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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 99,937 STATE OF KANSAS, Appellee, v. ROLLAND G. BERRETH, Appellant.

SYLLABUS BY THE COURT 1. The existence of jurisdiction is a question of law over which the scope of appellate review is unlimited.

2. The right to appeal is entirely statutory; the limits of appellate jurisdiction are imposed by the legislature.

3. A criminal defendant has a broad right of appellate review. But the State only has limited appeal rights tightly restricted by statute.

4. When the State is entitled to appeal, it must elect to proceed under a specific statute or statutory subsection, and its election governs the remedy, if any, available.

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5. An action under K.S.A. 60-1507 is civil in nature, separate from the defendant's direct criminal proceeding, and is governed by the rules of civil procedure.

6. The State may appeal an unfavorable disposition of a K.S.A. 60-1507 motion in the same manner as a final judgment in a civil proceeding.

7. Supreme Court Rule 2.01 (2011 Kan. Ct. R. Annot. 9) requires that the notice of appeal to the Supreme Court contain specific grounds on which the appeal is considered to be permitted, including citation of statutory authority. But Rule 2.02 (2011 Kan. Ct. R. Annot. 9) does not so require for appeals to the Court of Appeals.

8. Under the facts of this case the State could not change the statutory basis for appellate jurisdiction which it had elected.

9. While appellate courts have a duty to question jurisdiction on their own initiative, under the facts of this case the Court of Appeals could not sua sponte alter the State's election of a statutory basis for appellate jurisdiction.

10. A criminal defendant has no authority to alter the appellate jurisdictional basis elected by the State.

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11. To be considered on appeal, questions reserved by the State in a criminal prosecution must be of statewide interest important to the correct and uniform administration of criminal law and the interpretation of statutes. Questions reserved will not be entertained on appeal merely to determine whether error has been committed by the trial court in its rulings adverse to the State.

12. Appellate courts will not accept appeal of questions reserved when their resolution will not provide helpful precedent. So if a question reserved is no longer of statewide importance because the court has already addressed it in a prior case, an appeal on the question should be dismissed.

13. An appeal on a question reserved presupposes that the underlying criminal case has concluded but that an answer to a question of statewide importance is necessary for disposition of future cases. Accordingly, an appellate court's answer to a question reserved has no effect on the criminal defendant in the underlying case.

Review of the judgment of the Court of Appeals in an unpublished opinion filed May 15, 2009. Appeal from Butler District Court; DAVID A. RICKE, judge. Opinion filed April 6, 2012. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and remanded with instructions.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the briefs for appellant.

Jan L. Satterfield, county attorney, argued the cause, and Steve Six, attorney general, was with her on the brief for appellee.

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The opinion of the court was delivered by

NUSS, C.J.: This case requires us to consider appellate jurisdiction. Ten years after Rolland Berreth was convicted and sentenced for one count of aggravated kidnapping and three counts of aggravated criminal sodomy with a child under 14 years of age, he filed a pro se motion to correct an illegal sentence under K.S.A. 22-3504. His appointed counsel later filed motions citing K.S.A. 60-1507, which expanded Berreth's pro se motion. All motions argued multiplicity. The district court ruled Berreth's aggravated kidnapping conviction was multiplicitous with the aggravated criminal sodomy convictions, reduced Berreth's aggravated kidnapping conviction to kidnapping, and therefore reduced his sentence.

The State filed its notice of appeal and docketing statement, each specifically describing the appeal as one taken upon a question reserved under K.S.A. 22-3602(b)(3). The Court of Appeals reversed the district court and ordered reinstatement of Berreth's original sentence. After the district court complied, Berreth appealed, and a different panel of the Court of Appeals affirmed.

We granted Berreth's petition for review under K.S.A. 20-3018 to reexamine the jurisdictional basis for the State's appeal and to examine the correctness of the Court of Appeals' rulings. Because we hold the Court of Appeals failed to properly treat the State's appeal as a question reserved, we reverse, remand, and order reinstatement of Berreth's reduced sentence.

FACTS

The sometimes confusing events, and resultant arguments, are best understood when presented in the following detailed chronology:

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1994: After a jury convicted Berreth of one count of aggravated kidnapping and three counts of aggravated criminal sodomy of a child under 14 years of age, the district court sentenced Berreth to 254 months' imprisonment with 24 months' postrelease supervision. The convictions and sentences were later affirmed on direct appeal. State v. Berreth, No. 73,929, unpublished opinion filed January 10, 1997.

May 25, 2004: In Berreth's original criminal action, 93 CR 354, he filed a pro se motion to correct an illegal sentence under K.S.A. 22-3504. He contended that his aggravated kidnapping conviction was multiplicitous with at least one of the three convictions of aggravated criminal sodomy. So he requested the aggravated kidnapping conviction be reduced to one for simple kidnapping, the original sentence be vacated, and a reduced sentence be imposed for this less severe crime.

November 4, 2004: After Berreth was appointed counsel, his attorney filed a motion to correct sentence. Despite being submitted "pursuant to K.S.A. 60-1507," it too was filed in Berreth's original criminal action: 93 CR 354. This motion incorporated all the arguments and issues of Berreth's earlier pro se motion under K.S.A. 22-3504. But it now emphasized that Berreth's convictions of aggravated kidnapping and aggravated criminal sodomy were multiplicitous under State v. Robbins, 272 Kan. 158, 32 P.3d 171 (2001). It renewed his request to vacate the aggravated kidnapping sentence.

December 7, 2004: At the hearing on the defense motions, the judge was handed an amended motion to correct sentence submitted "pursuant to K.S.A. 60-1507." Although identified in the motion's body as an "Amended 60-1507," it too was filed in 93 CR 354. The amended motion repeated verbatim his counsel's November 4 arguments on multiplicity. So it appeared to have been filed primarily for counsel to elaborate on Berreth's second issue: while Berreth conceded his sentence was not illegal, he argued it was the result of partiality, oppression, and corrupt motive. Berreth's counsel argued for

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correction through a lower presumptive sentence on all four counts and asked that the judge "resentence for the illegal sentence of aggravated kidnapping to plain kidnapping."

January 14, 2005: After an apparent rescheduling, the State now filed its response in 93 CR 354 to the defendant's motion to correct sentence pursuant to K.S.A. 60-1507. It argued that Berreth was attempting an improper collateral attack, e.g., a 60-1507 motion, on a multiplicity issue that should have been raised on direct appeal. It further argued that the 1507 motion was time barred. The State additionally argued that under State v. Groves, 278 Kan. 302, 95 P.3d 95 (2004), the convictions were not multiplicitous.

March 9, 2005: The district court filed its order and ruling on defendant's motion to correct sentence in 93 CR 354. After setting forth the chronology of the three defense motions, it declared that they were properly before the court. But it did not decide, or otherwise clarify, their procedural basis:

"Consistent with K.S.A. 22-3504, a motion to correct an illegal sentence may be made and ruled upon at any time. Further, fundamental fairness dictates that the defendant's original pro se motion be construed as one under K.S.A. 60-1507 (motion attacking sentence). Whether the defendant's motion is construed as a K.S.A. 22-3504 motion, or is liberally construed as a motion under K.S.A. 60-1507, the Court will consider the issues raised by the Defendant. The State's assertion that Mr. Berreth's original motion (if construed as a K.S.A. 60-1507 motion) is untimely is without merit, as Berreth filed his motion within one year of the statutory change to such statute. . . . As the Defendant's motion was filed less than one year from July 1, 2003, his motion was timely." (Emphasis added.)

The court agreed that Berreth's aggravated kidnapping conviction was multiplicitous with one of his aggravated criminal sodomy convictions under State v. Robbins, 272 Kan. 158. In retroactively applying the 2001 Robbins decision to Berreth's 1993 convictions, the court "noted that there is long-standing precedent supporting the 6

vehicle of K.S.A. 60-1507 to be utilized to retroactively correct claims of duplicitous convictions, e.g., Jarrell v. State, 212 Kan. 171, 510 P.2d 127 (1973)." Consequently, the court vacated the aggravated kidnapping conviction, replaced it with a conviction for the lesser offense of kidnapping, and set resentencing for simple kidnapping on March 29.

March 18, 2005: Before actual resentencing could occur, the State filed its notice of appeal in the district court, again in Berreth's criminal case: 93 CR 354. Its notice recited that "[o]n May 25, 2005, [sic] and by amendment on November 4 and December 7, 2004, the defendant filed a motion to correct his sentence under K.S.A. 60-1507 and 22-3504." Despite this two-pronged acknowledgment, the notice then expressed the State's apparent choice among three possible jurisdictional bases: "This appeal is pursuant to K.S.A. 22-3602(b)(3)." This statute allows the prosecution to take appeals to the Court of Appeals as a matter of right "upon a question reserved by the prosecution." The State's notice further stated that Berreth's situation presented a question of "statewide interest important to the uniform administration of criminal law." More specifically, the notice suggested that Berreth's case demonstrated a conflict between State v. Robbins (the case the district court relied upon) and the case the State principally relied upon: State v. Groves. The State expressly requested the court's reconsideration of Robbins in light of Groves.

The notice did not cite, among other appellate jurisdictional bases, K.S.A. 601507(d). This statute allows "an appeal . . . as provided by law from the order entered on the motion as from a final judgment on application for a writ of habeas corpus."

March 29, 2005: Per the district court's prior scheduling, it resentenced Berreth. It decreased his term of imprisonment from 254 to 192 months and increased his postrelease supervision from 24 to 60 months. Before actual resentencing occurred, however, the prosecutor advised the court of the State's appeal and its exclusive "question reserved" basis: 7

"[T]he state has filed an appeal. When I did research, however, aside from an interlocutory appeal, which this is not, the only basis for our appeal--which of course could be denied just because we haven't stated a sufficient basis for a prosecution appeal--is a question of reserve--of importance. And that's also--there was no hearing at the time the court issued its written opinion, when it was taken under advisement. So I wasn't able to object to the court's ruling or make proper objections. That's also why I chose to file the notice of appeal after the order, to make sure that I reserved the issue on appeal." (Emphasis added.)

April 25, 2005: The State filed its docketing statement with the clerk of the appellate courts. Consistent with both the prosecutor's statement at the March 29 resentencing hearing and with the State's even earlier notice of appeal, the docketing statement provided under Paragraph 3, "Jurisdiction," that the "Statutory authority for appeal [is] Question reserved, K.S.A." And consistent with the State's notice of appeal, the statement provided under Paragraph 7, "Concise Statement of the issues proposed to be raised," that "[t]he Court should reconsider its opinion in State v. Robbins [, 272 Kan. 158, 32 P.3d 171 (2001),] based on State v. Groves, 278 Kan. 302, 95 P.3d 95 (2004)." Finally, just like the State's notice of appeal, its docketing statement bore the district court's criminal case number of 93 CR 354.

August 24, 2005: In the State's brief to the Court of Appeals 4 months later, it argued that Berreth's 1507 motion was untimely but conceded that "[i]t is unclear whether his [Berreth's] motions were actually pursuant to K.S.A. 22-3504 or 60-1507." No mention was made, however, of the basis of appellate jurisdiction per a question reserved under K.S.A. 22-3602(b)(3). Instead, the State's brief concluded that "[t]he defendant's convictions should be reinstated. The district judge's decision of March 9, 2005, [finding multiplicity under Robbins] should be reversed and the original sentence [of 254 months] should be reimposed."

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March 1, 2006: In Berreth's response brief to the Court of Appeals, no mention was made of the State's invocation of appellate jurisdiction per a question reserved under K.S.A. 22-3602(b)(3).

April 28, 2006: Approximately 2 months after Berreth's brief was filed, this court released its decision in State v. Schoonover, 281 Kan 453, 133 P.3d 48 (2006). There, we substantially revised our approach to analyzing multiplicity claims and essentially rejected Robbins--the case upon which the district court based its decision to vacate the aggravated kidnapping conviction and sentence on multiplicity grounds.

May 31, 2006: The Court of Appeals issued an order to show cause. More specifically, it ordered the parties to file a written response by June 19 explaining why, per the newly released Schoonover decision, the panel should not summarily reverse the district court and reinstate Berreth's conviction and sentence for aggravated kidnapping.

June 16, 2006: Before the parties' responses to the Court of Appeals' show cause order were due, this court released its decision in State v. Edwards, 281 Kan. 1334, 135 P.3d 1251 (2006). There, in syllabus paragraph 3, we held that "[a] claim that sentences are multiplicitous is not a claim that the sentences were imposed by a court without jurisdiction as is necessary to come within the narrow definition of illegal sentence under K.S.A. 22-3504(1)."

June 27, 2006: The Court of Appeals noted the filing of the parties' responses to its May 31 order to show cause. But it further ordered them to file supplemental briefs on three questions:

1. "Did the district court, and does this court, have jurisdiction pursuant to State v. Edwards, 281 Kan. 1334 (2006) (Multiplicity is not a claim that can be raised in a motion to correct an illegal sentence.)."

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2. "Why State v. Schoonover, 281 Kan. 453, 133 P.2d 48 (2006), does not control."

3. "Why is this not an attempt at a second appeal and what exceptional circumstances [e.g., per Supreme Court Rule 183 for motions under K.S.A. 60-1507] are present to justify allowing this challenge to appellant's conviction?"

August 1, 2006: In the State's supplemental brief, it argued that Edwards prohibited use of a motion to correct illegal sentence as a vehicle to challenge multiplicity. It further argued that Schoonover overruled Robbins. The supplemental brief, like the State's original, made no reference to appellate jurisdiction per a question reserved under K.S.A. 22-3602(b)(3). Rather, also like the State's original brief, it concluded that "[t]he defendant's collateral attacks should be denied and the modification of his sentence reversed reinstating his original sentence." (Emphasis added.)

September 5, 2006: In Berreth's supplemental brief, he contended that under a case cited by the district court--Jarrell v. State, 212 Kan. 171, 510 P.2d 127 (1973),--his counsel's motion arguing multiplicity was raised in the proper procedural vehicle of K.S.A. 60-1507. Because Edwards only barred multiplicity claims raised in the procedural vehicle of a motion to correct illegal sentence, Edwards therefore did not bar relief. He further argued that his pro se motion's reference to correct an illegal sentence under K.S.A. 22-3504 should be liberally construed as a 1507 motion--presumably so he could survive Edwards' procedural bar.

On the merits, Berreth contended that while Schoonover overruled Robbins, it did not apply retroactively to his 1993 crimes. His supplemental brief concluded that the district court's resentencing order for simple kidnapping should be affirmed. As in his original brief, Berreth made no reference to appellate jurisdiction per a question reserved.

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September 6, 2006: The day after Berreth filed his supplemental brief, he completed his reduced sentence of 192 months' incarceration and was released from custody to begin his increased postrelease supervision of 60 months.

March 16, 2007: The Court of Appeals panel released its decision in State v. Berreth, No. 94,310, 2007 WL 806002 (Kan. App. 2007) (unpublished opinion) (Berreth I). The panel first held Edwards barred the use of a motion to correct an illegal sentence as a vehicle for raising a multiplicity claim. It observed, however, that "the district court did not specifically state whether it was considering Berreth's motion as a motion to correct an illegal sentence under K.S.A. 22-3504(1) or as a K.S.A. 60-1507 motion." Berreth I, 2007 WL 806002, at *2. Nevertheless, it stated that Berreth's pro se pleadings were to be liberally construed, acknowledged that appointed counsel had filed a motion under 60-1507, and further acknowledged that Berreth argued that his motion should be liberally construed as a 1507 motion. It held that "Berreth's initial pro se motion to correct an illegal sentence should have been construed as a K.S.A. 60-1507 motion." (Emphasis added.) Berreth I, 2007 WL 806002, at *3. The panel ultimately cited the general appellate standard for reviewing a 60-1507 motion. It made no reference, however, to the only appellate jurisdictional basis the State had expressly asserted: a question reserved under K.S.A. 22-3602(b)(3).

Turning to the merits, the panel relied upon Schoonover to rule the district court erred in determining Berreth's convictions were multiplicitous and in resentencing. So it reversed and remanded the case to the district court "with directions to reinstate Berreth's original sentence [of 254 months], including the 24 months' postrelease supervision." Berreth I, 2007 WL 806002, at *5.

October 11, 2007: Because Berreth had been released from custody approximately 1 year earlier--during the pendency of the State's appeal--the State obtained a bench warrant for his arrest to comply with the Court of Appeals opinion. 11

October 18, 2007: After Berreth's arrest while on postrelease supervision, he filed in his original criminal case--93 CR 354--a five-page pro se motion to correct an illegal sentence pursuant to K.S.A. 22-3504(1). He essentially argued the mandated resentencing was illegal because the panel had no jurisdiction to order the district court to restore his original sentence. Among other things, he reminded everyone that the only appellate jurisdictional basis the State ever had expressly asserted was as a question reserved under K.S.A. 22-3602(b)(3), and therefore the panel's decision only "applies to future cases and not the case at hand."

November 1, 2007: At resentencing, the district court denied Berreth's motion. Per the panel's direction, the court resentenced Berreth to his original sentence of 254 months' imprisonment with 24 months' postrelease supervision. Berreth was then again placed in the custody of the Department of Corrections.

September 2008: In Berreth's brief to the Court of Appeals, counsel elaborated on the arguments in Berreth's pro se motion:

1. The State expressly filed its notice of appeal solely under K.S.A. 223602(b)(3),which meant the jurisdiction and accompanying rules of procedure were limited to a question reserved. And the Court of Appeals had erred in not recognizing the appeal was so limited.

2. Even if the panel had properly recognized that the exclusive basis for the appeal was a State's question reserved, it still erred in actually hearing--and in not simply dismissing--the matter because the question was not of statewide import, citing, e.g., State v. Tremble, 279 Kan. 391, 109 P.3d 1188 (2005) (declining jurisdiction and dismissing State's appeal for this reason); State v. Long, 274 Kan. 1095, 58 P.3d 706 (2002) (same). More particularly, the panel never deemed the 12

multiplicity issue to be of statewide import--as partly evidenced by its failure to publish its decision. Because this determination is an essential prerequisite to answering a question reserved, the panel had no jurisdiction over the State's appeal.

3. Even if jurisdiction existed as a question reserved and the matter was indeed of statewide import, a question reserved means that the panel's determinations can only operate prospectively and cannot affect Berreth, citing e.g., State v. Murry, 271 Kan. 223, 21 P.3d 528 (2001).

October 2008: In the State's brief, its five pages of argument are devoted almost exclusively to discussing how it meets the caselaw requirements to proceed under a question reserved in K.S.A. 22-3602(b)(3). While it contended that the State's failure to cite the proper appellate statute is not a jurisdictional prerequisite--citing State v. Grimes, 229 Kan. 143, 622 P.2d 143 (1981), and State v. Whorton, 225 Kan. 251, 598 P.2d 610 (1979)--it also argued that its notice of appeal nevertheless was sufficient to establish a question reserved, citing State v. Mountjoy, 257 Kan. 163, 891 P.2d 376 (1995). It also argued that the panel had been authorized to consider jurisdiction issues on its own initiative. The brief makes no reference to K.S.A. 60-1507(d).

May 15, 2009: The Court of Appeals rejected Berreth's argument. State v. Berreth, No. 99,937, 2009 WL 1393752, at *2 (Kan. App. 2009) (unpublished opinion) (Berreth II). Despite the State's notice of appeal requesting review solely under K.S.A. 22-3602(b)(3), the panel held that the State's designating its appeal as a question reserved did not deprive the panel of jurisdiction to order reimposition of the sentence.

The panel first observed that "[t]he law permitting appeals, K.S.A. 60-2103(b) and Supreme Court Rule 2.02 (2008 Kan. Ct. R. Annot. 9), [does not] require that the grounds for appeal be stated in the notice of appeal." It noted instead that the rules only required 13

that the notice of appeal state the parties and the order being appealed--which it ruled were sufficiently contained in the State's notice. We independently note these sources state as follows:

K.S.A. 60-2103(b) states in relevant part that "[t]he notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken."

Similarly, Rule 2.02 states that the notice of appeal shall be in substantially the following form: "Notice is hereby given that (specify the party or parties taking the appeal) appeal(s) from (designate the judgment or part thereof appealed from) to the Court of Appeals of the State of Kansas." The Berreth II panel determined that the Berreth I panel had implicitly--and properly--treated the matter as a State appeal of a final judgment on a 60-1507 motion via the authority contained in K.S.A. 60-1507(d). Berreth II, 2009 WL 1393752, at *2. Subsection d provides that "[a]n appeal may be taken to the Court of Appeals from the order entered on the [1507] motion as in a civil case." See Supreme Court Rule 183(k) (2011 Kan. Ct. R. Annot. 259) (same); see also Moll v. State, 41 Kan. App. 2d 677, 682, 204 P.3d 659 (2009) (State may appeal an unfavorable disposition of a 60-1507 motion in the same manner as a final judgment in a civil proceeding). Accordingly, the Berreth II panel affirmed the Berreth I panel's decision and the district court's reimposition of the original sentence of 254 months' incarceration.

October 5, 2009: After approval by this court to file a pro se supplemental brief, Berreth filed a late one. He additionally argued that the Berreth II panel had violated his rights to receive due process and to be free from ex post facto and double jeopardy problems.

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January 8, 2010: We granted Berreth's petition for review. Initially he had argued that grounds for jurisdiction not identified in a notice of appeal may not be considered by the court, citing State v. Verge, 272 Kan. 501, 521, 34 P.3d 449 (2001). Because K.S.A. 60-1507(d) had not been so cited, he contended the panel in Berreth I had no authority to consider the State's appeal on that basis. No supplemental briefs were filed by counsel.

October 28, 2010: At oral arguments before this court, the State conceded that it had not argued K.S.A. 60-1507(d) as the basis of appellate jurisdiction at the Court of Appeals but rather argued jurisdiction existed per K.S.A. 22-3602(b)(3) as a question reserved. When the State was specifically asked if it were requesting this court to give relief that it did not seek and did not argue at the Court of Appeals, the State answered affirmatively. It contended, however, that the panel had de novo review of the issues once the State had perfected its appeal. According to the State, the panel was correct in deciding jurisdiction sua sponte and correct in recognizing that 60-1507(d) was the better jurisdictional basis.

Additional facts will be added as necessary.

ANALYSIS Jurisdiction is a question of law over which we exercise unlimited review. State v. Ballard, 289 Kan. 1000, 1005, 218 P.3d 432 (2009); Harsch v. Miller, 288 Kan. 280, Syl.

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