State v. Loggins

• Decision Date: 17 October 2008
• Docket Number: No. 98,796.,No. 98,797.,98,796.,98,797.
• Citation: 194 P.3d 31
• Parties: STATE of Kansas, Appellee, v. Eric Paul LOGGINS, Appellant.
• Court: Kansas Court of Appeals

194 P.3d 31

STATE of Kansas, Appellee, v.Eric Paul LOGGINS, Appellant.

No. 98,796.

No. 98,797.

Court of Appeals of Kansas.

October 17, 2008.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.

Robert D. Hecht, district attorney, Jamie L. Karasek, assistant district attorney, and Stephen N. Six, attorney general, for appellee.

Before MALONE, P.J., ELLIOTT and MARQUARDT, JJ.

MALONE, P.J.

Eric Paul Loggins appeals his sentences following his convictions of felony theft in two separate cases.Loggins claims the district court erred in calculating his criminal history score for the purpose of determining his sentences.He also claims the district court erred by ordering him to pay the Board of Indigents' Defense Services (BIDS) application fee in each case.Finally, Loggins claims that the imposition of a BIDS application fee under K.S.A. 22-4529 is unconstitutional.

Loggins was charged in separate cases with one count of felony theft of property having a value of at least $1,000 but less than $25,000, and one count of felony theft based on two prior theft convictions.At the first appearance in each case, the district court considered financial information submitted by Loggins, found him to be indigent, and appointed counsel to represent him.The district court assessed a $100 BIDS application fee in each case, as noted in each order appointing counsel.The district court also made payment of the BIDS application fee a condition of Loggins' appearance bond in each case.

On January 4, 2007, Loggins pled no contest as charged in each case.Under the plea agreement, the State agreed not to object to probation if Loggins' presentence investigation (PSI) report revealed a criminal history score of category C or lower.The PSI report classified Loggins' criminal history as category B. Loggins filed a general written objection to the report prior to sentencing.

At his sentencing hearing on April 26, 2007, Loggins challenged five specific convictions included in the PSI report.Loggins denied that he was the person convicted of one count of simple robbery and two counts of violating a no contact order in Ramsey County, Minnesota, and denied that he was the person convicted of battery and obstruction of legal process in Shawnee County, Kansas.The State offered a certified journal entry as evidence of Loggins' prior Shawnee County convictions.The State also offered authenticated copies of computer printouts of court records from the district court of Ramsey County, Minnesota, as evidence of Loggins' Minnesota convictions.

After considering the evidence, the district court found that the State sufficiently proved Loggins' criminal history to be category B and sentenced him to a 14 months' incarceration in each case, to be served concurrently.The district court waived the assessment of attorney fees to reimburse BIDS for Loggins' court-appointed counsel but ordered Loggins to pay the $100 BIDS application fee in each case.Loggins timely appeals.

Determination of criminal history

Loggins first claims the district court erred in finding that the State met its burden to prove the prior Minnesota convictions.Although Loggins also objected in district court to two prior convictions in Shawnee County, Kansas, Loggins does not challenge the existence of those convictions on appeal.An issue not briefed by an appellant is deemed waived or abandoned.State v. Walker,283 Kan. 587, 594, 153 P.3d 1257(2007).

The State has the burden to prove a defendant's criminal history by a preponderance of the evidence for the purpose of sentencing the defendant.K.S.A. 21-4715(a).This burden is satisfied by the summary of the defendant's convictions set forth in the PSI report unless the defendant objects to the report.K.S.A. 21-4715(b).In the case of an objection, K.S.A. 21-4715(c) provides:

"Upon receipt of the criminal history worksheet prepared for the court, the offender shall immediately notify the district attorney and the court with written notice of any error in the proposed criminal history worksheet.Such notice shall specify the exact nature of the alleged error.The state shall have the burden of producing further evidence to satisfy its burden of proof regarding any disputed part, or parts, of the criminal history and the sentencing judge shall allow the state reasonable time to produce such evidence to establish the disputed portion of the criminal history by a preponderance of the evidence."

On appeal, the State contends that Loggins failed to properly raise his objection to the PSI report and, therefore, the State had no burden of producing further evidence of Loggins' criminal history at the sentencing hearing.Loggins' written objection to the PSI report was general and failed to identify the specific convictions that Loggins was challenging.K.S.A. 21-4715(c) requires the defendant to specify the exact nature of any alleged error in a PSI report.The State is correct that a general objection to the PSI report is usually insufficient to require the State to produce further evidence of the defendant's criminal history.State v. Sykes,35 Kan.App.2d 517, 538, 132 P.3d 485, rev. denied282 Kan. 795(2006).

However, the State is raising this argument for the first time on appeal.Generally, issues not raised before the district court cannot be raised on appeal.State v. Shopteese,283 Kan. 331, 339, 153 P.3d 1208(2007).Loggins followed his general written objection to the PSI report with specific objections at the sentencing hearing.The State produced further evidence of Loggins' criminal history without raising any procedural objections.Accordingly, we will address the merits of Loggins' claim that the State failed to meet its burden to prove the prior Minnesota convictions.

Whether the State has met its burden to prove a prior conviction by a preponderance of the evidence is a question of fact, and an appellate court's review is limited to determining whether substantial competent evidence supports the district court's finding.State v. Hankins,19 Kan.App.2d 1036, 1049, 880 P.2d 271(1994).Substantial evidence is evidence possessing both relevance and substance and which provides a substantial basis of fact from which the issues can reasonably be determined.Specifically, substantial evidence refers to legal and relevant evidence that a reasonable person would accept as being adequate to support a conclusion.Walker,283 Kan. at 594-95, 153 P.3d 1257.

Loggins does not contest the authenticity or admissibility of the documents obtained from the Minnesota court, which were offered by the State to prove his convictions.Instead, Loggins argues that the documents were deficient because they were not journal entries and because the information contained in the documents was insufficient to prove either that the convictions existed or that Loggins was the person convicted.

A certified journal entry is the best evidence of a prior conviction.State v. Presha,27 Kan.App.2d 645, 646-47, 8 P.3d 14, rev. denied269 Kan. 939(2000).However, a journal entry is not the only permissible form of evidence to prove a defendant's criminal history.27 Kan.App.2d at 647-48, 8 P.3d 14.In State v. White,23 Kan.App.2d 363, 372, 931 P.2d 1250, rev. denied261 Kan. 1089(1997), this court upheld a criminal history finding based on authenticated letters from the California Youth Authority that included information identical to that revealed in the PSI report.In State v. Connell, No. 97,361, 2008 WL 850142, unpublished opinion filed March 28, 2008, rev. denied286 Kan. ___(2008), documents characterized as docket notes that accompanied a journal entry of probation violation were held sufficient to support a finding of a prior conviction.In State v. Arnold, No. 91,962, 2005 WL 400414, unpublished opinion filed February 18, 2005, rev. denied279 Kan. 1008(2005), a criminal felony information, along with an order placing the defendant on probation and a copy of the criminal docket, were deemed sufficient to support a finding of the defendant's criminal history.

Here, the State offered Exhibits 1 through 4 at the sentencing hearing in order to prove Loggins' Minnesota convictions.The exhibits included authenticated printouts of computer screens from the district court of Ramsey County, Minnesota, including criminal case summaries, activity summaries, traffic displays, and a status history report.Loggins' conviction of simple robbery is shown in State's Exhibit 1.This exhibit includes a criminal case summary and an activity summary in case 62-K0-02-004134.The criminal case summary contains Loggins' identifying information, including his name, alias, date of birth, sex, race, and ethnicity.This page also contains information relating to the disputed conviction, including the crime charged, statute violated, date of offense, plea, verdict, and type and name of defense counsel.The document specifies that Loggins pled guilty and was convicted of simple robbery committed on November 7, 2002.The activity summary contains information relating to all activity in the case and includes the name of the presiding judge, date of sentencing, and Loggins' sentence.

The information in State's Exhibit 1 is sufficient to show by a preponderance of the evidence that Loggins was convicted of simple robbery in Ramsey County, Minnesota.It is an authenticated court record, as required by K.S.A. 60-465.While it is not a journal entry, it contains much of the same information required of a journal entry under K.S.A. 22-3426.Furthermore, the case number listed in the documentation from Minnesota is corroborated in the PSI report.

Loggins' two convictions of violating a no contact order are shown in State's Exhibits 2 and 3.These exhibits include traffic display printouts accompanied by activity summaries.Both documents contain Loggins' identifying information, including his name, date of birth, race, and...