Opinion
No. 110,526.
2014-12-12
STATE of Kansas, Appellee, v. Justin PIERCY, Appellant.
Appeal from Seward District Court; Clint B. Peterson, Judge.Samuel Schirer, of Kansas Appellate Defender Office, for appellant.Don L. Scott, county attorney, Russell Hasenbank, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Seward District Court; Clint B. Peterson, Judge.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Don L. Scott, county attorney, Russell Hasenbank, county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ARNOLD–BURGER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Justin Piercy directly appeals his convictions and subsequent sentences for the sale of methamphetamine and conspiracy to sell methamphetamine. He raises seven issues on appeal. After a thorough review of the arguments of the parties and record on appeal we find only one error occurred in this case. The district court erred in failing to sequester the confidential informant witness during the trial. However, because we find this error was harmless, we affirm Piercy's convictions and sentences.
Factual and procedural History
On December 2, 2009, Agent Shane Finley, assigned to investigate narcotics crimes on a drug task force, was assisting in drug purchase operations in Liberal, Kansas. With the use of Edward Alvarez as a confidential informant, law enforcement planned a drug transaction consisting of the purchase of methamphetamine from Piercy. Prior to the planned purchase, Agent Finley and law enforcement searched Alvarez' person and his vehicle and a recording device was attached to his body.
Initially, Alvarez was going to purchase drugs from an individual at a hotel, but the particular individual was not available. While driving away from the hotel, Alvarez told law enforcement that he might be able to purchase methamphetamine from Piercy at a Sinclair gas station. Law enforcement made contact with Alvarez in order to restart the recording device and search his person and vehicle again.
Upon arriving at the gas station, Alvarez pulled up to a white Tahoe owned by Piercy. Alvarez approached the Tahoe and was going to purchase $100 worth of methamphetamine, but Piercy did not have the drugs packaged for sale in that small of an amount. Piercy and Alvarez arranged to meet at a different location while Piercy packaged up a smaller amount of methamphetamine. Alvarez followed Piercy to the parking lot of a movie theater. The Tahoe was driven by a female. At the movie theater parking lot, Alvarez entered the passenger backseat of the Tahoe and received the drugs from Piercy, who was sitting in the front passenger seat. Alvarez gave Piercy the money.
An additional purchase was planned for December 2, 2009, between Alvarez and Piercy. Alvarez and his vehicle were again searched and another recording device was placed on his person. The drug purchase was arranged to take place at the Sinclair gas station. Piercy and Monica Rader arrived in Piercy's white Tahoe. Rader was driving the vehicle, but when they arrived at the gas station, she got out and went into the convenience store. Alvarez got into the driver's seat of the Tahoe and purchased $250 worth of methamphetamine.
In case number 10 CR 86, Piercy was charged with the sale of methamphetamine on December 2, 2009, conspiracy to sell methamphetamine on December 2, 2009, the sale of methamphetamine on November 2–3, 2009, conspiracy to sell methamphetamine on November 2–3, 2009, unlawful use of a communication device to facilitate a drug transaction on December 2, 2009, and unlawful use of a communication device to facilitate a drug transaction on November 2–3, 2009. In addition, in case number 10 CR 97, Piercy was charged and convicted of the sale of methamphetamine on December 2, 2009. These two cases were heard at the same trial. Piercy has already appealed the conviction and sentence in case number 10 CR 97, which were affirmed by this court. State v. Piercy, No. 107,377, 2013 WL 3970172 (Kan.App.2013) (unpublished opinion), rev. denied 299 Kan. –––– (April 15, 2014).
In case number 10 CR 86, the jury found Piercy guilty of the sale of methamphetamine on December 2, 2009, and conspiracy to sell methamphetamine on December 2, 2009, but acquitted him on all other charges in case number 10 CR 86.
The district court sentenced Piercy to 42 months' imprisonment on the sale of methamphetamine conviction and 10 months' imprisonment on the conspiracy to sell methamphetamine conviction, which was to run consecutive to the first conviction, for a total of 52 months' imprisonment.
On August 31, 2010, Piercy filed a timely notice of appeal. On January 10, 2013, he filed a second pro se notice of appeal. The case was docketed out of time because the Kansas Appellate Defender Office was unaware that it had been appointed to Piercy's case at the time the notice of appeal was filed.
Analysis
Although the district court erred in denying Piercy's request to sequester the confidential informant witness during the trial, the error was harmless.
Before witnesses were presented at trial, Piercy asked the district court to sequester Alvarez during the trial for fear that Alvarez would rely on the other witness' testimony in order to supplement his own testimony. The district court denied this request, stating that the trial was open to the public. Piercy contends that this decision was an abuse of discretion and prejudiced his case.
There are two purposes for sequestering a witness: (1) it prevents the witness from tailoring his or her testimony to that of earlier witnesses and (2) it “aids in detecting testimony that is less than candid.” State v. Heath, 264 Kan. 557, 589, 957 P.2d 449 (1998) (citing Geders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 47 L.Ed.2d 592 [1976] ).
An appellate court reviews a district court's decision of whether to sequester a witness for an abuse of discretion. State v. Sampson, 297 Kan. 288, 292, 301 P.3d 276 (2013). A judicial action constitutes an abuse of discretion if (1) no reasonable person would have taken the view adopted by the trial court; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). “If an appellate court finds the trial court abused its discretion, the burden then shifts to the State to demonstrate a lack of prejudice.” Sampson, 297 Kan. 288, Syl. ¶ 4. Under a nonconstitutional harmless error standard, to show prejudice, the State, as the benefitting party, “must show there is no reasonable probability the error affected the trial's outcome in light of the entire record.” State v. McCullough, 293 Kan. 970, Syl. ¶ 9, 270 P.3d 1142 (2012).
The only rationale for the district court's denial of Piercy's request was the public nature of trials. Piercy's argument—“[u]nder the district court's logic, because all criminal trials are open to the public, no witnesses should ever be sequestered”—is persuasive. The public nature of criminal trials should not constitute the sole ground to deny a request to sequester a witness. In State v. Ulate, 42 Kan.App.2d 971, 985, 219 P.3d 841 (2009), rev. denied 291 Kan. 917 (2010), our court indicated that our appellate courts have never deemed the sequestration of a witness as a violation of a defendant's right to a public trial. In Piercy's case the district court abused its discretion by failing to consider the correct legal standard for sequestration. In Piercy's appeal of case number 10 CR 97, he raised the same issue and our court determined that the district court abused its discretion by solely relying on the public nature of criminal trials for denying Piercy's request to sequester Alvarez. Piercy, 2013 WL 3970172, at *6–7.
Because the district court's denial of Piercy's request to sequester Alvarez constitutes an abuse of discretion, the State needs to show that there is no reasonable probability that the outcome of Piercy's trial was affected by the error. The State asserts that the outcome of the trial would not have been different because during Alvarez' cross-examination, Piercy's attorney was able to solicit testimony that Alvarez had been prepped for his testimony prior to trial by reviewing the preliminary hearing transcript and the recordings of the drug sales and by speaking with law enforcement officers who were involved in the case. The State also argues that the evidence was overwhelming against Piercy.
The State is correct that there was no reasonable probability that the outcome of the trial was affected by the error. Even during the State's direct examination of Alvarez, his memory was questionable. He struggled to distinguish between the drug sale that occurred on November 2 and 3 and those that occurred on December 2. The State had to redirect Alvarez in order for him to clarify which sale he was testifying about. Moreover, Alvarez admitted on the stand that he had refreshed his memory by listening to the recordings and speaking with the officers that were involved with the drug purchases.
Furthermore, the jury had access to the recordings of the drug purchases and the testimony from the law enforcement officers regarding the events that occurred on December 2, 2009, which would have lessened the importance of Alvarez' recollections.
All of this contrasts with the charges related to November 2 and 3, upon which the jury acquitted. The task force had lost track of Alvarez during his trip to Dodge City with Piercy, and much of Alvarez' testimony about those crimes was uncorroborated. The jury was apparently unwilling to rely on Alvarez' testimony alone.
Piercy relies on State v. Brinklow, 288 Kan. 39, 43, 200 P.3d 1225 (2009), but in that case a mother simply “adopted ... by reference” the testimony of her daughter, which our Supreme Court thought was a “direct example of one witness tailoring his or her testimony to that of another witness.” Here, in contrast, Alvarez gave his own narration of the events and was cross-examined regarding the basis for his testimony. In Brinklow, the child was also the only witness to the crimes, and the mother's role was to testify whether the child's complaint at the time was the same as her testimony at trial. See 288 Kan. at 40–43. In Piercy's case, there were several witnesses to the crimes, and also recordings of the transactions. Therefore, even though the district court erred in denying sequestration, we conclude the error was harmless.
The district court did not err in giving two identical jury instructions for the December 2 sale of methamphetamine charges without designating which instruction applied to which sale.
Piercy contends that the district court clearly erred when it gave the jury two identical jury instructions for the charges of sale of methamphetamine that occurred on December 2, 2009. He argues that the district court should have clarified which jury instruction applied to which set of facts—the Sinclair gas station sale or the movie theater sale. Because it failed to do so, Piercy asserts that the jury could have convicted him on both charges using only one set of facts.
“ ‘For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).’ [Citation omitted.]” State v. Smyser, 297 Kan. 199, 203–04, 299 P.3d 309 (2013).
A party cannot claim error for the district court's giving or failing to give a jury instruction unless (1) the party objects before the jury retires, stating distinctly the matter to which the party objects and the grounds for the objection; or (2) the instruction or the failure to give the instruction is clearly erroneous. 297 Kan. at 204. The appellate court uses a two-step process in determining whether the challenged instruction was clearly erroneous: (1) the court must determine whether there was any error at all by considering whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record; (2) if the court finds error, it must assess whether it is firmly convinced that the jury would have reached a different verdict without the error. 297 Kan. at 204. “Reversibility is subject to unlimited review and is based on the entire record.” The party claiming error in the instructions has the burden to prove the degree of prejudice necessary for reversal. State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014).
It should first be clarified that Piercy was charged for the sales of methamphetamine that occurred on December 2, 2009, in two separate cases. The two cases were tried together in front of the same jury. What is unclear is which set of facts and evidence were to be applied to which jury instruction. The two jury instructions read as follows:
The first sale of methamphetamine instruction:
“In count 2 the defendant is charged with the crime of unlawfully selling Methamphetamine. The defendant pleads not guilty.
“To establish this charge, each of the following must be proved:
1. That the defendant sold or delivered Methamphetamine;
2. That the defendant did so intentionally; and
3. That this act occurred on or about the 2nd day of December, 2009, in Seward County, Kansas.”
The second sale of methamphetamine instruction:
“In count 3 the defendant is charged with a second count of the crime of unlawfully selling Methamphetamine on December 2, 2009. The defendant pleads not guilty.
“To establish this charge, each of the following must be proved:
1. That the defendant sold or delivered Methamphetamine;
2. That the defendant did so intentionally; and
3. That this act occurred on or about the 2nd day of December, 2009, in Seward County, Kansas.”
It appears that the two jury instructions were legally appropriate to give to the jury. Piercy was charged with two separate instances of selling methamphetamine on December 2, 2009, which was indicated within the second jury instruction, so giving two separate instructions on the elements of the sale of methamphetamine would be required. The district court could have clarified the instructions to indicate which set of facts went with which instruction, but that does not appear to be a requirement and Piercy provides nothing in his brief to suggest that it was a requirement for the district court to make such a clarification.
Furthermore, there was sufficient evidence presented at trial to support both jury instructions. Alvarez testified about both drug transactions in great detail; Agent Finley also testified to what he saw and heard during both drug transactions on December 2, 2009; Officer Jared Wagenseller, who was also involved in the task force, testified to what he saw and heard during both drug transactions; and Rader testified to what she observed during the movie theater transaction, indicating that Piercy handed Alvarez the methamphetamine and Alvarez handed Piercy the money. However, she was not in the vehicle during the second transaction. Moreover, although not in the record, it is clear that the audio recordings from the December 2, 2009, drug transactions were admitted at trial.
Finally, both parties made it clear in closing statements that there were two separate transactions on December 2. The State informed the jury that it must “decide each sale on its own from the facts that occurred at that sale,” further referring to the sale “earlier on December 2nd, 2009, and then later on December 2nd, 2009.” Likewise, defense counsel specifically referred to the “theater case” and the “gas station case” on December 2. We find nothing to indicate that the jury would have been confused by the instructions and viewed them as both referring to the same event.
Even though the district court could have clarified which jury instruction went with which set of facts, there was no error in failing to do so. The instructions themselves were legally appropriate, and there was sufficient evidence to support both instructions on both of the charges for sale of methamphetamine.
The district court did not err in excluding questions on cross-examination about the confidential informant's habitual drug use.
During Alvarez' cross-examination, Piercy's attorney attempted to ask Alvarez about his history of drug use. The State objected that the question was outside the scope of direct examination and was irrelevant. The district court sustained the State's objection on relevancy grounds. Piercy's attorney argued that his line of questioning was going to call into question Alvarez' unreliable memory. Piercy contends that the district court erred when it refused to allow him to question Alvarez about his past history of drug use.
When discussing the admissibility of evidence, there are multiple steps to consider. First, a court must determine whether the evidence is relevant. Generally speaking, all relevant evidence is admissible. K.S.A. 60–407(f). K.S.A. 60–401(b) defines relevant evidence as “evidence having any tendency in reason to prove any material fact.” This definition encompasses two elements: a materiality element and a probative element. Standards of review for each element vary.
Evidence is material when the fact it supports is in dispute or at issue in the case. State v. Lowrance, 298 Kan. 274, 289, 312 P.3d 328 (2013). Review for materiality is de novo. State v. Ultreras, 296 Kan. 828, 857, 295 P.3d 1020 (2013). Evidence is probative if it has a logical tendency to prove any material fact. Lowrance, 298 Kan. at 289. An appellate court reviews the district court's assessment of the probative value of evidence under an abuse of discretion standard. State v. Huddleston, 298 Kan. 941, 959–60, 318 P.3d 140 (2014).
After relevance is determined, an appellate court must then decide which rules of evidence or other legal principles apply. Then the particular rule or legal principle is to be applied, and this court's review depends on which rule or legal principle was applied by the district court. State v. Reed, 300 Kan. –––, 332 P.3d 172, 183 (2014). Furthermore, our Supreme Court stated, “If constitutional rights are not implicated, the propriety and scope of cross-examination lies within the trial judge's discretion and is reviewed on appeal for an abuse of discretion. [Citations omitted.]” 332 P.3d at 184.
We pause to note that Piercy also raised this issue in his appeal of case number 10 CR 97, but our court determined that he failed to provide an adequate proffer of the evidence in order to preserve the issue for appeal. Piercy, 2013 WL 3970172, at *5–6. Thus, before relevance can be discussed it should be determined whether Piercy properly preserved this issue for appeal through an adequate proffer of the evidence he wanted admitted at trial. A proper proffer of the substance of the evidence sought to be admitted is required for an appellate court to be in a position to review a challenge to its exclusion. See K.S.A. 60–405; State v. Evans, 275 Kan. 95, 99–100, 62 P.3d 220 (2003).
As our court stated in Piercy's appeal of case number 10 CR 97, “In seeking to cross-examine Alvarez on this topic, Piercy's counsel broadly asserted his own belief that (1) Alvarez had used illegal drugs for a long time, and (2) this long-term use had affected Alvarez' memory.” Piercy, 2013 WL 3970172, at *5.
Piercy asserts that his proffer at trial was adequate to properly preserve the issue for appeal. Essentially, he argues that a proffer need not be a formal proclamation nor be elicited through a question and answer scenario in order for the judge to be apprised of the information to be solicited from the witness.
Under K.S.A. 60–405:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers.”
At trial, when attempting to make his proffer, Piercy's attorney only asserted that Alvarez' possible long-term drug use was what caused his poor memory. There does not appear to be any proffer as to how long Alvarez has used drugs or whether that long-term use affected his memory. The only proffer given was Piercy's attorney's speculation that Alvarez would admit to long-term drug use and that it had affected his memory.
While a “formal offer of proof in question and answer form is not required,” counsel still has to make “known the substance of the expected evidence.” National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, Syl. ¶ 14, 225 P.3d 707 (2010). Piercy's attorney failed to provide a factual basis for his claim that Alvarez used drugs for a long period of time. Furthermore, even if Alvarez was a habitual drug user, Piercy failed to provide any basis that such long-term drug use impaired Alvarez' memory. Moreover, Piercy's attorney failed to indicate that Alvarez or any other witness would testify to such facts. “Without a proffer of an excluded witness' testimony, an appellate court is not in a position to review the decision of the trial judge on relevance.” Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, Syl. ¶ 5, 274 P.3d 609 (2012).
While it is true that a witness' use of illegal drugs may be relevant “to the extent that it shows the witness' mind, memory, or powers of observation were affected by the habit,” State v. Osby, 246 Kan. 621, Syl. ¶ 2, 793 P.2d 243 (1990), Piercy's attorney's assertion that Alvarez' long-term drug use affected his memory was mere speculation. Thus, Piercy has failed to show error in the limitation of Alvarez' cross-examination.
But even if it was error for the district court to exclude the evidence, the erroneous exclusion of evidence is subject to review for harmless error under K.S.A.2013 Supp. 60–261. Factors an appellate court can consider in reviewing the erroneous exclusion of evidence for harmless error include: “[T]he importance of the witness' testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the case.” Ultreras, 296 Kan. 828, Syl. ¶ 11.
The jury witnessed firsthand Alvarez' poor memory recall during the State's direct examination of Alvarez when he struggled to distinguish between the drug sale that occurred on November 2 and 3 and those that occurred on December 2. The State had to redirect Alvarez in order for him to clarify which sale he was testifying about. Moreover, Alvarez admitted on the stand that he had refreshed his memory by listening to the recordings and speaking with the officers that were involved with the drug purchases. Agent Finley indicated that the day before trial he had reviewed the preliminary hearing transcript and audio recordings with Alvarez. Frequently during cross-examination, defense counsel was required to further refresh Alvarez' memory through reference to the preliminary hearing transcript. In addition, when asked whether he was in the courtroom when other witnesses were testifying, Alvarez indicated he was but that it was hard to hear the testimony of witnesses where he was sitting in the back of the courtroom.
Moreover, the evidence presented regarding the drug transactions was not limited to Alvarez' testimony. Although Alvarez testified about both drug transactions in great detail, Agent Finley also testified to what he saw and heard during both drug transactions on December 2, 2009. In addition, Officer Wagenseller, who was also involved in the task force, testified to what he saw and heard during both drug transactions; and Rader testified to what she observed during the movie theater transaction, indicating that Piercy handed Alvarez the methamphetamine and Alvarez handed Piercy the money. However, she was not in the vehicle during the second transaction. Finally, although not included in the record on appeal, it is clear that the audio recordings from the December 2, 2009, drug transactions were admitted at trial.
Piercy failed to provide an adequate proffer of the evidence at trial; thus, the district court's exclusion of the evidence did not constitute error. However, even if the district court did err when it excluded the evidence, the error was harmless because the jury observed Alvarez' poor memory recall during both direct and cross-examination and could easily infer he used drugs. Piercy sought to establish that Alvaraz had a bad memory. He clearly did so, and the reason his memory was bad would not have made a difference in this case.
Cumulative error at trial did not deprive Piercy of a fair trial .
Piercy contends that the alleged errors that occurred at his trial, combined, deprived him of a fair trial, thus, requiring the reversal of his convictions.
“Cumulative trial errors, when considered collectively, may have so great an impact on the trial as to require a defendant's convictions to be reversed. The test is whether the errors substantially prejudiced the defendant and denied the defendant a fair trial under the totality of the circumstances. [Citation omitted.] And if any of the errors being aggregated are constitutional in nature, their cumulative effect must be harmless beyond a reasonable doubt.” State v. Santos–Vega, 299 Kan. 11, 27–28, 321 P.3d 1 (2014).
The court will find no cumulative error when the record fails to support the errors defendant raises on appeal. State v. Hilt, 299 Kan. 176, 200, 322 P.3d 367 (2014). A single error cannot constitute cumulative error. State v. Haberlein, 296 Kan. 195, 212, 290 P.3d 640 (2012), cert. denied 134 S.Ct. 148 (2013).
While it was error for the district court to deny Piercy's request to sequester Alvarez based solely on the public nature of trials, that was only one error. All other errors asserted by Piercy did not constitute errors. Therefore, cumulative error did not deny Piercy the right to a fair trial.
The district court did not impose an illegal sentence for Piercy's conspiracy to sell methamphetamine conviction.
Piercy argues that his 10–month sentence for his conviction of conspiracy to sell methamphetamine is illegal and should be reduced to 9 months under K.S.A. 21–3302(d).
Whether a sentence is illegal within the meaning of K.S.A. 22–3504 is a question of law over which the appellate court has unlimited review. State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). In addition, Piercy's argument requires this court to interpret K.S.A. 21–3302(d). Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Ardry, 295 Kan. 733, 735, 286 P.3d 207 (2012).
K.S.A. 21–3302(d) states the following: “Conspiracy to commit a felony which prescribes a sentence on the drug grid shall reduce the prison term prescribed in the drug grid block for an underlying or completed crime by six months.”
The presumptive sentence range for Piercy's conspiracy to sell methamphetamine is 14 to 16 months. The district court applied K.S.A. 21–3302(d) and reduced the presumptive sentence range down to 8 to 10 months. The district court then imposed the aggravated sentence of 10 months. Piercy contends that K.S.A. 21–3302(d) required the district court to only sentence him to the standard sentence of 9 months because K.S.A. 21–3302(d) refers to a “prescribed prison term ” rather than multiple terms within the presumptive sentence range.
In State v. McCallum, 21 Kan.App.2d 40, 43, 895 P.2d 1258, rev. denied 258 Kan. 862 (1995), our court generally stated that K.S.A.1993 Supp. 21–3302(d) reduces the presumptive sentence range by 6 months. Thus, the reduced sentence range becomes the presumptive sentence range. In McCallum, the presumptive sentence range before the application of K.S.A.1993 Supp. 21–3302(d) was 23 to 26 months. After applying K.S.A.1993 Supp. 21–3302(d), the new presumptive sentence range was 17 to 20 months. 21 Kan.App.2d at 43; see also State v. Hernandez, 24 Kan.App.2d 285, 290, 944 P.2d 188, rev. denied 263 Kan. 888 (1997) (court generally stated that after application of K.S.A. 21–3302(d) (Furse 1995) the presumptive sentence range was 8 to 10 months). Thus, it appears that our court has applied K.S.A. 21–3302(d) to the entire sentence range rather than to just the mid-block sentence.
Piercy fails to provide any caselaw to support his position, and it seems more logical to determine that K.S.A. 21–3302(d) applies to the entire presumptive sentence range rather than to just the mid-block sentence. Therefore, Piercy's sentence is a presumptive sentence and under K.S.A. 21–4721(c)(1), appellate courts lack jurisdiction to review challenges to presumptive sentences. State v. Sprung, 294 Kan. 300, 317, 277 P.3d 1100 (2012).
The district court was not required to submit Piercy's criminal history to a jury prior to sentencing.
Piercy contends that the district court erred when it relied on his criminal history to elevate his sentence without requiring the State to prove his criminal history to a jury beyond a reasonable doubt. Piercy concedes that this issue has been adversely decided against him in State v. Ivory, 273 Kan. 44, 45–48, 41 P.3d 781 (2002), but wishes to preserve the issue for federal review.
Because this issue is a question of law, this court exercises unlimited review. See Ivory, 273 Kan. at 46. In Ivory, our Supreme Court analyzed the interplay between Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and the use of a defendant's prior criminal history both by considering a case decided before Apprendi and by researching decisions from other states and federal courts. 273 Kan. at 45–47. After considering these, the court decided that Apprendi's mandate that facts other than prior convictions must be submitted to a jury and proved beyond a reasonable doubt does not apply to a defendant's criminal history score. 273 Kan. at 46–47. Additionally, the court declined to treat prior convictions as essential elements that require a jury's decision. 273 Kan. at 47.
This court is obligated to follow our Supreme Court's precedent unless it is departing from a prior position; as recently as September 2014, our court found that “[t]here is no indication that the Kansas Supreme Court is departing from its holding in Ivory.” State v. Marshall, 50 Kan.App.2d, 334 P.3d 866, 875–76 (2014). Therefore, Ivory applies, and the use of Piercy's criminal history score in sentencing does not violate Apprendi.
The district court did not err in aggregating pre–1993 Kansas misdemeanor battery convictions as a person felony for determining Piercy's criminal history score.
In scoring criminal history under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq. , distinctions are made between person and nonperson crimes, with person crimes generally being weighted more heavily than nonperson crimes. State v. Murdock, 299 Kan. 312, 314, 323 P.3d 846 (2014). K.S.A. 21–4711(a) requires that “[e]very three prior adult convictions ... of class A and class B person misdemeanors in the offender's criminal history ... shall be rated as one adult conviction ... of a person felony for criminal history purposes.” (Emphasis added.)
Because the statute did not specifically designate the crime of battery as a person misdemeanor in 1992, Piercy argues that his three misdemeanor battery convictions were improperly designated person misdemeanors and aggregated into one person felony, thus increasing his criminal history category from an E to a C.
Whether a sentence is illegal within the meaning of K.S.A. 22–3504 is a question of law over which the appellate court has unlimited review. Trotter, 296 Kan. at 902. K.S.A. 22–3504(1) provides that a court may correct an illegal sentence at any time.
The presentence investigation accepted by the court and agreed to by the parties indicated that Piercy had separate in-state battery convictions in April 1992 and May 1992, under K.S.A. 21–3412 (Ensley 1988), and in August 2000, under K.S.A.2000 Supp. 21–3412. All were aggregated as person misdemeanors and converted to one person felony for criminal history purposes. We pause to note that it appears two of the convictions, one in 1992 and the one in 2000, may have been municipal convictions, but they are still listed as violations of K.S.A. 21–3412 (Ensley 1988) and K.S.A.2000 Supp. 21–3412. Piercy does not challenge the comparability of municipal offenses, and our Supreme Court has held that municipal ordinance violations are treated the same as comparable misdemeanors in determining criminal history classification. See State v. Vega–Fuentes, 264 Kan. 10, 14–15, 955 P.2d 1235 (1998). Piercy does challenge the classification of both of his 1992 convictions as person misdemeanors, since the statute did not designate them as such in 1992.
Piercy is correct that the 1992 version of K.S.A. 21–3412 did not specifically designate it as a person misdemeanor. In April and May 1992, K.S.A. 21–3412 (Ensley 1988) defined battery as “the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner. Battery is a class B misdemeanor.” By August 2000, after the adoption of the KSGA, the same statute defined battery as “(1) [i]ntentionally or recklessly causing bodily harm to another person; or (2) intentionally causing physical contact with another person when done in a rude, insulting or angry manner.” K.S.A.2000 Supp. 21–3412(a). Battery was defined as a class B person misdemeanor. K.S.A.2000 Supp. 21–3412(b). In sum, although the 2000 conviction was clearly a “person” misdemeanor, no such specific designation was given in 1992.
Piercy relies on Murdock, 299 Kan. 312, to argue that his sentence was illegal because his two pre-KSGA misdemeanor convictions should have been scored as nonperson misdemeanors. Relying on K.S.A. 21–4711(e) the Murdock court held that pre–1993 (or pre-KSGA) out-of-state convictions should be scored as nonperson offenses. Moreover, the court opined that “[w]e recognize this rule results in the classification of all pre–1993 crimes as nonperson felonies.” 299 Kan. at 319. Likewise, Piercy contends that all pre–1993 misdemeanors should be classified as nonperson misdemeanors.
First, we must note that after briefing in this case, our Supreme Court amended its opinion in Murdock, stating:
“This court orders a modification to the sentence on page 9 of the slip opinion that states: ‘We recognize this rule results in the classification of all pre–1993 crimes as nonperson felonies—an outcome the State characterizes as unreasonable.’ The sentence shall be modified to read: ‘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.’ “
Based on the Supreme Court's modification of the Murdock opinion, Murdock has limited direct application to Piercy's case because Piercy's two pre–1993 convictions were in-state convictions. Murdock appears to be limited to its interpretation of K.S.A. 21–4711(e), the specific provision governing classification of out-of-state crimes. In fact, since Murdock, at least one published and one unpublished opinion of this court have pointed out Murdock's limitation to out-of-state convictions. See State v.. Dickey, 50 Kan.App.2d 468, 480, 329 P.3d 1230 (2014) (describing the holding and analysis in Murdock as “firmly tethered” to the text of K.S.A. 21–471 l [e] and thus limited to out-of-state convictions), rev. granted October 31, 2014; Baker v. State, No. 110,874, 2014 WL 5616606, at *11 (Kan.App.2014) (unpublished opinion) ( Murdock does not apply to pre–1993 in-state convictions), petition for rev. filed November 24, 2014. But this distinction is not altogether clear. Some very broad language in Murdock was left intact following the court's reconsideration. Specifically, the court discussed K.S.A. 21–4710(d)(8), which provides that “ ‘unclassified felonies and misdemeanors, shall be considered and scored as nonperson crimes for the purpose of determining criminal history.’ “ 299 Kan. at 318. The court opined that this section simply referred to the “very limited number of current criminal statutes that do not categorize the crimes as person or nonperson offenses” and gave examples. 299 Kan. at 318–19. It went on to conclude that it was “unlikely the legislature intended that K.S.A. 21–4710(d)(8) govern all pre–1993 convictions.” 299 Kan. at 319. But the court decided that “there is no statutory mechanism [in place] to draw a distinction between the current guidelines sentencing statutes and the pre–1993 criminal statutes.” 299 Kan. at 319. Thus, the court ruled that under K.S.A. 21–4710(d)(8) “Murdock's two prior out-of-state convictions must be scored as nonperson offenses.” 299 Kan. at 319. In his dissent, which was joined by Justices Luckert and Moritz, Justice Rosen pointed out the logical extension of the majority's reasoning, that “all in-state convictions prior to 1993, regardless of how violent or heinous, appear to be subject to the same outcome.” 299 Kan. at 319.
Moreover, the Murdock majority specifically overruled “all Court of Appeals decisions applying the rule recited by the Court of Appeals panel in this case.” 299 Kan. at 319. At the time the Court of Appeals decided Murdock, there were no cases interpreting the classification of pre–1993 out-of-state convictions. So what did the Court of Appeals rely upon and what rule did it recite?
In the Court of Appeals decision, the panel relied on four cases, all of which involved pre–1993 in-state convictions and recited the rule that “ ‘Kansas courts have routinely classified pre–1993 offenses as either person or nonperson for criminal history purposes by comparing the offenses to current guidelines offenses.’ “ 299 Kan. at 316 (quoting State v. Murdock, No. 104,533, 2011 WL 4031550, at *2 [Kan.App.2011] (unpublished opinion), rev'd State v. Murdock, 299 Kan. 312, 323 P.3d 846 [2014] ). The Court of Appeals panel cited to Farris v. McKune, 259 Kan. 181, 185–86, 911 P.2d 177 (1996) (Department of Corrections conversion of preguidelines sentences to guidelines sentences under K.S.A. 21–4724[c][1] ); State v. Davis, 22 Kan.App.2d 776, 777, 922 P.2d 453 (pre–1993 misdemeanor conviction properly designated as person misdemeanor), rev. denied 260 Kan. 997 (1996); State v. Boster, No. 101,009, 2009 WL 3738490, at *4 (Kan.App.2009) (unpublished opinion) (pre–1993 in-state misdemeanor and felony convictions properly designated as person offenses), rev. denied 290 Kan. 1096 (2010); State v. Henderson, No. 100,371, 2009 WL 2948657, at *3 (Kan.App.2009) (unpublished opinion) (in-state pre–1993 juvenile adjudication properly designated as person felony), rev. denied 290 Kan. 1099 (2010). The Supreme Court found that Farris was wholly inapplicable, so we are left with Henderson, Boster, and Davis as the cases relied on by the Court of Appeals and arguably overruled by the Supreme Court—all pre–1993 in—state conviction cases. See Murdock, 299 Kan. at 317.
Although not relied on by the Court of Appeals because they were issued after its decision in Murdock, the Supreme Court also cited to State v. Mitchell, No. 104,833, 2012 WL 1649831, at *7 (Kan.App.2012) (unpublished opinion) (pre–1993 Colorado conviction for arson properly classified as person felony), which was subsequently reversed by Supreme Court Order dated November 17, 2014, after the Murdock decision was filed and in reliance on Murdock, 299 Kan. at 319; and State v. Mims, No. 103,044, 2011 WL 4563068, at *5–6 (Kan.App.2011) (unpublished opinion) (pre–1993 Kansas convictions properly classified as person felonies), rev. denied 294 Kan. 946 (2012). See Murdock, 299 Kan. at 316. And finally, we pause to note a recent Court of Appeals case that was not cited by either court but denied review by the Supreme Court, State v. Smith, No. 107,447, 2013 WL 1688924, at *2–3 (Kan.App.) (unpublished opinion) (pre–1993 Kansas convictions properly classified as person felonies and listing cases that have consistently held that pre–1993 convictions may be classified as person felonies for criminal history purposes), rev. denied 298 Kan. –––– (October 17, 2013).
Accordingly, it is unclear which decisions the Supreme Court intended to overrule. Are the pre–1993 in-state conviction cases overruled, even though Murdock was specifically limited by the court to classification of pre–1993 out-of-state convictions? Only Mitchell involved a pre–1993 out-of-state conviction and the Supreme Court did reverse it subsequent to Murdock. So whether the court intends to extend its rationale in Murdock to pre–1993 in-state convictions remains unresolved. Such an extension seems inevitable, as pointed out by the Murdock dissenters. Although of no consequence to our decision, we note that Westlaw lists Murdock as overruling not only Mitchell, but Mims, Henderson, and Boster as well.
If we assume, as other panels of this court have, that the Kansas Supreme Court has not specifically overruled existing caselaw involving the designation of pre–1993 in-state convictions as person offenses, we must compare the language of the current battery statute to the language of the battery statute that existed at the time of the crime. See State v. Williams, 291 Kan. 554, Syl. ¶ 4, 244 P.3d 667 (2010) (comparable offense to be determined as of the date the prior crime was committed). A review of the crime of battery in 1992 and in 2000 shows nearly identical offenses. Any violation of the 1992 version of the statute would have also been a violation of the 2000 version. The 2000 version was actually broader, allowing a conviction for reckless conduct as well as intentional conduct. Because the offenses are the same, we find no error in the court classifying the 1992 offenses as person misdemeanors. But we do not need to rest our decision solely on this assumption.
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). In 1969, when the Kansas Criminal Code was adopted, the legislature set out a very specific statutory outline. See L.1969, ch. 180. Crimes listed under Article 34 of the Code were designated as “ Crimes against persons.” L.1969, ch. 180. Battery, 21–3412, was listed under Article 34. Accordingly, the legislature's intent was clear. Battery was designated as a person crime. That designation has remained in place since 1969 and was simply further codified with the adoption of the KSGA in 1993. Accordingly, in the case of battery under K.S.A. 21–3412, it is clear that the legislature has always classified it as a person crime.
Piercy's convictions and sentences are affirmed.