Opinion
No. 110,874.
2014-10-24
John BAKER, Appellant, v. STATE of Kansas, Appellee.
Appeal from Reno District Court; Joseph L. McCarville III, Judge.Shannon S. Crane, of Hutchinson, for appellant.John Baker, appellant pro se.
Appeal from Reno District Court; Joseph L. McCarville III, Judge.
Shannon S. Crane, of Hutchinson, for appellant. John Baker, appellant pro se.
Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
John D. Baker appeals the district court's summary dismissal of his motion for writ of habeas corpus filed pursuant to K.S.A. 60–1507. Baker's appellate counsel argues both trial and direct appeal counsel were ineffective for failing to raise the issue of the court's failure to poll the jury and trial counsel was ineffective for failing to secure the services of an expert chemist. In his pro se appellate brief, Baker reiterates the ineffective assistance of counsel argument for trial counsel's failure to secure an expert chemist. He also argues trial counsel failed to investigate and prepare for trial, failed to proffer evidence that Baker was forced to relinquish his right to self-representation, and if his case had not been continued he could have fallen into the window of cases receiving a reduced sentence.
The following facts were established in Baker's direct appeal:
“While on night shift patrol in Buhler on October 16, 2005, Buhler Police Officer Anthony Baldwin noticed a vehicle that he did not recognize traveling northbound on Buhler Road. Baldwin trailed the vehicle through the town for several blocks and observed it fail to stop at a stop sign. Baldwin turned on his emergency lights behind the vehicle, but it did not stop. The vehicle continued through Buhler and ran two additional stop signs. Baldwin activated his siren and followed the vehicle. Baldwin's citizen ride-along that night, Andrew Bryan, observed objects flying from the vehicle, but he could not discern what they were in the dark. Baldwin pursued the vehicle until it missed a curve in the road and ended up in a field.
“Baldwin ordered the driver, later identified as Baker, to the ground. Baker complied. Baldwin took him into custody and performed a pat-down search. During the course of the pat-down search, Baldwin felt a spatula in Baker's left back pocket. He also saw a bulge in Baker's front left pocket and discovered it to be a baggie containing white substance. On the front passenger-side floorboard, Baldwin observed a bottle of muriatic acid, a blue funnel, aluminum foil, and a jar containing white paper towels and lithium strips.
“Officers Paul Mendoza, Howard Shipley, and Robert Rowe responded to Baldwin's radio alert for assistance. The officers collected a number of items from the side of the roads that Baldwin and Baker had just traveled, including a small red fuel can with tubes sticking out of it, a tube connected to a 2–liter plastic pop bottle with another tube sticking out of it, unused coffee filters, more tubing, a yellow cap, a quart jar with a lid, two pill bottles, a water cooler, and a rearview mirror. None of the items appeared dusty or dirty. The officers also found a wallet containing three driver's licenses, a debit card, social security card, and an insurance card. Two of the licenses were for women, and the third was for John David Smith but had a photograph of Baker. The debit card had Baker's name. The officers sent the items to the Kansas Bureau of Investigation (KBI) for fingerprint testing; however, the fingerprint report indicated there were no identifiable fingerprints on the items.
“Reno County Sheriff Officer Shawn McClay conducted the book-in process for Baker. While conducting a search of Baker's person, McClay seized three small baggies from Baker's pockets. Subsequent KBI testing showed that at least one of the baggies contained methamphetamine.
“On November 4, 2005, the State charged Baker in No. 05CR907 with one count of manufacture of methamphetamine or in the alternative with one count of attempted manufacture of methamphetamine, possession of ephedrine or pseudoephedrine with the intent to manufacture a controlled substance, possession of lithium metal with the intent to manufacture a controlled substance, possession of drug paraphernalia with the intent to manufacture a controlled substance, possession of methamphetamine, and four counts of fleeing and eluding a police officer. All the charges arose from the incident on October 16, 2005. The State later amended the complaint to contain only one count of fleeing and eluding a police officer.
“On April 12, 2006, the State charged Baker in No. 06CR325 with possessing methamphetamine on April 4, 2006. The State later filed a motion to consolidate No. 05CR907 and No. 06CR325 for trial, and the district court granted the motion. On July 23, 2007, the day before the consolidated cases were scheduled for trial, Baker pled guilty as charged to one count of possession of methamphetamine in No. 06CR325.
“On July 24, 2007, the remaining charges against Baker proceeded to jury trial. Baldwin, Bryan, Shipley, Rowe, and McClay testified for the State. KBI chemist Harold Riddle and KBI forensic scientist Eric Moore also testified for the State. Baker did not testify. His primary argument at trial was that there was insufficient evidence to prove that he was attempting to manufacture methamphetamine.
“The jury acquitted Baker of manufacturing methamphetamine but found him guilty of attempted manufacture of methamphetamine, possession of ephedrine or pseudoephedrine with the intent to manufacture a controlled substance, possession of lithium metal with the intent to manufacture a controlled substance, possession of drug paraphernalia with the intent to manufacture a controlled substance, possession of methamphetamine, and fleeing and eluding a police officer.
“Prior to sentencing, Baker filed motions challenging his criminal history. One of Baker's objections was that his convictions in Nos. 05CR907 and 06CR 325 could not be counted against each other for criminal history purposes because the cases had been consolidated for trial. At sentencing on September 14, 2007, the district court overruled Baker's objections and found Baker had a criminal history score of C for No. 05CR907 and of B for No. 06CR325. The district court imposed the aggravated sentencing guidelines grid box number for each of Baker's convictions in No. 05CR907 and ordered him to serve each of the sentences consecutively, resulting in a total sentence of 242 months' imprisonment. For Baker's conviction in No. 06CR325, the district court imposed the standard grid box sentence of 34 months' imprisonment. The district court ordered the sentences in Nos. 05CR907 and 06CR325 to run consecutively to each other. Baker timely appealed.” State v. Baker, No. 99,353, 2010 WL 2216738 (Kan.App.2010) (unpublished opinion).
In his direct appeal, Baker argued:
1. The overt acts relied upon by the State to support the charge of attempted manufacture of methamphetamine constituted multiple acts to commit the crime requiring a unanimous jury verdict for each overt act;
2. The district court abused its discretion and violated Baker's constitutional right to present a defense when it refused to grant him a continuance for his attorney to obtain a chemical expert to analyze the evidence. Baker asserted that expert testimony was crucial to his defense to show that the powder evidence presented at trial was merely crushed pills, not actual pseudoephedrine extracted from pills;
3. The State repeatedly elicited testimony from KBI forensic chemist Harold Riddle that crushing pills containing pseudoephedrine, extracting pseudoephedrine from the pills, and removing lithium from batteries constituted the initial steps of manufacturing methamphetamine. Baker argued that Riddle's responses were comments on the ultimate issue of fact and that the State committed misconduct by eliciting the testimony. In his pro se brief, Baker also argued that prosecutorial misconduct occurred during the State's closing argument. Specifically, Baker asserts that the prosecutor referred to facts not in evidence, i.e., that the overt acts of extraction of ephedrine from pills and lithium from batteries occurred in Reno County;
4. The district court's decision to allow the State to admit the KBI fingerprint laboratory report completed by its fingerprint expert Holly Wassinger even though she was not present to testify at trial. Baker asserts that the district court's decision violated his Sixth Amendment right to confront witnesses against him;
5. His convictions of possession of ephedrine or pseudoephedrine with the intent to manufacture a controlled substance in violation of K.S.A.2005 Supp. 65–7006(a) and possession of lithium metal with the intent to manufacture a controlled substance in violation of K.S .A.2005 Supp. 65–7006(a) are multiplicitous under State v. Thompson, 287 Kan. 238, 251–52, 200 P.3d 22 (2009). The State conceded that the convictions were multiplicitous and that one of the sentences must be vacated;
6. The district court erred by not instructing the jury on possession of pseudoephedrine under K.S.A. 65–4113(f) as a lesser included crime of possession of pseudoephedrine with the intent to manufacture a controlled substance in violation of K.S.A.2005 Supp. 65–7006(a). As a matter of trial strategy, Baker decided not to request the instruction on the lesser included offense to avoid making intent an issue. Because Baker did not make intent an issue, the State did not seek to introduce K.S.A. 60–455 evidence of Baker's prior conviction of manufacturing methamphetamine;
7. Cumulative error;
8. The district court erred in calculating Baker's criminal history. Baker argued his juvenile adjudication in Rice County No. 90JV60 for burglary should not have been included in his criminal history as a person felony because there was no information whether the building was a dwelling;
9. The district court's decision denying funding for an expert witness caused him to forfeit his right to self-representation. Although Baker sought funds for an expert witness in the district court, Baker argued for the first time on appeal that the denial of his request caused him to forfeit his right to self-representation;
10. The district court improperly denied his two motions for a bill of particulars. He claimed he was blind-sided by the State's proposition at trial that he was on his way to an anhydrous ammonia station in Buhler when he was stopped by law enforcement officers. Because the district court had denied his requests for a bill of particulars, Baker argues he was at an unfair disadvantage to prepare a defense against the allegation; and
11. Apprendi.
The Baker court found both of Baker's convictions for possession of ephedrine or pseudoephedrine with the intent to manufacture a controlled substance and possession of lithium metal with the intent to manufacture a controlled substance could not stand. One conviction had to be vacated and Baker's sentence refigured. The court rejected all of Baker's other arguments and affirmed his remaining convictions. Additionally, at resentencing, the court ordered Baker's convictions in the consolidated cases could not be counted against each other for criminal history purposes. 2010 WL 2216738, at *13.
On November 17, 2011, Baker filed a petition for writ of habeas corpus pursuant to K.S.A. 60–1507 and alleged:
1. A violation of his right to a fair trial and unanimous verdict because the jury was never polled;
2. Ineffective assistance of counsel when trial counsel failed to retain and use a chemist to rebut the State's experts and testify Baker's actions did not constitute preparation of manufacturing methamphetamine, provide helpful consultation on Baker's defenses and production of legal substances, and insure a proper analysis was made of the substances tested;
3. Ineffective assistance of counsel when trial counsel failed to request the trial court poll the jury;
4. Ineffective assistance of counsel when trial counsel failed to file a motion for acquittal based on insufficient evidence;
5. Ineffective assistance of counsel when trial counsel failed to investigate, interview, call witnesses, or object to prosecutorial misconduct;
6. Ineffective assistance of counsel when trial counsel failed to order transcripts of the jury verdict;
7. Ineffective assistance of counsel when trial counsel failed to preserve the issue of whether Baker was deprived of his right to self-representation by not requiring the court to pay for a chemist expert;
8. Ineffective assistance of counsel when trial counsel failed to argue at sentencing that compounding is a more specific crime of manufacturing;
9. Ineffective assistance of appellate counsel for failing to address trial counsel's abandonment of the motion to continue the trial to retain an expert chemist witness;
10. Ineffective assistance of appellate counsel for failing to order a transcript of verdict and deliberation;
11. Ineffective assistance of appellate counsel for failing to raise the prosecutorial misconduct issue concerning the prosecutor's unsupported statements;
12. Ineffective assistance of appellate counsel for failing to raise a sufficiency of the evidence argument; and
13. The trial court abused its discretion in granting the continuances in violation of the timing provisions of the preliminary hearing statute.
The district court summarily dismissed Baker's K.S.A. 60–1507 motion. First, the court found Baker had a statutory right, not a constitutional right, to have the jury polled. The court stated Baker had never requested the trial court poll the jury and therefore he had waived that right. The court stated this claim was not made on direct appeal or that Baker argued his appellate court was ineffective for failing to raise the issue.
Second, the district court found the facts complained of by Baker—crushed pills, stripped batteries, proximity of aluminum foil, spatula in Baker's pocket—were all well within the knowledge and skill of jurors using common knowledge and experience and trial counsel was not ineffective for not securing a chemist expert witness.
The district court also held that a chemist expert was unnecessary to distinguish various isomers of methamphetamine because they are all illegal and trial counsel actually argued to the trial court that Baker should have been charged with compounding instead of attempted manufacturing methamphetamine. The court found there was no objection to the evidentiary complaint of the lax testing standards of the KBI and the decision to not call witnesses was within trial counsel's decision.
Last, the district court rejected Baker's claim that he was entitled to a unanimous verdict on the specific act in perpetration of the attempt charge. The court found Baker had no authority for that claim and concluded the instruction on overt acts provided to the jury was a correct statement of the law and court-approved. Consequently, it was not ineffective assistance for trial counsel to not object to the instruction and Baker was not denied a unanimous jury verdict.
Baker appeals.
We first turn to the issue of whether the district court erred in summarily dismissing Baker's K.S.A. 60–1507 motion without appointment of counsel or an evidentiary hearing.
When a district court is presented with a K.S.A. 60–1507 motion, the court may resolve the motion in one of three ways: summarily deny the motion; appoint counsel and hold a preliminary hearing to determine whether the issues raised are substantial before ruling on the motion; or appoint counsel and hold a full evidentiary hearing, transporting the movant to the hearing if the movant's presence is required. See Fischer v. State, 296 Kan. 808, 820–21, 295 P.3d 560 (2013). The manner in which the court disposes of the motion determines the appropriate standard of appellate review. See Bellamy v. State, 285 Kan. 346, 353–55, 172 P.3d 10 (2007). Where, as here, the district court summarily dismisses the motion without a hearing, appellate review is unlimited. Edgar v. State, 294 Kan. 828, 836, 283 P.3d 152 (2012).
Ineffective Assistance of Counsel
The majority of Baker's claims in this appeal concern allegations of ineffective assistance of counsel. To establish a claim of ineffective assistance of trial counsel, the defendant must prove that (1) counsel's performance was constitutionally deficient, which requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution; and (2) counsel's deficient performance prejudiced the defense, which requires a showing that counsel's errors were so severe as to deprive the defendant of a fair trial. State v. Cheatham, 296 Kan. 417, 431, 292 P.3d 318 (2013).
The first prong of the test requires the defendant to show that counsel's representation fell below an objective standard of reasonableness, considering all the circumstances of the case. Judicial scrutiny of counsel's performance must be highly deferential, with every effort made to eliminate the distorting effects of hindsight. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). Counsel's strategic choices based on a thorough investigation of the law and facts are virtually unchallengeable. Strategic choices based on a less than complete investigation are reasonable to the extent that reasonable professional judgment supports the limitation on the investigation. Cheatham, 296 Kan. at 437, 292 P.3d 318 (citing Strickland v. Washington, 466 U.S. 668, 690–91, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).
The second prong of the test requires the defendant to establish prejudice by showing there was a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the case. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Bledsoe, 283 Kan. at 90–91, 150 P.3d 868.
Failure to Poll the Jury
Baker's first claim of ineffectiveness involves the failure to poll the jury. He contends the trial court committed reversible error when it failed to inquire into the jury's verdict as required under K.S.A. 22–3421, trial counsel was ineffective for failing to object at trial, and appellate counsel was ineffective for failing to request a transcript of the verdict and raise the issue in Baker's direct appeal.
We exercise de novo review over issues of jury unanimity. State v. Dayhuff, 37 Kan.App.2d 779, 784, 158 P.3d 330 (2007).
K.S.A. 22–3421 establishes the procedure in a criminal case for the trial judge to accept a jury verdict. In short, this statute requires that the trial judge address the jury as a whole to determine whether the verdict read in open court is in fact the jury's verdict and then poll the jury individually should either party request that the jury be polled. See State v. Cheffen, 297 Kan. 689, 695, 303 P.3d 1261 (2013). Baker did not request the jury be polled, but on appeal questions the unanimity of the verdicts because there were several acts the State was relying upon to find he has committed an overt act and attempted to produce methamphetamine. Baker claims if the jury had been polled, it would have had the opportunity to express dissent with the verdict.
Baker's failure to raise this issue before the trial court is fatal to his claim in light of the Kansas Supreme Court's holding in Cheffen. In that case, before the verdict was read the trial judge confirmed whether the jury had reached a verdict. The presiding juror stated, “We have.” The trial judge then asked the remaining jurors, and the jurors collectively responded in the affirmative. The verdict was read, and the trial judge asked the attorneys if they had any motions to offer. The attorneys responded in the negative. The Cheffen court determined that consideration of such a question in a prejudice analysis necessarily involved factual review, holding:
“[T]he better rule is to require a party wishing to challenge the trial court's compliance with the procedures set out in K.S.A. 22–3421 for inquiring about a jury's verdict to have raised that issue first with the district court either in the form of a contemporaneous objection or posttrial motion.” 297 Kan. at 698, 303 P.3d 1261.
Because Cheffen did not make a contemporaneous objection or file a posttrial motion, our Supreme Court held that Cheffen had failed to preserve his issue for appellate review. 297 Kan. at 699, 303 P.3d 1261.
Baker failed to object at trial or file a post-trial motion concerning the trial court's failure to poll the jury. The Kansas Supreme Court, in State v. Brown, 298 Kan. 1040, 1056, 318 P.3d 1005 (2014), recently reaffirmed that holding in Cheffen. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Baker has failed to preserve this issue for appellate review.
As the State points out, in addition to the preservation issue, we are handicapped in trying to address this issue because of the lack of an adequate record. Without a transcript of the verdict, we are unable to know exactly what transpired when the jury presented its verdict and whether the trial court followed K.S.A. 22–3421. We will not speculate as to these events. As the petitioner for relief under K.S.A. 60–1507 and the appellant, Baker has the duty to proffer a complete record on all matters for which he seeks review because it is the appellant's burden to designate a record sufficient to support the claimed error(s). See Kelly v. VinZant, 287 Kan. 509, 526, 197 P.3d 803 (2008). Baker's failure is consequential. In the absence of such a record, we presume the district court acted properly. State v. Crum, 286 Kan. 145, 161, 184 P.3d 222 (2008).
Failure to Secure an Expert Chemist
Next, Baker and appellate counsel both argue it was ineffective assistance of counsel for trial counsel to not secure the services of an expert chemist. Baker argues an expert could have testified that the acts relied upon by the State were only preparation and not an overt act and that the powder substance was from crushed pills, not pseudoephedrine extracted from pills.
Baker contends it was essential for him to have an expert to counter the State's expert testimony of what constituted preparation versus an overt act. He claims jurors do not have the knowledge and experience to decide if the powder was from crushed pills or extracted pseudoephedrine, the former being merely preparation. Baker claims it is clear that an expert could have easily assisted the defense and altered the jury's verdict. Baker claims that since the State was allowed expert testimony because the information was beyond the jury's common knowledge, then it was clearly ineffective assistance of counsel when trial counsel failed to secure an expert on behalf of the defense. Baker also argues the chemist could have educated trial counsel that L–Methamphetamine (Baker claims Levo–Desoxyephedrine is synonymous with L–Methamphetamine) is exempt from the controlled substances statute and he could have legally possessed that substance. He also claims the expert could have testified as to the difference between compounding and manufacturing, and he could have been convicted of the lesser crime of compounding.
Under K.S.A. 60–456, the opinion testimony of experts on an ultimate issue is admissible only so far as the opinion will aid the jury in interpreting technical facts or understanding the material in evidence. An expert's opinion is admissible up to the point where expressing the opinion requires the expert to pass upon the credibility of witnesses or the weight of disputed evidence. State v. Bressman, 236 Kan. 296, Syl. ¶¶ 3, 5, 689 P.2d 901 (1984). Further, under K.S.A. 60–456(b), although the district judge controls expert opinion evidence that has the potential to unduly prejudice or mislead a jury or confuse the question at issue, it is generally preferred to allow the jury to resolve disputed evidence. Cross-examination, the submission of contrary evidence, and the use of appropriate jury instructions are the favored methods of resolving factual disputes. Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 461, 14 P.3d 1170 (2000).
Before expert testimony is admissible at trial under K.S.A. 60–456, the district court must consider two factors. First, the court must determine that the testimony will be helpful to the jury. Therefore, the information that the expert witness is testifying about must not be within the normal experiences and qualifications of a lay person serving as a juror. Second, the basis of the expert's opinion must be shown to be generally accepted as reliable within the expert's particular scientific field in order to be admissible. State v. McIntosh, 274 Kan. 939, 956, 58 P.3d 716 (2002).
The crushing of cold pills, the stripping of lithium metal out of batteries, possession of aluminum foil, and possession of a spatula on one's person are all facts within the common knowledge of the jurors. This is not a technical case where Baker was convicted of the manufacturing of methamphetarnine and the issues involved complex theories of whether the substance produced was methamphetamine or a precursor to actual methamphetamine. The State's expert chemist, Harold Riddle, testified as to the process of cooking methamphetamine and the materials needed for the process. It did not take expert testimony for the jury to understand the items involved in the process and then make the ultimate factual determination whether Baker was attempting to manufacture methamphetamine by committing an overt act in furtherance of the process.
In Baker's direct appeal, the court discussed whether the trial court should have given an instruction on a lesser included offense of mere possession of pseudoephedrine for personal use. The Baker court stated:
“[U]nder the facts of this case, the district court's failure to provide an instruction on possession of pseudoephedrine as a lesser included offense was not clearly erroneous. Baker did not merely possess pseudoephedrine; he also possessed stripped lithium and numerous items of drug paraphernalia, including coffee filters, muriatic acid, a funnel, aluminum foil, bottles, tubing, a glass jar, and more. The evidence of Baker's intent to manufacture methamphetamine was overwhelming. We conclude there was no real possibility that the jury would have found Baker guilty of mere possession of pseudoephedrine for personal use.” 2010 WL 2216738, at *10.
The Baker court's prior discussion on the mere possession of pseudoephedrine also disposes of Baker's claim that an expert could have explained to the jury how he could have legally possessed L–Methamphetamine. The district court in the habeas proceedings also found defense counsel aggressively argued for a lesser included instruction on unlawfully compounding pseudoephedrine. The trial court refused the instruction.
We reiterate our prior decision that the evidence is overwhelming in this case. We are not convinced any chemist expert secured by Baker's defense team would have changed the result of the trial.
Failure to Prepare for Trial
Next, Baker argues his trial counsel was ineffective for failing to prepare for trial by failing to call Lester Hybsha as a witness. Baker claims Hybsha would testify Baker had abandoned the attempt to manufacture methamphetamine in Sedgwick County the night before his arrest and Baker was just trying to make it home that night. Baker also claims trial counsel never contacted Baker's wife and she could have supported the abandonment theory. Baker argues this evidence would have helped establish a proper timeline and would have precluded many of the acts the prosecutor testified happened in Reno County.
Decisions on whether to call certain witnesses are strategic in nature and generally within the exclusive province of the attorney. Bledsoe v. State, 283 Kan. 81, 102–03, 150 P.3d 868 (2007). The State argues Baker was aware of all the facts that allegedly occurred in Sedgwick County and could certainly have testified to those facts at trial. The State contends Baker waived this issue by failing to present the evidence at trial.
Again, there is overwhelming evidence to support Baker's convictions in this case. It appears Baker's theory with these two witnesses is that he was attempting to manufacture methamphetamine in Sedgwick County but abandoned that attempt and was simply “trying to make it home the night he was arrested.” We are not convinced trial counsel's performance was constitutionally deficient in not pursuing or presenting this defense. Trial counsel's attack on whether the evidence rose to the level of overt acts for manufacturing methamphetamine was reasonable, just not successful.
Failure to Require the Timely Preliminary Hearing
Next, Baker argues direct appeal counsel was ineffective for failing to raise the argument that the trial court failed to observe the mandatory language of the preliminary hearing statute, K.S.A. 22–2902, and bring his case for hearing in a timely manner.
K.S.A.2005 Supp. 22–2902(2), the law in effect at the time Baker committed his crimes in 2005, provided that a preliminary hearing shall be held within 10 days of a defendant's arrest or personal appearance unless a continuance is granted for good cause. Our Supreme Court has interpreted this statute's time requirement as directory rather than mandatory. State v. Rivera, 277 Kan. 109, 112, 83 P.3d 169 (2004). Instead of dismissing the charges when the 10–day period is not met, “the court must consider the totality of the circumstances to determine whether the defendant's constitutional right to a speedy trial has been violated.” 277 Kan. at 112, 83 P.3d 169.
Baker claims if his case would have traversed through the court system in a timely manner, he would have been able to take advantage of the decision in State v. Spangler, 38 Kan.App.2d 817, 173 P.3d 656 (2007). The Spangler court held that the crime of manufacture of methamphetamine included conduct that is identical to the conduct included in use of drug paraphernalia to manufacture methamphetamine and Spangler should therefore be sentenced to the lower crime involving drug paraphernalia. 38 Kan.App.2d at 837–39, 173 P.3d 656. Spangler was decided on December 21, 2007, 38 Kan.App.2d at 818, 173 P.3d 656. However, Spangler was effectively reversed by the Kansas Supreme Court in State v. Cooper, 285 Kan. 964, 179 P.3d 439 (2008), where the court specifically held the crime of manufacturing methamphetamine is not identical to using drug paraphernalia to manufacture methamphetamine and a defendant would not be required to be sentenced under the lesser drug paraphernalia conviction. Cooper was decided on March 28, 2008. 285 Kan. at 964, 179 P.3d 439.
Baker was arrested on September 17, 2005, and he remained in custody until he bonded out on December 14, 2005. On January 5, 2006, Baker's trial counsel filed a motion to dismiss for lack of a speedy trial because Baker's preliminary hearing was not held within the statutory period. On January 17, 2006, the trial court discussed the various continuances, stated that inconsequential delays beyond the 10–day statutory time limit would not require dismissal of charges, and concluded Baker's constitutional right to a speedy trial was not violated. Through various circumstances and continuances, the trial court did not hold Baker's trial until July 24–27, 2007.
Baker has not raised a speedy trial claim in relation to the timing of the preliminary hearing in either his K.S.A. 60–1507 motion or in his pro se appellate brief. The speedy trial claim could have been asserted in Baker's direct appeal. Appellate counsel was ineffective in not raising the speedy trial issue on appeal as the failure to raise the issue fell below the first prong of the effective assistance of appellate counsel test. However, Baker has failed to even argue the district court's ruling on this angle of the speedy trial right was incorrectly decided. We find the speculation of Baker's ability to take advantage of the small window of opportunity to rely on Spangler is not available to him without a violation of his speedy trial rights. Further, Baker has failed to establish the speedy trial issue would have been resolved in his favor on appeal. Baker does not challenge the facts or conclusions made by the trial court that his speedy trial right was not violated. Consequently, Baker has failed to establish prejudice by his appellate counsel's failure to raise the speedy trial issue on appeal. See State v. Smith, 278 Kan. 45, 51–52, 92 P.3d 1096 (2004).
Last, Baker argues he should be sentenced according to State v. Murdock, 299 Kan. 312, 319, 323 P.3d 846 (2014), where the Kansas Supreme Court, in a sweeping move, has ruled that all pre–1993 convictions and adjudications are to be considered nonperson crimes when scoring criminal histories today. On September 12, 2014, the Kansas Supreme Court heard arguments on the State's motion. The Court issued an Order of Modification on September 19, 2014, stating:
“This court orders a modification to the sentence on page 9 of the slip opinion that states: ‘We recognize this rule results in the classification of all pre–1993 crimes as nonperson felonies—an outcome the State characterizes as unreasonable.’ The sentence shall be modified to read: ‘We recognize this rule results in the classification of all out-of-state pre–1993 crimes as nonperson felonies—an outcome the State characterizes as unreasonable.’ “
A review of Baker's presentence investigation report reveals all of Baker's criminal history occurred in Kansas. Consequently, Murdock does not apply to Baker and does not change his sentence.
Affirmed.