State v. Green

Schroeder, C.J.,

dissenting: The statutory scheme of the Legislature is clear and the Supreme Court has no jurisdiction to hear this appeal.

The factual situation presented by the record in this case is simple and, assuming jurisdiction, presents an issue as to whether the trial court abused the exercise of its power of discretion in sentencing the defendant in accordance with the statutory scheme and in denying probation. While it may be said the facts are immaterial and irrelevant to a determination of the jurisdictional issue in this case, the facts are vitally important to analyze what the court has done by assuming jurisdiction.

Here the court must apply a tortured construction to the language in K.S.A. 22-3602(a) to permit an appeal by the defendant after he pleads guilty to the charges against him. The specific language of the statute applicable herein is: “[E]xcept 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.” (Emphasis added.)

The language above quoted simply says without equivocation or ambiguity that what the defendant attempts to raise by this appeal must be raised by a proceeding under K.S.A. 60-1507. That statute reads:

“Prisoner in custody under sentence, (a) Motion attacking sentence. A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of 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, may at any time move the court which imposed the sentence to vacate, set aside or correct the sentence.
“(b) Hearing and judgment. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall *1013cause notice thereof to be served upon the county attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. The court may entertain and determine such motion without requiring the production of the prisoner at the hearing. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence said prisoner or grant a new trial or correct the sentence as may appear appropriate.
“(c) Successive motions. The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.
“(d) Appeal. An appeal may be taken to the appellate court as provided by law from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.
“(e) Exclusiveness of remedy. An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced said applicant, or that such court has denied said applicant relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the.legality of said applicant’s detention.”

See the numerous citations in the annotation following K.S.A. 60-1507.

The madness of indigent criminal defendants, who have a constitutional right to appointed counsel that are paid by the taxpayers of the state, to appeal must be curbed and curtailed as the Legislature intended. These criminal defendants have nothing to lose by an appeal, if permitted, and in reality do nothing more than lash out at society again by forcing the expenditure of public funds.

Once the Supreme Court establishes jurisdiction to appeal from a conviction resulting from a plea of guilty or nolo contendere, every attorney appointed to represent an indigent criminal defendant where conviction results from a plea of guilty or nolo contendere will be required to appeal if the attorney is to avoid the charge of incompetence by that defendant in a subsequent K.S.A. 60-1507 proceeding. It is simply a part of the legal maneuvering to exhaust state remedies before the indigent defendant proceeds with further challenges in the federal courts. What the court has done is to proliferate costly appeals to the appellate courts adding to the congestion the Legislature sought *1014to avoid, contrary to the avowed purpose of the decision by the majority where it is stated in the opinion: “[T]he result will be simplicity in procedure and the elimination of unjustifiable expense and delay.” What the court is doing by this decision is providing a welfare program for attorneys at state expense. The provisions of K.S.A. 1982 Supp. 60-2007 are not applicable to criminal actions or proceedings brought under K.S.A. 60-1507 to prevent frivolous claims in court proceedings.

The dicta contained in State v. Reeves, 232 Kan. 143, 652 P.2d 713 (1982) (where jurisdiction was not raised by the parties); and State v. Yost, 232 Kan. 370, 654 P.2d 458 (1982); coupled with State v. Coe, 223 Kan. 153, 574 P.2d 929 (1977); and State v. Buckner, 223 Kan. 138, 574 P.2d 918 (1977), does not stand for the proposition that every sentence in excess of the minimum, or where probation is denied, is appealable on the ground that the trial court abused the exercise of its power of discretion, particularly after a plea of guilty or nolo contendere.

The provisions of K.S.A. 22-3602(a) here applicable were first enacted by the Legislature in 1976 amending 3602(a), and made effective January 10, 1977, which corresponded with the establishment of the Kansas Court of Appeals and the relaxation of the rules permitting appeals to the appellate courts (L. 1976, ch. 167).

This court without statutory guidance established on its own the rule set forth in State v. Benson, 207 Kan. 453, 485 P.2d 1266 (1971). There the court adhered to the case law and the probation statute as it previously existed, holding that the granting or termination of a parole by the trial court was not subject to review by an appellate court. In the opinion the court said:

“The granting and revocation of probation is a matter entrusted by the legislature to the trial court and should remain there. An appellate court has no personal contact with an applicant for probation and is in no position to evaluate and determine the necessary factors upon which any probation should be based. Probation is a continuing relationship requiring constant supervision. This an appellate court cannot provide.
“The granting of probation is exclusively a function of the trial court and we hold a decision of the trial court denying probation is not subject to review by an appellate court.” p. 458.

Cases from other jurisdictions and the American Bar Association Standards for Criminal Justice Relating to Appellate Review of Sentences cited in the majority opinion are irrelevant. Our *1015Legislature has specifically dealt with the subject regarding appeals where a conviction results from the entry of a plea of guilty or nolo contendere by a defendant in a criminal action. K.S.A. 22-3602(c). The Legislature made provision for review of sentences in the sentencing court by proceedings under K.S.A. 60-1507 from which appeals can be taken to the appellate courts.

It is respectfully submitted the Legislature granted no jurisdiction for the court to entertain this appeal,

McFarland, J., dissenting: In State v. Mitchell, 210 Kan. 470, 502 P.2d 850 (1972), this court held:

“The supreme court has only such appellate jurisdiction as is conferred by statute pursuant to Art. 3, § 3, of the Constitution, and when the record discloses lack of jurisdiction it is the duty of the supreme court to dismiss the appeal.
“K.S.A. 1972 Supp. 22-3601 precludes appellate review in criminal cases where the defendant pleaded guilty after July 1, 1970.” Syl, ¶¶ 1 and 2.

The majority apparently believes fancied convenience and expediency are substitutes for jurisdiction. I do not agree. I would dismiss the appeal.