State v. Shortey

• Court: Kansas Supreme Court
• Writing for the Court: McFARLAND
• Citation: State v. Shortey, 884 P.2d 426, 256 Kan. 166 (Kan. 1994)
• Decision Date: 28 October 1994
• Docket Number: No. 70202,70202
• Parties: STATE of Kansas, Appellee, v. Jesse L. SHORTEY, Jr., Appellant.

Page 426

884 P.2d 426

256 Kan. 166

STATE of Kansas, Appellee, v. Jesse L. SHORTEY, Jr., Appellant.

No. 70202.

Supreme Court of Kansas.

Oct. 28, 1994.

Syllabus by the Court

1. In general, Kansas appellate courts do not have jurisdiction to entertain an appeal unless the notice of appeal is filed within the time established by statute; however, an exception exists in the interest of fundamental fairness where the defendant was not informed of his or her rights to appeal, or was not furnished an attorney to exercise those rights, or was furnished an attorney for that purpose who failed to perfect and complete the appeal.

2. Under K.S.A. 21-3107(2)(d), the defendant in a criminal prosecution has a right to have the court instruct the jury on all lesser included offenses established by substantial evidence. Where there is no substantial testimony applicable to the lesser degrees of the offense charged and all of the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to the lesser degrees of the offense are not necessary.

3. K.S.A. 21-3214(1) precludes the giving of a self-defense instruction where the defendant assaults a law enforcement officer while trying to escape from the commission of a forcible felony.

4. The fact that the court made the finding prior to the actual sentencing that the mandatory sentencing provisions of K.S.A. 1993 Supp. 21-4618 applied but did not refer to the statute at the sentencing does not render ineffectual the provision in the journal entry reciting that defendant had been mandatorily sentenced under the statute.

Rebecca E. Woodman, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief for appellant.

Jerome A. Gorman, Asst. Dist. Atty., argued the cause, and Nick A. Tomasic, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for appellee.

McFARLAND, Justice:

Jesse L. Shortey, Jr., appeals his jury trial convictions of aggravated robbery (K.S.A. 21-3427) and aggravated assault on a law enforcement officer (K.S.A. 21-3411). Shortey received a controlling term of 20 years to life for these convictions.

The convictions arise from the June 4, 1991, robbery of a Kansas City gas station attendant and defendant's arrest shortly thereafter. Additional facts will be set forth in the opinion as necessary for the resolution of particular issues.

Initially, the court must determine if it has jurisdiction to entertain this appeal. K.S.A. 22-3608(1) provides, in pertinent part: "If sentence is imposed, the defendant may appeal from the judgment of the district court not later than 10 days after the expiration of the district court's power to modify the sentence."

The notice of appeal filed herein by defendant's counsel was untimely by at least 20 days.

This court recently reviewed the general rules pertaining to an appellate court's jurisdiction to hear appeals in State v. Ji, 255 Kan. 101, 102-03, 872 P.2d 748 (1994), wherein we stated:

"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, 100 L.Ed. 891, 76 S.Ct. 585 (1955), 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); 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, 471, 502 P.2d 850 (1972); State v. Shehi, 185 Kan. 551, Syl. p 1, 345 P.2d 684 (1959)."

Thus, in general, Kansas appellate courts do not have jurisdiction to entertain an appeal in a criminal case unless a notice of appeal is filed within the time established by the statute. However, in State v. Ortiz, 230 Kan. 733, 736, 640 P.2d 1255 (1982), we recognized an exception to the general rule where in the interest of fundamental fairness "a defendant either was not informed of his or her rights to appeal or was not furnished an attorney to exercise those rights or was furnished an attorney for that purpose who failed to perfect and complete an appeal." (Emphasis supplied.)

Defendant has filed an affidavit of the appointed counsel responsible for the filing of the notice of appeal which sets forth the post-trial proceedings herein and which concludes: "I didn't realize that Notice of Appeal needed to be filed earlier. If that is indeed the case, it is wholly my fault, as Mr. Shortey has taken every step to insure that his appeal is prosecuted."

Under the circumstances herein, we conclude that the exception set forth in Ortiz should be applied, and we will, accordingly, entertain defendant's appeal.

For his first issue, defendant contends the district court erred in failing to instruct the jury on battery and aggravated battery as lesser included offenses of aggravated robbery.

The statute relative to included crimes is K.S.A. 21-3107, which provides, in pertinent part:

"(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.

"(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:

(a) A lesser degree of the same crime;

(b) an attempt to commit the crime charged;

(c) an attempt to commit a lesser degree of the crime charged; or

(d) a crime necessarily proved if the crime charged were proved."

"(3) In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced. If the defendant objects to the giving of the instructions, the defendant shall be considered to have waived objection to any error in the failure to give them, and the failure shall not be a basis for reversal of the case on appeal."

In State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988), we described the two-pronged test to determine if a crime is a lesser included crime under section (2)(d):

"The first step is to determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. This approach is ordinarily fairly straightforward, and requires a jury instruction on a particular lesser offense whenever all of its statutory elements will automatically be proved if the State establishes the elements of the crime as charged. For example, where the crime charged is aggravated burglary, the crime of burglary is clearly a lesser included offense, because every one of the statutory elements of burglary must of necessity be proved in establishing the elements of aggravated burglary.

"The result of the first step of the analysis, however, is not necessarily conclusive. Even if the statutory elements of the lesser offense are not all included in the statutory elements of the crime charged, a particular crime may nevertheless meet the statutory definition in 21-3107(2)(d) of an included crime under the second step of the analysis. This approach requires the trial court to carefully examine the allegations of the indictment, complaint, or information as well as the evidence which must be adduced at trial. If the factual allegations in the charging document allege a lesser crime which does not meet the statutory elements test and the evidence which must be adduced at trial for the purpose of proving the crime as charged would also necessarily prove the lesser crime, the latter is an 'included crime' under the definition in 21-3107(2)(d)."

In State v. Gibson, 246 Kan. 298, 300, 787 P.2d 1176 (1990), we cautioned against confusing what the State may actually prove in its evidence with what the State was required to prove to establish the crime charged, stating: "The mere fact that the evidence adduced in proving the crime charged may also prove some other crime does not make the other crime a lesser included offense under K.S.A. 21-3107(2)(d)."

Under the second prong of the Fike test, aggravated battery can be a lesser included offense of aggravated robbery. State v. Warren, 252 Kan. 169, Syl. p 9, 843 P.2d 224 (1992).

Where there is no substantial testimony applicable to the lesser degrees of an offense, and all of the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to the lesser degrees of the offense are not necessary. State v. Deavers, 252 Kan. 149, 155, 843 P.2d 695 (1992), cert. denied, 508 U.S. 978, 113 S.Ct. 2979, 125 L.Ed.2d 676 (1993). The duty to instruct exists even though the instructions have not been requested. K.S.A. 21-3107(3).

Defendant herein was charged as follows:

"[O]n or about the 4th day of June, 1991, one Jesse L. Shortey, Jr., did unlawfully, feloniously and willfully take property, to wit: money, from the person of another, to wit: Woody Davis, by force to the person of Woody Davis, and did inflict bodily harm upon Woody Davis, in the course of such robbery, in violation of ...