Sunday, December 09, 2012

Rare Habeas win in COA

Dan Monnat won in In re Weimer, No. 106,862 (Kan. App. Nov. 30, 2012) (unpublished), an original habeas action in the Court of Appeals challenging a Labette County prosecution for aggravated indecent liberties with a child based on lewd fondling or touching.  Ultimately, the court granted the writ and ordered the district court to dismiss the charge of aggravated indecent liberties with a child - lewd fondling or touching based on the doctrine of collateral estoppel.

The Court of Appeals explained the procedural history of the case as follows:
In this original action for a writ of habeas corpus, Brian Weimer asserts that the State's prosecution of aggravated indecent liberties with a child is barred by double jeopardy protections. In a previous trial that included other charges, Weimer was charged with aggravated indecent liberties with a child based on sexual intercourse, but the jury was instructed on aggravated indecent liberties with a child based on lewd fondling or touching. Weimer was convicted of one count of rape and one count of aggravated indecent liberties with a child, but the conviction was overturned based on ineffective assistance of trial counsel. On remand, the State amended the complaint to include one charge of rape and one charge of aggravated indecent liberties with a child based on lewd fondling or touching. Weimer moved to dismiss the amended charge of aggravated indecent liberties with a child, but the district court denied the motion.

Weimer then filed this original action for a writ of habeas corpus, claiming that he was being wrongfully detained on the charge of aggravated indecent liberties with a child. This court has jurisdiction to hear Weimer's original petition for a writ of habeas corpus under K.S.A. 60–1501(a). This court initially denied Weimer's petition on the ground that it was interlocutory in nature, but Weimer petitioned for review, and our Supreme Court remanded to this court for consideration on the merits. Weimer now asserts that his prosecution on the amended charge of aggravated indecent liberties with a child based on lewd fondling or touching is barred by the compulsory joinder rule. We agree. Thus, we grant Weimer's petition for a writ of habeas corpus and direct the district court to dismiss the amended charge of aggravated indecent liberties with a child.
The State actually conceded that the elements of collateral estoppel were met with the charge of aggravated indecent liberties with a child based on lewd fondling or touching.  But the State argued that the court should treat the issue as if there had been a defective complaint.  The court rejected this argument.  The State made other unsuccessful arguments that Weimer had actually been charged with aggravated indecent liberties with a child - lewd fondling or touching, based on the statutory citation to the correct offense in the complaint, and the State argued alternatively that the district court had "amended" the complaint at trial by instructing the jury on aggravated indecent liberties with a child based on lewd fondling or touching.

Rejecting the State's arguments, the court concluded:
Because all the required elements of the compulsory joinder doctrine are met, this court finds that the State's prosecution of aggravated indecent liberties with a child based on lewd fondling or touching is barred by double jeopardy. Accordingly, this court grants Weimer's petition for a writ of habeas corpus and directs the district court to dismiss count two of the third amended complaint charging Weimer with aggravated indecent liberties with a child. Nothing in this opinion shall be construed to prohibit the State from prosecuting the charge of rape against Weimer.
Judge Bruns filed a dissenting opinion.  He explained, "I do not agree that an original action in habeas corpus is an appropriate vehicle to challenge one count of a multiple count complaint containing other valid charges. Furthermore, I fear that the holding in this case unnecessarily expands the parameters of habeas corpus and encourages criminal defendants to abuse this extraordinary remedy." 

Based on Judge Bruns' dissent, and the unusual procedural history of the case, it is somewhat surprising that the opinion was not published.  But this just serves as a reminder that there are other procedural avenues available to defendants rather than waiting around and having to go through the time and expense of a trial.  Although it should be noted that Weimer filed his habeas action in October of 2011 and did not receive a decision until November 30, 2012.

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