Opinion
No. 110,958.
2014-12-12
In the Matter of Allen TODD, dob: xx–xx–1981.
Appeal from Wyandotte District Court; Wesley K. Griffin, Judge.Patricia Aylward Kalb, of Kansas City, for appellant.Logan McRae, assistant district attorney, and Jerome A. Gorman, district attorney, for appellee.
Appeal from Wyandotte District Court; Wesley K. Griffin, Judge.
Patricia Aylward Kalb, of Kansas City, for appellant. Logan McRae, assistant district attorney, and Jerome A. Gorman, district attorney, for appellee.
Before POWELL, P.J., LEBEN, J., and HERBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Allen Todd appeals from the juvenile court's order denying his motion to arrest judgment or, in the alternative, his motion to withdraw plea in his 1993 juvenile case where he pled guilty to aggravated sexual battery. In his motion, he argued the 1993 court lacked jurisdiction as the result of a defective complaint. The district court denied the motion, finding that it lacked jurisdiction over Todd because he was no longer a juvenile. Todd now urges us to reverse, consider the matter on the merits, and vacate his juvenile conviction due to defects in the 1993 complaint. Because we agree with the State that Todd lacks statutory authority to bring his appeal, we dismiss it.
Facts
In January 1993, Todd was charged in juvenile court with one count of aggravated criminal sodomy, a class B felony. Todd ultimately entered a guilty plea to an amended charge of aggravated sexual battery, a class D felony. At the arraignment hearing, the State amended its complaint by crossing out “criminal sodomy” and writing in “sexual battery.” Todd's attorney did not object to the amendment, Todd's plea was accepted, he was adjudicated guilty, and the sentence (completion of a sexual offender therapy program) was imposed on March 24, 1993. On March 26, 1993, the State filed a journal entry that recorded the amended plea.
On October 19, 2012, over 19 years later, Todd filed with the juvenile court a motion to arrest judgment or, in the alternative, a motion to withdraw plea, arguing the 1993 juvenile court lacked subject matter jurisdiction over him due to a defective complaint. Todd contended the complaint was defective because it did not apprise him of the elements of aggravated sexual battery, instead listing the elements of aggravated criminal sodomy. The juvenile court filed an order denying Todd's motion, relying on the recently unpublished opinion by another panel of our court, In re Elnicki, No. 107,107, 2013 WL 1444366, at # 2–3 (Kan.App.2013) (unpublished opinion). The court found it no longer had jurisdiction over Todd because he was no longer a juvenile.
Todd timely appeals.
Do We Have Jurisdiction Over Todd's Appeal?
The State argues we lack jurisdiction to consider this matter for two reasons: (1) The juvenile court correctly determined, relying on Elnicki, that it did not have jurisdiction over Todd because the Kansas Juvenile Justice Code (KJJC), K.S.A. 38–1601 et seq. (Furse 1993), in force at the time provided that jurisdiction ended when a juvenile turned 21 years old; and (2) our court lacks the statutory authority to consider an appeal of the juvenile court's order. In response, Todd contends: (1) Elnicki is an unpublished opinion and therefore is not binding; (2) Elnicki is distinguishable because of different circumstances; and (3) relying on State v. Portillo, 294 Kan. 242, 255, 274 P.3d 640 (2012), challenges to a court's subject matter jurisdiction may be raised at anytime. We consider the State's second point first.
Whether jurisdiction exists is a question of law subject to unlimited review. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012). If the district court lacks jurisdiction to enter an order, an appellate court does not acquire jurisdiction over the subject matter on appeal. State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).
The State argues we lack jurisdiction to hear this appeal because there is no express statutory authority for it. The State points to recent authority that juveniles may appeal only in two instances: (1) from an order authorizing prosecution as an adult or extended jurisdiction juvenile prosecution (inapplicable here) or (2) from orders of adjudication and sentencing. See K.S.A.2013 Supp. 38–2380(a), (b) (predecessor to K.S.A. 38–1681); In re D.M.-T., 292 Kan. 31, 33–34, 249 P.3d 418 (2011). The State contends that Todd's appeal is from the juvenile court's denial of a motion for arrest of judgment, not from an order of adjudication or sentencing.
We agree. Our Supreme Court has repeatedly emphasized, particularly in the context of juvenile cases, the right to appellate review is entirely statutory and any appeal from a juvenile court's order which lacks statutory authority is barred, regardless of the merits the appeal. 292 Kan. at 33; accord In re N.A.C., 299 Kan. 1100, 1106, 329 P.3d 458 (2014) (“Appellate courts have only such jurisdiction as is provided by law.”). Moreover, the court noted that juveniles did not have the same rights as adults and “juvenile procedures are not required to parallel adult criminal procedures.” In re D.M.-T., 292 Kan. at 35 (citing In re D.E.R., 290 Kan. 306, 311, 225 P.3d 1187 [2010] ). In D.M.-T., our Supreme Court held that it lacked jurisdiction to entertain an appeal from the district court's denial of a motion collaterally attacking the juvenile's adjudication and sentence. 292 Kan. at 35–36. Because Todd's motion amounts to a collateral attack on his juvenile adjudication some 19 years after the fact and his appeal is from the order denying this motion, In re D.M.-T. compels us to dismiss Todd's appeal.
However, Todd's motion is also couched in the alternative as a motion to withdraw plea, and our court has permitted appeals from denials of juvenile motions to withdraw pleas regardless of whether they were orders of adjudication or sentencing. See In re P.L.B., 40 Kan.App.2d 182, 187–88, 190 P.3d 274 (2008). In light of our duty to follow Supreme Court precedent under State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012), we question whether this practice is still valid given that In re D.M.-T. was decided after In re P .L.B. Moreover, Todd's motion to withdraw his plea comes well beyond the 1–year limit on such motions without any allegation of manifest injustice to explain a 19–year delay. See K.S.A.2013 Supp. 22–3210(e)(1); Elnicki, 2013 WL 1444366, at *2.
Given that we lack jurisdiction to consider Todd's appeal, it must be dismissed. All other issues raised in this appeal are moot.
Appeal dismissed.
* * *
LEBEN, J., concurring.
I concur in the effective result of this case, i.e., a ruling in which Allen Todd is unsuccessful on appeal. The jurisdictional question in this case seems a close one. Todd contends that the charging document in the juvenile proceeding was defective so that the court that entered the original juvenile adjudication against him was without subject-matter jurisdiction. That would make the adjudication void, and Kansas has long recognized that a void criminal judgment may be attacked at any time. See State v. Murray, 293 Kan. 1051, 1054, 271 P.3d 739 (2012).
But if we consider the merits of Todd's claim—that the charging document in juvenile proceeding was defective—it seems quite clear to me that he cannot succeed on the merits. Todd argues that the charging document didn't spell out one of the elements of aggravated sexual battery because it didn't explicitly talk about a lack of consent on the part of the victim or an intent to arouse or satisfy the sexual desires of the offender.
But each of these elements of the offense is implied in the charging document. The charging document listed the date of birth of Todd's victim, who was under the age of consent and thus incapable of consenting. And the charging document said that Todd engaged in oral or anal copulation with the victim, suggesting that he did so to arouse his sexual desires. A charging document must be “read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied.” State v. Micheaux, 242 Kan. 192, 199, 747 P.2d 784 (1987). Unless the defendant shows that the alleged defect prejudiced the preparation of a defense, limited the defendant's right to a fair trial, or impaired the defendant's ability to plead in a later prosecution, errors of form are not fatal. State v. Gracey, 288 Kan. 252, 254, 200 P.3d 1275 (2009). Todd has made none of those showings.
In sum, the jurisdictional issue presents a fairly close question, but Todd cannot win on appeal on the merits. In these circumstances, I would simply rule on the merits and affirm the district court's judgment, which denied relief. See Alvarado v. Holder, 743 F.3d 271, 276 (1st Cir.2014) (holding that court may “put aside ambiguous jurisdictional questions” under a statute “when precedent clearly dictates the result on the merits”); Sherrod v. Breitbart, 720 F.3d 932, 936–37 (D.C.Cir.2013) (holding that a court may presume jurisdiction and reach the merits when the answer to the merits issue is especially clear); Starkey ex rel. A.B. v. Boulder County Soc. Servs., 569 F.3d 1244, 1262–63 (10th Cir.2009) (declining to consider a jurisdictional question where the party claiming jurisdiction would clearly lose on the merits).