Opinion
No. 106,187.
2013-02-22
STATE of Kansas, Appellee, v. Tina CLARK, Appellant.
Appeal from Wyandotte District Court; Robert Burns, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Mark Menefee, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Robert Burns, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Mark Menefee, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ATCHESON, J., and DANIEL L. HEBERT, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Tina Clark appeals from the district court's finding that she was represented by counsel in a prior driving under the influence (DUI) of alcohol conviction, upon which the district court ultimately relied in concluding that her current DUI conviction should be sentenced as a felony. She also appeals the district court's decision to impose a mandatory fine without first considering her ability to pay. For the reasons stated below, we affirm in part, reverse in part, and remand with directions.
Facts
On May 15, 2009, the State charged Clark with DUI after two prior DUI convictions. On October 4, 2010, Clark pled no contest to one count of felony DUI, but she specifically reserved the right to object at sentencing to the inclusion of two prior DUI convictions in her criminal history.
At the sentencing hearing on February 10, 2011, Clark challenged one of the convictions listed in her criminal history. She claimed the State could not prove that she was represented by counsel or waived her right to counsel in her January 27, 1999, Kansas City, Kansas Unified Government Municipal DUI conviction. In response, the State produced a certified copy of the journal entry and docket sheet of the 1999 conviction, which was admitted over Clark's objection. The name “J. Harvell” was written at the top of the journal entry, and a copy of a business card belonging to attorney John E. Harvell was stapled to the docket sheet.
The district court found that where a criminal history is challenged by a defendant the State must establish by a preponderance of the evidence that the criminal history is accurate. In ruling that the State had met this burden, the district court stated:
“The Court is familiar with the process of the Unified Government's Municipal Court in that it is their practice just to enter the attorney's name on the—on the ticket to show that they were represented by counsel, and I don't see any other evidence to the contrary that she was not represented by counsel. There's been no testimony that she was not....”
As a result of this finding, the district court included the 1999 DUI conviction in Clark's criminal history and sentenced her as a third-time felony DUI offender to an underlying jail term of 12 months and postrelease supervision of 12 months with eligibility for house arrest after 14 days and probation after 90 days.
Without inquiring about Clark's ability to pay or considering the option of community service as an alternative method of payment, the district court also ordered Clark to pay the $1,500 minimum DUI fine required by K.S.A.2009 Supp. 8–1567(f)(1).
Analysis
In her first point of error, Clark claims the district court improperly used a prior municipal court DUI conviction to enhance the classification and sentence of her latest DUI conviction—her third—to a felony offense. Specifically, Clark objected to including a prior 1999 DUI conviction in her criminal history because there was no evidence to establish that she was represented by counsel in the 1999 DUI proceedings. In her second point of error, Clark claims the district court erred by failing to consider Clark's ability to pay before imposing a mandatory fine, rather than community service.
The 1999 Municipal Court Conviction
The parties agree that, pursuant to State v. Youngblood, 288 Kan. 659, 669–70, 206 P.3d 518 (2009), an uncounseled misdemeanor conviction may not be collaterally used for sentence enhancement in a subsequent criminal proceeding. The parties disagree, however, about whether the documentation from the 1999 conviction is sufficient to support a finding that Clark was represented by counsel in the 1999 proceedings.
When a defendant files a timely and specific objection to his or her criminal history, the State bears the “burden of producing further evidence to satisfy its burden of proof regarding any disputed part, or parts, of the criminal history ... by a preponderance of the evidence.” K.S.A.2009 Supp. 21–4715(c); see State v. Schow, 287 Kan. 529, 539–40, 197 P.3d 825 (2008). If the district court finds the State met its burden of proof, an appellate court's review is limited to a determination of whether there is substantial competent evidence to support the district court's findings. State v. Hughes, 290 Kan. 159, 162, 224 P.3d 1149 (2010). Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. 290 Kan. at 170.
In an effort to show that Clark had been represented by counsel in the prior case, the State produced (1) the case docket sheet, to which was stapled the business card of attorney “John E. Harvel”; and (2) the January 27 journal entry of conviction, which had the words “J. Harvell” handwritten at the top, right corner of the page. In finding substantial competent evidence from which to conclude that Harvell represented Clark in the prior case, the district court judge stated as follows:
“The Court is familiar with the process of the Unified Government's Municipal Court in that it is their practice just to enter the attorney's name on the ticket to show that they were represented by counsel, and I don't see any other evidence to the contrary that she was not represented by counsel. There's been no testimony that she was not, so the burden in this, if there is a challenge to the defendant's criminal history, is that the State must establish the criminal history by a preponderance of the evidence.
“The Court finds the State has met that burden.”
Clark challenges the district court's finding on grounds that the court erroneously took judicial notice of the municipal court's practices and, without evidence of the municipal court's practice, there was insufficient evidence to establish that she was represented by counsel in the 1999 DUI proceedings.
Judicial Notice
Through judicial notice, judges may properly take and act upon certain facts without proof because they already know them. Brown v. Wichita State University, 217 Kan. 279, 307, 540 P.2d 66 (1975), vacated in part on other grounds by219 Kan. 2, 547 P.2d 1015 (1976). Judicial notice takes the place of proof and is of equal force. Insurance Office v. Woolen-mill Co., 72 Kan. 41, 47, 82 P. 513 (1905). The judicial notice rule is premised on the idea that courts are presumed to know what well-informed people generally know. Brandon v. Lozier–Brokerick & Gordon, 160 Kan. 506, 511, 163 P.2d 384 (1945). Therefore, the rule does not extend to “particular facts not of common notoriety,” so courts are never justified in taking judicial notice of facts which are not matters of common and general knowledge. 160 Kan. at 511; see Zink v. Basham, 164 Kan. 456, 461, 190 P.2d 203 (1948).
The Kansas rules governing judicial notice are set forth in K.S.A. 60–409:
“(a) Judicial notice shall be taken without request by a party, of the common law, constitutions and public statutes in force in every state, territory and jurisdiction of the United States, and of such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute.
“(b) Judicial notice may be taken without request by a party, of (1) private acts and resolutions of the Congress of the United States and of the legislature of this state, and duly enacted ordinances and duly published regulations of governmental subdivisions or agencies of this state, and (2) the laws of foreign countries and (3) such facts as are so generally known or of such common notoriety within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute, and (4) specific facts and propositions of generalized knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.”
Noting that practices of a different court are not listed in K.S.A. 60–409 as an appropriate subject for judicial notice, Clark asserts the district court erred in relying on its knowledge of the municipal court's practices as evidence to establish that she was represented by counsel in the 1999 DUI proceedings. Although the district court did not state how or why it was aware of the municipal court's practice of writing the attorney's name on the ticket to show the defendant was represented by counsel, Clark further asserts that if the court was relying on information it had learned from other cases, this was also error. State v. Finch, 291 Kan. 665, 674, 244 P.3d 673 (2011) (holding that a district judge may not rely on testimony he or she is familiar with from another case).
In response to Clark's assertions, the State contends the district court properly took judicial notice of K.S.A.2009 Supp. 22–3426(a), which lists the requirements for the form and content of a journal entry:
“When judgment is rendered or sentence of imprisonment is imposed, upon a plea or verdict of guilty, a record thereof shall be made upon the journal of the court, reflecting, if applicable, conviction or other judgment, the sentence if imposed, and the commitment, which record among other things shall contain a statement of the crime charged, and under what statute; the plea or verdict and the judgment rendered or sentence imposed, and under what statute, and a statement that the defendant was duly represented by counsel naming such counsel, or a statement that the defendant has stated on the record or in writing that the defendant did not want representation of counsel.”
But the State's argument fails because the district court's statement makes clear that it was taking notice of how the Kansas City, Kansas Unified Government Municipal Court usually designates that a defendant was represented by counsel, rather than a general practice in which all Kansas courts engage under the statute. Had the district court been referring to the general statute or the state courts' compliance with it, it surely would have mentioned either of these considerations or, at the least, would not have singled out the Kansas City, Kansas Unified Government Municipal Court. Moreover, K.S.A.2009 Supp. 22–3426(a) requires more than just the notation of the attorney's name on the journal entry, it requires “a statement that the defendant was duly represented by counsel naming such counsel.” Therefore, the court's judicial notice of the practice of writing the attorney's name is distinct from taking judicial notice of the full statement requirements of K.S.A. 22–3426.
Simply put, K.S.A. 60–409 does not specifically allow for judicial notice of the practices of another court. Nor could any of the listed subjects available for judicial notice in K.S.A. 60–409 be interpreted to include the practices of another court. Specifically, the internal workings of one municipal court in the state cannot be considered “generalized knowledge,” “generally known,” or of “common notoriety.” K.S.A. 60–409. Thus, the district court erred in taking judicial notice of the municipal court's practice of indicating a defendant was represented by an attorney by entering the attorney's name on the journal entry or ticket. Therefore, we cannot consider this information in deciding whether substantial competent evidence exists to support the district court's finding that Clark was represented in the 1999 proceedings.
The Evidence
Having determined the district court erred in considering as evidence the municipal court's alleged pattern and/or practice of writing an attorney's name on the journal entry, we now must determine—based solely on the journal entry and the case docket sheet—whether there is substantial competent evidence to support the district court's finding that Clark was represented by counsel in the 1999 DUI proceedings. With regard to such a determination, our Supreme Court has held that “the record must demonstrate that the defendant was represented by counsel or that the defendant waived counsel, or the State must establish by a preponderance of evidence that the defendant was represented by counsel or waived counsel.” State v. Delacruz, 258 Kan. 129, 140, 899 P.2d 1042 (1995). The Delacruz court further noted that the district court cannot simply presume that all of the actions of the municipal court followed the law. 258 Kan. at 140.
Our Supreme Court recently applied the legal principles of Delacruz in State v. Neal, 292 Kan. 625, 258 P.3d 365 (2011). In Neal, the defendant filed a motion to correct an illegal sentence, alleging two of his prior misdemeanor convictions were improperly aggregated to enhance his present sentence because he lacked counsel in those cases. In support of his sworn allegations that he was never advised of or waived his right to counsel for those misdemeanors, Neal attached the municipal court's disposition sheets for each conviction. Our Supreme Court found that certain discrepancies in the disposition sheets precluded it from agreeing with the State's position that the disposition sheets conclusively established that Neal had counsel for one conviction and he waived his right to counsel for the other. 292 Kan. at 635–40.
Of particular relevance here is our Supreme Court's analysis in Neal of notations on the disposition sheet that concerned an entry of appearance by counsel for one of Neal's prior misdemeanor convictions. The State's argument in Neal was based on the fact that “ ‘P. Journey CPD’ “ was handwritten on that sheet next to the form's printed statement: “ ‘Defense Att'y.’ “ 292 Kan. at 635–36. In disagreeing with the State that this notation conclusively proved that Neal did have counsel, our Supreme Court noted its particular concerns with the “lack of clarity on exactly when P. Journey allegedly represented Neal.” (Emphasis added.) 292 Kan. at 636. This was because the disposition sheet also included dates of “seemingly dispositional events” at which counsel could have first come to represent Neal that were well after Neal's guilty plea and sentencing hearings. 292 Kan. at 636. The court reasoned as a result:
“Because of the uncertainty surrounding the timing of Journey's legal representation of Neal, if any, and because the district court's summary denial of Neal's motion cut off his ability to fully pursue the proof of no legal representation beyond what was contained in his motion, we must remand for an evidentiary hearing on this issue.” 292 Kan. at 636.
In State v. Coleman, No. 104,530, 2012 WL 307346, at *6 (Kan.App.2012) (unpublished opinion), a panel of this court recently found there was more than a substantial problem with a municipal court's journal entry from a prior conviction and remanded the case to the district court to determine whether the defendant had actually been represented by counsel in that prior conviction. There, the journal entry was not dated and had the initials “CPD” written on the line for defense attorney, which stood for “city public defender” according to the clerk of the municipal court. 2012 WL 307346, at *5–6. When asked if he had been represented at that case, Coleman replied he did not believe he was but did not know for sure. The panel ultimately concluded that the lack of both a date and an attorney's name rendered the journal entry at issue even more deficient than the disposition sheet in Neal, 2012 WL 307346, at *5–6.
In State v. Myers, No. 105,048, 2011 WL 3891896, at *3 (Kan.App.2011) (unpublished opinion), a panel of this court again found that the State failed to meet its burden to establish the defendant actually was represented by counsel at the plea hearing or sentencing of his prior 2001 conviction. The State's evidence in that case included bench notes from the municipal court showing the court appointed Michael C. Robinson to defend Myers, a letter from Robinson in 2001 to the prosecutor requesting documentation related to the case, and a more recent letter from Robinson stating that his records indicated he represented Myers but the file was destroyed and he had no recollection of the representation. Nevertheless, the panel in Myers was “unwilling to assume, without more evidence from the State, that the attorney actually appeared with Myers in municipal court at the plea hearing and the sentencing hearing.” 2011 WL 3891896, at *3.
Using the cases cited above as guidance, we begin by noting that some of the facts presented in this case are similar to the fact patterns described above and some of the facts are distinguishable. For instance, unlike Neal and Coleman, the attorney's name here was not written next to any line on the journal entry denoting that he was Clark's defense attorney. Nor is there evidence in the record to establish that an attorney was appointed by the court, like the attorney in Myers. The attorney's name simply appears at the top of the journal entry and on his business card, which is attached to the docket sheet. This failure to identify the attorney's function in the proceedings weighs against a finding that Clark was represented.
Nevertheless, the attorney's name in this case is written on and accompanies documents that list a clear date for the guilt and sentencing proceedings. The journal entry had “1–27–99” handwritten next to more handwritten text stating “D pleads guilty as charged. Sentence per docket sheet.” The docket sheet also had “1–27–99” written by hand on the printed date line at the bottom of the form, which follows the statement of Clark's sentence. So, unlike Neal, there is no uncertainty surrounding the timing of Harvell's legal representation of Clark. And, unlike Coleman, there is a specific attorney's name listed, rather than just a reference to a generic public defender. Finally, unlike Myers, the date and name evidence suggests that John E. Harvell actually was present at Clark's proceedings on January 27, 1999.
In sum, we find substantial competent evidence supports a finding that Harvell was present in the municipal court on the date of Clark's conviction and can fathom no other reason for Harvell to have attended Clark's proceedings on the date of her conviction and sentencing if not to act as her attorney. Accordingly, we find substantial competent evidence also supports the district court's finding that the State met its burden to prove by a preponderance of the evidence that Clark was represented by counsel at her prior conviction.
The Fine
In her second point of error, Clark claims the district court should have considered her ability to pay before imposing the $1,500 minimum fine provided for in K.S.A.2009 Supp. 8–1567(f)(l). To that end, she notes that K.S.A. 21–4607(3) requires a district court to take the financial resources of the defendant into account when determining the amount and method of payment of a fine. Because K.S .A.2009 Supp. 8–1567(j) provides community service as an alternative method to paying the fine imposed under K.S.A.2009 Supp. 8–1567(f)(1), Clark asserts the district court was required under K.S.A. 21–4607(3) to inquire into her financial resources and consider the possibility of the community service method of payment before automatically imposing the fine.
Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). In applying a statute, courts are required to consider a statute as a whole. State v. Copes, 290 Kan. 209, 222, 224 P.3d 571 (2010).
Two statutes are relevant in this case. The first, K.S.A. 21–4607(3) provides: “In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.”
The second is K.S.A.2009 Supp. 8–1567, which states in relevant part:
“(f)(1) On the third conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,500 nor more than $2,500....
....
“(j) In lieu of payment of a fine imposed pursuant to this section, the court may order that the person perform community service specified by the court. The person shall receive a credit on the fine imposed in an amount equal to $5 for each full hour spent by the person in the specified community service. The community service ordered by the court shall be required to be performed not later than one year after the fine is imposed or by an earlier date specified by the court. If by the required date the person performs an insufficient amount of community service to reduce to zero the portion of the fine required to be paid by the person, the remaining balance of the fine shall become due on that date.”
Notably, our Supreme Court already has interpreted K.SA. 21–4607(3) in relation to K.S.A.2009 Supp. 8–1567(g)(1), which is very similar to K.S.A.2009 Supp. 8–1567(f)(1), except that it imposes a $2,500 fine upon a fourth or subsequent DUI conviction. See Copes, 290 Kan. at 211. In Copes, the Supreme Court considered whether the district court erred under K.S.A. 21–4607(3) in imposing the $2,500 fine mandated by K.S.A.2009 Supp. 8–1567(g)(1) without first considering the defendant's financial resources. Using the four factor test from State v. Raschke, 289 Kan. 911, 219 P.3d 481 (2009), the Supreme Court found that the fine was mandatory under the more specific K.S.A.2009 Supp. 8–1567(g)(l) and thus the financial resources of the defendant need not be considered in setting the amount of the fine. However, the court also found that because K.S.A.2009 Supp. 8–1567(j) provides an alternative method of payment by allowing the district court to order payment of a DUI fine through community service, K.S.A. 21–4607(3) applies to the determination of the method of payment. Copes, 290 Kan. at 211. Thus, the Supreme Court held that “a district court must take into account the defendant's financial resources and the burden of the fine when considering the method of payment of a fine for a fourth or subsequent DUI offense, i.e., whether the defendant must pay a monetary fine or provide community service under K.S.A.2009 Supp. 8–1567(j).” 290 Kan. at 223.
The only material difference between the statutory provision at issue in Copes and the one at issue here is that, unlike the mandatory $2,500 fine in Copes, under K.S.A.2009 Supp. 21–1567(f)(1) the court has the discretion to impose a fine anywhere from $1,500 to $2,500 for a third DUI conviction. However, the fact that the amount is somewhat discretionary does not affect the ultimate conclusion of the Copes court that the alternative method of payment provided in K.S.A.2009 Supp. 21–1567(j) requires a district court to consider the defendant's financial resources when considering the method of paying the DUI fine. In fact, Copes explicitly overruled State v. Wenzel, 39 Kan.App.2d 194, 202–03, 177 P.3d 994 (2008), aff'd on other grounds289 Kan. 28, 210 P.3d 93 (2009), in which the Court of Appeals had held that K.S.A.2009 Supp. 21–1567(f) requires the district court to consider the defendant's financial resources only when it imposes more than the minimum fine.
In this case, the district court never considered Clark's financial resources or the option of community service upon imposing a $1,500 fine under K.S.A, 2009 Supp. 8–1567(f)(1). Pursuant to the holding in Copes and the language in K.S.A. 21–4607(3), the district court erred by failing to inquire into Clark's financial situation because there was another method of payment provided by the community service provision of K.S.A.2009 Supp. 8–1567(j).
Affirmed in part, reversed in part, and remanded with directions to consider Clark's financial resources and the alternative of community service in setting a method of payment for the $1,500 fine.