Kansas Court of Appeals
APPEALS—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—MOTIONS
STATE V. MABERRY
RENO DISTRICT COURT—AFFIRMED IN PART, VACATED IN PART, REMANDED
No. 120,972—MAY 22, 2020
FACTS: May 2018 sentence imposed after Maberry pled guilty to aggravated escape from custody. In July correspondence with appellate court he discovered no appeal was pending in his criminal case. He filed August pro se motion to withdraw his guilty plea. District court summarily denied the motion three days later. In November letter to district court Maberry asked for status on his motion to withdraw, citing months-long delay with no ruling. In February 2019, he filed pro se motion to appeal out of time. District court summarily denied the motion, stating in part no rule required the court to separately advise Maberry of the right to appeal the denial of a motion to withdraw plea, and noting the amount of time between Maberry’s motion for leave to appeal out of time and his November awareness of the August ruling on the motion to withdraw his plea. Maberry appealed the district court’s denial of the motion to appeal out of time arguing due process entitled him to an out-of-time appeal because district court: (1) failed to notify him that it denied his motion to withdraw plea until after time to appeal had expired, and (2) failed to inform him of his appellate rights upon the denial of his motion withdraw plea.
ISSUES: (1) Due process—notice of denial of motion to withdraw plea; (2) due process—informing defendant of right to appeal and statutory time for filing an appeal.
HELD: Supreme Court Rule 134(a) provides that if the district court rules on a motion or other application when an affected party who has appeared in the action is not present—either in person or by the party’s attorney—the court immediately must serve notice of the ruling.
To satisfy Due Process Clause in federal and Kansas constitutions, substantial compliance with this rule is required before the time to file a notice of appeal begins to run on the denial of a motion to withdraw plea. Record in this case is insufficient to determine whether district court substantially complied with the requirement to serve Maberry with notice of the ruling denying the motion to withdraw plea. The lack of specific findings of fact on this important issue precludes meaningful appellate review. District court’s summary dismissal is vacated and case is remanded with directions to make findings regarding whether district court substantially complied with Supreme Court Rule 134(a).
District court is affirmed on Maberry’s second issue. Maberry’s argument - that State v. Hemphill, 286 Kan. 583 (2008), wrongly held the judicial exceptions in State v. Ortiz, 230 Kan. 733 (1982), to an untimely appeal do not apply in context of a motion to withdraw plea - is rejected. Because a criminal defendant does not have a statutory right to be informed of right to appeal from a denial of a motion to withdraw plea, Due Process Clause of federal and Kansas constitutions do not require that district court inform the defendant of the right to appeal and the statutory time limit to appeal the denial of the motion.
STATUTES: K.S.A. 2019 Supp. 22-3608, -3608(c); K.S.A. 2017 Supp. 21-5911(b)(1)(A); K.S.A. 22-3210(a)(2), -3424(f), -4505(a), 60-258, -1507
appeals—constitutional law—criminal law—criminal procedure—statutes
state v. mejia
johnson district court—reversed and remanded
No. 121,475—may 22, 2020
FACTS: Meijia charged in part with misdemeanor driving under influence (DUI), K.S.A. 8-1567, which the State raised to a felony based on Mejia’s three Missouri convictions for driving while impaired (DWI). Mejia challenged the use of his Missouri convictions. Relying in part on State v. Wetrich, 307 Kan. 552 (2018), district court found the out-of-state convictions could not be used because the Missouri statute proscribed a broader range of conduct than K.S.A. 8-1567. District court also found comparison of the statutory elements of the Missouri offenses required consideration of facts underlying Mejia’s convictions, in violation of Apprendi and its application. District court refused to bind Mejia over on the felony charge and it granted State’s motion to dismiss without prejudice the remaining charges against Mejia. State appealed. Mejia argued the State’s appeal in this criminal case was improper.
ISSUES: (1) State’s appeal; (2) K.S.A. 8-1567 and out-of-state convictions
HELD: State properly appealed the district court’s dismissal of the felony DUI charge. District court’s refusal to hold Mejia on that charge and its dismissal of the other charges brought the State within the scope of the statutory exception which allows State to appeal dismissal of the complaint. And State’s use of Mejia’s Missouri convictions as predicate offense under the Kansas statute does not rest on district court’s resolution of conflicting testimony or other disputed facts.
State properly relied on Mejia’s three Missouri convictions to charge him with felony violation of K.S.A. 8-1567. District court’s reliance on Wetrich is misplaced. Legislature amended K.S.A. 8-1567 post-Wetrich to permit charging and sentencing enhancements for DUIs based on out-of-state convictions under statutes comparable to Kansas law—meaning “similar to” rather than the same or narrower than Kansas law. Chapters 8 and 21, and use of the term “comparable,” are compared and contrasted in light of legislative policy behind escalating punishment of recidivist drunk drivers. A conviction from another state for driving under the influence may be used to enhance a DUI charge under K.S.A. 2019 8-1567 from a misdemeanor to a felony or to increase punishment of a recidivist, even though the other state’s statute proscribes a broader range of conduct. The two statutes need only be generally comparable as defined in K.S.A. 2019 Supp. 8-1567(j). The relevant Missouri statute in Mejia’s out-of-state convictions is similar to K.S.A. 8-1567, so these convictions support the felony charge. Reversed and remanded to reinstate the felony DUI charge.
DISSENT (Schroeder, J.): Would find Mejia’s prior Missouri DWI convictions cannot be used to enhance his charge to a felony DUI, and district court’s dismissal of the charge at the preliminary hearing was proper. Criticizes majority’s reasoning and resulting conclusion that the Wetrich line of cases is inapplicable to Kansas’ DUI law. Disagrees that the meaning of “comparable” in K.S.A. 2019 Supp. 8-1567(i)(3) is ambiguous on its face, thus there was no need for majority’s examination of legislative intent. Majority also ignores holding in State v. Gensler, 308 Kan. 674 (2017). Believes the identical to or narrower than approach must be followed to avoid running afoul of Apprendi and its progeny.
STATUTES: K.S.A. 2019 Supp. 8-1485, -1567, -1567(a), -1567(a)(1), 1567(a)(2), -1567(a)(3), -1567(b), -1567(b)(1)(A)-(E), -1567(i), -1567(i)(1), -1567(i)(2), -1567(i)(3), -(i)(3)(B), -1567(j), -1567(j)(1), 1567(i)(2), -1567(i)(3), 21-6801 et seq., -6811(e)(3), 22-3602(b)(1); K.S.A. 2018 Supp. 8-262, -1567, 1568; K.S.A. 2017 Supp. 8-1567(i)(1), 21-6811(e)(2)(A), -6811(e)(3); K.S.A. 8-1567, -1567(a), -1567(i), 1567(i)(3), -1567(j), 32-1102(a), -1131