author: BURDICK, Chief Justice.

text:
    STATE of Idaho, Plaintiff-Respondent-Cross Appellant, v. Ryan Kelly MATTHEWS, Defendant-Appellant-Cross-Respondent.
    Docket No. 45295
    Supreme Court of Idaho, Boise, November 2018 Term.
    Opinion Filed: January 30, 2019
    Eric D. Fredericksen, State Appellate Public Defender, Boise for appellant. Andrea W. Reynolds, Deputy Appellate Public Defender, argued.
    Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Jeff Nye, Deputy Attorney General, argued.
   BURDICK, Chief Justice.

Ryan Kelly Matthews ("Matthews") appeals his judgment of conviction and sentence entered in Ada County district court. The State cross-appeals the district court's decision not to award prosecution costs as part of the agreed-to restitution.

After Matthews was arrested for absconding from parole, methamphetamine was found on his person during the booking process at the Ada County Jail and Matthews was charged with possession of a controlled substance. After having his motion to suppress denied, Matthews agreed to a plea deal and the district court sentenced him to seven years with three years fixed. The district court declined to order the full amount of restitution for prosecution costs under Idaho Code section 37-2732(k). The district court stated it agreed with Matthews's concern that he felt like he was having "to pay for exercising [his] constitutional right."

Matthews timely appealed contending that the district court abused its discretion by ignoring mitigating factors at sentencing. The State timely filed a cross-appeal based on the district court's denial of the State's request for prosecution costs. Specifically, the State argues that the district court abused its discretion by refusing to order Matthews to pay the costs of prosecution on the sole basis that it would infringe on his constitutional rights because such a statement is inconsistent with this Court's precedent. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 6, 2016, Matthews was arrested on an agent's warrant after he failed to check in with his parole officer for a period of weeks. The parole officer believed that Matthews had absconded from supervision and was living in an unapproved location. A woman with whom Matthews was staying at the time alerted parole and probation officers to Matthews's whereabouts after she grew "concerned for her safety and the safety of her children" because Matthews was "bringing in some unsavory characters to her house" and she "suspected that he was also using narcotics." With her permission, the parole officers entered the woman's home, found Matthews asleep, and arrested him. During Matthews's booking process at the Ada County Jail, two plastic baggies containing methamphetamine were found in his pocket. Matthews was subsequently charged with possession of a controlled substance. He then filed a motion to suppress the evidence taken from his pocket which, after a hearing on the matter, the district court denied. Matthews then accepted a plea deal in which he pleaded guilty to possession of a controlled substance. Matthews's counsel informed the district court of the agreement at the change-of-plea hearing, stating:

Your Honor, this is going to be quite straightforward, as far as a plea goes. This is simply to possessing a controlled substance. It's going to be open recommendations. There will be no Information Part II.
The State has made it very clear that they are going to be asking for the cost of prosecution in this case. It's somewhere in the three to $500 range. And that-Mr. Matthews would agree to that.
Beyond that, Your Honor, that's the extent to the agreement in this case.

The court accepted Matthews's guilty plea.

At sentencing, the State requested that Matthews be ordered to pay $200.00 in restitution for laboratory tests and $524.12 for prosecution costs in the case. Matthews's counsel stated he did not object to the laboratory-costs restitution, but made no mention of the prosecution costs. After hearing arguments and hearing directly from Matthews, the district court sentenced Matthews to seven years with three years fixed and the remaining four years indeterminate. The district court also ordered Matthews to pay $285.50 in court costs and $200.00 in restitution for laboratory tests pursuant to Idaho Code section 37-2732(k). The district court, however, declined to order restitution for prosecution costs. Speaking directly to Matthews, the district court provided a rationale for denying restitution:

So one thing that you said in the presentence report that I agree with-and I wrote this down. This is a quote from you. You said, "My only concern with my plea bargain is that I have to pay three to $500 for having a hearing to suppress evidence. I would rather have to pay court costs than have to pay for exercising my constitutional right."
And that jumped out at me because I agree with you on that. I am not going to impose the restitution that you agreed to, frankly, for prosecution costs in the amount of $524.12.

Matthews timely appealed his sentence arguing that the district court abused its discretion by failing to consider mitigating factors. The State cross-appealed arguing that the trial court abused its discretion in deciding not to award prosecution costs under Idaho Code section 37-2732(k) because the trial court's rationale for doing so was inconsistent with relevant legal standards. Matthews also filed a motion pursuant to Idaho Criminal Rule 35 for a reduction of sentence on August 28, 2017, which the district court denied. Matthews does not challenge the denial of that motion on appeal.

II. ISSUES ON APPEAL

1. Did the district court abuse its discretion by sentencing Matthews to seven years, with three years fixed for felony possession of a Schedule II controlled substance?

2. Did the district court abuse its discretion by acting inconsistent with relevant legal standards when it declined to award the total amount of the agreed-to restitution for prosecution costs under Idaho Code section 37-2732(k) ?

III. STANDARD OF REVIEW

This Court uses an abuse-of-discretion standard of review to determine whether a sentence is excessive, State v. McIntosh , 160 Idaho 1, 8, 368 P.3d 621, 628 (2016), as well as to evaluate a district court's decision regarding restitution under section 37-2732(k) of the Idaho Code. State v. Kelley , 161 Idaho 686, 691, 390 P.3d 412, 417 (2017). Under this standard, this Court considers whether the trial court: "(1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of its discretion; (3) acted consistently with the legal standards applicable to the specific choices available to it; and (4) reached its decision by an exercise of reason." Lunneborg v. My Fun Life , 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).

IV. ANALYSIS

A. The district court did not abuse its discretion in sentencing Matthews to a unified seven-year sentence with three years fixed because that sentence was reasonable in light of the record before the court.

Matthews argues that "given any view of the facts, his unified sentence of seven years, with three years fixed, is excessive." Matthews argues that his sentence "was not reasonable considering the nature of his offense ... his character, and ... was not necessary to protect the public interest." Matthews points to multiple character-reference letters from family and friends which, according to Matthews, illustrate that he is "a good person struggling with a serious addiction, not a hardened criminal." Matthews also argues that he "was not violent and posed no risk to the public in this case."

Generally, when appealing a sentence as an abuse of discretion, the appellant "must establish that, under any reasonable view of the facts, the sentence was excessive considering the objectives of criminal punishment." State v. Varie , 135 Idaho 848, 856, 26 P.3d 31, 39 (2001) (citing State v. Wolfe , 99 Idaho 382, 384, 582 P.2d 728, 730 (1978) ). "Those objectives are (1) protection of society; (2) deterrence of the individual and the public generally; (3) the possibility of rehabilitation; and (4) punishment or retribution for wrong-doing." Id. (quotation marks omitted).

"When reviewing whether a sentence is excessive, [this Court] review[s] all the facts and circumstances in the case and focus[es] on whether the trial court abused its discretion in fixing the sentence." State v. Baker , 136 Idaho 576, 577, 38 P.3d 614, 615 (2001) (citing State v. Zaitseva , 135 Idaho 11, 13 P.3d 338 (2000) ). Where, as here, the district court imposes a sentence within the statutory limits, "the appellant bears the burden of demonstrating that it is a clear abuse of discretion." State v. Miller , 151 Idaho 828, 834, 264 P.3d 935, 941 (2011) (quoting State v. Windom , 150 Idaho 873, 875, 253 P.3d 310, 312 (2011) ). "In deference to the trial judge, this Court will not substitute its view of a reasonable sentence where reasonable minds might differ." State v. Stevens, 146 Idaho 139, 148-49, 191 P.3d 217, 226-27 (2008).

The sentence in this matter may seem harsh based upon the fact this arrest was for a relatively small amount of methamphetamine. However, that is not the final determining factor.

Matthews began his interactions with drug usage and law-enforcement intervention while he was sixteen years old in 1997. Two years later, before turning eighteen, he had another juvenile citation for possession of marijuana. He had his first felony arrest and conviction for aggravated assault in 2000. Another conviction followed for a federal arrest for passing counterfeit Federal Reserve notes in 2002. His third felony conviction was for aggravated assault in 2009. Throughout his supervision, he has violated probation or parole terms. Such a record of long-term substance abuse and violence would support this sentence. However, the sentencing judge also considered Matthews's consistent denial of responsibility for his conduct both during the sentencing hearing and in the presentence report. Taking the record before us as a whole, Matthews's sentence is well within the sentencing judge's discretion.

B. The district court did not abuse its discretion by declining to award full restitution despite making a statement that could be construed as contrary to this Court's precedent.

On cross appeal, the State argues that the district court abused its discretion by declining to order the full amount of restitution asked for by the State under Idaho Code section 37-2732(k) (" section 37-2732(k)"). Prior to declining those costs, the district court stated that it agreed with one of Matthews's statements where he said that he "would rather have to pay court costs than have to pay for exercising [his] constitutional right." Presuming that Matthews was referring to his Sixth Amendment right to present a defense, the State argues that the district court's agreement with his statement is the only basis for the court's decision to decline restitution for prosecutorial costs. Since that basis conflicts with this Court's decision in State v. Kelley , 161 Idaho 686, 390 P.3d 412 (2017), the State contends that the district court failed to act consistently with relevant legal standards and thereby failed the third prong of the abuse-of-discretion analysis. This argument is unpersuasive.

Under section 37-2732(k), a district court "may order restitution for costs incurred by law enforcement agencies in investigating the violation [of the Uniform Controlled Substances Act]." The "award of restitution under section 37-2732(k) is not mandatory"; it is within the sentencing judge's discretion. State v. Cunningham , 161 Idaho 698, 702, 390 P.3d 424, 428 (2017) ; see also Kelley , 161 Idaho at 691, 390 P.3d at 417. Various factors may inform a district court's decision whether to award section 37-2732(k) restitution:

When deciding whether restitution is proper, factors to consider include other fines imposed, victim restitution, assets, and previous and prospective earning abilities. Additionally, where relevant, the factors set forth under the general restitution statute, Idaho Code section 19-5304(7), may be considered.

Cunningham , 161 Idaho at 702, 390 P.3d at 428. The factors set out in the general restitution statute are,

the amount of economic loss sustained by the victim as a result of the offense, the financial resources, needs and earning ability of the defendant, and such other factors as the court deems appropriate. The immediate inability to pay restitution by a defendant shall not be, in and of itself, a reason to not order restitution.

I.C. § 19-5304(7).

As opposed to when it declines to award full restitution under the general restitution statute, a district court declining to award full restitution under section 37-2732(k) is not statutorily required to enter an order explaining its reasons for doing so. Compare I.C. § 19-5304(3) ("If the court determines that restitution is inappropriate or undesirable or if only partial or nominal restitution is ordered, it shall enter an order articulating the reasons therefor on the record."), with I.C. § 37-2732(k).

In Kelley , this Court held that section 37-2732(k) does not impermissibly chill a defendant's rights under the Sixth and Fourteenth Amendments to the United States Constitution. 161 Idaho at 691, 390 P.3d at 417. After initially pleading not guilty to a charge of trafficking marijuana, the defendant entered a conditional guilty plea after having his motion to suppress denied. Id. at 688, 390 P.3d at 414. The State originally sought restitution for over $7,000 in prosecution costs, but the trial court declared the request excessive and awarded restitution in the amount of $2,640. Id . After the defendant appealed, the Court of Appeals vacated the award and remanded on the basis of insufficient evidence for the restitution award. Id. This Court granted the State's subsequent petition for review. Id.

Unlike the trial court or Court of Appeals, this Court reached the defendant's constitutional arguments. Id. at 689, 390 P.3d at 415. The defendant argued that section 37-2732(k)"impermissibly chills Sixth Amendment rights to stand trial and present a defense by punishing defendants who exercise these rights" and "violates the Fourteenth Amendment's right to equal protection by impermissibly burdening defendant with debts they cannot repay." Id. at 689, 691, 390 P.3d at 415, 417. The defendant elaborated by stating that "knowing he will be required to pay for each stage of the process will necessarily result in a chilling effect upon the assertion of his rights." Id . at 690, 390 P.3d at 416. This Court disagreed. For the Sixth Amendment claim, this Court held that U.S. Supreme Court precedent and its subsequent interpretation did not support the defendant's arguments. Id. at 690-91, 390 P.3d at 416-17. For the defendant's Fourteenth Amendment claim, this Court held that section 37-2732(k) does not violate the right to equal protection of the law because it "does not distinguish among defendants on any ground." Id. at 691, 390 P.3d at 417.

Given the holding in Kelley and the State's assumption that Matthew's statement refers to the Sixth Amendment right to stand trial and present a defense, the State argues that the district court abused its discretion by adopting Matthews's reasoning. However, the State's argument relies on too many inferences. The State's argument is unpersuasive because: (1) the district court awarded partial restitution for laboratory fees under section 37-2732(k) ; and (2) there is evidence in the record suggesting that the district court's comments were not the "sole rationale" for declining to award full section 37-2732(k) restitution.

The State's argument disregards the district court's award of $200 in section 37-2732(k) restitution for laboratory costs. The State asks this Court to accept a view of events where the district court refused to award section 37-2732(k) restitution because it believed that section 37-2732(k) was unconstitutional, yet still awarded restitution under the statute. We take a different view. By awarding laboratory costs under section 37-2732(k), the district court demonstrated an intent to give effect to section 37-2732(k), but declined to award the full restitution. Therefore, contrary to the State's argument, the district court's statement can be viewed apart from its decision to decline section 37-2732(k) restitution.

The rationale expressed in the district court's statement can be severed from its decision to award partial restitution because there is no indication in the record that the comment was the district court's only rationale. The State argues that because the comment was the lone rationale voiced at the hearing, it must be taken as the only possible rationale. But this view isolates the district court's comment and strips the comment of the context in which it was made. We decline to adopt such a restrictive view. Here, the district court was not statutorily required to articulate its reasoning for declining to award total or partial restitution for prosecution costs. Therefore, the articulation of one reason does not erase all others.

In reviewing the district court's decision, context suggests that the district court considered at least one proper factor in denying full restitution. Restitution was awarded in the broader context of a sentencing hearing where the district court imposed a sentence of three years fixed with four years indeterminate on Matthews. Based on this fact, it stands to reason that the district court considered Matthews's future earning capabilities since, by virtue of imposing the sentence, the district court knew those capabilities would be limited. This factor falls within the relevant legal standards. See Cunningham , 161 Idaho at 702, 390 P.3d at 428 ; I.C. § 19-5304(7). Therefore, the State's argument that the district court's comments were the only possible rationale for the district court's decision disregards a different reasonable possibility.

To the extent that the district court's comments can be construed to opine that Matthews's Sixth and Fourteenth Amendment rights under the U.S. Constitution would be impermissibly chilled by ordering restitution under section 37-2732(k), the State is correct that such comments are contrary to this Court's decision in Kelley and would represent a rationale inconsistent with the relevant legal standards. But since the statements do not represent the sole basis for the district court's decision, and because the district court demonstrated an intent to give effect to section 37-2732(k), we hold that the district court did not abuse its discretion by declining to award the State the full amount of restitution requested.

V. CONCLUSION

We conclude: (1) the district court did not abuse its discretion in sentencing Matthews to a unified term of seven years, with three years fixed because such a sentence was reasonable given the record; and (2) the district court did not abuse its discretion by declining to order the full amount of restitution despite articulating a rationale inconsistent with relevant legal authority. Accordingly, Matthews's sentence and the restitution order are affirmed.

Justices BRODY, BEVAN, STEGNER and HORTON concur.

      The defendant in Kelley did not argue his claims under the Idaho Constitution.


source: Caselaw Access Project

license: Public Domain

text:
    Ryan MCFARLAND and Kathryn McFarland, Plaintiffs-Appellants, v. LIBERTY INSURANCE CORPORATION, Defendant-Respondent.
    Docket No. 45781
    Supreme Court of Idaho, Boise, December 2018 Term.
    Opinion Filed: January 30, 2019
    McFarland Ritter, Meridian, for appellant. Ryan T. McFarland argued.
    Anderson Julian & Hull, Boise, for respondent. Robby J. Perucca argued.
   BURDICK, Chief Justice.

The appellants in this case, Ryan and Kathryn McFarland, own real property in Garden Valley, Idaho. The property features three structures: a main cabin; a detached garage with an upstairs "bonus room"; and a pump house containing a geothermal well. The McFarlands insured the property with a policy through the respondent, Liberty Mutual Insurance Group, Inc. ("Liberty"). The policy provides two types of coverage for structures. Coverage A ("Dwelling Coverage") provides up to $188,500 in coverage for "the dwelling on the 'residence premises'... including structures attached to the dwelling ..." and Coverage B ("Other Structures Coverage") provides up to $22,350 for "other structures on the 'residence premises' set apart from the dwelling by clear space."

In February 2017, a radiant heater burst in the bonus room and damaged the garage and its contents. After the McFarlands filed a claim, Liberty stated that the damage was covered under the policy. Believing the damage to fall under the Dwelling Coverage, the McFarlands hired contractors to repair the damage. However, after Liberty paid out a total of $23,467.50 in March 2017, Liberty stated that the coverage was exhausted because the damage fell under the Other Structures Coverage. This led the McFarlands to file a complaint in Ada County district court in July 2017, in which they alleged, among other claims, breach of contract based on Liberty's interpretation of the policy. The parties filed cross motions for summary judgment on the issue of whether the damage fell under the Dwelling Coverage or the Other Structures Coverage. Ruling that the policy unambiguously provided coverage for the garage under the Other Structures Coverage, the district court denied the McFarlands' motion and granted Liberty's. The McFarlands timely appealed. We reverse the award of summary judgment and remand the case for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

The McFarlands own roughly one acre of vacation property in Boise County, Idaho. The vacation property features three structures: (1) a cabin, containing a kitchen, bathroom, and bedroom; (2) a freestanding building which features a bonus room atop a garage; and (3) a freestanding pump house which pumps geothermal water from a well to the other structures for heat.

According to the McFarlands, Kathryn McFarland contacted Liberty around September 2015 to purchase a homeowner's insurance policy for the vacation property. Kathryn described all three structures and explained that the McFarlands regularly used the garage and bonus room as a place for family members to recreate, work, and sleep. Liberty issued the McFarlands a policy providing for four types of coverage: the Dwelling Coverage; the Other Structures Coverage; Coverage C-Personal Property; and Coverage D-Loss of Use.

The Dwelling Coverage provides:

We cover:
1. The dwelling on the "residence premises" shown in the Declarations, including structures attached to the dwelling; and
2. Materials and supplies located on or next to the "residence premises" used to construct, alter or repair the dwelling or other structures on the "residence premises."
This coverage does not apply to land, including land on which the dwelling is located.

The policy does not define "dwelling," but does define "residence premises" as:

a. The one family dwelling, other structures, and grounds; or
b. That part of any other building;
where you reside and which is shown as the "residence premises" in the Declarations.
"Residence premises" also means a two family dwelling where you reside in at least one of the family units and which is shown as the "residence premises" in the Declarations.

Like the Dwelling Coverage, the Other Structures Coverage also defines its coverage by reference to the "residence premises":

We cover other structures on the "residence premises" set apart from the dwelling by clear space. This includes structures connected to the dwelling by only a fence, utility line, or similar connection.
This coverage does not apply to land, including land on which the other structures are located.
We do not cover others structures:
1. Used in whole or in part for "business"; or
2. Rented or held for rental to any person not a tenant of the dwelling, unless used solely as a private garage.
The limit of liability for this coverage will not be more than 10% of the limit of liability that applies to [the Dwelling Coverage]. Use of this coverage does not reduce the [the Dwelling Coverage] limit of liability.

Since first purchasing the policy, the McFarlands have renewed the policy annually and paid their premiums on time and in full.

Around February 15, 2017, a radiant heater in the bonus room failed causing geothermal water to pour out. A continuous flow of hot water soaked the walls and floors of the bonus room and the garage below. Because the property was unoccupied at the time, the McFarlands did not discover the running water for about two days. Upon discovery of this situation, the McFarlands promptly shut off the water and filed a claim with Liberty. Water damage destroyed both physical components of the garage structure (e.g., drywall, doors, overhead garage doors, plumbing and electrical components) as well as the McFarlands' personal property (e.g., a queen bed, leather sofa, ping-pong table, desk, bookshelf, etc.).

Without objection from Liberty, the McFarlands contracted with a water-remediation company for a remediation plan and equipment. By March 9, 2017, around three weeks after the McFarlands reported the damage, Liberty had paid $10,261.14 to the water-remediation company and $13,206.26 to the McFarlands. The McFarlands' out-of-pocket costs for the remediation of the structural damage-not including personal property-was $30,075.91. This amount was for $4,329.17 in invoices for the water-remediation company and $25,746.74 in repair quotes. After an investigation, Liberty informed the McFarlands that the damage was covered under the Other Structures Coverage. Liberty notified the McFarlands that the Other Structures Coverage limit of $22,350 (plus 5% for debris removal) had been reached and Liberty would not issue further payments.

Believing the damage fell under the Dwelling Coverage, the McFarlands disputed Liberty's assessment of coverage and ultimately filed a complaint in Ada County district court alleging breach of contract with damages of $15,869.55 related to lack of payment for structural damage under the policy.

After Liberty filed an answer and demand for jury trial, the McFarlands moved for summary judgment on the breach-of-contract claim, arguing that the policy unambiguously provided coverage for the garage under the Dwelling Coverage. Alternatively, the McFarlands argued that the policy is ambiguous requiring strict construction in their favor. Liberty responded by filing a motion for summary judgment arguing that the policy unambiguously delineated coverage for the garage under the Other Structures Coverage.

Granting Liberty's motion for summary judgment, the district court ruled the policy was unambiguous and dismissed the McFarlands' breach-of-contract claim. The district court determined that the Dwelling Coverage referred to a singular structure, the term "dwelling" is synonymous with "house," and, as a result, the garage and bonus room did not fit the definition of "dwelling" and were therefore covered by the Other Structures Coverage. A final judgment was entered to that effect and the McFarlands timely appealed.

II. ISSUES ON APPEAL

A. Is the term "dwelling" ambiguous as used in the McFarlands' homeowner's insurance policy?

B. If "dwelling" is ambiguous, does this Court construe it in favor of the McFarlands?

C. Is Liberty entitled to costs and attorney's fees on appeal?

III. STANDARD OF REVIEW

This Court reviews the grant of a motion for summary judgment de novo and applies the same standard of review the district court used in ruling on the motion. Tiller White, LLC v. Canyon Outdoor Media , LLC, 160 Idaho 417, 419, 374 P.3d 580, 582 (2016). Summary judgment is appropriate "only if the evidence in the record and any admissions show that there is no genuine issue of any material fact regarding the issues raised in the pleadings and that the moving party is entitled to judgment as a matter of law." Fisher v. Garrison Prop. & Cas. Ins. Co. , 162 Idaho 149, 152, 395 P.3d 368, 371 (2017) (citing Infanger v. City of Salmon , 137 Idaho 45, 47, 44 P.3d 1100, 1102 (2002) ); I.R.C.P. 56. Where, as here, the parties have filed cross motions for summary judgment, the standard of review does not change. Tiller White, LLC , 160 Idaho at 419, 374 P.3d at 582 (citing Shawver v. Huckleberry Estates, L.L.C. , 140 Idaho 354, 360, 93 P.3d 685, 691 (2004) ).

Interpretation of an insurance contract is a question of law. Fisher , 162 Idaho at 153, 395 P.3d at 372.

IV. ANALYSIS

On appeal, the McFarlands argue that the policy unambiguously provides coverage for the garage and bonus room under the Dwelling Coverage and, even if this Court finds the policy ambiguous, then the district court erred by failing to strictly construe the policy in their favor. In reply, Liberty argues the policy unambiguously provides coverage for the garage under the Other Structures Coverage, and, even if "dwelling" is ambiguous, strict construction is inapplicable because the policy does not exclude coverage. Because both parties believe the policy to unambiguously provide coverage for their position, yet make arguments in the alternative, we first address whether the policy is ambiguous and then take up the issue of construing the policy.

A. An ambiguity exists in the McFarlands' policy because the policy fails to define the term "dwelling" and the term is reasonably subject to differing interpretations.

The question of "whether a policy is ambiguous is a question of law over which this Court exercises free review." Farmers Ins. Co. of Idaho v. Talbot , 133 Idaho 428, 432, 987 P.2d 1043, 1047 (1999). "Beginning with the plain language of the insurance policy, the first step is to determine whether or not there is an ambiguity." Clark v. Prudential Prop. & Cas. Ins. Co. , 138 Idaho 538, 540-41, 66 P.3d 242, 244-45 (2003) (citing Martinez v. Idaho Counties Reciprocal Management Program , 134 Idaho 247, 250, 999 P.2d 902, 905 (2000) ). If the policy's language is clear, then "the language will be given its plain and ordinary meaning." Farm Bureau Mut. Ins. Co. of Idaho v. Schrock , 150 Idaho 817, 821, 252 P.3d 98, 102 (2011) (citing Farm Bureau Ins. Co. of Idaho v. Kinsey , 149 Idaho 415, 419, 234 P.3d 739, 743 (2010) ). Likewise, "unless a contrary intent is shown, common, non-technical words are given the meaning applied by laymen in daily usage-as opposed to the meaning derived from legal usage-in order to effectuate the intent of the parties." Fisher , 162 Idaho at 153, 395 P.3d at 372 (citing Howard v. Oregon Mut. Ins. Co. , 137 Idaho 214, 218, 46 P.3d 510, 514 (2002) ). An ambiguity exists where a provision "is reasonably subject to differing interpretations." Markel Int'l Ins. Co., Ltd. v. Erekson , 153 Idaho 107, 109, 279 P.3d 93, 95 (2012).

Because insurance policies are adhesion contracts not typically subject to negotiation between the parties, "all ambiguities in an insurance policy are to be resolved against the insurer...." Howard , 137 Idaho at 217, 46 P.3d at 513 (citing City of Boise v. Planet Ins. Co. , 126 Idaho 51, 55, 878 P.2d 750, 754 (1994) ). "The burden is on the insurer to use clear and precise language if it wishes to restrict the scope of coverage and exclusions not stated with specificity will not be presumed or inferred." Clark , 138 Idaho at 541, 66 P.3d at 245.

1. The policy fails to demonstrate an intent to use a definition of "dwelling" other than the common, everyday definition.

This Court will look to the common definition of a term unless there is an indication in the policy that the "dwelling" was intended to carry a technical definition, Fisher , 162 Idaho at 153, 395 P.3d at 372, or the term carries a settled legal definition. Melichar v. State Farm Fire & Cas. Co. , 143 Idaho 716, 721, 152 P.3d 587, 592 (2007). We find no such indication in the McFarlands' policy.

First, the McFarlands' policy fails to define the term "dwelling" despite defining various other terms. This Court has previously held that failing to define a term when there are other defined terms weighs in favor of ambiguity. See Arreguin v. Farmers Ins. Co. of Idaho , 145 Idaho 459, 462, 180 P.3d 498, 501 (2008). Here, the McFarlands' policy defines: "you"; "your"; "we"; "us"; "our"; "bodily injury"; "business"; "insured"; "insured location"; "occurrence"; "property damage"; "residence employee"; and "residence premises". These terms would undoubtedly carry their provided technical definitions. By failing to define the term, "dwelling," the McFarlands' policy does not convey a contrary intent to assign a technical definition to "dwelling" in lieu of its common, everyday definition. See, e.g. , LeMars Mut. Ins. Co. v. Joffer , 574 N.W.2d 303, 307 (Iowa 1998) ("When words or phrases are undefined in a policy we do not give them a technical or legal meaning. Rather, undefined words are given their ordinary meaning.").

Second, the McFarlands' policy does not refer to a word or phrase that has a settled legal meaning within this jurisdiction. Liberty is correct to point out that simply because a policy term is undefined does not render it automatically ambiguous. See Melichar , 143 Idaho at 721, 152 P.3d at 592 (2007) (holding that the term "occur" was not ambiguous because this Court's prior case law made its meaning clear). But this Court has placed an important caveat on this observation: The "mere fact that a term is undefined in a policy does not make that term ambiguous if it has a settled legal meaning." Id. Here, the parties have not provided Idaho case law providing a settled legal meaning of "dwelling." The McFarlands provide two cases interpreting insurance policies which found "dwelling" and "house" to encompass more than one building, and provided other legal contexts in which "dwelling" has been read to support their position. The bulk of the legal definitions provided by the McFarlands show that "dwelling" carries different legal meanings in different contexts, rather than a singular, settled legal meaning that supports their position. But, in general, "dwelling" is most often used as shorthand for "dwelling-house" and denotes "a structure in which human beings sleep." Bryan A. Garner, Garner's Dictionary of Legal Usage 302-03 (3d ed. 2011). However, the terms "dwelling" and "dwelling-house" typically name the subject of common-law burglary, which is not the context here. Id.

Instead of providing its own definition or referencing a settled legal definition, the policy demarcates the term's possible meaning by reference and description. The Dwelling Coverage states "[t]he dwelling on the 'residence premises' shown in the Declarations, including structures attached to the dwelling; ..." The policy defines "residence premises" as "[t]he one family dwelling, other structures, and grounds ... where you reside and which is shown as the 'residence premises' in the Declarations." But the Declarations do not contain a description of the dwelling or the residence premises, only a street address:

Insured Location
138 Castle Mountain Dr
Garden Valley ID 83622-5156

The policy defines "insured location" as "[t]he 'residence premises'; the part of other premises, others structures and grounds used by you as a residence and ... [w]hich is shown in the Declarations...."

As a result, the policy defines "dwelling" by a series of internal references and description rather than by a technical or settled legal definition. This system of definition by reference and description is not per se ambiguous. For example, such a description would be adequate were there only one structure on the property used for habitation. See Fisher , 162 Idaho at 152, 395 P.3d at 371. Likewise, if the policy contained a simple description of the structure or structures intended to be considered "the dwelling" under the policy, there would likely be no question as to whether dwelling referred solely to the cabin or to the cabin and the garage collectively. But, despite being the party in the best position to make clear what "the dwelling" referred to, Liberty failed to provide a definition that clearly defined its scope, so this Court will turn to "the meaning applied by laymen in daily usage" to determine whether "dwelling" is reasonably subject to differing interpretations. Fisher , 162 Idaho at 153, 395 P.3d at 372.

2. Using the meaning of "dwelling" applied by laymen in daily usage yields two reasonable interpretations.

To determine whether "dwelling" is subject to more than one reasonable interpretation, the meaning applied to "dwelling" by laymen in everyday usage must be determined. See Fisher , 162 Idaho at 153, 395 P.3d at 372. An examination of reference materials is helpful in this regard. Id. The district court used three online resources: Merriam Webster, Google, and the Cambridge Dictionary. These searches yielded, respectively: "a shelter (such as a house) in which people live"; "a house, apartment, or other place of residence"; and "a place where people live." Concluding "the term dwelling is synonymous with house," the district court ruled that the garage structure could not be a dwelling because it lacked the features of a house, such as a full bathroom and kitchen. The parties both contend that these definitions unambiguously support their position.

The McFarlands rely on the "residence" and "living" definitional elements of "dwelling." They point out that family members "routinely occupy and sleep" in the bonus room and "regularly" use the garage "as a recreational and work space" and both areas "were heated and had lighting for regular use." By contrast, Liberty relies on the district court's analysis, arguing that dwelling "clearly defines a specific type of structure." Liberty states that the McFarlands' interpretation would require "that any structure utilized for any daily living activity" would be covered under the Dwelling Coverage. Liberty continues to say that such an interpretation would "nullify the purposes" of the Other Structures Coverage, because the Other Structures Coverage is supposed to apply to any structure-regardless of use-so long as the structure is not attached to the dwelling. Because we find that both interpretations are reasonable, we hold that the meaning applied by laymen in everyday usage yields two reasonable possibilities.

First, the district court's analysis focusing on whether the garage had all the features of a house is misplaced. That analysis is geared toward determining whether the policy covers two separate dwellings, rather than whether a singular dwelling can encompass two separate structures. The policy provides for only one dwelling by using the singular noun, "dwelling." See Webster's Third New Int'l Dictionary 706 (1971). If the policy contemplated multiple dwellings, it could have used the plural "dwellings" instead. See id. Likewise, the district court's determination that the policy reference to "the dwelling" indicates an intention to refer to a singular structure is similarly misplaced. The definite article "the" in this situation is "used as a function word to indicate that the following noun ... refers to ... something previously mentioned or clearly understood from the context or the situation." See Webster's Third New Int'l Dictionary 2368 (1971). The presence of the definite article "the" in this situation is of little help in determining whether the singular noun "dwelling" can encompass two buildings.

Second, based on the definitions used by the district court, it is unclear whether "dwelling" is synonymous with house. Upon examination of additional reference materials, it appears that while "house" and "dwelling" share a definitional element, they are not true synonyms. A survey of multiple dictionaries reveals that the principal element of a dwelling is residence or habitation. See, e.g. , The Oxford English Dictionary V 3 (2nd ed. 1991) ("2. Continued, esp. habitual residence; abode.... † b. 'Residence', accommodation. Obs .... 3. concr . A place of residence; a dwelling-place, habitation, house."); Webster's Third New Int'l Dictionary 706 (1971) ("a building or construction used for residence: abode, habitation"); Merriam-Webster's Collegiate Dictionary 389 (11th ed. 2003) ("a shelter (as a house) in which people live."); The New Oxford American Dictionary 532 (2001) ("a house, apartment, or other place of residence."); Webster's II New College Dictionary (1999) ("An abode: residence."). These definitional elements suggest that determining whether the space or structure qualifies as a "dwelling" depends upon whether it is inhabited. However, the definitions vary on how they define the inhabited space. Some use the more nebulous "place" while others use the more specific "structure."

To illustrate, the Oxford English Dictionary provides that where, as here, "the dwelling" refers to a concrete place, "dwelling" means "[a] place of residence; a dwelling-place, habitation, house." The Oxford English Dictionary V 3 (2nd ed. 1991). Yet this definition does not, as contended by Liberty, "clearly define[ ] a specific type of structure." Rather, the structural possibilities are "a place of residence," "habitation," or "house." Indeed, while the habitation requirement is the primary element of "dwelling," the secondary spatial grouping can be categorized into two categories: (1) the more definite, "house" or (2) the more nebulous "place" or "habitation." Important here is that one spatial element does not predominate over the other. Both are reasonable interpretations under the common definition of the word. Of the reference materials cited, all definitions provided that the place must be used as a residence. Three listed the open-ended term, "abode," in the definition. See Webster's Third New Int'l Dictionary 4 (1971) (defining "abode" as "a place where one abides or dwells : home"). Likewise, three provided "house" in the definition, although most often as an example or within a list. See, e.g. , Merriam-Webster's Collegiate Dictionary 389 (11th ed. 2003) ("a shelter (as a house) in which people live."); The New Oxford American Dictionary 532 (2001) ("a house, apartment, or other place of residence."). Therefore, one definition does not control over the other.

Accordingly, the more general "place of residence" and the more definite "house" are both reasonable interpretations of the common definition of "dwelling."

3. Reading the policy as a whole does not advance one interpretation of "dwelling" over the other.

This Court "must construe the policy as a whole, not by an isolated phrase." Cascade Auto Glass, Inc. v. Idaho Farm Bureau Ins. Co. , 141 Idaho 660, 663, 115 P.3d 751, 754 (2005) (internal quotation and citation omitted). Although reading a term or provision in isolation can create an ambiguity, reading the policy as a whole can remove the ambiguity by rendering one of the possible interpretations unreasonable. Here, the policy supports both possible interpretations of "dwelling." Therefore, both interpretations are reasonable and the term is ambiguous as used in the policy.

Contrary to Liberty's argument that a multi-structure definition of dwelling would "nullify" the purpose of the Other Structures Coverage, the policy permits such an interpretation due to its scheme of delineating coverage by reference. The practical effect of a two-structure dwelling would be two points of reference for the competing coverages; here, the cabin and the garage. The Dwelling Coverage would cover both structures as well as any structures attached to them. The Other Structures Coverage would continue to cover those structures set apart from the two dwelling structures by clear space. Here, the structure set apart from the cabin and garage by clear space is the pump house. Because the Other Structures Coverage still covers the pump house, the coverage is not nullified. This fact also shows that an insured with the understanding that "dwelling" referred to more than one structure would not be alerted to Liberty's contrary interpretation based solely on the policy's language.

Further bolstering the reasonableness of the McFarlands' interpretation is that other courts have found that "dwelling" is not limited to a singular structure in similar policies. In addition to the cases cited by the McFarlands, the Kansas Supreme Court also weighed in on the issue in Coffey v. Girard Insurance Company of Philadelphia, Pennsylvania when it had to determine coverage for a property's second structure that was destroyed in a fire. 182 Kan. 599, 322 P.2d 345, 347 (1958). In Coffey , the insured argued that the second structure was fully covered as part of the "dwelling" or "building equipment and fixtures and outdoor equipment appertaining to the service of the premises." Id. The insurance company argued the structure was entitled to 10% of that coverage as a "private structure appertaining to the dwelling." Id. The second structure contained a bathroom, a shower room, and a general utility room. Id. It also housed the hot water tank that supplied hot water to the kitchen of the main structure. Id. The main structure featured two bedrooms, a screened porch, a living room, kitchen, and dining area. Id. Both structures received cold water through a common well and plumbing as well as shared the same gas, electric, and sewer lines. Id.

While ultimately rejecting the insured's argument that the second structure was part of the dwelling, the court nevertheless held the building was fully covered as "building equipment and fixtures ... appertaining to the service of the premises." Id. at 348. Relevant here, however, is the Coffey court's statement that the insured's argument contending that the second structure was part of the dwelling was unpersuasive because the second structure was not used for habitation. Id. ("It is inherently clear from the facts that the second structure was not in any way occupied by the insureds as a 'dwelling' but only 'as equipment and fixtures appertaining to the service of the dwelling.' "). This conclusion supports the reasonableness of a multi-structure dwelling definition within the context of an insurance policy. Here, the cabin and garage are less complementary than the structures in Coffey , but they nevertheless share common plumbing and electricity. Though most important in this case is that the McFarlands' garage boasts what the Coffey structure lacked: active habitation. It is alleged that members of the McFarland household regularly occupied the structure for work, recreation, and sleep. Because the policy does not foreclose the possibility of a multi-structure dwelling, the McFarlands' interpretation of the term is a reasonable one.

In conclusion, the McFarlands' policy fails to provide a clear definition of "dwelling." The policy fails to define the term and lacks an intent to assign a technical definition or reference a settled legal definition. The common everyday usage of the term yields two reasonable interpretations of the term. Because the policy does not render one of these interpretations unreasonable, the policy is reasonably subject to conflicting interpretations. Therefore, we hold that the McFarlands' policy is ambiguous regarding whether "dwelling" covers only the cabin or both the cabin and the garage.

B. Because the term "dwelling" is ambiguous as used in the McFarlands' policy, we construe it in the McFarlands' favor.

This Court has held that "[a]ny ambiguities should be resolved in favor of the insured, and where language may be given two meanings, one of which permits recovery while the other does not, the policy should be given the construction most favorable to the insured." Cherry v. Coregis Ins. Co. , 146 Idaho 882, 884, 204 P.3d 522, 524 (2009) (citing Foremost Ins. Co. v. Putzier , 102 Idaho 138, 142, 627 P.2d 317, 321 (1981) ). The McFarlands argue that this Court should strictly construe the ambiguous language against Liberty. Liberty argues that strict construction is applicable only when the provision seeks to exclude coverage. Yet, as Liberty's counsel conceded at oral argument, this Court has held, "because insurance policies are contracts of adhesion that are not usually subject to negotiation between the parties, any ambiguity in a policy is construed strongly against the insurer." Farm Bureau Mut. Ins. Co. of Idaho v. Schrock , 150 Idaho 817, 821, 252 P.3d 98, 102 (2011) (quoting Farm Bureau Ins. Co. of Idaho v. Kinsey , 149 Idaho 415, 419, 234 P.3d 739, 743 (2010) ). In line with this rationale and counsel's concession, we construe "dwelling" as used in the McFarlands' policy to encompass both the cabin and the garage.

C. Attorney's Fees

Liberty requests attorney's fees under sections 12-120(3) and 12-121 of the Idaho Code. Both statutes require Liberty to prevail on appeal in order to be entitled to attorney's fees. Because Liberty has not prevailed on appeal, they are not entitled to attorney's fees under either statute. Partout v. Harper , 145 Idaho 683, 690, 183 P.3d 771, 778 (2008). Consequently, we decline to award Liberty attorney's fees on appeal. The McFarlands do not request attorney's fees on appeal.

V. CONCLUSION

For the reasons stated above, the McFarlands' policy contains an ambiguity regarding whether the term "dwelling" encompasses just the cabin or both the cabin and garage. Because we find the term to be ambiguous as used in the policy, we construe it in favor of the McFarlands and find that the term encompasses both the cabin and garage. We reverse the award of summary judgment in favor of Liberty, and remand the case to the district court for further proceedings. Costs to the McFarlands.

Justices BRODY, BEVAN, STEGNER and HORTON concur.

      The McFarlands also alleged: breach of the covenant of good faith and fair dealing; bad faith; violation of the Idaho Consumer Protection Act; and unjust enrichment. The complaint further sought damages of $5,680.69 based on loss of personal property under Coverage C-Personal Property. The district court ruled that the McFarlands had not complied with the terms of the policy regarding the personal property, but that they were not prohibited from doing so going forward.
      After losing their summary judgment motion on the issue of coverage, the McFarlands stipulated with Liberty to dismiss the remaining claims without prejudice in order to pursue this appeal. The district court entered an order to that effect.

      See, e.g. , N. British & Mercantile Ins. Co. v. Tye , 1 Ga.App. 380, 58 S.E. 110, 111-12 (1907) ("So that the real question is, not whether a cluster of disconnected houses may or may not in some instances constitute a 'dwelling house' (to which proposition we fully agree), but whether it can be fairly understood as a part of the contract of insurance that 'a two-story frame building and its additions,' used as a dwelling house shall also include a servant's house 150 feet away, so as to render the insurer liable for damage by fire to the servant's house, though there was no fire or damage to the two-story frame building."); Workman v. Ins. Co. , 2 La. 507, 509 (La. 1831) ("In the common and ordinary acceptation, every thing appurtenant and accessary to a main building would be embraced by [the word 'house']....").


author: MOELLER, Justice.

text:
    STATE of Idaho, Plaintiff-Respondent, v. Richard Paul MEYERS, Defendant-Appellant.
    Docket No. 46268
    Supreme Court of Idaho, Boise, January 2019 Term.
    Opinion filed: February 1, 2019
    Eric D. Fredericksen, State Appellate Public Defender, Boise, for Appellant. Ben P. McGreevy argued.
    Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Mark W. Olson argued.
   MOELLER, Justice.

Richard Meyers appeals from a judgment of conviction for grand theft on the grounds that he was denied his Sixth Amendment right to self-representation. For the reasons stated below, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Five days after his release from prison on an unrelated charge, Richard Meyers ("Meyers") was arrested for stealing a pickup truck. He was subsequently charged with felony grand theft, in violation of Idaho Code sections 18-2403(1), 18-2407(1)(b) and 18-2409, and assigned a public defender. With the assistance of his appointed counsel, Meyers pleaded not guilty and waived his right to a jury trial.

Two months later, dissatisfied with his assigned counsel's performance, Meyers filed a motion for a "change of an attorney" with the district court. A hearing on this motion was held, wherein the district court inquired about Meyers's problems with his attorney and questioned his counsel regarding trial preparation. After observing the court's colloquy with his counsel, Meyers withdrew his motion, indicating that he wanted to give his attorney "a chance," and that he could work with his counsel.

On the day set for trial, Meyers's counsel expressed concerns about his client's mental capacity. The district court questioned Meyers and ordered that Meyers undergo a competency evaluation. Although the evaluation report concluded that Meyers was competent to stand trial, the State believed that this conclusion was too tenuous and requested a second evaluation, which the court granted. The second evaluation concluded that Meyers was not competent to stand trial. Thus, the court ordered Meyers to undergo mental health treatment before proceeding.

After treatment, Meyers was deemed "fit to proceed" with trial, and his case was put back on the trial calendar. Throughout the competency hearings, Meyers repeatedly expressed dissatisfaction with the pace of the proceedings-at times directly addressing the court without the assistance or prior consent of his counsel. Consistent with this practice, when the court began proposing trial dates at the conclusion of the final competency hearing, Meyers spoke out, requesting that the court expedite the trial. The court responded that it was willing to set the trial for the week between Christmas and New Year's Day, but Meyers's counsel indicated that he was unavailable that week. Meyers requested that the court conduct the trial then and indicated that he would get a new public defender for the trial. Meyers's counsel indicated that this was not a possibility and the State expressed doubts about getting witnesses for the trial between the two holidays, so the court set the trial for January 25, 2017.

Later that day, Meyers sent a letter to the judge requesting that his one-day bench trial be set between Christmas and New Year's Day. Additionally, he informed the judge that he had fired his public defender, was "prepared to represent" himself, and would present his defense "as soon as is possible." In the letter, Meyers explained that "part of the reason" he was dismissing his assigned counsel was because postponing the trial would interfere with his transitional housing funding. He also discussed other objections he had previously raised about his counsel's performance. Meyers concluded the letter with the following sentence: "I choose to exercise the right to defend myself in this matter."

There are no indications in the letter that Meyers sent a copy to his public defender. The letter is stamped "received" the day after the hearing, and there is an electronic stamp on the letter indicating that it was scanned into the Odyssey system, but the record is silent as to what occurred after the district court received this letter. The letter was not written in the form of a motion for the appointment of new counsel; rather, it merely advised the court of Meyers's decision to "fire" his attorney of record and represent himself. Meyers did not submit a request for a hearing or attempt to schedule one. Nothing in the record suggests that the court ever saw the letter, or was made aware of its contents, prior to trial.

The bench trial occurred, as previously scheduled, on January 25, 2017. At trial, Meyers was represented by new counsel from the public defender's office. Before the trial began, the court confirmed that Meyers wished to proceed without a jury and asked if there were any other matters that needed to be addressed before the trial began. Meyers, through his new attorney, confirmed his decision to proceed with a bench trial. Meyers's counsel requested that Meyers's restraints be partially removed to free his hand so he could communicate with his counsel, but he did not raise any other issues at that time. During the trial, Meyers cooperated with his new attorney and eventually, with his attorney conducting the direct examination, testified on his own behalf. His attorney handled all aspects of the trial, and at no point during the trial did Meyers or his counsel mention his earlier request to represent himself. At the conclusion of the trial, the district court found Meyers guilty of grand theft. Thereafter, Meyers was sentenced to a unified term of seven years, with two years fixed.

Meyers appealed, arguing that his Sixth Amendment right to self-representation was violated by the district court's failure to discuss his letter, which contained the assertion of his right to self-representation. His appeal was first heard by the Idaho Court of Appeals. In an unpublished decision, it affirmed Meyers's conviction and sentence, holding that although Meyers clearly and unequivocally invoked his right to self-representation, he abandoned the invocation of that right by subsequent conduct. Because this case presents a constitutional issue of first impression in Idaho, this Court granted a Petition for Review.

II. STANDARD OF REVIEW

"While this Court gives serious consideration to the views of the Court of Appeals when considering a case on review from that court, this Court reviews the district court's decisions directly." Estrada v. State , 143 Idaho 558, 561, 149 P.3d 833, 836 (2006). Constitutional issues, such as a defendant's right to self-representation, are "pure questions of law over which this Court exercises free review." Id.

III. ANALYSIS

Meyers argues that the district court violated his right to self-representation as guaranteed by the Sixth Amendment to the U.S. Constitution by ignoring his request to represent himself. The State argues that Meyers did not unequivocally invoke his right to self-representation, and even if he did, he abandoned his request through his conduct.

The Sixth Amendment to the U.S. Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defence." Implicit in this protection is also the "right to proceed pro se when [the accused] voluntarily and intelligently elects to do so." State v. Hoppe , 139 Idaho 871, 874, 88 P.3d 690, 693 (2003) (citing Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ). The reason a defendant has the right to defend himself is because it is he, "and not his lawyer or the State, [who] bear[s] the personal consequences of a conviction. ... [a]nd although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of that respect for the individual which is the lifeblood of the law." Faretta , 422 U.S. at 834, 95 S.Ct. 2525 (internal quotations omitted). However, before a defendant waives his right to counsel and represents himself, the trial court has a duty to make the defendant "aware of the problems inherent in self-representation so that such waiver is knowingly and intelligently made." State v. Clayton , 100 Idaho 896, 897, 606 P.2d 1000, 1002 (1980) (referencing Argersinger v. Hamlin , 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) ). Further, the request to proceed pro se must be clear, unequivocal, and timely. State v. Lippert , 145 Idaho 586, 597, 181 P.3d 512, 523 (Ct. App. 2007) ; see also Adams v. Carroll , 875 F.2d 1441, 1444 (9th Cir. 1989) ("[T]he request to proceed without counsel [must] be unequivocal"); Brown v. Wainwright , 665 F.2d 607, 610 (5th Cir. 1982) ("In order for a defendant to represent himself, he must 'knowingly and intelligently' forego counsel, and the request must be 'clear and unequivocal' ") (quoting Faretta , 422 U.S. at 835, 95 S.Ct. 2525 ); Fritz v. Spalding , 682 F.2d 782, 784 (9th Cir. 1982) ("The constitutional right of self-representation ... must be timely asserted ... [A] motion to proceed pro se is timely if made before the jury is empaneled, unless it is shown to be a tactic to secure delay."). "To qualify as unequivocal, 'a defendant must make an explicit choice between exercising the right to counsel and the right to self-representation so that a court may be reasonably certain that the defendant wishes to represent himself.' " U.S. v. Carpenter , 680 F.3d 1101, 1102 (9th Cir. 2012) (quoting United States v. Arlt , 41 F.3d 516, 519 (9th Cir. 1994) ).

Meyers argues that he clearly and unequivocally invoked his right to self-representation in his letter to the court. We agree. His letter contained several statements that plainly invoked his right to proceed pro se. His letter indicated that (1) he had "fired" his court-appointed counsel, (2) he "was prepared to defend [him]self in this matter," and (3) he would present his defense "as soon as is possible." Further, Meyers concluded his letter with a formal invocation of this right: "I choose to exercise the right to defend myself in this matter." Certainly, this communication to the court was a clear and unequivocal invocation of Meyers's right to self-representation. Nevertheless, it was also an attempted ex parte communication with the trial judge-not a motion. What is less clear from the record is whether the judge ever viewed the letter.

Meyers argues that his constitutional right to self-representation was violated because there was no hearing addressing his request to proceed pro se, his request was never mentioned by the court, and he never abandoned his request. The State argues that Meyers abandoned his request to proceed pro se when he appeared with new counsel at the trial and failed to re-assert this request until after he was found guilty. Whether the presiding judge was aware-or should have been aware-of the request for self-representation is an issue we need not decide if Meyers abandoned his request. Based on the overwhelming evidence in the record, we agree with the State's position.

Not only must the Sixth Amendment right to self-representation be invoked unequivocally, the defendant's subsequent conduct must also indicate a continuing intention to proceed pro se. Brown , 665 F.2d at 611 ("Even if defendant requests to represent himself ... the right may be waived through defendant's subsequent conduct indicating he is vacillating on the issue or has abandoned his request altogether."). Indeed, "[a] waiver may be found if it reasonably appears to the court that defendant has abandoned his initial request to represent himself." Id.

Idaho has not yet adopted an approach for determining when the request for self-representation is abandoned or waived after it is invoked. Other jurisdictions have addressed this issue utilizing various approaches. For instance, in People v. Kenner , 223 Cal.App.3d 56, 272 Cal.Rptr. 551, 554-55 (1990), the California court of appeals adopted a per se test wherein the defendant was deemed to have abandoned or withdrawn his request for self-representation where he "had both time and opportunity to follow up on his request for a hearing on his Faretta motion, and failed to do so." Kentucky has adopted a similar approach. Swan v. Kentucky , 384 S.W.3d 77, 93-94 (2012) (holding that a defendant's failure to re-raise his Faretta motion to a new judge constituted abandonment of his request to proceed pro se or as co-counsel). In Arizona, courts have adopted a totality of the circumstances test to determine whether a defendant has abandoned his Faretta motion when the court "fails to consider and rule on the motion." State v. McLemore , 230 Ariz. 571, 288 P.3d 775, 786 (App. 2012). Under this test,

[i]nformative factors include but are not limited to [1] a consideration of the defendant's opportunities to remind the court of a pending motion, [2] defense counsel's awareness of the motion, [3] any affirmative conduct by the defendant that would run counter to a desire for self-representation, [4] whether the defendant waited until after a conviction to complain about the court's failure to rule on his or her motion (thus indicating the defendant was gaming the system), and [5] the defendant's experience in the criminal justice system and with waiving counsel.

Id. As a matter of first impression, we are persuaded that a totality of the circumstances test best protects the constitutional rights of a defendant because it not only addresses the opportunities a defendant had to remind the trial court of a pending motion, but it also considers other relevant circumstances in the record. Accordingly, we adopt this approach.

Applying this test to the instant case, we conclude that Meyers abandoned his request to represent himself. First, Meyers had the opportunity to address or renew his motion before the trial began, when the court asked if there were any other matters to be taken up. Meyers, who appeared with newly appointed counsel, did not mention or renew his request to proceed pro se. His counsel conveyed Meyers's request that his hands be free during the trial to the court, offering concrete evidence to the court that an attorney/client relationship was in effect, yet Meyers and his counsel remained silent as to his request for self-representation. This response stands in stark contrast to many of Meyers's previous interactions with the court. In virtually all proceedings prior to trial, Meyers had been a vocal participant-he would often interrupt counsel or the court to address the court directly. Second, notwithstanding the repeated assertions that the trial court "ignored" Meyers's request to represent himself, there is no evidence in the record indicating that the court or counsel were even aware of Meyers's request to proceed pro se. Meyers's letter to the court indicated that he had "fired" his prior counsel and notified counsel's supervisor of this fact, but there is no evidence in the record that his substitute counsel knew of Meyers's letter or his request to proceed pro se. Third, Meyers appeared at trial with new counsel, indicating that his issues with previous counsel were resolved by the assignment of substitute counsel by the public defender's office and that he acquiesced in the substitute counsel's representation. Additionally, the appearance of new counsel with Meyers on the date of trial was entirely consistent with his earlier oral request to have a different public defender represent him. Assuming, arguendo , that the trial court was aware of Meyers's request, it could have reasonably inferred that Meyers had changed his mind about representing himself. Fourth, Meyers waited until after he was pronounced guilty by the court to renew his request for self-representation, indicating dissatisfaction with the result of the proceedings, rather than his representation at trial. Finally, the record establishes that although there were concerns about his competence, Meyers had several prior convictions and had been in state custody for fourteen years, thus indicating at least some familiarity with the criminal justice system. However, it is unclear whether he had ever represented himself in any of his prior cases.

Thus, the totality of the circumstances establish that while Meyers clearly invoked his right of self-representation in his letter to the court, he later abandoned this request and waived this right by his subsequent conduct. Meyers did not notify any other party of his request, nor did he remind the court of his request, though he had many opportunities. He appeared on January 25 with new counsel and acquiesced to such representation by permitting counsel to act on his behalf throughout the trial, strongly suggesting that his concerns with prior counsel had been resolved.

Notwithstanding this ruling, there are aspects of this case that are concerning to the Court. For example, the record is unclear as to (1) the trial judge's knowledge of Meyers's letter, and (2) whether copies of the letter were provided to counsel. Because the record is silent as to these matters, and because these discrete issues were not raised by the parties on appeal, we do not comment on whether viewing the letter or failing to forward the letter would have been error. However, by way of providing guidance, we caution trial courts to adopt procedural protocols and safeguards that will ensure compliance with the provisions of the Idaho Judicial Canons, in particular Rule 2.9(A) and (C), regarding the handling of ex parte letters to the court. In a case such as this one, where the trial judge is also the trier of fact, it would behoove the court to avoid any exposure to ex parte information. This Court recognizes that a wide range of approaches have been taken by trial judges and court clerks across the state to deal with such matters in the past. Such procedures may need to be reviewed and updated in light of the judiciary's recent adoption of statewide business processes as part of its implementation of the Odyssey Case Management System.

IV. CONCLUSION

We hold that the district court did not violate Meyers's Sixth Amendment right to self-representation. Although Meyers clearly and unequivocally invoked his right to proceed pro se, the totality of the circumstances establish that he subsequently abandoned that right. Accordingly, the judgment of conviction is affirmed.

Chief Justice BURDICK, and Justices BRODY, BEVAN and STEGNER concur.

      Meyers also sent several additional letters to the court on a variety of topics, including two letters requesting that the judge reduce his charge, a letter requesting that a competency hearing be cancelled and his case be put back on the trial calendar, a letter indicating his disagreement with the outcome of his trial, and a letter attached to his pro se notice of appeal detailing his problems communicating with his counsel. Like the letter at issue in the case, the court did not take up any of Meyers's letters that were not designated as a "motion."

      Rule 2.9(A) provides that "[a] judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending matter...." However, if the defendant's attempted communication concerns a request for the appointment of new counsel or an intention to represent himself, it would be an appropriate matter for a clerk to bring to the trial judge's attention. Additionally, the best practice under such circumstances is to follow the requirements of Idaho Judicial Canon, Rule 2.9(C):
      If a judge receives an unauthorized ex parte or other prohibited communication bearing upon the substance of a matter, the judge shall promptly make provision to notify the parties of the substance of the communication and provide the parties with an opportunity to respond. If the communication was in writing, the judge shall promptly provide a copy to the parties.


text:
    STATE of Kansas, Appellee, v. Elton D. DONAHUE, Appellant.
    No. 116,564
    Supreme Court of Kansas.
    Opinion filed February 8, 2019.
    Peter Maharry, of Kansas Appellate Defender Office, was on the brief for appellant.
    Matt J. Maloney, 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 Biles, J.:

In 1974, Elton Donahue received a life sentence with the possibility of parole because of his convictions for aggravated kidnapping. In 2016, Donahue filed a motion to correct an illegal sentence. He claims his sentence of life imprisonment with a mandatory 15-year term violates the Eighth Amendment to the United States Constitution because he was only 16 years old when he committed the crimes. The district court summarily denied the motion. Donahue directly appeals to this court. We affirm because the motion is not the appropriate procedural vehicle to raise his claim. See State v. Samuel , 309 Kan. 155, 157, 432 P.3d 666 (2019) ("[T]his court has repeatedly held a motion to correct an illegal sentence under the statute cannot raise claims that the sentence violates a constitutional provision.").

FACTUAL AND PROCEDURAL BACKGROUND

On July 10, 1973, Donahue, then 16 years old, committed various crimes. The State charged him with multiple counts, including two counts of aggravated kidnapping under K.S.A. 1973 Supp. 21-3421, which was a class A felony. After a jury found him guilty as charged, the district court sentenced him to life imprisonment with a mandatory 15-year term before being eligible for parole for the aggravated kidnapping counts. See K.S.A. 1973 Supp. 21-4501(a) ("Class A, the sentence for which shall be death or imprisonment for life."); K.S.A. 1973 Supp. 22-3717(2) ("Persons confined in institutions shall be eligible for parole after fifteen [15] years if sentenced to life imprisonment.").

In 2016, Donahue moved under K.S.A. 22-3504(1) to correct an illegal sentence based on the United States Supreme Court decisions in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding mandatory life imprisonment without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on cruel and unusual punishments), and Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) (holding Miller should apply retroactively for purposes of state collateral review of sentence). In his memorandum supporting the motion, Donahue acknowledged Miller was applicable only to those juvenile offenders who were sentenced to life without the possibility of parole but asked the district court to extend Miller to his case, i.e., serving life with the possibility of parole.

The district court summarily denied the motion, reasoning it had no jurisdiction to consider the constitutional claim in a motion to correct illegal sentence under K.S.A. 22-3504(1), and, even if it had jurisdiction, the sentence was not unconstitutional as his sentence was life with the possibility of parole and he was in fact paroled "several times." See Makthepharak v. State , 298 Kan. 573, 576, 314 P.3d 876 (2013) (when presented with a motion to correct illegal sentence, a district court should conduct an initial examination of the motion to determine if it raises substantial issues of law or fact).

Donahue directly appealed to this court. Jurisdiction is proper. K.S.A. 2017 Supp. 22-3601(b)(3) (direct appeal when "a maximum sentence of life imprisonment has been imposed"); Kirtdoll v. State , 306 Kan. 335, 337, 393 P.3d 1053 (2017) ("A ruling on a motion to correct an illegal sentence, where the sentence imposed ... is imprisonment for life, is directly appealable to this court.").

ANALYSIS

This court must determine whether Donahue's constitutional claim fits within the definition of "illegal sentence." An illegal sentence under K.S.A. 22-3504 may be corrected at any time, but the circumstances under which a sentence is deemed illegal for K.S.A. 22-3504 purposes are "narrowly and specifically defined." State v. Swafford , 306 Kan. 537, 540-41, 394 P.3d 1188 (2017). Whether a sentence is illegal within the statutory meaning is a question of law over which appellate courts have unlimited review. State v. Alford , 308 Kan. 1336, Syl. ¶ 2, 429 P.3d 197 (2018) ; State v. Mitchell , 284 Kan. 374, 376, 162 P.3d 18 (2007).

Donahue claims the district court was without jurisdiction to impose a sentence that violates the Eighth Amendment. In 2016, when Donahue filed this motion, our caselaw defined "illegal sentence" as follows:

" ' "(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in the character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served." State v. Trotter , 296 Kan. 898, 902, 295 P.3d 1039 (2013).' State v. Dickey , 301 Kan. 1018, 1034, 350 P.3d 1054 (2015)." State v. Warrior , 303 Kan. 1008, 1009-10, 368 P.3d 1111 (2016).

This judicial definition was added to the current version of K.S.A. 2017 Supp. 22-3504(3). See L. 2017, ch. 62, § 9.

Donahue's Eighth Amendment claims do not implicate the sentencing court's jurisdiction. See Samuel , 309 Kan. at 157, 432 P.3d 666 (rejected the Eighth Amendment argument since it did not implicate the district court's jurisdiction). And this court has repeatedly held a motion to correct an illegal sentence under the statute cannot raise claims that the sentence violates a constitutional provision. Samuel , 309 Kan. at 157, 432 P.3d 666. Donahue asks us to overrule our long-established caselaw that the Legislature codified verbatim into the statute. We decline to do so.

Affirmed.


author: Leben, J.:

text:
    STATE of Kansas, Appellee, v. Allen Deandre ROBINSON, Appellant.
    No. 117,957
    Court of Appeals of Kansas.
    Opinion filed December 14, 2018.
    Ashlyn Buck Lewis, of Topeka, for appellant.
    Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Mcanany, P.J., Pierron and Leben, JJ.
   Leben, J.:

The Sixth Amendment to the United States Constitution and Section 10 of the Kansas Constitution's Bill of Rights both guarantee the right to a speedy and public jury trial in all criminal prosecutions. A decade ago, in In re L.M. , 286 Kan. 460, Syl. ¶ 1, 186 P.3d 164 (2008), the Kansas Supreme Court held that juveniles had a right to a jury trial under these provisions because juvenile-offender proceedings had "become more akin to an adult criminal prosecution" than to the benevolent rehabilitative system that had once existed.

Allen Robinson appeals his convictions for aggravated robbery and kidnapping on the basis that his constitutional right to a speedy trial was violated. But his case was initially filed as a juvenile-offender proceeding, and the State argues that no speedy-trial right exists there. We disagree: if the jury-trial provisions in the Kansas and United States Constitution apply, so do the speedy-trial provisions. Because the district court in Robinson's case did not decide his speedy-trial claim on the merits-and several factors that must be considered need to be factually developed-we return the case to the district court to consider the speedy-trial claim.

Robinson also argues that the State couldn't add charges once the case moved from juvenile to adult court and that the State's service of the arrest warrant was so late that the statute of limitations had expired. But a past decision of our court and our analysis of the applicable statutory provisions supports the conclusion that the State can amend the charges once the case is in an adult proceeding just as it can in other cases. And Robinson didn't raise a statute-of-limitations defense in the district court; failing to do so waived that potential defense.

FACTUAL AND PROCEDURAL BACKGROUND

On a Sunday night in September 2012, Robinson and three others entered a home in Olathe and held the four men who resided there at gunpoint. Robinson and his accomplices moved the men into a bathroom, used profane language deriding the residents' sexual identity, and ordered them to strip and touch each other's genitals. Robinson then stole property from the home and drove away.

Because the issues on appeal involve speedy-trial rights and the movement of charges from juvenile to adult proceedings, we will focus on the timing of the proceedings in both juvenile and adult proceedings. Less than two weeks after the events occurred, the State brought four charges of aggravated robbery against Robinson, then 17, in juvenile proceedings in the Johnson County District Court. Along with those charges, the State moved for court authorization to prosecute Robinson as an adult. A warrant for Robinson's arrest was issued September 27, the same day the charges were filed.

About six weeks later, the court held a status conference in the case. Robinson wasn't there, but an appointed attorney was. There's no indication in our record that Robinson knew about the charges or the hearing.

About two days after that hearing, Robinson was arrested on unrelated charges in another county. There's no indication that the prosecutor in Johnson County, where the aggravated-robbery charges were pending, knew about the arrest.

More than two years later, on November 21, 2014, the court in Johnson County issued an order to transport Robinson there to answer the pending charges. That happened after the charges in the other county had been resolved; Robinson had been convicted in an adult proceeding there and sentenced to prison. The order to bring Robinson to Johnson County and the original Johnson County arrest warrant were executed (or served) on Robinson, who was in the custody of the Department of Corrections, on December 11, 2014.

About two months later, the court held a hearing on the State's request to transfer Robinson's case to adult proceedings (called a waiver). Robinson objected to the waiver, but the court granted the State's request. Two days later, the State charged Robinson in an adult proceeding with the same four counts of aggravated robbery. A month later, the State amended the complaint to include four counts of kidnapping. The court held a preliminary hearing in May 2015 and bound Robinson over for trial on two counts of aggravated robbery and four counts of kidnapping.

One of the issues we'll discuss later in the opinion involves the timing of Robinson's motion in the district court to dismiss the case on speedy-trial grounds. His attorney first told the court of his intention to file the motion at a hearing held June 4. At that point, trial was set for June 22 with a pretrial conference on June 17.

When told that Robinson would be moving to dismiss, the judge responded, "If it's going to take me sitting down with my pencil and my calculator ... trying to figure out if [the] speedy trial [deadline has] passed, then I'd like it as soon as possible." The prosecutor then asked for some clarity about when the motion would be taken up by the court: "Judge, we'll just take that up apparently [then] at pretrial conference?" The judge replie d that there was no time available before that. Robinson's attorney filed the motion to dismiss on June 15, and the State filed a formal response the next day. The court considered the motion at the June 17 pretrial conference and denied it. At no point in that hearing did the State object that Robinson's motion to dismiss was untimely.

When the parties reconvened on June 22 for the jury trial, Robinson's attorney renewed the motion to dismiss on speedy-trial grounds to preserve that issue for appeal. At that time, the State told the court that in addition to the arguments it had made previously, the court should deny the motion because it wasn't made within 21 days of arraignment as required by K.S.A. 2017 Supp. 22-3208(4). The court affirmed its earlier ruling and also found that Robinson's motion was untimely.

Robinson was convicted in a jury trial of two counts of aggravated robbery and four counts of kidnapping. He has appealed to our court, raising three claims: (1) that the State violated his constitutional right to a speedy trial; (2) that the State shouldn't have been allowed to amend the charges in adult court to add kidnapping counts; and (3) that the district court should have dismissed the charges because the State didn't serve the warrant on him for more than two years.

ANALYSIS

I. Speedy-Trial Rights Apply to Juvenile-Offender Proceedings, but Whether Robinson's Speedy-Trial Rights Were Violated Requires Factual Findings to Be Made by the District Court.

We begin with Robinson's first claim-that the claims against him should be dismissed because the State violated his constitutional speedy-trial rights.

The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ...." That amendment applies not only in federal prosecutions but also in prosecutions by a state. State v. Henderson , 284 Kan. 267, 276, 160 P.3d 776 (2007). In addition, Section 10 of the Kansas Constitution's Bill of Rights provides similar protections: "In all prosecutions, the accused shall be allowed ... a speedy public trial by an impartial jury ...."

The State argues that these constitutional speedy-trial rights do not apply to juvenile proceedings, citing State v. Breedlove , 295 Kan. 481, 487, 286 P.3d 1123 (2012). But the juvenile proceedings in Breedlove's case (for crimes committed in 1995) took place before our Supreme Court's June 20, 2008 decision in L.M. Thus, the court's comment in Breedlove that juveniles had no constitutional speedy-trial right "in matters conducted under the Juvenile Justice Code," 295 Kan. at 487, 286 P.3d 1123, should not be read to apply to matters conducted under the Revised Juvenile Justice Code. See L.M. , 286 Kan. at 465-66, 186 P.3d 164. It's that Revised Juvenile Justice Code that was at issue in L.M. and is applied here.

The L.M. case carefully considered whether a juvenile had the right to a jury trial in a juvenile-offender proceeding. As in our case, the right would be analyzed under the Sixth Amendment to the United States Constitution and Section 10 of the Kansas Constitution's Bill of Rights. The L.M. court held that because juvenile proceedings had "become more akin to an adult criminal prosecution" than the rehabilitative process previously in place, the jury-trial right now applied under these constitutional provisions. 286 Kan. 460, Syl. ¶¶ 1, 2, 186 P.3d 164.

We see no reason the speedy-trial rights under the same constitutional provisions would be any less applicable. Nor has the State provided any reasoned argument for that result. We therefore conclude that the same constitutional speedy-trial rights apply in both juvenile and adult proceedings.

The State next argues that even if speedy-trial rights apply, Robinson waited too long to raise the issue. Robinson raised the issue in a motion to dismiss, and K.S.A. 2017 Supp. 22-3208(4) provides that a motion to dismiss must be made "within 21 days after the plea is entered." Robinson was arraigned and pleaded not guilty on May 15, 2015, so the 21-day deadline was June 5. The motion wasn't filed until June 15.

But Robinson's attorney told the court on June 4 that he planned to file a written motion to dismiss. The gist of the parties' discussion with the court was that the motion couldn't be taken up until the June 17 pretrial conference-and the State didn't object to consideration of the motion based on its timeliness when it was heard at that pretrial conference. Nor did the State reference K.S.A. 2017 Supp. 22-3208(4) on June 4, the day before the statutory deadline, when the parties discussed the defendant's plan to move to dismiss.

At least on the facts of our case, we conclude that Robinson didn't lose his constitutional right to a speedy trial by filing his motion to dismiss on June 15. The State concedes that it suffered no prejudice from the 10-day delay; indeed, the State still managed to file its written opposition to the motion before the pretrial conference. There's also a plausible argument that the district court impliedly granted a continuance to the defendant to file the motion any time before the pretrial conference: K.S.A. 2017 Supp. 22-3208(4) allows the court to extend that deadline when the grounds for the motion weren't known and couldn't have reasonably been determined within the deadline. While that may not have been true here (we can't be completely sure because the issue wasn't developed in the absence of an objection about the motion's timeliness), the State made no objection to hearing the motion on June 17 and the 21-day deadline is not a jurisdictional requirement. With no timeliness objection by the State at or before the pretrial conference and given the June 4 colloquy with the court, we conclude that the motion to dismiss may be considered on its merits.

We should briefly note the State's timeliness objection when the defendant reasserted the speedy-trial issue at trial; raising the claim at that point does not change our conclusion. Robinson merely reasserted the speedy-trial claim to preserve it for appeal. The time for the State to object would have been on June 4, when the parties discussed scheduling the motion, or at the latest June 17, when the motion was initially heard.

Having decided that Robinson had a constitutional speedy-trial right throughout the proceedings, we have gone as far as we can with that issue. As the parties recognize, a four-factor balancing test first announced by the United States Supreme Court in Barker v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), must be applied to determine whether the defendant's speedy-trial right has been violated. See State v. Otero , 210 Kan. 530, 532-33, 502 P.2d 763 (1972) (adopting the Barker test in Kansas). These factors are (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) prejudice to the defendant. Barker , 407 U.S. at 530, 92 S.Ct. 2182. No single factor is controlling-we must consider them together along with other circumstances that may be relevant. 407 U.S. at 533, 92 S.Ct. 2182.

The constitutional right to a speedy trial attaches-and thus begins to protect the defendant from undue delay-at formal charging or at arrest, whichever happens first. State v. Rivera , 277 Kan. 109, 112, 83 P.3d 169 (2004). So the delay from the time the State brought formal charges in the juvenile court until Robinson's ultimate trial in an adult proceeding must be analyzed under the Barker factors. Because doing so will require that factual determinations be made-and it's the district court's role, not ours, to make factual findings-we will send that issue back to the district court for further consideration.

II. When a Criminal Charge First Made in Juvenile Proceedings Is Refiled as an Adult Proceeding, the State Is Not Precluded from Amending the Charge.

Robinson's next claim is that the State couldn't add kidnapping charges after the case was transferred to an adult proceeding. Robinson bases this claim on K.S.A. 2017 Supp. 38-2347, which lists eight factors the district court must consider when determining whether to allow the State to charge a juvenile as an adult. Among those factors are ones that refer to the offense alleged in the juvenile proceeding: "[t]he seriousness of the alleged offense," how "the alleged offense was committed," and whether "the offense" was against a person or against property. K.S.A. 2017 Supp. 38-2347(d)(1), (d)(2), (d)(3). According to Robinson, since the district court must determine whether to allow the case to be transferred to an adult proceeding based in part on consideration of the specific charge, the State can't later amend the complaint and add new charges once the case is transferred to an adult proceeding.

Robinson recognizes that a case our court decided many years ago, State v. Randolph , 19 Kan. App. 2d 730, 876 P.2d 177 (1994), is contrary to his position. In Randolph , we noted that the charge was only one of the factors to be considered and concluded that the charges could be amended when the case moved to adult court. 19 Kan. App. 2d at 733-34, 876 P.2d 177.

The only change of note since Randolph has been the recognition in L.M. that the character of juvenile proceedings had changed into something more like traditional criminal proceedings. We see nothing about that change that would suggest the Randolph rule should no longer apply.

Robinson's argument also has another flaw: it considers only one of two statutory provisions that apply here. His argument is based on his interpretation of K.S.A. 2017 Supp. 38-2347, which includes consideration of "the alleged offense" when considering whether to allow the case to move to adult proceedings. But there's another statute to consider, K.S.A. 22-3201(e), a provision of the Kansas Code of Criminal Procedure, which applies generally in criminal cases.

K.S.A. 22-3201(e) allows a charge to be amended: "The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced." While this statute literally says that amendments are allowed if there's not a different crime charged and the defendant won't be substantially prejudiced, Kansas courts have long interpreted it to allow adding new charges before trial as long as no substantial prejudice will accrue to the defendant. E.g., State v. Bischoff , 281 Kan. 195, Syl. ¶ 7, 131 P.3d 531 (2006) ; State v. Woods , 250 Kan. 109, Syl. ¶ 1, 825 P.2d 514 (1992) ; State v. Niblock , 230 Kan. 156, 163, 631 P.2d 661 (1981).

Once prosecution of the juvenile as an adult is approved, the case is refiled as an adult proceeding, where the Kansas Code of Criminal Procedure applies. No provision of that Code suggests that its provisions only partly apply when the charges were first filed in a juvenile proceeding. We see no statutory indication that the charges, when refiled in an adult proceeding, are treated any differently than those in other cases.

So we have two statutes to consider- K.S.A. 2017 Supp. 38-2347 and K.S.A. 22-3201. The first was interpreted in Randolph to allow new charges in the adult proceeding. The second has been interpreted to allow new charges generally in adult proceedings as long as the defendant won't be substantially prejudiced. Had the Legislature wanted to change the long-standing interpretation of either statute, it has had ample time to do so. "The doctrine of stare decisis [that we follow precedent] is particularly compelling in cases where, as here, the legislature is free to alter a statute in response to court precedent with which it disagrees but declines to do so." State v. Quested , 302 Kan. 262, 278, 352 P.3d 553 (2015). We conclude, therefore, that the State could properly add the kidnapping charges. Robinson did not show, either in the district court or on appeal, that adding these charges substantially prejudiced his ability to defend himself at trial.

III. Statute-of-Limitations Defenses Are Waived if Not Timely Raised, and Robinson Did Not Timely Raise This Defense.

Robinson's final argument is that because there was unreasonable delay in executing (or serving) the arrest warrant on him, the court should find that the State didn't begin the prosecution against him within the two-year statute of limitations set out for juvenile proceedings in K.S.A. 2017 Supp. 38-2303(d). While the initial charges against Robinson were filed only a few days after the crimes-and well within the two-year limitation period-Robinson argues that there was unreasonable delay in serving the warrant on him. When there's unreasonable delay in serving the warrant, the case generally isn't considered to have begun until service of the warrant. See K.S.A. 2017 Supp. 38-2303(g). So Robinson argues that the State brought the charges too late: It didn't serve the warrant on him until December 12, 2014, more than two years after the crimes.

But the State argues that Robinson didn't raise this claim in the district court, and a statute-of-limitations defense is waived if not raised there. See State v. Sitlington , 291 Kan. 458, Syl. ¶¶ 2, 241 P.3d 1003 (2010). Although our reasoning differs somewhat from the State's argument, we agree with its conclusion that Robinson waived this defense because he didn't raise it in the district court.

Robinson's motion to dismiss in the district court was based on his constitutional speedy-trial rights, not the statute of limitations. The only mention of the statute of limitations in the district court came after the court brought up the topic at the June 17 pretrial conference. As we've already noted, Robinson had moved to dismiss two days earlier, and that motion was based only on his speedy-trial rights.

The district court raised the statute-of-limitations issue after the prosecutor, in arguing the motion to dismiss, suggested that the State could put on evidence that Robinson had known about the Johnson County charges while he was still being held in Wyandotte County. After mentioning that evidence, the prosecutor said that "this is not a speedy trial determination." The court replied, "No, it's a statute of limitations determination." The court later concluded that the defendant had waived a statute-of-limitations defense by not raising it before the case was waived to adult court.

We're not sure the district court was right on that point (one the State adopted on appeal), but it doesn't change the overall result. There's a good argument that Robinson didn't have a chance to get a speedy-trial defense in front of the court before transfer to adult status. The State filed both juvenile charges and a motion to prosecute Robinson as an adult on the same day, and another statute, K.S.A. 2017 Supp. 38-2347(b)(1), provides that "[t]he motion [to prosecute as an adult] shall be heard and determined prior to any further proceedings on the complaint." That would seem to leave no effective opportunity for Robinson to have raised the statute-of-limitations issue before transfer to adult status. Presumably, then, he had not waived the defense by failing to raise it at that point.

But even after adult proceedings began, Robinson's motion to dismiss wasn't based on the statute of limitations. Though he did tell the district court that the State had failed to serve his arrest warrant promptly, he did so only over the speedy-trial issue: Robinson argued to consider that the delay under the Barker factors.

We agree, then, with the district court's overall conclusion that Robinson waived the statute-of-limitations defense by not raising it in the district court. Even if we assume that Robinson could have raised the statute-of-limitations defense after the case had moved to adult proceedings, he didn't, and that failure waived the defense. See Sitlington , 291 Kan. 458, Syl. ¶¶ 2-3, 241 P.3d 1003.

We should add that the State's delay in serving the warrant still can be considered on remand regarding the issue about which Robinson raised it in the district court-the speedy-trial issue. The district court may consider the delay in serving the warrant, its cause, and any resulting prejudice when it weighs the Barker factors.

We affirm the district court's judgment in part, reverse it in part, and remand the case for further proceedings.