State v. White

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NOT DESIGNATED FOR PUBLICATION

No. 112,741

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANTHONY T. WHITE,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; BARBARA KAY HUFF, judge. Opinion filed August 26,
2016. Appeal dismissed.

Reid T. Nelson, of Capital and Conflicts Appeals Office, for appellant.

Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before MALONE, C.J., BRUNS and SCHROEDER, JJ.

Per Curiam: Anthony T. White appeals his conviction following a guilty plea to
one count of indecent liberties with a child. White argues the district court erred in
finding he was competent to enter a plea. He also argues he is not competent to register
under the Kansas Offender Registration Act (KORA), K.S.A. 2015 Supp. 22-4901 et seq.
For the reasons stated herein, we dismiss White's appeal for lack of jurisdiction.

On May 10, 2013, the State charged White with one count of indecent liberties
with a child. Specifically, the information alleged that from January to March 2013,
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White touched or fondled J.G., who was between 14 and 16 years of age. The district
court ordered a competency evaluation on July 2, 2013. A psychological evaluation
report dated July 10, 2013, prepared by Marciana Vequist, Ph.D., concluded that White
was competent to stand trial.

The district court held a competency hearing on November 12, 2013, at which
Robert W. Barnett, Ph.D., testified on White's behalf. According to Barnett, White is
moderately mentally retarded with an IQ in the 40's or 50's. White also suffers from
anxiety and depression. Barnett opined that White was incompetent to understand the
nature of the proceedings or the charges against him. White's mother also testified at the
hearing and established that White, who was 22 years old at the time of the hearing, lived
at home with his parents and attended a vocational rehabilitation center that helps with
low functioning adults. After hearing the evidence, the district court took the matter
under advisement. The parties reconvened on November 19, 2013, and the district court
ruled that White was competent to stand trial.

On April 25, 2014, White pled guilty to indecent liberties with a child. The record
reflects that White needed to consult with his attorney on multiple occasions during the
hearing. The district court found that there was a factual basis for the plea and that White
entered the plea "understanding" the rights he was waiving. Prior to sentencing, White
filed a motion asking the district court to find him incompetent to register under KORA.

The district court held a sentencing hearing on July 31, 2014. The district court
sentenced White to 32 months' imprisonment with lifetime postrelease supervision but
granted probation with community corrections for 36 months. The district court denied
White's motion for a finding that he was incompetent to register under KORA. Instead,
the district court found that the registration requirement was mandatory and imposed 25
years' registration. White did not file a motion to withdraw his plea either prior to or after
sentencing. However, White filed a timely notice of appeal.
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On appeal, White claims that the district court "erred in finding that [he] was
competent to enter a plea and register." The State responds by arguing that this court
lacks jurisdiction over this appeal because White pled guilty and did not file a motion to
withdraw his plea. In the alternative, the State argues that White was competent to enter a
plea and to be ordered to register as a sex offender. We will first address jurisdiction.

Whether jurisdiction exists is a question of law over which an appellate court's
review is unlimited. State v. Looney, 299 Kan. 903, 906, 327 P.3d 425 (2014). 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 statute. State v.
Mburu, 51 Kan. App. 2d 266, 269, 346 P.3d 1086, rev. denied 302 Kan. 1017 (2015). An
appellate court has a duty to question jurisdiction on its own initiative. When the record
discloses a lack of jurisdiction, the appellate court must dismiss the appeal. State v.
J.D.H., 48 Kan. App. 2d 454, 458, 294 P.3d 343, rev. denied 297 Kan. 1251 (2013).

K.S.A. 2015 Supp. 22-3602(a) broadly prohibits an appeal from a judgment of
conviction before a district judge upon a plea of guilty or nolo contendere. See State v.
Solomon, 257 Kan. 212, 218-19, 891 P.2d 407 (1995). A defendant may not file a direct
appeal of a conviction from a guilty plea unless the defendant first files a motion to
withdraw the plea and the district court denies the motion. See State v. Thorpe, 36 Kan.
App. 2d 475, 477, 141 P.3d 521 (2006). Entry of a guilty plea without a subsequent
motion to withdraw the plea in the district court deprives the appellate court of
jurisdiction. This is true even where the defendant argues he was not competent to enter
his plea. See State v. Hall, 292 Kan. 862, 866-67, 257 P.3d 263 (2011).

Had White been found guilty of indecent liberties with a child based upon
stipulated facts, he subsequently could have appealed his conviction and the district
court's finding that he was competent to stand trial. Likewise, had White filed a motion to
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withdraw his guilty plea, either before or after sentencing, he could have appealed the
denial of such a motion. See Thorpe, 36 Kan. App. 2d at 477. But White's guilty plea
amounted to a waiver of his constitutional rights and his claimed defense that he was
incompetent to stand trial. See State v. Moses, 280 Kan. 939, 946, 127 P.3d 330 (2006).

Also, when White pled guilty to the charge, he waived his claim that he is
incompetent to be ordered to register under KORA. As the judge noted at sentencing, the
district court was required by law to order White to register under KORA for a duration
of 25 years for his conviction of indecent liberties with a child. See K.S.A. 2015 Supp.
22-4906(b)(1)(E). We note that if White is ever charged in a subsequent case with failure
to register under KORA, he certainly would be free to challenge his competency to stand
trial or to raise a mental incapacity defense in such a proceeding if he or his counsel
believes there is grounds to do so. But because White pled guilty to the charge of
indecent liberties with a child and failed to move to withdraw his plea in the district court
prior to filing his appeal herein, this court lacks jurisdiction to consider the issues he
raises on appeal. See K.S.A. 2015 Supp. 22-3602(a); Hall, 292 Kan. at 866-67.

Appeal dismissed.