*1 100,359 No. Appellee, Kansas,
State of Jr., Appellant. Garza, Merardo (236 501) P.3d Opinion filed 2010. July Davis, Michelle A. Office, Kansas Defender Appellate argued cause was on the brief for appellant. Isherwood, A. assistant Lesley district cause, attorney, argued and Nola Foulston, Tedesco Six, district and Steve attorney, attorney were general, with her on the brief for appellee. of the court was delivered opinion Garza, Merardo his sentence and Jr., appeals Biles, convic- J.: tions indecent liberties with a child pursuant of a child 21-3504(a)(3)(A) K.S.A. *2 in to life 21-3502(a)(2). sentenced He was K.S.A. to pursuant under sentence of minimum years with mandatory prison court has Law. This 21-4643, known as K.S.A. commonly Jessica’s crime; life 22-3601(b)(l) sen- K.S.A. (off-grid
jurisdiction tence). (1) Was Garza raised on are
The
appeal:
following questions
(2)
the district court ex-
trial?
Did
new counsel before
to
entitled
insuffi-
(3)
document
Was
evidence?
relevant
charging
clude
list
it did not
because
crime
Garza to
to sentence
off-grid
cient
(4)
sentence
Garza’s
the crime?
Should
of
as an element
his age
Bello,
v.
under State
and remanded
be vacated
resentencing
(5)
its
195-200,
and
Factual and children, the child wife, have four and his Garza including Amy, X.S., who was 13 victim, has two M.G. Garza also stepdaughters, lived with Garza. A.C., old. old, was who They years aon to this case occurred incident rise Saturday evening The giving from returned home members and other visiting M.G. after family after relatives midnight.
M.G. testified she down on the room floor to lay to living go Garza was on the couch. M.G. testified sleep. lying beside lay her, his “put [her] like fingers them.” She vagina wiggled took his hand out of times, her two and then he pants rubbed her bottom the on outside of her The next M.G. told her pants. day, Then, she told her mother. Her stepsisters. mother took her to the evaluation, for an and the incident hospital was reported police. Garza’s defense was that forced M.G. theory make a Amy false accusation. He relied on from one of his other who testified Garza and had daughters, Amy previously fought went to also Amy jail. testified had said daughter she Amy would tohe Garza testified he put jail. com- caught Amy with other men on the Internet. municating He also testified M.G. to Kansas with her supposed uncle the go City night *3 incident, but did not let her Amy go. The information Garza with indecent lib- charged erties with a child under K.S.A. 21-3504(a)(3)(A) (c) and, and in the alternative, 21-3502(a)(2) (c). K.S.A. and Both were listed as felonies, and Garza’s date of off-grid person birth was listed as 1969. Neither included Garza’s as an element charge age trial, offense. At the detective testified Garza investigating was over 18 The district court issued the age. elements instruction from PIK Crim. 3d 57.06 and PIK Crim. 3d 57.01. The instructions did not include Garza’s as an element the of- age fenses, and the did not make a jury his He finding regarding age. was convicted of both offenses.
Garza filed a downward on behalf, motion his own departure and his counsel also filed a motion a downward seeking departure. Garza’s counsel’s motion stated: “This is a Law’ case and ‘Jessica’s sentence is Life with presumptive parole eligibility years. The defendant would state that a such sentence would amount to cruel and unusual The Court has punishment. to option depart (cid:127) to the a sentencing guidelines sentence.” impose guideline
At the on motions, these Garza a hearing was argued departure because a life sentence exceeds appropriate of harm degree committed this He case. also he was entitled to a argued depar- ture sentence his criminal includes one mis- histoiy only eval- offender cited the sexual Garza conviction. demeanor Finally, risk of had a low Garza uation, determined reoffending which The district would be treatment sexual offender appropriate. that rea- substantial to find compelling court held was required claim, was it held each After departure to sons addressing depart. filed a Garza warranted. timely appeal. of additional filed a letter Garza his While pending, appeal R. 6.09(b) (2009 Kan. Ct. Rule Court under Supreme authority defendant’s recent 47), this court’s Annot. holdings citing determined that must be the offense by is an element See Morningstar, offense. to sentence off-grid Gonzales, State (2009); 2-3, 213 P.3d Syl. ¶¶ Bello, (2009); 10-11, 212 P.3d ¶¶ Syl. 3-4. Syl. ¶¶ New Counsel to Issue 1: Entitlement district counsel. The dire, substitute Garza Refore voir requested sufficient had not Garza motion court denied the presented finding he es- On new counsel. argues appeal, grounds appoint counsel with his dissatisfaction” tablished appointed “justifiable his He have new counsel and he was entitled appointed. concerns about was not attorney’s trial counsel citing prepared, witness and to secure failure to transcript provide preliminary refus- did not err district State testimony. did not establish new counsel because justi- ing appoint counsel. his trial with fiable dissatisfaction Review Standard of *4 to the court’s refusal review district appoint courts
Appellate
discre-
of discretion.
for an abuse
trial counsel
substitute
“Judicial
fanciful,
is
action
the district court’s
abused when
arbitrary,
tion is
McGee,
Kan.
or unreasonable.”
take
would
reasonable
(2006).
whether
test is
The
person
any
Analysis the new counsel complaints: following citing
Garza requested the a him with failed to (1) preliminary copy Counsel provide witnesses; (3) coun- to (2) failed contact counsel transcript; hearing to was feel counsel (4) lied; Garza did pro- prepared sel ceed. he stated counsel transcript, hearing preliminary Regarding ordered, but he been had if a unsure
was
transcript
preliminary
available. The
if one was
a
check
would
copy
provide
tran-
into
should look
counsel
indicated
getting
district
was not
a
to
grounds
failure
but noted
transcript
provide
script
have a con-
do not
because defendants
new counsel
for appointing
for a
asked
Counsel
ato
subsequently
stitutional
transcript.
right
was
office, which
clerk’s
check the
granted.
continuance
a
whether
resumed without
transcript
mentioning
proceedings
tran-
indicates
the record
hearing
but
preliminary
provided,
trial.
after
until
was not prepared
script
to have
the failure
whether
must decide
preliminary
We
irrec
demonstrates
use at trial
prepared
transcript
hearing
findWe
and his
existed between
attorney.
oncilable conflict
entitled
are not
Defendants
prelimi
not.
automatically
does
entitled
are
defendants
only
Indigent
transcripts.
nary hearing
are used
factors
Two
effective defense.
for an
transcripts required
(1) necessity
whether
to determine
transcript
required:
of alterna
(2) the
for the defendant
availability
the transcript
493, 497, 731 P.2d
Ruebke, 240 Kan.
State
tive devices.
A review of they *5 examined trial. Garza’s counsel was at the during present prelim- so he was aware of these inary hearing, witnesses’ personally prior at the such, As the district preliminary hearing. found the failure to a correctly did not demon- request transcript strate irreconcilable conflict.
The counsel’s failure to contact complaints regarding witnesses and Garza’s accusation his counsel lied are the same actually issue. Garza did not believe one witness would be to willing appear in court because the witness had an warrant. Garza outstanding believed counsel lied when counsel told him the had witness agreed to Counsel stated he became aware of testily. the witness the pre- vious him, with and the witness evening, spoke agreed testify. said he was with the witness attorney that afternoon. meeting Counsel also have had valid acknowledged may reservations about the witness because of the warrants, but he in- outstanding tended to follow he up. said Finally, intended to issue attorney for the if witness he subpoena scheduled kept appointment and had meaningful testimony.
The district court held it was not counsel’s fault witness was not earlier because the subpoenaed information had come to just and a continuance would light be more if appropriate remedy the witness could not be A reasonable subpoenaed. would person with the district court’s agree denial on this issue. Garza’sargument that had occurred, not anticipated and the problems better remedy be would to seek a continuance could not be subpoena trial, served. At no witnesses were called defense, for but the record is silent as to No additional why. was made on argument about the failure to call defense appeal any witnesses.
As to Garza’s final raised trial—that he did not point feel counsel was prepared counsel said he proceed —Garza’s The district court found counsel prepared. had not done anything fhat him from prevented trial. for We being prepared agree.
For the first time on he was entitled appeal to new counsel because Garza stated he wanted seek a continuance before voir dire to the witness but his counsel did subpoena file motion. new theories cannot Generally, be raised legal the first time on Kirtdoll, 1138, 1149, 136 appeal. *6 The an not assert (2006). Garza does 417 exception applies. P.3d new coun- erred not have could appoint district court by refusing was not when sel presented. theory raised, fail because it would were if this issue But even properly meet- after the scheduled a continuance to seek had time counsel to secure issue the if he could not with the witness subpoena ing circumstance does trial. This at signal the witness’ presence Garza and his existed between conflict attorney. irreconcilable Evidence 2: Exclusion Issue excluded twice the district court next improperly review, we find this. On The State only evidence.
relevant disputes evidence excluded the district in which one instance actually irrelevant. claimed, that evidence was as Review Standard of is to the exclusion evidence when first
The step reviewing 60-401(b) de- K.S.A. is relevant. the evidence whether determine in reason as “evidence relevant evidence tendency fines having any 574, Henson, Kan. 287 See State material fact.” any prove two com- (2008). 578, This 456 definition 197 P.3d encompasses it is ma- and whether the evidence is whether probative ponents: 69-70, Dixon, 209 289 Kan. 578; at see State v. terial. “ ‘furnishes, is evidence that (2009). Probative evidence P.3d 675 ” Klose v. Wood contributes toward Valley establishes proof.’ (1999). It is Club, 975 P.2d Inc., Racquet Dixon, 289 Kan. standard. an abuse of discretion under reviewed is fact at issue that to a evidence at 69. Material significant goes Reid, 286 Kan. State v. law of the case. under the substantive whether evidence (2008). The determination 186 P.3d Dixon, 289 Kan. at a de standard. novo material is reviewed 69. established, rules relevance is governing
Once evidentiary matter of as a are exclusion of evidence admission or applied discretion, on the in the exercise of ap- law or depending judicial basis is But if the rule. questioned, legal adequacy plicable 70; de novo. this issue courts review appellate 39, 47-48, Gunby,
Analysis
First, Garza to admit (M.G.’s evidence that sought mother Amy wife) Garza’s had an Internet man, with another relationship who moved in arrest, after Garza’s left the man alone Amy with the children. The district court allowed that a man moved into the house after Garza’s arrest. The State be- objected fore the next bench, discussion at the question. During counsel stated he intended to ask whether left the children Amy alone with this man to show she was not concerned for her chil- dren’s safety. occurred: following exchange “THE COURT: Now that’s out of field on it getting way because that doesn’t have to do with the anything motive for her her child having falsify situation. *7 “[THE Before he STATE]: into chief, goes like this in his case in anything I want to have a outside the hearing presence the because I don’t think it’s relevant.
“[GARZA’S I won’t COUNSEL]: there. go “THE COURT: Okay.”
Garza’s counsel returned and on another began questioning Amy issue. The demonstrates that the trial transcript only ques- relevance, tioned but it did not rule on the Garza vol- objection. declined to the untarily further, pursue to questioning presumably avoid additional submitting establish relevance. testimony Therefore, Garza’s to this issue on challenge appeal misplaced.
Second, Garza the exclusion of from challenges the sister, A.C., victim’s whether Garza once became regarding upset “with and the and even you at siblings Amy looking inappropriate websites.” Garza it was relevant to show argued how the household run, was would demonstrate was firm on be- inappropriate haviors, and was admissible because it was not a instance specific of conduct. The State it was irrelevant objected, and in- arguing admissible as a instance conduct specific described impeach. The State Garza had established argued the how already household was run because one of Garza’s had testified she stepdaughters just her dad would them thought for ground looking inappropriate material. The district court sustained the objection. relevance, it should be noted the
Before testimony’s addressing have testified. how A.C. would failed to question proffer as of the evidence indicate the substance does itself clearly 60-405, states: which K.S.A. required by aside, or decision set nor shall shall not be judgment “A verdict or finding reversed, exclusion of evidence reason of the erroneous be thereon by based evidence either made known of record that proponent unless appears in a form and method by of the evidence approved judge, substance evidence substance of the by questions indicating indicated the expected answers.” desired reference contained
Counsel’s inappropriate avague question were the websites websites sexuallyexplicit. suggested this the first time on now counsel appeal appellate the children’s relevant to establish information knowledge not in the record be- this assumes evidence material. But sexual what he deemed counsel did not establish cause “inappropriate child, and it is unclear whether for an website” 11-year-old M.G., her victim, in the incident was involved involving allegedly did not make claim error because he is not entitled to sister. Garza Coleman, See State v. a proffer. not assert error
(1993) (“It that a is well established may party of a of evidence the absence on the erroneous exclusion based evidence.”). of that excluded proffer websites” establishes even the term But “inappropriate assuming A.C., and Garza sub- viewed her Amy pornography siblings, children, matter does not this subject sequently disciplined *8 made a defense was that M.G. Garza’s case. His theory support the it to Garza out of false Amy encouraged get allegation children. Evidence the children without of the house custody losing toward does not establish or contribute viewed proof pornography In than M.G.’s or was more credible that Garza’s Amy’s. addition, Garza was the who while evidence only parent suggesting websites the children for helps viewing inappropriate disciplined claimed, behaviors, as he firm on establish Garza was inappropriate material to a fact at issue. the evidence was not argued made her. The district court M.G. lied because trial that Amy this evidence. correct to exclude 3:
Issue
Document
Sufficiency
Charging
Garza next
the district court lacked
to sen-
jurisdiction
tence him under K.S.A. 21-4643 because the
instrument
charging
did not
he was 18
or older. He
he should
allege
years
age
be sentenced under
because of this defect. This
guidelines
issue was raised for the first time on
and it fails under this
appeal,
Gonzales,
court’s
and State v.
analysis
Gracey,
Whether a
document
confers
mat-
charging
sufficiently
subject
ter
is a
of law
to unlimited review.
jurisdiction
question
subject
The test
document de-
governing
sufficiency
charging
when the issue is raised. If it is
for the first
pends upon
challenged
time on
the defendant must show the
defect either:
appeal,
alleged
(1)
defense;
(2)
defendant’s
of a
im-
prejudiced
preparation
the defendant’s
the conviction in
sub-
paired
ability
plead
any
(3)
limited the defendant’s
substantial
sequent prosecution;
to a fair trial.
Issue 4: Law age Proof of defendant’s Jessica’s Gonzales, above,
As mentioned and Morningstar, Bello, 211 P.3d 139 this court held the de fendant’s had to be submitted to the before a defendant age could be sentenced to an offense under K.S.A. 21-4643. off-grid Garza was convicted of and he was sentenced to an rape, off-grid offense under K.S.A. 21-3502 and K.S.A. 21-4643. The State con cedes Garza’s was not submitted to or determined jury. *9 Gonzales, Bello, and there was evidence
But unlike Morningstar,
case, a detective
to the
In this
Garza’s
jury.
age presented
regarding
Nevertheless, Garza
than 18
of
was older
testified Garza
age.
years
466,
530 U.S.
v. New
violates
his sentence
Apprendi
Jersey,
(2000),
435,
because his
490,
120 S. Ct.
147 L. Ed. 2d
age—
or older—
whether he was 18
or the determination
age
a child
indecent liberties with
of both
was an element
21-
crimes under K.S.A.
sentenced to
when
off-grid
on
and the
and its
4643. Bello
subsequent
rely Apprendi
progeny
for their
cases
holdings.
followingApprendi
in State
the harmless error
Garza also
analysis recognized
1147,
Daniels,
53,
cert. denied
element is harmless error
beyond
reviewing
element was uncontested and
doubt that the omitted
reasonable
evidence, such that the
verdict
jury
by overwhelming
supported
”
at 62. This
the error.’ 278 Kan.
would have been the same absent
1, 17-19,
States, 527 U.S.
is based
Neder v. United
analysis
upon
35,
(1999).
S. Ct. 1827
144 L. Ed. 2d
(2010),
666,
re-
sions
as well as
Apprendi
Washington
466, 126
Recuenco,
212, 165
2d
S. Ct. 2546
548 U.S.
L. Ed.
“[fjailure
a sen-
Recuenco,
to submit
the Court concluded
*10
factor to the
like failure to submit an element
to the
tenting
jury,
is not structural error.”
In Garza’s than there was Garza was more There was no about this as the trial age. dispute pro Therefore, there was uncontested evidence before the gressed. jury on which it could have based a about Garza’s at the finding age offense, time of the instructed to do so. This evidence properly Gonzales, and Bello. Garza’s case from Morningstar, distinguishes inAs we are convinced the Reyna, error that oc Apprendi-type i.e., case, in curred when the trial court made the de termination rather than make the actual having finding, was harmless.
Issue 5: Cruel and Unusual Punishment Argument his life sentence violates the constitutional argues prohi bition cruel and unusual against punishment Eight Amendment to the United States Constitution of the Kan § sas Constitution Bill of He this issue was Rights. argues preserved for because he stated the sentence would “amount to cruel appeal and unusual in his motion. punishment” departure Finally, Freeman, State v. cites the 223 Kan. applicable analysis the test for is argues disproportionality satisfied because the for this offense is than punishment greater for more serious crimes. punishment
The State
this issue should not be reached because it is
argues
State v.
raised for the first time on
Ortega-Cadelan,
appeal, citing
2, 194
287 Kan.
P.3d 1195
The State also
Syl. ¶
for the Freeman
the first
driven and must
prong
analysis
factually
alternative,
the district court. In the
the State
be raised before
not unconstitutional.
the sentence is
cases,
this court declined to review this issue for the
previous
485-87,
State v.
first time on appeal.
Easterling,
650, 652-54,
(2009);
P.3d 418
State
Spotts,
Thomas,
157, 160-61, 199
(2009);
P.3d 1265
(2009);
Since these factors include both
and factual
legal
inquiries
the district court did not make these
this court
required findings,
487; Thomas,
declined to address the issue.
289 Kan. at
Easterling,
gotiations, departure and reiterated the claim on the record at the sentencing hearing. This court held the issue was raised before the district sufficiently court. It then addressed whether the failure to move for additional under Court Rule barred the claim. See findings Supreme (2009 239). Rule Kan. Ct. R. Annot. The court concluded was not barred. This court remanded the issue to the district court to maleethe factual and determinations. 289 Kan. at required legal 720-21. But the Seward court cautioned: future, we believe this case to be In the a
“We emphasize exceptional. constitutional to a defendant who wishes to on the basis appeal challenge statute must ensure the and conclusions the district sentencing findings judge of a motion are sufficient by filing invoking support appellate argument, 165, if under Rule Kan. at 721. judge’s duty necessary.” failed Garza’s claim is from Seward because he distinguishable raise the issue before the district court. In his de sufficiently motion, Garza stated a life sentence would constitute a parture cruel and unusual But he did not cite punishment. any authority, test, address the Freeman this three-prong argue point during Seward, In contrast to the defendant in departure hearing. there is no evidence of an effort to this issue for preserve appeal. Issues raised in that are not or cited passing by argument supported are deemed waived. authority Morningstar, Syl. ¶ 4.
Issue 6: Arbitrary Capricious Argument 21-4643(d),
Garza next that K.S.A. statute departure Law, contained violates his due process rights Jessica’s the Fourteenth Amendment to the United States Constitution and 18 of the Kansas Bill Constitution because it allows for § Rights decision arbitrary discriminatory making. statute is unconstitu-
Principally,
departure
tional because it allows
decision
The State treats
arbitrary
making.
this as a
to the district court’s determination that sub-
challenge
stantial and
reasons did not exist to
compelling
justify departure.
*12
This court
addressed a defendant’s due
at
recently
process rights
and a
of our
determined that the sen-
sentencing,
part
analysis
discretion,
itself,
court’s
does not violate due
tencing
by
process
the discretion is exercised within the
of
requirements
procedural
due
Issue 7: Conviction the Alternative Charge the district court erred con-
Finally, by entering indecent with a victions for both liberties child and aggravated of child under because the information charged these counts in the alternative. Garza contends he is prejudiced by this error because the indecent liberties conviction ap- on his criminal record. The State the conviction does pears not have to be reversed and vacated because these are not charges multiplicitous. Dixon, (1992),
In State v.
P.2d
this
court held that
defendant
with more than one offense
“[a]
charged
in a
be
than
convicted of more
one
multiple-count complaint may
where,
here,
offense. In contrast
as
the defendant has been
alternative,
in the
he
be convicted of
one of
charged
may
only
Blanchette,
686, 704, 134
fense.” See State v.
2d
P.3d
App.
rev. denied
Dixon holds that a defendant cannot be convicted of both clearly when the in offenses crimes are the alternative. The dis- charged trict court understand this since did not appeared partially sentence Garza for indecent liberties with a child. But aggravated indecent liberties conviction must be reversed.
Affirmed in in reversed part part. I with the J., dissenting: respectfully disagree major-
Johnson, decision to affirm Garza’s sentence for the version of ity’s off-grid 21-3502(a)(2). under K.S.A. I believe Garza should have been sentenced for the crime with which he was and of which charged i.e., he was convicted level 1 version of the juiy, severity offense. State v.
I discussed
reasons for
on
in
this issue
my
dissenting
(2010),