Opinion
No. 107,860.
2013-05-3
STATE of Kansas, Appellee, v. Joshua FLEMING, Appellant.
Appeal from Sedgwick County; Warren M. Wilbert, Judge. Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick County; Warren M. Wilbert, Judge.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
The district court dismissed Joshua Fleming's habeas corpus motion because Fleming's direct appeal of his criminal conviction was pending when he filed the habeas motion. Fleming has appealed, but we agree with the district court that it lacked jurisdiction to hear a habeas claim under K.S.A. 60–1507 while Fleming was simultaneously pursuing the direct appeal of his conviction.
Factual and Procedural History
Fleming, also known as Donte Oliver Zilfonte, pled guilty to three counts of aggravated robbery and one count each of aggravated burglary, aggravated assault, defacing identification marks of a firearm, criminal possession of a firearm, and theft. Before sentencing, he filed a motion to withdraw his plea, alleging ineffective assistance of counsel and conflict of interest. After appointing new counsel and hearing arguments, the district court denied the motion.
Fleming then filed an appeal. He filed his notice of appeal in the district court on November 10, 2010, and he docketed the appeal in this court on March 31, 2011.
While his appeal was still pending before the Court of Appeals, Fleming filed a pro se “motion for new trial due to ineffective assistance of counsel pursuant to K.S.A. 60–1507.” The district court dismissed the motion, finding that because Fleming's direct appeal was pending before the Court of Appeals, the district court lacked jurisdiction to consider his motion.
Fleming has appealed, claiming that the district court should have proceeded to hear his motion even though his direct appeal was pending.
Analysis
Fleming contends the district court had jurisdiction to consider his motion based on the general grant of jurisdiction given to the district court under K.S.A. 20–301. That statute makes the district court the court of general original jurisdiction of all matters, both civil and criminal, unless otherwise provided by law. Fleming argues that K.S.A. 20–301 does not explicitly limit the district court's jurisdiction to consider his motion.
But the Kansas Supreme Court has long held that the district court loses jurisdiction after a direct appeal has been docketed. See State v. McDaniel, 255 Kan. 756, 761, 877 P.2d 961 (1994); State v. Dedman, 230 Kan. 793, 796–97, 640 P.2d 1266 (1982). Fleming argues that these cases don't control the result here because neither specifically dealt with his type of motion, which he identifies as a motion to withdraw his plea.
We do not find Fleming's attempt to distinguish these cases persuasive. McDaniel involved a motion to withdraw plea, which the Kansas Supreme Court held the trial court had jurisdiction to consider only because it had been filed within the time frame during which a statute specifically authorized the district court to modify any sentence it had rendered. 255 Kan. at 760–61, 877 P.2d 961. Kansas no longer has what, at the time of McDaniel, was a 120–day period in which the district court could modify a sentence after it had been entered, so the holding in McDaniel does not apply here. Dedman involved a motion to modify sentence, not one to withdraw plea. But nothing in the court's opinion suggests that the district court would still have jurisdiction to hear a motion to withdraw plea in a situation where it couldn't hear a motion directly asking for a sentence modification. After all, granting a motion to withdraw plea would require setting aside both the conviction and sentence, and Dedman said the district court had no jurisdiction to consider a motion to modify the sentence.
K.S.A. 20–301 does not directly address the situation present here regarding the timing of proceedings in the district and appellate courts. “The ‘better policy [is] to have jurisdiction of a criminal action repose in only one court at a time to prevent a case from getting lost in the system.’ [Citation omitted.]” McDaniel, 255 Kan. at 762, 877 P.2d 961.Supreme Court Rule 183(c)(4)(A) (2012 Kan. Ct. R. Annot. 274) reflects this approach, providing that the limit for bringing a K.S.A. 60–1507 motion does not begin to run until the mandate has been issued in a defendant's direct appeal. In addition, Supreme Court Rule 183(c)(2), provides that motions to vacate a sentence “may not be filed while an appeal from the conviction and sentence is pending.” 2012 Kan. Ct. R. Annot. 275. As we have already noted, granting Fleming's motion to withdraw his plea would necessarily require vacating his sentence.
While this appeal has been pending, we note that our court decided Fleming's direct appeal. In State v. Fleming, No. 105,789, 2012 WL 1920133, at *4 (Kan.App.2012) (unpublished opinion), our court concluded that the district court had not erred when it denied the motion Fleming filed before sentencing to withdraw his plea, and the appellate mandate was issued in that case on June 21, 2012. After the issuance of that mandate, subject to the 1–year limit found in K.S.A. 60–1507(f) and Supreme Court Rule 183, Fleming has had the ability to file a K.S.A. 60–1507 motion in the district court. But we must consider on this appeal whether the district court had jurisdiction to consider the habeas motion Fleming filed while his direct appeal was pending. The district court correctly ruled that it had no jurisdiction to consider that motion. We therefore affirm the district court's judgment.