                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                               No. 115,431

                                           STATE OF KANSAS,
                                               Appellee,

                                                     v.

                                         MICHAEL E. PHILLIPS,
                                             Appellant.


                                   SYLLABUS BY THE COURT

1.
        Whether a K.S.A. 22-3501 motion for new trial is timely is a question of law over
which an appellate court exercises plenary review.


2.
        If an appellate court's decision and mandate is fully determinative of the issues
presented in the proceedings below, they become a part of the judgment of the case
without further order of the trial court.


        Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed March 29, 2019.
Affirmed.


        Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, was on the brief for appellant.


        Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.


The opinion of the court was delivered by


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       NUSS, C.J.: Michael E. Phillips challenges the district court's denial of his motion
for a new trial as untimely. The issue presented asks: for purposes of the timeliness of a
K.S.A. 22-3501 motion for new trial based on newly discovered evidence, when is a
judgment final?


       We conclude the district court correctly held the two-year period in which the
motion must be filed began from the date the Supreme Court mandate was issued, i.e.,
when the judgment became final. Because Phillips' motion was not filed during this time,
we affirm the district court.


                          FACTS AND PROCEDURAL HISTORY


       A jury convicted Phillips of first-degree felony murder, two counts of attempted
aggravated robbery, and criminal possession of a firearm. He was sentenced to life in
prison, with a mandatory minimum of 20 years and lifetime postrelease supervision for
felony murder; a consecutive 47 months for one attempted aggravated robbery
conviction; a consecutive 34 months on the other attempted aggravated robbery
conviction; and a concurrent 9 months for criminal possession of a firearm. Phillips
appealed his conviction, resulting in our upholding all four counts and the term of
imprisonment. State v. Phillips, 295 Kan. 929, 287 P.3d 245 (2012).


       But we did make one change to Phillips' sentence. Phillips, 295 Kan. at 950. The
district court had ordered postrelease supervision for life. We vacated that part of his
sentence, holding a "sentencing court has no authority to order a term of postrelease
supervision in conjunction with an off-grid indeterminate life sentence." Phillips, 295
Kan. at 950. We did not include an order of remand in our opinion. The Clerk of the
Supreme Court issued a mandate on February 11, 2013, notifying the district court that


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the Supreme Court had affirmed its judgment, except for vacating the postrelease
supervision.


       Phillips later filed a K.S.A. 60-1507 motion to vacate, amend, or set aside the
judgment. The motion was summarily denied at the district court level.


       Although the February 11, 2013 mandate contained no order of remand, the last
paragraph read, "You are therefore commanded, [t]hat without delay you cause execution
to be had of the judgment of the Supreme Court, according to law." Apparently acting on
this language, the district court held a hearing on August 15, 2014, to discuss the
mandate, stating it "appears that the Court has remanded this case back to this
[c]ourt . . . appears to me I obviously need to set aside the [c]ourt's order for post-release
supervision."


       The hearing transcript shows confusion about the purpose and process of the
hearing. Phillips thought the hearing might address his already-denied 60-1507 motion.
The district court was unclear on who would act as defense counsel for Phillips and what
the Supreme Court's instructions were. The court also did not proceed on statutory or
Supreme Court Rule authority for holding the hearing. It only stated


       "the Supreme Court likes to have those when they remand something and the mandate is
       sent down, they direct the Court to move forward and this mandate is already fairly old
       . . . . It is my understanding from the Supreme Court what I'm supposed to do is exactly
       what they tell me to do which is—and just so I'm as clear as I can be on this that the
       Court is going to set aside its previous order . . . ."


       Phillips then filed a motion for new trial on March 6, 2015, arguing newly
discovered evidence justifies a new trial. The district court denied the motion: "Per


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K.S.A. 22-3501(1) this motion is out-of-time. Mandate issued 2/15/13 [sic]. This motion
filed 3/6/15—more than 2 years."


       Phillips appeals. Our jurisdiction is proper under K.S.A. 2018 Supp. 22-
3601(b)(3), (4) (off-grid crime; life sentence).


                                        ANALYSIS


Issue: Is Phillips' motion for new trial time-barred?


       Standard of review


       "The court on motion of a defendant may grant a new trial to the defendant if
required in the interest of justice." K.S.A. 2016 Supp. 22-3501. An appellate court
reviews the trial court's decision on a motion for new trial for an abuse of discretion.
State v. Warren, 302 Kan. 601, 614, 356 P.3d 396 (2015).


       The question of whether a motion is timely under K.S.A. 22-3501(1) involves
statutory interpretation which is a question of law over which this court has unlimited
review. State v. Jolly, 291 Kan. 842, 845-46, 249 P.3d 421 (2011).


Discussion


       To be timely, a K.S.A. 22-3501 motion for new trial based on the ground of newly
discovered evidence must be filed within two years after the final judgment. K.S.A. 22-
3501(1). Phillips argues the final judgment was on August 15, 2014, when the district
court conducted a "remand hearing." For reasons Phillips does not explain, he believes
the two-year period would have commenced 14 days later, on August 29, 2014. This
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calculus would put the filing deadline at August 29, 2016. If so, Phillips' motion filed on
March 6, 2015, would be well within that time frame.


          The State responds Phillips' March 6, 2015 motion was not within the two-year
limit because the judgment was final on February 11, 2013—when this court's mandate
was issued. To support this position, the State argues that the August 15, 2014 "remand
hearing" was a nullity because the court lacked jurisdiction to modify Phillips' sentence
once this court had vacated the post-release supervision. Neither this court's opinion nor
the mandate gave a remand instruction to the district court. Phillips, 295 Kan. 929. The
State argues no further action on the part of the district court "was mandated, ordered,
necessary, or even allowed."


          The State's position accords with a plain reading of K.S.A. 60-2106(c), which
states:


          "The supreme court may by rule provide for post decision motions for rehearing or other
          relief. When under such rule a decision of an appellate court becomes final, such court
          shall promptly cause to be transmitted to the clerk of the district court its mandate
          containing such directions as are appropriate under the decision. A copy of the opinion of
          the court shall accompany and be a part of the mandate. The clerk of the district court
          shall make a notation thereof on the appearance docket. Such mandate and opinion,
          without further order of the judge, shall thereupon be a part of the judgment of the court
          if it is determinative of the action, or shall be controlling in the conduct of any further
          proceedings necessary in the district court." (Emphasis added.)


          The facts here exemplify what is contemplated by the statutory phrase "if it is
determinative of the action." We affirmed the district court's sentencing on all four counts
of conviction and no further proceedings were necessary on that issue. We also vacated
postrelease supervision, and no further proceedings were necessary because a sentencing

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court has no authority to order a term of postrelease supervision in conjunction with an
off-grid indeterminate life sentence. State v. Tafoya, 304 Kan. 663, 666-67, 372 P.3d
1247 (2016) (no further proceedings necessary). A district court's judgment becomes
final the date this court issues its mandate, except in cases where remand instructions are
given and further proceedings are necessary.


       In conclusion, our February 11, 2013 mandate was fully determinative of the
issues and therefore rendered the judgment final. As a result, the district court was correct
to deny as untimely Phillips' March 6, 2015 motion for new trial based on newly
discovered evidence.


       Judgment affirmed.




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