Beem v. McKune
| Decision Date | 08 January 2002 |
| Docket Number | No. 00-3224.,No. 00-3249.,00-3224.,00-3249. |
| Citation | 278 F.3d 1108 |
| Parties | Steven D. BEEM, Petitioner-Appellant, v. David R. McKUNE, Warden, Lansing Correctional Facility, and Carla Stovall, Kansas Attorney General, Respondents-Appellees. Donald Henson, Jr., Petitioner-Appellant, v. David R. McKune, Warden, Lansing Correctional Facility, and Carla Stovall, Kansas Attorney General, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Michael S. Holland of Holland and Holland, Russell, KS, for Petitioners-Appellants.
Kristafer R. Ailslieger, Assistant Attorney General, Criminal Litigation Division, Topeka, KS, for Respondents-Appellees.
Before TACHA, Chief Judge, McKAY, Circuit Judge, and CUDAHY,* Senior Circuit Judge.
Appellants Steven D. Beem and Donald Henson, Jr., state prisoners, appeal the dismissal of their 28 U.S.C. § 2254 habeas petitions. The issue we address is important even though it only arises because of a peculiarity in Kansas state law. While changes in Kansas law assure that we will never face this issue in the present context again, our duty to resolve this matter remains undiminished. The issue facing this court is whether Mr. Beem and Mr. Henson may be sentenced and imprisoned for crimes for which they were not charged, tried, or convicted.
Mr. Beem was charged and convicted in the District Court of Reno County, Kansas, of one count of indecent liberties with a child, in violation of title 21, section 3503, of the Kansas Code, and one count of aggravated assault, in violation of title 21, section 3410 of that Code. Mr. Beem appealed his conviction to the Kansas Court of Appeals, which denied his appeal on March 1, 1991. On September 29, 1995, the District Court of Reno County vacated Mr. Beem's sentence for indecent liberties with a child and instead sentenced him for the crime of aggravated incest under title 21, section 3603, of the Kansas Code. The Kansas Court of Appeals affirmed the sentence on April 3, 1998, and the Kansas Supreme Court denied review.
Mr. Henson was charged and convicted in the District Court of Miami County, Kansas, of three counts of rape in violation of title 21, section 3502, of the Kansas Code. On appeal, the Kansas Court of Appeals determined that Mr. Henson should have been charged with, and convicted of, the specific offense of aggravated incest rather than the general offense of rape. That court vacated Mr. Henson's sentence for rape and remanded the case for Mr. Henson to be sentenced for aggravated incest under title 21, section 3603, of the Kansas Code.
Both Appellants challenged the Kansas courts' imposition of new sentences for aggravated incest. Appellants petitioned the United States District Court for the District of Kansas for habeas relief, arguing that they were sentenced for crimes for which they were not charged, tried, or convicted, in violation of their Fourteenth Amendment right to due process and Sixth Amendment right to jury trial. Appellants requested that their new sentences be vacated. The district court held that Appellants did not establish a violation of their federal rights, dismissed their petitions, and denied them certificates of appealability. Appellants' petitions were consolidated for our review.
Appellants first seek certificates of appealability to appeal the district court's denial of their habeas petitions. In order for this court to grant a certificate of appealability, Appellants must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Since the district court "has rejected the constitutional claims on the merits, ... [Appellants] must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
Appellants' petition raises an unusual issue of constitutional concern. After reviewing the briefs of both parties and the opinion of the district court, we hold that reasonable jurists would find the district court's assessment of the present petition's constitutional claims debatable or wrong. Therefore, we conclude that the question merits further judicial consideration and grant Appellants certificates of appealability. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 2253(a).
In evaluating the district court's denial of a habeas corpus petition, we review the court's legal conclusions de novo and its factual findings for clear error. See Davis v. Executive Dir. of Dep't of Corr., 100 F.3d 750, 756 (10th Cir.1996). In order to succeed on a petition for habeas relief, Appellants must establish that the state court decisions were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or [were] based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2).
Appellants claim that the State violated their Fourteenth Amendment right to due process and Sixth Amendment right to a jury trial by charging, trying, and convicting the Appellants of one crime and then sentencing them for a separate crime. The State contends that the Appellants' federal rights are not implicated. Rather, the State claims it simply modified the Appellants' sentences in an attempt to remedy a technical violation of Kansas common law.
Kansas law requires that criminal behavior prohibited under both a general statute and a specific statute must be prosecuted under the specific statute. The crux of the present dispute is based on the Kansas Supreme Court's decisions in State v. Williams, 250 Kan. 730, 829 P.2d 892 (Kan.1992), and Carmichael v. State, 255 Kan. 10, 872 P.2d 240 (Kan.1994). In Williams, the defendant's conduct violated the State's prohibition against indecent liberties with a child, a class C felony, and aggravated incest, a class D felony. The court held that when a defendant is related to the victim "the State may charge the defendant with aggravated incest for engaging in the acts prohibited therein but not with indecent liberties with a child." Williams, 829 P.2d at 897.
In Carmichael, the defendant was originally convicted of two counts of rape and one count of aggravated kidnapping. Carmichael, 872 P.2d at 241. The defendant challenged his rape convictions arguing that since he was related to his victim, he should have been charged with the more specific crime of aggravated incest rather than the general crime of rape. See id. at 242. The court held that "the proper remedy is to vacate the sentence imposed for rape and resentence the petitioner for aggravated incest." Id. at 247 (emphasis added).
The Kansas legislature has decided that a sexual crime against a family member is to be treated less severely from a penological standpoint than a sexual crime perpetrated by an attacker unrelated to the victim. When a defendant's conduct violates both the Kansas statute against indecent liberties with a child and aggravated incest, or rape and aggravated incest, the defendant is to be charged with aggravated incest rather than rape or indecent liberties with a child. In effect, the Kansas legislature has added an additional element to the crimes of rape and indecent liberties with a child, i.e., that the victim and the defendant not be related.
The quandary becomes what is to be done when a defendant is prosecuted for rape or indecent liberties with a child rather than aggravated incest as required by Kansas law. Carmichael instructs us that the solution is to vacate the sentence given to the defendant and resentence the defendant for aggravated incest. See Carmichael, 872 P.2d at 247 (emphasis added). This is not merely a matter of sentencing. The Carmichael solution does more than downwardly alter the sentence a defendant receives for the crime committed. Instead, Carmichael requires that the original sentence be vacated (for rape or indecent liberties with a child) and that a defendant be sentenced for a crime for which they have not been charged, tried, or convicted (aggravated incest).
Nor can aggravated incest be considered a lesser included crime to either rape or indecent liberties with a child under Kansas law. To be a lesser included offense, all of the elements required to prove aggravated incest would also be necessary elements of rape or indecent liberties with a child. Under Kansas law this is not the case. Unlike rape or indecent liberties with a child, aggravated incest requires that the parties be related and that the wrongdoer be aware of the relationship.
Kansas' proposed solution in Carmichael directly violates the law set forth by the United States Supreme Court in Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948). In Cole, the defendants were convicted of promoting an unlawful assembly under section two of a state statute. On appeal, the Arkansas Supreme Court held that the information filed against the defendants also violated section one of the same statute and affirmed the defendants' convictions based solely on section one grounds.
The United States Supreme Court reversed, stating:
We therefore have this situation. The petitioners read the information as charging them with an offense under § 2 of the Act, the language of which the information had used. The trial judge construed the information as charging an offense under § 2. He instructed the jury to that effect. He charged the jury that petitioners were on trial for the offense of promoting an unlawful assemblage, not for the offense "of using force and violence." Without completely ignoring the judge's charge, the jury could not have convicted petitioners for having committed the separate, distinct, and substantially different offense defined in § 1. Yet the State Supreme Court refused to consider the...
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Beem v. McKune, No. 00-3224.
...leave the State with the Hobson's choice of dismissing the case entirely or retrying them for aggravated incest. See Beem v. McKune, 278 F.3d 1108, 1114 (10th Cir.2002). A retrial on these facts is singularly inopportune because (1) it "imposes significant social costs" of time and money, (......
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...See Fed.R.App.P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 2. In Beem v. McKune, 278 F.3d 1108, 1112-14 (10th Cir.2002), we held that this procedure created the unconstitutional result of sentencing a defendant for a crime for which he wa......
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