State v. Lohf
| Decision Date | 30 August 2013 |
| Docket Number | 107,239.,Nos. 107,238,s. 107,238 |
| Citation | 308 P.3d 30 |
| Parties | STATE of Kansas, Appellee, v. Timothy LOHF, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Reno District Court; Timothy J. Chambers, Judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.
Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., SCHROEDER, J., and Knudson, S.J.
This is a consolidated appeal by Timothy Lohf who was convicted in two separate Reno County criminal cases. In Case No. 10–CR–490, Lohf appeals the district court's denial of his motion to withdraw no contest pleas to three counts of aggravated assault (K.S.A.21–3410). In Case No. 10–CR–803, a jury convicted Lohf of aggravated battery (K.S.A.21–3414[a][1][A] ), possession of cocaine with intent to sell (K.S.A.2010 Supp. 21–36a05[a] [1] ), and obstruction of official duty (K.S.A.21–3808). In this case, Lohf appeals the trial court's denial of his motion to suppress evidence, three claimed instructional errors, and the imposition of allegedly unconstitutional sentences. Having carefully considered the record on appeal, the parties' briefs, and their oral arguments, we affirm the district court's rulings.
On September 7, 2010, Lohf pled no contest to three counts of aggravated assault in Reno County Case No. 10–CR–490. In exchange for Lohf's pleas, the State agreed to dismiss the remaining charge of aggravated battery and to recommend concurrent sentences. After verifying that Lohf was satisfied with the services of his attorney, Sarah McKinnon, and that he knowingly and voluntarily entered his pleas, the district court found Lohf guilty as charged. Lohf was released on an appearance bond pending sentencing.
Two weeks later, on September 20, 2010, Lohf was involved in a shooting that occurred in Hutchinson, Kansas. At the scene, police officers discovered bullet fragments inside a tire of an SUV, and they recovered three spent 9–mm shell casings from the roadway. One bullet struck Anthony Wilson (Anthony) on the left side of his torso and exited a short distance behind the entry wound.
At the later trial, Monique McCoy (Anthony's sister), Mary Ledesma (girlfriend of Anthony's uncle), Floyd Logan (Floyd), and Thialin Logan (Anthony's cousin), testified that on September 20, 2010, Thialin, McCoy, and Anthony's brother, Austin Wilson (Austin), were helping Floyd and Ledesma move into a new residence. During the move, McCoy, Ledesma, Thialin, and McCoy's young daughter entered an SUV to leave when a vehicle approached and a commotion ensued. Thialin explained that Anthony, Austin, and Floyd were outside when the vehicle arrived. Thialin heard somebody “asking for somebody” and words “came from the street and ... from the other side of [the SUV].” Shortly thereafter, McCoy, Ledesma, and Thialin heard gunshots, and one of the bullets struck the tire of their SUV.
Floyd testified that he saw a black, early 90's model Buick LeSabre, driven by a young white male (later identified as Lohf) pull up in front of his residence. According to Floyd, his nephews spoke with the driver but he could not hear the conversation. Shortly thereafter, the driver started to drive away, pointed a gun over his left shoulder, and started “[r]andomly shooting” towards the rear of the vehicle.
Austin testified that he, Anthony, and Floyd were standing outside the SUV saying goodbye to McCoy, Ledesma, Thialin, and McCoy's daughter, when a black vehicle pulled up. The driver asked for Floyd by his alias, “Junior,” even though Floyd was standing right next to them. Confused, Anthony and Austin asked, “Who is looking for Junior?” The driver continued to demand information regarding Floyd's whereabouts, causing Anthony and Austin to exchange “heated words” with him. While engaged in this quarrel, Anthony and Austin began walking towards the vehicle. When they were about 4 feet from it, the driver drove forward, pointed a handgun out of the driver's side window, and fired four rounds at them.
Anthony testified that as he was standing near the SUV, a black vehicle pulled up and the driver asked for “Floyd or Junior.” The driver identified himself as “Tim.” Anthony asked Tim why he wanted Floyd, and the driver replied in an aggressive manner, “I got something for him.” Anthony then stated, “[W]ell, if you got something for him let me have it.” Tim answered, “[W]hen you see Junior tell him I've got something for him,” and he began to drive away. Anthony testified that neither he nor Austin approached the vehicle's window or reached inside. As Tim drove away, Anthony threw a beer bottle at the car, whereupon the driver started firing in Anthony's direction.
The initial shot struck Anthony on his left side. Treatment of the wound required a hospital stay of almost 1 day. Anthony was left with a permanent scar and “no feeling” in the area of the scar.
Shortly after the shooting, a police dispatch was issued to be on the lookout for a black, four-door Buick LeSabre. Five minutes later, Officer Jake Graber, of the Hutchinson Police Department, observed a “black colored four-door Buick [Park Avenue] passenger car” a short distance from the crime scene. Officer Graber recognized the car because it was typically operated by Lohf and his girlfriend, Randi Kimball. Officer Graber activated his emergency lights as the Buick was parking in an apartment complex. The officer knew that Lohf and Kimball both resided at this location.
Lohf exited the vehicle, and Officer Graber then ordered him “at least two to three times to get back in the vehicle” so he could investigate whether Lohf was the suspect involved in the shooting. Lohf ignored the officer's directives and fled from the scene.
Shortly thereafter, an officer brought Floyd to the apartment complex. After Floyd identified the Buick Park Avenue Lohf was driving as the vehicle involved in the shooting, a search warrant was obtained. Officers also obtained a search warrant for Lohf's apartment.
While searching the apartment, officers found a gun box containing a receipt for a Hi–Point 9 mm handgun and a box of ammunition with eight rounds missing. In the Buick, which was registered to Kimball, officers found a folding knife, a loaded Hi–Point 9 mm handgun with one round of ammunition in the chamber and three rounds in the magazine, and a vial containing individually wrapped pieces of cocaine. A forensic examination by the KBI revealed that the shell casings found at the crime scene were fired from the handgun recovered from the Buick.
A few days later, Lohf was arrested. The State charged Lohf, in Reno County Case No. 10–CR–803, with attempted murder in the first degree, aggravated battery, possession of cocaine with intent to sell, criminal discharge of a firearm, criminal possession of a firearm, and felony obstruction.
One month later, prior to sentencing in the earlier case 10–CR–490, Lohf filed a motion to withdraw his no contest pleas, under K.S.A.2010 Supp. 22–3210(d)(1). Lohf argued that good cause existed because a witness who was previously unwilling to come forward and exonerate him had recently agreed to testify. But due to McKinnon's ineffective assistance, “he did not fully understand the subpoena process and that said witness could have been subpoenaed ... to provide said testimony.”
After appointing Lohf new counsel, the district court held an evidentiary hearing on his motion to withdraw pleas. The district court denied Lohf's motion. It found that McKinnon's legal services were not ineffective, that Lohf was fully advised of his rights at the plea hearing, and Lohf's demeanor at that hearing supported the conclusion that he was “freely, voluntarily, and intelligently” waiving his rights. Immediately thereafter, the district court sentenced Lohf to 24 months' probation with an underlying prison term of 13 months.
On June 28, 2011, Case No. 10–CR–803 proceeded to trial. At the trial, Lohf testified that on September 20, 2010, he drove to Floyd's house, who Lohf knew as “Junior,” to purchase drugs. Lohf acknowledged that he had sold drugs in the past, and on this particular evening, he possessed and intended to sell the cocaine found in his vehicle. Lohf, however, did not have “outright” the drugs his customer wished to purchase; thus, because Junior had supplied him drugs in the past, Lohf decided to drive by Junior's residence to see if he could obtain the drugs.
According to Lohf, when he arrived at Junior's residence, he stopped his vehicle, stuck his head out the window, and called Junior's name. Even though Junior was standing outside looking at Lohf, Anthony approached Lohf's vehicle and asked who he was and what he wanted. Lohf told Anthony that his name was “Tim” and he wanted to speak with Junior because he “had something for him.” Anthony and Austin walked up to Lohf's car window and said, “[W]hat you got?” Lohf had about $300 in his hand, so he “kind of flashed the money to them to indicate, you know, I'm here, you know, to buy drugs.” According to Lohf, however, he did not specifically tell Anthony and Austin that he wanted to buy drugs. Lohf described his exchange with the two men as “normal,” although he indicated that “[t]here was [some] attitude” involved.
After Lohf showed them the money, Anthony told Lohf to give it to him. When Lohf refused, Austin grabbed Lohf's arm and attempted to take the money from his hand. Lohf testified that he dropped the money, causing it to fall on the vehicle's floorboard. Austin then began pulling on Lohf's left arm “like he was trying to drag [him] out of the car window.”
Lohf testified that he was carrying a firearm due to the danger involved in selling drugs. Because he was panicked, outnumbered, and scared that Austin would harm him, Lohf grabbed his gun, held it at a downward angle between Anthony and...
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