Opinion
112,524.
07-24-2015
STATE of Kansas, Appellant, v. Phillip V. RISSEN, Appellee.
Michael R. Serra, deputy county attorney, Jason W. Belveal, county attorney, and Derek Schmidt, attorney general, for appellant. No appearance by appellee.
Michael R. Serra, deputy county attorney, Jason W. Belveal, county attorney, and Derek Schmidt, attorney general, for appellant.
No appearance by appellee.
Before MALONE, C.J., McANANY and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
The State appeals the district court's sua sponte dismissal with prejudice of criminal charges against Phillip Vaughn Rissen for possession of marijuana and possession of drug paraphernalia with intent to use. The State argues that the district court lacked jurisdiction to dismiss the charges against Rissen, or alternatively, that the district court abused its discretion when it dismissed the charges with prejudice. Under the facts and circumstances presented in this case, we agree with the State that the district court abused its discretion when it dismissed the charges with prejudice.
We will attempt to piece together the facts and procedural history of this case from the sparse record on appeal. On July 3, 2014, Kansas Highway Patrol Trooper K. Olson issued a uniform notice to appear and complaint to Rissen for possession of marijuana in violation of K.S.A.2014 Supp. 21–5706(b)(3) and possession of drug paraphernalia with intent to use in violation of K.S.A.2014 Supp. 21–5709(b)(2). An identical citation was issued to Jaiden Smith on the same date. Trooper Olson issued the citations at a traffic stop following the search of a vehicle driven by Rissen in which Smith was a passenger. According to the narrative report issued by the trooper, which was referred to by the prosecutor at Smith's first appearance, marijuana was found in the passenger's side compartment of the vehicle. Rissen told the trooper that the marijuana belonged to both him and Smith and the two men had been smoking it earlier. Smith had denied using the marijuana.
The notice to appear directed Rissen to appear in district court on or before August 11, 2014, at 9 a.m. for a first appearance. Rissen never appeared in district court to answer to the charges. However, Smith appeared before the district court on July 28, 2014, and asked the court to take up his case. Upon inquiry by the district court, the prosecutor indicated that he had not received an affidavit for prosecution from the Kansas Highway Patrol (KHP)—only the citation and an unsworn narrative report from the trooper. After hearing from the prosecutor, the district court found sua sponte that the uniform notice to appear and complaint issued to Smith was “defective.” The district court initially dismissed the complaint without prejudice and ordered the costs taxed to the State. The district court advised Smith that the charges against him could be refiled and, in the event the charges were refiled, directed the State to issue a summons to Smith.
The district court asked the State whether it intended to refile the charges against Smith. The prosecutor advised that a decision had not yet been made, as the State was still waiting for an affidavit for prosecution from the KHP as well as a lab report on the marijuana. The prosecutor further informed the district court that a citation had also been issued to Rissen, who was alleged to have been driving the vehicle at the time of the stop. Upon learning that Smith was only a passenger in the vehicle, which was a company car driven by Rissen, the district court stated: “Well, and this in no way reflects upon the prosecut[or]'s office, the State. The dismissal for defective complaint is with prejudice to refiling as to this defendant.”
When asked for clarification, the district court engaged in the following exchange with the prosecutor:
“THE COURT: Yeah. I—I'm inclined to think that the summons applies to—I don't think the highway patrol can issue a summonses [sic ] to appear on misdemeanors, can they? Unless it's traffic-related?
“[THE STATE:] I'm not sure is the answer to that question. I have no idea.
“THE COURT: Well, maybe it's going to start sending out summonses on behalf of ... of whom? I guess Jefferson County; is that right? It's dismissed with prejudice to refiling.”
The State reminded the district court that Rissen also had been issued a citation for identical charges arising from the same incident. The State advised the district court that if it was going to dismiss Smith's case with prejudice, it “might as well” dismiss Rissen's case. The prosecutor stated, “that's not fair to do it to him [dismiss the charges against Smith] and then not to the driver.”
The district court reiterated that the State's filing of an affidavit for prosecution and a formal complaint was the proper way to initiate criminal proceedings. The judge stated: “Well, this isn't a traffic offense; it's a criminal offense, which ... is initiated with the filing of a[n] affidavit for prosecution; right?” The prosecutor indicated “the procedure should be that we request an affidavit for prosecution, and they [KHP] provide us with one prior to a court date. And at this point we haven't received an affidavit for prosecution.” The district court responded that the complaints against both Smith and Rissen were being dismissed with prejudice “for those reasons.”
On July 28, 2014, the district court filed a journal entry memorializing the dismissal with prejudice of Smith's case. On July 28, 2014, the district court filed another journal entry regarding Rissen's case which stated as follows:
“Court, on its own initiative, dismisses citation with prejudice due to KHP failure to provide affidavit for prosecution. ”
The State timely appealed the dismissal of the charges against Rissen.
On appeal, the State first argues that the district court lacked jurisdiction to dismiss the charges initiated by the issuance of a citation to Rissen. Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014). 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).
According to the State, the district court dismissed the citation against Rissen after finding that it was not appropriate for the KHP to issue a citation for non-traffic-related offenses. The State contends the district court never acquired jurisdiction over Rissen in order to dismiss his case because no charges had been filed against him. The State asserts that a prosecution may only commence in district court “upon complaint, indictment, or information” pursuant to K.S.A. 22–3201(a). Therefore, in the absence of a filed complaint or information, the State concludes that prosecution was never legally initiated against Rissen and the district court never acquired jurisdiction to dismiss the charges.
As support, the State cites this court's decision in Seaton v. City of Coffeyville, 9 Kan.App.2d 760, 688 P.2d 1240 (1984). In that case, Seaton was tried in municipal court for violation of a municipal ordinance. After being found guilty in that court, Seaton appealed to the district court and was again found guilty in a de novo jury trial. Seaton appealed, arguing that neither the municipal court nor the district court had proper jurisdiction because no complaint against him had ever been filed in the municipal court. On appeal, this court stated that the municipal court's jurisdiction was set forth in K.S.A. 12–4201, which requires that actions in municipal court be commenced by the filing of a complaint. 9 Kan.App.2d at 760. This court found that statute to be clear and unambiguous, concluding: “The filing of a complaint is mandatory to confer jurisdiction upon a municipal court. There is no evidence present before this court that any such filing was made in this case .” 9 Kan.App.2d at 761.
This court's decision in Seaton stands for the basic proposition that the filing of a complaint is mandatory to confer jurisdiction upon a municipal court. The Seaton court was not faced with and did not address the effect of a uniform notice to appear. As to whether a uniform notice to appear is sufficient to confer jurisdiction upon the district court, this court's decision in State v. Wright, 26 Kan.App.2d 879, 881, 995 P.2d 416 (2000), is more on point. In that case, Wright was convicted of several misdemeanors in district court after being arrested by a city police officer. On appeal, Wright argued that a city police officer was without authority to issue a uniform notice to appear requiring his appearance in the district court. The Wright court disagreed and specifically stated that “[a] uniform notice to appear may serve as a valid complaint.” 26 Kan.App.2d at 881 (citing State v. Boyle, 21 Kan.App.2d 944, 945, 913 P.2d 617 [1996] ). In so finding, the court cited K.S.A. 22–2408, which allows law enforcement officers to serve a written notice to appear. 26 Kan.App.2d at 881.
This court specifically held in Wright that a uniform notice to appear may serve as a valid complaint. Here, the issuance of the uniform notice to appear was sufficient to give the district court jurisdiction over the State's case against Rissen, even though the State intended to later file a formal complaint against Rissen pursuant to K.S.A. 22–3201. Consequently, we reject the State's argument that the district court did not have jurisdiction over Rissen at the time it dismissed the charges against him.
Next, the State contends the district court abused its discretion when it sua sponte dismissed with prejudice the charges against Rissen. Though the district court did not specifically state that it was sanctioning the State when it made its ruling, the State asserts that the district court's dismissal was clearly meant to punish law enforcement for its failure to provide an affidavit for prosecution prior to Smith's first appearance. The State argues that the district court's dismissal was based on an arbitrary and unreasonable analysis and thus must be reversed.
An appellate court reviews a district court's dismissal of criminal charges for an abuse of discretion. State v. Boehmer, 41 Kan.App.2d 598, 602, 203 P.3d 1274 (2009) (citing State v. Clovis, 248 Kan. 313, 331, 807 P.2d 127 [1991] ). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). The party asserting that the district court abused its discretion bears the burden of showing such abuse of discretion. State v. RojasMarceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).
Here, Rissen never appeared in district court to answer to the criminal charges filed against him. However, his codefendant, Smith, appeared before the district court on July 28, 2014, and asked the court to take up his case. The transcript of the first appearance in Smith's case reflects that the district court dismissed the charges against Smith with prejudice for two reasons. First, the district court appeared to be operating under the assumption that the KHP could not issue a notice to appear in a misdemeanor (nontraffic) case. During the hearing, the judge asked the prosecutor, “I don't think the highway patrol can issue a summonses [sic ] to appear on misdemeanors, can they? Unless it's traffic-related?” Later in the hearing, the judge stated: “Well, this isn't a traffic offense; it's a criminal offense, which ... is initiated with the filing of a[n] affidavit for prosecution and a complaint; right?” The district court found that the uniform notice to appear was “defective” and dismissed it with costs taxed to the State.
K.S.A.2014 Supp. 22–2408 governs the issuance of a notice to appear under the Kansas criminal code. The statute provides in pertinent part:
“(1) Except as otherwise provided in subsection (6) of this section, whenever a law enforcement officer detains any person without a warrant, for any act punishable as a misdemeanor, and such person is not immediately taken before a magistrate for further proceedings, the officer may serve upon such person a written notice to appear in court.
Such notice to appear shall contain the name and address of the person detained, the crime charged, and the time and place when and where such person shall appear in court.
“(2) The time specified in such notice to appear must be at least seven days after such notice is given unless the person shall demand an earlier hearing.
“(5) Such law enforcement officer shall cause to be filed, without unnecessary delay, a complaint in the court in which a person released under subsection (4) is given notice to appear, charging the crime stated in said notice.”
K.S.A.2014 Supp. 22–2408(1) provides that a law enforcement officer can issue a notice to appear to any person for any act punishable as a misdemeanor when the person is not arrested and immediately taken before a magistrate. Trooper Olson was authorized to issue Smith a notice to appear in district court for the misdemeanor offenses and there was nothing “defective” about the citation. Thus, the district court's dismissal of the criminal charges against Smith appeared to be based, in part, on an error law. For this reason alone, the district court's dismissal of the criminal charges constituted an abuse of discretion. See Mosher, 299 Kan. at 3.
The district court also dismissed the criminal charges against Smith at the first appearance because the KHP had not yet provided the State with an affidavit for prosecution so that the State could prepare a formal complaint against Smith. Although the district court did not specifically state that it was sanctioning the State when it made its ruling, it appears that the district court's dismissal was meant to punish law enforcement for its failure to provide an affidavit for prosecution in a timely manner.
K.S.A.2014 Supp. 22–2408(5) provides that whenever a law enforcement officer issues a notice to appear to any person, such law enforcement officer shall cause to be filed, without unnecessary delay, a complaint charging the person with the crime stated in the notice. The requirements for a formal complaint are set forth in K.S .A. 22–3201. K.S.A.2014 Supp. 22–2408(2) provides that the time specified for a hearing in the notice to appear must be at least 7 days after the notice to appear is given unless the person shall demand an earlier hearing.
Here, Trooper Olson issued Smith the notice to appear on July 3, 2014. Pursuant to K.S.A.2014 Supp. 22–2408(5), Olson should have caused to be filed an affidavit for prosecution without unreasonable delay so that the State could proceed with filing a formal complaint against Smith pursuant to K.S.A. 22–3201. The notice to appear directed Smith to appear in district court on or before August 11, 2014. Smith appeared before the district court on July 28, 2014, and asked the court to take up his case. The State was not ready to proceed with a formal complaint on that date, so the district court dismissed the charges against Smith with prejudice.
Under certain circumstances, a district court can dismiss criminal charges with prejudice but only as a remedy of last resort. In State v. Bolen, 270 Kan. 337, 342–43, 13 P.3d 1270 (2000), our Supreme Court stated:
“We have recognized that in a proper case, a trial court has the power to dismiss a criminal complaint with prejudice if the interests of justice require such action. State v. Crouch & Reeder, 230 Kan. 783, 788, 641 P.2d 394 (1982). However, such power should be exercised with great caution and only in cases where no other remedy would protect against abuse. 230 Kan. at 788. Dismissal with prejudice should be used only in extreme circumstances. State v. Winter, 238 Kan. 530, 534, 712 P.2d 1228 (1986). Dismissal of charges oftentimes punishes the public rather than the prosecutor and creates a windfall for the defendant. State v. Davis, 266 Kan. 638, 646, 972 P.2d 1099 (1999). Where there has been no showing that the defendant suffered actual prejudice as a result of a prosecutor's misconduct, and alternative means of sanctioning the prosecutor exist for the violation, dismissal of pending charges with prejudice may constitute an abuse of discretion by the trial court. 266 Kan. at 646.” Bolen, 270 Kan. at 342–43.
Here, the district court did not find that Smith had suffered any prejudice as a result of the State's failure to file a formal complaint or information by July 28, 2014. In fact, Smith himself asserted no prejudice; rather, he apparently had a conflict with the appearance date listed on his citation because of school and asked the clerk's office to allow him to appear prior to his scheduled date. The fact that Smith was inconvenienced by appearing in court on a date the State was not ready to proceed does not rise to the level of actual prejudice preventing him from defending against the charges. Though lesser sanctions were available to the district court than dismissal with prejudice, it did not consider whether any of these less drastic options might have been appropriate.
Rissen, who never even appeared before the district court, certainly suffered no actual prejudice caused by the fact that the State was not ready to proceed with a formal complaint against Smith. Granted, the prosecutor invited the district court to dismiss the criminal charges against Rissen but this was only after the district court had announced that it was dismissing with prejudice the charges against Smith. The prosecutor was only seeking equal treatment for both codefendants, although the State clearly was opposed to the district court's decision to dismiss the charges against Smith.
A reasonable judge might have dismissed the charges against Smith at the first appearance as long as the dismissal was without prejudice. But dismissal with prejudice as to both Smith and Rissen was unwarranted, as this remedy should be exercised with great caution and only in extreme circumstances. Bolen, 270 Kan. at 342–43. Under the circumstances here, we conclude the district court abused its discretion when it dismissed the charges with prejudice. We reverse the district court's dismissal and remand with directions to allow the State to reinstate the charges against Rissen.
Reversed and remanded with directions.
ATCHESON, J., concurring in part and dissenting in part.
This is a companion case to State v. Smith, No. 112,530. For the reasons I outlined in my concurring and dissenting opinion in that case, I agree that we have jurisdiction to consider this appeal. I respectfully dissent from the majority's conclusion that the Jefferson County District Court abused its discretion in dismissing with prejudice the charges against Defendant Phillip V. Rissen. In general, my reasons parallel those I outlined in Smith with one difference.
As the majority points out, Rissen had not yet appeared in the district court when the district court dismissed the charges against him. Were that the end of the matter, I would be inclined to say this case could be different from Smith's, since he did come to court. Rissen still had 2 weeks to do so; he wasn't delinquent or derelict. But he wasn't as prompt as Smith. After the district court stated that it intended to dismiss the charges against Smith with prejudice, the deputy county attorney suggested it would be only fair to treat Rissen the same.
I don't believe the district court abused its discretion in dismissing Smith's charges with prejudice. And I to defer to the State's view that Smith and Rissen should be treated equivalently insofar as the procedural handling of their cases is concerned. Accordingly, I would likewise find no abuse of discretion in the district court's ruling as to Rissen.