State v. Thomas
| Citation | 383 P.3d 152 |
| Decision Date | 30 September 2016 |
| Docket Number | No. 114,433,114,433 |
| Parties | State of Kansas, Appellee, v. Randy D. Thomas, Appellant. |
| Court | Court of Appeals of Kansas |
Eric Kjorlie, of Topeka, for appellant.
Elizabeth A. Billinger, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Gardner, P.J., Buser and Standridge, JJ.
On July 19, 2002, a jury convicted Randy D. Thomas of second-degree murder. A presentence investigation (PSI) report prepared before sentencing indicated that Thomas' criminal history scored B, based in part on a 1990 juvenile adjudication as “Burglary (Building Used As a Dwelling)” and classified on the PSI report as a person felony. On October 25, 2002, the court sentenced Thomas to 586 months in prison and 36 months' postrelease supervision, which was within the presumptive sentencing range.
Thomas filed a motion to correct sentence on February 2, 2015, arguing the sentencing court misclassified his 1990 Kansas juvenile adjudication for burglary as a person offense for criminal history purposes, which in turn violated his constitutional rights under Descamps v. United States , 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013)
, and Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), as applied by our state in State v. Dickey , 301 Kan. 1018, 350 P.3d 1054 (2015). The district court summarily dismissed Thomas' motion, finding that “Dickey does not allow [Thomas] to raise a constitutional challenge in a post-direct appeal motion to correct an illegal sentence.”
Thomas claims the district court erroneously denied his motion to correct an illegal sentence. Under K.S.A. 22–3504(1)
, a “court may correct an illegal sentence at any time.” Our Supreme Court has defined “illegal sentence” under K.S.A. 22–3504 as:
“ ” State v. Moncla , 301 Kan. 549, 551, 343 P.3d 1161 (2015)
.
The State argues that this court should not reach the merits of whether Thomas' sentence is illegal because the issue is procedurally barred by waiver, invited error, and res judicata because the holding in Dickey
should not be retroactively applied, and because K.S.A. 22–3504 is the improper procedural vehicle to challenge the constitutionality of a sentence. Before reaching the merits of Thomas' claim, we address each of the State's procedural arguments.
The State argues Thomas has waived his right to challenge—and is precluded by the doctrine of invited error from challenging—any alleged error by the district court in classifying his prior juvenile adjudication for burglary as a person offense for purposes of calculating his criminal history score. We begin our discussion with a brief review of waiver and the doctrine of invited error.
In Kansas, waiver is defined as the voluntary and intentional relinquishment of a known right and the expression of an intention not to insist upon what the law affords. See Prather v. Colorado Oil & Gas Corp. , 218 Kan. 111, 117, 542 P.2d 297 (1975)
; Jones v. Jones , 215 Kan. 102, 116, 523 P.2d 743 (1974). “Waiver must be manifested in some unequivocal manner by some distinct act or by inaction inconsistent with an intention to claim forfeiture of a right.” Patrons Mut. Ins. Ass'n v. Union Gas System, Inc. , 250 Kan. 722, 725–26, 830 P.2d 35 (1992). Thus, in order for a waiver to be constitutionally valid, the record must affirmatively reflect that the defendant personally (1) understood the specific right or rights being waived; and (2) either by action or inaction, established that he or she unequivocally intended to waive the specific right or rights.
The doctrine of invited error precludes a party from affirmatively requesting a district court rule on a particular issue in a given way and then challenging that ruling on appeal. See State v. Hargrove , 48 Kan.App.2d 522, Syl. ¶ 2, 293 P.3d 787 (2013)
(describing invited error). The doctrine of invited error “should be tailored as necessary to serve its particular purpose without unnecessarily thwarting the ends of justice.” 48 Kan.App.2d at 553, 293 P.3d 787.
As a general rule, Kansas appellate courts have drawn no particular distinction between waiver and invited error. 48 Kan.App.2d at 546, 293 P.3d 787
. As defined by our courts, however, one can invite error without waiving a known right; e.g. , when a lawyer or party asks the court to act in a certain way but in doing so does not understand that the action will impair or extinguish a legal right. See United States v. Barrow , 118 F.3d 482, 490–91 (6th Cir. 1997)(Invited error “is a branch of the doctrine of waiver” that may yield to “the interests of justice,” as where both the government and the defense jointly requested a defective jury instruction.).
Turning to the facts of this case, the State contends that waiver and invited error preclude the court from considering Thomas' motion to correct an illegal sentence under K.S.A. 22–3504(1)
. In support of this contention, the State notes that when the district judge asked Thomas' attorney whether he controverted any criminal history in the PSI report, the attorney responded, “No.” The State further notes that Thomas' 1990 juvenile burglary adjudication was listed in the PSI report. The State argues by failing to controvert a criminal history that listed the 1990 juvenile burglary adjudication, Thomas waived the right to challenge his 1990 juvenile burglary adjudication and invited any error by the district court in using that adjudication to then calculate his sentence.
But the facts here do not establish waiver or invited error for the purpose of precluding Thomas from challenging an illegal sentence. As to waiver, the response of no by Thomas' attorney when asked by the district court judge whether the attorney controverted any criminal history in Thomas' PSI report fails to establish Thomas personally knew he was voluntarily and intentionally waiving his right to later ask the court to correct the misclassification of a prior juvenile adjudication as a person offense in his criminal history. As to invited error, the record demonstrates that neither Thomas nor his counsel affirmatively invited, encouraged, or induced the court to misclassify his prior juvenile adjudication as a person offense in his criminal history and ultimately impose an illegal sentence as a result.
The conclusion that neither waiver nor invited error precludes Thomas from challenging an illegal sentence is consistent with Kansas Supreme Court precedent with facts almost identical to those presented here. In Dickey
, the court declared that “a stipulation or lack of an objection regarding how those convictions [listed in the criminal history] should be classified or counted as a matter of law for the purpose of determining the defendant's criminal history score will not prevent a subsequent challenge under K.S.A. 22–3504(1) of his or her prior convictions.” 301 Kan. at 1032, 350 P.3d 1054. The same analysis applies here. Thomas did not waive his right to obtain relief from an illegal sentence or invite error when his attorney responded no when asked by the district court whether the attorney controverted any criminal history in Thomas' PSI report.
The dissent, however, finds this case factually distinguishable from Dickey
on the issue of waiver and invited error. Specifically, the dissent notes that the PSI report describes Thomas' prior juvenile adjudication as “Burglary (Building Used As a Dwelling)” while the description of Dickey's prior juvenile adjudication did not describe the burglary as one that included a dwelling. The dissent posits that because the person who drafted Thomas' PSI report described the prior juvenile adjudication as burglary of a dwelling, Thomas stipulated to the fact that an adjudication for burglary of a dwelling existed in his criminal history. By construing it as a stipulation to the existence of an adjudication in his criminal history as opposed to a stipulation to how an adjudication in his criminal history should be classified , the dissent claims Dickey does not control and Thomas has waived any right to challenge his prior adjudication for burglary of a dwelling. Based on Thomas' stipulation to the dwelling component, the dissent concludes any challenge to how the conviction should be classified is moot because there is no dispute that burglary of a dwelling is a person offense.
But our Supreme Court recently issued an opinion contrary to the position taken by the dissent. State v. Hankins , 304 Kan. 226, 372 P.3d 1124 (2016)
( Hankins II ). In Hankins II , the defendant's PSI report listed two prior misdemeanor convictions and one prior nonperson felony conviction. The felony was based on a possession of a firearm on school property charge in Oklahoma and raised Hankins' criminal history score to a G. Hankins filed a motion for dispositional departure. In response to the district court's inquiry at sentencing regarding whether the parties “ ‘had a chance to look’ ” at the PSI report, Hankins' counsel responded, “ ‘We have.’ ” 304 Kan. at 227, 372 P.3d 1124
. The district court denied Hankins' departure motion and imposed a controlling sentence of 68 months in prison.
Hankins filed a motion to correct an illegal sentence asserting that his criminal history score should not have included the Oklahoma nonperson felony because Hankins received a deferred judgment for the Oklahoma crime which did not constitute a conviction for criminal history scoring purposes. The district court ultimately denied the motion, holding that defense counsel's stipulation to criminal history...
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