State v. Neer

• Decision Date: 13 July 1990
• Docket Number: No. 63752,63752
• Citation: 795 P.2d 362,247 Kan. 137
• Parties: STATE of Kansas, Appellee, v. Edward E. NEER, Appellant.
• Court: Kansas Supreme Court

Page 362

795 P.2d 362

247 Kan. 137

STATE of Kansas, Appellee, v. Edward E. NEER, Appellant.

No. 63752.

Supreme Court of Kansas.

July 13, 1990.

Syllabus by the Court

1. The right to appeal is entirely statutory and not a right vested in the United States or Kansas Constitutions. Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by applicable statutes.

2. Under Kansas law, where an appeal is taken from the sentence imposed and/or a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those issues that could have been presented, but were not presented, are deemed waived. Where a defendant's claim has not been raised at trial or on direct appeal, such a default prevents the defendant from raising the claim in a second appeal or a collateral proceeding.

3. A new constitutional rule of criminal procedure generally will not be applied retroactively to cases on collateral review. The new rule should be applied retroactively to collateral proceedings: (1) if it places certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe, or (2) if it requires the observance of those procedures that are implicit in the concept of ordered liberty. Such a new rule will not be applicable to those cases that have become final before the new rule was announced.

4. K.S.A. 1989 Supp. 21-4603(3) and K.S.A. 22-3608(1) require a defendant to appeal his original conviction within 130 days. If a defendant fails to raise an issue in the appeal of his original conviction, the defendant cannot raise that issue in a subsequent appeal of a judge's failure to modify the defendant's sentence.

Jessica R. Kunen, Chief Appellate Defender, argued the cause and was on the briefs, for appellant.

Thomas J. Robinson, Assistant Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.

LOCKETT, Justice:

Edward E. Neer appeals the district court's refusal to modify his sentence. In addition, Neer argues that there was insufficient evidence to sustain his conviction for aggravated criminal sodomy in case 86 CR 983 based on our holding in State v. Moppin, 245 Kan. 639, Syl. p 1, 783 P.2d 878 (1989), that oral-genital stimulation between the tongue of a male and the genital area of a female is not "sodomy" under K.S.A. 21-3501(2).

Neer was charged with one count of aggravated criminal sodomy (K.S.A. 21-3506) in case 86 CR 983 on June 20, 1986, and one count of aggravated criminal sodomy and one count of indecent liberties with a child (K.S.A. 21-3503) in case 86 CR 1462 on September 17, 1986. At the State's request the cases were consolidated for trial, and the defendant was convicted by a jury. The trial judge sentenced the defendant on January 6, 1987, to 15 years to life for each count of aggravated criminal sodomy and to 5 to 20 years for indecent liberties, with sentences in case 86 CR 1462 to run concurrent with each other but consecutive to the sentence in case 86 CR 983.

Neer appealed, claiming the district court abused its discretion by imposing the maximum sentences. We found the defendant's sentences were within the statutory guidelines and affirmed the trial court in an unpublished opinion, No. 60,418, filed October 30, 1987. 763 P.2d 15. Our mandate was filed on December 22, 1987.

The defendant then filed a motion to modify his sentence on February 22, 1988. On January 19, 1989, based upon the presentence investigation (PSI) and Kansas Reception and Diagnostic Center (KRDC) reports, the trial court found that the defendant, while only 24 years old, had the potential to be a "dangerous animal" if released and denied Neer's motion to modify his sentence. On April 27, 1989, the defendant appealed the trial court's denial of his motion to modify the sentences and for the first time raised the issue that oral-genital stimulation between the tongue of a male and the genital area of a female is not included in the definition of "sodomy" in K.S.A. 21-3501(2). He now alleges his conviction in case 86 CR 983 for aggravated criminal sodomy in violation of K.S.A. 21-3506 should be reversed because of insufficient evidence.

Neer first argues that the sentencing judge abused his discretion by denying the motion to modify his sentence. Specifically, he claims the court did not consider his lack of a prior felony record, the fact that this was his first conviction for a sexual offense, his progress in prison by attaining his GED, and his need of treatment for substance abuse.

A sentence imposed by the district court which is within the lawful limits will be overturned on appellate review only where there is abuse of discretion or the sentence was the result of partiality, prejudice, or corrupt motive. State v. Adams, 242 Kan. 20, 27, 744 P.2d 833 (1987); State v. Jennings, 240 Kan. 377, 380, 729 P.2d 454 (1986).

In the PSI report the court services officer recommended: "This officer does feel that the defendant does not show any remorse for the crimes that he has committed. This officer would recommend that maximum time be given."

The KRDC report included Neer's statement that his sentence is "fair" since the defendant acknowledged, "I've done a lot of burglaries and breaking and entering, and not been caught for those, I'm paying the price of those now." In addition the KRDC report stated Neer has little regard for the rights of others or society, his interpersonal relationships are dominated by exploitation and by demanding attention, he has little empathy or concern for others, he voices no remorse for the victims of these crimes, and he minimized his serious alcohol and substance abuse. The KRDC report stated "[the defendant] is seen as an aggressive and potentially very dangerous man who should clearly remain within the correctional system to serve an appropriate sentence." Neither the PSI nor the KRDC reports are favorable.

The sentencing court considered the PSI and the KRDC reports and stated its reasons for refusing to modify the sentence. The court adequately reviewed the reports and did not abuse its discretion in denying Neer's motion to modify his sentence.

Neer next argues that his conviction for aggravated criminal sodomy in case 86 CR 983 should be reversed because of insufficient evidence. K.S.A. 21-3506(b) provides that aggravated criminal sodomy is "causing a child under 16 years of age to engage in sodomy with any person or an animal." Sodomy is defined at K.S.A. 21-3501(2): " 'Sodomy' means oral or anal copulation; oral or anal copulation or sexual intercourse between a person and an animal; or any penetration of the anal opening by any body part or object. Any penetration, however slight, is sufficient to constitute sodomy."

In State v. Moppin, 245 Kan. 639, 783 P.2d 878 (1989), a father was convicted of aggravated criminal sodomy for performing cunnilingus on his daughter. At trial, three staff members from the Kansas Institute, the psychotherapist, and the foster mother testified that the child had repeatedly told them that her father had licked her between her legs. Moppin, 245 Kan. at 641, 783 P.2d 878. On appeal we held "that cunnilingus is not an act of 'sodomy' as the term is defined by statute, that defendant was improperly charged, and that there was insufficient evidence to establish oral copulation." Moppin, 245 Kan. at 644, 783 P.2d 878. Moppin's conviction for aggravated criminal sodomy was reversed. Neer argues since he was similarly charged and convicted, our decision in Moppin should be applied retroactively and his conviction for aggravated criminal sodomy should be set aside. In case 86 CR 983, Neer's conviction was based on the victim's testimony that he had performed cunnilingus on her on two occasions when she was twelve years old.

In Kansas, "piecemeal appeals are frowned upon." State v. Newman, 235 Kan. 29, 31, 680 P.2d 257 (1984). The State argues Neer's sufficiency of evidence issue is not properly before this court since he had failed to raise this issue at trial and in his original appeal. A point not raised before, or presented to, the trial court cannot be raised for the first time on appeal. See State v. Heck, 8 Kan.App.2d 496, 502, 661 P.2d 798 (1983).

For Neer to appeal his original conviction for aggravated criminal sodomy, he must do so within 120 days of the imposition of sentence plus the 10 additional days granted under K.S.A. 22-3608(1); thus, Neer had 130 days from the day he was sentenced to appeal the conviction. State v. Tripp, 237 Kan. 244, 246, 699 P.2d 33 (1985). Neer was sentenced January 6, 1987, and he filed his notice of appeal in this case on April 27, 1989. More than 130 days had expired between the sentencing and Neer's appeal.

Under Kansas law, where an appeal is taken from the sentence imposed and/or a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those issues that could have been presented, but were not presented, are deemed waived. Where a defendant's claim has not been raised at trial or on direct appeal, such a default prevents the defendant from raising the claim in a second appeal or a collateral proceeding.

Although Neer concedes that he failed to raise this issue at trial or in his original appeal, he claims that fundamental fairness requires this failure be overlooked, citing Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). We disagree with Neer's analysis and his conclusion that Lane is applicable.

In Lane, the petitioner, a black man, was convicted in an Illinois state court of attempted murder and other offenses by an all-white jury. During jury selection, the prosecutor used all 10 of his peremptory challenges to exclude blacks. Petitioner twice unsuccessfully moved for a...