we weigh:

"'(1) the individual interest at stake; (2) the risk of erroneous deprivation of the interest 

through the procedures used and the probable value, if any, of additional or substitute 

procedural safeguards; and (3) the State's interest in the procedures used, including the 

fiscal and administrative burdens that any additional or substitute procedures would 

entail.'" In re A.A.-F., 310 Kan. 125, 145, 444 P.3d 938 (2019) (quoting In re J.D.C., 284 

Kan. 155, 166-67, 159 P.3d 974 [2007]).

When considering the first factor—the individual interest at stake, we find this 

factor weighs against Maberry. The right to appeal is not found in the United States or 

Kansas Constitutions. Rocheleau, 307 Kan. at 763. Indeed, according to the United States 

Supreme Court, "a State is not obliged to provide any appeal at all for criminal 

defendants." Ross v. Moffitt, 417 U.S. 600, 606, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974). 

For this reason, courts have rejected claims that a trial court violated a criminal 

defendant's due process rights by failing to inform the defendant of the right to appeal a 

determination about the voluntariness of a plea. See, e.g., Samuels v. Crickmar, No. CV 

113-084, 2014 WL 4463240, at *8-9 (S.D. Ga. 2014) (unpublished opinion).

In finding that a criminal defendant has no federal due process right to counsel 

when pursuing a discretionary appeal on direct review of a conviction, the United States 

Supreme Court in Ross noted the difference between a defendant's interests at trial and on 

appeal. 417 U.S. at 610-11. The court noted:
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"[I]t is ordinarily the defendant, rather than the State, who initiates the appellate 

process, seeking not to fend off the efforts of the State's prosecutor but rather to overturn 

a finding of guilt made by a judge or a jury below. . . . This difference is significant for, 

while no one would agree that the State may simply dispense with the trial stage of 

proceedings without a criminal defendant's consent, it is clear that the State need not 

provide any appeal at all. The fact that an appeal has been provided does not 

automatically mean that a State then acts unfairly by refusing to provide counsel to 

indigent defendants at every stage of the way. [Citation omitted.]" 417 U.S. at 610-11.

Since postconviction relief is even further removed from the original criminal 

proceedings than discretionary direct review, the considerations in Ross apply with even 

more persuasive force when considering due process requirements for postconviction 

review. Pennsylvania v. Finley, 481 U.S. 551, 556, 107 S. Ct. 1990, 95 L. Ed. 2d 539 

(1987).

Regarding the second In re A.A.-F. factor, Maberry also argues that the risk of 

erroneous deprivation of a pro se defendant's rights to appellate review is significant. He 

reasons that when a motion to withdraw plea is summarily denied—as occurred in this 

case—the defendant is never appointed counsel who could advise the defendant of his or 

her appellate rights.

But contrary to Maberry's position, pro se litigants are not excused from the 

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

of appeal. Guillory, 285 Kan. at 229. In Guillory, our Supreme Court noted that after the 

district court summarily denied the defendant's pro se motion, "[t]he certificate of mailing 

shows that a copy of the decision was sent to Guillory at the El Dorado Correctional 

Facility." 285 Kan. at 223-24. Importantly, our Supreme Court considered whether 

fundamental fairness excused the K.S.A. 60-1507 movant's untimely appeal when the 

district court failed to inform Guillory of his appellate rights after summarily denying his 

motion. Because no statute required the district court to advise a K.S.A. 60-1507 movant 
16

of his or her appellate rights, our Supreme Court did not excuse the movant's untimely 

appeal. 285 Kan. at 228-29.

Although Guillory involved a K.S.A. 60-1507 motion, many procedural aspects of 

K.S.A. 60-1507 proceedings are incorporated into postsentencing motions to withdraw a 

plea, including when appointment of counsel is required. State v. Laughlin, 310 Kan. 119, 

122-23, 444 P.3d 910 (2019). As a result, "if there is no substantial question of law or 

triable issue of fact and the files and records conclusively show that the defendant is not 

entitled to relief on the motion, then there is no requirement that a hearing be held or that 

counsel be appointed." State v. Jackson, 255 Kan. 455, 461, 874 P.2d 1138 (1994). In 

Maberry's case, since the district court did not find a substantial issue of law or triable 

issue of fact in his motion to withdraw plea, Maberry's statutory right to counsel was not 

triggered. Laughlin, 310 Kan. at 123-24. Thus, like the movant in Guillory, provided 

Maberry was served with notice of the summary denial, he was required to comply with 

the statutory deadline to file a timely notice of appeal.

While we acknowledge that the third factor—the financial burden to the State—

would be slight, upon balancing all three relevant factors stated in In re A.A.-F., we hold 

that due process did not require the district court to inform Maberry of his right to appeal 

and the statutory time limit to appeal the denial of his motion to withdraw plea. When a 

defendant is not informed of appellate rights, fundamental fairness only excuses an 

untimely notice of appeal if the defendant had a statutory right to be advised of the right 

to appeal. See Guillory, 285 Kan. at 228. Because the district court was not required by 

Kansas law to advise Maberry of his rights to appeal the denial of his motion to withdraw 

plea, due process did not mandate that he was entitled to an out-of-time appeal simply 

because of the court's failure to inform him of his appellate rights. Thus, we affirm the 

district court as to the second issue.

Affirmed in part, vacated in part, and remanded with directions.