Opinion
No. 110848.
06-26-2015
STATE of Kansas, Appellee, v. Derrick GLOVER, Appellant.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.
Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ARNOLD–BURGER, J., and BURGESS, S.J.
Opinion
ARNOLD–BURGER, J.
Derrick Glover pled guilty to four criminal charges involving a robbery of a jewelry store. This appeal concerns only the sentence imposed on his conviction of criminal damage to property. On appeal, Glover contends that the trial court lacked jurisdiction to convict him of a severity level 7 felony for criminal damage to property because the State's charging document failed to allege the required statutory damage amount for the severity level 7 felony charge. The State concedes in its brief that its complaint failed to allege the required statutory damage amount for the severity level 7 felony charge. Because we find that the error in the charging document did not prejudice Glover's preparation of a defense, impair his ability to plead the conviction in any subsequent prosecution, or limit his substantial rights to a fair trial, we affirm his conviction and sentence for a severity level 7 felony for criminal damage to property.
Factual and Procedural History
The underlying facts in this case are undisputed. Glover and two other men drove a stolen automobile through the front of a jewelry store located in downtown Hutchinson, Kansas. Video surveillance cameras caught them stealing jewelry before they escaped. Glover confessed to his involvement in the crime.
A formal complaint was filed against Glover for a burglary, a severity level 9 felony for criminal damage to property, and a misdemeanor theft. The severity level 9 felony for criminal damage to property charge alleged the following:
“That on or about the 12th day of January, 2013, in Reno County, Kansas, one Derrick D. Glover then and there being present did unlawfully, feloniously, knowingly, by means other than fire or explosive, damage property, to wit: building and windows, in which another has an interest, to wit: Westphal Jewelers; without the consent of such other person; and damage being more than $1,000.00.”
At the preliminary hearing, testimony established that the jewelry store building itself sustained damage of approximately $54,000. The State moved to orally amend the criminal damage to property charge from a severity level 9 felony to a severity level 7 felony based on the increased damage value. In addition, the State moved to add an additional felony charge of conspiracy. At some point, the State also amended the misdemeanor theft to a severity level 7 felony theft.
The State subsequently filed an amended complaint against Glover. It increased, as previously noted, the severity level 9 felony for criminal damage to property charge to a severity level 7 felony for criminal damage to property charge. The amended complaint specifically alleged a “SEVERITY LEVEL 7, Nonperson Felony,” cited the correct statutory provision for criminal damage to property, but did not change the previously stated amount of damage to $25,000 or above, consistent with severity level 7 felony for criminal damage to property. Instead it left the “damage being more than $1,000.00” amount in the complaint.
Glover subsequently entered a plea of guilty to all four charges. He was sentenced to the standard sentence for each charge to be served consecutively, with a controlling sentence of 54 months in prison. Glover filed a timely appeal.
Analysis
Glover challenges only his 12–month sentence for the severity level 7 criminal damage to property charge. Glover contends, for the first time on appeal, that the amended complaint was not factually sufficient to state an offense of a severity level 7 felony criminal damage to property charge because the amended complaint failed to allege an essential element of the offense: damage being $25,000 or more. Had he been sentenced to a severity level 9 offense, his sentence would have been 6 months instead of 12 months. See K.S.A.2014 Supp. 21–6804. This would have reduced his controlling sentence from 54 months to 51 months.
The State concedes that the amended complaint for the severity level 7 criminal damage to property felony charge incorrectly alleged “damage being more than $1,000.00.” The State further concedes that the amended complaint should have alleged the required statutory damage amount as follows: damage being “$25,000.00 or more.” But the State argues that Glover was on notice of the charge at all times and was not prejudiced by the error.
In this case, Glover did not challenge the adequacy of the charging document in charging a severity level 7 offense, nor did he challenge the severity level of the criminal damage charge during the plea hearing or at sentencing. Instead, he raises this issue for the first time on appeal. Generally, this court does not consider issues raised for the first time on appeal except in certain limited circumstances. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). But there are no such limits to raising jurisdictional challenges for the first time on appeal. See State v. Williams, 299 Kan. 509, 532, 324 P.3d 1078 (2014) (noting subject matter jurisdiction may be raised at any time). Whether a charging document was sufficient to confer subject matter jurisdiction to convict a defendant of a particular charge is a question of law over which the court has unlimited review. 299 Kan. at 532, 324 P.3d 1078.
Much confusion has reigned over the years to the adequacy of charging document to convey jurisdiction and defining the standard to determine when a complaint or information fails to adequately set forth the crime sufficient to convict the defendant. Prior to 1990, the Kansas Supreme Court strictly construed charging documents by requiring all essential elements be included in each count, based on the language of the statute; failure to do so required reversal of the conviction, even if the defendant never challenged the charge before the trial court. See State v. Browning, 245 Kan. 26, 28, 774 P.2d 935 (1989) (failure of the information to include maliciously, in addition to “ ‘unlawfully, willfully: deliberately and with premeditation’ “ rendered first-degree murder charge invalid); State v. Wilson, 240 Kan. 606, 607, 731 P.2d 306 (1987) (failure to state that a killing was done “maliciously, deliberately, and with premeditation” insufficient to confer jurisdiction for the court to convict of first-degree murder).
But in State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003), the Kansas Supreme Court took a step toward moderating the harsh result of its stringent interpretation standard with respect to complaints challenged for the first time on appeal. In such cases, the Supreme Court held that it would instead liberally construe charging documents if the defendant failed to challenge them prior to trial or in a timely motion to arrest judgment. Hall, 246 Kan. at 753–56, 793 P.2d 737. In taking this step, the Supreme Court noted that both the United States and Kansas Constitutions extend the accused the “right ‘to be informed of the nature and cause of the accusation.’ [Citation omitted.]” 246 Kan. at 753, 793 P.2d 737. The court found that these protections were implemented by K.S.A. 22–3201. Citing various federal authorities, the court noted that “[t]he test for sufficiency ought to be whether it is fair to require the defendant to defend on the basis of the charge” stated and that the requirement that “every essential element should be alleged” should be read “in the light of the fairness test just mentioned. ” (Emphasis added.) 246 Kan. at 754, 793 P.2d 737. Thus, the court concluded that “[c]ommon sense will be a better guide than arbitrary and artificial rules. The sufficiency of an information should be determined on the basis of practical rather than technical considerations when addressed for the first time on appeal. ” 246 Kan. at 754, 793 P.2d 737.
Accordingly, in Hall, the court adopted a common-sense rule for cases raising a defective complaint or information claim for the first time on direct appeal. To succeed, the defendant must show that the alleged defect either: (1) prejudiced the defendant's preparation of a defense; (2) impaired the defendant's ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant's substantial rights to a fair trial. 246 Kan. at 765, 793 P.2d 737 ; see State v. Tapia, 295 Kan. 978, 984–85, 287 P.3d 879 (2012). The Kansas Supreme Court recently reaffirmed this principle in State v. Carr, 300 Kan. 1, 186, 331 P.3d 544 (2014), cert. granted in part –––U.S. ––––, 135 S.Ct. 1698, ––– L.Ed.2d –––– (2015).
This standard is also consistent with federal constitutional principles set forth in United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). In Cotton, United States Supreme Court held that a federal indictment's failure to include the amount of illegal narcotics the defendant possessed for purposes of sentencing enhancements did not arise to the level requiring the enhanced sentences be vacated. Applying the plain error standard, an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. 535 U.S. at 631–32.
In this case, Glover was on notice that the criminal damage to property charge was a severity level 7 felony on several occasions before he entered his guilty plea:
• At the close of the preliminary hearing, the trial court openly held the State could amend the complaint/information to charge criminal damage to property as a severity level 7 offense because the property damage value clearly exceeded $25,000. In fact, the testimony was that the damage to the building was around $54,000.
• During his arraignment on the second amended complaint/information, the court informed Glover that the criminal damage to property charge was a severity “level seven with the ... range of sentencing [of] 11 to 34 months.” Glover declined to have the court read him the complaint and entered a not guilty plea to that and the other charges.
• At the plea hearing when the court asked for the factual basis for the plea, the State advised that Glover and his codefendants “rammed the vehicle into the building, into the side of the building Westphal Jewelers causing damage in excess of $25,000.00 property damage to Westphal Jewelers and the building thereof.”
• At the plea hearing, before accepting Glover's guilty plea, the trial court asked Glover whether he had any questions about the fact that the possible penalty for criminal damage to property is “a severity level seven [felony] ... [t]hat carries a range of sentence of 11 to 34 months.” After an off-the-record conversation with his counsel, Glover told the court he did not have any questions.
Based upon the record, Glover does not establish—nor does he even allege—that he was unable to prepare a defense to the higher severity level charge or that he would be unable to raise a double jeopardy defense if additional charges were filed. Moreover, Glover does not assert that the error in the charging document denied him a fair trial. Under both Hall and Cotton, any claim that the charging document was defective fails to rise to the level of reversible error.
Instead, Glover argues that because the complaint stated facts equivalent to a severity level 9 offense (to wit: over $1,000 in damages), the court was required to sentence him to the lesser severity level 9 offense penalties. He relies on State v. Larson, 265 Kan. 160, 958 P.2d 1154 (1998), to support his argument. In Larson, the Kansas Supreme Court found that where the State did not allege the severity level of a driving under the influence charge in the complaint, the complaint was not void and the court did not lack jurisdiction over the complaint. But the court was required to sentence the defendant under the lowest crime severity level possible. 265 Kan. at 164, 958 P.2d 1154. But in Glover's case, the crime severity level was clearly stated. There was no effort to “ ‘up the ante’ “ as the court found impermissible in State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996), where the defendant was charged as a class B misdemeanor, but the State attempted to sentence him for a class A misdemeanor). See Larson, 265 Kan. at 163–64, 958 P.2d 1154. Larson and Masterson are clearly distinguishable. In addition, Larson and Masterson make it clear that Glover's claim does not imply a lack of jurisdiction, an argument that would provide him an avenue for appeal even though not raised before the trial court. Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) requires an appellant to explain why an issue that was not raised below should be considered for the first time on appeal. See State v. Breeden, 297 Kan. 567, 574, 304 P.3d 660 (2013) (declining to consider issue for this reason). Glover fails to do so here.
Affirmed.
GREEN, J., dissenting.
I respectfully dissent from the majority's holding that the defect in the charging document did not impair Glover's ability to plead his conviction in any subsequent prosecution.
What separates the majority and me is that I am unwilling to say that the defect in the State's charging document would not have impaired Glover's ability to plead his severity level 7 felony conviction of criminal damage to property in any subsequent prosecution. The majority seems to be saying to the trial court that the post-Hall rules excuse not only any jurisdictionally defective charging document, but also any defect in the charging document that would impair a defendant's ability to plead his or her conviction in any subsequent prosecution. Here, the defect in the charging document was sufficiently dubious to impair Glover's ability to plead his severity level 7 felony conviction of criminal damage to property in any subsequent prosecution.
Our Supreme Court has held that “[t]he validity of a charging instrument is to be tested by reading the document in its entirety, and the elements of the offense may be gleaned from the document as a whole.” State v. Gracey, 288 Kan. 252, 256, 200 P.3d 1275 (2009) (citing State v. McElroy, 281 Kan. 256, Syl. ¶ 3, 130 P.3d 100 [2006] ).
The State's amended complaint for Glover's severity level 7 felony count of criminal damage to property stated the following:
COUNT II
CRIMINAL DAMAGE TO PROPERTYK.S.A. 21–5813(a)(1)
SEVERITY LEVEL 7, Nonperson Felony
That on or about the 12th day of January, 2013, in Reno County, Kansas, one DERRICK D. GLOVER then and there being present did unlawfully, feloniously, knowingly, by means other than fire or explosive, damage property, to-wit: building and windows, in which another has an interest, to-wit: Westphal Jewelers; without the consent of such other person; and damage being more than $1,000.00.”
The State conceded in its brief that it incorrectly alleged “damage being more than $1,000.00” in its amended complaint for the severity level 7 felony count of criminal damage to property. The State further conceded that the amended complaint should have alleged the required statutory damage amount as follows: damage being “$25,000.00 or more.”
Glover contends that the amended complaint was not factually sufficient to state an offense of a severity level 7 felony criminal damage to property offense because the amended complaint failed to allege an essential element of the offense: damage being $25,000 or more. In State v. Carter, 35 Kan.App.2d 327, 332, 130 P.3d 135, rev. denied 282 Kan. 792 (2006), this court stated:
“Our appellate courts have consistently held that in order to support a conviction for the felony offense of criminal damage to property, there must be evidence of value. See, e.g., State v. Jones, 247 Kan. 537, 802 P.2d 533 (1990) ; State v. Smith, 215 Kan. 865, 528 P.2d 1195 (1974).”
This value requirement in the criminal damage to property statute allows the State to differentiate in the degree of felonies that can be charged for this offense. The higher amount of damage allows an increased penalty. See K.S.A.2012 Supp. 21–5813(b).
For example, K.S.A.2014 Supp. 21–5813 provides in pertinent part:
“(a) Criminal damage to property is by means other than by fire or explosive:
(1) Knowingly damaging, destroying, defacing or substantially impairing the use of any property in which another has an interest without the consent of such other person.
....
“(b) Criminal damage to property if the property:
(1) Is damaged to the extent of $25,000 or more is a severity level 7, nonperson felony;
(2) is damaged to extent of at least $1,000 but less than $25,000 is a severity level 9, nonperson felony; and
(3) damaged is of the value of less than $1,000 or is of the value of $1,000 or more and is damaged to the extent of less than $1,000 is a class B nonperson misdemeanor.”
Defective Complaint
A criminal complaint is a jurisdictional instrument on which a defendant stands trial. It gives the trial court the authority to convict the defendant of the crime set forth in the charging document. State v. Ramirez, 299 Kan. 224, 227, 328 P.3d 1075 (2014). In most cases, when a complaint fails to list an essential element of the crime charged, it is “fatally defective, and the trial court lacks jurisdiction to convict the defendant of the alleged offense.” State v. Moody, 282 Kan. 181, 197, 144 P.3d 612 (2006). Moreover, the trial court's power to convict a defendant of the crime set forth in the charging document is known as subject matter jurisdiction. Subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on an appellate court's own motion. State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010).
Glover challenges the State's charging document for the first time on appeal. In State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003), the court adopted a common-sense rule for issues raised for the first time on direct appeal. State v. McElroy, 281 Kan. 256, 261–62, 130 P.3d 100 (2006). The complaint or information is construed liberally in favor of validity and the record is reviewed as a whole. Gracey, 288 Kan. at 256, 200 P.3d 1275. The sufficiency of the charging document will be determined on practical considerations. State v. Waterberry, 248 Kan. 169, 171, 804 P.2d 1000 (1991). To succeed, the defendant must show that the alleged defect either: (1) prejudiced the defendant's preparation of a defense; (2) impaired the defendant's ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant's substantial rights to a fair trial. State v. Littlejohn, 298 Kan. 632, 655, 316 P.3d 136 (2014).
Although the amended complaint contained the statutory reference “K.S.A. 21–5813(a)(1) ” on the face of the amended complaint, Glover was not protected against any subsequent prosecution because the damage amount set out in the amended complaint was not in compliance with the required statutory damage amount for any criminal damage to property felonies under K.S.A.2014 Supp. 21–5813(b). For example, the amended complaint simply alleged that the amount of damage was “more than $1,000.” This defect in the damage amount alleged in the amended complaint was so defective that it does not, by any reasonable construction, set forth any identifiable offense under K.S.A.2014 Supp. 21–5813(b).
Indeed, there is no felony criminal damage to property offense with a statutory damage amount of “more than $1,000.” For instance, the required damage value for a level 9 felony under K.S.A.2014 Supp. 21–5813(b)(2) is the following: “at least $1,000 but less than $25,000.” Moreover, the required damage value for a severity level 7 felony under K.S.A.2014 Supp. 21–5813(b)(l) is as follows: “$25,000 or more.” Because the State neglected to allege in its amended complaint the correct statutory damage amount of $25,000 or more, the State failed to reasonably allege the essential element of value or amount of damage specific enough to protect Glover against any subsequent prosecution.
Moreover, unlike State v. Crichton, 13 Kan.App.2d 213, 215–16, 766 P.2d 832 (1988), rev. denied 244 Kan. 739 (1989), the amended criminal damage to property complaint was absent of any other language that would have indicated that the damage amount was $25,000 or more. Although the information in Crichton dealt with whether the information was sufficient to charge a felony theft of gasoline, one may draw guidance from this decision because criminal damage to property is an offense analogous to theft for which the authorized sentence is based on the value of the thing taken. For theft and criminal damage to property, the value of the thing taken or the amount of damage caused determines the grade of the offense.
In Crichton, the information charged Crichton with theft of 8,434 gallons of regular gasoline, a class E felony. To constitute a class E felony, the value of the property taken had to be $150 or more. Nevertheless, the information failed to allege that the value of the gasoline taken exceeded $150. As a result, Crichton contended that the information was fatally defective because it failed to allege that the value of the gasoline taken exceeded $150. The Crichton court, however, held that the information sufficiently charged the element of value because the information had alleged that 8,434 gallons of regular gasoline had been taken. Moreover, the Crichton court reasoned that at $.018 per gallon, this amount of gasoline would have exceeded $150. 13 Kan.App.2d at 215–16, 766 P.2d 832. Here, the amended complaint was void of any language that would have indicated that the damage to the building and windows would have been $25,000 or more.
As a result, the amended complaint was defective because it did not correctly allege the statutory value or amount of damage required for a severity level 7 felony charge of criminal damage to property. Moreover, the value or amount of damage alleged was essential in determining the severity level of the offense. Thus, to obtain the higher penalty under K.S.A.2014 Supp. 21–5813(b)(l), the State was required to allege a damage amount of “$25,000 or more” as an essential element of the severity level 7 felony count of criminal damage to property. The absence of an allegation that the amount of damage to the building and windows was $25,000 or more prevents the amended complaint from identifying the proper category of felony offense charged and the applicable punishment for that charge. Because the amended complaint failed to allege the required statutory damage amount as an essential element of a severity level 7 felony charge of criminal damage to property, the amended complaint was jurisdictionally defective.
In summary, the State's amended complaint alleged a nonexistent statutory damage amount of “more than $1,000” for the severity level 7 felony count of criminal damage to property. Because the essential statutory damage amount of $25,000 or more was absent from the State's amended complaint, Glover's severity level 7 felony conviction of criminal damage to property would have no conclusive effect on any subsequent prosecution, especially if the later prosecution was based on a different damage amount than what the State alleged under its defective amended complaint. Moreover, because the State alleged a nonexistent statutory damage amount of “more than $1,000” in its amended complaint, it would be very unlikely that the State would ever allege a like sum in any subsequent prosecution. Thus, this defect, alleging a nonexistent statutory damage amount in the amended complaint, would be sufficiently dubious to impair Glover's ability to plead his severity level 7 felony conviction of criminal damage to property in any subsequent prosecution.
Finally, the trial court lacked subject matter jurisdiction over the crime charged as a result of the defect in the charging document. Here, the trial court lacked subject matter jurisdiction because the amended complaint lacked an essential element of the crime charged: the correct statutory amount of damages. The trial court's lack of subject matter jurisdiction over the crime charged would impair Glover's ability to plead his conviction in any subsequent prosecution where the trial court has subject matter jurisdiction over the crime charged. As a result, Glover's conviction would have no conclusive effect on any subsequent prosecution where the trial court has subject matter jurisdiction over the crime charged, thus impairing Glover's ability to plead his conviction in any subsequent prosecution.
I would reverse Glover's criminal damage to property conviction, vacate his sentence, and remand to the trial court for further proceedings.