State v. Berreth

99,937 No. Kansas, Berreth, Appellee, v. Rolland G.

Appellant. (273 752) P.3d filed 2012. April Opinion Wichita, Whalen, Whalen, P. of P. of Law Office of Michael argued

Michael and was on the briefs for cause appellant. cause, Six, and Steve attorney L. Satterfield, county attorney, argued Jan was with on the brief for her appellee. general, delivered The of the court was opinion Nuss, us to consider This case jurisdic- requires C.J.: sentenced convicted and after Rolland Berreth was tion. Ten years three counts for one count aggra- aggravated kidnapping he filed with a child under vated criminal age, years sodomy se motion to correct an sentence under K.S.A. 22- pro illegal 3504. His counsel later filed motions K.S.A. 60- appointed citing 1507, which se All Berreth’s motion. motions expanded pro argued The district court ruled Berreth’s multiplicity. aggravated kidnap- conviction was with the criminal ping multiplicitous aggravated convictions, reduced Berreth’s con- sodomy aggravated kidnapping viction and therefore reduced his sentence. kidnapping, statement, filed its notice of each docketing as one taken specifically describing upon 22-3602(b)(3). reserved under K.S.A. The Court of re- Appeals versed the district and ordered reinstatement of Berreth’s sentence. After the district court Berreth original complied, ap- and a different Court of affirmed. pealed, panel We Berreth’s for review under K.S.A. 20-3018 granted petition to reexamine the basis for the State’s and to exаmine the correctness of the Court of Because Appeals’ rulings. we of hold Court failed to treat the State’s properly reserved, reverse, remand, as a we and order re- instatement of Berreth’s reduced sentence.

Facts events, The sometimes and resultant are confusing arguments, best understood when detailed chro- presented following nology:

1994: After a convicted Berreth of one count of jury aggravated and three counts of criminal of a kidnapping aggravated sodomy child under 14 the district court sentenced Berreth years age, to 254 months’ with 24 months’ imprisonment postrelease super- The vision. convictions and sentences were later affirmed on direct Berreth, 73,929, No. filed unpublished opinion 10, 1997. January

May 25, action, 2004: In Berreth’s criminal 93 CR original he filed a se motion to correct an sentence under K.S.A. pro illegal 22-3504. He contended that his conviction aggravated kidnapping was with at least one of the three convictions multiplicitous ag- criminal So he gravated sodomy. requested aggravated kidnap- conviction be reduced to one for ping simple kidnapping, orig- vacated, a reduced sentence be and inal sentence imposed crime. this less severe counsel, his After Berreth was

November 2004: appointed submit- to sentence. filed motion correct attorney Despite being K.S.A, 60-1507,” it was filed in Berreth’s too ted orig- “pursuant motion all the inal criminal аction: 93 CR 354. This incorporated se motion under and issues of Berreth’s earlier pro arguments it now that Berreth’s convictions K.S.A. 22-3504. But emphasized criminal were and sodomy aggravated aggravated kidnapping Robbins, under State multiplicitous (2001). It renewed his to vacate request aggravated kidnapping sentence. motions, 2004: At the on defense

December hearing to correct sentence sub- was handed an amended motion judge identified mitted to K.S.A. 60-1507.” “pursuant Although 60-1507,” it was in 93 CR as an “Amended too filed motion’s body Novem- motion verbatim his counsel’s 354. amended repeated So it to have been filed ber arguments multiplicity. appeared on Berreth’s second issue: while for counsel elaborate primarily was he it was the Berreth conceded his sentence not illegal, argued motive. Berreth’s coun- result corrupt partiality, oppression, a lower sentence on sel for correction argued through presumptive “resentence for the all four counts asked that illegal judge sentence of kidnapping.” aggravated kidnapping plain January 14, the State now 2005: After rescheduling, apparent in 93 CR 354 to the motion to correct filed defendant’s response to K.S.A. 60-1507. It Berreth sentence argued pursuant attack, motion, a 60-1507 collateral e.g., attempting improper on a that have been raised direct on issue should ap multiplicity The It that the 1507 motion was time barred. further argued peal. Groves, that under v. 278 State State additionally argued (2004), not 95 P.3d 95 the convictions were multiplicitous. 9, 2005: court filed its and March The district order ruling in 93 CR 354. After defendant’s motion to correct sentence setting motions, it declared that of the three defense forth chronology decide, oth- or before the court. But did were they properly their basis: erwise clarify, procedural 22-3504, “Consistent with K.S.A. a motion to correct an sentence illegal may Further, be made and ruled at time. fundamental any fairness dictates that upon the defendant’s se motion be construed as one under pro K.S.A. 60-1507 original (motion sentence). Whether the motion is construed as a attacking defendant’s motion, KS.A. 22-3504 or is construed as a motion under K.S.A. 60- liberally Court will consider the issues raised Defendant (if assertion that Mr. Berreth’s motion as a construed K.S.A. 60-1507 original motion) merit, is is without as Berreth filed his one motion within untimely year of the ... to such statute. As statutory the Defendant’s motion was filed change 1, 2003, added.) less than one from motion his year July timely.” (Emphasis The court that Berreth’s convic- agreed aggravated kidnapping tion was with one of his criminal multiplicitous aggravated sodomy Robbins, convictions under State v. In 158. retroactively convictions, 2001 Robbins decision to Berreth’s applying the court “noted there is long-standing precedent supporting the vehicle of K.S.A. 60-1507 to be utilized to correct retroactively convictions, State, claims duplicitous e.g.,Jarrell (1973).” the court vacated the Consequently, aggra- conviction, vated it with a conviction for the kidnapping replaced lesser offense of and set kid- resentencing kidnapping, simple on March 29. napping

March occur, 2005: Before actual could resentencing court, State filed its notice of in the district Ber- again reth’s criminal case: CR 354. Its notice recited “[o]n May 25, 2005, amendment on November and December [sic] 7, 2004, the defendant filed a motion to correct his sentence under K.S.A. 60-1507 and 22-3504.” this acknow- Despite two-pronged the notice then the State’s choice ledgment, expressed apparent three bases: “This among possible jurisdictional appeal pursuant 22-3602(b)(3).” to K.S.A. This statute allows the prosecution take to the Court as a matter of “upon right prosecution.”

The State’s notice further stated that Berreth’s situation pre- sented a of “statewide interest uniform important administration of criminal law.” More the notice specifically, sug- that Berreth’s case demonstrated conflict between State gested (the v. Robbins case the district court relied case upon) the State relied State v. Groves. The ex- principally upon: Robbins in the court’s reconsideration of light requested pressly Groves. cite, other ba-

The notice did not among appellate ses, 60-1507(d). “an ... as This statute allows pro- as from a final law from the order entered on the motion vided by for a writ of habeas corpus.” aрplication judgment 29, court’s re- March 2005: Per district prior scheduling, term of from sentenced Berreth. It decreased his imprisonment 192 months and increased his from 254 to supervision postrelease occurred, however, 24 to 60 months. Before actual resentencing and its ex- the court of the State’s advised prosecutor reserved” basis: clusive “question research, however, When I did aside state lias filed an appeal. “[T]he from not, only which this is basis our appeal interlocutory appeal, for —which we haven’t stated a course could be denied because just sufficient And that’s also— importance.

prosecution appeal reserve —of —is when it was at the time the court issued its written there was no opinion, hearing So I wasn’t able to to the court’s or make taken under advisement. object ruling I chose to file the notice of alter the That’s also objections. why proper added.) order, to make sure that I reserved the issue on appeal." (Emphasis 25, with the 2005: The State filed its statement docketing April Consistent with both the clerk of the courts. prosecutor’s with March 29 statement at the resentencing hearing statement State’s even earlier notice of pro- appeal, docketing that the au- vided under “Statutory “Jurisdiction,” Paragraph reserved, K.S.A.” And consistent Question [is] thority under the statement with the State’s notice appeal, provided to be Statement of the issues “Concise proposed Paragraph raised,” its in State v. Court should reconsider “[t]he opinion (2001),] [, 32 P.3d 171 based on Robbins (2004).” Groves, like the Finally, just the district statement bore notice of docketing appeal, of 93 CR 354. court’s criminal case number August 24, Court of 2005: In the State’s brief to tire later, it that Berreth’s 1507 motion was months untimely argued his motions conceded that is unclear whether but [Berreth’s] “[i]t 60-1507.” No mention to K.S.A.22-3504 or were actually pursuant made, however, of the basis of a appellate jurisdiction per 22-3602(b)(3). Instead, reserved under K.S.A. the State’s brief concluded that defendant’s convictions should be re- “[t]he 9, 2005, instated. The district decision of March judge’s [finding Robbins] under should be reversed and the multiplicity original sentence 254 should be [of months] reimposed.” 1,

March 2006: In Berreth’s brief to the Court of response Ap- no mention was made of the State’s invocation of peals, appellate a 22-3602(b)(3). reserved under K.S.A. jurisdiction per April 28,2006: after months Berreth’s brief was Approximately Schoonover, filed, this court released its decision in State v. (2006). There, Kan 133 P.3d 48 we revised our substantially to claims and approach analyzing multiplicity essentially rejected Robbins —the case which the district court based its decision upon to vacate the conviction and sentence on aggravated kidnapping multiplicity grounds.

May 31, 2006: The Court of issued order to show Appeals cause. More it ordered the to file a written specifically, parties released response by explaining why, per newly June Schoonover decision, should not reverse the panel summarily district court and reinstate Berreth’s conviction and sentence for aggravated kidnapping. 16, 2006: Before the to the Court of

Tune parties’ responses due, show cause order were this court released its decision Appeals’ Edwards, in State v. (2006). There, 135 P.3d 1251 we held that claim that sentences are syllabus “[a] paragraph a claim that the sentences were a multiplicitous imposed by court without as is to come within the narrow necessary definition 22-3504(1).” sentence under K.S.A. illegal 27, 2006: The Court of noted the of the

Tune filing to its 31 order to show cause. But it further parties’ responses May ordered them to file briefs on three supplemental questions: court, court, 1. “Did the district and does this have jurisdiction pursuant Edwards, State v. 281 Kan. 1334 is not claim that can be (Multiplicity sentence.).” in a

raised motion to correct an illegal Schoonover, (2006), 2. “Why does not control.” what circum- at a second

3. is this not an exceptional attempt “Why under K.S.A. 60-1507] Court Rule 183 for motions stances Supreme [e.g., per conviction?” this are challenge appellant’s justify allowing present August 1, brief, it 2006: In the State’s supplemental argued correct sentence as use of a motion to Edwards illegal prohibited that Schoon- It further a vehicle to argued challenge multiplicity. brief, like the State’s Robbins. The over overruled supplemental made reference to no jurisdiction per question оriginal, 22-3602(b)(3). Rather, also like the State’s reserved under K.S.A. brief, collateral attacks defendant’s concluded “[t]he original reversed his sentence should be denied and modification added.) his sentence(Emphasis reinstating original 5, September brief, he con- In 2006: Berreth’s supplemental State, v. that under a case cited the district tended court—Jarrell 171, (1973), motion counsel’s arguing —his vehicle of K.S.A. in the was raised proper procedural multiplicity claims raised barred 60-1507. Because Edwards only multiplicity sentence, a motion to correct in the vehicle of illegal procedural that his did not relief. He further Edwards therefore bar argued to correct an sentence under se motion’s reference illegal pro a 1507 motion— 22-3504 construed as should liberally survive Edwards’ bar. so he could procedural presumably merits, that while Schoonover over- Berreth contended On Robbins, 1993 His to his crimes. ruled it did not retroactively apply that the district court’s brief concluded resentencing supplemental affirmed. As in his should be order for original simple kidnapping brief, a reference to Berreth made no jurisdiction per appellate reserved. 6,2006: Berreth filed his The after day supplemental

September incar- brief, of 192 months’ he his reduced sentence completed his increased ceration and was released from custody post- begin release of 60 months. supervision 16, deci released its

March 2007: Thе Court of Appeals panel Berreth, 94,310, (Kan. WL 806002 No. sion App. (Berreth I). held Ed 2007) first panel (unpublished opinion) sentence as a to correct an wards barred the use of motion illegal however, observed, claim. It a vehicle for a multiplicity raising “the district did state whether it was consid- specifically a Berreth’s motion as motion to correct an sentence ering illegal 22-3504(1) aas K.S.A. 60-1507 motion.” Berreth under K.S.A. or I, Nevertheless, 2007 WL at *2. it stated that Berreth’s construed, se were to be pro pleadings liberally acknowledged ‍​‌‌​​‌​​‌‌​‌‌‌​‌‌‌​​​​​​​‌​‌‌‌‌‌‌‌‌‌​​‌​​​​​​​‌‌‍60-1507, counsel had filed a motion under and further appointed that Berreth that his motion should be lib- acknowledged argued construed a 1507 motion. It held that “Berreth’s initial erally sentence should have been con- se motion to correct an pro illegal strued I, Berreth added.) as K.S.A. 60-1507 motion.” (Emphasis 2007 WL at *3. The cited the panel ultimately general standard for a 60-1507 motion. It made no reviewing reference, however, to the basis tire only appellate jurisdictional State had asserted: 22- under K.S.A. expressly 3602(b)(3). merits, Schoonover to rule relied

Turning panel upon the district court erred in Berreth’s convictions were determining and in So it reversed and remanded multiplicitous resentencing. tire case to tire district court “with directions to reinstate Berreth’s months], sentence the 24 months’ [of original including post- I, Berreth release 2007 WL at *5. supervision.” October 2007: Because Berreth had been released from cus- of the tody approximately year during pendency earlier — State obtained a bench warrant for his arrest appeal —the with the Court of comply Appeals opinion. 18, October 2007: After Berreth’s arrest while on postrelease in he filed his criminal case —93 CR 354 —a supervision, original se motion to correct an sentence five-page pro illegal pursuant 22-3504(1). K.S.A. He the mandated resentenc- essentially argued because the had no to order the ing illegal jurisdiction panel district court to restore his sentence. other original Among things, he reminded that basis everyone only appellate jurisdictional the State ever had asserted was aas reserved expressly question 22-3602(b)(3), under K.S.A. and therefore the decision panel’s only to future cases and not the case at hand.” “applies 1, November 2007: At the district court denied resentencing, direction, Berreth’s motion. Per the court resentenced panel’s with sentence of months’ Berreth to his imprisonment original was then Berreth 24 months’ again placed supervision. postrelease of Corrections. in the custody Department to the Court of 2008: In Berreth’s brief Appeals, September in motion: on the Berreth’s se counsel elaborated pro arguments under 1. The State filed notice solely expressly 3602(b)(3),which 22- meant the accom- jurisdiction a reserved. were limited to rules of question procedure panying And the Court of had еrred not recognizing ap- was so limited. peal

2. if the had that the exclusive Even panel properly recognized reserved, it still erred for the was a State’s question in not matter actually hearing simply dismissing —and —the because the was not of statewide import, citing, e.g., question Tremble, 391, 109 (2005) 279 Kan. State v. (declining reason); State’s for this State -jurisdiction dismissing (2002) (same). More v. 58 P.3d 706 par Long, issue to be of never deemed multiplicity ticularly, panel evidenced its failure to statewide partly publish import—as its decision. Because this determination is essential prereq reserved, had a no uisite to panel juris answering question diction over the State’s appeal. if as a reserved and

3. Even existed a matter was indeed of statewide import, determinations can means that the only pro- panel’s operate Berreth, and cannot affect Murry, citing e.g., spectively (2001). 21 P.3d 528 brief, are its five October 2008: In pages argument it meets tibe caselaw almost how devoted exclusively discussing 22- reserved K.S.A. under requirements proceed cite the 3602(b)(3). that die State’s failure to While contended not a statute is jurisdictional prerequisite citing proper appellate — (1981), Grimes, and State v. 622 P.2d Whorton, also argued —it to establish its notice of nevertheless was sufficient ques- reserved, tion citing Mountjoy, (1995). It also that the had been authorized to con- argued panel sider issues on its own initiative. The brief malees no jurisdiction 60-1507(d). reference to K.S.A.

Mаy 15, 2009: The Court of Berreth’s rejected Appeals argu- Berreth, 99,937, (Kan. ment. State v. No. 2009 WL at *2 2009) (Berreth II). the State’s App. (unpublished opinion) Despite notice of review under 22- K.S.A. appeal requesting solely 3602(b)(3), the held that the State’s panel designating appeal reserved did not the deprive panel order of the sentence. reimposition first observed that law “[t]he panel permitting appeals, 60-2103(b) (2008

K.S.A. Court Rule 2.02 Kan. Ct. Supreme 9), R. Annot. that the [does not] require grounds in the stated notice of It noted instead that tire rules appeal.” only that notice of the state the and the order required parties ruled were contained the being appealed sufficiently —which State’s notice. We note these sources state as fol- independently lows: 60-2103(b) states relevant that notice of “[t]he part shall the shall specify parties taking appeal; designate from, or thereof and shall name the judgment part appealed which court to is taken.” Rule 2.02 states that the notice of shall be

Similarly, form: “Notice is substantially following hereby given or from (specify party parties taking appeal) appeal(s) from) or thereof to the (designate judgment part appealed Court of State of Kansas.” Appeals The Berreth II determined that the Berreth I had panel panel the matter as a State implicitly properly —and —treated a final a 60-1507 via motion contained judgment authority 60-1507(d). II, in K.S.A. Bеrreth 2009 WL at *2. Sub- d section be taken to the Court of “[a]n provides appeal may from tire order entered on the ^[1507] motion as in a civil 183(k) (2011 case.” See Court Rule Kan. Ct. R. Annot. Supreme 259) (same); State, 677, 682, Moll v. see also 2d App. (2009) (State an unfavorable of a may appeal disposition a final in a civil motion in the same manner as 60-1507 judgment the Berreth II affirmed the Ber- panel proceeding). Accordingly, court’s of the reth I decision and district reimposition panel’s incarceration. sentence of months’ original 5, 2009: After this court to file a se October approval by pro brief, filed a late one. He Berreth additionally argued supplemental II had violated his to receive due that the Berreth panel rights ex facto and double and to be free from post jeopardy process problems.

Tanuary 8, 2010: We Berreth’s for review. Ini- petition granted that not identified in he had tially argued grounds jurisdiction court, notice of be considered may citing 501, 521, (2001). v. 272 Kan. 34 P.3d 449 Because K.S.A. Verge, cited, 60-1507(d) in Ber- had not been so he contended the panel reth I had no to consider the State’s basis. authority were filed counsel. No briefs supplemental court, October 2010: At oral before this the State arguments 60-1507(d) K.S.A. as the basis of conceded that had not argued at the Court of but rather argued appellate jurisdiction 22-3602(b)(3) existed as a re- per asked if it were served. When State was specifically requesting that it seek and did not at the this court to relief did not argue give contended, the State answered It Court of affirmatively. Appeals, however, that the had de novo review of the issues once tire panel State, the State had to the According panel perfected sua and correct in rec- correct deciding jurisdiction sponte 60-1507(d) was the better basis. ognizing jurisdictional will be added as Additional facts necessary.

Analysis law which we exercise unlimited is over Jurisdiction (2009); Ballard, 1000, 1005, State v. 218 P.3d 432 review. (2009). Miller, 200 P.3d 467 To Harsch Syl. ¶ we also ex the extent this involves statutory interpretation, Ballard, 289 Kan. at 1010. ercise unlimited review.

Issue 1: The the toas a ques- tion reserved.

It is uncontroverted that the right entirely statutory and that tire limits of are appellate jurisdiction imposed by Miller, (Kansas Harsch v. 288 Kan. at 287 legislature. courts exercise under circumstances allowed may jurisdiction only Crozier, statute); 120, 122, (1978) (“[I]n the absence of a statute which an authorizes appeal, court.”). is not available to the district losing party

It is further uncontroverted that the State’s statutory authority defendant’s, to when to the criminal is lim- appeal, compared very ited. “While the State has limited a criminal only appeal rights, defendant has a unlimited of review.” State v. nearly right Boyd, 600, 605-08, (2000); 999 P.2d 265 see also State v. Wal- ker, 803, 806, (1996) 926 P.2d 218 that (noting statute). the State in criminal are restricted cases by tightly by It is even further uncontroverted that the only statutory juris- dictional basis ever asserted the State for its of tire district by 9, 2005, court’s March order Berreth’s convic- essentially reducing tion for was K.S.A. aggravated kidnapping simplе kidnapping 22-3602(b)(3): Indeed, a reserved. the effec- prosecutor conceded to this court at oral 22- tively argument 3602(b)(3), 60-1507(d), and not had been the State’s cited only basis. jurisdictional facts,

This candid concession is both amply supported by e.g., citation in the State’s notice of by explicit statutory original and the notice’s recitation of the essential express prereq uisite for an a court to answer reserved: a “ques tion of statewide interest the uniform administration important Skolaut, 219, 225, 182 of law.” See criminal P.3d courts will of re (“appellate accept appeal questions when the served issues are ‘matters of statewide interest important to the correct and uniform administration of tire criminal law and ”). of statutes’ interpretation reinforced weeks later the State’s point docketing 2.041(b) statement —which Court Rule per Supreme (docketing 18) criminal) (2011 R. Annot. is “used statement, Kan. Ct. There, wrote determine court to only jurisdiction.” Consistent with reserved.” existed under “question that it involve mat- answering question predicate and uniform to the correct statewide interest ters of important law, wrote: “The Court the criminal the State administration on State v. in State v. Robbins based reconsider its should opinion (2004).” Groves, And the prosecutor reserved” was the that “a stated “only expressly March at the district court’s our resentencing appeal” added.) (Emphasis hearing.

Indeed, are inconsistent other аctions simply many parties’ While Berreth 60-1507(d) as a basis. with K.S.A. sentence motion to correct an filed his first se illegal pro properly case, filed his counsel twice criminal 93 CR his purported failures to file that case number. Counsel’s 1507 motions under Court civilmatters were them as contrary Supreme independent 259), 183(a) (2011 which states: Kan. Ct. R. Annot. Rule is an a sentence K.S.A. 60-1507] “A [under motion validity challenging docketed, and tire civil action which should separately procedure independent and on to the Court of before the trial court governed Procedure insofar as Rules of Civil applicable.” (1986) (60- Thomas, 457, 459, 720 P.2d 1059 239 See State v. Kan. case, in case, is not a criminal 1507 creates a new proceeding 678, State, action); 39 Kan. 2d Hickson v. the nature of a civil App. of 680, (2008) (same). the State’s notice 1269 182 P.3d Similarly, court, in the later statement in the district and its docketing appeal courts, number. the criminal case also bore incorrectly aside, of its that after the State’s an we observe As April filing statement, that the 2005, 25, forgotten docketing apparently reserved. For on a State was example, solely question appealing of the I asked for briefs Berreth both of the State’s reimposition sentence, inconsis which is harsher defendant’s generally original, See, v. Stall State reserved. tent with an of e.g., question Roderick, 259 (2007); State v. 284 Kan. 163 ings, 107, 116, 159 911 P.2d (Questions presup- that the case at hand has that an concluded but answer to posе issue statewide of future importance necessary disposition cases.). motion, In Berreth’s se October he pro appears be the to first one to out since the of the State’snotice point filing statement 1/2 earlier —and docketing years confirmed at the statement March 2005 sen- prosecutor’s tence reduction had the State hearing expressly appealed —that on a reserved. . strictly question whether the becomes sole

Consequently, question statutory basis asserted —and relied the State in its jurisdictional upon by— can be to another correct ostensibly changed basis. This be a of first in Kansas. appears question impression case, Under the circumstances this and for tire reasons expressed below, we answer this “no.” 1. The State cannot its elected change statutory appel-

late least without notification, —at if formal amendment. We our that while the State’s statu begin analysis by observing (see are limited tory rights quite Boyd, 605), the at State has to elect from these limited ability juris Muck, dictional bases. In

(1997), this court that the State could have acknowledged appealed 22-3602(b)(3), aas reserved under K.S.A. “but presum 22-3602(b)(l) chose [dismissal ably complaint] pursue pros ecution of Muck if the is successful. The alternative selected added.) the State is 262 Kan. at 463. appropriate.” (Emphasis We described one rationale for the State’s choices State v. Wood 684, 687, (1998), P.2d where we summa ling, rized Muck as that the State can elect to under “recognizing different subsections in order to acquire rights upon different added.) appeal.” (Emphasis successful The differences in the successful rights acquired upon when the State on a reserved and when it proceeds pro- ceeds on die of a dismissal out the Muck complaint pointed —as court—are as dramatic as the differences the rights acquired successful when the State on a upon appeals proceeds, 60-1507(d). Success- K.S.A. under and when reserved proceeds 22-3602(b)(l) K.S.A. dismissal under a complaint fully appealing Muck, 262 aof defendant. to resume allows the State prosecution 60-1507(d) under State a successful Kan. at 463. appeal Similarly, (a) K.S.A. 60- Subsection of the defendant.- affect can negatively “vacate, the court to to move the defendant 1507 allows actually (d) sentence,” allows aside, but subsection ‍​‌‌​​‌​​‌‌​‌‌‌​‌‌‌​​​​​​​‌​‌‌‌‌‌‌‌‌‌​​‌​​​​​​​‌‌‍or correct the set a final the motion like on an unfavorable State to ruling 183(k) Rule Court civil See in a Supreme proceeding. judgment State, 2d 259); (2011 Moll v. Kan. Ct. R. Annot. App. (2009). 204 P.3d contrast, to intimates in its as Muck comparison By reserved does dismissal, on a the State’s successful The court’s deci- case. defendant not affect the underlying See, v. Rode- State sion e.g., only prospectively. typically operates its rick, when the State 259 Kan. 107. So successfully prior appeals, have dramatic bases can election consequences defendant, none at all. or State whether the to this we turn With examining background, asserted, basis for elected, and can its statutory repeatedly expand notification, if anot formal least without appellate —at the answer on caselaw is not amendment. directly point, Although of State v. case when to be “no” examining analogous appears There, (1997). the court ob- 939 P.2d Taylor, that the State had served pursuant appealed an 22-3602(b)(3). to allow The court refused to K.S.A. expansion reserved” basis to argu- incorporate “question time, at be raised an sentence could ment that any appar- illegal as an 22-3504 could serve that K.S.A. so jurisdic- ently 22-3504 court held tional basis. “[although Taylor time, at an sentence correct that the court any may illegal provides an not relieve the this ches obligation file added.) 22-3504 and raise the issue." K S.A. (Emphasis pursuant at 475. in a direct a notice of concerned admittedly Taylor Court, involves Berreth’s case while to the Supreme the stat- And the Court of reciting requirements Appeals. which the should be utoiy grounds appeal permitted —under —in the notices of to each court are different. As we explained Hurla, State v. (2002), 274 Kan. Supreme (2011 Court Rule 2.01 9) Ct. R. Annot. assertion of requires a in the notice of for direct to the specific ground Court, (2011 but Rule 2.02 9) Kan. Ct. R. Annot. does Supreme not so for the Court of require Appeals.

Nevertheless, (1) there is a difference between putting nothing in the notice of to the (which, Hurla, Court of per do) here, need not the sole appellant reciting statutory basis the i.e., elected for appellant specifically appeal, State, reserved. Once elected that information can conceiv- by be used clerk and other court ably by appellate personnel —in with the statement —to determine the ex- conjunction docketing istence, extent, and resultant See appellate jurisdiction. Supreme Court Rule 2.041 statement is used courts (docketing by appellate “to Moreover, determine there must be some jurisdiction”)- point in the with the Court of which the appellate process Appeals by is declare its elected basis for appellant required expressly ju- risdiction. This is true when the is the State particularly appellant because its mere election can determine whether the defendant will be Muck, affected the court’s decision. 262 Kan. 459. by In Berreth’s as a reserved —the State has except case— never asserted at of the any stage process any statutory appellate documents, basis other state- jurisdictional e.g., docketing ment that is used courts “to determine expressly by This with contrasts the State’s actions in jurisdiction.” inactivity (1994). There, P.2d 1013 in an Craig, direct State, to the Court its no- apparent Supreme tice of 22-3602(b)(l) was K.S.A. appeal’s alleged jurisdictional (order indictment). information or But dismissing complaint, court was “informed the State’s statement . . . that docketing the instant appeal upon question prosecution.” circumstances, at 576. In those the court die accepted assertion; latter it considered the aas reserved and then denied the State’s no effort to amend its

The State has made formally certainly basis in Berreth’s case. elected statutory appellate (1996), 104, 105, 910 case of State v. Kerby, In on a direct Su some Kerby, provides guidance. recitation of the Court which statutoiy appellate required preme amend” its the State “failed to the notice authority appeal, lack in the notice. The court dismissed for incorrect basis juris it, court “dismiss As this court later described diction. [ed Kerby failed to amend lack as State had case for [the] the] 22- reflect it was under K.S.A. notice of [its] appealing appeal 3602(b) rather than K.S.A. 22-3603 [interloc reserved] [question v. 264 Kan. at 687. utory Woodling, appeal].” case, a concerned defective unlike Berreth’s admittedly Kerby, But its in a direct to the Court. notice of Supreme appeal appeal submitted after rationale and are for documents holding persuasive in the Court of tire notice e.g., docketing appeal Appeals, (allowed 254 Kan. 575 statement. docketing Craig, Cf. in notice of statement to asserted appeal). change grounds Here, contained the same the State’s statement jurisdic- docketing election as its notice of tional appeal. reveals, some caselaw

As of the above analysis interpreting part as a failure the notice our rules has characterized jurisdictional au Court to cite the to the statutory Supreme correctly be But instead under which the should thority permitted. the failure as characterization of jurisdictional, might due and therefore dismissal considered justify simply procedural See, failure to follow the rules of this court. to substantial e.g., 36) (2010 Kan. R. Court Rule 5.05 Ct. Annot. (appellate Supreme because of substantial failure to com dismiss an court may rules); with court Crumpacker, Crumpacker ply (1986) (distinction between 718 P.2d require procedural be waived and ments of rules which jurisdictional require may waived). ments of statutes which not be may characterized, are of how these dismissals appellate Regardless Un- decision in Berreth’s case. this caselaw our generally supports here, unable to we conclude the State was der the circumstances elected, asserted, its basis for expand repeatedly statutory ju- risdiction the Court of Appeals. dissent,

As for the it believes that the State’s identifi- specific cation of its sole basis —in both its notice of statutory jurisdictional statement —was of no For ex- docketing consequence. the dissent would strike the State’s elected ample, basis statutory in die notice of And it would hold that “superfluous.” die State later “elected and announced” a much dif- sufficiendy ferent for relief in its jurisdictional brief request Berreth I.

But this brief fails to particular identify any statutory jurisdic- tional result, basis for the State’s As a die dissent apparently would die court to infer from the brief which of obligate appellate bases for the State has potential statutory jurisdictional chosen. This shift in possibly responsibility appellant —from who should know to die that can infer —is appellate only because different bases for particularly problematic jurisdictional the State can have different effects on a criminal defendant. widely Muck, (different See 262 Kan. 459 can bases have dramatic defendant, all). for die or none at The dis- consequences sent would then court to determine seemingly require whether statutes tried to infer from the State’s brief would under the facts of the case. provide jurisdiction the dissent’s has never been Equally important, position argued the State. From at least the time of remand Court of I, in Berreth die State has been on notice of Ber- Appeals clearly reth’s basis principal argument: only appellate jurisdictional the State ever had asserted was as reserved. Despite this clear assertion, the State to Berreth’s opportunity dispute it did not. And the State has never contended that the certainly brief it wrote in Berreth I asserted basis other any jurisdictional than the one in stated its notice of statement. docketing Instead, it has to the it has taken clung position consistently the case. The State’s brief to the Court of in throughout Appeals Berreth II —and to this and almost con- clearly exclusively court — tends that die State’s notice of articulated a appeal sufficiently 22-3602(b)(3) reserved under K.S.A. and that the appro- It in have been met. standards for such suggests priate had the that the sua the alternative sponte authority panel in its notice of and dock- the State’s elected basis change statement. eting court,

Indeed, this the State conceded at oral before argument 60-1507(d) it had K.S.A. basis of that appellate argued Rather, it at the Court of argued jurisdiction jurisdiction Appeals. 22-3602(b)(3). When the State was existed spe- solely per relief that it asked if it was this court to give cifically requesting at the Court of the State did not seek and did not Appeals, argue It the alternative answered then affirmatively. repeated argument brief: that the was correct its deciding juris- panel suggested was correct in diction sua It also panel recog- sponte. argued short, 60-1507(d) basis. In that better jurisdictional nizing that the the State’s elected the State itself agrees panel changed State, it to the did not basis for any appeal. According express, wrote, than the one it first elected. As a brief it a basis different rеsult, not, State is as the dissent or eviscer- erasing suggests, with the its own Berreth I jurisdictional jurisdic- ating argument in Berreth II brief. tional contained its argument the State’s 2. The Court cannot sua sponte change

election jurisdiction. statutory appellate at oral The State contended appellate specifically argument to sua raise the issue of courts not have sponte ju- only right the best but also the to sua select risdiction sponte jurisdic- right earlier election for an the State’s tional basis explicit appeal despite We courts have of another. duty agree Gill, on their own initiative. See State however, (2008). We with the remainder 196 P.3d 369 disagree, trend has been to the State’s This court’s recent proposition. election. hold the State to its jurisdictional (2001), The case of State v. Verge, There, this court held that the State’s notice of illustrative. Instead of a contained a question jurisdictional deficiency. asserting 22-3602(b)(3), the State asserted reserved under incorrectly 22-3601(b)(l), which statute of K.S.A. “only expresses general what are to be taken to the Kansas Court and Supreme no for the taken provides statutory authority appeal by prose- cution in this case.” 272 Kan. at 521. The court quoted 2: “Grounds for Woodling, Syl. ¶ jurisdiction identified in a notice of not be considered appeal may court.” The court then concluded it had no Verge jurisdiction consider the State’s It was therefore dismissed. Most cross-appeal. to the State’s contention at oral to this important specific argument case, court in Berreth’s court did not sua Verge sponte supply basis different from the one elected the State. Three before court had held that the years Verge, Woodling State could not claim that existed on the it was jurisdiction ground 22-3602(b)(l) (dismissal of arguing complaint) —K.S.A. —because this was not identified in the notice of The State’s ground notice instead asserted the of an order grounds arresting judgment (22-3602[b][2]) (22-3602[b][3]). or a question Woodling in turn cited the 1996 259 Kan. 104. As opinion Kerby, earlier, mentioned court case for lack Kerby the] “dismissed State had failed to amend [the] notice of jurisdiction [its] to reflect was 22-3602(b) under K.S.A. rather appeal appealing than K.S.A. 22-3603.” 264 Kan. at 687. Most Woodling, important tire case, assertion at oral in Berreth’s specific argument court did not sua Woodling sponte provide jurisdictional different from the one elected the State so the could be appeal saved. G.W.A.,

Cut from the same basic cloth is State v. 705-07, (1995). G.W.A., In we dismissed the State’s for lack of because its notice of cited appeal statute, K.S.A. 22-3602—not its subsection only general (b)(3) claim a reserved. We stated: —to “Here, the State’s notice of referred to an from the solely judgment It contained no reference which could be acquittal. construed general liberally to include an on a . .. reserved. The notice of was limited and cannot bе read to include an on a specific reserved.. . . We are the State’s that its mention of K.S.A. 1994 unpersuaded by argument 22-3602 in the notice of Supp. 258 Kan. at appeal gives jurisdiction.” 707.

119 In we did not sua dismissing, obviously sponte supply jurisdic- tional basis different from the one elected the State in order to by 471, save the is same true for State v. 262 Kan. appeal. Taylor, (1997), 939 P.2d 904 which as mentioned we dismissed previously because of the State’s failure to elect proper appellate statutory basis. jurisdictional and G.W.A. are all

Admittedly, Verge, Taylor, Woodling, Kerby, direct to the Court. Court 2.01 Rule Supreme By Supreme their notices of to are state the on which appeal required ground is citation of permitted, allegedly including statutory contrast, Berreth’s case is an to the Court of By authority. and Rule 2.02 such notices of are not by required (see Hurla, 725). Nevertheless, so state 274 Kan. these recent cases demonstrate that this court has been strict with the State on bases. And whether the dismissals asserting jurisdictional are characterized as or definitely jurisdictional, possibly procedural rules, failure follow court we have not sua clearly sponte to, of, bases in addition or those cited supplied appellate place the State. however, In earlier this court took a more le- years, apparently Martin, nient In State v. 232 658 Kan. P.2d 1024 approach. (1983), the State the trial court’s decision under K.S.A. apрealed 22-3603. The Martin court held this statute could not be utilized as because none orders enu- appealable it Nevertheless, merated in were made the trial court. the court sua considered the as a 22- reserved under sponte 3602(b)(3) and sustained the It held that “the expressly failure cite statute [is not] proper appellate Grimes, v. State 622 Kan. prerequisite,” citing (1981), Whorton, (1979). and State v. 780. at

Seven later v. 788 P.2d years Harpool, (1990), the State took an 22- under K.S.A. interlocutory appeal 3602. In the court’s more lenient it is held: “This posture, but meant to be an properly interlocutoiy appeal clearly ap- State, on a 22-3602(b)(3), peal stated at hear- orally by prosecutor argument sentencing added.) at 227. court sua The Haiyool

mg.” (Emphasis to hear the case as a declared had sponte reserved, Martin. The case 22-year-old Harpool ap- citing die this a full assist to to be last time such gave pears (allowed 254 Kan. 575 State on this issue. State Craig, Cf. in of statement to asserted notice change grounds ap- docketing peal). 1979, in and

The of cited tire court Martin Whorton decision by case, in the the State Berreth’s by supports general proposition to the the State’s failure proper statutory jurisdic- designate clear, its the text not tional does doom is basis not appeal. Although involved basis Whorton an undesignated jurisdictional apparently did as the State. This court dismiss by simply 22 it was later. But whether Vеrge years analyzed proper 22-3602(b) as of under as a reserved or an order an un- dismissal—or order unappealable acquittal improper 120, Crozier, (1978). der v. 225 Kan. State 1981, cited ‍​‌‌​​‌​​‌‌​‌‌‌​‌‌‌​​​​​​​‌​‌‌‌‌‌‌‌‌‌​​‌​​​​​​​‌‌‍the court in Mai~tin The Grimes decision of also by case, is of to the State the State Berreth’s less by support Grimes, In the district court’s than Whorton. the State appealed trial motion for new was a of defendant’s ques- grant argued 22-3602(b)(3). that be- tion under K.S.A. held terminated, cause order the case was issued before not au- was But this of order was interlocutory. particular type 22- under K.S.A. thorized as basis for interlocutory appeal 22-3602(b)(3) as 3603. And under the State could not use caselaw cases that had been form of but only interlocutory appeal terminated.

In trend to its to our to hold State addition citing 20-year election, to own another reason exists jurisdictional prohibit a declared courts from jurisdictional appellate unilaterally altering with basis the State assisting jurisdic- appeal. Specifically, ack- tional with our in criminal inconsistent designation stat- that the restricts legislature tightly nowledgment Walker, v. 260 926 P.2d to State utory rights re- 218 in criminal cases are State (appeals by tightly 600, 605, P.2d statute); 268 Kan. 999 stricted see Boyd, (2000) (“While the State has limited a crim- only appeal rights, review.”); inal defendant has a unlimited nearly City right Wellman, (1896) (“the v. 43 P. 267 of the Lyons right limited”). State to in criminal cases is quite 3. A has no the appellate authority change juris- defendаnt dictional basis elected the State. I, In Berreth defendant’s counsel asked die Court Appeals to construe tire defense motions as filed under K.S.A. panel being 60-1507. This made avoid the effect of request apparently Edwards, our recent v. decision State 135 P.3d (2006). That held drat motions to correct sen- decision illegal 22-3504(1) tences under K.S.A. were vehicles to ar- inappropriate of convictions. But a criminal defendant has no gue multiplicity statutory authority change Muck, 459, 463,

elected the State. See State v. (1997) (State chose between aon re- served and of dismissal of complaint); Mountjoy, cf. 163, 167, (1995) 257 Kan. (“When 891 P.2d 376 the prosecution reserved, on a the defendant has no question statutory right reserved expand question by prosecution.”). Issue 2: courts do not answer resemed unless Appellate questions the matter is statewide importance. of

Now we have established the State’s elected appellate ju- risdictional basis was a 22- under K.S.A. question 3602(b)(3), we to die next of our More proceed step analysis. par- did the State’s as a ticularly, appeal actually qualify throughout reserved? We answer this “no.” question question We have stated that to be considered on repeatedly appeal, ques- tions reserved must be issues in- of statewide prosecution terest the correct and uniform crim- administration of important inal law. Questions reserved the State in a criminal prosecution will nоt be entertained on to determine whether appeal merely error has been committed trial in adverse rulings Adee, 825, 826, (1987); to the State. State v. 241 Kan. 740 P.2d 611 Willcox, 310, 1, v. 240 (1986); State Kan. 729 P.2d 451 State Syl. ¶ 122 1, (1985); v. Holland, 840, P.2d 401 State 696

v. ¶ Syl. 324, (1968). Glaze, 1, have uni- We Syl. ¶ reserved, the of resolution to entertain declined formly questions Hudon, 243 State v. not which would helpful precedent. provide (1988); Holland, 236 Kan. at 763 611 State v. Kan. P.2d 257 Kan. at 167-68. 841. Mountjoy, Here, reason the State’s given seeking appeal repeatedly the convictions the district court’s order declaring multiplicitous and Groves: The court was to clarification Robbins seek regarding case in While Berreth’s reconsider Robbins Groves. should light clarification this court was on requested provided appeal, Schoonover, (2006). As the hold, I was to “it the district in Berreth Court appears stands under Schoonover’s court’s reliance on Robbins no longer up I, at *5. ruled WL Berreth panel analysis.” erred in controlled and the district court Schoonover determining But convictions were Berreth’s resentencing. multiplicitous have been made after this determination could receipt panel’s order, in its show Two cause of the to Question parties’ responses then, i.e., does control.” And if not State v. Schoonover not "Why after oral it could have been made arguments. issue. on this

It is a written required opinion unlikely judicial have dismissed of this issue could been The State’s easily tire would because “the resolution of provide helpful 219, 225, Skolaut, 182 P.3d precedent.” rе- courts will not questions (appellate accept would not “in which the resolution of served cases precedent.”). provide helpful One

More are several Court of Appeals opinions. point reserved, if an issue that on has held panel specifically the court because is no of statewide longer importance case, dis should be has addressed it in the appeal already prior 861-62, E.F., 860, 787 2d P.3d 205 missed. In re App. 104,052, Sanderson, WL (2009). No. 2011 also State v. See 2011) (“Because 1377073, (Kan. °2at (unpublished opinion) App. ... we has decline clear been established juris precedent already and, tire State diction on the reserved by accordingly, question

123 Hudson, 103,360, dismiss the State v. No. WL 2011 appeal.”); (Kan. 2011) at *3 App. (unpublished opinion) (dismissing because the cited the State serves “legal authority only to indicate that the reserved in this question prosecution courts”). has been addressed Kansas already Issue 3: An court answer to the State’s reserved appellate question does not Berreth. affect

We hold that tire State’s elected appellate jurisdictional reserved, (2) v. State Schoonover meant the solely question interest, State’s reserved was no of statewide and question longer (3) the State’s therefore could have been dismissed. simply result, As a we need not address further error. The matter panel Nevertheless, is resolved. we take this Kansas opportunity clarify casеlaw on the effect on a criminal defendant when an appellate court answers the State’s reserved in his or her case. question

To state it court’s answer to a clearly simply, State’s reserved no has effect on criminal defendant question See, case. v. State underlying e.g., Stallings, (2007) (on reserved a case question involving murder, defendant’s conviction of five counts held trial capital court erred in defendant to address the allowing jury sentencing on then could not on death punishment mitigation; juiy agree pen- so court sentenced to five consecutive hard-50 life sentences alty convictions; murder remand, than rather reverse and capital sustained); State’s appeal simply Murry, (2001) (on reserved, held trial court erred defendant’s blood was taken in violation of his ruling sample remand, Fourth Amendment rather than reverse State’s rights; sustained); 2d appeal simply Johnson, App. (2004) (State P.3d reserved whether appealed liar; defense counsel can call witness held trial court in over- erred sustained, i.e., and State’s ruling objection simply remand). without reversal and rationale this rule stated as follows: appears “ ‘An aon an answer which permitted provide

will aid in the correct and uniform law. administration the criminal This court

124 to demonstrate errors of atrial court will reserved not entertain question merely Üiat die case at Questions to die State. reserved adverse presuрpose rulings an is but that answer to an issue statewide hand has concluded importance of 631, v. Kan. cases.’ Wichita 257 City Basgall, necessary disposition of for offuture Roderick, 1, (1995).” added.) 259 State v. Kan. 894 P.2d 876 (Emphasis Syl. ¶ 107, 108, (1996). 911 P.2d 159 (1993) 625, 630, 252 Kan. 847 P.2d 1258 See State v. Ruff, hand that the case at has con- reserved (“questions presuppose an for cluded but than answer necessary proper disposition Puckett, 911, arise”); v. 227 Kan. 610 cases which State future may Reed, 459, (1937). (1980); v. 145 Kan. 65 P.2d 1083 P.2d 637 akin to a academic tire reserved is question question purely it arrives on case in which however, from this have

Some our stray opinions, appeared See, issues. academic on sentencing e.g., path, particularly purely (1997) Reason, Kan. 951 P.2d 538 State v. 263 (“Although 22- are on reserved under K.S.A. remands infrequent questions sentence, or 3602[b][3], an we have remanded correct illegal when the other correct district action sentencing, concerning 471, 480, moot”); 262 939 P.2d is not State v. Kan. matter Taylor, (1997) (sustained on reserved and re 904 State’s question defendant increased criminal manded for using resentencing Miller, 892, 904, 926 score); 260 Kan. P.2d 652 State v. history (on (1996) for reserved defendant Douglas, question vacated, sustained, case re was the modified sentence was sentence); harsher of the manded reinstatement City original (on (1994) Lucero, P.2d 1144 v. 874 Wichita reserved, that or after district court’s decision reversing was and violated defendant’s case dinance unconstitutional rights, defendant); resentence State Har remandеd with directions to 226, 227, (1990) (after 788 P.2d 281 determining pool, but “is as State asserted not interlocutory appeal reserved,” court re meant to be an clearly lawful, of a sentence versed and remanded for longer imposition Meredith, defendant); also State v. see upon (1985) that the on a in-patient (holding K.SA. 1983 treatment received defendant did alcohol satisfy 8-1567(d)’s that second time DUI offenders Supp. requirement reversed and remanded spend days prison; resentencing); on a Ashley, (holding reserved that the district court erred in concur- question imposing rent and sentences reversed and remanded for resentencing).

We our rule to future courts from reemphasize keep straying from An it. court’s answer to a question State has no effect on the criminal defendant the underlying case.

Before it should be noted that the State had recourse in closing, Berreth’s case. Instead of to order choosing appeal multiplicity 9, 2005, reserved, of March aas it could have chosen to under K.S.A. 22-3504 on the basis that Berreth’s se pro to motion correct sentence should not have been illegal granted. See v. State Kan. 471. Or as the inferred for the Taylor, panel State, the State could have chosen to under K.S.A. 60- 1507(d) on the basis that Berreth’s 1507 motions should purported statute, not have been Under either Berreth’s sentence granted. could have been affected a successful State See Moll v. appeal. State, (2009) (State 2d seek App. may reversal of an unfavorable 1507 ruling); McCarley, cf. 167, 195 (2008) (State filed motion to correct illegal sentence; motion, after trial court denial of Court held Supreme sentence was and reversed and remanded for of illegal imposition correct, sentence). harsher

CONCLUSION The Court of in both I Berreth II Berreth Appeals panels failed to treat the State’s a reserved as properly occurred, the State had elected. And had such a treatment any decisions on a reserved would not affect Berreth. The II, of decision in Berreth which is before us on Berreth’s panel decision,

direct of that is therefore reversed. We denied Berreth’s to review the decision in petition panel’s I. Berreth But as a matter Berreth I cannot stand practical given reversal of the Berreth II decision—which had today’s essentially Indeed, of I. rationale and Berreth affirmed both the holding that defendant: Berreth II court stated State, had in a this case we no authority “contends prior appeal view, his has his sentence. In case court to original order district reimpose we should not have entertained therefore no statewide importance this . . hold State did not jurisdiction by calling . We deprive affirm Berreth’s reserved. We sen- the matter in its notice appeal question 1393752, at *1. tence.” 2009 WL I Berreth is vacated. See K.S.A. the decision Consequently, vacate 60-2101(b) shall have Court any (Supreme it is and free of Court of assure legal, just, judgment abuse). result, to the district court with the case is remanded As the sentence instructions to imposed reimpose originally 29, 2005. March

Merlin G. D.J., assigned. Wheeler, I with majority J., dissenting: respectfully disagree Luckert, to state the or rule an No statute juris- requires appellant opinion. a for to the Court of when dictional basis filing appeal Appeals I hold the State elected of would notice Consequently, appeal. basis for the relief and announced the sufficiently jurisdictional in its brief to the Court the relief initial clearly sought requesting by (Kan. Berreth, 94,310, No. WL in v. 2007 806002 of State (Berreth I). 2007) (unpublished opinion) App. Lines Cases

Divergent of cases, in in been addressed several The issue this has appeal have In line cases two lines cases developed. divergent court has held that an must this majority, ‍​‌‌​​‌​​‌‌​‌‌‌​‌‌‌​​​​​​​‌​‌‌‌‌‌‌‌‌‌​​‌​​​​​​​‌‌‍appellant adopted by in a notice of cite basis jurisdiction statutory there is a formal amendment. that statement unless bound E.g., by 521, (“ 501, (2001) 272 Kan. 34 P.3d 449 ‘Grounds v. State Verge, notice of not be not identified may jurisdiction

127 684, ”); 264 Kan. State v. the court.’ considered Syl. Woodling, 104, (same); 259 Kan. (1998) State v. 2, P.2d 398 957 Kerby, ¶ (1996) (failure cite statute 106, 836 910 P.2d Supreme giving or to amend in notice of Court timely State v. court of the notice of jurisdiction); appeal deprived (“State 705-07, must G.W.A., 703, P.2d 657 Kan. 906 a notice of its own a foundation for also by filing lay to hear the which appeal.”). jurisdiction gives appellate out, Yet, decisions are these аs the contrary majority points 226, See State v. line of decisions. an earlier Harpool, Martin, P.2d 1024 (1990); State v. Grimes, (1981); 622 P.2d 143 (1983); (1979). Whorton, dis- majority cases, because I I am not to do so misses these earlier but willing to be and G.W.A. find the Kerby, Verge, Woodling, analysis cite constitutional or as those decisions do not statutory any faulty, must that a notice of state for the authority requirement The lack of over the for jurisdiction statutory grounds consti- there is no such cited is not because authority surprising a constitutional and this lack of tutional or statutory requirement, created undermines the or source statutory requirement the basis for these cases. An examination of holdings this conclusion. jurisdiction explains Article 3 of the Kansas derives from

This court’s § jurisdiction Constitution, Court willhave that the Kansas which states Supreme law.” There is “such may provided appellate jurisdiction the Kansas Court not a similar constitutional provision relating court of 20-3001 but K.S.A. “[t]he appeals provides Appeals, and criminal cases over civil have such shall officers of the state bodies and and from administrative may inter have been law.” These consistently by provisions prescribed “ defined statute.’ is to mean That appellate jurisdiction preted Ellmaker, 221 Kan. 289 [Citation omitted.]” (2010). (2009), 560 U.S. 966 P.3d 1105 cert. denied statutes, Under the relevant jurisdiction triggered appellate State, 292 See of a notice Albright timely appeal. filing 60-2103(b) 193, 197, (2011). defines P.3d 52 K.S.A. contents of a notice of in civil both and criminal cases. See (“the K.S.A. 22-3606 statutes and rules governing procedure cases,” in civil to criminal appellate apply ap- whenever there is not a criminal statute or court peals specific rule). 60-2103(b)

K.S.A. states “The notice of shall part: spec- shall or ify parties taking appeal; designate judgment from, thereof and shall name the court to part appealed appellate which the is taken.” There is no that the stat- requirement for the or the basis be cited. utoiy grounds jurisdictional Without a constitutional or basis for a that statutory requirement a notice of include a citation to the statute the court giving tire and G.W.A. courts im- jurisdiction, Verge, Woodling, Kerby, this from the posed requirement by extrapolating requirement 60-2103(b) that notice of . . . shall “[t]he designate or thereof from.” The earliest of these judgment part appealed cases, G.W.A., 705-07, 258 Kan. at supported holding by citing Center, 715, 718, Hess v. St. Francis Med. Regional (1994) (“It is a fundamental of Kansas proposition ap- that an court obtains over pellate procedure jurisdiction added.]), identified in the notice of rulings appeal.” [Emphasis 857, 860-61, Anderson v. (1988) Scheffler, (court lacked to consider not jurisdiction summary judgment ruling Grant, identified notice of and State v. appeal), App. 2d 875 P.2d rev. denied Kan. 1005 (finding the Court of did not have to address a ruling which was not included in tire notice of Even each appeal). though 60-2103(b)’s of these decisions focused on K.S.A. that requirement the notice of tire appeal identify judgment being appealed, G.W.A. court extended the court’s to create a nonsta- reasoning citation for the tutoiy requirement statutory —a of the But G.W.A. court did a doctrinal provide basis for a court-made or for imposing requirement making nonstatutory requirement jurisdictional.

Under our well-established caselaw holding appellate juris- statute, diction is defined the G.W.A. court did not have au- Yet, thority impose nonstatutory jurisdictional requirement. this as the basis for the is relied in G.W.A. upon reasoning faulty 521-22, Kan. at 272 Kan. at Woodling, holdings Verge, I this 106. Because of 259 Kan. at reasoning, faulty Kerby, Granted, the tírese cases. reliance on the majority majority’s reject Wood rationale of the short Verge, adopting jurisdictional stops Nevertheless, in these cases the and G.W.A. holdings Kerby, ling, from this cannot be divorced majority’s faulting reasoning, cases. on these rationale depends conclud- find a substitute rationale majority attempts 9) (2011 R. Annot. Kan. Ct. Rule 2.01 that Court

ing Supreme stat- an cite the that a appellant requirement imposes procedural with this con- I will I basis. As disagree explain, utory jurisdictional to a citation Rule 2.01 clusion because statutory only requires Kansas with the an that authorizes statute directly filing appeal is not this Court and because requirement Supreme or binding. Court Rule 2.01

Supreme 9) (2011 R. Annot. states: 2.01 Kan. Ct. Rule Court, the notice to the “When an is directly Supreme permitted court, case of the shall be under shall be filed the district caption form: in the district court and substantially following OF APPEAL “NOTICE or is that parties taking appeal) “Notice hereby (specify party given from) to the or thereof from part appealed (designate judgment appeal(s) of the State of Kansas. Court Supreme Court on tire taken is to the ground “The hereby directly Supreme (state which is considered to including direct appeal permitted, ground added.) citation of statutory authority).” (Emphasis form of the The first sentence require- parallels suggested 60-2103(b), of the K.S.A. ments of parties requiring specification thereof tire or and a part judgment designation taking not re- information sentence from. The second requests appealed i.e., 60-2103(b), tire taking ap- legal quired by Court. to the Kansas directly Supreme peal a statute for a citation to It asking purpose appears Court is to discern to the that allows a direct Supreme Court rather with the filed whether tire Supreme correctly than the Court This is made evident com- Appeals. purpose by (2011 Rule 2.01 with Court Rule 2.02 Kan. Ct. R. paring Supreme 9), Annot. which includes a form for a notice of for tiróse appeal that will be docketed with the Court of The form appeals Appeals. for in Rule 2.02 is one sentence in provided length, providing: “Notice is the or the hereby given (specify party parties taking from the or thereof appeal) appeal(s) (designate judgment part from) the Court of of the State of Kansas.” appealed Appeals (2011 10.) R.Ct. Annot. This sentence is identical to the first form; result, sentence in Rule 2.01 as a the both forms incorporate 60-2103(b) the K.S.A. But 2.02 Rule does not in- requirements. result, clude the second sentence Rule 2.01. As a an appellant need not an to the Court of justify taking directly appeal Appeals.

This distinction flows from the statutes that distinguish ju- risdiction between the two courts that the Court of by providing will all hear that cannot be taken to the Appeals appeals directly See, 22-3601(a) Kansas Court. K.S.A. Supreme e.g., (“Any appeal taken to be from a final district of a court in permitted judgment a criminal case shall be taken court of in appeals, except those cases reviewable law in the district court those cases by a where direct to the court is K.S.A. required.”); supreme 60-2101(a) (“The court of shall have to hear appeals jurisdiction courts, from district those cases reviewable appeals except by law in the court district and in those cases a where direct appeal law.”). to the court is supreme required for that must be point starting distinguishing appeals filed in the Court of from be appeals may brought 60-2101(b), to the Court is K.S.A. which states directly Supreme in part: “An from a final of a district court in civil action in which a judgment any

statute of or of this state the United States has been held unconstitutional shall be taken to the Direct court. from the district supreme court to directly appeals court criminal cases be as shall K.S.A.22-3601 supreme prescribed by 22-3602, and amendments thereto.” case,

In the the State’s notice of cited to K.S.A. present 22-3602(b), which with the words: begins following “Appeals the court be taken appeals may prosecution.” (Emphasis 22-3602(b) that would added.) not K.S.A. provision Obviously, an a basis for Rule 2.01 —it does under filing be cited provide Court. Kansas Consequently, Supreme directly was not that was State’s indication appealing Rule 2.01 2.01. Nor does Rule require required by procedurally 60-2102, that allowed which is the statute to cite to the State K.S.A. 60- in its brief. relief it to seek the the State prayed of a district order or final decision 2102(a) states: any “Except of the judge, magistrate ... An from: as a matter of invoked right may mandamus, in the form of refuses relief . . . that or order grants added.) warranto or habeas corpus.” (Emphasis quo di- Further, basis for the citation to the taking legal is not a Court to the Kansas require- jurisdictional Supreme rectly This is in citation is not fatal to and a mistake ment appeal. 20-3018(a), in which made clear part: provides shall be the court of in the court or case docketed either supreme “No court, but shall filed in the for the reason of been wrong dismissed having solely which the court de- to the court supreme be transferred supreme and considered such case shall be timely prop- to have termines jurisdiction. Any to which it is transferred.” filed the court erly statute cite the is tire failure to “Neither juris- proper Martin, 232 dictional [Citations omitted.]” prerequisite. (1983). 778, 780, 658 P.2d 1024 Kan. 2.01, in Rule words, of the form the second sentence

In other should be transferred if an while determining appeal helpful no serves to the Court of from the Court juris- Appeals, Supreme to include 2.01 Nor does Rule dictional basis. appellant require a statement of the notice of within the appeal words, 2.01 not Rule does relief In other sought. granting line of cases or the citation that Verge majority require statement, if nor does any jurisdictional imply requires, to made, or critical should be deemed jurisdiction. binding Appeal Right Relief also line of cases are and the contrary Verge majority opinion should “The has

to a this court appeal right emphasized: point 132 Martin,

not be Further, restricted.” 232 Kan. at 780. we unduly have held that a notice of should be con generally appeal liberally strued and a defect in the notice should not abe basis for relief unless the defect See, results ato Associ prejudice party. e.g., Grocers, ated Wholesale Inc. v. Americold 293 Kan. Corporation, 633, (2011) 270 P.3d 1074 liberal construction to notice (applying that did not include all or district court complete caption 226, In Martin, 246 Kan. 778, Grimes, Kan. rulings). Harpool, 143, Whorton, 251, Kan. 225 Kan. and other cases such as Wilkins, State v. (2000), 7 P.3d 252 and State v. Ransom, (2000), 999 P.2d 272 we generally adopted “ that our rules a notice of ‘should policy regarding technical or detailed. The notice of is not a device overly to alert the to all That is the parties possible arguments and function of the statements and briefs filed purpose docketing '”Wilkins, die 269 Kan. at 269 parties. (quoting Boyd, [2000]); see v. Wichita State Bryson 1104, 1106, 2d 880 P.2d rev. University, denied App. 256 Kan. 994 nature of (pointing nonbinding docketing statement’s list of issues on but see 268 Kan. at 605- appeal); Boyd, rule to from (applying prejudice ambiguity regarding judgment which G.W.A.). taken but distinguishing Kerby

Here, it cannot be denied that the State cited one ground tire in its notice of reserved-—and yet —a relief from the district court’s rather ultimately sought judgment than a And, in its brief. as the State admitted at prospective ruling oral it never Yet, amended its notice of argument, explicitly appeal. the citation in the notice of was not it was required; super- circumstance, fluous. Under that I would our liberal con- apply struction of a notice of and strike the state- unnecessary course, ment. Of that would not be if so resulted appropriate doing to Roland Berreth if or the Court of had been prejudice Appeals left to comb the record to determine the basis of See jurisdiction. 259 Kan. at 105-06. Neither of those circumstances is ‍​‌‌​​‌​​‌‌​‌‌‌​‌‌‌​​​​​​​‌​‌‌‌‌‌‌‌‌‌​​‌​​​​​​​‌‌‍Kerby, pres- ent, however.

Rather, Berreth and the Court of were alerted Appeals clearly to the nature of the relief the State. In its brief to the sought by I, made no to tire Stаte Berreth Court attempt pres- Appeals out, did not As Berreth the State ent a reserved. points of a reserved the court’s consideration for ground argue if that was for the would have done the basis as it presumably Skolaut, See to the Court of State presented Appeals. argument will courts (“[Appellate when the are ‘matters issues questions accept admin- interest to the correct uniform of statewide important ”). law and of statutes.’ of the criminal the istration interpretation sentence, Rather, district the the State attacked Berreth’s arguing Berreth’s erred in sentence aggravated kidnap- judge finding In its with his of criminal was crimes sodomy. ping multiplicitous 60-1507(f) issue, Ber- cited that second the State K.S.A. argue with the relief was Consistent reth’s for collateral untimely. request brief, the it State concluded made throughout arguments reinstated. defendant’s convictions should be “[t]he requesting 9, 2005 . be decision March . . should The district [j]udge’s should be reversed sentence reimposed.” original brief in his Berreth I In to these arguments responding that the understood before Court of Berreth clearly Appeals, not was relief from tire Berreth did State judgment. requesting conviction to a consideration of whether his for aggravated object vacated; that the have been he did assert should kidnapping Instead his to a reserved. he limited argued The district “must affirmed. lesser sentence kidnapping Further, Berreth did not as discussed err.” majority, 60- thе action as a K.S.A. had asked district court consider Then, the State’s on proceeding. appeal, responding 60-1507(f), Berreth that the attack was under issue untimely rather, he did not that the statute did not apply; argued argue Because both it should not be argued retroactively. parties applied 60-1507,1 the ma- of K.S.A. with the basis disagree de- characterization that Court of sua sponte jority’s it made Berreth termined basis for 60-1507, brief and the State’s clear he relief under K.S.A. sought to have considered relief from erroneous clearly ruling sought been under decided K.S.A. 60-1507. The State made the election the majority requires. I Berreth court had re grant remedy in Berreth I brief Berreth’s sen

quested by reversing tence after the district erred in Ber- concluding judge determining reth’s Berreth, sentences were See State v. No. multiplicitous. 94,310, (Kan. 2007) WL App. (unpublished opinion) (Berreth I).

Yet, in this to hold the State’s majority appeal appears focus II Berreth briefs on reserved erases the I State’s Berreth This conclusion means that a argument. party’s actions can eviscerate the basis for a postjudgment Such a would to all re- judgment. principle contrary principles lated to the of a The Berreth II Court of finality judgment. was at the record Berreth I and justified looking examining own basis for its decision. The Berreth II Court of Appeals determined the I Berreth valid and should correctly judgment I be set would aside. affirm that holding. Rosen, in the dissent. J., joins foregoing

Case Details

Case Name: State v. Berreth

Court Name: Supreme Court of Kansas

Date Published: Apr 6, 2012

Citation: 273 P.3d 752

Docket Number: 99,937

Court Abbreviation: Kan.