In re I.A.

Decision Date23 July 2021
Docket NumberNo. 118,802,118,802
Citation491 P.3d 1241
CourtKansas Supreme Court
Parties In the MATTER OF I.A.

Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, argued the cause and was on the briefs for appellant.

Andrew J. Jennings, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, was with him on the briefs for appellee.

The opinion of the court was delivered by Luckert, C.J.:

About 19 years after a district court judge adjudicated I.A. as a juvenile offender and sentenced him, I.A. filed this appeal in which he challenges the validity of those proceedings. I.A. recognizes he needed to file a notice of appeal within 10 days of his sentencing and that appellate courts lack jurisdiction over untimely appeals. But he asserts due process and procedural fairness require us to hear his out-of-time appeal. This assertion rests on the proposition that the judge should have informed him of his right to appeal. But no constitutional provision, statute, or decision of this court directs a judge to inform a juvenile offender of the right to appeal. Without a provision to enforce, I.A. must show that the lack of a procedural right to have a judge tell him of the statutory right to appeal offends a fundamental principle of justice—that is, a principle rooted in the traditions and conscience of Kansans. I.A. does not meet this burden, and we dismiss his appeal for lack of jurisdiction.


In 1998, I.A. and some friends randomly shot BB pellets at motorists. I.A. was 17 years old. The State charged I.A. as a juvenile with aggravated battery; the State later amended the complaint to add eight more charges. I.A. eventually agreed to plead guilty to two counts of reckless aggravated battery in exchange for the State's dismissal of the remaining charges.

At a plea hearing, the district court advised I.A. of his rights listed in K.S.A. 38-1633(b). That statute requires a district court to inform a juvenile of certain rights before accepting a plea, including the right to a trial, the right against compelled testimony, and potential sentences. See In re B.S. , 15 Kan. App. 2d 338, 339, 807 P.2d 692 (1991). The statute did not, however, require the district court to inform a juvenile of the right to appeal. The district court adjudicated I.A. as a juvenile offender, sentenced him to probation for a year, and ordered restitution. I.A. satisfied the conditions of his probation, and the district court granted his release from its jurisdiction in November 1999.

About 19 years after his sentencing, I.A. filed a pro se request to file a direct appeal out of time. He argued the district court did not tell him of his right to jury trial or obtain a knowing and voluntary waiver of his rights.

The Court of Appeals issued a show cause order directing the parties to explain why the appeal should not be dismissed for lack of jurisdiction because of the untimely notice of appeal. I.A., through court-appointed counsel, argued the judge had not informed I.A. of his right to appeal when it adjudicated him as a juvenile offender. He thus argues his appeal falls under the first exception allowing a late appeal recognized in State v. Ortiz , 230 Kan. 733, Syl. ¶ 3, 640 P.2d 1255 (1982). Ortiz held adult criminal defendants could file late appeals in three circumstances; we often call these circumstances the Ortiz exceptions. The second and third exceptions are rooted in the right to effective assistance of counsel. 230 Kan. 733, Syl. ¶ 3, 640 P.2d 1255. I.A. did not base his arguments on either of those exceptions. Instead, he relies on the first exception. That exception rests on concepts of procedural due process arising from "[t]hree Kansas statutes [that] provide specific procedural safeguards of the right to appeal by certain criminal defendants." State v. Patton , 287 Kan. 200, 219, 195 P.3d 753 (2008). These statutes require district court judges to inform criminal defendants of their right to appeal and their right to have appointed counsel for an appeal. 287 Kan. at 219, 195 P.3d 753.

Because the first Ortiz exception applies only if a judge does not follow the directive of these statutes, I.A.'s argument depended on evidentiary proof that the judge had not announced his right to appeal. The Court of Appeals, which does not itself make factual findings, remanded I.A.'s claim to the district court for fact-finding. Back in district court, I.A. asked for a transcript of the plea and sentencing hearing. But the court could not produce a transcript. A court reporter explained that she made a good-faith effort to transcribe the 19-year-old audio cassette tapes used to record the plea hearing but was unable to do so. The district court judge then conducted a hearing after which the judge made a factual finding that the judge adjudicating I.A. as a juvenile offender in 1998 had not advised him of his right to appeal.

With the factual question resolved, the Court of Appeals focused on the legal question of whether a juvenile offender has a right to have a judge announce the right to appeal during a plea or sentencing hearing. It held no such right existed and no other justification extended the deadline for I.A. to bring an appeal. The Court of Appeals thus held it did not have jurisdiction and dismissed the appeal. In re I.A. , 57 Kan. App. 2d 145, 153-54, 450 P.3d 347 (2019).

I.A. petitioned for our review of the dismissal. We granted review and now have jurisdiction to consider the legal question decided by the Court of Appeals. See K.S.A. 20-3018(b) (allowing petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (extending this court's jurisdiction to review Court of Appeals decisions upon granting petition for review). But we limit our review to that issue because we determine we lack jurisdiction to reach the issues at the heart of I.A.'s appeal—his attack on procedure that led to his adjudication as a juvenile offender.


Kansas appellate courts have a duty to question jurisdiction and, in doing so, conduct an unlimited review of any question of law underlying a jurisdiction inquiry. Kansas Medical Mut. Ins. Co. v. Svaty , 291 Kan. 597, 609-10, 244 P.3d 642 (2010) ; Patton , 287 Kan. at 205, 195 P.3d 753. The Kansas Constitution informs us that this court has only "such appellate jurisdiction as may be provided by law." Kan. Const., art. 3, § 3. We therefore must dismiss an appeal if the law does not grant jurisdiction. Svaty , 291 Kan. at 609-10, 244 P.3d 642 ; Ortiz , 230 Kan. at 735, 640 P.2d 1255.

Looking at various sources of that law, the Kansas Constitution does not directly grant a right to appeal in any circumstance. Svaty , 291 Kan. at 609-10, 244 P.3d 642. "Likewise, the right to appeal a state criminal conviction is not a fundamental right guaranteed by the Constitution of the United States or a requisite of due process of law guaranteed to any person by the Fourteenth Amendment." Ware v. State , 198 Kan. 523, 525-26, 426 P.2d 78 (1967) ; see McKane v. Durston , 153 U.S. 684, 687-88, 14 S. Ct. 913, 915, 38 L. Ed. 867 (1894). Nor does the United States Constitution require states to grant juvenile offenders a right to appellate review. In re Gault , 387 U.S. 1, 58, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967) (citing Griffin v. Illinois , 351 U.S. 12, 18, 76 S. Ct. 585, 100 L. Ed. 891 [1956] ).

This means the right to appeal "is not an inherent, natural, inalienable, absolute or vested right." Ware , 198 Kan. at 525, 426 P.2d 78. Instead, the right to appeal "is a privilege, a matter of grace which the state can extend or withhold as it deems fit, or which may be granted on such terms and conditions it sees fit." 198 Kan. at 526, 426 P.2d 78 ; see McKane , 153 U.S. at 687-88, 14 S.Ct. 913 ; Svaty , 291 Kan. at 609-10, 244 P.3d 642.

Without a constitutional provision granting the right to appeal, appellate jurisdiction "is conferred by statute." Ware , 198 Kan. at 525, 426 P.2d 78. That means the person bringing an appeal—that is, the appellant—must satisfy "the terms provided by the statute" for the appellate court to obtain jurisdiction. 198 Kan. at 525, 426 P.2d 78. Statutes relating to the filing of an appeal, among other requirements, direct an appellant to file an appeal by a specified deadline; not doing so means appellate courts do not obtain jurisdiction. Ortiz , 230 Kan. at 735, 640 P.2d 1255. I.A. does not dispute that his notice of appeal was filed about 19 years after the deadline that applies to his appeal, which was 10 days after entry of sentence. K.S.A. 1998 Supp. 38-1681(b).

Given I.A.'s failure to comply with the statutory requirements under which appellate courts would have jurisdiction, he asks us to carve an alternative route, one not yet recognized for juvenile offenders. He contends we should indefinitely extend the filing deadline because no judge told him of his right to appeal. He rests his argument on procedural due process and fundamental fairness.

In considering this argument, we must first decide on the framework for our analysis. This court and the United States Supreme Court have applied two frameworks or tests—one in civil cases and another in criminal cases—when considering procedural due process. Here, the Court of Appeals used the framework set out by the United States Supreme Court in Mathews v. Eldridge , 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), which is primarily applied in civil cases. See Medina v. California , 505 U.S. 437, 443, 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992). The Mathews framework requires a balancing of three factors:

"First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that

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