Carmichael v. State

• Decision Date: 25 June 1993
• Docket Number: No. 67757,67757
• Citation: 856 P.2d 934,18 Kan.App.2d 435
• Parties: Floyd CARMICHAEL, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Court of Appeals

Page 934

856 P.2d 934

18 Kan.App.2d 435

Floyd CARMICHAEL, Appellant, v. STATE of Kansas, Appellee.

No. 67757.

Court of Appeals of Kansas.

June 25, 1993.

Review Granted Sept. 28, 1993.

Syllabus by the Court

1. An issue not raised before the trial court may not be raised for the first time on appeal unless it falls within one of the following exceptions: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case; (2) consideration of a question raised for the first time on appeal is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) a judgment of a trial court may be upheld on appeal even though the court may have relied on the wrong ground or assigned a wrong reason for its decision.

2. As a general rule, trial errors are to be corrected by direct appeal and not by a motion filed pursuant to K.S.A. 60-1507. The remedy of habeas corpus is available to the defendant in a criminal action where the information, the indictment, or the proceedings are otherwise void so that the court acquired no jurisdiction of the person or the cause.

3. A sentence imposed by a court without jurisdiction is an illegal sentence. Where a prisoner asserts the court was without jurisdiction to impose the sentence, the prisoner may move the court that imposed the sentence to vacate the sentence at any time.

4. The exceptional circumstances requirement of Supreme Court Rule 183(c)(3) (1992 Kan.Ct.R.Annot. 143) applies only to trial errors affecting constitutional rights and not to jurisdictional questions. Under K.S.A. 60-1507, a prisoner in custody under sentence of a court of general jurisdiction may seek release from custody at any time where the court was without jurisdiction to impose the sentence. Rule 183 adds no additional hurdle requiring a showing of exceptional circumstances excusing failure to raise the issue in a direct appeal when the issue is whether the court had jurisdiction to impose the sentence.

5. A statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is a special law.

6. In a criminal action, the trial court must not only have jurisdiction over the offense charged, but it must also have jurisdiction over the question which its judgment assumes to decide.

7. A general verdict of guilty must be set aside if the jury was instructed that it could rely on any one of two or more independent grounds, and one of those grounds is insufficient.

8. The aggravated kidnapping statute does not require a conviction or even the filing of a complaint on the underlying crime in order to properly charge and convict the defendant of aggravated kidnapping.

9. An element of a crime is one of the constituent parts of a crime which must be proved by the prosecution to sustain a conviction. The court is not required to have jurisdiction to charge a crime described in an element. The State need only prove the conduct described in the element.

10. In an appeal from the denial of a K.S.A. 60-1507 motion raising a question of jurisdiction for the first time on appeal, it is held: The trial court was without jurisdiction to convict petitioner of the rape of his daughter when he was within the special relationship class of persons who must be charged with aggravated incest. A conviction based upon charges which do not apply to the person convicted is a clear denial of due process under the Fourteenth Amendment to the United States Constitution. As a result, judgment against the petitioner for the offense of rape where the court is without jurisdiction to decide the issue is void. Petitioner's conviction of aggravated kidnapping to facilitate the commission of rape is affirmed.

Julie Gorenc, Asst. Appellate Defender, James F. Vano, Sp. Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Julie Wright Connolly, Asst. Dist. Atty., Debra S. Byrd, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before BRISCOE, C.J., BRAZIL, J., and JAMES J. NOONE, District Judge Retired, assigned.

BRISCOE, Chief Judge:

Floyd Carmichael appeals the denial of his K.S.A. 60-1507 motion.

On September 27, 1985, a jury found Carmichael guilty of two counts of rape (K.S.A. 21-3502) and one count of aggravated kidnapping (K.S.A. 21-3421). The crimes charged occurred on July 15, 1985. The facts leading to Carmichael's arrest and conviction are summarized in State v. Carmichael, 240 Kan. 149, 150-51, 727 P.2d 918 (1986). The victim of these crimes was Carmichael's 15-year-old daughter. Carmichael was sentenced to consecutive terms of life imprisonment for aggravated kidnapping and 30 years to life for each count of rape. The sentences reflected invocation of the Habitual Criminal Act (K.S.A. 1985 Supp. 21-4504) and mandatory minimum sentencing because a firearm was used (K.S.A. 21-4618 [Ensley 1981].

Carmichael raised numerous issues in his direct appeal. The Supreme Court affirmed Carmichael's convictions but vacated his sentences and remanded the case for resentencing because the trial court lacked competent evidence to invoke the Habitual Criminal Act. Upon remand, the proper documentation was presented by the State to support invocation of the Act and Carmichael was given the same sentences when resentenced. In a second appeal, Carmichael challenged the trial court's denial of his motion to modify his life sentences. In his motion to modify, Carmichael requested imposition of sentences of specific terms of years in lieu of his life sentences. The Supreme Court affirmed the trial court and opined its conclusion would be the same even if the motion were considered as a motion filed pursuant to 60-1507. State v. Carmichael, 247 Kan. 619, 801 P.2d 1315 (1990).

On July 22, 1991, Carmichael filed the present 60-1507 motion, alleging ineffective assistance of trial counsel. He argued his counsel was ineffective because of failure to timely move for admission of evidence relating to the complaining witness' prior sexual conduct. Specifically, Carmichael argued counsel was ineffective by failing to timely file a motion pursuant to a provision of the rape shield law (K.S.A. 21-3525) to seek permission to introduce evidence that the victim had gonorrhea. The trial court denied the 60-1507 motion. The court noted trial counsel could not be ineffective for failing to timely file the motion in light of the ruling in Carmichael's direct appeal that the trial court did not err in denying Carmichael's motion to allow introduction of evidence that the victim had gonorrhea. As regards this issue, the Supreme Court held:

"Since it could not be established that the defendant had or had not contracted gonorrhea, the evidence that the victim had gonorrhea was no longer relevant. The evidence would only show that the victim probably had intercourse with someone prior to the rape. This would indicate prior sexual conduct which the rape shield statute prohibits being admitted into evidence. Our legislature and a number of other state legislatures, as well as Congress, have enacted rape shield laws designed to restrict or prohibit the use of evidence regarding the chastity of the rape victim. The district court did not err in refusing to allow the defendant to introduce evidence that would infer that the victim had previously engaged in sexual intercourse." Carmichael, 240 Kan. at 154-55, 801 P.2d 1315.

In the present appeal, Carmichael contends the trial court erred in finding he was not denied effective assistance of counsel and in denying an evidentiary hearing on his 60-1507 motion and refusing to appoint counsel. On appeal, Carmichael makes additional arguments concerning ineffective assistance of trial counsel and adds a third issue. He cites State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992), and contends for the first time that, with regard to his rape convictions, he was charged with and convicted of the wrong crime. Since the victim was his daughter, Carmichael argues he should have been charged with aggravated incest, a class D felony, rather than rape, a class B felony. He further argues the validity of the aggravated kidnapping conviction depends upon the validity of the rape convictions. As charged, Carmichael was alleged to have committed the aggravated kidnapping to facilitate the commission of rape. Carmichael seeks reversal of all of his convictions.

In Williams, the defendant was charged with one count of indecent liberties with a child. K.S.A.1992 Supp. 21-3503. The charge arose after defendant's 14-year-old step-granddaughter alleged the defendant had sexually molested her. Defendant moved to dismiss the complaint, alleging aggravated incest as defined by K.S.A. 21-3603 was a more specific crime than indecent liberties with a child. He argued aggravated incest should have been charged because the victim was his minor step-granddaughter. The trial court granted his motion, finding the legislature intended the aggravated incest statute to be a statute of specific application in that it relates to particular persons or things of a class and that Williams should have been charged with aggravated incest. The State appealed to the Supreme Court.

The Supreme Court noted the alleged conduct was proscribed by both the indecent liberties with a child statute and the aggravated incest statute. The court then stated:

"For the general statute versus specific statute rationale to be applicable to the two crimes, the indecent liberties statute must be viewed as a statute generally prohibiting certain sexual behavior and the aggravated incest statute as applying to the identical prohibited conduct by a person related to the victim. 'When there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase...