State v. Hannebohn

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No. 107,754

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROY HANNEBOHN,
Appellant.

SYLLABUS BY THE COURT

1.
The right to appeal is entirely statutory and is not contained in the United States or
Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have
jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by
statutes.

2.
The filing of a timely notice of appeal is jurisdictional, and any appeal not taken
within the statutory deadline must be dismissed. A limited exception to this general rule
is recognized in those cases where an indigent defendant either (1) was not informed of
the right to appeal, including the appeal filing deadline; (2) was not furnished an attorney
to perfect an appeal; or (3) was furnished an attorney for that purpose who failed to
perfect and complete an appeal.

3.
Generally, an appellate court's jurisdiction is limited to a final judgment. To have a
final judgment in a criminal case, the defendant must be convicted and sentenced. The
defendant's sentence is not final if the district court has ordered restitution but no amount
has been set.
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4.
Kansas district courts should follow the proper procedure when sentencing a
criminal defendant in a felony case and ordering restitution to be determined at a later
hearing. First, because the sentencing is not complete until the district court determines
the amount of restitution, the district court should refrain from notifying the defendant of
his or her deadline to file an appeal at the initial sentencing hearing. Next, the district
court should hold the restitution hearing as soon as possible so that the defendant's
sentence can become a final judgment. Because restitution is part of a defendant's
sentence, the amount of restitution must be determined and imposed in open court in the
defendant's presence, unless the defendant voluntarily waives his or her presence. Finally,
at the completion of the restitution hearing, the district court should notify the defendant
of his or her appeal rights, including the deadline for filing the appeal.

5.
Under the facts of this case in which the defendant filed a motion to file an appeal
out of time and the record reflects that the district court failed to notify the defendant of
his statutory appeal rights at the completion of the restitution hearing, the district court
should hold a hearing and make findings of fact and conclusions of law as to whether the
defendant should be permitted to file an out-of-time appeal pursuant to State v. Ortiz, 230
Kan. 733, 640 P.2d 1255 (1982).

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed May 3, 2013.
Reversed and remanded with directions.

Joanna Labastida, of Kansas Appellate Defender Office, for appellant.

Daniel D. Gilligan, assistant district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

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Before MALONE, C.J., BUSER, J., and ERNEST L. JOHNSON, District Judge Retired,
assigned.

MALONE, C.J.: Roy Hannebohn appeals the district court's denial of his motion to
file an appeal out of time. Hannebohn was convicted of criminal threat following a guilty
plea. At the initial sentencing hearing, the district court ordered restitution but left the
amount to be determined at a later time. The district court also notified Hannebohn of his
statutory appeal rights and the deadline for filing an appeal. At a subsequent hearing, the
district court determined the amount of restitution but did not advise Hannebohn of his
right to appeal. Hannebohn later filed a motion to file an appeal out of time, claiming that
he mistakenly believed that his court-appointed attorney was pursuing an appeal. The
district court denied the motion without hearing evidence on the ground that the court had
informed Hannebohn of his appeal rights at the initial sentencing hearing. We conclude
the district court erred by summarily denying Hannebohn's motion to file an appeal out of
time, and we remand with directions for the district court to hold a hearing and make
findings pursuant to State v. Ortiz, 230 Kan. 733, Syl. ¶ 3, 640 P.2d 1255 (1982).

FACTS

On July 9, 2010, the State charged Hannebohn with one count of aggravated
assault and one count of criminal damage to property. Because Hannebohn was indigent,
the district court appointed the public defender to represent him. On March 31, 2011,
following plea negotiations, Hannebohn pled guilty to an amended charge of criminal
threat. At the plea hearing, the district court accepted Hannebohn's plea and advised him
of his right to appeal any sentence imposed.

The district court held a sentencing hearing on April 29, 2011. Pursuant to the plea
agreement, the district court sentenced Hannebohn to 7 months' imprisonment and placed
him on probation for 12 months. At the hearing, Hannebohn objected to the amount of
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restitution being requested by the victim. The district court ordered restitution but left the
amount to be determined at a later time. The district court also informed Hannebohn of
his right to appeal his sentence by filing a written notice of appeal within 14 days.

The district court held a restitution hearing on September 29, 2011. Both the crime
victim and Hannebohn testified at the hearing. After hearing the evidence, the district
court ordered restitution in the amount of $2,776.64. But at the conclusion of the hearing,
the district court did not advise Hannebohn of his right to appeal.

Several months later, Hannebohn's court services officer informed Hannebohn's
counsel that Hannebohn was under the impression that his case was on appeal. Based on
this information, counsel followed up with Hannebohn and advised him that, in fact, his
case was not on appeal. On February 2, 2012, Hannebohn's counsel filed a motion to file
an appeal out of time. The motion stated there was no record at the restitution hearing
that either the district court or defense counsel had advised Hannebohn of his right to
appeal and that Hannebohn erroneously believed that his case was on appeal.

On February 3, 2012, the district court held a nonevidentiary hearing on the
motion. At the hearing, Hannebohn's counsel advised the court that she thought she
needed to withdraw in order to be a witness because based upon her notes there was no
record that she advised Hannebohn of his right to appeal after the September 29, 2011,
restitution hearing. Counsel also noted that the record of the restitution hearing reflected
that the district court did not inform Hannebohn of his right to appeal. The district court
found that because it had informed Hannebohn of his appeal rights at the plea hearing and
at the initial sentencing hearing, the court was not required to inform Hannebohn of his
appeal rights for a third time at the restitution hearing. The district court also found that it
was unnecessary to determine whether Hannebohn's appeal deadline began to run after
the initial sentencing hearing or after the restitution hearing because "by either count he's
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out of time so the motion is denied." Hannebohn timely appealed the denial of his motion
to file an appeal out of time.

ANALYSIS

On appeal, Hannebohn claims the district court erred in denying his motion to file
an appeal out of time. Specifically, Hannebohn argues that the district court should have
informed him of his appeal rights and the deadline for filing an appeal at the conclusion
of the restitution hearing and the district court's failure to do so falls under the first Ortiz
exception for allowing an appeal to be filed out of time. Hannebohn also argues that he
was furnished an attorney to file an appeal but the attorney failed to perfect and complete
the appeal, and this failure falls under the third Ortiz exception. The State simply notes
that the district court advised Hannebohn of his appeal rights at the plea hearing and at
the initial sentencing hearing and it was unnecessary for the district court to notify
Hannebohn of his appeal rights a third time at the restitution hearing.

"The facts underlying an Ortiz exception ruling should be examined on appeal
under a substantial competent evidence standard of review. The ultimate legal
determination of whether those facts fit the exception should be reviewed under a de
novo standard." State v. Phinney, 280 Kan. 394, 404, 122 P.3d 356 (2005).

The right to appeal is entirely statutory and is not contained in the United States or
Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have
jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by
statutes. State v. Gill, 287 Kan. 289, 293-94, 196 P.3d 369 (2008). K.S.A. 2012 Supp. 22-
3608(c) provides that for crimes committed on or after July 1, 1993, the defendant shall
have 14 days after the judgment of the district court to appeal. Hannebohn failed to file a
notice of appeal within 14 days after either the original sentencing hearing on April 29,
2011, or the restitution hearing on September 29, 2011.
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The filing of a timely notice of appeal is jurisdictional, and any appeal not taken
within the statutory deadline must be dismissed. A limited exception to this general rule
is recognized in those cases where an indigent defendant either (1) was not informed of
the right to appeal, including the appeal filing deadline; (2) was not furnished an attorney
to perfect an appeal; or (3) was furnished an attorney for that purpose who failed to
perfect and complete an appeal. State v. Patton, 287 Kan. 200, Syl. ¶ 3, 195 P.3d 753
(2008); Phinney, 280 Kan. at 401 (citing Ortiz, 230 Kan. at 735-36). But if any of these
narrow exceptional circumstances are met, a court must allow an appeal out of time.
Phinney, 280 Kan. at 401-02.

Here, the district court did not expressly address the three Ortiz exceptions in
denying Hannebohn's motion to file an appeal out of time. Instead, the district court
simply found that because it had informed Hannebohn of his appeal rights at the plea
hearing and at the initial sentencing hearing, the court was not required to inform
Hannebohn of his appeal rights for a third time at the restitution hearing. The district
court also found that it was unnecessary to determine whether Hannebohn's appeal
deadline began to run after the initial sentencing hearing or after the restitution hearing
because he was out of time in either case.

Before addressing whether the district court erred in denying Hannebohn's motion
to file an appeal out of time, we will review some general principles of criminal
procedure concerning a defendant's right to appeal from a final judgment in district court.
K.S.A. 2012 Supp. 22-3424 sets forth the procedure for the district court to render
judgment and impose sentence, including the assessment of restitution as part of the
sentence. K.S.A. 2012 Supp. 22-3424(d) provides:

"If the verdict or finding is guilty, upon request of the victim or the victim's
family and before imposing sentence, the court shall hold a hearing to establish
restitution. The defendant may waive the right to the hearing and accept the amount of
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restitution as established by the court. If the court orders restitution to be paid to the
victim or the victim's family, the order shall be enforced as a judgment of restitution
pursuant to K.S.A. 60-4301 through 60-4304."

The Kansas Supreme Court has held that under this statute a district court is
permitted to hold a hearing to determine the amount of restitution after the initial
sentencing hearing, provided restitution was ordered at the initial sentencing hearing. In
State v. Cooper, 267 Kan. 15, 977 P.2d 960 (1999), the defendant pled no contest to
aggravated battery, and the district court sentenced the defendant to 2 years' presumptive
probation. At the sentencing hearing, the State informed the district court that it would
request restitution, but it did not have the necessary documentation at that time to provide
the specific amount of restitution. The district court ordered the defendant to pay
restitution, with the amount "'to be determined within 30 days.'" 267 Kan. at 16. Nearly 6
months later, the State filed a motion to determine the appropriate amount of restitution.
Over the defendant's objection, the district court held a hearing and ordered restitution in
the amount of $2,500.

On appeal, the defendant argued that the restitution order constituted an illegal
sentence because the district court had lost jurisdiction to order restitution beyond 30
days after the initial sentencing. The Supreme Court held the sentence was not illegal,
because the district court had put the defendant on notice at the sentencing hearing that
she would be required to pay an undetermined amount of restitution. 267 Kan. at 18. The
Supreme Court further held that the district court did not abuse its discretion by holding
the restitution hearing beyond the initial 30-day deadline. 267 Kan. at 18-19.

In State v. McDaniel, 292 Kan. 443, 254 P.3d 534 (2011), the defendant pled
guilty to one count of aggravated battery. Shortly before the sentencing hearing, a
presentence investigation report was filed, which included a restitution amount of
$21,269.06. At the sentencing hearing, the district court pronounced a sentence of 34
months' imprisonment. But when the defendant objected to the restitution amount, the
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district court ordered restitution to be determined at a later date. At the close of the
sentencing hearing, the district court informed the defendant that if he wished to appeal,
he was required to file a notice of appeal within 10 days (under the then-applicable
version of K.S.A. 22-3608[c]) after the sentencing hearing. Several weeks later, the
district court held a restitution hearing and ordered restitution in the amount of $7,744.26
based on the stipulation of the parties.

On appeal, the defendant challenged the district court's jurisdiction to set the
restitution amount. The defendant first argued that 22-3424(d) required the district court
to hold the restitution hearing before the sentence was imposed and not at a later hearing.
The defendant also argued that the restitution ordered at the original sentencing hearing
was zero and that the amount was later changed at the restitution hearing to $7,744.26, in
violation of the rule that a court may not alter a sentence after pronouncement. See State
v. Anthony, 274 Kan. 998, 1002, 58 P.3d 742 (2002) (district court has no authority to
modify sentence).

In rejecting the defendant's argument, the Supreme Court first noted that
restitution constitutes part of a criminal defendant's sentence. McDaniel, 292 Kan. at 446.
The Supreme Court also determined that the language in 22-3424(d) stating that the court
shall hold a restitution hearing before imposing sentence is directory rather than
mandatory. 292 Kan. at 446-47. The Supreme Court further determined that the district
court did not impermissibly modify the defendant's sentence by ordering restitution at the
later restitution hearing; rather, the restitution order completed the sentence. 292 Kan. at
448. The Supreme Court went on to state:

"Although it may have been better practice for the district judge to wait until the later
[restitution] hearing to conclude his usual sentencing colloquy, and he erred in reciting a
deadline for notice of appeal that fell between the first and second hearings, we see no
prejudice to [the defendant's] rights." (Emphasis added.) 292 Kan. at 448.

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The Supreme Court's statement that the district court erred in reciting a deadline
for the notice of appeal that fell between the initial sentencing hearing and the subsequent
restitution hearing is dicta because it was not central to the holding that the defendant's
sentence was not impermissibly modified. Nevertheless, the McDaniel dicta clearly
supports the proposition that a district court should inform the defendant of his or her
appeal filing deadline at the time sentencing is completed, and not at any earlier time.

When the district court imposes a sentence but orders the amount of restitution to
be determined at a later time, confusion often arises as to when the defendant should
attempt to appeal the sentence, especially when the district court advises the defendant of
an appeal deadline at the initial sentencing hearing. Because criminal defendants
understandably want to ensure they do not lose any appeal rights, they often file a notice
of appeal after the initial sentencing hearing but before the district court determines the
amount of restitution. But such a notice of appeal is premature because it is filed before
the sentence has been completed and before the judgment is final in district court.

McDaniel makes it clear that restitution is part of a defendant's sentence and a
restitution hearing conducted by the district court after a sentencing term is imposed
"complete[s]" the defendant's sentence. 292 Kan. at 446, 448. Generally, an appellate
court's jurisdiction is limited to a final judgment. K.S.A. 2012 Supp. 22-3601(a). To have
a final judgment in a criminal case, the defendant must be convicted and sentenced. State
v. Howard, 44 Kan. App. 2d 508, 511, 238 P.3d 752 (2010). Because the restitution
hearing completes the defendant's sentence and renders the judgment final, no appeal can
be filed in a criminal case when the amount of restitution has been held open until the
district court determines the proper amount of restitution and the judgment becomes final.
See Gates v. Goodyear, 37 Kan. App. 2d 623, 627, 155 P.3d 1196, rev. denied 284 Kan.
948 (2007) (notice of appeal must specify judgment being appealed).

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Likewise, a defendant may not file a notice of appeal after the district court
imposes a partial sentence and then file a subsequent notice of appeal after the district
court later determines the amount of restitution. The district court's judgment is not final
until the amount of restitution has been determined. There is one, and only one, deadline
to file a notice of appeal from the district court's final judgment. Kansas has a clear policy
against piecemeal appeals. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 616,
244 P.3d 642 (2010); State v. Neer, 247 Kan. 137, 140, 795 P.2d 362 (1990).

To sum up, Kansas district courts should follow the proper procedure when
sentencing a criminal defendant in a felony case and ordering restitution to be determined
at a later hearing. First, because the sentencing is not complete until the district court
determines the amount of restitution, the district court should refrain from notifying the
defendant of his or her deadline to file an appeal at the initial sentencing hearing. As our
Supreme Court stated in McDaniel, the district court errs in reciting a deadline for a
notice of appeal that falls between the initial sentencing hearing and the subsequent
restitution hearing. 292 Kan. at 448.

Next, the district court should hold the restitution hearing as soon as possible so
that the defendant's sentence can become a final judgment. Because restitution is part of a
defendant's sentence, the amount of restitution must be determined and imposed in open
court in the defendant's presence, unless the defendant voluntarily waives his or her
presence. See K.S.A. 22-3405. Even if the parties ultimately stipulate to the amount of
restitution, the better practice is for the parties to return to court so the district court can
impose the restitution and complete the sentencing.

Finally, at the completion of the restitution hearing, the district court should notify
the defendant of his or her appeal rights, including the deadline for filing the appeal. See
K.S.A. 2012 Supp. 22-3608(c). To avoid confusion, the better practice would be for the
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parties to delay filing the journal entry of judgment until after the restitution hearing is
completed and the district court's judgment is final.

We will now turn to whether the district court erred in denying Hannebohn's
motion to file an appeal out of time. Hannebohn argues that the district court should have
informed him of his appeal rights and the deadline for filing an appeal at the conclusion
of the restitution hearing and the district court's failure to do so falls under the first Ortiz
exception for allowing an appeal to be filed out of time. Hannebohn also argues that he
was furnished an attorney to file an appeal but the attorney failed to perfect and complete
the appeal and this failure falls under the third Ortiz exception. Hannebohn does not
argue that the second Ortiz exception applies to his case.

First Ortiz exception

On appeal, Hannebohn argues that the district court erred in failing to grant his
motion under the first Ortiz exception. Relying on McDaniel, Hannebohn contends that
restitution is a part of the sentence and therefore the district court was required to inform
him of his right to appeal his sentence when the amount of the restitution was determined.
Because it is undisputed that the district court failed to do so, Hannebohn contends that
he has raised a colorable claim under the first Ortiz exception.

We agree that the better practice would have been for the district court to advise
Hannebohn of his appeal rights at the restitution hearing and the district court's statement
at the initial sentencing hearing that the deadline for filing an appeal was 14 days from
that hearing was an error that implicates the first Ortiz exception. The district court's
sentencing order was completed and became a final judgment when the specific amount
of restitution was ordered on September 29, 2011. Hannebohn had one, and only one,
deadline to file a notice of appeal from the district court's final judgment, and that
deadline was 14 days after the restitution hearing was completed on September 29, 2011.
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In Patton, our Supreme Court laid out the framework for evaluating claims under
the first Ortiz exception. First, the defendant bears the burden of showing that the district
court failed to inform the defendant of his or her right to appeal at sentencing. Second, if
the record reveals that the district court did not adequately inform the defendant, the State
may still prevent an untimely appeal by showing that the defendant possessed actual
knowledge of the required information. Third, if the State cannot meet this burden, the
defendant must prove that if he or she had been properly informed, a timely appeal would
have been sought. Patton, 287 Kan. at 220-22.

Here, it is undisputed that the district court failed to inform Hannebohn of his
appeal rights and the deadline for filing an appeal at the restitution hearing, when the
sentencing order was completed. But there is no evidence upon which the district court
could determine whether Hannebohn had adequate independent knowledge of his appeal
rights or whether he would have timely appealed had he known of his appeal rights.
Thus, we must remand this case for the district court to hold a hearing and make findings
of fact and conclusions of law, consistent with Patton, as to whether Hannebohn should
be permitted to file an out-of-time appeal under the first Ortiz exception.

Third Ortiz exception

Hannebohn also argues that the district court erred in denying his motion to file an
appeal out of time without addressing the third Ortiz exception or making the relevant
factual findings. The third Ortiz exception is implicated when the defendant is furnished
counsel for the purpose of filing an appeal and counsel fails to perfect and complete an
appeal. When this occurs, Ortiz relief will be granted if the defendant demonstrates that,
but for counsel's failure, he or she would have taken a timely appeal. Patton, 287 Kan. at
225.

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Here, it is undisputed that Hannebohn was furnished counsel who failed to file a
direct appeal, either after the original sentencing hearing or the later restitution hearing.
Once again, there is no evidence upon which the district court could determine whether
Hannebohn would have timely appealed but for counsel's failure to file an appeal. Thus,
we conclude that upon remand the district court also must make findings of fact and
conclusions of law, consistent with Patton, as to whether Hannebohn should be permitted
to file an out-of-time appeal under the third Ortiz exception.

Reversed and remanded with directions.