Opinion
No. 108,246.
2013-06-14
STATE of Kansas, Appellee, v. Kathaleen CAENEN, Appellant.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge. Patrick M. Lewis, of Law Office of Patrick Lewis, LLC, of Olathe, for appellant. Todd Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge.
Patrick M. Lewis, of Law Office of Patrick Lewis, LLC, of Olathe, for appellant. Todd Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Kathaleen Caenen appeals her conviction of one count of aggravated assault on a law enforcement officer. Caenen and the State entered into a diversion agreement which was extended after the expiration of its original term. Caenen claims on appeal that the extension was not authorized and that her eventual conviction of the diversion-related charge must be set aside and the charge dismissed.
We agree and remand to the district court to enter orders setting aside the conviction and dismissing the charge.
Facts
On March 7, 2008, Caenen and the State entered into a diversion agreement to defer prosecution for one count of aggravated assault on a law enforcement officer. The agreement stated that Caenen “understands and agrees that should the County Attorney's Office make the determination that the Defendant is not complying with all provisions of the agreement, prosecution may proceed, subject to the time limitations set forth in this paragraph.” The agreement then sets forth that the “term of diversion shall be for a period of 12 months from the date of this agreement.”
On February 5, 2009, the State filed three new criminal charges against Caenen, but did not seek to terminate her original diversion and to proceed with prosecution on the original charge. Rather, on March 12, 2009, after expiration of the original 12–month term, Caenen and the State signed a 3–month extension agreement and filed it on the following day.
The extension agreement stated: “A diversion agreement was previously reached in this case ... and was due to expire on the 5th day of March, 2009. The defendant has completed the terms of the diversion, however has been charged with [three new crimes] in the course of the diversion term.” The State agreed not to revoke the previous diversion and all terms and conditions of diversion were to remain in full force and effect.
Prior to expiration of this extension agreement, the State and Caenen again extended her diversion by an additional 12 months because she had not fully complied. However, less than 5 months thereafter, the State filed a motion to terminate the diversion and to resume prosecution.
Caenen pled guilty to one count of aggravated assault on a law enforcement officer and was sentenced to 24 months of probation with an underlying 18–month prison sentence. Thereafter, the district court twice revoked and reinstated Caenen's probation. At a third probation revocation hearing, Caenen filed a motion to terminate supervision and to dismiss her case with prejudice. Her principal argument at the hearing was that because she had completed the original diversion agreement, all subsequent diversion and criminal proceedings in that case were null and void. Caenen observed that neither the diversion statute nor the diversion agreement provided for late revocation or extension filings. She also argued that she had a right to, but did not receive, defense counsel when she twice agreed to extend the term of her diversion.
The district court rejected Caenen's motion to terminate her case, finding that even though Caenen had entered into the extension agreements after the initial agreement had expired, she was nonetheless bound by the terms of the new agreement. The district court then revoked Caenen's probation and ordered her to serve the prison sentence.
Caenen appeals.
Was Caenen Properly Convicted of the Diversion–Related Charge?
Standard of Review
While the parties characterize the question herein as one of jurisdiction, the essential question before this court is whether there is statutory or contractual authority to extend the diversion agreement.
Generally, an appellate court has unlimited review over issues of statutory interpretation. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). Whether a diversion agreement complies with applicable statutory requirements is a question of law subject to unlimited review. See State v. Bannon, 45 Kan.App.2d 1077, 1080, 257 P.3d 831 (2011). Similarly, the interpretation and legal effect of a written contract is a matter of law over which an appellate court has unlimited review. Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900–01, 220 P.3d 333 (2009). Analysis
Both parties readily agree that Caenen did not sign the agreement to extend her diversion and that the State did not file the extension, until after the initial 12–month diversion period had expired. Caenen and the State, however, differ on the consequence of this issue.
According to Caenen, under both the applicable diversion statutes and the terms of her diversion agreement, the district court lost jurisdiction over her case once the initial 12–month diversion period had expired. Consequently, she contends, all subsequent proceedings on the matter are null and void.
But according to the State, the district court maintained jurisdiction because Caenen violated her initial diversion agreement while subject to the agreement. With respect to the timing of the diversion extension, the State argues that “it's reasonable to infer” both parties agreed to this extension before the initial agreement expired, and that, alternatively, the extension is valid regardless of its timing because Caenen received a benefit.
Caenen also argues that she had a right to counsel, and did not waive this right, when she twice agreed to extend her diversion. Diversion Agreements
In Kansas, after a complaint has been filed against a criminal defendant but before the defendant has been convicted, the State may propose the defendant enter into a diversion agreement. See K.S.A. 22–2907(1); State v. Chamberlain, 280 Kan. 241, 245, 120 P.3d 319 (2005). A diversion agreement is the “specification of formal terms and conditions which a defendant must fulfill in order to have the charges against him or her dismissed.” K.S.A. 22–2906(4). Entering into a diversion agreement is not a form of plea bargaining; rather, diversion is a means to avoid a judgment of criminal guilt. See Chamberlain, 280 Kan. at 245.
Kansas courts have applied contract principles when interpreting the provisions or legal effects of plea bargains and diversion agreements. See State v. Bishop, 44 Kan.App.2d 739, 742, 240 P.3d 614 (2010), and State v. Bullock, 18 Kan.App.2d 164, 849 P.2d 137,rev. denied 253 Kan. 861 (1993). Accordingly, ambiguities in a diversion agreement should be construed against the State. See State v. Patton, 287 Kan. 200, 228–29, 195 P.3d 753 (2008) (“it is not too onerous a burden to require the State to be explicit about the terms it requires in plea agreements”); and City of Lenexa v. Bell, No. 105,874, 2012 WL 1352844 (Kan.App.2012) (unpublished opinion), rev. denied May 20, 2013 (suggesting that ambiguities in diversion agreements should be construed against the State).
Although diversion agreements are subject to contract principles, these agreements must also adhere to certain statutory requirements. See K.S.A. 22–2906 et seq. The statute provides for two options upon termination of the diversion period:
K.S.A. 22–2911(a) states:
“If the county or district attorney finds at the termination of the diversion period or any time prior to the termination of the diversion period that the defendant has failed to fulfill the terms of the specific diversion agreement, the county or district attorney shall inform the district court of such finding and the district court, after finding that the defendant has failed to fulfill the terms of the specific diversion agreement at a hearing thereon, shall resume the criminal proceedings on the complaint.”
K.S.A. 22–2911(b) states: “If the defendant has fulfilled the terms of the diversion agreement, the district court shall dismiss with prejudice the criminal charges filed against the defendant.”
While K.S.A. 22–2909 details and specifies certain terms and conditions which must be included, K.S.A. 22–2907 gives the prosecutor responsibility for establishing the terms of specific diversion agreements.
It is of note that the diversion statute neither expressly authorizes nor expressly prohibits extensions of the initial term of a diversion agreement. Thus, we look to the terms of the diversion agreement between Caenen and the State to determine under principles of contract law whether extension of the original term is authorized. In doing so, we must keep in mind that the prosecutor drafted the diversion agreement. The Caenen agreement sets forth neither an explicit provision allowing extension, nor an explicit prohibition of extension, nor any “grace period” for taking action after the expiration date. We find nothing in the diversion statutes which would have precluded provisions for possible extensions of the original term and/or provision of a “grace period” for renewal of the agreement, had the prosecutor intended to make such provision in the exercise of his discretion under K.S.A. 22–2907. However, we cannot read terms into a written contract. As noted above, any ambiguity in the document must be construed against the State.
In the absence of either statutory or contractual authority to extend the original term of the diversion agreement, the State was left with the two options set forth in K.S.A. 22–2911(a) and (b): to report failure to the district court and request resumption of prosecution, or to report success by presenting the court with an order dismissing the criminal charges with prejudice. While we would not require that such action must be taken by the State immediately on the exact date upon the original term expires, the State must act promptly and within a reasonable time. Here, the State was aware of Caenen's new criminal charges a month before the termination date. However, the State failed to notify the court of her failure to complete the conditions of diversion for several months until after two unauthorized extensions. Since the initial agreement had long expired by its own terms, there was no longer a legal basis for the State to request resumption of prosecution against Caenen on the original charge of aggravated assault on a law enforcement officer. The plea and conviction must be set aside and the charge dismissed with prejudice.
Right to Counsel
Since we have concluded that Caenen's conviction must be set aside, we need not address her contention regarding her right to counsel in the current context. However, we would direct the parties to a recent unpublished opinion of this court, State v. Nieves, 296 P.3d 1139, 2013 WL 1010276 (Kan.App.2013), which suggests that the Sixth Amendment right to counsel does not attach during diversion proceedings.
Reversed and remanded with directions.