State v. Delacruz
| Decision Date | 14 July 1995 |
| Docket Number | No. 71969,71969 |
| Citation | 899 P.2d 1042,258 Kan. 129 |
| Parties | STATE of Kansas, Appellee, v. Joe DELACRUZ, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. An uncounseled misdemeanor conviction is constitutionally valid if the offender is not incarcerated; a defendant charged with a misdemeanor does not necessarily have a constitutional right to counsel. Actual imprisonment is a penalty different in kind from fines or threats of imprisonment. Thus, actual imprisonment has been the line defining the constitutional right to appointment of counsel in misdemeanor convictions.
2. An uncounseled misdemeanor conviction that does not result in incarceration may be included in a defendant's criminal history under the Kansas Sentencing Guidelines, even though the conviction has the effect of enhancing his or her sentence under the guidelines.
3. A valid felony conviction that arises due to prior misdemeanor convictions and becomes part of a defendant's criminal history may not be challenged on the basis that one or several of the underlying misdemeanor convictions were uncounseled. Permitting a defendant to attack convictions giving rise to the felony conviction amounts to a collateral attack within a collateral attack. Instead, the last possible time for challenging the underlying misdemeanor convictions is when they are used in enhancing the felony conviction. Absent an indication that the felony conviction itself is constitutionally invalid, it may be used as a part of the defendant's criminal history under the Kansas Sentencing Guidelines Act.
4. The admission of a prior criminal conviction which is constitutionally infirm under 5. The right to collaterally attack prior convictions used for sentence enhancement is limited. Only in those cases involving a denial of counsel as outlined in Gideon is such an attack allowed.
the standards of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), is inherently prejudicial, and to permit use of such a tainted prior conviction for sentence enhancement would undermine the principle of Gideon.
6. K.S.A. 1994 Supp. 21-4715(c) provides that when a defendant objects to any part of the criminal history, the State has the burden to come forth with further evidence to establish the disputed portion of the criminal history by a preponderance of the evidence. The fact that the statute uses this preponderance of the evidence standard indicates that the defendant should also be given the opportunity to present evidence regarding criminal history.
7. Before a misdemeanor conviction which results in jail time may be included in a defendant's criminal history, either the record must demonstrate that the defendant was represented by counsel or that the defendant waived counsel, or the State must establish by a preponderance of evidence that the defendant was represented by counsel or waived counsel.
Kurt P. Kerns, of Redmond, Redmond, & Nazar, Wichita, argued the cause and was on the brief, for appellant.
Don L. Scott, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.
This case involves the use of prior uncounseled misdemeanor convictions to establish a defendant's criminal history under the Kansas Sentencing Guidelines Act (KSGA). The questions raised by this appeal are twofold: When and to what extent may such convictions be used and under what circumstances may a defendant collaterally attack (1) the convictions which enhance a sentence under the KSGA and (2) the underlying misdemeanor convictions which cause a conviction considered by the sentencing judge under the criminal history portion of the KSGA to be a felony instead of a misdemeanor?
The defendant, Joe Delacruz, pled guilty to a single count of sale of marijuana, a severity level 3 felony charge under the Kansas Sentencing Guidelines. The defendant's criminal history worksheet included the following information on three misdemeanor battery convictions, all involving the defendant and his wife:
1. April 13, 1992, a municipal court uncounseled misdemeanor battery conviction based on the defendant's plea of guilty; fine imposed and no jail sentence.
2. March 29, 1993, a municipal court uncounseled misdemeanor battery conviction based on the defendant's plea of guilty; fine imposed and no jail sentence.
3. March 29, 1993, a municipal court uncounseled misdemeanor battery conviction based on the defendant's plea of guilty; fine of $121 and sentence of 90 days in jail with the requirement to serve 30 days.
In accord with K.S.A.1994 Supp. 21-4711(a), which provides that three prior adult person misdemeanor convictions in the offender's criminal history shall be rated as one adult person felony conviction for criminal history purposes, the defendant's three prior misdemeanor convictions were converted to one adult conviction of a person felony. The defendant contends that his uncounseled misdemeanor battery convictions may not be used to enhance his sentence.
The defendant's criminal history worksheet also contained one felony conviction of driving while suspended and three misdemeanor convictions of driving while suspended:
1. May 20, 1986, Amarillo, Texas, municipal court, misdemeanor conviction of driving while suspended.
2. July 13, 1988, Seward County District Court, misdemeanor conviction of driving while suspended.
3. August 3, 1988, Liberal, municipal court, misdemeanor conviction of driving while license suspended.
4. September 14, 1989, Seward County District Court, felony conviction of driving while suspended. The defendant was represented by counsel.
K.S.A. 8-262 provides that the third charge of driving while suspended may be charged as a felony, and this was done in this case. The defendant argued that enhancement of his sentence under the KSGA resulted, in part, because of an uncounseled misdemeanor conviction for driving while suspended. He further argues that all other misdemeanor convictions for driving while suspended, even though he was counseled or waived his right to counsel, resulted from guilty pleas that were not knowingly entered.
Based upon the defendant's criminal history of one person felony (three misdemeanor battery convictions) and one nonperson felony (one felony driving while suspended), the defendant's criminal history was classified C under the KSGA, and he was sentenced to 40 months' imprisonment with a post-release supervision period of 24 months. Without the two prior felonies, the defendant would have been classified 3 H or 3 I under the sentencing guidelines with an optional nonprison sentence possible for his conviction of sale of marijuana involving less than 500 grams. See K.S.A. 1994 Supp. 21-4705(c).
In Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the United States Supreme Court held that an uncounseled misdemeanor conviction is constitutionally valid if the offender is not incarcerated; a defendant charged with a misdemeanor does not necessarily have a constitutional right to counsel. Scott was based upon an earlier case recognizing that actual imprisonment was a penalty different in kind from fines or threats of imprisonment. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Thus, actual imprisonment has been the line defining the constitutional right to appointment of counsel in misdemeanor convictions. Scott, 440 U.S. at 373-74, 99 S.Ct. at 1162.
One year after deciding Scott, the United States Supreme Court considered the question of whether prior uncounseled misdemeanor theft convictions not involving imprisonment may be used to enhance a subsequent misdemeanor theft to a felony under an Illinois enhancement statute providing that a second conviction for such an offense may be treated as a felony punishable by imprisonment for one to three years. Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169, reh. denied 447 U.S. 930, 100 S.Ct. 3030, 65 L.Ed.2d 1125 (1980).
Baldasar held that a conviction which is invalid for purposes of imposing a sentence of imprisonment for the offense itself remains invalid for purposes of increasing a term of imprisonment for a subsequent conviction under a repeat offender statute. 446 U.S. at 228, 100 S.Ct. at 1588. The United States Supreme Court, in a five-to-four plurality decision, reasoned that the Illinois prison term imposed for the felony theft violated Scott because the defendant had been sentenced to an increased term of imprisonment only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense. 446 U.S. at 224, 100 S.Ct. at 1586.
This court faced a similar issue in State v. Priest, 239 Kan. 681, 722 P.2d 576 (1986). Priest had completed a driving while under the influence (DUI) diversion program. The record failed to show that she had been represented by counsel in this diversion agreement. Priest was then charged with a second DUI and, with the assistance of counsel, entered a plea of no contest to the second charge. The court sentenced the defendant as a first-time offender because there was no showing she had been represented by counsel in her first diversion agreement. We noted that a successfully completed DUI diversion agreement and program had the same effect as a conviction for DUI when a sentence is enhanced because of the second conviction for DUI.
Priest raised the question of whether a prior, uncounseled DUI misdemeanor conviction may be used to enhance the sentence for a subsequent DUI conviction. We held that in the absence of demonstrating that the Recently, in Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), the United States Supreme Court revisited the Baldasar decision. In Nichols, the defendant objected to the inclusion of a DUI misdemeanor...
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