State v. Northern
| Decision Date | 22 July 2016 |
| Docket Number | No. 112,955,112,955 |
| Citation | 304 Kan. 860,375 P.3d 363 |
| Parties | State of Kansas, Appellee, v. Mitchell C. Northern, Appellant. |
| Court | Kansas Supreme Court |
Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Sheryl L. Lidtke, chief deputy district attorney, argued the cause, and Kristiane N. Bryant, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
Mitchell C. Northern appeals from the denial of his motion for leave to take an out-of-time appeal from his life sentence for first-degree premeditated murder.
Northern pled guilty to first-degree murder, and the district court imposed a hard 25 sentence from the bench on October 28, 2011, in conformity with the plea agreement. Richard Carney was Northern's attorney during the proceedings. At the sentencing hearing, the State requested that the court “leave open” the matter of restitution until information from the victim's family became available. After pronouncing the terms of incarceration, the court stated, “I will leave the issue of restitution open for a matter of 30 days.” The court then informed Northern that he had 14 days in which to file a notice of appeal. No notice of appeal was filed at that time.
On November 30, 2011, the district court entered a restitution order in the amount of $1,977.98 to be paid to the parent of the victim. Again, no notice of appeal was filed at the time.
Years later, on May 19, 2014, Northern filed a pro se motion seeking leave from the district court to file his appeal out of time. In his motion, he proffered that he had been informed of his right to appeal by the court, that he asked his attorney to take an appeal from the sentence, and that his attorney failed to file a timely appeal. Northern and Carney both testified at a hearing on the motion.
Northern testified that, when the judge told him he had 14 days in which to appeal, he told his attorney that he “would like for that to happen” and that he “wanted the appeal to go.” He further testified that his attorney responded that “it wouldn't do any good.” On cross-examination, Northern said that he was “fairly sure” that he asked his attorney to file a notice of appeal and that he was “most of the way sure” that he made the request, but that he “could be mistaken.” Northern did not inquire of Carney whether he actually filed the notice of appeal. Finally, in May 2014, Northern determined that no appeal had ever been filed in his case.
Carney testified that he did not recall Northern asking him to file an appeal and that no conversation took place regarding an appeal. Carney further testified that he had explained to Northern during discussions about the plea agreement that he would be statutorily precluded from an appeal unless the sentence was illegal or otherwise incorrect.
The district court engaged in the following evaluation of the credibility of the two witnesses:
“The court finds clearly that he was notified of his right to appeal, he admits that candidly. He also admits candidly that he's not positive what phraseology he had with Mr. Carney. I do not find that he has met the basis of the exceptions under Ortiz
and subsequent cases. And based on that, the court denies his right to file appeal out of time.”
In its subsequent journal entry, the district court made the following findings on which it based the denial of Northern's motion:
apply.”
Northern initially argues that, although his prison term was pronounced in open court, the subsequent restitution order was issued only through a written order. He contends that his sentence never became final for purposes of appeals because restitution was never pronounced from the bench in open court and his appeal from the sentence is therefore not out of time.
Because the interpretation of statutes and the determination of jurisdiction, including when the time to file a notice of appeal starts to run, involve questions of law, we exercise unlimited review over this matter. See State v. Hall , 298 Kan. 978, 982–83, 319 P.3d 506 (2014)
.
A defendant's sentence becomes final and appealable when the district court pronounces the sentence from the bench. Hall , 298 Kan. at 983, 319 P.3d 506
. A district court may exercise its discretion to continue a sentencing hearing. State v. Beaman , 295 Kan. 853, 863, 286 P.3d 876 (2012). Restitution is part of a criminal defendant's sentence. Hall , 298 Kan. at 983, 319 P.3d 506. It is not the incarceration phase of sentencing alone that triggers the beginning of the statutory time to file a notice of appeal; the restitution phase of sentencing must also be completed before a defendant files a notice of appeal. State v. McDaniel , 292 Kan. 443, 448, 254 P.3d 534 (2011). A defendant may not take an appeal until judgment is final. Hall , 298 Kan. at 986, 319 P.3d 506.
Because restitution is part of a criminal defendant's sentence, the amount may only be set by a sentencing judge when the defendant is present in open court. Until the applicable restitution amount is decided, the sentencing process is not complete. Hall , 298 Kan. at 986, 319 P.3d 506
. The Hall court emphasized that “any completion of sentencing must take place in the defendant's presence in open court.” 298 Kan. at 987, 319 P.3d 506. “As is the case with other critical stages of criminal proceedings, a defendant may waive his or her right to be present at a continued sentencing hearing, but a district judge would be well advised to see that a defendant's waiver appears on the record.” 298 Kan. at 987–88, 319 P.3d 506
.
Northern argues that he was not present in open court when the judge announced the amount of restitution; he did not waive his right to be present at all stages of sentencing; the order of restitution therefore did not complete the sentencing procedure; sentencing has never been completed; and his time to file a notice of appeal therefore has never begun to run.
The State directs the court's attention to State v. Frierson , 298 Kan. 1005, 319 P.3d 515 (2014)
. In Frierson, the district court imposed restitution at the same hearing during which it announced defendant's prison term. The district court then modified the restitution order via a written order that was signed by both attorneys. The defendant challenged the modification, asserting that the district court was without jurisdiction to increase the restitution amount.
This court affirmed the modified restitution order on several grounds: at the sentencing hearing, the judge announced that he was holding jurisdiction open in order to obtain complete cost assessments; the written restitution order was signed by the defendant's attorney; and the defendant did not argue on appeal that his right to be present at sentencing was violated, so the issue was not considered by this court. 298 Kan. at 1021–22, 319 P.3d 515
. We held that “because the judge explicitly held open jurisdiction, and because the parties agreed on a 30–day extension, and because the order was signed by defense counsel and entered within the planned time frame, we are satisfied that the spirit, if not the letter, of the procedure” set out in Hall was satisfied. 298 Kan. at 1021, 319 P.3d 515. Noting widespread uncertainty about the interplay of restitution orders and appellate timelines, we limited strict adherence to the Hall requirements to cases in which sentencing occurred after the mandate in Frierson . 298 Kan. at 1021, 319 P.3d 515.
This court then relied on Frierson
in State v. Moncla , 301 Kan. 549, 555, 343 P.3d 1161 (2015), where we rejected the appellant's argument that his case was still open because restitution had been set by a written journal entry and was never pronounced in his presence in open court. We held that “[t]he finality of Moncla's sentence ... occurred no later than the filing of the journal entry memorializing the restitution amount .” ( Emphasis added.) 301 Kan. at 555, 343 P.3d 1161
. As in Frierson, we were satisfied that the “spirit, if not the letter” of proper procedure was followed. 301 Kan. at 554, 343 P.3d 1161.
The facts of the present case closely resemble those of Frierson
and Moncla. Northern was sentenced prior to the decision in Frierson, and we have declined to apply the strict requirements derived from Hall...
To continue reading
Request your trial
-
State v. James
...when continuances were ordered outside his presence, unless he knowingly and voluntarily waived that right. See State v. Northern , 304 Kan. 860, 862, 375 P.3d 363 (2016). Because we see nothing in the record to evidence such a waiver, we assume error on this point. Assuming James' right wa......
-
State v. Hill
...from the bench differs from what is later described in the journal entry, the orally pronounced sentence controls. State v. Northern , 304 Kan. 860, 862, 375 P.3d 363 (2016) ; Abasolo v. State , 284 Kan. 299, 304, 160 P.3d 471 (2007). Hill argues that his sentence, as pronounced at the benc......
-
State v. Hill
... ... becomes final and appealable when the district court ... pronounces it from the bench, and where the sentence ... announced from the bench differs from what is later described ... in the journal entry, the orally pronounced sentence ... controls. State v. Northern, 304 Kan. 860, 862, 375 ... P.3d 363 (2016); Abasolo v. State, 284 Kan. 299, ... 304, 160 P.3d 471 (2007) ... Hill ... argues that his sentence, as pronounced at the bench, is ... illegal because it does not conform to the term authorized by ... ...
-
State v. Bailey
... ... court" in cases of life sentences and certain off-grid ... convictions ... This ... court has held that "[r]estitution is part of a criminal ... defendant's sentence." State v. Northern., ... 304 Kan. 860, 862, 375 P.3d 363 (2016); see also State v ... Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014) ... ("Restitution constitutes part of a criminal ... defendant's sentence."); State v. McDaniel, ... 292 Kan. 443, 446, 254 P.3d 534 (2011) (same). This is ... ...