In re Care & Treatment of Emerson
392 P.3d 82
| Kan. | 2017Background
- In 1999 the State petitioned under the Sexually Violent Predators Act; a jury found Cecil Emerson a sexually violent predator and the district court committed him for treatment.
- Emerson filed posttrial motions denied in January 2001 and filed a notice of appeal in February 2001; he later filed docketing documents with the appellate clerk.
- The Court of Appeals dismissed Emerson’s direct appeal in 2002 for failure to file an appellate brief.
- In July 2014 Emerson (with new counsel) moved the district court for leave to file an out-of-time direct appeal, arguing appellate counsel failed to perfect the previously docketed appeal.
- The district court granted relief and directed Emerson to file a new notice of appeal; the Court of Appeals reviewed and affirmed on alternative grounds but the Kansas Supreme Court granted review.
- The Kansas Supreme Court held the district court lacked jurisdiction to authorize an out-of-time direct appeal after the Court of Appeals had docketed and dismissed the original appeal; only the appellate court can recall its mandate or reinstate a dismissed appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a district court may authorize an out-of-time direct appeal after an earlier direct appeal was docketed and dismissed by the appellate court | Emerson: Ortiz exception / ineffective appellate counsel justifies district court permitting an out‑of‑time appeal | State: Jurisdiction shifted when appeal was docketed; only appellate court can withdraw its mandate or reinstate appeal | District court lacked jurisdiction; only the appellate court that dismissed the appeal can recall its mandate and allow reinstatement |
| Whether Ortiz (criminal out‑of‑time appeal doctrine) applies to this SVPA civil commitment proceeding | Emerson: Ortiz’s third exception (counsel failed to perfect appeal) applies because SVPA is quasi‑criminal | State: Ortiz is inapplicable because initial appeal was docketed and dismissed; Ortiz involved no docketed appeal | Ortiz is distinguishable; it did not involve a previously docketed and dismissed appeal and thus does not grant district court jurisdiction here |
| Whether Albright / K.S.A. 60‑1507 principles permit district court to grant out‑of‑time appeal where appellate counsel was ineffective | Emerson/Ct. of Appeals: Albright supports allowing out‑of‑time appeal based on fundamental fairness | State: Even if collateral relief doctrine applies, jurisdiction to reinstate a dismissed direct appeal rests with appellate court | Collateral‑relief cases do not give the district court power to countermand an appellate court’s dismissal once the appeal was docketed and dismissed |
| Proper procedure to seek reinstatement of a dismissed, docketed appeal | Emerson: file new notice in district court (as ordered) | State: Motion must be made to the appellate court to recall mandate / reinstate appeal | Remedy is to move the appellate court to withdraw its mandate / recall dismissal; district court cannot resurrect a dismissed docketed appeal |
Key Cases Cited
- Sandlin v. Roche Laboratories, Inc., 268 Kan. 79 (Kansas 1999) (appellate courts must raise jurisdictional questions sua sponte; lack of trial court jurisdiction prevents appellate jurisdiction)
- Albright v. State, 292 Kan. 193 (Kansas 2011) (K.S.A. 60-1507 collateral relief can allow out-of-time appeal when counsel’s failure deprived defendant of ability to pursue a direct appeal)
- Berreth, 294 Kan. 98 (Kansas 2012) (the right to appeal is statutory and appellate jurisdiction is defined by statute)
- Honeycutt v. City of Wichita, 251 Kan. 451 (Kansas 1992) (period between notice of appeal and docketing creates simultaneous jurisdiction; district court may dismiss where appellant fails to perfect appeal)
- Porter v. State, 196 Kan. 732 (Kansas 1966) (when a docketed appeal was dismissed, district court should appoint counsel to seek recall of the mandate from the appellate court rather than reinstate the appeal itself)
- Fountaine, 196 Kan. 638 (Kansas 1966) (example of appellate mandate being withdrawn to allow appeal to proceed when appropriate)