State v. McDonald

• Decision Date: 19 October 2001
• Docket Number: No. 85,696.,85,696.
• Citation: 272 Kan. 222,32 P.3d 1167
• Parties: STATE OF KANSAS, Appellee, v. ROBERT E. McDONALD, Appellant
• Court: Kansas Supreme Court

272 Kan. 222

32 P.3d 1167

STATE OF KANSAS, Appellee, v. ROBERT E. McDONALD, Appellant

No. 85,696.

Supreme Court of Kansas.

Opinion filed October 19, 2001.

Shawn Minihan, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the brief for appellant.

Ian H. Taylor, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LARSON, J.:

This appeal contends constitutional due process rights were violated when Robert E. McDonald's term of probation was extended in proceedings where he was not afforded representation by an attorney.

The facts are undisputed. McDonald pled guilty to burglary and theft and was sentenced to an underlying prison term of 27 months, with probation granted for 24 months. He was also ordered to pay restitution of $4,087.24 and costs of $554.50.

A journal entry entered prior to the expiration of the 24-month probation period extended the term for an additional year or "until the defendant has paid all costs and restitution in full." A subsequent order likewise extended the term for an additional 1 year. Both orders showed the presence and consent of McDonald.

During the term of the second extension, McDonald appeared in person and by counsel at a parole revocation hearing conducted pursuant to K.S.A. 22-3716. Competent evidence, not challenged in this appeal, showed McDonald had violated the terms of his probation. The court so found and ordered the underlying prison sentence of 27 months to be served.

McDonald's notice of appeal stated that he appealed "the revocation hearing and all adverse rulings of the District Court."

McDonald failed to appeal either of the orders extending the term of his probation (and the time for such an appeal has long since expired, K.S.A. 22-3608). He now argues that both of those proceedings and the orders entered were lacking in jurisdiction because his due process rights were violated by his lack of counsel. Although McDonald's argument that he must be provided an attorney in any proceeding where the term of his probation is extended can be answered, the more difficult question is whether we have jurisdiction to consider what is in effect an attempt to collaterally attack two unappealed from orders. See State v. Delacruz, 258 Kan. 129, 137-39, 899 P.2d 1042 (1995) (collateral attack prohibited in part but allowed in part where the precise issue now appealed was not presented to the trial court); State v. Gardner, 264 Kan. 95, 106, 955 P.2d 1199 (1998) (collateral attack prohibited where the notice of appeal did not identify the rulings appealed from as being from prior proceedings, separate from the revocation hearing); State v. Woodling, 264 Kan. 684, Syl. ¶ 2, 957 P.2d 398 (1998) (collateral attack prohibited where we said: "An appellate court obtains jurisdiction over the rulings identified in the notice of appeal. Grounds for jurisdiction not identified in a notice of appeal may not be considered by the court.").

We always have the obligation to question jurisdiction on our own motion, McDonald v. Hannigan, 262 Kan. 156, Syl. ¶ 1, 936 P.2d 262 (1997), and if the record discloses a lack of jurisdiction, the appeal must be dismissed.

McDonald attempts to legitimize his appeal by quoting the beginning sentence of K.S.A. 22-3504(1): "The court may correct an illegal sentence at any time." As we stated in State v. Johnson, 269 Kan. 594, Syl. ¶ 3, 7 P.3d 294 (2000): "K.S.A. 22-3504(1) is a statute of limited applicability and may not be used as a vehicle to breathe new life into appellate issues previously abandoned or adversely determined." There is nothing illegal about the sentence in this case and the only question is whether the term of probation had expired which would prohibit the revocation of probation or whether it was properly and lawfully extended by the orders to which McDonald consented.

One way for McDonald to have raised this issue would have been under a K.S.A. 60-1507 proceeding questioning the trial court's jurisdiction under subparagraph (a). However, we are well aware of the language of 60-1507(e) that "an application ... shall not be entertained if it appears that the applicant has failed to apply for relief by motion, to the court which sentenced said applicant...."

For the reasons stated above, the dismissal of this appeal might be proper. However, if McDonald is correct in his contention that he had the right to counsel when the term of his probation was extended, and he was not so advised or offered counsel, then he would be unlawfully incarcerated at this time. This would then raise a Sixth Amendment right to counsel argument which both the United States Supreme Court and our Kansas Supreme Court have viewed with more favor and a different approach.

We will not here attempt to restate an analysis of United States v. Tucker, 404 U.S. 443, 30 L. Ed.2d 592, 92 S. Ct. 589 (1972), Burgett v. Texas, 389 U.S. 109, 19 L. Ed.2d 319, 88 S. Ct. 258 (1967), and Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed.2d 799, 83 S. Ct. 792 (1963), which have held the Sixth Amendment to the United States Constitution requires that an indigent defendant in state court proceedings have counsel appointed for him or her. These cases, as well as Custis v. United States, 511 U.S. 485, 128 L. Ed.2d 517, 114 S. Ct. 1732 (1994), were cited by our opinion in Delacruz, which considered a collateral attack on an uncounseled conviction used for sentence enhancement. While our appeal is not of an enhancement of sentence, Delacruz, 258 Kan. at 139, is instructive:

"The defendant ... contends that he was not informed of his rights regarding his guilty pleas and his pleas were not knowingly and intelligently made. Under Custis, the defendant's prior misdemeanor convictions, with the single exception of the battery misdemeanor conviction resulting in jail time, would not be subject to collateral attack. As the United States Supreme Court indicated in Custis, allowing a collateral attack on prior convictions on the basis of inadequate plea colloquies would force the sentencing court to look behind every conviction with practically no record to rely on. On the other hand, the defendant's conviction which resulted in jail time was apparently uncounseled and constitutionally invalid under both Scott and Gideon. Thus, the record raises a Gideon constitutional denial of counsel issue and is, therefore, subject to collateral attack." (Emphasis added.)

Because McDonald contends he would not be incarcerated if he would have been provided counsel when the term of his probation was extended, we are obligated to consider this question of law. As stated in Custis, 511 U.S. at 494-95:

"There is thus a historical basis in our jurisprudence of collateral attacks for treating the right to have counsel appointed as unique, perhaps because of our oftstated view that `[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.' Powell v. Alabama, 287 U.S. 45, 68-89[, 77 L. Ed.2d 158, 53 S. Ct. 55] (1932)."

Our result is in accord with our most recent decision in this area, State v. Chiles, 260 Kan. 75, Syl., 917 P.2d 866 (1996), in which we held: "A defendant does not have a constitutional right to collaterally attack a prior conviction used to enhance a current sentence unless the prior conviction was obtained in violation of the right to counsel. This principle bears extra weight in cases in which the prior conviction is based on a guilty plea." Justice Abbott's opinion in Chiles cites Delacruz and Custis, as well as other decisions, and our consideration of the issue raised in the instant appeal is not in conflict with the Chiles decision and reasoning.

We now consider whether there is either a statutory or constitutional requirement for counsel to be present when a probationer is faced with the choice of voluntarily extending his or her probation or forcing the court to order the extension after a modification hearing and judicial finding of necessity.

The statutory authorization giving jurisdiction to the trial court in this case to extend defendant's probation period for nonpayment of restitution is K.S.A. 21-4611(c)(4) and (5):

"(4) If the defendant is ... ordered to pay full or partial restitution, the period may be continued as long as the amount of restitution ordered has not been paid.

"(5) The court may modify or extend the offender's period of supervision, pursuant to a modification hearing and a judicial finding of necessity. Such extensions maybe made for a maximum period of five years or the maximum period of the prison sentence that could be imposed, whichever is longer, inclusive of the original supervision term."

Nowhere in the statute authorizing the extension of the probation period is the right to counsel mentioned. However, it is clearly found in K.S.A. 22-3716(b), which relates to revocation of probation. In setting forth the required revocation procedures, 22-3716(b) states: "The defendant shall have the right to be represented by counsel and shall be informed by the judge that, if the defendant is financially unable to obtain counsel, an attorney will be appointed to represent the defendant."

It is thus apparent there is no statutory right to counsel in Kansas at proceedings to extend the term of probation. Had the legislature determined that counsel should be mandated, it knew how to do so, as the provisions of K.S.A. 22-3716(b) clearly show.

The remaining question then becomes: Is counsel constitutionally required to be present when the term of probation is extended? We answer this question negatively.

We first point out our holding in a recent case involving right to counsel in proceedings where probation is revoked. See Brown v. Kansas Parole Board, 262 Kan. 903, 943...