Vanderpool v. State

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NOT DESIGNATED FOR PUBLICATION

No. 118,949


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MICHAEL VANDERPOOL SR.,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge. Opinion filed September 13,
2019. Remanded with directions.

Rebecca A. Hamilton, of Kansas City, Missouri, for appellant.

David Greenwald, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BUSER, P.J., GREEN and MALONE, JJ.

PER CURIAM: Michael Vanderpool Sr. appeals from the denial of his K.S.A. 60-
1507 motion, alleging ineffective assistance of trial counsel. He argues that the trial court
erred by denying his motion because his trial counsel's performance fell below an
objective standard of reasonableness. Nevertheless, a review of the record on appeal
establishes that this court does not have jurisdiction over the merits of Vanderpool's
arguments. Because the record on appeal also shows that Vanderpool's appointed
attorney—Rebecca Hamilton—potentially provided ineffective assistance of counsel by
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not perfecting a timely appeal, however, we remand to the trial court for a hearing under
Albright v. State, 292 Kan. 193, Syl. ¶ 5, 251 P.3d 52 (2011).

A jury convicted Vanderpool of four counts of rape and eight counts of aggravated
criminal sodomy. The trial court sentenced Vanderpool to a controlling sentence of 326
months' imprisonment followed by 36 months' postrelease supervision. Vanderpool
appealed his convictions and sentences to this court. But this court affirmed. State v.
Vanderpool, No. 100,552, 2009 WL 3737333 (Kan. App. 2009) (unpublished opinion),
rev. denied 290 Kan. 1104 (2010).

On June 23, 2011, Vanderpool moved for relief under K.S.A. 60-1507, arguing
that his trial counsel was ineffective. Eventually, the trial court appointed Rebecca
Hamilton to represent Vanderpool on his K.S.A. 60-1507 motion.

The trial court held an evidentiary hearing on Vanderpool's motion on October 23
and 24, 2014. Then, on January 27, 2015, the trial court denied Vanderpool's K.S.A. 60-
1507 motion in a written journal entry.

Although the trial court sent the journal entry to an address allegedly belonging to
Hamilton, nothing indicates that the court mailed the journal entry to Vanderpool
directly. On June 30, 2015, 154 days after the trial court denied Vanderpool's K.S.A. 60-
1507 motion, Vanderpool moved the trial court for more specific factual findings under
K.S.A. 60-252(b). In this motion, Hamilton made the following statement regarding the
timing of Vanderpool's K.S.A. 60-1507 motion:

"The Court issued its ruling on January 27, 2015, but neither counsel [n]or
petitioner were aware of the ruling until March 27, two months later. Although a copy
was mailed to counsel's office, no copy was ever received. Because the ruling was
received exactly sixty days after it was issued, the ability to appeal the ruling was in
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serious jeopardy. It would come as no surprise to anyone that Mr. Vanderpool and his
counsel would want to appeal any adverse rulings by the district court, as both had been
diligently and vigorously pursuing his right to a full and fair hearing on these issues."

In her statement, Hamilton expressly conceded that no notice of appeal was filed within
30 days as required by K.S.A. 2015 Supp. 60-2103(a). Moreover, on July 10, 2015, the
State responded that the trial court should deny Vanderpool's K.S.A. 2015 Supp. 60-
252(b) motion because he filed it outside the statute's 28-day time limit.

On September 2, 2015, the trial court summarily denied Vanderpool's motion in a
written journal entry. The trial court explained that after reviewing all the transcripts and
filings of Vanderpool's case, it "did thoroughly outline the findings and holdings" in its
January 27, 2015 journal entry.

Vanderpool appealed to this court on September 29, 2015. After filing the appeal,
the trial court ordered that Hamilton remain Vanderpool's appointed attorney on appeal.

On March 14, 2018, this court ordered the parties to show cause why jurisdiction
existed over Vanderpool's appeal. This court noted that "the Appellant's motion to amend
or make additional findings of fact was not filed within the time limited by K.S.A. 2017
Supp. 60-252, and the notice of appeal was not filed within 30 days from the entry of
judgment as required by K.S.A. 2017 Supp. 60-2103(a)."

Hamilton now responded that on March 27, 2015, she called the trial judge about
the Vanderpool case, "ask[ing] if [he] had made a decision." Hamilton alleged that it was
at this point that she learned that the judge had already ruled against Vanderpool.
According to Hamilton, "[u]nfortunately, the journal entry was never received, and
apparently the copy Judge Lampson mailed was not returned to him as undelivered. What
happened to the copy of the journal entry remains a mystery." Hamilton further asserted
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that she "raised the issues of the delay in receiving the journal entry in the subsequent
motion for findings of fact, and Judge Lampson accepted this explanation for delay,
allowed the motion to proceed, and filed the final journal entry denying the motion for
specific findings of fact on September 2, 2015."

After providing her explanation why she could not timely file an appeal on behalf
of Vanderpool, Hamilton explained that she "could not find a Kansas case on point" that
would allow Vanderpool to appeal because she untimely filed his K.S.A. 60-252(b)
motion. Even so, she argued that this court should consider Vanderpool's case "in the
interest of justice."

This court "noted" Hamilton's response and then "retained" Vanderpool's appeal.

Does This Court Have Jurisdiction?

Whether jurisdiction exists is a question of law over which an appellate court has
unlimited review. In re Care & Treatment of Emerson, 306 Kan. 30, 34, 392 P.3d 82
(2017). Moreover, appellate courts have a duty to question jurisdiction when the record
on appeal discloses a lack of jurisdiction. Wiechman v. Huddleston, 304 Kan. 80, 84-85,
370 P.3d 1194 (2016). Thus, the State's failure to challenge jurisdiction on appeal does
not bar our consideration of a potential jurisdictional problem.

Regarding the right to appeal, our Supreme Court has explained:

"The right to appeal in a civil case is entirely statutory and not a right guaranteed
by the United States Constitution or the Kansas Constitution. Kansas appellate courts
have jurisdiction to entertain an appeal in a civil case only if that appeal is taken within
the time limitations and in the manner prescribed by the applicable statutes." (Emphasis
added.) Wiechman, 304 Kan. 80, Syl. ¶ 1.

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Accordingly, "[t]he filing of a timely notice of appeal is jurisdictional. Generally, the
failure to file a timely notice of appeal requires dismissal of the appeal." Albright, 292
Kan. at 197.

K.S.A. 2018 Supp. 60-2103(a) provides that persons filing civil appeals must do
so within "30 days from the entry of the judgment." K.S.A. 2018 Supp. 60-2103(a)
further provides that the "running of the time for appeal is terminated by a timely motion
made . . . under K.S.A. 60-252(b), and amendments thereto." Meanwhile, K.S.A. 2018
Supp. 60-252(b) states that parties moving for an amendment of findings or additional
findings must do so within 28 days of the trial court's entry of judgment.

In this case, it is readily apparent that Vanderpool did not comply with K.S.A.
2018 Supp. 60-2103(a)'s time requirements. The trial court denied Vanderpool's K.S.A.
60-1507 motion on January 27, 2015. Although Hamilton filed a motion for additional
findings under K.S.A. 60-252(b), she did so 154 days after the trial court had denied
Vanderpool's K.S.A. 60-1507 motion. In turn, Vanderpool's K.S.A. 60-252(b) motion
was untimely, which never stopped the time to appeal the denial of his K.S.A. 60-1507
motion. Thus, when Vanderpool finally filed his notice of appeal on September 29, 2015,
245 days had elapsed since the trial court had denied his K.S.A. 60-1507 motion on
January 27, 2015. Clearly, 245 days is well beyond the K.S.A. 2018 Supp. 60-2103(a)'s
30-day time requirement. As a result, the record on appeal shows that this court lacks
jurisdiction over Vanderpool's appeal.

We note that when this court retained this case after issuing the show cause order,
we did not have the record on appeal. Yet, our review of the record on appeal does not
support Hamilton's contentions. In fact, nothing in the record on appeal supports
Hamilton's allegation that she had a conversation with the trial judge on March 27, 2015,
about never receiving a journal entry by mail. Moreover, there is nothing in the record on
appeal showing that the trial judge ever accepted those allegations. Further, in its
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response to Vanderpool's K.S.A. 60-252(b) motion, the State continued to argue that
Vanderpool's K.S.A. 60-252(b) motion was untimely. To us, this indicates that the State
had no knowledge of the trial judge's alleged acceptance of Hamilton's reason for the
untimely filing of the K.S.A. 60-252(b) motion.

We draw guidance from our Supreme Court's decision in Albright, which dealt
with an untimely notice of appeal of William D. Albright following the denial of his
K.S.A. 60-1507 motion. Indeed, for this court to have jurisdiction over Vanderpool's
untimely K.S.A. 60-1507 appeal, the trial court must make a finding that Hamilton
provided ineffective assistance of counsel by not perfecting a timely appeal. In Albright,
our Supreme Court explained that "60-1507 movants who have counsel are entitled to the
effective assistance of that counsel, and if counsel's performance was deficient for failure
to file a timely appeal, as a remedy a 60-1507 movant should be allowed to file an out-of-
time appeal." 292 Kan. at 207. In other words, the Albright court held that if a K.S.A. 60-
1507 movant could establish that counsel was deficient by failing to file a timely notice
of appeal, "the remedy for appointed counsel's deficient performance [was for the
appellate court] to accept subject matter jurisdiction of [movant's] appeal." 292 Kan. at
212. Thus, for this court to have jurisdiction over Vanderpool's untimely K.S.A. 60-1507
appeal, the trial court would have to make a factual finding and a legal conclusion that
Hamilton provided ineffective assistance of counsel by not perfecting a timely appeal.

The Albright court created the following test to determine if a K.S.A. 60-1507
movant received ineffective assistance of counsel from his or her attorney in failing to
timely file a notice of appeal, thus, justifying an appellate court to accept an untimely
notice of appeal:

"The rules for determining if a K.S.A. 60-1507 movant received ineffective
assistance of counsel when appointed counsel failed to file a timely appeal are: (1) If the
movant requested that an appeal be filed and it was either not filed at all or not timely
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filed, appointed counsel was ineffective; (2) a movant who explicitly told his or her
appointed counsel not to file an appeal cannot later complain that, by following
instructions, counsel performed deficiently; or (3) in other situations, such as where
appointed counsel has not consulted with the movant or the movant's directions are
unclear, the movant must demonstrate a reasonable probability that, but for appointed
counsel's deficient failure to either consult with the movant or act on the movant's wishes,
an appeal would have been filed. The movant need not show that a different result would
have been achieved but for counsel's performance. If the movant establishes that
counsel's performance was deficient as tested in the first or third prong of this test, the
movant will be allowed to file an appeal out of time." 292 Kan. 193, Syl. ¶ 5.

Based on the record before us, we believe that we could acquire jurisdiction over
Vanderpool's appeal if his case falls under an Albright exception to the timely appeal
requirement. As a result, we remand to the trial court for a hearing in compliance with the
Albright test. We ask the trial court to hold a hearing and enter its findings of facts and
conclusions of law as soon as possible given the court's schedule. We direct the trial court
to appoint counsel for Vanderpool for the Albright hearing. Upon the trial court's ruling,
we ask Vanderpool's appellate counsel, Gerald E. Wells, to file a copy of any request for
transcript or a statement that no transcript will be requested and to file file-stamped,
certified copies of the journal entry of the Albright hearing with the Clerk of the
Appellate Courts.

Both Vanderpool's appellate counsel and the State shall have 20 days from the
date the trial court's journal entry on remand is filed to file supplemental briefs on this
specific issue. The supplemental brief shall be limited to 15 pages each. Requests for
additional briefing will not be granted and extensions of time to file supplemental
briefing will not be allowed. We also direct Vanderpool's appellate counsel to file status
reports with the Clerk of the Appellate Courts on this remanded case every 30 days,
beginning 30 days after the date this opinion is filed.

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This case is remanded to the trial court with directions as provided in this opinion.
The Court of Appeals retains appellate jurisdiction.