State v. McGaugh

• Decision Date: 22 June 2018
• Docket Number: No. 117,599,117,599
• Citation: 427 P.3d 978
• Parties: STATE of Kansas, Appellee, v. Dennis MCGAUGH III, Appellant.
• Court: Kansas Court of Appeals

427 P.3d 978

STATE of Kansas, Appellee,

v.Dennis MCGAUGH III, Appellant.

No. 117,599¹

Court of Appeals of Kansas.

Opinion filed June 22, 2018.

Richard Ney and David L. Miller, of Ney, Adams & Miller, of Wichita, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellee The Wichita Eagle

Before Malone, P.J., Buser and Gardner, JJ.

Per Curiam:

Dennis McGaugh III seeks to appeal the district court's order denying his motion to seal the probable cause affidavit that led to his arrest in this case. McGaugh contends that the district court erred in its legal interpretation of the statute that governs release of the affidavit, K.S.A. 2017 Supp. 22-2302(c)(4)(C). But since McGaugh's criminal case has not yet reached a final judgment, a criminal defendant cannot take an interlocutory appeal, and the collateral order doctrine does not apply. Finding our lack of subject matter jurisdiction glaring, we dismiss McGaugh's prejudgment appeal without reaching the merits.

Factual and procedural background

McGaugh was charged with first-degree murder in March 2017. Although he was 17 years old at the time, the district court authorized the State to try him as an adult. A reporter for the Wichita Eagle newspaper filed a request for the release of the underlying probable cause affidavit after McGaugh's arraignment, following the procedures set out in K.S.A. 2017 Supp. 22-2302 that allow for that release. In response, both McGaugh and the State filed motions to seal the affidavit or, in the alternative, to redact portions of it.

McGaugh sought to have four statements redacted:

• That he was a gang member;

• that he was on GPS monitoring for another crime at the time of the murder;

• that shell casings found at the scene were the same brand as some found at his home; and

• that he possessed a firearm when he was arrested.

The State, citing public and witness safety concerns, sought to redact the names of certain persons in the affidavit and to replace them with initials.

McGaugh and the State argued their motions at a hearing. The Wichita Eagle was not present to advocate for the release of the affidavit because it waived hearing after McGaugh's counsel "indicated his belief that no hearing should be held."

The relevant statute provides that "[a]fter the warrant or summons has been executed, such affidavits or sworn testimony shall be made available to ... any person, when requested, in accordance with the requirements of this subsection." K.S.A. 2017 Supp. 22-2302(c)(1). The statute provides 10 grounds for granting a motion to seal or redact an affidavit. K.S.A. 2017 Supp. 22-2302(c)(4)(A)-(J).

McGaugh relied on the provision that "[t]he magistrate shall make appropriate redactions, or seal the affidavits or sworn testimony, as necessary to prevent public disclosure of information that would ... interfere with any prospective law enforcement action, criminal investigation or prosecution." K.S.A. 2017 Supp. 22-2302(c)(4)(C). He argued that to "interfere with ... prosecution" includes interfering with the defense. The district court rejected that argument, reasoning that had the legislature intended such meaning, it would have included appropriate language. The district court denied McGaugh's motion but granted the State's motion for redaction.

McGaugh then moved to stay the release of the redacted affidavit so that he could appeal the ruling. The State did not object and the Wichita Eagle was not present to object. The district court granted the request to stay. McGaugh appealed and his counsel filed a docketing statement form that he had substantially altered from the required form. The Wichita Eagle then moved for involuntary dismissal of the appeal for lack of jurisdiction. We denied the motion, retained the appeal "on present showing," and ordered the parties to brief the question of jurisdiction for the panel.

McGaugh's appeal addresses jurisdiction, then contends the district court erred in denying his motion to seal the affidavit. Because our lack of jurisdiction is so clear, we do not reach the merits.

We lack jurisdiction over a defendant's appeal of a pretrial ruling in a criminal case.

An appellate court has a duty to question jurisdiction on its own initiative. "Appellate courts have only such jurisdiction as is provided by law." In re N.A.C. , 299 Kan. 1100, 1106, 329 P.3d 458 (2014) (citing Williams v. Lawton , 288 Kan. 768, 778, 207 P.3d 1027 [ (2009) ] ). Appellate courts exercise unlimited review over jurisdictional issues. Kaelter v. Sokol , 301 Kan. 247, Syl. ¶ 1, 340 P.3d 1210 (2015).

The statutory basis for jurisdiction

Appellate courts are courts of limited jurisdiction and the right to access the appellate courts is wholly statutory. State v. Smith , 304 Kan. 916, 919, 377 P.3d 414 (2016). In defining appellate jurisdiction, "[a]n appellate court has no authority to create an exception to statutory jurisdictional requirements." Wiechman v. Huddleston , 304 Kan. 80, Syl. ¶ 2, 370 P.3d 1194 (2016).

The primary statute granting a defendant the right to appeal in a criminal case is K.S.A. 2017 Supp. 22-3602(a). That statute grants a defendant the right to appeal only "from any judgment against the defendant in the district court." K.S.A. 2017 Supp. 22-3602(a). No appeal may be taken by a defendant in a criminal case until judgment is final. State v. Hickerson , 184 Kan. 483, 484, 337 P.2d 706 (1959). "Judgment" in a criminal case is final only after conviction and sentencing. State v. Hall , 298 Kan. 978, 986, 319 P.3d 506 (2014) (interpreting K.S.A. 22-3601 [a] ). The statutory authority for jurisdiction is not to be enlarged or expanded by construction. State v. Ruff , 252 Kan. 625, 630, 847 P.2d 1258 (1993). Nonetheless, McGaugh tries to do so here.

McGaugh's arguments that a statutory basis for jurisdiction exists

McGaugh tries to create some statutory authority for jurisdiction over his prejudgment appeal in this criminal case by asserting: (1) the district court's denial of his motion to seal was a "final decision;" (2) K.S.A. 2017 Supp. 60-2102(a)(4) provides that "final decisions" may be appealed; and (3) K.S.A. 22-3606 provides that the statutes and rules governing civil appellate procedure apply to criminal appeals. A final judgment is thus unnecessary, he contends.

We disagree. K.S.A. 2017 Supp. 60-2102(a)(4) is included in the code of civil procedure and relates solely to appeals in civil cases. See K.S.A. 2017 Supp. 60-101. A party in a civil action may thus invoke the appellate jurisdiction of the court of appeals from a final decision. K.S.A. 2017 Supp. 60-2102 (a)(4). But a defendant in a criminal action may invoke the appellate jurisdiction of the court of appeals only from a final judgment, as noted above. K.S.A. 2017 Supp. 22-3602(a).

McGaugh contends that K.S.A. 22-3606 permits him to bring this criminal appeal as though it were a civil appeal. That statute provides: "Except as otherwise provided by statute or rule of the supreme court, the statutes and rules governing procedure on appeals to an appellate court in civil cases shall apply to and govern appeals to an appellate court in criminal cases." (Emphasis added.) K.S.A. 22-3606. But McGaugh ignores the plain language of that statute's initial clause, italicized above. A defendant's right to appeal in a criminal case is "otherwise provided by statute" in K.S.A. 2017 Supp. 22-3602(a), and that statute does not allow for interlocutory appeals by a defendant. Instead, that statute grants criminal defendants the right to appeal only "from any judgment against the defendant in the district court." K.S.A. 2017 Supp. 22-3602(a). No judgment has yet been entered against McGaugh in district court.

Second, as the language of K.S.A. 22-3606 makes clear, this statute governs procedure during an appeal, and does not govern when a defendant can appeal a criminal case. The latter is governed solely by K.S.A. 2017 Supp. 22-3602, as its language unambiguously states. When a defendant can appeal is the issue here.

Third, McGaugh's construction does not make sense. If the statutes governing civil appeals were invoked in this criminal case, they would swiftly boot the appellant back to the statutes governing criminal appeals. This is because the civil statute establishing the jurisdiction of the appellate court 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." K.S.A. 60-2101(a). Both of those statutes relate to criminal cases and require appeals to be from a "final judgment," not from a final decision.

No discretionary or interlocutory appeals are permitted by a criminal defendant.

McGaugh argues that because the statute governing a defendant's appeal in a criminal case statute references a defendant's appeal "as a matter of right," some appeals must be discretionary. But because McGaugh cites no authority to support this argument, we consider this issue to be waived. State v. Williams , 303 Kan. 750, 758, 368 P.3d 1065 (2016).

McGaugh could not have prevailed on this issue even had we reached its merits. The relevant statute provides:

"(a) Except as otherwise provided, 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 the 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. 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, 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, and amendments thereto." K.S.A. 2017 Supp. 22-3602(a).

The fact...