State v. Bunyard ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 120,163
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JOSIAH R. BUNYARD,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed March 20, 2020.
Appeal dismissed.
Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before HILL, P.J., GREEN and WARNER, JJ.
PER CURIAM: Josiah R. Bunyard seeks to appeal his convictions in two cases
consolidated for trial, claiming that the trial court erred by denying his motion to dismiss
the charges based on a plea agreement reached in an unrelated case. Nevertheless,
Bunyard's convictions resulted from a guilty plea. Finding that we lack jurisdiction over
an appeal from Bunyard's convictions resulting from a guilty plea, we dismiss this appeal.
In October 2013, in Sedgwick County case No. 13CR2736, the State charged
Bunyard with two counts of aggravated battery, based on allegations that he choked and
broke J.W.'s jaw, his then girlfriend. After he was arrested, the trial court entered a
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protective order prohibiting contact with J.W. Less than a month later, Bunyard allegedly
sent a letter to a mutual friend for the purpose of passing it on to J.W. So, the State filed
additional charges for violation of a protective order and intimidation of a witness in
Sedgwick County case No. 13CR3488. These cases were consolidated for trial and
ultimately a jury convicted Bunyard on counts of aggravated battery, battery, attempted
violation of a protective order, and intimidation of a witness. Bunyard appealed and our
Supreme Court later reversed all the convictions in February 2018. State v. Bunyard, 307
Kan. 463, 410 P.3d 902 (2018).
In September 2015, Bunyard pleaded guilty to possession of methamphetamine in
Sedgwick County case No. 13CR1113. In exchange for his plea, the terms of the
agreement provided:
"State agrees not to pursue additional charges as follows:
• Any other crime purportedly shown on the video system, computers, and phones
seized in the current case.
• Any crime related to statements given to law enforcement by [J.W.].
• Any crime related to WPD case number 13C026971 (threat against Detective
Goward).
• Any crime related to Sedgwick County case 13CR2680, which was previously
dismissed without prejudice.
• Any crime related to Sedgwick County Sheriff case numbers 13s9897 (bank card
found at home of Berniece Klein), 13s9669 (meth and drugs seized on 10/1/13),
13s9936 (theft or embezzlement of funds belonging to Berniece Klein, and theft of
prescription drugs from Ms. Klein), 13sl0059 (drugs, guns, and electronics seized on
10/11/13), and 13s10221 (improper use of credit card from Berniece Klein).
"The prosecution has made a good faith effort to find all open investigations
involving defendant. The intent is to finally resolve all remaining criminal matters that
are known to the prosecution. The listed cases above include all cases known to the
prosecution involving the defendant. Any unanticipated new case, unrelated to the above
mentioned cases and unknown to the prosecution at the time this plea is entered, is not
covered in this agreement."
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On June 5, 2018—about six months after our Supreme Court reversed Bunyard's
convictions—he filed identical pro se motions to dismiss the charges in both 13CR2736
and 13CR3488 under the terms of the plea agreement in 13CR1113.
On June 28, 2018, Bunyard agreed to enter a plea in both 13CR2736 and
13CR3488. In 13CR2736, he pleaded guilty "pursuant to Alford/Brady" to amended
charges of aggravated battery and aggravated assault, both severity level 7 person
felonies. In 13CR3488, the journal entry reflected that he pleaded nolo contendere—with
"Alford/Brady" written next to the checkbox—to amended charges of attempted violation
of a protective order, a class A misdemeanor, and intimidation of a witness or victim, a
class B misdemeanor. The plea agreement also provided: "As a condition of this
negotiated resolution, and as recognized in [State v. Patton, 287 Kan. 200, 195 P.3d 753(2008)], the Defendant agrees to waive his right to appeal and collaterally attack the
conviction, sentence or terms of this plea agreement in 13CR2736 & 13CR3488."
At the plea hearing, the trial court began by telling Bunyard of his rights in both
cases. At one point, the following exchange occurred:
"THE COURT: Mr. Bunyard, this is the bottom line, by entering a plea today,
there will be no trial, you'll be admitting the charge is true, you'll be giving up all
defenses, you'll be giving up your right to appeal this case, except for the sentencing
portion, and I'll find you guilty just as if we had a trial before a jury, where they had
found you guilty. You understand that?
"THE DEFENDANT: The only caveat being I'm not admitting guilt, but I
understand the effect is a guilty.
"THE COURT: You understand that based on the Alford plea, guilty based on
Alford, you'd be found guilty?
"THE DEFENDANT: I understand I'd be found guilty."
At Bunyard's request, the court accepted his plea in 13CR3488 first, found him
guilty of both offenses, and sentenced him to a controlling 12-month jail sentence that
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would run concurrent to any sentence in 13CR2736 but consecutive to 13CR1113. The
court then accepted Bunyard's plea in 13CR2736 and found him guilty of the charged
offenses but deferred sentencing him in that case.
On July 24, 2018, Bunyard's defense counsel moved to dismiss the charges in both
13CR2736 and 13CR1113, repeating the arguments as in Bunyard's pro se motion.
In a written response, the State asserted that the motion was "without merit and . . .
submitted in violation of the defendant's plea agreement." The State argued the charges in
13CR2736 and 13CR3488 predated the plea agreement in 13CR1113, and that Bunyard
"'waive[d] his right to appeal and collaterally attack the conviction, sentence or terms of
this plea agreement [in the consolidated case].'"
Bunyard responded, maintaining that the State was ignoring the plain language of
the plea agreement in 13CR1113 and could not continue to "'pursue' these 'additional'
charges" because "regardless of when [the charges in the consolidated case] were
originally filed, [they] are now (and were then) in fact 'additional' to those in case no.
13CR1113." He also argued the State mischaracterized the motion to dismiss as an appeal
or a collateral attack, asserting "[i]t is neither."
At the sentencing for 13CR2736, the trial court summarily denied the motion to
dismiss. As to sentencing, the court imposed a 29-month prison sentence on the
aggravated battery charge and a 12-month prison sentence on the aggravated assault
charge, running the counts consecutively for a controlling sentence of 41 months. The
court also ran the charges concurrent to the sentence in 13CR3488 but consecutive to the
sentence in 13CR1113. The court told Bunyard he had the right to appeal within 14 days
and also told him that he should discuss appeal matters with his defense counsel. Bunyard
timely appealed.
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On appeal, Bunyard contends that he is challenging only the trial court's denial of
his motion to dismiss and "'not collaterally attacking his conviction.'" He further contends
that he is not challenging the terms of his plea agreement in 13CR2736 and 13CR3488.
After the parties filed their briefs, this court issued a show cause order, directing
Bunyard to explain why his appeal should not be summarily dismissed for lack of
appellate jurisdiction.
In State v. Williams, 37 Kan. App. 2d 404, 406, 153 P.3d 566 (2007), another
panel of this court noted:
"[T]he right to an appeal is purely statutory and is not contained in either the federal or
Kansas Constitutions. Kansas appellate courts have jurisdiction to entertain an appeal
only if the appeal is taken as prescribed by statute. State v. Legero, 278 Kan. 109, Syl.
¶ 2, 91 P.3d 1216 (2004). An appellate court has a duty to question jurisdiction on its
own initiative. If the record shows there is no jurisdiction for an appeal, the appeal must
be dismissed. State v. Wendler, 280 Kan. 753, 755, 126 P.3d 1124 (2006). Whether
jurisdiction exists is a question of law subject to unlimited appellate review. Foster v.
Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006)."
Our Supreme Court recently reaffirmed that appellate courts in Kansas lack
jurisdiction to review a defendant's conviction from a plea of guilty or nolo contendere
unless the defendant first moves to withdraw the plea and the trial court denies the
motion. See State v. Smith, 311 Kan. 1169, 456 P.3d 1004, 1009-10 (2020). Indeed,
K.S.A. 2019 Supp. 22-3602(a) reads as follows:
"No appeal shall be taken by the defendant from a judgment of conviction before a
district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other
grounds going to the legality of the proceedings may be raised by the defendant as
provided in K.S.A. 60-1507, and amendments thereto."
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This broad jurisdictional bar applies to any defects or irregularities occurring in the
previous proceedings in the trial court, including constitutional ones. Smith, 456 P.3d at
1012 (declining to extend federal caselaw governing federal appellate jurisdiction
because of the "explicit statutory rule prohibiting appellate review of a conviction when a
defendant pleads guilty"); see State v. Edgar, 281 Kan. 30, 39, 127 P.3d 986 (2006)
("'This is so even though the defects may reach constitutional dimensions.'") (quoting
State v. Melton, 207 Kan. 700, 713, 486 P.2d 1361 [1971]).
But K.S.A. 2019 Supp. 22-3602(a) does not preclude a defendant from taking a
direct appeal from the trial court's denial of a motion to withdraw the plea. State v.
Solomon, 257 Kan. 212, 218-19, 891 P.2d 407 (1995). Bunyard never filed a motion to
withdraw plea. Whether he still has time to file a motion to withdraw his guilty plea is
controlled by K.S.A. 2019 Supp. 22-3210(e) and that issue is not before us in this appeal.
By pleading guilty to the charges in 13CR2736 and 13CR3488, Bunyard waived
any defenses and the right to appeal his convictions. See Edgar, 281 Kan. at 39. The
record establishes that Bunyard clearly understood that he was waiving the right to appeal
his convictions, but he agreed to plead guilty anyway.
Nonetheless, Bunyard argues in his response to the show cause order that K.S.A.
2019 Supp. 22-3208(4) gives this court jurisdiction over his denied motion to dismiss the
charges. He contends that K.S.A. 2019 Supp. 22-3208(4) conflicts with K.S.A. 2019
Supp. 22-3602(a) because it explicitly allows a defendant to file a motion to dismiss "at
any time prior to arraignment or within 21 days after the plea is entered." K.S.A. 2019
Supp. 22-3208(4). This argument is unpersuasive.
First, the 21-day period to file a motion to dismiss under K.S.A. 2019 Supp. 22-
3208(4) is triggered by "the plea," but not specifically a guilty plea. A plain reading of
this provision suggests that Bunyard had until November 12, 2013—i.e., 21 days after he
waived a formal arraignment and entered a not guilty plea in this case—to file a timely
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motion to dismiss. Even considering the substantial amount of time devoted to pursuing
his direct appeal, Bunyard still waited nearly six months to file his pro se motion to
dismiss after our Supreme Court reversed his convictions in February 2018. See Bunyard,
307 Kan. at 463. In addition, even if we adopt Bunyard's interpretation of K.S.A. 2019
Supp. 22-3208(4), his counselled motion to dismiss was filed 26 days after entering the
plea in this case. Thus, his motion was beyond the 21-day period to timely move to
dismiss under K.S.A. 2019 Supp. 22-3208(4).
Second, given the correct interpretation of K.S.A. 2019 Supp. 22-3208(4), this
statute clearly does not conflict with K.S.A. 2019 Supp. 22-3602(a). Rather, when we
look to the rest of the language in the statute, it becomes clear that Bunyard waived his
right to attack his convictions on appeal after entering a guilty plea. Under K.S.A. 2019
Supp. 22-3208(2), "[a]ny defense or objection which is capable of determination without
the trial of the general issue may be raised before trial by motion." Under subsection (3),
"[f]ailure to present any such defense or objection as herein provided constitutes a waiver
thereof." K.S.A. 2019 Supp. 22-3208(3). Generally requiring defenses and objections to
be made before trial is essentially the same as disallowing an appeal from a conviction
after a plea of guilty or nolo contendere under K.S.A. 2019 Supp. 22-3602(a).
By entering a guilty plea, Bunyard waived the right to appeal his convictions.
Because he never sought to withdraw his guilty plea in the trial court, he is
jurisdictionally barred from appealing those convictions.
Appeal dismissed.
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