State v. Rash, 114,372
| Decision Date | 07 April 2017 |
| Docket Number | No. 114,372,114,372 |
| Citation | 392 P.3d 569 (Table) |
| Parties | STATE of Kansas, Appellee, v. Rockey D. RASH, Appellant. |
| Court | Kansas Court of Appeals |
Rockey Dean Rash, appellant pro se.
Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before Pierron, P.J., Hill, J., and Walker, S.J.
Rockey D. Rash was charged with aggravated criminal sodomy, aggravated indecent liberties with a minor, and attempted aggravated criminal sodomy in an amended complaint file stamped on October 1, 2004. He pled no contest to the charges in the amended complaint on September 30, 2004, when the complaint was received by the district court. On appeal, Rash argues: (1) the court lacked subject matter jurisdiction because he was not charged with the amended complaint; (2) the court erred by denying his motions to set aside a void judgment; and (3) there was an ongoing due process violation of his right to a speedy trial. Rash's argument on the first two issues fail because the court had subject matter jurisdiction when the first complaint was filed, and the court maintained that jurisdiction when it received the copy of the amended complaint on September 30, 2004. His last argument also fails because the plea to the charges was entered well within the time period for speedy trial. The district court is affirmed.
Rash was charged with one count of aggravated indecent liberties with a child, a level 3 person felony, on September 13, 2004. On September 30, 2004, an amended complaint was subscribed and sworn charging Rash with one count of aggravated sodomy, a level 2 person felony; one count of aggravated indecent liberties with a child, a level 3 person felony; and one count of attempted aggravated sodomy, a level 4 person felony. This amended complaint was file stamped on October 1, 2004.
Rash completed a defendant's acknowledgement of rights and entry of plea on September 27, 2004. In this form, he acknowledged the charges that were in the original complaint and in the amended complaint. He waived his right to a preliminary hearing and stated he would enter a no contest plea to Count I aggravated criminal sodomy, Count II aggravated indecent liberties with a minor, and Count III attempted aggravated criminal sodomy. In return, the prosecution agreed not to file a motion for a dispositional or durational departure. He acknowledged the sentences that could be imposed. He waived his right to a jury trial and recognized the rights a jury trial would entail. Rash signed the form in the presence of counsel and agreed that he had read the entire document.
On September 30, 2004, the district court held a plea hearing in this matter. The court inquired of Rash and was satisfied he was aware of his rights. The court also found that the plea was voluntarily made on the advice of counsel "with full knowledge of the consequences and that there is a factual basis for the said plea." The court accepted the plea.
Rash was sentenced on November 4, 2004. He was sentenced to 123 months for the aggravated sodomy charge, which was to run consecutive to the 61 months imposed for the aggravated indecent liberties charge and consecutive to the 43 months on the attempted aggravated sodomy charge. He was further sentenced to 60 months of postrelease supervision.
Rash filed a motion to withdraw his plea on September 7, 2007. In his motion, he argued the district court failed to inquire into a conflict between Rash and his attorney, the court failed to provide substitute counsel which violated his Sixth Amendment right to effective assistance of counsel, and his plea was not knowingly or voluntarily made. On August 7, 2008, the court held a hearing on the motion. The district court denied the motion on August 11, 2008. The court found that it had inquired of Rash about his understanding of the charges and the consequences of his plea. The court also asked Rash about his relationship with his attorney, and Rash indicated he had gone over the plea with his attorney. Further, Rash stated he had enough time to go over the case with his attorney, and he acknowledged he was satisfied with his representation.
Rash filed a motion to set aside a void judgment on October 1, 2014. In his motion, Rash alleged the district court lacked subject matter jurisdiction. He also claimed the court entered a judgment of guilty against him to charges that had not been filed at the time of the plea, which made it a void judgment. Further, he stated he was not aware of an amended complaint and was not given notice. The motion was heard on January 16, 2015. The court denied the motion at the hearing.
On January 29, 2015, Rash filed a motion to alter or amend judgment and an objection under Kansas Supreme Court Rule 165(a) (2017 Kan. S. Ct. R. 214). In his motion to alter or amend, Rash argued the ruling on his motion to set aside a void judgment was erroneous. On February 10, 2015, the district court denied Rash's motion to alter or amend, and stated Rash did not present any evidence that would demonstrate the ruling on his motion to set aside a void judgment was a manifest injustice. In his objection to Kansas Supreme Court Rule 165(a), Rash argued the district court did not make sufficient findings of fact and conclusions of law on the record at the hearing on the motion to set aside a void judgement. The district court denied Rash's objection on February 10, 2015, and stated it had complied with Kansas Supreme Court Rule 165(a).
Rash timely appealed to this court on February 20, 2015. On appeal, Rash argues: (1) the district court lacked subject matter jurisdiction because he was not charged with the amended complaint; (2) the court erred by denying his motions to set aside a void judgment; and (3) there was an ongoing due process violation of his right to a speedy trial.
Prior to 2016 in the Kansas Supreme Court's decision in State v. Dunn , 304 Kan. 773, 375 P.3d 332 (2016), the question of whether a criminal complaint was defective raised a question of subject matter jurisdiction; whether a charging document conferred subject matter jurisdiction is a question of law over which an appellate court has unlimited review. State v. Rivera , 48 Kan. App. 2d 417, 451, 291 P.3d 512 (2012). However, the appellate courts reviewed the adequacy of the charging document using different standards based upon whether the issue was raised before the trial court or for the first time on appeal. Cf. State v. Hurd , 298 Kan. 555, 565, 316 P.3d 696 (2013) (); State v. Portillo , 294 Kan. 242, 254–55, 274 P.3d 640 (2012) ()
In Dunn , the Supreme Court reversed precedent and found that deficiencies in an indictment, complaint, or information did not remove subject matter jurisdiction over criminal cases in the district or appellate courts. 304 Kan. at 810–811. Instead, subject matter jurisdiction is created in the courts by the Kansas Constitution. 304 Kan. at 811.
Defects in charging documents are subject to the general rule that issues may not be raised for the first time on appeal unless an exception applies. 304 Kan. at 818. Thus, the defendant must establish that the (1) newly asserted claim involves only a question of law arising on proven or admitted facts, which is determinative of the case; or (2) consideration of the claim is necessary to serve the ends of justice or prevent the denial of fundamental rights.
There are three types of charging-document defects recognized in State v. Dunn , 304 Kan. 773, 819, 375 P.3d 332 (2016). None of these defects prevents or destroys the existence of subject matter jurisdiction over criminal cases in district or appellate courts. 304 Kan. at 818–19. Because each of the defects involve the interpretation of statutes, constitutional provisions, and/or written instruments, the standard of review for such challenges raised on appeal is de novo. 304 Kan. at 819.
The first charging document defect recognized in Dunn is when the document does not show that the Kansas Constitution's requirement of the charging being filed in the correct court and territory has been satisfied. The second is that the charging document does not allege facts that, if proven beyond a reasonable doubt, show the commission of a Kansas crime as required by state statutes. The third is that the charging document does not meet the constitutional standards of providing the defendant due process and adequate notice of the charges. The first defect creates a state constitutional error, the second a state statutory error, and the third a violation of federal and state constitutional rights. 304 Kan. at 815.
After recognizing the three types of charging errors, the Dunn court provided some "general observations" about remedies for these errors, noting it could not "foresee every situation that may arise in a future case." 304 Kan. at 816. Because of state statutes permitting the amendment of charging documents, defects of the first type—failure to allege territorial concerns—is most likely to be amenable to remedy or cure by amendment before the verdict under K.S.A. 22-3201(e) since it would not charge a new crime or impair a defendant's substantial rights. 304 Kan. at 816. Errors of the second type—failing to allege facts that describe a Kansas crime—both impairs the invocation of jurisdiction and risks constitutional due process and notice issues, and requires earlier correction unless the issue is not preserved for review. 304 Kan. at 816. The third type of error—involving constitutional due process and notice issues—likewise should be remedied...
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Rash v. Kansas
...The district court denied that motion. The Kansas Court of Appeals affirmed the district court. State v. Rash, 392 P.3d 569 (Table), 2017 WL 1296066 (Kan. Ct. App. Apr. 7, 2017), rev. denied, Apr. 30, 2018. Petitioner filed the present case on April 4, 2019.Discussion This matter is governe......