NOT DESIGNATED FOR PUBLICATION
No. 124,088
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
CITY OF WICHITA,
Appellee,
v.
ALFRED OBIERO,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed May 27, 2022.
Reversed and remanded with directions.
Alfred Obiero, appellant pro se.
No appearance by appellee.
Before MALONE, P.J., ATCHESON and WARNER, JJ.
PER CURIAM: This case presents a procedural quagmire of sorts. After Alfred
Obiero was convicted of two municipal offenses in Wichita in 2015, he appealed those
convictions to the district court. Obiero ultimately pleaded guilty to those crimes and was
ordered to serve a jail term and pay a $100 fine and other court costs. Five years later,
when Obiero was serving a prison sentence in a different case, the City of Wichita
garnished his account with the Kansas Department of Corrections to pay part of his fine
and court costs from the 2015 case. Obiero moved to rescind the garnishment order,
claiming his convictions were void because the district court lacked jurisdiction to hear
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his appeal in 2015 because it was filed outside the statutorily permitted timeframe. The
district court denied Obiero's motion, and he appeals.
After carefully reviewing the record and Obiero's arguments, we find that the
district court based its decision on a mistake of law about when Obiero's sentence became
effective (and thus when the timeframe for filing an appeal began). We therefore reverse
the district court's judgment and remand the case for reconsideration of Obiero's
arguments under a correct understanding of the governing law.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2015, the City of Wichita charged Obiero in municipal court with
failure to comply with bond restrictions. The court found him guilty, sentenced him to jail
time, and ordered him to pay a $100 fine and $297 in court costs. The municipal court
journal entry notes Obiero's first appearance on January 5 and his arraignment on January
20, but the journal entry does not show the date the court pronounced Obiero's sentence.
Instead, the journal entry notes that the court stayed Obiero's sentence to April 16, 2015.
While his sentence was stayed, Obiero appealed his municipal convictions to the district
court, filing his notice of appeal on April 22. The notice of appeal left the date of the
municipal judgment blank.
The district court heard Obiero's appeal in May 2015. At that time, Obiero pleaded
guilty to the charged offense. The district court then imposed the same judgment ordered
by the municipal court—a six-month jail term, a $100 fine, and $297 in municipal court
costs. The district court's journal entry also ordered Obiero to pay the "booking fee,"
"appeal fee," and "any district court costs," but nothing in the record reflects a dollar
amount for these items or the total amount of the combined fine and costs Obiero was
required to pay.
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Obiero took no further action in the case and apparently completed his jail
sentence shortly after the sentencing hearing, as he received credit for the time he had
served since January 2015. There was no action in the case for the next five years.
In July 2020, a garnishment order was issued against Obiero for $310.13, the
amount remaining from the 2015 judgment. The garnishment order did not state what this
amount represented—whether it included the fine, municipal court costs, or district court
costs—or what the total amount of the judgment had been against Obiero, but it listed the
Sedgwick County District Court as the judgment creditor. Because Obiero was in prison
on an unrelated matter, the district court ordered the Kansas Department of Corrections to
garnish his inmate account, which held $68.22. A collection firm garnished this entire
amount for payment toward the 2015 judgment.
When this occurred, Obiero filed pro se motions to vacate his 2015 conviction,
rescind the garnishment, and reimburse the money taken from his inmate account. As the
basis for each of these requests, Obiero argued that the district court lacked jurisdiction
when it heard his 2015 appeal because the notice of appeal in that case (which he had
filed) was filed more than 14 days after sentencing. See K.S.A. 2020 Supp. 22-3609(b).
According to Obiero, this untimely notice rendered the district court's 2015 judgment
void, as it never acquired appellate jurisdiction over his case.
The district court held a hearing on these motions in late 2020. The court
recognized that neither the municipal court journal entry nor the original notice of appeal
included the date Obiero was sentenced. But the district court found that the missing date
did not render the appeal defective because Obiero's municipal-court sentence had been
suspended until April 16, 2015, and Obiero filed his notice of appeal within 14 days of
that date. Based on this reasoning, the district court concluded there was no jurisdictional
defect to Obiero's initial appeal and denied his motions.
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DISCUSSION
In his appeal, Obiero challenges only the district court's denial of his motion to
rescind the garnishment (not the district court's denial of his motion to vacate his
conviction). But the two claims are somewhat intertwined. Obiero contends that the date
the court used to determine whether the 2015 notice of appeal was timely—the date of
the stayed sentence, not the date the municipal court pronounced it from the bench—was
legally incorrect. He asserts that the correct date would render his 2015 notice of appeal
untimely, and thus the district court lacked jurisdiction to hear his municipal appeal.
Neither the City of Wichita nor the judgment creditor filed a brief.
When a defendant receives a conviction in municipal court, he or she can appeal
that judgment to the district court within "14 days after the date the sentence is imposed."
K.S.A. 2020 Supp. 22-3609(b). "No appeal shall be filed until after the sentence has been
imposed." K.S.A. 2020 Supp. 22-3609(b). And the timely filing of a notice of appeal is
jurisdictional. Albright v. State, 292 Kan. 193, Syl. ¶ 1, 251 P.3d 52 (2011). "Failure to
perfect an appeal from a municipal court conviction is a jurisdictional defect which
deprives the district court of jurisdiction to proceed with an appeal." City of Topeka v.
Ramos, 55 Kan. App. 2d 306, 308, 414 P.3d 255, rev. denied 308 Kan. 1593 (2018).
This appeal thus hinges on whether Obiero's municipal sentence was imposed
when the municipal court announced it from the bench—an unknown date—or, as the
district court found, the date of the stayed sentence. Like a state conviction, a municipal
conviction is effective when the court announces it. City of Lenexa v. Higgins, 16 Kan.
App. 2d 499, Syl. ¶ 1, 825 P.2d 1152, rev. denied 250 Kan. 804 (1992). The "time for
appeal under K.S.A. 22-3609[b] begins to run when [the] sentence is announced." 16
Kan. App. 2d 499, Syl. ¶ 2.
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When the municipal court stays the sentence to a later date, the date the court
announced the sentence—not the date of the stay—still controls for appeal purposes. See
City of Wichita v. Smith, 31 Kan. App. 2d 837, Syl. ¶ 2, 75 P.3d 1228 (2003)
("Suspending imposition of the sentence does not alter the effective date of sentencing.");
Higgins, 16 Kan. App. 2d at 499, 502. And the original sentencing date is the correct
measuring point, regardless of whether a defendant appeals to the district court or to this
court. Smith, 31 Kan. App. 2d at 839-40 (appealing municipal conviction from district
court to Court of Appeals).
Applying these principles here, the district court used the wrong date to analyze
Obiero's jurisdictional arguments. The fact that Obiero filed his notice of appeal within
14 days of the date the municipal court stayed his sentence is irrelevant. For the district
court to have had jurisdiction to hear Obiero's municipal appeal in 2015, he had to have
filed the notice of appeal within 14 days after the municipal court announced his sentence
from the bench.
Thus, the district court used the wrong date to calculate Obiero's appeal time, and
the case must be remanded for consideration of Obiero's arguments using the correct
sentencing date. Before concluding, however, we pause to highlight three matters that
must be resolved on remand.
First, the date the municipal court announced Obiero's sentence is unclear from
the record on appeal. In his brief, Obiero argues—based on notations on the journal entry
and inferences based on the timeline of the case—that the municipal court sentenced him
on April 2, 2015. But he acknowledges that the district court made no factual finding as
to the sentencing date. This date is necessary to determine when the appeal clock started
to run.
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Second, it is unclear from the caselaw whether Obiero may challenge the district
court's jurisdiction in 2015 by way of this garnishment proceeding—a collateral
procedure. Compare Smith v. State, 199 Kan. 132, 135, 427 P.2d 625 (1967), and In re
Elnicki, No. 107,107, 2013 WL 1444366, at *3 (Kan. App. 2013) (unpublished opinion)
(cannot attack a criminal sentence as void through a collateral challenge), with State v.
McCoy, No. 122,650, 2021 WL 1149180, at *2-4 (Kan. App. 2021) (unpublished
opinion) (attacking BIDS fee as void more than a decade after sentencing). It is similarly
unclear whether the district court may determine if the 2015 judgment is void (and thus
uncollectable) for purposes of the garnishment without affecting the validity of the
underlying convictions themselves. Accord Crist v. Hunan Palace, Inc., 277 Kan. 706,
718, 89 P.3d 573 (2004) (garnishment invalid in a civil case if underlying judgment void
for lack of subject matter jurisdiction).
Third, as we have noted, it is unclear from the garnishment order what specific
costs and fees the judgment creditor is collecting. The order merely states that Obiero
owes $310.13 to the Sedgwick County District Court. But these funds could include
various costs and fees. For instance, the municipal court ordered Obiero to pay a $100
fine, along with $297 in court costs. After his appeal, the district court ordered Obiero to
pay the $100 fine and $297 in municipal court fees, but it added a booking fee, appeal
fee, and unspecified district court costs. Identifying the specific source of the garnished
funds is important because it could render the jurisdiction issue moot; if the garnishment
was collecting municipal court costs, then it may not matter whether the district court had
appellate jurisdiction. But that determination cannot be made on the present record.
Because the district court erred by using the wrong date when it denied Obiero's
motion to rescind the garnishment, we reverse that decision. We remand the case for
further proceedings consistent with this opinion.
Reversed and remanded with directions.
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