In re J.S. ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,485
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of J.S.
MEMORANDUM OPINION
Appeal from Geary District Court; CHARLES A. ZIMMERMAN, magistrate judge. Opinion filed
June 12, 2020. Appeal dismissed.
Angela M. Davidson, of Wyatt & Davidson, LLC, of Salina, for appellant.
Michelle Brown, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., GARDNER, J., and WALKER, S.J.
PER CURIAM: J.S. appeals from his 1991 admission to the complaint as charged to
felony theft of a motor vehicle, resulting in his adjudication as a juvenile offender, and
from the juvenile sentence imposed upon him. Twenty-six years after his adjudication
and sentence, J.S. filed an untimely notice of appeal from his conviction and sentence,
claiming defense counsel failed to perfect his appeal and that the district court failed to
inform him of his right to appeal. The district court denied this motion. After review, we
dismiss this appeal for lack of jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
On March 22, 1991, the State charged J.S., a juvenile, in a single count complaint
with theft of an automobile valued at more than $500. On June 12, 1991, pursuant to a
negotiated plea agreement, J.S. entered an admission to the charge, and the Geary County
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District Court adjudicated him to be a juvenile offender. The district court placed him on
one year of probation. The journal entry stated J.S. "knowingly, voluntarily and
intelligently waived all applicable Fifth and Sixth Amendment rights under federal and
state constitutions" and that the district court accepted J.S.'s plea. On September 16,
1992, he was discharged from probation.
On November 8, 2017, J.S. filed a pro se notice of appeal out of time. This filing
stated that his attorney failed to perfect or complete an appeal of his sentence and
conviction. He argued his attorney had an obligation to file his appeal and that his
attorney and the district court failed to inform him of his right to appeal his sentence and
conviction.
On May 29, 2018, J.S. filed an "Affidavit in Support of Notice of Appeal Out of
Time," in which he stated he did not "recall" the district court or his attorney advising
him of his right to appeal his sentence. J.S. also stated he learned from another inmate
that the district court failed to advise him of his rights under K.S.A. 38-1633 (now K.S.A.
2019 Supp. 38-2344) and that, as such, his rights to a jury trial were violated.
On March 4, 2019, J.S. appeared in the district court for a hearing on his untimely
notice of appeal, and he advised the district court judge that to "the best of [his]
recollection" he was not advised of his rights to a jury trial or his rights to appeal. The
district court ultimately ruled that J.S. submitted his notice of appeal and corresponding
motions out of time and dismissed the matter.
J.S. now timely appeals the dismissal of his untimely notice of appeal.
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ANALYSIS
J.S. makes two arguments on appeal. First, he argues he should be allowed to
appeal out of time because the district court failed to advise him of his right to appeal.
Second, J.S. argues the district court failed to notify him of his rights under K.S.A. 38-
1633 (Ensley 1986) and, therefore, his adjudication cannot stand. We can only reach
J.S.'s second argument if we have jurisdiction over his appeal.
An appellate court exercises "unlimited review over the issue of appellate
jurisdiction." State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016). To the extent
resolution of this case requires interpretation of a statute, such an issue is reviewed de
novo. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).
In 1991, J.S. had 10 days to file his notice of appeal. K.S.A. 38-1681(b) (Ensley
1986). As J.S. concedes: "Kansas appellate courts have jurisdiction only as provided by
law, see K.S.A. 22-3608, and an untimely notice of appeal usually leads to dismissal of
an action." State v. Patton, 287 Kan. 200, 206, 195 P.3d 753 (2008). However, the
Kansas Supreme Court has carved out limited exceptions to this general rule in three
situations when the defendant was: (1) not informed of his or her rights to appeal, (2) not
provided an attorney to exercise those rights, or (3) provided an attorney for that purpose
who then failed to perfect and complete an appeal. State v. Ortiz, 230 Kan. 733, 735-36,
640 P.2d 1255 (1982).
Another panel of this court recently addressed the exact issue that J.S. now raises
in In re I.A., 57 Kan. App. 2d 145, 450 P.3d 347 (2019), rev. granted 311 Kan. __
(February 25, 2020). In that case, the district court denied the respondent's untimely
notice of appeal in his juvenile offender case, and I.A. argued before a panel of our court
that such an action was in error because at his initial adjudication the district court never
informed him of his right to appeal. 57 Kan. App. 2d at 146-47. The In re I.A. panel
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dismissed the appeal for lack of jurisdiction, holding that the first Ortiz exception only
applies when a statute affirmatively requires the district court inform a defendant of his or
her right to appeal and that the Kansas Juvenile Justice Code lacks such a provision. 57
Kan. App. 2d at 152-53. Although not binding, we find the reasoning in that case sound,
and elect to follow it here.
In Kansas, the right to appeal is purely statutory and is not a right contained in the
United States or Kansas Constitutions. State v. Ehrlich, 286 Kan. 923, Syl. ¶ 2, 189 P.3d
491 (2008). In Patton, 287 Kan. at 219-20, the Kansas Supreme Court made clear that the
first Ortiz exception applies where a defendant's failure to timely appeal was caused by
the deprivation of a right to which that defendant was entitled by law. See In re I.A., 57
Kan. App. 2d at 150 (discussing Patton).
On appeal, J.S. claims he was deprived of his right to be advised by the district
court that he had a right to appeal. However, unlike the statutes in the Kansas Code of
Criminal Procedure, which are applicable in adult proceedings, there is no statutory
requirement in the revised Kansas Juvenile Justice Code that a court must advise a
juvenile that he or she had the right to appeal from an order of adjudication or sentencing.
Likewise, there is nothing directing the court to inform a juvenile of his or her right to the
assistance of counsel to pursue an appeal. See K.S.A. 2019 Supp. 38-2344(b)(1)-(6)
(before entering plea district court must inform juvenile of nature of charges,
presumption of innocence, right to jury trial without unnecessary delay, right to confront
and cross-examine witnesses, right to subpoena witnesses, right not to testify, and
sentencing alternatives).
Additionally, we note that the procedure for an appeal from an order of
adjudication or sentencing in juvenile offender proceedings is governed by the Kansas
Code of Civil Procedure. K.S.A. 2019 Supp. 38-2380(b); see K.S.A. 2019 Supp. 38-
2382(c). The only exception to the 30-day limitation to bring an appeal under the Code of
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Civil Procedure is "upon a showing of excusable neglect" by the party. K.S.A. 2019
Supp. 60-2103(a).
The panel in In re I.A., 57 Kan. App. 2d at 151-53, relied on two Kansas Supreme
Court cases to support its conclusion that exceptions to the requirement of a timely filed
notice of appeal apply only if a defendant's failure to timely appeal was caused by the
deprivation of a right which is provided by law.
First, in Guillory v. State, 285 Kan. 223, 170 P.3d 403 (2007), the defendant pled
nolo contendere to first-degree premeditated murder. Guillory filed a pro se motion for
relief under K.S.A. 60-1507 after the time for a direct appeal had run. The district court
summarily denied the relief Guillory requested in his motion. He later filed an untimely
pro se notice of appeal from the summary denial of his K.S.A. 60-1507 motion.
On appeal, a panel of our court issued a show cause order asking the parties to
explain why the appeal should not be dismissed for lack of jurisdiction given that the
appeal was not filed within the time required by K.S.A. 60-2103(a). Guillory responded
that his untimely notice of appeal was permitted under the first Ortiz exception because
the district court did not inform him of his right to appeal the decision denying his 60-
1507 motion. The Court of Appeals panel held that none of the Ortiz exceptions applied
to appeals in 60-1507 cases and dismissed the appeal for lack of jurisdiction. Guillory,
285 Kan. at 224. The Kansas Supreme Court granted Guillory's petition for review and,
like the Court of Appeals, determined it was without jurisdiction to consider the appeal.
See In re I.A., 57 Kan. App. 2d at 151.
"A fatal flaw in Guillory's argument is that the first Ortiz exception, excusing an
untimely notice of appeal where the defendant was not informed of the right to appeal,
was based on the fact that a criminal defendant has a statutory right to be advised of his
or her right to a direct appeal. K.S.A. 22-3424(f) requires the sentencing court to inform
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criminal defendants of the right to appeal. In contrast, there is no statutory requirement
that the district court advise a K.S.A. 60-1507 [movant] of the right to appeal the decision
on his or her [motion].
"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.
....
"As far as the filing of a timely notice of appeal is concerned, a pro se K.S.A. 60-
1507 [movant] is in the same position as all other pro se civil litigants, and is required to
be aware of and follow the rules of procedure that apply to all civil litigants, pro se or
represented by counsel. [Citations omitted.]" Guillory, 285 Kan. at 228-29.
Second, the In re I.A. panel's conclusion that the first Ortiz exception does not
apply in a juvenile offender case was supported by State v. Hemphill, 286 Kan. 583, 591,
186 P.3d 777 (2008). In Hemphill, the district court denied Hemphill's postsentence
motion to withdraw his no contest pleas. Hemphill filed an untimely appeal from the
district court's decision, arguing that he was never informed of his right to appeal from
the denial of a motion to withdraw plea and, therefore, the first Ortiz exception was
applicable to excuse his untimeliness. The Kansas Supreme Court disagreed and held the
first Ortiz exception did not apply under the facts of Hemphill. The court noted that the
district court was under no statutory obligation to inform a defendant of his or her right to
appeal the denial of a motion to withdraw plea.
"K.S.A. 22-4505(a) requires that a district court inform a defendant of his or her right to
appeal from a conviction and the right to have counsel appointed if the defendant is
indigent; K.S.A. 22-3424(f) states that a district court has a duty at sentencing to inform a
defendant of the right to appeal from his or her sentence after a jury conviction. There is
no similar statutory requirement regarding a post-sentence motion to withdraw a plea."
286 Kan. at 591.
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The In re I.A. panel expounded on the Kansas Supreme Court's logic in Hemphill,
and we find the following logic especially compelling:
"Unlike the Kansas Code of Criminal Procedure, nothing within the revised
Kansas Juvenile Justice Code requires the court presiding over a juvenile matter to
affirmatively advise the juvenile of the statutory right to appeal an adjudication or
sentence. The juvenile justice code outlines the juvenile process in detail and contains
several cross-references to other statutory provisions, including some in the code of
criminal procedure. See K.S.A. 2018 Supp. 38-2330(f) (providing that, in certain
circumstances, code of criminal procedure relating to appearance bonds and review of
conditions and release shall be applicable to appearance bonds in juvenile proceedings);
K.S.A. 2018 Supp. 38-2303(c) (setting time limits to commence juvenile proceedings for
any act committed by juvenile which, if committed by adult, would constitute sexually
violent crime as defined in K.S.A. 2018 Supp. 22-3717); K.S.A. 2018 Supp. 38-
2389(c)(5) (providing that juvenile is not required to register as offender under Kansas
Offender Registration Act, K.S.A. 22-4901, as result of adjudication under this section);
K.S.A. 2018 Supp. 38-2356(c) (upon finding by court that juvenile committed offense
charged but is not responsible because of mental disease or defect, juvenile shall be
committed to state hospital and subject to annual review and potential discharge as
provided by K.S.A. 2018 Supp. 22-3428a). Had the Legislature intended to incorporate
the provisions of K.S.A. 2018 Supp. 22-3424(f) requiring the court to advise a criminal
defendant of his or her right to appeal, it would have specifically identified the statute for
that purpose. See State v. Phinney, 280 Kan. 394, 402, 122 P.3d 356 (2005) (requirement
that defendant be fully advised of his or her right to appeal under K.S.A. 22-3424[f] is
not limited to defendants who are convicted after trial; same rule applies to defendants
who plead guilty and forego trial)." In re I.A., 57 Kan. App. 2d at 152-53.
We find no authority to the contrary. See In re Schaffer, No. 120,630, 2019 WL
4123491, at *5 (Kan. App. 2019) (unpublished opinion) (applying In re I.A. and finding
the first Ortiz exception does not apply in juvenile offender appeals). We similarly hold
that the district court was not required by law to advise J.S. of his statutory right to
appeal, and the first Ortiz exception, which J.S. argues was applicable to him before this
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court, does not apply in a juvenile adjudication. Consequently, we do not have the
necessary jurisdiction to consider the underlying merits of J.S.'s appeal. We dismiss this
case for lack of jurisdiction.
Appeal dismissed.
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