State v. Cheun-Phon Ji

Citations: 872 P.2d 748; 255 Kan. 101; 1994 Kan. LEXIS 63Docket: 69,367

Court: Supreme Court of Kansas; April 15, 1994; Kansas; State Supreme Court

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In the case of State of Kansas v. Cheun-Phon Ji, the Supreme Court of Kansas addressed an appeal following the defendant's unsuccessful motion to modify his sentence. The defendant filed his motion on September 30, 1992, 77 days after the court's mandate from his direct appeal was filed on July 15, 1992. The sentencing judge denied the motion after a hearing on November 30, 1992, with the formal journal entry of denial filed on December 16, 1992. Ji filed his notice of appeal on December 30, 1992, which was 168 days after the mandate, 30 days post-hearing, and 14 days after the journal entry. The court raised a jurisdictional issue regarding the timeliness of Ji's appeal. It emphasized that the right to appeal is statutory and that the court cannot entertain an appeal filed outside the prescribed time limits. The State contended Ji's notice was timely, while Ji's counsel did not address the jurisdictional issue in their briefs, though the Kansas Appellate Defender's Office was permitted to provide input as amicus curiae. The three issues before the court included the timeliness of the appeal, whether the judge abused discretion in denying a psychological evaluation, and whether the judge abused discretion in denying Ji's request to appear at the hearing.

Ji was required to file his notice of appeal regarding the judge's refusal to modify his sentence within a 10-day period following the expiration of the district court's authority to modify the sentence, as mandated by K.S.A. 1992 Supp. 22-3608(1). Under K.S.A. 1992 Supp. 21-4603(4), the district court could modify a sentence within 120 days after receiving a mandate from a prior appeal. Together, these statutes allow a criminal defendant a maximum of 130 days from sentencing or the appeal mandate to file a notice of appeal related to a modification motion. 

Three exceptions to this filing period are established in relevant case law. The 'unique circumstances' doctrine from Schroeder v. Urban permits an appeal to be maintained if the appellant reasonably relies on a court order extending the appeal period, provided the extension is for no more than 30 days, is issued before the official appeal deadline, and the appeal is filed within this extended timeframe. In Ji's case, the judge did not grant any extension of the 10-day appeal period; therefore, this doctrine does not apply.

The second exception noted in State ex rel. Owens v. Hodge clarifies that a district judge does not lose jurisdiction over a motion to reduce a sentence or grant probation if the defendant timely files such a motion within the 120-day period, and the judge requires additional time to consider it. Thus, the expiration of the 120-day period does not automatically negate the court's jurisdiction to act on timely filed motions.

The district court retained jurisdiction to rule on Ji's motion to modify his sentence despite the expiration of the standard 120-day period following the mandate, as Ji filed his motion within that timeframe. The judge heard the motion 138 days post-mandate, relying on the Owens rationale, which extends the period for filing and hearing such motions. However, this extension does not apply to the subsequent 10-day period outlined in K.S.A. 22-3608(1) for appealing a sentence modification refusal.

In the case of Myers, the defendant filed a motion to modify his sentence within the required 130 days but received an oral denial 126 days after sentencing, with the journal entry filed 141 days later. The court clarified that an appeal must be filed within 130 days after sentencing, with the critical question being whether the 10-day appeal period starts from the oral denial or the journal entry. The court concluded that the appeal period begins with the journal entry, not the oral ruling, highlighting that the defendant's presence is mandatory at sentencing but discretionary for post-sentencing motions. Consequently, the defendant has 10 days from the journal entry to appeal, which was deemed timely in this case.

Judge Rees dissented, expressing concern that the majority's interpretation effectively extended the appeal period beyond statutory limits, creating uncertainty regarding the 130-day timeframe for criminal appeals.

In Myers, the Kansas Court of Appeals established that the 10-day period to file a notice of appeal following a motion to modify a sentence begins upon the filing of the journal entry related to that motion. This principle was referenced but not explicitly endorsed or rejected in State v. Saft, which addressed the district court's jurisdiction to modify sentences within 120 days of a prior modification but beyond 120 days from the original sentencing. The Saft court emphasized that the appeal period runs from the original sentence's imposition date. Myers also indicated that defendants are not entitled to be present during a ruling on a motion to modify a sentence, as noted in State v. Pierce and State v. Wills.

The central issue is whether Ji's appeal deadline expired 10 days after the judge orally denied the modification or after the journal entry was filed. The State conceded that if the civil procedure rules (K.S.A. 1993 Supp. 60-206(a)), which exclude weekends and holidays from short filing periods, are applied, Ji's appeal was timely. Ji filed the notice 14 days after the journal entry but effectively 8 days later, factoring in excluded days. However, the State argues that the Myers ruling contradicts the legislative intent of K.S.A. 22-3608 and 21-4603, which impose specific appeal deadlines. They contend the timeline established by Myers allows for an appeal period that could extend beyond the statutory limits, complicating the determination of appeal deadlines for litigants.

The amicus curiae supports applying civil appellate procedure rules to criminal appeals, especially for timelines under 11 days, advocating for the Myers rule to be extended beyond motions to modify to all scenarios where a defendant's presence is unnecessary, such as motions for new trials and acquittals, given the new sentencing guidelines that require timely appeal filings.

The amicus curiae raises concerns regarding the implications of a defendant's absence from a hearing, arguing that it cannot be assumed the defendant was promptly informed of the trial court's decision. It highlights the undue hardship of requiring a defendant in custody to file an appeal within 10 days of a ruling without being present. The amicus references Supreme Court Rule 2.04, which necessitates a journal entry before an appeal can be docketed, suggesting that an appeal filed within 10 days cannot proceed until this entry is filed.

The discussion includes the applicability of appellate rules to both civil and criminal appeals, governed by K.S.A. 1993 Supp. 60-206(a), which outlines time computation and extension procedures. Notably, this rule excludes the day of the act or event from the computation and requires that the last day be included unless it falls on a weekend or holiday. It also states that for periods shorter than 11 days, weekends and holidays are excluded.

The excerpt emphasizes the longevity and acceptance of the rule established in State v. Myers over the past nine years, suggesting that the principles of stare decisis promote legal stability and continuity. It notes that the legislature has not repudiated the Myers decision despite frequent amendments to related statutes, implying legislative acceptance of the court's interpretation.

The Myers rule is defended as providing a clear standard for assessing jurisdictional timeliness, irrespective of individual case facts, and clarifies that defendants do not have an inherent right to be present at hearings.

In felony cases, defendants are required to be physically present at the arraignment and throughout all trial stages, including jury impaneling, verdict return, and sentencing, as mandated by K.S.A. 22-3405(1). The court must document the judgment and sentencing in the court journal, which the judge must personally sign (K.S.A. 22-3426). Sentencing is officially recorded when the judge states it orally in open court. However, a defendant's right to be present does not extend to post-conviction hearings. In *State v. Bryant*, it was ruled that a convicted defendant does not automatically have the right to be present at new trial motion hearings, with the decision resting at the discretion of the district judge. Similarly, whether a defendant is entitled to a hearing on a motion to modify a sentence under K.S.A. 1992 Supp. 21-4603(4) is also discretionary, based on the trial court’s assessment of the record. Judges may defer decisions, providing a written order later, and journal entries are filed, albeit sometimes with delays. 

In *State v. Nelson*, the court examined the applicability of the mail time provisions under 60-206(e) of the Code of Civil Procedure to appellate criminal practice. The district court found that only specific parts of the Code applied under the doctrine of expressio unius est exclusio alterius. The Supreme Court noted that the language of 60-206 indicates its provisions could apply to criminal appellate practice, particularly in time computation, ensuring clarity and consistency with district court practices. This approach allows for practical considerations regarding mailing delays, concluding that 60-206 should apply in relevant circumstances unless contradicted by Supreme Court rules.

The Nelson court acknowledged previous confusion regarding the applicability of certain legal principles but aimed to clarify the matter. It affirmed that applying the rationale from Myers and K.S.A. 60-206 to appellate criminal practice—specifically when the defendant is not mandated to be present at hearings—serves several beneficial purposes: it clarifies time computation, aligns practices with district court procedures familiar to attorneys, and provides essential additional time for actions triggered by mailed documents. As a result, Ji's appeal regarding the district court's failure to modify his sentence was deemed timely.

The facts of Ji's case involve his conviction for first-degree murder and multiple counts of attempted murder after he opened fire in a church, resulting in one death and several injuries. Following his conviction and sentencing, Ji sought to modify his sentence and requested a psychological evaluation prior to the modification hearing. A prior DOC report indicated Ji had been placed in administrative segregation for making threatening statements. His parents submitted a letter requesting leniency based on their health concerns. During the modification hearing, Ji's counsel argued for his attendance, emphasizing the need to observe the impact of incarceration on him and noting the lack of a psychological evaluation. However, a fax suggested Ji had previously declined an evaluation.

The State opposed Ji's attendance, citing his past conduct, and argued against modifying his sentence due to the severity of his crime. Ji’s counsel mentioned potential deportation if released. The district judge, having reviewed relevant statutes, concluded that Ji had not shown any change in attitude that would warrant a different sentencing outcome. He expressed skepticism about the utility of a psychological evaluation and found no new information to influence his decision, believing Ji's appearance would not provide any benefit.

The analysis of K.S.A. 21-4606 indicates that although the defendant had no prior criminal history, he intended to cause significant harm and inflicted severe damage on the victim without provocation. His mental delusions were noted but deemed insufficient for a legal defense, and there was no evidence suggesting any change in his mental state. Releasing him might lead to his deportation, but it was argued that such an action would be detrimental to society. The judge found no grounds for continued hearings or psychological evaluations and denied Ji's requests to appear, for an evaluation, and for a modification of his sentence, which Ji is now appealing.

Ji claims his constitutional right to equal protection is being violated due to his mental condition, referencing State v. Barraza-Flores, where an illegal alien was denied equal protection based on citizenship. He argues that the judge's denial of an evaluation was arbitrary, based on a past refusal to release his records, and asserts that the judge feared a recommendation for sentence reduction. The State contends that Ji’s refusal to release records justified the judge's decisions and that there was no abuse of discretion. The summary references a case (State v. Tillman) where a lack of evaluation led to a modification error, contrasting it with Ji’s situation, where he had the opportunity for evaluation but declined.

Ji was not entitled to a second evaluation, as there was no statutory requirement for one, and the decision rested with the judge's discretion. Ji's refusal to allow his institutional records to be shared with his counsel contributed to the court's conclusion that further psychological evaluation would be futile. The court's denial of an evaluation was deemed reasonable and not an abuse of discretion. 

Regarding the hearing on Ji's motion to modify his sentence, Ji acknowledged that the decision to return a defendant for such a hearing is discretionary. He argued that no reasonable judge would rule without a TCF report or the defendant's presence, claiming the judge's refusal was an abuse of discretion motivated by a desire to keep him imprisoned. However, the law does not guarantee a defendant's presence at post-conviction hearings, making this decision a matter of the judge's discretion based on the existing record.

Ji claimed that his crimes were multiplicitous and argued that the consecutive nature of his sentences was unjust. He expressed feelings of being treated as a societal issue rather than as an individual, citing mental illness as a mitigating factor. The State countered that the denial of Ji's request to be present at the hearing and to modify his sentence was justified, as the evidence presented did not substantiate his claims for modification. The court found no abuse of discretion in the denial of his motion and affirmed the original sentencing.