State v. Spencer Gifts, LLC

• Decision Date: 24 April 2015
• Docket Number: 111,398.
• Citation: 348 P.3d 611,51 Kan.App.2d 437
• Parties: STATE of Kansas, Appellant, v. SPENCER GIFTS, LLC, Appellee.
• Court: Kansas Court of Appeals

51 Kan.App.2d 437

348 P.3d 611

STATE of Kansas, Appellant

v.SPENCER GIFTS, LLC, Appellee.

111,398.

Court of Appeals of Kansas.

April 24, 2015.

Review Granted October 7, 2015.

Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant.

Tricia A. Bath, Thomas J. Bath, and Mitch E. Biebighauser, of Bath & Edmonds, P.A., of Overland Park, for appellee.

Before MALONE, C.J., McANANY and SCHROEDER, JJ.

Opinion

McANANY, J.

The State of Kansas appeals from the district court's decision to dismiss a criminal complaint against Spencer Gifts, LLC, due to a violation of statutory speedy trial rights under K.S.A.2014 Supp. 22–3402(b). The State contends the speedy trial provision of K.S.A.2014 Supp. 22–3402(b) does not apply to an LLC that was never held to answer on an appearance bond.

On October 6, 2010, the State filed a criminal complaint against Spencer Gifts, LLC, charging it with promoting obscenity that was harmful to minors pursuant to K.S.A. 21–4301c. A summons was issued which directed Spencer Gifts to appear in court on October 27, 2010. Spencer Gifts appeared through counsel at the appointed time and entered a plea of not guilty. During the pendency of the action, Spencer Gifts continued to appear as the case was pending in district court. Spencer Gifts requested continuances from November 2010 until June 2011.

Spencer Gifts contended that it had a statutory right to a speedy trial. It did not assert a constitutional speedy trial claim. In response, the State requested that the district court determine whether K.S.A.2014 Supp. 22–3402(b) applied. The State argued the speedy trial statute did not apply because Spencer Gifts had been ordered to appear by summons and, therefore, was not held on an appearance bond. Following a hearing in June 2013, the district court judge agreed with the State and determined that Spencer Gifts had not been held to answer on an appearance bond: “A corporation has never been in custody, never been on a bond in this case. So I'm going to find there is no speedy trial violation.” The district court judge also ruled that the LLC was not a “person” as contemplated under the speedy trial statutes “based on the status of the defendant as a corporation.”

Shortly before trial in February 2014, Spencer Gifts moved to dismiss for violation of its speedy trial rights, more than 180 days having passed since commencement of the action without the matter being brought to trial. It argued that Kansas courts had applied the speedy trial statute to individuals who were charged with a crime but were not held on an appearance bond. See City of Elkhart v. Bollacker,

243 Kan. 543, 757 P.2d 311 (1988) (defendant commanded to appear by notice to appear); State v. Palmquist, No. 103,914, ––– Kan.App.2d ––––, 2011 WL 767861 (Kan.App.2011) (unpublished opinion) (defendant commanded to appear by summons), rev. denied 292 Kan. 968 (2011). In response, the State maintained its position that because Spencer Gifts was not held on an appearance bond, K.S.A.2014 Supp. 22–3402(b) did not apply.

The motion was reassigned to a senior district court judge who, relying on the holdings in Bollacker and Palmquist, ruled that the speedy trial statute applied to Spencer Gifts regardless of the fact that it had been ordered to appear by summons. The court determined that based on the passage of time, Spencer Gifts' statutory speedy trial rights under K.S.A.2014 Supp. 22–3402(b) had been violated. The court dismissed the complaint, and the State appeals.

On appeal, the State argues that the district court erred in applying K.S.A.2014 Supp. 22–3402(b) to Spencer Gifts, a limited liability company that was not subject to an appearance bond. This contention raises an issue of statutory construction, a matter which we review de novo. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). As a general rule, criminal statutes are strictly construed in favor of the accused. The rule is constrained by the rule that the interpretation of a statute must be reasonable and sensible to affect the legislative design and intent of the law. State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014). The rule of lenity arises only when there is any reasonable doubt of the statute's meaning. See State v. Beaman, 295 Kan. 853, 868, 286 P.3d 876 (2012).

K.S.A.2014 Supp. 22–3402 guarantees a criminal defendant's right to a speedy trial. K.S.A.2014 Supp. 22–3402(b) —formerly K.S.A. 22–3402(2) —provides:

“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (e).”

Spencer Gifts was not held to answer on an appearance bond. See K.S.A. 22–2202(2) (defining appearance bond). Instead, the prosecution against Spencer Gifts was initiated by a summons, which is “a written order issued by a magistrate directing that a person appear before a designated court at a stated time and place and answer to a charge pending against the person.”K.S.A. 22–2202(19).

Spencer Gifts relies on Bollacker. There, the defendant was charged by means of a complaint, and he received a notice to appear in municipal court for unlawful discharge of a firearm. Bollacker appeared for trial and was found guilty. He appealed his conviction to the district court. Bollacker's attorney wrote to the municipal court about the necessity of an appearance bond, but there was no appearance bond filed. Bollacker was merely notified to appear, and Bollacker never failed to appear during the pendency of the action. After several delays, his counsel filed a motion to dismiss based on K.S.A. 22–3402(2) (Ensley 1981), and the district court granted the motion based on a violation of Bollacker's speedy trial rights.

Spencer Gifts argues that the situation in this case is similar to that in Bollacker. In both cases, the defendants were not required to post a bond; rather, they were merely notified to appear. The Bollacker court relied on the holding in City of Overland Park v. Fricke, 226 Kan. 496, 502, 601 P.2d 1130 (1979), noting that the defendant in Fricke had posted an appearance bond, but the court found no significance in the distinction. Bollacker, 243 Kan. at 545, 757 P.2d 311. In Fricke, our Supreme Court found that the time limitations provided in K.S.A.1977 Supp. 22–3402 should begin to run from the date the appeal is docketed in the district court or at the expiration of the time the appeal should have been docketed, whichever occurs first. 226 Kan. at 502, 601 P.2d 1130.

The Bollacker court recognized the legislature's intent that “persons charged with crime should be granted a prompt and speedy trial ... [t]o prevent the oppression of a citizen by holding criminal prosecutions suspended over [the person] for an indefinite time and to prevent delays in the administration of justice.” 243 Kan. at 545, 757 P.2d 311. The Bollacker court pointed to K.S.A. 21–3813(2) (Ensley 1981), which provided in part that “ ‘[a]ny person who is released upon his or her recognizance, without surety, or who fails to appear in response to a summons or traffic citation, shall be deemed a person released on bond.’ ” 243 Kan. at 545, 757 P.2d 311. Thus, “the legislature intended to provide statutory speedy trials for all persons held to respond to criminal charges.” 243 Kan. at 545, 757 P.2d 311.

Spencer Gifts asserts that the holding in Bollacker does not depend on the form in which the defendant is commanded to appear. Instead of the threat of arrest, Spencer Gifts was under the threat of sanction throughout the criminal process for failure to appear. On two occasions, the district court commanded Spencer Gifts to personally appear despite the local rule and statutory provision allowing misdemeanor defendants to appear through counsel. See K.S.A.2014 Supp. 22–3204(c).

A panel of this court reaffirmed the Bollacker holding in Palmquist, 2011 WL 767861, at *4–5. In that case, the defendant had received several driving-related citations by mail directing him to appear in district court. Palmquist appeared, was arraigned, and entered a plea of not guilty but was not taken into custody. After several delays, the case was dismissed without prejudice due to the State's inability to proceed without an unavailable witness. The case was later refilled, and Palmquist was ordered to appear for arraignment in the refilled case by summons. Palmquist appeared, entered a plea of not guilty, but was not taken into custody.

Palmquist moved to dismiss based upon a violation of his speedy trial rights. The district court applied the speedy trial statute and dismissed the charges despite the fact that Palmquist was held to answer by way of a summons rather than an appearance bond. The panel majority reasoned:

“We find the legal analysis in Bollacker is sound and the outcome practical. Both a summons and a notice to appear compel appearance at a future hearing without the need to post security, which is comparable to many appearance bonds used to secure appearance at a future hearing.... Moreover, a person who receives a summons or a notice to appear is subject to a degree of restraint that is, for all practical purposes, identical to the degree of restraint imposed upon a person who is not required to post bail but held to answer to pending charges based on an appearance bond. And, whether secured by notice to appear, summons, or appearance bond, nonappearance could result in a conviction for failure to appear, a class B nonperson misdemeanor. See K.S.A. 21–3813(a), (b), and (d).” Palmquist, 2011 WL 767861, at *4.

The State points to caselaw in which the Kansas courts have interpreted the plain language of K.S.A....