State v. NeerState v. Neer
- Reporters:
- , ,
- Before:
- Lockett
Edward E. Neer appeals the district court’s refusal to modify his sentence. In addition, Neer argues that there was insufficient evidence to sustain his conviction for aggravated criminal sodomy in case 86 CR 983 based on our holding in
State v. Moppin,
245 Kan. 639, Syl. ¶ 1, 783 P.2d 878 (1989), that oral-genital stimulation between the tongue of a male and the genital areа of a female is not “sodomy” under
Neer was charged with one count of aggravated criminal sodomy (
Neer appealed, claiming the district court abused its discretion by imposing the maximum sentences. We found the defendant’s sentences were within the statutory guidelines and affirmed the trial court in an unpublished opinion, No. 60,418, filed October 30, 1987. Our mandate was filed on December 22, 1987.
Thе defendant then filed a motion to modify his sentence on February 22, 1988. On January 19, 1989, based upon the presentence investigation (PSI) and Kansas Reception and Diagnostic Center (KRDC) reports, the trial court found that the defendant, while only 24 years old, had the potential to be a “dangerous animal” if releаsed and denied Neer’s motion to modify his sentence. On April 27, 1989, the defendant appealed the trial court’s denial of his motion to modify the sentences and for the first time raised the issue that oral-genital stimulation between the tongue of a male and the genital area of a female is not included in the definition of “sodomy” in
A sentence imposed by the district court which is within the lawful limits will be overturned on appellate review only where there is abuse of discretion or the sentence was the rеsult of partiality, prejudice, or corrupt motive. State v. Adams, 242 Kan. 20, 27, 744 P.2d 833 (1987); State v. Jennings, 240 Kan. 377, 380, 729 P.2d 454 (1986).
In the PSI report the court services officer recommended: “This officer does feel that the defendant does not show any remorse for the crimes that he has committed. This officer would recommend that maximum time be given.”
The KRDC report included Neer’s statement that his sentence is “fair” since the defendant acknowledged, “I’ve done a lot of burglaries and breaking and entering, and not been caught for those, I’m paying the price of those now. ” In addition the KRDC report stated Neer has little regard for the rights of others or society, his interpersonal relationships are dominated by exploitation and by demanding attention, he has little empathy or concern for others, he voices no remorse for the victims of these crimes, and he minimized his serious alcohol and substance abuse. The KRDC report stated “[the defendant] is seen as an aggressivе and potentially very dangerous man who should clearly remain within the correctional system to serve an appropriate sentence.” Neither the PSI nor the KRDC reports are favorable.
The sentencing court considered the PSI and the KRDC reports and stated its reasons for refusing to modify the sеntence. The court adequately reviewed the reports and did not abuse its discretion in denying Neer’s motion to modify his sentence.
Neer next argues that his conviction for aggravated criminal sodomy in case 86 CR 983 should be reversed because of insufficient evidence.
In State v. Moppin, 245 Kan. 639, 783 P.2d 878 (1989), a father was convicted of aggravated criminal sodomy for performing cunnilingus on his daughter. At trial, three staff members from the Kansas Institute, the psychotherapist, and the foster mother testified that the child had repeatedly told them that her father had liсked her between her legs. Moppin, 245 Kan. at 641. On appeal we held “that cunnilingus is not an act of ‘sodomy’ as the term is defined by statute, that defendant was improperly charged, and that there was insufficient evidence to establish oral copulation.” Moppin, 245 Kan. at 644. Moppin’s conviction for aggravated criminal sodomy was reversed. Neer argues since he was similarly charged and convicted, our decision in Moppin should be applied retroactively and his conviction for aggravated criminal sodomy should be set aside. In case 86 CR 983, Neer’s conviction was based on the victim’s testimony that he had performed cunnilingus on her on two оccasions, when she was twelve years old.
In Kansas, “piecemeal appeals are frowned upon.” State v. Newman, 235 Kan. 29, 31, 680 P.2d 257 (1984). The State argues Neer’s sufficiency of evidence issue is not properly before this court since he had failed to raise this issue at trial and in his original appeal. A point not raised before, or presented to, the trial court cannot be raisеd for the first time on appeal. See State v. Heck, 8 Kan. App. 2d 496, 502, 661 P.2d 798 (1983).
For Neer to appeal his original conviction for aggravated criminal sodomy, he must do so within 120 days of the imposition of sentence plus the 10 additional days granted under
Under Kansas law, where an appeal is taken from the sentence imposed and/or a conviction, the judgment оf the reviewing court is res judicata as to all issues actually raised, and those issues
Although Neer concedes that he failed to raise this issue at trial or in his original appeal, he claims that fundamental fairness requires this failure be overlooked, citing Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989). We disagree with Neer’s analysis аnd his conclusion that Lane is applicable.
In
Lane,
the petitioner, a black man, was convicted in an Illinois state court of attempted murder and other offenses by an all-white jury. During jury selection, the prosecutor used all 10 of his peremptory challenges to exclude blacks. Petitioner twice unsuccessfully moved for a mistrial, аrguing that he was “entitled to a jury of his peers.” 103 L. Ed. 2d at 344. The prosecutor defended the challenges by stating that he was trying to achieve a balance of men and women on the jury. After an unsuccessful state court appeal in which he argued that the prosecutor’s use of peremptory challengеs denied him the right to be tried by a jury that was representative of the community, petitioner filed a habeas corpus petition in federal district court, repeating his “fair cross-section” claim. He further argued that the opinions of several Justices concurring in and dissenting from the denial of
certiorari
in
McCray v. New York,
461 U.S. 961, 77 L. Ed. 2d 1322, 103 S. Ct. 2438 (1983), had invited a reexamination of
Swain v. Alabama,
380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965), as to what a defendant must show to establish a prima facie case of discrimination with respect to a peremptory challenge system. He also argued, for the first time, that under
Swain
a prosecutor could be questioned about his use of peremptory challenges once he volunteered an explаnation. The district coqrt held that it was bound by
Swain
and circuit court precedent and denied relief. A panel of the 7th Circuit Court of Appeals agreed with petitioner that the Sixth Amendment’s fair cross-section requirement that applied to a jury venire also applied to a petit jury- and held that petitiоner had made out a prima facie case of discrimination. But, the Court of Appeals voted to rehear the case en banc and postponed rehearing until after the United
In Lane, the United States Supreme Court first reviewed and then enunciated the rules for retroactive application of a new constitutional rule. Like Neer, the petitioner in Lane failed to raise a claim at trial or on direct appeal in the Illinois courts and because of this failure he had forfeited review of the claim in the Illinois courts. The Supreme Court recognized, “ ‘It is well established that “where an appeal was taken from a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those that could have beеn presented but were not are deemed waived.” ’ ” Lane, 489 U.S. at 297, (quoting People v. Gaines, 105 Ill. 2d. 79, 87-88, 473 N.E.2d 868, 873 [1984], cert. denied 471 U.S. 1131 [1985]).
After recognizing that new constitutional rules of criminal procedure generally will not be applied retroactively to cases on collateral review, the United States Supreme Court accepted Justice Harlan’s suggestion for two exceptions to the rule stated in his separate opinion filed in
Mackey v. United States,
401 U.S. 667, 675, 28 L. Ed. 2d 404, 91 S. Ct. 1160 (1971).
Lane,
103
The United States Supreme Court stated that the fundamental fairness exception is a narrow one that applies in limited circumstances. Lane, 103 L. Ed. 2d at 347. It then determined that because a decision extending the fair cross-section requirement to a petit jury would not be applied retroactively to cases on collateral review on thе approach adopted, it would not address the petitioner’s claim. See Lane, 103 L. Ed. 2d at 348. In effect, the respondent in Lane won the battle, but lost the war.
Lane’s “new rule” only applies to whether a new constitutional rule of criminal procedure should be given prospective or retroactive effect. As examples of a new constitutional rule of criminal рrocedure the Court discussed its prior decisions of Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961), which made the exclusionary rule applicable to the states, and Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), which held that, absent other effective measures to protect the Fifth Amendment privilege against self-incrimination, a person in custody must be warned prior to interrogation that he or she has certain rights, including the right to remain silent. See Lane, 103 L. Ed. 2d at 349-51.
Neer’s claim that the “new rule” exception pronounced in
Lane
requires reversal of his conviction for aggravated sodomy fails for two reasons. First, in his original appeal, Neer failed to raise the question of sufficiency of the evidence; therefore, our decision affirming the sentence imposed by the district court was res judicata to the issue actually raised and those issues that could have been raised. Our decision in
Moppin
is not applicable to
Neer,
since Neer’s case was final before our decision in
Moppin
Neer finally argues a Kansas appellate court may consider an issue not briefed when exceptional circumstances require consideration of the new issue tо serve the ends of justice or to prevent the denial of a fundamental right. State v. Puckett, 230 Kan. 596, 597, 640 P.2d 1198 (1982). Puckett was a direct appeal ia a criminal action where the defendant had been convicted of 21 violations of the Kansas Securities Acts. The Court of Appeals reversed and remanded the case for a nеw trial based on trial errors that had not been raised by the defendant. The State appealed, claiming that the Court of Appeals had exceeded its power. In affirming the Court of Appeals we recognized that although ordinarily an appellate court will not consider an issue which has not been raised in the trial court or which has not been raised by the parties on appeal, the appellate court does have the power to do so sua sponte in exceptional circumstances, where consideration of the new issue is necessary to serve the interest of justice оr to prevent a denial of fundamental rights. State v. Puckett, 230 Kan. at 598.
Neer’s right to appeal is entirely statutory and not a right vested in the United States or Kansas Constitutions. Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribеd by applicable statutes.
State v. Tripp,
237 Kan. at 246. Neer was required to appeal his original conviction within 130 days; see
Affirmed.