State v. Berreth, 99,937.

Citation273 P.3d 752
Decision Date06 April 2012
Docket NumberNo. 99,937.,99,937.
PartiesSTATE of Kansas, Appellee, v. Rolland G. BERRETH, Appellant.
CourtUnited States State Supreme Court of Kansas

273 P.3d 752

STATE of Kansas, Appellee,
v.
Rolland G. BERRETH, Appellant.

No. 99,937.

Supreme Court of Kansas.

April 6, 2012.


[273 P.3d 754]

Syllabus by the Court

1. The existence of jurisdiction is a question of law over which the scope of appellate review is unlimited.

2. The right to appeal is entirely statutory; the limits of appellate jurisdiction are imposed by the legislature.

3. A criminal defendant has a broad right of appellate review. But the State only has limited appeal rights tightly restricted by statute.

4. When the State is entitled to appeal, it must elect to proceed under a specific statute or statutory subsection, and its election governs the remedy, if any, available.

5. An action under K.S.A. 60–1507 is civil in nature, separate from the defendant's direct criminal proceeding, and is governed by the rules of civil procedure.

6. The State may appeal an unfavorable disposition of a K.S.A. 60–1507 motion in the same manner as a final judgment in a civil proceeding.

7. Supreme Court Rule 2.01 (2011 Kan. Ct. R. Annot. 9) requires that the notice of appeal to the Supreme Court contain specific grounds on which the appeal is considered to be permitted, including citation of statutory authority. But Rule 2.02 (2011 Kan. Ct. R. Annot. 9) does not so require for appeals to the Court of Appeals.

8. Under the facts of this case the State could not change the statutory basis for appellate jurisdiction which it had elected.

9. While appellate courts have a duty to question jurisdiction on their own initiative, under the facts of this case the Court of Appeals could not sua sponte alter the State's election of a statutory basis for appellate jurisdiction.

10. A criminal defendant has no authority to alter the appellate jurisdictional basis elected by the State.

11. To be considered on appeal, questions reserved by the State in a criminal prosecution must be of statewide interest important to the correct and uniform administration of criminal law and the interpretation of statutes. Questions reserved 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.

[273 P.3d 755]

12. Appellate courts will not accept appeal of questions reserved when their resolution will not provide helpful precedent. So if a question reserved is no longer of statewide importance because the court has already addressed it in a prior case, an appeal on the question should be dismissed.

13. An appeal on a question reserved presupposes that the underlying criminal case has concluded but that an answer to a question of statewide importance is necessary for disposition of future cases. Accordingly, an appellate court's answer to a question reserved has no effect on the criminal defendant in the underlying case.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the briefs for appellant.

Jan L. Satterfield, county attorney, argued the cause, and Steve Six, attorney general, was with her on the brief for appellee.

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 K.S.A. 22–3504. His appointed counsel later filed motions citing K.S.A. 60–1507, which expanded Berreth's pro se motion. All motions argued multiplicity. The district court ruled Berreth's aggravated kidnapping conviction was multiplicitous with the aggravated criminal sodomy convictions, reduced Berreth's aggravated kidnapping conviction to kidnapping, and therefore reduced his sentence.

The State filed its notice of appeal and docketing statement, each specifically describing the appeal as one taken upon a question reserved under K.S.A. 22–3602(b)(3). The Court of Appeals reversed the district court and ordered reinstatement of Berreth's original sentence. After the district court complied, Berreth appealed, and a different panel of the Court of Appeals affirmed.

We granted Berreth's petition for review under K.S.A. 20–3018 to reexamine the jurisdictional basis for the State's appeal and to examine the correctness of the Court of Appeals' rulings. Because we hold the Court of Appeals failed to properly treat the State's appeal as a question reserved, we reverse, remand, and order reinstatement of Berreth's reduced sentence.

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, –––Kan.App.2d ––––, 929 P.2d 197, 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 K.S.A. 22–3504. He contended that his aggravated kidnapping conviction was multiplicitous with at least one of the three convictions of aggravated criminal sodomy. So he requested the aggravated kidnapping conviction be reduced to one for simple kidnapping, the original sentence be vacated, and a reduced sentence be imposed for this less severe crime.

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 K.S.A. 22–3504. But it now emphasized that Berreth's convictions of aggravated kidnapping and aggravated criminal sodomy were multiplicitous under

[273 P.3d 756]

State v. Robbins, 272 Kan. 158, 32 P.3d 171 (2001). It renewed his request to vacate the aggravated kidnapping sentence.

December 7, 2004: At the hearing on the defense motions, the judge was handed an amended motion to correct sentence submitted “pursuant to K.S.A. 60–1507.” Although identified in the motion's body as an “Amended 60–1507,” it too was filed in 93 CR 354. The amended motion repeated verbatim his counsel's November 4 arguments on multiplicity. So it appeared to have been filed primarily for counsel to elaborate on Berreth's second issue: while Berreth conceded his sentence was not illegal, he argued it was the result of partiality, oppression, and corrupt motive. Berreth's counsel argued for correction through a lower presumptive sentence on all four counts and asked that the judge “resentence for the illegal sentence of aggravated kidnapping to plain kidnapping.”

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 K.S.A. 60–1507. It argued that Berreth was attempting an improper collateral attack, e.g., a 60–1507 motion, on a multiplicity issue that should have been raised on direct appeal. It further argued that the 1507 motion was time barred. The State additionally argued that under State v. Groves, 278 Kan. 302, 95 P.3d 95 (2004), the convictions were not multiplicitous.

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 with K.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 under K.S.A. 60–1507 (motion attacking sentence). Whether the defendant's motion is construed as a K.S.A. 22–3504 motion, or is liberally construed as a motion under K.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 a K.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, 32 P.3d 171. 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 K.S.A. 60–1507 to be utilized to retroactively correct claims of duplicitous convictions, e.g., Jarrell v. State, 212 Kan. 171, 510 P.2d 127 (1973).” Consequently, the court vacated the aggravated kidnapping conviction, replaced it with a conviction for the lesser offense of kidnapping, and set resentencing for simple kidnapping on March 29.

March 18, 2005: Before actual resentencing could occur, the State filed its notice of appeal in the district court, again in Berreth'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 K.S.A. 60–1507 and 22–3504.” Despite this two-pronged acknowledgment, the notice then expressed the State's apparent choice among three possible jurisdictional bases: “This appeal is pursuant to K.S.A. 22–3602(b)(3).” This statute allows the prosecution to take appeals to the Court of Appeals as a matter of right “upon a question reserved by the...

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