                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                              No. 112,955

                                          STATE OF KANSAS,
                                              Appellee,

                                                    v.

                                      MITCHELL C. NORTHERN,
                                            Appellant.


                                  SYLLABUS BY THE COURT

1.
        A timely notice of appeal is required under most circumstances in order for an
appellate court to obtain jurisdiction over an appeal.


2.
        An appellate court may consider a new argument on appeal only if the newly
asserted theory involves a pure question of law arising on proved or admitted facts and
that is finally determinative of the case or if consideration of the new theory is necessary
to serve the ends of justice or to prevent denial of fundamental rights.


        Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed July 22, 2016.
Affirmed.


        Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.


        Sheryl L. Lidtke, chief deputy district attorney, argued the cause, and Kristiane N. Bryant,
assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
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The opinion of the court was delivered by


       ROSEN, J.: Mitchell C. Northern appeals from the denial of his motion for leave to
take an out-of-time appeal from his life sentence for first-degree premeditated murder.


       Northern pled guilty to first-degree murder, and the district court imposed a
hard 25 sentence from the bench on October 28, 201l, in conformity with the plea
agreement. Richard Carney was Northern's attorney during the proceedings. At the
sentencing hearing, the State requested that the court "leave open" the matter of
restitution until information from the victim's family became available. After
pronouncing the terms of incarceration, the court stated, "I will leave the issue of
restitution open for a matter of 30 days." The court then informed Northern that he had
14 days in which to file a notice of appeal. No notice of appeal was filed at that time.


       On November 30, 2011, the district court entered a restitution order in the amount
of $1,977.98 to be paid to the parent of the victim. Again, no notice of appeal was filed at
the time.


       Years later, on May 19, 2014, Northern filed a pro se motion seeking leave from
the district court to file his appeal out of time. In his motion, he proffered that he had
been informed of his right to appeal by the court, that he asked his attorney to take an
appeal from the sentence, and that his attorney failed to file a timely appeal. Northern and
Carney both testified at a hearing on the motion.


       Northern testified that, when the judge told him he had 14 days in which to appeal,
he told his attorney that he "would like for that to happen" and that he "wanted the appeal
to go." He further testified that his attorney responded that "it wouldn't do any good." On
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cross-examination, Northern said that he was "fairly sure" that he asked his attorney to
file a notice of appeal and that he was "most of the way sure" that he made the request,
but that he "could be mistaken." Northern did not inquire of Carney whether he actually
filed the notice of appeal. Finally, in May 2014, Northern determined that no appeal had
ever been filed in his case.


       Carney testified that he did not recall Northern asking him to file an appeal and
that no conversation took place regarding an appeal. Carney further testified that he had
explained to Northern during discussions about the plea agreement that he would be
statutorily precluded from an appeal unless the sentence was illegal or otherwise
incorrect.


       The district court engaged in the following evaluation of the credibility of the two
witnesses:


               "The court finds clearly that he was notified of his right to appeal, he admits that
       candidly. He also admits candidly that he's not positive what phraseology he had with
       Mr. Carney. I do not find that he has met the basis of the exceptions under Ortiz and
       subsequent cases. And based on that, the court denies his right to file appeal out of time."


       In its subsequent journal entry, the district court made the following findings on
which it based the denial of Northern's motion:


       "1.     The defendant was notified of his right to appeal.
       "2.     The defendant did not recall a specific conversation with his attorney, Rick
               Carney, during which he requested that Carney file an appeal on his behalf. In
               addition, Carney testified that the defendant did not request that Carney file an
               appeal.
       "3.     None of the exceptions under State v. Ortiz, 230 Kan. 733 (1982) apply."


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       Northern initially argues that, although his prison term was pronounced in open
court, the subsequent restitution order was issued only through a written order. He
contends that his sentence never became final for purposes of appeals because restitution
was never pronounced from the bench in open court and his appeal from the sentence is
therefore not out of time.


       Because the interpretation of statutes and the determination of jurisdiction,
including when the time to file a notice of appeal starts to run, involve questions of law,
we exercise unlimited review over this matter. See State v. Hall, 298 Kan. 978, 982-83,
310 P.3d 506 (2014).


       A defendant's sentence becomes final and appealable when the district court
pronounces the sentence from the bench. Hall, 298 Kan. at 983. A district court may
exercise its discretion to continue a sentencing hearing. State v. Beaman, 295 Kan.
853, 863, 286 P.3d 876 (2012). Restitution is part of a criminal defendant's sentence.
Hall, 298 Kan. at 983. It is not the incarceration phase of sentencing alone that triggers
the beginning of the statutory time to file a notice of appeal; the restitution phase of
sentencing must also be completed before a defendant files a notice of appeal. State v.
McDaniel, 292 Kan. 443, 448, 254 P.3d 534 (2011). A defendant may not take an appeal
until judgment is final. Hall, 298 Kan. at 986.


       Because restitution is part of a criminal defendant's sentence, the amount may only
be set by a sentencing judge when the defendant is present in open court. Until the
applicable restitution amount is decided, the sentencing process is not complete. Hall,
298 Kan. at 986. The Hall court emphasized that "any completion of sentencing must
take place in the defendant's presence in open court." 298 Kan. at 987. "As is the case
with other critical stages of criminal proceedings, a defendant may waive his or her right


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to be present at a continued sentencing hearing, but a district judge would be well advised
to see that a defendant's waiver appears on the record." 298 Kan. at 987-88.


       Northern argues that he was not present in open court when the judge announced
the amount of restitution; he did not waive his right to be present at all stages of
sentencing; the order of restitution therefore did not complete the sentencing procedure;
sentencing has never been completed; and his time to file a notice of appeal therefore has
never begun to run.


       The State directs the court's attention to State v. Frierson, 298 Kan. 1005,
319 P.3d 515 (2014). In Frierson, the district court imposed restitution at the same
hearing during which it announced defendant's prison term. The district court then
modified the restitution order via a written order that was signed by both attorneys. The
defendant challenged the modification, asserting that the district court was without
jurisdiction to increase the restitution amount.


       This court affirmed the modified restitution order on several grounds: at the
sentencing hearing, the judge announced that he was holding jurisdiction open in order to
obtain complete cost assessments; the written restitution order was signed by the
defendant's attorney; and the defendant did not argue on appeal that his right to be present
at sentencing was violated, so the issue was not considered by this court. 298 Kan. at
1021-22. We held that "because the judge explicitly held open jurisdiction, and because
the parties agreed on a 30-day extension, and because the order was signed by defense
counsel and entered within the planned time frame, we are satisfied that the spirit, if not
the letter, of the procedure" set out in Hall was satisfied. 298 Kan. at 1021. Noting
widespread uncertainty about the interplay of restitution orders and appellate timelines,
we limited strict adherence to the Hall requirements to cases in which sentencing
occurred after the mandate in Frierson. 298 Kan. at 1021.
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       This court then relied on Frierson in State v. Moncla, 301 Kan. 549, 555, 343 P.3d
1161 (2015), where we rejected the appellant's argument that his case was still open
because restitution had been set by a written journal entry and was never pronounced in
his presence in open court. We held that "[t]he finality of Moncla's sentence . . . occurred
no later than the filing of the journal entry memorializing the restitution amount."
(Emphasis added.) 301 Kan. at 555. As in Frierson, we were satisfied that the "spirit, if
not the letter" of proper procedure was followed. 301 Kan. at 554.


       The facts of the present case closely resemble those of Frierson and Moncla.
Northern was sentenced prior to the decision in Frierson, and we have declined to apply
the strict requirements derived from Hall retroactively to pre-Frierson sentences. We find
no manifest injustice ensuing from Northern's inability to obtain appellate jurisdiction,
and we are not persuaded of a need to alter our holdings in Frierson and Moncla.


       Northern advances a second argument that the district court erred when it denied
his motion to file an untimely appeal.


       A timely notice of appeal is required under most circumstances in order for an
appellate court to obtain jurisdiction over an appeal. State v. Patton, 287 Kan. 200, 206,
195 P.3d 753 (2008). In State v. Ortiz, 230 Kan. 733, 735–36, 640 P.2d 1255 (1982), this
court set out three narrow exceptions to this jurisdictional requirement. A district court
may allow a late appeal if a criminal defendant was: (1) not informed of his or her right
to appeal; (2) not furnished an attorney to perfect an appeal; or (3) furnished an attorney
who failed to perfect an appeal. If a defendant meets the exceptional circumstances set
out in Ortiz, he or she must be allowed to file an appeal out of time. State v. Phinney,
280 Kan. 394, 405, 122 P.3d 356 (2005).


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       Northern contends that the first and third Ortiz exceptions apply to him, because
the district court misadvised him during the sentencing process about the time for taking
his direct appeal and because his attorney failed to comply with his express wish that he
file a timely notice of appeal.


       Northern concedes that he did not argue these points to the district court, and for
that reason the proof required of either him or the State by the Patton test was never
proffered. He advocates remanding the case for additional development of the record and
for additional findings by the district court. We decline to exercise that option under the
facts of this case.


       An appellate court may consider a new argument on appeal only if the newly
asserted theory involves a pure question of law arising on proved or admitted facts and
that is finally determinative of the case or if consideration of the new theory is necessary
to serve the ends of justice or to prevent denial of fundamental rights. State v. Poulton,
286 Kan. 1, 5, 179 P.3d 1145 (2008).


       Northern's argument regarding the first Ortiz exception does not involve a purely
legal question. He, therefore, would have to show that consideration of his argument is
necessary to serve the ends of justice or to prevent denial of fundamental rights. He
makes no proffer of any injustice that he has suffered as a result of receiving the statutory
minimum sentence based on his voluntary plea to murder.


       Northern contends that the failure by trial counsel to follow K.A.R. 105-3-9,
which requires appointed counsel to file a notice of appeal unless the defendant signs a
waiver of the right to appeal, would be better evidence of whether the third Ortiz
exception applies. In Phinney, however, this court held that trial counsel's direct
testimony that he had fully advised his client of his appeal rights was sufficient to take
                                              7
the place of K.A.R. 105-3-9 evidence. 280 Kan. at 405. Even though a signed waiver
would have simplified the factual findings in the present case, the district court heard
evidence and evaluated the credibility of the witnesses and determined that Northern did
not ask his attorney for an appeal. That determination is supported by the record.


       The judgment of the district court is affirmed.




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