State v. Ralston

• Decision Date: 19 October 2012
• Docket Number: No. 106,539.,106,539.
• Citation: 286 P.3d 1160
• Parties: STATE of Kansas, Appellee, v. Craig M. RALSTON, Appellant.
• Court: Kansas Court of Appeals

286 P.3d 1160

STATE of Kansas, Appellee,

v.Craig M. RALSTON, Appellant.

No. 106,539.

Court of Appeals of Kansas.

Oct. 19, 2012.

Appeal from Wyandotte District Court; Thomas L. Boeding, Judge.

Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant.

Sheryl L. Lidtke, deputy district attorney, Jerome A. Gorman, district attorney, Derek Schmidt, attorney general, for appellee.

Before BUSER, P.J., MALONE and ARNOLD–BURGER, JJ.

MEMORANDUM OPINION

PER CURIAM.

Craig M. Ralston was convicted of two counts of aggravated indecent liberties with a child (K.S.A.21–3504[a][3][A] ), upon his pleas of no contest. He appeals his convictions and sentences. We affirm.

Factual and Procedural Background

On July 2, 2009, the State charged Ralston with one count of aggravated indecent liberties with a child and two counts of rape. The State alleged the crimes were committed against J.V. (who was under 14 years of age at the time) between January 1, 1999, and May 31, 2000. A preliminary hearing and other hearings were held prior to the disposition of the case.

On February 25, 2011, based on a plea agreement, Ralston pled no contest to two counts of aggravated indecent liberties with J.V. between January 1, 1999, and September 28, 2000. As part of the agreement, the parties agreed not to request any sentencing departures. Moreover, the State agreed “to stand silent on the issue of whether these two counts will run concurrently or consecutively with each other.” Both parties, however, agreed to reserve “all other rights at sentencing.” At the sentencing hearing, the district court heard the parties' recommendations and statements from J.V. and her family. The district court imposed a mitigated prison sentence of 55 months on each count and ordered the sentences to run consecutively.

Ralston appeals.

Sufficiency of the Factual Basis for the Pleas

Ralston argues that “he was convicted without jurisdiction” because the “factual basis ... stated by the State ... to support the no contest plea ... was outside the statute of limitations.” In particular, Ralston claims error because “[t]he State of Kansas made no statement at the time of the plea [that] the statute of limitations had not expired.”

Prior to Ralston's pleas, a preliminary hearing was held. At the conclusion of the presentation of evidence, Ralston's counsel raised the issue of the statute of limitations. The prosecutor responded that the limitation period was tolled because Ralston was “either out of the country or out of the State of Kansas.” The record on appeal indicates that Ralston was in the military and was stationed out of state during part of the dates in question. At the conclusion of the argument regarding the statute of limitations, the district court discounted Ralston's argument stating, “For the purposes today and what the court's seen today,” there was probable cause to believe that Ralston was guilty of the offenses charged. On appeal, Ralston acknowledges that he raised the statute of limitations issue during the preliminary hearing but he was bound over for trial.

Ralston then filed a pretrial motion to dismiss based on the statute of limitations. Memoranda of law were filed. On February 15, 2011, the district court denied the motion to dismiss. The district court's order is not in the record on appeal. On appeal, Ralston concedes that he filed the motion to dismiss based on the statute of limitations, which was denied by the district court after a hearing.

At the plea hearing, the State offered the following factual basis:

“Judge, the victim in the case is [J.V.] and her birth date is [xx/xx/'86]. She would testify that beginning in January of '99 and while she was 12 and 13 years of age that [Ralston], who was her brother-in-law married to her older sister, fondled her in a sexual manner on her private parts, that this occurred on numerous occasions at an apartment that he lived in that she visited often ... in ... Wyandotte County. She would also testify that there was more than just fondling and she testified at the prelim so this is known to [Ralston] that she was forced to have intercourse as well with him. And that's essentially what the State's evidence would be in this case in addition to other witnesses who heard [Ralston] confessing to molesting [J.V.].”

Both Ralston and his defense counsel agreed that the State could present this evidence which would result in Ralston being found guilty of the charges.

The district court found Ralston guilty of two counts of aggravated indecent liberties with a child “[b]ased upon the factual basis that's been provided here by [the prosecutor] and the fact that there was a preliminary hearing in this matter, the court's read the transcript of that preliminary hearing and the evidence that was presented at a pre-trial hearing in this matter.”

The State contends Ralston can neither raise this issue for the first time on appeal nor on direct appeal. Our review over subject matter jurisdiction is unlimited. See State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009), cert. denied130 S.Ct. 3410 (2010). Generally, subject matter jurisdiction can be raised at any time. State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010). But this court has only so much jurisdiction as the statutes provide. See State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008).

Under K.S.A. 22–3602(a):

“No appeal shall be taken by the defendant from a judgment of conviction before a district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60–1507 and amendments thereto.”

As a result, we are not persuaded that we have jurisdiction to address this issue on direct appeal. See State v. Hall, 292 Kan. 862, Syl. ¶ 1, 257 P.3d 263 (2011); State v. Thorpe, 36 Kan.App.2d 475, 477, 141 P.3d 521,rev. denied 282 Kan. 796 (2006).

Assuming we have jurisdiction, however, Ralston's issue on appeal is not meritorious. First, Ralston's pleas constitute a waiver of the statue of limitations defense: “The statute of limitations in a criminal case is an affirmative defense which can be waived by the knowing, voluntary, and intelligent acts of the defendant.” Lowe v. State, 14 Kan.App.2d 119, Syl. ¶ 1, 783 P.2d 1313 (1989).

Ralston does not allege that his pleas were unknowing, involuntary, or not intelligently given. He simply contends: “The State of Kansas made no statement at the time of the plea [that] the statute of limitations had not expired.” But there was no need for the State to reference Ralston's affirmative defense. Ralston's statute of limitations defense had previously been considered and rejected by the district court. Under the circumstances, the State was not required to mention the statute of limitations as part of the factual basis for the pleas because by his knowing and voluntary pleas of no contest, Ralston had waived this defense.

Second, we are persuaded the district court did not abuse its discretion in its determination that a factual basis for the plea was sufficiently established. K.S.A.2011 Supp. 22–3210(a)(4) requires that the trial court be satisfied that there is a factual basis for a plea. The statute leaves it to the district court's determination whether the evidence is sufficient to establish the elements of the crime. State v. Edgar, 281 Kan. 30, 44, 127 P.3d 986 (2006). We use an abuse of discretion standard in reviewing whether the district court properly found there was a factual basis for a plea. 281 Kan. at 44.

Our law is clear:

“A factual basis for a plea may be satisfied by a complaint or information given or read to the defendant which sets forth the factual details and essential elements of the particular crime charged; by the evidence presented to the trial court by the prosecutor; by a statement of facts made by the defendant at the hearing; or by evidence admitted at the preliminary hearing if the judge accepting the defendant's plea conducted the defendant's preliminary examination.” 281 Kan. 30, Syl. ¶ 10.

In the present case, the prosecutor's factual recitation coupled with the district court's review of the preliminary hearing proceedings and handling of the pretrial hearing on the motion to dismiss—which included evidence and argument pertaining to Ralston's statute of limitations defense—was sufficient to establish the factual basis for the pleas. We find no inadequacy in the district court's factual finding simply because the State made no statement at the time of the pleas that the statute of limitations had not expired. The fact that the crimes had occurred within the statute of limitations had previously been determined by the district court. That same district court later considered the factual basis for the pleas. The district court did not err.

Whether the Prosecutor Violated the Plea Agreement

For the first time on appeal, Ralston contends the State violated the plea agreement at sentencing. In particular, he alleges that although the prosecutor “made an agreement to remain ‘silent’ on whether the Defendant was sentenced to consecutive or concurrent counts ... The actions of the prosecutor were hardly ‘silent.’ “ As a result, he asks this court to vacate his sentences and that he be resentenced.

On April 8, 2011, Ralston appeared for sentencing. The parties agreed Ralston's criminal history score was I. The district court asked whether the parties had agreed on sentencing, and the prosecutor responded, “Just that the State would stand silent on the issue of whether the two counts run concurrent or consecutive to each other.”

Upon learning that some family members wished to address the district court, the court set out the order of the sentencing hearing—the prosecutor, then “the victim and her family,” defense counsel, and finally, Ralston himself.

The prosecutor addressed the district court as follows:

“Judge, we would ask that you...