Opinion
112,320.
08-14-2015
CITY OF SALINA, Appellee, v. Jason Edward COOPER, Appellant.
Michael S. Holland II, of Holland and Hidland, of Russell, for appellant. Jacob E. Peterson, of Clark, Mize & Linville, Chartered, of Salina, for appellee.
Michael S. Holland II, of Holland and Hidland, of Russell, for appellant.
Jacob E. Peterson, of Clark, Mize & Linville, Chartered, of Salina, for appellee.
Before PIERRON, P.J., McANANY, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jason Edward Cooper appeals the dismissal of his appeal from the Salina County Municipal Court after his convictions for his second driving under the influence (DUI), refusal to submit to a preliminary breath test, failure to provide proof of insurance, failure to stop, operating a vehicle without two working taillights, disturbing the peace, and refusal of an alcohol or drug test. The district court ruled that Cooper had failed to pay the appearance bond and dismissed the case for lack of jurisdiction.
Factual and Procedural Background
On October 10, 2013, Cooper was arrested for a second DUI, failure to submit to a preliminary breath test, failure to provide proof of insurance, failure to stop, operating a vehicle without two working taillights, disturbing the peace, and refusal of an alcohol or drug test when previously convicted of DUI. On February 27, 2014, Cooper pled guilty to all counts in municipal court. Cooper was sentenced to a jail term of 1 year for the DUI, 90 days for refusal of an alcohol or drug test when previously convicted of DUI, and 5 days for no insurance. His sentence was suspended and supervised parole granted after he served 5 days in jail. Additionally, various fines were imposed as part of his sentence, totaling $3,205.
The municipal court judge required an appearance bond in the amount of $3,205, plus $94.50 cash. Cooper filed a timely notice of appeal. In the notice of appeal, Cooper requested a jury trial under K.S.A.2014 Supp. 22–3609(4). However, Cooper did not post the appearance bond required by the judge under K.S.A.2014 Supp. 22–3609(2). He also did not file any type of motion or attempt to pay a lesser amount.
On April 24, 2014, the City filed a motion to dismiss the appeal on the basis that the district court lacked jurisdiction because Cooper failed to file an appearance bond within 14 days of judgment as required by K.S.A.2014 Supp. 22–3609(2). On May 13, 2014, Cooper filed a response to the City's motion to dismiss, attaching an affidavit that he was financially unable to pay the bond within the time allowed. Cooper asserted that the court's requirement of the bond was excessive, denying him the constitutional right to a jury trial and rendering his statutory right to a de novo hearing before the district court moot because he was unable to pay the bond.
In the hearing on the motion to dismiss on July 8, 2014, the City remarked that a defendant has other options than posting bond within 14 days and can request poverty hearings or submit poverty affidavits to the municipal court for a waiver or lowering of the bond. Cooper argues that at the time of sentencing, he requested an OR bond and a surety bond but was denied by the municipal court judge. There is support in the record that this occurred, but a bond was not posted; and apparently, the district court noted that the issue “about the bond was not raised of record.”
After hearing the parties' arguments, the district court dismissed the appeal for lack of jurisdiction. The court relied on our court's holding in City of Dodge City v. Olivas, No. 109,782, 2014 WL 2224686 (Kan.App.2014) (unpublished opinion), petition for rev. filed June 5, 2014, and stated: “[I]t is the exact same facts as we're dealing with in this case.” The court concluded that the district court lacked jurisdiction to consider the appeal from the municipal court conviction based on Cooper's failure to pay the appearance bond within 14 days of judgment. See K.S.A.2014 Supp. 22–3609(2).
Cooper filed a timely notice of appeal.
Analysis
Did the municipal court deny Cooper's constitutional right to a jury trial by setting an appearance bond that Cooper was unable financially to pay ?
Cooper argues that the municipal court violated his constitutional right to a trial by jury by setting an appearance bond that he was unable to pay. He claims that the district court should not have found that some sort of good faith was required, such as posting a lesser amount. The City maintains that the district court's dismissal was correct because Cooper failed to post an appearance bond and made no effort to partially satisfy the bond or file a motion to reduce the amount due to indigency.
Jurisdiction is a question of law over which the appellate courts exercise unlimited review. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012). To the extent this case involves statutory interpretation, the appellate courts also exercise unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12, cert. denied 135 S.Ct. 91 (2014).
K.S.A.2014 Supp. 22–3609(1) provides for the defendant's right to appeal a judgment of the municipal court to the district court when the defendant is guilty of violating a municipal ordinance. K.S.A.2014 Supp. 22–3609(2) states the procedure for perfecting an appeal:
“An appeal to the district court shall be taken by filing, in the district court of the county which the municipal court is located, a notice of appeal and any appearance bond required by the municipal court.... No appeal shall be taken more than 14 days after the date the sentence is imposed.”
Failure to follow these provisions is a jurisdictional defect that deprives the district court of jurisdiction to proceed with the appeal. See City of Overland Park v. Barron, 234 Kan. 522, 526–27, 672 P.2d 1100 (1983) ; City of Dodge City v. Reyes, 35 Kan.App.2d 756, 758, 133 P.3d 1291 (2006).
Cooper has a constitutional right to a trial by jury. He was charged with a Class A nonperson misdemeanor, which has a possible sentence of 1 year. A defendant has a right to a jury trial when the defendant has potential imprisonment exceeding 6 months. State v. Johnson, 46 Kan.App.2d 387, 398, 264 P.3d 1018 (2011), rev. denied 293 Kan. 1111 (2012); State v. Jones, 19 Kan.App.2d 982, 983–84, 879 P.2d 1141 (1994).
This court recently addressed the issue raised by Cooper in Olivas. In Olivas, the defendant was charged with his second DUI, refusal to take a chemical breath test, disobeying a stop sign, refusal to take a preliminary breath test, and an illegal vehicle tag. The municipal court required a $3,030.50 cash appearance bond. The district court determined that the bond was excessive, but the defendant's failure to even attempt to comply with the jurisdictional requirements of K.S.A.2013 Supp. 22–3609(2) (same as 2014 version) by posting an appearance bond prevented him from pursuing his appeal due to a lack of jurisdiction. Olivas, 2014 WL 2224686, at *2–3.
Cooper cites Jones and Johnson to support his argument that an individual cannot lose their constitutional right to a jury trial due to their failure to comply with technical portions of a procedural statute, but these cases are distinguishable. In Jones, the court determined that Jones' failure to demand a jury trial within 7 days for a misdemeanor and traffic offense did deny his right to a jury trial because he had to first be advised by the court of that right and then personally waive it in writing or in open court for the record. Jones, 19 Kan.App.2d 982. In Johnson, the defendant's counsel, rather than the district court, advised him of his right to a jury trial. The Johnson court held that the defendant could not effectively waive this right since he had not been advised of the right by the court. 46 Kan.App.2d 398–400.
In Olivas, a panel of this court distinguished Jones, reasoning that “Jones did not involve the fundamental subject matter jurisdiction of the court to hear the case.” 2014 WL 2224686, at *2. Similarly, Johnson also did not involve the issue of jurisdiction, but rather the issue of whether there was an affirmative waiver of a right to a trial by jury. Neither case is applicable.
In addition, in order to timely assert a constitutional claim of an excessive bond, the defendant must make such a claim pr or to the expiration of the 14–day time period to perfect the appeal. See K.S .A.2014 Supp. 22–3609(2). Even issues affecting one's constitutional rights may be waived in the absence of a proper, timely objection. See State v. Womelsdorf, 47 Kan.App.2d 307, 320, 274 P.3d 662 (2012), rev. denied 297 Kan. 1256 (2013).
Cooper failed to make such a timely and proper objection or take any action in an attempt to comply with K.S.A.2014 Supp. 22–3609(2). Cooper argues that he could not know what lesser amount would establish a good-faith attempt. This court previously deemed paying a portion of the amount of the bond sufficient. See Reyes, 35 Kan.App.2d at 757–60 (district court had proper jurisdiction even though defendant only paid $131.50 of a $1,315 cash appearance bond and the bond was missing a signature). Yet, Cooper did not make any attempt until after the City filed its motion to dismiss, surpassing the 14–day requirement by 2 months. In his response, Cooper did include a supporting poverty affidavit to show his indigency; but he failed to pursue any alternate options, such as requesting a poverty hearing or filing a motion objecting to the amount. After his 14 days expired, the district court lost jurisdiction, and the court had a duty to dismiss the appeal. See State v. Ji, 255 Kan. 101, 102–03, 872 P.2d 748 (1994).
Here, the district court and Cooper agreed that the two cases had the same facts. The district court correctly followed the Olivas decision by dismissing the appeal. There was no finding here that the bond was excessive. Regardless, an issue about the bond was not raised within the required 14 days. K.S.A.2014 Supp. 22–3609(2) provides sufficient notice that some action is required to satisfy the appearance bond. The district court correctly dismissed the case after Cooper made no attempt to satisfy the requirements of K.S.A.2014 Supp. 22–3609(2) within the 14 days allowed to perfect an appeal to the district court.
Affirmed.