Friday, March 30, 2018

Comparable out-of-state prior conviction must be identical or narrower than Kansas offense

Korey A. Kaul won in State v. Wetrich, No. 112,361 (Kan. March 9, 2018), obtaining a new sentencing hearing in a Johnson County kidnapping prosecution. The primary issue (in this case and several companion cases decided the same day), was the classification of a prior conviction as a person felony--in this particular case, a prior Missouri conviction for burglary. Classification of prior convictions as person or nonperson offenses can have a big impact on the presumptive sentencing range in a case. In Kansas, residential burglary (burglary of a dwelling) is a person felony; non-residential burglary (burglary of everything but a dwelling) is a nonperson felony.

In Wetrich, the district court held that the prior Missouri burglary conviction was "comparable" to Kansas' residential burglary because it involved burglary of an "inhabitable structure."

The Kansas Supreme Court reviewed its recent case law in Dickey (blogged about here), Dickey had involved classification of pre-Guidelines Kansas burglary convictions. But the KSC held that the same underlying law was applicable in Wetrich:

But in order to avoid the constitutional prohibition against enhancing a sentence through judicial fact-finding announced in Apprendi, Dickey held that the dwelling requirement must have been an element of the prior offense, rather than a fact found by the sentencing court in the current case. Because Dickey had a prior juvenile adjudication for burglary in 1992, when the definition of the offense did not include an element requiring the burglarized structure to be a dwelling, the prior offense had to be scored as a nonperson felony. Dickey also relied on the methodology employed by the Supreme Court in [Descamps v. United States, 570 U.S. 254 (2013)] to constitutionally construe a federal statute.

The KSC also noted that the United States Supreme Court had recently considered an Iowa state burglary conviction as it related to federal sentencing:

[Mathis v. United States, 136 S. Ct. 2243 (2016)] held that, because the elements of Iowa's burglary law were broader than those of generic burglary, Mathis' prior Iowa burglary convictions could not be used to enhance his sentence under the federal Armed Career Criminal Act (ACCA). In the process, Mathis opined that the strict elements focus was not only required by the language of the federal statute, but also because of "serious Sixth Amendment concerns" and fairness to defendants.

Although the KSC did not decide this case on constitutional grounds, it did so with this constitutional background. The KSC held that the use of the word "comparable" in the Kansas statute governing classification of out-of-state convictions was somewhat ambiguous and observed that the Kansas Legislature wanted to reduce disparate treatment of offenders in Kansas. Synthesizing these ideas in light of the constitutional background, the KSC held that the Missouri burglary statute was not identical or narrower that the Kansas offense of residential burglary:

The comparison reveals two elements that are broader in the Missouri statute: the specific intent required and the structure involved. The Kansas crime to which the Missouri conviction is being compared—burglary of a dwelling—requires that the entry into or remaining within be done with the specific intent to commit a felony, theft, or sexual battery therein. In contrast, the specific intent required for the Missouri second degree burglary is that the burglar's purpose is to commit any crime. Consequently, the mere existence of the Missouri conviction does not establish the mental state element of the Kansas reference offense because the Missouri mental state element is broader. The purpose for the unlawful entry in Missouri could have been to commit misdemeanor property damage which would not be a burglary in Kansas. 

And, of course, the critical element of the Kansas crime is that the structure involved must be a dwelling, defined as "a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence." In the Missouri crime, in contrast, the element of the charged crime was that Wetrich unlawfully entered or remained within an inhabitable structure, which is broadly defined to include, in addition to a structure where any person lives, such non-dwelling places as a business, government office, school, church, rollerskating rink, or bus station. Again, the breadth of the element in Missouri defeats comparability with the Kansas crime of burglary of a dwelling. And, as suggested above, we agree with Mathis' lesson on the distinction between elements and means; the modified categorical approach is not employed to discover which alternative means or facts were used in Missouri to establish the crime's inhabitable-structure element. Again, the Missouri prior conviction fails our comparability test.

Utilizing this statutory approach, the KSC held that the Missouri burglary was not "comparable" to Kansas' residential burglary and therefore ordered resentencing.

Cannot modify non-vacated sentences on remand

Patrick H. Dunn won in State v. Warren, No. 115,972 (Kan. March 9, 2018), obtaining a new sentencing hearing in a Wyandotte County murder prosecution. On direct appeal, the KSC reversed Mr. Warren's hard 50 sentence. On remand, the district court imposed a hard 25 sentence, but also increased two other sentences that had not been vacated in the direct appeal and ran those sentences consecutive to the hard 25 sentence, as opposed to concurrently, as originally ordered. The KSC reaffirmed and applied State v. Guder, 293 Kan. 763, 267 P.3d 751 (2012), holding that the Kansas Sentencing Guidelines act prohibits modification of guidelines sentences unless reversed. In the instant case, that meant that the district court could not increase the non-vacated sentences on remand:

We explicitly held in Guder that the KSGA statutory changes to sentencing abrogated the common law authority of district courts to modify any sentences that were not vacated on appeal. Applying that holding here requires that Warren's original 7 sentences for counts 2 and 3—each for 155 months and running concurrent to count 1— be reinstated.

The KSC also rejected the state's claim that, because the hard 50 sentence had been vacated, the district court could make it consecutive to the non-vacated sentences on remand:

To begin our analysis, we acknowledge that typically a district court has the discretion on whether to originally impose concurrent or consecutive sentences in multiple conviction cases. This rule is necessarily subject, however, to our holding that on remand only the vacated sentence can be changed. And to change Warren's sentence for the premeditated first-degree murder conviction from concurrent with—to consecutive to—the others would be an impermissible de facto modification of them.

Simply put, when Warren was first sentenced, because each count was to run concurrent, he was effectively serving each of his three sentences. Changing the life sentence from concurrent to consecutive on remand would make all of Warren's served time count toward only the premeditated first-degree murder sentence for the first 25 years, i.e., the sentences for the other crimes would not begin until completion of his hard 25. See K.S.A. 21-4720(b)(2) ("If sentences for off-grid and on-grid convictions are ordered to run consecutively, the offender shall not begin to serve the on-grid sentence until paroled from the off-grid sentence."). So the effect of this change constitutes an improper modification of the nonvacated second and third sentences.

So Mr. Warren's cases was returned to the district court with directions to reinstate the original concurrent guidelines sentences.

Saturday, March 17, 2018

April-May 2018 KSC Docket

Here are the criminal cases on the KSC docket for April 30-May 3, 2018. 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 at the appellate court website and archived (here) if you would like to watch any of these arguments.

April 30--Monday--a.m.

State v. Kurt Powell, No. 115,457 (Sedgwick)
Sentencing appeal (petition for review)
Corrine E. Gunning
[Affirmed; Biles; August 24, 2018]
  • Improper denial of downward durational departure (hard-25)
State v. Victor Brosseit, No. 114,753 (Franklin)
Direct appeal (petition for review); DUI
Kai Tate Mann
[Affirmed; per curiam; August 17, 2018]
  • Improper endorsement of late witness
State v. Loarn Fitzgerald, No. 112,492 (Cowley)
Direct appeal (petition for review); Agg criminal sodomy
Michelle A. Davis
  • Insufficient evidence of crime charged

May 1--Tuesday--a.m.

State v. Yamuna Rizal, No. 115,036 (Johnson)
Direct appeal (petition for review); Possession with intent to distribute
Jonathan L. Laurans
[Resent for argument on October 2018 KSC docket]
[Affirmed; Stegall; July 19, 2019]
  • Insufficient evidence of knowledge of substance

May 2--Wednesday--a.m.

State v. Seth Torres, No. 114,269 (Lyon)
Direct appeal (petition for review); Distribution
Randall L. Hodgkinson
[Affirmed; Luckert; July 6, 2018]
  • Fourth Amendment violation (improper search of vehicle incident to arrest)
  • Failure to prove venue for unlawful use of communication device
State v. Brandon Dannebohm, No. 116,981 (Barton)
State appeal (petition for review)
Donald E. Anderson, II
  • Does defendant have standing to challenge search of apartment
State v. Charles Glover, No. 116,446 (Douglas)
Direct appeal (petition for review); Driving without license
Elbridge Griffy, IV
[Reversed; Luckert; July 27, 2018]
[KSC reversed by SCOTUS April 6, 2020]
[Affirmed after remand; Luckert; June 12, 2020]
  • No reasonable suspicion for stop
State v. Lorenzo Pulliam, No. 113,493 (Wyandotte)
Direct appeal (petition for review); Second-degree murder
Corrine E. Gunning
[Affirmed; Beier; November 21, 2018]
  • Failure to instruct on imperfect defense manslaughter

May 3--Thursday--a.m.

State v. Anthony Anderson, No. 116,710 (Bourbon)
Direct appeal; First-degree felony murder/child abuse
Randall L. Hodgkinson
[Affirmed; Johnson; October 5, 2018]
  • Failure to give unanimity instruction
  • Improper admission of other bad acts evidence
  • Improper closing argument

Friday, March 02, 2018

Failure to take up unequivocal request for self-representation is structural error

Richard Ney won in State v. Bunyard, No. 112,645 (Kan. February 16, 2018), obtaining a new trial in a Sedgwick County aggravated battery and intimidation of a witness prosecution. At a Friday hearing before a scheduled Monday trial, Mr. Bunyard indicated that he wanted to represent himself. The district court refused to take up the matter, but told Mr. Bunyard to file a written motion. Mr. Bunyard did not file a written motion or otherwise object during the trial the next week.

The KSC reviewed its own cases governing attempts to invoke the right to self-representation and found that the district court denied that right in this case:

Bunyard filed multiple pro se motions during the pendency of his prosecution. Then—admittedly at the eleventh hour and only when prompted by what may have been intended as a rhetorical question by an all-but-fully-exasperated trial judge—Bunyard made more than one clear statement that he wished to proceed pro se. Despite this expressly "unequivocal" invocation of his right to self-representation, the district judge did not counsel Bunyard with a view toward ascertaining Bunyard's informed wishes. Rather, the judge put off addressing Bunyard's request, saying that he would not address it at all unless Bunyard filed a written motion. Bunyard had no practical way to file a written motion over the weekend, and the judge's demand for such a motion appeared to leave Bunyard . . . . without recourse on the issue. In this context, Bunyard's silence on Monday when other pro se motions were heard was understandable. He had been left with a firm impression that he would not be permitted to represent himself. His failure to reassert his right to do so in such circumstances and his allowance of counsel's representation during the trial did not amount to an implicit decision not to pursue self-representation.

Bunyard's pretrial requests to represent himself were not, as the State argues, "simply based on his desire to ensure that certain arguments were advanced on his behalf." The record certainly demonstrates that he believed he had information and argument not being explained on Friday by his counsel, and that prompted his interruption of the proceedings. But, at that point, the judge presented Bunyard with a choice: Either allow counsel to proceed without interference or represent yourself. Bunyard chose the latter. And his choice did not change after his consultation with counsel. Instead, he "unequivocally" repeated his choice on the record. At that point the law required that he be advised about the perils of proceeding pro se and then permitted to do so if he made a knowing and intelligent waiver of his right to counsel. Instead, the judge told Bunyard that the subject of self-representation would not be addressed on Friday and erected a writing requirement barrier that was virtually guaranteed to thwart Bunyard's express intention. The judge then ruled on the very motion on which Bunyard had tried to be heard, and he never took up the subject of self-representation again. Using the words of the Court of Appeals panel but reaching the opposite conclusion, we hold that regardless of whether there was a "deliberate undermining" of Bunyard's right to represent himself, there was certainly a "functional" undermining of that right. 

Because denial of the right to self-representation is structural error, the KSC reversed and remanded for a new trial.