1 IN THE SUPREME COURT OF THE STATE OF KANSAS

N o

. 113, 5 0 3

In the Matter of the Care and Treatment of C ECIL W. E MERSON

.

SYLLABUS BY THE COUR T

A district cou rt 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 d ismissed 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 withdraw s its
mandate and allow s 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; G REGORY L. W ALLER and P AUL C LARK , judge s . Opinion filed April 7, 2017. A ppeal 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 g eneral, argued the cause
, and Natalie Chalmers , assistant solicitor g eneral, and Derek Schmid t , attorney g eneral, were on the brief for appellee.

The opinion of the court was delivered by

L UCKERT , J.: This appeal raises the question of whether a district court has juris diction to authorize the filing of a n out

- of

- time direct appeal after a prior direct appeal by the same litigant had been d ismissed by the Court of Appeals . We hold the district court lost jurisdiction when t he initial appeal was docketed in the Court of2

Appeals
, and , therefore, the district court could not effectively set asi de an order of the
C ourt 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.

F ACTS AND P ROCEDURAL B ACKGROUND

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 d istrict 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 respon dent is safe to be at large."

Emerson moved for judgment as a matter of law or in the alternative for a new
trial , and th e district court denied the motion on January 5, 2001. In February 2001,
Emerson filed a notice of app eal ; he subsequently docketed t he 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 dismi ssed Emerson's appeal in 2002 a fter his c ounsel failed to file a brief despite four extensions of time and a final warning.

Since that time, a s 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 rec ommendation as to whether3

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 condi tion 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 h ad 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 peti tioned the district court for release

— and in other years he formally waived further proceedings. And e ach year, th e district court
found Emerson should remain in the custody of the Secretary f or further care and

treatment.

Then, in July 2014, Emerson, re presented by new and present counsel, moved the
district cou rt 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 permitt ing an out

- of

- time appeal s et 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 c ourt to reinstate the appeal. It also argued t he 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 h is 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

.4

At a hearing on Emerson's motion, t he district court stat ed 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 di strict 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 fil ed in the first instance. The district court ruled that "this case is one that is presently in a status w here 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 t o appeal based upon the fact that his previous counsel did nothing after a notice of appeal was filed and did not communicate with Mr. Emerson that the appeal had been dismissed." The district court then directed Emerson to "prepare a new notice of appeal dir ected toward this case."

On March 4, 2015, Emerson filed a notice of appeal "from all findings and rulings of the [district court]."

In deciding the appeal, the Court of Appeals noted neither party challenged the
district court's conclusion that the third Ortiz exception applied
, but it then acknowledged its "duty to question jurisdiction on its own initiative." In re Emerson , 52 Kan. App. 2d 421, 423

- 24, 369 P.3d 327 (2016). Ulti mately, the Court of Appeals rejected application of any Ortiz exceptions in Emerson's case, as they did not apply to such civil proceedings. Emerson , 52 Kan. App. 2d at 424

- 25. Instead, the Court of Appeals applied Albright v. State , 292 Kan. 193, 251 P.3 d 52 (2011), which had been filed under K.S.A.
60

- 1507, to conclude that Emerson's trial counsel's deficiencies "resulted in the loss of the ability to pursue a procedure"

— an appeal

— and thus Emerson was entitled to an out

of

- time appeal based on principles of fundamental fairness. 52 Kan. App. 2d at 425

- 26.5

The court then rejected Emerson's arguments. 52 Kan. App. 2d at 436

- 39. Accordingly, the Court of Appeals affirmed the district court's decision. 52 Kan. App. 2d at 439.

We grante d Emerson's petition f or review.

A NALYSIS

"It is axiomatic and this court has consistently held that it is our duty to raise the question of jurisdiction on our own motion, and, if the trial court lacked jurisdiction, the appellate court likewise does not acquire jurisdiction over the subject matter of the appeal. " Sandlin v. Roche Laboratories , Inc ., 26 8 Kan. 79, 85, 991 P.2d 883 (1999) ; see Albright
, 292 Kan. at 197 ("A question of subject matter jurisdiction may be raised at any time by a party or by a court, including an appellate court."); Friedman v. Kansas State Bd. of Healing Arts , 287 Kan. 749, 752, 199 P.3d 781 (2009) (noti ng that parties cannot
confer su bject matter jurisdiction by consent, e.g. , or waiver). Before us, the parties focus
on wh ether Ortiz or Albright provides the correct basis for analyzing Emerson's motion

. They have essentially abandoned their previous arguments about whether the d istrict court had jurisdiction after the Court of Appeals had dismissed the first appeal.

Nevertheless, e xercising our independent duty to review our jurisdiction, we
q uestion whether the district court ha d jurisdiction to order a second direct appeal. We
conclu de t he serial nature of this appeal distinguishes this case from those relied upon by the district court and the Court of Appeals . In this case, the district court lacked jurisdiction because Emerson had previously filed a timely notice of appeal and docke ted his direct appeal , which divested the district court of jurisdiction and conferred jurisdiction on the Court of Appeals . A few basic principles of appellate jurisdiction help to explain the basis for th is holding.6

First, " t he right to appeal is entirely statutory," and "the limits of appellate jurisdiction are imposed by the legislature." State v. Berreth , 294 Kan. 98, 110, 273 P.3d 752 (2012); see Harsch v. Miller , 288 Kan. 280, 287, 200 P.3d 467 (2009) ("Kansas appellate c ourts may exercise jurisdiction only under circumstance s allowed by

statute

. . . ."). This means that jurisdiction depends on application o f statutes and presents a question of law over which this court exercises unlimited revi ew. Berreth , 294
Kan. at 109

.

Second, " [a] n appellate court's jurisdiction depends on several factors, including the timely filing of a notice of appeal ." Albright
, 292 Kan. at 194. Pursuant to K.S.A.
59

- 29a07, a jury's sexually violent predator determination "may be appealed in t he manner provided for civil cases," meaning Article 21 of Chapter 60 of the Kansas Statutes. Those statutes address many aspects of an appeal, including when it must be initiated, stating: " W hen an appeal is permitted by law from a district court to an

a ppellate court, the time within which an appeal may be taken shall be 30 days from the entry of judgment." K.S.A. 60

- 2103(a) ( also setting forth a statutory exception to the 30

- day timeframe "upon a showing of excusable neglect" by the party, in which case the deadline may be extended by 30 days); Board of Sedgwick County Comm'rs v. City of Park City , 293 Kan. 107, 120, 260 P.3d 387 (2011) (prohibiting courts from using equitable exceptions to jurisdictional requirements such as the "unique circumstances
do ctrine").

Third, a party must follow the required procedures for bringing an appeal and those actions can dictate whether jurisdiction of a case moves from the district court to the appellate courts. Pursuant to K.S.A. 60

- 2103(a), "[a] party may appeal f rom a judgment by filing with the clerk of the district court a notice of appeal." Emerson took this step in February 2001

. The Kansa s Supreme Court Rules specif y the additional7

actions a party must take in order to docket an appeal with the clerk of the appellate

court s

— that is, the actions necessary to "perfect" an appeal : T he appealing party must

pay a n appellate docket fee (or file documents establishing indigency ) plus fil e specified
documents with the clerk of the appellate courts
, including a docke ting statement

. See
Kan sas S upreme C ourt R ule 2.04 (2017 Kan. S. Ct. R. 15 )

. In Honeycutt v. City of
Wichita , 251 Kan. 451, 461, 836 P.2d 1128 (1992), this court referred to the "simultaneous jurisdiction" of the district court and the appellate court duri ng the period
between the filing of a notice of appeal and its docketing, and this court has authorized the district court to dismiss an appeal i f a party files a notice of appeal but fails to take the steps necessary to docket the appeal . Kan sas S upreme C ourt R ule 5.051 (2017 Kan. S.
Ct. R. 32 )

.

Once an appeal is actually docketed with the appellate courts, the district court
does not have authority to dismiss the appeal . See K.S.A. 60

- 2103(a) (granting "appellate

court having jurisdiction" the authority to impose "remedies" for failure to c omply with appellate procedures); see also Kan sas Supreme C ourt R ule 5.05 (2017 Kan. S. Ct. R. 32 ) ( appellate court may dismiss an appeal for "a substan tial failure to comply with rules " of
the court ). The appellate court retains jurisdiction, a nd it i s axiomatic that only it , or a court reviewing that orde r on appeal, has jurisdiction to change the order. Cf. State v.
Fountaine , 196 Kan. 638, 639, 414 P.2d 75 (1966 ) (withdrawing mandate and allowing appeal to proceed because effective assistance of counsel had not been provided in initial appeal).

Moreover, even if a district court had jurisdiction, it would lack authority to change the Court of Appeals ' decision to dismiss the appeal. In fact, under K.S.A.
60

- 2106( c) a mandate of an appellate court " shall be controlling in the conduct of any further proceedings necessary in the district court. " And K.S.A. 20

- 108 states that a8

district court must e xecute any further proceedings " according to the command of the appellate court made therein. " As this court recently held , "[u] nder the plain language of these statutes, a district court is required to apply the mandate without exception. " State v. Kleypas , 305 Kan. 224, 296

- 97, 382 P.3d 373 (2016) ; see also State v. Collier , 263 Kan. 629, Syl. ¶ 4 , 952 P.2d 1326 (1998) (" [T] he trial court must proceed in accordance with
the mandate and the law of the c ase as established on appeal.").

Applying these principles to the circumstances of this case, given that Emerson filed a notice of appeal in 2001 and followed up by docketing that appeal
, the district court lost jurisdi ction . The Court of Appeals obtained jurisdiction and acted within its authority w hen it dismissed Emerson ' s appeal after no brief was filed. No further appeal occurred; consequently, only that court had the jurisdiction or the authority to change its
order. Yet, by authorizing a new appeal from the trial
, the district court essentially countermanded the Court of Appeals order of dismissal and its mandate

. This it could not
do.

Emerson's reliance on Ortiz does not help him establish the district court's jurisdiction because it is factually distinguishable: N either Ortiz nor his counsel had filed a notice of appeal after his conviction and sentencing , and the district court retained jurisdiction . See 230 Kan. at 734

. Consequently, the Ortiz court did not address
Emerson's situation. B ut it did note that "[t]he basis for this procedure may be found in
the federal cases
, " 230 Kan. at 735 , and f ederal c ourts have addressed the appropriate procedure for seeking relief when an ineffective assistan ce of counsel claim is brought
after an appellate court has dismissed a docketed appeal.

For example, in United States v. Winterhalder , 724 F.2d 109, 110 (10th Cir. 1983)
, the district court , after concluding that appellate counsel had " not follow [ed] through with9

the appeal ," ordered the filing of a new notice of appeal, " which would purportedly resurrect defendant's earlier direct criminal appeal. " 724 F.2d at 111. The Tenth Circuit rejected this as a remedy available to the di strict court, however, because jurisdiction had
transferred from " the district court to the court of appeals, and the power to reinstate an appeal previously dismissed for fail ure to prosecute lies with the court of appeals, not the
district court. " 724 F.2d at 111. The Tenth Circuit agreed with other federal courts of appeals that had held "' the remedy is by way of a motion directed to [the appellate] court asking for a recall of the mandate or certified judgment so that [the appellate] court may determine whether the appeal should be reinstated. '" 724 F.2d at 111 (quoting Williams v.
United States , 307 F.2d 366 , 368 [ 9th Cir.1962 ] , and citing as additional authority Rivera
v. U nited States , 477 F.2d 927, 928 [ 3d Cir.1973 ] ; and Starke v. United States , 338 F.2d 648, 649 [ 4th Cir.1964 ])

.

We agree this is the necessary procedure when a direct appeal has been dismissed by an appellate court and a litigant seeks to have the appeal reinstated. And this court has done so when requested. E.g. , Fountaine , 196 Kan. at 639. But that relief cannot be obtained through an Ortiz

- based proceeding.

The Court of Appeals did not rely on Ortiz, however. Instead, it reasoned that the case would not apply in a civil action under the Sexually Violent Predator Act and looked

to caselaw applying K.S.A. 60

- 1507. But the Court of Appeals did not examine the question of whether the district court would have had jurisdiction even if these civil, rather than criminal, caselaw principles applied.

Certainly, a motion under K.S.A. 60

- 1507 grants a district court jurisdiction over claims of ineffective assistance of appellate counsel. See Albright
, 292 Kan. at 207.
N evertheless, a s Emerson's counsel recognized at oral argument, if he were to bring a10

collatera l action, he must do so under K.S.A. 60

- 1501. S ee, e.g. , In re Care & Treatment of Ontiberos
, 295 Kan. 10, 11 , 287 P.3d 855 (2012) ("We hold that due process guarantees a pers on facing civil commitment under the KSVPA a right to counsel at trial, and that person may challenge the effectiveness of his or her trial counsel on d irect appeal or under K.S.A. 60

- 1501.") ; see also Kleparek v. State
, 964 So. 2d 225, 226 (Fla. Dist. App. 2007) (ruling, in proceedings similar to the SVPA, that defendant is not entitled to relief via an untimely notice of appeal, but rather "the proper vehicle is instead a petition for writ of habeas corpus seeking belated review of the lower tribunal's order")

. But K.S.A. 2016 Supp. 60

- 1501 (c) imposes a time limit for filing a petition, and Emerson has not established that he could bring such an action.

Even if we were to consider Emerson's motion as a petition un der 60

- 1501 (and assuming it had been timely filed ), nothing in the caselaw cited by the Court of Appeals
would lead us to conclude the district cour t would have had jurisdiction to enter an order allowing a second appeal . Instead, the caselaw dea ling with collateral decisions , such as
those brought under K.S.A. 60

- 1507, makes the same distinction between case s where an appeal is never docketed , in which jurisdiction remains in the district court
, and cases where a direct appeal has been dismissed by an appellate court, in which jurisdiction t o allow additional proceedings related to a direct appeal rests with the appellate courts.

Albright
, the case relied on by the Court of Appeals, and the line of cases
discussed in Albright

— including State v. Patton , 287 Kan . 200, 195 P.3d 753 (2008) , and Kargus v. State , 284 Kan. 908, 169 P.3d 307 (2007)

— provide examples of cases where a
criminal defendant 's direct appeal was not docketed and the defendant then filed an action
under K.S.A. 60

- 1507 , seeking the ability to bring an initial appeal

. Under those circumstances, i n A lbright , t his court readily concluded that "if counsel's performance11

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." (Emphasis added.) 292 Kan. at 207.

In contrast, in Porter v. State , 196 Kan . 732, 734, 414 P.2d 56 (1966), where a
defendant filed a 60

- 1507 action after his direct appeal had been dismissed by this court for procedural reasons, this court held the appropriate remedy was for the defe ndant to file a motion with the appellate court seeking an order withdraw ing this court's mandate

. The Porter defendant had brought his appeal pro se after being convicted of armed robbery. He filed initial documents with this court that were sufficient under rules then in place to docket the appeal. B ut he did not file a brief , and t his c ourt eventually dismissed his appeal

. He then filed a 60

- 1507 action asserting he had the right to effective
assistance of counsel on appeal

.

Dur ing the time between Porter's direct appeal and the filing of his 60

- 1507 action,
th e United States Supreme Court and th is court had recognized an indigent criminal defendant's right to the assistance of counsel on appeal and determined that right should
b e applied retroactively. 196 Kan. at 733 (citing Smith v. Crouse , 378 U.S. 584, 84 S. Ct. 1929, 12 L. Ed. 2d 1039 [ 1964 ]; Daegele v. Kansas , 375 U.S. 1, 11 L. Ed. 2d 44
, 84 S. Ct. 89, [1963]; Douglas v. California , 372 U.S. 353, 9 L. Ed. 2d 811
, 83 S. Ct. 814 [1963 ]). After the United States Supreme Court's decisions, this court had issued an order
that it transmitted to all district courts
, advising :

"' It is suggested that where the motion filed pursuant to Sec. 60

- 1507 apprises the District
Court that he is an indigent person and no attorney was appointed to represent him in perfecting and presenting his criminal appeal, the District Court treat such proceeding as movant's affidavit for appointment of counsel pursuant to Rule No. 56 (191 Kan. Prefatory Ru le No. 1(f) XII), and enter an order appointing counsel to represent the movant on appeal pursuant to said rule, and advise counsel to file a motion in the12

Supreme Court to recall the mandate and reinstate the appeal for further proceedings. '"
Porter , 19 6 Kan. at 734 (quoting Rule No. 121, 194 Kan. XXVII [1964])

.

Nevertheless, t he district court in Porter determined that the order did not apply because
the defendant had never requested the appoint ment of appellate counsel.

O n appeal from that ruling
, thi s court concluded the Porter defendant's failure to request the assistance of counsel c ould not be held against him when he had not b een advised of his right to appointed counsel

. This court then remanded the case to the district
court with directions to a ppoint counsel " to assist defendant in making application for the reinstatement of the appeal in [his underlying criminal case] and for the recall of the mandate dismissing th [at] appeal." 196 Kan. at 735.

Porte r 's outcome reinforces our conclusion that only the Court of Appeals can
exert jurisdiction over Emerson's direct appeal, which had already been docketed and
dismissed . It is up to the Court of Appeals to determine whether its mandate should be
withdrawn and whether E merson should be allowed to pursue that direct appeal. Arguably, the Court of Appeals made that determination w hen it considered the merits of Emerson's arguments, and, certainly, judicial economy would suggest we treat the Court of Appeals' action in that way and review its decision. But judicial economy cannot supply jurisdiction, and "if the trial court lacked jurisdiction, " which it did in this case,

" the appellate court likewise does not acquire jurisdiction over the subject matter of the appeal. " Sand lin , 26 8 Kan. at 85.

C ONCLUSION

We hold that the distric t court did not have jurisdiction to permit Emer son to file a direct appeal out of time because he had already filed a timely appeal , the Court of13

Appeals had obtained jurisdiction, and the Court of Appeals had dismissed the appeal and
issued its mandate . Because the district court did not have jurisdiction, the Court of Appeals did not have jurisdiction to reach the merits of Emerson's appeal.

Appeal dismissed.