State v. Hemby
| Decision Date | 17 April 1998 |
| Docket Number | No. 77384,77384 |
| Citation | 957 P.2d 428,264 Kan. 542 |
| Parties | STATE of Kansas, Appellee, v. Kenneth D. HEMBY, Jr., Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. It is the State's obligation to insure that an accused is provided a speedy trial, but delays which are the result of the application or fault of the accused are not counted in computing the statutory speedy trial period.
2. A defendant, by his or her conduct, may waive the statutory right to a speedy trial. Such conduct includes requesting the grant of a continuance.
3. A defense counsel's actions in requesting a continuance that is needed due to the fault of the defense counsel are attributable to the defendant in computing speedy trial violations.
4. The general rule that instructions should be confined to issues made by the pleadings and should not be broader or narrower than the information has been consistently adhered to in this jurisdiction. Instructions given in violation of the rule have never been condoned, although such instructions have been excused in cases where it was found that the substantial rights of the defendant were not prejudiced.
5. When pleading a crime that may be committed by several different methods in a single-count complaint or information, the State may charge the commission of the offense in any or all of the methods specified in the statute. When the information alleges one or more methods for a commission of a crime, the general rule is that the instructions should be confined to the charges contained in the information and should not be broader or narrower than the information. Instructions given in violation of the rule, however, are excused when substantial rights of the defendant have not been prejudiced.
6. In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to the guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.
7. It is the sentencing judge alone who determines the appropriate sentence or other disposition of the case. The sentencing judge determines the sentence by exercising his or her best judgment, common sense, and judicial discretion after considering the sentencing factors set forth in K.S.A. 21-4606(b), all the reports, the defendant's background, the facts of the case, and the public safety.
Hazel Haupt, Assistant Appellate Defender, argued the cause, and Randall L. Hodgkinson, Assistant Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, were on the brief, for appellant.
David Lowden, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief, for appellee.
This is a direct appeal by the defendant, Kenneth D. Hemby, Jr., from his convictions by a jury of one count of rape and one count of aggravated criminal sodomy. He received a controlling sentence of 15 years to life.
The defendant originally pled guilty to one count of rape and one count of aggravated criminal sodomy. For these convictions, he received a controlling sentence of 12 to 35 years. His convictions were set aside by the Kansas Count of Appeals in two unpublished opinions.
Eventually, the defendant was tried, convicted, and sentenced for the same crimes he originally pled guilty to. He appeals, contending he was denied a statutory speedy trial; that an erroneous instruction was given; that he received a longer sentence because he asserted his constitutional right to remain silent; and that K.S.A. 22-4909 of the Kansas Sex Offender Registration Act (KSORA) is unconstitutional as applied to him.
Under K.S.A. 22-3402(1), a defendant who is held in custody must be brought to trial within 90 days from the date a mandate ordering a new trial is received by the trial court, unless any delays in bringing the defendant to trial are the result or application of the defendant. The Sedgwick County District Court received and filed the Court of Appeals' mandate ordering a new trial on November 14, 1995. Since the defendant was being held in custody, the State had until February 12, 1996 (90 days from November 14, 1995) in which to bring him to trial pursuant to K.S.A. 22-3402(1). Trial was scheduled for February 5, 1996.
The trial court appointed trial counsel for the defendant on January 4, 1996, 51 days after receipt of the mandate ordering a new trial. On January 9, 1996, the trial court ordered the defendant returned to Wichita from the state prison in Hutchinson so that the defendant could stand trial for the crimes charged in Sedgwick County. The defendant was transported to Wichita on January 17, 1996. The defendant's appointed trial counsel met with him for the first time the next day, on January 18, 1996, 17 days before the trial was set to begin on February 5, 1996.
On February 2, 1996, 3 days before the trial was scheduled to begin, the defendant's appointed counsel filed a motion to continue the trial. He claimed that he had insufficient time to prepare for trial because of his late appointment to represent the defendant. Trial counsel asked that any continuance be charged to the State on the theory it was the State's fault that it did not appoint counsel to represent the defendant earlier. Charging this continuance to the State would have pushed the defendant past the 90-day trial deadline and would have left the trial court with two options: (1) dismiss the case for failure to prosecute within 90 days, or (2) provide the defendant with a personal recognizance bond so that he could be released pending trial. If the defendant had been released, the State would have had 120 days from receipt of the new trial mandate to bring the defendant to trial, as opposed to 90 days with the defendant incarcerated. The trial court did not select either one of these options. Instead, the trial court granted the motion for continuance, but charged the defendant with the delay. In rescheduling the trial, the trial court asked the defendant's counsel when he could be ready for trial. The defense counsel responded he could be ready by February 20, but he had a jury trial already scheduled for the February 20, so he requested that the trial take place on February 26.
On appeal, the defendant claims that the motion for continuance should have been charged to the State, not him, because the only reason his counsel needed a continuance was due to the State's own fault--its delayed appointment of counsel for him so his defense counsel did not have time to adequately prepare for trial. Once this continuance is charged to the State, the defendant argues, it becomes clear that he was held in custody for more than 90 days, from the date the trial court received the new trial mandate, without being brought to trial. As such, based on a violation of his right to a speedy trial, the defendant asks this court to discharge him from further liability on the crimes charged in this case.
The trial court, in charging the time to the defendant, stated:
....
"... I will not grant a request for continuance to the defendant and charge it to the State."
We agree. Pursuant to K.S.A. 22-3402(1), as a matter of law, delays in bringing a defendant to trial which result from the defendant's application or fault are not counted in computing the statutory speedy trial period. See State v. Green, 254 Kan. 669, 672, 867 P.2d 366 (1994) (); State v. Southard, 261 Kan. 744, 748, 933 P.2d 730 (1997) ( ); State v. Brown, 249 Kan. 698, 704, 823 P.2d 190 (1991) () (Quoting State v. Porter, Green & Smith, 228 Kan. 345, 353, 615 P.2d 146 [1980] ). Further, a defense counsel's actions in requesting a continuance, which is needed due to the fault of the defense counsel, are attributable to the defendant in computing speedy trial violations. Southard, 261 Kan. at 748, 933 P.2d 730; see State v. Bafford, 255 Kan. 888, 893-94, 879 P.2d 613 (1994) ().
Hutchinson is a short drive from Wichita. Further, when asking for the continuance, the defense counsel specifically indicated that a 2-week continuance would be okay, but that a 3-week continuance would be better due to another trial he had already scheduled in 2 weeks. Thus, had the defense counsel gone to Hutchinson when he was first appointed, instead of...
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State v. Brown
...only sufficiency of evidence to support premeditation and finding evidence sufficient to support premeditation); State v. Hemby, 264 Kan. 542, 551, 957 P.2d 428 (1998) (affirming aggravated criminal sodomy conviction after finding substantial evidence to support two alternative means of ora......
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State v. Brown
...State v. Booker, 197 Kan. 13, 15, 415 P.2d 411 (1966); see State v. Trautloff, 289 Kan. 793, 802, 217 P.3d 15 (2009); State v. Hemby, 264 Kan. 542, 548, 957 P.2d 428 (1998); State v. Turbeville, 235 Kan. 993, 997, 686 P.2d 138 (1984). Booker cites to 23A C.J.S., Criminal Law § 1311, p. 759 ......
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...as appropriate for consideration in criminal sentences in cases prior to the comprehensive sentencing guidelines. See State v. Hemby, 264 Kan. 542, 553, 957 P.2d 428 (1998).We also do not see how Swint's argument that his was merely a crime of opportunity weighs in his favor. The district c......
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