Opinion
111,149.
05-08-2015
STATE of Kansas, Appellee, v. Jesse MONTANEZ, Appellant.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., HILL and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jesse Montanez claims he was denied a fair trial because the trial court allowed the jury to take the trial exhibits back to the jury room and consider them while deliberating. We find nothing wrong with the procedure followed by the court in this case. Accordingly, we affirm his convictions for burglary and misdemeanor theft.
But, we agree with Montanez that the court misclassified two out-of-state convictions when it determined his criminal history. Therefore, we vacate his sentence and remand the matter for a new sentence.
The record reveals a routine jury trial.
During Montanez' jury trial in October 2013, the State introduced 14 exhibits into evidence: 10 photographs of the interior and exterior of the mobile home; swabs of blood samples taken from the bathroom window and back door of the mobile home; and oral swabs of Montanez' DNA.
Following closing arguments, the district court told the jurors they would retire to the jury room to begin their deliberations. When releasing the jurors, the district judge stated, “At this time I'll have you all retire to the jury deliberation room ... In just a moment, Debbie will bring the exhibits and a verdict form back there for you, as well.” The jury left the courtroom and subsequently found Montanez guilty as charged.
Montanez claims the district court, in allowing the jurors outside of Montanez' presence, to view the photographs and swabs admitted into evidence while they deliberated violated the United States Constitution and K.S.A. 22–3420(3) as construed and applied in State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013). We note first that K.S.A. 22–3420(3), a section of the law that permitted the jury once it had retired for its deliberations to ask to be brought back to court to ask questions, review evidence, or have testimony read back to the jury, has been eliminated by amendments in 2014. Because Herbel is factually different, we disagree with Montanez' claims.
In Herbel, the district court, apparently outside Herbel's presence, talked to the jurors in the courtroom during their deliberations regarding a request they had made to review parts of an incriminating video the State had introduced into evidence. The court then played for the jury the requested parts of the video. Presuming Herbel was not present, our Supreme Court found that the district court's discussion with the jurors and its handling of the jurors' request to view portions of video evidence was a critical stage of the trial and violated Herbel's right to be present under the Fifth, Sixth, and Fourteenth Amendments. 296 Kan. at 1109. It is obvious, then, whenever a trial judge is talking to a trial jury, it is a critical stage of the trial.
But Herbel does not support Montanez' assertion that his constitutional rights to be present at all critical stages of his trial were violated. In Herbel, the district court violated Herbel's constitutional rights when it had contact with the jury after deliberations began while Herbel was not present and then exhibited video evidence to the jury.
Here, the district court had no direct involvement in exhibiting the 14 exhibits to the jury—it merely made the exhibits available to take to the jury room—and Montanez does not claim that there was any ex parte communication involving the district court and the deliberating jurors. In other words, Montanez' constitutional claims have no merit under Herbel because the district court provided the jury the exhibits before it became a deliberating jury. If the jury did view the exhibits, it did so during its deliberations, not in the presence of the district court and, thus, not at a critical stage of the trial.
For the same reason, there was no violation of K.S.A. 22–3405(1). K.S.A. 22–3405(1) requires that a felony defendant must be present at every stage of the trial except as otherwise provided by law. Because the right of a defendant to be present implicates a question of law, we exercise unlimited review. Herbel, 296 Kan. at 1106–07. Moreover, our interpretation of a statute is also a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
Montanez' statutory right to be present is legally indistinguishable from the identical protections afforded in the Constitution. See State v. Engelhardt, 280 Kan. 113, 122, 119 P .3d 1148 (2005).
Montanez cites no authority, and we find none, to support his assertion that his right to an “impartial judge” is only guaranteed if the district court judge allowing admitted exhibits to be sent back to the jury room before deliberations is also in the jury room while the jurors deliberate. A point raised incidentally in a brief and not argued therein is deemed abandoned. State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013). This assertion, if followed would mean Kansas juries would never be able to deliberate in private, thus constraining them from full and frank discussions of the facts and the instructions.
Moreover, Montanez at no point alleges the district court abused its discretion in giving the exhibits to the jury to take into the jury room. If there is no abuse of the district court's discretion, the jury is normally allowed to take properly admitted exhibits into the jury room to examine during deliberations as many times as necessary. State v. Fenton, 228 Kan. 658, 667, 620 P.2d 813 (1980).
For his statutory claim, Montanez contends Herbel construed K .S.A. 22–3420(3) in a manner consistent with his claim. At the time of Montanez' trial, K.S.A. 22–3420(3) addressed the exhibition of evidence to the jury as follows:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the ... evidence arising in the case, they may request the officer to conduct them to the court, where the ... evidence shall be ... exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.” (Emphasis added.)
The Herbel court found that the district court had violated Herbel's independent statutory right to be present under K.S.A. 22–3420(3) because the district court “exhibited” the video evidence to the jury after deliberations began without Herbel being present. 296 Kan. at 1109.
Montanez bases his argument on the following quoted sentence from Herbel: “[K.S.A. 22–3420(3) ] plainly mandates that the evidence ‘shall be ... exhibited to [the jury] in the presence of the defendant unless he voluntarily absents himself.’ “ 296 Kan. at 1109. From this, Montanez constructs a rule that anytime the district court sends admitted evidence to the jury to take to the jury room during deliberations, that evidence is considered “exhibited” to them and the defendant must be present. Montanez' statutory construction of K.S.A. 22–3420(3) fails for two reasons.
First, Montanez overlooks that the holding for the quoted sentence from Herbel he relies on does not open the door to such a statutory construction. That holding, which immediately followed the quoted sentence, states: “Consequently, where the jury has requested the officer conduct them to the court after deliberations began, the defendant has an absolute statutory right to be present when any evidence ‘is exhibited’ to the jury after deliberations began.” Herbel, 296 Kan. at 1109. In other words, Herbel limited its statutory critical stage holding to those circumstances specifically described in K.S.A. 22–3420(3), not the statutory construction Montanez advocates.
When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). Under the facts here, Montanez' statutory right under K.S.A. 22–3420(3) to be present was not violated. The record does not reflect that the jury had retired for deliberations or that the district court had responded to inquiries from the jury asking to review any of the evidence admitted during trial. And K.S.A. 22–3420(3) suggests it is directed at exhibits admitted at trial that must be exhibited in some manner upon the jury's request. Here, the jurors would not need to have exhibited for them the photographs or swabs admitted at trial and already delivered to the jury room; these objects could simply be viewed. See State v. Haynes, No. 106, 850, 2013 WL 3970167, at *6–7 (Kan.App.2013) (unpublished opinion), rev. denied 299 Kan. –––– (April 28, 2014).
Second, the legislature eliminated the statutory basis upon which Montanez relies. Effective July 1, 2014, K.S.A.2014 Supp. 22–3420(c) now provides: “In the court's discretion, upon the jury's retiring for deliberation, the jury may take any admitted exhibits into the jury room, where they may review them without further permission from the court. If necessary, the court may provide equipment to facilitate review.” In revising K.S.A.2014 Supp. 22–3420, the legislature also clarified that the defendant's presence during deliberations, unless waived, is only required when the district court considers a written question from the jury about instructions or evidence or a request to rehear testimony. K.S.A.2014 Supp. 22–3420(d).
The 2014 amendments to K.S.A. 22–3420 are dispositive of this issue. K.S.A.2014 Supp. 22–3420(f) provides: “The amendments to this section by this act establish a procedural rule, and as such shall be construed and applied retroactively.” The retroactive application of a statutory amendment to a defendant is permitted if it does not violate the Ex Post Facto Clause of the United States Constitution. See State v. Todd, 299 Kan. 263, 276, 323 P.3d 829 (2014). A law is ex post facto if (1) the law is retrospective; and (2) disadvantages the defendant by punishing acts previously not considered crimes, increasing the legal consequences of acts completed before its effective date, or depriving a defendant of any defense. See 299 Kan. at 276–78. Here, K.S.A.2014 Supp. 22–3420(f) expressly indicates a legislative intent to apply the established procedural rule retrospectively. And the retroactive application of K.S.A.2014 Supp. 22–3420(c) clearly does not satisfy the second element of an ex post facto law. See Todd, 299 Kan. at 276–78. Hence, even though the amendments were not in effect at the time of Montanez' trial, K.S.A.2014 Supp. 22–3420(c) effectively controls the outcome of this issue.
By deleting the “exhibited ... in the presence of the defendant” and other related language from K.S.A. 22–3420(3) and including the negative implications of K.S.A.2014 Supp. 22–3420(d), the legislature, in amending the statute, eliminated any reliance on Herbel to construe the jury's review of evidence during its deliberations as a critical stage of the trial requiring the defendant's presence. See State v. Garcia, No. 110,901, 2015 WL 770182, at *4–5 (Kan.App.2015) (unpublished opinion), pet. for rev. filed March 11, 2015. The district court, in exercising its discretion to provide the jurors the 14 admitted exhibits for their consideration during deliberations, did the very thing K.S.A.2014 Supp. 22–3420(c) retroactively and expressly permits.
We find no error here.
Two pre–1993 out-of-state convictions should have been scored differently.
Montanez contends correctly that the district court erroneously calculated his criminal history score. Montanez' criminal history score as an A based, in part, upon the classification of his 1982 Illinois convictions for armed robbery and aggravated battery as person offenses. Relying on State v. Murdock, 299 Kan. 312, Syl. ¶ 5, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014, Montanez argues his two 1982 Illinois convictions should not have been classified as person offenses.
In response, the State claims that Montanez' argument is not properly before this court because he did not object to the classification of his 1982 Illinois convictions as person offenses and invited any error that may have occurred by stipulating to his criminal history score at the sentencing hearing.
Determining whether a prior conviction is properly classified as a person or nonperson offense involves the interpretation of the Revised Kansas Sentencing Guidelines Act, K.S.A.2014 Supp. 21–6801 et seq. , which is a question of law over which appellate courts exercise unlimited review. Murdoch, 299 Kan. at 314. Generally, a litigant may not invite error and then complain of the error on appeal. See State v. Jones, 295 Kan. 804, 811–13, 286 P.3d 562 (2012). Whether to apply the doctrine of invited error also presents a question of law over which we have unlimited review. State v. Ruiz, 51 Kan.App.2d 212, 223, 343 P.3d 544 (2015).
Montanez is not barred from claiming an error on appeal under these circumstances even though he did not raise this issue to the sentencing court. Montanez is not challenging the factual existence of his two 1982 Illinois convictions, but the legal effect of how the district court classified these prior out-of-state convictions for criminal history purposes. By doing so, Montanez' challenge is to the accuracy of the sentence his criminal history score produced, an argument which our Supreme Court construes as fitting within the parameters of an illegal sentence. See State v. Neal, 292 Kan. 625, 630–31, 258 P.3d 365 (2011). In Neal, the court held that an incorrect criminal history score results in an illegal sentence. Thus, because Montanez is alleging an illegal sentence, any failure on his part to object to the classification of his 1982 Illinois convictions does not preclude our review of this issue since K.S.A. 22–3504(1) provides that a court may correct an illegal sentence at any time.
The Kansas Supreme Court in Murdock held that when calculating a defendant's criminal history that includes out-of-state convictions committed prior to the enactment of the KSGA in 1993, district courts must classify the out-of-state convictions as nonperson offenses. 299 Kan. at 319. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Murdock is dispositive. Because Montanez' 1982 Illinois convictions for armed robbery and aggravated battery must be classified as nonperson offenses for criminal history purposes, we vacate Montanez' burglary sentence and remand for resentencing in accordance with Murdock.
We affirm the convictions, vacate the burglary sentence, and remand the case with directions for a new sentence.