Opinion
No. 110,650.
2014-10-31
STATE of Kansas, Appellee, v. Michael MARTINEZ, Appellant.
Appeal from Sedgwick District Court; William Sioux Woolley, Judge.Lydia Krebs, of Kansas Appellate Defender Office, for appellant.Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; William Sioux Woolley, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ATCHESON, J., and JAMES L. BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Michael Martinez appeals the district court's determination of his criminal history following his conviction of one count each of aggravated burglary, a severity level 5 person felony; possession of cocaine with intent to distribute, a severity level 3 drug felony; aggravated battery, a severity level 7 person felony; fleeing or attempting to elude an officer, a severity level 9 person felony; and criminal use of weapons, a class A nonperson misdemeanor. Specifically, Martinez asserts the district court erred by including an uncounseled misdemeanor conviction to calculate his criminal history score. In addition, Martinez claims his constitutional rights were violated because his criminal history was not proven to a jury beyond a reasonable doubt, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Because it is unclear whether Martinez' prior misdemeanor conviction was obtained in violation of his Sixth Amendment right to counsel, we remand for an evidentiary hearing on the issue of whether the conviction should have been scored in his criminal history.
On December 20, 2012, Martinez entered pleas of guilty to one count each of aggravated burglary, possession of cocaine with intent to distribute, aggravated battery, fleeing or attempting to elude an officer, and criminal use of weapons. The district court ordered a presentence investigation (PSI) report. Martinez' criminal history worksheet disclosed 18 prior convictions, 3 of which were person misdemeanors that converted into a person felony. Based on this conversion, Martinez' criminal history score was C.
At sentencing, the district court asked whether either party had an objection to the criminal history, and both the prosecutor and defense counsel indicated there were no objections. The district court specifically addressed Martinez, and he agreed that all of the items listed were his convictions. When the district court asked Martinez if there was any reason not to include any of the convictions in his criminal history score, Martinez stated that he believed a prior conviction for felony possession of marijuana with intent to distribute should be excluded because it had been expunged. The district court explained that expungement does not take a prior offense out of the criminal history for sentencing. Martinez indicated that he had no further objections to his criminal history.
Based on a criminal history score of C, the district court imposed a controlling term of 67 months' imprisonment.
On appeal, Martinez argues for the first time that one of the misdemeanor convictions used to calculate his criminal history score was uncounseled. Martinez did not raise this issue before the district court. The State claims that because Martinez failed to preserve the issue for appeal, we should dismiss the issue. The State claims that if Martinez wishes to challenge his criminal history score on this basis, he should pursue a collateral attack by filing a motion to correct an illegal sentence with the district court.
Martinez claims that we may address the issue for the first time on appeal because his sentence is illegal and should be vacated under our caselaw. If Martinez' criminal history score includes an uncounseled misdemeanor conviction, the sentence is illegal. An illegal sentence issue may be considered for the first time on appeal. See K.S.A. 22–3504(a) (The court may correct an illegal sentence at any time.); State v. Rogers, 297 Kan. 83, 93, 298 P.3d 325 (2013). The question of whether a sentence is illegal is a question of law over which we exercise unlimited review. State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013).
The district court converted three of Martinez' misdemeanor convictions to a felony for the purposes of calculating his criminal history score. However, the journal entry for one of those convictions—a Wichita municipal court conviction for battery—does not reflect that Martinez had counsel or that he knowingly and voluntarily waived his right to counsel. The use of an uncounseled misdemeanor to enhance a criminal history score violates the right to counsel under the Sixth Amendment. If either the crime severity level or the criminal history score is in error, a defendant can challenge a sentence as being illegal. State v. Neal, 292 Kan. 625, 631, 258 P.3d 365 (2011). The sentence would be illegal if it included an uncounseled misdemeanor in the calculation of the criminal history score.
In State v. Youngblood, 288 Kan. 659, Syl. ¶ 2, 206 P.3d 518 (2009), our Supreme Court held that a person accused of a misdemeanor has a Sixth Amendment right to counsel if the sentence to be imposed upon a conviction includes a term of imprisonment, even if the jail time is suspended or conditioned upon a term of probation. See K.S.A. 12–4405 (defendant has a statutory right to counsel in a prosecution in municipal court if could be deprived of liberty). “[A]n uncounseled misdemeanor conviction obtained in violation of a person's Sixth Amendment right to counsel may not be collaterally used for sentence enhancement in a subsequent criminal proceeding.” State v. Long, 43 Kan.App.2d 328, 331, 225 P.3d 754 (2010) (citing Youngblood, 288 Kan. 659, Syl. ¶ 3).
Here, the journal entry for the challenged prior misdemeanor conviction does not reflect that Martinez had counsel or knowingly and voluntarily waived his right to counsel. The journal entry reflects a 6–month jail sentence, triggering the right to counsel. See 288 Kan. 659, Syl. ¶ 2. However, our record is limited to the journal entry. If Martinez had challenged this conviction as uncounseled at the district court level, the State would have had the burden to show that Martinez had in fact been provided counsel or that a waiver of counsel was knowingly and intelligently made, A waiver of counsel may not be presumed from a silent record. 288 Kan. at 662.
As the State asserts: “As it stands now, there is not a full picture regarding defendant's prior misdemeanor convictions, and what has been added to the record is ambiguous at best.” We are unable to determine from the present record whether the misdemeanor conviction was in fact uncounseled or whether a waiver of counsel had been obtained. See Neal, 292 Kan. at 640 (remanding to the district court for evidentiary hearing on motion to correct illegal sentence to determine whether prior uncounseled misdemeanors were improperly included in calculating the criminal history score).
Accordingly, we remand to the district court for an evidentiary hearing on the issue of whether the challenged conviction was uncounseled. If the district court determines that it was in fact uncounseled, the sentence is illegal and Martinez should be resentenced without the inclusion of the conviction for the purposes of sentencing enhancement. Youngblood, 288 Kan. 659, Syl. ¶ 3. As provided in K.S.A. 22–3504(a), Martinez shall be present for the hearing and represented by counsel.
Martinez also contends that the trial court's use of his past convictions in determining an appropriate sentence violates his constitutional rights because his criminal history was not determined beyond a reasonable doubt by a jury. In support of this claim, Martinez relies on the United States Supreme Court's decision in Apprendi, 530 U.S 466. If this was a valid claim, it would void the use of any of Martinez' criminal history, including the disputed misdemeanor conviction, and the issue of whether it was counseled or uncounsled would be moot.
Martinez acknowledges that the Kansas Supreme Court has rejected his argument and has found Kansas' 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 (2003). We, therefore, decline his invitation to rule otherwise, especially in light of the Supreme Court's recent reaffirmation of Ivory. See State v. Hall, 298 Kan. 978, 991, 319 P.3d 506 (2014); State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013).
Reversed and remanded with directions.