Opinion
No. 107,237.
2013-06-28
STATE of Kansas, Appellee, v. Steven A. FORD, Appellant.
Appeal from Butler District Court; John E. Sanders, Judge. Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for appellee.
Appeal from Butler District Court; John E. Sanders, Judge.
Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., HILL, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
We affirm Steven A. Ford's conviction for aggravated escape from custody. Ford failed to show that he needed a change of venue due to publicity. We are convinced that the State has a rational basis for increasing the penalties of felons who escape from prison. Finally, Ford's criminal history was properly determined by the court.
With help from a prison employee, Ford escapes from prison.
In 2007, Ford and another inmate escaped from the El Dorado Correctional Facility with the aid of a former corrections officer, Amber Goff. Three days later, police officers arrested Ford, Bell, and Goff in Grants, New Mexico. The State charged Ford with aggravated escape from custody in violation of K.S.A. 21–3810(a)(7).
Before trial, Ford raised two points of defense. Ford asked for a change of venue, claiming the substantial media coverage of his case prejudiced any potential Butler County jury. The district court stated it would “reserve a specific ruling” on the motion until the time when the jury was being selected, when Ford could “renew” his motion, or the court would on its own raise the issue if “it becomes apparent that we are unable to get an appropriate jury in this case.”
As a second point, Ford argued that K.S.A. 21–3810 denied him equal protection because, as an escapee from a state correctional institution while in Department of Corrections custody, his possible penalties were greater than penalties applicable to others charged with aggravated escape. The district court declined to find K.S.A. 21–3810 unconstitutional.
Jury selection for Ford's trial began on July 12, 2011. The district court called a group of 34 prospective jurors for questioning. The district court excused four prospective jurors for cause due to their preconceived belief of Ford's guilt. At this point, Ford moved to excuse the whole panel after the district court excused the first two of these prospective jurors, arguing their statements regarding his guilt had tainted the entire jury panel. Ford also argued the statements regarding his guilt were “the same type of thing that I addressed way back in my motion to change venue,” and stated “[w]e didn't deal with this the first time.” The district court treated Ford's request as a motion for a mistrial and denied it. The district court advised the remaining prospective jurors to disregard the personal opinions of the excused prospective jurors. The district court then asked the prospective jurors if anyone else had already made up their mind that Ford was guilty. No juror raised his or her hand. Replacement jurors took the seats of those excused.
Nearly every one of the prospective jurors admitted to having heard or seen the media coverage surrounding Ford's escape. The final question Ford's counsel asked all of the prospective jurors as a group was, “[C]an you all look [Ford] in the eye and tell him that you'll give him a fair trial over the next couple of days?” After which, Ford's counsel noted, “I'm seeing everybody nod their head.” As for the 14 prospective jurors ultimately selected to seat a full jury of 12 plus 2 alternates, 10 trial jurors when questioned individually responded that they could be fair and impartial regardless of the media coverage. The remaining trial jurors were not asked this specific question individually, but no one indicated they could not serve impartially. Ford passed the panel for cause.
The jury convicted Ford of aggravated escape. Ford asked for a new trial. At sentencing, Ford argued that the dismissed jurors' statements were prejudicial, had tainted the entire jury, and had deprived him of a fair and impartial trial. Ford's counsel argued “a mistrial would have been appropriate given those statements.” The district court denied Ford's motion. The district court imposed a presumptive sentence of 130 months' imprisonment.
In this appeal Ford makes three arguments. He first argues that the district court should have granted his motion to change venue and moved the trial to a different county. Next, Ford contends his equal protection rights have been violated because K.S.A. 21–3810 punishes escapees from state correctional institutions more severely than escapees from other facilities. Finally, Ford contends the district court violated his Sixth and Fourteenth Amendment rights as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by determining his criminal history without requiring the State to prove it beyond a reasonable doubt to the jury.
A change of venue was not called for in this case.
Some crimes receive more publicity than others. In Ford's case, the escape of two convicted felons from a state prison with the assistance of a former prison employee who then all fled to New Mexico creates headlines. But the real question here is whether Ford could receive a fair and impartial trial in Butler County, the site of the El Dorado Correctional Facility. The statute on this point directs that a change of venue is the last step to take when avoiding prejudice and seeking justice. K.S.A. 22–2616(1) provides that a district court must grant a motion to change venue “if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.” (Emphasis added.) In other words, the court must be convinced that there is no way the defendant can receive a fair trial.
Our courts have addressed the application of the change of venue statute. In determining whether a change of venue is necessary, Kansas courts consider such factors as the particular degree to which the publicity about the case has circulated throughout the community and to other areas to which venue could be changed; the length of time which elapsed from the dissemination of the publicity to the date of trial; the care exercised and the ease encountered in selecting the jury; the familiarity of the prospective jurors or the trial jurors with the publicity and its resultant effects, if any, upon them; the challenges exercised by the defendant in jury selection, both peremptory and for cause; the connection of government officials with the release of the publicity; the severity of the offense charged; and the size of the area from which the venire was drawn. State v. Higgenbotham, 271 Kan. 582, 592, 23 P.3d 874 (2001); see State v. Krider, 41 Kan.App.2d 368, 372, 202 P.3d 722 (2009), rev. denied 289 Kan. 1283 (2010).
One point stands out in Kansas. Media publicity alone is never enough to establish prejudice. State v. Verge, 272 Kan. 501, 508, 34 P.3d 449 (2001); Krider, 41 Kan.App.2d at 372. And, “[t]he burden is on the defendant to show prejudice exists in the community, not as a matter of speculation but as a demonstrable reality. The defendant must show that such prejudice exists in the community that it was reasonably certain he or she could not have obtained a fair trial.” Higgenbotham, 271 Kan. at 591–92.
In our view, because Ford limits his argument on appeal to challenging the district court's denial of his motion to change venue, he has abandoned any challenge to whether the jury had, due to comments from the excused panel members, become tainted to the extent that justice called for either dismissal of the entire panel for cause or a mistrial. We apply the rule in State v. McCaslin, 291 Kan. 697, Syl. ¶ 6, 245 P.3d 1030 (2011), that states: “An issue not briefed is deemed waived and abandoned.”
When Ford filed his motion to change venue, he included copies of four pretrial online news articles and the online comments made by members of the public in response to each news article. A November 2007 article from KAKE news in Wichita reported Ford's actions during Bell's arrest, noting that Ford had fired four shots towards the officers. In a companion case tried before the trial in this case, a federal jury convicted Ford of multiple federal firearm violations. The United States Tenth Circuit Court of Appeals affirmed Ford's convictions in July 2010. See United States v. Ford, 613 F.3d 1263, 1266–67 (10th Cir.2010). Two articles from the El Dorado Times and Augusta Gazette on April 4, 2008, reported Goff had pleaded guilty to a federal firearms charge and helping Ford and Bell escape. Both articles described how Goff had received Ford's phone call, driven to El Dorado Correctional Facility, and gained access onto the prison's grounds and through two fences to provide Ford and Bell with wire cutters and firearms. Another KAKE news article from May 2008 concerned the efforts by Goff's family after her plea to draw attention to her case and question Ford and Bell's role in the escape.
The State agrees with Ford that there was “substantial media coverage” about the escape.
Ford cites Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), to support his argument that the online comments made in response to the news articles evidenced public animosity towards him and that media coverage had convinced the residents of Butler County of his guilt. In Irvin, the United States Supreme Court held that the pervasive negative media coverage had prejudiced the jury such that it rendered an unfair verdict of guilty. 366 U.S. at 726–28. In that case, 8 of the 12 jurors selected had said that they believed the defendant was guilty despite all having indicated the ability to be fair and impartial. Some of the jurors had said that they would need evidence to overcome that belief. One juror stated he “ ‘could not ... give the defendant the benefit of the doubt.’ “ 366 U.S. at 728. While another juror stated he had a “ ‘somewhat’ certain fixed opinion as to the [defendant's] guilt.' “ 366 U.S. at 728. But even so, we are not moved.
Clearly, the district court here excused four prospective jurors, or approximately 12 percent of the 34 prospective jurors, based on statements made during voir dire indicating an apparent bias. Unlike Irvin, however, Ford cannot point to one selected juror who stated an impression or opinion that would have influenced his or her ability to render an impartial verdict. And once the district court excused the four prospective jurors, the record indicates jury selection went smoothly. Hence, Ford's argument incorrectly relies solely on the media publicity surrounding the escape. See Verge, 272 Kan. at 508. Even so, a small sampling of online negative comments, not necessarily from Butler County, does not show that fair jurors could not be found in Butler County. See State v. Parker, 48 Kan.App.2d 68, 78, 282 P.3d 643 (2012), (court found that online comments expressing anger and revulsion regarding the facts alleged in the rape of a 94–year–old woman did not “cloud every person's willingness to keep an open mind about what really happened and ... to keep an open mind about who committed it.”).
Simply put, Ford has not shown that prejudice existed in Butler County such that it was reasonably certain he could not have obtained a fair trial. The district court skillfully and effectively managed the jury-selection process and eliminated those prospective jurors indicating a bias against Ford. The district court did not abuse its discretion by denying the motion to change venue. After all, Ford did pass the jury panel for cause.
K.S.A. 21–3810 does not violate equal protection principles.
In Kansas, equal protection rights originate from Section 1 of the Kansas Constitution Bill of Rights as well as the Fourteenth Amendment to the United States Constitution. “Section 1 and the Fourteenth Amendment to the United States Constitution provide virtually the same protections.” Miller v. Johnson, 295 Kan. 636, 665–66, 289 P.3d 1098 (2012). The Equal Protection Clause of the Fourteenth Amendment states: “No state shall ... deny to any person within its jurisdiction the equal protection of the laws.” The guiding principle of equal protection analysis is that similarly situated individuals should be treated alike. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); State v. Huerta, 291 Kan. 831, 834, 247 P.3d 1043 (2011).
In this case, Ford maintains his rights to equal protection have been violated because the statute imposes disparate penalties depending on where the escaped felon was incarcerated at the time of his or her escape. Specifically, K.S.A. 21–3810 punishes escapees from state correctional institutions more severely than escapees from other facilities. In response, the State argues it has a legitimate state interest in “maintaining order and security at state correctional facilities” because there is a greater need to deter escapes from these institutions, which house a larger prison population of serious offenders serving longer sentences than individuals who escape from other facilities.
Kansas courts conduct a three-step analysis when an individual challenges the constitutionality of a statute based on an equal protection violation:
“The first [step] is to determine the nature of the statutory classification and whether that classification results in arguably indistinguishable classes of individuals being treated differently. The Section 1 Equal Protection Clause is only implicated if there is differing treatment among similarly situated individuals. [Citation omitted.] The party challenging the statute's constitutionality has the burden of demonstrating he or she is similarly situated to others treated differently. [Citation omitted.] The second step examines the rights affected by the classification because the nature of those rights dictates the level of scrutiny applied to justify the classification. There are three levels of scrutiny: (1) the rational basis standard to determine whether a statutory classification bears some rational relationship to a valid legislative purpose; (2) a heightened or intermediate scrutiny to determine whether a statutory classification substantially furthers a legitimate legislative purpose; and (3) the strict scrutiny standard to determine whether a statutory classification is necessary to serve some compelling state interest. [Citation omitted.] The final step requires determining whether the relationship between the classifications and the object desired to be obtained withstands the applicable scrutiny. [Citation omitted.]” Miller, 295 Kan. at 666.
We turn now to the statute in question, K.S.A. 21–3810. There are seven ways to commit aggravated escape from custody. It is escaping while being held in lawful custody:
“(1) upon a charge or conviction of a felony or (2) upon a charge or adjudication as a juvenile offender ... where the act, if committed by an adult, would constitute a felony or (3) prior to or upon a finding of probable cause for evaluation as a sexually violent predator ... or (4) upon commitment to a treatment facility as a sexually violent predator ... or (5) upon commitment to the state security hospital ... based on a finding that the person committed an act constituting a felony or (6) by a person 18 years of age or over who is being held on an adjudication of a felony or (7) upon incarceration at a state correctional institution ... while in the custody of the secretary of corrections.” K.S.A. 21–3810.
This means a convicted felon, such as Ford, escaping from a state correctional institution without using violence would be charged with a severity level 5 person felony, whereas a similarly convicted felon escaping from any other lawful custody without using violence would be charged with a severity level 8 nonperson felony. Clearly, for purposes of step one of our analysis of this statute, the two groups of persons affected are treated differently.
We now move to the second step in the analysis and look at the rights affected by the statutory classifications and the level of scrutiny we should apply to our analysis. Initially, we note that the Kansas Supreme Court has applied a rational basis test when deciding whether sentencing guidelines classifications are arbitrary. See, e.g., State v. Perez, 269 Kan. 340, 342, 11 P.3d 52 (2000).
But Ford looks at the question differently. Citing Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 (1987), he argues, “the Kansas Constitution's equal protection provisions require this Court to utilize heightened scrutiny when a statute differentiates treatment of a politically powerless class.” The Farley court ruled that a heightened scrutiny analysis was appropriate in that case because malpractice victims were as politically powerless as “traditional ‘suspect’ and ‘semi-suspect’ classifications— e.g., minorities, women, illegitimates, and aliens” and entitled to a more rigorous standard of review than the rational basis test. 241 Kan. at 672. Ford's reliance on Farley is not persuasive.
Farley is distinguishable from this case because it involved medical malpractice victims seeking the right to a remedy. Farley did not address whether a state correctional inmate arguing K.S.A. 21–3810 violated equal protection is a similarly situated politically powerless individual. This difference is important when dealing with constitutional questions. In Miller, 295 Kan. at 668, our Supreme Court declined to alter its decision to apply the rational basis standard to Miller's equal protection challenge based on previous caselaw that did not expressly address the same constitutional challenge at issue.
We hold the rational basis standard of scrutiny applies in this case. Using this standard, a prior ruling of this court persuades us to deny Ford any relief on this question. See Logsdon v. State, 32 Kan.App.2d 1, 3, 79 P.3d 1076 (2002), rev. denied 275 Kan. 965 (2003).
In Logsdon, the defendant pled guilty to aggravated escape from custody in violation of K.S.A.2001 Supp. 21–3810(a)(7). Logsdon subsequently filed for postconviction relief, alleging that the different levels of punishment for different types of escape from custody under K.S.A.2001 Supp. 21–3810 for similarly situated individuals—persons who escape from custody—violated his equal protection rights. This court found that Logsdon failed to show K.S . A.2001 Supp. 21–3810 targeted a suspect class or burdened a fundamental right and then examined Logsdon's equal protection claim under the rational basis test. 32 Kan.App.2d at 5; see also Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (a law will be subject to the rational basis test unless the legislative classification burdens a fundamental right or targets a suspect class.) Logsdon held that the provisions in K .S.A.2001 Supp. 21–3810 did not violate equal protection rights because the legislature could reasonably conclude that “individuals who escape from state correctional facilities pose a greater threat to society than those who escape from security hospitals or county jails.” 32 Kan.App.2d at 5.
Ford concedes that this issue has been decided adversely to him in Logsdon, but he contends Logsdon was wrongly decided for two reasons. First, Ford claims that the only finding Logsdon made to support its ruling that the legislature had a rational basis to enact K.S.A. 21–3810 was its general statement that “ ‘[t]he power to prescribe the penalty to be imposed for the commission of a crime rests exclusively with the legislature, not the courts.’ [Citation omitted.]” 32 Kan.App.2d at 5. From this statement, Ford concludes, “Since the Logsdon [c]ourt was unable to articulate a rational basis supporting K.S.A. 21–3810's discrimination, it follows that no such rational basis exists.” Ford, however, failed to read the entire paragraph in Logsdon containing the above-quoted statement regarding why this court would not comment on the appropriateness of penalties imposed by the legislature. In that same paragraph, Logsdon clearly pointed to the legislature's conclusion that individuals escaping from state correctional facilities are a greater threat to society than those individuals who escape from other facilities as being a legitimate state interest. 32 Kan.App.2d at 5. Indeed, the Logsdon court did find a rational basis for the sentencing differences.
Second, Ford maintains that the heightened scrutiny standard applies to the disparate sentencing classifications under K.S.A. 21–3810, relying on Farley, 241 Kan. 663. We have previously addressed this position and rejected it.
Ford cites no Kansas case or any authority from any other jurisdiction in which an appellate court has held that state correctional inmates like himself should be afforded status as a quasi-suspect class. In Downtown Bar and Grill v. State, 294 Kan. 188, 194, 273 P.3d 709 (2012), the Kansas Supreme Court reiterated, “ ‘[I]f the legislative classification does not target a suspect class or burden a fundamental right, the court applies a rational basis test.’ “ See also Chiles v. State, 254 Kan. 888, 869 P.2d 707,cert. denied513 U.S. 850 (1994) (court held that statutory classifications created by retroactivity provision of Sentencing Guidelines Act were subject to rational basis test).
We hold that K.S.A. 21–3810 is constitutional because the State has identified a legitimate state interest that the legislature could rationally conclude was served by enacting the statute differentiating between individuals who escape from custody under different circumstances. See Logsdon, 32 Kan.App.2d at 5.
Ford's criminal history was properly determined.
For his final argument, Ford contends the district court violated his Sixth and Fourteenth Amendment rights as interpreted by Apprendi v. New Jersey, 530 U.S. 466. He argues that the district court's use of his criminal history for sentencing purposes without requiring the State to prove it before the jury beyond a reasonable doubt enhanced his sentence in violation of Apprendi. Ford, however, concedes that the Kansas Supreme Court rejected a similar argument in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), but includes the issue to preserve it for federal review. We see no reason to depart from the holding in Ivory.
Affirmed.