Opinion
No. 105,685.
2012-07-27
STATE of Kansas, Appellee, v. Charles HANEY, Appellant.
Appeal from Lyon District Court; W. Lee Fowler, Judge. Gerald E. Wells, of Lawrence, for appellant. Amy L. Aranda, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Lyon District Court; W. Lee Fowler, Judge.
Gerald E. Wells, of Lawrence, for appellant. Amy L. Aranda, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., MARQUARDT and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Charles Haney makes two claims in this appeal. First, he contends the district court wrongly denied him the opportunity to seek funds to obtain a sex offender evaluation and present the results to the court at sentencing because it might have served to mitigate his sentence. We find no abuse of discretion by the district court on this point, as we can see no actual prejudice to Haney because the court allowed Haney to present mitigating evidence prior to sentencing. For his second contention, Haney argues for the first time that his counsel was ineffective for failing to file a motion seeking the recusal of the judge presiding on his case. Because we see no extraordinary circumstances in this case that compel us to examine this claim, we will not entertain the issue for the first time on appeal, in accordance with Kansas Supreme Court precedent.
Haney enters no contest pleas.
Haney tendered a plea of no contest to one count of aggravated criminal sodomy in violation of K.S.A. 21–3506(a)(3)(A), a severity level 1 felony, and one amended count of attempted aggravated criminal sodomy in violation of K.S.A. 21–3506(a)(3)(A), a severity level 3 felony. At the plea hearing, Haney asked the district court to approve funding of approximately $5,000 for an expert to conduct a sex offender evaluation prior to sentencing to support a motion for durational departure. The district court responded that it would not stand in the way of Haney getting a sex offender evaluation but Haney would have to seek funding from the Board of Indigents' Defense Services.
After that, he filed a motion to continue sentencing to prepare a motion for durational departure and obtain the Board of Indigents' Defense Services' approval for a sex offender evaluation. A day or two before sentencing, the district court convened a hearing on Haney's motion for continuance. Haney's counsel explained that due to “a series of mishaps” in obtaining BIDS approval, he needed the sentencing date continued for approximately a month to get a sex offender evaluation done. The district court denied the motion. The next day, Haney filed a motion for departure under K.S.A. 21–4716, listing several purported substantial and compelling reasons to justify a departure sentence.
The district court heard arguments on Haney's motion for departure at the sentencing hearing. Haney renewed his objection to the district court's previous denial of his request for continuance to obtain a sex offender evaluation. The district court denied Haney's motion for departure and imposed consecutive presumptive sentences of 155 months for the aggravated criminal sodomy conviction and 61 months for the attempted aggravated criminal sodomy conviction.
We look first at the denial of the motion to continue.
Haney makes two arguments on this point. First, he argues that the district court's refusal to grant a continuance of the sentencing hearing was a breach of judicial discretion, in violation of K.S.A.2011 Supp. 22–3424(e)(4). Second, Haney claims the district court violated his due process rights by denying his right to present evidence of mitigation. Haney seeks remand to present mitigating evidence and for resentencing. We will examine both claims in that order.
It is well settled that the granting of a motion for continuance “for good cause shown” rests in the discretion of the district court, and its refusal to grant a continuance will not be set aside on appeal in the absence of a showing of an abuse of discretion. K.S.A. 22–3401; State v. Carter, 284 Kan. 312, 318, 160 P.3d 457 (2007). An abuse of discretion occurs when the action is arbitrary, fanciful, or unreasonable. This abuse means no reasonable person would have taken the action of the trial court. State v. Sellers, 292 Kan. 117, 124, 253 P.3d 20 (2011). To the extent our review includes interpretation of the applicable statutes, we exercise unlimited review over questions of law. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
The essence of this point in the appeal rests with K.S.A. 22–3422 and K.S.A.2011 Supp. 22–3424(e)(4). Those two laws provide a defendant with statutory rights known as allocution. See State v. Valladarez, 288 Kan. 671, 206 P.3d 879 (2009). Haney's complaint involves only K.S.A.2011 Supp. 22–3424(e)(4), which clearly requires the district court to address the defendant personally before imposing sentence and “ask the defendant if the defendant wishes to make a statement on the defendant's own behalf and to present any evidence in mitigation of punishment.” (Emphasis added.)
Further, it is clear that K.S.A. 21–4716(a) authorizes a district court, under appropriate circumstances, to depart from a presumptive sentence and impose a downward dispositional departure sentence of imprisonment. The district court must find “substantial and compelling” reasons for the departure. K.S.A. 21–4716(a). Our Supreme Court has defined “substantial” as being “something that is real, not imagined, with substance and not ephemeral.” Whereas, “ ‘compelling’ implies that a court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary.” State v. Seward, 289 Kan. 715, 722, 217 P.3d 443 (2009). Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. Walker, 283 Kan. 587, 594–95, 153 P.3d 1257 (2007). The statute provides a nonexclusive list of mitigating factors that may amount to substantial and compelling reasons to depart. See K.S.A. 21–4716(c)(1).
Therefore, Haney was in his rights to ask, but was it abusive for the court to deny the motion? To answer this, the exact nature of the request needs to be examined. At the motion hearing, Haney's counsel informed the district court that Haney needed a sex offender evaluation to demonstrate he was not a pedophile or a sexual predator. The following exchange occurred:
“THE COURT: ... Normally, we do evaluations like this in an attempt to see whether somebody is amenable to probation, and obviously that's not on the table in these negotiations. So what would be the—a benefit—I guess I'm trying to figure out where you're coming from for this evaluation. What would be the benefit to your client to have an evaluation?
“MR. MEIER: ... We want to be able to demonstrate that this was an isolated incident, the opportunity presented itself, and that the general public will not be endangered at some point when Mr. Haney is released to parole. So the evaluation, plus the knowledge that he will have a lifetime registration, we're hoping, will convince this Court that a durational departure would be appropriate.
“THE COURT: So why can't you make that pitch to the Court without the evaluation on Friday? Because the—I mean, it's going to require your client to testify. And either your client testifies or attempts to try to testify by virtue of a report by some third-party person like DCCCA, [Douglas County Citizens Committee on Alcoholism] and then you try to sell that story to me through the report. Or we can put Mr. Haney on the stand and he can testify, and I could look him in the eye and determine whether he's telling the Court the truth or not and determine whether that's an appropriate sentence or not. I don't see—I'm not sure what the—the evaluation that DCCCA will provide essentially would came back with: What kind of treatment do we think he needs? I mean, that's what they do. They do sexual offender treatment, I think. I think that's what they do, or evaluations of treatment. We know that's not going to happen, at least for a significant amount of time because they don't provide that service—or DCCCA doesn't provide that service to the Department of Corrections and that's where your client's going to be.
“MR. MEIER: Actually, they are contracted and they provide that service. Your Honor, one of the—when I've used DCCCA in the past, and it's been on Jessica's Law cases, they will be able to do, in part, a risk assessment and determine whether this person is at risk of similar offenses in the future. And that is one of the things that we want to be able to present to the Court that after whatever period of time that the Court imposes a sentence, that he will get out and have some psychiatric or scientific evidence before this Court to show whether he is a risk again.” (Emphasis added.)
At sentencing, Haney renewed his objection for the district court's denial of a continuance to obtain the sex offender evaluation. The district court clarified its reasoning for denial and stated:
“As I understand, the defendant only wanted to present evidence of some sort of an evaluation to try to convince the Court to oppose a departure sentence for one or more of the convictions of the defendant to reduce the total time of the sentence in this case.... Evaluations such as that are more appropriate probably for release from prison not for imposition of sentence. There are presumed sentences in this case, and any evidence the defendant wishes to present on why—what would be a mitigating factor could be presented without the evaluation because of the fact, as I understand the nature of the claim by the defendant, if the information would be true and correct would be essentially information that the defendant could present on his own at a hearing and not require the evaluation because the evaluator would just be [parroting] back to the Court what the defendant said.” (Emphasis added.)
The trouble we have with this proffer by Haney is that we must assume that any evaluation he would have received would have been favorable to such an extent that it would overcome a presumptive sentence.
In addition, we are not convinced that Haney has shown any real prejudice here. The record contains no evidence of a breach of the plea agreement permitting Haney to ask for a durational departure. The district court reviewed Haney's written motion containing nine purported substantial and compelling reasons for departure. Prior to sentencing, Haney's counsel presented arguments asking for a substantial reduction of the sentence. The district court permitted Haney to make a statement on his own behalf and told Haney that he could present evidence. The district court's stated reasons for denying any departure, while not extensive, indicated that it had considered the mitigating evidence. The district court noted that the record did not contain any mitigating factors that would warrant a departure of the presumptive sentence guidelines established by the legislature and “there's really no evidence, only argument, as to whether a departure should be granted.”
Also, even ignoring the fact that Haney bases his argument on appeal on a hypothetical favorable outcome of a sex offender evaluation, Haney makes conclusory statements and fails to adequately explain or establish how the district court's allocution error prejudiced his substantial rights. See Borders, 255 Kan. at 879–881;State v. Duke, 256 Kan. 703, 723, 887 P.2d 110 (1994).
Finally, we note that with all of this, Haney still received a legal presumptive sentence. In State v. Mebane, 278 Kan. 131, 91 P.3d 1175 (2004), our Supreme Court considered whether the district court's failure to comply with K.S.A.2011 Supp. 22–3424(e)(4) by not allowing the defendant to offer evidence in mitigation of sentences for aggravated kidnapping and other crimes rendered the sentence illegal. The court found that the district court's failure to allow full allocution does not make the sentence illegal within the meaning of K.S.A. 22–3504 given that the district court had jurisdiction to impose the defendant's sentence and his sentence conformed to the sentencing guidelines. 278 Kan. at 133–35.
Haney does not challenge the district court's findings regarding the mitigating evidence presented in his motion or at sentencing. Given the district court's conclusion that Haney only presented arguments and not evidence, there is no reasonable possibility in light of the entire record that Haney would have received a lesser sentence had the district court granted a continuance. In other words, the lack of a sex offender evaluation as mitigating evidence at sentencing did not reasonably impact Haney's presumptive sentence. See Ward, 292 Kan. at 565. Even though the district court abused its discretion in denying Haney the additional opportunity to present mitigation evidence under K.S.A.2011 Supp. 22–3424(e)(4), the allocution error was harmless. Resentencing is not required here.
We turn next to the effectiveness of counsel question.
Next, Haney claims his Sixth Amendment right to effective assistance of counsel was violated by his counsel's failure to file a motion to recuse the district court judge for prejudice. Haney did not raise this claim before the district court. But about 1 year after sentencing, Haney filed an affidavit with the district court claiming his trial counsel was ineffective to support his request that this court remand for a Van Cleave hearing to determine whether his counsel provided effective assistance. See State v. Van Cleave, 239 Kan. 117, 119–21, 716 P.2d 580 (1986).
In the absence of extraordinary circumstances, an appellate court will not consider an allegation of ineffective assistance of counsel raised for the first time on appeal. Trotter v. State, 288 Kan. 112, Syl. ¶ 10, 200 P.3d 1236 (2009); see Rowland v. State, 289 Kan. 1076, 1084, 219 P.3d 1212 (2009). The district court, which observed counsel's performance and was aware of the trial strategy involved, is in a much better position to consider counsel's competence than an appellate court, and should be the first to make a determination of such an issue. See Van Cleave, 239 Kan. at 119–20. Therefore, we decline to consider Haney's ineffective assistance of counsel argument for the first time on appeal. See Trotter, 288 Kan. 112, Syl. ¶ 10.
Further, we decline to remand for a Van Cleave hearing because Haney merely alleged in his affidavit that the judge in his case gave long sentences for convictions such as his. Haney also complained about waiving his preliminary hearing without showing why it was unreasonable to do so.
We affirm the ruling of the district court.