Opinion
No. 108,878.
2013-09-13
STATE of Kansas, Appellee, v. Terrell A. TODD, Appellant.
Appeal from Lyon District Court; Merlin G. Wheeler, Judge. W. Irving Shaw, of Emporia, for appellant. Meghan K. Morgan, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Lyon District Court; Merlin G. Wheeler, Judge.
W. Irving Shaw, of Emporia, for appellant. Meghan K. Morgan, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Terrell A. Todd appeals in this criminal case. He complains of multiplicitous sentences and the district court's order that he register under the Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. We affirm the appeal in part and dismiss in part.
Factual and Procedural Background
On July 13, 2010, the State filed a 15–count complaint/information against Todd. Count 1 charged that on July 9, 2010, Todd committed an aggravated burglary of the residence at 420 Neosho Street (Neosho St. burglary) with the intent to commit aggravated robbery. In Count 13, Todd was also charged with conspiracy to commit the Neosho St. burglary.
Count 2 alleged that on the same day, July 9, 2010, Todd committed another aggravated burglary at a different residence located at 801 W. 7th Avenue (7th Ave.burglary) with the intent to commit aggravated robbery. In Count 14, Todd was also charged with conspiracy to commit the 7th Ave. burglary.
The remaining counts in the charging document alleged various crimes connected with the two aggravated burglaries—four counts of aggravated robbery, two counts of aggravated assault, three counts of criminal damage to property, one count of criminal threat, and one count of kidnapping. Counts 3–8 alleged in one form or another that Todd had committed these crimes with a knife.
Detective Dennis Delmott prepared an affidavit in support of the charges. The affidavit alleged that three intruders broke into the Neosho Street residence “armed with a baseball bat, a golf club and a knife believed to be a ‘butterfly’ style knife.” The affidavit identified Todd as one of the intruders. One victim in the residence, Allen Luthi, was alleged to have said “the [intruders] shared the three weapons.” Another victim, Christine Newman, was alleged to have said an intruder other than Todd demanded money from her, that he had “a knife with him ... and he stuck it in the ceiling of her bedroom,” and that she then handed over the money.
With regard to the residence located on 7th Avenue, the affidavit alleged that three intruders broke into the home. Todd was again involved, but as described in the affidavit, one of the intruders was different than in the Neosho St. burglary. The affidavit suggested an intruder other than Todd held a knife to the throat of the victim in that residence, Sandra Burton. The affidavit also stated that one of the intruders, again not Todd, admitted “they all usually carry knives with them.”
On August 25, 2010, a preliminary hearing was held. Officer James Pritchard with the Emporia Police Department, testified regarding the Neosho St. burglary that Allen Luthi, Newman's son, had said “all three [intruders] shared the weapons and he described the weapons ... as being a golf club, a metal baseball bat, and a two-handled knife.” Detective Delmott testified that Newman said a white male carried a baseball bat and a black male carried a golf club. Todd was the only black male among the intruders.
As described by Newman, the three intruders carried specific weapons, and there was no mention of sharing the weapons. Newman testified several times that the black intruder held the golf club. She said another intruder smacked a baseball bat against his hand in a threatening manner when she did not follow orders. She also testified that the third intruder “was getting a little irate and had a knife out the whole time, ... poked a hole in the ceiling and proceeded to ask me where this stuff is, the coins and the money and stuff.” Luthi, an eighth grader, also testified regarding the Neosho St. burglary. He said the three intruders had “[a] baseball bat, some kind of knife, and a golf club.” When asked “do you know which ones had specific weapons,” he replied, “They changed weapons.”
Burton, the victim in the 7th Ave. burglary, testified that one of the white intruders had “a metal rod,” and that intruder held a knife to her throat. The evidence indicated this intruder was Wyatt Huber. Burton testified the black intruder had no weapon.
Detective Mark Schondelmaier testified to his interview with Huber. Huber “admitted to holding a golf club” during the crimes. Huber said with respect to the 7th Ave. burglary, however, that he “was holding the golf club handle at that point” because after the Neosho St. burglary the golf club was broken.
In arguments, Todd's counsel emphasized that while Counts 3–8 alleged the use of a knife, there was no evidence to show Todd's personal use of that weapon. The district court rejected the argument:
“He participated in the conspiracy. He was present. Co-conspirators are responsible under the Kansas Criminal Code for all completed acts of the conspiracy. So if Mr. Huber has committed a crime, being aggravated assault that was part of the conspiracy, the natural flows [ sic ] from that conspiracy, Mr. Todd would also be liable from that even though he did not in the case of Ms. Burton hold the knife to her throat. So he's bound over for all counts as well.”
About 1 month later, on September 30, 2010, Todd signed a “Tender of Plea of No Contest.” The document memorialized the plea agreement that Todd would plead no contest to Counts 1 and 2, the two aggravated burglary charges, and to Counts 13 and 14, the two conspiracy to commit aggravated burglary charges. In exchange, the State agreed to dismiss the remaining counts in the charging document. Todd's counsel attached a certificate stating he had “made no promises to [Todd] concerning any sentence the Court may make.”
At the hearing on Todd's pleas, the district court established that Todd had no questions about the charges or the potential sentences. The district court specifically asked: “Do you understand that because you're having a plea to more than one count, the Court does have within certain limitations, the power to run or order consecutive sentences?” Todd said he understood. Todd's counsel recounted the terms of the plea agreement, adding, “[T]here's no agreement as to sentencing.” The prosecutor affirmed this representation.
The State proffered the affidavit and the preliminary hearing transcript as containing the factual basis for the pleas. The district court accepted Todd's no contest pleas and found him guilty of Counts 1 and 2 (aggravated burglary) and Counts 13 and 14 (conspiracy to commit aggravated burglary). The presentence investigation report showed a criminal history score of D, and Todd moved for dispositional and durational sentencing departures.
On November 12, 2010, Todd appeared for sentencing. While the State conceded that Todd “doesn't have a significant history,” it still maintained “he does have a consistent one and he's been through various supervisions as well as a juvenile ... placement .” As a result, the State opposed any sentencing departure, although it did “not oppose the Court running Count 1 and Count 13 concurrently or running Count 2 and Count 14 concurrently, but we would ask that Count 1 and 13 be consecutive to Count 2 and 14.”
The district judge denied the motion for departure, stating in part:
“I am fully aware of your record, Mr. Todd. I was the trial judge that dealt with you on a number of the matters which you have accumulated on your record. And as memory serves, basically you exhausted every type of supervision level or programming that we could offer to you before you committed these offenses. And with that in mind, it tells me, very simply, you have been made aware of the consequences of criminal behavior. You've been offered the programming necessary to straighten your life out and make sure you're a responsible citizen in the community and you voluntarily chose not to do so.”
The district court imposed the standard prison sentence for each count, ordered them to run consecutively, and reduced the sum to twice the controlling sentence, for a total sentence of 104 months. The district court also found that both aggravated burglaries occurred with a deadly weapon. The district court added, “[W]hile admittedly the object that was involved may be considered as having legitimate recreational pursuits, [ sic ] [i]n the mariner in which it was wielded in this case, it was in fact a deadly weapon, although it was not a firearm.” As a result, the district court ordered Todd to register as an offender under KORA.
The district court then informed Todd: “Now, when you entered your plea in this case, you waived the right to appeal any trial errors that may have occurred. You did not, however, waive the right to appeal the sentence.” A few days after sentencing, Todd filed a “Waiver of Appeal Rights,” signed by him and his counsel, which stated in part:
“1. My lawyer has counseled and advised me on my appeal rights.
“2. ... If I entered a plea ... I have the right to appeal any sentencing errors. I understand that that right may be very limited if I was sentenced [within] the presumptive range.”
Todd's counsel did not file an appeal.
More than 1 1/2 years after sentencing, on July 12, 2012, Todd filed a pro se notice of appeal from sentencing and “all previous rulings, orders, and all issues relating thereto” and a motion for appointment of counsel. Todd's current counsel entered his appearance and promptly moved to appeal out of time due to a claimed misunderstanding between Todd and his former counsel.
On October 10, 2012, the district court held a hearing on the motion. Todd's counsel assured the district court that his client wished to only appeal the sentences. The district court granted the motion to appeal out of time, “[w]ith it being clarified that the only appeal sought is of the sentence that was imposed and that there is no attempt whatsoever to set aside the plea or ... to challenge the conviction resulting from the plea.”
On November 14, 2012, Todd docketed this appeal with our court. Among other issues, Todd identified: “Were the sentences [multiplicitous]?” Todd did not identify a multiplicity issue related to his convictions.
Multiplicity
Consistent with his prior representations to the district court and our court, Todd captions his first issue: “Imposing Consecutive Sentences Subjected Defendant To [Multiplicitous] Sentences.” Nevertheless, Todd asks us to exercise unlimited review over the “issue of whether convictions are [multiplicitous].” He argues “[t]he conspiracy to commit aggravated robbery, the planning stage, merged into the event of the aggravated burglary, the culmination stage” in both incidents. He also argues his “convictions of two counts of conspiracy to commit aggravated robbery were [multiplicitous]. There was only one agreement whose object was to get money.” We conclude from this briefing that Todd is actually challenging the multiplicity of his convictions, not his sentences. “The question of whether convictions are multiplicitous is a question of law subject to unlimited review.” State v. Hood, 297 Kan. ––––, Syl. ¶ 2, 300 P.3d 1083 (2013).
We question our jurisdiction to review whether the convictions that resulted from Todd's pleas are multiplicitous. K.S.A.2012 Supp. 22–3602(a) provides: “No appeal shall be taken by the defendant from a judgment of conviction before a district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60–1507.” Given Kansas law, the district court's admonition to Todd, his own written waiver below, and his current counsel's assurance to the district court, we only have jurisdiction over Todd's sentences, not his convictions. Todd pled no contest to four crimes, and he was convicted of four crimes. His sentence for each crime was discrete, and imposed only for that particular crime. Because the underlying convictions are not subject to attack, we cannot conclude the resulting sentences are multiplicitous. Of note, Todd does not challenge the district court's discretion to run the sentences consecutively.
There is a second procedural bar to our review of Todd's claim of multiplicity. Only recently, our Supreme Court wrote:
“Multiplicity is the charging of a single offense in several counts of a complaint or information. Appellate courts do not permit multiplicity because it creates the potential for multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.” Hood, 297 Kan. ––––, Syl. ¶ 1.
Assuming we had jurisdiction over Todd's convictions, by pleading no contest, Todd waived “all nonjurisdictional defects, including a claim of double jeopardy.” See State v. Edwards, 281 Kan. 1334, 1341, 135 P.3d 1251 (2006); see also State v. Scott, 24 Kan.App.2d 480, Syl. ¶ 1, 947 P.2d 466 (1997) (no contest plea waives double jeopardy) aff'd in part and rev'd in part265 Kan. 1, 961 P.2d 667 (1998); In re Habeas Corpus Application of Coulter, 18 Kan.App.2d 795, Syl. ¶¶ 1, 4, 860 P.2d 51 (1993) (same).
This waiver is based on K.S.A.2010 Supp. 22–3208(4), which provides: “A plea of guilty ... shall constitute a waiver of defenses and objections based upon the institution of the prosecution or defects in the complaint, information or indictment other than it fails to show jurisdiction in the court or to charge a crime.” Moreover, caselaw interpreting this statute has expressly applied it to situations wherein a defendant pleads no contest. Coulter, 18 Kan.App.2d 795, Syl. ¶ 1 (“Like a guilty plea, entry of a nolo contendere plea results in the accused waiving all formal defects which are nonjurisdictional.”).
Because we do not have jurisdiction to review whether Todd's convictions are multiplicitous, and, assuming we did have jurisdiction, Todd has waived his double jeopardy rights, we do not reach the merits of Todd's arguments. This issue is dismissed.
KORA Registration
Todd challenges the district court's order that he register as an offender under KORA. Todd argues that “[d]espite the sentencing court's statement about the way the golf club was wielded, there was no evidence in either the affidavit or the preliminary hearing that the golf club was used or even raised by anyone.”
To the extent this question involves the district court's findings of fact, we review for substantial competent evidence. See State v. Chambers, 36 Kan.App.2d 228, 239, 138 P.3d 405,rev. denied 282 Kan. 792 (2006). To the extent we must interpret KORA, our review is unlimited. See State v. Wilson, 295 Kan. 605, 627, 289 P.3d 1082 (2012).
Todd was ordered to register under K.S.A.2010 Supp. 22–4902(a)(7), which applied to “any person who, on or after July 1, 2006, is convicted of any person felony and the court makes a finding on the record that a deadly weapon was used in the commission of such person felony.” Todd was convicted of a person felony after July 1, 2006, so the issue is whether “a deadly weapon was used in the commission of such person felony.”
“K.S.A. 22–4902(a)(7) speaks in passive voice” and “focuses on the act itself (the use of a deadly weapon) without considering whether the actor personally used the weapon.” State v. Nambo, 295 Kan. 1, 4, 281 P.3d 525 (2012). Thus “there is no express requirement that the weapon be used personally by the defendant.” 295 Kan. at 4, So long as a deadly weapon was used in the commission of a person felony, the registration requirement applies even to “unarmed accomplices.” 295 Kan. at 4, 6–7.
The items used in the present case were a knife, a baseball bat, and a golf club, all carried by one or another intruder into at least one of the residences. In making its finding, the district court referred to an item that could be used either recreationally or as a deadly weapon, but this characterization could apply to any of the three items. See State v. Beard, 273 Kan. 789, 803, 46 P .3d 1185 (2002) (“a hammer may be considered just as deadly when used as a weapon as a pipe, baseball bat, knife, or gun”). Moreover, to be “used” within the meaning of K.S.A.2010 Supp. 22–4902(a)(7) “requires the deliberate utilization (active employment) either directly, indirectly, or in some manner using a weapon that results in a change of circumstances of the crime being committed, such as facilitating commission of the offense.” State v. Dinneen, 48 Kan.App.2d 692, Syl. ¶ 4, 297 P.3d 1185 (2013).
Because the knife, the baseball bat, and the golf club were all used to facilitate the Neosho St. burglary, and the knife was used (at a minimum) to facilitate the 7th Ave. burglary, the district court did not err in ordering Todd to register as an offender under KORA.
Affirmed in part and dismissed in part.