Opinion
112,217.
07-24-2015
Spencer ADAMS, Appellant, v. STATE of Kansas, Appellee.
Michael G. Highland, of Bonner Springs, for appellant. Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Michael G. Highland, of Bonner Springs, for appellant.
Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., SCHROEDER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This case comes before the court on Spencer Adams' attempt to appeal from the denial of his K.S.A. 60–1507 motion. The district court denied Adams' motion to appeal out of time, apparently finding it untimely. We hold that Adams' motion to appeal out of time filed on December 12, 2013, served as a timely notice of appeal.
Because the sole questions on appeal are procedural, we find it unnecessary to set forth the underlying facts relating to Adams' criminal acts. After Adams' direct appeal was denied, see State v.. Adams, No. 106,059, 2012 WL 4677843 (2012), rev. denied 297 Kan. 1247 (2013), Adams filed a pro se 60–1507 motion claiming ineffective assistance of counsel, trial errors, and a due process violation. On November 8, 2013, the district court summarily denied that 60–1507 motion. The record reflects that the district court mailed his memorandum decision denying Adams' 60–1507 motion to Adams at the Ellsworth Correctional Facility.
On December 12, 2013, Adams filed a pro se “motion to file notice of appeal out of time” to which the State did not respond. Adams alleged that he had received on November 12, 2013, the memorandum decision denying his 60–1507 motion. Adams further alleged that he had prepared a separate notice of appeal and had previously mailed it to an assistant district attorney, but the date of that mailing is unclear and Adams was unsure whether the assistant district attorney had timely forwarded that notice of appeal to the district court clerk. Adams, erroneously believing that he had only 10 days in which to file his appeal, asked the district court to honor his request to file out of time in order for him to exercise his constitutional right to protect himself from wrongful prosecution. Adams' certificate of service shows that on December 9, 2013, he mailed the assistant district attorney a copy of his motion to file notice of appeal out of time, but it does not show service on the district court clerk. Nonetheless, the docket reflects that Adams' motion to appeal out of time was filed by the clerk on December 12, 2013.
On March 10, 2014, Adams filed a pro se notice of appeal, stating:
“The petitioner is now requesting for this court to permit the petitioner to file this notice of appeal of the denial of the petitioner's 60–1507 petition. The petitioner filed a motion to appeal out of time, and failed to send the district court his formal notice of appeal.
However, the petitioner is requesting to appeal the denial at this present time. ”
On April 28, 2014, the district court summarily denied the motion to appeal out of time, finding “no exceptional circumstances,” and Adams did not file another notice of appeal.
Adams asks the court to find that he timely filed a notice of appeal of the denial of his 60–1507 motion. But his notice of appeal filed March 10, 2014, was untimely since it was not filed within 30 days of the court's November 8, 2013, denial of his 60–1507 motion. See K.S.A.2014 Supp. 60–2103(a) ; Albright v. State, 292 Kan. 193, 197, 251 P.3d 52 (2011).
Adams also asks this court to construe his motion to appeal out of time filed on December 12, 2013, as a notice of appeal. The State does not dispute that this motion could serve as a notice of appeal. We liberally construe pro se pleadings, “giving effect to the pleading's content rather than the labels and forms used to articulate the arguments.” State v. Gilbert, 299 Kan. 797, Syl. ¶ 4, 326 P.3d 1060 (2014). In that motion, Adams clearly indicated an intent to appeal. He specified the parties taking the appeal and the judgment or part thereof appealed from, as required by K.S.A.2014 Supp. 60–2103(b).
He did not name the appellate court to which the appeal is taken, as required by that statute, but this is not fatal because there is only one court to which his appeal could be taken and there is no showing the State was misled. See K.S.A.2014 Supp. 60–2102(a)(2) ; City of Ottawa v. McMechan, 17 Kan.App.2d 31, 32, 829 P.2d 927 (1992).”[T]he modem code of civil procedure was not designed to make the requirements of a notice of appeal more technical and burdensome and ... a liberal construction is called for in order to secure the just, speedy, and inexpensive determination of every action or proceeding.” Tullis v. Pittsburg State Univ., 28 Kan.App.2d 347, 348–49, 16 P.3d 971 (2000) (citing Hess v. St. Francis Regional Med. Center, 254 Kan. 715, 720, 869 P.2d 598 [1994] ). Accordingly, we construe his motion to appeal out of time as a notice of appeal.
The State's sole developed argument is that Adams' December 12, 2013, filing, if construed as a notice of appeal, was untimely since it was 1 day late. Adams had 30 days from the entry of judgment on November 8, 2013, to file a notice of appeal. K.S.A.2014 Supp. 60–2103(a). Excluding the day judgment was entered and counting 30 days, K.S.A.2014 Supp. 60–206(a)(1)(A)–(B), we find the appeal was due on December 8, 2013, as the State contends. But the State has overlooked that December 8, 2013, was a Sunday, so the time is extended to the next day. See K.S.A.2014 Supp. 60–206(a)(l)(C). Adams' notice of appeal was thus due no later than December 9, 2013 under subsection (a).
Adams' motion to appeal out of time was not filed until 3 days later-December 12, 2013. But Adams was entitled to an additional 3 days after December 9, 2013, because the district court's denial of the 60–1507 was served on Adams by mail. See K.S.A.2014 Supp. 60–206(d) (adding three days after the time calculated under 60–206[a] would otherwise expire, when service is made by mail). Adams' motion to appeal out of time was thus timely filed.
Alternatively, the parties agree that Adams, acting pro se, was imprisoned at the El Dorado Correctional Facility on and immediately before December 9, 2013. As the State acknowledges, “under the prison mailbox rule, a habeas petition is considered filed when it is delivered to prison authorities for mailing—not on the date it is eventually filed with the court clerk—since those prison authorities control what happens after the paper is delivered to them. [Citations omitted.]” Sauls v. McKune, 45 Kan.App.2d 915, 916, 260 P.3d 95 (2011). This same rule applies to the filing of notices of appeal from decisions in habeas cases. See Houston v. Lack, 487 U.S. 266, 271, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) ; Wilson v. State, 40 Kan.App.2d 170, 175, 192 P.3d 1121, (2008). Adams' certificate of service shows he delivered his motion to appeal out of time on December 9, 2013, for mailing, making it timely.
In sum, we find that Adam's motion to appeal out of time filed on December 12, 2013, served as a timely notice of appeal. Adams shall have 21 days following the issuance of the mandate on appeal to docket his appeal in compliance with Supreme Court Rules 2.04 (2014 Kan. Ct. R. Annot. 15) and 2.041 (2014 Kan. Ct. R. Annot. 17). The district court's judgment is reversed.
Reversed.