Opinion
No. 106,755.
2012-10-5
STATE of Kansas, Appellee, v. Anthony Lavell IVY, Appellant.
Appeal from Shawnee District Court; Nancy E. Parrish, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Nancy E. Parrish, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., MALONE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Defendant Anthony Lavell Ivy appeals from a conviction for felony theft in Shawnee County District Court on the grounds that he was improperly charged with a felony based on a plea of guilty he entered to misdemeanor theft in an earlier case in which he was not represented by a lawyer. He also contends his previous convictions should not have been used to determine his criminal history and sentence in this case because they were not proven beyond a reasonable doubt to a jury. We reject both of Ivy's claims and affirm his conviction.
The State charged Ivy with felony theft, in violation of K.S.A. 21–3701, because he stole a pair of athletic shoes from a Topeka store in September 2010. Based on the value of the shoes, Ivy would have been looking at a misdemeanor. The State elevated the charge to a felony because Ivy had municipal court convictions for misdemeanor theft in 2007 and 2008. Based on the enhanced penalties in the theft statute for recidivists, the State properly charged a felony in this case if the municipal court convictions could be used for that purpose. Ivy challenges the use of the 2007 municipal court conviction. Were Ivy correct, he should have been charged with a misdemeanor rather than a felony.
Given the issues presented, we need not detail the factual circumstances of the crime in this case or the 2007 municipal court case. In this case, Ivy filed a motion with the district court to have the felony charge reduced to a misdemeanor. The district court denied the motion. Ivy was convicted of felony theft in a bench trial on stipulated facts and sentenced to probation for 12 months on an underlying term of imprisonment for 12 months. He timely appealed to this court.
In 2007, Ivy pled guilty to a charge of misdemeanor theft in Topeka municipal court and received a fine of $318 as the sole punishment. Ivy was not represented by a lawyer in the municipal court case. He says for that reason the municipal court conviction should not have been used to charge him as a recidivist thief here. The State counters that Ivy had no right to counsel in the municipal court case, and that conviction, therefore, may be used to up the charge in this case to a felony.
This court recently addressed an analogous issue in State v. Crawford, 46 Kan.App.2d 401, 420–21, 262 P.3d 1070 (2011), and held that an uncounseled misdemeanor conviction punished with only a fine may be included in determining a defendant's criminal history thereby increasing his or her presumptive sentence under the guidelines. While Crawford is a new decision, the authority on which it relies is long-standing. We do not recount that precedent here. In short, a criminal defendant has no right to counsel under the Sixth Amendment to the United States Constitution when his or her punishment entails no actual or conditional incarceration. 46 Kan.App.2d at 421; see State v. Youngblood, 288 Kan. 659, Syl. ¶ 2, 206 P.3d 518 (2009).
We see no meaningful legal distinction between Crawford and this case for purposes of considering how an uncounseled misdemeanor resulting in a fine may be used to affect punishment in a later prosecution for an entirely different offense. In Crawford, the conviction was used to increase the presumptive sentence, essentially affecting the punishment on the back end of the prosecution. Here, the uncounseled misdemeanor has been used on the front end of the prosecution to hike the charge from misdemeanor theft to felony theft—increasing the potential punishment that could be imposed upon conviction. If one use is acceptable (and it is under Crawford ), then the other ought to be as well.
Ivy also argues that he had a statutory right to counsel in the municipal court case as provided in K.S.A. 12–4405 and the comparable section of the Topeka Municipal Code. The statutory right to counsel is no more expansive than the constitutional right in any way pertinent here. Under the statute, a municipal court judge is to appoint counsel for an indigent defendant “[i]f the ... judge has reason to believe that if found guilty, the accused person might be deprived of his or her liberty.” Ivy was not appointed counsel in the 2007 theft case in Topeka municipal court. But the judge imposed only a fine. We may infer that the municipal court judge reasonably expected Ivy would face no jail time and, therefore, properly determined he had no right to counsel under K.S.A. 12–4405. In turn, Ivy can no more rely on that right than he can on the Sixth Amendment to argue that the conviction should not be used to enhance the charge in this case.
The appellate record shows that in the municipal court case, Ivy signed an acknowledgment and waiver of various rights, including the right to be represented by a lawyer and to have a lawyer appointed if he could not afford to hire one. He did so before entering his guilty plea. On appeal here, the State makes no argument that the waiver provides an alternative ground to affirm the district court's ruling that the municipal court conviction could be used to support the felony theft charge. We, therefore, do not consider that point and express no opinion on it.
The district court correctly determined that Ivy's uncounseled municipal court conviction could be used to charge a felony here because Ivy had no statutory or constitutional right to a lawyer in the municipal court.
In the other issue Ivy raises on appeal, he contends the district court improperly considered his criminal history in imposing sentence. He argues that the trial court's use of his past convictions in determining an appropriate sentence impairs his constitutional rights because the fact of those convictions was not determined beyond a reasonable doubt by a jury. He relies on the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to support that proposition. Ivy acknowledges the Kansas Supreme Court has rejected that argument and has found the State's current sentencing regimen conforms to the Sixth and Fourteenth Amendments to the United States Constitution with respect to the use of a defendant's past convictions in determining a presumptive statutory punishment. State v. Fischer, 288 Kan. 470, Syl. ¶ 4, 203 P.3d 1269 (2009); State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). We, therefore, decline the invitation to rule otherwise, especially in light of the Supreme Court's recent reaffirmation of Ivory. State v. Peppers, 294 Kan. 377, 379, 276 P.3d 148 (2012).
Affirmed.