State v. Browning

• Decision Date: 26 May 1989
• Docket Number: No. 61510,61510
• Parties: STATE of Kansas, Appellee, v. Ronald L. BROWNING, Appellant.
• Court: Kansas Supreme Court

Page 935

774 P.2d 935

245 Kan. 26

STATE of Kansas, Appellee, v. Ronald L. BROWNING, Appellant.

No. 61510.

Supreme Court of Kansas.

May 26, 1989.

Syllabus by the Court

1. When entering a guilty or nolo contendere plea, a defendant does not waive jurisdictional defenses. K.S.A. 22-3208(3), (4).

2. An information which omits one or more of the essential elements of a crime is fatally defective and reversal of a conviction on that offense is required. Following State v. Wilson, 240 Kan. 606, 607, 731 P.2d 306 (1987).

3. The word "willfully," as it relates to the crime of murder, is not the legal equivalent of "maliciously." Malice cannot be inferred from the phrase "deliberately and with premeditation." Malice is an element of first- and second-degree murder, whereas premeditation and deliberation are only elements of first-degree murder.

4. The element of malice, which is an essential element in the crimes of either first- or second-degree murder, must be included in the complaint. Failure to include the element of malice renders the complaint fatally defective.

5. A nolo contendere plea has essentially the same consequences as a guilty plea. Nolo contendere plea agreements should be labeled and described as nolo contendere plea agreements. A written document such as a plea agreement acknowledgment is encouraged; however, such an agreement is emphatically not a substitute for the requirements of K.S.A. 22-3210.

Lucille Marino, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen Chief Appellate Defender, was with her on the brief for appellant.

Debra L. Barnett, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief for appellee.

SIX, Justice:

The defendant, Ronald Browning, appeals from a conviction of one count of second-degree murder and two counts of forgery following his plea of nolo contendere. Browning contends that the complaint/information, which was orally amended at the plea hearing, was fatally defective. We agree. Browning's conviction was void for lack of subject matter jurisdiction, and the case is reversed.

Browning asserts that the denial of his motions to withdraw his plea was an abuse of discretion. Because of our defective oral complaint reversal, it is not necessary to rule on Browning's plea withdrawal contention.

FACTS

Ronald Browning was charged with the murder of Dianne Parker and with two counts of forgery. At the preliminary hearing Browning was bound over on all three counts. He waived formal arraignment, entered a plea of not guilty, and requested a jury trial. Pursuant to plea negotiations, the State amended count one from first-degree murder to second-degree murder and Browning entered a plea of nolo contendere to all three counts.

At a hearing on November 19, 1986, defense counsel requested that the plea be set aside because Browning had not understood the plea agreement. Browning asked to address the court. The court advised him of his right to remain silent and suggested that Browning consult with defense counsel prior to making any statement. After a private consultation between Browning and defense counsel, defense counsel advised the court that Browning no longer wished to pursue the motion to set aside the plea.

Three weeks later, the court received an 11-page letter from Browning. The court interpreted this letter as another motion to set aside the plea. In February 1987, the two attorneys representing Browning withdrew from the case. On March 5, 1987, another hearing was held and an assistant Sedgwick County public defender appeared on behalf of Browning. The court denied Browning's motion and adjudged him guilty of second-degree murder and two counts of forgery.

The court found that Browning had used a firearm in the commission of the murder; therefore, the mandatory minimum sentence required by K.S.A. 21-4618 applied.

Defense counsel subsequently filed another motion to withdraw Browning's plea and a motion to modify his sentence. Browning also filed his own motions for a change of plea and for a jury trial. The trial court denied all the defense motions.

The Oral Amendment to the Complaint/Information

By entering his plea of nolo contendere, Browning did not waive his jurisdictional defenses. K.S.A. 22-3208(3), (4). Under the facts in Browning's case, the trial court had no jurisdiction. The complaint/information was fatally defective.

Murder in the first degree is defined as "the killing of a human being committed maliciously, willfully, deliberately and with premeditation." (Emphasis added.) K.S.A. 21-3401. Murder in the second degree is defined as "the malicious killing of a human being, committed without deliberation or premeditation." (Emphasis added.) K.S.A. 21-3402.

The complaint/information against Browning said in part:

"[O]n or about the 21st day of July, 1984, A.D., RONALD L. BROWNING, did then and there unlawfully, willfully: deliberately and with premeditation, kill and murder a certain human being, to-wit: Dianne M. Parker...."

Browning contends that because the original complaint/information failed to allege the element of malice, it was fatally defective and, therefore, the oral amendment of the charge to second-degree murder was also defective. We agree.

Malice is also a required element of second-degree murder. The State moved to amend count one of the complaint from the crime of first-degree murder to the crime of second-degree murder at the plea negotiation hearing. The amendment was allowed by the court and subsequently journalized. No objection was ever raised by Browning as to the sufficiency of the complaint until this appeal.

An information which omits one or more of the essential elements of a crime is fatally defective and reversal of a conviction on that offense is required. State v. Wilson, 240 Kan. 606, 607, 731 P.2d 306 (1987).

The State admits that the complaint in this case fails to allege the element of malice, but contends that malice can be inferred from the terms used in the complaint. In State v. Roberson, 210 Kan. 209, 499 P.2d 1137 (1972), the defendant challenged his conviction of second-degree murder because the information failed to allege that the killing was committed maliciously. The State replied that the terms used in the information were sufficient to supply the element of malice; specifically, that the term "willfully" imports malice. This court disagreed: "Although language may be found in a good many cases which equates the terms 'willful' and 'malicious', this court is of the opinion that the word 'willfully', as it relates to the crime of murder, is not the legal equivalent of 'maliciously.' " 210 Kan. at 213, 499 P.2d 1137.

The State emphasizes the language "deliberately and with premeditation" in the original complaint. We have held in Wilson that malice cannot be inferred from "willfully." It is also our view that malice cannot be inferred from the phrase "deliberately and with premeditation." Malice is an element of first- and second-degree murder, whereas premeditation and deliberation are only elements of first-degree murder.

Malice is an important element in the crime of murder because malice is the element that distinguishes murder from other types of killings (e.g., manslaughter, self-defense). Roberson, 210 Kan. at 214, 499 P.2d 1137. The oral motion to amend the complaint did not specify that any particular words be added to or deleted from the original language of the complaint.

In State v. Rasch, 243 Kan. 495, 501, 758 P.2d 214 (1988), this court said:

"When the defendant and his attorney are present and permission is obtained from the judge, the State may orally amend the complaint or information any time before the verdict or finding, if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.... The amendment to the complaint or information may be shown by interlineation on the complaint or information, by the filing of an amended complaint or information, or by a journal entry stating the amendment to the complaint or information."

In the Rasch case, however, the prosecutor had requested that specific language be added to the complaint and indicated the specific places where the new language should be inserted. Here, the prosecutor merely stated that she wanted to amend count one from first- to second-degree murder. (We note that Rasch was decided after the prosecutor in the instant case had made her oral motion to amend the complaint.)

In State v. Wilson, 240 Kan. 606, 731 P.2d 306, we held that a complaint had not been amended where the State had not filed an amended information, the prosecutor did not state the precise wording he wished to include or exclude, and the prosecutor did not interlineate upon the original complaint or information. Wilson's conviction of second-degree murder was set aside as she had not been charged with any offense under Kansas law. 240 Kan. at 608-09, 731 P.2d 306. The information in Wilson failed to state that the killing was done maliciously, without premeditation or deliberation, and not in the perpetration of a felony. 240 Kan. at 607, 731 P.2d 306. Wilson was also decided after the oral motion to amend was made in this case.

In Cox v. State, 205 Kan. 867, 473 P.2d 106 (1970), the defendant was originally charged with kidnapping in the first degree, but agreed to plead guilty to kidnapping in the second degree. In open court, the prosecution announced that it was willing to accept the plea to the lesser included offense of kidnapping in the second degree. The court held that the statement of the prosecutor in open court, on the record, was sufficient to amend the information. 205 Kan. at 875, 473 P.2d 106. In Cox, however, there was no allegation that the original information was defective. The original information was not in question in State v. Carpenter, 228 Kan. 115, 612 P.2d 163 (1...