Opinion
No. 111631.
06-05-2015
KANSAS DEPARTMENT OF REVENUE, Appellee, v. Leon FLETCHER, Appellant.
Leon Fletcher, appellant pro se. Jennifer E. Bazin, of Kansas Department of Revenue, for appellee.
Leon Fletcher, appellant pro se.
Jennifer E. Bazin, of Kansas Department of Revenue, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
In 2007, the Kansas Department of Revenue (KDOR) determined Leon Fletcher had failed to pay taxes on a quantity of illegal substances found in his home. The KDOR sent to Fletcher's home address a notice of the assessment of taxes owed on the drugs. The director of taxation then issued a warrant to collect the amount owed and subsequently collected cash from Fletcher's possessions to satisfy the warrant. Fletcher failed to pursue administrative remedies regarding the assessment and warrant. In 2008, Fletcher filed a motion for the return of the money, which was denied. Fletcher failed to perfect a direct appeal of the judgment. In 2013, Fletcher filed a motion for relief of judgment pursuant to K.S.A. 60–260(b)(4) alleging the district court never had jurisdiction over him based on KDOR's lack of proper notice of the assessment. The court summarily denied this motion, which Fletcher now appeals. Because the record indicates Fletcher received the notice and due process owed to him, we affirm.
On July 18, 2007, police officers searched Fletcher's home and took “illegal pills” that belonged to Fletcher. Fletcher was arrested and taken to the Wyandotte County Jail. The criminal case is not subject to this appeal. On July 26, 2007, the director of taxation served an assessment and penalty totaling $12,000 on Fletcher's home address based on his failure to pay taxes on the drugs found during the search of his home. The notice is not included in the record, but the parties agree to this fact.
On August 1, 2007, the KDOR issued a tax warrant against Fletcher in the amount of $12,000 for Fletcher's failure to pay taxes on a controlled substance. It appears KDOR took possession of that amount of cash from Fletcher that same day. Fletcher did not pursue the administrative remedies for challenging the assessment and warrant.
On March 3, 2008, Fletcher filed a motion for return of property. He argued the State wrongfully took cash from him when the officers arrested him. He contended the money was the proceeds from a real estate transaction, and there was no correlation between the cash and his underlying criminal conduct. Therefore, he concluded the State could not take the money.
On October 8, 2008, the district court issued its journal entry denying Fletcher's motion.
Fletcher filed a notice of appeal and motion for appeal on October 23, 2008. However, Fletcher never docketed this appeal. The district court summarily dismissed his appeal on July 20, 2011.
On May 10, 2013, Fletcher filed a motion for relief from judgment pursuant to K.S.A. 60–260(b)(4). Fletcher argued the district court lacked jurisdiction over him because KDOR never properly served him with a notice of a tax assessment. Therefore, he contended, his rights under the Fifth Amendment of the United States Constitution were violated because the government deprived him of $12,000 without due process of law.
On August 27, 2013, the district court issued its order summarily denying Fletcher's motion. The court cited two reasons for denying his motion: (1) Fletcher's failure to perfect an appeal of the denial of his motion for the return of property in 2008; and (2) the statute governing the taxation of illegal substances allowed for the immediate collection of property, contrary to Fletcher's assertion that he was owed notice 15 days prior to collecting the funds.
On September 26, 2013, Fletcher mailed his notice of appeal from prison. The district court filed his notice on October 4, 2013.
Before moving to the merits of Fletcher's appeal, two issues should be addressed. First, as KDOR points out, it is unclear whether Fletcher is challenging the tax assessment and warrant or seeking review of the October 2008 judgment as Fletcher refers to the invalid “forfeiture” of his money throughout his brief. To clarify-there was never a forfeiture proceeding below as suggested by Fletcher. Forfeitures are governed by the Kansas Standard Asset Seizure and Forfeiture act, K.S.A. 60–4101 et seq. Instead, Fletcher's money was obtained in a tax proceeding based on Fletcher's failure to pay tax on a controlled substance pursuant to K.S.A. 79–5201 et seq. This tax proceeding involved KDOR and the director of taxation-it was never before the district court. The district court only heard Fletcher's motion for the return of property after the conclusion of the tax proceeding and his K.S.A. 60–260 motion, which is the subject of this appeal. However, the issues he raises suggest he challenges the assessment and warrant. In the end, it does not matter which he is challenging. A review of the record and applicable case law indicates this court should affirm the district court's denial of his K.S.A. 60–260 motion regardless.
Next, though the parties do not address the issue, it is worth noting that Fletcher's notice of appeal should be considered timely even though it was filed in the district court more than 30 days after the journal entry of judgment. The prisoner mailbox rule, which allows us to consider a document “filed” when it is delivered to prison authorities for mailing, applies. See Sauls v. McKune, 45 Kan.App.2d 915, 916, 260 P.3d 95 (2011). The postmark date indicates the prison mailed Fletcher's notice of appeal on September 26, 2013, which was within 30 days of the judgment. See State v. Dillingham, No. 99,189, 2008 WL 5428180 (Kan.App.2008) (unpublished opinion) (applying the prisoner mailbox rule to a notice of appeal).
Next, we will consider whether the district court properly denied Fletcher's K.S.A. 60–260 motion.
Fletcher relies on K.S.A. 60–260(b)(4) to support his argument that the facts of this case indicate he deserves relief from judgment as it was a void judgment.
The Kansas Supreme Court articulated our standard of review for an appeal of the denial of a motion pursuant to K.S.A. 60–260(b)(4) in In re Adoption of A.A.T., 287 Kan. 590, 598–99, 196 P.3d 1180 (2008),
“Although abuse of discretion is generally the correct standard for review of district court decisions under K.S.A. 60–260(b), see In re Marriage of Reinhardt, 38 Kan.App.2d 60, Syl. ¶ 1, 161 P.3d 235 (2007), this is not so when a judgment is attacked as void under K.S.A. 60–260(b)(4). A judgment is void and therefore a ity if a court lacked jurisdiction to render it or acted in a manner inconsistent with due process. Automatic Feeder Co. v. Tobey, 221 Kan. 17, 21, 558 P.2d 101 (1976) ; Board of Jefferson County
Comm'rs v. Adcox, 35 Kan.App.2d 628, 635–36, 132 P.3d 1004 (2006). A district court has no discretion to exercise in such a case; either a judgment is valid or it is void as a matter of law. Thus, a reviewing appellate court must apply a de novo standard once a district court has made the necessary findings of fact. See In re Marriage of Hampshire, 261 Kan. 854, 862, 934 P.2d 58 (1997) ; Adcox, 35 Kan.App.2d at 635, 132 P.3d 1004.
“The necessary, underlying findings of fact are reviewed under a different standard of review: Findings of fact are reviewed on appeal to determine if they are supported by substantial competent evidence and are sufficient to support the conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a finding. Owen Lumber Co. v. Chartrand, 283 Kan.
911, 915–16, 283 Kan. 911, 157 P.3d 1109 (2007). An appellate court must not reweigh the evidence, substitute its evaluation of the evidence for that of the district court, or pass upon the credibility of the witnesses. See In re Estate of Sauder, 283 Kan. 694, 718, 156 P.3d 1204 (2007).”
In this case, Fletcher argued for relief from the judgment in the underlying proceeding because it was allegedly void since KDOR never had proper personal jurisdiction over him. He argued KDOR never had jurisdiction over him because it failed to provide him proper notice of the tax assessment. He specifies two problems with the notice: (1) the notice was mailed to his home address even though Fletcher was imprisoned at the time; and (2) the director of taxation did not wait the required 15 days after filing the tax assessment before issuing the tax warrant. Based on these two errors, Fletcher argued he did not receive proper notice and therefore his right to due process was violated. As such, he claimed he was entitled to relief pursuant to K.S.A. 60–260(b)(4). The district court summarily denied this motion. We turn to the district court's findings of fact.
The district court found that the assessment was issued July 26, 2007, and Fletcher failed to pursue his administrative remedies to challenge the correctness of that assessment. Additionally, the court found it had determined Fletcher was not entitled to the return of the monies and the district court had issued its written order on October 8, 2008. The court found Fletcher also had failed to perfect a direct appeal of that order and made no attempt to explain why he had not perfected an appeal. These findings are supported by substantial competent evidence. Fletcher acknowledges that the assessment was issued on July 26, 2007. Also, there is nothing in the record indicating Fletcher pursued his administrative remedies to challenge the assessment. The order from October 2008 is included in the record on appeal. Additionally, Fletcher's notice of appeal and motion for appeal are included in the record. However, a review of this court's records indicates a docketing statement was never filed. Finally, the certified appearance docket indicates the appeal was summarily dismissed in July 2011.
We will next determine if the factual findings support the district court's conclusions of law without providing any deference to the district court.
K.S.A. 60–260 allows a district court to correct mistakes in a judgment or provide a defendant relief from a final judgment in specific circumstances or when relief is justified. K.S.A. 60–260(b)(4) allows a court to provide a defendant relief from judgment when “the judgment is void.” A judgment is void “ ‘only if the court that rendered it lacked jurisdiction of the subject matter or of the parties or if the court acted in a manner inconsistent with due process. [Citations omitted.]” ‘ In re Marriage of Johnson, No. 89,915, 2003 WL 22990188, at *4 (Kan.App.2003) (unpublished opinion). However, a motion under K.S A. 60–260(b) is not a substitute for a direct appeal; nor is it intended to provide a party relief from “free, calculated, and deliberate choice[s]” he made. See In re Estate of Butler, 301 Kan. 385, 396, 343 P.3d 85 (2015) ; Vogeler v. Owen, 243 Kan. 682, 685, 763 P.2d 600 (1988) ; Neagle v. Brooks, 203 Kan. 323, 454 P.2d 544 (1969) ; Byrd v. Ellis, No. 104,752, 2011 WL 3658383 (Kan.App.2011) (unpublished opinion).
Here, Fletcher alleges the lack of proper notice violated his due process rights. The right to adequate notice injudicial proceedings is a fundamental right guaranteed by statute and the Fourteenth Amendment of the United States Constitution. Without adequate notice, due process is denied and any judgment is void. See In re M.L.G., No. 110,077, 2014 WL 642233, at *7 (Kan.App.2014) (unpublished opinion) (citing In re H.C. 23 Kan.App.2d 955, 958, 939 P.2d 937 [1997] ).
In this case, Fletcher failed to avail himself of either the administrative remedies available to him after the assessment and warrant were issued or his right to a direct appeal of the denial of his motion for the return of property. As such, his K.S.A. 60–260(b)(4) motion appears to be an attempt to circumvent the requirements of both the administrative process and the direct appeal process or provide relief from his deliberate choice not to pursue either of those options. Nonetheless, we will consider his arguments because a void judgment can be vacated at any time. State ex rel. Secretary of SRS v. Clubb, 30 Kan.App.2d 1, 4, 39 P.3d 80 (2001).
A review of the statutes governing the assessment and tax warrant against Fletcher indicates his challenge is meritless. The tax warrant against Fletcher has statutory authority through K.S.A. 79–5201 et seq. , The Marijuana and Controlled Substances Act (Act). The Act allows the director of taxation to immediately assess a tax once it becomes clear that a dealer has not paid the tax on marijuana or controlled substances. K.S.A.2007 Supp. 79–5205(a). The director may then mail the assessment to the taxpayer at his last known address and demand its immediate payment. K.S.A.2007 Supp. 79–5205(a). The amount assessed by the director is “presumed to be valid.” K.S.A.2007 Supp. 79–5205(b). The taxpayer carries the burden to show the amount is incorrect or invalid. K.S.A.2007 Supp. 79–5205(b). “Within 15 days after the mailing ... of such notice ..., the taxpayer may request an informal conference with the secretary of revenue ... relating to the tax, penalties and interest assessed by filing a written request with the secretary.” K.S.A.2007 Supp. 79–5205(d). After an informal hearing, the secretary must issue its written final determination within 270 days of the date of the request. K.S.A.2007 Supp. 79–5205(d). This written final order “constitutes final agency action subject to administrative review by the state board of tax appeals [BOTA] pursuant to K.S.A. 74–2438.” K.S.A.2007 Supp. 79–5205(d). However, a taxpayer's request for an informal conference or appeal to the state board of tax appeals does not stay the collection of the assessment. K.S.A.2007 Supp. 79–5205(d).
When a taxpayer who is liable to pay a tax pursuant to the Act fails to “immediately pay the amount due, the director of taxation may issue one or more warrants for the immediate collection of the amount due.” K.S.A.2007 Supp. 79–5212(a). A copy of the warrant shall also be mailed to the taxpayer at the taxpayer's last known address or served upon the taxpayer in person. K.S.A.2007 Supp. 79–5212(a).
In this case, the director complied with the notice requirements of the Act. Fletcher acknowledges the director mailed the assessment to his home address. Fletcher claims the State knew he was in prison and, therefore, notice sent to his last known address was not reasonably calculated to apprise him of the action. Fletcher has not provided any evidence indicating the director knew he was imprisoned or that his home address was not the last address known to the KDOR.
Fletcher also claims he was not given the allotted 15 days to file an appeal before the warrant was issued. The Act allowed the director to demand immediate payment of the assessment and issue a warrant once it was apparent the taxpayer was not paying the taxes owed. K.S.A.2007 Supp. 79–5205(a). Though the Act indicates Fletcher had 15 days after the mailing of the notice to request an informal hearing, it does not require the director to wait 15 days before issuing the warrant as Fletcher claims. Fletcher does not challenge the amount of the assessment, and it is therefore presumed valid. K.S.A.2007 Supp. 79–5205(b). Because the director complied with the Act, Fletcher received the notice and due process due to him. The assessment and warrant were not void. The denial of his K .S.A. 60–260(b)(4) motion as to the assessment and warrant was proper.
Also, because Fletcher failed to perfect a direct appeal of the judgment denying his motion for the return of property, the district court properly denied his K.S.A. 60–260(b)(4) motion as an improper attempt to circumvent the requirements of a direct appeal as to that judgment.
Even if Fletcher had perfected an appeal challenging the denial of that motion, it would have failed. His motion requesting the return of his property was premised by his argument that because he could establish a legal basis for his possession of the money, the KDOR should not have taken it. This argument suggests Fletcher believed the proceeding below was a forfeiture. A brief review of the forfeiture statutes indicates that money may only be forfeited when an individual obtains the money through prohibited conduct. See K.S.A. 60–4104 through K.S.A. 60–4106. But when the KDOR issues an assessment and warrant to collect taxes owed, it is irrelevant whether the money was obtained legally. K.S.A.2007 Supp. 79–5212(a) allows the director command “the sheriff to seize and sell the real and personal property of the taxpayer, or to seize, appraise and dispose of the firearms of the taxpayer ... to satisfy the amount specified on the warrant.” Therefore, even if Fletcher had perfected an appeal to this court regarding the denial of his motion for the return of property, it would fail.
The KDOR followed the statutory requirements when it assessed a tax against Fletcher for drugs found in his possession. The KDOR also properly issued a warrant to collect the amount owing. Additionally, the district court properly denied Fletcher's motion requesting the return of his money. As such, we affirm the district court's order denying his motion pursuant to K.S.A. 60–260.
Affirmed.