Opinion
110,008.
10-17-2014
STATE of Kansas, Appellee, v. Jeremy J. WILLIAMS, Appellant.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Boyd K. Ishenvood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Heather Cessna, of Kansas Appellate Defender Office, for appellant.
Boyd K. Ishenvood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., McANANY, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
The State charged Jeremy J. Williams with aggravated escape from custody in the present case and a probation violation in a prior case. The charges arose after the district court in the prior case had sent him to a residential community corrections facility and then he absconded. Williams filed a motion in this case to dismiss in which he argued he had suffered a violation of his rights to be present at all critical stages which resulted in a violation of his rights to a speedy trial. The district court denied the motion. Williams appeals raising essentially the same arguments he raised in the district court that his counsel continued proceedings in the court several times without his consent.
We conclude the district court correctly ruled there was no speedy trial violation and Williams had essentially acquiesced in the continuances. In a second issue on appeal, Williams alleges the court erred under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it used his criminal history to enhance his sentence without requiring that history be submitted to a jury and proved beyond a reasonable doubt. Since prior Supreme Court precedent has decided that issue contrary to that argument, the district court again ruled correctly. We affirm on both of Williams' issues.
Facts
On February 23, 2012, the State charged Williams with aggravated escape from custody after he left the Sedgwick County Residential Facility without permission and his whereabouts were unknown for nearly a month. Williams was on probation following a conviction for a felony offender registration violation. Consequently, the State also charged Williams in that case with a probation violation.
On April 19, 2012, Williams appeared with Mark Orr from the public defender's office and waived his right to a preliminary hearing and formal arraignment. Williams pled not guilty, and the district court set the case for a jury trial on June 4, 2012. Monique Centeno, who had represented Williams in the prior case, continued to represent him in the present case. The court docket record shows that the court granted defendant a continuance of the trial on June 4, 2012; June 25, 2012; July 2, 2012; August 6, 2012; September 10, 2012; October 9, 2012; October 22, 2012; October 29, 2012; November 13, 2012; and November 26, 2012.
On December 10, 2012, Williams filed a pro se motion to dismiss based on violation of his statutory and constitutional rights to a speedy trial. Williams argues he was not present and did not acquiesce or agree to any of the continuances of the trial date.
On December 19, 2012, Williams filed a pro se motion to dismiss Centeno based on her continuing of the court dates without Williams' presence, knowledge, or consent and Centeno also refused to act upon any motion that he filed or requested. The district court set a hearing on the motion for January 4, 2013. On January 2, 2013, Centeno filed a motion for discovery of a copy of a videotape that was mentioned in the incident report.
On January 7, 2013, at Williams' request, the district court entered an order continuing his jury trial to February 4, 2013. On that date, the court also denied Williams' request for appointment of new counsel finding no basis to justify replacement of Centeno.
On January 25, 2013, Williams filed another pro se motion to dismiss Centeno. He reasserted his claims that she had continued the court proceedings on 10 different dates without his presence, knowledge, or consent and thus violated his speedy trial rights. Following a hearing on February 1, 2013, the district court found there had been a sufficient breakdown in communication to warrant new counsel. It granted Williams' request and appointed Gary Owens to the case. The court also ordered Williams' case to be continued on the jury trial docket to March 4, 2013, for Owens to have time to prepare, with the possibility of additional time added later if needed.
On February 11, 2013, Williams filed another motion to dismiss for a violation of his speedy trial rights again raising the same complaints about Centeno and adding that he was specifically not present at the hearings on a motion in limine on November 25, 2012, and a motion to endorse on January 4, 2013. Williams attached an affidavit stating Centeno had continued his trial without his presence, a written motion, or his approval. He claimed he did not want any continuances and he would have objected had he been asked. He also stated Centeno denied his right to be present at his probation violation hearing in the prior case and he was being coerced into a plea in the present case.
On March 4, 2013, Williams appeared with Owens for trial. He was advised of his right to trial by jury, and he knowingly and voluntarily waived that right. Also, the district court granted Williams request for a continuance of the bench trial to March 7, 2013, before a different judge.
On March 7, 2013, the district court conducted a bench trial on both the probation violation in the prior case and the charge in the present case. The court found Williams guilty of the probation violation but withheld a ruling on the aggravated escape charge until an evidentiary hearing could be held on the most recent motion to dismiss. That motion, filed by Owens, alleged Williams had suffered a violation of his statutory speedy trial rights—227 days had passed—and a constitutional and statutory right to be present during the requests for continuance at critical stages of litigation.
At an evidentiary hearing on April 16, 2013, the district court heard testimony from both Centeno and Williams relative to the points raised in the motion to dismiss.
Centeno testified as to her conversations with Williams regarding the continuances. She had previously represented Williams in the underlying offender registration case. Her first meeting with Williams in the present case occurred on April 11, 2012. They discussed the reasons Williams left the residential facility and the possibility of negotiating a plea in hopes of avoiding a prison sentence. Centeno communicated a plea offer for probation to the prosecution because of the allegedly legitimate reasons Williams had left the residential facility. Although Centeno was Williams' attorney, Orr from the public defender's office appeared with Williams at the preliminary hearing on April 19, 2012, where Williams waived the preliminary hearing and formal arraignment. Centeno testified the next meeting she had with Williams was on June 1, 2012. They discussed strategy since the State had rejected theirplea offer. Centeno stated their goal was still to secure a plea agreement that included probation and she was continuing the case to further that goal.
Centeno and Williams next met on July 10, 2012, and discussed the case and the reasons why the State could still possibly offer to recommend probation. Centeno testified Williams expressed no dissatisfaction that the case was being continued and negotiations were ongoing. They met on July 11, 2012, to discuss potential new charges for burglary, arson, and criminal threat alleged by Williams' girlfriend. Centeno stated Williams was upset the State had not yet made a written plea offer.
Centeno and Williams met on August 7, 2012. They discussed how the letters Williams had written to Centeno contradicted what they had discussed in their last face-to-face meeting. Centeno wrote Williams a letter on August 13, 2012, discussing the case, the probation violation hearing, possible jury trial date, and the progress on the plea negotiations. Centeno testified she was trying to keep the probation violation hearing on track with the aggravated escape jury trial to keep the possibility of a plea agreement viable. Centeno testified that the first time they discussed Williams' speedy trial rights was on September 10, 2012.
On September 17, 2012, Centeno received a letter from Williams discussing the violation of his speedy trial rights, the State's withholding of information, and how he was not physically present at the hearings on the motions for continuance. They next met on September 18, 2012, and discussed speedy trial, continuances, jury trial, sentencing, and the probation violation. Williams still wanted to think about his options. Centeno said Williams still wanted to negotiate a plea. Centeno stated they finally received a plea offer from the State on November 8, 2012. The plea did not include any kind of departure sentence, but the State agreed not to file any charges involving the allegations by Williams' girlfriend. Centeno discussed the plea with Williams on November 9, 2012, and he indicated he wanted to think about it. They met again on November 19, 2012, and Centeno told Williams he needed to make up his mind about the plea or she would call the case for trial. Williams was indecisive. He refused to meet with Centeno on November 28, 2012. Centeno sent Williams correspondence on December 11 and 24, 2012.
The trial was set for January 7, 2013, and Centeno prepared for trial on that date. However, Williams had filed his motion to dismiss and motion to dismiss counsel in December 2012. On January 7, 2013, Williams asked for and received a continuance. Centeno was dismissed as counsel on February 1, 2013. She testified that up until the motion to dismiss her as counsel in December, Williams had never expressed any desire not to continue the case in furtherance of the effort to negotiate a plea.
Williams also testified about the strategy to try to obtain a favorable plea agreement or proceed to trial. However, he testified he was unaware of the continuances requested by Centeno and only learned about them after the fact. He testified he wanted to go to trial and his speedy trial rights had been violated. In his motion to dismiss, Williams claimed he did not want any continuances and he would have objected had he been asked. Williams testified that the first time he communicated to the court about his speedy trial rights was in his motion to dismiss in December 2012.
After the hearing, the district court denied the motion to dismiss based upon a speedy trial violation and found Williams guilty of aggravated escape from custody. It also concluded Centeno had acted appropriately in her representation of Williams and she had used a strategy that would meet Williams' desires even though those desires and hopes seemed to alter and sometimes exceed any reasonable expectations. The court found no prejudice “in this matter at all.” It then ordered Williams to serve a presumptive sentence of 16 months' incarceration.
Right to Speedy Trial and to be Present at Critical Stages
The parties agree on our standards of review. Whether Williams was denied his right to a speedy trial presents a legal question requiring unlimited review on appeal. See State v. Davis, 277 Kan. 309, 330, 85 P.3d 1164 (2004). Similarly, Williams' claim of deprivation of his statutory and constitutional right to be present during a critical stage of the proceedings also presents legal questions that this court reviews de novo on appeal. See State v. Engelhardt, 280 Kan. 113, 121, 119 P.3d 1148 (2005).
We first address Williams' statutory speedy trial rights and conclude that no violation occurred. K.S.A. 22–3402(1) provides:
“(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 90 days after such person's arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court [for competency proceedings].” (Emphasis added.)
In State v. Montes–Mata, 292 Kan. 367, Syl. ¶ 2, 253 P.3d 354 (2011), the court interpreted the “solely by reason thereof language in K.S.A. 22–3402 by reaffirming that “[a] defendant who is not being held ‘solely by reason’ of the pending charges is not entitled to the protections of the 90–day time limit for bringing a defendant to trial under K.S.A 22–3402.”
It is undisputed that Williams was being held at the same time for both the probation violation in the prior case and the aggravated escape from custody charges in this case. Therefore, Williams did not suffer a violation of his statutory speedy trial rights under K.S.A. 22–3402. See State v. Montes–Mata, 41 Kan.App.2d 1078, 1081, 208 P.3d 770 (2009) (“A defendant is not being held solely on the pending charges if separate criminal charges are pending against the defendant or the defendant is being held for a parole or probation violation.” [citing State v. Noriega, 261 Kan. 440, 458–59, 932 P.2d 940 (1997), overruled in part on other grounds by State v. Montes–Mata, State v. Mathenia, 262 Kan. 890, Syl. ¶¶ 2–3, 942 P.2d 624 (1997) ] ), aff'd Montes–Mata, 292 Kan. 367, 253 P.3d 354 ; State v. Hill, 257 Kan. 774, 778, 895 P.2d 1238 (1995) ; State v. Strong, 8 Kan.App.2d 589, 591–93, 596, 663 P.2d 668, rev. denied233 Kan. 1093 (1983). Consequently, under these circumstances it makes no difference who requested the various continuances or for what reason when determining whether a violation of the defendant's statutory speedy trial rights occurred.
That next brings us to the question of whether a violation occurred of Williams' speedy trial rights under the Fifth and Sixth Amendments to the United States Constitution. In United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the United States Supreme Court recognized that a relationship existed between the requirements of due process and inordinate preaccusation delay. In State v. Royal, 217 Kan. 197, 201, 535 P.2d 413 (1975), the Kansas Supreme Court explained this relationship:
“The Marion case rests on the proposition that due process rights may be said to have been denied by reason of preaccusation delay, where it is shown that actual prejudice resulted to the defendant in his ability to conduct his defense and that the government intentionally delayed prosecution to gain a tactical advantage over him.”
See State v. Clopton, 30 Kan.App.2d 1208, 1210–11, 57 P.3d 21 (2002).
Williams left the residential facility on January 20, 2012. The State charged him with aggravated escape from custody on February 23, 2012. Officers captured Williams on March 21, 2012, and his arraignment occurred on April 19, 2012. Williams makes the same arguments in his analysis of the Fifth Amendment as he does in his analysis of the Sixth Amendment speedy trial right. Under these undisputed facts, it is clear that Williams has not and cannot establish an inordinate preaccusation delay, let alone how that delay prejudiced his case, his defense, or how the State gained a tactical advantage.
Nevertheless, Williams argues the numerous continuances of hearings on motions after he was charged where he did not appear violated his right to be present at critical stages of the proceedings and ultimately violated his right to a speedy trial.
Before we further discuss constitutional speedy trial rights, we note that it is clear under K.S.A. 22–3405(1) and the confrontation and due process provisions of the United States Constitution, a defendant in a felony case has both a statutory and constitutional right to be present at all “ ‘critical stages' “ of a prosecution. State v. Herbel, 296 Kan. 1101, 1109, 299 P.3d 292 (2013) (quoting State v. Bell, 266 Kan. 896, 919–20, 975 P.2d 239, cert. denied 528 U.S. 905 [1999] ). In determining whether a particular phase of a criminal proceeding is a critical stage, Our Supreme Court has examined “whether the defendant's presence is essential to a fair and just determination of a substantial issue.” State v. Edwards, 264 Kan. 177, 197, 955 P.2d 1276 (1998). In addition, a criminal defendant in the Kansas courts has a statutory right to be present at and participate in a hearing on any motion. K . S.A.2013 Supp. 22–3208(7).
In returning to the discussion of speedy trial rights, we first note that Williams points us to the case of Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which sets forth four factors to examine in determining whether a defendant has established a violation of his or her Sixth Amendment right to a speedy trial: the length of the delay, the reason for it, the assertion of the right to speedy trial by defendant, and prejudice. Williams argues an examination of these factors in his case establishes that a violation occurred which requires dismissal. He specifically contends that a 215–day delay occurred for which Centeno was solely responsible since he was not present at many hearings and he would have objected to continuances had he been present. He claims prejudice because he was incarcerated the entire time, the continuances caused him significant anxiety resulting in firing Centeno because of a breakdown in communication, and he was forced to have a bench trial so the district court would consider his motion to dismiss for speedy trial violations. In a major leap of speculation, Williams contends that if he had been present at the hearings, perhaps his communication with Centeno would not have broken down and he would have potentially worked out a plea deal or he may have gone to trial with different counsel resulting in a significantly different outcome in the case.
We are not convinced the Barker factors weigh in favor of Williams. Williams' claim of a 215–day delay is extensive, but it certainly is not presumptively prejudicial. See State v. Goss, 245 Kan. 189, 777 P.2d 781 (1989) (“The length of delay herein—a little over a year between arrest and trial—is not clearly presumptively prejudicial as enunciated by Barker v. Wingo, and hence there is no necessity for inquiry into the other factors that go into the balancing test.”). Even if we delve into the other factors, however, we conclude, as did the district court, that the reasons for the delay in this case were the continuances granted to the defense by virtue of Williams' consultation with his attorney and/or acquiescence in the delay. This finding by the district court is consistent with the timing of Williams' assertion of the right to a speedy trial. Williams did not mention any speedy trial complaint to Centeno until September 10, 2012. He did not allege any speedy trial complaints to the district court until December 19, 2012, when he filed his pro se motion. This was several weeks after Centeno and Williams had received the State's plea offer and Williams had indicated he wanted to think about it. Apparently, Williams did not get the plea offer he desired and consequently he claimed his speedy trial rights had been violated because of the many continuances Centeno requested in furtherance of the attempts to secure a plea. Last, we, like the district court, are not convinced Williams has demonstrated any prejudice in the prosecution of his case or presentation of his defense by the continuances granted by the district court in his absence.
Furthermore, the district court's finding that Williams had acquiesced in Centeno's requests for continuances in furtherance of the strategy to obtain a plea is supported by Centeno's testimony at the motion to dismiss hearing which we have mentioned in setting out the relevant facts earlier in this opinion. As a result, we find no prejudicial violation of Williams' right to be present at all stages and motions during the pendency of this case.
Criminal History and Sentencing
For his second issue on appeal, Williams argues the district court violated his rights as outlined in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147, ––– L.Ed.2d –––– L, Ed.2d 435 (2000), by not submitting his criminal history to a jury for determination beyond a reasonable doubt prior to sentencing. Because our Supreme Court has previously rejected this argument in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), and we are obligated to follow Supreme Court precedent, the claim fails.
Affirmed.?