Opinion
No. 106,539.
2012-10-19
STATE of Kansas, Appellee, v. Craig M. RALSTON, Appellant.
Appeal from Wyandotte District Court; Thomas L. Boeding, Judge. Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant. Sheryl L. Lidtke, deputy district attorney, Jerome A. Gorman, district attorney, Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Thomas L. Boeding, Judge.
Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant. Sheryl L. Lidtke, deputy district attorney, Jerome A. Gorman, district attorney, Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., MALONE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Craig M. Ralston was convicted of two counts of aggravated indecent liberties with a child (K.S.A.21–3504[a][3][A] ), upon his pleas of no contest. He appeals his convictions and sentences. We affirm.
Factual and Procedural Background
On July 2, 2009, the State charged Ralston with one count of aggravated indecent liberties with a child and two counts of rape. The State alleged the crimes were committed against J.V. (who was under 14 years of age at the time) between January 1, 1999, and May 31, 2000. A preliminary hearing and other hearings were held prior to the disposition of the case.
On February 25, 2011, based on a plea agreement, Ralston pled no contest to two counts of aggravated indecent liberties with J.V. between January 1, 1999, and September 28, 2000. As part of the agreement, the parties agreed not to request any sentencing departures. Moreover, the State agreed “to stand silent on the issue of whether these two counts will run concurrently or consecutively with each other.” Both parties, however, agreed to reserve “all other rights at sentencing.” At the sentencing hearing, the district court heard the parties' recommendations and statements from J.V. and her family. The district court imposed a mitigated prison sentence of 55 months on each count and ordered the sentences to run consecutively.
Ralston appeals.
Sufficiency of the Factual Basis for the Pleas
Ralston argues that “he was convicted without jurisdiction” because the “factual basis ... stated by the State ... to support the no contest plea ... was outside the statute of limitations.” In particular, Ralston claims error because “[t]he State of Kansas made no statement at the time of the plea [that] the statute of limitations had not expired.”
Prior to Ralston's pleas, a preliminary hearing was held. At the conclusion of the presentation of evidence, Ralston's counsel raised the issue of the statute of limitations. The prosecutor responded that the limitation period was tolled because Ralston was “either out of the country or out of the State of Kansas.” The record on appeal indicates that Ralston was in the military and was stationed out of state during part of the dates in question. At the conclusion of the argument regarding the statute of limitations, the district court discounted Ralston's argument stating, “For the purposes today and what the court's seen today,” there was probable cause to believe that Ralston was guilty of the offenses charged. On appeal, Ralston acknowledges that he raised the statute of limitations issue during the preliminary hearing but he was bound over for trial.
Ralston then filed a pretrial motion to dismiss based on the statute of limitations. Memoranda of law were filed. On February 15, 2011, the district court denied the motion to dismiss. The district court's order is not in the record on appeal. On appeal, Ralston concedes that he filed the motion to dismiss based on the statute of limitations, which was denied by the district court after a hearing.
At the plea hearing, the State offered the following factual basis:
“Judge, the victim in the case is [J.V.] and her birth date is [xx/xx/'86]. She would testify that beginning in January of '99 and while she was 12 and 13 years of age that [Ralston], who was her brother-in-law married to her older sister, fondled her in a sexual manner on her private parts, that this occurred on numerous occasions at an apartment that he lived in that she visited often ... in ... Wyandotte County. She would also testify that there was more than just fondling and she testified at the prelim so this is known to [Ralston] that she was forced to have intercourse as well with him. And that's essentially what the State's evidence would be in this case in addition to other witnesses who heard [Ralston] confessing to molesting [J.V.].”
Both Ralston and his defense counsel agreed that the State could present this evidence which would result in Ralston being found guilty of the charges.
The district court found Ralston guilty of two counts of aggravated indecent liberties with a child “[b]ased upon the factual basis that's been provided here by [the prosecutor] and the fact that there was a preliminary hearing in this matter, the court's read the transcript of that preliminary hearing and the evidence that was presented at a pre-trial hearing in this matter.”
The State contends Ralston can neither raise this issue for the first time on appeal nor on direct appeal. Our review over subject matter jurisdiction is unlimited. See State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009), cert. denied130 S.Ct. 3410 (2010). Generally, subject matter jurisdiction can be raised at any time. State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010). But this court has only so much jurisdiction as the statutes provide. See State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008).
Under K.S.A. 22–3602(a):
“No appeal shall be taken by the defendant from a judgment of conviction before a district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60–1507 and amendments thereto.”
As a result, we are not persuaded that we have jurisdiction to address this issue on direct appeal. See State v. Hall, 292 Kan. 862, Syl. ¶ 1, 257 P.3d 263 (2011); State v. Thorpe, 36 Kan.App.2d 475, 477, 141 P.3d 521,rev. denied 282 Kan. 796 (2006).
Assuming we have jurisdiction, however, Ralston's issue on appeal is not meritorious. First, Ralston's pleas constitute a waiver of the statue of limitations defense: “The statute of limitations in a criminal case is an affirmative defense which can be waived by the knowing, voluntary, and intelligent acts of the defendant.” Lowe v. State, 14 Kan.App.2d 119, Syl. ¶ 1, 783 P.2d 1313 (1989).
Ralston does not allege that his pleas were unknowing, involuntary, or not intelligently given. He simply contends: “The State of Kansas made no statement at the time of the plea [that] the statute of limitations had not expired.” But there was no need for the State to reference Ralston's affirmative defense. Ralston's statute of limitations defense had previously been considered and rejected by the district court. Under the circumstances, the State was not required to mention the statute of limitations as part of the factual basis for the pleas because by his knowing and voluntary pleas of no contest, Ralston had waived this defense.
Second, we are persuaded the district court did not abuse its discretion in its determination that a factual basis for the plea was sufficiently established. K.S.A.2011 Supp. 22–3210(a)(4) requires that the trial court be satisfied that there is a factual basis for a plea. The statute leaves it to the district court's determination whether the evidence is sufficient to establish the elements of the crime. State v. Edgar, 281 Kan. 30, 44, 127 P.3d 986 (2006). We use an abuse of discretion standard in reviewing whether the district court properly found there was a factual basis for a plea. 281 Kan. at 44.
Our law is clear:
“A factual basis for a plea may be satisfied by a complaint or information given or read to the defendant which sets forth the factual details and essential elements of the particular crime charged; by the evidence presented to the trial court by the prosecutor; by a statement of facts made by the defendant at the hearing; or by evidence admitted at the preliminary hearing if the judge accepting the defendant's plea conducted the defendant's preliminary examination.” 281 Kan. 30, Syl. ¶ 10.
In the present case, the prosecutor's factual recitation coupled with the district court's review of the preliminary hearing proceedings and handling of the pretrial hearing on the motion to dismiss—which included evidence and argument pertaining to Ralston's statute of limitations defense—was sufficient to establish the factual basis for the pleas. We find no inadequacy in the district court's factual finding simply because the State made no statement at the time of the pleas that the statute of limitations had not expired. The fact that the crimes had occurred within the statute of limitations had previously been determined by the district court. That same district court later considered the factual basis for the pleas. The district court did not err.
Whether the Prosecutor Violated the Plea Agreement
For the first time on appeal, Ralston contends the State violated the plea agreement at sentencing. In particular, he alleges that although the prosecutor “made an agreement to remain ‘silent’ on whether the Defendant was sentenced to consecutive or concurrent counts ... The actions of the prosecutor were hardly ‘silent.’ “ As a result, he asks this court to vacate his sentences and that he be resentenced.
On April 8, 2011, Ralston appeared for sentencing. The parties agreed Ralston's criminal history score was I. The district court asked whether the parties had agreed on sentencing, and the prosecutor responded, “Just that the State would stand silent on the issue of whether the two counts run concurrent or consecutive to each other.”
Upon learning that some family members wished to address the district court, the court set out the order of the sentencing hearing—the prosecutor, then “the victim and her family,” defense counsel, and finally, Ralston himself.
The prosecutor addressed the district court as follows:
“Judge, we would ask that you impose the aggravated sentence in both counts. That would be 61 months on both counts primarily because this was a crime that didn't just happen once; it happened often. And you can tell from his criminal history even though he's an I, he has a prior conviction as a juvenile for a sex crime as well and so we think that he's a serious risk to our community and should have to serve the aggravated sentence.”
Next, J.V. addressed the district court. She reported that the crimes of conviction were “only part of what he did to me.” She alleged that “he also raped me several times.” After recounting the effect of the crimes upon her, J.V. stated:
“I have faith in the system that the judicial system strives to protect the victim and no way is giving this man the benefit and the pleasure of serving those two counts concurrently in favor of the victim [ sic ]. We aren't talking about someone whose innocence is unknown. He himself pled guilty to these acts and should be held accountable for their full repercussions which is to serve for both felonies in a consecutive manner to achieve maximum punishment.”
J.V.'s sister, Ralston's former wife, also addressed the court. She alleged that she suffered “11 years” of “countless adultery and cheating,” called Ralston an “evil, terrible man,” and claimed that he had admitted to “raping a woman and molesting her daughter back when we lived in India.”
Ralston's counsel objected to the remarks, arguing that “my client does not have to sit here and—listen to ... what we believe is baseless and unsupported allegations about adultery, cheating, prior rapes in foreign countries, being referred to as evil.” Counsel asserted, “There's a difference between making a statement about how this crime has affected them ... and ... taking pop [ sic ] shots at my client.”
In response, the prosecutor stated:
“[S]he's here to express her feelings about how this crime has affected her and her family.... I don't think she said anything inappropriate. The things that are not part of this conviction I'm sure you can dissect that and take into consideration what you need to in terms of the sentencing, but she needs to have her day in court.”
The district court advised defense counsel that it understood his objection. The district court assured the parties that it could “separate the wheat from the chaff on this issue.”
J.V.'s sister further alleged that Ralston's younger sister said Ralston had “molested her many times.” She claimed to have left Ralston after he “threatened to kill me yet once again in front of my children.” She reported learning from her children that Ralston had abused them as well. J.V.'s sister alleged that if she were to detail all the things Ralston had done to her children, “I guarantee you that every one of you would nauseate [ sic ] and be traumatized over the shock over the evil and sick things he did.” She also claimed Ralston was “dangerous beyond description.”
The district court asked counsel whether criminal charges had been filed against Ralston regarding his own children. The prosecutor said she did not know but “they have an investigation open in Emporia on it.” Ralston's counsel replied, “The answer is no.” The district court remarked, “Well, most of that tirade was not involving this case. Okay, let's go on.”
J.V.'s father then addressed the district court. He asserted that Ralston had threatened “to decapitate my daughter” and claimed “there's going to be much more to come for sure.” He concluded, “For proper and fair justice to be brought today [Ralston] needs to serve consecutive terms in prison so my daughter, my family and other young people do not have to worry and concern themselves with individuals like him for any longer than they have to.”
Next, Ralston's counsel argued for concurrent sentences. He observed that he could “take hours and go over the facts of the case that would dispute much of what these individuals have said,” but he stated, “I know Your Honor has the ability and the experience to separate what is baseless and what is not, but quite frankly, Judge, the majority of what is said, there's no evidence whatsoever of any of that.” Counsel pointed out, “There's no other convictions, there's no other charges pending, there's nothing to support the majority of what was said so I trust Your Honor can separate that.” Counsel argued Ralston had an “extremely limited criminal history,” had “elected not to put the State through a trial,” had “made all his court appearances on his own dime,” and was “nothing but pleasant, cooperative with counsel and with the court.” Counsel asked for concurrent sentences based on Ralston's criminal history, his cooperation, and “his acceptance of responsibility.”
Notably, at the sentencing hearing, Ralston's counsel did not allege that the prosecutor violated the plea agreement or claim that the family's remarks at sentencing breached the prosecutor's agreement to remain silent on the issue of whether the two counts should run concurrent or consecutive to one another.
Finally, Ralston personally spoke to the district court. He said that in contrast to J.V.'s family he was “not as well spoken or I haven't been able to prepare. I had no idea that such things would be said about me.” But he specifically denied the accusations and claimed, “I do have a letter from my ex-wife to her father before she left me stating that she knows he is a drug dealer, a well known drug dealer in the area.” Ralston claimed the allegations made against him by J.V. in Emporia and Missouri were either not supported by his children or that the authorities “threw it out because ... they determined that she coached them.”
Before imposing sentence, the district judge informed the parties:
“Well, I guess I want the record to reflect, first of all, before I impose sentence that I heard a lot of stuff this morning that basically does not pertain to this particular case and I want the record to reflect that the comments made about incidents that may have occurred with other people in other places that I am not taking that into account in what I'm about to do. I think the law basically requires the court to take into account the facts of this particular case. And I did at a bench conference inquire from the prosecutor whether other cases are pending or anything of that nature and [the prosecutor] indicated that ... to the best of her knowledge, there were no new cases, no charges filed or anything of that nature. So just so the record's clear on that, I am not taking those allegations into account in what I'm about to do.” (Emphasis added.)
The district court imposed a mitigated prison sentence of 55 months on both counts but ran them consecutively. In explaining his sentencing decision the district judge said:
“I would tell everybody why I did what I did here. The things that [Ralston's counsel] indicated in terms of acceptance of responsibility, the fact that essentially Mr. Ralston did not put the victim and her family through an additional trial and all the trauma that would take, I'm giving Mr. Ralston the benefit of the doubt on those and that's why I'm imposing the mitigated sentence on each count.
“The flip side of that, in terms of the consecutive sentence, is that these were a continuing course of conduct, so to speak, in terms of the offenses that were committed. This was just not a one time offense, ... there were multiple offenses committed and that's why the sentences are ordered to be served consecutively to one another.”
For the first time on appeal, Ralston asks to be resentenced. Although this issue is raised for the first time on appeal, both our Supreme Court and our court have allowed review under similar circumstances. See State v. Crawford, 246 Kan. 231, 234, 787 P.2d 1180 (1990); State v. Chetwood, 38 Kan.App.2d 620, 623, 170 P.3d 436 (2007), rev. denied 286 Kan. 1181 (2008); State v.. McDonald, 29 Kan.App.2d 6, 9, 26 P.3d 69 (2001). Moreover, the State does not argue that Ralston failed to preserve the issue. Our review of Ralston's argument is unlimited. See State v. Chesbro, 35 Kan.App.2d 662, Syl. ¶ 7, 134 P.3d 1,rev. denied 282 Kan. 792 (2006).
Ralston first argues that the prosecutor made an argument for consecutive sentences “thinly disguised as a request for the aggravated number” in the guideline sentence. He notes the prosecutor argued the repeated nature of his acts and his risk to the community. But these were also legitimate aggravating factors. See State v. Carr, 274 Kan. 442, 452, 53 P.3d 843 (2002); State v. Snow, 40 Kan.App.2d 747, 749, 756, 195 P.3d 282 (2008), rev. denied 289 Kan. 1285 (2009). Hence, Ralston's argument is premised on the notion that the State, in agreeing to stand silent on his request for concurrent sentences, also agreed to stand silent on any factor which might bear upon the sentences imposed within the presumptive range of the guideline sentences.
Not only did the State not make this agreement, it explicitly preserved “all other rights.” If Ralston wished to exclude argument which might touch in any way on his request for concurrent sentencing, he should have bargained for such a promise in the plea agreement. See Chesbro, 35 Kan.App.2d at 676 (“Due process does not require the State to argue ‘enthusiastically’ in favor of a sentencing recommendation, absent a specific agreement to do so.”). In State v. Woodward, 288 Kan. 297, 300, 202 P.3d 15 (2009), for example, where the State agreed to recommend a negotiated sentence, the prosecutor did not breach the plea agreement by arguing against less than the negotiated sentence. Since the plea agreement here did not exclude the prosecutor's argument, Ralston was not denied due process of law.
Next, Ralston attributes the victim and family statements to the State. Ralston suggests the prosecutor “seemed to have a close relationship with the family of the victim.” He also contends the “ ‘victim's family’ should not be witnesses belonging to the State.”
J.V. and her family did ask for consecutive sentencing. But J.V. and her family had a right to address the district court at sentencing under Article 15, § 15 of the Kansas Constitution (2011 Supp.) and K.S.A.2011 Supp. 22–3424(e)(3). This means that although J.V. and her family had a working relationship with the prosecutor, they were not necessarily under her control. See Chesbro, 35 Kan.App.2d at 674 (“[T]he prosecutor cannot control through plea agreement the right created by statute for the victim or the victim's family to be heard at sentencing.”). J.V. and her family had a right to their opinions “as long as the defendant's constitutional and statutory rights are not violated.” See State v. Gideon, 257 Kan. 591, 608, 894 P.2d 850 (1995).
In this instance, some of the victim and family statements were provocative, but Ralston does not base his claim of a due process violation on their inflammatory nature. Issues not briefed are deemed waived or abandoned. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). The record also shows the statements “were made to the court and not to a jury. The court could properly determine what weight, if any, to give to the statements.” Gideon, 257 Kan. at 608. Our reading of the record makes it clear that the district court specifically and properly did not consider those statements which did not relate to the crimes for which Ralston was convicted.
Instead, Ralston bases his claim on the State's alleged use of the victim and family statements to make an argument for consecutive sentencing in violation of the plea agreement. But “there is no evidence within the record that the State solicited” the victim statements. See Chesbro, 35 Kan.App.2d at 674. Because Ralston has not shown that the prosecutor actively used the victim and family statements as a vehicle for the State's position, it is unclear how these statements were attributable to the State. We are convinced that the State did not use these statements “as evidence but in compliance with the right of a victim to make a statement.” See Gideon, 257 Kan. at 605.
Affirmed.