Opinion
No. 111339.
06-05-2015
STATE of Kansas, Appellee, v. Clyde W. JOHNSON, Appellant.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P J., ARNOLD–BURGER, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
When they ran out of spring break money while visiting Wichita, siblings J.N. and K.N. decided to spend a few nights in an apartment shared by Clyde Johnson and his son. But their visit soured the second night when Johnson's son returned to the apartment where J.N. and K.N. had been placed to sleep off the effects of alcohol consumption. He was greeted by Johnson who was naked, covered in blood, and armed with a metal weapon. Johnson violently attempted to prevent his son from entering the apartment. A struggle and foot chase ensued. When police arrived, they discovered that both siblings were in the apartment and badly injured. J.N. subsequently died from his injuries. A jury convicted Johnson of attempted rape, second-degree murder, and multiple counts of aggravated battery all stemming from that night.
On direct appeal, Johnson raises three issues. First, he claims his counsel was ineffective for failing to present evidence of self-defense at trial, failing to adequately prepare for trial, and failure to communicate with Johnson. We find that the district court's legal conclusions that counsel was not ineffective was supported by substantial competent evidence. Accordingly, this claim of error fails.
Next, he argues that the prosecutor committed misconduct during closing argument. Johnson contends that by remarking that various counts against Johnson had been proven, by inflaming the jury against Johnson by pointing at him and calling him a murderer, and by asking the jury to consider how K.N.'s injuries would feel the prosecutor committed reversible error. Because we find that none of the alleged statements by the prosecutor when considered in context go outside the wide latitude afforded prosecutors, we find that this claim of error also fails.
And finally, Johnson asserts that his pre–1993 Kansas convictions were improperly classified as person felonies, increasing his criminal history score. Based upon our review of the elements of the prior convictions and this court's ruling in State v. Waggoner, 51 Kan.App.2d 144, Syl. ¶ 1, 343 P.3d 530 (2015), petition for rev. filed February 18, 2015, we find the court did not err in classifying Johnson's pre–1993 convictions as person felonies.
Factual and Procedural History
Although the issues in this appeal do not require an exhaustive recitation of the facts, a brief overview is helpful to provide context into Johnson's arguments.
In March 2011, K.N. and her older brother J.N. decided to spend their spring break in Wichita. When their money dried up and they needed somewhere to sleep, they decided to stay with two men that K.N. knew, namely Johnson and his son Cody. When they arrived at the apartment Johnson and Cody shared, they discovered a party well underway and decided to spend the night. The next evening, after the siblings spent their day “walk[ing] around downtown” and buying food for everyone at the apartment, a second party broke out. The partiers—including the siblings, Cody, Johnson, neighbor Kylie Morris, and a few others—passed around two bottles of liquor and eventually ended up in Morris' apartment.
At some point during the night, at least one of the siblings vomited in the apartment Johnson and Cody shared. Cody and Johnson laid both siblings down to rest. Although witness accounts differed somewhat due mostly to alcohol consumption, Morris later testified that at some point after the siblings laid down, she returned to Cody and Johnson's apartment and discovered Johnson there with his shirt off and belt undone. Johnson told Morris that he intended to “get some” from K.N., and Morris proceeded back to her apartment with the remaining partiers. A short time later, however, Cody decided to head back downstairs to his apartment to check on Johnson and K.N., but when he came downstairs, he discovered that Johnson had locked the apartment door.
A struggle to enter the apartment ensued, and when Johnson finally opened the door, Cody observed that Johnson was naked and covered in blood and that J.N. lay on the floor in a pool of blood. Johnson shut the door on Cody's hand, but once Cody tugged his fingers free, he began banging on neighbors' doors and shouting at them to call the police. Eventually, Cody reentered the apartment and discovered that Johnson held what Cody called a “bolt”—“a three-foot long metal rod with a large nut at the end of it ... wrapped in silver duct tape” or tinfoil. Although Cody later struggled to remember the events of that night, he recalled chasing Johnson out of the apartment and pursuing him down the street until the police caught them both. At various points, Cody and another young man named James Hatcher struggled with Johnson. Hatcher specifically recalled Johnson punching him “right between the eyes” and hitting him over the head with the bolt.
Police eventually arrived at Cody and Johnson's apartment and discovered both K.N. and J.N. there. K.N. lay on the bed in fetal position with her dress pushed up and no underwear on. The bed had blood on it, and K.N. had blood around her face and head, matting her hair. J.N. laid on the floor with a sleeping bag over “the lower half of his body” and a pool of blood behind his head. Both were unresponsive, and J.N. had an injury on the back of his head significant enough that “he had lost control of his bowel and bladder.”
A subsequent medical examination revealed that K.N. had injuries all over her body. She also had injuries to her genitalia consistent with multiple instances of blunt force trauma. Although Johnson's DNA was not found on any of the swabs taken from K.N.'s genitalia, his saliva was found on a bite mark bruise on her thigh.
J.N. suffered significant blunt force injuries to his head, which resulted in his death. He also had other abrasions and lacerations across the rest of his body. J.N.'s injuries were consistent with the bolt. DNA from both siblings was discovered on the bolt.
In connection with these events, the State charged Johnson with the rape of K.N. and aggravated battery against J.N., Cody, and Hatcher. After J.N.'s death, the State amended the charge of aggravated battery against J.N. to one of second-degree murder. Later, the State also added a charge of aggravated battery against K.N. On September 28, 2012, a jury convicted Johnson of the lesser-included crime of attempted rape against K.N., the second-degree murder of J.N., and aggravated battery against K.N., Cody, and Hatcher.
In March 2013 and before sentencing, Johnson filed a pro se motion to dismiss his trial counsel. In his motion, Johnson alleged that his court-appointed counsel, Casey Cotton, failed to reply to his correspondence, keep him apprised of upcoming hearing dates, consult with him about the proceedings, and provide him with a full list of the evidence against him. At a hearing, and over Johnson's objection, the district court construed the motion as one for new trial based on ineffective assistance of counsel. As such, the district court removed Cotton as Johnson's attorney and appointed a different attorney in his place and set a future hearing date.
A few months later, in May 2013, still before sentencing, Johnson filed a second pro se motion, this time explicitly moving for a new trial based on Cotton's alleged ineffectiveness. Johnson highlighted eight specific grounds of ineffectiveness: (1) failure to adequately prepare for trial; (2) failure to adequately investigate factual issues concerning the charge of aggravated battery against Cody; (3) failure to object to evidence regarding the DNA from saliva found on K.N.'s thigh; (4) failure to hire an expert witness to testify about J.N.'s injuries; (5) failure to obtain testing of biological evidence on Johnson's jeans; (6) failure to object to prosecutorial misconduct; (7) failure to elicit testimony about “the violent nature of [J.N.'s] mood” on the night in question; (8) failure to pursue a theory of self-defense at trial. In August of the same year, Johnson filed yet another motion regarding trial counsel's ineffectiveness but essentially repeated the same allegations as in the first motion.
The district court held an evidentiary hearing that same month. Both Johnson and Cotton testified. The testimony can be summarized as follows.
Johnson claims Cotton did not adequately prepare for trial or communicate with him.
Johnson began by discussing the events leading up to Cotton's appointment and his first meeting with Cotton. Johnson testified that he and Cotton “had a little disagreement” about what documents Johnson was entitled to during the first meeting. Johnson further stated that, after the initial meeting, he did not have any personal contact with Cotton for approximately 6 months. Instead, Cotton sent him one letter during that time period. Johnson testified that he saw Cotton twice in September 2013 and that his total contact with Cotton between his appointment in March and a motion hearing in September 2013 lasted about 90 minutes. Johnson estimated that, in the time between the motion hearing and jury trial, Cotton visited twice more for a total of about 90 more minutes. Johnson also testified that Cotton visited him at least once and possibly twice during the trial itself. During those visits he and Cotton prepared for Johnson's testimony the next day, although Johnson never actually testified. Johnson admitted that although he recorded the dates of Cotton's visits, he failed to record how long Cotton spent with him and based his estimates on memory alone. However, jail records the State provided to Johnson indicated that Cotton's visits lasted longer than Johnson's estimated 30 to 40 minutes, with one lasting over 2 hours. Johnson claimed that the discrepancies between his memory and the jail record occurred because there was a delay between Cotton arriving at the jail and Johnson being brought in to join him. He also claimed that Cotton only provided him with copies of the pretrial motions after the hearing on those motions. Johnson testified that he believed he could have developed a more thorough defense had he and Cotton spent more time together.
Cotton reviewed the topics that he and Johnson discussed at their first meeting, including the reason Johnson's previous attorney withdrew, the charges against Johnson, and some of the issues underlying the case, including the amount of alcohol consumed by everyone involved. Cotton indicated that he specifically discussed the possibility of Johnson raising either a self-defense or an intoxication defense. Cotton acknowledged that he knew from the start that Johnson wanted to pursue a defense of self-defense and that the other defense Cotton had considered, voluntary intoxication, “didn't pan out” because Johnson admitted “that he knew what he was doing” on the night in question. Cotton also provided a detailed history of his nearly 20 years of law practice. He testified that his office handled approximately 150 to 200 court-appointed criminal defense cases a year. Cotton himself estimated that he had tried 75 or 80 jury trials in his time as an attorney and that about 10 of those trials were homicides.
Cotton testified that he felt prepared for trial and that he believed Johnson understood their defense strategy. Cotton testified about the steps he took to prepare for Johnson's trial, including reviewing discovery (such as interview transcripts and police reports), speaking to Johnson, reviewing the file prepared by Johnson's first attorney, reading transcripts from the preliminary hearing, and preparing a pretrial motion. Included in the documents from Johnson's first attorney was an independent doctor's review of J.N.'s autopsy, which Cotton studied. Cotton estimated he spent between 60 and 70 hours on Johnson's case, 6 hours of which he spent with Johnson.
Cotton acknowledged that after their first meeting he did not meet with Johnson again until a few days prior to a September 2013 motion hearing, but he also testified that he responded to Johnson's correspondence and provided the documents Johnson requested. Cotton recalled that each of the visits with Johnson “were fairly lengthy” and lasted “probably an hour to an hour-and-a-half.” In terms of the delay in Johnson arriving to the visit, Cotton testified that standard procedure for a “professional visit” is to call the jail before the visit so that the individual is brought down before the attorney arrives. Cotton could not recall waiting for Johnson to be brought to any of the visits. Cotton also confirmed that he hired a private investigator, who reported 45 hours of investigation for Johnson's case. Cotton explained that the investigator worked on his behalf to interview Johnson, review police reports and other documents, and possibly look for other witnesses or investigate other issues. Cotton recalled the investigator interviewing civilian witnesses, reviewing physical evidence and photographs, and visiting the area in which the crime occurred. Cotton himself also drove by the crime scene and surrounding area. Regarding correspondence, Cotton believed he sent Johnson more than one letter but could not recall for certain.
Johnson only waived his right to testify because of Cotton's errors in presenting his theory of the case.
Johnson explained that he decided against testifying because he felt that the theory of the case Cotton presented to the jury in opening statements—namely, that there was insufficient evidence to convict—precluded his own version of events—namely, that he did injure J.N., but only in self-defense. Because Johnson “perceived that [he] was either gonna have to change [his] story to accommodate [Cotton's theory of the case] or [he] was gonna have to get up and contradict what [Cotton] had been telling the jury,” he elected against testifying. But Johnson acknowledged that some aspects of his defense were consistent with the theory of the case Cotton presented at trial. In fact, Johnson agreed that his theory of the case comported with the brunt of Cotton's statements during his opening statement.
Johnson also complained that neither the State nor Cotton presented any evidence about Johnson's account of what happened that night—including Johnson's statement that he only hit J.N. after J.N. attacked K.N. Johnson insisted that he maintained this version of events since the beginning of the proceedings and that he repeated his account to investigating officers, Cotton, and a private investigator Cotton hired. However, Johnson also admitted that he “tried not to tell [the investigator] too much” because he worried he might not actually be working for Cotton. Johnson admitted that absent his testimony, if he chose to give it, nothing presented at trial indicated that he struck J.N. in self-defense. But Johnson still maintained that he believed that his theory of the case would have contradicted what Cotton had already told the jury.
Cotton explained that when the detective to whom Johnson had reported J.N.'s attack failed to testify about that attack, Cotton informed Johnson that the only way to elicit testimony regarding self-defense was for Johnson to testify. Cotton testified that although he believed he brought up the issue of self-defense in voir dire, he did not cross-examine witnesses about that issue because the general testimony was that no one knew what happened between Johnson, J.N., and K.N. until after the fact. Cotton also testified that Johnson originally appeared “pretty comfortable” with testifying but that the day after they prepared he “advised [Cotton] that he didn't believe that he could go through with it.” Cotton cautioned Johnson that without his testimony, they could only pursue the insufficient evidence defense theory. Cotton made clear that Johnson alone decided not to testify.
Johnson asserts that Cotton was ineffective for failing to hire expert witnesses and conduct biological testing.
Regarding the issue of Cotton's failure to hire an expert, Johnson again admitted that he never really asked about obtaining an expert except in the context of informing Cotton that his previous attorney had mentioned hiring one. When asked about whether he ever specifically requested that Cotton retain the expert witnesses discussed in his motion, Johnson admitted, “Well, no, I never got any conversations with him about expert witnesses.” But he also noted that Cotton never discussed seeking out experts on his own, either.
As for the testing of his jeans, Johnson testified that he believed there was some dispute as to whether the biological material on those jeans came from him or from K.N. However, he also admitted that clearing up that uncertainty would only serve to “establish some basic facts” among the sometimes-shifting statements from other witnesses.
Regarding experts, Cotton testified that he had suggested they hire a toxicology expert to look into the intoxication issue, but Johnson declined. Otherwise, Cotton did not recall Johnson requesting any experts.
Johnson contends that Cotton erred by failing to present any evidence of self-defense.
Johnson testified that Cotton never mentioned the possibility of self-defense at any point during the trial. However, he admitted that because of the lack of corroborating testimony regarding his self-defense claim, it would have been problematic if Cotton had introduced a self-defense theory during opening statements and Johnson had elected against testifying. Johnson also admitted that the testimony at trial did demonstrate that J.N. was drunk and violent on the night in question—two things that Johnson believed Cotton should have highlighted as part of his defense.
Cotton testified that because he had previously had defendants decide against testifying halfway through trial, he elected to not include the self-defense issue in his opening statement in case he was unable to present evidence regarding that issue. Cotton stated that he and Johnson talked about his testimony and established that if the State elected to play Johnson's interview, Johnson could likely avoid testifying because “his testimony was going to be largely consistent with what he had already told the detectives.” But Cotton also noted that their understanding was that if the State elected against playing the interview, Johnson would need to testify.
Cotton also testified that the report from the doctor that reviewed the autopsy called the viability of a self-defense theory into question because of J.N.'s level of intoxication.
At the close of testimony, Johnson essentially argued that Cotton was ineffective for not spending more time rigorously preparing for his trial. He contended that Cotton's failure to mention self-defense in his opening statement was the cause of Johnson's testimonial “cold feet” and that the lack of other self-defense evidence backed Johnson into a comer that Cotton could have avoided. The State, on the other hand, argued that Johnson simply regretted his decision to not testify—an issue not caused by Cotton. The State acknowledged that Cotton could have spent more time with Johnson, but also reasoned that Cotton's overall representation was not ineffective.
The district court ultimately determined that Cotton effectively represented Johnson. Although the district court noted that Cotton probably should have mentioned self-defense in his opening statement, the district court reasoned that Cotton's justification for not pursuing the issue at that time was sound. The district court also determined that Johnson understood the implication of his decision not to testify. The district court expressed some concern over the limited number of times Cotton visited Johnson but found that Johnson failed to demonstrate how more face-to-face time would have helped Cotton prepare for trial.
Based on the evidence, then, the district court determined that “Cotton's representation of Mr. Johnson was legally sufficient” and that Johnson failed to show any prejudice. Additionally, and after a lengthy review of the evidence presented at trial, the district court found that there “quite simply [was] no basis for self-defense” and that the evidence against self-defense was “pretty dam overwhelming to its exclusion, to its detriment.” In fact, the district court found the evidence against Johnson to be “either overwhelming or so nearly overwhelming as to not allow me and I believe any other rational finder of fact to find that the result of proceedings would have been different” if Johnson had testified. As such, the district court rejected Johnson's motion.
After considering other motions not relevant to this appeal, the district court sentenced Johnson to 748 months' imprisonment. Johnson timely appealed.
Motion for New Trial
Johnson first contends that the district court erred in denying his motion for new trial. Specifically, Johnson argues that his trial counsel's failure to present evidence of self-defense to the jury, failure to adequately prepare for trial, and failure to adequately maintain communication with him prejudiced the proceedings and entitles him to a new trial. In response, the State argues that Johnson's motion for new trial was untimely, thus stripping both the district court and this court of jurisdiction to consider the merits. However, the State also maintains that Johnson's trial counsel acted effectively.
Because the jurisdiction question could potentially dispose of the issue, we must first discuss the motion's timeliness and, if we find we have jurisdiction, continue to an analysis on the merits.
This court has jurisdiction to consider Johnson's claims regarding ineffective assistance of trial counsel.
Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014). Moreover, an appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, it is the duty of this court to dismiss the appeal. State v. J.D.H., 48 Kan.App.2d 454, 458, 294 P.3d 343, rev. denied 297 Kan. 1251 (2013). Importantly, if a district court lacks jurisdiction to enter an order, an appellate court lacks jurisdiction over the subject matter on appeal. State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).
A motion for new trial based on any grounds other than newly discovered evidence “shall be made within 14 days after the verdict or finding of guilty.” K.S.A.2014 Supp. 22–3501(1). This time limit is mandatory, not discretionary. See State v. Holt, 298 Kan. 469, Syl. ¶ 5, 313 P.3d 826 (2013). Here, the jury convicted Johnson on September 28, 2012, but Johnson filed his earliest motion—the one the district court construed as a motion for new trial over his objection—in March 2013. Then, Johnson filed his actual motion for new trial in May 2013. Even counting from the earlier of the two motions, Johnson missed the 14–day time limit by more than 4 months. Moreover, a review of the record indicates that Johnson failed to file any motions or requests for extension within the 14–day time limit.
Because Johnson filed his motion far outside the 14–day limit, Johnson's motion was clearly untimely, and the district court lacked jurisdiction to consider it. Because the district court lacked the authority to rule on the motion, this court also lacks jurisdiction to consider the matter. See McCoin, 278 Kan. at 467–68 ; State v. Lee, 45 Kan.App.2d 1001, 1021–22, 257 P.3d 799 (2011), rev. denied 293 Kan. 1111 (2012); State v. Yost, No. 104,183, 2011 WL 6382751, at *5 (Kan.App.2011) (unpublished opinion), rev. denied 296 Kan. 1136(2013).
Because Johnson alleges ineffective assistance of counsel as his grounds for new trial, the analysis regarding jurisdiction cannot end there. This court has at times, based on our Kansas Supreme Court precedent, elected to consider the merits of untimely motions for new trial when based solely on grounds of ineffective assistance of counsel. See State v. Reynolds, No. 109,674, 2014 WL 6909523, at *9–10 (Kan.App.2014) (unpublished opinion) (construing motion as one for postconviction relief and because district court held full evidentiary hearing on counsel's ineffectiveness, appellate review was appropriate), petition for rev. filed January 5, 2015; State v. Reed, No 106,807, 2013 WL 451900, at *6, (Kan.App.2013) (unpublished opinion) (because district court treated untimely motion for new trial as one for postconviction relief and held full evidentiary trial on ineffectiveness claim, this court reasoned that “it would serve no purpose to remand the case to resolve th[e] issue”), rev. granted 298 Kan. –––– (October 17, 2013); State v. Yarbrough, No. 108,096, 2013 WL 3791793, at *11 (Kan.App.2013) (unpublished opinion) (same rationale given the district court held a full evidentiary hearing on defendant's claims rendering “the record ... sufficiently complete” for this court's review), rev. denied 298 Kan. –––– (February 18, 2014); see also State v. Sharkey, 299 Kan. 87, 94–95, 322 P.3d 325 (2014) (noting that under earlier Kansas Supreme Court precedent, an untimely motion for new trial can be treated as a collateral attack). Likewise, this court has declined to treat untimely motions for new trial based on ineffectiveness of counsel as one for postconviction relief when the district court “merely heard arguments from [the defendant] and responses from his trial counsel and the State.” State v. Whittker, No. 107,627, 2014 WL 2400424, at *7 (Kan.App.2014) (unpublished opinion), petition for rev. filed June 19, 2014.
Contrary to the State's argument, we do not believe that the Supreme Court's decision in Holt prevents us from considering Johnson's ineffectiveness of counsel claims. In Holt, our Supreme Court recognized its “long history of converting mislabeled motions for postconviction relief into 60–1507 motions.” 298 Kan. at 480. Such a finding was impossible in Holt because the motion for new trial, filed 16 years after his convictions, was untimely under K.S.A. 60–1507(f). Here, however, Johnson's motion on ineffective assistance of counsel was filed within 1 year of the final action on his case. See K.S.A. 60–1507(f)(1).
In addition, Holt must also be examined in light of State v.. Van Cleave, 239 Kan. 117, Syl. ¶ 2, 716 P.2d 580 (1986), where our Supreme Court held: “When appellate counsel in a criminal case desires to raise the issue of ineffective assistance of counsel and that issue has never been ruled upon by the trial court, defendant may seek a remand of the case to the trial court for an initial determination of the issue.” (Emphasis added.) Van Cleave does not base appellate jurisdiction over an ineffective assistance of counsel claim on a trial court's prior jurisdiction over the claim by way of a timely motion for new trial. Instead, our Supreme Court specifically stated the remand procedure would work well for “a claim of ineffective assistance of counsel which arises after the district court has lost jurisdiction of the case pending appeal.” 239 Kan. at 120.
Consistent with Van Cleave, our Supreme Court later clarified that remand is not required at all in an “extraordinary circumstance” where “there are no factual issues and the two-prong ineffective assistance of counsel test can be applied as a matter of law based upon the appellate record.” Trotter v. State, 288 Kan. 112, Syl. ¶ 11, 200 P.3d 1236 (2009). The court explained that its precedent did not hold “failure to raise the issue [of ineffective assistance] in the district court was an absolute procedural bar,” but rather that its precedent permitted a remand “for an evidentiary hearing after determining the ineffective assistance of counsel issue could not be considered as a matter of law.”288 Kan. at 130. “If even a total failure to raise ineffective assistance of counsel before the trial court is not an absolute procedural bar to appellate jurisdiction, a claimed untimely motion for new trial is not a bar.” State v. Tiger, No. 110,278, 2015 WL 1513955, at *8–9 (Kan.App.2015) (unpublished opinion), petition for rev. filed April 24, 2015. As this court stated in Tiger, “[i]t would be pointlessly formalistic to impose ‘the delay and expense of a separate action and a separate appeal’ when the issue is ripe for decision. Van Cleave, 239 Kan. at 119–20.” 2015 WL 1513955, at *9.
A review of the record in this case reveals that Johnson is closely aligned to the defendants in Reed, Yarbrough, Reynolds, and Tiger. Here, the district court specifically found the motion to be one for relief based upon ineffective assistance of counsel and held a full evidentiary hearing on Johnson's motion. The parties called and crossexamined witnesses in a manner resembling a collateral attack, and the district court ruled on the motion based upon the testimony and the arguments presented by counsel. As this court has previously justified hearing an untimely motion like this one on the merits in situations where the district court held a full evidentiary hearing, and there is a complete evidentiary hearing on this particular matter, we find we have jurisdiction to consider Johnson's claim that his trial counsel was ineffective.
Johnson's motion fails on the merits
Turning now to the merits of Johnson's motion, Johnson champions three grounds of ineffectiveness on appeal: (1) counsel's failure to pursue a self-defense theory at trial;
(2) counsel's failure to adequately prepare for trial; and (3) counsel's failure to communicate with Johnson.
A defendant attempting to establish ineffective assistance of counsel must demonstrate two things. First, he or she must show that counsel's performance was constitutionally deficient, which requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution. Second, the defendant must demonstrate that counsel's deficient performance prejudiced the defense, which requires a showing that counsel's errors were so severe as to deprive the defendant of a fair trial. Miller v. State, 298 Kan. 921, 929–34, 318 P.3d 155 (2014). When analyzing a claim of ineffective assistance of counsel, the reviewing court must strongly presume that counsel's conduct fell within the broad range of reasonable professional assistance. State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014).
In other words, in order to prevail, Johnson must show both that his counsel's representation fell below an objective standard of reasonableness and that but for counsel's performance, there was a reasonable probability that the trial's outcome would have been more favorable to him. See Rowland v. State, 289 Kan. 1076, 1083, 219 P.3d 1212 (2009).
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Consequently, appellate courts review the underlying factual findings for support by substantial competent evidence and the legal conclusions based on those facts de novo. State v. Cheatham, 296 Kan. 417, 430, 292 P .3d 318 (2013).
As a preliminary note, Johnson observes in his brief that the district court failed to rule on a number of other issues from his initial motion and states that “[w]ithout the benefit of a full evidentiary hearing, those additional issues cannot be fairly briefed.” It is unclear whether this statement serves as a waiver of those issues on appeal. Regardless, Johnson never objected to the thoroughness of the district court's ruling below. Absent a party's objection, it is presumed that the district court's findings of fact and conclusions of law are sufficient to support its decision. See State v. Neighbors, 299 Kan. 234, 240, 328 P.3d 1081 (2014). Because Johnson never objected to the district court's findings, he cannot now complain of them on appeal. See State v. Herbel, 296 Kan. 1101, 1119, 299 P.3d 292 (2013).
We will address each of the alleged grounds of ineffectiveness properly raised on appeal separately.
Failure to present evidence of self-defense at trial
On appeal, Johnson first argues that Cotton fell below the objective standard of reasonableness because he failed to pursue Johnson's requested defense. Johnson contends that Cotton's deficient representation manifested in two ways: First, in Cotton's failure to mention self-defense during his opening statement (thereby confusing Johnson about his decision to testify) and, second, in Cotton's failure to call the detective Johnson spoke with to testify on Johnson's behalf.
The testimony at the evidentiary hearing directly contradicts Johnson's first argument on this issue, however. Despite his initial insistence that Cotton's failure to mention self-defense left him feeling unable to broach the subject himself, Johnson testified that none of Cotton's statements during his opening directly ran against a selfdefense theory. Johnson acknowledged that most aspects of his self-defense claim were consistent with the theory that Cotton presented at trial and that nothing else admitted at trial supported his claim that he struck J.N. to protect himself and K.N. Johnson even recognized that potential pitfalls of Cotton mentioning self-defense in his opening statement and then presenting no self-defense evidence. Moreover, Cotton testified that Johnson understood their defense strategy and the fact that his failure to testify would preclude the self-defense argument. Cotton also emphasized that Johnson himself decided not to testify—and that Cotton advised him of the consequences of that decision.
Johnson appears to ask this court to find his testimony on this issue more credible than Cotton's testimony and, therefore, rule in his favor. However, the district court clearly placed great weight on Cotton's testimony regarding the self-defense issue, and this court cannot reconsider the weight or credibility of evidence on appeal. See State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013). As such, there was substantial competent evidence to support the district court's conclusion that Cotton was not ineffective for failing to present evidence on the issue of self-defense.
But for the first time on appeal, Johnson adds a new wrinkle to this argument and claims that Cotton should have subpoenaed the detective who interviewed Johnson—and to whom Johnson raised his claim of self-defense—to testify on Johnson's behalf. Comparing his own case to one in which a defense attorney failed to call certain alibi witnesses, Johnson argues that Cotton's failure to call the detective to testify that he reported that he was defending himself against J.N. constituted ineffective assistance of counsel.
It is well-settled that issues not raised before the trial court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). An appellant's failure to explain why an issue that was not raised below should be continued for the first time on appeal risks this court ruling that the issue is improperly briefed and therefore deemed waived or abandoned. State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014) (cautioning future litigations about failure to comply with Supreme Court Rule 6 .02[a][5] , which requires such an explanation). Aside from the State briefly referencing that Johnson's statement to the detective constituted inadmissible hearsay, the argument Johnson now raises is wholly new on appeal, and Johnson offers no explanation as to why he did not pursue this argument below. As such, we view this argument as waived or abandoned. See 298 Kan. at 1085.
But even considering the argument on its merits, we note there are two ways Johnson's evidence of self-defense would be admissible at trial, and both require Johnson's testimony. A defendant's exculpatory statements to law enforcement, which are admitted for the purpose of proving the truth of the exculpatory statements and not for impeachment purposes, are inadmissible hearsay. State v. Stano, 284 Kan. 126, 132–39, 159 P.3d 931 (2007). If the State does not present the evidence itself and thereby waive any hearsay objection, Johnson would be required to call the detective to testify. That is what he faults Cotton for failing to do. But if the State objects, the detective's testimony regarding Johnson's exculpatory statements would not be admissible, unless Johnson took the stand and subjected himself to cross-examination. Accordingly, Cotton's failure to call the detective to testify is irrelevant as he could not have discussed Johnson's account of what happened that night.
In sum, Cotton's alleged failure to pursue a theory of self-defense did not reach the level of ineffective assistance of counsel. Cotton explained to Johnson that a self-defense claim required Johnson's testimony, but Johnson elected against testifying. The only other evidence of self-defense could not be admitted because it constituted inadmissible hearsay. Therefore, Cotton's failure to discuss self-defense in his opening statement did not fall below an objective standard of reasonableness or constitute a failure to pursue the defense in general. The district court had substantial competent evidence to support its decision denying Johnson's motion based on this ground.
Failure to adequately prepare for trial
Next, Johnson alleges that Cotton failed to adequately prepare for trial. But this argument as outlined on appeal is predicated on the assumption that Cotton needed to call the detective in order to present evidence of Johnson's self-defense claim. But as previously stated, the detective could not have testified about Johnson's interview statement due to the hearsay issue. As such, Cotton's failure to subpoena the detective did not fall below an objective standard of reasonableness and the district court did not err when it denied the motion.
Failure to communicate
Lastly, Johnson argues that Cotton failed to communicate with him adequately during the proceedings. Johnson mostly hinges this argument on Cotton's failure to spend more time with him.
In his brief, Johnson attempts to distinguish himself from the defendant in State v. Gonzales, 289 Kan. 351, 212 P.3d 215 (2009), but in truth, the two are quite alike. There, the defendant argued that trial counsel failed to communicate with him because she encouraged him to accept a plea, had another defense than the one he wanted in mind, and “ ‘already had it set in her mind what she was going to do’ “ before they discussed the State's case against him. 289 Kan. at 359. He also claimed that he did not understand the defense. However, our Supreme Court determined that the defendant not only understood the defense his counsel presented, but he failed to “identify another defense his trial counsel supposedly failed to discuss with him.” 289 Kan. at 359. Moreover, the court found that counsel saw the defendant seven times—in three jail visits and four court appearances—and prepared pretrial motions and a defense for the defendant's trial. 289 Kan. at 360. In short, the court determined that the defendant's complaints generally fell “under the category of dissatisfaction with his counsel's trial strategy” and that the district court properly denied the defendant's claim of ineffective assistance of counsel. 289 Kan. at 359–60.
Here, Cotton met with Johnson three or four times before trial, including twice in one day. Cotton also sent his private investigator to speak with Johnson before trial. During the trial, Cotton and Johnson met in the evening at least once. It is undisputed that Cotton prepared a defense for Johnson, and Cotton testified at the evidentiary hearing that he and Johnson discussed multiple defenses, one of which Johnson rejected. Moreover, Johnson clearly understood the limitations of the self-defense theory, as a large part of his argument is based on the fact that he knew he needed to testify to support that theory. Cotton cross-examined witnesses on some aspects of the defense Johnson wanted.
Additionally, Johnson presents no argument as to what result he expected from more face-to-face time. Although he alleges that Cotton never fully explained the private investigator to him, Johnson's evidentiary hearing testimony appears to indicate that he knew generally who the investigator was but opted against trusting him. Johnson also argues that Cotton needed to provide him with copies of motions, transcripts, and documents, but he offers no explanation as to how access to these items would have affected the outcome of his case. Moreover, and as explained earlier, the district court assessed the evidence and determined that Johnson's confusion regarding Cotton's defense strategy was the product of his own confusion, not Cotton's representation. Again, this court cannot reevaluate that determination on appeal. Martinez, 296 Kan. at 485. And, like the defendant in Gonzales, Johnson identifies no other defense, strategy, or action that Cotton would have taken had they seen each other more frequently. See 289 Kan. at 359.
In short, Johnson fails to demonstrate how Cotton's somewhat infrequent contact fell below the objective standard of reasonableness and rendered his representation ineffective. The district court had substantial competent evidence to support its findings and did not err in denying Johnson's claims that his counsel was ineffective.
Prosecutorial Misconduct
The prosecutor did not commit misconduct during closing argument .
Next, Johnson contends that the prosecutor committed misconduct during closing arguments. Specifically, Johnson alleges that the prosecutor (1) opined on his guilt by remarking that various counts against Johnson had been proven, (2) inflamed the jury against Johnson by pointing at him and calling him a murderer, and (3) raised a “golden rule” argument by discussing the injuries to K.N.'s genitalia. Johnson contends that these three acts constitute reversible error.
When a claim of prosecutorial misconduct is based on comments made during closing argument that are not evidence, this court will review the issue even when a contemporaneous objection was not made at the trial level. See State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014). Like with claims of ineffective assistance of counsel, appellate review of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, this court determines whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If misconduct is found, the appellate court must determine whether the improper comments compel reversal; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. 299 Kan. at 416. This second step considers three factors: (1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. State v. Williams, 299 Kan. 509, 540, 324 P.3d 1078 (2014). None of these factors is individually controlling, and before the third factor can override the first two, an appellate court must be able to say that both the statutory and constitutional harmless error tests have been met. 299 Kan. at 540–41.
Because Johnson argues three different instances of prosecutorial misconduct, we will discuss each separately.
Opining on Johnson's guilt by remarking that certain counts had been proven
The State framed its closing statements by reviewing each of the jury instructions provided to the jury and explaining how the evidence connected to those instructions. Near the end of the argument, the State walked through the elements of aggravated battery and applied those elements to the evidence presented regarding Hatcher's injuries, saying,
“We can say definitively that [Hatcher] suffered some bodily harm. We can say definitively this happened on or about the 27th day of March. You can just cross those off your checklist if you want to and as you should when you weigh this evidence.
“There's the bodily harm. There's his head. There is the deadly weapon, the machine bolt. The bolt that you will get to have the opportunity to examine. You can feel the heft. You can see how big this is.
“There's really no question. This is a consistency amongst virtually everybody that's there, and those are him and Cody and other people that were standing around, that the defendant actually struck [Hatcher] in the head. There's nothing left. This count has been proven.”
The State then proceeded to the evidence presented regarding Cody's injuries, saying,
“[S]ame issues here. There's no question when it happened. There's no question that Cody suffered some bodily harm. The question is who did it and with what.
“The evidence was consistent throughout this case that it was the defendant that struck his own son in the head. You can see just to his right temple area, he used that same machine bolt. This count as well has been proven. There's no question as to who did this. These folks knew the defendant.”
Johnson claims that by using the phrase “ ‘[t]his count has been proven’ “ in the final summary of evidence, the State improperly presented an opinion regarding Johnson's guilt on those two aggravated battery charges.
Prosecutors are not permitted to “ ‘state a personal opinion regarding the ultimate guilt or innocence of the defendant’ “ as such opinions “ ‘are a form of unsworn, unchecked testimony, not commentary on the evidence of the case.’ “ State v. Peppers, 294 Kan. 377, 399, 276 P.3d 148 (2012). That said, a directional statement that serves “ ‘as an opening for the prosecutor's upcoming summation of the evidence’ “ is permissible, as are “a ‘prosecutor's comments asking the jury not to let the defendant get away with the crime.’ “ 294 Kan. at 399. In fact, a prosecutor is allowed to argue that the evidence presented proves the defendant guilty as long as that prosecutor adds directional language such as “ ‘the evidence shows defendant's guilt’ “ to the statement. 294 Kan. at 399–400. Without this type of directional language, the statement becomes “an expression of the prosecutor's personal opinion.” 294 Kan. at 400.
But there are many directional phrases available to a prosecutor. For example, in one case, our Kansas Supreme Court determined that the phrase “ ‘and this is why’ “ at the end of a sentence regarding the defendant's guilt was directional because it “serve[d] as an opening for the prosecutor's upcoming summation of the evidence that pointed toward [the defendant] being guilty.” State v. Mann, 274 Kan. 670, 688–89, 56 P.3d 212 (2002). In another case, the court determined that a prosecutor who closed arguments with the phrase “ ‘[t]hat's what he did’ “ did not improperly express an opinion because the statement clearly served to relate the facts of the case to the elements of the crime that the prosecutor had just finished describing. State v. Bennington, 293 Kan. 503, 531, 264 P.3d 440 (2011).
Here, the phrase “[t]his count has been proven” is clearly prefaced by directional language each time it appears. When discussing the first charge of aggravated battery, the State walked through each of the elements of the charge and the evidence that applied to that charge. The State referred to the evidence during this discussion, saying, “This is a consistency amongst virtually everybody's that's there ... that the defendant actually struck [Hatcher] in the head.” Similarly, when discussing the second aggravated battery charge, the State commented, “The evidence was consistent throughout this case that it was the defendant that struck his own son in the head.” Although this language is not the unequivocal directional language in Peppers, it very closely resembles the prosecutor's statements in Bennington, where the State discussed the different elements of the charge and then ended the argument by stating, “That's what [the defendant] did.' “ Bennington, 293 Kan. at 531. It is clear from the context that the State was applying the facts to the elements of the charges, not simply opining on Johnson's guilt. As such, the State did not exceed the wide latitude afforded prosecutors and, therefore, did not commit misconduct.
Pointing at Johnson and calling him a murderer
During rebuttal, the State responded to Johnson's closing argument regarding the lack of direct evidence by reviewing the circumstantial evidence that supported the charges. In so doing, the State discussed the difference between a hypothetical scenario and the specific facts of Johnson's case. As part of this discussion, the State said that, in the instant case, “[W]hat we add in is Cody Johnson running after his dad screaming, murderer, murderer, call 911.” The transcript also indicates that the prosecutor pointed but does not describe where that gesture was directed. The State then continued to discuss other differences between the hypothetical situation and Johnson's case. Twice during this line of commentary, the State also referred to the bolt as “the murder weapon.” Johnson argues that these comments are inflammatory and outside the latitude afforded the State.
Our Kansas Supreme Court has repeatedly refused to condone the use of any names or “ ‘epithets which in any way might be construed in derogation of the presumption of innocence.” ‘ State v. Collins, 209 Kan. 534, 535, 498 P.2d 103 (1972). As such, the court has determined that calling a defendant “ ‘the killer’ “ six different times during closing argument constituted misconduct. State v. Miller, 284 Kan. 682, 717, 163 P.3d 267 (2007). Similarly, a prosecutor commits misconduct when asking the jury to “ ‘take a good look into the eyes of a killer’ “ and when calling the defendant a “ ‘killer who murders helpless, innocent people in their sleep,” ‘ or by telling the jury, “ ‘Yeah, you have about eight feet separating you from the hands of a killer right here.’ “ State v. Scott, 286 Kan. 54, 81–82, 183 P.3d 801 (2008) ; State v. Scott, 271 Kan. 103, 114, 21 P.3d 516 (2001). However, referring to a defendant as a murderer or killer may be permissible “so long as nothing in the statement predicts consequences of acquittal or intensifies any kind of ‘fear in the neighborhood’ sentiment.” State v. Cravatt, 267 Kan. 314, 333–34, 979 P.2d 679 (1999).
Here, the State only referred to Johnson as a murderer once, and only when quoting Cody. The preliminary hearing testimony of Alex Buckner, which was read into the record at trial, clearly indicated that Bucker remembered hearing Cody yell “murderer” while fighting with Johnson. Cody testified at trial that he banged on his neighbors' doors and shouted at them to call the police because “there was dead people in [his] apartment.” He also testified that, after regaining entry to the apartment, he chased Johnson out of the building. Added together, the evidence indicates that Cody called Johnson a murderer while chasing him and shouting at others to call the police; the State in its closing simply synthesized these fragments of evidence into a single statement.
In his brief, Johnson argues that the issue is not with the statement itself, but with the combination of the statement and the prosecutor's gesture. But despite Johnson's insistence that the prosecutor pointed toward him, the record only reflects that the prosecutor pointed at something. Moreover, Johnson provides no caselaw indicating that a single gesture can transform an otherwise permissible statement into prosecutorial misconduct. As such, the State did not commit misconduct by quoting Cody's accusation of “murderer” during its closing statement.
Similarly, the State did not act improperly by referring to the bolt as the murder weapon. In both instances, the State was again summarizing the facts of the case, discussing both what Cody and Morris each saw in the apartment that night and Johnson's armed flight from the building. Cody and Morris each testified to seeing Johnson armed with the bolt. Testing revealed that J.N.'s DNA was found on the bolt, and his autopsy revealed that his injuries were consistent with that particular weapon. Prosecutors are permitted “to argue reasonable inferences based on the evidence presented at trial.” Peppers, 294 Kan. at 394. Based on the evidence, it is reasonable to infer that the bolt was the weapon—or at least, one of the weapons—that caused J.N.'s death. Referring to the bolt in this way did not constitute misconduct.
Raising a “golden rule” argument concerning K.N.'s injuries
In explaining the circumstantial evidence of the rape charge, the State summarized both Johnson's statements regarding his desire to have sex with K.N. and the nature and extent of the injuries to K.N.'s genitalia. As part of this discussion, the State said,
“We know from the examination of [K.N.'s] body that [K.N.] had significant injuries to her genitalia. Nurse Farley testified. How would that feel. It would hurt and hurt fairly significantly. [K.N .] didn't have pain in the days leading up to this. After sex with Cody she didn't have pain. Something penetrated her to cause injury .”
Johnson contends that this statement—especially the portion concerning K.N.'s pain—constituted an impermissible “golden rule” argument. “Golden rule” arguments ask the jurors to place themselves in the victim's shoes and “are generally improper because they encourage the jury to decide the case based on personal interest or bias rather than neutrality.” State v. Corbett, 281 Kan. 294, 313, 130 P.3d 1179 (2006). “Prosecutors should not make statements that inflame the passions or prejudices of the jury or district the jury from its duty to make decisions based on the evidence and the controlling law.” 281 Kan. at 313.
But although Johnson claims that the State's comments about how K .N.'s injuries felt places the jurors in her shoes, an examination of the context reveals otherwise. The State clearly referenced the pain of K.N.'s injury as circumstantial evidence of rape-and in direct response to Johnson's implication in his closing argument that K.N. possibly suffered the injuries at issue while having sex with Cody the night before the attack. Moreover, the evidence at trial clearly demonstrated that K.N. did not have injuries before passing out on the night in question and that the injuries she suffered would have been quite painful. The State's comment served to draw attention to these facts and rebut Johnson's argument that K .N. somehow obtained the injuries at a different time or during consensual sex-not, as Johnson argues, to place the jurors in K.N.'s position. Accordingly, the State did not commit prosecutorial misconduct by making this statement.
In sum, since none of the alleged statements by the prosecutor go outside the wide latitude afforded prosecutors, we need not even reach the other prongs of the prosecutorial misconduct test. Accordingly, we find that this claim of error fails.
The Calculation of Johnson's Criminal History Score
The district court calculated Johnson's criminal history score correctly.
Johnson also argues that the district court incorrectly calculated his criminal history score based upon the recent Kansas Supreme Court case State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014. He claims that a 1988 Kansas robbery conviction and a 1992 Kansas aggravated incest conviction were improperly classified as person felonies resulting in a criminal history score of B instead of E. He moves this court to remand the case for resentencing.
Whether a district court has correctly interpreted and applied the provisions of the Kansas Sentencing Guidelines Act (KSGA) is a question of law subject to unlimited review. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).
In Murdock, the Kansas Supreme Court held that all preKSGA out-of-state convictions must be scored as nonperson offenses because the comparable pre-KSGA Kansas statues did not classify convictions as person or nonperson. 299 Kan. at 319. The Supreme Court limited this ruling to only apply to pre-KSGA out-of-state convictions and has not extended it to apply to in-state pre-KSGA convictions. 299 Kan. at 319 (“We recognize this rule results in the classification of all out-of-state pre–1993 crimes as nonperson felonies—an outcome the State characterizes as unreasonable.”).
In fact, a recent opinion from this court has highlighted that the decision in Murdock does not apply to comparable pre–1993 in-state convictions. In State v. Waggoner, 51 Kan.App.2d 144, Syl. ¶ 1, 343 P.3d 530 (2015), petition for rev. filed February 18, 2015, this court undertook a thorough examination of Murdock and related cases before determining that “[t]he holding in [Murdock ] is limited to the classification for criminal history purposes of out-of-state convictions committed prior to the enactment of the [KSGA].” In coming to this decision, this court noted that an argument similar to Johnson's-that is, that a pre-KSGA in-state crime should be scored as a nonperson felony—“[ran] counter to the overall design and legislative purposes of the KSGA” and that “the legislature never intended all Kansas pre-KSGA convictions and juvenile adjudications to be scored as nonperson offenses.” Waggoner, 51 Kan.App.2d at 155. As such, this court reasoned that in-state, pre-KSGA offenses should still be scored as they were before Murdock: with a focus “on the nature of the offense as set forth in the statutory elements of the crime.” Waggoner, 51 Kan.App.2d at 156.
We find the holding in Waggoner to be sound and supported by over 20 years of precedent starting shortly after the adoption of the KSGA with State v. Fifer, 20 Kan.App.2d 12, 881 P.2d 589 (finding that a prior conviction for attempted burglary of dwelling should be classified as a person felony), rev. denied 256 Kan. 996 (1994). So we next apply this rule to the prior convictions at issue here.
In 1988 when Johnson was convicted of robbery, the Kansas statute defined robbery as “the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force.” K.S.A. 21–3426 (Ensley 1988). Criminal intent was deemed an essential element of robbery with criminal intent including “ ‘knowing’ “ conduct. K.S.A. 21–3201(1), (2) (Ensley 1988).
Had Johnson been convicted and sentenced for robbery in 2013 the crime would have been classified as a person felony and was defined as “knowingly taking property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A.2014 Supp. 21–5420. Clearly these statutes are comparable. In addition, the legislature itself has designated robbery as a person crime since at least 1969 when the legislature itself, not the Office of Revisor of Statutes, specifically adopted headings to sections of the criminal statutes as crimes against persons or crimes against property. Robbery was always in the crimes against persons section. See State v. Piercy, No. 110,526, 2014 WL 7152316, at *13 (Kan.App.2014) (unpublished opinion), petition for rev. filed January 9, 2015.
Similarly, in 1992 when Johnson was convicted of aggravated incest, the Kansas statute defined aggravated incest as
“marriage to or engaging in [sexual intercourse, sodomy, or any unlawful sexual act, ... or any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both] with a person who is under 18 years of age and who is known to the offender to be related to the offender as any of the following biological, step or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece.” K.S.A. 21–3603(1) (Ensley 1988).
Had Johnson been convicted and sentenced for aggravated incest in 2013 the crime would have been classified as a person felony and was defined as
“(1) Marriage to a person who is under 18 years of age and who is known to the offender to be related to the offender as any of the following biological, step or adoptive relatives: Child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece; or
“(2) engaging in the following acts with a person who is 16 or more years of age but under 18 years of age and who is known to the offender to be related to the offender as any of the following biological, step or adoptive relatives: Child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece;
(A) Otherwise lawful sexual intercourse or sodomy ...
(B) any lewd fondling....” K.S.A.2014 Supp. 21–5604(b).
These offenses are clearly comparable. Crimes related to sodomy, intercourse, or fondling of children under the age of 16, whether related or not, are now located in other statutory provisions, all of which are person felonies. See K.S.A.2014 Supp. 21–5504 (criminal sodomy); K.S.A.2014 Supp. 21–5506 (indecent liberties with a child); K.S.A.2014 Supp. 21–5507 (unlawful voluntary sexual relations); K.S.A.2014 Supp. 21–5503 (rape). Accordingly, we have no hesitation in finding that Johnson's prior crimes of conviction are comparable to current person felonies and were properly classified as such.
We pause to note that the law in this area, although static for many years, is now developing rapidly. The most recent development—direct and retroactive action by the Kansas Legislature—may put this issue to rest.
In March 2015, the Kansas Legislature adopted and the Governor signed, House Bill 2053. The amendments became effective April 2, 2015. 34 Kan. Reg. 266 (2015). The bill amends K.S.A.2014 Supp. 21–6810 and provides that both pre–1993 felonies and misdemeanors “shall be scored as a person or nonperson crime using a comparable offense under the Kansas criminal code in effect on the date the current crime of conviction was committed. ” 34 Kan. Reg. 266 (2015). In addition, it informs us that “amendments made to this section by this act are procedural in nature and shall be construed and applied retroactively. ” 34 Kan. Reg. 266 (2015). Consequently, assuming the statutory changes are in fact retroactive—and we reach no decision one way or the other here—even if we agreed with Johnson's position, we would not be inclined to reverse and remand for a new sentencing where the district court would statutorily be required to follow the same process that it followed here and classify his two prior convictions as person felonies. But that argument will have to be addressed another day when the issue of retroactivity of the recent amendments is fully briefed.
Affirmed.