State v. Rhoads, 71205

• Decision Date: 07 April 1995
• Docket Number: No. 71205,71205
• Citation: 892 P.2d 918,20 Kan.App.2d 790
• Parties: STATE of Kansas, Appellee, v. Jeremy Lee RHOADS, Appellant.
• Court: Kansas Court of Appeals

Page 918

892 P.2d 918

20 Kan.App.2d 790

STATE of Kansas, Appellee, v. Jeremy Lee RHOADS, Appellant.

No. 71205.

Court of Appeals of Kansas.

April 7, 1995.

Syllabus by the Court

1. When a defendant's counsel waives the defendant's right to be present at an in-chambers conference and the defendant is therefore voluntarily absent as contemplated by K.S.A. 22-3405(1), and a trial court holds an in-chambers conference concerning questions from a jury that are clearly questions of law, the defendant's presence is not essential to a fair and just determination of those questions. It is not error for the trial court to answer the questions.

2. A trial court's failure to impose sentence on two misdemeanor counts when the defendant was convicted of two misdemeanor counts and one felony count makes the entire sentence ambiguous and therefore illegal.

3. K.S.A.1993 Supp. 21-4716(a) of the Kansas Sentencing Guidelines Act states that a sentencing judge shall impose the presumptive sentence provided by the sentencing guidelines unless the judge finds substantial and compelling reasons to impose a departure. The term "substantial" refers to something that is real, not imagined, something with substance and not ephemeral. The term "compelling" implies that a court is forced, by the facts of a case to leave the status quo, or go beyond what is ordinary.

4. In order to depart from a guidelines presumptive post-release supervision period, a trial court must find substantial and compelling reasons. Such a departure is subject to appeal.

5. Trial courts no longer have the option to impose an indeterminate sentence for crimes designated on the sentencing grids found in K.S.A.1993 Supp. 21-4704 and K.S.A.1993 Supp. 21-4705.

Tyler Garretson, Legal Intern, Max Rowinsky, Asst. Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Michelle V. Hostetler, Asst. Dist. Atty., Joan Hamilton, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before BRISCOE, C.J., ELLIOTT, J., and STEPHEN D. HILL, District Judge, Assigned.

STEPHEN D. HILL, District Judge, Assigned.

Jeremy L. Rhoads appeals his convictions and sentence for burglary of a motor vehicle, criminal damage to property, and theft.

While on routine patrol, Topeka Police Officer Lance Feyh entered the parking lot behind the Cedar Ridge apartment complex shortly after midnight on May 29, 1993. Feyh noticed a figure of a man crouched down next to a vehicle parked in the lot. The man started walking away from the parked car as the officer approached. Officer Feyh became suspicious when a bystander told him the man was running away.

Feyh, first on foot and then in his patrol car, tried to keep the running man in sight. The man ran across a nearby unpaved parking lot next to a church. The officer described the suspect as approximately 5'9"' to 5'11"' tall, with long blond hair, and wearing overall-type cutoff shorts with the straps hanging down off his shoulders and a white T-shirt. Feyh believed the man was carrying something. When the man ran around the corner of the church, Feyh lost sight of him and called for assistance. Officer Feyh returned to the car parked in the lot, a 1982 Camaro, and noticed that the passenger window had been broken.

Further investigation revealed that the car belonged to Richard Frederick, a resident of the complex. Frederick reported that a floor tom drum, a snare drum, a compact disc player installed in the car, and a compact disc and case had been taken from the car.

Officer William White and "canine officer" Dukes responded to Officer Feyh's call for assistance. Dukes is a police dog trained to trail a suspect by scent and discover both the suspect and any items dropped by the suspect along the trail. After consulting briefly with Officer Feyh, Officer White set Dukes onto the trail beginning at the Camaro in the parking lot. White gave the command to find the trail and Dukes led White across the unpaved parking lot and alongside the church. This was approximately the same path taken by the man Feyh saw running away.

While Dukes and Officer White were following the trail, Officer Feyh noticed a man at a distance who "briefly fit the description" of the man who had run away. Feyh drove to the man to talk with him. The man was approximately 5' 10"' tall with long blond hair, and he was wearing overall-type cutoff shorts. The overall straps were on his shoulders, and he was not wearing a shirt. Feyh felt certain that this was the man who had run from him earlier. The man identified himself as Jeremy Rhoads. He did not attempt to flee from Officer Feyh, and he answered all of the policeman's questions.

Meanwhile back on the trail, Officer White heard on his police radio that Feyh was questioning someone about the case. White continued on the trail with Dukes to see if the trail led to the man with Officer Feyh. Dukes continued on the trail to within about 30 yards of Rhoads and Officer Feyh and then stopped and looked up. To White, this meant that Dukes had found his suspect. While Feyh and Rhoads were still talking, Dukes and White returned to the unpaved parking lot to search for evidence. Officer White found a compact disc case that Frederick later identified as one taken from his car. No other items taken in the burglary were found.

Officer Feyh discovered fresh shoe prints in the sand next to the passenger side of the Camaro. Feyh testified that the footprints did not match any of the police officers' shoes. Feyh testified that Rhoads' Converse React tennis shoes, which he had seized as evidence, matched the prints found in the sand.

Officer Feyh testified that a scientific investigation unit officer had attempted to take a fingerprint off the Camaro, but that he did not know the results.

The State charged Rhoads with burglary of an automobile in violation of K.S.A.1992 Supp. 21-3715, theft in violation of K.S.A. 21-3701, and criminal damage to property contrary to K.S.A.1992 Supp. 21-3720. The jury trial in this case was on August 30-31, 1993. Rhoads was convicted of burglary of a motor vehicle, a class E felony at the time, and theft and criminal damage to property, both class A misdemeanors.

Rhoads raises three issues on appeal. First, did the trial court err when it held an in-chambers conference with counsel to address questions sent to the court by the jury during its deliberations? Second, is there sufficient evidence to sustain a conviction? And, third, did the trial court fail to follow the Kansas Sentencing Guidelines Act in passing sentence upon Rhoads?

After beginning deliberations on the second day of the trial, the jury sent three questions to the judge. The court consulted with counsel for both the State and Rhoads by using an in-chambers telephone conference. All three agreed upon the answers for the jury. Rhoads had left the courthouse at this time and was not present during the conference call. He now contends that his absence from the conference violated his right to be present at all stages of the proceedings against him as provided by K.S.A. 22-3405(1).

The law provides that Rhoads has a right to be present at all major stages of his trial. The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to be present. K.S.A. 22-3405(1) codifies that guarantee in Kansas. It states:

"The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law. In prosecutions for crimes not punishable by death, the defendant's voluntary absence after the trial has commenced in such person's presence shall not prevent continuing the trial to and including the return of the verdict."

The Kansas Supreme Court in State v. Mantz, 222 Kan. 453, 565 P.2d 612 (1977), ruled that a defendant need not be present at an in-chambers conference between the trial court and counsel where discussions about instructions occurred, if the trial court made no final decision about the instructions during the conference. The court also ruled that a defendant need not be present during "off the record discussions between court and counsel at the bench involving only matters of law where a defendant's presence is not essential to a fair and just determination of some substantial issue." 222 Kan. at 463-64, 565 P.2d 612.

Since Mantz, subsequent cases have held that a defendant must be present: (1) when the jury is in the courtroom or (2) where the defendant's presence is essential to a fair and just determination of a substantial issue. See State v. Knapp, 234 Kan. 170, 179-80, 671 P.2d 520 (1983); State v. Sanders, 227 Kan. 892, 893-94, 610 P.2d 633 (1980); State v. Sandstrom, 225 Kan. 717, 721, 595 P.2d 324, cert. denied 444 U.S. 942, 100 S.Ct. 296, 62 L.Ed.2d 308 (1979); State v. Antwine, 4 Kan.App.2d 389, 400-01, 607 P.2d 519 (1980). Furthermore, where an in-chambers conference involves only a question of law, the defendant's presence is not essential to a fair and just determination of a substantial issue. See Knapp, 234 Kan. at 180, 671 P.2d 520; State v. Marks, 231 Kan. 645, 651, 647 P.2d 1292 (1982); Sanders, 227 Kan. at 894, 610 P.2d 633; Mantz, 222 Kan. at 464, 565 P.2d 612; Antwine, 4 Kan.App.2d at 400-01, 607 P.2d 519.

The first question posed by the jury was, "What happens if jurors cannot come to a verdict?" The court responded, "The Court will declare a mistrial and the case will be tried to another jury." The second question asked, "In count 1, please clarify, 'knowing entry' "; and "Does alleged has [sic ] to be seen physically entering in order to convict?" The court answered, "You must find beyond a reasonable doubt that the defendant entered the vehicle and that he did so intentionally and not by accident or inadvertence. You are to decide this question from the evidence...