Opinion
No. 107,189.
2012-11-21
STATE of Kansas, Appellee, v. Samuel QUAKENBUSH, Appellant.
Appeal from Pottawatomie District Court; Jeffrey R. Elder, Judge. Troy V. Huser, of Huser Law Offices, P.A., of Manhattan, for appellant. Jason B. Oxford, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Pottawatomie District Court; Jeffrey R. Elder, Judge.
Troy V. Huser, of Huser Law Offices, P.A., of Manhattan, for appellant. Jason B. Oxford, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is Samuel Quakenbush's direct appeal of his conviction and sentence of one count of driving under the influence of alcohol (DUI), fourth offense.
Quakenbush argues the district court erred in denying his motion to dismiss the case on statutory speedy trial grounds. Because we agree with his contentions, we need not reach his second issue on appeal that the district court erred in failing to retroactively apply the lookback provisions of K.S.A.2011 Supp. 8–1567(j)(3).
There is no dispute concerning the facts and legal proceedings in this case which will be briefly set forth.
On or about August 23, 2009, Quakenbush crashed his motorcycle while driving along a road in Turtle Creek State Park, which straddles Riley and Pottawatomie Counties. The responding officer suspected Quakenbush had been drinking and asked him to perform field sobriety tests which Quakenbush refused.
The officer, who at that time, believed the accident happened in Riley County, arrested Quakenbush and transported him to the Riley County Police Department in Manhattan. At the station, Quakenbush performed two field sobriety tests and submitted to an alcohol breath test. He evidenced several clues of impairment during the field sobriety tests and had a blood alcohol concentration of .248.
Quakenbush was charged in Riley County with DUI under K.S.A.2009 Supp. 8–1567(a) and was arraigned on April 5, 2010. Sometime later, the officer who responded to Quakenbush's motorcycle accident returned to the accident scene to determine which county the accident had actually occurred. Using a GPS device and G15 coordinates from both counties, the officer determined the accident was in Pottawatomie County, not in Riley County.
At some point, the State moved to dismiss the Riley County case. There was no reason for the dismissal stated in the motion and apparently no hearing was held on the motion. On June 17, 2010, the Riley County case was dismissed with no reason for the dismissal set forth in the court's order.
On October 28, 2010, Quakenbush was charged in Pottawatomie County with DUI under K.S.A.2009 Supp. 8–1567(a) based on the August 23, 2009, incident. He was arrested and released on an appearance bond. He was arraigned in Pottawatomie County on the DUI charge. On February 28, 2011, he again pled not guilty and the case was scheduled to go to trial on May 20, 2011. The trial date was later rescheduled for July 6, 2011, with the agreement that the State would be charged with the time delay for speedy trial purposes.
Shortly before the trial date on July 1, 2011, Quakenbush filed a motion to dismiss the DUI charge in Pottawatomie County based on a claimed violation of the speedy trial statute, K.S.A. 22–3402. He argued because the State had dismissed the Riley County case without a showing of necessity and then refiled an identical DUI charge in Pottawatomie County, the two time periods were aggregated for speedy trial purposes. According to his calculation, 73 days were chargeable to the State in the Riley County case (arraignment on April 5, 2010, to dismissal on June 17, 2010) and 128 days were chargeable to the State in the Pottawatomie County case (arraignment on February 28, 2011, to trial on July 6, 2011) for a total of 201 days which is over the statutory limit of 180 days.
Just before the scheduled trial on July 6, 2011, the district court held a hearing on Quakenbush's motion to dismiss.
Quakenbush again argued the State had made no showing of necessity at the time it moved to dismiss the Riley County case. He also contended the two DUI charges were identical, notwithstanding the fact each charge alleged the DUI had taken place in a different county because under K.S.A. 22–2604, the State was authorized to prosecute the case in either county.
The State asserted that K.S A. 22–2604 was not applicable because the evidence at trial would show the accident happened in Pottawatomie County. Thus, the showing of necessity could be inferred even though an actual finding had not been made. It was also argued that the two DUI charges were not identical because jurisdiction is an essential element of all criminal offenses and each charge was alleged to have occurred in a different jurisdiction.
The district court ruled the State had failed to show necessity in the dismissal of the Riley County case, but it overruled Quakenbush's motion on the basis that the two DUI charges were not identical.
The case proceeded to trial on the merits, and the district court convicted Quakenbush on the DUI charge. After motions and hearings on the issue of a statutory change and the number of Quakenbush's prior DUI charges, he was sentenced based on the penalties applicable to a DUI conviction, fourth offense. He has timely appealed.
Both parties on appeal make essentially the same arguments they made to the district court. Quakenbush argues that the district court should have aggregated the time lapsed in the two separate cases for speedy trial purposes because the State failed to make a showing of necessity at the time it moved to dismiss the Riley County case and because the accident happened so close to the counties' shared boundary that under K.S.A. 22–2604 it could have been prosecuted in either county. He says the two charges are identical prosecutions of DUI under K.S.A.2009 Supp. 8–1567(a). The State contends its showing of necessity should be inferred from the responding officer's testimony at the bench trial that he initially thought the accident had occurred in Riley County but later determined it was actually in Pottawatomie County. The State also contends that jurisdiction is an essential element of every criminal offense and, thus, the two DUI charges were not identical for speedy trial purposes where each charge alleged a different jurisdiction.
Whether there has been a violation of the statutory right to a speedy trial is a matter of law, which an appellate court reviews de novo. State v. Thomas, 291 Kan. 676, 692, 246 P.3d 678 (2011).
K.S.A. 22–3402, the speedy trial statute, states in relevant part:
“(2) 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 on the crime charged, unless the delay shall happen as a result of the application or fault of the defendant.”
Our Supreme Court has held that “[a]bsent a showing of necessity, the state cannot dismiss a criminal action and then refile identical charges against the same defendant and avoid the time limitations mandated by the [speedy trial] statute.” State v. Cuezze, Houston & Faltico, 225 Kan. 274, 278, 589 P.2d 626 (1979). Applying this rule, Kansas appellate courts have found that in situations where the State has filed a charge, dismissed it, and then filed another charge, the statutory speedy trial clock starts over in the second case if either the State dismissed the first case on a showing of necessity or where the charge in the second case is not identical to the previously dismissed charge.
But, if the first case is not dismissed on a showing of necessity and the charge in the first case is identical to the charge in the second case, then the days counted against the State in both cases will be aggregated for purposes of determining whether there has been a statutory speedy trial violation. State v. Gill, 48 Kan.App.2d 102, ––––, 283 P.3d 236 (2012) (citing State v. Smallwood, 264 Kan. 69, 75, 955 P.2d 1209 [1998];State v. Jamison, 248 Kan. 302, 304, 806 P.2d 972 [1991];State v. Ransom, 234 Kan. 322, Syl. ¶ 1, 673 P.2d 1101 [1983],cert. denied469 U.S. 818, 105 S.Ct. 88, 83 L.Ed.2d 34 [1984] ).
The State does not question Quakenbush's time calculation of 201 days if the two cases are aggregated. Thus, we must determine if necessity was shown by the facts and more importantly, whether the two DUI charges were identical. Showing of necessity
We agree with the district court's finding that necessity was not shown based only on the fact the case was first filed in Riley County where the accident was thought to have occurred, but later dismissed and charged in the adjoining county based on a later computation. Caselaw clearly holds that the State's showing of necessity must be made at the time of dismissal, not at a later time. See, e.g., Jamison, 248 Kan. at 304 (stating that “the issue we must consider is whether the State made a showing of necessity at the time of the dismissal.” (Emphasis added.)
There was no showing of necessity for the dismissal in either the motion or the order dismissing the Riley County charge. There is no showing of necessity in these cases. Identical charges
Since the State did not make a showing of necessity at the time the Riley County case was dismissed, the district court's refusal to aggregate the days chargeable to the State in the two cases will be upheld only if the Riley County DUI charge was not identical to the Pottawatomie County DUI charge. Both DUI charges were brought under K.S.A.2009 Supp. 8–1567(a)(2) or (3); the only distinction between the two charges is the county in which the DUI was alleged to have occurred.
Thus, we must determine if this distinction renders the two charges nonidentical for purposes of aggregation under the speedy trial statute. In answering that question, it is helpful to set forth the statute under which Quakenbush was charged as well as the venue related provision which would have allowed Quakenbush to be charged in either county.
First, the applicable language of K.S.A.2009 Supp. 8–1567(a)(2) and (3) reads as follows:
“(a) No person shall operate or attempt to operate any vehicle within this state while: ...
(2) the alcohol concentration in the person's blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more;
(3) under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle.”
Next, K.S.A. 22–2604 provides: “Where a crime is committed on or near the boundary of two or more counties that it cannot be readily determined in which county the crime was committed, the prosecution may be in any of such counties.”
The State reasons in its brief that once the district court heard the trial testimony and found beyond a reasonable doubt that the DUI occurred in Pottawatomie County, it became clear that jurisdiction never existed in Riley County and, therefore, the charges could never be considered to be identical.
Quakenbush counters that because two of the officers thought the violation occurred in Riley County and one officer thought it was in Pottawatomie County, it could have been filed in either county under K.S.A. 22–2604, and the refiling was factually and legally the same charge.
There is little direct authority in Kansas on the question of whether the change of the county in a complaint or information has the effect of changing the underlying violation. Logical arguments can and have been made both ways, but it is hard to deny the fact that the underlying DUI charge never varied.
The question of whether identical charges were involved was considered by our Supreme Court in State v. Smallwood where there were two cases. In the first, the defendant was charged with one count of second-degree murder in relation to the death of his infant son. The defendant was arraigned on the charge and agreed to waive his statutory speedy trial rights, but the case was apparently never brought to trial. Sixteen months later, the State filed a second case charging the defendant with felony murder based on the same underlying facts. Shortly thereafter, the first case was dismissed. The second case went to trial, and the defendant was convicted of felony murder. On appeal, the defendant argued that his statutory speedy trial rights were violated in the second case because the State had filed more serious charges against him to avoid the running of the speedy trial deadline in the first case. Our Supreme Court summarily rejected his argument, stating that “the State did not file the identical charges in the second case to avoid the time limitation imposed by the statute; it charged more serious crimes in the second complaint.” 264 Kan. at 75.
Smallwood is not helpful in our case because these different crimes were clearly charged.
Although the recent appeal in State v. Rivera, 42 Kan.App.2d 1005, 219 P.3d 1231,rev. denied 290 Kan. 1102 (2010), centered on an objection to the usage of an instruction based on K.S .A. 22–2604, the opinion by Judge Leben has some applicability to our case in its discussion as to whether the elements of the crime of rape include the location where the crime is allegedly committed.
Rivera was charged with two separate rapes, one in rural Kingman County, and one at a residence in Kingman. The element instruction for the alleged rural rape followed PIK Crim.3d 57.01 and included paragraph 3 which stated: “That this act occurred on or about the 26th day of August, 2002, in Kingman County, Kansas.” Because the victim's testimony as to where the rural rape occurred was tenuous, the court also gave, over the defendant's objection, an instruction patterned on K.S.A. 22–2604 which told the jury that if it couldn't be determined where a crime near a county boundary had occurred, the State could prosecute the case in either county.
After being convicted of both rapes, the defendant on appeal argued the instructions relating to the rural rape were so contradictory and confusing that it relieved the State of its burden of proof that the rape took place in Kingman County.
Although our Court ultimately affirmed the convictions, the portion of the opinion of interest to our case is where, in response to Rivera's argument, the court noted that the last sentence of the PIK Crim.3d 57.01 element instruction—“That the crime took place in Kingman County, Kansas”—does not accurately state that it is an element of the crime reasoning: “Crimes are defined in Kansas by the legislature, and it has defined rape in K.S.A. 21–3502. That statute contains no required element regarding where the crime took place.” 42 Kan.App.2d at 1008. The Rivera opinion continues:
“Beyond the elements, though, two other requirements are key to prosecuting someone for a crime: jurisdiction and venue. The court must have personal jurisdiction over the defendant and subject-matter jurisdiction over the crime. And venue must be proper, meaning that the case is being tried in the correct court....
“Like many states, Kansas has a venue-related provision in its state constitution. Section 10 of the Bill of Rights of the Kansas Constitution provides that the accused in a criminal case is entitled to ‘a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.’ Since Kansas selects jurors from within each county, the net result is that unless the defendant waives this right, see, e.g., K.S.A. 22–2616, a defendant's trial must occur in the county in which the crime was committed. See Addington v. State, 199 Kan. 554, 559–60, 431 P.2d 532 (1967). That rule has also been placed in a statute, K.S.A. 22–2602, which requires that a case be prosecuted ‘in the county where the crime was committed’ unless otherwise provided by law.
“But that rule is subject to some exceptions. One such exception is found in K.S.A. 22–2603, which allows the trial in either of two counties when two or more acts are required to commit an offense and at least one of them occurs in each county.... Our Supreme Court has also noted that exceptions like the ones found in K.S.A. 22–2603 and K.S.A. 22–2604 are based on the common-sense notion that a criminal should not escape punishment because the crime's exact location was concealed. State v. Grissom, 251 Kan. 851, 889, 840 P.2d 1142 (1992).
“These venue provisions are considered jurisdictional in Kansas. Thus, ‘the prosecution of an accused, over his objection, in a local jurisdiction other than that fixed by the legislature is void.’ Addington, 199 Kan. 554, Syl. ¶ 11. Other decisions have referred to the proof of the proper venue for trial as a jurisdictional fact that must be proved by the State in every case, a fact that the jury must determine. [Citations omitted.]” 42 Kan.App.2d at 1008–10.
Quakenbush did not object to his prosecution in Riley County having pled not guilty when arraigned and was apparently prepared to contest the charges there prior to the State's dismissal.
The effect of the language of Rivera cuts both ways. Quakenbush can argue that other than requiring the defendant to be operating a vehicle in Kansas, K.S.A.2009 Supp. 8–1567(a)(2) and (3) make the two charges in our case identical as the venue of the crime is not an element.
The State, on the other hand, argues that under Addington, the prosecution of Quakenbush in Riley County would be void and, thus, the dismissal was required which necessitated the prosecution move to Pottawatomie County. This argument, however, is subject to Quakenbush's counter that K.S.A. 22–2604 is a lawful venue exception and there was no valid reason why the case should not have continued in Riley County.
Thus, Rivera, interesting, instructive, and helpful, does not in the final analysis answer the question we must determine.
In the absence of conclusive authority, it may be reasonable to look to the analytical framework used by Kansas courts when addressing a multiplicity issue. The doctrine of multiplicity prohibits the charging of a single offense in several counts of a complaint or indictment. The doctrine arose from concerns that such charging practice creates the potential for multiple punishments for a single offense which is prohibited by the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. State v. Thompson, 287 Kan. 238, 244, 200 P.3d 22 (2009).
In State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), our Supreme Court set forth the analytical framework for considering a double jeopardy issue. In the context of a multiplicity analysis, the overarching inquiry is whether the multiple charges are for the same offense. There are two components to this inquiry: (1) Do the charges arise from the same conduct? and (2) By statutory definition, are there two offenses or only one? See 281 Kan. at 496. Under the first component, the court decides whether the conduct is discrete ( i.e., committed separately and severally) or unitary ( i.e., same act or transaction). If discrete, there is no multiplicity violation. If unitary, the second component must be analyzed. 281 Kan. at 496–97.
Under the second component, two different tests apply depending on whether the multiple charges are made under the same statute or multiple statutes. If under the same statute, court applies a unit of prosecution test: how has the legislature defined the scope of conduct which will comprise one violation of the statute? There can only be one charge for each allowable unit of prosecution. But if the charges are brought under different statutes, the court applies a same elements test: does one statute require proof of an element not necessary to prove the other offense? If so, the statutes do not define the same conduct and there is no multiplicity problem. See 281 Kan. at 497–98.
Applying this analytical framework to the present case, the Riley County DUI charge and the Pottawatomie County DUI charge clearly arose from unitary conduct—Quakenbush's alleged drunk driving and motorcycle accident in Tuttle Creek State Park on August 23, 2009. Given the unique procedural posture of this case, it is less clear which test to apply under the second component. Although both the Riley County DUI charge and the Pottawatomie County DUI charge were brought under K.S.A.2009 Supp. 8–1567(a), the unit of prosecution test appears to be inapplicable because the State never charged Quakenbush with two or more separate violations of the same statute arising out of the same conduct. Thus, it is more logical to apply the same elements test.
The State argues in essence that the Riley County DUI charge and the Pottawatomie County DUI charge did not have the same elements because one required the State to prove that the offense occurred in Riley County and the other required the State to prove that the offense occurred in Pottawatomie County. The State's argument rests on the flawed presumption that jurisdiction is an essential element in every criminal offense. This is not correct. As we have shown in the analysis of Rivera, that while the State is required to prove jurisdiction and venue in every criminal case, jurisdiction and venue are not, strictly speaking, elements of every criminal case. 42 Kan.App.2d at 1008–1010; see also State v. Womelsdorf, 47 Kan.App.2d 307, 316, 274 P.3d 662 (2012), petition for rev. filed May 10, 2012.
Under the same elements test, the Riley County DUI charge and the Pottawatomie County DUI charge were brought under the same statute and have the exact same elements. It is irrelevant that the State would have been required to prove a different jurisdiction under each charge because jurisdiction and venue are not elements of a DUI offense. Thus, the two DUI charges were “identical charges” for the purpose of aggregation under the speedy trial statute.
The State did not make a showing of necessity at the time the Riley County DUI charge was dismissed. Further, because the two DUI charges were identical charges, the district court erred in refusing to aggregate the time chargeable to the State for statutory speedy trial purposes. Quakenbush was not brought to trial within the statutorily required 180 days.
Quakenbush's DUI conviction is reversed, and the sentence thereunder is vacated.