State v. Glover

• Decision Date: 26 June 2015
• Docket Number: No. 110848.,110848.
• Citation: 353 P.3d 469 (Table)
• Parties: STATE of Kansas, Appellee, v. Derrick GLOVER, Appellant.
• Court: Kansas Court of Appeals

353 P.3d 469 (Table)

STATE of Kansas, Appellee

v.Derrick GLOVER, Appellant.

No. 110848.

Court of Appeals of Kansas.

June 26, 2015.

Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., ARNOLD–BURGER, J., and BURGESS, S.J.

Opinion

ARNOLD–BURGER, J.

Derrick Glover pled guilty to four criminal charges involving a robbery of a jewelry store. This appeal concerns only the sentence imposed on his conviction of criminal damage to property. On appeal, Glover contends that the trial court lacked jurisdiction to convict him of a severity level 7 felony for criminal damage to property because the State's charging document failed to allege the required statutory damage amount for the severity level 7 felony charge. The State concedes in its brief that its complaint failed to allege the required statutory damage amount for the severity level 7 felony charge. Because we find that the error in the charging document did not prejudice Glover's preparation of a defense, impair his ability to plead the conviction in any subsequent prosecution, or limit his substantial rights to a fair trial, we affirm his conviction and sentence for a severity level 7 felony for criminal damage to property.

Factual and Procedural History

The underlying facts in this case are undisputed. Glover and two other men drove a stolen automobile through the front of a jewelry store located in downtown Hutchinson, Kansas. Video surveillance cameras caught them stealing jewelry before they escaped. Glover confessed to his involvement in the crime.

A formal complaint was filed against Glover for a burglary, a severity level 9 felony for criminal damage to property, and a misdemeanor theft. The severity level 9 felony for criminal damage to property charge alleged the following:

“That on or about the 12th day of January, 2013, in Reno County, Kansas, one Derrick D. Glover then and there being present did unlawfully, feloniously, knowingly, by means other than fire or explosive, damage property, to wit: building and windows, in which another has an interest, to wit: Westphal Jewelers; without the consent of such other person; and damage being more than $1,000.00.”

At the preliminary hearing, testimony established that the jewelry store building itself sustained damage of approximately $54,000. The State moved to orally amend the criminal damage to property charge from a severity level 9 felony to a severity level 7 felony based on the increased damage value. In addition, the State moved to add an additional felony charge of conspiracy. At some point, the State also amended the misdemeanor theft to a severity level 7 felony theft.

The State subsequently filed an amended complaint against Glover. It increased, as previously noted, the severity level 9 felony for criminal damage to property charge to a severity level 7 felony for criminal damage to property charge. The amended complaint specifically alleged a “SEVERITY LEVEL 7, Nonperson Felony,” cited the correct statutory provision for criminal damage to property, but did not change the previously stated amount of damage to $25,000 or above, consistent with severity level 7 felony for criminal damage to property. Instead it left the “damage being more than $1,000.00” amount in the complaint.

Glover subsequently entered a plea of guilty to all four charges. He was sentenced to the standard sentence for each charge to be served consecutively, with a controlling sentence of 54 months in prison. Glover filed a timely appeal.

Analysis

Glover challenges only his 12–month sentence for the severity level 7 criminal damage to property charge. Glover contends, for the first time on appeal, that the amended complaint was not factually sufficient to state an offense of a severity level 7 felony criminal damage to property charge because the amended complaint failed to allege an essential element of the offense: damage being $25,000 or more. Had he been sentenced to a severity level 9 offense, his sentence would have been 6 months instead of 12 months. See K.S.A.2014 Supp. 21–6804. This would have reduced his controlling sentence from 54 months to 51 months.

The State concedes that the amended complaint for the severity level 7 criminal damage to property felony charge incorrectly alleged “damage being more than $1,000.00.” The State further concedes that the amended complaint should have alleged the required statutory damage amount as follows: damage being “$25,000.00 or more.” But the State argues that Glover was on notice of the charge at all times and was not prejudiced by the error.

In this case, Glover did not challenge the adequacy of the charging document in charging a severity level 7 offense, nor did he challenge the severity level of the criminal damage charge during the plea hearing or at sentencing. Instead, he raises this issue for the first time on appeal. Generally, this court does not consider issues raised for the first time on appeal except in certain limited circumstances. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). But there are no such limits to raising jurisdictional challenges for the first time on appeal. See State v. Williams, 299 Kan. 509, 532, 324 P.3d 1078 (2014) (noting subject matter jurisdiction may be raised at any time). Whether a charging document was sufficient to confer subject matter jurisdiction to convict a defendant of a particular charge is a question of law over which the court has unlimited review. 299 Kan. at 532, 324 P.3d 1078.

Much confusion has reigned over the years to the adequacy of charging document to convey jurisdiction and defining the standard to determine when a complaint or information fails to adequately set forth the crime sufficient to convict the defendant. Prior to 1990, the Kansas Supreme Court strictly construed charging documents by requiring all essential elements be included in each count, based on the language of the statute; failure to do so required reversal of the conviction, even if the defendant never challenged the charge before the trial court. See State v. Browning, 245 Kan. 26, 28, 774 P.2d 935 (1989) (failure of the information to include maliciously, in addition to “ ‘unlawfully, willfully: deliberately and with premeditation’ “ rendered first-degree murder charge invalid); State v. Wilson, 240 Kan. 606, 607, 731 P.2d 306 (1987) (failure to state that a killing was done “maliciously, deliberately, and with premeditation” insufficient to confer jurisdiction for the court to convict of first-degree murder).

But in State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003), the Kansas Supreme Court took a step toward moderating the harsh result of its stringent interpretation standard with respect to complaints challenged for the first time on appeal. In such cases, the Supreme Court held that it would instead liberally construe charging documents if the defendant failed to challenge them prior to trial or in a timely motion to arrest judgment. Hall, 246 Kan. at 753–56, 793 P.2d 737. In taking this step, the Supreme Court noted that both the United States and Kansas Constitutions extend the accused the “right ‘to be informed of the nature and cause of the accusation.’ [Citation omitted.]” 246 Kan. at 753, 793 P.2d 737. The court found that these protections were implemented by K.S.A. 22–3201. Citing various federal authorities, the court noted that “[t]he test for sufficiency ought to be whether it is fair to require the defendant to defend on the basis of the charge” stated and that the requirement that “every essential element should be alleged” should be read “in the light of the fairness test just mentioned. ” (Emphasis added.) 246 Kan. at 754, 793 P.2d 737. Thus, the court concluded that “[c]ommon sense will be a better guide than arbitrary and artificial rules. The sufficiency of an information should be determined on the basis of practical rather than technical considerations when addressed for the first time on appeal. ” 246 Kan. at 754, 793 P.2d 737.

Accordingly, in Hall, the court adopted a common-sense rule for cases raising a defective complaint or information claim for the first time on direct appeal. To succeed, the defendant must show that the alleged defect either: (1) prejudiced the defendant's preparation of a defense; (2) impaired the defendant's ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant's substantial rights to a fair trial. 246 Kan. at 765, 793 P.2d 737 ; see State v. Tapia, 295 Kan. 978, 984–85, 287 P.3d 879 (2012). The Kansas Supreme Court recently reaffirmed this principle in State v. Carr, 300 Kan. 1, 186, 331 P.3d 544 (2014), cert. granted in part –––U.S. ––––, 135 S.Ct. 1698, ––– L.Ed.2d –––– (2015).

This standard is also consistent with federal constitutional principles set forth in United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). In Cotton, United States Supreme Court held that a federal indictment's failure to include the amount of illegal narcotics the defendant possessed for purposes of sentencing enhancements did not arise to the level requiring the enhanced sentences be vacated. Applying the plain error standard, an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. 535 U.S. at 631–32.

In this case, Glover was on notice that the criminal damage to property charge was a severity level 7 felony on several occasions before he entered his guilty plea:

• At the close of the preliminary hearing, the trial court openly held

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