The right appellate lawyer can make all the difference
In State v. Elnicki, No. 96,987 (April 8, 2010), the Court of Appeals recently dismissed the
State’s appeal of a district court’s finding of ineffective assistance of counsel at a “Van Cleave” remand hearing. The case had been on direct appeal, but it was remanded to the district court for a determination of whether Elnicki’s trial counsel provided ineffective assistance of counsel (pursuant to State v. Van Cleave, 239 Kan. 117 [1986]). The district court found that trial counsel was ineffective and that this prejudiced the outcome of Elnicki’s trial. Thus, the district court ordered a new trial for Elnicki. The State appealed the district court’s grant of a new trial.
Based on Elnicki’s argument, the Court of Appeals dismissed the State’s appeal on jurisdictional grounds. The court noted that the right to appeal is strictly statutory, and it rejected the State’s claimed statutory basis for the appeal. The court held that the case was not a “question reserved” as the State claimed, because it did not involve an issue of statewide importance. The court also held that the “Van Cleave” remand hearing was not the same as a K.S.A. 60-1507 hearing, so the State did not have a right to appeal under K.S.A. 60-2102.
This case highlights the importance of having an attorney that is experienced in handling appeals and who is well-versed in appellate procedure. Carl Folsom, III, a partner at Bell Folsom, P.A., has handled hundreds of criminal appeals and has won cases on similar jurisdictional grounds. For example, in Casner v. State, 37 Kan. App. 2d 667 (2007), the Court of Appeals agreed with Mr. Folsom that the State did not have the right to appeal the outcome of an “Ortiz” hearing (where the district court decides whether or not the defendant can appeal out of time). Because Casner had won the “Ortiz” hearing in the district court, and because the State’s appeal was dismissed on jurisdictional grounds, Casner’s direct appeal was allowed to proceed, and his sentence was reduced substantially as a result.
At Bell Folsom, P.A., our attorneys are experienced and knowledgeable about the nuances of handling an appeal. This includes knowledge of appellate procedure as well as knowledge of the substance of various issues in criminal law. If you need a lawyer to handle an appeal in state or federal court, contact us immediately so we may assist you.