State v. Haines, 57533

• Citation: 238 Kan. 478,712 P.2d 1211
• Decision Date: 17 January 1986
• Docket Number: No. 57533,57533
• Parties: STATE of Kansas, Appellee, v. Christopher E. HAINES, Appellant.
• Court: United States State Supreme Court of Kansas

Page 1211

712 P.2d 1211

238 Kan. 478

STATE of Kansas, Appellee, v. Christopher E. HAINES, Appellant.

No. 57533.

Supreme Court of Kansas.

Jan. 17, 1986.

Syllabus by the Court

1. Failure to allege a sentence is outside statutory limits or is the result of partiality, prejudice or corrupt motive presents no issue for review of sentencing on appeal.

2. Under K.S.A. 22-3602(a) there is no direct appeal of a denial of probation after a plea of guilty or nolo contendere.

S.A. (Tim) Scimeca, Wichita, argued the cause and was on brief for appellant.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Clark V. Owens, Dist. Atty., and Neal B. Brady, Asst. Dist. Atty., were on brief for appellee.

HERD, Justice:

This is a criminal action resulting in Christopher Haines, appellant, entering a plea of guilty of two counts of aggravated criminal sodomy (K.S.A.1984 Supp. 21-3506), one count of rape (K.S.A.1984 Supp. 21-3502), and one count of kidnapping (K.S.A. 21-3420).

The trial court sentenced Haines to fifteen years to life on each count of aggravated sodomy to run consecutively, and fifteen years to life for rape and fifteen years to life for kidnapping, with the latter sentences to run concurrently with each other as well as with the aggravated sodomy sentences. The court also directed these sentences to run consecutively with any sentence for a previous rape conviction reinstated upon Haines' parole revocation.

Haines filed a direct appeal, arguing the district court's refusal to grant probation and the imposition of maximum sentences constituted an abuse of discretion which violated the constitutional prohibition against cruel and unusual punishment. He makes no allegation the sentence was the result of partiality, prejudice or corrupt motive or that it is outside the statutory limits. Thus no issue on sentencing is raised.

The only remaining issue is one of jurisdiction. K.S.A. 22-3602(a) provides:

"An appeal to the appellate court having jurisdiction of the appeal may be taken by the defendant as a matter of right from any judgment against said defendant in the district court and upon appeal any decision of the district court or intermediate order made in the progress of the case may be reviewed, except that no appeal shall be taken by the defendant from a judgment of conviction before a district judge or associate district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60-1507." (Emphasis added.)

By pleading guilty to the charges against him, appellant Haines falls squarely within the exception emphasized above and has no right of direct appeal of a denial of probation; appellant's only remedy to challenge his sentence is through a K.S.A. 60-1507 motion. It is a cardinal rule of statutory construction that a clear, unambiguous, constitutional statute is not subject to judicial construction. K.S.A. 22-3602(a) meets that test.

Appellate review of trial court proceedings is not a fundamental right and must have its genesis in either the constitution or statute. The constitution has no provision creating appellate jurisdiction and the foregoing statute clearly denies a direct appeal here. Thus, we do not have jurisdiction of this appeal. Any statements in State v. Yost, 232 Kan. 370, 654 P.2d 458 (1982), or State v. Green, 233 Kan. 1007, 666 P.2d 716 (1983), inconsistent with this opinion are overruled.

The appeal is dismissed.

PRAGER, Justice, dissenting:

I respectfully dissent from Syllabus p 2 and the corresponding portion of the opinion. I agree with the majority that the controlling statute is K.S.A. 22-3602(a), which gives to a defendant the right to appeal any judgment against the defendant in the district court and, upon appeal, any decision of the district court made in the progress of the case may be reviewed, except that no appeal shall be taken by the defendant from a judgment of conviction before a district judge upon a plea of guilty or nolo contendere.

The rationale of the court's decision is that, because the defendant entered a plea of guilty, the statute is applicable and he has no right to a direct appeal from a denial of probation. Logically, the same rationale would also apply to an appeal from the sentence imposed after any judgment of conviction based upon a plea of guilty. The opinion, however, assumes that this is not true, because the defendant's challenge to the sentences imposed are not determined on the basis of want of jurisdiction but solely on the basis that no issue involving sentencing has been raised. This is confusing.

The right of a defendant to a direct appeal to the appellate courts from the imposition of a sentence or a denial of probation following a plea of guilty was established by this court in State v. Yost, 232 Kan. 370, 654 P.2d 458 (1982). For some reason not expressed in the opinion, the majority of the court has now reached a contrary result. As noted in State v. Green, 233 Kan. 1007, 666 P.2d 716 (1983), the appellate courts of Kansas for many years have permitted a review of the sentence imposed or denial of probation in a criminal case. In recent years, the appellate courts in this country...