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In re Care and Treatment of Emerson

Supreme Court of Kansas

April 7, 2017

In the Matter of the Care and Treatment of Cecil W. Emerson.

         SYLLABUS BY THE COURT

         A district court does not have jurisdiction over a litigant's motion to file a direct appeal out of time if a previous direct appeal by the same litigant had been dismissed by an appellate court. Jurisdiction over the appeal remains in the appellate court that dismissed the first appeal; the appeal can proceed only if the appellate court withdraws its mandate and allows the appeal to proceed.

         Review of the judgment of the Court of Appeals in 52 Kan.App.2d 421, 369 P.3d 327 (2016). Appeal from Sedgwick District Court; Gregory L. Waller and Paul Clark, judges. Opinion filed April 7, 2017. Appeal dismissed.

          Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the brief for appellant.

          Dwight R. Carswell, assistant solicitor general, argued the cause, and Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief for appellee.

          OPINION

          Luckert, J.

         This appeal raises the question of whether a district court has jurisdiction to authorize the filing of an out-of-time direct appeal after a prior direct appeal by the same litigant had been dismissed by the Court of Appeals. We hold the district court lost jurisdiction when the initial appeal was docketed in the Court of Appeals, and, therefore, the district court could not effectively set aside an order of the Court of Appeals and reinstate an appeal. Because the district court did not have jurisdiction, neither this court nor the Court of Appeals obtains jurisdiction to review the district court's rulings. Accordingly, we dismiss this appeal.

         Facts and Procedural Background

         In August 1999 the State filed a petition against Cecil Emerson pursuant to the Sexually Violent Predators Act (SVPA). A jury found Emerson was a sexually violent predator, and the district court accordingly ordered Emerson to be "committed to the custody of the Secretary of Social and Rehabilitation Services for control, care and treatment until such time as respondent's mental abnormality or personality disorder has so changed that respondent is safe to be at large."

         Emerson moved for judgment as a matter of law or in the alternative for a new trial, and the district court denied the motion on January 5, 2001. In February 2001, Emerson filed a notice of appeal; he subsequently docketed the case in the appellate courts by filing several documents with the clerk of the appellate courts, including a docketing statement and a certified copy of his notice of appeal. The Court of Appeals ultimately dismissed Emerson's appeal in 2002 after his counsel failed to file a brief despite four extensions of time and a final warning.

         Since that time, as required by K.S.A. 59-29a08, the Secretary of the Kansas Department of Social and Rehabilitation Services or its successor, the Secretary of the Kansas Department for Aging and Disability Services, has conducted a yearly review and reported to the district court regarding Emerson's progress, the current state of his mental condition or personality disorder, and his treatment staff's recommendation as to whether he should be authorized to petition the district court for release with the Secretary's approval. Each year, the Secretary notified Emerson that his mental condition or personality disorder had not changed sufficiently so that it would be safe for him to be at large. Emerson also received annual notice that he had the right to petition for release over the Secretary's objection. In some years, he did not waive his right to further proceedings-although he never actually petitioned the district court for release-and in other years he formally waived further proceedings. And each year, the district court found Emerson should remain in the custody of the Secretary for further care and treatment.

         Then, in July 2014, Emerson, represented by new and present counsel, moved the district court to permit an out-of-time appeal of the underlying ruling that he was a sexually violent predator. Counsel argued Emerson's case fell under the third exception permitting an out-of-time appeal set out in State v. Ortiz, 230 Kan. 733, 736, 640 P.2d 1255 (1982) (allowing out-of-time appeal "only in those [criminal] cases where a defendant either [1] was not informed of his or her rights to appeal or [2] was not furnished an attorney to exercise those rights or [3] was furnished an attorney for that purpose who failed to perfect and complete an appeal").

         The State responded that the district court lacked authority to permit an out-of-time appeal since it could not amend a notice of appeal filed as long ago as February 2001 or order an appellate court to reinstate the appeal. It also argued the timeliness of a notice of appeal was jurisdictional and Emerson's proposed second notice of appeal would not cure the Court of Appeals' 2002 dismissal of his case. The State also noted that Emerson had been committed since December 13, 2000, and had repeatedly waived further court proceedings and agreed to stay in treatment.

         At a hearing on Emerson's motion, the district court stated that although Emerson's case was "a civil action, it is a quasi-criminal affair. The appellate courts have recently mentioned in particular that many of the things that occur within a sexual predator case should be treated as [if] they were criminal." The State reminded the district court that in Emerson's case a notice of appeal had been filed and the Court of Appeals had actually dismissed the case-his case thus did not involve circumstances where a notice of appeal had not been filed in the first instance. The district court ruled that "this case is one that is presently in a status where the Court has jurisdiction" and proceeded to hear testimony from Emerson. After hearing the evidence and counsel's arguments, the district court ruled that it would give Emerson "the right to appeal based upon the fact that his previous counsel did nothing ...


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