State v. Grant

• Decision Date: 10 June 1994
• Docket Number: No. 69920,69920
• Citation: 19 Kan.App.2d 686,875 P.2d 986
• Parties: STATE of Kansas, Appellee, v. Shawn T. GRANT, Appellant.
• Court: Kansas Court of Appeals

Page 986

875 P.2d 986

19 Kan.App.2d 686

STATE of Kansas, Appellee, v. Shawn T. GRANT, Appellant.

No. 69920.

Court of Appeals of Kansas.

June 10, 1994.

Review Denied Sept. 27, 1994.

Syllabus by the Court

1. An appellate court only obtains jurisdiction over the rulings identified in the notice of appeal.

2. Issues raised in an amended notice of appeal filed outside the time for an appeal to be taken may not be considered by the appellate court, even assuming a lack of prejudice to the opposing party. An appellant is bound by the issues raised in the notice of appeal and cannot amend this notice after the time for an appeal has run.

Stephen C. Moss, Assistant Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Brandi L. Dunning, Asst. County Atty., Robert Forer, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before GERNON, P.J., PIERRON, J., and THOMAS H. SACHSE, District Judge, assigned.

GERNON, Judge:

Shawn T. Grant directly appeals after his conviction of one count of forgery.

On September 10, 1992, Grant was charged with one count of forgery and one count of obstruction of official duty. Grant was arrested for a traffic violation and, while at the police station, Grant provided police with a false name and forged someone else's name to a fingerprint card during the booking process. Pursuant to a plea bargain, Grant pled guilty to the forgery charge in exchange for the dismissal of the charge of obstruction of official duty. The State also agreed to abide by the presentence investigation (PSI) report's recommendation as to sentencing. The PSI report stated that Grant was "not a suitable candidate for consideration of community based supervision."

At the sentencing hearing, the trial court found that both presumptions as to probation and assignment to community corrections had been overcome and sentenced Grant to one to five years' imprisonment. Grant filed a motion to modify his sentence, which was denied by the court after a hearing.

Grant filed a notice of appeal, which stated: "Notice is hereby given that the Defendant, Shawn T. Grant, appeals from denial of his Motion to Modify Sentence to the Court of Appeals of the State of Kansas." On May 26, 1993, after the case had been assigned to the Appellate Defender's Office, Grant filed an "Amended Notice of Appeal" out of time, which stated: "Notice is hereby given that defendant Shawn T. Grant appeals from the imposition of sentence on December 14, 1992 in addition to the matters referred to in the notice of appeal filed on April 2, 1993."

On July 26, 1993, this court issued an order to show cause as to why the appeal should not be limited to the denial of Grant's motion to modify. Grant argued several points in response: (1) The amended notice of appeal related back to the original timely notice of appeal and could, therefore, be considered; (2) trial counsel was ineffective in that he only appealed from the denial of the motion to modify because he incorrectly assumed he could not appeal the sentence; and (3) under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), a defendant is entitled to pursue an out-of-time appeal where his trial counsel fails to timely perfect an appeal.

Grant also filed a supplemental response, arguing a review of the record revealed that, in his opinion, there was no factual basis for the plea and that the trial court erred in finding that the presumptions as to probation and assignment to community corrections had been overcome. Grant also reiterated his belief that trial counsel had been ineffective because he had failed to appeal from the sentence. Grant's trial counsel responded by letter to this court, defending his action in filing the notice of appeal as to only the denial of the motion to modify.

On September 13, 1993, the appeal was dismissed in its entirety. Grant filed a motion to have the appeal reinstated, arguing that the dismissal exceeded the scope of the original show cause order. Grant had timely filed a notice of appeal as to the denial of his motion to modify, and the motion to reinstate was granted. However, the parties were "ordered to address in their briefs on the merits this court's jurisdiction to consider sentencing issues. In particular, the parties are ordered to address the effect of an untimely amended notice of appeal which attempts to raise issues not contemplated in a timely notice of appeal."

As a threshold matter, Grant's original notice of appeal as to the denial of his motion to modify was timely filed, and this court has jurisdiction to consider that issue. A question arises, however, as to the effect of the amended notice of appeal, which attempts to raise issues regarding Grant's sentencing.

Grant argues that, as the first notice of appeal was timely filed, any amended notices of appeal would also be timely because they would relate back to the date the original notice of appeal was filed. In support of this position, Grant points to K.S.A. 22-3606.

K.S.A. 22-3606 provides: "Except as otherwise provided by statute or rule of the supreme court, the statutes and rules governing procedure on appeals to an appellate court in civil cases shall apply to and govern appeals to an appellate court in criminal cases."

Grant contends that, as no provision in Chapter 22 relates to amended pleadings, the provisions of the Kansas Code of Civil Procedure apply.

K.S.A. 60-215(c) addresses the effect of an amendment to a civil pleading: "Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." Grant contends that, although this provision applies to the amendment of pleadings, the same rationale should apply to amended notices of appeal. Grant argues that his guilty plea, sentence, and motion to modify are all elements of a singular conviction and, thus, can be said to arise out of the same "conduct, transaction, or occurrence" contemplated by K.S.A. 60-215(c).

Grant likens the amended notice of appeal in the present case to the failure to designate to which court the appeal is taken, an issue which was recently addressed in City of Ottawa v. McMechan, 17 Kan.App.2d 31, 829 P.2d 927 (1992). In McMechan, the court held that where there is but one court to which an appeal may be taken, the failure to correctly name that court in the notice of appeal, as required by K.S.A.1993 Supp. 60-2103(b), is a mere irregularity to be disregarded unless the appellee has been misled or otherwise prejudiced. 17 Kan.App.2d at 32, 829 P.2d 927. Grant argues that in the present case, there is no risk that the appellee was misled because the amended notice of appeal was filed early in the appellate process.

In State v. Myers, 10 Kan.App.2d 266, 268-69, 697 P.2d 879 (1985), this court addressed the general principles of appellate jurisdiction:

" 'The right of appeal is entirely a statutory right; no appellate review is required by the federal constitution [citation omitted] or the Kansas Constitution. [Citations omitted.] It is the established rule in this state that this court has no jurisdiction to entertain an appeal by defendant in a criminal case, unless he takes his appeal within the time prescribed by the statutes providing for such an appeal. [Citations omitted.] The supreme court has only such appellate jurisdiction as is conferred by statute pursuant to Article 3, Section 3, of the Kansas Constitution, and when the record discloses lack of jurisdiction, it is the duty of the [appellate] court to dismiss the appeal. [Citations omitted.]' "

K.S.A.1993 Supp. 22-3608(a) provides that if sentence is imposed, an appeal must be taken within 10 days of the expiration of the court's power to modify the sentence, which is 120 days from sentencing. See K.S.A.1993 Supp. 21-4603(d)(1).

In the present case, Grant's original notice of appeal was filed on the 109th day following sentencing. The amended notice of appeal was filed 33 days out of time.

Chapter 22 of the Kansas Statutes Annotated does not specify the form or content required for a notice of appeal from district court. K.S.A. 22-3606 refers this court to K.S.A.1993 Supp. 60-2103(b), which provides: "The notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken." (Emphasis added.) K.S.A.1993 Supp. 60-2103(b), however, does not require the judgment or part thereof appealed from to be identified by the specific date of its entry. Harvey v. Harvey, 215 Kan. 472, 476, 524 P.2d 1187 (1974).

In Hess v. St. Francis Regional Med. Center, 254 Kan. 715, 869 P.2d 598 (1994), St. Francis argued that Hess' notice of appeal failed to designate any trial court rulings as being challenged and, thus, consideration of any claim by Hess that the trial judge erred was precluded. The notice of appeal challenged " 'the following portions of the jury verdict and judgment' " entered by the trial court:

" '1. The jury's determination of comparative fault. (Special questions one and two).

2. The jury's determination of the period of time over which payment of future economic loss would be needed. (Special question five).

3. The jury's determination of net amount of collateral source benefits received to date. (Special question six).

4. The jury's determination of net amount of collateral source benefits to be received in the future. (Special question seven).' " 254 Kan. at 718, 869 P.2d 598.

The court stated: "It is a fundamental proposition of Kansas appellate procedure that an appellate court only obtains jurisdiction over the rulings identified in the notice of appeal." 254 Kan. at 718, 869 P.2d 598. See Anderson v. Scheffler, 242 Kan. 857, 861, 752 P.2d 667 (1988); Carrick v. McFadden, 216 Kan....