author: HUSKEY, Judge

text:
    STATE of Idaho, Plaintiff-Respondent, v. Jayson L. WOODS, Defendant-Appellant.
    Docket No. 45094
    Court of Appeals of Idaho.
    Opinion Filed: May 2, 2019 Petition for Review Denied July 31, 2019
    Eric D. Fredericksen, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant.
    Hon. Lawrence G. Wasden, Attorney General; Theodore S. Tollefson, Deputy Attorney General, Boise, for respondent.
   HUSKEY, Judge

A jury found Jayson L. Woods guilty of first degree murder, robbery, conspiracy to commit robbery, and accepting the earnings of a prostitute. On appeal, Woods argues the district court erred in allowing testimony of the witness who downloaded evidence from Woods's cell phone via two-way Skype video in violation of the Confrontation Clause. Woods also argues his convictions of conspiracy to commit robbery and first degree murder constitute double jeopardy amounting to fundamental error. For the reasons provided below, we affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Woods was charged with first degree murder, conspiracy to commit robbery, robbery, and accepting the earnings of a prostitute. Woods pled not guilty and went to trial. The facts presented at trial by various testimony were as follows. Under Woods's direction, three men, Kelly Schneider, Daniel Henkel, and Kevin Tracy, and one woman, Abigail Williams, posted escort advertisements online. Initially, sexual services were performed for money; Woods coordinated and organized the activity. After some time, an additional scheme developed. If anyone responded to the advertisements, the plan was to steal any money found without providing any sexual services.

On the night of the murder, Woods drove the group around while they waited for someone to respond to one of the advertisements. The victim (Victim) eventually responded to Schneider's advertisements, and Woods instructed Schneider to respond. Schneider responded, asking Victim to meet at a nearby store. Woods dropped Schneider off at the store. Shortly after being dropped off, Schneider returned to Woods's car, explaining that he had taken Victim's money without performing any sexual act. Schneider then gave Woods the money, which Woods divided between himself and Schneider.

Woods continued to drive the group around until Victim texted Schneider again, requesting to meet. Woods instructed Schneider to reply that he would meet Victim. Woods then drove Henkel and Tracy to a nearby lake and dropped them off, telling them to hide in the bushes in case Schneider needed help. Woods next drove Schneider to a store to meet with Victim and, at some point, Woods texted Schneider instructing him to steal Victim's car. The plan was that Victim would drive Schneider to the lake where Tracy and Henkel hid, and Schneider would take Victim's money without performing any sexual acts.

As Henkel and Tracy waited in the bushes, Tracy texted with Woods. Tracy texted Woods that Henkel would use a pipe to get Victim out of his car if needed. Woods responded, "Good. Do what you have to." After half an hour, Schneider texted he was on his way to the lake. At the lake, the car pulled up, Schneider and Victim got out, there was a scuffle, and Schneider yelled for Henkel. Schneider then got on top of Victim, pushing Victim's face in the dirt with Schneider's knee in Victim's back. Victim yelled "Don't kill me" and screamed in pain as Schneider kicked Victim repeatedly. Schneider yelled for Tracy to get into Victim's car as Schneider continued to kick Victim, threw Victim's shoes, and removed Victim's clothes. After putting the clothes in the back of the car, Schneider drove off in Victim's vehicle with Tracy inside. They stopped to pick up Henkel and drove to an apartment building. The three men left the car at the apartment building and walked to a convenience store where Woods and Williams picked them up. Schneider gave Woods the money Schneider had taken from Victim, and Woods split Victim's money between himself and the passengers, excluding Henkel.

Meanwhile, Victim began banging on doors until a local resident called 911. Victim relayed the night's events to a police officer before being taken to a hospital in an ambulance. As a result of the recent attack and beating, Victim eventually went into cardiac arrest and died.

At the end of the seventh day of the eleven-day jury trial, the State requested that Berrios, a witness from Virginia, be allowed to testify via two-way Skype video in order to lay foundation for the data that was retrieved from Woods's cell phone. The State argued that Berrios's testimony via Skype rather than in-person was necessary because the data recovery was only recently returned and was only provided to Woods the previous day. The State also argued that because Woods objected to the State's previous request for a continuance, he waived any right to object to the late disclosure. Woods objected to the admission of the testimony, arguing that pursuant to Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), such testimony violated his Sixth Amendment right to confront the witness because using Skype was not necessary to further an important public policy. First, Woods argued that objecting to a continuance does not automatically waive a right to object. Next, Woods pointed out that the State had the phone for nine months prior to the request for video conferencing and had plenty of time to resolve any issues. Finally, Woods speculated that the reason the State did not fly the witness to Idaho was due to a financial reason and that reason was insufficient to ignore the requirements of the Confrontation Clause of face-to-face confrontation and cross-examination. The State responded that the right to confront is not absolute, the witness was purely foundational, and the State did its due diligence to attempt to get the information as promptly as possible so therefore the court should allow the witness to testify via Skype. At the hearing, the State provided no information about the cost or the practical logistics of getting the witness to Idaho to testify in person, nor did it agree that the absence of the witness was due to a financial burden.

The district court granted the request, stating it had done its own research and found that although Idaho had addressed the issue in regard to a one-way video where a young victim testified while screened from the alleged perpetrator of a sexual assault, Idaho has not yet addressed the precise issue in this case. In reaching its decision, the district court stated:

I have considered the costs and the time limits of flying somebody from Quantico, Virginia here to Idaho just to identify the process of getting into the phone that they were able to do it and sent a package of results, although not totally printed out, back to Idaho where those results were printed in a usable form in Idaho by the witness that has testified. I think that those are considerations that have been allowed in other cases.

Following the trial, the jury found Woods guilty of first degree murder, conspiracy to commit robbery, robbery, and accepting the earnings of a prostitute. At the State's recommendation, the district court merged the robbery charge with the first degree murder charge and sentenced Woods on the remaining three charges. Woods timely appeals.

II.

ANALYSIS

A. Any Error in Admitting Berrios's Testimony Was Harmless

On appeal, Woods contends two-way video testimony is governed by the rule articulated in Craig, and thus the absence of physical face-to-face confrontation is only permitted when necessary to further an important public policy and where the testimony is otherwise reliable. Although Woods does not challenge the reliability or content of the testimony, he maintains that admission of the two-way, video-conferenced testimony was not necessary to further an important public policy, and therefore it violated the rule announced in Craig . Woods also argues that Idaho Criminal Rule 43.2 is unconstitutional in light of Craig.

The State argues that two-way video testimony does not require a finding of an important public policy to support its admission as is required for a one-way video conference. The State also argues that Idaho Criminal Rule 43.2 allows for such testimony to be presented via two-way video conference without a finding of necessity. However, if a showing of necessity is required, the State argues the timing of the report coupled with the physical and logistical problems of transporting the expert cross-country satisfies the necessity requirement. Alternatively, the State asserts that even if there was a constitutional violation, it was harmless. In support of its harmless error argument, the State contends that the detective testifying regarding the contents of the phone had already laid proper foundation and chain of custody. The State also contends the witness testifying via two-way video was not subject to credibility attacks, and therefore the lack of physical presence was harmless. In addition, the State argues the evidence was sufficient to convict Woods regardless of the data from his phone. Woods argues this misstates the Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) harmless error test. In this case, assuming without deciding the district court erred in admitting the testimony, this Court finds any Confrontation Clause error harmless because a review of the entire record demonstrates a rational jury would have found Woods guilty absent the error.

The harmless error test as set forth in State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010) is: where a constitutional violation occurs at trial, and is followed by a contemporaneous objection, a reversal is necessitated, unless the State proves beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Id. at 221, 245 P.3d at 973. The United States Supreme Court applied that standard in Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). There, the Court noted that like in cases in which evidence had been admitted in violation of the right to confront witnesses, the harmless error test for Fifth and Sixth Amendment violations and for instructional error "must be essentially the same: Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?" Id. The Court further explained that a reviewing court applying a harmless error test does not become in effect a second jury to determine whether the defendant is guilty. Id. at 19, 119 S.Ct. 1827. Instead, "a court, in typical appellate-court fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the [error]." Id.

In subsequent cases, the United States Supreme Court has noted that "since Chapman, the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations." United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) (citations omitted). In Hasting , the Court explained how to apply the Chapman test: "The question a reviewing court must ask is this: absent the [error], is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?" Hasting, 461 U.S. at 510-11, 103 S.Ct. 1974. The Court noted that Chapman required consideration of the entire record prior to reversing a conviction for constitutional errors that may be harmless. Id. at 509 n.7, 103 S.Ct. 1974. The Court then reviewed the evidence in the case and determined the error was harmless because based on the evidence presented to the jury, "a more compelling case of guilt is difficult to imagine." Id. at 511, 103 S.Ct. 1974.

The Idaho Supreme Court recently articulated the harmless error standard in State v. Montgomery, 163 Idaho 40, 408 P.3d 38 (2017) :

"A defendant appealing from an objected-to, non-constitutionally-based error shall have the duty to establish that such an error occurred, at which point the State shall have the burden of demonstrating that the error is harmless beyond a reasonable doubt." Perry, 150 Idaho at 222, 245 P.3d at 974. "In other words, the error is harmless if the Court finds that the result would be the same without the error." State v. Almaraz, 154 Idaho 584, 598, 301 P.3d 242, 256 (2013).

Montgomery, 163 Idaho at 46, 408 P.3d at 44.

The Idaho Supreme Court standard is the same as the harmless error analysis articulated by the United States Supreme Court. Using that standard, we find any error in this case to be harmless. We look at the entire record and the evidence produced at trial to determine whether we can find beyond a reasonable doubt that Woods would have been convicted absent his cell phone records and the testimony related to those records.

At oral argument, Woods noted that most of the facts were not contested and the main issue at trial was Woods's intent to commit the robbery. He asserts that without Berrios's testimony, Exhibits 200, 201, 202, 206, 206A, 208, and 215 would not have been admitted. Woods acknowledges that much of the information from those exhibits was admitted through other witnesses or evidence but argues there was one critical piece of evidence in Exhibit 206A. This was a text from Woods to Schneider that read, "Take if car cuz u are going to need it." Woods acknowledges that this text message was also on Schneider's cell phone, Schneider's cell phone records were admitted at trial, and there was evidence that this text came from someone named Jayson. Nonetheless, he asserts the message was much more persuasive coming from Woods's phone rather than Schneider's phone. This Court concludes that this single text message was not material to establishing Woods's intent to commit the robbery, particularly because virtually the same evidence was admitted without objection through Schneider's cell phone records. While the jury would have to infer that the "jayzon" referenced in Schneider's cell phone records was Jayson Woods, that is not so much a leap of logic or inference, but rather, a very small step that the jury was permitted to make. Additionally, Woods admitted to the detective during Woods's interview that he knew Schneider was going to rob Victim at the lake, which is far more material evidence of Woods's intent than the individual text message.

Moreover, Woods's guilt was established by the following evidence presented at trial: Woods's direct testimony at trial; evidence of Woods's interview with the detective; testimony of Henkel, Tracy, and Williams; cell phone records extracted from Tracy's phone, Williams's phone, Henkel's phone, and Schneider's phone, along with the text message logs from Victim's phone and Tracy's phone; and the timeline from Williams's phone. Collectively, the evidence shows that Woods, Schneider, Henkel, Tracy, and Williams placed advertisements for escorts on the Internet with a plan to take money without any services provided from those who responded to the advertisements. On the evening of Victim's death, Woods drove Schneider to the store to meet with Victim, which resulted in Schneider taking Victim's money. When Victim requested another meeting with Schneider, Woods, Schneider, Tracy, and Henkel decided that Woods would drive Schneider to meet with Victim a second time. Woods told Schneider to get Victim to drive to a secluded location so that Schneider could take Victim's money. Woods instructed Tracy and Henkel to hide in the bushes at that location in case Schneider needed help. Woods admitted to the detective that the plan was to rob Victim. Woods drove Tracy and Henkel to the lake to hide, and Woods knew Henkel had a pipe with him. Woods knew Henkel and Tracy hid in a remote area waiting in the bushes, assaulted Victim upon arrival, and took Victim's money by physical force.

Reviewing the record as a whole, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty even without the evidence of Woods's cell phone records, generally, or the text message, individually. The record shows beyond a reasonable doubt that the evidence gleaned from Woods's cell phone did not contribute to the jury's verdict. Therefore, the error was harmless.

B. Woods Was Not Twice Put in Jeopardy for His Conviction on Conspiracy to Commit Robbery and First Degree Murder

We next address Woods's double jeopardy argument. Woods was convicted of first degree murder, robbery, conspiracy to commit robbery, and accepting the earnings of a prostitute. The district court merged the robbery and first degree murder convictions. Woods now argues his sentences imposed for the conspiracy to commit robbery and first degree murder violate the double jeopardy clause of the Idaho Constitution because although the district court correctly recognized Woods's robbery conviction merged with the first degree murder conviction, it failed to recognize that those offenses also merged with the conspiracy to commit robbery conviction. The State responds that robbery is not a lesser-included offense of conspiracy to commit robbery and therefore not a lesser-included offense of the robbery element in a first degree murder charge. Thus, Woods was correctly sentenced on each charge.

Woods did not raise the issue of double jeopardy below. Generally, issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Idaho decisional law, however, has long allowed appellate courts to consider a claim of error to which no objection was made below if the issue presented rises to the level of fundamental error. See State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007) ; State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971). In Perry, the Idaho Supreme Court held that an appellate court should reverse an unobjected-to error when the defendant persuades the court that the alleged error: (1) violates one or more of the defendant's unwaived constitutional rights; (2) is clear or obvious without the need for reference to any additional information not contained in the appellate record; and (3) affected the outcome of the trial proceedings. Perry, 150 Idaho at 226, 245 P.3d at 978. We determine the first prong to be dispositive as set forth below.

Whether a defendant's prosecution complies with the constitutional protection against being placed in jeopardy twice is a question of law over which we exercise free review. State v. Santana, 135 Idaho 58, 63, 14 P.3d 378, 383 (Ct. App. 2000). The Double Jeopardy Clause of the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." The Clause affords a defendant three basic protections. It protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple criminal punishments for the same offense. Schiro v. Farley , 510 U.S. 222, 229, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994) ; State v. McKeeth , 136 Idaho 619, 622, 38 P.3d 1275, 1278 (Ct. App. 2001).

Woods challenges his sentences only under a state constitutional challenge. Under the Idaho Constitution, Idaho appellate courts apply the pleading theory in determining whether a charge constitutes a lesser-included offense. State v. Thompson, 101 Idaho 430, 434-35, 614 P.2d 970, 974-75 (1980). In analyzing the applicability of the pleading theory, a court must consider whether the terms of the charging document allege that both offenses arose from the same factual circumstances such that one offense was the means by which the other was committed; i.e., whether the conspiracy to commit robbery was the means by which the first degree murder was committed. Id. at 435, 614 P.2d at 975 ; see also State v. McKinney, 153 Idaho 837, 841, 291 P.3d 1036, 1040 (2013) ; State v. McCormick, 100 Idaho 111, 115, 594 P.2d 149, 153 (1979) ; State v. Anderson, 82 Idaho 293, 301, 352 P.2d 972, 976 (1960).

Woods argues that under the pleading theory, he cannot be convicted of robbery and conspiracy to commit robbery because the acts he allegedly committed in furtherance of the conspiracy to commit the robbery were the same acts by which he was alleged to have aided and abetted the robbery. Therefore, the robbery would be subsumed by and merged with the conspiracy to commit robbery. Since the robbery is the felony which underlies the murder charge, the conspiracy then likewise is subsumed by the first degree murder conviction and Woods could only be sentenced on the first degree murder conviction.

The face of the record shows that, as pled, robbery is not an included offense of the conspiracy to commit a robbery.

The charging document alleged in Count I (murder):

That the Defendant, [ ] on or about the 29th day of April, 2016, in the County of Canyon, State of Idaho, did aid, abet, assist, facilitate and/or encourage Kelly Schneider to perpetrate a robbery of [Victim], during which Kelly Schneider did kill and murder [Victim].

The charging document alleged in Count II (robbery):

That the Defendant, [ ] on or about the 29th of April, 2016, in the County of Canyon, State of Idaho, did aid, abet, assist, facilitate and/or encourage Kelly Schneider to feloniously, intentionally and by means of force or fear take from the person and/or immediate presence of [Victim] certain personal property, to-wit: cash money and/or clothing and/or a wallet with credit cards inside and/or car keys and/or a car, the property of [Victim], which was accomplished against the will of [Victim], in that Kelly Schneider choked [Victim] and or/forced [Victim] to the ground and/or kicked [Victim] and demanded and/or forcibly took [Victim]'s personal property.

The charging document alleged in Count III (conspiracy to commit robbery):

That the Defendant, [ ] on or about April 28th, 2016, though April 29th, 2016, within Canyon County, State of Idaho, and elsewhere, the Defendant, [ ] did willfully and knowingly combine or conspire with Kelly Schneider and/or Daniel Henkel and/or Kevin Tracy and/or any other person to commit the crime of robbery upon [Victim], and that in furtherance of the conspiracy and to effect the objects thereof, one or more of the conspirators did the following overt acts within Canyon County, Idaho:
1. On or about April 29th 2016, Jayson Woods drove Kelly Schneider or Daniel Henkel in a Chevy HHR to meet [Victim] at a Walmart in Nampa, Idaho.
2. On or about April 29th 2016, Jayson Woods drove Daniel Henkel and Kevin Tracy in a Chevy HHR to Gott's Point to wait for Kelly Schneider to rob [Victim] at that location.
3. On or about April 29th 2016, Daniel Henkel, armed with a pipe, waited for the arrival of Kelly Schneider with [Victim] at Gott's Point.
4. On or about April 29th 2016, Kevin Tracy also waited for the arrival of Kelly Schneider with [Victim] at Gott's Point.
5. On or about April 29th 2016, Jayson Woods returned with Kelly Schneider to a Walmart in Nampa, Idaho to meet with [Victim].
6. On or about April 29th 2016, Kelly Schneider met [Victim] at a Walmart in Nampa, Idaho.
7. On or about April 29th 2016, Kelly Schneider rode with [Victim] to the prearranged location at Gott's Point in Canyon County Idaho.
8. On or about April 29th 2016, Kelly Schneider robbed [Victim] at Gott's Point.
9. On or about April 29th 2016, Kelly Schneider drove away from Gott's Point in [Victim]'s car with Kevin Tracy and Daniel Henkel.
10. On or about April 29th 2016, Kelly Schneider, Kevin Tracy, and Daniel Henkel met back in the Chevy HHR to divide the proceeds of the robbery.
11. On or about April 29th 2016, Kelly Schneider gave Kevin Tracy twenty-five dollars from the proceeds of the robbery.
12. On or about April 29th 2016, Kelly Schneider gave Jayson Woods forty dollars from the proceeds of the robbery.

The Idaho Supreme Court addressed a similar question in State v. Sanchez-Castro, 157 Idaho 647, 339 P.3d 372 (2014), the Supreme Court held that the crimes of trafficking in methamphetamine and possession of methamphetamine did not merge into a single offense because as pleaded in the charging document:

The crime of trafficking in methamphetamine is committed when a person "knowingly delivers, or brings into this state, or [ ] is knowingly in actual or constructive possession of, twenty-eight (28) grams or more of methamphetamine or amphetamine or of any mixture or substance containing a detectable amount of methamphetamine or amphetamine." I.C. § 2732B(a)(4). Knowingly possessing a specified quantity of methamphetamine is one manner of committing the crime of trafficking. The language upon which Defendant apparently relies states that he and others conspired "to traffic in a controlled substance, by knowingly possessing methamphetamine." The words "by knowingly possessing methamphetamine" were not alleged as the means by which the Defendant and others were alleged to have committed the conspiracy. The words obviously referred to the object of the conspiracy--they conspired to traffic in a controlled substance by knowlingly [sic] possessing methamphetamine.

Sanchez-Castro, 157 Idaho at 649, 339 P.3d at 374.

Woods argues that because the acts which were the means by which he furthered the conspiracy were also the means by which he aided and abetted the robbery, the robbery is an included offense of the conspiracy to commit robbery. While it is true that many of the overt acts which were done in furtherance of the conspiracy were also acts done to aid and abet the robbery, not all the overt acts of the conspiracy were done in furtherance of the robbery.

As charged in this case, the means by which the robbery was alleged to be accomplished was when Schneider "choked [Victim] and/or forced [Victim] to the ground and/or kicked [Victim] and demanded and/or forcibly took [Victim]'s personal property." The robbery charge alleged that Woods "did aid, abet, assist, facilitate and/or encourage Kelly Schneider to" commit the robbery as accomplished above. The conspiracy to commit the robbery was alleged to have been committed by an agreement between Woods, Schneider, Henkel, and/or Tracy. The State alleged twelve acts in furtherance of the conspiracy, of which Woods participated in four. The overt acts in which Woods participated involved driving Schneider or Henkel to meet Victim at a store on two different occasions, driving Henkel and Tracy to the remote location to rob Victim, and receiving forty dollars from Schneider from the proceeds of the robbery. In looking at the facts as alleged in the elements of each offense, Woods's involvement in the conspiracy was not the means by which the robbery was accomplished. The acts of Schneider choking Victim and/or forcing Victim to the ground and/or kicking Victim and demanding and/or forcibly taking Victim's personal property are not alleged as the means by which Woods was alleged to have committed the conspiracy. Similarly, the agreement or conspire element is not alleged as the means by which the robbery was accomplished.

The charging document required that the State prove that there was an agreement between Woods and another person in order to be guilty of conspiracy to commit robbery. Based on these three charges, the conspiracy to commit robbery was not the means by which the murder was committed. Rather, it was solely the completed robbery which resulted in the murder.

Here, the robbery charge was not a lesser-included offense to the conspiracy to commit robbery charge and thus, the conspiracy to commit robbery was not the means by which the first degree murder was committed. Accordingly, Woods's convictions for conspiracy to commit robbery and first degree murder do not violate the Double Jeopardy Clause of the Idaho Constitution. Because we conclude Woods's unwaived constitutional right was not violated, and thus Woods has failed to meet the first prong of the Perry test, we need not discuss the remaining prongs.

III.

CONCLUSION

Assuming without deciding the district court erred in admitting the two-way, video-conferenced testimony, the record establishes beyond a reasonable doubt that any error did not contribute to the verdict and was therefore harmless. Additionally, under the pleading theory, robbery was not a lesser-included offense of conspiracy to commit robbery, as the robbery charge was not subsumed by and did not merge with the conspiracy to commit robbery. Therefore, the district court correctly imposed separate sentences for both the first degree murder and the conspiracy to commit robbery convictions. Accordingly, the judgments of convictions for first degree murder, conspiracy to commit robbery, and accepting the earnings of a prostitute and sentences are affirmed.

Chief Judge GRATTON and Judge LORELLO concur.

      Skype is a two-way conferencing system that facilitates video and voice conversations between computers, tablets, mobile devices, and other electronic systems.

      We will assume that the remedy would be to exclude the cell phone records and Berrios's testimony relating to those records even though the remedy for the alleged error does not necessarily require the exclusion of the documentary and testimonial evidence.

      Schneider did not testify.

      The Court is not entirely clear why Woods argues he could only be sentenced on the first degree murder conviction because if the robbery is merged into the conspiracy to commit robbery, there is no longer a predicate felony for the first degree murder conviction, as the predicate offense is a robbery, not a conspiracy charge. See I.C. § 18-4003(d)


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Derrick LAUGHLIN, Appellant.
    No. 117,156
    Supreme Court of Kansas.
    Opinion filed July 12, 2019.
    Carl Maughan, of Maughan Law Group, of Wichita, was on the brief for appellant.
    Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
   The opinion of the court was delivered by Stegall, J.:

Derrick Laughlin filed a pro se motion to correct an illegal sentence and a pro se motion to withdraw his plea over a decade after his felony-murder conviction. The Sedgwick County District Court summarily denied the motions. On appeal, Laughlin argues the district court erred when it considered the State's written responses to his motions without appointing counsel to represent him. We hold Laughlin's right to counsel was not triggered and, as a result, we affirm.

In May 1993, Laughlin and two teenaged friends kidnapped, robbed, and killed a pizza delivery person. Laughlin was prosecuted as an adult. He ultimately pled guilty to felony murder, aggravated kidnapping, aggravated robbery, and possession of a firearm by a minor. The district court imposed two consecutive sentences of life imprisonment, plus another consecutive sentence of 10 years to life. We affirmed his convictions on direct appeal. State v. Laughlin , No. 73,594, unpublished opinion filed April 19, 1996 (Kan.).

In July 2016, Laughlin filed three pro se motions in district court: a motion for appointment of counsel, a motion to correct an illegal sentence, and a motion to withdraw his plea. His motion to correct an illegal sentence alleged that his aggravated kidnapping and aggravated robbery convictions were multiplicitous with his felony-murder conviction. His plea withdrawal motion alleged many errors, including that his plea was not knowingly, intelligently, and voluntarily made.

The State filed written responses to Laughlin's motions. It argued that the court could summarily deny the motions without appointing counsel for Laughlin; that his multiplicity challenge fell outside the scope of an illegal sentence; and that his plea withdrawal motion was untimely and failed to show excusable neglect. See K.S.A. 2018 Supp. 22-3210(e)(2) (stating the time limitation for postsentence plea withdrawal may be extended "only upon an additional, affirmative showing of excusable neglect by the defendant").

The district court summarily denied Laughlin's motions. First, the court ruled it was unnecessary to appoint counsel for Laughlin because the motions, files, and record of the case showed he was not entitled to relief. Second, the court determined Laughlin's motion to correct an illegal sentence was a collateral attack on his convictions, which falls outside the scope of an illegal sentence under K.S.A. 22-3504. See State v. Nash , 281 Kan. 600, 602, 133 P.3d 836 (2006) (holding that K.S.A. 22-3504 is not a vehicle for a collateral attack on a conviction). Third, the court found Laughlin's plea withdrawal motion was untimely and he failed to establish excusable neglect.

Laughlin appealed the summary denial of these motions directly to this court. See K.S.A. 2018 Supp. 22-3601(b)(3) (permitting appeal from a district court judgment directly to the Supreme Court in "any [criminal] case in which a maximum sentence of life imprisonment has been imposed"). Now through counsel, Laughlin argues the district court erred when it considered the State's written responses without appointing counsel to represent him on both the motion to correct an illegal sentence and the motion to withdraw plea. Laughlin also claims his sentence is illegal because his convictions are multiplicitous. He does not otherwise argue the merits of his motions.

To what extent Laughlin had a right to counsel to represent him on these motions is a question of law subject to unlimited review. See Stewart v. State , 309 Kan. ----, ----, 444 P.3d 955, 2019 WL 3047724 (No. 115,149, this day decided), slip op. at 6 ; Mundy v. State , 307 Kan. 280, 294, 408 P.3d 965 (2018). Summary denial of a motion to correct an illegal sentence is reviewed de novo. State v. Gilbert , 299 Kan. 797, 801, 326 P.3d 1060 (2014).

Laughlin argues the district court violated his statutory right to counsel when it considered the State's written response to his K.S.A. 22-3504 motion without appointing counsel to represent him. He concedes that a K.S.A. 22-3504 motion may be summarily denied without the appointment of counsel when the motion, files, and records of the case conclusively show the defendant is not entitled to relief. See, e.g., State v. Hoge , 283 Kan. 219, 224, 150 P.3d 905 (2007). But he claims the district court effectively held a hearing when it considered the State's response to his motion, which triggered his statutory right to appointed counsel. He anchors this argument in K.S.A. 2018 Supp. 22-3504(1), which states that "the defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence." In other words, Laughlin claims that considering the State's response was tantamount to holding a hearing.

Today in State v. Redding , 309 Kan. ----, ----, 444 P.3d 989, 2019 WL 3058739 (No.115,037, this day decided), slip op. at 8-10, we affirmed our long practice of treating K.S.A. 22-3504 motions like K.S.A. 60-1507 motions when determining whether appointment of counsel is required. See Redding , 309 Kan. ----, Syl. ¶ 2, 444 P.3d 989. Following that practice, we held a district court is statutorily required to appoint an attorney to represent an indigent K.S.A. 22-3504 defendant when the motion presents a substantial question of law or triable issue of fact. Redding , 309 Kan. at ----, 444 P.3d 989, slip op. at 8-10 ; see Stewart , 309 Kan. at ----, 444 P.3d 955, slip op. at 9 ("[A] district court has a statutory duty to appoint an attorney to represent an indigent 60-1507 movant whenever the motion presents substantial questions of law or triable issues of fact."). We also held that due process of law requires a defendant to be represented by counsel at a hearing on a K.S.A. 22-3504 motion where the State is represented by counsel, unless the defendant waives that right. Redding , 309 Kan. at ----, 444 P.3d 989, slip op. at 10 ; see Stewart , 309 Kan. at ----, Syl. ¶ 2, 444 P.3d 955 ("[I]f the court conducts a hearing [on a K.S.A. 60-1507 motion] at which the State will be represented by counsel, due process of law requires that the movant be represented by counsel unless the movant waives that right to counsel.").

But importantly, in Redding we determined that a district court's consideration of the State's response to a K.S.A. 22-3504 motion is not the equivalent of a hearing. Thus, we held the State's written response to a K.S.A. 22-3504 motion, standing alone, does not trigger the defendant's procedural due process right to appointed counsel. Redding , 309 Kan. at ----, 444 P.3d 989, slip op. at 10 ; see Stewart , 309 Kan. at ----, 444 P.3d 955, slip op. at 16.

In like manner, Laughlin argues the district court also erred when it considered the State's written response to his postsentence plea withdrawal motion without appointing counsel to represent him. He claims that he needed counsel to develop his excusable neglect argument, which would have cleared the way for the district court to consider the merits of his motion. He does not specify the source of his alleged right to counsel here. But regardless, we conclude that no right to counsel was triggered.

A district court "may set aside the judgment of conviction and permit the defendant to withdraw the plea" after sentencing "[t]o correct manifest injustice."

K.S.A. 2018 Supp. 22-3210(d)(2). As with illegal sentence motions, we have long treated postsentence plea withdrawal motions like K.S.A. 60-1507 motions when it comes to the right to counsel. See State v. Jackson , 255 Kan. 455, 461, 874 P.2d 1138 (1994). In Jackson , we explained that "[i]f a motion to withdraw a plea after sentencing reveals facts which, if true, would show manifest injustice such that withdrawal of the plea may be warranted, then the motion has clearly brought into play the substantial rights of the defendant." 255 Kan. at 461, 874 P.2d 1138. At that point, counsel must be appointed to protect the defendant's rights. 255 Kan. at 461, 874 P.2d 1138. "However, if there is no substantial question of law or triable issue of fact and the files and records conclusively show that the defendant is not entitled to relief on the motion, then there is no requirement that a hearing be held or that counsel be appointed." 255 Kan. at 461, 874 P.2d 1138. This mirrors the statutory right to counsel for K.S.A. 60-1507 motions that we affirmed today in Stewart , 309 Kan. at ----, 444 P.3d 955, slip op. at 9.

In State v. Hemphill , 286 Kan. 583, 186 P.3d 777 (2008), another postsentence plea withdrawal case, we also emphasized that "even though a court need not automatically hold a hearing or appoint counsel in all post-conviction matters, when a hearing is held 'at which the State will be represented, then due process of law does require that the defendant be represented unless the defendant waives the right to counsel.' " 286 Kan. at 596, 186 P.3d 777 (quoting State v. Pierce , 246 Kan. 183, 199, 787 P.2d 1189 [1990] ). In Stewart , we drew the same due process line for K.S.A. 60-1507 motions. See Stewart , 309 Kan. at ----, Syl. ¶ 2, 444 P.3d 955.

Taken together, Jackson and Hemphill confirm that postsentence plea withdrawal motions are treated like K.S.A. 60-1507 motions for purposes of determining whether the right to counsel was triggered. Thus, the rules we announced today in Stewart apply equally to postsentence plea withdrawal motions, as to illegal sentence motions.

In sum, if an illegal sentence motion or postsentence plea withdrawal motion presents a substantial question of law or triable issue of fact and the movant is indigent, then the district court must appoint counsel to represent the movant. And if the court conducts a hearing at which the State will be represented by counsel, then due process of law requires the movant to be represented by counsel unless the movant waives that right. Importantly, the district court's consideration of the State's written response, standing alone, does not constitute a hearing. See Stewart , 309 Kan. at ----, Syl. ¶¶ 1-3, 444 P.3d 955 ; Redding , 309 Kan. at ----, Syl. ¶¶ 2-4, 444 P.3d 989.

Applying these rules, we arrive at the same result for both of Laughlin's right to counsel challenges. We conclude that Laughlin's statutory right to counsel was not triggered for either motion because the district court did not find a substantial issue of law or triable issue of fact in them. Moreover, the district court did not conduct a hearing on either motion, and its consideration of the State's written response did not equate to one. As a result, the district court did not err when it considered the State's responses to Laughlin's motions without appointing counsel to represent him.

Lastly, Laughlin argues his sentence was illegal because his aggravated kidnapping and aggravated robbery convictions were multiplicitous with his felony-murder conviction. But based on established precedent, we can quickly conclude as a matter of law that summary denial was appropriate because multiplicity challenges fall outside the scope of a motion to correct an illegal sentence. See, e.g., State v. Bradford, 299 Kan. 288, 289-90, 323 P.3d 168 (2014) (affirming well-established caselaw that precludes raising a multiplicity challenge in a motion to correct an illegal sentence).

Affirmed.


text:
    STATE of Kansas, Appellee, v. Alcena M. DAWSON, Appellant.
    No. 116,530
    Supreme Court of Kansas.
    Opinion filed July 12, 2019.
    Roger L. Falk, of Law Office of Roger L. Falk, P.A., of Wichita, argued the cause and was on the briefs for appellant.
    Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.
   The opinion of the court was delivered by Johnson, J.:

Alcena M. Dawson seeks review of the Court of Appeals' decision to affirm the district court's summary denial of his 2015 motion to correct an illegal sentence with respect to his 1997 jury trial conviction for rape. On review, Dawson contends that his sentence was based on an incorrectly calculated criminal history score because a pre-Kansas Sentencing Guidelines Act (KSGA) burglary conviction was erroneously classified as a person felony.

Dawson principally relies on State v. McAlister , 54 Kan. App. 2d 65, 75-76, 78-79, 396 P.3d 100 (2017) ( McAlister I ), which held that our decision in State v. Dickey , 305 Kan. 217, 380 P.3d 230 (2016) ( Dickey II ), required the correction of all sentences that had classified pre-KSGA burglary convictions as person felonies. But the Dawson panel held that the holding in McAlister I was superseded by the retroactive application of a 2017 amendment to K.S.A. 22-3504. Dawson , 55 Kan. App. 2d at 118, 408 P.3d 995. Because we have reversed the McAlister I panel's decision, we arrive at the same destination as the Dawson panel below, albeit via a different route.

FACTUAL AND PROCEDURAL OVERVIEW

We take the liberty of adopting the Court of Appeals' description of the factual and procedural background of this case, up to the time it arrived in that court:

"On June 4, 1997, a jury found Dawson guilty of rape and the following month the district court sentenced him to serve 732 months in prison. A criminal history category B was computed for Dawson's sentencing based on two person felony convictions: a 1986 residential burglary and the conversion of three person misdemeanor convictions, scored as a second person felony. A claim that the district court erred in aggregating the misdemeanor convictions was among Dawson's arguments on direct appeal. This court affirmed Dawson's conviction and sentence. State v. Dawson, No. 79,652 [--- Kan.App.2d ----, 992 P.2d 826] unpublished opinion filed December 23, 1999 (Kan. App.), rev. denied 269 Kan. 935 (2000) ( Dawson I ). Dawson's sentence became final in March 2000, prior to the decision in Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), in June 2000.
"A series of collateral attacks followed, including a motion to correct illegal sentence. See Dawson v. State, No. 94,720, 2006 WL 3877559 (Kan. App. 2006) (unpublished opinion), rev. denied 283 Kan. 930 (2007) ( Dawson II ); State v. Dawson, 43 Kan. App. 2d 800, 231 P.3d 582 (recounting postconviction history of the case), rev. denied 290 Kan. 1097 (2010) ( Dawson III ); Dawson v. State , No. 115,129, 2017 WL 262027 (Kan. App.) (unpublished opinion), petition for rev. filed February 21, 2017 ( Dawson IV ).
"In July 2015, Dawson filed another motion to correct illegal sentence, relying on the Kansas Supreme Court's decision in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015) ( Dickey I ). The district court summarily dismissed Dawsons petition in a minute order, stating '[s]entence was final long before Apprendi , Descamps [v. United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013) ], and/or Dickey decisions. They do not apply to [defendant's] case retroactively.'
"In September 2015, Dawson filed a motion to reconsider the summary dismissal. In that motion he contested the district court's rationale for summary denial-that Apprendi , Descamps , and Dickey did not apply to his sentence retroactively-and argued that 'an incorrect criminal history classification can be challenged at any time.' The district court denied the motion to reconsider in an October 19, 2015 minute order stating, '[n]o basis (legal or factual) for the court to reconsider.' The district court issued a second minute order on October 26, 2015, stating: '[n]othing new presented that would cause [court] to re-consider.' In his notice of appeal, Dawson referred to this ruling by its date, as well as to 'the decision of the District Court to deny/dismiss the Motion to Correct Illegal Sentence filed pursuant to K.S.A. 22-3504.' After the district court's orders from which Dawson appealed, Dawson filed yet another motion to correct illegal sentence and a motion to set aside judgment, which the district court summarily denied, stating, respectively: '[a]s previously ruled upon' and '[a]s per prior rulings.'
"Dawson's appeal of the district court's summary denial of his September 2015 motion to reconsider was timely, no other notices of appeal were filed, and the time for filing has passed on his successive motions that raised the same issues." State v. Dawson , 55 Kan. App. 2d 109, 110-11, 408 P.3d 995 (2017).

The panel noted that Dawson had identified the summary nature of the district court's dismissal as an issue, but he had abandoned that issue by failing to brief it. Dawson , 55 Kan. App. 2d at 111, 408 P.3d 995 (quoting State v. Tague , 296 Kan. 993, Syl. ¶ 3, 298 P.3d 273 [ (2013) ] ). The panel also noted that Dawson's issue regarding the aggregation of three misdemeanors to score as a felony had been raised and rejected on direct appeal, as well as in prior K.S.A. 60-1507 proceedings, so that any right to appellate review of that issue had been exhausted and had become barred by res judicata. 55 Kan. App. 2d at 118-19, 408 P.3d 995. Dawson did not seek review of either of those panel holdings.

With respect to Dawson's remaining issue-whether the district court should have reclassified his 1986, pre-KSGA burglary conviction as a nonperson crime-the panel began by reviewing the cases underlying Dawson's arguments, to-wit: McAlister I , State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015) ( Dickey I ), and Dickey II . The panel noted the conclusion reached in McAlister I was that McAlister's sentence was illegal and it could be corrected at any time, regardless of whether it had become final prior to Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Dawson , 55 Kan. App. 2d at 115, 408 P.3d 995.

But the panel also pointed out that another panel of the Court of Appeals, in the earlier case of State v. Tauer , No. 114,432, 2016 WL 7032167 (Kan. App. 2016) (unpublished opinion), which coincidentally included the author of the opinion being reviewed here, had reached a contrary result on facts akin to those in McAlister I . The Tauer panel opined that Dickey I and II were founded on Apprendi ; that Apprendi did not apply to cases final before it was decided in June 2000; and that, therefore, Dickey I and II could not apply in cases that were final before Apprendi . Tauer , 2016 WL 7032167, at *2. In sum, Tauer could not benefit from the later change in the law.

The panel in this case avoided choosing between the rationales of Tauer and McAlister I by relying on an amendment to K.S.A. 22-3504, effective May 18, 2017, that declared: "A sentence is not an 'illegal sentence' because of a change in the law that occurs after the sentence is pronounced." K.S.A. 2017 Supp. 22-3504(3) ; see Dawson , 55 Kan. App. 2d at 117-18, 408 P.3d 995. The panel opined that the May 2017 change applied retroactively to govern the district court's September 2015 decision and that the language was dispositive because the illegality that Dawson claims directly resulted from Apprendi 's subsequent change in the law. 55 Kan. App. 2d at 117-18, 408 P.3d 995.

This court granted review in Dawson's case, as well as in those of McAlister and Tauer.

LEGALITY OF DAWSON'S SENTENCE

Dawson argues that the McAlister I panel reached the correct result and this panel erred in refusing to resolve the conflicting panel decisions by relying on a subsequent 2017 amendment to K.S.A. 22-3504. Moreover, Dawson refutes both the panel's retroactive application of the 2017 statutory amendment and the panel's interpretation and application of the amendment to the facts of his case.

Given that we have reversed the holding in McAlister I , we need not address the panel's holdings with respect to the statutory amendment. We resolve the issue based upon identifying the point in time that the determination must be made as to the legality of a sentence for purposes of applying K.S.A. 22-3504(1).

Standard of Review

Whether a sentence is illegal is a question of law subject to unlimited review. State v. Donahue , 309 Kan. 265, 267, 434 P.3d 230 (2019). Interpretation of statutes is also a matter of law subject to unlimited review. State v. Jamerson , 309 Kan. 211, 214, 433 P.3d 698 (2019).

Analysis

Pursuant to K.S.A. 22-3504(1) "[t]he court may correct an illegal sentence at any time." A sentence is illegal under K.S.A. 22-3504 if it: (1) was imposed by a court lacking jurisdiction; (2) does not conform to statutory provisions in character or term of punishment authorized; or (3) is ambiguous with regard to the time and manner it is to be served. State v. Noyce, 301 Kan. 408, 409-10, 343 P.3d 105 (2015). Dawson contends that he fits within the second circumstance because his sentence did not conform to the current interpretation and application of the statutory provisions governing the calculation of his criminal history score.

As suggested above, Dawson hangs his hat squarely on the head of the Court of Appeals decision in McAlister I . But upon the State's petition for review, we reversed the McAlister I holding and upheld the district court's summary denial of the motion to correct an illegal sentence, albeit based upon a different rationale. State v. McAlister , 309 Kan. ----, ---- - ----, 444 P.3d 923 (No. 115887, this day decided), slip op. at 2-3 ( McAlister II ).

In McAlister II , we looked to our recent decision in State v. Murdock , 309 Kan. 585, 439 P.3d 307 (2019) ( Murdock II ). The Murdock II holding applicable here is that the determination of the legality of a sentence for K.S.A. 22-3504(1) purposes is to be based on the law in effect when the sentence was pronounced, e.g. conformity with the statutory provisions then in effect. If the sentence was legal when originally imposed, a subsequent change in the law cannot transform a legal sentence into an illegal sentence. Specifically, Murdock II said that

"the legality of a sentence under K.S.A. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. The legality of a sentence is fixed at a discrete moment in time-the moment the sentence was pronounced. At that moment, a pronounced sentence is either legal or illegal according to then-existing law. Therefore, for purposes of a motion to correct an illegal sentence, neither party can avail itself of subsequent changes in the law." 309 Kan. at 591, 439 P.3d 307.

Murdock II clarified that it was not changing the longstanding rule that a defendant will receive the benefit of a change in the law that occurs while his or her case is pending on direct appeal. Its holding is that a movant under K.S.A. 22-3504(1) "is stuck with the law in effect at the time the sentence was pronounced." 309 Kan. at 592, 439 P.3d 307. Likewise, Murdock II did not intend to foreclose the possibility that developments in the law might call for a reassessment of the original legality of the sentence at the time of pronouncement; to the contrary, its focus was on "true changes in the law." 309 Kan. at 592, 439 P.3d 307.

Here, Dawson does not argue that his sentences were illegal when pronounced in July 1997. Instead, he contends that his sentence was rendered illegal by our decisions in Dickey I and Dickey II , filed in 2015 and 2016 respectively, which in turn were influenced by the June 2000 change in the law effected by Apprendi . In other words, Dawson attempts to avail himself of a subsequent change in the law. We closed that door in Murdock II .

We note that, in challenging the panel's retroactive application of the statutory amendments, Dawson argues that Dickey I was not a change in the law. He points to McAlister I 's quote from State v. Thomas , 53 Kan. App. 2d 15, 24, 383 P.3d 152 (2016), rev. denied 306 Kan. 1330 (2017), stating that " 'the court's holding in Dickey [I ] is not a "change in the law" ..., but rather an application of the constitutional rule announced in Apprendi and clarified by Descamps . [Citations omitted.]' " McAlister I , 54 Kan. App. 2d at 77, 396 P.3d 100. But, of course, that argument, even if accepted, does not carry the day for Dawson. Dawson's original sentence was final years before Apprendi 's rule was announced. Clearly, Apprendi was a true change in the law. See State v. Gould , 271 Kan. 394, 406, 23 P.3d 801 (2001) ("There is little dispute that Apprendi has had an immediate and dramatic impact on criminal law."). Any notion that Dawson is not relying on a change in the law to label his sentence illegal is simply unavailing.

In McAlister II , we noted that the Legislature had amended K.S.A. 22-3504 in 2017 and 2019, but that those changes had no impact on the McAlister II decision. Similarly, we need not address the Court of Appeals' holdings in this case with respect to the 2017 amendments. To be clear, our affirming of the result reached by the Dawson panel is not to be construed as an imprimatur of its holdings with respect to the retroactivity, interpretation, or application of the 2017 amendments to K.S.A. 22-3504.

In sum, the Court of Appeals' affirmance of the district court's summary denial of Dawson's motion to correct an illegal sentence is affirmed.

Affirmed.

Luckert, J., not participating.

Michael J. Malone, Senior Judge, assigned.

      REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 116,530 vice Justice Luckert under the authority vested in the Supreme Court by K.S.A. 20-2616.


text:
    Adrian M. REQUENA, Appellant, v. STATE of Kansas, Appellee.
    No. 116,251
    Supreme Court of Kansas.
    Opinion filed July 12, 2019.
    Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, was on the brief for appellant, and Adrian M. Requena was on a supplemental brief pro se.
    Joseph M. Penney, assistant county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
   The opinion of the court was delivered by Stegall, J.:

Adrian M. Requena filed a pro se K.S.A. 60-1507 motion almost 15 years after his rape conviction. The Butler County District Court summarily denied the motion after considering a written response by the State. On appeal, Requena argues the district court violated his due process rights when it failed to appoint counsel to represent him. We hold Requena's due process rights were not violated, and summary denial was appropriate because he failed to establish a manifest injustice to excuse his untimely filing. Accordingly, we affirm.

A jury convicted Requena of rape in December 1999. The Court of Appeals affirmed his conviction, and we denied Requena's petition for review. State v. Requena , 30 Kan. App. 2d 200, 41 P.3d 862 (2001), rev. denied 273 Kan. 1039 (2002). A few years later, Requena filed his first pro se K.S.A. 60-1507 motion, arguing that his trial counsel was ineffective. The district court summarily denied the motion and the Court of Appeals affirmed. Requena v. State , No. 95443, 2006 WL 3740879 (Kan. App. 2006) (unpublished opinion).

In 2014, Requena filed his second pro se K.S.A. 60-1507 motion, the one at issue in this appeal. This time, he argued: (1) his criminal history score was incorrect based on State v. Murdock , 299 Kan. 312, 323 P.3d 846 (2014), overruled by State v. Keel , 302 Kan. 560, 357 P.3d 251 (2015) ; (2) his attorney on direct appeal was ineffective; (3) a letter from a new witness proved his innocence; and (4) the district court lacked jurisdiction to convict him because he is a sovereign citizen. The State filed a response a few months later arguing Requena's criminal history score was correct because Murdock did not apply. The State did not address Requena's other arguments.

The district court summarily denied the motion in a written order. The court agreed with the State that Murdock did not affect Requena's criminal history score. In Murdock , we held that all out-of-state crimes committed before 1993 must be classified as nonperson offenses. 299 Kan. at 319, 323 P.3d 846. At sentencing, Requena received a criminal history score of C because he was previously convicted of several nonperson felonies and one 1989 person felony. See K.S.A. 21-4709 (stating a score of C is required when the offender's criminal history includes one conviction for a person felony and one or more conviction for a nonperson felony). But importantly, his prior person felony conviction occurred in Kansas, making Murdock inapplicable.

The district court rejected Requena's ineffective assistance of appellate counsel claim, finding his arguments were time-barred and he failed to establish a manifest injustice. The court also rejected Requena's actual innocence claim because the letter "prove[d] nothing" and "contain[ed] no newly discovered evidence." The letter was written in 2000 by someone who did not witness the rape, and it contained a hypothesis about what might have happened between Requena and the victim. The court determined that this letter also did not constitute a manifest injustice.

Soon after, Requena filed a motion to amend the judgment and a motion to compel judgment. In these motions, he reasserted his Murdock claim and pointed out that the court failed to address his sovereign citizen claim. The court denied the motions and reiterated its prior ruling, citing Keel , which overruled Murdock , as additional support. See Keel , 302 Kan. at 589, 357 P.3d 251. It did not address the sovereign citizen claim.

On appeal, Requena claims the district court violated his due process rights when it considered the State's response to his pro se K.S.A. 60-1507 motion without first appointing counsel for him. He also argues the district court erred when it summarily denied his untimely K.S.A. 60-1507 motion because his criminal history score was incorrect under Murdock and he presented a colorable claim of actual innocence. Lastly, he argues a remand is necessary because the district court failed to rule and make fact-findings on his sovereign citizen claim. The Court of Appeals affirmed, holding Requena's due process rights were not violated; Keel overruled Murdock ; he presented no colorable innocence claim; and his sovereign citizen claim was reviewable and ultimately meritless. Requena v. State , No. 116251, 2017 WL 4183229 (Kan. App. 2017) (unpublished opinion).

We granted Requena's petition to review these holdings. Requena also argues in passing that his appellate counsel on direct appeal was ineffective for failing to challenge the lack of evidence against him. But he makes no effort to brief this point, so we consider it abandoned. See State v. Boleyn , 297 Kan. 610, 633, 303 P.3d 680 (2013) ("An issue not briefed by an appellant is deemed waived and abandoned.").

First, Requena argues the district court violated his due process rights when it considered the State's written response to his pro se K.S.A. 60-1507 motion without appointing counsel to represent him. This is a procedural due process claim. "Whether the trial court violated an individual's due process rights is a question of law, to which this court exercises unlimited review." State v. Holt , 285 Kan. 760, 774, 175 P.3d 239 (2008).

Specifically, Requena claims the district court's consideration of a written response by the State's attorney was the functional equivalent of a preliminary hearing, which triggered his due process right to appointed counsel. In support, he points to decisions like State v. Hemphill , 286 Kan. 583, 596, 186 P.3d 777 (2008), which hold that due process requires a postconviction movant to be represented by counsel at a hearing where the State is represented by counsel, unless the movant waives the right to counsel. See, e.g., Stevenson v. State , No. 96082, 2007 WL 438745, at *2 (Kan. App. 2007) (unpublished opinion). The State does not challenge this precedent but counters that Requena's due process rights were not violated because considering a written response is not tantamount to holding a hearing.

Today in Stewart v. State , 309 Kan. ----, Syl. ¶ 2, 444 P.3d 955 (No. 115149, this day decided, 2019), we considered the same arguments and affirmed that "if the court conducts a hearing at which the State will be represented by counsel, due process of law requires that the [ K.S.A. 60-1507 ] movant be represented by counsel unless the movant waives that right to counsel." But we also clarified that an actual hearing is required to trigger the right. Stewart , 309 Kan. at ----, slip op. at 15, 444 P.3d 955. Consequently, we held: "The State is permitted to file a written response to a K.S.A. 60-1507 motion. The district court's consideration of the State's response, standing alone, does not constitute a hearing for purposes of determining whether due process of law requires the movant to be represented by counsel." Stewart , 309 Kan. ----, Syl. ¶ 3, 444 P.3d 955.

Here, the district court's consideration of the State's written response to Requena's pro se K.S.A. 60-1507 motion did not constitute a hearing. As a result, the district court did not violate Requena's due process rights when it did not appoint counsel to represent him. Put simply, Requena's due process right to appointed counsel was not triggered because the court did not hold a hearing where the State was represented by counsel.

Next, Requena argues the district court erred when it summarily denied his K.S.A. 60-1507 motion because his criminal history score was incorrect under Murdock and the letter supported a colorable claim of actual innocence. We review the summary denial of Requena's K.S.A. 60-1507 motion de novo because we have the same access to the motion, records, and files as the district court. Bellamy v. State , 285 Kan. 346, 354, 172 P.3d 10 (2007). Summary denial is appropriate, without appointing counsel, when the motion and the files and records of the case, including any response to the motion by the State, conclusively show that the prisoner is entitled to no relief. See K.S.A. 60-1507(b) ; Stewart , 309 Kan. ----, Syl. ¶ 4, 444 P.3d 955.

Requena does not dispute that his motion was untimely, and as a result, he had the burden to prove by a preponderance of the evidence that an extension was necessary to prevent a manifest injustice. See K.S.A. 60-1507(f)(2) ; Supreme Court Rule 183(g) (2019 Kan. S. Ct. R. 228); White v. State , 308 Kan. 491, 496, 421 P.3d 718 (2018). We have defined a manifest injustice as something " 'obviously unfair' " or " 'shocking to the conscience.' " 308 Kan. at 496, 421 P.3d 718 (quoting Vontress v. State , 299 Kan. 607, 614, 325 P.3d 1114 [2014] ).

Recently in White , we held that the Vontress factors govern our manifest injustice inquiry for K.S.A. 60-1507 motions filed before July 1, 2016, and the 2016 amendments to K.S.A. 60-1507 govern for motions filed after that date. White , 308 Kan. at 503, 421 P.3d 718 ; see L. 2016, ch. 58, § 2; K.S.A. 2018 Supp. 60-1507(f)(2)(A). Because Requena filed his motion well before July 2016, the Vontress factors govern our analysis:

"whether (1) the movant provides persuasive reasons or circumstances that prevented him or her from filing the 60-1507 motion within the 1-year time limitation; (2) the merits of the movant's claim raise substantial issues of law or fact deserving of the district court's consideration; and (3) the movant sets forth a colorable claim of actual innocence, i.e. , factual, not legal, innocence." Vontress , 299 Kan. at 616 [325 P.3d 1114].

We consider these factors under the totality of the circumstances. They are not exhaustive, and no single factor is dispositive. 299 Kan. at 616, 325 P.3d 1114.

In short, none of the Vontress factors support a finding of manifest injustice here. First, Requena provides no persuasive reason for his almost 15-year delay. Second, his Murdock argument raises no substantial issue of law. He argues that his prior in-state person felony should have been scored as a nonperson felony under Murdock and asks for a reconsideration of Keel . But as the district court correctly held, Requena's Murdock argument misconstrues the holding of that case-it did not extend to prior in-state crimes. And we decline to revisit Keel because Requena failed to brief that point. See Boleyn , 297 Kan. at 633, 303 P.3d 680. Third, Requena does not set forth a colorable claim of actual innocence. The letter he received is mere speculation by someone who did not witness the crime. It in no way supports his actual innocence.

Finally, Requena argues a remand is required because the district court violated Supreme Court Rule 183(j) by failing to rule and make fact-findings on his sovereign citizen claim. See Supreme Court Rule 183(j) (2019 Kan. S. Ct. R. 230) (requiring the district court to "make findings of fact and conclusions of law on all issues presented"). "Whether the district judge complied with Rule 183(j) involves a question of law reviewable de novo." Robertson v. State , 288 Kan. 217, 232, 201 P.3d 691 (2009).

As the Court of Appeals correctly observed, the district court effectively ruled against Requena on this point by exercising its jurisdiction over him. See Requena , 2017 WL 4183229, at *3-4. Moreover, fact-findings are unnecessary to resolve his sovereign citizen claim, which is a question of law and ultimately meritless. See State v. Wilson , 308 Kan. 516, 527, 421 P.3d 742 (2018) (holding that a remand was unnecessary under Rule 183 [j] because appellate review was not impeded); see, e.g., United States v. Schneider , 910 F.2d 1569, 1570 (7th Cir. 1990) (holding that the argument that a defendant "is a free, sovereign citizen and as such not subject to jurisdiction of the federal courts .... has no conceivable validity in American law"). Thus, we hold a remand is not warranted here.

In conclusion, Requena's due process rights were not violated when the district court did not appoint counsel to represent him; he failed to establish manifest injustice to excuse his untimely motion; and no remand is required to resolve his sovereign citizen claim. For these reasons, we affirm the summary denial of his K.S.A. 60-1507 motion.

Affirmed.


text:
    STATE of Kansas, Appellee, v. Jacob J. MCALISTER, Jr., Appellant.
    Nos. 115 887 115,888 115,889
    Supreme Court of Kansas.
    Opinion filed July 12, 2019.
    Gerald E. Wells, of Jerry E. Wells, Attorney-at-Law, of Lawrence, argued the cause, and J. Scott James, of James Law Firm LLC, of Greensburg, was on the briefs for appellant.
    Brian R. Sherwood, assistant county attorney, argued the cause, and Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, Topeka, were with him on the briefs for appellee.
   The opinion of the court was delivered by Johnson, J.:

The State seeks our review of the Court of Appeal's decision reversing the district court's summary denial of Jacob J. McAlister Jr.'s 2015 motions to correct his allegedly illegal sentences imposed in 1996. McAlister's K.S.A. 22-3504 motions contend that his sentences were based on an incorrect criminal history score because his pre-Kansas Sentencing Guidelines Act (KSGA) burglary convictions should have been classified as nonperson felonies.

The district court found McAlister's motions to be procedurally barred, but the Court of Appeals held that, pursuant to this court's opinion in State v. Dickey , 305 Kan. 217, 380 P.3d 230 (2016) ( Dickey II ), the motions were not procedurally barred. Further, the panel held that Dickey II required that McAlister's pre-KSGA convictions be classified as nonperson felonies. State v. McAlister , 54 Kan. App. 2d 65, 75-76, 78-79, 396 P.3d 100 (2017). Because McAlister's sentences were legal when pronounced and were final before the change in the law upon which he relies, we reverse the Court of Appeals and affirm the district court's denial of McAlister's K.S.A. 22-3504 motions, albeit based upon a different rationale.

FACTUAL AND PROCEDURAL BACKGROUND

McAlister was convicted in 1996 in three separate criminal cases, which were consolidated on direct appeal. His convictions included several counts of possession of opiates, nonresidential burglary, conspiracy to commit burglary, misdemeanor theft, criminal damage to property, and three counts of aggravated robbery. He received sentences of 52 months, 257 months, and 206 months, which were ordered to run consecutive. His convictions and sentences were affirmed on direct appeal. State v. McAlister , No. 78,378, 975 P.2d 275, unpublished opinion filed December 4, 1998 (Kan. App. 1998), rev. denied 266 Kan. 1113 (1999). The mandate issued on February 3, 1999, making McAlister's sentences final for purposes of postconviction relief. Cf. K.S.A. 60-1507(f)(1)(A) (final order of last appellate court on direct appeal starts one-year time limit to file 60-1507 motion). Pointedly, that finality occurred before Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), held that judicial fact-finding by a sentencing court was unconstitutional.

McAlister's sentences were based on a criminal history score of A. His criminal history score included two burglary convictions and one conspiracy to commit burglary, all from 1992, before the KSGA took effect.

Each conviction was scored as a person felony.

In 2015, McAlister filed motions to correct an illegal sentence, pursuant to K.S.A. 22-3504(1), in each of the three cases. That year, this court filed its opinion in State v. Dickey , 301 Kan. 1018, 350 P.3d 1054 (2015) ( Dickey I ), which held that a pre-KSGA burglary conviction could not be scored as a person felony because doing so would require the judicial fact-finding prohibited by Apprendi . After a hearing, the district court denied McAlister's motions, finding that they were procedurally barred by res judicata and that this court's holding in Dickey I did not retroactively apply to McAlister.

While McAlister's appeal to the Court of Appeals was pending, this court decided Dickey II , which held that the "at any time" language in K.S.A. 22-3504(1) foreclosed the res judicata and retroactivity arguments upon which the district court had relied in this case. The Court of Appeals majority dutifully endeavored to apply this court's decision in Dickey II and reversed the district court's determination that McAlister's challenge was barred by res judicata and remanded for resentencing in conformance with the Dickey I holding. McAlister , 54 Kan. App. 2d at 75-76, 78-79, 396 P.3d 100. A concurring opinion challenged the rationale of Dickey II , opining that the issue involved the application of Apprendi 's constitutional rule, not the interpretation of statutory law; that the opinion contradicted precedent prohibiting the retroactive application of new caselaw; and that interpreting K.S.A. 22-3504(1)'s "at any time" language to override considerations of res judicata was contrary to precedent. 54 Kan. App. 2d at 79-83, 396 P.3d 100 (Gardner, J., concurring).

We granted the State's petition to review the Court of Appeals' decision.

LEGALITY OF MCALISTER'S SENTENCES

The State argues that the Court of Appeals erred because McAlister's sentence was final before Apprendi was decided, and that McAlister should not receive the benefit of the later caselaw in Dickey I and II that applied Apprendi . In other words, the State contends that a sentence that was legal when imposed is not subsequently rendered illegal by a change in the law. Based upon our recent caselaw, we agree.

Standard of Review

Whether a sentence is illegal is a question of law subject to unlimited review. State v. Donahue , 309 Kan. 265, 267, 434 P.3d 230 (2019). Interpretation of statutes is also a matter of law subject to unlimited review. State v. Jamerson , 309 Kan. 211, 214, 433 P.3d 698 (2019).

Analysis

Pursuant to K.S.A. 22-3504(1) "[t]he court may correct an illegal sentence at any time." A sentence is illegal under K.S.A. 22-3504 if it: (1) was imposed by a court lacking jurisdiction; (2) does not conform to statutory provisions in character or term of punishment authorized; or (3) is ambiguous with regard to the time and manner it is to be served. State v. Noyce , 301 Kan. 408, 409-10, 343 P.3d 105 (2015). McAlister relies on the second circumstance; he argues that his sentences did not conform to the statutory provisions governing the calculation of a criminal history score which in turn resulted in an unauthorized term of punishment.

The KSGA, enacted in 1993, introduced the person/nonperson categorization of crimes and mechanisms used to determine how prior crimes should be accounted during sentencing proceedings. K.S.A. 21-4701 et seq. ; see K.S.A. 2018 Supp. 21-6811 (determination of criminal history classification). Prior convictions for person felonies increase the criminal history score more than nonperson felony convictions and, thus, result in longer prison terms. Of particular importance here is the post-1993 burglary statute requirement that the burglarized structure must be a dwelling in order for a burglary conviction to be classified as a person crime. The pre-1993 burglary statute did not have a dwelling requirement. Compare K.S.A. 2018 Supp. 21-5807(a)(1), (c)(1)(A), with K.S.A. 1991 Supp. 21-3715.

In Apprendi , the United State Supreme Court said that facts which increase a sentence beyond a statutory maximum must be decided by a jury, not a judge, because to do otherwise violates a defendant's constitutional right to have guilt determined by a jury. 530 U.S. at 490, 120 S.Ct. 2348. Dickey I explained that because there was no pre-KSGA burglary crime requiring as an element that the burglarized structure be a dwelling, classifying a pre-KSGA burglary as a person felony required the sentencing judge to delve into the factual underpinnings of the prior conviction and engage in judicial fact-finding, which was declared to be unconstitutional in Apprendi . 301 Kan. at 1039-40, 350 P.3d 1054.

Dickey I was a direct appeal. Dickey II expanded this holding to probation revocations for convictions that were final before Dickey I was decided. Dickey II recognized that the improper classification of the prior crime came with a "thick overlay of constitutional law," but the resulting sentence's illegality was based on statutory, not constitutional, grounds. 305 Kan. at 221-22, 380 P.3d 230. In other words, it is the nonconformity with our interpretation of Kansas statutory provisions that renders the sentence illegal.

But as the panel in this case intimated, the interface of our statutory interpretation of the KSGA criminal history provisions and the thick overlay of changes in federal constitutional law has created an evolving body of Kansas law. See McAlister , 54 Kan. App. 2d at 76-78, 396 P.3d 100. While Dickey II clarified that K.S.A. 22-3504's statutory directive that an illegal sentence may be corrected "at any time" supersedes the normal procedural hurdles of res judicata and retroactivity, the opinion did not specifically address the point in time that should be analyzed to determine a sentence's legality under that statute.

We subsequently addressed that question head-on in State v. Murdock , 309 Kan. 585, 439 P.3d 307 (2019) ( Murdock II ). The Murdock holding applicable here is that a subsequent change in the law cannot transform a legal sentence into an illegal sentence. Specifically, we said that:

"the legality of a sentence under K.S.A. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. The legality of a sentence is fixed at a discrete moment in time-the moment the sentence was pronounced. At that moment, a pronounced sentence is either legal or illegal according to then-existing law. Therefore, for purposes of a motion to correct an illegal sentence, neither party can avail itself of subsequent changes in the law." 309 Kan. at 591, 439 P.3d 307.

Murdock II did not, however, "disturb our longstanding rule that in a direct appeal, a defendant will receive the benefit of any change in the law that occurs while the direct appeal is pending. See, e.g., State v. Ford , 302 Kan. 455, 471, 353 P.3d 1143 (2015) ('[I]t is generally true that changes in the law apply prospectively and only to cases on direct review.')." 309 Kan. at 591, 439 P.3d 307. But a person moving to correct an illegal sentence under K.S.A. 22-3504(1), like McAlister in this case, "is stuck with the law in effect at the time the sentence was pronounced." 309 Kan. at 592, 439 P.3d 307.

McAlister does not argue that his sentences were illegal on February 3, 1999, when his direct appeal mandate was issued and his sentences became final. Rather, he contends that his sentences were rendered illegal by our decisions a decade and a half later in Dickey I and II , which were, in turn, founded on the June 2000 change in the law effected by Apprendi . Put simply, Murdock II precludes that argument. McAlister's attempt to avail himself of Apprendi 's subsequent change in the law in a motion to correct an illegal sentence is unavailing.

Murdock II further clarified that while "true changes in the law cannot transform a once legal sentence into an illegal sentence," there might be "developments in the law [that] may shine new light on the original question of whether the sentence was illegal when pronounced." 309 Kan. at 592, 439 P.3d 307. Any argument that Apprendi was simply an explanatory development in the law would border on frivolity. The year following Apprendi , this court discussed its effect:

"Since the Supreme Court's June 26, 2000, ruling in Apprendi , 'hundreds of appeals have been filed and scores of decisions handed down interpreting the ruling.' David E. Rovella, A Looming 'Apprendi'
tsunami? , The National Law Journal, Jan. 8, 2001, at A1. There is little dispute that Apprendi has had an immediate and dramatic impact on criminal law. Indeed, Justice O'Connor presaged the Apprendi phenomenon by warning in her dissent that the decision represented 'a watershed change in constitutional law' whose effect on state and federal determinate sentencing schemes would likely be 'severe.' 530 U.S. at 524, 120 S.Ct. 2348 (O'Connor, J., dissenting)." State v. Gould , 271 Kan. 394, 406, 23 P.3d 801 (2001).

Finally, we note that in 2017 and 2019 the Legislature amended K.S.A. 22-3504 with language that addresses the applicability of subsequent changes in the law to the determination of whether a sentence is illegal. Those changes do not impact our decision.

In sum, McAlister's sentences were legal when imposed and remained so at the time his direct appeal became final. Subsequent changes in the law did not render McAlister's sentences illegal for purposes of a K.S.A. 22-3504(1) motion to correct an illegal sentence. We reverse the Court of Appeals reversal of the district court and remand with directions to reinstate McAlister's original lawful sentences.

Reversed and remanded with directions.

Luckert, J., not participating.

Michael J. Malone, Senior Judge, assigned.

      REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 115,887, 115,888, and 115,889 vice Justice Luckert under the authority vested in the Supreme Court by K.S.A. 20-2616.