State v. Vargas

• Decision Date: 30 July 2021
• Docket Number: No. 119,741,119,741
• Citation: 492 P.3d 412
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellee, v. Dominic VARGAS, Appellant.

492 P.3d 412

STATE of Kansas, Appellee,

v.Dominic VARGAS, Appellant.

No. 119,741

Supreme Court of Kansas.

Opinion filed July 30, 2021.

Kasper Schirer, of Kansas Appellate Defender Office, argued the cause, and was on the brief for appellant.

Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by Wilson, J.:

The State seeks review of the portion of the judgment of the Court of Appeals in State v. Vargas , No. 119,741, 2019 WL 5485179 (Kan. App. 2019) (unpublished opinion), reversing one of Dominic Vargas' two alternatively charged convictions for fleeing or attempting to elude a law enforcement officer. The State asserts it is appropriate for the court to keep both convictions, so long as one is held "in abeyance." The State is wrong. The two guilty verdicts on alternatively charged counts in this case can support only one conviction. There is no authority for a second conviction, regardless of what it might be labelled. On this point we agree with the panel below. However, the panel overstepped by dictating that the second conviction must be reversed. Rather, the guilty verdicts on alternative counts charging the same crime merge by operation of law to result in a single conviction for fleeing or attempting to elude law enforcement. Consequently, we affirm the panel in part and reverse it in part. The district court is reversed on the sole issue before us, and we remand the matter to the district court with directions to enter an amended journal entry reflecting the merger of the two guilty verdicts into one conviction, as we will discuss below.

FACTUAL AND PROCEDURAL BACKGROUND

For purposes of our review, the underlying facts of this case are not at issue; a more detailed summary of the facts may be found in the Court of Appeals opinion. Briefly stated, on March 31, 2016, Sedgwick County Sheriff's Deputy James Maness saw a black Pontiac G6 cut other cars off on Kellogg Avenue. Maness activated his lights and siren in an effort to pull the G6 over, but when the G6's driver—later identified by Maness as Vargas—defied these signals and "floored it" to escape, Maness pursued him. Vargas ultimately evaded Maness after a short pursuit through Wichita, at one point exceeding 120 mph in a 50 mph zone. During the chase, Maness saw Vargas commit numerous traffic violations, including speeding infractions, running red lights, and failing to use turn signals, among others.

Maness subsequently learned that the G6 belonged to Jessica Garcia. Deputies dispatched to her residence learned that Vargas was Garcia's boyfriend. Although Garcia and the deputies presented somewhat conflicting testimony at trial on this point, the deputies were informed, at the very least, that Vargas had access to Garcia's car that day. Based on Vargas' driver's license photo and his observations of the G6's driver during the pursuit, Maness identified the G6's driver as Vargas.

Following this identification, the State charged Vargas with two alternative counts of fleeing or attempting to elude an officer: the first alleging, under " K.S.A. 2015 Supp. 8-1568(b)(1)(E) [,](c)(2)," that Vargas committed five or more moving violations (Count One) and the second alleging, under " K.S.A. 2015 Supp. 8-1568(b)(1)(C) [,](c)(2)," that Vargas engaged in reckless driving (Count Two). The State also charged Vargas with unlawfully operating a motor vehicle based on failure to signal a lane change (Count Three).

At the conclusion of trial, the jury returned guilty verdicts on all three counts, and the district court convicted Vargas of all three. At sentencing, the State suggested that the district court could hold Count Two "in abeyance" and sentence Vargas based on Count One as the primary crime of conviction, and—with no objection from Vargas' counsel—the district court agreed. The district court then sentenced Vargas on Count One and Count Three, giving him a total term of 15 months' incarceration. The journal entry ultimately entered by the district court memorialized Vargas' conviction for Count Two but noted that the sentence was held in abeyance.

Vargas appealed. Before the Court of Appeals, Vargas argued—among other things—that the district court erred by entering convictions on both alternatively charged counts of fleeing or attempting to elude a law enforcement officer. The State, meanwhile, conceded that merger of Counts One and Two could be appropriate but argued that the district court's decision to hold Count Two in abeyance eliminated the need to consider merger. The panel noted this concession but said no more about the question of merger. Based largely on State v. Garza , 290 Kan. 1021, 1035-36, 236 P.3d 501 (2010), the panel concluded that the district court lacked authority to enter both convictions, and that it had no authority to hold one conviction in abeyance. The panel went on to state:

"Accordingly, we [reverse] Vargas' second conviction for fleeing or attempting to elude a law enforcement officer for reckless driving and remand this case with directions to the district court to enter an amended journal entry reflecting one conviction for fleeing or attempting to elude a law enforcement officer as well as the conviction for failing to signal a lane change." Vargas , 2019 WL 5485179, at *4.

The panel rejected Vargas' other claimed errors, including a challenge to the verdict form, a challenge to the district court's denial of Vargas' motion for mistrial, and a claim of prosecutorial error, along with a claim of cumulative error. 2019 WL 5485179, at *4-8. Both parties petitioned this court for review, but we granted only the State's cross-petition for review on the issue of the district court's authority to hold in abeyance an alternatively charged conviction.

For reasons set out more fully below, we hold that both alternatively charged convictions cannot stand. In this case, the alternative jury verdicts for one crime—fleeing or attempting to elude law enforcement—merge to form one conviction for fleeing or attempting to elude law enforcement.

ANALYSIS

The district court lacked authority to enter two convictions on the alternative counts of fleeing or attempting to elude law enforcement.

Standard of Review

As the issue before this court requires consideration of whether the district court exceeded its statutory authority and whether the district court entered multiplicitous convictions, we review the district court's decision de novo. See, e.g., State v. George , 311 Kan. 693, 696, 466 P.3d 469 (2020) (multiplicity); State v. Eddy , 299 Kan. 29, 32, 321 P.3d 12 (2014) (statutory interpretation); In re Marriage of Doney & Risley , 41 Kan. App. 2d 294, 297, 201 P.3d 770 (2009) (district court exceeding statutory authority).

Discussion

Vargas' at-issue convictions lie under K.S.A. 2015 Supp. 8-1568(b)(1), which provides, in relevant part:

"(b) Any driver of a motor vehicle who willfully fails or refuses to bring such driver's vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop, and who: (1) Commits any of the following during a police pursuit: ... (C) engages in reckless driving as defined by K.S.A. 8-1566, and amendments thereto; ... or (E) commits five or more moving violations."

We have recognized that driving recklessly and committing moving violations might occur simultaneously.

"The State can prove that unsafe vehicle operation by either establishing the definition of ‘reckless’ as applicable to the crime of reckless driving or by establishing that, during the flight, the defendant committed five or more moving violations. Contrary to being mutually exclusive, those proofs would most likely overlap. It is difficult to imagine that a juror would not view the act of running multiple stop signs at speeds exceeding 100 miles per hour as evidence of reckless driving. " (Emphasis added.) State v. Castleberry , 301 Kan. 170, 185, 339 P.3d 795 (2014).

The panel here, relying on Garza , 290 Kan. at 1036, 236 P.3d 501, reversed Vargas' conviction for Count Two because " ‘a defendant cannot be convicted of both offenses when the crimes are charged in the alternative.’ " Vargas , 2019 WL 5485179, at *4. The panel also noted that Garza cited State v. Blanchette , 35 Kan. App. 2d 686, 704, 134 P.3d 19 (2006), and State v. Dixon , 252 Kan. 39, 49, 843 P.2d 182 (1992), for support. Vargas , 2019 WL 5485179, at *4.

The State attempts to "save" the second conviction by claiming that the district court may hold one alternatively charged conviction "in abeyance." In support, the State cites several cases where appellate courts have held (or recognized the holding of) entire cases, or portions of those cases, in abeyance for various procedural reasons; the State also cites several cases where a district court has purported to stay or hold in abeyance some aspect of a case, usually as part of an agreement with the defendant. See, e.g., Gannon v. State , 303 Kan. 682, 741, 368 P.3d 1024 (2016) (mandate stayed in order to give the Legislature time to craft a solution); State v. Petersen-Beard , 304 Kan. 192, 212, 377 P.3d 1127 (2016) (Johnson, J., dissenting) (dissent recognized that the appeal in another case had been "held in abeyance pending" the Petersen-Beard decision); State v. Scott , 286 Kan. 54, 91, 183 P.3d 801 (2008) (recognizing that appeal had been held in abeyance pending outcome of Kansas v. Marsh , 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 [2006] ), overruled on other grounds by State v. Dunn , 304 Kan. 773, 375 P.3d 332 (2016) ; State v. Campbell , 273 Kan. 414, 424, 44 P.3d 349 (2002) (recognizing district court's authority to sentence a defendant on counts initially suspended under an agreement between the defendant and the State); State v. Orr , 262 Kan....