State v. Allen

Decision Date05 November 2021
Docket NumberNo. 121,916,121,916
Citation497 P.3d 566
Parties STATE of Kansas, Appellee, v. Janet M. ALLEN, Appellant.
CourtKansas Supreme Court

Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Michael J. Duenes, assistant solicitor general, argued the cause, and Kurtis Wiard, assistant solicitor general, Richard E. James, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by Biles, J.:

The State asks us to review a Court of Appeals decision reversing Janet M. Allen's convictions for forgery, felony theft, and misdemeanor theft. The panel held the district court violated Allen's constitutional right to be present at all critical stages in the proceedings and her statutory right to a speedy trial when granting a State-requested trial continuance. The panel remanded the case with instructions to dismiss the charges. See State v. Allen , No. 121,916, 2020 WL 7636299 (Kan. App. 2020) (unpublished opinion). The State argues the panel erred when it decided Allen's claims because she did not preserve them for appeal. We agree and reverse the panel.

In general, an appellate court will not address an issue raised for the first time on appeal, although there are limited exceptions to that rule. State v. Vonachen , 312 Kan. 451, Syl. ¶ 1, 476 P.3d 774 (2020). But before invoking one of those exceptions, the court must also determine whether the unpreserved issue is amenable to resolution on appeal. Even then, the court is not obligated to consider it. In other words, when deviating from this general rule, the court necessarily exercises discretion. State v. Harris , 311 Kan. 371, 375, 461 P.3d 48 (2020). In Allen's case, we hold the panel abused that discretion because her claims required factual development well beyond an appellate court's reach. State v. Aguirre , 313 Kan. 189, 209, 485 P.3d 576 (2021) (" ‘An appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses.’ ").

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Allen with forgery, identity theft, and two counts of felony theft. She posted bond and was arraigned on April 5, 2018. Under our state's speedy trial statute,

"If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (e)." K.S.A. 2020 Supp. 22-3402(b).

After arraignment, the court attributed three consecutive continuances to Allen, including one in which she personally waived her speedy trial rights after stating she did not object to the delay being assessed to her. On August 9, 2018, the court determined Allen's statutory 180-day period would run on February 9, 2019, to account for the previous delays. The court set trial for January 29.

On January 2, the State asked for a continuance because a witness would be unavailable. The motion stated defense counsel had "relayed that he has no objection to a continuance." It also asserted: "The defendant has previously waived speedy trial."

According to emails filed with the district court clerk after Allen appealed, the judge's administrative assistant wrote to Allen's counsel and the county attorney on January 4, 2019, to advise that the judge suggested a May 7 trial date to accommodate the State's continuance request. The county attorney agreed "as long as the Defendant continues to waive Speedy Trial." Allen's counsel agreed to this date writing, "We'll take the time." Nothing in the record shows counsel conferred with Allen before agreeing to this continuance or in waiving her speedy trial rights. The record also does not suggest whether Allen would have objected to this continuance if asked. And the existing record does not reflect that the court held a hearing before granting the State's motion.

A jury convicted Allen of forgery, felony theft, and misdemeanor theft at the May 7 trial. It acquitted her of identity theft. The court sentenced her to 12 months' probation, to run concurrently for each of the three convictions. She appealed.

Before the Court of Appeals, Allen argued for the first time that the district court violated both her constitutional right to be present at a critical stage in the proceedings and her statutory speedy trial rights when it granted the State's continuance request. The panel decided to address those claims because, in its view, resolving them would prevent a denial of fundamental rights and serve the ends of justice. It then reversed the convictions, vacated the sentence, and remanded her case to the district court with instructions to dismiss the charges. In the process, the panel declined to address Allen's remaining claim—also raised for the first time on appeal—on the trial court's alleged sua sponte advising her about the right to testify. The panel held its speedy trial holdings afforded Allen the relief she sought, which made her third claim superfluous. Allen , 2020 WL 7636299, at *6.

We granted the State's petition for review. It argues the panel erred in three ways: (1) reaching Allen's unpreserved claims that the district court violated her constitutional due process and statutory speedy trial rights when granting the State's trial continuance without a hearing; (2) holding the continuance could only be properly granted after a formal hearing; and (3) ordering dismissal of the charges rather than remanding Allen's unpreserved claims to the district court for an evidentiary hearing.

Allen did not cross-petition on the panel's decision to drop her third claim, nor did she mention that claim in her response to the State's petition for review, so it is not before us. See Harsay v. University of Kansas , 308 Kan. 1371, 1384, 430 P.3d 30 (2018) (holding litigant abandoned issues not raised in cross-petition for review, opposition to other party's petition for review, or later motion to file a conditional cross-petition for review); State v. Funk , 301 Kan. 925, 932-33, 349 P.3d 1230 (2015) (holding issues not fairly included in petition for review or adequately briefed considered abandoned).

Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

ISSUES RAISED FOR THE FIRST TIME ON APPEAL

"Generally, an appellate court does not address issues for the first time on appeal, but there are limited exceptions within defined parameters." Vonachen , 312 Kan. 451, Syl. ¶ 1, 476 P.3d 774. " ‘Within its discretion,’ " an appellate court may consider a newly raised issue

"if the party trying to raise a new issue shows a recognized exception to the general rule. Those exceptions are:
" (1) [T]he newly asserted claim involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) the claim's consideration is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the district court's judgment may be upheld on appeal despite its reliance on the wrong ground or reason for its decision.’ " Harris , 311 Kan. at 375 .

Before the panel, Allen argued it should consider her unpreserved claims because they were purely legal issues and necessary to prevent a denial of her fundamental rights. And while no one disputes the right to be present at all critical stages of a criminal proceeding is a fundamental right for purposes of the unpreserved issue rubric, that designation by itself is not an automatic gateway for appellate court consideration on the merits.

Standard of review

It is well understood that a court abuses its discretion when (1) its judicial action is based on an error of law; (2) its judicial action is based on an error of fact; or (3) no reasonable person would have taken the view adopted by the court. State v. Thomas , 307 Kan. 733, 739, 415 P.3d 430 (2018). This framework applies to an appellate court's decision to invoke an exception to consider an unpreserved issue. See, e.g., State v. Jones , 313 Kan. 917, 933, 492 P.3d 433 (2021) (concluding Court of Appeals did not abuse its discretion when it declined to consider First Amendment claim raised for the first time on appeal).

An appellate court abuses its discretion to take up a newly raised issue if deciding its merits would require the court to make factual findings such as credibility determinations, resolving evidentiary conflicts, and reweighing evidence. These are typically tasks an appellate court may not perform when the factual issues could have been fully litigated before the appeal. See Aguirre , 313 Kan. at 209, 485 P.3d 576 ; Parsons Mobile Prod., Inc. v. Remmert , 216 Kan. 256, 259, 531 P.2d 428 (1975) ("On appeal it is not the function of the appellate court to weigh conflicting evidence, pass on the credibility of witnesses or redetermine questions of fact. The reviewing court is concerned only with the evidence which supports the trial court's findings and not with the evidence which might have supported contrary findings."); see also State v. Yazell , 311 Kan. 625, 628, 465 P.3d 1147 (2020) (acknowledging the rare possibility of appellate fact-finding to resolve question of mootness because of changed circumstances arising after appeal initiated).

The panel's decision to consider these unpreserved issues .

The panel decided to address the merits of Allen's two unpreserved claims because it believed resolving them would prevent a denial of fundamental rights and serve the ends of justice. Relying on State v. Wright , 305 Kan. 1176, 390 P.3d 899 (2017), the panel reasoned:

"Allen
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