State v. Green

• Decision Date: 11 March 2022
• Docket Number: 123,419
• Citation: 315 Kan. 178,505 P.3d 377
• Parties: STATE of Kansas, Appellee, v. Dion Jamal GREEN, Appellant.
• Court: Kansas Supreme Court

315 Kan. 178

505 P.3d 377

STATE of Kansas, Appellee,

v.Dion Jamal GREEN, Appellant.

No. 123,419

Supreme Court of Kansas.

Opinion filed March 11, 2022.

Debra J. Wilson, of Capital Appeals and Conflicts Office, argued the cause, and Reid T. Nelson, of the same office, was with her on the brief for appellant.

Kurtis K. Wiard, assistant solicitor general, argued the cause, and Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, Topeka, were on the brief for appellee.

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

Dion Jamal Green appeals from the consecutive hard 25 sentences imposed consequent to his plea of guilty to two counts of felony first-degree murder. The facts leading to his sentence were stated at his plea hearing.

On December 25, 2018—Christmas Day—police were dispatched to an address in Junction City, where they found the body of Jenna Schafer, who had been shot in the head. Witnesses identified Green as the last person seen with Schafer at a party the previous night. Green initially denied responsibility for her death but later admitted he left the party with her with the intention of killing her; shortly thereafter, he shot her dead. He told police he did this because a certain Mashaun Baker, also known as "Sleaze," promised to pay him $1,000 to carry out the execution. An autopsy revealed that Schafer was four to eight weeks pregnant at the time of her death.

On January 7, 2019, the State charged Green with one count of premeditated capital murder "done pursuant to a contract or agreement" of Jenna Schafer and one count of premeditated capital murder, as set out in K.S.A. 2020 Supp. 21-5401 and K.S.A. 2020 Supp. 21-5419. On August 7, 2019, the State filed an amended complaint, charging Green with two counts of premeditated murder. Then, on June 4, 2020, the State filed a second amended complaint, charging Green with two counts of felony first-degree murder, with kidnapping as the underlying felony.

Green requested that he be allowed to plead guilty to the charges set out in the second amended complaint. Both the State and Green agreed to request presumptive hard 25 life sentences. The agreement left open for argument whether the sentences would run consecutive or concurrent. The plea agreement was eventually accepted by the district court judge.

On October 15, 2020, Green filed a motion to continue the sentencing hearing so that his mother could appear in person to speak on his behalf. In a written response, the State objected to the motion, arguing that sentencing had already been postponed at Green's personal request so that he could remain longer in Geary County near his family, and at his counsel's request, based on an unusually heavy capital homicide caseload. The State expressed its openness to remote electronic appearance by Green's mother. The court formally denied the motion from the bench during the sentencing proceedings, and Green's mother addressed the court virtually via Zoom. The court then imposed consecutive hard 25 sentences.

Green raises two issues to this court, both challenging the validity of the sentencing proceeding.

Green first argues on appeal that the district court abused its discretion when it imposed consecutive hard 25 life sentences because its decision was based on an error of fact. He contends substantial competent evidence did not support the factual determination that he committed the crimes in the hope of receiving financial compensation.

Deciding whether to impose concurrent or consecutive sentences generally lies within the trial court's discretion. State v. Frecks , 294 Kan. 738, 741, 280 P.3d 217 (2012). A court abuses its discretion if its action:

"(1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based." State v. Ward , 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 [132 S.Ct. 1594, 182 L.Ed.2d 205] (2012).

At sentencing, in countering Green's expressions of remorse, the prosecutor told the court: "There was no concern that he had murdered this girl in exchange for a thousand dollars, that he knew she had two children whom he left orphaned." Immediately before it imposed the sentence, the district court judge explained why he was imposing consecutive sentences instead of concurrent ones:

"Mr. Green, you know, I can look—I—I can look you right in the eye and say any—anybody that—that thinks a human life is worth a thousand dollars, and is willing to take that for someone to shoot somebody in the head does not deserve compassion from the Court. That's the Court's feeling in this case. And I don't—I'll—I'll try to make this short and as painless as possible. But simply does not deserve it, hasn't earned it.

....

"... There is no worse thing that—that—murder for hire is heartless, for lack of a better word. And you say you have a heart. And I know you have—you have a drug problem, or you did. And probably always will be. You're an addict, and you always will be an addict. And if you were out of prison, I don't know that you wouldn't go back and start using again, and you will have the same I-don't-care attitude that you have told me here today that you had when this shooting occurred."

This was not a speculative, unsupported assertion.

During an initial interrogation, Green told police:

"Someone paid me, was going to pay me. Because they wanted her out of the way. I fucked up, man. All I care about was my girl. You know what I'm saying, we living paycheck-to-paycheck. You understand what I'm saying. That's why I did it. ... I wanted her Christmas to be good. That's all I cared about, I was supposed to get paid today.

"Q: How much were you supposed to get paid?

"A: A thousand dollars."

During a break in the interrogation, Green was permitted to make a telephone call to his wife. That call was recorded, and it showed Green told his wife the crime was financially motivated:

"I took the opportunity regardless of who it was, the worst mistake of my life. All I'm saying was the outcome. And that's why I stayed up all night hoping to get paid.

....

"[Y]ou would have had a good Christmas the way you wanted to do whatever you wanted to do, go out wherever you wanted to go or whatever the case may be. That was my whole thing and that was my whole logic and I didn't give a fuck what I had to do to make that happen for you."

At the hearing on the plea agreement, Green told the judge—who was also the sentencing judge—that he killed Schafer "because I was paid to do it." The prosecutor summarized the evidence that would be produced at trial, which included Green's statement to police on interrogation "that he did this because he was paid by somebody named Mashaun Baker, also known as Sleaze, to commit the murder in exchange of $1,000." Green did not object to or disagree with this factual basis for his guilty plea.

At the plea hearing, the judge stated he was taking judicial notice of Green's interviews and the transcripts of the preliminary hearing. He also took notice of that evidence at the sentencing hearing. These materials clearly supported the premise that the primary motivation for his crime was Green's hope to obtain financial compensation so that he could provide a "good Christmas" for his family.

Green asserts that the State did not believe its own contract-killing theory, in part because it dropped its original capital murder charges and in part because it did not pursue...