State v. Hervey, 69927

• Decision Date: 22 April 1994
• Docket Number: No. 69927,69927
• Citation: 19 Kan.App.2d 498,873 P.2d 188
• Parties: STATE of Kansas, Appellee, v. Johnnie L. HERVEY, Appellant.
• Court: Kansas Court of Appeals

Page 188

873 P.2d 188

19 Kan.App.2d 498

STATE of Kansas, Appellee, v. Johnnie L. HERVEY, Appellant.

No. 69927.

Court of Appeals of Kansas.

April 22, 1994.

As Modified on Denial of Reconsideration June 13, 1994.

Review Denied July 6, 1994.

Syllabus by the Court

1. A judicial decision will be applied retroactively unless it establishes a new rule of law, retroactive application would not further the principle on which the decision is based, and retroactive application would cause substantial hardship or prejudice.

2. State v. Smith, 254 Kan. 16, 864 P.2d 1208 (1993), is applied retroactively because: (1) It does not establish a new rule of law but is only a logical construction of an established statute; (2) retroactive application will further the principle of denying multiple appeals of the same issue; and (3) retroactive application will not cause substantial hardship because those affected will have already had an opportunity to appeal the denial of their motion to modify sentence.

3. State v. Smith, 254 Kan. 16, 864 P.2d 1208 (1993), bars the filing of a second motion to modify sentence within 120 days after receipt of the mandate affirming the trial court's denial of the first motion to modify. Smith also interprets K.S.A.1992 Supp. 21-4603(4)(b) as allowing the filing of a second motion to modify within 120 days of the filing of the mandate affirming the conviction. Where the mandate affirms both the conviction and the denial of the first motion to modify, the district court likewise has jurisdiction for 120 days after receipt of the mandate to modify the sentence.

Wendy L. Rhyne Slayton, Special Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Jerome A. Gorman, Asst. Dist. Atty., Nick A. Tomasic, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before BRISCOE, C.J., and LARSON and ROYSE, JJ.

BRISCOE, Chief Judge:

Johnnie L. Hervey appeals from the denial of his post-appeal motion for sentence modification. The denial of his first motion to modify was reviewed on direct appeal, and the sentence initially imposed was not modified or changed for any reason after the first appeal. Hervey does not contend his sentence is illegal or that reconsideration of his sentence was required under K.S.A.1992 Supp. 21-4603 because of a recommendation made by the Topeka Correctional Facility.

This case presents the question of whether the decision in State v. Smith, 254 Kan. 16, 864 P.2d 1208 (1993), should be applied retroactively to bar Hervey's filing of a post-appeal motion to modify sentence and the appeal from the denial of that motion. After concluding this appeal falls within an exception permitting the filing of an untimely notice of appeal, we apply Smith retroactively, conclude the retroactive application of Smith does not bar the filing of the motion appealed, and affirm on the merits.

In September 1989, a jury found Hervey guilty of aggravated burglary (K.S.A.1992 Supp. 21-3716, a class C felony) and aggravated robbery (K.S.A. 21-3427, a class B felony). In January 1990, he was sentenced to concurrent terms of imprisonment of 5 to 15 years and 5 to 20 years. On February 12, 1990, Hervey moved for modification of his sentence and filed a notice of appeal. In his motion for modification, he argued for leniency because the convictions were his first felony convictions.

This court addressed Hervey's first appeal in an unpublished opinion filed July 31, 1992 (No. 66,722), 839 P.2d 80. Although Hervey filed his notice of appeal before the district court ruled on his first motion to modify, he did include among the issues raised on appeal a contention that the court abused its discretion in denying his motion to modify by failing to consider the sentencing policies and factors set forth in K.S.A. 21-4601 and K.S.A. 21-4606(2). This court affirmed his convictions and sentences, including the denial of his motion for modification. Our decision was filed in Wyandotte County District Court on November 23, 1992.

On November 30, 1992, Hervey filed another motion to modify sentence, which was denied on March 12, 1993. The sentence which he asked the court to modify was the same sentence which was initially imposed. On March 24, 1993, Hervey filed another notice of appeal. This notice of appeal stated Hervey was appealing from the district court's affirmance of the jury's verdict of guilty and the denial of his motion for new trial. After the Appellate Defender's Office was appointed to handle Hervey's appeal, an amended notice of appeal was filed on May 28, 1993, to add the denial of his second motion to modify sentence to the decisions appealed. When Hervey's appellate brief was filed, it raised only one issue: Whether the district court abused its discretion in denying his second motion to modify by failing to consider the sentencing policies and factors set forth in 21-4601 and 21-4606(2).

On July 26, 1993, this court ordered the parties to show cause why this case should not be dismissed for lack of jurisdiction because (1) the March 24 notice of appeal was from rulings previously addressed by this court in Hervey's direct appeal, and (2) the May 28 amended notice of appeal adding the denial of the motion to modify was filed beyond the 130-day limitation of K.S.A. 22-3608(1) and K.S.A.1992 Supp. 21-4603(4)(b). The parties were later ordered to address these questions in their briefs. A second show cause order was filed by this court on December 20, 1993, which ordered the parties to show cause why this appeal is not controlled by the Kansas Supreme Court's ruling in Smith, 254 Kan. 16, 864 P.2d 1208.

I. Timeliness of appeal.

Assuming, arguendo, that Hervey could file a second motion to modify in this case, his initial notice of appeal was timely filed. Under State v. Myers, 10 Kan.App.2d 266, 268, 697 P.2d 879 (1985), Hervey's notice of appeal filed March 24, 1993, was timely as it was filed within 130 days after the filing of the mandate. Although this court did not address the denial of a motion to modify filed after the issuance of a mandate in Myers, the same principles regarding the time frame for filing a notice of appeal after the denial of the motion to modify apply.

As regards the amended notice of appeal, which adds a judgment not previously identified in the initial timely notice of appeal, this record provides sufficient basis for our applying an exception set forth in State v. Ortiz, 230 Kan. 733, 735-36, 640 P.2d 1255 (1982), to permit this untimely amended notice of appeal. In Ortiz, the Supreme Court set forth a limited exception to the general rule that the filing of a timely notice of appeal is jurisdictional. Where a defendant is not informed of his or her right to appeal, or is not furnished an attorney to exercise that right, or is furnished an attorney for that purpose who fails to perfect and complete an appeal, an untimely appeal may be permitted. 230 Kan. at 736, 640 P.2d 1255.

Although Hervey suggests remand to the district court to develop additional facts concerning appointed counsel's failure to file a timely appeal from the denial of the motion to modify, the present record provides a sufficient factual basis for concluding the attorney appointed for the purpose of perfecting a timely appeal from the denial of the motion to modify was ineffective in perfecting that appeal. The timely notice of appeal filed by appointed counsel identified only judgments which had been previously appealed by the same counsel in the direct appeal. When this fact is viewed along with appointed counsel's failure to perfect a timely appeal from the only ruling rendered by the district court following Hervey's direct appeal, the record is sufficient for this court to conclude without remand that the exception set forth in Ortiz to permit the untimely filing of the amended notice of appeal applies.

II. Interpretation and retroactive application of Smith.

In Smith, 254 Kan. 16, 864 P.2d 1208, the defendant had appealed the denial of his first motion to modify and, then, after the district court's denial was affirmed and the mandate from that affirmance was filed with the district court, attempted to file another motion to modify. The district court dismissed the second motion for lack of jurisdiction, and this court affirmed the dismissal (State v. Smith, 17 Kan.App.2d 746, 843 P.2d 297 [1992]. Our Supreme Court, in turn, affirmed our decision and that of the district court:

"The district court has no jurisdiction to hear a defendant's second motion to modify sentence where: (1) defendant filed one such motion within 120 days after imposition of sentence; (2) the trial court denied the motion; (3) defendant appealed from the denial of the motion; and (4) defendant filed a second motion to modify sentence within 120 days after receipt of the mandate affirming the trial court's denial of the first motion to modify." 254 Kan. 16, Syl., 864 P.2d 1208.

In Smith, the interpretation and application of K.S.A.1992 Supp. 21-4603(4) (now K.S.A.1993 Supp. 21-4603[d] was at issue. K.S.A.1992 Supp. 21-4603(4) provides:

"(a) Except when an appeal is taken and determined adversely to the defendant as provided in subsection (4)(b), at any time within 120 days after a sentence is imposed, after probation or assignment to a community correctional services program has been revoked, the court may modify such sentence, revocation of probation or assignment to a community correctional services program by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits and shall modify such sentence if recommended by the Topeka correctional facility unless the court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification.

"(b) If an appeal is taken and determined adversely to ...