Opinion
No. 110,281.
2014-10-24
Aaron WYLER, Appellant, v. STATE of Kansas, Appellee.
Appeal from Reno District Court; Trish Rose, Judge.Sam S. Kepfield, of Hutchinson, for appellant.Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Trish Rose, Judge.
Sam S. Kepfield, of Hutchinson, for appellant. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., STEGALL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
After his several convictions were affirmed on direct appeal, Aaron Wyler filed a K.S.A. 60–1507 motion. He alleged that his trial counsel rendered constitutionally ineffective legal assistance, first, by failing to raise double jeopardy claims based on convictions Wyler asserted were multiplicitous and, second, by failing to request certain lesser included offense instructions. The district court dismissed the motion after a preliminary hearing. Wyler timely appeals. We affirm.
In 2009 a jury found Wyler guilty of rape, aggravated kidnapping, criminal restraint, criminal threat, aggravated battery, aggravated intimidation of a witness, attempted aggravated criminal sodomy, and criminal damage to property. The district court did not sentence Wyler for the aggravated battery conviction: the parties agreed at sentencing that the aggravated battery conviction should be merged into the aggravated kidnapping conviction. On the remaining counts, the district court sentenced Wyler to a total controlling term of 372 months in prison.
Wyler filed a direct appeal. A panel of this court denied him the relief he requested and affirmed the district court. State v. Wyler, No. 102,336, 2011 WL 2039731 (Kan.App.2011) (unpublished opinion) rev. denied, 293 Kan. 1114 (2011). The parties are familiar with the facts as detailed in that opinion, and repeating those underlying facts is not necessary to our decisions here.
Wyler then filed a K.S.A. 60–1507 motion claiming ineffective assistance of counsel. Wyler asserted that his trial counsel failed to raise multiplicity-based double jeopardy defenses at sentencing. He also maintained that his trial counsel was ineffective in failing to request certain lesser included offense instructions. The district court appointed counsel for Wyler. The State filed a motion to dismiss the K.S.A. 60–1507 motion, and Wyler's counsel filed a written response. The district court conducted a nonevidentiary hearing with counsel to determine whether Wyler's issues required an evidentiary hearing.
The district court dismissed the motion. In its written journal entry the district court held that there was no ineffective assistance of counsel for failing to raise Wyler's double jeopardy claims because the convictions that resulted in sentences were not multiplicitous. It further determined that, contrary to Wyler's contentions, trial counsel had in fact sought the lesser included offense instructions Wyler claimed had been overlooked. Wyler timely appeals from the order dismissing his K.S.A. 60–1507 motion.
Analysis
Wyler advances the same issues on appeal as he did in the district court. He claims that the district court erred as a matter of law by dismissing his K.S.A. 60–1507 motion.
We first set forth, briefly, our standard of review. Here the district court appointed counsel for Wyler, conducted a preliminary hearing, and then denied K.S.A. 60–1507 relief. The rulings Wyler appeals involve only questions of law based on uncontroverted facts in the record, so we are in as good a position as the district court to consider the merits of those claims. Our standard of review, then, is de novo. See Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008). We also exercise unlimited review when determining whether convictions are multiplicitous in violation of constitutional double jeopardy protections. State v. Holman, 295 Kan. 116, 147, 284 P.3d 251 (2012).
In a K.S.A. 60–1507 motion, the burden of establishing ineffective assistance of counsel is on the movant. State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994). Wyler's Convictions of and Sentences for Rape and Attempted Aggravated Sodomy Are Not Multiplicitous in Violation of the Double Jeopardy Clause
Multiplicitous convictions violate a defendant's rights under the Double Jeopardy Clauses of both the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights because they constitute multiple punishments for a single offense. State v. Thompson, 287 Kan. 238, 244, 200 P.3d 22 (2009).
Wyler claims that his rape and attempted aggravated sodomy convictions are multiplicitous. If he prevailed on his claims in this appeal, he would then obtain a considerable reduction in the length of his controlling sentence. Since his trial counsel did not raise a double jeopardy challenge to those convictions, he submits that he received ineffective assistance of counsel. That argument obviously stands or falls on whether the convictions he claims are multiplicitous are actually multiplicitous.
The parties acknowledge that in State v. Schoonover, 281 Kan. 453, 495, 133 P.3d 48 (2006), our Supreme Court definitively explained and announced the exclusive analysis courts are to apply to multiplicity-based double jeopardy claims. The Schoonover court provided the following test:
“When a defendant is convicted of violations of multiple statutes arising from the same course of conduct, the test to determine whether the convictions violate § 10 of the Kansas Constitution Bill of Rights is the same-elements test: whether each offense requires proof of an element not necessary to prove the other offense. If so, the charges stemming from a single act are not multiplicitous and do not constitute a double jeopardy violation .” Schoonover, 281 Kan. 453, Syl. ¶ 12, 133 P.3d 48.
In Thompson, 287 Kan. at 244, 200 P.3d 22, the court explained that if “the convictions are based upon different statutes, the convictions are multiplicitous only when the statutes upon which the convictions are based contain an identity of elements.”
Wyler claims rape and attempted aggravated criminal sodomy are multiplicitous because both crimes include the following element: “When the victim is overcome by force or fear.” Wyler attempts to use the discredited single act of violence/merger doctrine to support his claim. However, in Schoonover, our Supreme Court categorically rejected the single act of violence/merger doctrine and required the use of its same-elements test in multiplicity cases. 281 Kan. at 495, 133 P.3d 48. Wyler acknowledges in his brief that we would likely apply the same-elements test and reject this multiplicity claim. His prediction is accurate.
As in Schoonover, the crimes at issue here arise from separate statutes: Wyler's rape offense was in violation of K.S.A. 21–3502(a)(1)(A); his attempted aggravated criminal sodomy charge derived from sodomy under K.S.A. 21–3506(a)(3)(A). We can infer, then, that the Kansas Legislature intended to criminalize each such act. However, under double jeopardy considerations, one cannot be punished twice for a single offense. So, if the Kansas Legislature actually criminalized identical conduct under separate statutes, the offender can only be punished once. After Schoonover we resolve any tension between such statutory criminalizations and double jeopardy by conducting the same-elements analysis.
Under the first step of the test, we determine whether the charges arose from the same conduct. While that is not necessarily a given here, we do not need to determine that issue. We will assume they did and proceed directly to the second Schoonover test, which disposes of Wyler's issue. Under the second test, we determine whether each of the subject crimes requires proof of an element that is not necessary to prove the other crime. If that is the case, then even offenses that share a similar element are not multiplicitous. Schoonover, 281 Kan. 453, Syl. ¶ 12, 133 P.3d 48.
Sexual intercourse is a necessary element of rape. The statutory definition of sexual intercourse does not include sodomy. The definition of sodomy does not include sexual intercourse. See K.S.A. 21–3501(1) and (2). Each of the subject crimes requires proof of an element that the other does not require: for rape the State must prove sexual intercourse but it does not need to prove an act of sodomy; for attempted aggravated sodomy the State must prove the attempt to commit sodomy, but not sexual intercourse. The crimes do not contain an identity of elements. Therefore, these convictions are not multiplicitous. Wyler's double jeopardy rights were not violated when he was sentenced for each crime. His trial counsel did not render ineffective assistance by not raising a meritless multiplicity argument.
Wyler's convictions of and sentences for aggravated kidnapping and criminal threat are not multiplicitous in violation of the Double Jeopardy Clause.
Wyler seizes on the fact that kidnapping and criminal threat share the term “to terrorize.” But the fact that statutes share a term does not necessarily make convictions under each of them multiplicitous. Again, the crimes relevant here arise from separate statutes. Wyler's aggravated kidnapping offense was in violation of K.S.A. 21–3421; his criminal threat offense was in violation of K.S.A. 21–3419.
Under K.S.A. 21–3420(c), referenced in K.S.A. 21–3421, a kidnapping can consist of “the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person (c) to inflict bodily injury or to terrorize the victim....” (Emphasis added.) Under K.S.A. 21–3419(a)(1) a criminal threat is “any threat to [c]ommit violence communicated with the intent to terrorize another....” The key difference is that the kidnapper must have the intent to hold the victim in order, at some point, to terrorize the victim, while, for criminal threat, the offender must actually make a threat intending that the threat terrorize the victim. The actual making of a threat is not an element of kidnapping, while it is for criminal threat. These “to terrorize” elements are not identical.
Further, we see that each of these crimes requires proof of an element that the other does not require: kidnapping requires proof that the offender took or confined the victim, but criminal threat does not; criminal threat requires proof that the offender actually made a threat to commit violence and communicated it to the victim intending to terrorize the victim, but kidnapping does not require that any threat actually be made. The statutes upon which these convictions are based do not contain an identity of elements. Thompson, 287 Kan. at 244, 200 P.3d 22. So, under the same-elements test these offenses are not multiplicitous. Wyler's double jeopardy rights were not violated when he was sentenced for each crime. Trial counsel did not render ineffective assistance by not raising a meritless multiplicity argument.
Lesser Included Offense Instructions
Wyler also submits on appeal that trial counsel was ineffective in failing to secure lesser included offense instructions for various offenses. The entirety of his remaining briefed claims follows: “The jury instruction conference following the close of evidence does not reveal any effort on the part of counsel to secure a lesser included instruction on the rape count, [and][t]here were no requests for a lesser included offense of criminal threat.”
Wyler has the burden of establishing ineffective assistance of counsel. See Jackson, 255 Kan. at 463, 874 P.2d 1138. Wyler does not explain how the simple factual contentions above demonstrate ineffective assistance of counsel. He does not tell us what lesser included offense instructions an effective counsel would have requested. Nor does he tell us why, if such an instruction had been requested, the district court should have given it. Wyler has failed to sustain his burden of proof that he received ineffective assistance of counsel regarding instructions.
We have conducted our de novo review and determine that the motion, files, and records of the case conclusively establish that Wyler is not entitled to relief. See Edgar v. State, 294 Kan. 828, 836–37, 283 P.3d 152 (2012).
Affirmed.