State v. Gonzales

• Decision Date: 24 July 2009
• Docket Number: No. 99,657.,99,657.
• Citation: 212 P.3d 215
• Parties: STATE of Kansas, Appellee, v. Gerald E. GONZALES, Appellant.
• Court: Kansas Supreme Court

212 P.3d 215

STATE of Kansas, Appellee, v. Gerald E. GONZALES, Appellant.

No. 99,657.

Supreme Court of Kansas.

July 24, 2009.

Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with her on the brief for appellee.

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

Gerald E. Gonzales was convicted of one count of aggravated indecent liberties with a child under the age of 14 contrary to K.S.A. 2006 Supp. 21-3504(a)(3), one count of aggravated indecent liberties with a child contrary to K.S.A.2006 Supp. 21-3504(a)(1) (sexual intercourse with a child who is 14 or more years of age but less than 16 years of age), and single counts of rape and violation of a protective order. For his conviction of aggravated indecent liberties with a child under the age of 14, Gonzales received a sentence of life imprisonment without the possibility of parole for 25 years and postrelease supervision for life pursuant to K.S.A.2006 Supp. 21-4643, commonly known as Jessica's Law.

On appeal, Gonzales seeks to reverse his convictions and vacate his hard 25 life sentence. In seeking to reverse his convictions, Gonzales argues he was denied a fair trial because his counsel was ineffective. Alternatively, Gonzales focuses on his conviction and sentence under Jessica's Law, arguing: (a) the trial court lacked jurisdiction to sentence him under K.S.A.2006 Supp. 21-4643 because the charging instrument failed to allege that he was over the age of 18, (b) a defendant's age at the time of the offense is an element of the crime of indecent liberties with a child which the trial court failed to include in the jury instructions, violating his constitutional rights, and (c) his disproportionate sentence violates the right against cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights or, similarly, the Eighth Amendment to the United States Constitution.

We affirm the district court's denial of Gonzales' request for a new trial, finding that substantial competent evidence supports the district court's findings of fact and the court's conclusion that trial counsel acted within the wide range of reasonable professional judgment was not erroneous. Nevertheless, we vacate Gonzales' sentence under Jessica's Law based on this court's recent dispositive holding in State v. Bello, 288 Kan. ___, 211 P.3d 139 (2009), which concluded that the defendant's age must be determined by a jury. We conclude, however, that Gonzales was validly convicted of aggravated indecent liberties with a child under the age of 14 and remand for resentencing pursuant to the Kansas Sentencing Guidelines Act (KSGA).

Facts and Procedural Background

The State's complaint against Gonzales was amended twice and ultimately charged him with four counts:

Count I — one count of aggravated indecent liberties with a child in violation of K.S.A. 2006 Supp. 21-3504(a)(1), by engaging in sexual intercourse with C.M., a 14-year-old child, on or between January 1, 2006, to November 30, 2006;

Count II — one count of aggravated indecent liberties with a child in violation of K.S.A.2006 Supp. 21-3504(a)(3)(A), by lewdly fondling or touching N.M., a child under 14 years of age, on or between August 1, 2006, to November 30, 2006;

Count III — one count of rape in violation of K.S.A.2005 Supp. 21-3502(a)(2), by engaging in sexual intercourse with C.M., a child under 14 years of age, on or between August 1, 2004, to January 1, 2006;

Count IV — one count of unlawfully, knowingly, or intentionally violating a protective order issued by the district court in violation of K.S.A. 21-3843(a)(1), by contacting Anna Martinez by telephone the night before the preliminary hearing.

The two victims in Counts I, II, and III were the daughters of Martinez, with whom Gonzales had a romantic relationship. He lived with Martinez and her family during the time of the alleged incidents. One of the victims, C.M., suffered from cerebral palsy, attended special education classes at school and, according to her mother, was mentally and emotionally "developmentally slow." C.M.'s younger sister, N.M., was the other victim.

At trial, the jury heard evidence of the two victims' statements to investigating officers and also heard the victims testify. Highly summarized, C.M. told officers that Gonzales had sex with her on her mother's bed in excess of 15 times over a 2-year period. The other victim, N.M., told police that Gonzales had forced her to "kiss him nasty." N.M. described that Gonzales would put her up against a door, push up her shirt, and feel her breasts with his hands and also kiss them. When asked where this happened, N.M. said sometimes it happened in her room and sometimes in her mother's room. And it always happened when her mom was at work and before school.

The jury also heard police testify regarding their interview of Gonzales. During his interview, Gonzales denied having any sexual contact with N.M. and initially denied engaging in sexual acts with C.M. Ultimately, he admitted having sexual contact with C.M. but claimed there was one incident and that it was consensual. Gonzales told detectives that C.M. was very flirtatious with him after her mother would leave the house or when he and C.M. were alone together. Gonzales said one Saturday morning, approximately 6 months before his arrest, C.M. approached him in the living room, removed her shorts, grabbed his penis, and tried to get him aroused. Gonzales indicated that he tried to have sex with C.M., but because he did not have an erection, "I couldn't put it in, man." So Gonzales told C.M. to stop and go take a shower.

The jury convicted Gonzales as charged. Before sentencing, defense counsel filed a motion for new trial based on insufficient evidence, which the district court denied. In addition, Gonzales filed a pro se supplemental motion for new trial based on multiple allegations of ineffective assistance of trial counsel. The district court appointed new counsel to represent Gonzales for purposes of sentencing and held a hearing on the pro se supplemental motion. After considering the evidence and the testimony of Gonzales' trial counsel, the district court found that counsel's performance "fell within the wide range of reasonable professional assistance" and denied Gonzales' request for a new trial.

The court proceeded immediately to sentencing, and Gonzales' newly appointed defense counsel offered an oral motion seeking a downward durational or dispositional departure sentence applicable to the aggravated indecent liberties conviction involving the lewd fondling and touching of N.M. This offense (Count II), in violation of K.S.A.2006 Supp. 21-3504(a)(3)(A), subjected Gonzales to a presumptive life sentence with a mandatory minimum of 25 years' imprisonment under K.S.A.2006 Supp. 21-4643(a)(1)(C). The court denied the departure motion.

Gonzales filed a timely appeal. This court's jurisdiction is under K.S.A. 22-3601(b)(1) (off-grid crime; life sentence).

I. Motion for New Trial

Gonzales contends that his trial counsel provided constitutionally defective representation when counsel failed to provide substantial communication with Gonzales, failed to adequately cross-examine victim C.M., failed to consider Gonzales' suggestions in support of his defense, and failed to review police reports with Gonzales. He contends that these failures by counsel were so prejudicial he was deprived of a fair trial.

Twice Gonzales alerted the district court to his concerns about his trial counsel. After the preliminary hearing, Gonzales filed a pro se motion to dismiss counsel, arguing that his attorney was working against him. After holding a hearing, the court denied Gonzales' motion and found that he presented no evidence showing his attorney was not working as his advocate. Then after trial, Gonzales filed a pro se supplemental motion for new trial based on allegations of ineffective assistance of trial counsel. The court held a posttrial hearing on Gonzales' pro se supplemental motion, at which Gonzales was represented by newly appointed counsel. After hearing arguments and considering testimony from Gonzales and his trial counsel, the court ordered the parties to return the following week for a ruling on the matter.

One week later, at the motions and sentencing hearing, the district court decided to treat Gonzales' pro se supplemental filing as a K.S.A. 60-1507 motion. After making thorough and specific findings regarding each of Gonzales' allegations of ineffective assistance of trial counsel, which will be discussed further below, the court concluded that "the performance of [trial counsel] fell within the wide range of reasonable professional assistance." Also, the district court concluded that "it cannot be said that the performance of [trial counsel] undermined the adversarial process such that a just result was not obtained." Consequently, the court denied Gonzales' motion.

A. General Standards

The Sixth Amendment to the United States Constitution guarantees in "all criminal prosecutions" that "the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." This court has explained that the right to counsel guaranteed by this provision is the right to effective assistance of counsel. Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]); see State v. Overstreet, 288 Kan. 1, 20, 200 P.3d 427 (2009); Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007).

To support a claim of ineffective assistance of counsel, a defendant must demonstrate that (1) counsel's performance was deficient and (2) counsel's deficient performance was sufficiently...