Opinion
No. 106,765.
2012-08-24
STATE of Kansas, Appellee, v. Dustin Scott HOLLOWAY, Appellant.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge. Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BUSER and LEBEN, JJ.
PER CURIAM.
Dustin Scott Holloway appeals the district court's denial of his motion for a continuance. Holloway pled guilty to aggravated burglary and sexual battery. During plea discussions, Holloway's attorney told him she would get him a psychological evaluation, but she neglected to do so. At sentencing, she disclosed her oversight and moved for a continuance pending Holloway's evaluation. The court denied the motion and proceeded to hear other testimony in mitigation of Holloway's sentence. After denying his motion for a departure, the court sentenced him to the mitigated imprisonment term of 50 months. We affirm.
The district court did not err because it had great latitude to control its docket and discretion to grant or deny a continuance. Holloway has not shown an abuse of discretion because defense counsel's claim that his crimes were out of character does not constitute a substantive proffer of mitigating evidence. Nor has he shown prejudicial error because of the speculative nature and impact of the mental health evidence.
Holloway pled guilty to aggravated burglary in violation of K.S.A. 21–3716 and sexual battery in violation of K.S.A. 21–3517. After the district court conducted the requisite plea colloquy, the State set forth the following factual basis for the plea. Holloway's victim was a friend's mother with whom he had lived for a short time. One night in September 2008, he entered her house without authorization while she was lying in bed. He jumped on top of her, held a pillow and his hand across her face, told her to remove her pants, and also tried to remove them. She struggled to escape and bit his hand. When he jumped off of her and went to the window, she ran outside and called the police. Holloway had fled by the time the police searched the victim's house, but he returned later while she was being treated at the ambulance. The police noticed that he had an injured hand and matched the general description of the suspect. In addition to bagging her bloodstained pants, they swabbed his bleeding hand. In her follow-up interview 1 week later, the victim said she was ninety-five percent sure that her attacker was Holloway. Holloway's DNA matched the DNA from the blood on her pants. When the police brought Holloway in for an interview, he confessed to drinking on the night in question and entering the victim's house to steal her vehicle. He did not realize she was in her bedroom. Upon discovering her, he held her down and tried to cover her eyes so she would not be able to identify him. He then looked for her purse with hopes of finding her car keys. When he did not find them, he ran out the back door.
Holloway and his attorney, Cindy Sewell, signed an Application to Modify Plea and Advice of Rights form, which did not mention a psychological evaluation but it did contain the following provisions:
12. State of Mind: My mind is clear and I am not presently under the influence of alcohol or drugs or under a doctor's care for mental, emotional, or psychological conditions which would in any way affect my ability to make a reasoned and well-informed judgment or decision, and I know of no reason why my mental competence at the time of the commission of these offense[s] or at the present time should be questioned. I am satisfied that I am in full possession of my faculties and well able to make sound and reasoned decisions as to what is in my best interest.
15. Full Extent of Agreement: This Agreement contains all of the terms and conditions of the agreement between myself, my attorney, and the office of the District Attorney and there are no agreements, understandings, assurances or promises made to me, or made by anyone, not contained herein that I have considered or relied on or been influenced by in order to induce me to enter into this agreement.
Before sentencing, Sewell filed a motion for a dispositional departure. She cited four reasons for departure to probation: (1) his only prior crime had occurred over 10 years ago when he was a juvenile; (2) he took responsibility for his crimes by pleading guilty; (3) he had time to be rehabilitated because he was young; and (4) he was amenable to probation because for the past 1.5 years he had successfully performed on bond and never missed an appointment with his attorney or a court appearance. She did not suggest that Holloway was mentally unstable at the time he committed his crimes. Holloway's aunt and grandmother wrote to the judge appealing for probation; both characterized his crimes as a mistake—he had had too much to drink and ... made a big mistake, and a terrible mistake—but neither described him as having mental health issues.
At the sentencing hearing on April 22, 2011, Sewell informed the district court of an error she had made during her representation of Holloway. She had told Holloway during their plea discussion that she would have him evaluated by a psychologist to try to find an explanation for his out of nowhere erratic behavior. When he called her the previous week, she noticed the doctor's name that she had written in her file; she had completely forgotten about the note. She moved for a continuance so she could have Holloway evaluated for the Court's consideration [because] this behavior [was] ... totally out of the ordinary for him. The court denied Sewell's motion for lack of a substantial proffer—there was no prior history, [ ] diagnosis, [or] behavior that would support a mental health concern.
Holloway had been previously adjudicated a juvenile offender for committing acts that would have constituted criminal threat, after he had called in a bomb threat to his high school, Based on a criminal history of D and a severity level 5 person felony, his sentencing range was 50–52–55 months' presumptive imprisonment. The district court heard testimony in mitigation of Holloway's sentence: his bond supervisor reported that she had been supervising him for almost 2 years and he had not violated any conditions; his mother said his crimes were extremely out of character and she did not think he was a threat to society; his grandmother said he has a calm demeanor; his aunt said he is a wonderful man and she did not think incarcerating him was the answer; his girlfriend said he is the most wonderful guy in the world; and his girlfriend's mother said she had never seen any unusual behaviors from him.
After denying his written motion for a dispositional departure and oral motion for a durational departure, the court sentenced him to concurrent sentences of 50 months for aggravated burglary and 12 months for sexual battery. Holloway timely appeals.
Holloway argues the district court should have continued his sentencing to allow his mental health to be evaluated. Specifically, he claims Sewell's failure to have him evaluated was good cause for a continuance.
A district court must be afforded considerable latitude in controlling its docket to avoid procrastination and delay and to expedite the orderly flow of its business. State v. Borders, 255 Kan. 871, 875, 879 P.2d 620 (1994). A district court has discretion to grant or deny trial continuances. See K.S.A. 22–3401 (Continuances may be granted to either party for good cause shown.).
An appellate court will not disturb a court's ruling on a motion for a continuance unless the defendant can show that the district court abused its discretion and prejudiced his or her substantial rights. State v. Carter, 284 Kan. 312, 318–19, 160 P.3d 457 (2007). Judicial discretion is abused only when no reasonable person would take the court's view. State v. Fulton, 292 Kan. 642, 648, 256 P.3d 838 (2011). This standard of review applies to a posttrial motion for a continuance. See Borders, 255 Kan. at 875.
A parallel can be drawn between this case and Borders. In that case, defense counsel did not receive notice that the district court had rescheduled the sentencing hearing. When the defendant moved for a continuance so his family could attend, the court denied his motion. At sentencing, the court asked the defendant if he wanted to address the court; he declined the opportunity. But the court did not ask him if he wanted to present any evidence in mitigation of his punishment. 255 Kan. at 878–79; see K.S.A. 22–3424(e)(4) (Before imposing sentence the court shall: ... ask the defendant if [he or she] wishes to make a statement on [his or her] own behalf and to present any evidence in mitigation of punishment.). Here, the district court denied Holloway's motion for a continuance so he could obtain a psychological evaluation. Sewell called six character witnesses to testify in mitigation of Holloway's sentence. Holloway also addressed the court. But the court's denial of Holloway's motion for a continuance foreclosed his ability to present mental health evidence in mitigation of his punishment.
The Borders court held: Absent some proffer that the defendant had evidence to present in mitigation of the sentence, the district court's denial of the continuance was not reversible error. 255 Kan. at 880 (citing K.S.A. 60–405: A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence ... made known the substance of the evidence....).
Here, like the defendant in Borders who failed to show that his family actually had any evidence to present in mitigation of his sentence, Holloway failed to show that a doctor would have provided evidence that he had psychological problems at the time he committed his crimes. Also, any claim that Holloway's plea was contingent on his psychological evaluation is quashed by the written plea agreement, which states that he knew of no reason why his mental competence at the time of his crimes should be questioned, and he did not rely on any promises not contained in the agreement when pleading.
Furthermore, it was 1 week before sentencing when Sewell remembered her plan to have Holloway evaluated. She could have moved for a continuance at that time, knowing she could not have him evaluated in time for sentencing. Or she could have asked Holloway's doctor to testify at sentencing. Instead, she waited until sentencing began to request a continuance, which prevented the district court from avoiding delay. See Borders, 255 Kan. at 875.
A reasonable person could take the district court's view that the claim Holloway's crimes were out of character does not constitute a substantive proffer of mitigating evidence. See K.S.A. 60–405; 255 Kan. at 880.
The Borders court also held that a district court's denial of allocution is harmless error unless the defendant can show prejudice to his or her substantial rights. 255 Kan. at 881 (citing K.S.A. 60–261: ‘[A]t every stage of the proceeding[, the court] must disregard any error or defect ... which does not affect substantial rights of the parties.’); see State v. Valladarez, 288 Kan. 671, 688–89, 206 P.3d 879 (2009) (no prejudice because information defendant would have provided at allocution would not have affected [his] sentences or created a legal reason not to impose [them] ).
Here, like the defendant in Valladarez, Holloway has not shown prejudice because even if his sentencing had been continued, allowing him to present evidence of his mental health, the district court still could have refused to depart from the guidelines sentence. Holloway has never claimed he lacked the mental state required to commit his crimes or enter his plea, or that he was incompetent to be sentenced. See K.S.A. 22–3219 (to assert defense of lack of mental state to commit crime, defendant must provide notice and may be required to submit to mental examination); K.S.A. 22–3302(1) (if defense counsel requests competency evaluation before sentencing, court must suspend proceedings if reason to believe defendant is incompetent). He merely claims the court erred in refusing to give him time to develop additional mitigating evidence that may have swayed its sentencing decision. Due to the speculative nature and impact of the mental health evidence, Holloway has not shown prejudicial error. See K.S.A. 60–261; Valladarez, 288 Kan. at 687–89;Borders, 255 Kan. at 881.
Therefore, the district court did not err by denying Holloway's motion for a sentencing continuance.
Holloway also argues that the district court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by sentencing him to an increased sentence based upon his prior juvenile adjudication without requiring the State to prove it to the jury beyond a reasonable doubt. He acknowledges that the Kansas Supreme Court has already decided this issue against him in State v. Hitt, 273 Kan. 224, 229, 42 P.3d 732, (2002)cert. denied537 U.S. 1104 (2003). This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Our Supreme Court continues to reaffirm its precedent in this area. See State v. Harris, 293 Kan. 798, 818, 269 P.3d 820 (2012). Therefore, the district court did not violate Holloway's constitutional rights at sentencing.
Affirmed.