Opinion
No. 111,829.
2015-03-13
Alan Lee GREER, Appellant, v. COUNTY OF ALLEN, SHERIFF'S DEPARTMENT, State of Kansas, Appellee.
Appeal from Allen District Court; Daniel D. Creitz, Judge.J. Philip Crawford, of Kansas City, for appellant.Kristafer R. Ailslieger, deputy solicitor general, of Office of the Kansas Attorney General, for appellee.
Appeal from Allen District Court; Daniel D. Creitz, Judge.
J. Philip Crawford, of Kansas City, for appellant. Kristafer R. Ailslieger, deputy solicitor general, of Office of the Kansas Attorney General, for appellee.
Before ARNOLD–BURGER, P.J., PIERRON and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Alan Lee Greer is incarcerated in Allen County awaiting trial. This appeal is from the Allen County District Court's denial of Greer's K.S.A. 60–1501 petition. Finding no error, we affirm.
Factual and Procedural Background
On February 1, 2012, the State charged Greer with sexual exploitation of a child in violation of K.S.A.2011 Supp. 21–5510(a)(1). A preliminary examination was held 6 months later, on August 1, 2012. At the hearing, the State admitted photographs which apparently showed a naked infant held on the lap of a man. (These exhibits and other photographs admitted at the preliminary examination are omitted from the record on appeal.) N.S. testified the child in the photographs was her grandson and identified the man's hands in the photographs as Greer's. The child would have been 14 months old when the photographs were taken. At the hearing, Greer argued that a child “must have some understanding or at least be of an age where there can be some knowledge that they are exhibiting their nude bodies in a sexually explicit manner.” The district magistrate rejected Greer's argument, however, and bound him over for trial.
On October 1, 2012, Greer filed a motion to dismiss the charge in the district court (first motion to dismiss). Greer again contended:
“When the child is not aware that he or she is being photographed in a sexually provocative manner and the child is not engaged in any kind of sexually inappropriate behavior, the child does not suffer the psychological and emotional harm that the sexual exploitation of a child statute is designed to punish and prevent.”
For its part, the State countered that the child's awareness is “not required” but “can be included.”
On August 14, 2013, the district court issued a written order granting Greer's first motion to dismiss. In its order, the district court noted the State had suggested it would file an “interlocutory” appeal from an adverse ruling, and the district court agreed such an appeal was “in the interests of judicial economy.... Appellate guidance and review should occur before trial not after trial.” The district court ordered Greer to remain in custody “[d]uring the pendency of the interlocutory appeal ... unless he is able to meet all the conditions of his $150,000 cash surety appearance bond which remains in full force and effect.”
The next day, August 15, 2013, the State moved for reconsideration of the district court's ruling. In its motion, the State reprised its argument that a child's awareness of sexual exploitation is not required to constitute a violation under K.S.A.2011 Supp. 21–5510(a)(1).
On August 23, 2013, Greer responded to the State's motion. Of note, Greer did not raise a procedural objection to the State's filing. Instead, like the State, Greer repeated his earlier argument: “There is simply no way under the current state of the law to interpret the crime charged ... without a requirement of awareness of the child.”
On August 26, 2013—12 days after its initial ruling—the district court granted the State's motion to reconsider and withdrew its order granting Greer's first motion to dismiss. The district court explained: “After rereading the cases, there is no Kansas case ... that squarely stands for the proposition” that the case as charged here, “requires ‘awareness' of the child.” The district court ordered, “[t]his case and all pending motions need to be reset on the Court's trial docket forthwith.”
On October 3, 2013, Greer filed a “Motion to Dismiss Pursuant to K.S.A. 21–5110” (second motion to dismiss). Greer characterized the district court's ruling on the first motion to dismiss as a “final order” which barred the State from going “forward to a jury with the facts that were presented at preliminary hearing.” Greer again asked the district court to dismiss, “as [he] has effectively already [been] prosecuted for the crime charged.”
On October 14, 2013, the State responded to Greer's second motion to dismiss. The State now acknowledged there was no statutory basis for it to file an interlocutory appeal. Instead, the State argued, “there was no final judgment. The State filed a motion to reconsider and the court granted it well within 30 days of its ruling of dismissal. No notice of appeal was filed since there was no final order.”
On October 17, 2013, the district court denied Greer's second motion to dismiss. The district court accepted the State's argument, holding that because it had granted the State's motion for reconsideration, the dismissal was never final. Of note, the district court stayed the criminal case after Greer “told the court that he desires to pursue a writ of habeas corpus.”
One month later, on November 18, 2013, Greer filed a “Petition for Writ of Habeas Corpus” in the criminal case pursuant to “K.S.A. 60–1501–07” [ sic ]. The district court construed the petition as a K.S.A. 60–1507 motion and summarily denied it. Greer appealed, and on February 10, 2014, our court ordered Greer to show cause why his motion should not be dismissed because he was not yet under sentence as required by K.S.A. 60–1507. Greer did not respond to the show cause order, and on March 10, 2014, the appeal was dismissed.
Two months later, on May 7, 2014, Greer initiated the present case, filing his “Petition for Writ of Habeas Corpus Under K.S.A. 60–1501.” Greer challenged the district court's “pretrial denial of his claim of double jeopardy under the Fifth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights.” The district court summarily dismissed Greer's petition, and he filed a timely appeal.
Double Jeopardy
On appeal, Greer contends his “constitutional rights to be free from double jeopardy were violated when the district court reinstated the charges against him upon a motion for reconsideration by the State.”
“A petition for a writ of habeas corpus is an appropriate method for challenging a trial court's denial of a claim of double jeopardy .” In re Habeas Corpus Petition of Lucas, 246 Kan. 486, Syl. ¶ 1, 789 P.2d 1157 (1990). An appellate court exercises unlimited review over both double jeopardy and summary denials of habeas petitions generally. See K.S.A.2014 Supp. 60–1503(a); State v. Phillips, 299 Kan. 479, 494, 325 P.3d 1095 (2014); Johnson v. State, 289 Kan. 642, 648–49, 215 P.3d 575 (2009).
“The Double Jeopardy Clause of the Fifth Amendment protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” State v. Schoonover, 281 Kan. 453, Syl. ¶ 2, 133 P.3d 48 (2006). In this respect, “ § 10 of the Kansas Constitution Bill of Rights and the Fifth Amendment to the United States Constitution are coextensive.” State v. Jenkins, 295 Kan. 431, 434, 284 P.3d 1037 (2012). These protections against double jeopardy are also codified in certain provisions of K.S.A.2014 Supp. 21–5110, the successor statute to K.S.A. 21–3108.
Greer maintains he has suffered a second prosecution for the same offense after acquittal, identifying the district court's initial granting of the first motion to dismiss as the acquittal. As a general rule, an acquittal is “a judgment that (1) resolves a factual element (2) after jeopardy has attached.” State v. Roberts, 293 Kan. 29, 35, 259 P.3d 691 (2011).
Whether or not the district court resolved a factual element when it granted the first motion to dismiss, we are convinced it did not acquit Greer because jeopardy had not attached. Greer was set for jury trial when he filed his first motion to dismiss, and the record does not show a waiver of jury trial rights. Thus, Greer's first motion to dismiss was a challenge to the sufficiency of the preliminary examination. See State v. Washington, 293 Kan. 732, 734, 268 P.3d 475 (2012) (“The sufficiency of a preliminary examination may be challenged only by a motion to dismiss filed in the district court.”). Importantly, the preliminary examination was “not a trial of the defendant's guilt; it is merely an inquiry as to whether the defendant should be held for trial.” State v. Harris, 266 Kan. 610, Syl. ¶ 2, 975 P.2d 227 (1999). In fact, “[i]n such circumstances, the [d]istrict [c]ourt was without power to make any determination regarding ... guilt or innocence.” Serfass v. United States, 420 U.S. 377, 389, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975).
In contrast, jeopardy attaches when the district court has the power to make a determination regarding guilt or innocence, i.e., “when a jury is impaneled and sworn or in a bench trial when the judge begins to receive evidence.” Roberts, 293 Kan. 29, Syl. ¶ 5. None of those circumstances occurred in the present case. Quite simply, because jeopardy had not attached when the district court initially granted the first motion to dismiss, Greer was not subjected to double jeopardy.
Res Judicata
Alternatively, Greer claims: “The application of res judicata ... prohibits the State from a subsequent prosecution.”
Preliminarily, the State does not challenge Greer's preservation of this issue for appeal. We question whether Greer raised res judicata in his K.S.A. 60–1501 petition, but we will consider it on appeal because (1) Greer raised res judicata in his second motion to dismiss, and (2) the district court incorporated its earlier rulings when summarily dismissing the K.S.A. 60–1501 petition. Whether res judicata applies is a question of law subject to de novo review. Knowles v. Fleetwood Motorhomes of California, Inc., 40 Kan.App.2d 573, 577, 194 P.3d 38 (2008).
Greer implicitly bases his res judicata argument on K.S.A.2014 Supp. 21–5110(a)(2), which, following K.S.A. 21–3108(1)(b), codifies the doctrine of res judicata as it would apply in the present case, distinct from the protections against double jeopardy codified elsewhere in the same statute. See State v. Lee and Turner, 210 Kan. 753, 756, 504 P.2d 202 (1972); Spring, The Effect of Former Prosecutions: Something Old and Something New Under Kan. Stat. Ann. Sec. 21–3108, 9 Washburn L.J. 179, 187–88 (1970). Under the relevant statutory provision:
“A prosecution is barred if the defendant was formerly prosecuted for the same crime, based upon the same facts, if such former prosecution:
....
“(2) was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact or legal proposition necessary to a conviction in the subsequent prosecution.” K.S.A.2014 Supp. 21–5110(a)(2).
Considering the unique facts of this matter, where a criminal case was dismissed based on the evidence at the preliminary examination but the defendant was not discharged, and where the dismissal was immediately challenged and soon withdrawn by the district court, Greer has not shown a “former prosecution” and a “subsequent prosecution” under the statute. There was only one prosecution here, in our opinion, so res judicata did not apply. See Arizona v. California, 460 U.S. 605, 619, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) (“It is clear that res judicata and collateral estoppel do not apply if a party moves the rendering court in the same proceeding to correct or modify its judgment.”); State v. West, 46 Kan.App.2d 732, 736, 281 P.3d 529 (2011) (“law-of-the-case promotes the same goals as res judicata except that it operates within the life of a single case rather than across successive cases”).
Moreover, even if there was a “former prosecution” and a “subsequent prosecution” in the present case, the former prosecution was res judicata only if it was terminated by a “ final order or judgment.” (Emphasis added.) Cf. Venters v.. Sellers, 293 Kan. 87, 99, 261 P.3d 538 (2011) (“ ‘Res judicata differs from the law of the case in that it settles the rights of the parties once the judgment is final.’ [Citations omitted.]”). Greer argues the district court's order granting the first motion to dismiss was final because the State did not appeal the adverse ruling. In Roberts, however, our Supreme Court held an order dismissing a complaint, information, or indictment before jeopardy has attached, “would not be final until the opportunity for an appeal had expired or was exhausted; only then would the order have preclusive effect.” 293 Kan. at 44–45. Roberts provides important precedent that the district court's granting of Greer's first motion to dismiss was not a final judgment under the circumstances of this case.
It is unnecessary for us to decide how long the State had to appeal. The State moved for reconsideration 1 day after the district court granted the first motion to dismiss, and the district court withdrew its order 12 days after it was made. We are certain this was within the time period for such an appeal, a point Greer does not dispute. See K.S.A.2014 Supp. 60–2103(a); K.S.A.2014 Supp. 22–3603; K.S.A. 22–3606; K.S.A.2014 Supp. 22–3608(c). Because the opportunity for the State to file an appeal had not expired or was not exhausted, the granting of Greer's first motion to dismiss was never final, and res judicata did not apply.
District Court's Granting of the State's Motion for Reconsideration
For his final argument, Greer contends the district court committed a “misapplication” of the State's motion for reconsideration leading “directly to an abuse of discretion by the court in that it did not use the proper legal framework to reinstate the criminal case it had dismissed on the facts.”
Preliminarily, Greer fails to specify where this issue was raised and ruled on by the district court, or, if it was not raised below, why it is properly before us. See Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40.) We could not locate the issue in the proceedings below, and we conclude it is not properly before us. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). We also disagree with Greer that the district court used an improper legal framework to reinstate the criminal case it had dismissed. As previously explained, the reinstatement violated neither the doctrines of double jeopardy nor res judicata.
Affirmed.