Opinion
No. 106,621.
2013-03-22
STATE of Kansas, Appellee, v. Robert Lee TAYLOR, Jr., Appellant.
Appeal from Sedgwick District Court; David J. Kaufman, judge. Opinion filed March 22, 2013. Affirmed in part and dismissed in part. Carl F.A. Maughan and Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; David J. Kaufman, judge. Opinion filed March 22, 2013. Affirmed in part and dismissed in part.
Carl F.A. Maughan and Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Standridge, P.J., Atcheson, J., and Daniel L. Hebert, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Robert Lee Taylor, Jr., was convicted by a jury of criminal restraint and battery and sentenced to 6 months imprisonment on each count, running concurrently. On appeal, Taylor claims the district court erred in imposing the maximum sentence for his battery conviction and in conducting a colloquy at the State's request regarding his intention to testify.
Facts
Taylor was charged with aggravated assault, aggravated battery, and criminal restraint for physically abusing his girlfriend at her home on March 7, 2009.
At the jury trial, before the defense presented its only witness and out of the presence of the jury, the State requested the district court address Taylor in open court on the record regarding Taylor's decision not to testify at trial. The district court judge asked defense counsel if he had any objections to making such a record, to which defense counsel stated, “No.”
A record of the colloquy between the court and Taylor regarding his decision not to testify at trial is included in the record on appeal. After Taylor informed the court that he may not have been provided an adequate opportunity to fully consult with his attorney about his decision not to testify, the district court provided Taylor and his counsel time to discuss it. When the parties returned, the district court again asked Taylor if he had been provided with an adequate opportunity to fully consult with his attorney about whether to testify, and Taylor said yes. The district court next confirmed with Taylor that his decision was to not testify. The court asked if Taylor understood that if he testified, the State could ask about everything he testified about, and Taylor said yes. The district court also told Taylor that if he testified, his other pending cases could not be discussed, after which the court asked Taylor if he understood that, to which Taylor replied yes. Finally, the district court asked Taylor again if he did not want to testify, and Taylor confirmed his decision to not testify.
The jury ultimately convicted Taylor of criminal restraint and battery. On October 6, 2010, the district court sentenced Taylor to 6–month prison sentences on each count, to run concurrently with each other and concurrently with his sentences in two other cases (07 CR 3574 and 08 CR 537).
Taylor's counsel timely filed a notice of appeal from the “sentence imposed herein” on October 8, 2010. Taylor then filed an untimely pro se notice of appeal on October 29, 2010, to appeal “all objection made towards any evidence, admitted against the defendant[,] ... credibility of all witnesses who testified against the defendant[,] ... and all other appealable issues.”
Analysis
On appeal, Taylor claims the district court erred in imposing the maximum sentence for his battery conviction. He also claims that the district court erred in conducting a colloquy at the State's request regarding Taylor's intention to testify.
I. The court did not err in imposing the maximum sentence
Taylor argues the fact that he was acquitted of the more serious charges of aggravated assault and aggravated battery necessarily means that the district court erred in imposing the maximum sentence for his battery conviction. We disagree. A. Taylor's sentencing challenge is moot
The State contends Taylor's challenge to his battery sentence is moot because reducing or vacating the sentence would have no impact on his incarceration in light of his concurrent criminal restraint sentence.
An appellate court generally does not decide moot questions or render advisory opinions. State v. Torres, 293 Kan. 790, 792, 268 P.3d 1197 (2012). “An appeal will not be dismissed for mootness, unless it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties' rights. [Citation omitted.]” McAlister v. City of Fairway, 289 Kan. 391, 400, 212 P.3d 184 (2009); accord State v. Johnson, 39 Kan.App.2d 438, 442, 180 P.3d 1084,rev. denied 286 Kan. 1183 (2008).
“Mootness is not a question of jurisdiction, and the courts have routinely acknowledged two exceptions to the rule. First, where a judgment is not enforceable only because of lapse of time or other changed circumstances and where dismissal of an issue will adversely affect rights vital to one of the parties, a court may address the issue. [Citation omitted.] Second, where an issue, although moot, is capable of repetition and raises concerns of public importance, a court may address the issue. [Citation omitted .]” State v. DuMars, 37 Kan.App.2d 600, 605, 154 P.3d 1120,rev. denied 284 Kan. 948 (2007).
Public importance means something more than that certain members of the general public are interested in the decision of the appeal from motives of curiosity or because it may bear upon their individual rights or serve as a guide for their future conduct. State v. Montgomery, 295 Kan. 837, 841, 286 P.3d 866 (2012).
In this case, the district court sentenced Taylor to concurrent 6–month sentences for his criminal restraint and battery convictions. The district court also ran these sentences concurrently with the sentences in Taylor's two other unrelated cases. Although Taylor is challenging these two unrelated concurrent sentences in separate appeals, he does not challenge his criminal restraint sentence in this appeal. Therefore, the only judgment that could be entered—reducing or vacating Taylor's 6–month battery sentence—would be ineffectual for any purpose because Taylor would still have to serve his 6–month criminal restraint sentence. For that same reason, Taylor's rights would not be affected by this court's declining to address this claim. Because neither of the two exceptions to the mootness rule apply here (there are no changed circumstances and the issue does not raise concerns of public importance), the question of whether the district court erred in imposing the maximum sentence for Taylor's battery conviction is moot. B. Even if not moot the court did not abuse its discretion
Battery is a class B person misdemeanor, the sentence for which K . S.A. 21–4502(l)(b) provides “shall not exceed six months.” K.S.A. 21–3412(b). Criminal restraint is a class A person misdemeanor. K.S .A. 21–3424(c). The sentence for criminal restraint “shall not exceed one year.” K.S.A. 21–4502(1)(a).
Nonguidelines sentences are reviewed under the pre-Kansas Sentencing Guidelines Act standards. A sentence imposed within the statutory guidelines will be upheld on appeal if it is within the trial court's discretion and not a result of partiality, prejudice, oppression, or corrupt motive. An abuse of discretion will only be found when a reviewing court determines that no reasonable person would agree with the trial court's decision. State v. McCloud, 257 Kan. 1, 9, 891 P.2d 324,cert. denied516 U.S. 837 (1995). The party asserting the trial court abused its discretion bears the burden of showing such abuse of discretion. State v. McCullough, 293 Kan. 970, 996, 270 P.3d 1142(2012).
Here, Taylor does not claim that his sentence was a result of partiality, prejudice, oppression, or corrupt motive. Instead, he asserts that the district court abused its discretion in imposing the maximum sentence because the jury did not convict him of the greater charged offense, aggravated battery.
As the State points out, however, the fact that Taylor was not convicted of the greater offense does not change the fact that he was convicted by a jury of battery for physically abusing his girlfriend and, therefore, was subject to any sentence allowed by statute for that crime. Notably, Taylor's criminal history score at the time of sentencing was A. Such a score shows that Taylor is a repeat offender and, combined with the violent nature of his present crime of conviction, is a fact from which one can infer that Taylor posed a threat to public safety.
In addition, we find significant the fact that the sentencing judge was also the trial judge in this case. Having heard all the evidence against Taylor and personally observed the testifying witnesses, the judge necessarily was aware of the evidence justifying the maximum sentence for battery. That evidence included the testimony of a police officer reporting that there were marks on Taylor's girlfriend's body consistent with her claim that Taylor hit, kicked, and stomped on her as well as slammed the door on and bit her arm while she fought against being dragged through the front door inside her house.
In sum, Taylor has not met his burden to show that the district court abused its discretion in imposing the maximum 6–month sentence for his battery conviction. There is no evidence to suggest the sentence was the result of partiality, prejudice, oppression, or corrupt motive. Taylor's contention that he deserves a lesser sentence simply because he was acquitted of the aggravated battery charge is without merit. His criminal history score and conviction for battery are sufficient to support the maximum sentence under K.S .A. 21–3412(b), and there is ample evidence in the record to justify imposing the maximum sentence, so it cannot be said that no reasonable person would agree with the trial court's decision.
II. This court does not have jurisdiction to consider Taylor's second claim of error
As his second claim of error, Taylor argues the district court erred when it questioned him in open court about his decision not to testify. He claims that this colloquy, which occurred at the State's request, violated his Fifth Amendment right to remain silent, intruded on his protected Sixth Amendment attorney-client relationship, and deprived him of the constitutional right to present his theory of defense.
Before we can consider the merits of Taylor's argument, however, Taylor needs to overcome a jurisdictional hurdle: his pro se notice of appeal setting forth his claim that the court's colloquy violated his constitutional rights was not timely filed. Taylor disagrees, arguing in his brief that this court has jurisdiction to hear the issue because his subsequent pro se notice of appeal simply supplemented his counsel's prior timely filing of a notice of appeal regarding sentencing, which had the effect of perfecting the appeal.
The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. State v. Garza, 295 Kan. 326, Syl. ¶ 1, 286 P.3d 554 (2012). The requirements for a notice of appeal appear in K.S.A. 60–2103(b), which states that the notice of appeal “shall designate the judgment or part thereof appealed from.” Supreme Court Rule 2.02 (2011 Kan. Ct. R. Annot. 10) also requires the party to “designate the judgment or part thereof appealed from.” Therefore, an appellate court only obtains jurisdiction over the rulings identified in the notice of appeal. State v. Huff, 278 Kan. 214, 217, 92 P.3d 604 (2004). Where the notice of appeal fails to specify the judgment appealed from, the appeal should be dismissed. Gates v. Goodyear, 37 Kan.App.2d 623, 628, 155 P.3d 1196,rev. denied 284 Kan. 945 (2007).
In addition to proper identification of the judgment, the filing of a timely notice of appeal is also jurisdictional. If an appeal is not taken within the statutory mandated 10–day (now 14 days) period fixed by K.S.A. 22–3608, it must be dismissed.
In this case, Taylor was sentenced on October 6, 2010. His counsel filed a timely notice of appeal “from the sentence imposed herein” on October 8, 2010. Although this first notice of appeal was timely, it was limited to appealing Taylor's sentence and did not mention or refer in any way to an appeal from the alleged unconstitutional colloquy. Nor did it include the kind of “catch-all” language that has been found to bestow jurisdiction over a claim not specified in the notice of appeal, such as “ ‘from each and every order or ruling entered against the appellant’ “ or “ ‘from all underlying adverse rulings.’ “ See Goodyear, 37 Kan.App.2d at 627. Taylor implicitly recognized that the October 8, 2010, appeal was limited to appealing only his sentence because on October 29, 2010—23 days after the district court filed its journal entry of sentencing—Taylor filed a pro se notice of appeal from several evidentiary issues and “all other appealable issues.”
In State v. Grant, 19 Kan.App.2d 686, 688–89, 875 P.2d 986,rev. denied 255 Kan. 1005 (1994), the defendant made an argument similar to the one Taylor makes here: the rules of civil procedure permitted his untimely amended notice of appeal to relate back to the date of the original notice of appeal. The court in Grant, however, concluded that a notice of appeal from a district court does not constitute a “pleading” within the meaning of the civil procedure statute on relation back. 19 Kan.App.2d at 691. The court found that “[a]llowing a defendant to amend his [or her] timely filed notice of appeal at any time clearly defeats the purpose of K.S.A.1993 Supp. 60–2103(b), which requires a party to state the grounds upon which his [or her] appeal is based at the time the appeal is taken.” 19 Kan.App.2d at 691. The Grant court ultimately held that the defendant's amended notice of appeal could not be considered because it was filed outside the time for an appeal to be taken, stating:
“Under the relevant Kansas statutes, case law, and Supreme Court Rules, an appellant is bound by the issues raised in the notice of appeal and cannot amend this notice after the time for an appeal has run simply because counsel or the appellant conclude that the scope of the original notice is too narrow to reach additional appealable issues.” 19 Kan.App.2d at 691.
Under Grant, then, Taylor's supplemental notice of appeal does not relate back to the date of the original notice of appeal and, therefore, was untimely. As such, we do not have jurisdiction to consider the underlying merits of the claim.
Affirmed in part and dismissed in part.
* * *
ATCHESON, J., concurring in part and dissenting in part.
I join in the opinion of the court on the sentencing issue Defendant Robert Lee Taylor, Jr., has asserted. Based on the panel decision in State v. Collins, No. 106,405, 2012 WL 4372996, at *2–3 (Kan.App.2012) (unpublished opinion), I would find the initial notice of appeal embraced Taylor's second issue regarding the district judge's colloquy with him regarding his decision not to testify. So I would reach the merits, but I see no reversible error on that point.
The decision to testify or not belongs to a criminal defendant personally, although he or she may and should consult with counsel. It is not, however, a call counsel may make for the client. See State v. McKinney, 221 Kan. 691, 694–95, 561 P.2d 432 (1977). The Kansas Supreme Court has strongly discouraged trial judges, on their own initiative, from questioning a criminal defendant on the record regarding the basis for his or her decision on testifying. Taylor v. State, 252 Kan. 98, Syl. ¶ 5, 843 P.2d 682 (1992). The decision and the inquiry implicate a defendant's rights under the Fifth and Sixth Amendments to the United States Constitution. It follows that a trial judge should not make such an inquiry at the request of the State, as happened here. I offer no particular comment on defense counsel choosing to make a record on his or her client's decision on testifying, since that situation is not before us.
Here, Taylor's counsel indicated his client would not testify, as the majority notes. The State asked the trial judge to make a record, and Taylor's counsel stated he had no objection. Part way through the discussion, Taylor asked to talk with his lawyer. The trial judge recessed so Taylor and his lawyer could speak privately. After they did so, the trial judge continued the inquiry, explaining legal implications of testifying and not testifying. Taylor ultimately stated he would not testify in his own defense, confirming what his lawyer had initially noted.
Assuming for argument that the trial judge's inquiry here was not merely a disfavored practice and, indeed, amounted to error, Taylor has not shown on appeal how he was prejudiced. Taylor apparently maintained the position that he favored all along—that he would not testify. On appeal, he does not argue that but for the district judge's inquiry he would have testified. And he does not then make the next necessary argument that the outcome at trial might have been different had he testified. Whatever error there may have been here was both invited and harmless. Taylor, therefore, is entitled to no relief on the merits, and I would affirm.