Ponds v. State

56 Kan.App.2d 743

437 P.3d 85

Steven W. PONDS, Appellant,

v.STATE of Kansas, Appellee.

No. 119,057

Court of Appeals of Kansas.

Opinion filed February 8, 2019.

Roger L. Falk, of Law Office of Roger L. Falk, P.A., of Wichita, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Atcheson, P.J., Malone and Leben, JJ.

Malone, J.:

Steven W. Ponds appeals the district court's summary denial of his K.S.A. 60-1507 motion. Ponds argues that the district court erred when it summarily denied his motion and that he is entitled to a hearing. The State first argues that this court lacks jurisdiction to hear the appeal because Ponds' notice of appeal was untimely. The State also argues that the district court correctly denied Ponds' motion. We disagree with the State's jurisdictional claim, but on the merits we affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 2009, the State charged Ponds with 14 felony charges, including aggravated burglary, attempted burglary, as well as several counts of burglary and theft. Before trial, Ponds sought to suppress: (1) evidence of his footwear because he claimed the officers lacked probable cause to support his arrest; and (2) evidence from GPS tracking devices attached to his vehicles because the search warrant application failed to provide a substantial basis for the issuing magistrate to conclude there was a fair probability contraband or evidence would be found as a result of those devices. After an evidentiary hearing, the district court denied Ponds' motion to suppress the evidence.

After a bench trial in 2012, the district court found Ponds guilty of all charges. The district court sentenced Ponds to a controlling term of 244 months in prison. Ponds filed a direct appeal challenging the sufficiency of the evidence and the district court's rulings on the motion to suppress evidence. This court affirmed his convictions and sentence in State v. Ponds , No. 109,965, 2015 WL 249836 (Kan. App. 2015) (unpublished opinion), cert. denied ––– U.S. ––––, 136 S.Ct. 2024, 195 L.Ed.2d 228 (2016) ( Ponds I ).

While his direct appeal was pending, Ponds filed a motion to correct an illegal sentence, asserting that the district court erroneously classified his pre-1993 convictions as person felonies in calculating his criminal history score. The district court summarily denied relief, and this court affirmed that decision in State v. Ponds , No. 114,761, 2016 WL 6822176 (Kan. App. 2016) (unpublished opinion) ( Ponds II ).

On May 3, 2017, Ponds filed a K.S.A. 60-1507 motion. Ponds challenged: (1) the district court's refusal to suppress his footwear because of a lack of probable cause; (2) the sufficiency of the evidence to support his convictions; and (3) the district court's denial of his request to suppress the GPS evidence for lack of probable cause.

On June 26, 2017, the district court filed a journal entry summarily denying Ponds' K.S.A. 60-1507 motion, finding that the three issues raised were the same issues Ponds raised on direct appeal. The district court also found that Ponds' motion contained several conclusory statements, unsupported by any legal argument or evidentiary basis.

On July 17, 2017, Ponds filed a timely motion for reconsideration of the district court's K.S.A. 60-1507 judgment. Then on November 16, 2017, while the motion for reconsideration was still pending, Ponds filed a notice of appeal of the district court's "decision to deny his 60-1507 motion."

On January 29, 2018, the district court denied Ponds' motion for reconsideration, finding that it lacked jurisdiction because of the pending appeal. On March 14, 2018, this court granted Ponds' motion to docket his appeal out of time. Ponds did not file a separate notice of appeal from the district court's denial of his motion for reconsideration.

On appeal, Ponds argues that the district court erred when it summarily denied his K.S.A. 60-1507 motion. Ponds argues that his K.S.A. 60-1507 motion, when read broadly, asserts a claim of ineffective assistance of counsel that can only be resolved with an evidentiary hearing. He also argues that in summarily denying his K.S.A. 60-1507 motion, the district court failed to make sufficient findings of fact and conclusions of law to comply with Kansas Supreme Court Rule 183(j) (2019 Kan. S. Ct. R. 228).

The State first argues that this court lacks jurisdiction over the appeal because Ponds failed to file his notice of appeal in a timely manner. On the merits, the State argues that the district court correctly denied Ponds' K.S.A. 60-1507 motion.

DOES THIS COURT HAVE JURISDICTION OVER THIS APPEAL?

To begin with the State questions this court's jurisdiction over this appeal. Ponds does not address the jurisdictional issue. Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. State v. Dull , 302 Kan. 32, 61, 351 P.3d 641 (2015).

The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions not applicable here, Kansas appellate courts only have jurisdiction to consider appeals taken in the manner prescribed by statute. State v. Smith , 304 Kan. 916, 919, 377 P.3d 414 (2016) ; Wiechman v. Huddleston , 304 Kan. 80, 86-87, 370 P.3d 1194 (2016).

Here, the four relevant dates and filings that affect this court's jurisdiction are:

• June 26, 2017 (the district court filed an order denying the K.S.A. 60-1507 motion)

• July 17, 2017 (Ponds filed a motion for reconsideration)

• November 16, 2017 (Ponds filed a notice of appeal)• January 29, 2018 (the district court denied the motion for reconsideration)

A K.S.A. 60-1507 proceeding is a civil action. Under K.S.A. 2017 Supp. 60-2102(a)(4), the appellate jurisdiction of the court of appeals may be invoked by appeal as a matter of right from a final decision in any action, except in an action where a direct appeal to our Supreme Court is required by law. "A ‘final decision’ generally disposes of the entire merits of the case and leaves no further questions or the possibility of future directions or actions by the court." In re T.S.W. , 294 Kan. 423, 433, 276 P.3d 133 (2012).

Under K.S.A. 2017 Supp. 60-2103(a), a notice of appeal must be filed within 30 days from the entry of judgment. Here, the district court filed its order denying the K.S.A. 60-1507 motion on June 26, 2017. Ponds did not file a notice of appeal until November 16, 2017, well beyond 30 days from the district court's entry of judgment. But Ponds filed a timely motion for reconsideration on July 17, 2017. See K.S.A. 2017 Supp. 60-259(f) (motion to alter or amend judgment must be filed no later than 28 days after entry of judgment). Ponds' motion for reconsideration qualified as a motion to alter or amend judgment. See Hundley v. Pfuetze , 18 Kan. App. 2d 755, 756, 858 P.2d 1244 (1993).

K.S.A. 2017 Supp. 60-2103(a) goes on to provide:

"The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subsection commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: Granting or denying a motion for judgment under subsection (b) of K.S.A. 60-250, and amendments thereto; or granting or denying a motion under subsection (b) of K.S.A. 60-252, and amendments thereto, to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under K.S.A. 60-259, and amendments thereto, to alter or amend the judgment; or denying a motion for new trial under K.S.A. 60-259, and amendments thereto."

Under K.S.A. 2017 Supp. 60-2103(a), Ponds' timely filing of a motion to alter or amend judgment terminated the running of the time for appeal. Under that statute, the "full time for appeal" commenced to run from the entry of an order "[g]ranting or denying a motion under K.S.A. 60-259." K.S.A. 2017 Supp. 60-2103(a).

The problem in this case arises because Ponds filed his notice of appeal from the district court's decision to deny his K.S.A. 60-1507 motion on November 16, 2017, before the district court ruled on his motion for reconsideration. As a result, Ponds' notice of appeal was premature because it was filed before the district court's judgment on the K.S.A. 60-1507 motion became final. The district court eventually denied Ponds' motion for reconsideration on January 9, 2018, finding that it lacked jurisdiction to rule on the motion for reconsideration because of the pending appeal. This finding was incorrect because the district court did not actually lose jurisdiction over the case until Ponds docketed his appeal, which did not occur until March 14, 2018. See City of Kansas City v. Lopp , 269 Kan. 159, 160, 4 P.3d 592 (2000) (finding that once the appeal is docketed in the appellate courts, the district court loses jurisdiction). Ponds did not file a separate notice of appeal after the district court denied his motion for reconsideration.

The State argues that Ponds' premature notice of appeal is not saved by Kansas Supreme Court Rule 2.03 (2019 Kan. S. Ct. R. 14). Supreme Court Rule 2.03 covers premature notices of appeal in civil cases and provides:

"(a) When a Premature Notice of Appeal is Effective. A notice of appeal that complies with K.S.A. 60-2103(b) —filed after a judge of the district court announces a judgment to be entered, but before the actual entry of judgment—is effective as notice of appeal under K.S.A. 60-2103 if it identifies the judgment or part of the judgment from which the appeal is taken with sufficient certainty to inform all parties of the rulings to be reviewed on appeal.

"(b) Timing of a Notice of Appeal Challenging Certain Posttrial Motions. A party intending to challenge

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