Opinion
No. 106,862.
11-30-2012
In the Matter of the Petition of Brian WEIMER for a Writ of Habeas Corpus.
Original proceeding in habeas corpus. Daniel E. Monnat, of Monnat & Spurrier, Chtd., of Wichita, for petitioner. Kristafer R. Ailslieger, deputy solicitor general, for respondent.
Original proceeding in habeas corpus.
Daniel E. Monnat, of Monnat & Spurrier, Chtd., of Wichita, for petitioner.
Kristafer R. Ailslieger, deputy solicitor general, for respondent.
MEMORANDUM OPINION
MALONE, J. In this original action for a writ of habeas corpus, Brian Weimer asserts that the State's prosecution of aggravated indecent liberties with a child is barred by double jeopardy protections. In a previous trial that included other charges, Weimer was charged with aggravated indecent liberties with a child based on sexual intercourse, but the jury was instructed on aggravated indecent liberties with a child based on lewd fondling or touching. Weimer was convicted of one count of rape and one count of aggravated indecent liberties with a child, but the conviction was overturned based on ineffective assistance of trial counsel. On remand, the State amended the complaint to include one charge of rape and one charge of aggravated indecent liberties with a child based on lewd fondling or touching. Weimer moved to dismiss the amended charge of aggravated indecent liberties with a child, but the district court denied the motion.
Weimer then filed this original action for a writ of habeas corpus, claiming that he was being wrongfully detained on the charge of aggravated indecent liberties with a child. This court has jurisdiction to hear Weimer's original petition for a writ of habeas corpus under K.S.A. 60–1501(a). This court initially denied Weimer's petition on the ground that it was interlocutory in nature, but Weimer petitioned for review, and our Supreme Court remanded to this court for consideration on the merits. Weimer now asserts that his prosecution on the amended charge of aggravated indecent liberties with a child based on lewd fondling or touching is barred by the compulsory joinder rule. We agree. Thus, we grant Weimer's petition for a writ of habeas corpus and direct the district court to dismiss the amended charge of aggravated indecent liberties with a child.
Factual and Procedural Background
On October 26, 2006, the State filed a complaint/information charging Weimer with one count of rape, one count of indecent liberties with a child by “engag [ing] in an act of lewd fondling or touching,” and two counts of indecent solicitation of a child. The charges were based on allegations made by Weimer's daughter, L.W., and on Weimer's subsequent admissions to police. On April 4, 2007, the State filed an amended complaint, which added an additional count of sodomy. On August 20, 2007, the State filed a second amended complaint, in which the charge of indecent liberties with a child based on lewd fondling or touching was amended to allege aggravated indecent liberties with a child based on the act of “sexual intercourse with a child who is 14 years or more of age but less than 16 years of age to-wit: L.W. dob: 1990 and who does not consent thereto, who is not his spouse in violation of K.S.A. 21–3504(a)(2).”
The 3–day trial occurred in May 2008. At the close of evidence, the district court instructed the jury that to establish the charge of aggravated indecent liberties with a child, the State was required to prove “1. That the defendant fondled or touched the person of [L.W.] in a lewd manner, with intent to arouse or to satisfy the sexual desires of either [L.W.] or the defendant, or both....” (Emphasis added.) Weimer's counsel did not object to the instruction. The jury found Weimer guilty of rape and aggravated indecent liberties with a child and acquitted him of the remaining charges. The district court sentenced Weimer to 165 months' imprisonment for the rape conviction and 61 months' imprisonment for aggravated indecent liberties with a child, to run concurrently. Weimer timely appealed his convictions to this court. During that appeal, Weimer filed a motion to remand to the district court for a hearing pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), to determine whether his trial counsel was unconstitutionally ineffective. This court granted the motion. One of the claims against Weimer's trial counsel was that he had failed to object to the jury instruction on aggravated indecent liberties with a child based on lewd fondling even though Weimer was charged with aggravated indecent liberties with a child based on sexual intercourse. After conducting a hearing, the district court found that trial counsel had provided ineffective assistance and had thereby violated Weimer's rights under the Sixth and Fourteenth Amendments to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. In light of the district court's findings, this court reversed Weimer's convictions and remanded to the district court for a new trial.
On remand, the State filed a motion for leave to file a third amended complaint charging Weimer with one count of rape and one count of aggravated indecent liberties with a child based on lewd fondling or touching. The State argued that the reference to sexual intercourse in the second amended complaint was merely a “typographical error,” and that the parties were all aware that the true basis for the aggravated indecent liberties with a child charge was lewd fondling or touching. Over Weimer's objection, the district court granted the State's motion to file the third amended complaint. Weimer then filed a motion to dismiss the amended count of aggravated indecent liberties with a child and argued that prosecution of this charge was barred by the compulsory joinder statute. In the alternative, Weimer asked the district court to stay the proceedings so that he could file an original habeas action in the appellate courts. After a hearing, the district court filed a memorandum decision denying the motion to dismiss but staying the proceedings to allow Weimer to pursue an original habeas action.
On October 17, 2011, Weimer filed a petition for a writ of habeas corpus in this court. The State filed a response on October 28, 2011. This court initially denied Weimer's petition on the ground that it was interlocutory in nature. Weimer filed a petition for review and our Supreme Court granted the petition and remanded to this court for consideration on the merits of Weimer's compulsory joinder argument.
Does the Compulsory Joinder Statute Bar the State from Prosecuting Weimer for Aggravated Indecent Liberties with a Child Based on Lewd Fondling or Touching?
Weimer argues that the compulsory joinder statute, K.S.A. 21–3108, prohibits the State from prosecuting a crime that the State could have charged but did not charge in a former trial. Weimer asserts that because the State could have charged him with aggravated indecent liberties with a child based on lewd fondling at his first trial but instead charged him with aggravated indecent liberties with a child based on sexual intercourse, the State may not now prosecute him for aggravated indecent liberties with a child based on lewd fondling. Weimer acknowledges that his compulsory joinder argument does not affect count one of the third amended complaint alleging rape. The State argues that Weimer was charged, tried, and convicted of aggravated indecent liberties with a child based on lewd fondling at the original trial and therefore he may be retried upon that charge. The State refers to the language in the second amended complaint charging Weimer with aggravated indecent liberties with a child based on sexual intercourse as being a “typographical error,” and contends that the parties were all aware that the true basis for the aggravated indecent liberties with a child charge was lewd fondling or touching. Instead of framing the issue as whether the compulsory joinder statute bars the State from prosecuting Weimer for aggravated indecent liberties with a child based on lewd fondling or touching, the State asks this court to utilize the analytical rubric applied to allegedly defective complaints challenged for the first time on appeal. Under this framework, the State argues that Weimer cannot show prejudice and that the State is not barred from prosecuting Weimer on the amended charge.
An original action in habeas corpus, as Weimer has filed here, is an appropriate vehicle for challenging a trial court's pretrial denial of a claim of double jeopardy. See In re Habeas Corpus Petition of Mason, 245 Kan. 111, 112–13, 775 P.2d 179 (1989). K.S .A. 21–3108 was the statutory codification of double jeopardy provisions in Kansas in effect at all times pertinent to this case. See State v. Arculeo, 29 Kan.App.2d 962, 969, 36 P.3d 305 (2001) (recognizing K.S.A. 21–3108 as the codification of the double jeopardy rule).
K.S.A. 21–3108, which codifies the compulsory joinder doctrine, states in part:
“(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime ... if such former prosecution:
“(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely....” (Emphasis added.)
In State v. Brueninger, 238 Kan. 429, 433, 710 P.2d 1325 (1985), our Supreme Court stated the required components of compulsory joinder as:
“First, the prior prosecution must have resulted in a conviction or acquittal; second, evidence of the present crime must have been introduced in the prior prosecution; and third, the charge in the second prosecution must have been one which could have been charged as an additional count in the prior case. [Citations omitted.]”
Weimer argues that the three requisite elements of compulsory joinder are present here and the doctrine prohibits the State from prosecuting him for aggravated indecent liberties with a child based on lewd fondling or touching. The State does not dispute that the three elements of compulsory joinder as stated by our Supreme Court in Brueninger are present in Weimer's case. But the State argues that the compulsory joinder doctrine is not implicated here because Weimer was in fact convicted at his first trial of aggravated indecent liberties with a child based on lewd fondling or touching. In other words, the State argues that Weimer was not formerly prosecuted for a different crime than the crime for which he is currently charged. See K.S.A. 21–3108(2). Weimer disagrees and contends that he was formerly prosecuted for a different crime, i.e., aggravated indecent liberties with a child based on sexual intercourse in violation of K.S.A. 21–3504(a)(l); whereas he now is being prosecuted for aggravated indecent liberties with a child based on lewd fondling or touching in violation of K.S.A. 21–3 504(a)(2)(A). The State asks this court to analyze the issue under the framework utilized when an appellant challenges a complaint as defective for the first time on appeal. But the State's approach is flawed because Weimer is not asking that his conviction of aggravated indecent liberties with a child be reversed due to a facially defective complaint. Instead, Weimer is before this court on a double jeopardy challenge and the language of the complaint arises in that context. The question before this court is not whether the second amended complaint was defective; as it certainly was not. The question before this court is whether the second amended complaint charged Weimer with aggravated indecent liberties with a child based on sexual intercourse, which is a different crime than the crime for which he is currently charged.
The compulsory joinder doctrine “provides that if evidence is admitted at the prior prosecution of an offense not contained in the charge, later prosecution of that offense is barred if it could have been included as an additional count in the prior prosecution. [Citation omitted.]” (Emphasis added.) Brueninger, 238 Kan. at 432–33. Weimer correctly points out that the Supreme Court's interpretation of the compulsory joinder statute focuses on the crime charged in the initial prosecution. Weimer states that, for compulsory joinder purposes, because the second amended complaint charged him with aggravated indecent liberties with a child based on sexual intercourse, that is the crime for which he was prosecuted at his first trial.
The State concedes that the second amended complaint contains language charging Weimer with aggravated indecent liberties with a child based on sexual intercourse. However, the State points out that the statutory citation at the end of count two in the second amended complaint is K.S.A. 21–3504(a)(2), which is the subsection of the aggravated indecent liberties with a child statute dealing with lewd fondling or touching. The State contends that the statutory citation should control over the descriptive language of the complaint, and states that both parties knew that the charge was meant to be based upon lewd fondling and touching.
In State v. Liebau, 31 Kan, App.2d 501, 503, 67 P.3d 156, rev. denied 276 Kan. 972 (2003), this court found that where there was a discrepancy between the descriptive language and the statutory citation in an amended information, the descriptive language controlled, noting that “[a]n error in the citation to the statute does not require reversal of a conviction if the defendant is not prejudiced. [Citation omitted.]” State v. Wright, 221 Kan. 132, 140, 557 P.2d 1267 (1976), is similar. In Wright, the statutory reference in the information referred to a different statute than the one described in the descriptive language. Finding there was no prejudice from an incorrect statutory reference and that “[t]he information was properly drawn in the language of [the correct statutes],” the Wright court found that the incorrect statutory citation did not constitute reversible error. 221 Kan. at 140. Neither Liebau nor Wright support the State's argument that the statutory reference should control over the descriptive language of a charging document for purposes of determining the crime charged. Further undermining the State's insistence that the statutory reference should control is the fact that the second amended complaint states that Weimer is charged with aggravated indecent liberties with a child, a “[s]everity level 3, person felony.” K.S.A. 21–3504(c) (First) states that aggravated indecent liberties with a child based on lewd fondling or touching is a severity level 4, person felony, while aggravated indecent liberties with a child based on sexual intercourse is a severity level 3, person felony. Thus, the classification of the felony provides still more support for Weimer's assertion that he was charged with aggravated indecent liberties with a child based on sexual intercourse.
In addition, K.S.A.2005 Supp. 22–3201(b), which describes the charging document, states that “[e]rror in the citation or its omission shall not be ground for dismissal of the complaint, information or indictment or for reversal of a conviction if the error or omission did not prejudice the defendant.” Thus, if the State may entirely omit the statutory reference without penalty as long as the defendant does not suffer prejudice due to its omission, it is unreasonable to find that such a reference is controlling in the face of contradictory descriptive language.
“ ‘The purpose of a complaint or information is to inform the accused of the particular offense or offenses with which the defendant is charged and which the defendant must defend against at time of trial.” ‘ State v. Martens, 274 Kan. 459, 469, 54 P.3d 960 (2002) (quoting State v. Mincey, 265 Kan. 257, 262, 963 P.2d 403 [1998] ). Moreover, in the context of the sufficiency of an information this court has stated: “ ‘[A]n information should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied.’ [Citation omitted.]” State v. Chrichton, 13 Kan.App.2d 213, 215, 766 P.2d 832 (1988), rev. denied 244 Kan. 739 (1989). Under this commonsense approach, the descriptive language of a complaint more so than the statutory reference is how an accused learns of the offense with which he or she is charged; it would not make sense for an accused to rely on a statutory reference that is contrary to a tailored, descriptive paragraph detailing the charge.
The State briefly argues that by giving the jury instruction on aggravated indecent liberties with a child based on lewd fondling, the district court effectively amended the complaint at Weimer's first trial. For authority, the State cites to K.S.A.2005 Supp. 22–3201(e), which states: “The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” But as Weimer points out, any constructive amendment as a result of the jury instruction at his first trial charged a different crime than was previously charged; therefore, K.S.A.2005 Supp. 22–3210(e) does not authorize this amendment. Additionally, the State here did not move to amend the complaint at Weimer's first trial; to allow such constructive amendment sua sponte by the court would render meaningless the procedural requirements established for amendment of charging instruments. See State v. Vaughn, No. 90,795, 2004 WL 1878316, at *5 (Kan.App.2004) (unpublished opinion), rev. denied 278 Kan. 851 (2004). Therefore, upon the filing of the second amended complaint, Weimer was charged with aggravated indecent liberties with a child based on sexual intercourse. This is a different crime than the crime for which he is currently charged. Based on our determination that Weimer was formerly prosecuted for a different crime than the crime for which he is currently charged, all that remains is to determine whether this case meets the three elements of compulsory joinder under K.S.A. 21–3108. As previously stated, the State does not dispute that the three elements of compulsory joinder are met in Weimer's case. See Brueninger, 238 Kan. at 433. First, Weimer's trial resulted in his convictions of rape and aggravated indecent liberties with a child. Second, evidence of the crime of aggravated indecent liberties with a child based on lewd fondling was introduced in the former prosecution. Finally, aggravated indecent liberties with a child based on lewd fondling or touching could have been charged as an additional count in the prior trial. In fact, the State originally charged Weimer with indecent liberties with a child based on lewd fondling or touching and only later amended the charge so that it was based on sexual intercourse. Because all the required elements of the compulsory joinder doctrine are met, this court finds that the State's prosecution of aggravated indecent liberties with a child based on lewd fondling or touching is barred by double jeopardy. Accordingly, this court grants Weimer's petition for a writ of habeas corpus and directs the district court to dismiss count two of the third amended complaint charging Weimer with aggravated indecent liberties with a child. Nothing in this opinion shall be construed to prohibit the State from prosecuting the charge of rape against Weimer.
* * *
BRUNS, J., dissenting. The majority has faithfully attempted to respond to the Kansas Supreme Court's remand of this action by addressing the specific issues the parties argued. Nevertheless, I must respectfully dissent from the majority opinion. I do not agree that an original action in habeas corpus is an appropriate vehicle to challenge one count of a multiple count complaint containing other valid charges. Furthermore, I fear that the holding in this case unnecessarily expands the parameters of habeas corpus and encourages criminal defendants to abuse this extraordinary remedy.
The majority cites In re Habeas Corpus Petition of Mason, 245 Kan. 111, 112–13, 775 P.2d 179 (1989), in support of the general proposition that habeas corpus is an appropriate remedy for challenging a district court's pretrial denial of a claim of double jeopardy. See In re Berkowitz, 3 Kan.App.2d 726, 602 P.2d 99 (1979). Although I do not question the soundness of the holdings in Mason and Berkowitz, I find them to be significantly distinguishable from the present action because both Mason and Berkowitz involved petitioners who were wrongfully “in custody” awaiting an impermissible second trial. In Mason, the petitioner faced charges of rape and aggravated battery. After the jury had been sworn, the district court declared a mistrial over the objection of the petitioner. Following the district court's denial of a motion for dismissal of the charges, the petitioner filed an original petition for writ of habeas corpus in the Kansas Supreme Court. Our Supreme Court found that there was no “manifest necessity” for the mistrial and, as such, double jeopardy barred the State from prosecuting the defendant again on either of the charges. 245 Kan. at 115. Thus, it was held that “a second trial [was] not permitted under double jeopardy and Mason's present custody [was] therefore wrongful under K.S.A. 60–1505(d) .” (Emphasis added.) 245 Kan. at 115.
In Berkowitz, a jury convicted the petitioner of aggravated battery on a child. Subsequently, the Kansas Supreme Court found that the statute giving rise to the petitioner's convictions was unconstitutional, and the State filed a confession of error in the district court. In the meantime, the State filed two new charges against the petitioner arising out of the same occurrence. 3 Kan.App.2d at 728. In response, the petitioner filed an original petition for writ of habeas corpus in the Kansas Court of Appeals. Similar to Mason, this court found that double jeopardy barred a second trial. 3 Kan.App.2d at 748. Thus, the Berkowitz court concluded that the petitioner's “ present custody [was], in the language of K.S.A. 60–1505(d), ‘wrongful.’ ” (Emphasis added.) 3 Kan.App.2d at 749.
Here, Weimer will face a second trial—regardless of his claim of double jeopardy on the charge of indecent liberties with a minor—because of the rape charge that is also pending in the underlying criminal case. In light of a valid pending charge, Weimer's present custody cannot be “wrongful” under K.S.A. 60–1505(d). Accordingly, I would conclude that Weimer is not entitled to a writ of habeas corpus because he is not being wrongfully restrained.
The fundamental purpose of the “Great Writ” of habeas corpus is “ ‘to enable those unlawfully incarcerated to obtain their freedom.’ “ Battrick v. State, 267 Kan. 389, 396, 985 P.2d 707 (1999) (quoting Johnson v. Avery, 393 U.S. 483, 485, 89 S.Ct. 747, 21 L.Ed.2d 718 [1969] ). Likewise, habeas corpus is generally only available “when the release of the prisoner from the detention he attacks will follow as a result of a decision in his favor.” Rawlins v. State, 39 Kan.App.2d 666, 671, 182 P.3d 1271, rev. denied 286 Kan. 1179 (2008). To be sure, habeas corpus exists to provide an efficient and prompt remedy, but only when the remedy will be the immediate release from unlawful custody. See In re Habeas Corpus Application of Maas, 11 Kan.App.2d 597, Syl. ¶ 1, 730 P.2d 368 (1986), rev. denied April 3, 1987.
“It is fundamental that a writ of habeas corpus does not act as a supersedeas to delay a proceeding.” State v. Yurk, 203 Kan. 629, 630, 456 P.2d 11 (1969). In other words, absent extraordinary circumstances—such as those presented in Mason and Berkowitz—habeas corpus “is not an appropriate method for review of lower court decisions.” Kansas Appellate Practice Handbook at § 4.4 (2nd ed.1994). Hence, when ordinarily established procedures are sufficient to resolve an issue, habeas corpus is not available to interfere with a pending criminal case. See In re Maas, 11 Kan.App.2d at 599; In re Will, 97 Kan. 600, 601, 155 Pac. 934 (1916). I do not believe that it is appropriate to allow an original habeas corpus petition filed in an appellate court to serve as an interlocutory appeal in instances where a favorable decision cannot lead to a defendant's release from custody. See Roberts v. Crouse, 350 F.2d 299, 300 (D.Kan.1965) (“The law is well settled that habeas corpus will not lie unless the prisoner is entitled to immediate release.”). Certainly, it is not unusual for a criminal complaint to be amended—often more than once—before a defendant is brought to trial. And a party can always ask a district court to reconsider an adverse ruling while the criminal action is pending.
Here, Weimer will remain in custody on the rape charge regardless of the outcome of his double jeopardy claim on the charge of indecent liberties with a minor. Accordingly, requiring Weimer to attempt to resolve the issue through ordinary procedures will not cause him to suffer the prejudice that the extraordinary habeas corpus remedy is meant to correct. Therefore, during the pendency of a criminal action, I would limit the use of an original petition of habeas corpus filed in an appellate court to those instances in which the granting of a writ of habeas corpus would entitle the petitioner to be immediately released from custody.