State v. Ji

• Decision Date: 15 April 1994
• Docket Number: No. 69367,69367
• Citation: 872 P.2d 748,255 Kan. 101
• Parties: STATE of Kansas, Appellee, v. Cheun-Phon JI, Appellant.
• Court: Kansas Supreme Court

Page 748

872 P.2d 748

255 Kan. 101

STATE of Kansas, Appellee, v. Cheun-Phon JI, Appellant.

No. 69367.

Supreme Court of Kansas.

April 15, 1994.

Syllabus by the Court

1. The right of appeal is entirely a statutory right; no appellate review is required by the United States Constitution or the Kansas Constitution. This court has no jurisdiction to entertain an appeal by a defendant in a criminal case unless the defendant appeals within the time prescribed by the statutes providing for such an appeal. When the record discloses lack of jurisdiction, it is the duty of the Supreme Court to dismiss the appeal.

2. The time within which a criminal defendant may appeal is fixed by K.S.A.1992 Supp. 22-3608(1) and K.S.A.1992 Supp. 21-4603(4). When the two statutes are read together, the statutes provide a criminal defendant a maximum of 130 days after sentencing in which to file an appeal.

3. The rationale for commencing the 130-day appeal time from the oral pronouncement of the sentence is unique to sentencing statutes. K.S.A. 22-3405(1) requires that the defendant be present at the arraignment and at every stage of the trial, including when sentence is imposed. The defendant's presence at sentencing insures the defendant's immediate notice of the sentence imposed and the opportunity to timely pursue an appeal of an adverse ruling.

4. When a criminal defendant is sentenced, the journalized entry is a record of the sentence imposed; but the actual sentencing occurs when the defendant appears in open court and the judge orally states the terms of the sentence.

5. A criminal defendant's right to be present at sentencing does not extend to post-conviction hearings. Whether a defendant is entitled to a hearing on a K.S.A. 1992 Supp. 21-4603(4) motion to modify a sentence is discretionary with the trial court based upon the record before the court.

Cortland E. Berry, of Cortland E. Berry Legal Clinic, Reading, was on the brief, for appellant.

Rodney H. Symmonds, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.

Jean K. Gilles Phillips, Hazel Haupt, Rick Kittel, Asst. Appellate Defenders, and Jessica R. Kunen, Chief Appellate Defender, were on the brief for amicus curiae Kansas Appellate Defender's Office.

PER CURIAM:

Subsequent to this court affirming his conviction and the sentence imposed in State v. Ji, 251 Kan. 3, 832 P.2d 1176 (1992), the defendant, Cheun-Phon Ji, filed a motion to modify sentence. The district court refused to modify the sentence. The defendant appealed. After the defendant filed his notice of appeal, this court issued an order to show cause why the defendant's appeal should not be dismissed as being filed out of time. The State responded that Ji's notice of appeal was timely filed. No response was filed by the defendant. This court retained the appeal and directed the parties to address the jurisdictional issue in their briefs. The defendant's counsel did not brief the issue, but the State did. The State Appellate Defender's request to brief the jurisdictional question as amicus curiae was granted. Three issues are present in this appeal: (1) Was the notice of appeal timely filed; (2) did the judge abuse his discretion in refusing to order a psychological evaluation prior to the hearing on the defendant's motion to modify his sentence; and (3) did the judge abuse his discretion in refusing to grant the defendant's request to appear at the hearing?

I. JURISDICTION

The right of appeal is entirely a statutory right; no appellate review is required by the United States Constitution, Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956), or the Kansas Constitution, State v. Smith, 223 Kan. 47, 48, 574 P.2d 161 (1977). It is the established rule in this state that this court has no jurisdiction to entertain an appeal by a defendant in a criminal case unless the defendant appeals within the time prescribed by the statutes providing for such an appeal. See State v. Thompson, 221 Kan. 165, Syl. p 1, 558 P.2d 1079 (1976); State v. Shores, 185 Kan. 586, 588, 345 P.2d 686 (1959); and State v. Sims, 184 Kan. 587, 588, 337 P.2d 704 (1959). 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 a lack of jurisdiction, it is the duty of the Supreme Court to dismiss the appeal. State v. Thompson, 221 Kan. at 167, 558 P.2d 1079; State v. Mitchell, 210 Kan. 470, 502 P.2d 850 (1972); and State v. Shehi, 185 Kan. 551, Syl. p 1, 345 P.2d 684 (1959).

The mandate of this court's decision as to Ji's direct appeal was filed in the district court on July 15, 1992. Ji filed his motion to modify his sentence on September 30, 1992, 77 days after the mandate. Ji had complied with K.S.A.1992 Supp. 21-4603(4) by filing his request for modification of his sentence within 120 days of the filing of the mandate. The sentencing judge heard the motion to modify on November 30, 1992, 138 days after the mandate was filed. At the conclusion of the hearing, he denied Ji's request to modify his sentence. The journal entry denying the motion to modify was filed December 16, 1992, 154 days after the filing of the mandate. Ji filed his notice of appeal on December 30, 1992, 168 days after the filing of the mandate, 30 days after the oral denial of the motion to modify, and 14 days after the filing of the journal entry, or 8 days when weekends and holidays are excluded. The question is: Did Ji file his notice of appeal of the judge's refusal to modify his sentence within the 10-day period as required by K.S.A.1992 Supp. 22-3608(1)?

K.S.A.1992 Supp. 22-3608(1) required Ji to file his notice of appeal within 10 days of the expiration of the district court's power to modify his sentence. K.S.A.1992 Supp. 21-4603(4) empowered the district court to modify a sentence within 120 days of the receipt of a mandate following an appeal taken in which the decision was adverse to the defendant. Reading 22-3608(1) and 21-4603(4) together provides a criminal defendant a maximum of 130 days after sentencing, or the filing of a mandate following an appeal, to file a notice of appeal regarding issues raised in the motion to modify. See State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980). Three exceptions to the statutory period in which to file an appeal are stated in Schroeder v. Urban, 242 Kan. 710, Syl., 750 P.2d 405 (1988); State ex rel. Owens v. Hodge, 230 Kan. 804, 814, 641 P.2d 399 (1982); and State v. Myers, 10 Kan.App.2d 266, Syl. p 3, 697 P.2d 879 (1985).

The first possible exception we discuss is the "unique circumstances" doctrine recognized in Schroeder. In Schroeder, the district judge entered judgment against the Urbans on February 23, 1987. After the attorney who represented the Urbans at trial notified them of the judgment, he declined to represent them on appeal. On March 23, 1987, 28 days after the entry of judgment, the district judge granted the Urbans an additional 30 days to file their appeal. The ruling was made during a conference call between the judge and counsel for both parties. The order extending time was filed the same day. At that time, the Urbans were snowbound in their rural home and had been unable to secure counsel to take their appeal. Within the 30-day extension granted by the judge, the Urbans secured new counsel. On April 22, 1987, the Urbans filed their notice of appeal. The Court of Appeals dismissed the appeal for lack of jurisdiction. This court granted review of the jurisdictional issue.

The Schroeder court determined that in the interest of justice, an appeal which is otherwise untimely may be maintained in unique circumstances if (1) the appellant reasonably and in good faith relies upon judicial action seemingly extending the appeal period; (2) the court order purporting to extend the appeal time was for no more than 30 days and was made and entered prior to the expiration of the official appeal period; and (3) the appellant files a notice of appeal within the period apparently judicially extended. 242 Kan. at 710, 750 P.2d 405.

The 10-day limit in 22-3608(1) in which Ji could file his notice of appeal before the expiration of the district court's power to modify his sentence was not extended by the judge. Without an extension of the 10 days to file the appeal by the judge, the "unique circumstances" doctrine does not apply to Ji's appeal.

The second exception is noted in Owens, 230 Kan. 804, 641 P.2d 399, which was an original proceeding in mandamus brought by the district attorney against the district judge. In Owens, the district attorney requested an order directing the district judge to withdraw in that criminal case and rescind the prior order placing a defendant on probation. The basic question raised by the district attorney was whether a district judge lost jurisdiction to act upon a motion for reduction of a sentence or to grant probation under K.S.A. 21-4603(3) (now 21-4603, at the expiration of the applicable 120-day period, even though a motion for reduction of sentence or for probation was timely filed within that time period by the defendant. The Owens court found, under the provisions of K.S.A. 21-4603(3), that where a motion to modify a sentence is filed by a defendant within the statutory time period and the district judge reasonably needs time beyond the statutory period to consider and act upon the motion, the district court does not lose jurisdiction to act upon a motion for reduction of sentence or for probation after expiration of the 120-day period. 230 Kan. at 813, 641 P.2d 399. Under this exception, the district court retained jurisdiction to rule on Ji's motion to modify the sentence even though 120 days from the filing of the mandate had expired.

Here, Ji filed his motion to modify his sentence within the 120-day period to modify a sentence. The judge heard the ...