State v. Thurber ( 2021 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 122,739
STATE OF KANSAS,
Appellee,
v.
JUSTIN EUGENE THURBER,
Appellant.
SYLLABUS BY THE COURT
1.
Issues of statutory interpretation and subject matter jurisdiction generally pose
questions of law subject to de novo review.
2.
In interpreting a statute, a court must attempt to give effect to the Legislature's
intent if that intent can be determined from the plain language of the statute. Where a
statute's language is plain and unambiguous, a court need not resort to the canons of
statutory construction.
3.
Generally, a district court loses jurisdiction over a case upon the filing of a
docketing statement in the appellate courts. There are few exceptions to this rule.
4.
A district court's jurisdiction may be expanded or limited by statute.
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5.
The plain language of K.S.A. 2020 Supp. 21-2512 does not require that an
individual convicted of a crime covered by the statute wait until the resolution of a direct
appeal before seeking relief under the statute. Likewise, the plain language of K.S.A.
2020 Supp. 21-2512 grants the district court jurisdiction to consider and act on filings
made under the statute even after an appeal has been docketed.
Appeal from Cowley District Court; NICHOLAS M. ST. PETER, judge. Opinion filed August 13,
2021. Reversed and remanded with directions.
Reid T. Nelson, of Capital and Conflicts Appeals Office, was on the brief for appellant.
Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, were on the
brief for appellee.
The opinion of the court was delivered by
WILSON, J.: This appeal arises from the district court's decision to deny Justin
Eugene Thurber's motion to appoint counsel—and, by implication, his accompanying pro
se petition for DNA testing under K.S.A. 2020 Supp. 21-2512—on the basis that his
convictions had not yet become "final." Thurber filed his petition and motion after this
court issued a decision on his direct appeal, in which a majority affirmed Thurber's
convictions for capital murder and aggravated kidnapping and remanded the matter to the
district court with instructions to consider—for purposes of evaluating the penalty phase
of trial—whether Thurber had an intellectual disability that would preclude execution
under "current constitutional parameters." State v. Thurber, 308 Kan. 140, 235, 420 P.3d
389 (2018). However, this court expressly "retain[ed] jurisdiction over the remainder of
Thurber's penalty-phase appeal pending notification from the district court and the parties
regarding the outcome on remand." 308 Kan. at 235. This appeal is unrelated to the
ongoing proceedings in Thurber's direct appeal.
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We conclude the plain language of K.S.A. 2020 Supp. 21-2512 does not require
that Thurber's conviction reach a state of finality on direct appeal before he may initiate
proceedings under the statute. We further conclude that K.S.A. 2020 Supp. 21-2512
constitutes a special legislative exception to the general rule that a district court loses
jurisdiction once a matter has been docketed for appeal. We thus reverse the district
court's decision and remand the matter for further proceedings under K.S.A. 2020 Supp.
21-2512.
FACTS AND PROCEDURAL BACKGROUND
Underlying Facts
Because this appeal poses a limited and almost entirely procedural question
unrelated to Thurber's direct appeal, we give only an overview of the underlying facts
of his case; a more complete recitation is set forth more in our previous decision on
Thurber's direct appeal. See 308 Kan. at 144-49. Briefly stated, Thurber was convicted of
capital murder and aggravated kidnapping in the killing of J.S. Following the penalty
phase of Thurber's trial, the jury returned a verdict for death. Shortly before sentencing,
Thurber filed a motion under K.S.A. 21-4623, arguing that he was intellectually disabled.
The district court denied the motion on its merits and sentenced Thurber to death, plus
176 months' imprisonment for the aggravated kidnapping, which it ran consecutive to the
death sentence.
On appeal, a majority of this court affirmed Thurber's convictions. 308 Kan. at
214. With respect to the penalty phase of the trial, however, the majority determined
that the district court had "necessarily . . . appl[ied] an invalid statutory definition for
'intellectual disability' when determining if Thurber can be executed." 308 Kan. at 235.
The majority thus reversed the district court's conclusion that there was insufficient
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reason to believe Thurber had an intellectual disability and remanded for the district court
to reconsider based on "current constitutional parameters." 308 Kan. at 235. Moreover,
the court "retain[ed] jurisdiction over the remainder of Thurber's penalty-phase appeal
pending notification from the district court and the parties regarding the outcome on
remand." 308 Kan. at 235.
Proceedings Following Remand
Following remand, Thurber filed a pro se "Petition for Post Conviction DNA
Testing Under K.S.A. 21-2512(a)." He later filed a "Motion for Appointment of Counsel
Pursuant to K.S.A. 21-2512(e)."
The district court considered these filings at a hearing on February 25, 2020, along
with other matters. At this hearing, the State argued that these filings were not yet ripe
based on the district court's limited jurisdiction on remand. Thurber argued that K.S.A.
2019 Supp. 21-2512(e) granted the district court jurisdiction to appoint counsel to pursue
post-conviction DNA testing, and that "the conviction . . . occurred in March of 2009,
when the jury found Mr. Thurber guilty, [and] imposed the sentence of death"—
rendering any subsequent attempt to obtain DNA testing under K.S.A. 2019 Supp. 21-
2512(a) inherently "post-conviction."
The district court denied the motion for appointment of counsel, although it did
not explicitly address the petition for DNA testing:
"The Court's going to deny the Motion for Appointment of Counsel on all
grounds at this time, noting that when the statute reflects the word 'post-conviction,' that
conviction is not final. That presupposes that a conviction is actually final, and this one is
not, because no mandate has been issued by the Kansas Supreme Court on that portion of
the decision. And I'm doing so under the representation of the State that all DNA
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evidence is secure, it's maintained, it's not being thrown away, or nothing is being done
with it that is going to impair Mr. Thurber's rights with respect to that issue for it to be
raised at whatever the appropriate time is. . . . I'd like to get it all done as soon as I
possibly can, but I think that's the appropriate legal approach. So the motion is denied at
this time."
The district court subsequently memorialized this decision in a journal entry:
"[T]he Court finds that for purposes of K.S.A. 21-2512(a), the defendant's conviction is
not final because the Kansas Supreme Court has not issued a mandate. Accordingly, the
Court denies the defendant's Motion for Appointment of Counsel for post-conviction
DNA litigation. The Court orders the State to maintain safe-keeping of the evidence."
Again, the district court did not expressly address the Petition. Thurber then
appealed and was granted leave to docket his appeal out of time.
ANALYSIS
Thurber argues that the district court erred in failing to appoint counsel to
represent him in his petition for DNA testing and in "dismissing" the petition itself. The
State claims that the district court lacked jurisdiction to act on Thurber's filings.
Standard of Review
The district court's interpretation of a statute raises a question of law subject to de
novo review on appeal. E.g., In re F.C., 313 Kan. 31, 36, 482 P.3d 1137 (2021). The
same is true of a district court's determination of its own jurisdiction. State v. Sellers, 301
Kan. 540, 544, 344 P.3d 950 (2015). Our framework for statutory analysis is well known:
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"The principal rule governing interpretation of statutes is that the legislature's
intent governs if this court can ascertain that intent. The court presumes that the
legislature expressed its intent through the language of the statutory scheme. When the
statutory language is plain and unambiguous, the courts therefore do not need to resort to
statutory construction. [Citations omitted.]" State v. Bee, 288 Kan. 733, 737, 207 P.3d
244 (2009).
Discussion
We begin with the language of K.S.A. 2020 Supp. 21-2512, which provides, in
relevant part:
"(a) Notwithstanding any other provision of law, a person in state custody, at any
time after conviction for murder in the first degree as defined by K.S.A. 21-3401, prior to
its repeal, or K.S.A. 2020 Supp. 21-5402, and amendments thereto, or for rape as defined
by K.S.A. 21-3502, prior to its repeal, or K.S.A. 2020 Supp. 21-5503, and amendments
thereto, may petition the court that entered the judgment for forensic DNA testing
(deoxyribonucleic acid testing) of any biological material that:
(1) Is related to the investigation or prosecution that resulted in the conviction;
(2) is in the actual or constructive possession of the state; and
(3) was not previously subjected to DNA testing, or can be subjected to retesting
with new DNA techniques that provide a reasonable likelihood of more accurate
and probative results.
....
"(e) The court may at any time appoint counsel for an indigent applicant under
this section." (Emphases added.)
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We have previously recognized that "a conviction is not final until final judgment
on both the conviction and the sentence has been entered on direct appeal." State v.
Kleypas, 305 Kan. 224, 263, 382 P.3d 373 (2016). But K.S.A. 2020 Supp. 21-2512(a)
does not use the word "final" to modify the words "conviction" or "judgment," and does
not mention "sentence" in the context of "any time after conviction." Instead, the statute
refers to either a wrongful conviction or sentence, suggesting that the absence of the
words "sentence" or "final" from subsection (a) was not accidental. K.S.A. 2020 Supp.
21-2512(c). Likewise, although K.S.A. 2020 Supp. 21-2512 lies outside the Kansas
Criminal Code, the term "conviction" is defined within the Code to include "a judgment
of guilt entered upon a plea of guilty," suggesting that the conviction itself constitutes a
judgment. K.S.A. 2020 Supp. 21-5111(d). Consequently, the plain language of K.S.A.
2020 Supp. 21-2512(a) provides that a defendant need not wait until sentencing to seek
relief under that statute. See State v. Williams, 58 Kan. App. 2d 409, 419, 471 P.3d 17(Based on the inclusion of the words "any time after conviction" in the statute, "[w]e
think it unlikely the legislature would use such broad and clear language if it intended a
different timeframe to apply."), rev. denied 312 Kan. 901 (2020). With this plain
language, we find the district court's rejection of Thurber's motion for the appointment of
counsel based on the non-finality of Thurber's conviction to be erroneous.
This conclusion does not end our inquiry, however. The State argues that Williams
is distinguishable because, here, the district court had no jurisdiction to address anything
related to Thurber's guilt; that jurisdiction was vested with the Supreme Court once
Thurber's appeal was docketed, and we expressly retained jurisdiction following our
decision on Thurber's direct appeal.
Ordinarily, the State would be correct. "There are few if any exceptions to the
general rule that district courts lose jurisdiction over a matter once the appeal has been
docketed." State v. Scott, No. 102,837, 2010 WL 4156967, at *2 (Kan. App. 2010)
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(unpublished opinion). But see Burch v. Lynch, No. 108,798, 2013 WL 2972822, at *4
(Kan. App. 2013) (unpublished opinion) (reciting the same principle of law, but then
finding such an exception). For instance, the district court ordinarily loses jurisdiction to
hear posttrial motions once an appeal is docketed. See State v. Smith, 278 Kan. 45, 51, 92
P.3d 1096 (2004). And as this court recently recognized,
"Generally, under Kansas statutes, a district court has jurisdiction over a criminal
case until it enters judgment and the time for appeal has expired. Unless a specific statute
grants jurisdiction beyond that point in the proceedings, a district court lacks jurisdiction
to consider postconviction motions." State v. Robertson, 309 Kan. 602, 604, 439 P.3d 898(2019).
Additionally, in another recent case, this court reasoned:
"Kansas courts have only the judicial power to hear those matters over which they have
jurisdiction. That jurisdiction derives from Article 3, sections 1, 3, and 6 of the Kansas
Constitution, which generally grant the State's judicial power through jurisdiction as
provided by law. The usual mechanism for the law to define that jurisdiction is through
statutes.
"Generally, under the applicable statutes, once a district court enters a valid
judgment and the time for appeal has expired, a district court lacks jurisdiction to
consider a postconviction motion. [Citations omitted.]" State v. Smith, 309 Kan. 977,
981-82, 441 P.3d 1041 (2019).
Here, however, the plain language of the statute authorizes the district court's
exercise of jurisdiction over a petition filed under K.S.A. 2020 Supp. 21-2512 regardless
of our general rules divesting it of jurisdiction once an appeal has been docketed. Twice,
K.S.A. 2020 Supp. 21-2512 authorizes action "notwithstanding any other provision of
law"—a phrase that, when combined with the absence of any limitation on the timing of a
petition ("at any time after conviction") or the timing of the district court's authority to
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appoint counsel for a petitioner ("at any time"), leads us to conclude that the Legislature
intended to carve out K.S.A. 2020 Supp. 21-2512 as a special extension of the district
court's jurisdiction.
This reading comports with our prior caselaw. For instance, in State v. Denney,
283 Kan. 781, 793-94, 156 P.3d 1275 (2007), the court considered the intersection of the
specific, legislatively created procedure under K.S.A. 21-2512 with the overall trial
process. Rejecting the notion that this procedure represented "a continuation of the trial
against the defendant," the court reasoned that "the legislatively-created procedures
evince a laudable, yet limited, effort to provide for postconviction DNA testing under
narrow circumstances." 283 Kan. at 793-94. And more recently, the court—relying in
part on Denney—concluded that an attempt to obtain DNA testing under K.S.A. 21-2512
constitutes "a new matter within [a defendant's] old criminal case." State v. LaPointe, 305
Kan. 938, 951, 390 P.3d 7 (2017). As the court observed, a district court's order for DNA
testing was merely the first step in the overall process—a process which had to reach a
state of finality independent from any other finality in the case. 305 Kan. at 951.
We appreciate the district court's hesitation to exercise concurrent jurisdiction for
proceedings under K.S.A. 2020 Supp. 21-2512 in light of Thurber's ongoing direct appeal
litigation. Our prior caselaw has expressed grave reservations about parallel criminal
proceedings, and for good reason. See, e.g., LaPointe, 305 Kan. at 949-50 (recognizing
the dangers of piecemeal appeals, which are disfavored by policy); Kleypas, 305 Kan. at
243 ("First, to sever a Kansas conviction from the sentence for purposes of res judicata
finality could result in confusion, piecemeal litigation, potentially incongruent outcomes,
and judicial inefficiency."); State v. Dedman, 230 Kan. 793, 797, 640 P.2d 1266 (1982)
("[W]e deem it better policy to have jurisdiction of a criminal action repose in only one
court at a time to prevent a case from getting lost in the system."). The risk of procedural
confusion or uncertainty—or for a district court's ruling under K.S.A. 2020 Supp. 21-
2512(f) to render moot an entire ongoing direct appeal—is not insignificant. But the
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Legislature has decided to expand the district court's jurisdiction to proceedings under
K.S.A. 2020 Supp. 21-2512, irrespective of ongoing appellate proceedings.
We further recognize the policy goals behind such an expansion in the case of
DNA evidence, which, by its very nature, is impermanent. A discussion of the likelihood
of such degradation—or of the methods used by law enforcement to prevent such
degradation—is far beyond the purview of this opinion. Suffice it to say that we, like the
Legislature, recognize the risk that an innocent individual convicted of a crime covered
by the statute could lose the ability to establish innocence via postconviction procedures
due solely to the caprice of fate and time.
Consequently, we conclude that K.S.A. 2020 Supp. 21-2512 grants continuing
jurisdiction to "the court that entered the judgment" to consider a petition for DNA
testing "at any time" following conviction and to appoint counsel "at any time,"
regardless of other ongoing appellate proceedings. We also conclude that K.S.A. 2020
Supp. 21-2512 does not require a conviction to reach a stage of appellate finality as a
prerequisite to a petition for DNA testing. We thus reverse the district court's denial of
Thurber's motion for appointment of counsel—and its refusal to address Thurber's
petition—and remand the matter to the district court to consider Thurber's filings under
K.S.A. 2020 Supp. 21-2512 without regard to the finality of Thurber's direct appeal.
CONCLUSION
The district court's decision to deny Thurber's motion for the appointment of
counsel and petition for DNA testing is reversed. The matter is remanded to the district
court with instructions to consider Thurber's filings independently of the ongoing
litigation with respect to Thurber's direct appeal of his conviction and sentence.
Reversed and remanded with directions.
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