State v. Ford, 122,764

Docket Number122,764
Decision Date10 November 2022
Citation519 P.3d 456
Parties STATE of Kansas, Appellee, v. Harold Glen FORD Jr., Appellant.
CourtKansas Supreme Court

Kristen B. Patty, of Wichita, argued the cause, and was on the brief for appellant.

Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

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

In 1993, Harold Glen Ford Jr. pleaded guilty to first-degree murder and related charges. His convictions were vacated in 2016 because it was unclear whether he received a requested competency hearing before his guilty plea. On remand, a jury found Ford guilty of first-degree premeditated murder, aggravated robbery, and aggravated burglary. On appeal, he argues the delay between the original charges in 1992 and the trial that began in 2019 violated his constitutional right to a speedy trial. We disagree and affirm the district court.


In September 1992, Michael Owen was found dead in his front yard in Leawood, Kansas. An investigation led officers to Ford, and on September 21, 1992, the State charged Ford with first-degree murder, aggravated robbery, and aggravated burglary. Shortly thereafter, Ford's counsel filed a motion to determine Ford's competency, which the court granted. State v. Ford , 302 Kan. 455, 458, 353 P.3d 1143 (2015). A doctor determined Ford was competent to stand trial, and the court file-stamped the completed evaluation. 302 Kan. at 458, 353 P.3d 1143. The record did not reflect whether a competency hearing took place. 302 Kan. at 458, 353 P.3d 1143.

On February 12, 1993, Ford pleaded guilty to felony murder, aggravated robbery, and aggravated burglary. The court sentenced him to consecutive sentences of life in prison for the felony murder, 15 years to life for the aggravated robbery, and 5 to 20 years for the aggravated burglary.

In April 2010, Ford filed a motion to correct an illegal sentence. He argued his sentence and conviction were void because the district court never held a competency hearing. At a hearing on the motion, Ford's counsel appeared, but Ford was not personally present. 302 Kan. at 459, 353 P.3d 1143. The district court concluded there was no record of a competency hearing as required by K.S.A. 22-3302(1). However, it retrospectively concluded Ford had been competent to stand trial and denied the motion. 302 Kan. at 460-61, 353 P.3d 1143.

This court affirmed the district court's decision that the State failed to prove Ford received a competency hearing and that a retrospective competency hearing was feasible. 302 Kan. at 470, 472-73, 353 P.3d 1143. However, it concluded the district court's retrospective hearing had not remedied the due process error because Ford had not been present and it was unclear whether he had waived his presence. 302 Kan. at 476, 353 P.3d 1143. It therefore remanded the case to the district court for a new hearing. It instructed the court to determine whether Ford had waived his presence and, if not, to conduct a new retrospective competency hearing or determine such a hearing was not feasible. 302 Kan. at 476-77, 353 P.3d 1143.

On remand, the district court concluded Ford had not waived his presence at the hearing on his motion. It also concluded a retrospective competency hearing was not feasible. On December 30, 2016, the district court vacated Ford's convictions and ordered the continued prosecution of the case.

On May 31, 2018, Ford filed a motion to dismiss, arguing the decades-long delay between the original charge and the impending trial violated his constitutional speedy trial right. At an evidentiary hearing on the motion, Ford focused largely on the prejudice his defense had suffered by the long delay. He presented the testimony of private investigator Ed Brunt who, at Ford's request, had tried to locate people who had been interviewed in the original investigation. Brunt testified that some of those people had been difficult or impossible to find, that some had died, and that the memories of the interviewees to whom he spoke had faded. Ford also offered exhibits that showed some evidence had been returned, disposed of, or was missing. The court denied the motion to dismiss, concluding there had been no unjustifiable delay.

After a trial that began February 25, 2019, a jury found Ford guilty of first-degree premeditated murder, aggravated robbery, and aggravated burglary. The district court sentenced Ford to consecutive terms of life without the possibility of parole for 40 years for the murder conviction, 15 years to life for the aggravated robbery conviction, and 5 to 20 years for the aggravated burglary conviction. Ford has appealed his convictions to this court.


Ford presents only one claim. He argues his constitutional right to a speedy trial was violated by the over 26-year delay between the original charge in 1992 and the 2019 trial.

"As a matter of law, appellate courts have unlimited review when deciding if the State has violated a defendant's constitutional right to a speedy trial." State v. Shockley , 314 Kan. 46, 61, 494 P.3d 832 (2021).

The Sixth Amendment to the United States Constitution provides: " ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.’ " State v. Owens , 310 Kan. 865, 869, 451 P.3d 467 (2019). Pursuant to the Fourteenth Amendment to the United States Constitution, this provision is applicable to proceedings in state courts. Klopfer v. North Carolina , 386 U.S. 213, 222-23, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). Unlike the Kansas statute requiring a speedy trial, the constitutional speedy trial provision does not create a strict timeframe within which the State must bring a defendant to trial. Rather, what is "speedy" is relative to each defendant and the circumstances surrounding the case against them. Barker v. Wingo , 407 U.S. 514, 521-22, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).

To determine whether the State has violated a defendant's constitutional right to a speedy trial, courts generally consider the following nonexclusive factors outlined by the United States Supreme Court in Barker : (1) Length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. 407 U.S. at 530, 92 S.Ct. 2182 ; Owens , 310 Kan. at 869, 451 P.3d 467. A court assesses the conduct of both the prosecution and the accused and considers the factors together along with "any other relevant circumstances." 310 Kan. at 869, 451 P.3d 467.

Our analysis begins and ends with the first factor: length of delay. Ford focuses heavily on the prejudice his defense suffered from the decades between his charge and trial. But he hinges that claim on his assertion that the speedy trial clock ran continuously from the day he was charged in 1992 until the 2019 trial. The State argues the time Ford stood convicted does not count toward a constitutional speedy trial analysis. We agree. Because Ford makes no claim that the roughly two years and nine months that accumulated outside of the time he stood convicted constituted a speedy trial violation, Ford's appeal fails.

" ‘The constitutional protection of a speedy trial attaches when one becomes accused and the criminal prosecution begins, usually by either an indictment, an information, or an arrest, whichever first occurs.’ " State v. Rivera , 277 Kan. 109, 112, 83 P.3d 169 (2004) (quoting State v. Taylor , 3 Kan. App. 2d 316, 321, 594 P.2d 262 [1979] ). A court generally counts the time between that origin point and the defendant's trial to calculate the length of delay in a constitutional speedy trial analysis.

But Ford's 1993 guilty plea and resultant conviction complicate the calculation. Supreme Court caselaw indicates this earlier conviction extinguished Ford's right to a speedy trial. In Betterman v. Montana , 578 U.S. 437, 441, 136 S. Ct. 1609, 194 L. Ed. 2d 723 (2016), the Supreme Court held there is no right to speedy sentencing because the speedy trial right "detaches" after conviction. The Court explained that the speedy trial right is "a measure protecting the presumptively innocent" and, consequently, "loses force upon conviction." 578 U.S. at 442, 136 S.Ct. 1609. It observed the speedy trial right "[r]eflect[s] the concern that a presumptively innocent person should not languish under an unresolved charge," and thus "guarantees ‘the accused ‘the right to a speedy ... trial .’ " 578 U.S. at 443, 136 S.Ct. 1609 (quoting U.S. Const. amend. VI ). "At the founding," the Court explained, " ‘accused’ described a status preceding ‘convicted’ ....[a]nd ‘trial’ meant a discrete episode after which a judgment (i.e., sentencing) would follow." 578 U.S. at 443, 136 S.Ct. 1609.

Although Betterman focused solely on whether speedy trial rights exist between a conviction and sentencing, the court's rationale makes it clear that a conviction causes the speedy trial right to "detach." Other courts have relied on Betterman in coming to this conclusion even when the issue was not speedy sentencing. Williams v. State , 642 S.W.3d 896, 900 (Tex. App. 2021) (speedy trial right detached upon conviction even though defendant's guilty plea later found...

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