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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 102,454 WILLIAM D. ALBRIGHT, Appellant, v. STATE OF KANSAS, Appellee.

SYLLABUS BY THE COURT

1. 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. 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. A question of subject matter jurisdiction may be raised at any time by a party or by a court, including an appellate court.

4. 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

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of fact and the movant is indigent, the movant has a right to receive effective assistance of counsel.

5. 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.

Review of the judgment of the Court of Appeals in an unpublished order of dismissal.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, and Steve Six, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

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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 in 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.

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 3

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 manner." Months later, he filed another pro se notice of appeal and a motion for appointment of appellate counsel. New counsel was appointed to represent Albright in a hearing pursuant to Ortiz, 230 Kan. 733. Instead of proceeding 4

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."

ANALYSIS

Principles 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 5

whether in fact the issues in the motion are substantial. Trotter v. State, 288 Kan. 112, Syl.

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