State v. Howard

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No. 101,824

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOHN D. HOWARD,
Appellant.


SYLLABUS BY THE COURT

1.
The issue of subject matter jurisdiction may be raised at any time by a party or by
a court, including an appellate court. An appellate court's standard of review on the issue
of subject matter jurisdiction is unlimited.


2.
In Kansas, the right to appeal is controlled by statute. Under K.S.A. 22-3608(c), a
criminal defendant has 10 days from sentencing to file a notice of appeal.

3.
Kansas courts have held that in the interest of fundamental fairness, a defendant
may file a late direct appeal under the following narrow exceptional circumstances: (1)
when the defendant has not been informed of his or her right to appeal; (2) when the
defendant has not been furnished an attorney to perfect his or her appeal; and (3) when
the defendant has been furnished an attorney who failed to perfect the appeal. Those rules
have been extended to cases where an attorney's deficient conduct denied a defendant's or
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a K.S.A. 60-1507 movant's right to an appeal or prevented our Supreme Court from
considering a timely petition for review.

4.
Under the plain language of K.S.A. 60-1507(b), the trial court, in ruling on a
K.S.A. 60-1507 motion, has the authority to vacate and set aside the judgment and
discharge the prisoner, resentence the prisoner, grant a new trial, or correct the sentence.
Nothing in K.S.A. 60-1507 provides the trial court with authority to grant a second direct
appeal.

5.
A trial court does not have the authority to allow a defendant to file a second direct
appeal in his or her criminal case, and an appellate court lacks jurisdiction to consider
such an appeal.

Appeal from Sedgwick District Court; ROBB W. RUMSEY, judge. Opinion filed September 10,
2010. Appeal dismissed.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Steve
Six, attorney general, for appellee.

Before STANDRIDGE, P.J., GREEN and HILL, JJ.

GREEN, J.: This case comes before us for the second time on direct appeal after
the trial court found that Howard's first appellate counsel was ineffective in failing to
adequately supplement the appellate record, which prohibited this court from adequately
considering Howard's argument concerning his forced removal from the courtroom
during a motions hearing. After finding that Howard's appellate counsel was ineffective,
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the trial court provided relief in the form of a second direct appeal. Nevertheless, we
determine that the trial court did not have the authority to order a second direct appeal,
and this court does not have jurisdiction to consider a second direct appeal. Accordingly,
we dismiss Howard's current appeal.

In his underlying criminal case, Howard was found guilty by a jury of severity
level 4 aggravated battery and sentenced to 144 months in prison. Howard's conviction
was based upon an incident that occurred when he and his friend, Cooper Tunnell, went
to the home of Matthew Brantley and an altercation ensued between the three men.
During the incident, Howard hit Brantley with a shotgun. Brantley sustained injuries
during the altercation and received treatment for a lacerated scalp and a hairline skull
fracture.

Howard and Tunnell were tried together. After being convicted by a jury of
severity level 4 aggravated battery, Howard filed a direct appeal with this court. One of
the issues raised by Howard in his direct appeal was that the trial court erred in ordering
him from the courtroom during a motions hearing. In rejecting Howard's argument, this
court noted that Howard had failed to object to the trial court's statement about leaving
the courtroom. Moreover, this court determined that the record failed to show that
Howard was actually required to leave the courtroom. This court also rejected the
remainder of Howard's arguments and affirmed his conviction and sentence. See State v.
Howard, No. 96,620, unpublished opinion filed November 21, 2007.

Howard's appellate counsel attempted to file a petition for review, but it was
beyond the 30-day time period. Although Howard's appellate counsel moved to file the
petition for review out of time, the motion was denied.

Howard later moved for relief under K.S.A. 60-1507 and raised ineffective
assistance of counsel claims. Specifically, Howard argued that his trial counsel was
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ineffective for failing to make a contemporaneous objection to his removal from the
courtroom during the motions hearing. Howard further argued that his appellate counsel
was ineffective for failing to supplement the record and provide a complete record so that
this court could adequately address the issue of his removal from the courtroom during
the motions hearing.

The trial court held an evidentiary hearing on Howard's K.S.A. 60-1507 motion. In
a written order, the trial court found that defense counsel's conduct in failing to object to
Howard's removal from the courtroom was deficient. The trial court determined,
however, that the errors committed by Howard's trial counsel were not so serious as to
deprive Howard of a fair trial. Accordingly, the trial court denied Howard relief on his
K.S.A. 60-1507 motion.

On the other hand, the trial court determined that appellate counsel's failure to
adequately supplement the record and his failure to timely file the petition for review
prohibited the appellate court from considering Howard's argument concerning his
removal from the courtroom. The trial court further found that the errors of Howard's
appellate counsel, combined with the court reporter's failure to accurately record the
events of the trial, prohibited Howard from receiving a fair appeal. Further, the trial court
determined that there was a reasonable probability of a different outcome had appellate
counsel not committed error.

As a remedy, the trial court allowed Howard to file a second direct appeal in his
criminal case with a supplemented appellate record on his allegation of his involuntary
absence from the courtroom during the motions hearing. The trial court ruled that if this
court did not grant Howard relief, Howard's petition for review to our Supreme Court
should be allowed to include the issue of his absence from the courtroom and any of the
issues raised in his original untimely petition for review. On January 7, 2009, nearly 3
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years after his criminal conviction and sentencing, Howard filed a second notice of
appeal in his criminal case.

Importantly, neither the State nor Howard has filed an appeal in Howard's K.S.A.
60-1507 case. As a result, the trial court's rulings in that case are not before this court for
review. The only case presently before this court is Howard's second direct appeal in his
criminal case.

On July 12, 2010, this court issued an order to the parties to show cause why this
appeal should not be dismissed for lack of jurisdiction. In the show cause order, the
parties were directed to provide this court with authority concerning whether the trial
court can order a second direct appeal and whether this court has jurisdiction to consider
a second direct appeal in Howard's criminal case.

The issue of subject matter jurisdiction may be raised at any time by a party or by
a court, including an appellate court. An appellate court's standard of review on the issue
of subject matter jurisdiction is unlimited. State v. Patton, 287 Kan. 200, 205, 195 P.3d
753 (2008).

Kansas appellate courts have jurisdiction only as provided by law. See K.S.A. 22-
3608; Patton, 287 Kan. at 206. The right to appeal is controlled by statute. Under K.S.A.
22-3602(a), a criminal defendant can appeal from any judgment against the defendant in
the district court and "upon appeal any decision of the district court or intermediate order
made in the progress of the case may be reviewed." A judgment has been rendered when
the defendant has been convicted and sentenced or imposition of sentence suspended.
City of Topeka v. Martin, 3 Kan. App. 2d 105, 590 P.2d 106 (1979). A criminal defendant
has 10 days from sentencing to file a notice of appeal. See K.S.A. 22-3608(c); State v.
Bost, 21 Kan. App. 2d 560, Syl. ¶ 1, 903 P.2d 160 (1995). There is no statutory provision
authorizing a second direct appeal.
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Kansas courts have held that in the interest of fundamental fairness, a defendant
may file a late direct appeal under the following narrow exceptional circumstances: (1)
when the defendant has not been informed of his or her right to appeal; (2) when the
defendant has not been furnished an attorney to perfect his or her appeal; and (3) when
the defendant has been furnished an attorney who failed to perfect the appeal. See Patton,
287 Kan. at 206; State v. Ortiz, 230 Kan. 733, 735-36, 640 P.2d 1255 (1982).

In his response to the show cause order, Howard argues that Kansas appellate
courts "have expanded the scope of the appellate statutes on the basis of fundamental
fairness and have granted the district courts the ability to implement such actions."
Howard asserts that the trial court's ruling allowing him to file a second direct appeal was
authorized under the decisions in Kargus v. State, 284 Kan. 908, 169 P.3d 307 (2007);
Brown v. State, 278 Kan. 481, 101 P.3d 1201 (2004); Ortiz, 230 Kan. 733; and In re
T.M.C., 26 Kan. App. 2d 297, 988 P.2d 241 (1999).

Nevertheless, the language pointed to by Howard in those cases involves situations
where an attorney's deficient conduct denied a defendant's or a K.S.A. 60-1507 movant's
right to an appeal or prevented our Supreme Court from considering a timely petition for
review. See K.S.A. 22-3602(a); K.S.A. 20-3018(b); see also Kargus, 284 Kan. at 929
(holding that if defendant could establish ineffective assistance of counsel in failure to
file petition for review in his direct appeal, then appropriate remedy would be to allow
filing of petition for review out of time); Brown, 278 Kan. at 484-86 (holding that
appointed counsel's failure to timely notify K.S.A. 60-1507 movant that motion was
denied and that movant had right to appeal entitled movant to file notice of appeal out of
time for original K.S.A. 60-1507 motion); Ortiz, 230 Kan. at 736 (recognizing that
exception to requirement of timely filing of notice of appeal exists in cases where
defendant either was not told of right to appeal or was not furnished attorney to exercise
those rights or was furnished attorney for that purpose who failed to perfect and complete
appeal).
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Unlike the cases where the defendant or a K.S.A. 60-1507 movant has been
deprived of the right to file an appeal or a petition for review, a right to which he or she
was entitled by law, Howard has not been deprived of such a right. Howard has already
exercised his right to file a direct appeal in his criminal case. This court affirmed
Howard's convictions in the unpublished opinion filed on November 21, 2007, and the
mandate in his criminal case was issued on December 26, 2007. Since that time, there has
been no new conviction and sentence from which Howard is entitled to file a direct
appeal under K.S.A. 22-3602(a).

As pointed out by Howard in his response to the show cause order, the plain
language of K.S.A. 60-1507(b) limits the authority of the trial court as follows:

"(b) Hearing and judgment. Unless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no relief, the court shall cause
notice thereof to be served upon the county attorney, grant a prompt hearing thereon,
determine the issues and make findings of fact and conclusions of law with respect
thereto. The court may entertain and determine such motion without requiring the
production of the prisoner at the hearing. If the court finds that the judgment was
rendered without jurisdiction, or that the sentence imposed was not authorized by law or
is otherwise open to collateral attack, or that there has been such a denial or infringement
of the constitutional rights of the prisoner as to render the judgment vulnerable to
collateral attack, the court shall vacate and set the judgment aside and shall discharge the
prisoner or resentence said prisoner or grant a new trial or correct the sentence as may
appear appropriate."

Thus, K.S.A. 60-1507(b) gives the trial court the authority to vacate and set aside
the judgment and discharge the prisoner, resentence the prisoner, grant a new trial, or
correct the sentence. Nothing in K.S.A. 60-1507 provides the trial court with authority to
grant a second direct appeal.

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If the trial court in this case found that Howard's argument concerning his forced
removal from the courtroom had merit and that the conduct by Howard's attorney was
deficient and prejudiced Howard, then the proper remedy would have been to grant
Howard a new trial. Nevertheless, it is unclear from the trial court's ruling what the trial
court actually found. On the one hand, the trial court held that the conduct by Howard's
trial counsel in failing to adequately raise an issue before the trial court did not warrant a
new trial; but on the other hand, the trial court held that the conduct by Howard's
appellate counsel in failing to adequately raise the same issue on appeal warranted a
second direct appeal. Such rulings are inconsistent, and, as set out previously, the trial
court did not have the legal authority to order a second direct appeal.

It is unnecessary to address the trial court's findings concerning Howard's
ineffective assistance of counsel claim in his K.S.A. 60-1507 case any further because
neither party appealed the trial court's judgment in that case. Because the trial court
lacked the authority to order a second direct appeal, this court does not have jurisdiction
to consider Howard's appeal. As a result, we dismiss Howard's appeal.

Appeal dismissed.