City of Newton v. Waldschmidt

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NOT DESIGNATED FOR PUBLICATION

No. 113,224

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CITY OF NEWTON,
Appellee,

v.

PETER WALDSCHMIDT,
Appellant.


MEMORANDUM OPINION

Appeal from Harvey District Court; RICHARD B. WALKER, judge. Opinion filed January 22,
2016. Dismissed.

Michael S. Holland II, of Holland and Holland, of Russell, for appellant.

Christopher Towle, city attorney, for appellee.

Before STANDRIDGE, P.J., BUSER and SCHROEDER, JJ.

Per Curiam: Peter Waldschmidt appeals the district court's order dismissing his
case for lack of subject matter jurisdiction. He argues that by dismissing his case, the
district court violated his constitutional right to a jury trial.

FACTS

On January 2, 2014, Waldschmidt pled guilty to and was convicted of the
following crimes in the municipal court of the City of Newton (the City): (1) driving
under the influence (DUI), (2) refusing a chemical test, (3) refusing a preliminary breath
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test, and (4) violating of an ordinance concerning horns and warning devices. He was
sentenced to consecutive jail terms of 90 days each for the DUI and chemical test refusal
convictions but was ordered to serve only 5 days in jail followed by a 12-month
probationary term. On the written journal entry, the municipal court judge included a
handwritten order setting an "appearance bond for purposes of appeal" in the amount of
$2,000 cash or a court approved surety.

Also on January 2, 2014, Waldschmidt filed a notice of appeal in Harvey County
District Court. The notice included a request that the case be tried in front of a jury. On
April 30, 2014, the City filed a motion to dismiss Waldschmidt's appeal. The motion
alleged that Waldschmidt had failed to file an appearance bond within 14 days from the
date of judgment as required by K.S.A. 2014 Supp. 22-3609(2). The City argued that, as
a result, the district court lacked subject matter jurisdiction to hear the appeal.

Waldschmidt filed a written response asking the district court to maintain
jurisdiction and deny Newton's motion to dismiss. Along with the response, Waldschmidt
attached an affidavit in which he asserted that he called Barb's Bail Bonds and explained
that he needed to file a bond. He stated in the affidavit that someone at Barb's Bail Bonds
said he did not need to pay any additional money and that Barb's Bail Bonds would file
the necessary paperwork. Waldschmidt stated that he called back 1 to 2 days later and
was informed that the paperwork had been taken care of. Based on this affidavit,
Waldschmidt argued in his response to the City's motion that because the failure to file
his appearance bond was not his fault, the district court still had jurisdiction to hear his
appeal.

A hearing was held on October 8, 2014. During the hearing, Waldschmidt
conceded that the required appearance bond had not been filed but argued that because he
had made a good-faith attempt to perfect his appeal, an exception to the jurisdictional bar
should be applied. The district court was not persuaded by this argument and ultimately
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found Waldschmidt's failure to file an appearance bond deprived it of subject matter
jurisdiction to hear the case. Accordingly, the district court granted the City's motion to
dismiss.

ANALYSIS

Waldschmidt claims he was denied his constitutional right to a jury trial when the
district court dismissed his appeal for lack of subject matter jurisdiction. Specifically,
Waldschmidt argues it is inequitable to jurisdictionally bar him from presenting his case
to a jury because it was the bonding company, not Waldschmidt, who failed to file the
appearance bond required to perfect his appeal. Jurisdiction is a question of law over
which the appellate courts exercise unlimited review. State v. Berreth, 294 Kan. 98, 109,
273 P.3d 752 (2012). To the extent this case involves statutory interpretation, the
appellate courts also exercise unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d
12, cert. denied 135 S. Ct. 91 (2014).

K.S.A. 2014 Supp. 22-3609(1) provides for the defendant's right to appeal a
judgment of the municipal court to the district court when the defendant is guilty of
violating a municipal ordinance. K.S.A. 2014 Supp. 22-3609(2) states the procedure for
perfecting an appeal:

"An appeal to the district court shall be taken by filing, in the district court of the
county in which the municipal court is located, a notice of appeal and any appearance
bond required by the municipal court. . . . No appeal shall be taken more than 14 days
after the date the sentence is imposed."

Failure to follow these provisions is a jurisdictional defect that deprives the district
court of jurisdiction to proceed with the appeal. See City of Overland Park v. Barron, 234
Kan. 522, 526-27, 672 P.2d 1100 (1983); City of Dodge City v. Reyes, 35 Kan. App. 2d
756, 758, 133 P.3d 1291 (2006). Waldschmidt does not dispute that his appearance bond
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was not posted within 14 days after his sentence was imposed and, to date, still has not
been posted; thus, there appears to be a jurisdictional defect that deprives the district
court of jurisdiction to proceed with the appeal. But Waldschmidt argues the
jurisdictional defect necessarily dissipates in a case such as this because to preclude him
from proceeding with his case would deprive him of his constitutional right to a trial by
jury.

We note, as a preliminary matter, that Waldschmidt did not raise this issue before
the district court. Issues not raised before the trial court cannot be raised on appeal. State
v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). It has further been held specifically
that constitutional grounds for reversal asserted for the first time on appeal are not
properly before the appellate court for review. State v. Leshay, 289 Kan. 546, 553, 213
P.3d 1071 (2009). There are several exceptions to the general rule that a new legal theory
may not be asserted for the first time on appeal, including the following: (1) The newly
asserted theory involves only a question of law arising on proved or admitted facts and is
finally determinative of the case; (2) consideration of the theory is necessary to serve the
ends of justice or to prevent denial of fundamental rights; and (3) the judgment of the trial
court may be upheld on appeal despite its reliance on the wrong ground or assignment of
a wrong reason for its decision. State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010).
With regard to the second exception, this court has on more than one occasion noted
"'[t]here is no more fundamental right in the United States than the right to a jury trial.'
[Citation omitted.]" State v. Duncan, 44 Kan. App. 2d 1029, 1037, 242 P.3d 1271 (2010).
Out of an abundance of caution to the defendant's rights, we will address the defendant's
arguments that his constitutional rights to a jury trial were violated in this case. Whether
an individual's constitutional rights have been violated is a question of law over which an
appellate court has an unlimited review. McComb v. State, 32 Kan. App. 2d 1037, 1041,
94 P.3d 715, rev. denied 278 Kan. 846 (2004).

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Waldschmidt asserts he was charged with two Class A misdemeanors, each of
which has a possible sentence of 1 year. Waldschmidt further asserts that a defendant has
a right to a jury trial when, as here, the defendant has potential imprisonment exceeding 6
months. State v. Johnson, 46 Kan. App. 2d 387, 398, 264 P.3d 1018 (2011), rev. denied
293 Kan. 1111 (2012); State v. Jones, 19 Kan. App. 2d 982, 983-84, 879 P.2d 1141
(1994). The issue presented, then, is whether an individual can lose his or her
constitutional right to a jury trial due to a failure to comply with jurisdictional portions of
a statute.

Notably, the issue presented by Waldschmidt has been addressed by two separate
panels of our court in the last 2 years. In City of Dodge City v. Olivas, No. 109,782, 2014
WL 2224686 (Kan. App. 2014) (unpublished opinion), rev. denied 302 Kan. __
(November 6, 2015), the defendant was charged with his second DUI, refusal to take a
chemical breath test, disobeying a stop sign, refusal to take a preliminary breath test, and
an illegal vehicle tag. The municipal court required a $3,030.50 cash appearance bond,
which Olivas failed to pay. When the State moved to dismiss the appeal for that reason,
Olivas argued that the amount of the appearance bond was excessive and unaffordable for
a person of his means and requiring him to pay the appearance bond to perfect his appeal
necessarily deprived him of his right to a jury trial. Although the district court determined
that the amount of the appearance bond was excessive, the court went on to hold that the
defendant's failure to even attempt to comply with the jurisdictional requirements of
K.S.A. 2014 Supp. 22-3609(2) by posting any percentage of the appearance bond
prevented the defendant from pursuing his appeal due to a lack of jurisdiction. 2014 WL
2224686, at *2-3.

Presented with almost identical facts a year later, the court in State v. Cooper, No.
112,320, 2015 WL 5009997 (Kan. App. 2015) (unpublished opinion), petition for rev.
filed September 1, 2015, adopted the Olivas analysis and found the district court correctly
dismissed defendant's case due to lack of jurisdiction because, again, the defendant made
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no attempt to satisfy the requirements of K.S.A. 2014 Supp. 22-3609(2) within the 14
days allowed to perfect an appeal to the district court.

Waldschmidt does not cite to Olivas in his brief. Instead, he cites to Johnson, 46
Kan. App. 2d at 398, and Jones, 19 Kan. App. 2d at 983-84, to support his argument that
an individual cannot lose his or her constitutional right to a jury trial due to a failure to
comply with technical portions of a procedural statute. We find both of these cases
distinguishable. In Jones, the court determined that Jones' failure to demand a jury trial
within 7 days for a misdemeanor and traffic offense unlawfully deprived him of his right
to a jury trial because he had to first be advised by the court of that right and then
personally waive it in writing or in open court for the record. 19 Kan. App. 2d at 983-84.
The key issue of subject matter jurisdiction, without which a court cannot lawfully
proceed to hear a case, was not an issue in Jones. In Johnson, the court determined the
defendant did not effectively waive trial by a jury because it was the defendant's counsel
and not the district judge who advised him of his right to a jury trial. 46 Kan. App. 2d
398-400. Like Jones, subject matter jurisdiction was not an issue in Johnson. For these
reasons, neither the analysis nor the conclusion reached by the courts in the Jones and
Johnson cases are relevant to our analysis here.

Conversely, we find the legal analysis in Olivas and Cooper precisely on point.
Although the constitutional claim asserted by the defendants in both of those cases was
that an individual cannot lose his or her constitutional right to a jury trial based on failure
to timely pay an appearance bond that is excessive, the analysis is equally applicable to
Waldschmidt's claim that he cannot be deprived of his constitutional right to a jury trial
based on his bond company's failure to timely pay his appearance bond. Like the facts in
Olivas and Cooper, the required appearance bond was not posted within 14 days after
Waldschmidt's sentence was imposed and, to date, still has not been posted. This failure
to file an appearance bond deprived the district court of subject matter jurisdiction to hear
the case.
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Without subject matter jurisdiction, this court cannot address the merits of
Waldschmidt's case, including his constitutional argument. See State v. Morningstar, 299
Kan. 1236, 1239-40, 329 P.3d 1093 (2014). With that said, our Supreme Court has
recognized exceptions to the general rule that the filing of a timely notice of appeal is a
jurisdictional requirement. State v. Ortiz, 230 Kan. 733, Syl. ¶ 3, 640 P.2d 1255 (1982).
But it has only identified "three narrowly defined, truly exceptional circumstances" in
which a defendant should be permitted to file a late direct appeal. State v. Patton, 287
Kan. 200, 217, 195 P.3d 753 (2008). These narrow exceptions allow a defendant to file a
late appeal if the defendant "(1) was not informed of his or her right to appeal, (2) was
not furnished an attorney to perfect an appeal, or (3) was furnished an attorney who failed
to perfect an appeal." 287 Kan. 733, Syl. ¶ 3. These exceptions are referred to as the Ortiz
exceptions. 287 Kan. at 218.

We note that all three of the Ortiz exceptions apply when a defendant attempts to
pursue an appeal after the statutory deadline for filing a notice of appeal. 287 Kan. at 206.
But in this case, Waldschmidt never filed the required appearance bond. Even after the
City filed a motion to dismiss, Waldschmidt did not attempt to rectify this jurisdictional
shortcoming by filing the appearance bond late, nor has he attempted to rectify it since
the district court's dismissal. Thus, the Ortiz exceptions discussed above are inapplicable
here because Waldschmidt was not requesting the district court to hear an appeal that was
untimely. Rather, he was requesting the district court to retain jurisdiction over his case
despite the fact that he never filed an appearance bond at all. This is not a case of
timeliness. It is a case involving the defendant's complete failure to file an essential
document as part of his appeal. Because Kansas law does not appear to establish any
exceptions that allow a defendant to pursue an appeal despite his or her total failure to
post the required appearance bond as part of his appeal, Waldschmidt's appeal should be
dismissed.

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But even if the Ortiz exceptions could be applied, the third exception is the only
possible one that could be applied to the facts of this case. In City of Dodge City v.
Ibarra, 35 Kan. App. 2d 643, 645-46, 133 P.3d 159 (2006), this court applied the third
Ortiz exception to allow a defendant to pursue an appeal even though, as in this case, the
defendant failed to file an appearance bond. But in Ibarra, counsel for the defendant
admitted that she was the one who failed to file the appearance bond. Counsel explained
to the district court that she erroneously believed Ibarra's district court appearances were
sufficient to maintain the appeal because it was an "own recognizance" bond. 35 Kan.
App. 2d at 644-45. This court reversed the district court's dismissal of the case for lack of
jurisdiction because Ibarra's attorney freely acknowledged that the lack of jurisdiction
was due to her mistake. 35 Kan. App. 2d at 646.

Here, Waldschmidt has been represented by the same counsel since before he
entered his pleas in municipal court. Unlike the facts in Ibarra, Waldschmidt does not
argue on appeal that his counsel was to blame for dismissal of his case. An issue not
briefed on appeal is deemed waived and abandoned. State v. Jones, 300 Kan. 630, 639,
333 P.3d 886 (2014). Instead, Waldschmidt argues the failure to file the required
appearance bond, and thus the lack of jurisdiction, was caused by a mistake made by
Barb's Bail Bonds. To that end, Waldschmidt asserts an Ortiz exception would be proper
here because, as averred in the affidavit he submitted to the district court, he was not to
blame for dismissal of his case. He argues he made a good-faith attempt to perfect his
appeal by calling Barb's Bail Bonds and receiving oral verification that his appearance
bond would be timely submitted. Even if what Waldschmidt avers in his affidavit is true,
however, none of the Ortiz exceptions apply when a mistake is made by an independent
third party. See Ortiz, 230 Kan. 733, Syl. ¶ 3. And even if an exception did apply, there is
a glaring inconsistency in the record that would preclude us from granting any relief
under Ortiz. In Waldschmidt's affidavit, he alleges that he called Barb's Bail Bonds
immediately after the hearing in municipal court on December 24, 2014. He apparently
meant 2013. Even so, according to the record before this court, Waldschmidt's
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appearance bond was not set until January 2, 2014. There is no additional evidence in the
record that would explain this discrepancy. An appellant bears the burden of designating
a record affirmatively showing a district court's error. State v. Kidd, 293 Kan. 591, 601,
264 P.3d 1165 (2011), cert. denied 132 S. Ct. 2433 (2012). Waldschmidt did not meet
this burden here.

Waldschmidt was required to file an appearance bond and he failed to do so; thus,
the district court lacked subject matter jurisdiction to hear his case and dismissal was
proper.

Dismissed.