Wednesday, March 31, 2010

Massachusetts has a state constitution

In State v. Porter P, No. SJC-10383 (Mass. March 11, 2010), the Massachusetts Supreme Judicial Court considered the question of whether a landlord or other nonresident third-party can consent to a search and applied its state constitution to hold that such consent is only valid if officers see written documentation of such authority:
We understand that the police need clear guidance as to who has common authority over a residence and therefore who is entitled to give actual consent, because, as here, they rely on such consent in deciding to conduct a warrantless search, as opposed to securing the residence and applying for a search warrant. Therefore, we declare under art. 14 that a person may have actual authority to consent to a warrantless search of a home by the police only if (1) the person is a coinhabitant with a shared right of access to the home, that is, the person lives in the home, either as a member of the family, a roommate, or a houseguest whose stay is of substantial duration and who is given full access to the home; or (2) the person, generally a landlord, shows the police a written contract entitling that person to allow the police to enter the home to search for and seize contraband or evidence. No such entitlement may reasonably be presumed by custom or oral agreement.

I think this is a nice retort to claims by prosecution that officers are better informed by just relying on changing SCOTUS case law than by clear state statutory or constitutional rules.

Sunday, March 28, 2010

Hey copper, stay out of my trash! - part deux

Troy V. Huser, of Huser Law Offices, P.A., won in State v. Martin, Case No. 102,639 (March 26, 2010) (unpublished), affirming Judge Ireland’s suppression of evidence in a Pottawatomie County prosecution for felony possession of methamphetamine, felony possession of marijuana, and possession of drug paraphernalia.

In the district court, Judge Ireland ruled that law enforcement illegally searched Wheeler's trash in order to obtain evidence to support a search warrant for his residence. The suppression was based on stipulated facts which stated in part that:
The basis for the probable cause of the warrant was predicated primarily on two trash pulls: April 16, 2008, and April 23, 2008.

Pottawatomie County Sergeant Brad Rose obtained the trash on both occasions from the trash collector.

The defendants' [sic] hired the trash collector to deliver the trash to the transfer station.

The transfer station bears a sign that prohibits removal of trash once placed there.

The trash collector picked the trash up from the defendants' residence, located approximately 255' (as the crow flies) from the roadway. The trash is set out under a balcony type area of the residence, and is not visible from the roadway.

Det. Rose advised that on the dates he received the trash from the trash collector, he was advised by the trash collector that the defendants [sic] garbage was picked up last and separated from the rest of the trash that was collected that day.

Det. Rose advised that on both occasions he received the trash from the trash collector, the trash identified as the defendants' trash was separated from the rest of the trash and removed by Det. Rose.
The COA affirmed the district court’s suppression of the evidence from the trash pull, relying in part upon State v. Hoffman, 40 Kan. App. 2d 894 (2008) (evidence properly suppressed when officer rode in trash truck to collect trash from curtilage of defendant’s property). The COA held that there was no question that Wheeler’s trash was within the curtilage of the residence before it was picked up by the trash collector. The court also noted that the State failed to meet its burden to show that the trash collector was not an agent of the State. The opinion was written by Judge Malone and featured a concurring opinion from Judge Green and a dissent from Judge McAnany.

Saturday, March 27, 2010

Hey copper, stay out of my trash!

Brenda M. Jordan, of Brenda Jordan Law Office LLC, won in State v. Wheeler, Case No. 103,628 (March 26, 2010) (unpublished), affirming Judge Ireland’s suppression of evidence in a Pottawatomie County prosecution for felony possession of methamphetamine, felony possession of marijuana, and possession of drug paraphernalia.

In the district court, Judge Ireland ruled that law enforcement illegally searched Wheeler's trash in order to obtain evidence to support a search warrant for his residence. The suppression was based on stipulated facts which stated in part that:
The basis for the probable cause of the warrant was predicated primarily on two trash pulls: April 16, 2008, and April 23, 2008.

Pottawatomie County Sergeant Brad Rose obtained the trash on both occasions from the trash collector.

The defendants' [sic] hired the trash collector to deliver the trash to the transfer station.

The transfer station bears a sign that prohibits removal of trash once placed there.

The trash collector picked the trash up from the defendants' residence, located approximately 255' (as the crow flies) from the roadway. The trash is set out under a balcony type area of the residence, and is not visible from the roadway.

Det. Rose advised that on the dates he received the trash from the trash collector, he was advised by the trash collector that the defendants [sic] garbage was picked up last and separated from the rest of the trash that was collected that day.

Det. Rose advised that on both occasions he received the trash from the trash collector, the trash identified as the defendants' trash was separated from the rest of the trash and removed by Det. Rose.
The COA affirmed the district court’s suppression of the evidence from the trash pull, relying in part upon State v. Hoffman, 40 Kan. App. 2d 894 (2008) (evidence properly suppressed when officer rode in trash truck to collect trash from curtilage of defendant’s property). The COA held that there was no question that Wheeler’s trash was within the curtilage of the residence before it was picked up by the trash collector. The court also noted that the State failed to meet its burden to show that the trash collector was not an agent of the State. The opinion was written by Judge Malone and featured a concurring opinion from Judge Green and a dissent from Judge McAnany.

Friday, March 26, 2010

Then don't take me to jail . . .

Thanks to How Appealing and Sentencing Law and Policy for highlighting State v. Eaton, a Washington Supreme Court case on whether you can enhance a sentence for possession based on possession within a jail when the cops find drugs on your person after arresting you and taking you directly to jail. The majority determines that enhancement is not appropriate.

There is a lot of language in this case that might be useful in some Kansas trafficking cases, where persons are accused of trafficking when they are booked into jail and found with drugs on their persons.

Thursday, March 25, 2010

May 2010 KSC docket

Here are the criminal cases on the KSC docket for May 3-6, 2010. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live over the internet at the appellate court website (here) if you would like to listen in to any of these arguments.

May 3--Monday--a.m.

State v. Isaac Duncan, No. 99,463 (Sedgwick)
Sentencing appeal (petition for review)
Sarah Morrison (brief); Heather Cessna (argue)
[Reversed; Biles; Nov. 19, 2010]
  1. Improper upward durational departure after guilty plea
Jack Goldsmith v. State, No. 99,041 (Cowley)
K.S.A. 22-2512 appeal (petition for review)
Janine Cox
[Reversed; Beier; July 1, 2011]
  1. Improper dismissal of K.S.A. 22-2512 (DNA) petition before complete testing

May 4--Tuesday--a.m.

State v. Luther Kemble, No. 100,824 (Sedgwick)
Direct appeal; Agg Indecent Liberties
Carl Folsom, III
[Reversed and remandedl; Johnson; September 3, 2010]
  1. Improper judicial comment on credibility of witness
  2. Prosecutorial misconduct (Doyle violation)
  3. Failure to charge or instruct on age of defendant
State v. Sanford Colston, No. 100,005 (Wyandotte)
Direct appeal; Rape/Agg Indecent Liberties
Rachel L. Pickering
[Affirmed; Malone; July 23, 2010]
  1. Failure to give unanimity instruction
  2. Failure to charge or instruct on age of defendant
  3. Failure to give agg indecent liberties as lesser
  4. Improper Allen instruction
State v. Jesus Berriozabal, No. 100,291 (Saline)
Direct appeal; Rape/Agg Crim Sodomy
Christina M. Waugh
[Aff'd/Vacated; Luckert; Dec. 10, 2010]
  1. Improper admission of prior sexual misconduct
  2. Improper denial of request for psychological exam of complaining witness
  3. Improper denial of evidence of sexual misconduct by another

May 5--Wednesday--a.m.

Michael Mattox v. State, No. 101,078 (Shawnee)
State appeal (transfer)
Jean K. Gilles Phillips
[Reversed; Rosen; Dec. 20, 2011]
  1. Ineffective assistance of appellate counsel
State v. Thomas Plotner, No. 101,635 (Ford)
Sentencing appeal
Heather Cessna
[Affirmed in part/reversed in part; Biles; June 25, 2010]
  1. Failure to allow motion to withdraw plea
  2. Improper no contact order as part of sentence
  3. Failure to grant downward departure
State v. Samuel Becker, No. 100,475 (Cherokee)
Direct appeal; Felony murder/kidnapping
Jessica R. Kunen
[Affirmed; Rosen; July 9, 2010]
  1. Improper admission of hearsay statements
  2. Prosecutorial misconduct
  3. Insufficient evidence of kidnapping
  4. Failure to give unanimity instruction
  5. Failure to give lesser for unintentional second-degree murder

Wednesday, March 24, 2010

Gavin Scott gets life

Jeff Wicks and Tim Frieden won relief today for Gavin Scott, who was facing a possible death sentence for a conviction of capital murder. Mr. Scott had previously been sentenced to death (twice actually), but in Mr. Scott's direct appeal, the KSC reversed Mr. Scott's most recent death sentence based on erroneous jury instructions relating to mitigating evidence (blogged about here). The KSC also reversed Mr. Scott's separate first-degree murder conviction because it was multiplicitous with his capital murder conviction under K.S.A. 21-3107(2)(d) (Furse) (prohibiting convictions of lesser offenses that are "necessarily proved" by the greater offense). Following the appeal, Mr. Scott was set to face another possible death sentence on the remaining capital murder conviction, which had been affirmed.

In a hearing this afternoon, the defense asked the district court to reinstate the jury's convictions on two counts of first-degree murder, which would do away with the capital murder conviction and alleviate the multiplicity problem. The court agreed with the defense's request and sentenced Mr. Scott to two "Hard-40" life sentences. The Wichita Eagles's coverage of the case can be found here and here.

Dismissal of Lawrence vehicular homicide charge

Barbara Kay Huff won a dismissal of a vehicular homicide charge in State v. Peng, a Douglas County prosecution. The State had claimed that Mr. Peng killed a man with his vehicle after failing to properly clear his windshield of frost. Judge Sally Pokorny ruled there was insufficient evidence to support the crime. Here is coverage of the case by the Lawrence Journal World.


In Contempt?

On March 10, 2010, the KSC heard arguments in State of Kansas (Appellee) v. Valerie Gonzalez (Appellee) and Sarah Sweet McKinnon (Appellant), which we previously blogged about here. The appeal stems from a district court’s finding of contempt against Ms. McKinnon for failing to divulge the identity and communications of a prior client who had informed her about a potential willingness to give false testimony in Valerie Gonzalez’s first-degree murder trial. In the district court, Ms. McKinnon, who is the Chief Public Defender for the Reno County Public Defender Office (and who also represented Ms. Gonzalez in the murder case at one point), was subpoenaed by the State to testify about statements made by the former client. The State learned of the statements from a motion to withdraw. When Ms. McKinnon refused to testify, the district court held her in contempt. Roger Falk represented Ms. McKinnon in the district court and handled the case on appeal.

I was on hand for the oral argument in this case, as were 30 to 40 other members of the criminal defense bar. For those who were unable to attend, here is a link to an audio recording of the oral argument.

The key issue in the case seems to be whether the communications between the former client and Ms. McKinnon were covered by the statutory privilege in K.S.A. 60-426 (the State claims in part that the identity of the client is the only issue involved and that information is not privileged). Under K.S.A. 60-426(b), the lawyer-client privilege will not apply “to a communication if the judge finds that sufficient evidence, aside from the communication, has been introduced to warrant a finding that the legal service was sought or obtained in order to enable or aid the commission or planning of a crime or a tort . . . .” Based on my limited knowledge of the facts of this case, it seems that there is little evidence apart from the communication itself that a crime was going to be committed. Probably more importantly, it seems that Ms. McKinnon’s former client was not obtaining her advice to aid in the commission of any crime (perjury), rather it just came out that the former client intended to commit the crime. If I am correct in this assessment of the facts, the crime-fraud exception probably will not apply, and the communications will be held to be privileged.

In addition to the issue of privilege, several justices were concerned whether the State did everything they could to investigate the identity of the person who made the statements before subpoenaing Ms. McKinnon and asking her to reveal confidential communications. See Rule 3.8(e) of the Kansas Rules of Professional Conduct. If the initial subpoena of Ms. McKinnon was improper, then that might affect the judgment of contempt. We will provide an update of this case when the court issues an opinion.

Friday, March 19, 2010

University official does not have apparent authority to consent to dorm room

David N. Harger won in State v. Jordan, No. 102,846 (Kan. App. March 5, 2010)(unpublished), affirming Judge Dickinson's suppression order in a McPherson County rape prosecution. Officers were investigating a rape that allegedly happened in a dorm room on the McPherson College campus. Police obtained consent from a resident director to enter Mr. Jordan's dorm room, entered it and took photographs of it, leading to a later search warrant.

The COA quickly dispatched the state's claim that the resident director had actual authority to consent to search of the dorm room:
While some circumstances may exist where college officials could open a dorm room for the college's purposes, [the resident director] opened Jordan's room solely to assist the police in a criminal investigation. In this circumstance, we are considering Jordan's Fourth Amendment rights, and any consent to the opening of the room must have come either from Jordan or from some third party with common authority over the premises through mutual use on a regular basis, like a roommate.

The district court held that the resident direct did not have apparent authority to consent to search of the dorm room and the COA upheld that finding:
[A]n officer's factual mistake can justify the application of the apparent-authority doctrine to turn an invalid consent into one that police may rely upon. In every case in which officers have acted in good faith, they believe that the person giving consent has the authority to do so; that belief cannot be enough to get around the Fourth Amendment or our protections would evaporate. [The officer] wasn't mistaken here as to any facts. [The officer] knew that the room's resident hadn't been located or asked for permission to enter the room. He relied upon college officials for the legal
opinion that they had authority to enter a student's locked dorm room when acting only for the purpose of helping the police in investigating a crime. The college officials here acted only as agents of the police-police may not insulate themselves from legal error by asking their agents for a legal opinion that blesses a Fourth Amendment violation.

The COA also held that it would not consider application of the inevitable discovery doctrine because it had not been raised at the district court.

[Update: the state did not file a PR and the mandate issued on April 8, 2010.]

Wednesday, March 17, 2010

Prior bad acts and faulty limiting instruction

Ryan Eddigner won in State v. Carpenter, No. 100,485 (Kan. App. March 12, 2010)(unpublished), obtaining a new trial in a Greenwood County manufacture prosecution. The COA held that, under Boggs (blogged about here), the district court improperly admitted evidence of prior drug convictions as it related to a possession charge. The COA also noted that the limiting instruction given was not directed solely toward the possession charge, but allowed use of the prior convictions as evidence of intent in general. The COA held that this was erroneous and that the error could have reasonably misled the jury on the nonpossession charges. As a result, the COA remanded all charges for a new trial.

[Update: the state did not file a PR and the mandate issued on April 15, 2010.]

Happy St. Patrick's Day!

For all of you going out to various parades or other festivities today, I wanted to remind you of one of my favorite cases, State v. Anguiano, 37 Kan. App. 2d 202; 151 P.3d 857 (2007), blogged about here.

In Anguiano, the COA held that an investigatory stop of a pedestrian was not supported by reasonable suspicion when the person only "semi-fit" the description of a person wanted on a felony warrant. The description of the suspect was: a Hispanic male, wearing a coat, and "dark type" green pants (Anguiano had on dark-colored, grayish-green pants and a coat). The best part- the stop occurred on St. Patrick's Day. So, the important thing to take from this case (other than the good Fourth Amendment law) is that you can't be detained on St. Patrick's Day for wearing green pants.

KSC to decide expungement issue

On March 3, 2010, the KSC transferred State v. Jaben, No. 102,383 up for court's consideration pursuant to K.S.A. 20-3018(c). Jaben's attorney, William Rork, informed me that the case involves a State's appeal on a question reserved. The issue is what law should apply in expungement cases - the law at the time of the offense or the law at the time of the expungement petition. The district court granted the expungement of Jaben's decades-old sex offenses even though current law (K.S.A. 21-4619[c]) does not allow the expungement of the offenses. However, at the time of the crimes, expungement was allowed. It seems like an interesting issue that could affect expungements in other cases as well.

Monday, March 15, 2010

The third time is the charm

Tony A. Potter, of Potter Law Office, P.A., won in State v. Shepard, Case No. 101,106 (March 12, 2010) (unpublished), affirming Judge Toepfer’s dismissal of an Ellis County DUI prosecution on constitutional speedy trial grounds. The COA noted that the case had twice been dismissed at preliminary hearing:

Scott Michael Shepard was arrested for driving under the influence on August 31, 2006. The State formally charged Shepard with DUI on July 10, 2008. At the third preliminary hearing on August 19, 2008, the district court heard and granted Shepard's motion to dismiss.

In support of his motion to dismiss, Shepard noted the case had been filed three times. The State had twice dismissed the prosecution at preliminary hearing. As a result, Shepard argued, the preliminary hearing was untimely under K.S.A. 22-2902(2). Shepard claimed the case should be dismissed under State v. Clemence, 36 Kan. App. 2d 791, 145 P.3d 931 (2006), rev. denied 283 Kan. 932 (2007). Shepard pointed out that there had been a 2-year delay and that no preliminary hearing had yet been held. Shepard claimed he was prejudiced in this regard because he had to endure two preliminary hearings, make court appearances, and do everything required of a defendant for 2 years. The court agreed. It concluded Shepard's speedy trial rights were violated and dismissed the case. The State asks us to reverse and reinstate the prosecution since the statute of limitations has not yet run.

In affirming the district court’s dismissal, the COA reviewed the case using the four factors from Barker v. Wingo, 407 U.S. 514 (1972). The court held: 1) that the delay between arrest and the preliminary hearing was presumptively prejudicial; 2) that the delay was the result of the neglect of the State (and that the dismissals were actions to gain tactical advantage- so as to be successful in the prosecution); 3) that the defendant had asserted the claim at the preliminary hearing; and 4) that the defendant was prejudiced by the “time-consuming and costly” preparation that resulted from having three preliminary hearings.

Friday, March 12, 2010

Court furloughs are here

On March 12, 2010, the KSC issued Administrative Order 241, which officially orders furloughs for the Kansas Judicial Branch. Specifically, the KSC stated:

Kansas district and appellate courts will be closed on April 9, 16, 23, and May 7, 2010. These closures apply to all court offices, including the offices of the clerks of the district court, the court services offices, the office of the Clerk of the Appellate Courts, the Reporter of Decisions, the Supreme Court Law Library, the Office of Judicial Administration, the office of the Disciplinary Administrator, the Kansas Lawyers Assistance Program, the Kansas Continuing Legal Education Commission, and any other offices staffed by Kansas Judicial Branch personnel.


During the furlough dates, the district courts will be closed, but they will still be allowed to conduct the following critical functions in criminal cases:

- Determining probable cause for arrests without a warrant

-Conducting first appearances

-Setting appearance bonds and conditions of release pending prelim or trial

-Issuing warrants for arrest, probation violations, searches and seizures, violation of supervised release, holding a material witness, and violation of diversions

-Issuing orders for wiretaps

-Conducting inquisitions

AO 241 also lists a number of other critical functions that will be allowed to be conducted in Juvenile/CINC cases, PFA cases, care and treatment cases, and other miscellaneous cases.

The order also notes that the district courts' fax machines are to be "operating and maintained" when the courts are closed and that the chief judge of each judicial district is required to notify the bar of how to contact a judge for the performance of any critical function.

Thursday, March 04, 2010

Answering jury question outside of presence of defendant requires reversal

Janine Cox won in State v. Bonnett, No. 98,719 (Kan. App. Feb. 26, 2010)(unpublished), obtaining a new trial in a Butler County rape prosecution. During deliberations, the jury sent out some questions:
Initially, we not that our review of this argument is hindered by the state of the record. No transcript or record was made of the district court's response to the jury's question or of any discussions with counsel, and the handwritten responses were not file-stamped or made a part of the record when given to the jury. Instead, they were file-stamped on April 22, 2008, during the course of this appeal. The parties prepared a statement of proceedings pursuant to Supreme Court Rule 3.04. However, that statement contains only minimal information regarding the proceedings.

The record does reveal that the jury began deliberating at 9:45 a.m. and, at some point before 10:25 a.m., the jury sent the following question to the judge: "In the State of Kansas what is the legal age of consent for sexual intercourse?" The court replied with a hand-written response: "The elements of the crime of rape which are pertinent to this case are contained within the instructions that you have been given. Please refer back to those instruction." Underneath the judge's signature, the judge wrote "1/26/07 10:25 A.M."

The transcript indicates that from 1:20 p.m. to 3:30 p.m., the jury requested and received a readback of F.R.'s testimony as well as a readback of Detective Young's testimony concerning his interview with Bonnett. the transcript contains to record of any further jury questions or requests. Nevertheless, the parties agree that sometime prior to 4:33 p.m., the jury sent the following note to the trial judge: "Jury is not unaniamous [sic] -- what is our next step?" The court again responded in writing, stating: "Please continue your deliberations and attempt to achieve a unanimous verdict." Underneath the judge's signature is the following notation, "1/26/07 4:33 p.m."

According to the transcript, the jury returned a guilty verdict at 7:55 p.m.

The COA denied the claim that the last answer was a coercive Allen instruction, but agreed that the record failed to establish that the proceedings regarding the question and answer were conducted in Mr. Bonnett's presence:
Because the trial court's response to the jury occurred at a critical stage of the proceeding at which the defendant had a right to be present, the trial court erred in responding absent Bonnett's presence.

. . . .

Nevertheless, the State suggests Bonnett had an opportunity to object because "[t]he jury question regarding unanimity was responded to after the trial court met with counsel and responded to at 4:33 p.m. on January 26, 2007." However, in support of this assertion, the State cites only the handwritten jury question and the judge's response. This page of the record provides no information whatsoever regarding the court's discussions with counsel, if any, nor does it indicate whether counsel had an opportunity to object on the record.

And although the "Statement of Proceedings" prepared by appellate counsel indicates the trial court had "contact with attorneys" before sending a response to the jury advising it to continue deliberations and attempt to reach a unanimous verdict, the record does not describe the nature of the contact, nor does it indicate whether the attorneys were given an opportunity to object.
Because the jury had indicated it was deadlocked and had asked for a readback, the COA held the error was not harmless and reversed.

This is a nice example of the need for a full record and diligence by appellate defense counsel. The question and answer that were caused the reversal in this case were not mentioned in the transcript and were not listed in the appearance docket. Without careful review of the entire record, this issue could easily have been missed. But not by Janine.

[Update: the state did not file a PR and the mandate issued on April 1, 2010.]

Monday, March 01, 2010

Indiana has a state constitution

In State v. Peters, No. 05A02-0908-CR-735 (Ind. App. Feb. 23, 2010), the Indiana COA upheld a suppression order based on the Indiana Constitution, recognizing that the question is separate from a Fourth Amendment claim:

First, the State has waived the issue of whether the officers’ initial, warrantless search was constitutional because the State has failed to make any argument on the issue of the reasonableness of that search under Article I, Section 11 of the Indiana Constitution. The trial court unambiguously rested its holding on Article I, Section 11, and it is well settled that Indiana courts "interpret and apply Article I, Section 11 of the Indiana Constitution independently from federal Fourth Amendment jurisprudence." Our investigation under Section 11 places the burden on the State to demonstrate that each relevant intrusion was reasonable in light of the totality of the circumstances.
The decision also demonstrates the importance of raising state constitutional issues at the district court level.

Hat tip to FourthAmendment.com.

Must advise of right to jury trial before effective waiver

Washburn student intern Christopher Mann and I won in State v. Frye, No. 101,292 (Kan. App. Feb. 26, 2010)(unpublished), reversing a Riley County aggravated battery conviction. A district court convicted Mr. Frye of a lesser level of aggravated battery after a bench trial. The bench trial occurred after a document purporting to be a waiver of jury trial was submitted to the district court. But the record failed to include any colloquy between the district court and Mr. Frye regarding the right to a jury trial:
A recent case from this court is similar to the case at hand. In State v. Bowers, 42 Kan. App. 2d 739, 216 P.3d 715 (2009)[blogged about here], the defendant was not advised of his right to a jury trial, nor did he personally waive that right in writing or in open court on the record. We agreed with the defendant he was not adequately advised of his right to a jury trial and reversed the district court and remanded the case for a new trial. In this case, the defendant did personally waive his right to a jury trial in writing. However, there is no indication in the record the district court advised the defendant of his right to a jury trial before he signed the waiver. Because the district court failed to follow [State v. Irving, 216 Kan. 588, 533 P.2d 1225 (1975)], the defendant's conviction is reversed and his sentence is vacated.
So, Mr. Frye gets a new trial (either with a jury or after a proper waiver colloquy).

[Update: the state filed a PR on March 26, 2010.]

[Further update: the KSC granted the state's PR on October 10, 2010.]

[Further update: the KSC affirmed the COA (reversing the conviction and remanding for a new trial) on May 4, 2012, blogged about here.]

Applying Youngblood

Sarah Morrison and Heather Cessna won in State v. Long, No. 98,736 (Kan. App. Feb. 26, 2010), vacating a Finney County possession sentence and remanding for resentencing excluding some misdemeanor convictions in criminal history:
On appeal, Long claimed the district court erred by overruling his objection to his criminal history. Because Long was ordered to serve jail time for contempt, based on his failure to pay fines and court costs, Long asserted his uncounseled misdemeanor convictions resulted in incarceration and should not have been included in his criminal history. Long also claimed his constitutional rights were violated because his criminal history was not proven to a jury beyond a reasonable doubt.
After reviewing the case law regarding this issue, the COA determined that the municipal convictions violated the Right to Counsel, regardless of whether Mr. Long served any time for contempt:
Returning to our facts, Long's municipal court sentences for his battery convictions are somewhat difficult to understand. Long was fined for each of his convictions, and the fines were suspended or reduced provided that payments were made in a timely manner. The municipal court did not impose a jail sentence upon Long for any of his convictions. However, Long's sentence in each case referred to a 1-year probation, which was more akin to a suspended sentence since the court never imposed jail time. It is undisputed that the State failed to establish that Long's municipal court convictions were counseled or that there was a waiver of counsel at the time his guilt was determined.

. . . .

Long received probation as well, but the district court never specified the underlying jail term. However, this distinction is insignificant. [State v. Youngblood, 288 Kan. 659, 206 P.3d 518 (2009) (blogged about here)] makes it clear that a person accused of a misdemeanor has a Sixth Amendment right to counsel at the stage of the proceedings where guilt is adjudicated if the sentence to be imposed upon conviction includes a term of imprisonment, even if the jail time is suspended or conditioned upon a term of probation. Had Long received only a fine without any term of probation, his misdemeanor convictions would not have triggered his constitutional right to counsel. But because Long was placed on probation in each misdemeanor case, he was entitled to counsel at the stage of the proceedings where his guilt was adjudicated, even though his incarceration was not immediate or inevitable.

In summary, because Long was sentenced to probation in No. 95 MCR 1386 and No. 96 MCR 0061 without counsel or having waived counsel at the time his guilt was adjudicated, his misdemeanor battery convictions were obtained in violation of his Sixth Amendment right to counsel and should not have been scored in his criminal history. We do not need to address whether Long's uncounseled misdemeanor convictions resulted in incarceration when he was subsequently ordered to serve jail time for contempt of court.
Combined with a recent case about sufficiency of proof of waiver of the Right to Counsel (blogged about here) practitioners should be very careful to review municipal convictions that make a difference in criminal history.

[Update: the state did not file a PR and the mandate issued on April 1, 2010.]