Opinion
No. 108,332.
2013-08-2
Cedric PETERSON, Appellant, v. STATE of Kansas, Appellee.
Appeal from Geary District Court; David R. Platt, Judge. Sam S. Kepfield, of Hutchinson, for appellant. Michelle L. Brown, assistant county attorney, Steven L. Opat, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Geary District Court; David R. Platt, Judge.
Sam S. Kepfield, of Hutchinson, for appellant. Michelle L. Brown, assistant county attorney, Steven L. Opat, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., POWELL, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Cedric Peterson claims the district court erred when it dismissed his habeas corpus motion and refused to allow him to withdraw his no contest plea to first-degree murder. Caselaw advises us that a prisoner's lawsuit is considered filed when it is delivered to prison authorities for mailing. Further, a prisoner's failure to pay the $3 minimum docket fee does not bar an otherwise timely filing of a habeas corpus motion. Under the facts of this case, Peterson mailed his habeas corpus motion before the expiration of the 1–year time limit. His $3 fee was forwarded in due course from his prison account 3–4 weeks later. Thus, Peterson timely filed his motion. Because we hold that Peterson's habeas corpus motion was timely filed when it was delivered to prison authorities for mailing, we reverse the dismissal of that motion and remand to the district court to consider its merits.
Additionally, we dismiss for lack of jurisdiction that portion of Peterson's appeal dealing with his motion to withdraw his plea. We cannot consider this issue as it was, in fact, the subject of his criminal case and not a subject for review in his K.S.A. 60–1507 motion, a civil action. The procedural history of this case is pertinent to our ruling.
Peterson pled no contest to the premeditated first-degree murder of his estranged wife, Rachelle Peterson, and received a sentence of life imprisonment. Peterson entered his no contest plea to avoid a “hard 50” sentence as a result of a plea agreement with the State. In addition, Peterson agreed not to file an appeal as part of the plea agreement. He filed an appeal to the Supreme Court anyway, but later dismissed it. After voluntarily dismissing his direct appeal, Peterson filed two separate motions—a motion to withdraw his plea and a habeas corpus motion under K.S.A. 60–1507. Both were denied. Peterson appealed both decisions, but his appeals were dismissed for failure to docket. He did succeed in reinstating the appeal from his K.S.A. 60–1507 proceeding.
In his K.S.A. 60–1507 motion, Peterson alleged that (1) he was denied effective assistance of trial counsel because his attorneys failed to raise his lack of competency, conduct pretrial investigation, question witnesses, and file pretrial motions; (2) the plea agreement was defective because “malice” did not appear in the complaint, the plea agreement, or elsewhere on the record; (3) his plea was not knowingly and voluntarily made because he did not understand the complaint, did not know what he was pleading to, and did not have enough time to consult with his counsel; (4) the prosecutor committed prosecutorial misconduct by stating that “ ‘[diminished capacity is not the law of this State’ “; and (5) he was denied effective assistance of appellate counsel because his attorney failed to challenge his illegal sentence.
After conducting a brief hearing, the court denied the motion as untimely filed, noting that Peterson had not argued or shown any manifest injustice that would compel the court to entertain the motion in spite of it being untimely filed. The district court should have considered the merits of Peterson's petition.
Although Peterson argues on appeal that the district court should have considered his untimely petition in order to prevent a manifest injustice, the record shows that the petition was in fact timely filed.
The district court clerk received Peterson's K.S.A. 60–1507 motion no later than August 27, 2009. Because Peterson indicated in his motion that he wanted to proceed in forma pauperis, the court clerk asked Peterson to pay a $3 docket fee before the case would be filed. In turn, Peterson requested a $3 withdrawal from his KDOC account on August 31, and the request was approved by the unit team on September 4. The record reflects that the $3 docket fee was finally paid on September 24, and his motion was filed by the clerk on that same day.
The district court ruled that under K.S.A.2009 Supp. 60–2001(a), the docket fee must be received before the petition can be filed: “[A]bsent the $3.00 filing fee, it's not filed.... I think I'm required to follow [the statute].” The court interpreted the statute to mean that “the clerk doesn't have any authority to file [a motion] until, at least, [the mandatory $3.00 filing fee] is paid .” Accordingly, the district court ruled the motion was not timely filed.
A defendant has 1 year from when his or her conviction becomes final to file a motion under K.S.A. 60–1507(a). Specifically, K.S.A. 60–1507(f)(1) states that the 1–year begins running at the time of “[t]he final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction.” Peterson's direct appeal was voluntarily dismissed on August 28, 2008, and the mandate was issued September 3, 2008. Therefore, his motion would be timely if it was filed before August 28, 2009. See K.S.A. 60–2106(c); Wilson v. State, 40 Kan.App.2d 170, 179, 192 P.3d 1121 (2008) (holding that the 1–year time limitation period for K.S.A. 60–1507 motions commences upon the decision denying review rather than upon the issuance of the mandate to the district court). Under the prison-mailbox rule, a prisoner's lawsuit is considered filed when it is delivered to prison authorities for mailing. See Sauls v. McKune, 45 Kan.App.2d 915, 916, 260 P.3d 95 (2011). Because the motion was received by the clerk sometime before August 27, 2009—we conclude the record shows that Peterson mailed his motion within the 1–year period beginning on August 28, 2008.
Since Peterson's motion was timely mailed, we next determine if it was proper for the district court clerk to refuse to file Peterson's motion until he paid a fee. Under K.S.A.2009 Supp. 60–2001(a), no case may be filed or docketed without payment of a docket fee. Although K.S.A.2009 Supp. 60–2001(b)(1) provides an exception for individuals who are unable to pay a docket fee, the statute contains clear and direct requirements:
“In any case where a plaintiff by reason of poverty is unable to pay a docket fee, and an affidavit so stating is filed, no fee will be required. An inmate in the custody of the secretary of corrections may file a poverty affidavit only if the inmate attaches [an account statement].”
Upon receiving the affidavit, the district court must then assess a minimum fee of at least $3. K.S.A.2009 Supp. 60–2001(b)(1).
We draw guidance from another panel's consideration of a very similar issue. In Wilson, 40 Kan.App.2d 170, the movant appealed from an order dismissing his K.S.A. 60–1507 motion as untimely. Wilson mailed his motion on March 5, 2007–within 1 year of our Supreme Court's opinion affirming his conviction and sentence on March 17, 2006. But the district court clerk refused to file the motion because Wilson failed to provide a docket fee or a poverty affidavit. Nevertheless, Wilson stated in his original letter that he was enclosing a request to proceed in forma pauperis. Wilson, 40 Kan.App.2d at 174–75.
On appeal, the court held that although Wilson did not technically comply with K.S.A.2009 Supp. 60–2001(b), he substantially complied by indicating in his original letter that he wished to proceed in forma pauperis. Wilson, 40 Kan.App.2d at 176. The panel noted that “Kansas courts have drawn distinctions between the failure to comply with technical procedural steps and substantive requirements when parties attempt to appeal.” 40 Kan.App.2d at 176.Wilson relied in part on Avco Financial Services v. Caldwell, 219 Kan. 59, 61–63, 547 P.2d 756 (1976), which held that payment of a docket fee is not jurisdictional, noting that the fee only affected the clerk rather than an adverse party. Wilson, 40 Kan.App.2d at 176.
Applying these authorities the Wilson court held:
“Similarly, Wilson's payment of a docket fee or his compliance with K.S.A. 60–2001(b) is separate from the substantive statutory requirement for seeking habeas relief under K.S.A. 60–1507. Payment of a docket fee does not affect the State, and the State has not shown prejudice by Wilson's failure to pay a docket fee when he mailed his initial K.S.A. 60–1507 motion. Although K.S.A. 60–2001 contains mandatory language, the payment of a docket fee has been held to affect only the district court clerk and not the adverse party. Thus, a movant's failure to pay the docket fee is not jurisdictional, nor does the movant's failure to pay the docket fee require a district court clerk to reject filing the movant's K.S.A. 60–1507 motion. Besides, rather than holding a movant's motion until he or she has paid the docket fee, a district court clerk should file the motion. This would allow the district court judge to dismiss the action if the movant later fails to pay the docket fee or fails to file a poverty affidavit in compliance with K.S.A. 60–2001(b).” 40 Kan.App.2d at 176–77.
Accordingly, the court found that Wilson's original K.S.A. 60–1507 motion was timely, although the court later determined that subsequent amendments to the original petition were untimely. Wilson, 40 Kan.App.2d at 174, 179.
The analysis in Wilson is persuasive. Because of the prison-mailbox rule, Peterson's motion should be considered filed when he mailed it—sometime before August 27, 2009. Although he failed to include the required docket fee, under the reasoning in Wilson Peterson substantially complied with K.S.A.2009 Supp. 60–2001(b) by indicating in his original petition that he wished to proceed in forma pauperis. Peterson's failure to pay a $3 fee did not prejudice the State. The district court should have filed the motion rather than hold it until Peterson paid the fee. Even though the district court apparently did not receive Peterson's $3 payment until September 24, 2009, the motion should be considered filed by August 27, 2009—within 1 year of the Supreme Court granting Peterson's voluntary dismissal of his appeal.
Therefore, the district court erred in finding that Peterson's petition was not timely filed. The court did not discuss the merits of Peterson's claim, and its denial was based only upon the findings that (1) the petition was untimely and (2) no manifest injustice was shown. Because Peterson's motion was in fact timely filed, the district court's findings provide no basis for denying Peterson's claim.
Accordingly, we reverse the dismissal of Peterson's petition and remand this case to the district court to consider the merits of Peterson's claim.
Because of lack of jurisdiction, we cannot address Peterson's appeal of the district court's denial of his motion to withdraw his plea. An appellate court has a duty to question jurisdiction on its own initiative. State v. Comprehensive Health of Planned Parenthood, 291 Kan. 322, 352, 241 P.3d 45 (2010).
This appeal was docketed only with regard to his civil K.S.A. 60–1507 motion. The notice of appeal here only refers to the denial of his K.S.A. 60–1507 motion. In fact, the notice of appeal for this case was filed before the district court held an evidentiary hearing and ruled on Peterson's motion to withdraw his plea in his criminal case. A failure to docket an appeal in compliance with Supreme Court rules is deemed an abandonment of the appeal. See City of Kansas City v. Lopp, 269 Kan. 159, 160, 4 P.3d 592 (2000).
Further, K.S.A. 60–2103(b) provides: “The notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken.' (Emphasis added.) It is fundamental that an appellate court's jurisdiction is generally limited to the rulings identified in the notice of appeal. State v.. Huff, 278 Kan. 214, 217, 92 P.3d 604 (2004). We dismiss that portion of Peterson's appeal.
Dismissed in part, and reversed in part and remanded with directions.