Opinion
Nos. 107,177 107,566.
2013-03-8
STATE of Kansas, Appellee, v. Freddie Lee HOOKS, Appellant.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., PIERRON, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Freddie Lee Hooks appeals from the district court's denial of both his motion for conclusions of law and his motion for a dispositional departure sentence. Hooks argues that the district court (1) violated his due process rights in his forfeiture case, (2) abused its discretion by refusing to grant him a dispositional departure sentence, and (3) violated his constitutional rights by using his prior convictions to increase his sentence. We affirm in part and dismiss in part.
Hooks pled no contest to possession of cocaine in case No. 10–CR–1650. Hooks' plea agreement required the State to recommend the minimum guideline sentence of 32 months' imprisonment and allowed him to argue for any sentence. Hooks signed an acknowledgment of rights that contained three relevant statements: (1) “I know I have a limited right to appeal the sentence that is imposed”; (2) “I understand the appellate courts generally will not entertain an appeal from ... (b) a presumptive sentence, or (c) the denial of a departure motion”; and (3) “I may appeal from a sentence that departs from the presumptive sentence.”
With a criminal history score of B and a severity level 4 drug felony conviction, Hooks' presumptive sentence was 32–34–36 months' imprisonment. Before sentencing, Hooks' attorney moved for a durational departure sentence, and Hooks wrote a letter asking the district judge to “let [him] stay [ ] and raise [his] two sons.”
At sentencing on December 16, 2010, Hooks' attorney argued for a dispositional or durational departure sentence. The district court sentenced Hooks to 20 months' imprisonment, granting him a downward durational departure based on his age and the age of his felony convictions.
In February 2011, Hooks filed a pro se “Motion to Return Property” in 10–CR–1650, requesting the return of the $3,100 seized by police. Hooks claimed that the cash “was earned at his place of business ... through legitimate business transactions.” At the motion hearing on March 1, 2011, the district court informed Hooks that the State would be filing a separate action:
“THE COURT: ... [T]he State is going to file a forfeiture which will provide a legal context for you to address the issue of the return of—I believe at least in part you requested $3100.
“THE DEFENDANT: Uh-huh.
“THE COURT: And the State will file for a hearing on that which is a separate matter than even this case.
“THE DEFENDANT: Okay.
“THE COURT: It will even be under a different case number. And so that issue will be addressed in that hearing under those rules and the law pertaining to forfeitures. So you will have an opportunity to address that issue
“THE DEFENDANT: Yes, sir.
“THE COURT:—in the context of the forfeiture that the State is filing. Do you have a time line on that so Mr. Hooks can know?
“[THE STATE]: Pardon me. I expect we will have it filed no later than ... [March 3, 2011.]
“THE COURT: And he is not—he's not being represented on that, so you will provide—or is he?
“[THE STATE]: We just spoke about that, your Honor. We will send notice to Mr. Hooks at the Sedgwick County Jail.”
On April 18, 2011, the district court entered a “Judgment of Forfeiture by Default” in case No. 11–CV–1325. Only the State appeared at the hearing. The court made the following findings: there was probable cause that Hooks' property was subject to forfeiture; the court had jurisdiction; notice or service of “Notice of Pending Forfeiture” had been given; more than 30 days had passed since notice was given; and no claims to Hooks' property had been filed. The court ultimately ordered that the $3100 be forfeited to the Wichita Police Department. About 2 weeks before the forfeiture judgment, Hooks had filed another pro se “Motion to Return Property” in 10–CR–1650.
In December 2011, Hooks filed a pro se “Motion for Conclusions of Law” in 10–CR–1650, alleging that “there was no hearing on the money” and asking the district court to set one. The district court denied the motion based on its judgment of forfeiture.
Hooks timely appeals from the denial of his motion for conclusions of law, and was permitted to file an untimely appeal from his sentence under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982).
Hooks first argues that the district court violated his due process rights by denying him notice and an opportunity to be heard in his forfeiture case. The State counters that Hooks cannot challenge the civil forfeiture in his criminal appeal.
The Kansas Standard Asset Seizure and Forfeiture Act governs the disposition of property seized by police. See K.S.A. 60–4126 (“This act shall be part of and supplemental to ... the code of civil procedure.”); State v.1990 Lincoln Town Car, 36 Kan.App.2d 817, 145 P.3d 921 (2006) (defendant appealed civil forfeiture of money found on his person at time of arrest on drug charges). Hooks should have filed his due process claim in his civil case (11–CR–1325) not his criminal case (10–CR–1650). Therefore, Hooks' challenge to the forfeiture is dismissed for lack of jurisdiction. A pro se litigant is held to the same standard as an attorney for procedural purposes. Guillory v. State, 285 Kan. 223, 229, 170 P.3d 403 (2007).
Next, Hooks argues that the district court abused its discretion by denying his motion for a dispositional departure to probation. The State counters that this court lacks jurisdiction to consider this issue.
On appeal from a conviction for a felony committed on or after July 1, 1993, the appellate court shall not review any sentence that is within the presumptive sentence for the crime. K.S.A. 21–4721(c)(1); State v. Sprung, 294 Kan. 300, 317, 277 P.3d 1100 (2012).
In State v. Crawford, 21 Kan.App.2d 169, 170, 897 P.2d 1041 (1995), the court interpreted the Kansas Sentencing Guidelines Act to “limit appellate jurisdiction by either the State or the defendant to those instances in which the sentencing court has departed adversely to the appealing party.” Because the district court imposed a sentence that “clearly favored the defendant,” by rejecting the presumptive mid-range sentence of 57 months' imprisonment in favor of a 34–month sentence, this court held that it lacked jurisdiction to consider Crawford's challenge to his sentence. 21 Kan.App.2d at 170–71.
Recently, the Crawford decision was cited with approval by the Kansas Supreme Court in an unpublished sentencing appeal. See State v. Foy, No. 103,883, unpublished opinion filed January 28, 2011. Moreover, other panels of this court have relied on Crawford in concluding that the appellate courts lack jurisdiction to consider an appeal from a party who benefitted from a departure sentence. See, e.g., State v. Brown, No. 105,812, 2012 WL 924838, at *4 (Kan.App.2012) (unpublished opinion), petition for review filed April 16, 2012 (pending); State v. Flores, No. 102,255, 2010 WL 4103315, at *2 (Kan.App.2010) (unpublished opinion), rev. denied 291 Kan. 914 (2010); State v. Thomas, No. 100,239, 2009 WL 3270858, at *3 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1103 (2009).
Here, as in Crawford, the sentence imposed by the district court clearly favored Hooks. Specifically, the court granted his motion for a downward durational departure, imposing a sentence that was 14 months shorter than the mid-range presumptive sentence of 34 months' imprisonment. Therefore, Hooks' challenge to his sentence should be dismissed for lack of jurisdiction.
Finally, Hooks argues that the district court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by sentencing him to an increased sentence, based upon his prior convictions, without requiring the State to prove those convictions to the jury beyond a reasonable doubt. He concedes that the Kansas Supreme Court has already decided this issue against him in State v. Ivory, 273 Kan. 44, 45–48, 41 P.3d 781 (2002). This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010). Our Supreme Court continues to reaffirm its precedent in this area. State v. Barnes, 293 Kan. 240, 265, 262 P.3d 297 (2011). Therefore, the district court did not err by using Hooks' prior convictions to increase his sentence.
Affirmed in part and dismissed in part.