State v. Nunn

• Decision Date: 07 December 1990
• Docket Number: No. 64215,64215
• Citation: 802 P.2d 547,247 Kan. 576
• Parties: STATE of Kansas, Appellee, v. Donald NUNN, Appellant.
• Court: Kansas Supreme Court

Page 547

802 P.2d 547

247 Kan. 576

STATE of Kansas, Appellee, v. Donald NUNN, Appellant.

No. 64215.

Supreme Court of Kansas.

Dec. 7, 1990.

Syllabus by the Court

1. A sentence imposed will not be disturbed on appeal if it is within the limits prescribed by law and the realm of trial court discretion and not a result of partiality, prejudice, oppression, or corrupt motive.

2. The rule stated in syllabus p 1 also applies to sentences enhanced pursuant to the Habitual Criminal Act.

3. K.S.A. 21-4601 contemplates that the sentencing court shall give consideration not only to the "individual characteristics, circumstances, needs and potentialities" of the defendant but also "to the needs of public safety" and the protection of the general public.

4. The fact that the minimum sentence imposed by a trial court exceeds the life expectancy of the defendant does not, per se, constitute grounds for a finding that the sentence is oppressive or constitutes an abuse of discretion.

5. Rules applicable to appointment of counsel on new trial motions are stated and applied.

6. The determination of whether to appoint counsel and hold a hearing on post-trial motions not filed "within 10 days after the verdict or finding of guilty or within such further time as the court may fix during the 10-day period" (K.S.A. 22-3501) lies within the sound discretion of the trial court after considering all the circumstances of the particular case.

7. A new trial should not be granted on the grounds of newly discovered evidence unless the evidence is of such materiality as to be likely to produce a different result at a new trial. Further, the defendant bears the burden of proving the evidence could not with reasonable diligence have been produced at trial. Appellate review of an order denying a new trial is limited to whether the district court abused its discretion.

8. A defendant should be represented by counsel, or should be present in person if pro se, at post-conviction motions in which there is a hearing at which the State is represented by counsel.

Thomas Jacquinot, Asst. Public Defender, argued the cause, and Steven R. Zinn, Deputy Public Defender, was with him on the brief, for appellant.

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

HOLMES, Chief Justice:

Donald L. Nunn was convicted on March 27, 1987, of four counts of indecent liberties with a child (K.S.A. 21-3503[a] and [b] and three counts of aggravated criminal sodomy (K.S.A. 21-3506[a]. Those convictions were upheld in his first appeal (State v. Nunn, 244 Kan. 207, 768 P.2d 268 [1989], hereafter Nunn I; however, the case was remanded for correction of the sentence imposed upon one count of aggravated criminal sodomy. The defendant now appeals, contending error in the trial court's rulings in denying two post-appeal motions.

The facts are set forth in detail in Nunn I and will only be partially repeated.

"Donald L. Nunn and his wife Michelle were married on July 11, 1986, a few days after her eighteenth birthday. They had been living together since July 1984. Michelle's younger sister, C.P., often spent the night at the home of Michelle and the appellant. Young friends of C.P. and Michelle also frequently stayed the night there. The appellant supplied the girls with alcoholic beverages. C.P. and the other girls also took drugs while visiting there.

"C.P. and three of her friends, T.A., J.P., and D.E., are the complaining witnesses in this case. Each girl testified at trial to various incidents of sexual abuse committed upon her by the appellant in his home. The four girls ranged in age from 10 to 14 at the time of the alleged offenses. Each testified that she had been awakened during the night to find the defendant touching her vaginal area with his finger, his mouth, his tongue, or his penis.

"The State also presented two witnesses who, as children, had been the victims of indecent liberties perpetrated by the appellant in 1979....

"The complaint/information charged appellant with indecent liberties with a child in Counts I, III, IV, and VI, alleging sexual intercourse with C.P., T.A., D.E., and J.P. Counts II, V, and VII charged appellant with aggravated criminal sodomy involving C.P., D.E., and J.P.

....

"The appellant testified in his own behalf, denying each of the allegations and contending that the four alleged victims were lying. The defense presented other witnesses who lived at the Nunn residence at various times during the late spring and summer of 1986, each of whom testified that he or she had not seen or heard anything appearing to be acts of sexual molestation by the appellant.

"The jury returned a verdict of guilty on each of the seven counts." 244 Kan. at 209-10, 768 P.2d 268.

Michelle Nunn testified as a witness for the defendant, recanting previous statements she had made to police officers, and attempted to absolve the defendant of any wrongdoing. She testified that she had lied to the police when she implicated the defendant in the crimes charged and stated she did so because she was mad at him at the time and also because she was "messed up on drugs real bad."

Because of the prior convictions in 1979, the district court invoked the Habitual Criminal Act. The district court ordered concurrent sentences on the multiple counts regarding each child and then ran the sentences for each child consecutively with the sentences involving the other children. Thus, defendant was sentenced to a controlling term of 100 years to life.

On March 15, 1989, after our decision in his first appeal, defendant filed a motion to modify his sentence. On March 17, 1989, the trial court held a hearing and denied the motion to modify. The court also resentenced defendant on Count VII, complying with our mandate in Nunn I. In resentencing defendant, the trial court followed its earlier procedure. The result was a controlling sentence of 80 years to life. Defendant was represented at the hearing on the motion to modify the sentence and at the resentencing by an assistant public defender.

The first issue is whether the district court abused its discretion in failing to modify defendant's sentence. At the hearing, defense counsel sought a controlling sentence of 15 years to life, calculated by removing invocation of the Habitual Criminal Act and running all sentences concurrent. Counsel contended that modification was necessary to give Nunn, then 52 years old, hope of returning to society. On appeal, counsel admits that the sentence imposed is within the statutory limits; however, counsel claims that setting the minimum controlling term at 80 years is oppressive and constitutes an abuse of discretion. We have consistently held: "A sentence imposed will not be disturbed on appeal if it is within the limits prescribed by law and the realm of trial court discretion and not a result of partiality, prejudice, oppression, or corrupt motive." State v. Gibson, 246 Kan. 298, Syl. p 4, 787 P.2d 1176 (1990). The same rule applies to sentences enhanced pursuant to the Habitual Criminal Act. See State v. Trotter, 245 Kan. 657, Syl. p 8, 783 P.2d 1271 (1989).

Defendant contends that a minimum controlling sentence of 80 years is oppressive because it eliminates any possibility of parole before his death and provides no incentive for rehabilitation. This argument, however, ignores that nothing in our statutes or case law guarantees a criminal defendant the possibility of parole or indicates that the length of sentence alone will justify a finding of abuse when the sentence imposed is within the statutory limits.

The duty of a trial court in sentencing is expressed in K.S.A. 21-4601 and K.S.A. 21-4606. K.S.A. 21-4601 "contemplates that the sentencing court shall give consideration not only to the 'individual characteristics, circumstances, needs and potentialities' of an individual defendant, but also 'to the needs of public safety' and the protection of the general public." State ex rel. Stephan v. Clark, 243 Kan. 561, Syl. p 5, 759 P.2d 119 (1988). K.S.A. 21-4606 enumerates the factors the trial court is obligated to consider "in fixing the minimum term of imprisonment." State v. Buckner, 223 Kan. 138, 146, 574 P.2d 918 (1977).

The factors under K.S.A. 21-4606 encompass the following:

"(a) The defendant's history of prior criminal activity;

"(b) The extent of the harm caused by the defendant's criminal conduct;

"(c) Whether the defendant intended that his criminal conduct would cause or threaten serious harm;

"(d) The degree of the defendant's provocation;

"(e) Whether there were substantial grounds tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense;

"(f) Whether the victim of the defendant's criminal conduct induced or facilitated its commission;

"(g) Whether the defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained."

An application of the facts of this case to the factors set forth in K.S.A. 21-4606 reveals the factors were unfavorable to the defendant. Additionally, the record shows the trial court conscientiously considered and applied K.S.A. 21-4601 and K.S.A. 21- 4606 in reaching defendant's minimum sentence.

The trial judge stated:

"In imposing sentence I'm considering the following factors: That Mr. Nunn's criminal behavior caused serious psychological harm to the girls that were involved; that he had to contemplate that his criminal conduct would cause serious harm to them; that Mr. Nunn was not acting under any strong provocation; that there are not substantial grounds tending to excuse or justify Mr. Nunn's criminal conduct.

"I'll find that Mr. Nunn's criminal conduct was neither induced nor facilitated by someone other than himself but the contrary is shown by the evidence; that he facilitated the...