Friday, November 22, 2013

Can McAdam help with the ACCA?

The Armed Career Criminal Act (ACCA), or 18 U.S.C. § 924(e), sets a fifteen-year mandatory minimum penalty for certain federal firearm defendants who have three previous convictions for a “violent felony or a serious drug offense.”  Thus, the definition of "serious drug offense" can be seriously important to a federal defendant's sentence.

Under 18 U.S.C. § 924(e)(2)(A)(ii), the term “serious drug offense” is defined in relevant part as "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law.”  (Emphasis added).

In order to determine whether a prior conviction constitutes a “serious drug offense,” the Supreme Court in McNeill v. United States, 131 S. Ct. 2218, 180 L. Ed. 2d 35 (2011) explained that "[t]he plain text of ACCA requires a federal sentencing court to consult the maximum sentence applicable to a defendant's previous drug offense at the time of his conviction for that offense."  Under this holding, if an applicable prior drug conviction was punishable by ten years or more at the time of the offense, then it would count as a "serious drug offense" and help trigger the ACCA. 


 So how does State v. McAdam fit into all of this?

If you remember State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), you probably see where I'm going with this.  In McAdam, the KSC held that the Kansas severity level 1 drug offense of manufacturing methamphetamine (K.S.A. 65-4159[a] [repealed]) was identical to the severity level 3 drug offense of compounding methamphetamine (K.S.A. 65-4161[a] [repealed]).  277 Kan. at 146-47.  Thus, under the identical offense doctrine, the court held: "we agree with McAdam's contention that 65–4161(a) and 65–4159(a) are identical and thus he can be sentenced only under the lesser penalty provision of 65–4161(a)."  This overlapping language in the statutes was modified by the legislature on May 20, 2004.  See K.S.A. 2005 Supp. 65-4161(a) (removing the word "compounding").

The McAdam holding effectively required any Kansas state manufacturing methamphetamine conviction, committed pre-May 20, 2004, to be sentenced as a Kansas severity level 3 drug offense.  And as the KSC later clarified, the "McAdam rule" was not some new constitutional rule that retroactively applied, but rather it was a sentencing rule that pre-May 20, 2004 drug offenders should have received if the law was applied correctly at the time of their sentencing.  See Bryant v. State, 280 Kan. 2, 10, 118 P.3d 685 (2005).

Application to Federal Sentencing

Looking back at the ACCA and federal sentencing, if a federal defendant is facing application of the fifteen-year mandatory minimum in 18 U.S.C. § 924(e) based on a prior Kansas conviction for manufacturing methamphetamine, you should look at the date of the prior offense.  If it was before May 20, 2004, under the correct Kansas law at the time, the manufacturing offense should have been sentenced as a Kansas severity level 3 drug offense.  And of course, the sentencing range for a Kansas severity level 3 drug offense at that time was far short of the ten-year maximum sentence needed to qualify as "serious drug offense" under 18 U.S.C. § 924(e)(2)(A)(ii).  In contrast, any Kansas severity level 1 drug offense at the time would carry a sentence of at least 10 years imprisonment.

The same type of argument can be made for prior convictions for possession of certain precursors with the intent to manufacture.  See State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005) (holding that the conduct prohibited by K.S.A. 65–7006[a], possessing ephedrine or pseudoephedrine with intent to use the product to manufacture a controlled substance, was identical with the conduct prohibitedby K.S.A. 65–4152[a][3], knowingly possessing drug paraphernalia with intent to use it to manufacture a controlled substance).  See also State v. Snellings, 294 Kan. 149, 273 P.3d 739 (2012) (under identical offense sentencing doctrine, the elements of possession of ephedrine or pseudoephedrine with intent to manufacture a controlled substance, a severity level 2 drug felony, are identical to the elements of possession of drug paraphernalia with intent to manufacture a controlled substance, a severity level 4 drug felony).  Thus, under Campbell and Snellings, the identical offense doctrine mandated these severity level 2 drug offenses to be sentenced as severity level 4 drug offenses.  This could help with the ACCA or even with whether a prior drug conviction was "a crime punishable by imprisonment for a term exceeding one year."

So basically, if you get an ACCA case with a prior Kansas state drug offense for any type of manufacturing crime prior to the 2011 recodification, you probably need to look to see if the identical offense doctrine applied to the conviction at the time of the offense.  Even if the doctrine was not applied to the client's case, it is possible that it should have been.  And if the client should have been sentenced under the identical offense doctrine of McAdam or Campbell or Snellings, their offense would not have carried a maximum sentence of ten years.  Thus the prior offense would not qualify as a "serious drug offense" under 18 U.S.C. § 924(e)(2)(A)(ii), and it cannot trigger the fifteen-year mandatory minimum in the ACCA.

Monday, November 11, 2013

A veteran's quest for veterans courts in Kansas

Happy Veterans Day!  Sixty years ago today, Veterans Day was first celebrated in Emporia, Kansas.  At that time, the national holiday was known as Armistice Day, to commemorate the end of World War I.  But the folks in Emporia, particularly shoe cobbler Alvin King, believed that we needed a national holiday to commemorate veterans of all wars, not just those of World War I.  Thus, on November 11, 1953, Emporia celebrated the first Veterans Day.  The national holiday would become official the very next year, after a bill was introduced by Congressman Ed Rees, a native of Emporia, and eventually signed into law by President Dwight D. Eisenhower, another Kansan.  In 2003, Congress passed a resolution recognizing Emporia, Kansas as the founding city of Veterans Day.

Today, Emporia is home to another Kansan wanting to help veterans of foreign wars.  Brandon Flint, a veteran of two tours in Iraq with the U.S. Army, is hoping to bring a veterans court to Emporia.  Notably, twenty-seven different states have a veterans court in at least one jurisdiction.  But Kansas is not one of them.

Mr. Flint's motivation for bringing veterans courts to Kansas stems from his own treatment by the justice system.  Mr. Flint was prosecuted for a felony in Emporia for defending his fiancée from two men.  Despite being located in the founding city of Veterans Day, Mr. Flint believed that the justice system in Emporia operated without regard to the training and issues that he dealt with as a veteran of a foreign war.  Mr. Flint wants his experience to aid other veterans that might face similar circumstances.  And that means he wants to bring veterans courts to Kansas, so other veterans are treated by a justice system that appreciates the special circumstances and treatment requirements for veterans of foreign wars.

The Conviction

In 2008, Brandon Flint was convicted by a Lyon County jury of aggravated assault with a deadly weapon.  The conviction stemmed from Mr. Flint's use of his firearm to defend his fiancée.  The evidence at trial showed that Mr. Flint and his fiancée were leaving an Emporia bar at the same time as two men whom had given them trouble inside the bar.  As they were all leaving the bar, the other men got into an altercation with Mr. Flint's fiancée.  At one point, Mr. Flint's fiancée was on the ground with the two men standing over her, struggling with her.  Mr. Flint immediately went to his car, grabbed his firearm, walked up to the men, and ordered them to get off of his fiancée.  The men quickly complied, but Mr. Flint was later arrested, prosecuted, and convicted of aggravated assault with a deadly weapon.   

Mr. Flint's case presented a clear example of the affirmative defense of "defense of another."  But at his trial, the prosecutor objected to the jury receiving an instruction on this defense, arguing that Mr. Flint used excessive force.  The court agreed and refused to instruct the jury on this defense.  So the jury never got to decide whether Mr. Flint was legally allowed to defend his fiancée, even though that was his entire theory of defense.  Mr. Flint appealed his conviction to the Kansas Court of Appeals.  While the appeal was pending, Mr. Flint was labeled a felon, he had to report to a probation officer for two years, and he had to register as a violent offender under the Kansas Offender Registration Act. 

The Appeal

Brandon Flint appealed his case to the Kansas Court of Appeals, asking for a new trial.  Specifically, he wanted a jury to decide if he was lawfully defending his fiancée when he pointed a gun at the men who had her on the ground.  Even though the case seemed a clear example of defense of another, the COA initially denied his claim, stating that it was controlled by the then-recent opinion in State v. Hendrix, 289 Kan. 859 (2009) (holding that a defendant must use "actual force" to justify a jury instruction on self-defense).  Under the logic of the Hendrix case, if Mr. Flint had shot the men, the jury likely would have received the defense-of-another instruction.  But because he handled the situation without the "use of force," as the term was used in K.S.A. 21–3211, he was not entitled to the defense-of-another instruction.  In the initial opinion from the COA, then Chief Judge Richard Greene wrote separately as follows:
I agree that the outcome here is controlled by State v. Hendrix, 289 Kan. 859, 218 P.3d 40 (2009), but I write separately to note that the factual scenario in this case is very much like the hypothetical scenario depicted by Chief Justice Davis' dissent in Hendrix. The fact that Flint has been deprived of self-defense here demonstrates the wisdom of the Chief Justice Davis' dissent and the urgent need for a legislative fix of K.S.A. 21–3211.

The Legislative Effort

A few days after Mr. Flint initially lost in the COA, the Kansas Legislature held hearings on a bill to fix the use-of-force statute interpreted by the Hendrix decision (2010 H.B. 2432).  The Hendrix opinion was based on the language of the applicable statute, so the Legislature intended to act fast to correct the statute.  Mr. Flint (and myself - as his attorney) went to the Legislature to testify regarding the bill.  We both testified about his case and specifically requested that any "Hendrix fix" be applied retroactively to his case (Randall Hodgkinson also provided similar testimony).

Mr. Flint testified in part as follows:
I'm now a felon because I protected the mother of my child from Mr. Mitchell.  I don't know what would have happened if I hadn't pulled a gun on Mr. Mitchell, but I know that Nicole made it away safely because I did.

About eight years ago, there was a football player, in Emporia, beat to death; three men were charged.  If he had done the same thing I did, he would be alive, but would be a felon like me.  He would have to register every four months as an offender, his driver's license would say "Registered Offender", the same words that appear on the licenses of registered pedophiles and rapists.  He would also have to attend community classes, have psychological evaluations done and attend a variety of meetings.

At my trial, my entire defense was built around "defense of another."  However, the judge threw out the instructions to the jury and I was convicted, because I "stuck by my guns," so to speak, and stated that I believed I had done the right thing.

I served two separate tours in Iraq with the United States Army.  I hauled jet fuel and was shot at with everything from AK-47's to RPG's and rockets.  Roadside bombs hit our convoys constantly.  I went through all of that to help keep our great nation safe, only to find that the same great nation I protected does not allow me to protect myself or my loved ones. 

On Friday, the Court of Appeals affirmed my conviction.  I was told by Mr. Folsom that these proceedings today have a direct bearing on my case.  I hope that a favorable decision will be made and will allow my case to be grandfathered, as it applies here into the laws you are about to change.  Thank you for your time.
After hearing this testimony, the Legislature added retroactive language to the "Hendrix fix" legislation.  The bill passed overwhelmingly.  In other words, the Legislature wanted this new law to apply to Mr. Flint.  And eventually, it did.

The Appeal Ends

At the time the new statute went into effect, Mr. Flint had asked the Kansas Supreme Court to review his case.  The KSC granted his petition for review and remanded the case back to the COA for consideration under the new retroactive self-defense statute (which had corrected the result in the Hendrix case).  On November 10, 2011, the day before Veterans Day, 2011, the COA reversed Mr. Flint's conviction.  At that point, he had been registering as a violent offender for three years.

After the COA's decision, the State filed a petition for review to the KSC, even though the Legislature had listened to Mr. Flint's testimony and agreed that the new statute should have an effect on his case.  In February of 2013, the KSC denied the State's petition for review, and the case was finally remanded to Lyon County District Court for a new trial.  Based on this reversal, the KBI was notified of the reversal and informed of its duty to take Mr. Flint off the offender registry. 

The Retrial

When the case went back to Lyon County, the prosecution decided to forge ahead.  They retried Mr. Flint in an effort to secure the same felony conviction for aggravated assault with a deadly weapon.  Someone in the prosecutor's office even told the KBI to put Mr. Flint back up on the offender registry because the case wasn't over yet (of course, the conviction had been reversed, but the KBI decided to err on the side of caution and put Mr. Flint's picture back on their website as a "non-compliant violent offender"). 

The new jury trial was held in July.  This time, the court ruled that the defense-of-another instruction had to be given in the case.  And of course, the jury found Mr. Flint not guilty.  Rick Meier won the acquittal for Mr. Flint. 

Veterans Court

After five years of trials, appeals, felon status, and offender registration, Mr. Flint finally has been vindicated.  But that is not enough for him.  He is now trying to help establish a veterans court in Kansas (preferably in Emporia).  In his mind, the system that treated him harshly for following his training should not be the status quo.  Instead, there should be a system that recognizes and attempts to address the particularized needs and treatment requirements of veterans. 

Courts in Kansas already have started to enact drug courts in an effort to address the special needs of drug offenders.  Veterans are similarly a unique class of individuals, with special needs, that many believe should be addressed in the criminal justice system.  Brandon Flint, after living it first hand, is one of those people.  And he is hoping that his case can once again spur legislative change.  

Friday, November 08, 2013

How to challenge prior convictions in a DUI case

Michael Holland, II won in State v. Key, No. 104651 (Kan. Nov. 8, 2013), reversing the COA's dismissal of Key's sentencing appeal in an Ellis County felony DUI case.  The appeal will be "remanded to the Court of Appeals for consideration of the merits of Key's claim that he should have been sentenced for misdemeanor DUI rather than felony DUI."  But the case provided sua sponte insight on the best practice in preserving challenges to prior convictions in DUI cases.

In the opinion, the KSC explained that a defendant can plead guilty or no contest to a DUI charge and still pursue a challenge to the prior convictions at sentencing (and on appeal).  But the better practice in order to challenge the classification of the offense as a felony is to do a bench trial on stipulated facts.  On this issue, the court explained as follows:
A defendant who intends to challenge the validity of a prior misdemeanor DUI as a classifying factor for a DUI felony charge under K.S.A. 8-1567 should challenge the prior misdemeanor at preliminary hearing, consistent with the holding of Seems, 277 Kan. at 305-06, or through a timely motion to dismiss.  See State v. Crank, 262 Kan. 449, 458, 939 P.2d 890 (1997) (challenge to prior conviction relied on by State to increase severity level properly raised at preliminary hearing); State v. Floyd, 218 Kan. 764, 765, 544 P.2d 1380 (1976) (same).  If those efforts are unsuccessful, in order to pursue the argument on classification on appeal —i.e., that the defendant could be convicted only of a misdemeanor and not a felony—the defendant generally must go to trial, even if that trial is conducted only to the bench on stipulated facts.

If the defendant instead enters a guilty or no contest plea and does not file an unsuccessful motion to withdraw it while before the district court, then the jurisdiction of an appellate court will be limited to a review of the sentencing pronounced in the current felony case.  Any challenge to inclusion of a prior misdemeanor in the defendant's criminal history for purposes of sentencing enhancement should be preserved for appeal by an objection on the record at sentencing.  A successful appellate challenge on that ground will not erase the prior conviction; only a successful motion under K.S.A. 60-1507 can do that.  But a successful appellate challenge can lead to vacation of the enhanced felony sentence and resentencing without consideration of the prior, invalid DUI misdemeanor conviction.
The moral of the story - object to prior convictions at the preliminary hearing, or otherwise prior to conviction (e.g., motion to dismiss), do a bench trial on stipulated facts, and then renew any argument at sentencing.  You can still plead guilty to the DUI and challenge the priors at sentencing (and argue for a misdemeanor sentence), but you may lose the ability to challenge the "classification" of the offense as a felony.

Friday, November 01, 2013

Pellet gun is not a "firearm" requiring presumptive prison sentence

Korey Kaul won in State v. Craddick, No. 108,335 (Kan. App. 2013) reversing the sentence in a Douglas County case for attempted aggravated assault.  Here is coverage of the case by the LJ World.  The court described the issue as follows:
Craddick pointed his Ruger Airhawk pellet rifle at his victims and threatened to shoot them if they did not put his dog on the ground. The district court found that Craddick had committed his crimes with a firearm, which triggered a presumptive prison sentence under K.S.A. 2011 Supp. 21-6804(h).  Craddick's pellet rifle was not a firearm under K.S.A. 2011 Supp. 21-5111(m) because rather than propelling projectiles by force of an explosion or combustion, it propels projectiles by force of air or gas.  The district court's erroneous firearm designation requires us to vacate Craddick's sentence and reverse and remand his case for resentencing.
The court relied on the new statutory definition of "firearm" under  K.S.A. 2011 Supp. 21-5111(m), which defines it as "any weapon designed or having the capacity to propel a projectile by force of an explosion or combustion."  This definition is inconsistent with previous case law, which held that "[a] firearm [has the] design or capacity to propel a projectile by force of an explosion, gas, or other combustion."  State v. Davis, 227 Kan. 174, 177, 605 P.2d 572 (1980).  This case law definition had led the KSC to hold that a pellet gun was a "firearm" for purposes of a special sentencing rule because the pellet gun was "capable of and was designed to 'propel a projectile by force of . . . gas . . . .'"  State v. Fowler, 238 Kan. 213, 217, 708 P.2d 539 (1985).  The holding in Craddick suggests that district courts should no longer find that air rifles or pellet guns require a presumptive prison sentence under K.S.A. 21-6804(h).

The case could have a significant impact in aggravated assault prosecutions, where a pellet gun is often used in the crime.  It will not affect the conviction, but it will keep the special sentencing rule in K.S.A. 21-6804(h) from making these severity level 7 crimes (which are presumptive probation for criminal history C and lower) from becoming presumptive prison offenses when an a pellet gun or bb gun was used.

[Update: the state did not file a PR and the mandate issued on December 5, 2013.]