Opinion
No. 105,594.
2012-06-29
STATE of Kansas, Appellee, v. Eric B. RIVERA, Appellant.
Appeal from Sedgwick District Court; David J. Kaufman, Judge. Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; David J. Kaufman, Judge.
Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MALONE and MCANANY, JJ.
MEMORANDUM OPINION
PER CURIAM:
Eric B. Rivera appeals from his jury trial conviction of aggravated battery. On appeal, Rivera argues that the trial court erred when it included three of his juvenile adjudications in his criminal history score. We disagree. Accordingly, we affirm.
Facts
On May 18, 2009, Rivera was charged with one count of aggravated battery. Rivera's case proceeded to a trial by jury where he was found guilty of the one count of aggravated battery. Rivera's presentence investigation report indicated that he had a criminal history score of A. Rivera's criminal history score was based in part on two juvenile adjudications for person felonies and one juvenile adjudication for a nonperson felony.
Rivera filed a written objection to the inclusion of these three adjudications in his criminal history score. In Rivera's written objection, he argued that the juvenile adjudications should not have been included in his criminal history score because those adjudications were “constitutionally infirm.” Specifically, Rivera argued that his constitutional rights were violated because he “was not informed of the sentencing alternatives the trial court could [have] impose[d] before his plea.” Thus, Rivera argued that his criminal history score should have been D instead of A.
Rivera also apparently filed a motion to withdraw plea in his three juvenile adjudications. At Rivera's original sentencing hearing, the trial court continued sentencing to give him an opportunity to file a motion to withdraw his juvenile adjudications. Although a journal entry is not included in the record on appeal, it seems that Rivera's motion to withdraw his plea in each of the three juvenile adjudications was denied. At Rivera's sentencing hearing, the trial court expressly stated that Rivera's motion to withdraw pleas had been denied. The trial judge declared:
“I won't reiterate the record other than to say that I gave [Rivera's counsel] again leave of court to pursue that matter in Juvenile court.... In any event, those motions, as I understand it, were denied in Juvenile court, the motion to withdraw pleas, and that brings us still to sentencing;”
Rivera's counsel confirmed the trial court's statement that Rivera's motion to withdraw pleas in his three juvenile cases had been denied. Rivera's counsel stated that “[m]otions to withdraw the pleas in the Juvenile court were overruled.”
At sentencing, the trial court ruled that the juvenile adjudications were properly included in Rivera's criminal history score. The trial court sentenced Rivera to a controlling term of 154 months in prison.
Although Rivera filed a notice of appeal after the juvenile court denied his motion to withdraw juvenile pleas, the trial court later dismissed those appeals because of Rivera's failure to comply with Supreme Court Rule 5.051 (2011 Kan. Ct. R. Annot 36).
Standard of Review
Objections to criminal history require interpretation of the Kansas Sentencing Guidelines Act, K.S.A. 21–4701 et seq. Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Jolly, 291 Kan. 842, 845–46, 249 P.3d 421 (2011).
Criminal History
Rivera argues that the trial court erred in including the three juvenile adjudications in his criminal history score. In particular, Rivera argues that the three juvenile adjudications should not have been used to increase his sentence because he “was not properly informed of his constitutional rights.” Rivera maintains that he was not informed of his constitutional rights because the juvenile court did not inform him of the charges against him. The State disagrees and argues that Rivera's argument fails because our Supreme Court precedent allows a defendant to collaterally attack prior convictions used for sentencing only when the previous convictions involve a denial of counsel.
To support his position, Rivera relies on In re P.L.B., 40 Kan.App.2d 182, 190 P.3d 274 (2008). In relying on In re P.L.B., Rivera makes the following argument:
“The position of the Defendant is supported by the case of In Re: P.L.B. The court stated a juvenile should be told the sentencing alternatives for a plea to be constitutionally valid and to not do so is an abuse of discretion. The Defendant was not informed in any of the three cases of his sentencing alternatives.”
Rivera's argument is misplaced, and we look to this court's recent decision of State v. Chavez–Aguilar, Nos. 103,878, 103,929, 2011 WL 6382742 (Kan.App.2011) (unpublished opinion), for guidance.
In Chavez–Aguilar, our court held that the trial court abused its discretion in denying the defendant's motion to withdraw his juvenile plea. Chavez–Aguilar, 2011 WL 6382742, at *12. In reaching its decision, the Chavez–Aguilar court relied on In re P.L.B. The court reasoned:
“To be constitutionally valid, a guilty plea must be knowingly and intelligently made with sufficient awareness of the circumstances and consequences of the plea.' [In re P.L.B.,] 40 Kan.App.2d at 192, 190 P.3d 274. [Citation omitted.] ...
“... The district court's failure to inform Chavez–Aguilar of the possible sentencing alternatives as required under K.S.A. 38—1633(b)(6) can be considered harmless error only if the record as a whole affirmatively shows that the plea was fairly and knowingly made. Trotter, 218 Kan. at 269, 543 P.2d 1023. Here, the record on appeal is insufficient for this court to make such a finding. Given the constitutional concerns involved and the fact that the record is void of any indication whatsoever that Chavez–Aguilar in fact understood the possible sentencing alternatives at the time of his juvenile plea, we must conclude that the district court abused its discretion in denying his motion to withdraw plea.” Chavez–Aguilar, 2011 WL6382742, at *10–12.
Even though Chavez–Aguilar seems to support Rivera's argument that the trial court erred when it included the three juvenile adjudications in his criminal history score because he was not informed of the possible sentencing alternatives, this case is easily distinguishable from Chavez–Aguilar.
In Chavez–Aguilar, the defendant directly attacked his juvenile adjudications by filing a motion to withdraw plea. Chavez–Aguilar. After his motion was denied, the defendant timely appealed the denial, and the juvenile appeal was consolidated with his criminal appeal. Thus, the defendant was not collaterally attacking his juvenile adjudication.
Unlike Chavez–Aguilar, where the defendant directly attacked his juvenile adjudication, Rivera is not directly attacking his juvenile adjudications in this case. Although Rivera moved to withdraw his pleas in his three juvenile cases and appealed from the trial court's denial of those motions, his appeals were later dismissed for failure to comply with Supreme Court Rule 5.051. Thus, Rivera's motions to withdraw are not before this court, which means that he is collaterally attacking his juvenile adjudications. The State correctly points out that our Supreme Court precedent allows a defendant to collaterally attack previous convictions used for sentencing only when the defendant was denied counsel. See State v. McDonald, 272 Kan. 222, 226, 32 P.3d 1167 (2001); State v. Delacruz, 258 Kan. 129, 137–39, 899 P.2d 1042 (1995). Here, Rivera was represented by counsel in all three of his juvenile adjudications. Therefore, he may not collaterally attack his juvenile adjudications. Consequently, Rivera's argument must fail.
For the foregoing reasons, the trial court did not err in including the three juvenile adjudications in Rivera's criminal history score.
Affirmed.