– State v. Smith –

IN THE SUPREME COURT OF THE STATE OF KANSAS

Nos. 115,321
115,322

STATE OF KANSAS,
Appellee,

v.

WESLEY A. SMITH JR.,
Appellant.

SYLLABUS BY THE COURT

1.
Under K.S.A. 22-3602(a), a Kansas appellate court does not have jurisdiction to
review a defendant's conviction from a guilty or nolo contendere plea. K.S.A. 22-3602(a)
makes clear that, regardless of this prohibition, a defendant may still file a motion in the
district court in accordance with the directives outlined in K.S.A. 60-1507, and appellate
courts have jurisdiction to review a defendant's appeal from a ruling on such a motion.

2.
One who pleads guilty or nolo contendere is not precluded by K.S.A. 22-3602(a)
from taking a direct appeal from the sentence imposed.

3.
A defendant who pleaded guilty or nolo contendere may still move to withdraw
the plea, and the Court of Appeals has jurisdiction to review a district court's denial of
that motion.

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 Review of the judgment of the Court of Appeals in an unpublished opinion filed January 26,
2018. Appeal from Sedgwick District Court; TERRY L. PULLMAN and DAVID J. KAUFMAN, judges.
Opinion filed January 31, 2020. Judgment of the Court of Appeals dismissing the appeal is affirmed.

Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the briefs
for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Wesley Smith pleaded guilty to refusing to submit to a test to
determine the presence of alcohol or drugs and driving while a habitual violator. In a
second case based on separate events, Smith again pleaded guilty to refusing to submit to
a test to determine the presence of alcohol or drugs and driving under the influence. In a
consolidated direct appeal to the Court of Appeals, Smith challenged his convictions,
arguing that the district court lacked jurisdiction to render them. The Court of Appeals
dismissed the appeal for lack of jurisdiction. We affirm.

FACTS AND PROCEDURAL HISTORY

In May 2014, in case 14CR1298 and in connection with events that occurred in
September 2013, the State charged Smith with refusing to submit to a test to determine
the presence of alcohol or drugs in violation of K.S.A. 2013 Supp. 8-1025, driving while
a habitual violator, and failing to signal while turning. Smith filed a motion to dismiss the
charge of refusal to submit to an alcohol or drug test, arguing that the statute
criminalizing such conduct was unconstitutional. The district court denied the motion.
Smith pleaded guilty to refusing to submit to an alcohol or drug test and driving while a

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habitual violator and, in exchange, the State dismissed the charge for failing to signal
while turning. The district court sentenced Smith to 12 months of jail time for the refusal
to submit to testing conviction and a concurrent 12 months of jail time for the habitual
violator conviction, to be followed by 12 months of postrelease supervision. The court
also imposed a $2,500 fine for the refusal to submit to testing conviction and a $500 fine
for the habitual violator conviction.

In January 2015, in case 15CR218 and in connection with events that occurred in
April 2014, the State charged Smith with refusing to submit to a test to determine the
presence of alcohol or drugs in violation of K.S.A. 2013 Supp. 8-1025, driving while a
habitual violator, and driving on the left half of the roadway. Smith again filed a motion
to dismiss the charge of refusal to submit to an alcohol or drug test, arguing that the
statute criminalizing such conduct was unconstitutional. The district court denied the
motion. Smith pleaded guilty to refusing to submit to an alcohol or drug test and driving
under the influence and, in exchange, the State dismissed the remaining charges. The
district judge sentenced Smith to 12 months in jail for each conviction and ordered the
sentences to run concurrently. The district court also imposed a $2,500 fine for each
conviction and ordered one year of postrelease supervision.

In November 2015, Smith appealed his convictions for refusing to submit to
testing in both cases. The Court of Appeals allowed a late appeal of his first case and
consolidated the two appeals into one.

On February 26, 2016, we issued an opinion in State v. Ryce, 303 Kan. 899, 368
P.3d 342 (2016), aff'd on reh'g 306 Kan. 682, 396 P.3d 711 (2107). There, we held that
K.S.A. 2014 Supp. 8-1025—the statute that criminalized refusing to submit to testing for
alcohol or drugs—was facially unconstitutional. 303 Kan. at 963. When Smith filed his
appellate brief, he relied on Ryce to argue that the court should vacate his convictions.

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 The State moved for involuntary dismissal of Smith's appeal, arguing that the
Court of Appeals lacked jurisdiction to consider a direct appeal from a guilty plea. Smith
responded in opposition. Both parties submitted briefs.

After considering the parties' briefs, the Court of Appeals dismissed the appeal in
an unpublished opinion, holding that it lacked jurisdiction to consider a direct appeal
from a guilty plea. State v. Smith, No. 115,321, 2018 WL 559804 (Kan. App. 2018). We
granted Smith's petition for review.

ANALYSIS

The Court of Appeals dismissed Smith's appeal without considering the merits of
his claim—that his convictions should be vacated based on the holding in Ryce—after
concluding that it lacked subject matter jurisdiction over the appeal. Smith argues the
panel had jurisdiction to review his claim.

This court reviews questions of subject matter jurisdiction de novo. Hill v. State,
310 Kan. 490, 498, 448 P.3d 457 (2019). To the extent this question requires the
interpretation of statutes, we apply a de novo analysis to that interpretation. State v.
LaPointe, 309 Kan. 299, 312, 434 P.3d 850 (2019).

"'Subject matter jurisdiction is the power of the court to hear and decide a
particular type of action.'" State v. Dunn, 304 Kan. 773, 784, 375 P.3d 332 (2016)
(quoting State v. Matzke, 236 Kan. 833, 835, 696 P.2d 396 [1985]). The Kansas
Constitution bestows subject matter jurisdiction upon Kansas courts. Dunn, 304 Kan.
at 811.

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 The Kansas Constitution provides that "[t]he judicial power of this state shall be
vested exclusively in one court of justice, which shall be divided into one supreme court,
district courts, and such other courts as are provided by law." Kan. Const. art. 3, § 1.
Pursuant to this provision, the Kansas Legislature created the Court of Appeals and
bestowed power upon it "over appeals in civil and criminal cases . . . as may be
prescribed by law." K.S.A. 20-3001. As a result of these constitutional and statutory
provisions, the Kansas Court of Appeals "may exercise jurisdiction only under
circumstances allowed by statute." Flores Rentals v. Flores, 283 Kan. 476, 481, 153
P.3d 523 (2007).

K.S.A. 22-3601 provides that "[a]ny appeal permitted to be taken from a district
court's final judgment in a criminal case shall be taken to the court of appeals, except in
those cases reviewable by law in the district court or in which a direct appeal to the
supreme court is required." K.S.A. 2018 Supp. 22-3601(a). Thus, the Court of Appeals
has jurisdiction to review criminal appeals that are "permitted to be taken from a district
court's final judgment." K.S.A. 2018 Supp. 22-3601(a).

K.S.A. 22-3602 discusses what appeals are "permitted." It provides that "[n]o
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. 2018 Supp. 22-3602(a).

This court has held that under this statute, the Court of Appeals is without
jurisdiction to consider the direct appeal of a conviction when a defendant pleaded guilty.
State v. Hall, 292 Kan. 862, 866, 257 P.3d 263 (2011). In this case, the Court of Appeals
relied on this statutory scheme and the cases from this court to dismiss Smith's appeal for
a lack of jurisdiction. Smith, 2018 WL 559804, at *3.

5
 Smith avers that the Court of Appeals erred when it came to this conclusion
because he is arguing that the district court lacked jurisdiction to convict him of a crime
under an unconstitutional statute and K.S.A. 22-3602(a) explicitly allows for appeals
based on jurisdictional grounds. He rests this contention on the language in the statute
providing that "except that jurisdictional or other grounds going to the legality of the
proceedings may be raised by the defendant." K.S.A. 2018 Supp. 22-3602(a).

Smith ignores the end of that sentence, which is "as provided in K.S.A. 60-1507
and amendments thereto." K.S.A. 2018 Supp. 22-3602(a). Thus, the full language of the
statute prohibits appeals from a conviction after a guilty plea but still allows a defendant
to challenge convictions based on jurisdiction or the legality of the proceedings "as
provided in K.S.A. 60-1507." The ignored language creates some ambiguity that we must
address.

The intent of the Legislature governs our interpretation of a statute. We give
common language its ordinary meaning and turn to canons of construction and legislative
history only when the language is ambiguous. Midwest Crane & Rigging, LLC v. Kansas
Corporation Comm'n, 306 Kan. 845, 850, 397 P.3d 1205 (2017).

The language in K.S.A. 22-3602 is unclear. It prohibits jurisdiction in the Court of
Appeals over an appeal from a guilty plea "except that jurisdictional or other grounds
going to the legality of the proceedings may be raised . . . as provided in K.S.A. 60-
1507." (Emphasis added.) K.S.A. 2018 Supp. 22-3602(a). The use of the word "except"
suggests that the Court of Appeals lacks jurisdiction to review a direct appeal from a
guilty plea in every situation other than those described in the language following the
word "except." See Webster's New World College Dictionary 505 (5th ed. 2014)
(defining "except" as "to take out"). At first blush, the language following the word

6
"except" seems to bestow jurisdiction in the Court of Appeals to review claims based on
"jurisdictional or other grounds going to the legality of the proceedings . . . ." But the
sentence continues, indicating that a defendant can raise those claims "as provided in
K.S.A. 60-1507." (Emphasis added.) K.S.A. 2018 Supp. 22-3602(a). This additional
language creates confusion because K.S.A. 60-1507 allows "[a] prisoner in custody . . .
claiming the right to be released" to "move the court which imposed the sentence to
vacate, set aside or correct the sentence," thus directing the defendant to file a motion in
district court. K.S.A. 60-1507(a).

We see two ways to read K.S.A. 22-3602. First, it may be interpreted to create
appellate jurisdiction over appeals from guilty or nolo contendere pleas as long as a
defendant is challenging his or her conviction or sentence based on jurisdiction, the
legality of the proceedings, or any of the claims that are permitted under K.S.A. 60-1507.
Claims permitted under K.S.A. 60-1507 are those asserting that a conviction or sentence
violates "the constitution or laws of the United States, or the constitution or laws of the
state of Kansas, or that the court was without jurisdiction to impose such sentence, or that
the sentence was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack." K.S.A. 2018 Supp. 60-1507(a); see also State v. Mitchell, 297 Kan.
118, Syl. ¶ 1, 298 P.3d 349 (2013) (describing K.S.A. 60-1507 as remedy for attacking
sentence or conviction).

There are problems with this construction. When construing a statute, we must
"consider various provisions of an act in pari materia with a view of reconciling and
bringing those provisions into workable harmony if possible." Northern Natural Gas Co.
v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106 (2013) (citing
Southwestern Bell Tel. Co. v. Beachner Constr. Co., 289 Kan. 1262, 1270, 221 P.3d 588
[2009]). We construe those provisions "to avoid unreasonable or absurd results, and we
presume the legislature does not intend to enact useless or meaningless legislation."

7
Northern Natural Gas Co., 296 Kan. at 918 (citing Southwestern Bell Tel. Co., 289 Kan.
at 1269; State v. Le, 260 Kan. 845, 850, 926 P.2d 638 [1996]).

If we construe K.S.A. 22-3602(a) to allow appeals from a guilty or nolo
contendere plea whenever a defendant challenges jurisdiction or the legality of the
proceedings, or raises any of the permissible claims in K.S.A. 60-1507, we render
meaningless some of the language in K.S.A. 22-3602. This statute explicitly prohibits
appeals from guilty or nolo contendere pleas. But if the language that follows that
prohibition allows appeals in each of the mentioned circumstances, we swallow up the
prohibition. While challenges based on jurisdiction may be limited, challenges that rest
on "the legality of the proceedings" or a conviction's vulnerability to "collateral attack"
would, arguably, be much more commonplace.

Such a construction would also render meaningless the language in K.S.A. 22-
3602(a) that specifically allows the defendant to raise challenges based on "jurisdictional
. . . grounds." K.S.A. 60-1507(a) also specifically allows for challenges based on a claim
that "the court was without jurisdiction." The first proposed construction makes one of
these provisions useless.

The second way to read K.S.A. 22-3602 is as a statute prohibiting appeals from
pleas but ensuring that "prisoner[s] in custody" are still able to file motions under K.S.A.
60-1507 in the district court and appeal rulings on that motion. K.S.A. 60-1507. We think
this construction correctly captures the Legislature's intent.

This construction gives meaning to all of the language in both statutes. It prohibits
direct appeals from guilty or nolo contendere pleas but it confirms that a defendant may
still file a motion in district court under K.S.A. 60-1507 and appeal from a judge's ruling

8
on that motion. The slim legislative history surrounding K.S.A. 22-3602 is not
particularly illuminating, but it does tend to support this construction.

Before 1970, the statute governing criminal appeals permitted "[a]n appeal to the
supreme court . . . by the defendant as a matter of right from any judgment against him."
K.S.A. 62-1701 (Corrick).

In 1970, the Legislature repealed this statute and enacted a new one. This new
statute created the prohibition on appeals from guilty or nolo contendere pleas:

"An appeal to the supreme court may be taken by the defendant as a matter of
right from any judgment against him 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,
except: No appeal shall be taken by the defendant from a judgment of conviction upon a
plea of guilty or nolo contendere: Provided, 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." K.S.A. 1970 Supp. 22-3601.

There is no helpful legislative history about this change. But in 1972, this court
interpreted this provision to "expressly preclude[] appellate review in criminal cases
where the defendant pled guilty after July 1, 1970," and it noted that issues raised by a
defendant who pled guilty concerning his or her conviction could be "raised and
adjudicated in a proceeding under K.S.A. 60-1507." State v. Dunham, 213 Kan. 469, 470-
71, 517 P.2d 150 (1972); see also State v. Mitchell, 210 Kan. 470, 471, 502 P.2d 850
(1972) (statute "expressly precludes appeals by persons who plead guilty, remitting those
who would assert claims like appellant's to their remedy under K.S.A. 60-1507").

In 1974, the Judicial Study Advisory Committee completed a report that described
the judicial system and made recommendations for its review. This committee was

9
appointed by the Kansas Supreme Court Chief Justice pursuant to legislative
authorization. Report of the Kansas Judicial Study Advisory Committee—
Recommendations for Improving the Kansas Judicial System, p. 273 (1974). See 13
Washburn L.J. 271 (1974). When describing Kansas Supreme Court jurisdiction, the
report stated:

"Any defendant who has been convicted upon a plea of not guilty may appeal as a matter
of right from any adverse judgment in the district court and upon appeal any decision or
intermediate order may be reviewed. No appeal may be taken by a defendant who has
pleaded guilty or nolo contendere, although such defendants may raise objections to the
jurisdiction of the court or legality of the proceedings in post conviction proceedings."
(Emphasis added.) Report of the Kansas Judicial Study Advisory Committee—
Recommendations for Improving the Kansas Judicial System, p. 321.

The use of the descriptor "post conviction proceedings" indicates that the
committee understood the statute to prohibit appeals from guilty or nolo contendere pleas
and to make clear that 60-1507 motions filed in the district court were not affected by that
prohibition. See Report of the Kansas Judicial Study Advisory Committee—
Recommendations for Improving the Kansas Judicial System, p. 343 (describing "cases
arising under K.S.A. 60-1507" as "post-conviction cases").

In 1975, the Legislature established the Kansas Court of Appeals and moved
K.S.A. 22-3601 to K.S.A. 22-3602(a). The new K.S.A. 22-3602(a) directed criminal
appeals to "the appellate court having jurisdiction of the appeal" rather than to "the
supreme court," as the previous statute had. L. 1975, ch. 178, §§ 21-22. This statute was
set to go into effect in 1977. Before it did, the Legislature amended the statute again. This
amendment resulted in the use of the word "except" to describe the circumstances left out
of the prohibition on appeals from guilty or nolo contendere pleas:

10
 "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 said
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, except that
no appeal shall be taken by the defendant from a judgment of conviction before a
district judge or associate 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." K.S.A. 1977
Supp. 22-3602(a).

The original bill responsible for the 1977 amendments made no changes to K.S.A.
22-3602(a). A senate committee amended the original bill to make the changes that the
Legislature eventually enacted. Professor Linda Elrod, who had worked on the bill with
Judicial Council, testified during a hearing in the House Judiciary Committee about the
original bill and the Senate's changes. The minutes state that Professor Elrod informed
the committee the changes "simply make[] it clear that these kinds of matters go to the
District Court before going to the Supreme Court." Hearing on S.B. 324 before the House
Judiciary Committee, March 17, 1977 (minutes describing Professor Elrod's testimony).

It is hard to glean much from this testimony, but it at least suggests that the new
use of the word "except" was not intended to change the substance of the statute. This
leads us to believe that this court's earlier interpretation of the statute in 1972 was correct.
Had the Legislature disagreed with this court's understanding that the statute prohibited
appeals from guilty or nolo contendere pleas while clarifying that a defendant could still
file a 60-1507 motion in district court, the Legislature could have changed the substance
of the statute. Its decision not to do so, in light of the ambiguity in the statute and this
court's interpretation of the statute, indicates agreement with this court's interpretation.

11
See Dunham, 213 Kan. at 470-71; Mitchell, 210 Kan. at 471; see also State v. Spencer
Gifts, 304 Kan. 755, 765, 374 P.3d 680 (2016) (legislative acquiescence can be indicative
of legislative intent).

Kansas appellate courts have continued to interpret the statute in this way, and the
Legislature has not corrected us. In 1977, the newly created Kansas Court of Appeals
held that it did not have jurisdiction of a defendant's appeal from a guilty plea, but that it
would have "appellate jurisdiction as to the lower court's ruling on defendant's 60-1507
motion." Esters v. State, 1 Kan. App. 2d 503, 504, 571 P.2d 32 (1977). The Court of
Appeals affirmed this interpretation recently in State v. Graham, No. 118,691, 2019 WL
1412594, at *5 (Kan. App. 2019) (unpublished opinion). There, a panel held that it did
not have jurisdiction to consider the defendant's appeal from his conviction after the
defendant pleaded guilty, even though the defendant argued he was challenging the
legality of the underlying proceedings. But, the panel noted, the defendant "could pursue
his claim in a K.S.A. 60-1507 motion, and he could appeal from any adverse ruling
because appeals from K.S.A. 60-1507 proceedings are not subject to the jurisdictional bar
at K.S.A. 2018 Supp. 22-3602(a)." 2019 WL 1412594, at *5.

We signaled our agreement with this interpretation in two recent cases. In Hall, a
defendant appealed his conviction after pleading guilty, arguing that he had not been
competent to plead guilty and that the judge had inadequately informed him of the
maximum penalty. This court held that it did not have jurisdiction to consider his appeal.
292 Kan. at 866 (citing State v. Campbell, 273 Kan. 414, 424-25, 44 P.3d 349 [2002],
which relied on K.S.A. 22-3602). This court explained that "[a] defendant cannot take a
direct appeal from a conviction flowing from a guilty plea. The right to take such a direct
appeal is one of the rights surrendered, usually in both a written plea agreement and in
open court when the plea is entered." Hall, 292 Kan. at 866. This court pointed out that
the defendant could have moved to withdraw his plea in the district court, and this court

12
would have had jurisdiction to review an appeal from a denial to withdraw a plea. But,
this court held, a "guilty plea without a subsequent motion to withdraw in the district
court deprives us of appellate jurisdiction." 292 Kan. at 867. And in State v. Reu-El, 306
Kan. 460, 478, 394 P.3d 884 (2017) (quoting K.S.A. 2016 Supp. 22-3602[a]), we
described the exception in K.S.A. 22-3602(a) as one "that allows collateral proceedings
going to 'the legality of the proceedings' even after a no contest plea." (Emphasis added.).

The Legislature has not amended K.S.A. 22-3602(a) in response to this
longstanding interpretation of the statute. This acquiescence, along with the principles of
construction described above, leads us to conclude that under K.S.A. 22-3602(a), Smith
would have been free to challenge his convictions via a motion in the district court
pursuant to K.S.A. 60-1507, but that the Court of Appeals did not have jurisdiction to
hear his complaints in a direct appeal from his plea.

Smith also advances some alternative arguments. First, he contends that K.S.A.
22-3504 bestowed jurisdiction in the Court of Appeals to review his appeal because it
allows a court to correct an illegal sentence at any time.

This argument carries no weight, because Smith is not challenging his sentence; he
is challenging his conviction. If Smith were challenging his sentence, he would not need
to rely on K.S.A. 22-3504. This court has held that "'one who pleads guilty or nolo
contendere is not precluded by K.S.A. 22-3602 from taking a direct appeal from the
sentence imposed.'" State v. Marinelli, 307 Kan. 768, 778, 415 P.3d 405 (2018) (quoting
State v. Harrold, 239 Kan. 645, 649, 722 P.2d 563 [1986]). Because Smith challenges his
conviction, not his sentence, this statute fails to establish appellate jurisdiction of his
direct appeal.

13
 Next, Smith argues that this court should adopt the holding of the United States
Supreme Court in Class v. United States, 583 U.S.__, 138 S. Ct. 798, 200 L. Ed. 2d 37
(2018), and conclude that the Court of Appeals had jurisdiction to review his claim.

In Class, the defendant pleaded guilty to "'Possession of a Firearm on U. S.
Capitol Grounds, in violation of 40 U.S.C. § 5104(e).'" 138 S. Ct. at 802. The defendant
immediately appealed his conviction, arguing that the statute criminalizing such conduct
was unconstitutional. The Court of Appeals for the District of Columbia Circuit held that
the defendant had waived his claim by pleading guilty. The United States Supreme Court
reversed, holding that a guilty plea, by itself, does not bar a federal criminal defendant
from challenging the constitutionality of the statute of conviction on direct appeal.
138 S. Ct. at 805.

Smith argues that the same rule the Court announced in Class "must apply in
Kansas." Smith fails to explain exactly why the rule must apply in Kansas, but it appears
his argument is this: The Class Court came to its holding because a district court has no
jurisdiction to convict a defendant based on an unconstitutional criminal statute. Because
the same is true in Kansas—the district court has no jurisdiction to convict a defendant
based on an unconstitutional criminal statute—the Kansas Court of Appeals must have
jurisdiction to consider an appeal when the defendant challenges the constitutionality of
the statute of conviction.

Smith's argument is unconvincing. He disregards the significant differences
between the rules governing federal appellate jurisdiction and Kansas appellate
jurisdiction. In doing so, he leaves out important points of the Class reasoning that make
it inapplicable to Kansas law.

14
 The United States Constitution vests "[t]he Judicial Power of the United States . . .
in one supreme Court, and in such inferior Courts as the Congress may from time to time
ordain and establish." U.S. Const. art. III, § 1. Thus, like in Kansas, appellate jurisdiction
in the federal system is derived from statute.

28 U.S.C. § 1291 (2012) establishes the power of the federal Courts of Appeals. It
provides:

"The courts of appeals (other than the United States Court of Appeals for the
Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district
courts of the United States, the United States District Court for the District of the Canal
Zone, the District Court of Guam, and the District Court of the Virgin Islands, except
where a direct review may be had in the Supreme Court. The jurisdiction of the United
States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction
described in sections 1292(c) and (d) and 1295 of this title."

In contrast to Kansas law, there is no explicit statutory bar to appealing a federal
conviction after a guilty plea. But the United States Supreme Court has held that a guilty
plea generally results in the waiver of the right to appeal a conviction. The Court has
explained:

"A plea of guilty and the ensuing conviction comprehend all of the factual and
legal elements necessary to sustain a binding, final judgment of guilt and a lawful
sentence. Accordingly, when the judgment of conviction upon a guilty plea has become
final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to
whether the underlying plea was both counseled and voluntary. If the answer is in the
affirmative then the conviction and the plea, as a general rule, foreclose the collateral
attack. There are exceptions where on the face of the record the court had no power to
enter the conviction or impose the sentence." United States v. Broce, 488 U.S. 563, 569,
109 S. Ct. 757, 102 L. Ed. 2d 927 (1989).

15
 The Court based this rule on the nature of the guilty plea, not an explicit legislative
directive. An admission of guilt, so long as it was knowing and voluntary, renders any
inadequacies in the proceedings irrelevant. See Menna v. New York, 423 U.S. 61, 62 n.2,
96 S. Ct. 241, 46 L. Ed. 2d 195 (1975) ("A guilty plea . . . renders irrelevant those
constitutional violations not logically inconsistent with the valid establishment of factual
guilt and which do not stand in the way of conviction, if factual guilt is validly
established.").

The Class Court acknowledged these principles before considering whether the
defendant had waived his right to challenge his conviction on appeal based on an
argument that his admitted conduct did not constitute a crime. After reviewing his plea
agreement and concluding that he had not explicitly waived that right, the Court held that
the defendant could make such a challenge on appeal. His claim did not "focus upon
case-related constitutional defects that '"occurred prior to the entry of the guilty plea"'"
and would have been "'irrelevant to the constitutional validity of the conviction.'" Class,
138 S. Ct. at 804-05 (quoting Blackledge v. Perry, 417 U.S. 21, 30, 94 S. Ct. 2098, 40 L.
Ed. 2d. 628 [1974], and Haring v. Prosise, 462 U.S. 306, 321, 103 S. Ct. 2368, 76 L. Ed.
2d 595 [1983]). Rather, the defendant's claim "call[ed] into question the Government's
power to '"constitutionally prosecute him."'" Class, 138 S. Ct. at 805 (quoting Broce, 488
U.S. at 575).

This description of Class and federal appellate jurisdiction shows that the
reasoning in Class has no applicability in Kansas. Pursuant to statute, the Kansas Court of
Appeals has no power to hear appeals from a conviction after a defendant pleads guilty.
K.S.A. 22-3602(a). In contrast, federal appellate courts do have jurisdiction to hear
appeals from a conviction after a defendant pleads guilty or nolo contendere. They
generally do not hear these appeals, but only because the defendant has implicitly waived
most of his or her potential arguments—not because the court has no power to do so.

16
 In Kansas, there is an explicit statutory rule prohibiting appellate review of a
conviction when a defendant pleads guilty. We cannot adopt the Class reasoning in
Kansas so long as this statutory bar to appellate jurisdiction exists. Smith's argument
fails.

Finally, Smith argues that the Court of Appeals has jurisdiction to consider his
appeal because a conviction based on activity that is not a crime is void, and courts have
no power to leave a void judgment in place.

Smith rests this argument on some legal truth. In 1903, the Kansas Supreme Court
observed that "an unconstitutional law is a nullity—is no law at all—and . . . a conviction
under it is not merely erroneous, but void, and subject to collateral attack upon habeas
corpus." In re Jarvis, 66 Kan. 329, 331, 71 P. 576 (1903). It has also noted that "'[a]
conviction in a court that lacks jurisdiction is void.'" State v. Elliott, 281 Kan. 583, 585,
133 P.3d 1253 (2006).

General considerations for justice suggest that there must be some way to vacate a
void conviction. Smith insists that the way to do this is through the direct appeal. But
Smith has not offered any persuasive support for this assertion. He simply argues that a
court has "no power to leave the conviction in place." Appellate jurisdiction does not
work this way; it is entirely statutory, thus requiring an explicit grant of power in an
appellate court. As we have discussed, there is no appellate jurisdiction when a defendant
pleaded guilty. This result is unsettling, because it suggests there is no way to vacate a
void conviction.

But Smith has two possible avenues for seeking relief in his case. While he was
serving his sentence, he could have filed a motion in the district court under K.S.A. 60-
1507. Because he is no longer serving his sentence, this avenue is foreclosed to him. See

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Mundy v. State, 307 Kan. 280, 286, 408 P.3d 965 (2018) (court has subject matter
jurisdiction to consider motion under 60-1507 only when motion filed by prisoner in
custody). However, a second avenue is still available to Smith—he can move to withdraw
his plea. K.S.A. 2018 Supp. 22-3210(d)(2) allows a court to "set aside the judgment of
conviction and permit the defendant to withdraw the plea" after sentence to "correct
manifest injustice." If Smith files a motion to withdraw his plea, and the district court
denies the motion, the Court of Appeals will have jurisdiction to consider an appeal from
that denial. See State v. Solomon, 257 Kan. 212, 219, 891 P.2d 407 (1995).

None of Smith's arguments convince us that the Court of Appeals erred when it
dismissed his appeal for lack of jurisdiction. K.S.A. 22-3602(a) explicitly provides that a
defendant cannot appeal a conviction after pleading guilty. K.S.A. 22-3504 allows
appeals of sentences, not convictions, and the federal caselaw allowing for direct appeals
after guilty pleas in certain situations is inapplicable here. Finally, Smith's convictions
may be challenged in other ways, so notions of justice do not demand appellate
jurisdiction.

The Court of Appeals is affirmed.

MICHAEL J. MALONE, District Judge Retired, assigned.1

1
REPORTER'S NOTE: Retired District Judge Malone was appointed to
hear case Nos. 115,321 and 115,322 under the authority vested in the
Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the
retirement of Justice Lee A. Johnson.

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