Opinion
No. 106,546.
2012-08-10
STATE of Kansas, Appellee, v. Nathan LEGETTE, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge. Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. David Lowden, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. David Lowden, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., MARQUARDT, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Nathan Legette appeals his conviction for aggravated failure to appear. Legette contends the district court's response to a question during jury deliberations in effect directed a verdict on an essential element of the charge. We do not agree and affirm Legette's conviction.
On April 23, 2009, Legette was convicted of theft. The district court repeatedly told Legette he was to appear on June 26, 2009, to be sentenced. However, the subsequently drafted journal entry of the trial proceedings stated the sentencing hearing would be held on June 23, 2009.
The State charged Legette with aggravated failure to appear in violation of K.S.A. 21–3814 because he did not appear for sentencing on June 26, 2009, and failed to surrender within 30 days thereafter.
At trial, Deputy William Felix testified Legette did not appear before the court for sentencing on June 26, 2009, and he did not surrender or request a continuance within 30 days thereafter. The State also admitted into evidence three exhibits: Exhibit 1, a journal entry of Legette's 2009 theft trial specifying the sentencing hearing would be held on June 23, 2009; Exhibit 2, an excerpt from the transcript of the theft trial specifying Legette's sentencing hearing would be held on June 26, 2009; and Exhibit 3, a journal entry of the forfeiture of bond. The defense rested without presenting any evidence.
Jury instructions included Instruction No. 4, which that stated:
“The defendant is charged with the crime of aggravated failure to appear. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant had been convicted of a felony and released on an appearance bond to appear before a court;
“2. That the defendant intentionally failed to appear before the court at the time requested;
“3. That the defendant's appearance bond was forfeited;
“4. That the defendant intentionally failed to surrender within 30 days following the forfeiture of appearance bond; and
“5. That this act occurred on or about the 26th day of July, 2009, in Sedgwick County, Kansas.”
Instruction No. 4 was similar to the instruction proposed by Legette and the exact same as the instruction proposed by the State. It is uncontroverted that Instruction No. 4 is consistent with the elements of the crime defined in K.S.A. 21–3814(a).
During closing argument, Legette argued the State did not present any evidence that he failed to appear before the district court on June 23, 2009, the sentencing date specified by the journal entry of trial. This is the first time either party observed the discrepancy between the two scheduled sentencing dates. In rebuttal, the State told the jury that the court's oral pronouncement of sentencing, not the journal entry, controlled the date of the sentencing hearing.
During deliberation, the jury asked the court one question: “Do we consider the journal entry or trial transcript as the order the defendant should follow?” The State argued the court should inform the jury that oral pronouncement of sentencing is controlling, whereas Legette argued such a response would be an impermissible commentary on the weight and credibility of the evidence. Legette also told the court the State's proposed response would preclude the jury from resolving an element of the aggravated failure to appear charge—the date of his sentencing hearing—and would essentially “[send] back a note that says please convict Mr. Legette.”
The court, however, agreed with the State and informed the jury that “[t]he order of the court, pronounced from the bench, is the controlling order.” Legette's request for a mistrial was denied by the court. Seven minutes after the court responded to the jury's question, the jury delivered a guilty verdict. The court sentenced Legette to 12 months' probation with a 9–month underlying jail sentence. Legette filed a timely notice of appeal.
A trial court's response to jury questions during deliberation is reviewed for an abuse of discretion. State v. Hoge, 276 Kan. 801, 815–16, 80 P.3d 52 (2003). An abuse of discretion occurs if the discretion is guided by an erroneous legal conclusion or goes outside the framework of or fails to consider proper statutory limitations or legal standards. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009).
Legette argues the district court denied his right to a fair trial by responding to the jury's question in a manner that effectively served as a directed verdict against him. He analogizes the court's response to the instructional error occurring in State v. Brice, 276 Kan. 758, 80 P.3d 1113 (2003). We will return to consideration of Brice later in this opinion.
K.S.A. 22–3420(3) dictates the procedures a district court must follow when asked a question by the jury during deliberation. The full text of this statute is as follows:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.” (Emphasis added.) K.S.A. 22–3420(3).
This statute imposes upon the district court a “mandatory duty to respond to a jury's request for further information as to the law of the case.” See, e.g., State v. Francis, 282 Kan. 120, 147, 145 P.3d 48 (2006). The court has discretion, however, over the manner and extent of the response. 282 Kan. at 147. But when a jury asks the district court a question relating to the evidence, the court must not invade the factfinding province of the jury. See State v. Stieben, 292 Kan. 533, Syl. ¶ 1, 256 P.3d 796 (2011); Brice, 276 Kan. 758 at 770.
In the present case, the pivotal question is whether the district court properly instructed the jury on a matter of law or whether the court infringed on the jury's duty as factfinder by responding to the jury, “The order of the court, pronounced from the bench, is the controlling order.”
Persuasive authority supports the district court's response. Once a district court pronounces a sentence from the bench, the court does not have jurisdiction to modify the sentence unless the sentence is illegal. State v. McKnight, 292 Kan. 776, 779, 257 P.3d 339 (2011). Moreover, a sentence is effective upon pronouncement from the bench regardless of the court's intent at the time the sentence is pronounced. 292 Kan. at 779. A journal entry of sentencing, however, is merely a record of the sentence imposed, and a district court is powerless to vacate and impose a harsher sentence once it has pronounced the sentence. State v. Jackson, 291 Kan. 34, 35, 238 P.3d 246 (2010).
By analogy, we conclude the district court's response to the jury was an accurate statement of law. According to the transcript submitted as evidence at Legette's aggravated failure to appear trial, Legette was physically present when the district court, after the jury convicted him of theft, orally told him three times that his sentencing hearing would be held on June 26, 2009. Cases such as McKnight and Jackson demonstrate that a district court's oral orders generally trump inconsistent journal entries made by the same court. Moreover, Legette never contended at his aggravated failure to appear trial that he had ever been presented with or relied upon the erroneous journal entry. In fact, it would have been absurd to do so as the district court filed the journal entry on February 3, 2010, more than 7 months after Legette failed to appear for sentencing on his theft conviction.
Legette, however, directs this court's attention to Brice, in which the district court erred by instructing the jury before deliberation that “a through and through bullet wound” was “great bodily harm,” an element of the aggravated battery charge against the defendant. 276 Kan. at 760–62. Our Supreme Court reversed and remanded for a new trial because this instructional error precluded the jury, as factfinder, from determining whether the wound constituted great bodily harm. 276 Kan. at 772–75.
Brice, however, is distinguishable from the facts of the present case. Here, the district court accurately responded to the jury's question on a point of law; it did not trump the jury's role as factfinder. Moreover, the jury still had an opportunity to decide for itself whether the State had proved beyond a reasonable doubt that Legette intentionally failed to appear before the court for his sentencing hearing on June 26, 2009. Also, it is particularly telling that Legette never questioned—at trial or on appeal—whether the district court's response was an accurate statement of law.
For all of the foregoing reasons, we hold the district court did not abuse its discretion with its response to the jury question.
Affirmed.