State v. BerrethState v. Berreth
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- Before:
- Nuss
Lead
The opinion of the court was delivered by
Nuss, C.J.:This case requires us to consider appellate jurisdiction. Ten years after Rolland Berreth was convicted and sentenced for one count of aggravated kidnapping and three counts of aggravated criminal sodomy with a child under 14 years of age, he filed a pro se motion to correct an illegal sentence under
The State filed its notice of appeal and docketing statement, each specifically describing the appeal as one taken upon a question reserved under
We granted Berreth’s petition for review under
Facts
The sometimes confusing events, and resultant arguments, are best understood when presented in the following detailed chronology:
1994: After a jury convicted Berreth of one count of aggravated kidnapping and three counts of aggravated criminal sodomy of a child under 14 years of age, the district court sentenced Berreth to 254 months’ imprisonment with 24 months’ postrelease supervision. The convictions and sentences were later affirmed on direct appeal. State v. Berreth, No. 73,929, unpublished opinion filed January 10, 1997.
May 25, 2004: In Berreth’s original criminal action, 93 CR 354, he filed a pro se motion to correct an illegal sentence under
November 4, 2004: After Berreth was appointed counsel, his attorney filed a motion to correct sentence. Despite being submitted “pursuant to K.S.A, 60-1507,” it too was filed in Berreth’s original criminal action: 93 CR 354. This motion incorporated all the arguments and issues of Berreth’s earlier pro se motion under
December 7, 2004: At the hearing on the defense motions, the judge was handed an amended motion to correct sentence submitted “pursuant to
January 14, 2005: After an apparent rescheduling, the State now filed its response in 93 CR 354 to the defendant’s motion to correct sentence pursuant to
March 9, 2005: The district court filed its order and ruling on defendant’s motion to correct sentence in 93 CR 354. After setting forth the chronology of the three defense motions, it declared that they were properly before the court. But it did not decide, or otherwise clarify, their procedural basis:
“Consistent withK.S.A. 22-3504, a motion to correct an illegal sentence may be made and ruled upon at any time. Further, fundamental fairness dictates that the defendant’s original pro se motion be construed as one underK.S.A. 60-1507 (motion attacking sentence). Whether the defendant’s motion is construed as a KS.A. 22-3504 motion, or is liberally construed as a motion underK.S.A. 60-1507, the Court will consider the issues raised by the Defendant The State’s assertion that Mr. Berreth’s original motion (if construed as aK.S.A. 60-1507 motion) is untimely is without merit, as Berreth filed his motion within one year of the statutory change to such statute. ... As the Defendant’s motion was filed less than one year from July 1, 2003, his motion was timely.” (Emphasis added.)
The court agreed that Berreth’s aggravated kidnapping conviction was multiplicitous with one of his aggravated criminal sodomy convictions under State v. Robbins, 272 Kan. 158. In retroactively applying the 2001 Robbins decision to Berreth’s 1993 convictions, the court “noted that there is long-standing precedent supporting the vehicle of
March 18, 2005: Before actual resentencing could occur, the State filed its notice of appeal in the district court, again in Ber-reth’s criminal case: 93 CR 354. Its notice recited that “[o]n May 25, 2005, [sic] and by amendment on November 4 and December 7, 2004, the defendant filed a motion to correct his sentence under
The State’s notice further stated that Berreth’s situation presented a question of “statewide interest important to the uniform administration of criminal law.” More specifically, the notice suggested that Berreth’s case demonstrated a conflict between State v. Robbins (the case the district court relied upon) and the case the State principally relied upon: State v. Groves. The State expressly requested
The notice did not cite, among other appellate jurisdictional bases,
March 29, 2005: Per the district court’s prior scheduling, it re-sentenced Berreth. It decreased his term of imprisonment from 254 to 192 months and increased his postrelease supervision from 24 to 60 months. Before actual resentencing occurred, however, the рrosecutor advised the court of the State’s appeal and its exclusive “question reserved” basis:
“[T]he state lias filed an appeal. When I did research, however, aside from an interlocutory appeal, which this is not, the only basis for our appeal — which of course could be denied just because we haven’t stated a sufficient basis for a prosecution appeal — is a question of reserve — of importance. And that’s also— there was no hearing at the time the court issued its written opinion, when it was taken under advisement. So I wasn’t able to object to the court’s ruling or make proper objections. That’s also why I chose to file the notice of appeal alter the order, to make sure that I reserved the issue on appeal.” (Emphasis added.)
April 25, 2005: The State filed its docketing statement with the clerk of the appellate courts. Consistent with both the prosecutor’s statement at the March 29 resentencing hearing and with the State’s even earlier notice of appeal, the docketing statement provided under Paragraph 3, “Jurisdiction,” that the “Statutory authority for appeal [is] Question reserved, K.S.A.” And consistent with the State’s notice of appeal, the statement provided under Paragraph 7, “Concise Statement of the issues proposed to be raised,” that “[t]he Court should reconsider its opinion in State v. Robbins [, 272 Kan. 158, 32 P.3d 171 (2001),] based on State v. Groves, 278 Kan. 302, 95 P.3d 95 (2004).” Finally, just like the State’s notice of appeal, its docketing statement bore the district court’s criminal case number of 93 CR 354.
August 24, 2005: In the State’s brief to tire Court of Appeals 4 months later, it argued that Berreth’s 1507 motion was untimely but conceded that “[i]t is unclear whether his [Berreth’s] motions were actually pursuant to
March 1, 2006: In Berreth’s response brief to the Court of Appeals, no mention was made of the State’s invocation of appellate jurisdiction per a question reserved under
April 28,2006: Approximately 2 months after Berreth’s brief was filed, this court released its decision in State v. Schoonover, 281 Kan 453, 133 P.3d 48 (2006). There, we substantially revised our approach to analyzing multiplicity claims and essentially rejected Robbins — the case upon which the district court based its decision to vacate the aggravated kidnapping conviction and sentence on multiplicity grounds.
May 31, 2006: The Court of Appeals issued an order to show cause. More specifically, it ordered the parties to file a written response by June 19 explaining why, per the newly released Schoonover decision, the panel should not summarily reverse the district court and reinstate Berreth’s conviction and sentence for aggravated kidnapping.
Tune 16, 2006: Before the parties’ responses to the Court of Appeals’ show cause order were due, this court released its decision in State v. Edwards, 281 Kan. 1334, 135 P.3d 1251 (2006). There, in syllabus paragraph 3, we held that “[a] claim that sentences are multiplicitous is not a claim that the sentences were imposed by a court without jurisdiction as is necessary to come within the narrow definition of illegal sentence under
Tune 27, 2006: The Court of Appeals noted the filing of the parties’ responses to its May
1. “Did the district court, and does this court, have jurisdiction pursuant to State v. Edwards, 281 Kan. 1334 (2006) (Multiplicity is not a claim that can be raised in a motion to correct an illegal sentence.).”
2. “Why State v. Schoonover, 281 Kan. 453, 133 P.2d 48 (2006), does not control.”
3. “Why is this not an attempt at a second appeal and what exceptional circumstances [e.g., per Supreme Court Rule 183 for motions underK.S.A. 60-1507 ] are present to justify allowing this challenge to appellant’s conviction?”
August 1, 2006: In the State’s supplemental brief, it argued that Edwards prohibited use of a motion to correct illegal sentence as a vehicle to challenge multiplicity. It further argued that Schoon-over overruled Robbins. The supplemental brief, like the State’s original, made no reference to appellate jurisdiction per a question reserved under
September 5, 2006: In Berreth’s supplemental brief, hе contended that under a case cited by the district court — Jarrell v. State, 212 Kan. 171, 510 P.2d 127 (1973), — his counsel’s motion arguing multiplicity was raised in the proper procedural vehicle of
On the merits, Berreth contended that while Schoonover overruled Robbins, it did not apply retroactively to his 1993 crimes. His supplemental brief concluded that the district court’s resentencing order for simple kidnapping should be affirmed. As in his original brief, Berreth made no reference to appellate jurisdiction per a question reserved.
September 6,2006: The day after Berreth filed his supplemental brief, he completed his reduced sentence of 192 months’ incarceration and was released from custody to begin his increased post-release supervision of 60 months.
March 16, 2007: The Court of Appeals panel released its decision in State v. Berreth, No. 94,310, 2007 WL 806002 (Kan. App. 2007) (unpublished opinion) (Berreth I). The panel first held Edwards barred the use of a motion to correct an illegal sentence as a vehicle for raising a multiplicity claim. It observed, however, that “the district court did not specifically state whether it was considering Berreth’s motion as a motion to correct an illegal sentence under
Turning to the merits, the panel relied upon Schoonover to rule the district court erred in determining Berreth’s convictions were multiplicitous and in resentencing. So it reversed and remanded tire case to tire district court “with directions to reinstate Berreth’s original sentence [of 254 months], including the 24 months’ post-release supervision.” Berreth I, 2007 WL 806002, at *5.
October 11, 2007: Because Berreth had been released from custody approximately 1
October 18, 2007: After Berreth’s arrest while on postrelease supervision, he filed in his original criminal case — 93 CR 354 — a five-page pro se motion to correct an illegal sentence pursuant to
November 1, 2007: At resentencing, the district court denied Berreth’s motion. Per the panel’s direction, the court resentenced Berreth to his original sentence of 254 months’ imprisonment with 24 months’ postrelease supervision. Berreth was then again placed in the custody of the Department of Corrections.
September 2008: In Berreth’s brief to the Court of Appeals, counsel elaborated on the arguments in Berreth’s pro se motion:
1. The State expressly filed its notice of appeal solely under K.S.A. 22- 3602(b)(3),which meant the jurisdiction and accompanying rules of procedure were limited to a question reserved. And the Court of Appeals had erred in not recognizing the appeal was so limited.
2. Even if the panel had properly recognized that the exclusive basis for the appeal was a State’s question reserved, it still erred in actually hearing — and in not simply dismissing — the matter because the question was not of statewide import, citing, e.g., State v. Tremble, 279 Kan. 391, 109 P.3d 1188 (2005) (declining -jurisdiction and dismissing State’s appeal for this reason); State v. Long, 274 Kan. 1095, 58 P.3d 706 (2002) (same). More particularly, the panel never deemed the multiplicity issue to bе of statewide import — as partly evidenced by its failure to publish its decision. Because this determination is an essential prerequisite to answering a question reserved, the panel had no jurisdiction over the State’s appeal.
3. Even if jurisdiction existed as a question reserved and the matter was indeed of statewide import, a question reserved means that the panel’s determinations can only operate prospectively and cannot affect Berreth, citing e.g., State v. Murry, 271 Kan. 223, 21 P.3d 528 (2001).
October 2008: In the State’s brief, its five pages of argument are devoted almost exclusively to discussing how it meets tibe caselaw requirements to proceed under a question reserved in
May 15, 2009: The Court of Appeals rejected Berreth’s argument. State v. Berreth, No. 99,937, 2009 WL 1393752, at *2 (Kan. App. 2009) (unpublished opinion) (Berreth II). Despite the State’s notice of appeal requesting review solely under
The panel first observеd that “[t]he law permitting appeals,
K.S.A. 60-2103(b) states in relevant part that “[t]he notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken.”
Similarly, Rule 2.02 states that the notice of appeal shall be in substantially the following form: “Notice is hereby given that (specify the party or parties taking the appeal) appeal(s) from (designate the judgment or part thereof appealed from) to the Court of Appeals of the State of Kansas.”
The Berreth II panel determined that the Berreth I panel had implicitly — and properly — treated the matter as a State appeal of a final judgment on a 60-1507 motion via the authority contained in
October 5, 2009: After approval by this court to file a pro se supplemental brief, Berreth filed a late one. He additionally argued that the Berreth II panel had violated his rights to receive due process and to be free from ex post facto and double jeopardy problems.
Tanuary 8, 2010: We granted Berreth’s petition for review. Initially he had argued that grounds for jurisdiction not identified in a notice of appeal may not be considered by the court, citing State v. Verge, 272 Kan. 501, 521, 34 P.3d 449 (2001). Because
October 28, 2010: At oral arguments before this court, the State conceded that it had not argued
Additional facts will be added as necessary.
Analysis
Jurisdiction is a question of law over which we exercise unlimited review. State v. Ballard, 289 Kan. 1000, 1005, 218 P.3d 432 (2009); Harsch v. Miller, 288 Kan. 280, Syl. ¶ 1, 200 P.3d 467 (2009). To the extent this appeal involves statutory interpretation, we also exercise unlimited review. Ballard, 289 Kan. at 1010.
Issue 1: The jurisdictional basis for the State’s appeal toas a question reserved.
It is uncontroverted that the right to appeal is entirely statutory and that tire limits of appellate jurisdiction are imposed by the legislature. Harsch v. Miller, 288 Kan. at 287 (Kansas appellate courts may exercise jurisdiction only under circumstances allowed by statute); State v. Crozier, 225 Kan. 120, 122, 587 P.2d 331 (1978) (“[I]n the absence of a statute which authorizes an appeal, an appeal is not available to the losing party in the district court.”).
It is further uncontroverted that the State’s statutory authority to appeal, when compared to the criminal defendant’s, is very limited. “While the State only has limited appeal rights, a criminal defendant has a nearly unlimited right of review.” State v. Boyd, 268 Kan. 600, 605-08, 999 P.2d 265 (2000); see also State v. Walker, 260 Kan. 803, 806, 926 P.2d 218 (1996) (noting that appeals by the State in criminal cases are tightly restricted by statute).
This candid concession is amply supported by the facts, e.g., both by the explicit statutory citation in the State’s original notice of appeal and the notice’s express recitation of the essential prerequisite for an appellate court to answer a question reserved: a “question of statewide interest important to the uniform administration of criminal law.” See State v. Skolaut, 286 Kan. 219, 225, 182 P.3d 1231 (2008) (“appellate courts will accept appeal of questions reserved when the issues are ‘matters of statewide interest important to the correct and uniform administration of tire criminal law and the interpretation of statutes’ ”).
The point was reinforced 5 weeks later by the State’s docketing statement — which per Supreme Court Rule 2.041(b) (docketing statement, criminal) (2011 Kan. Ct. R. Annot. 18) is “used by the court to determine jurisdiction.” There, the State wrote only that jurisdiction existed under a “question reserved.” Consistent with the predicate of answering a question reserved that it involve matters of statewide interest important to the correct and uniform administration of the criminal law, the State wrote: “The Court should reconsider its opinion in State v. Robbins based on State v. Groves, 278 Kan. 302, 95 P.3d 95 (2004).” And the prosecutor expressly stated that “a question reserved” was the “only basis for our appeal” at the district court’s March 29, 2005, resentencing hearing. (Emphasis added.)
Indeed, many of the parties’ other actions are simply inconsistеnt with
“A motion challenging the validity of a sentence [underK.S.A. 60-1507 ] is an independent civil action which should be separately docketed, and tire procedure before the trial court and on appeal to the Court of Appeals is governed by the Rules of Civil Procedure insofar as applicable.”
See State v. Thomas, 239 Kan. 457, 459, 720 P.2d 1059 (1986) (60-1507 creates a new case, not a criminal case, and proceeding is in the nature of a civil action); Hickson v. State, 39 Kan. App. 2d 678, 680, 182 P.3d 1269 (2008) (same). Similarly, the State’s notice of appeal in the district court, and its later docketing statement in the appellate courts, also incorrectly bore the criminal case number.
As an aside, we observe that after the State’s filing of its April 25, 2005, docketing statement, it apparently was forgotten that the State was appealing solely on a question reserved. For example, both of the State’s briefs in Berreth I asked for reimposition of the defendant’s original, harsher sentence, which is generally inconsistent with an appeal of a question reserved. See, e.g., State v. Stallings, 284 Kan. 741, 163 P.3d 1237 (2007); State v. Roderick, 259 Kan. 107, 116, 911 P.2d 159 (1996) (Questions reserved presuppose that the case at hand has concluded but that an answer to an issue of statewide impоrtance is necessary for disposition of future cases.). In Berreth’s pro se October 18, 2007, motion, he appears to be the first one to point out since the filing of the State’s notice of appeal and its docketing statement 2 1/2 years earlier — and as confirmed by the prosecutor’s statement at the March 2005 sentence reduction hearing — that the State had expressly appealed strictly on a question reserved. .
Consequently, the question becomes whether the sole statutory jurisdictional basis asserted — and relied upon — by the State in its appeal can be changed to another ostensibly correct jurisdictional basis. This appears to be a question of first impression in Kansas. Under the circumstances of this
1. The State cannot change its elected statutory basis for appellate jurisdiction — at least without notification, if not formal amendment.
We begin our analysis by observing that while the State’s statutory rights to appeal are quite limited (see State v. Boyd, 268 Kan. at 605), the State has the ability to elect from these limited jurisdictional bases. In State v. Muck, 262 Kan. 459, 939 P.2d 896 (1997), this court acknowledged that the State could have appealed as a question reserved under
The differences in the rights acquired upon successful appeals when the State proceeds on a question reserved and when it proceeds on die dismissal of a complaint — as pointed out by the Muck court — are as dramatic as the differences in the rights acquired upon successful appeals when the State proceeds, on a question reserved and when it proceeds under
By contrast, as Muck intimates in its comparison to appeals of dismissal, the State’s successful appeal on a question reserved does not affect the defendant in the underlying case. The court’s decision typically operates only prospectively. See, e.g., State v. Roderick, 259 Kan. 107. So when the State successfully appeals, its prior election of jurisdictional bases can have dramatic consequences for the defendant, or none at all.
With this background, we turn to examining whether the State can expand its elected, and repeatedly asserted, statutory basis for appellate jurisdiction — at least without notification, if not a formal amendment. Although caselaw is not directly on point, the answer appears to be “no” when examining the analogous case of State v. Taylor, 262 Kan. 471, 939 P.2d 904 (1997). There, the court observed that the State had appealed on a question reserved pursuant to
Taylor admittedly concerned a notice of appeal in a direct appeal to the Supreme Court, while Berreth’s case involves an appeal to the Court of Appeals. And the requirements for reciting the stat-utoiy grounds — under which the appeal should be permitted — in the notices of appeal to each court are different. As we explained in State v. Hurla, 274 Kan. 725, 56 P.3d 252 (2002), Supreme Court Rule 2.01 (2011 Kan. Ct. R. Annot. 9) requires assertion of a specific ground in the notice of appeal for direct appeals to the Supreme Court, but Rule 2.02 (2011 Kan. Ct. R. Annot. 9) does not so require for the Court of Appeals.
In Berreth’s case — except as a question reserved — the State has never asserted at any stage of the process any statutory appellate jurisdictional basis in other documents, e.g., the docketing statement that is expressly used by the appellate courts “to determine jurisdiction.” This inactivity contrasts with the State’s actions in State v. Craig, 254 Kan. 575, 867 P.2d 1013 (1994). There, in an apparent direct appeal to the Supreme Court by the State, its notice of appeal’s alleged jurisdictional basis was
The State has certainly made no effort to formally amend its elected statutory appellate jurisdictional basis in Berreth’s case. The case of State v. Kerby, 259 Kan. 104, 105, 910 P.2d 836 (1996), provides some guidance. In Kerby, on a direct appeal to the Supreme Court which required recitation of the statutoiy appellate authority in the notice of appeal, the State “failed to amend” its incorrect basis in the notice. The court dismissed for lack of jurisdiction. As this court later described it, the Kerby court “dismiss [ed the] case for lack of jurisdiction as [the] State had failed to amend [its] notice of appeal to reflect it was appealing under
Kerby, unlike Berreth’s case, admittedly concerned a defective notice of appeal in a direct appeal to the Supreme Court. But its rationale and holding are persuasive for documents submitted after tire notice of appeal in the Court of Appeals, e.g., the docketing statement. Cf. State v. Craig, 254 Kan. 575 (allowed docketing statement to change grounds asserted in State’s notice of appeal). Here, the State’s docketing statement contained the same jurisdictional election as its notice of appeal.
As part of the analysis above reveals, some caselaw interpreting our rules has characterized as jurisdictional a failure in the notice of appeal to the Supreme Court to correctly cite the statutory authority under which the appeal should be permitted. But instead of a characterization of the failure as jurisdictional, it might be considered procedural and therefore justify dismissal simply due to a substantial failure to follow the rules of this court. See, e.g., Supreme Court Rule 5.05 (2010 Kan. Ct. R. Annot. 36) (appellate court may dismiss an appeal because of substantial failure to comply with court rules); Crumpacker v. Crumpacker, 239 Kan. 183, 184, 718 P.2d 295 (1986) (distinction between procedural requirements of rules which may be waived and jurisdictional requirements of statutes which may not be waived).
Regardless of how these appellate dismissals are characterized, this caselaw generally supports our decision in Berreth’s case. Under the circumstances here, we conclude the State was unable to expand its elected, and repeatedly asserted, statutory basis for jurisdiction in the Court of Appeals.
As for the dissent, it believes that the State’s specific identification of its sole statutory jurisdictional basis — in both its notice of
But this particular brief fails to identify any statutory jurisdictional basis for the State’s appeal. As a result, die dissent apparently would obligate die appellate court to infer from the brief which of the potential statutory jurisdictional bases for appeal the State has possibly chosen. This shift in responsibility — from the appellant who should know to die appellate court that can only infer — is particularly problematic because different jurisdictional bases for the State can have widely different effects on a criminal defendant. See Muck, 262 Kan. 459 (different jurisdictional bases can have dramatic consequences for die defendant, or none at all). The dissent seemingly would then require the appellate court to determine whether the statutes it tried to infer from the State’s brief would provide jurisdiction under the facts of the case.
Equally important, the dissent’s position has never been argued by the State. From at least the time of remand by the Court of Appeals in Berreth I, die State clearly has been on notice of Ber-reth’s principal argument: The only appellate jurisdictional basis the State ever had asserted was as a question reserved. Despite this clear opportunity for the State to dispute Berreth’s assertion, it did not. And the State certainly has never contended that the brief it wrote in Berreth I asserted any jurisdictional basis other than the one stated in its notice of appeal and docketing statement. Instead, it has clung to the position it has consistently taken throughout the case. The State’s brief to the Court of Appeals in Berreth II — and to this court — clearly and almost exclusively contends that die State’s notice of appeal sufficiently articulated a question reserved under
Indeed, at oral argument before this court, the State conceded that it had not argued
2. The Court of Appeals cannot sua sponte change the State’s election of its statutory basis for appellate jurisdiction.
The State specifically contended at oral argument that appellate courts not only have the right to sua sponte raise the issue of jurisdiction but also the right to sua sponte select the best jurisdictional basis for an appeal despite the State’s earlier explicit election of another. We agree that appellate courts have a duty to question jurisdiction on their own initiative. See State v. Gill, 287 Kan. 289, 196 P.3d 369 (2008). We disagree, however, with the remainder of the State’s proposition. This court’s recent trend has been to hold the State to its jurisdictional election.
The case of State v. Verge, 272 Kan. 501, 34 P.3d 449 (2001), is illustrative. There, this court held that the State’s notice of appeal contained a jurisdictional deficiency. Instead of asserting a question reserved under
Three years before Verge, the Woodling court had held that the State could not claim that jurisdiction existed on the ground it was arguing —
Cut from the same basic cloth is State v. G.W.A., 258 Kan. 703, 705-07, 906 P.2d 657 (1995). In G.W.A., we dismissed the State’s appeal for lack of jurisdiction because its notice of appeal cited only the general statute,
“Here, the State’s notice of appeal referred solely to an appeal from the judgment of acquittal. It contained no general referenсe which could be liberally construed to include an appeal on a question reserved. . .. The notice of appeal was limited and specific and cannot be read to include an appeal on a question reserved.. . . We are unpersuaded by the State’s argument that its mention ofK.S.A. 1994 Supp. 22-3602 in the notice of appeal gives the court jurisdiction.” 258 Kan. at 707.
In dismissing, we obviously did not sua sponte supply a jurisdictional basis different from the one elected by the State in order to save the appeal. The same is true for State v. Taylor, 262 Kan. 471, 939 P.2d 904 (1997), which as previously mentioned we dismissed because of the State’s failure to elect the proper appellate statutory jurisdictional basis.
Admittedly, Verge, Woodling, Taylor, Kerby, and G.W.A. are all direct appeals to the Supreme Court. By Supreme Court Rule 2.01 their notices of appeal are required to state the ground on which the appeal is allegedly permitted, including citation of statutory authority. By contrast, Berreth’s case is an appeal to the Court of Appeals and by Rule 2.02 such notices of appeal are not required to so state (see Hurla, 274 Kan. 725). Nevertheless, these recent cases demonstrate that this court has been strict with the State on asserting jurisdictional bases. And whether the appeal dismissals are characterized as definitely jurisdictional, or possibly procedural for failure to follow court rules, we clearly have not sua sponte supplied appellate bases in addition to, or in place of, those cited by the State.
In eаrlier years, however, this court apparently took a more lenient approach. In State v. Martin, 232 Kan. 778, 658 P.2d 1024 (1983), the State appealed the trial court’s decision under
Seven years later in State v. Harpool, 246 Kan. 226, 788 P.2d 281 (1990), the State took an interlocutory appeal under
The Whorton decision of 1979, cited by tire court in Martin and by the State in Berreth’s case, supports the general proposition that the State’s failure to designate the proper statutory jurisdictional basis does not doom its appeal. Although the text is not clear, Whorton apparently involved an undesignated jurisdictional basis by the State. This court did not simply dismiss the appeal as in Verge 22 yeаrs later. But it analyzed whether the appeal was proper under
The Grimes decision of 1981, also cited by the court in Mai~tin and by the State in Berreth’s case, is of less support to the State than Whorton. In Grimes, the State appealed the district court’s grant of defendant’s motion for new trial and argued it was a question reserved under
In addition to citing our 20-year trend to hold the State to its own jurisdictional election, another reason exists to prohibit the appellate courts from unilaterally altering a declared jurisdictional basis for appeal. Specifically, assisting the State with its jurisdictional designation in criminal appeals is inconsistent with our acknowledgment that the legislature tightly restricts the State’s statutory rights to appeal. State v. Walker, 260 Kan. 803, 806, 926 P.2d 218 (1996) (appeals by the State in criminal cases are tightly restricted by statute); see State v. Boyd, 268 Kan. 600, 605, 999 P.2d 265 (2000) (“While the State only has limited appeal rights, a criminal defendant has a nearly unlimited right of review.”); City of Lyons v. Wellman, 56 Kan. 285, 43 P. 267 (1896) (“the right of the State to appеal in criminal cases is quite limited”).
3. A defendant has no authority to change the appellate jurisdictional basis elected by the State.
In Berreth I, defendant’s counsel asked die Court of Appeals panel to construe tire defense motions as being filed under
Issue 2: Appellate courts do not answer questions resemed unless the matter is of statewide importance.
Now that we have established the State’s elected appellate jurisdictional basis
We have repeatedly stated that to be considered on appeal, questions resеrved by the prosecution must be issues of statewide interest important to the correct and uniform administration of criminal law. Questions reserved by the State in a criminal prosecution will not be entertained on appeal merely to determine whether error has been committed by the trial court in its rulings adverse to the State. State v. Adee, 241 Kan. 825, 826, 740 P.2d 611 (1987); State v. Willcox, 240 Kan. 310, Syl. ¶ 1, 729 P.2d 451 (1986); State v. Holland, 236 Kan. 840, Syl. ¶ 1, 696 P.2d 401 (1985); State v. Glaze, 200 Kan. 324, Syl. ¶ 1, 436 P.2d 377 (1968). We have uniformly declined to entertain questions reserved, the resolution of which would not provide helpful precedent. State v. Hudon, 243 Kan. 725, 726, 763 P.2d 611 (1988); State v. Holland, 236 Kan. at 841. Mountjoy, 257 Kan. at 167-68.
Here, the State’s repeatedly given reason for seeking appeal of the district court’s order declaring the convictions multiplicitous was to seek clarification regarding Robbins and Groves: The court should reconsider Robbins in light of Groves. While Berreth’s case was on appeal, this court provided that requested clarification in State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). As the Court of Appeals in Berreth I was to hold, “it appears the district court’s reliance on Robbins no longer stands up under Schoonover’s analysis.” Berreth I, 2007 WL 806002, at *5. The panel ruled Schoonover controlled and the district court erred in determining Berreth’s convictions were multiplicitous and in resentencing. But this determination could have been made after the panel’s receipt of the parties’ responses to Question Two in its show cause order, i.e., “Why State v. Schoonover does not control.” And if not then, it could have been made after oral arguments.
It is unlikely a written judicial opinion was required on this issue. The State’s appeal of this issue could easily have been dismissed because “the resolution of tire question would not provide helpful precedent.” State v. Skolaut, 286 Kan. 219, 225, 182 P.3d 1231 (2008) (appellate courts will not accept appeal of questions reserved in cases “in whiсh the resolution of the question would not provide helpful precedent.”).
More to the point are several Court of Appeals opinions. One panel has specifically held that on a question reserved, if an issue on appeal is no longer of statewide importance because the court has already addressed it in prior case, the appeal should be dismissed. In re E.F., 41 Kan. App. 2d 860, 861-62, 205 P.3d 787 (2009). See also State v. Sanderson, No. 104,052, 2011 WL 1377073, at °2 (Kan. App. 2011) (unpublished opinion) (“Because clear precedent has already been established ... we decline jurisdiction on the question reserved by tire State and, accordingly, dismiss the appeal.”); State v. Hudson, No. 103,360, 2011 WL 1344730, at *3 (Kan. App. 2011) (unpublished opinion) (dismissing appeal because the “legal authority cited by the State only serves to indicate that the question reserved by the prosecution in this appeal has already been addressed by Kansas courts”).
Issue 3: An appellate court answer to the State’s question reserved does not affect Berreth.
We hold that (1) tire State’s elected appellate jurisdictional basis was solely a question reserved, (2) State v. Schoonover meant the State’s question reserved was no longer of statewide interest, and (3) the State’s appeal therefore could have simply been dismissed. As a result, we need not address further panel error. The matter is resolved. Nevertheless, we take this opportunity to clarify Kansas caselaw on the effect on a criminal dеfendant when an appellate court answers the State’s question reserved in his or her case.
To state it clearly and simply, an appellate court’s answer to a State’s question reserved has no effect on the criminal defendant in the underlying case. See,
The rationale for this rule appears to be stated as follows:
“ ‘An appeal on a question reserved is permitted to provide an answer which will aid in the correct and uniform administration of the criminal law. This court will not entertain a question reserved merely to demonstrate errors of atrial court in rulings adverse tо die State. Questions reserved presuppose Üiat die case at hand has concluded but that an answer to an issue of statewide importance is necessary for disposition of future cases.’ City of Wichita v. Basgall, 257 Kan. 631, Syl. ¶ 1, 894 P.2d 876 (1995).” (Emphasis added.) State v. Roderick, 259 Kan. 107, 108, 911 P.2d 159 (1996).
See State v. Ruff, 252 Kan. 625, 630, 847 P.2d 1258 (1993) (“questions reserved presuppose that the case at hand has concluded but than an answer is necessary for proper disposition of future cases which may arise”); State v. Puckett, 227 Kan. 911, 610 P.2d 637 (1980); State v. Reed, 145 Kan. 459, 65 P.2d 1083 (1937). The question reserved is akin to a purely academic question in tire case in which it arrives on appeal.
Some of our opinions, however, have appeared to stray from this purely academic path, particularly on sentencing issues. See, e.g., State v. Reason, 263 Kan. 405, 951 P.2d 538 (1997) (“Although remands are infrequent on questions reserved under
We reemphasize our rule to keep future courts from straying from it. An appellate court’s answer to a question reserved by the State has no effect on the criminal defendant in the underlying case.
Before closing, it should be noted that the State had recourse in Berreth’s case. Instead of choosing to appeal the multiplicity order of March 9, 2005, as a question reserved, it could have chosen to appeal under
CONCLUSION
The Court of Appeals panels in both Berreth I and Berreth II failed to properly treat the State’s appeal as a question reserved as the State had elected. And had such a treatment occurred, any decisions on a question reserved would not affect Berreth. The decision of the panel in Berreth II, which is before us on Berreth’s direct appeal of that decision, is therefore reversed.
We denied Berreth’s petition to review the panel’s decision in Berreth I. But as a practical matter Berreth I cannot stand given today’s reversal of the Berreth II decision — which had essentially affirmed both the rationale and holding of Berreth I. Indeed, the Berreth II court stated that defendant:
“contends that in a prior appeal of this case by the State, we had no authority to order the district court to reimpose his original sentence. In his view, the case has no statewide importance and therefore we should not have entertained the State’s appeal. . . . We hold the State did not deprive this court of jurisdiction by calling the matter in its notice of appeal a question reserved. We affirm Berreth’s sentence.” 2009 WL 1393752, at *1.
Consequently, the decision in Berreth I is vacated. See
Dissenting Opinion
dissenting: I respectfully disagree with the majority opinion. No statute or rule requires an appellant to state the jurisdictional basis for an appeal to the Court of Appeals when filing a notice of appeal. Consequently, I would hold that the State elected and sufficiently announced the jurisdictional basis for the relief it sought by clearly requesting the relief in its initial brief to the Court of Appeals in State v. Berreth, No. 94,310, 2007 WL 806002 (Kan. App. 2007) (unpublished opinion) (Berreth I).
Divergent Lines of Cases
The issue in this appeal has been addressed in several cases, and two divergent lines of cases have developed. In the line of cases adopted by the majority, this court has held that an appellant must cite a statutory basis for jurisdiction in a notice of appeal and is bound by that statement unless there is a formal amendment. E.g., State v. Verge, 272 Kan. 501, 521, 34 P.3d 449 (2001) (“ ‘Grounds for jurisdiction not identified in a notice of appeal may not be considered by the court.’ ”); State v. Woodling, 264 Kan. 684, Syl. ¶ 2, 957 P.2d 398 (1998) (same); State v. Kerby, 259 Kan. 104, 106, 910 P.2d 836 (1996) (failure to cite statute giving Supreme Court jurisdictional basis in notice of appeal or to timely amend the notice of appeal deprived court of jurisdiction); State v. G.W.A., 258 Kan. 703, 705-07, 906 P.2d 657 (1995) (“State must also lay a foundation for its own appeal by filing a notice of appeal which gives the appellate court jurisdiction tо hear the appeal.”).
This court’s jurisdiction derives from Article 3, § 3 of the Kansas Constitution, which states that the Kansas Supreme Court will have “such appellate jurisdiction as may be provided by law.” There is not a similar constitutional provision relating to the Kansas Court of Appeals, but
Under the relevant statutes, appellate jurisdiction is triggered by the timely filing of a notice of appeal. See Albright v. State, 292 Kan. 193, 197, 251 P.3d 52 (2011).
Without a constitutional or statutory basis for a requirement that a notice of appeal include a citation to the statute giving the court jurisdiction, tire Verge, Woodling, Kerby, and G.W.A. courts imposed this requirement by extrapolating from the requirement in
Under our well-established caselaw holding that appellate jurisdiction is defined by statute, the G.W.A. court did not have authority to impose a nonstatutory jurisdictional requirement. Yet, this faulty reasoning in G.W.A. is relied upon as the basis for the holdings in Verge, 272 Kan. at 521-22, Woodling, 264 Kan. at 687, and Kerby, 259 Kan. at 106. Because of this faulty reasoning, I reject the majority’s reliance on tírese cases. Granted, the majority stops short of adopting the jurisdictional rationale of Verge, Woodling, Kerby, and G.W.A. Nevertheless, the holdings in these cases cannot be divorced from this faulting reasoning, and the majority’s rationale depends on these cases.
The majority attempts to find a substitute rationale by concluding that Supreme Court Rule 2.01 (2011 Kan. Ct. R. Annot. 9) imposes a procedural requirement that an appellant cite the statutory jurisdictional basis. As I will explain, I disagree with this conclusion because Rule 2.01 only requires a statutory citation to a statute that authorizes filing an appeal directly with the Kansas Supreme Court and because this requirement is not jurisdictional or binding.
Supreme Court Rule 2.01
Rule 2.01 (2011 Kan. Ct. R. Annot. 9) states:
“When an appeal is permitted directly to the Supreme Court, the notice of appeal shall be filed in the district court, shall be under the caption of the case in the district court and in substantially the following form:
“NOTICE OF APPEAL
“Notice is hereby given that (specify the party or parties taking the appeal) appeal(s) from (designate the judgment or part thereof appealed from) to the Supreme Court of the State of Kansas.
“The appeal hereby taken is directly to the Supreme Court on tire ground that (state ground on which direct appeal is considered to be permitted, including citation of statutory authority).” (Emphasis added.)
The first sentence of the suggested form parallels the requirements of
It appears that the purpose for asking for a citation to a statute that allows a direct appeal to the Supreme Court is to discern whether tire appeal is correctly filed with the Supreme Court rather than the Court of Appeals. This purpose is made evident by comparing Rule 2.01 with Supreme Court Rule 2.02 (2011 Kan. Ct. R. Annot. 9), which includes a form for a notice of appeal for tiróse appeals that will be docketed with the Court of Appeals. The form provided for in Rule 2.02 is one sentence in length, providing: “Notice is hereby given that (specify the party or parties taking the appeal) appeal(s) from (designate the judgment or part thereof appealed from) to the Court of Appeals of the State of Kansas.” (2011 Kan. Ct. R. Annot. 10.) This sentence is identical to the first sentence in the Rule 2.01 form; as a result, both forms incorporate the
This distinction flows from the statutes that distinguish the jurisdiction between the two courts by providing that the Court of Appeals will hear all appeals that cannot be taken directly to the Kansas Supreme Court. See, e.g.,
The starting point for distinguishing the appeals that must be filed in the Court of Appeals from the appeals that may be brought directly to the Supreme Court is
“An appeal from a final judgment of a district court in any civil action in which a statute of this state or of the United Stateshas been held unconstitutional shall be taken directly to the supreme court. Direct appeals from the district court to the supreme court in criminal cases shall be as prescribed by K.S.A. 22-3601 and 22-3602, and amendments thereto.”
In the present case, the State’s notice of appeal cited to
Further, the citation to the legal basis for taking an appeal directly to the Kansas Supreme Court is not a jurisdictional requirement and a mistake in the citation is not fatal to an appeal. This is made clear by
“No case docketed either in the supreme court or the court of appeals shall be dismissed solely for the reason of having been filed in the wrong court, but shall be transferred by the supreme court to the court which the supreme court determines to have jurisdiction. Any such case shall be considered timely and properly filed in the court to which it is transferred.”
“Neither is tire failure to cite the proper appellate statute a jurisdictional prerequisite. [Citations omitted.]” State v. Martin, 232 Kan. 778, 780, 658 P.2d 1024 (1983).
In other words, the second sentence of the form in Rule 2.01, while helpful in determining if an appeal should be transferred from the Supreme Court to the Court of Appeals, serves no jurisdictional basis. Nor does Rule 2.01 require the appellant to include within the notice of appeal a statement of the jurisdictional basis for granting the relief sought. In other words, Rule 2.01 does not require the citation that the majority or the Verge line of cases requires, nor does it imply that any jurisdictional statement, if made, should be deemed binding or critical to jurisdiction.
Right to Appeal and Relief
The majority opinion and the Verge line of cases are also contrary to a point this court has emphasized: “The right to appeal should not be unduly restricted.” Martin, 232 Kan. at 780. Further, we have generally held that a notice of appeal should be liberally construed and a defect in the notice should not be a basis for relief unless the defect results in prejudice to a party. See, e.g., Associated Wholesale Grocers, Inc. v. Americold Corporation, 293 Kan. 633, 270 P.3d 1074 (2011) (applying liberal construction to notice of appeal that did not include complete caption or all district court rulings). In Harpool, 246 Kan. 226, Martin, 232 Kan. 778, Grimes, 229 Kan. 143, Whorton, 225 Kan. 251, and other cases such as State v. Wilkins, 269 Kan. 256, 7 P.3d 252 (2000), and State v. Ransom, 268 Kan. 653, 999 P.2d 272 (2000), we generally adopted the policy that our rules regarding a notice of appeal “ ‘should not be overly technical or detailed. The notice of appeal is not a device to alert the parties to all possible arguments on appeal. That is the purpose and function of the docketing statements and briefs filed by die parties.‘” Wilkins, 269 Kan. at 269 (quoting State v. Boyd, 268 Kan. 600, 999 P.2d 265 [2000]); see Bryson v. Wichita State University, 19 Kan. App. 2d 1104, 1106, 880 P.2d 800, rev. denied 256 Kan. 994 (1994) (pointing to nonbinding nature of docketing statement’s list of issues on appeal); but see Boyd, 268 Kan. at 605-08 (applying prejudice rule to ambiguity regarding judgment from which appeal was taken but distinguishing Kerby and G.W.A.).
Here, it cannot be denied that the State cited one ground for tire appeal in its notice
Rather, Berreth and the Court of Appeals were clearly alerted to the nature of the relief sought by the State. In its brief to the Court of Appeals in Berreth I, tire State made no attempt to present a question reserved. As Berreth points out, the State did not argue a ground for the court’s consideration of a question reserved as it presumably would have done if that was the basis for the argument presented to the Court of Appeals. See State v. Skolaut, 286 Kan. 219, 225, 182 P.3d 1231 (2008) (“[Appellate courts will accept appeal of questions reserved when the issues are ‘matters of statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes.’ ”). Rather, the State attacked Berreth’s sentence, arguing the district judge erred in finding Berreth’s sentence for aggravated kidnapping was multiplicitous with his crimes of criminal sodomy. In its second issue, the State cited
In responding to these arguments in his Berreth I appellate brief before the Court of Appeals, Berreth clearly understood that the State was requesting relief frоm tire judgment. Berreth did not object to a consideration of whether his conviction for aggravated kidnapping should have been vacated; he did not assert that the State was limited to a question reserved. Instead he argued his lesser sentence for kidnapping “must be affirmed. The district court did not err.” Further, as discussed by the majority, Berreth had asked the district court to consider the action as a
The Berreth I court had jurisdiction to grant the remedy requested in the State’s Berreth I brief by reversing Berreth’s sentence after concluding the district judge erred in determining Ber-reth’s sentences were multiplicitous. See State v. Berreth, No. 94,310, 2007 WL 806002 (Kan. App. 2007) (unpublished opinion) (Berreth I).
Yet, the majority in this appeal appears to hold that the State’s focus in its Berreth II briefs on a question reserved erases the State’s Berreth I argument. This conclusion means that a party’s postjudgment actions can eviscerate the jurisdictional basis for a judgment. Such a principle would be contrary to all principles related to the finality of a judgment. The Berreth II Court of Appeals was justified in looking at the record in Berreth I and examining the basis for its own decision. The Berreth II Court of Appeals correctly determined the Berreth I judgment was valid and should not be set aside. I would affirm that holding.
Rosen, J., joins in the foregoing dissent.