State v. LaPointe

Decision Date03 March 2017
Docket NumberNo. 112,019,112,019
Parties STATE of Kansas, Appellant, v. Jack R. LAPOINTE, Appellee.
CourtKansas Supreme Court

305 Kan. 939
390 P.3d 7

STATE of Kansas, Appellant,
Jack R. LAPOINTE, Appellee.

No. 112,019

Supreme Court of Kansas.

Opinion filed March 3, 2017

Steven J. Obermeier, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellant.

Richard Ney, of Ney & Adams, of Wichita, argued the cause and was on the briefs for appellee.

The opinion of the court was delivered by Luckert, J.:

In this appeal, we are presented with a novel question: May the State use K.S.A. 2015 Supp. 22-3602(b)(3), which allows the prosecution to take a criminal appeal "upon a question reserved," after a district court grants postconviction DNA testing under K.S.A. 2015 Supp. 21-2512 but before the testing is conducted and thus before any posttesting court proceedings have been completed? The Court of Appeals concluded the State could not bring such a "question reserved" appeal because there had been no final order in the case. Specifically, at the time the State tried to bring its appeal the district court had only entered an order granting DNA testing—which, under the testing statute, was merely a midpoint in the statutory proceedings. The Court of Appeals further concluded the State's inability to meet the requirements for a question-reserved appeal meant the Court of Appeals lacked jurisdiction. See State v. LaPointe , 51 Kan.App.2d 742, 355 P.3d 694 (2015).

On petition for review, the State asks us to reverse the Court of Appeals and determine that it may take an appeal from an order granting postconviction DNA testing. But the State fails to persuade us that a final order had been entered, and we hold that the Court of Appeals lacked jurisdiction over the State's appeal in this case and that the appeal was properly dismissed.


The question before us rests on the procedural history of the case, not the underlying facts of the crime. For our purposes, it is enough to know that a jury convicted LaPointe of aggravated robbery and aggravated assault. LaPointe's criminal history scored as a category A on the Kansas sentencing guidelines grid, and the district court sentenced him to a total of 245 months' imprisonment to run consecutive to sentences imposed in other state and federal cases. On direct appeal, the Court of Appeals affirmed LaPointe's convictions and sentences. State v. LaPointe , No. 93,709, 2006 WL 2936496 (Kan. App. 2006) (unpublished opinion), rev. denied 283 Kan. 932 (2007).

390 P.3d 11

Approximately 7 years later, LaPointe filed, in his underlying criminal case, a request for postconviction DNA testing pursuant to K.S.A. 2015 Supp. 21-2512(a). LaPointe acknowledged that the statute was written to apply only to criminal defendants convicted of first-degree murder or rape and that he had not been convicted of those crimes. He argued, however, that the statute should be extended to cover him because his controlling term of 245 months' imprisonment (more than 20 years) equaled or exceeded the terms for first-degree murder or rape and therefore caused him to be similarly situated to someone who had been convicted of those crimes. Citing State v. Cheeks , 298 Kan. 1, 6–14, 310 P.3d 346 (2013), LaPointe argued there was no rational basis to treat his offenses and resulting sentences differently from first-degree murder or rape and, as a result, the postconviction DNA testing statute violated the Equal Protection Clause of the United States Constitution.

The district court agreed, over the State's objections. The State then appealed from the district court's order, and in its notice of appeal stated: "This appeal is taken to the Court of Appeals of the State of Kansas upon a question reserved pursuant to K.S.A. 22-3602(b)(3), K.S.A. 60-2101(a) and K.S.A. 60-2102(a)(2)." Through the question-reserved appeal, the State argued the district court erred in extending the postconviction DNA testing statute to a defendant sentenced to a term of imprisonment equal to or longer than the mandatory or presumptive sentences for first-degree murder or rape.

The Court of Appeals did not reach that question, however. Instead, the Court of Appeals focused on LaPointe's argument that the court lacked jurisdiction over the appeal. The Court of Appeals agreed, noting that a question-reserved appeal may only be taken from a final judgment and there had been no final judgment when the State appealed. LaPointe , 51 Kan.App.2d at 743, 355 P.3d 694.

The State then filed a petition seeking our review of the Court of Appeals' determination that it lacked jurisdiction. We granted the State's petition and obtained jurisdiction through K.S.A. 60-2101(b) (jurisdiction to review judgments of the Court of Appeals) and K.S.A. 20-3018(b) (petition for review procedures). This does not mean, however, that we have jurisdiction over the question reserved—i.e. , the merits of the State's arguments on appeal; when this court grants a petition for review in a criminal case it limits the issues considered to those that (1) were properly before the Court of Appeals and (2) were specifically raised in the petition for review or the cross-petition as having been decided erroneously by the Court of Appeals. See Supreme Court Rule 8.03(h)(1) (2017 Kan. S. Ct. R. 53). Thus, we will not resolve the equal protection question at the heart of LaPointe's request for DNA testing. If we agree that the Court of Appeals lacked jurisdiction over the State's appeal, then the equal protection question was not properly before the Court of Appeals and is similarly not properly before us. And even if we were to conclude the Court of Appeals erred by declining to decide the equal protection question, that court still did not reach the issue and thus our recourse would be to remand for further consideration. Either way, we decline to decide whether petitioners like LaPointe should receive the benefits of the postconviction DNA testing statute. We will instead focus on the issue of jurisdiction.


Beginning in the Court of Appeals, LaPointe has argued and continues to argue there is no statutory authority for the State of Kansas to take an interlocutory appeal from a district court order granting postconviction DNA testing under K.S.A. 2015 Supp. 21-2512(a). As LaPointe correctly observes, "the right to appeal is entirely statutory," and "the limits of appellate jurisdiction are imposed by the legislature." State v. Berreth , 294 Kan. 98, 110, 273 P.3d 752 (2012) ; see Harsch v. Miller , 288 Kan. 280, 287, 200 P.3d 467 (2009) ("Kansas appellate courts may exercise jurisdiction only under circumstances allowed by statute...."). As such, the determination of whether the Court of Appeals had jurisdiction over an appeal rests on the interpretation of statutes and involves a question of law "over which we exercise unlimited review." Berreth , 294 Kan. at 109, 273 P.3d 752.

390 P.3d 12

K.S.A. 60-2101 provides the starting point for defining the jurisdiction of Kansas appellate courts in both civil and criminal cases. Because LaPointe filed his request for postconviction DNA testing within his criminal case, the Court of Appeals focused on jurisdiction over criminal appeals. LaPointe , 51 Kan.App.2d at 744, 746–77, 355 P.3d 694. As to criminal appeals, K.S.A. 60-2101(a) provides: "Appeals from the district court to the court of appeals in criminal cases shall be subject to the provisions of K.S.A. 22-3601 and 22-3602."

The State's notice of appeal cited the second of these statutes—22-3602—and more specifically, subsection (b)(3) of that statute. Subsection (b) lists four categories of cases in which the prosecution may take an appeal "as a matter of right" and indicates the right is limited to the listed types "and no others." The third category, the one specifically referenced by the State in its notice of appeal and in its briefs, allows the State to appeal "a question reserved by the prosecution."

The State's notice of appeal also cited to 2015 Supp. K.S.A. 60-2102(a)(2), which allows a party to bring an appeal in the Court of Appeals "as a matter of right" when the party appeals "[a]n order that grants, continues, modifies, refuses or dissolves an injunction, or an order that grants or refuses relief in the form of mandamus, quo warranto or habeas corpus." The Court of Appeals noted, however, that this citation followed the State's explicit reference to an appeal on a question reserved and that the State's brief limited the discussion to a question reserved; it, therefore, considered the appeal in that context only. See LaPointe , 51 Kan.App.2d at 749–50, 355 P.3d 694. Before us, although the State argues for application of some principles borrowed from civil procedure, it phrases its objection to the Court of Appeals ruling as being that the "Court of Appeals erred in declining to answer the question reserved." Thus, it continues to rely on the third circumstance listed in K.S.A. 2015 Supp. 22-3602(b) —an appeal on a question reserved—as the jurisdictional basis for this appeal.

Focusing on that jurisdictional basis, the State's arguments require us to interpret the statutory provision allowing question-reserved appeals, which has a long history in Kansas. See, e.g. , The State of Kansas v. Carmichael , 3 Kan. 102 (1865). Despite the statute's longevity, it tends to be used sparingly and so...

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  • State v. Clark
    • United States
    • United States State Supreme Court of Kansas
    • 14 Mayo 2021
    ...with K.S.A. 60-2101, which vests appellate courts with jurisdiction to review the judgments of lowers courts. See State v. LaPointe , 305 Kan. 938, 942, 390 P.3d 7 (2017) ; Flores Rentals v. Flores , 283 Kan. 476, 481, 153 P.3d 523 (2007). The statute provides that "[t]he supreme court shal......
  • State v. Lapointe
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    • United States State Supreme Court of Kansas
    • 15 Febrero 2019
    ...694 (2015) ( LaPointe I ). Our court affirmed, holding the State's chosen procedural path was premature. State v. LaPointe , 305 Kan. 938, 947, 390 P.3d 7 (2017) ( LaPointe II ). On the second track, the testing was completed while the interlocutory appeal proceeded. The State produced two ......
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    ...... State v. Sales , 290 Kan. 130, 134, 224 P.3d 546 (2010). The State cannot expand its elected statutory basis for the appeal, and the appellate court cannot sua sponte select the jurisdictional basis for an appeal by the State. State v. LaPointe , 305 Kan. 938, 954, 390 P.3d 7 (2017). Here, the State identifies K.S.A. 2017 Supp. 22-3602(b)(1), which authorizes the prosecution to appeal "[f]rom an order dismissing a complaint, information or indictment," as the basis for this court's jurisdiction. As Bird correctly notes, the Kansas ......
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