State v. Brown

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NOT DESIGNATED FOR PUBLICATION

No. 118,800

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KEVIN L. BROWN JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed February 1,
2019. Appeal dismissed.

Kristen B. Patty, of Wichita, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before GARDNER, P.J., HILL and SCHROEDER, JJ.

PER CURIAM: After the district court summarily denied Kevin L. Brown Jr.'s pro
se motion for ineffective assistance of counsel and to appoint counsel, he appealed. But
he did not do so until nine months later. Because his appeal was not timely filed, we lack
jurisdiction to consider it and dismiss his appeal.

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Factual and Procedural History

In October 2011, a jury convicted Brown of first-degree murder, aggravated
burglary, and aggravated assault. The district court sentenced Brown to a hard-20 life
sentence plus 120 months. Brown pursued a direct appeal raising five issues, and the
Kansas Supreme Court affirmed his convictions and sentences. State v. Brown, 299 Kan.
1021, 327 P.3d 1002 (2014). It then issued its mandate in July 2014.

In July 2016, Brown filed a pro se motion for ineffective assistance of counsel and
to appoint counsel. That motion asked the district court to fire Michael Whalen, the
attorney who had represented Brown on his direct appeal. Brown said that he and Whalen
did not agree on the issues raised on appeal. He asked the court to appoint a new attorney
and allow that attorney to "file a new legal brief . . . to be heard by the Supreme Court of
Kansas." The district court summarily denied Brown's motion on October 11, 2016, citing
State v. Smith, 278 Kan. 45, 51, 92 P.3d 1096 (2004). Smith held that once a defendant's
appeal is docketed, the district court loses jurisdiction to hear that defendant's posttrial
motions.

Smith cited State v. Dedman, 230 Kan. 793, Syl. ¶ 2, 640 P.2d 1266 (1982), which
recited the rule more fully: "When an appeal is docketed, the trial court's jurisdiction
ends and the sentence may then be modified only after the mandate from the Supreme
Court or Court of Appeals is returned, or by motion to remand temporarily for
modification of the sentence."

Smith was a direct appeal; thus, no mandate had been returned to the district court,
and "[n]o motion for remand to the district court had been filed." 278 Kan. at 51. Because
its procedural posture is distinctively different than in this case, the district court relied on
Smith in error.

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As Dedman recognized, the trial court generally regains the ability to hear motions
after the mandate from an appellate court is issued. See State v. Gibbons, 256 Kan. 951,
966-67, 889 P.2d 772 (1995). That is what happened here. The Supreme Court issued its
mandate after Brown's direct appeal terminated in July 2014, restoring jurisdiction to the
district court long before Brown filed his motion in July 2016.

Nine months after the district court ruled that it lacked jurisdiction to entertain
Brown's motion, Brown filed a notice of appeal. The case was initially docketed with the
Kansas Supreme Court which issued a show cause order, questioning its jurisdiction for
several reasons. Brown responded that he had been incarcerated in South Dakota since
2013 (before his direct appeal was concluded) and due to the circumstances of his
incarceration, "he was unaware (and was not informed) of the right to appeal or the time
for doing so." He argued the first Ortiz exception, and perhaps the second, applied for his
appeal to be permitted out of time. See State v. Ortiz, 230 Kan. 733, 640 P.2d 1255
(1982). The State replied that Ortiz applies to some late direct appeals but does not apply
to 60-1507 motions.

After both parties responded to the show cause order, the Kansas Supreme Court
transferred the case to the Court of Appeals because Brown had admitted the underlying
motion was a K.S.A. 60-1507 motion, and such motions are initially decided by the
Kansas Court of Appeals. It did not address Brown's untimely notice of appeal. Two days
later, the State moved for involuntary dismissal based on Brown's untimely appeal, again
arguing that Ortiz did not apply. Brown responded by arguing he had no access to Kansas
materials or to a Kansas lawyer and that the first or second Ortiz exception permitted his
untimely appeal.

Our motions panel summarily denied the State's motion for involuntary dismissal.
By doing so, we retained jurisdiction of the case, "meaning [the] assigned panel may
reexamine the issue." Bowen v. Cantrell, No. 118,099, 2018 WL 793326, at *2 (Kan.
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App. 2018) (unpublished opinion). We now revisit the question of our jurisdiction, as is
our duty. See State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010) (finding subject
matter jurisdiction may be raised at any time); State v. J.D.H., 48 Kan. App. 2d 454, 458,
294 P.3d 343 (2013) (noting appellate court has duty to raise subject matter jurisdiction
on its own initiative when record discloses possibility that subject matter jurisdiction is
lacking).

This court lacks jurisdiction to hear Brown's appeal because he did not file a timely
notice of appeal.

The State first argues that we lack jurisdiction to consider Brown's appeal. It
contends that Brown had 30 days to file a notice of appeal, that Brown filed his notice of
appeal after that 30-day period expired, and that Brown's untimely filing of his notice of
appeal precludes jurisdiction on appeal. Brown has not responded to that argument.

Whether jurisdiction exists is a question of law over which this court's scope of
review is unlimited. See State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016). The
right to appeal is statutory and is not contained in the United States or Kansas
Constitutions. Subject to some exceptions, Kansas appellate courts have jurisdiction to
entertain an appeal only if the appeal is taken in the manner prescribed by statutes. 304
Kan. at 919. The timely filing of a notice of appeal is jurisdictional. Beyond that, most of
the subsequent steps in prosecuting an appeal are generally provided by appellate rule
and are enforceable at the appellate court's discretion. In re McDaniel, 54 Kan. App. 2d
197, 209, 339 P.3d 222 (2017).

A K.S.A. 60-1507 motion is a civil proceeding and is governed by the rules of
civil procedure. Supreme Court Rule 183(a)(2) (2019 Kan. S. Ct. R. 228). Under K.S.A.
2017 Supp. 60-2103(a), a party has 30 days from the entry of judgment to file a civil
appeal. Brown's motion was denied on October 11, 2016. He had 30 days to file a notice
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of appeal but did not do so until July 5, 2017. The parties do not dispute that Brown filed
his appeal more than 30 days after the district court entered judgment on his K.S.A. 60-
1507 motion. Because Brown's appeal is untimely, we generally would not have
jurisdiction to consider his appeal. Instead, it becomes our duty to dismiss the appeal.
Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 916, 296 P.3d
1106 (2013).

In an abundance of caution, however, we consider the argument Brown made to
our motions panel that Ortiz exceptions may save his untimely appeal. Under the Ortiz
exceptions, an indigent defendant may file a direct criminal appeal out of time in those
cases where the defendant (1) was not informed of the right to appeal, (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. Smith, 304 Kan. at 919. But the
Ortiz exceptions do not apply where a defendant files an untimely appeal from the denial
of a K.S.A. 60-1507 motion. See Albright v. State, 292 Kan. 193, 201, 251 P.3d 52
(2011); Guillory v. State, 285 Kan. 223, Syl. ¶ 3, 170 P.3d 403 (2007).

We note that a defendant may be entitled to an untimely appeal from a trial court's
dismissal of a petition for postconviction relief when the defendant was furnished with an
attorney for the purposes of an appeal, and, but for counsel's deficient performance,
defendant would have timely appealed. Albright, 292 Kan. at 201. Such is not the case
here, however. Brown acted pro se in filing his motion, and the record reflects he did not
have an attorney then or at the time his motion was denied. We thus dismiss this case for
lack of appellate jurisdiction.

Appeal dismissed.