Opinion
No. 108,961.
2013-08-2
CITY OF OVERLAND PARK, Kansas, Appellee, v. James L. BROOKS, Appellant.
Appeal from Johnson District Court; Brenda M. Cameron, Judge. James L. Brooks, appellant pro se. Eric R. Blevins, assistant city attorney, Overland Park, for appellee.
Appeal from Johnson District Court; Brenda M. Cameron, Judge.
James L. Brooks, appellant pro se. Eric R. Blevins, assistant city attorney, Overland Park, for appellee.
Before GREEN, P.J., PIERRON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
James L. Brooks appeals the dismissal of his appeal from Overland Park Municipal Court after his conviction for failure to maintain exterior trim in good repair and unlawful outdoor storage at a one or two family dwelling. The district court found Brooks had failed to pay the appearance bond set by the municipal court and therefore the district court lacked jurisdiction over the matter. We reverse and remand for further proceedings.
On September 29, 2011, the City of Overland Park (City) issued Brooks a citation for violating Overland Park Municipal Code 07.26.075 (failure to maintain exterior trim in good repair) and 07.26.170 (unlawful outdoor storage at one or two family dwelling). The citation set the first appearance date/arraignment for November 8, 2011. Brooks failed to appear at arraignment, and the court issued an arrest warrant.
Upon his arrest on January 30, 2012, Brooks executed an appearance bond in the sum of $500, secured by law upon the following condition:
“That said accused shall personally appear before the Municipal Court of Overland Park, Kansas on the 14 day of February, 2012, at 10 o'clock am; and from time to time as required by the Court to answer to the complaint against him, according to his promise to do so, which he hereby makes.”
Brooks was able to obtain approval of the bond without surety. He appeared for his arraignment on February 14, 2012, and pled not guilty to both charges. Brooks has appeared pro se throughout the entirety of these proceedings.
At Brooks' municipal court trial, both sides presented witnesses and arguments. On March 13, 2012, the municipal court found Brooks guilty on both counts and entered a $500 fine for each conviction. The court's journal entry also set forth the following: “Appearance bond on appeal is set at one thousand ninety eight dollars and fifty cents ($1098.50) [$500 for each fine and $98.50 district court docket fee].” The court provided Brooks with a document entitled “Right to Appeal and Expungement.” The document provided:
“In order to appeal, you must fill out a Notice of Appeal, available from the Municipal Court Clerk, and file it and any required appearance bond on appeal with the Municipal Clerk within 14 days from the date of the judgment. You may accept the judgment by paying the fine, serving your time, or going to probation, or you may appeal the decision, but not both.
“The District Court requires that you pay a $98.50 docket fee for the appeal. In addition, if you are convicted on appeal, the District Court Judge may assess penalties less than, equal to, or greater than those imposed by the Municipal Court.
“Your appeal bond receipt sets forth the time and place of your first appearance in District Court. If you fail to appear at that time or at any other time during the course of your appeal, your bond will be forfeited and the case will be returned to the Overland Park Municipal Court for execution on the fine and/or sentence initially imposed.”
The document then listed the “appearance bond on appeal” in the amount of $1,000 and then listed the combined total of fine and courts costs to be S1098.50.
On March 19, 2012, Brooks filed a notice of appeal in Johnson County District Court appealing the judgment of the municipal court. However, Brooks did not file any type of bond. As a result, on April 13, 2012, the City filed a motion to dismiss Brooks' appeal based on jurisdictional defect. The City argued that Brooks failed to pay his appearance bond and such failure deprived the district court of jurisdiction under K.S.A. 22–3609. The district court held a hearing on the City's motion and found:
“The City motions the court to dismiss due to lack of jurisdiction, arguing that the defendant failed to pay the appearance bond as set forth by the municipal court and as outlined in K.S.A. 22–3609; thereby denying the District Court Jurisdiction over the matter currently pending. The Defendant makes several arguments, including, but not limited to, the need for the bond and whether the amount the bond was set at was correct.
“The Court agrees with the City, and remands the case both counts, back to Municipal court for imposition of sentence.”
Brooks filed a timely appeal with our court.
First, Brooks argues the complaint is defective because it fails to state the specific facts that support the violation of both ordinances. However, Brooks contends, in a contradictory manner, that even if the complaint is defective, he still wants a trial in the district court. Brooks also argues the complaint is a defective civil complaint.
The sufficiency of a charging document to confer jurisdiction is a question of law over which an appellate court has unlimited review. State v. Hooker, 271 Kan. 52, 60, 21 P.3d 964 (2001). As this issue is being raised for the first time on appeal, the post-State v. Hall, 246 Kan. 728, 764–65, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003), standard of review applies:
“The post- Hall standard applies a common-sense interpretation of complaints and informations and requires this court to look at whether the claimed defect in the information has prejudiced the defendant in the preparation of his or her defense, impaired the defendant's ability to plead the conviction in any subsequent prosecution, or limited the defendant's substantial rights to a fair trial.” State v. Martis, 277 Kan. 267, 275, 83 P.3d 1216 (2004) (citing Hall, 246 Kan. at 764–65).
“The orderly resolution of criminal law issues requires timely raising of claims relating to the validity of an information. Tardily challenged informations are to be construed liberally in favor of validity. The validity of an information is to be tested by reading the information as a whole. The elements of the offense may be gleaned from the information as a whole. An information not challenged before verdict or finding of guilty or pursuant to K.S.A. 22–3502 by a motion for arrest of judgment will be upheld unless it is so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted. [Citation omitted.]” Hall, 246 Kan. at 764.
Our court has defined a defective complaint as one that fails to “ ‘meet minimum standards of sufficiency or accuracy in form or substance.’ “ City of Topeka v. Mayer, 16 Kan.App.2d 567, 568, 826 P.2d 527,rev. denied 250 Kan. 804 (1992). K.S.A. 12–4113(g) defines a municipal court complaint as “a sworn written statement, or a written statement by a law enforcement officer, of the essential facts constituting a violation of an ordinance.” A complaint must be stated with enough detail to inform the defendant of the criminal act with which he or she is charged. City of Ahamont v. Finkle, 224 Kan. 221,223, 579 P.2d 712 (1978).
Here, the municipal court complaint/notice to appear sufficiently gave Brooks notice of the violations charged and provided the municipal court with jurisdiction. The details on the citation include the time and location of the offense, the reporting officer, and an allegation that Brooks failed to maintain exterior trim in good repair violating Overland Park Municipal Code 07.26.075 and unlawful outdoor storage at a one or two family dwelling violating 07.26.170. The defendant was adequately informed of the essential facts constituting the crime of which he was charged. The citation was not defective.
Second, Brooks argues that if the complaint is defective, then he was subjected to false arrest and kidnapping. The citation against Brooks was not defective and renders this issue moot. See State v.. Torres, 293 Kan. 790, 792, 268 P.3d 1197 (2012) (appellate courts generally do not decide moot questions). In any event, Brooks cites no authority to support his claim, and we find that Brooks was properly arrested for his failure to appear. See K.S.A.2012 Supp. 12–4209(c) (if a defendant fails to appear in response to a notice to appear, a warrant shall be issued).
The meat of this appeal is whether the district court erred in granting the dismissal of the appeal from municipal court because Brooks failed to file the “appearance bond on appeal” as ordered by the municipal court. The district court found Brooks' infirmity was fatal to the district court's jurisdiction to consider the case. We disagree.
Our review of jurisdictional questions and the effect of the appearance bond requirement involve the interpretation of multiple statutes in the criminal code, the civil code, and the municipal code. The interpretation of a statute is a question of law subject to unlimited review. State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005). Furthermore, whether jurisdiction exists is similarly a question of law over which we have unlimited review. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012).
Appeals from municipal court decisions are purely statutory. K.S .A.2012 Supp. 22–3609—in the criminal code—entitled “Appeals from municipal courts” provides:
“(2) An appeal to the district court shall be taken by filing, in the district court of the county in which the municipal court is located, a notice of appeal and any appearance bond required by the municipal court. Municipal court clerks are hereby authorized to accept notices of appeal and appearance bonds under this subsection and shall forward such notices and bonds to the district court. No appeal shall be taken more than 14 days after the date of the judgment appealed from.” (Emphasis added.)
In the municipal code, the appellate statute in K.S.A. 12–4602 includes a reference to K.S.A.2012 Supp. 22–3609 for the appropriate appellate procedure: “An appeal to the district court may be taken as provided in K.S.A. 22–3609. The appearance bond may continue in affect throughout the appeal; however, the municipal judge may require a separate appeal bond. Hearing and judgment on appeal shall be as provided in K.S.A. 22–3610 and 22–3611.”
Several cases have interpreted jurisdictional questions involving appearance bonds and appeal bonds. The caselaw is clear that failure to file an appearance bond pursuant to K.S.A.2012 Supp. 22–3609 deprives the district court of subject matter jurisdiction. See City of Dodge City v. Reyes, 35 Kan.App.2d 756, 758, 133 P.3d 1291 (2006) (“Failure to follow the provisions of K.S.A.2005 Supp. 22–3609 is a jurisdictional defect which deprives the district court of jurisdiction to proceed with an appeal. See City of Overland Park v. Barron, 234 Kan. 522, 526–27, 672 P.2d 1100 [1983].”). However, courts have permitted an Ortiz exception where the failure to file the appearance bond is attributable to a mistake by defense counsel. See City of Dodge City v. Ibarra, 35 Kan.App.2d 643, 645–46, 133 P.3d 159 (2006) (applying State v.. Ortiz, 230 Kan. 733, Syl. ¶ 3, 640 P.2d 1255 [1982] ).
Two cases are relevant in the distinction between an appearance bond and an appeal bond—City of Salina v. Aldridge, 14 Kan.App.2d 1)8, 782 P.2d 1257 (1989), and City of Newton v. Kirkley, 28 Kan.App.2d 144, 12 P.3d 908 (2000).
In Aldridge, the municipal court set an “appeal bond” at $100 when Aldridge filed his notice of appeal. The bond was executed by the surety and subsequently approved by the municipal judge. The district court dismissed the appeal for lack of jurisdiction because the bond was not filed within 10 days pursuant to K.S.A. 22–3609. The record on appeal referred to the bond as an “appeal bond,” but both parties at oral argument stated it was an “appearance bond.” The Aldridge court noted that the municipal judge may require an appearance bond and a separate appeal bond from the defendant, but the notice of appeal stated the “ ‘appeal bond” was set at $100. 14 Kan.App.2d at 109. The court held that the filing of the bond within 10 days is not jurisdictional if the bond in question is an appeal bond under K.S.A. 12–4602, and K.S.A. 22–3609 does not require an appeal bond as part of the 10–day filing requirement. 14 Kan.App.2d at 108–10.
In Kirkley, the court relied heavily on Aldridge to support its decision that failure to file an appeal bond is not jurisdictional. Kirkley was convicted in municipal court for possession of drug paraphernalia and carrying a deadly weapon. The court set his appeal bond at $1,750. Kirkley filed a timely notice of appeal to the district court. Kirkley's counsel failed to appear at Kirkley's first appearance in district court. The district court advised counsel that the municipal court had set an appeal bond of $1,750, that no record showed the appeal bond had been posted, and that the district court did not have jurisdiction to hear the case. The district court later dismissed the case for lack of jurisdiction and remanded it to the municipal court for execution of sentence. The district court based its ruling on the 10–day appearance bond requirement in K.S.A.1999 Supp. 22–3609(2).
In Kirkley, the court relied on the Aldridge court's differentiation between an appearance bond under 22–3609(2) and an appeal bond under K.S.A. 12–4602. The Kirkley court had one additional clarification of Aldridge:
“We now observe that the Aldridge holding was further supported by the statutory construction maxim expressio unius est exclusio alterius, i.e., the inclusion of one thing implies the exclusion of another. In short, if the legislature had intended the filing of an appeal bond within 10 days to be jurisdictional, it could have mentioned the appeal bond in 22–3609(2) alongside the notice of appeal and the appearance bond.” 28 Kan.App.2d at 146.
The Kirkley court commented that the city argued the bond was an appearance bond that must be filed within 10 days to secure jurisdiction because it was set to assure Kirkley's appearance in district court and the district court's journal entry did not identify which type of bond was not timely filed. The Kirkley court disagreed:
“The record shows us the title of the municipal court's order for the bond was ‘Order for Appeal Bond.’ The bond itself is titled ‘Appeal Bond,’ and the district court repeatedly refers to the bond as an appeal bond in its correspondence with the attorneys. Under Aldridge, the filing of an appeal bond within 10 days is not jurisdictional. Reversed and remanded for reinstatement of the appeal and further proceedings thereon.” 28 Kan.App.2d at 146–47.
The case of City of Salina v. Lara, No. 105,121, 2011 WL 5027124 (Kan.App.2011) (unpublished opinion), as cited by the State in this case, recently applied the principles set forth in Aldridge and Kirkley. In Lara, the court considered the appeal from a municipal court DUI conviction. Lara was sentenced to a 6–month suspended sentence and 1 year of probation. The municipal court set an “Appearance Bond on appeal” payable in the amount of $785 plus $84.50 cash to the district court. Lara's counsel signed the journal entry. The confusion was that in the municipal court's full court case management system, the city clerk identified the bond as an appeal bond after reviewing the journal entry for Lara's conviction. Lara filed a notice of appeal and a motion requesting the district court to set an appeal bond. The district court granted the motion and set the appeal bond in the amount of $500 cash or surety. Lara posted the $500 appeal bond.
The City of Salina filed a motion to dismiss in district court, arguing the district court lacked jurisdiction because Lara failed to file the appearance bond within 10 days of the judgment as required by K.S.A. 22–3609(2). The district court granted the City's motion by concluding that the bond order was “ ‘clearly an appearance bond and in very specific amounts' “ and Lara's failure to execute the appearance bond deprived the court of subject matter jurisdiction.
The Lara court stated that the municipal court judge set an appearance bond. The journal entry set an appearance bond on appeal in a specific amount. At Lara's motion hearing, both the municipal court judge and the city prosecutor testified that the bond set during the sentencing was an appearance bond. The Lara court discounted the city clerk's mistaken clerical entry as having no “binding legal significance.” 2011 WL 5027124, at *3. The Lara court concluded:
“It is clear to us that the defendants are asking us to ignore or waive their statutory obligations under K.S.A. 22–3609(2) and K.S .A. 12–4301. Neither Lara or Breault [companion case] paid or filed the appearance bond set at sentencing within 10 days. Nor did they execute in writing any type of writing prom sing to appear. Both defendants did not properly perfect their appeal, and the district court lacked subject matter jurisdiction.” 2011 WL 5027124, at *4.
In light of the above caselaw, we have examined this case under two possible resolutions and find the district court had jurisdiction to consider Brooks' appeal in either case. First, there was an appearance bond already in existence in Brooks' case when he was sentenced by the municipal court. Brooks had executed an appearance bond in the sum of $500, secured by law upon the condition that he appear at the specified time and also “from time to time as required by the Court to answer to the complaint against him.”
The legislature contemplated the continuation of Brooks' appearance bond during an appeal through language in K.S.A. 12–4602 that “[the] appearance bond may continue in effect throughout the appeal.” Arguably, the appearance bond was already in place postmunicipal court sentencing and Brooks' filing of the notice of appeal perfected the appeal under K.S.A.2012 Supp. 22–3609. Any modification of the $500 appearance bond would have required Brooks' consent or possibly even a surety. To appeal a municipal court decision, the defendant—within 14 days—must file a notice of appeal and any appearance bond required by the municipal court. K.S .A. 12–4602; K.S.A.2012 Supp. 22–3609. Brooks met the requirements for the appeal.
Under the second scenario, the bond ordered by the court, although termed an “appearance bond on appeal,” does not meet the definition of an appearance bond. In Brooks' case, the parties have been consistent in the terminology of the bond. Brooks' bond has time and time again been referred to as an “Appearance Bond on Appeal.” Everyone except Brooks considered the “Appearance Bond on Appeal” to be an appearance bond pursuant to K.S.A. 12–4602 and K.S.A.2012 Supp. 22–3609, and as a result subject to the 14–day jurisdictional filing requirement.
If we would blindly apply Aldridge, Kirkley, and Lara to this case—since the court in its ruling and journal entry called this an appearance bond—then by its declaration it is an appearance bond. Since Brooks failed to execute the bond within the 14–day jurisdictional requirement, he would be out of time. However, the sentences of the defendants in Aldridge, Kirkley, and Lara become important. Aldridge was sentenced to 30 days in jail The Aldridge court called it an appeal bond, but it was actually an appearance bond because he stayed out of custody by executing the bond. From the opinions in Kirkley and Lara, we are unable to determine whether they were subjected to a jail sentence. Whether the defendant in a municipal court case is sentenced to jail is a factor in the ultimate determination of whether the defendant is given an appearance bond or an appeal bond under K.S.A. 12–4602.
The definition of “Appearance Bond” is consistent within both the criminal code and the municipal code. K.S.A. 22–2202(2) provides “ ‘Appearance bond’ means an agreement with or without security, entered into by a person in custody by which the person is bound to comply with the conditions specified in the agreement.” In the municipal context, K.S.A. 12–4113(a) similarly provides that “ ‘Appearance bond’ means an undertaking, with or without security, entered into by a person in custody by which the person is bound to comply with the conditions of the undertaking.”
The operative phrase in both definitions is that the appearance bond is entered into by a “person in custody.” K.S.A. 22–2202(9) defines “custody” as “the restraint of a person pursuant to an arrest or the order of a court or magistrate.” Furthermore, K.S.A.2012 Supp. 22–2802(1) states, in relevant part:
“Any person charged with a crime shall, at the person's first appearance before a magistrate, be ordered released pending preliminary examination or trial upon the execution of an appearance bond in an amount specified by the magistrate and sufficient to assure the appearance of such person before the magistrate when ordered and to assure the public safety.”
The bond ordered by the municipal court at Brooks' sentencing cannot be an appearance bond under the municipal code or the criminal code because he was not “in custody” as a result of his municipal court sentence. Brooks' was only sentenced to a $500 fine for each of the code violations.
Under either of the scenarios discussed above, the court obviously wanted to enter a bond as a result of the case. By default then, since Brooks was not given a jail sentence, the bond was an appeal bond under K.S.A. 12–4602, which states: “The appearance bond may continue in effect throughout the appeal; however, the municipal judge may require a separate appeal bond.” The court in Aldridge recognized that the municipal judge may require an appearance bond and a separate appeal bond from the defendant. 14 Kan.App.2d at 109. As an appeal bond, it is not jurisdictional, and since Brooks timely filed his notice of appeal he should be given the opportunity to pay the appeal bond within a reasonable time as ordered by the municipal court in order for the district court to hear the case. K.S.A.2012 Supp. 22–3609 does not require an appeal bond as part of the 14–day filing scenario and the filing of an appeal bond within 14 days is not a jurisdictional requirement. See Aldridge, 14 Kan.App.2d at 110.
As for Brooks' remaining arguments, we find no merit in unsupported allegations of racketeering, fraud, and prejudice by the municipal or district court's actions in this case. We reverse and remand for reinstatement of the appeal and further proceedings consistent with this opinion.
Reversed and remanded with directions.