PER CURIAM.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.

MEMORANDUM OPINION

PER CURIAM. Eli Edwards was charged with aggravated arson and aggravated escape from custody after he started a fire in the back of a prisoner transport van. Edwards underwent a competency evaluation and was found competent to stand trial in August 2010. In February 2011, on the eve of his trial, Edwards requested a new competency evaluation because he claimed to be suffering from auditory and visual hallucinations. The district court twice denied his requests and proceeded to a bench trial. The court found Edwards guilty of aggravated arson and attempted aggravated escape. Prior to sentencing, Edwards filed a pro se motion alleging ineffective assistance of counsel but withdrew his motion based on information provided by the court. Edwards was sentenced to 247 months in prison and now appeals to this court. We hold that (1) the court did not abuse its discretion when it denied Edwards' requests for a new competency evaluation on the eve of trial, (2) remanding the cause for Edwards to present evidence in support of his request to terminate his trial counsel would serve no legal purpose, and (3) the district court did not err when it used Edwards' prior convictions to enhance his guidelines sentence and imposed the highest presumptive sentence without proving aggravating factors to a jury.

Facts

On May 20, 2010, Edwards, an inmate in the Sedgwick County Adult Detention Facility, was placed in a van for transport to Larned State Hospital. Soon thereafter, the officers became aware of a small fire in the back of the van. After stopping the vehicle to investigate, the officers discovered Edwards on the floor in the back of the van—without handcuffs or leg restraints—attempting to grasp a small purple lighter. When the officers pulled Edwards out of the burning van, he tried to run away. Edwards did not get far before an officer tased and then restrained him. The officers safely evacuated the other inmates from the van. Ultimately, the fire consumed the entire backseat and extensively damaged the rest of the van before it was extinguished.

Edwards was charged with aggravated arson and aggravated escape from custody.

On August 18, 2010, a forensic psychologist at Larned State Hospital evaluated Edwards' competency to stand trial. The report noted that Edwards was currently taking Amoxapine and Benztropine and that Edwards met the criteria for a diagnosis of antisocial personality disorder. When asked about hallucinations and suicidal ideations, Edwards responded both times with: “ ‘I don't want to talk about that right now.’ “ The report noted that Edwards' presentation “suggested an attempt at feigning ignorance of his current charges as well as an attempt to present as an individual with psychotic behaviors.” But the report ultimately determined that Edwards' presentation did not suggest the presence of a psychotic disorder and Edwards did not meet the criteria for a diagnosis of a mood disorder. The report concluded that Edwards was competent to stand trial because “he understands the nature and purpose of the proceedings against him and is able to assist his attorney in preparing and present[ing] a legal defense.” The district court reviewed the report on August 20, 2010, and found Edwards competent to stand trial. On February 11, 2011—3 days before his jury trial was scheduled—Edwards told his defense counsel that he was hearing voices and experiencing hallucinations. Edwards told counsel that although he was on his proper medication when he was evaluated in August 2010, he was not currently being provided with proper medication. “[T]aking [Edwards] at his word,” defense counsel called the court and asked for a new competency evaluation. In response to the request, the court scheduled a hearing for later that afternoon. At the hearing, the court and counsel reviewed the Larned report from August 18, 2010.

The court also reviewed a COMCARE report from October 26, 2009, approximately 7 months before the alleged fire-setting incident. COMCARE is a licensed community mental health center in Sedgwick County that was asked to evaluate Edwards in order to determine whether he was competent to stand trial on charges filed prior to the incident giving rise to the aggravated arson and aggravated escape from custody charges in this case. The report states that, although a licensed clinical psychologist traveled to the Sedgwick County Adult Detention Facility to interview Edwards on two separate occasions, Edwards refused to participate in the evaluation. The report further states: “Mike Hall, Conmed Jail Clinic staff, reported via e-mail on October 16, 2009 that Mr. Edwards is taking Thorazine, an anti-psychotic medication, and continues to report auditory hallucinations and memory loss.”

After reviewing the reports, the State argued Edwards was feigning psychosis in order to delay the trial and cited to that portion of the Earned report discussing this possibility. The State also observed that Edwards would be motivated to remain in Wichita as long as possible in order to stay close to his family in light of the fact that he eventually would be transported to Texas to serve a 99–year sentence from a previous conviction.

The court denied the request for a new competency evaluation. Specifically, the court noted:

• Edwards was presumed competent and bore the burden of showing otherwise.

• The Lamed report from August 2010 did not give any indication of psychosis or schizophrenia. Instead, the report diagnosed Edwards with antisocial personality disorder—a condition that involves deceitfulness. The report did not indicate that any of Edwards' medications were antipsychotic drugs.

• A prison officer testified that Edwards had been acting rationally for the past week and had not complained of hearing voices or seeing hallucinations.

• Edwards helped write an appeal for his brother that the court had heard earlier that day. The court had found some portions of it compelling.

• Edwards refused to answer the court's questions, which appeared to the court to be due to deceitfulness rather than psychosis.

• Edwards spoke to his counsel “more than 21 times” throughout the proceeding, and appeared to be providing his counsel with information to bolster his claim.
On the morning of his scheduled jury trial, Edwards refused to get dressed and come to court. Edwards told his counsel that he had been hearing voices—in particular the voice of a friend who recently died—and had suicidal thoughts. Edwards also told his counsel he had smeared feces all over his cell. Based on this information, defense counsel made a second request for a new competency evaluation. When the court asked Edwards a question, Edwards refused to respond, telling defense counsel that the voices told him not to speak with the court.

The State called several witnesses, who testified that Edwards had made suicidal statements in the last 24 hours and had been placed on suicide watch. One witness confirmed that Edwards had spread feces in his cell. Defense counsel stated that Edwards was now refusing to talk to him because the voices told him to refrain from doing so. Defense counsel argued that the court should reconsider the ruling from 3 days earlier because of these new events.

The court denied the second motion for a new competency evaluation. Specifically, the court noted:

• There was little difference from the earlier hearing, “other than a continued effort to not accept the ruling and just continue to delay the hearing.” The court also reiterated its findings from the earlier hearing.

• Edwards spoke with defense counsel on a couple of occasions. His responses were coherent and appropriate for the questions.

• Edwards was clearly aware that the case was scheduled for jury trial and was cognizant of his charges.

After the court decided to proceed with trial, Edwards began responding to the court's questions. Edwards informed defense counsel that he wanted to waive his right to a jury and proceed with a bench trial. After a lengthy colloquy, during which Edwards told the court he was not currently hearing voices or hallucinating, the court accepted Edwards' waiver of a jury trial.

Following a bench trial, the court found Edwards guilty of aggravated arson and attempted aggravated escape.

Prior to sentencing, Edwards filed a pro se motion requesting the court terminate his attorney, John Sullivan, based on a claim of ineffective assistance of counsel. The court appointed new counsel, Casey Cotton and Quentin Pittman, to represent Edwards for purposes of this request. Before a hearing on the motion related to Sullivan's representation could be held, however, Edwards asked the court to dismiss newly appointed counsel because they refused to ask for a continuance of the hearing. The court refused to dismiss new counsel.

Prior to addressing the underlying merits of Edwards' motion at the subsequent hearing, the court told Edwards that pursuing the ineffective assistance of counsel claim on the merits now would preclude him in the future from filing a K.S.A. 60–1507 motion attacking the judgment “in that manner.” When asked whom the current motion would preclude him from later attacking, the court responded: “On Sullivan, but it will wrap up the whole issue. My understanding is you won't be able to file it with regard to anybody .” At that point, Edwards conferred with Cotton and Pittman, and Cotton told the court that Edwards now better understood what the court was trying to explain. Edwards withdrew his motion claiming ineffective assistance of counsel, stating that he wanted to preserve his ability to later file a K.S.A. 60–1507 motion. The court then appointed Cotton and Pittman to continue to represent Edwards throughout his remaining hearings. Edwards was sentenced to a controlling prison term of 247 months—the “aggravated” range in the sentencing grid. Edwards timely appealed.

Analysis

1. Edwards' Requests for a New Competency Evaluation

Edwards argues the district court erred when it twice denied defense counsel's request for a new competency evaluation on the eve of trial.

Courts presume a criminal defendant is competent to stand trial. The party who raises the issue of competence to stand trial has the burden of going forward with the evidence, and the burden of proof is the preponderance of the evidence standard. State v. Barnes, 293 Kan. 240, 256, 262 P.3d 297 (2011) (citing State v. Cellier, 263 Kan. 54, Syl. ¶ 4, 6, 948 P.2d 616 [1997] ).

Appellate courts review the district court's decision that a defendant is competent to stand trial under an abuse of discretion standard. Barnes, 293 Kan. at 255 (citing State v. Hill, 290 Kan. 339, 366–67, 228 P.3d 1027 [2010] ). Judicial discretion is abused if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. 293 Kan. at 255–56. “Arbitrary, fanciful, or unreasonable” means no reasonable person would have taken the action of the trial court. State v. Sellers, 292 Kan. 117, 124, 253 P.3d 20 (2011).

K.S.A. 22–3301(1) provides the definition of incompetency to stand trial: “[A] person is ‘incompetent to stand trial’ when he [or she] is charged with a crime and, because of mental illness or defect is unable: (a) To understand the nature and purpose of the proceedings against him [or her]; or (b) to make or assist in making his [or her] defense.”

Kansas' incompetency standard is in accord with Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), in which the United States Supreme Court held that a criminal defendant may not be tried unless he or she has sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him or her. State v. Harkness, 252 Kan. 510, Syl. ¶ 2, 847 P.2d 1191 (1993); see Barnes, 293 Kan. at 256. If the defendant passes this threshold, he or she is deemed sane for the purpose of being tried, although his or her mind may be deranged or unsound on another subject. State v. Shopteese, 283 Kan. 331, 341, 153 P.3d 1208 (2007) (citing Van Dusen v. State, 197 Kan. 718, 722–25, 421 P.2d 197 [1966] ). A defendant is not deemed incompetent to stand trial merely because he or she has received or needs to receive psychiatric treatment. Harkness, 252 Kan. at 516.

K.S.A.2011 Supp. 22–3302(1) allows the court to hold a competency hearing:

“At any time after the defendant has been charged with a crime and before pronouncement of sentence, the defendant, the defendant's counsel or the prosecuting attorney may request a determination of the defendant's competency to stand trial. If, upon the request of either party or upon the judge's own knowledge and observation, the judge before whom the case is pending finds that there is reason to believe that the defendant is incompetent to stand trial the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant.”
Additionally, the court may order a psychiatric or psychological examination of the defendant. K.S.A.2011 Supp. 22–3302(3).

Edwards argues the court should have ordered a new competency evaluation because it was “clear” that Edwards' mental health had changed significantly since the Larned evaluation in August 2010. In support of this argument, Edwards cites to his documented mental health history and his self-reported claims of auditory and visual hallucinations. Edwards maintains the court simply was not qualified to determine whether he was suffering from hallucinations.

But the court did not deny Edwards' request for a new competency evaluation based on a finding that Edwards was not suffering from hallucinations. Instead, the court denied the request based on a finding that Edwards had failed to establish he was incompetent as defined by K.S.A. 22–3301(1). Significantly, the court's decision in this regard was not hasty. To the contrary, the court conducted two hearings on the issue, heard testimony, reviewed Edwards' previous competency evaluation, reviewed the COMCARE report, and observed Edwards' behavior in the courtroom. In reaching its conclusion that a new competency evaluation was not necessary, the court made detailed findings. And, even if the court took Edwards' hallucinations at face value, there was plenty of evidence suggesting that Edwards understood the nature and purpose of the proceeding and could assist in his own defense. See K.S.A. 22–3301(1); Shopteese, 283 Kan. at 341. Edwards appeared to be making coherent, appropriate statements to counsel, and the Larned report suggested a history of deceitfulness—including possibly feigning a psychotic disorder. Under these circumstances, the district court's decision was neither arbitrary nor unreasonable. The court did not abuse its discretion when it denied Edwards' requests for a new competency evaluation on the eve of trial.

2. Edwards' Request to Terminate Sullivan's Representation Due to Ineffective Assistance of Counsel

After his plea, but before sentencing, Edwards filed a pro se motion asking the court to terminate Sullivan and appoint a new attorney to represent him. In support of this request, Edwards alleged Sullivan had provided him with ineffective assistance of counsel by ignoring his trial strategy directives, withholding evidence, sabotaging his defense, and lying to him. The court appointed new counsel, Cotton and Pittman, to represent Edwards for purposes of the motion. At the subsequent hearing on the motion, Edwards withdrew his ineffective assistance of counsel claim related to Sullivan. Edwards contends his decision to withdraw the claim was based solely on the fact that the district court told him at the hearing that if he proceeded with it, he would be prohibited from raising a K.S.A. 60–1507 ineffective assistance of counsel motion against anyone else in the future. On appeal, Edwards maintains this information provided by the district court was erroneous as a matter of law and, because he relied on it to his detriment, this court should remand the cause with directions for the district court to reconsider his ineffective assistance of counsel claim against Sullivan. To the extent that this issue involves interpretation of K.S.A. 60–1507, appellate courts have unlimited review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). In a K.S.A. 60–1507 proceeding, the court is not required to “entertain a second or successive motion for similar relief on behalf of the same prisoner.” K.S.A. 60–1507(c); see also Supreme Court Rule 183(d) (2011 Kan. Ct. R. Annot. 260) (court shall not entertain second or successive motion on behalf of same prisoner “where [1] the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, [2] the prior determination was on the merits, and [3] the ends of justice would not be served by reaching the merits of the subsequent application”). The prohibition against successive motions under K.S.A. 60–1507(c) bars both claims raised in prior motions and claims that could have been raised in prior motions. Toney v. State, 39 Kan.App.2d 944, 948, 187 P.3d 122, rev. denied 287 Kan. 769 (2008) (citing Dunlap v. State, 221 Kan. 268, 269–70, 559 P.2d 788 [1977] ).

Pursuant to K.S.A. 60–1507 then, Edwards would have been prohibited from raising another ineffectiveness claim against Sullivan at a later date had he gone forward with his claim of ineffective assistance of counsel against Sullivan at the motion hearing. Going forward with his claim against Sullivan at that time, however, would not have prohibited Edwards from raising an ineffectiveness claim against Cotton, Pittman, his appellate counsel, or any other attorney representing him in the case as it went forward, because those attorneys had not yet represented him. For this reason, we agree with Edwards that the court provided him with erroneous information regarding his claim of ineffective assistance of counsel.

Nevertheless, the court's error in this regard has no bearing on the issue presented by Edwards in this appeal. This is because the ineffective assistance claim was asserted in the context of Edwards' request to terminate Sullivan and appoint new counsel for him. Prior to the hearing, the court appointed new counsel to represent Edwards for purposes of the motion. After Edwards decided to withdraw his assertions of ineffective assistance of counsel against Sullivan, the court appointed Pittman and Cotton to continue to represent Edwards throughout his remaining hearings. In so doing, the court provided the precise relief requested by Edwards in the first place—removing Sullivan from the case and appointing him a new attorney. Because the court granted Edwards the relief he requested, we conclude remanding the cause for Edwards to present evidence in support of his request to terminate Sullivan and appoint new counsel would serve no legal purpose. We note—as Edwards does in his brief—that because our conclusion in this regard renders Edwards' claim moot, a timely claim of ineffective assistance of counsel against Sullivan or any other attorney representing him in this case will not be barred by K.S.A. 60–1507.

3. Criminal History Score Finally, Edwards argues that the district court erred by (1) using his criminal history to calculate his criminal history score and enhance his sentence without requiring the prior convictions to be proven to a jury beyond a reasonable doubt and (2) sentencing him to the aggravated sentence in the grid box without proving any aggravating factors to a jury beyond a reasonable doubt. Edwards concedes that our Supreme Court denied similar claims in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), and State v. Johnson, 286 Kan. 824, Syl. ¶ 5, 190 P.3d 207 (2008). Nonetheless, Edwards wants to preserve these issues for federal review.

In Ivory, our Supreme Court held that the use of criminal history scores is not unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Ivory, 273 Kan. at 46–47. Additionally, our Supreme Court rejected the argument that prior convictions should be treated as essential elements to be presented and decided by a jury. 273 Kan. at 47.

In Johnson, our Supreme Court concluded a sentencing court does not violate Apprendi or Cunningham v. California, 549 U .S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), by sentencing a defendant to the “longest term in the presumptive grid block.” Johnson, 286 Kan. at 851–52. Moreover, appellate courts have no jurisdiction to consider an appeal of a sentence that falls within the presumptive sentencing grid block. 286 Kan. at 851–52; see K.S.A.2011 Supp. 21–6820(c). Because the district court sentenced Edwards to the presumptive sentence for his crimes, this court lacks jurisdiction to consider an appeal of his sentence.

The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, unless there is some indication that the court is departing from its previous position. State v. Jones, 47 Kan.App.2d 512, 528, 276 P.3d 804 (2012). There is no indication that our Supreme Court is departing from its decision in either Ivory or Johnson. See, e.g., State v. Deal, 293 Kan. 872, 890–91, 269 P.3d 1282 (2012); Barnes, 293 Kan. at 265; State v. McCaslin, 291 Kan. 697, 730–32, 245 P.3d 1030 (2011). Therefore, the district court did not err when it used Edwards' prior convictions to enhance his guidelines sentence and imposed the highest presumptive sentence without proving aggravating factors to a jury.

Affirmed.