State v. Scales
| Decision Date | 07 March 1997 |
| Docket Number | No. 74361,74361 |
| Citation | 933 P.2d 737,261 Kan. 734 |
| Parties | STATE of Kansas, Appellee, v. Johnnie P. SCALES, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Whenever a defendant is sentenced to a presumptive sentence and there is no claim of error in regard to crime severity level or criminal history, there is a strong legislative presumption that the sentence is not the result of partiality, prejudice, oppression, or corrupt motive.
2. The burden is upon the party claiming error to show the sentence was the result of partiality, prejudice, oppression, or corrupt motive. A defendant who asserts that the court abused its discretion in sentencing bears the burden to show such abuse.
3. Allegations of judicial misconduct must be decided on the particular facts and circumstances of each case. Reversal is required only when the appellant has shown the conduct prejudiced his or her substantial rights.
4. The Code of Judicial Conduct proscribes most ex parte communications with a judge concerning a pending or impending proceeding. Supreme Court Rule 601, Canon 3A(4) (1996 Kan.Ct.R.Annot. 412) provides that a judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, should neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.
5. Ex parte communications with a judge deprive the absent party of the right to respond and be heard. They tend to suggest bias or partiality on the part of the court. Ex parte conversations or correspondence can be misleading; the information given to the court may be incomplete or inaccurate, and the problem can be incorrectly stated. Participation in ex parte communications may expose the court to one-sided arguments which carries the attendant risk of an erroneous ruling on the law or facts.
6. The determination of whether ex parte communications of the trial judge require reversal must be determined on a case-by-case basis in accord with the standard of review set forth above. When, as here, the court violates the express provisions of the Code of Judicial Conduct with the result of directly impinging upon the defendant's due process rights to a fair sentencing hearing, we need not test for prejudice but reverse on the basis of a denial of a fair sentencing hearing.
Thomas W. Bartee, Special Appellate Defender, argued the cause, and Mary D. Prewitt, Special Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, were with him on the briefs, for appellant.
Timothy J. Chambers, County Attorney, and Carla J. Stovall, Attorney General, were on the brief, for appellee.
This case arises from the January 29, 1995, homicide of Kevin Covington in Reno County. The question we must decide on grant of review is whether the defendant was denied a fair sentencing hearing because of the court's ex parte meeting with the family of the homicide victim and because of the court's ex parte consideration of a petition requesting the imposition of a harsh punishment. We conclude that the defendant was denied a fair sentencing hearing; therefore, we vacate the sentences and remand for sentencing before a different judge.
The defendant pled guilty to voluntary manslaughter, K.S.A. 21-3403, and criminal possession of a firearm, K.S.A. 21-4204. Because of the defendant's plea, the record contains very little concerning the incident giving rise to the charges. The record does indicate that the victim was a popular young athlete from a town in Florida. People in that town were shaken by the victim's death and attempted to make their views known to the sentencing court. Moreover, the family of the victim was critical of the prosecutor's office for entering into what it considered to be a lenient plea agreement with the defendant.
At his sentencing hearing, the court heard argument from both sides as well as testimony from the victim's mother and uncle. The victim's mother spoke of her loss, her impression of the intentional nature of the killing, and that her son "didn't have a chance to plea bargain." The victim's uncle complained of the State's plea agreement, requested vacation of the plea, and suggested that the State's use of the plea bargain was racially motivated. After hearing all arguments, the court imposed a sentence of 77 months for manslaughter and 9 months for criminal possession of a weapon, with sentences to run consecutively. These sentences were the maximum presumptive sentences available for the defendant's convictions under the sentencing guidelines. The court advanced two reasons for exercising its discretion to impose the maximum sentence possible without departing: The defendant had been previously convicted of a felony, criminal possession of a firearm, K.S.A. 21-4204, and the killing was intentional.
The subject of this appeal involves two ex parte communications with the trial court. The first occurred the day before the defendant's scheduled sentencing hearing. At the sentencing hearing, the court stated that the previous day, it had met privately with members of the victim's family, including the victim's mother and uncle, who testified at the sentencing hearing. The court explained:
The defendant objected to this ex parte communication. The record does not reflect when the defendant was apprised of this meeting; however, the record shows he brought his concerns to the judge an hour and a half prior to the sentencing hearing.
The second communication, a petition signed by approximately 2,000 persons from the victim's hometown in Florida, also occurred prior to the scheduled sentencing hearing. At the sentencing hearing the judge stated:
The defendant again objected and stated that he was unaware of the petitions mentioned by the court.
The Court of Appeals in State v. Scales, No. 74,361, an unpublished opinion filed June 7, 1996, affirmed the trial court's sentences, holding that the defendant failed to show the sentences imposed were the result of partiality, prejudice, oppression, or corrupt motive and that the sentences did not amount to an abuse of discretion. We granted the defendant's petition for review.
In arriving at its decision, the Court of Appeals recognized that in this case the sentence imposed was within the presumptive guidelines range. This fact normally would preclude appeal under the provisions of K.S.A. 21-4721(c)(1). However, the Court of Appeals correctly noted that the provisions of K.S.A. 21-4721(e)(1), which allow for appellate review of claims that "the sentence resulted from partiality, prejudice, oppression or corrupt motive" provided the basis for the court's jurisdiction.
While acknowledging that the trial court's ex parte communications violated the Code of Judicial Conduct, the Court of Appeals applied the following standards of review in determining both that the sentences were not the result of partiality, prejudice, oppression, or corrupt motive and that the sentences did not amount to an abuse of discretion:
"Whenever a defendant is sentenced to a presumptive sentence and there is no claim of error in regard to crime severity level or criminal history, there is a strong legislative presumption that the sentence is not the result of partiality, prejudice, oppression, or corrupt motive." State v. Starks, 20 Kan.App.2d 179, Syl. p 9, 885 P.2d 387 (1994).
Starks, 20 Kan.App.2d at 183, 885 P.2d 387.
State v. Walker, 252 Kan. 279, 290, 845 P.2d 1 (1993).
We adhere to the above standards adopted by this court in reviewing impositions of sentence under the Kansas Sentencing Guidelines Act. However, under the facts of this case, we need look no further than the nature of the hearing that took place upon sentencing to conclude that the proceeding was inherently unfair. While not all ex parte communications with a trial court require reversal, the communications in this case undermine any confidence we have in the impartiality of the sentencing proceeding.
At the time of the defendant's sentence on March 24, 1995, Rule 601 of the Code of Judicial Conduct applied to the actions of the trial judge in this case. Canon 3, entitled "A Judge Should...
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