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Foy v. State

Court of Appeals of Kansas
Jan 8, 1993
17 Kan. App. 2d 775 (Kan. Ct. App. 1993)

Summary

holding that because a criminal defendant "had no constitutional right to counsel to pursue a discretionary appeal to the Kansas Supreme Court, he [was] not deprived of the effective assistance of counsel by his appointed counsel's failure to file a petition for review or the failure of such counsel to inform [him that] he had the option of seeking discretionary review"

Summary of this case from Sims v. State

Opinion


844 P.2d 744 (Kan.App. 1993) 17 Kan.App.2d 775 William A. FOY, Appellant, v. STATE of Kansas, Appellee. No. 67721. Court of Appeals of Kansas January 8, 1993

       Review Denied March 17, 1993.

       Syllabus by the Court

       As a defendant has no constitutional right to counsel to pursue a discretionary appeal to the Kansas Supreme Court, he or she is not deprived of the effective assistance of counsel by such counsel's failure to file a petition for review of a Court of Appeals decision or the failure of such counsel to inform the defendant of the option to seek discretionary review.

       Thomas Jacquinot, Asst. Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

       David Lowden, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

       Before LARSON, P.J., LEWIS, J., and BARRY A. BENNINGTON, District Judge, assigned.

       LARSON, Presiding Judge:

       William A. Foy appeals the summary denial of his K.S.A. 60-1507 motion.

       Foy pled guilty on January 9, 1989, to one count of attempted indecent liberties with a child. Foy was sentenced to a term of 3 to 10 years. Our court affirmed Foy's sentence in an unpublished opinion, State v. Foy, 794 P.2d 1178 (Kan.App.1990).

       On appeal from the denial of his K.S.A. 60-1507 motion, Foy contends his appointed counsel was ineffective for failing to inform him that he had an option to seek review in the Kansas Supreme Court of this court's decision to affirm his sentence; he was denied his due process right of access to this state's appellate courts; and the trial court erred in denying his motion without appointing counsel and conducting an evidentiary hearing.

       Review by the Kansas Supreme Court of the Court of Appeals' decision to affirm Foy's sentence was discretionary. See K.S.A. 20-3018(b); K.S.A. 22-3602(d); Supreme Court Rule 8.03 (1992 Kan.Ct.R.Annot. 41). In Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 1301, 71 L.Ed.2d 475 (1982), the United States Supreme Court held that because a criminal defendant has no constitutional right to counsel in a discretionary appeal, he could not be deprived of the effective assistance of counsel by his retained counsel's failure to timely file an application for review in the Florida Supreme Court of the Court of Appeals' decision to affirm his convictions. See Robinson v. State, 13 Kan.App.2d 244, 250, 767 P.2d 851, rev. denied 244 Kan. 738 (1989).

       As Foy had no constitutional right to counsel to pursue a discretionary appeal to the Kansas Supreme Court, he is not deprived of the effective assistance of counsel by his appointed counsel's failure to file a petition for review or the failure of such counsel to inform Foy he had the option of seeking discretionary review.

       Foy's contention that he was denied his due process right of access to the appellate courts was not raised in his K.S.A. 60-1507 motion and cannot be raised for the first time on appeal. See State v. Roberts, 14 Kan.App.2d 173, 180, 786 P.2d 630, rev. denied 246 Kan. 770 (1990). In light of the foregoing, however, this contention, which flows from Foy's allegation of ineffective assistance of counsel, has no merit.

       It is well established that when no substantial issue of fact or question of law is raised by a K.S.A. 60-1507 motion, the trial court is not required to appoint counsel or hold an evidentiary hearing. Rhone v. State, 211 Kan. 206, 208, 505 P.2d 673 (1973). See Wright v. State, 5 Kan.App.2d 494, 495-96, 619 P.2d 155 (1980). The trial court did not err by summarily denying Foy's motion.

       Affirmed.


Summaries of

Foy v. State

Court of Appeals of Kansas
Jan 8, 1993
17 Kan. App. 2d 775 (Kan. Ct. App. 1993)

holding that because a criminal defendant "had no constitutional right to counsel to pursue a discretionary appeal to the Kansas Supreme Court, he [was] not deprived of the effective assistance of counsel by his appointed counsel's failure to file a petition for review or the failure of such counsel to inform [him that] he had the option of seeking discretionary review"

Summary of this case from Sims v. State

In Foy v. State, 17 Kan. App. 2d 775, 844 P.2d 744 (1993), the Court of Appeals of Kansas, relying on Wainwright, rejected Foy's claim of ineffective assistance of counsel based upon the failure of his appointed attorney to inform him that he could seek review in the Supreme Court of Kansas.

Summary of this case from Harris v. State

In Foy, the appellant alleged that his counsel was ineffective for failing to inform him that he could petition for review to our Supreme Court.

Summary of this case from Swenson v. State

In Foy v. State, 17 Kan.App.2d 775, 776, 844 P.2d 744 (1993), we held Foy had no constitutional right to counsel to pursue a discretionary appeal to the Kansas Supreme Court and that he was not deprived of the effective assistance of counsel by his appointed counsel's failure to file a petition for review or the failure of such counsel to inform Foy he had the option of seeking discretionary review.

Summary of this case from Holt v. Saiya
Case details for

Foy v. State

Case Details

Full title:WILLIAM A. FOY, Appellant, v. STATE OF KANSAS, Appellee

Court:Court of Appeals of Kansas

Date published: Jan 8, 1993

Citations

17 Kan. App. 2d 775 (Kan. Ct. App. 1993)
17 Kan. App. 2d 775
17 Kan. App. 2

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