*1 (223 827) P.3d 100,075 No. Barry Kansas, Fillman,
State of P. Appellee, Appellant. *2 filed 2010. Opinion January Office, Folsom, III, Kansas Defender
Carl Appellate appellant. Foulston, district Ñola Tedesco district at- Matt assistant attorney, Maloney, J. Six, and Steve attorney torney, general, appellee. Caplinger, Standridge, Buser and Before P.J., JJ. P. Fillman was convicted of two counts Standridge, Barry J.: assault and one count of This is aggravated aggravated battery.
his direct appeal.
Facts
3,2007,
On
to an amended
January
pursuant
complaint,
alia,
was
inter
with
two counts of
charged,
committing
aggravated
assault and one count of
These
were
aggravated battery.
based on an incident
at
Gannon’s
taking place Tammy
apartment
28, 2006,
on
where Fillman
.22
fired a
caliber rifle at
September
times,
Gannon three
her once and
her
hitting
intentionally missing
2, 2006,
twice. On October
arrested Fillman.
police
During
arrest,
discovered that Fillman
two flaskscontain-
police
possessed
fuses,
a tin can that was
ing explosive powder
protruding
like a
in blue
with a
shaped
hockey puck
wrapped
tape
pro-
fuse,
ammunition,
of .22 caliber
and a .22 caliber
truding
bag
Fillmаn,
(10th
rifle. See United
Prior to his trial on the assault and jury aggravated Fillman was and convicted in the United battery charges, charged States District Court for the District of Kansas of two counts of destructive device and three counts of possessing unregistered (found a felon in of a firearm and ammunition being possession him and used at Gannon’s Each of the five counts for apartment). which he was convicted carried a maximum sentence of statutory 924(a)(2) (2006); See 18 U.S.C. 26 U.S.C. years’ imprisonment. § §
Fillman’s
reflected that his total
presentence investigation report
offense level under the federal
was 38 and
sentencing guidelines
III,
that his criminal
was
fed-
history category
making
advisory
eral
292 to 365 months’
sentencing guideline range
imprisonment.
level,
the offense
services officer
calculating
pretrial
assigned
to Fillman’s case took into account
that Fillman unlawfully pos-
sessed the firearm in
with an
assault and
conjunction
Gannon. Pursuant
to the United States
aggravated battery upon
(USSG)
Commission Guidelines
2K2.1(b)(6)
Manual
Sentencing
*3
(2003), these
circumstances
added four levels to the
attenuating
total
(2006).
offense level. See 18
U.S.C.
On July
Fillman was sentenced to a
term of 292 months’ im-
controlling
His convictions and sentence were later affirmed on
prisonment.
Fillman,
See
After sentence, he received his federal Fillman filed a motion in district court to dismiss the state assault and aggravated motion, him. In of this aggravated battery pending against support Fillman maintained he had been for these already prosecuted par- ticular crimes when the federal court relied on them to enhance his total offense level at facts, Based on these Fillman sentencing. 21-3108(3)(a) that K.S.A. the State from argued prohibited pros- him. The district motion, court denied Fillman’s ecuting holding that because the elements of the federal crimes and state crimes different, 21-3108(3)(a) were K.S.A. did not bar the State from its case Fillman. pursuing against
A convicted Fillman of two counts of jury ultimately aggravated assault, 21-3410(a), K.S.A. and one count of aggravated battery, 21-3414(a)(2)(B). K.S.A. trial, filed a motion for a new within which he raised his that K.S.A. 21- again argument 3108(3) (a) the State from him. The district prohibited prosecuting court denied thе motion and sentenced Fillman to a controlling 29-month sentence. The district court ordered Fillman’s prison state sentence to run concurrent with his federal sentence.
Analysis (1) Fillman raises three of error on The district points appeal: court erred to dismiss the assault and fading aggravated aggra- vated him based on tire battery charges against previous prosecu- court; (2) tion in federal the two convictions of (3) Gannon were the district court erred upon multiplicitous; him ato based sentence on a criminal highеr history that was not to the a reasonable doubt. We proved jury beyond address each of these in turn. points I. Previous Prosecution 21-3108(3)(a), on K.S.A. Fdlman the district
Relying
argues
court erred when it did not dismiss the
assault and
him based on the
aggravated battery charges against
previous pros-
ecution in federal court. Whether the district court
erred
apply-
21-3108(3)(a)
to the facts of this case raises a
ing
question
law
Schroeder,
to unlimited review. See State v.
279 Kan.
subject
104, 108,
As a we note that Fillman relies preliminary exclusively on K.S.A. and not on the federal or state constitu- tional his guarantees against support argument end, on this issue. To that we find it particular helpful distinguish between the two before Fillman’s concepts addressing argument.
The Double
Clause of the Fifth Amendment to the
Jeopardy
United
(1)
States Constitution
a second
protects against
prosecu
tion for the same
(2)
offense after
a second
acquittal,
*4
for the
conviction,
(3)
same offense after
and multiple punishments
See,
for the same
Schoonover,
offense.
453,
State v.
281 Kan.
e.g.,
463,
(2006)
133
Pearce,
P.3d 48
Nоrth Carolina v.
395 U.S.
(citing
711, 717,
656,
23 L.
[1969],
Ed. 2d
Notably, Supreme not the Fifth Amendment does prohibition against for the same crime apply by separate sovereignties. prosecutions Alabama, See Heath v. 82, 87-89, 474 U.S. 88 L. Ed. 2d said, (1985). S. Ct. 433 With that the Kansas enacted Legislature federal and state statute specifically prohibiting prosecutions crime certain circumstances. See K.S.A. 21- same under 3108(3). states, That statute pertinent part; “A is barred if the defendant was in a district formerly prosecution prosecuted court of the United in a court of of a or States or sister state jurisdiction general in the court of of this state for a crime which is within the municipal any city statе, concurrent if of this such former jurisdiction prosecution: “(a) Resulted either a conviction or an and the acquittal, subsequent prose- conduct, cution is for the same unless each prosecution requires proof of fact in the other or the offense was not consummated when prosecution, added.) 21-3108(3)(a). the former trial began.” (Emphasis 21-3108(3)(a)
To determine whether K.S.A.
the State
prevents
from
a defendant who
has been
pursuing charges against
previously
our
Court has
prosecuted by
government,
Supreme
stated that where
statute
an
one
offense
factual
describing
requires
not,
elements that another statute does
“then the offenses are not
same,
and a conviction or
under one does not bar
acquittal
under the other on the
of double
ground
jeopardy.”
Worth,
State v.
393, 398,
217 Kan.
The State contends Worth is on with the facts precisely point in this case. the State out that Fill- presented Specifically, points man was convicted in federal court of two counts of possessing destructive device and three counts of a felon unregistered being of a firearm and ammunition. The State further possession points that assault, out Fillman was in state court with charged which is defined as using deadly weapon intentionally place another in reasonable of immediate person apprehension bodily harm, and which is defined as aggravated battery, intentionally harm to another or causing great bodily person disfigurement that, another The State concludes like the facts in person. just Worth, the federal of Fillman factual ele- required ments to be that were not in his state proved prosecution, and his state factual elements to be prosecution required proved that were not in his federal prosecution. Worth, both the acknowledges analysis holding Nevertheless, Fillman maintains that when his were used thе federal court to aggravated battery charges enhance the base offense level for those purposes sentencing, crimes became facts the elements of his firearm con- constituting victions We prosecution. disagree.
The United States
Court has held that the facts con
the elements of a crime are those that increase the max
stituting
imum
to which the defendant
is
under
punishment
exposed
gov
v. New
law. See
466, 490, 147
530 U.S.
Apprendi
Jersey,
L.
erning
435, 120
Ed. 2d
S. Ct. 2348
The Court’s
was based
holding
deductive
A crime is defined as conduct
simplе
reasoning.
the State. Conduct is
the State when
punishable by
punishable by
it
the individual
Therefore,
to new or additional
exposes
penalties.
conduct
that increases the maximum
to which he
any
punishment
or she is otherwise
must be deemed a crime. The
exposed
predicate
“
”
facts of such conduct constitute the
‘elements’
of the “crime.”
States,
v. United
At this we find a brief review of both point, in Booker instructive. Booker was arrested after of- holding police in duffle He later ficers found 92.5 of crack cocaine his grams bag. in which he admitted to a written statement to the gave police crack cocaine. A an additional 566 ultimately grams jury selling to distribute at found Booker with an intent guilty possessing 841(b)(l)(A)(iii) least 50 of crack cocaine. U.S.C. pro- grams with vided for a minimum sentence of statutory yeаrs prison a maximum sentence of life. statute, set forth
Notwithstanding sentencing range federal at that time were impose punishment judges forth within the of sentences set range sentences, In range calculating applicable guidelines. take into account both the seriousness of the offense guidelines and the offender’s criminal Each of crime is history. type assigned level, a base offense which is the starting point determining seriousness of a offense. addition to base offense lev- particular els, each offense it carries with a number of type typically specific offense These characteristics. characteristics from offense to vary offense work increase or decrease the base offense level and, the sentence an offender receives. ultimately,
At Booker’s found sentencing, judge by preponderance (1) the evidence that Booker distributed 566 over and above grams the 92.5 that the had to have found in order to return grams jury (2) verdict and Booker had obstructed Under the guilty justice. *7 federal this factuаl the mandatory sentencing guidelines, by finding increased base Booker’s offense level from to32 which judge increased his sentence from a (21 maximum 262 of months years, months) 10 to a 30of to life. range years
Booker vi- appealed, arguing sentencing guidelines olated his to a trial. More Booker right jury specifically, alleged that the an increase in his base offense level guidelines required and an thus in enhancement the based on facts sentencing range, determined a rather a than a by sentencing judge jury. compre- hensive the United States Court two-part opinion, agreed with Booker. In the first of the the Court held that part opinion, it was unconstitutional to use fact to enhance a base offense any level, and thus the under the federal sentencing range, sentencing unless that fact was to a guidelines reasonable proven juiy beyond doubt. In the second of the the Court part opinion, provided for these unconstitutional enhancements the remedy by deeming nature, federal in be sentencing guidelines advisory opposed 543 See U.S. at 245-68. mandаtory. The fact the that federal are now sentencing guidelines only means that the maximum to which a defend- advisory punishment ant is under law is no number exposed governing longer high in the base Instead, under the sentencing range guidelines. maximum to which a defendant is nowis punishment exposed maximum sentence in the section prescribed applicable United States Code.
252 case, court’s consideration die federal
In Fillman’s aggravated increased sentence of resulted and assault battery aggravated federal under months’ 292 advisory imprisonment however, 292 did not months imposed Notably, guidelines. sentence the maximum exceed imprisonment statutory 50-years’ United States Code. section applicable prescribed 26 each 924(a)(2); U.S.C. 5871 18 U.S.C. See (establishing § carried maxi- Fillman was convicted five for which of die counts maxi- of 10 sentence mum making years’ imprisonment, statutory mum sentence years). exceed the sentence did not 292-month federal
Because the of 50 sentence maximum aggravated years’imprisonment, statutory elements did not become assault necessary battery aggravated (facts U.S. at convictions. See of the federal Apprendi, those that increase maximum elements of crime are constituting law). under to which defendant governing exposed punishment not become did Because assault battery aggravated convictions, the federal of the federal elements prose- necessaiy state factual elements cution prose- such, 21-3108(3)(a) does not K.S.A. bar and vice versa. As cution Fillman for subsequent against prosecution court. state See and aggravated battery in federal barred if defendant formerly prosecuted (prosecution conviction, and state court, resulted in federal prose- conduct, is for “unless each cution same proof prosecution requires *8 fact in the other of a not prosecution”).
II. Multiplicity two that his convictions
Fillman argues he did Gannon were acknowledges multiplicitous. upon Nonetheless, he issue at trial. raise the properly multiplicity issues raised courts consider *9 Gannon found to Gannon’s bedroom. then went Fillman sleep Fillman’s hid in her couch and the under her purse. pistol pistol he to leave. and him that needed Fillman told then woke She up looked underneath his he While was up things, gathering was there. Fillman that his no and discovered the couch longer gun was, like she did and Gannon acted Gannon where the asked gun walked out was about. Fillman know what he eventually talking rifle, a .22 walked back into his vehicle where he to apart- got to his ment, Gannon what resumed and then asking happened Fillman, Gannon, he a while fired to questioning pistol. According to her attention” because a inside the shot at wall “get apartment to inside the was he Gannon grab pistol. purse thought reaching Then, later, at the wall when he he fired another shot 10 minutes a second time. Gan- was for the Gannon reaching pistol thought incident, son, at the time of the was non’s who inside apartment the shots were minutes. about 10 also stated that separated facts, the Schoonover factors two to we find these sep- Applying As first to the fac- acts inside Gannon’s arate occurred apartment. were Given tor, into the wall 10 minutes the two shots fired apart. of assault between was no other conduct there charge supporting shot, we not believe the evidence second do the first and clearly at or the other whether the conduct occurred one establishes way factor, however, the facts the same time. As the second or near at the same two fired into the wall occurred that the shots establish location. factors, that was an we find there
As to the third and fourth shot that there the first and second event between intervening shot into wall. fresh which motivated second was a impulse fired that Fillman the evidence demonstrates More specifically, for he Gannon was first shot into the wall when believed reaching then, time A 10-minute according passed pistol. period Fillman, time. a second reached Gannon pistol allegedly a fresh mo- there was that These facts impulse finding support the wall— times he shot into Fillman for each of two tivating two was Fillman’s belief Gannon sep- pistol reaching 10 minutes arate occasions apart. *10 factors, the four Schoonover we conclude Fillman’s balancing
two convictions of
did
not arise from the same
conduct; thus, his convictions were not
See also
multiplicitous.
Hawkins,
10, 17-18, 188
State v.
40 Kan.
2d
(2008),
P.3d 965
App.
(2009) (defendant’s
rev. denied
III. Criminal History Fillman contends the district court erred
Finally,
him to a
sentence
based
a criminal
that was not
higher
history
to a
a reasonable doubt. Fillman
proved
concedes that
jury beyond
our
Court has
this
in State v.
Supreme
rejected
argument
Ivory,
44, 41
(2002).
273 Kan.
P.3d 781
This court is
bound to follow
duty
Court
absent some indication the
court de
Supreme
precedent,
from its
Merrills,
State v.
37 Kan.
parting
previous position.
App.
81, 83, 149
869,
2d
P.3d
(2007).
rev. denied
Affirmed.
# # * I with concur decision J., concurring: majority’s Cаplinger, However, Fillman’s convictions. I with the ma- affirming disagree rationale Fillman’s double jority’s rejecting jeopardy challenge and, with the failure to its extension specifically, majority’s explain of the 21-3108(3)(a) K.S.A. to sentenc- protection provided by of a former ing phase “prosecution.” notes, As the the Double Clause the Fifth majority Jeopardy Amendment to the United States Constitution protects against for the same offense well as second multiple punishments pros- ecutions for the same offense after cоnviction or Slip acquittal. op. Further, Bill the Kansas Constitution guar-
at 5. Rights either If Fillman were same antees the relying upon protection. his double to or state Constitution our federal jeopardy support claim, of the extended discussion sentencing phase majority’s be Fillman’s federal appropriate. prosecution might
However,
because the Fifth Amend-
as the majority recognizes,
does
ment
pros-
apply
jeopardy
prohibition against
the same crime
ecutions for
sovereignties,
by separate
fоr his double
as the basis
must rely upon
discuss
then
claim. The
extensively
majority
proceeds
*11
and whether the facts
supporting
process
of
constituted elements
level offense enhancement
Fillman’s base
I believe
It is at this
that
a crime in his federal
point
prosecution.
an
the
overlooks
issue
the
scope
regarding
majority’s analysis
claim.
of Fillman’s
statute which is
our
dispositive
in
21-3108(3)(a)
relevant
K.S.A.
provides
part:
in a
if
district
the defendant was
prosecuted
“A
barred
formerly
prosecution
the
a crime which is within
concurrent
of the United States ...
for
juris-
court
state, if
of this
such former
diction
prosecution:
“(a)
and the
prose-
in either a conviction or
subsequent
Resulted
acquittal,
conduct,
of a fact
is for the same
unless each
requires proof
cution
prosecution
added.)
in the other
not
prosecution.” (Emphasis
required
that the term
refers
The
assumes
“prosecution”
majority simply
if we
were
the
a federal
to
Again,
sentencing phase
prosecution.
of the federal Constitution
the Double
Clause
Jeopardy
applying
be аccurate. How-
that
or its Kansas
might
counterpart,
assumption
21-3108(3)(a)
ever,
and
we
concerned here
with
are
only
in
K.S.A.2008
as used
that statute.
the term
Supp.
“prosecution,”
“all
21-3110(18)
defines
proceedings by
“prosecution”
legal
an in-
is determined.” Once
which a
crime
person’s liability
crime,
that crime
of a
dividual has been convicted
liability
determined,
has not.
has been
although
punishment
21-3108(3)(a)
when the
does
bar
That K.S.A.
not
prosecution
of a former
at issue was used
conduct
only
sentencing phase
It
of the statute. does
seеms evident from language
prosecution
aof
fact
if “each
not bar
proof
prosecution requires
This
does
in the other
not
clearly
prosecution.”
provision
required
when the conduct at issue was not
to be
apply
proven
court,
federal
as was
case here.
And in that
I would find it
in the
regard,
unnecessary
engage
as to whether the facts
majority’s lengthy analysis
constituting
elements of the crime increased the maximum federal punishment
to which Fillman
out,
was
As the
exposed.
majority points
United States
Court has hеld that the “facts”
constituting
a crime are those that increase the maximum
to which
punishment
the defendant is
under
law.
v. New
exposed
Apprendi
governing
530 U.S.
147 L. Ed. 2d
Clearly, his in the maximum, federal case penаlty beyond statutory those facts would have been submitted to a jury proven beyond case, reasonable doubt. had And that been the then would only we consider the of K.S.A. and determine application whether each a fact not prosecution required proof the other prosecution.
Thus, I would find that the federal court’s use of Fillman’s simply *12 conduct to enhance his sentence in federal court was underlying not a 21-3108(3)(a). “prosecution” contemplated notes our multiplicity appellate the of or time оn to serve ends for the first prevent justice appeal Simmons, See, 282 State a denial of a fundamental right. e.g., 728, 743, 148 (2006). are mul 525 Whether convictions P.3d Kan. to unlimited review. Schoon law is a subject tiplicitous question over, 281 at 462. Kan. 253 is of a offense in several counts Multiplicity single charging or a information. create a complaint Multiplicitous charges po- tential for for one offense. Such mul- multiple punishments single are the Double Clause tiple prohibited punishments Jeopardy of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of State v. 284 Rights. Conway, 37, 54, Kan. P.3d Schoonover, our Court established an analytical framework for issues. The court stated: determining multiplicity issue, “In a double is analyzing jeopardy whether the overarching inquiry convictions are for the same offense. There are two to this components inquiry, (1) both of which must be met there to be a double violation: Do jeopardy (2) the convictions arise from the same conduct? and definition are By statutory there two offenses or one? Under the the conduct only component, is first if discrete, e., i. committed and do separately severally, convictions not arisefrom the same is no there violation. If the arise jeopardy offense transaction, from same or act the conduct is and the second unitary component must be to see if the convictions arise from the analyzed same offense. Under the second it be must determined whether component, the convictions from arise a statute or from statutes. If single the double issue multiple arises from jeopardy statute, convictiоns for violations of multiple the unit of test single is If the double applied. issue arises from convictions of differ- multiple statutes, ent issue, in other it words is a multiple description same-elements added.) test is applied.” Kan. 15. (Emphasis Syl. ¶ issue, With to the first whether regard parties dispute course of conduct Fillman s two convictions for supporting aggra- vated assault were of the same act or were actions. part separate Schoonover identified four factors to be considered in resolving this dispute: “(1) [Wjhether time; (2) acts оccur at or near the same whether the acts occur location; (3) acts, at same whether there is a causal between the relationship event; (4) whether particular there was an and whether intervening there fresh some the conduct.” 281 at impulse Kan. 497. motivating factors, In order to consider these we find it properly necessary to review the evidence at trial to the two counts presented support summarized, assault. the evidence Highly presented at trial establishes that Fillman inside Gannon’s brought pistol it underneath her couch her room. apartment placed living