Opinion
110,746.
04-17-2015
STATE of Kansas, Appellee, v. Kurt HERTING, Appellant.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Daryl E. Hawkins, county attorney, and Derek Schmidt, attorney general, for appellee.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Daryl E. Hawkins, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., POWELL, J., and MERLIN G. WHEELER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Kurt Herting approached an acquaintance about gathering the supplies needed to make methamphetamine. The acquaintance, a confidential informant, drove Herting around to collect the supplies, after which law enforcement stopped the car and found many items required to manufacture methamphetamine. Consequently, Herting was charged with and convicted of several drug-related offenses. He appeals on two grounds: (1) The district court erred in denying his motion for new trial, and (2) the district court violated his rights by allowing the jury to retain exhibits during deliberations. As to his motion for new trial, we find the same to be untimely; therefore, we lack jurisdiction to consider it. As to the jury retaining exhibits, we find no statutory or constitutional rights violated by the practice of allowing the exhibits to go to the jury room. Accordingly, we affirm the decision of the district court.
Factual and Procedural History
In September 2011, the State charged Herting with six drug-related offenses stemming from an evening a year earlier when Herting and an acquaintance, Matthew Luthi, who happened to be a confidential informant, drove around and collected supplies to make methamphetamine. The case proceeded to jury trial. The facts of the case are known to the parties, and we need not go into detail except as necessary to address the issues raised by Herting.
Ultimately, the jury convicted Herting of all six offenses. Prior to sentencing, Herting retained new counsel, and in late January 2013, his new attorney filed a motion to arrest judgment or grant a new trial. In this motion, Herting argued that his original counsel was ineffective for: (1) failing to meaningfully cross-examine Luthi and (2) failing to request a cautionary instruction regarding accomplice testimony. The motion also raised two other jury instruction issues that are not germane to this appeal.
At sentencing, the district court heard argument regarding two motions—the afore mentioned motion for new trial as well as an objection to the severity levels assigned to three of the counts under the identical offense doctrine set out in State v. Snellings, 294 Kan. 149, 151, 273 P.3d 739 (2012) ( “ “ ‘Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.’ “ ”). As to the objection to the severity levels assigned under the identical offense doctrine, the State agreed that the doctrine applied and moved to set aside the jury's verdict on those three counts and further volunteered to simply dismiss the higher severity level identical offenses to “simplif[y] things.” Herting agreed to this disposition. The court granted the request, set aside the jury's verdict on those counts, and then, rather than dismiss the charges, adjudged Herting not guilty of those offenses.
As to the motion to arrest judgment or in the alternative for a new trial, Herting alleged that trial counsel failed to adequately research Luthi's background and question him on the particulars of “his credentials [and] his veracity.” He also criticized trial counsel's failure to request an accomplice instruction, especially in the light that Luthi “provided the pills, provided transportation, [and] personally purchased the heat.” In response, the State contended that the jury was well aware of Luthi's history and status as a confidential informant and simply believed Luthi's version of events over Herting's version.
The district court denied Herting's motion. Regarding Luthi, the district court noted that “it was very well understood” that Luthi “did not come into this [case] with clean hands” and that Luthi's role in the proceedings was discussed both at voir dire and then again at trial. Regarding the accomplice instruction, the district court found that the wire transmission demonstrated that Herting directed the operation. The district court also considered it important that Herting picked up the bag containing various supplies himself. The district court ultimately found that there was more than simply Luthi's testimony to sustain the conviction and that counsel did not act ineffectively.
The district court ultimately sentenced Herting to a controlling term of 144 months' imprisonment on the three remaining charges. Herting timely appealed.
Analysis
Because Herting's motion for new trial was untimely the district court had no jurisdiction to entertain it and neither does this court.
Herting first argues that the district court abused its discretion when it refused to grant a new trial based on ineffective assistance of counsel. Herting specifically contends that his trial counsel's cross-examination of the State's confidential informant and failure to request a certain jury instruction fell far below the objective standard of performance and deprived him of a fair trial. The State counters this argument and contends that counsel's performance was not deficient.
However, the timing of Herting's motion—filed a full 3 months after the jury's verdict—raises a question of jurisdiction that this court must first consider.
Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014). Moreover, an appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, it is the duty of this court to dismiss the appeal. State v. J.D.H., 48 Kan.App.2d 454, 458, 294 P.3d 343, rev. denied 297 Kan. 1251 (2013). Importantly, if a district court lacks jurisdiction to enter an order, an appellate court lacks jurisdiction over the subject matter on appeal. State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).
Herting styled his postconviction motion as both a motion for arrest of judgment and a motion for new trial. These motions are each creatures of statute and come equipped with statutory time limits. A motion for arrest of judgment, for instance, “shall be made within 14 days after the verdict or finding of guilty.” K.S.A.2014 Supp. 22–3502. Similarly, a motion for new trial based on any grounds other than newly discovered evidence “shall be made within 14 days after the verdict or finding of guilty.”K.S.A.2014 Supp. 22–3501(1). These time limits are mandatory, not discretionary. See State v. Holt, 298 Kan. 469, Syl. ¶ 5, 313 P.3d 826 (2013) ; McCoin, 278 Kan. at 467–68.
Here, the jury convicted Herting on October 26, 2012, but Herting filed his motion on January 28, 2013. A review of the record indicates that Herting failed to file any motions or requests for extension within the 14–day time period. In December 2012, Herting obtained new counsel, who entered his appearance. Herting's new counsel moved for a continuance of sentencing based on his recent entry to the case; although the State and Herting's counsel both briefly referenced counsel's need for additional time to prepare for sentencing and his plan to file motions at that hearing, nothing in the record indicates that counsel requested an extension to file a motion for new trial.
Instead, Herting filed his motion far outside the 14–day limit. As such, Herting's motion was untimely, and the district court lacked jurisdiction to consider it. Because the district court lacked the authority to rule on the motion, this court also lacks jurisdiction to consider the matter. See McCoin, 278 Kan. at 467–68 ; State v. Lee, 45 Kan.App.2d 1001, 1021–22, 257 P.3d 799 (2011), rev. denied 293 Kan. 1111 (2012); State v. Yost, No. 104,183, 2011 WL 6382751, at *5 (Kan.App.2011) (unpublished opinion), rev. denied 296 Kan. 1136 (2013).
When asked to address the issue of jurisdiction at oral argument, counsel for Herting asserted that the verdict was not final until the court ruled on his objection to the assigned severity levels of his crimes by setting aside the verdict on three counts and adjudging him not guilty of those offenses. Therefore, he argues he had 14 days after the court's final orders adjudging him not guilty to file a motion for new trial. But this ignores the fact that Herting was convicted on October 26, 2012, for all the remaining charges. The filing of the objection to the severity level or the ultimate setting aside of some of the charges, did not extend his time to file a motion for new trial or change his conviction date. Unless extended by the court during the 14–day statutory time period, motions for new trial filed on any grounds other than newly discovered evidence, must be filed within 14 days. Likewise, motions for arrest of judgment are limited to situations in which the complaint, information, or indictment does not charge a crime of if the court was without jurisdiction of the crime charged and must be filed within 14 days after the verdict or finding of guilty. There is no judicial discretion to be exercised, the time limits set out in K.S.A.2014 Supp. 22–3501 and K.S.A.2014 Supp. 22–3502 are mandatory. Holt, 298 Kan. at 479 ; McCoin, 278 Kan. at 467–68. Herting's objection to the assigned severity levels was not a motion for new trial based on newly discovered evidence, nor did he allege any defect in the complaint, information, or indictment, or challenge the court's jurisdiction in his motion to arrest judgment. Therefore, we find Herting's jurisdictional argument unpersuasive.
Finally, we recognize that this court has at times, based on our Kansas Supreme Court precedent, elected to consider the merits of untimely motions for new trial when based solely on grounds of ineffective assistance of counsel. For example, in State v. Reed, No 106,807, 2013 WL 451900, at *4–6 (Kan.App.2013) (unpublished opinion), rev. granted 298 Kan. –––– (October 17, 2013), this court elected against dismissing an appeal for an untimely motion for new trial based on ineffective assistance of counsel. There, the district' court had treated the untimely motion as one for postconviction relief and held a full evidentiary hearing on the motion. This court reasoned that because the district court had conducted a thorough hearing, “it would serve no purpose to remand the case to resolve th[e] issue.” 2013 WL 451900, at *6. A short while later, in State v. Yarbrough, No. 108,096, 2013 WL 3791793, at *11 (Kan.App.2013) (unpublished opinion), rev. denied 298 Kan. (February 18, 2014), this court relied on the same rationale to again consider an untimely motion for new trial based on ineffective assistance of trial as one for postconviction relief. In that case, the district court also held an evidentiary hearing on the defendant's claims, rendering “the record ... sufficiently complete” for this court's review. 2013 WL 3791793, at *11. And in yet another case involving an evidentiary hearing, State v. Reynolds, No. 109,674, 2014 WL 6909523, at *9–10 (Kan.App.2014) (unpublished opinion), petition for rev. filed January 5, 2015, this court relied on a recent Kansas Supreme Court case to treat a similar untimely motion as a collateral attack. See State v. Sharkey, 299 Kan. 87, 94, 322 P.3d 325 (2014) (noting that under earlier Kansas Supreme Court precedent, an untimely motion for new trial can be treated as a collateral attack).
But Reed, Yarbrough, and Reynolds all differ from the instant case in one important way: The district courts held evidentiary hearings on those motions for new trial. Here, the district court simply ruled on the motion based on argument alone. In State v. Whittker, No. 107,627, 2014 WL 2400424, at *7 (Kan.App.2014) (unpublished opinion), petition for rev. filed June 19, 2014, this court declined to treat an untimely motion for new trial based on ineffectiveness of counsel as one for postconviction relief when the district court “merely heard arguments from [the defendant] and responses from his trial counsel and the State.” Moreover, this court also found it important that Reed and Yarbrough were each decided before Holt, which—as already discussed—held that the 14–day statutory time limit for a motion for new trial to be mandatory rather than discretionary. See Holt, 298 Kan. at 473–79 ; Whittker, 2014 WL 2400424, at *7. For these reasons, this court affirmed the district court's decision to dismiss the motion for new trial. 2014 WL 2400424, at *7.
At the hearing and again on appeal, Herting asserts that trial counsel failed to investigate certain aspects of Luthi's past, but there is no testimony in the record to indicate what trial counsel knew or did not know and how counsel utilized that information. Instead, the district court decided the issue based solely on brief arguments. Moreover, Herting emphasizes on appeal that no evidentiary hearing occurred and opposes his motion being construed as postconviction relief such as the relief available under K.S.A. 60–1507. This aligns Herting with the defendant in Whittker, where this court specifically noted that the defendant never asked the court to consider his motion as one for postconviction relief. See 2014 WL 2400424, at *7.
In sum, Herting filed his motion outside the 14–day time limit. Because the motion was untimely, the district court lacked authority to consider it on the merits, and this court cannot consider the merits on appeal. Although this court in Reed, Yarbrough, and Reynolds considered the merits of the motion anyway, those cases are distinguishable from the instant one. Therefore, we are required to dismiss all claims related to Herting's untimely motion for new trial.
The district court did not violate Herting's constitutional and statutory rights when it allowed the jury to retain the exhibits in the jury room.
Herting also argues that the district court violated his rights by allowing the jury to retain the exhibits in the jury room. Specifically, Herting claims that allowing the jury to examine the evidence outside his presence violated his right to be present at all critical stages of the trial, his right to a public trial, and his right to have the judge present at all critical stages of the trial. He also argues that any infringement on his rights to a public trial and to have the judge present constitutes structural error and requires automatic reversal.
Preliminarily, Herting failed to object to the jury's retention of exhibits at trial. Before the jury retired to deliberate, the district court specifically informed the jury, “The instructions and the exhibits and stipulation will be following you in.” Herting did not object at that time. Moreover, he did not object prior to the jury being called in for closing arguments or after the jury retired for deliberation. Because Herting never objected to this procedure below, he is raising the issue for the first time on appeal.
But issues not raised before the trial court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Additionally, constitutional grounds for reversal that are asserted on appeal for the first time are not properly before the appellate court for review. State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014). An appellant who fails to raise an issue below is required by Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) to explain why that issue should be considered on appeal for the first time. Failure to comply with this rule can result in the appellate court deeming the issue improperly briefed and therefore waived or abandoned. See State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014). Herting provides no explanation as to why the issue regarding the jury's retention of exhibits should be considered on appeal for the first time.
However, there are several exceptions to the general rule regarding issues raised for the first time on appeal. When consideration of the new legal theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights, this court may consider the issue despite the party's failure to raise it below. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). As Herting's argument involves the denial of his constitutional and statutory rights and asserts that some of these denials constitute structural error, we will examine them briefly here.
Because Herting relies on it, we will begin by examining State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013). Herbel involved a jury request to rewatch part of the DVD of an interview of Herbel that was shown at trial. The DVD was apparently not sent back to the jury room because the jury had to make a specific request to watch it and the jury was required to return to the courtroom to watch it. Although the judge was present, he did not announce any other appearances, so the Supreme Court was required to conclude that Herbel and his attorney were not present. 296 Kan. at 1107–08. The judge interacted with the jury regarding which part of the DVD jurors wanted to hear.
The court found under the clear language of K.S.A. 22–3420(3) that if after deliberations begin the jury desires to be informed as to any part of the evidence arising in the case, “ ‘the evidence shall be read or exhibited to them. ’ “ 296 Kan. at 1109. In addition, the statute requires that the evidence “ ‘shall be ... exhibited to them in the presence of the defendant unless he voluntarily absents himself.” ’ 296 Kan. 1109.
Accordingly, “where the jury has requested the officer conduct them to the court after deliberations began, the defendant has an absolute statutory right to be present when any evidence ‘is exhibited’ to the jury.” 296 Kan. at 1109. Because the error arose in the context of the court's communication with the jury in the courtroom, the Supreme Court found that Herbel's constitutional rights were violated as well. The court cited with approval State v. Perkins, 248 Kan. 760, 769, 811 P.2d 1142 (1991), for the proposition that a defendant's presence is required at every critical stage of the proceeding, including “ ‘all times when the jury is present in the courtroom and whenever the trial court communicates with the jury.’ “ Herbel, 296 Kan. at 1109. Finding both statutory and constitutional error, 296 Kan. at 1109–10, the Supreme Court proceeded to conduct a harmless error analysis and found that in Herbel's case, the error was harmless. 296 Kan. at 1115. But in this case, the jury had the evidence, which was presented at trial, in the jury room with it. There was no request to return to the courtroom to examine anything. There was no interaction with the judge. Very recently, this court in State v. Garcia, No. 110,901, 2015 WL 770182, at *3–5 (Kan.App.2015) (unpublished opinion), petition for rev. filed March 11, 2015, was asked to examine just such a situation.
In Garcia, the court analyzed whether allowing the jury to view exhibits outside of the defendant's presence violated his constitutional and statutory rights. Garcia's jury was allowed to take admitted evidence back into the jury room with it. There, like here, the defendant relied on Herbel in arguing that the jury needed to view the exhibits in open court and in his presence. This court determined that the holding in Herbel applied only “to those circumstances specifically described in the statute” and not to any time the jury views evidence. 2015 WL 770182, at *4. We agree. The statute in effect at the time required the defendant's presence when the jury requests to return to the courtroom for the court to answer questions regarding the law or to exhibit the evidence in the case. See K.S.A. 22–3420(3). Likewise, the Herbel court found that it was the judicial contact with the jury that made such circumstances a constitutionally protected critical stage of the trial. 296 Kan. at 1107–09. That was not the case here. The judge had no contact with the jury in Herting's case. The jury did not submit questions or ask to return to the courtroom. Jurors simply viewed evidence in the jury room as part of their deliberations. All of the evidence so viewed was admitted in open court during the trial with Herting and his attorney present.
Moreover, as this court observed in Garcia, in 2014, the legislature subsequently amended the statute that Herbel relied on and expressly authorized the district court to send exhibits into the jury room “where they may review them without further permission from the court.” K.S.A.2014 Supp. 22–3420(c) ; Garcia, 2015 WL 770182, at *4–5. The legislature also expressly provided that this amendment was retroactive. K.S.A.2014 Supp. 22–3420(c) ; Garcia, 2015 WL 770182, at *4–5. Accordingly, even if we agreed with Herting's argument that review of exhibits by the jury in the jury room is a critical stage of the proceeding under the prior version of K.S.A. 22–3420(3), and we do not, we would not reverse and remand for a new trial where the district court would be allowed to follow the same process of providing the jury the exhibits that it followed here.
Affirmed in part and dismissed in part.