No state appeal of remand finding of IAC

Gerald Wells and Kevin Shepherd won in State v. Elnicki, No. 96,987 (April 8, 2010), obtaining dismissal of a state's attempt to appeal from Judge Dowd's finding of ineffective assistance of counsel on remand during direct appeal from a Shawnee County rape/agg criminal sodomy conviction. Mr. Elnicki's conviction was first reversed by the Kansas Supreme Court in 2002 and remanded for a new trial. A jury convicted Mr. Elnicki after the second trial, and Mr. Elnicki filed a direct appeal from this new conviction. While on appeal, Mr. Elnicki sought and obtained a remand pursuant to State v. Van Cleave, for determination of possible IAC in the second trial. On remand, Judge Dowd found that Mr. Elnicki received prejudical IAC at the second trial (blogged about here). The state filed a cross-appeal seeking review of that finding. But the COA noted that the state's cited bases for possible jurisdiction of such an appeal did not apply:

The right to appeal is strictly statutory. Absent statutory authority for an appeal, an appellate court is obligated to dismiss. The only clue to the State's theory is found in the second notice of appeal, which references K.S.A. 22-3602(b) and K.S.A. 2009 Supp. 60-2102(a)(4). The State does not explain how these statutes confer jurisdiction. No mention is made of the issue in the State's brief, and the State has not contested the arguments to the contrary presented by Elnicki in his brief.

The COA held that the state's appeal did not fall under any of the limited types of state appeals under K.S.A. 22-3602(b) and that the civil statute did not apply either:

The State's notice of appeal also cites the civil appeal statute, K.S.A. 2009 Supp. 60-2102. The State does not explain how this statute applies. Proceedings pursuant to K.S.A. 60-1507 are civil in nature. In Rice v. State, 37 Kan. App. 2d 456, 459, 154 P.3d 537, the State claimed that a K.S.A. 60-1507 motion was successive because the movant had sought and obtained a remand under Van Cleave for a hearing on claims of ineffective assistance of counsel. This court found the Van Cleave hearing was "part and parcel of the direct criminal appeal" and, therefore, was not the equivalent of a motion under K.S.A. 60-1507. Similarly, the remand here for a Van Cleave hearing is part and parcel of Elnicki's direct criminal appeal and, therefore, the civil appeal statute does not apply.

Another nice jurisdiction case. And another case where the state fails to adequately address jurisdictional challenges. Remember that when you represent criminal defendants in state appeals, review the case carefully for possible jurisdictional problems.

[Update: Mr. Elnicki filed a PR on May 10, 2010 from the part of the decision he lost (speedy trial). The state did not file a PR or cross-PR.]

[Further update: the KSC denied Mr. Elnicki's PR and the mandate issued on June 30, 2010.]

[Further update: here is a Topeka Capital-Journal article noting that this case will be scheduled for a third trial.]