State v. Dean

• Decision Date: 05 June 2009
• Docket Number: No. 99,354.,99,354.
• Citation: 208 P.3d 343
• Parties: STATE of Kansas, Appellee, v. Antwon DEAN, Appellant.
• Court: Kansas Court of Appeals

208 P.3d 343

STATE of Kansas, Appellee, v. Antwon DEAN, Appellant.

No. 99,354.

Court of Appeals of Kansas.

June 5, 2009.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Steve Six, attorney general, for appellee.

Before RULON, C.J., ELLIOTT and HILL, JJ.

HILL, J.

On its own motion, a trial court can continue a criminal trial beyond the normal 180-day limit because of other cases awaiting trial. The district court did so here because of a pending trial of a civil case. Because the statute allowing such continuances does not specifically limit them to only for pending criminal cases, we will not read that term into the statute. Had the legislature wanted to limit the trial court's authority in such a manner, it could have said so. It did not. Therefore, the defendant here received a speedy trial.

This is a direct appeal by Antwon Dean of his drug convictions. He raises several issues: a speedy trial violation; insufficient evidence; the trial court's failure to grant a new trial; jury instruction error; and an improper order to pay attorney fees. We will address the issue in that order.

The case history reveals that Dean was living with his sister and her small children.

After closely observing Antwon Dean's residence and suspecting drug sales, a Reno County Sheriff's deputy obtained a search warrant to search Dean's home. At the time of the search, Ashanti Dean, Dean's sister; Ashanti's three children; and Sarah Sheahan, a friend of Ashanti, were present.

After the deputy advised Ashanti of her Miranda rights, Ashanti told him that the drugs were located in the upstairs northwest bedroom. In the residence, there are three bedrooms, two upstairs and one downstairs. Relying on Ashanti's statements as well as papers found in each bedroom, the deputy determined the downstairs bedroom belonged to Kenneth White and the upstairs southwest bedroom belonged to Ashanti and her children. The upstairs northwest bedroom had photographs of Dean and contained only male clothing; therefore, the deputy believed it to be Dean's bedroom.

Leading Deputy Griffiths to the upstairs northwest bedroom, Ashanti pointed to the dresser. The search revealed the following:

• On top of the dresser there was an electronic scale, a set of Kroger sandwich bags, and Dean's wallet containing his driving license. Marijuana residue was found throughout the top of the dresser and detected in the electronic scale and Kroger sandwich bags.

• The upper left-hand drawer of the dresser was approximately 24 to 30 inches off the ground. Opening the upper left-hand dresser drawer, Deputy Griffiths discovered a 1-gallon Ziploc bag holding a compressed brick of marijuana; some of the marijuana had been partially peeled off. Furthermore, Kansas drug tax stamps were not affixed to the marijuana.

• Inside the upper right-hand drawer of the dresser, Deputy Griffiths found a Kansas photo identification card of Dean.

The deputy recovered marijuana and drug paraphernalia associated with marijuana only from the upstairs northwest bedroom. He did find a small quantity of marijuana and drug paraphernalia associated with marijuana in Sarah Sheahan's purse, both of which were consistent with personal use. Sarah Sheahan asserted she did not purchase her marijuana from Dean.

Using the evidence gleaned from the search, the State charged Dean with one count of possession of marijuana with intent to sell within 1,000 feet of a school; one count of possession of drug paraphernalia with the intent to use to package a controlled substance for sale; three counts of endangering a child; and one count of possession of marijuana without tax stamps affixed. Dean was convicted on all counts except the count of possession of marijuana with intent to sell within 1,000 feet of a school.

We list the history of the trial settings.

On January 3, 2007, Dean waived formal arraignment and entered a plea of not guilty. His jury trial was scheduled for March 20, 2007, before Judge Richard J. Rome. But on March 19, 2007, the State moved to continue the trial. Then on June 29, 2007, Dean's jury trial was rescheduled for July 2, 2007. Finally, on July 2, 2007, Judge Rome, on his own motion, continued the jury trial until July 10, 2007. The record shows: "Arguments heard on continuing Jury Trial. Court continues Jury Trial to July 10, 2007, if Judge Chambers can hear it. Otherwise, Jury Trial is scheduled 7-31-07." On July 3, 2007, Dean filed a motion to dismiss his case, claiming Judge Rome's continuance violated his statutory right to a speedy trial.

On July 6, 2007, Judge Timothy J. Chambers heard Dean's motion to dismiss. At the hearing, Dean claimed the evidence did not support Judge Rome's reasons for continuing his trial. Reviewing the record, Judge Chambers assessed the March continuance against the State but believed the 180th day fell on July 2 and not June 29 Moreover, Judge Chambers took judicial notice that Judge Rome had a civil case scheduled for July 2 and another case scheduled for July 3, which precluded Judge Rome from conducting Dean's jury trial.

From these findings, Judge Chambers denied Dean's motion. In his ruling, Judge Chambers interpreted the phrase "other cases" in K.S.A. 22-3402(5)(d) to include all cases, not just criminal cases. Under this interpretation, Judge Chambers found Judge Rome's continuance to be proper and held Dean's jury trial was properly scheduled within the 30-day time frame from July 2 under K.S.A. 22-3402(5)(d).

We agree with the trial court—Dean's trial was held within the statutory time limit.

Dean argues that his statutory right to a speedy trial had been violated because (1) "no evidence was provided to show that the court would be unable to handle [his] trial within 180 days," and (2) the evidence that was presented suggested a civil case could have been rescheduled so that Dean's jury trial could have been conducted within the 180-day time period.

A claimed violation of the statutory right to speedy trial presents an issue of law over which the Kansas appellate courts have unlimited review. State v. Brown, 283 Kan. 658, 661, 157 P.3d 624 (2007). Moreover, Dean's argument requires interpretation of K.S.A. 22-3402. Interpretation of a statute presents a question of law over which an appellate court has unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).

K.S.A. 22-3402(2) governs the statutory right to speedy trial and sets the 180 day limit:

"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 (5)."

That subsection five [K.S.A. 22-3402(5)(d)] reads:

"(5) The time for trial may be extended beyond the limitations of subsections (1) and (2) for any of the following reasons:

....

"(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than 30 days may be ordered upon this ground."

This obviously means the trial court-because of busy dockets-can set over a trial for a period not greater than 30 days. That is what happened in this case.

Dean cites State v. George, 31 Kan.App.2d 430, 434-35, 65 P.3d 1060 rev. denied 276 Kan. 971 (2003), for authority. We are not persuaded. Dean's reliance on this case is in error. In George, the court reviewed whether the trial court's order of a continuance under K.S.A. 22-3402(3)(c) was proper. 31 Kan.App.2d at 434-35, 65 P.3d 1060. K.S.A. 22-3402(3)(c) authorizes the time for trial to be extended if "[t]here is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding ninety (90) days." In 2004, however, K.S.A. 22-3402 was amended. L.2004, ch. 47, sec. 1. Thus, contrary to Dean's argument, K.S.A. 22-3402(5)(d)'s predecessor is found in K.S.A. 22-3402(3)(d) (Furse 1995), not subsection (3)(c). K.S.A. 22-3402(3)(d) (Furse 1995) states: "Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than thirty (30) days may be ordered upon this ground."

Here, the record on appeal shows that Dean's jury trial required 2 days, Judge Rome already had a civil case scheduled on July 2. Then on July 3, Judge Rome was hearing a jury trial, but it is unclear from the record whether this case was criminal or civil in nature. Furthermore, on July 2 and 3, Judge Chambers had cases scheduled, which included criminal cases, before he was asked to hear Dean's jury trial. Finally, citing K.S.A. 22-3402(5)(d), Judge Rome, sua sponte, rescheduled Dean's jury trial to commence on July 10 before Judge Chambers. Then on July 10 and 11, within 30 days of Judge Rome's continuance, Judge Chambers conducted Dean's jury trial. Consequently, in contrast to Dean's first argument, the evidence supports the district court's actions under K.S.A. 22-3402(5)(d).

Next, without authority, Dean argues that the "evidence suggests that there was in fact a civil case which could have been rescheduled to provide Mr. Dean a trial within 180 days of his arraignment" and that the district court's failure to do so violated K.S.A. 22-3402(5)(d). Nevertheless, our review of case law for the current and previous version of K.S.A. 22-3402(5)(d) does not give credence to Dean's...