State v. Thompson

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No. 103,633

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TRACY THOMPSON,
Appellant.


SYLLABUS BY THE COURT

1.
Whether jurisdiction exists is a question of law over which an appellate court has
unlimited review. Also, the interpretation of a statute is a question of law over which an
appellate court has unlimited review.

2.
The right to appeal is statutory and is not contained in the United States or Kansas
Constitutions. Subject to certain exceptions, Kansas courts have jurisdiction to entertain
an appeal only if the appeal is taken in the manner prescribed by statutes.

3.
A defendant shall have the right to appeal from any judgment of a district
magistrate judge. An appeal from the judgment of a magistrate judge results in a trial de
novo before the assigned district judge.

4.
Kansas courts have repeatedly defined a criminal judgment as a pronouncement of
guilt and the determination of the punishment.
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5.
Under the facts of this case, when a district judge presided over the defendant's
bench trial because the magistrate judge was ill that day and the defendant was later
sentenced by the magistrate judge, the defendant was entitled to appeal the judgment of
the magistrate judge to the district court for a trial de novo.

Appeal from Osage District Court; PHILLIP M. FROMME, judge. Opinion filed March 11, 2011.
Reversed and remanded.

Thomas G. Lemon and Scott A. Grosskreutz, of Cavanaugh & Lemon, P.A., of Topeka, for
appellant.

Brandon L. Jones, county attorney, and Steve Six, attorney general, for appellee.

Before MALONE, P.J., MARQUARDT and LEBEN, JJ.

MALONE, J.: The State charged Tracy L. Thompson with one count each of
driving under the influence of alcohol (DUI), a class B nonperson misdemeanor; no proof
of insurance; and speeding. The case was assigned to a district magistrate judge for a
bench trial, but due to the magistrate judge's illness, the bench trial was presided over by
a district judge, who found Thompson guilty of DUI and speeding. A district magistrate
judge sentenced Thompson and signed the journal entry of judgment. Following the
sentencing, Thompson filed a notice of appeal to district court and requested a jury trial.
The district judge dismissed Thompson's appeal, finding that the district court did not
have jurisdiction because the criminal charges had already been tried before a district
judge. Thompson appeals from that decision. For the reasons set forth herein, we reverse
and remand for further proceedings.

On May 22, 2009, Deputy Samuel Ralston of the Osage County Sherriff's Office
was running radar on Interstate 35 in Osage County. At approximately 2:17 a.m., Ralston
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observed a vehicle that appeared to be going faster than the posted speed limit of 70
m.p.h. Ralston activated his rear antenna on his radar unit, and the radar displayed a
reading of 89 m.p.h. Ralston activated his emergency lights, and the speeding vehicle
immediately pulled over to the side of the road. Ralston came to a stop behind the
vehicle. When Ralston approached the driver's side door, he observed four occupants
inside the vehicle. A male was sitting in the driver's seat, and a female was in the front
passenger seat. The male in the driver's seat identified himself as Thompson.

Ralston informed Thompson of the reason for the stop. While speaking with
Thompson, Ralston noticed a strong odor of alcoholic beverage coming from the vehicle.
He also noticed that Thompson had bloodshot, watery eyes. Thompson informed Ralston
that he had consumed a couple of alcoholic beverages but his last drink was 1 1/2 hours
earlier. Ralston issued Thompson a citation for speeding and no proof of insurance.
Ralston then asked Thompson to submit to field sobriety testing and a preliminary breath
test. As a result of the tests, Ralston arrested Thompson for DUI and transported him to
the Osage County jail. There, Ralston gave Thompson the implied consent advisories and
asked him to submit to an alcohol breath test on the Intoxilyzer 8000. Thompson
consented to testing and his breath sample yielded a result of .086.

On June 24, 2009, the State charged Thompson with misdemeanor DUI, no proof
of insurance, and speeding. Thompson filed a request for trial and pursuant to Rule 4.100
of the Rules of Court for the Fourth Judicial District, the case was assigned to District
Magistrate Judge Jon Stephen Jones for a bench trial. On July 29, 2009, the day of the
scheduled bench trial, Judge Jones was ill so Chief District Judge Phillip M. Fromme
presided at the trial. Thompson did not object to Judge Fromme presiding at the trial.

The central issue at trial was whether Thompson was the driver of the vehicle.
Thompson's theory of defense was that he switched seats with the driver of the vehicle
before Ralston came to a stop behind the vehicle. The State's only witness at trial was
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Ralston. Ralston testified that he did not notice any movement in the vehicle during the
stop. He also testified that he asked Thompson at the Osage County jail if he had been
operating the vehicle and Thompson responded, "Yeah." The State also offered into
evidence a videotape of the stop. Freda Reed and Lauren Baker testified for Thompson.
Both witnesses testified that Lisa Marie Macklin was driving the vehicle on May 22,
2009, but that Macklin and Thompson switched seats after Macklin pulled over to the
side of the road because Macklin did not have a driver's license. Both witnesses testified
that Thompson had not driven the vehicle the entire evening.

After hearing the evidence, Judge Fromme found Thompson guilty of DUI and
speeding. The State voluntarily dismissed the charge of no proof of insurance. After the
finding of guilt, Judge Fromme ordered an alcohol evaluation and set the case for
sentencing at a later date. Judge Fromme did not say anything to Thompson about his
appeal rights. On October 1, 2009, Judge Jones presided at the sentencing hearing. Judge
Jones imposed an underlying jail term of 6 months, assessed fines and costs in the
amount of $705, and placed Thompson on probation for 12 months. Judge Jones later
signed the journal entry of judgment that was filed with the district court.

On October 8, 2009, Thompson filed a notice of appeal to the district court, and
the case was assigned to Judge Fromme for trial. Within 7 days of the trial assignment in
district court, Thompson filed a request for a jury trial pursuant to K.S.A. 22-3404(1).
The State filed a response to Thompson's notice of appeal, contending that because the
bench trial was before a district judge, Thompson's appeal should be taken to the Court of
Appeals. The State argued that the district court lacked jurisdiction to hear the appeal.

On November 10, 2009, Judge Fromme heard arguments of counsel and dismissed
Thompson's appeal to the district court. Judge Fromme found that Thompson did not
have the right to appeal to the district court because he had presided over Thompson's
bench trial as a district judge. Judge Fromme concluded that the district court lacked
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jurisdiction to conduct another trial at the district court level. Thompson timely appealed
Judge Fromme's decision dismissing his appeal to district court.

On appeal, Thompson argues that the district court denied him of his right to a jury
trial when it dismissed his appeal to the district court for lack of jurisdiction. He requests
a remand to the district court for a trial de novo. Thompson also claims there was
insufficient evidence to support his convictions.

Whether jurisdiction exists is a question of law over which an appellate court has
unlimited review. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009). Also,
the interpretation of a statute is a question of law over which an appellate court has
unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).

The right to appeal is statutory and is not contained in the United States or Kansas
Constitutions. Subject to certain exceptions, Kansas courts have jurisdiction to entertain
an appeal only if the appeal is taken in the manner prescribed by statutes. State v. Legero,
278 Kan. 109, Syl. ¶ 2, 91 P.3d 1216 (2004). An appeal from a district magistrate judge's
decision is governed by K.S.A. 22-3609a(1), which provides that a "defendant shall have
the right to appeal from any judgment of a district magistrate judge." (Emphasis added.)
An appeal from the judgment of a magistrate judge results in a trial de novo before the
assigned district judge. K.S.A. 22-3609a(3).

The procedural facts of this case are peculiar. Thompson came to court on July 29,
2009, expecting his case to be tried before a district magistrate judge. Because of the
magistrate judge's illness that day, a district judge presided over the bench trial. No order
was entered formally reassigning the case from the magistrate judge to the district judge.
The district judge found Thompson guilty of DUI and speeding, but he was sentenced by
a magistrate judge. The magistrate judge signed the journal entry of judgment. When
Thompson tried to appeal the judgment to the district court, the same district judge who
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heard the bench trial dismissed the appeal for lack of jurisdiction. At first glance, the
district court's decision dismissing the appeal may seem to make sense. Thompson
already had a bench trial before a district judge, so why should he be entitled to another
trial in district court? The State argues that Thompson is not entitled to two bites from the
same apple. Thompson responds by pointing out that the dismissal of his appeal in
district court cut off his right to request a jury trial pursuant to K.S.A. 22-3404(1).

We have found no case law that addresses the precise issue in this appeal.
However, resolution of this issue depends on the meaning of the term "any judgment"
found in K.S.A. 22-3609a(1). Several Kansas appellate decisions have construed this
term. In State v. Remlinger, 266 Kan. 103, 968 P.2d 671 (1998), the defendant filed a
notice of appeal under K.S.A. 1997 Supp. 22-3609a after he had been found guilty of two
misdemeanors but prior to sentencing. In district court, the defendant claimed a violation
of his speedy trial right when the de novo trial in district court was not commenced in a
timely manner. The district court agreed and dismissed the case. The State appealed
therefrom, arguing that because the defendant had appealed his case to district court prior
to sentencing by the magistrate judge, the district court never acquired jurisdiction and
could not dismiss the case on a speedy trial violation. 266 Kan. at 104.

On appeal, the defendant argued that the district court had jurisdiction to dismiss
because K.S.A. 1997 Supp. 22-3609a(1) permitted an appeal of "any judgment," and a
finding of guilt by a magistrate judge constituted a judgment. 266 Kan. at 105. However,
our Kansas Supreme Court rejected the defendant's argument and noted that "Kansas
courts have repeatedly defined a criminal 'judgment' as a pronouncement of guilt and the
determination of the punishment." (Emphasis added.) 266 Kan. at 106. The Supreme
Court concluded that because no judgment had been entered by the magistrate judge, the
appeal to district court could not be perfected; therefore, the district court was without
jurisdiction to dismiss the case. 266 Kan. at 107.

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Likewise, in Legero, the defendant attempted to appeal to district court from a
magistrate judge's order revoking the defendant's probation. Our Supreme Court again
noted that a criminal "judgment" is usually defined as the pronouncement of guilt and the
determination of the defendant's punishment. 278 Kan. at 112. Accordingly, the court
held that a magistrate judge's order revoking the defendant's probation was not a
judgment that could be appealed to the district court within the meaning of K.S.A. 2003
Supp. 22-3609a. 278 Kan. at 116; see also State v. Lashley, 233 Kan. 620, 624, 664 P.2d
1358 (1983) (magistrate judge's order binding defendant over for arraignment was not a
judgment appealable to district court); City of Wichita v. Patterson, 22 Kan. App. 2d 557,
558-59, 919 P.2d 1047, rev. denied 260 Kan. 992 (1996) (municipal court order revoking
defendant's probation was not a judgment appealable to district court).

Returning to our facts, the district judge pronounced Thompson guilty, but a
magistrate judge imposed the sentence. The magistrate judge signed the journal entry of
judgment. The finding of guilt and the imposition of sentence constituted the judgment
Thompson sought to appeal to district court. Pursuant to K.S.A. 22-3609a(1), Thompson
was entitled to appeal the judgment of the magistrate judge to the district court. The fact
that a district judge happened to hear the bench trial does not negate Thompson's right to
appeal the judgment of the magistrate judge and request a trial de novo in district court.
See State v. Wright, 26 Kan. App. 2d 879, 880, 995 P.2d 416 (2000) (defendant entitled
to a jury trial in district court even though defendant had received a jury trial before the
magistrate judge).

Kansas courts have consistently held that the final judgment in a criminal case is
the sentence. State v. Beard, 274 Kan. 181, 187, 49 P.3d 492 (2002); State v. Dubish, 236
Kan. 848, 851, 696 P.2d 969 (1985); State v. Soto, 23 Kan. App. 2d 154, Syl. ¶ 1, 928
P.2d 103 (1996). In Thompson's case, the final judgment did not occur until the
magistrate judge pronounced Thompson's sentence from the bench. Although the district
judge presided over the bench trial, the final judgment in Thompson's case was a decision
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of a magistrate judge. Under K.S.A. 22-3609a(1), Thompson had the right to appeal the
judgment of the magistrate judge to the district court.

We conclude the district court erred by dismissing Thompson's appeal to the
district court. The case is remanded to the district court for a trial de novo. Thompson is
entitled to receive a jury trial pursuant to his timely request. Because Thompson has no
statutory right to appeal the judgment of the district magistrate judge directly to the Court
of Appeals, we are without jurisdiction to consider Thompson's alternative argument that
his convictions were not supported by the evidence.

Reversed and remanded.