Opinion
No. 107,020.
2012-11-16
STATE of Kansas, Appellee, v. David U. JONES, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge. Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Twelve years ago David Jones was sentenced to a 220–month prison sentence for rape. He now challenges the legality of his sentence on the basis that two of his prior misdemeanor convictions that were used to calculate his criminal history score were constitutionally invalid because he did not have counsel at his plea and sentencing hearings. The district court summarily denied Jones' motion upon finding the motion, files, and records conclusively established Jones did have the benefit of counsel for those convictions. Finding that the municipal court records relied upon do not conclusively establish that Jones was represented by counsel at the time of his plea and sentencing, we reverse the district court and remand for an evidentiary hearing.
Factual and Procedural History
David Jones is serving a 220–month prison sentence for a rape conviction. The case is here as a result of a pro se motion that Jones filed to challenge the legality of his sentence.
First, some additional background of how the district court arrived at a sentence length of 220 months is necessary to provide context for Jones' argument that his sentence is illegal. The Kansas Sentencing Guidelines Act (KSGA) sets forth presumptive sentences that can be imposed by a district court on a 2–axis grid. The vertical axis corresponds to the severity level of the felony of current conviction. The horizontal axis corresponds to a defendant's criminal history classification or score, which is alphabetically scored based on the number and type of a defendant's prior convictions from the least serious classification of I to the most serious classification of A. See K.S.A.1997 Supp. 21–4704(a); K.S.A. 21–4709 (Furse 1995). Using this statutory formula, the district court found that Jones' rape conviction, a severity level 1 felony, and Jones' criminal history score of H as reflected in the presentence investigation (PSI) report corresponded to a standard presumptive sentence of 220 months on the applicable grid. See K.S.A.1997 Supp. 21–4704(a).
Jones challenges the district court's finding that Jones had a criminal history score of H. The PSI report indicates that score was calculated using three of Jones' prior misdemeanor convictions: battery of a law enforcement officer (a person misdemeanor) and resisting arrest (a nonperson misdemeanor) both arising out of Wichita Municipal Court case number 92 CM 2202; and escape from custody (a nonperson misdemeanor) in a separate district court case. Jones had 10 other prior misdemeanor convictions, but they were declared “[u]nscoreable” in the PSI report, so those convictions were not used to calculate his criminal history score.
According to Jones, his convictions in 92 CM 2202 were improperly considered in scoring his criminal history because he did not have counsel during three particular hearings in that case: the plea hearing on October 7, 1992; the sentencing hearing July 23, 1997; and a December 4, 1997, hearing, at which he was apparently placed in a county work release facility to serve his sentence. As support for these allegations, Jones attached the Wichita Municipal Court's disposition sheet in 92 CM 2202; the PSI report for his escape from custody charge; and a “Records Check” apparently performed on the municipal court's database, which has the dates for Jones' plea and sentencing hearings in 92 CM 2202 handwritten on it.
In its written response, the State urged the district court to summarily deny Jones' motion on two grounds. First, the State claimed that whether Jones had counsel in 92 CM 2202 made no practical difference because his criminal history score would been H even without considering those convictions given his other prior misdemeanor convictions reflected in the PSI. Second, the State argued the disposition sheet that Jones attached to his motion conclusively refuted Jones' allegations because it showed that counsel entered an appearance on Jones' behalf in 92 CM 2202 on March 11, 1992, and there was no indication that counsel had ever withdrawn.
The district court agreed with the State's second contention and entered judgment summarily denying Jones' motion upon finding the record showed that Jones had the benefit of counsel for his conviction in 92 CM 2202. Jones appeals from that decision.
Analysis
Jones contends that an evidentiary hearing is required in this case because the record does not conclusively refute his allegations that he was without counsel at his plea, sentencing, and other dispositional hearing in 92 CM 2202. The State repeats its alternative positions taken below in support of the district court's decision.
In reaching this issue, we first note that there is no dispute that Jones' claim regarding the improper scoring of his criminal history invokes a question about the legality of his sentence. See State v. Neal, 292 Kan. 625, 631, 258 P.3d 365 (2011) (noting that if either crime severity level or criminal history score is in error, resulting sentence is illegal). Second, there is no dispute that Jones can now raise this issue in a motion to correct an illegal sentence. See K.S.A. 22–3504(1) (providing court can correct illegal sentence at any time). Third, there is no dispute that Jones was entitled to counsel in 92 CM 2202. See Neal, 292 Kan. at 631–35 (discussing when and why defendant has right to counsel for misdemeanor conviction based upon sentence imposed). And finally, there is no dispute that the district court had authority to summarily deny Jones' motion upon finding, after a preliminary review, that Jones' contention was conclusively refuted by the motion, records, and files of the case. See State v. Jones, 292 Kan. 910, 913, 257 P.3d 268 (2011).
What is in dispute is whether the district court erred in finding that the motion, records, and files conclusively establish that there was no substantial question of law or triable issue of fact such that an evidentiary hearing was unnecessary. This court conducts de novo review of that issue by considering the same motion, records, and files reviewed by the district court. See 292 Kan. at 913. Whether Jones' prior misdemeanor convictions at issue were properly counted in scoring his criminal history does matter.
We disagree with the State's contention that whether the prior convictions challenged by Jones were indeed uncounseled “is of no importance” because he had 13 total misdemeanor convictions. Two statutes control the scoring of misdemeanor convictions in this case. First, K.S.A. 21–4709 (Furse 1995) describes the type of prior misdemeanor convictions that could place Jones in criminal history category H. Second, K.S.A. 21–4710(d)(7) and (8) (Furse 1995) generally defines what misdemeanors could be used in scoring Jones' criminal history. Jones' 10 other misdemeanor convictions were deemed unscoreable in the PSI report, meaning that they did not fall within those statutory classifications. Our review of the misdemeanors at issue supports the findings on the PSI report. Consequently, whether the challenged misdemeanors were constitutionally valid does matter because if Jones' two convictions in 92 CM 2202 are not counted, then his criminal history score drops from an H to an I. An evidentiary hearing is required to resolve a fact question about whether Jones had counsel for his plea and sentencing hearings in 92 CM 2202.
Jones bears the burden of proving the invalidity of the challenged misdemeanor convictions used to enhance his rape sentence. See Neal, 292 Kan. 625, Syl. ¶ 6. Jones argues he is entitled to an evidentiary hearing to allow him to meet that burden because the motion, files, and records do not conclusively rebut his allegations in his motion that he did not have counsel at some of the hearings in 92 CM 2202.
In support, Jones maintains that his case is sufficiently similar to Neal, 292 Kan. 625, to mandate remand for an evidentiary hearing. So we will next examine the Neal decision and its similarities to this case.
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 in his motion 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.” 292 Kan. at 636. This was because the disposition sheet also included dates of “seemingly dispositional events” that counsel could have first come to represent Neal at 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.
Likewise, the documents that Jones attached to his motion to correct an illegal sentence are consistent with Jones' allegations that he was without counsel at his plea and sentencing hearings. For example, the disposition sheet for 92 CM 2202 indicates on a preprinted space for “Defense Att'y” that “C. O'Hara” entered an appearance on March 11, 1992. But there is no way to conclusively tell from the disposition sheet whether Mr. O'Hara was present for Jones' plea hearing on October 7, 1992, or at Jones' sentencing hearing, which the record indicates did not take place until almost 5 years later. Moreover, the Wichita Municipal Court “Records Check” also attached to Jones' motion lists an “N”—presumably meaning “No”—under the column titled “Attorney.” This offers additional support for Jones' allegations that Mr. O'Hara was not present at the plea or sentencing hearing dates that are handwritten on that form.
The only potentially distinguishing fact found in this case is that unlike Neal, Jones did not swear to the allegations in his motion—a fact frequently referred to by our Supreme Court in Neal . See 292 Kan. at 627, 634–36. But Jones did not simply rely on a silent record, he did specifically state in his motion that he was, in fact, not represented at the hearings and, although not sworn, his signature was notarized. In addition, Jones attached evidentiary support for his allegations to his motion: the records check and the municipal court disposition sheet. The State did not dispute the accuracy or validity of these documents. Thus, this case is more like Neal than the cases cited in Neal that found the defendants had not met their burden of proof to require an evidentiary hearing because those defendants had offered no evidentiary support for their conclusory allegations in their motions to correct illegal sentences. See 292 Kan. at 634 (comparing State v. Jones, 272 Kan. 674, 35 P.3d 887 [2001];State v. Patterson, 262 Kan. 481, 939 P.2d 909 [1997] ).
Accordingly, we agree with Jones that the reasoning in Neal controls to require remand for an evidentiary hearing on Jones' allegations that he did not have counsel at his plea and sentencing hearings in 92 CM 2202.
Reversed and remanded for an evidentiary hearing.