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State v. Gomez

Court of Appeals of Kansas

September 19, 2014

STATE OF KANSAS, Appellee,
v.
ADOLFO GOMEZ, JR., Appellant

Editorial Note:

This decision has been designated as "not for publication" in the Pacific Reporter, it is published in table format. See KS R S AND ACTS RULE 7.04

Appeal from Douglas District Court; PAULA B. MARTIN, judge.

Adam D. Stoke, of Kansas Appellate Defender Office, for appellant.

Patrick J. Hurley, assistant county attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.

BEFORE ATCHESON, P.J., HILL and ARNOLD-BURGER, JJ.

OPINION

MEMORANDUM OPINION

Per Curiam:

Adolfo Gomez entered pleas of no contest to two counts of abuse of a child and three counts of child endangerment. But before his sentencing, he sought to withdraw his pleas. He raises two issues in this appeal, Gomez claims the court erred in denying his motion to withdraw his pleas and argues the jury should decide his criminal history and not the judge. Before we can address these issues we must first determine what issues we have jurisdiction to review based on the notice of appeal filed by Gomez.

Gomez' notice of appeal states: " COMES NOW the Defendant and gives notice that he wishes to appeal the sentence imposed against him on the 19th day of June, 2013."

In State v. Coman, 294 Kan. 84, 90, 273 P.3d 701 (2012), our Supreme Court ruled there is a jurisdictional aspect to the notice of appeal:

" 'It is a fundamental proposition of Kansas appellate procedure that an appellate court obtains jurisdiction over the rulings identified in the notice of appeal." [Citations omitted.]'

But Coman went on to state that the words of the notice of appeal will not be stretched beyond their normal meanings:

" Although our appellate courts have, at times, liberally construed a notice of appeal to retain jurisdiction, one simply cannot construe a notice that appellant is appealing his or her sentence to mean that he or she is appealing the conviction." 294 Kan. at 90.

Then, recently in State v. Laurel, 299 Kan. 668, 673-74, 325 P.3d 1154 (2014), the Supreme Court stated there is a substantive minimum for a notice of appeal:

" K.S.A. 2011 Supp. 60-2103(b) provides that '[t]he 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,' We liberally construe K.S.A. 60-2103(b) '" to assure justice in every proceeding'" [citations omitted]; but there is still a substantive minimum below which a notice cannot fall and still support jurisdiction. [Citations omitted.]"

Considering Gomez' notice of appeal, there is no hint he is raising any issue in his notice other than that of his sentence. Following the rulings in Coman and Laurel, we lack jurisdiction to review the denial of Gomez' motion to withdraw his pleas. We will review his sentencing claim.

Gomez argues the district court violated his Sixth and Fourteenth Amendment rights under the United States Constitution, as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it used his criminal history for sentencing purposes without requiring the State to include his prior convictions in the complaint and prove his criminal history to the jury beyond a reasonable doubt. Gomez concedes that the Kansas Supreme Court rejected a similar argument in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), but includes the issue to preserve it for federal review.

Our Supreme Court recently reaffirmed Ivory in State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013). This court is duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its earlier position. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Since there is no indication our Supreme Court is departing from Ivory, the district court did not err in using Gomez' criminal history when imposing his sentence.

Gomez' sentence is affirmed. Gomez' appeal of the district court's denial of his motion to withdraw his pleas is dismissed.

Affirmed in part and dismissed in part.

***

Atcheson, J., concurring:

Based on State v. Laurel, 299 Kan. 668, 673-74, 325 P.3d 1154 (2014), and State v. Coman, 294 Kan. 84, 90, 273 P.3d 701 (2012), I agree that we lack jurisdiction to consider any claimed error the district court may have made in denying Defendant Adolfo Gomez' motion to withdraw his plea. But I believe those decisions fail to apply appropriately the statutes governing notices of appeal from criminal defendants and, as a result, unduly restrict the scope of those appeals. See State v. Walker, No. 109, 379, 50 Kan.App.2d , 334 P.3d 901, (September 19, 2014) (Atcheson, J., concurring).


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