Opinion
Nos. 107,782 108,046.
2013-03-15
STATE of Kansas, Appellee, v. Juan D. MORALES, Appellant.
Appeal from Ford District Court; E. Leigh Hood, Judge. Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Jaskamal P. Dhillon, assistant county attorney, Terry J. Malone, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Ford District Court; E. Leigh Hood, Judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Jaskamal P. Dhillon, assistant county attorney, Terry J. Malone, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
The primary argument made by Juan D. Morales in this appeal is that the district court should have continued his sentencing because he did not feel like he was ready to proceed with sentencing that day. We view this denial of the continuance as a question of discretion on the part of the trial court. Because we find no abuse of discretion, we hold Morales is not entitled to relief.
As a result of a plea agreement with the State, Morales pled no contest to making a criminal threat in two district court cases in exchange for the State dismissing all remaining counts. The court accepted Morales' pleas in October 2011.
Then, in November 2011, two days prior to the scheduled sentencing hearing for both cases, defense counsel told the district court that Morales wanted a continuance for his sentencing. The district court denied Morales' request. At the start of the sentencing hearing, defense counsel informed the district court that Morales was not ready to proceed with sentencing because Morales had told him “he's not in the right state of mind. He's not been taking his Area Mental Health prescription medication.” The district court and Morales then had the following exchange:
“THE COURT: Why are you not ready to proceed, Mr. Morales?
“THE DEFENDANT: I don't feel like I'm ready to go on with his hearing today.
“THE COURT: In what manner are you not ready to go on?
“THE DEFENDANT: Because I don't want to get myself in any trouble and I haven't been [taking] my Area Mental Health meds.
“THE COURT: Why haven't you been [taking] your meds?
“THE DEFENDANT: Because I didn't have them. They charge me for them once a month and I couldn't pay for them, so I didn't get the prescription refilled.
“THE COURT: I would find that unusual, Mr. Morales, since you're in custody, it's my understanding they pay for your meds and they make sure you get them if you need them.
“THE DEFENDANT: They do but they asked me if I wanted them and I told them that I couldn't pay for them and I told them I don't want them to take money off my books so they didn't order them.
“THE COURT: So you, on your own, had decided you didn't want to take your medicine then, is that what I'm hearing you tell me?
“THE DEFENDANT: Yeah.
“THE COURT: So in what manner do you feel like you can't participate in today's proceeding?
“THE DEFENDANT: I just don't feel like I'm understanding what's going on right now.
“THE COURT: What do you think you're here for?
“THE DEFENDANT: Don't know. I just want this continued. I have an appointment with Area Mental Health Center, I think it was supposed to be for this morning but 1 think it got rescheduled because of court.
“THE COURT: Well, Mr. Morales, this has been scheduled since for over a month. The information I received a day or two ago was that you were not going to even appear at your sentencing because you just weren't going to for whatever your reasons were. I also heard this morning that you were refusing to go to some medical appointment that you had. That doesn't tell me that—that kind of flies in the face of what you're telling me that you don't understand what's going on here. Why would I start getting all this information that you're not wanting to appear at all these things, and now you're coming in front of me today and saying, Oh I'm not mentally ready to do this.
“THE DEFENDANT: I'm just letting you know how I feel.”
At this point, the district court asked defense counsel if there was any legal reason why sentencing should not proceed. Defense counsel responded, “[H]e's telling me, at least he's stated here in open court, that he's not understanding what we are doing. I think he needs to be aware of what we're doing.” The State opposed Morales' request for a continuance, claiming that Morales' motion was a charade or ploy. The State indicated that it had videotape of Morales telling his mother on several occasions that he intended to use this strategy to ensure visitation with a girl at jail. When asked by the district court to address the State's claim, Morales refused to answer. Morales claimed, “That's a whole different issue.... [T]hat's got nothing to do with what I'm saying right now.”
Moving on, the district court then asked about medications Morales took. Morales stated that he had a prescription for Saphris to treat his various diagnoses of personality disorder, stress, depression, paranoia, and anger. Morales clarified that he did not have any evidence that he suffered from these conditions to present to the district court.
Finally, the district court told Morales that it intended to proceed with sentencing. Morales asked for a continuance again, repeatedly claiming he was “not ready” for the hearing. The district court denied Morales' motion for a continuance. Morales told the district court that it could cite him for contempt for not going through with sentencing, and it would be against his will and illegal if the district court proceeded with sentencing. Morales then claimed that he was not ready for sentencing because he had planned on presenting testimony evidence. Defense counsel informed the district court that Morales had not asked him to bring any witnesses for the hearing.
At this point, Morales asked to be removed from the courtroom and told the district court he would not sit through the remainder of the hearing. The district court allowed Morales to leave. After being informed that the district court intended to proceed with sentencing in Morales' absence, defense counsel noted, “It appeared to me to be [Morales'] choice to vacate himself.” Defense counsel then reiterated that Morales had not asked him to present witnesses on his behalf at sentencing and requested the district court to comply with the sentencing recommendations in the plea agreement.
Based on Morales' criminal history classification of A, the district court sentenced Morales to 15 months' incarceration in the first case and 15 months' incarceration in the second case, with both mitigated presumptive sentences to run consecutively.
Morales maintains that the district court's failure to make a determination of his competency to be sentenced on its own motion under K.S.A.2010 Supp. 22–3302 has violated his due process rights. Specifically, he contends his statements during sentencing that he was not on his medications and did not know what was going on should have signaled his competency was an issue, requiring the district court to make a competency determination after granting his request for a continuance.
A defendant's challenge to a district court's failure to order on its own a competency evaluation is reviewed under an abuse of discretion standard. See State v. Foster, 290 Kan. 696, 703, 233 P.3d 265 (2010). Even though Morales did not specifically ask for a competency determination, only a continuance, the issue of competency and the district court's statutory obligation raises due process concerns reviewable even without a defendant's pursuit of the issue before the district court. See State v. Barnes, 293 Kan. 240, 255, 262 P.3d 297 (2011). Our statute, K.S.A. 22–3401, states that a district court may grant a continuance for good cause shown, and its refusal to grant a continuance will not be disturbed on appeal in the absence of a showing of an abuse of discretion. State v. Carter, 284 Kan. 312, 318, 160 P.3d 457 (2007). Finally, judicial discretion is abused if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).
In Kansas, a defendant is presumed competent to stand trial. Barnes, 293 Kan. at 256, 262 P.3d 297. Our statute, K.S.A. 22–3301 et seq. , controls the determination of a defendant's competency between being charged with a crime and pronouncement of sentence. Under K.S.A. 22–3301, a defendant is incompetent when he or she cannot understand the nature or purpose of the proceedings or assist in making his or her defense because of mental illness or defect. K .S.A.2010 Supp. 22–3302(1) codifies the district court's duty to inquire into a defendant's competency should the circumstances warrant:
“If ... upon the judge's own knowledge and observation, the judge before whom the case is pending finds that there is reason to believe that the defendant is incompetent to stand trial the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant.”
From this, we conclude that if evidence raises a bona fide doubt about a defendant's competency, then failure to hold a hearing to determine competency is a denial of due process. See Foster, 290 Kan. at 704, 233 P.3d 265. We find no abuse of discretion here.
Initially, we note that Morales did not contest his competency to enter his pleas at the hearing approximately a month before his sentencing. The record does not indicate Morales argued his competency to be sentenced was an issue when making his initial motion for a continuance 2 days prior to sentencing. Further, Morales did not appeal the district court's denial of this initial motion. Instead, the record indicates Morales only claimed his competency to be sentenced was an issue after the district court denied his initial motion for continuance.
In our view, a district court's statutory obligation under K.S.A.2010 Supp. 22–3302(1) to suspend proceedings to determine the competency of a defendant does not arise just because the defendant claims to be incompetent or is not prepared to proceed with sentencing. Similarly, a district court does not grant a continuance simply because a defendant claims to need one. The district court heard no evidence in this case to support a reason to believe that Morales was not competent at sentencing. Morales' argument on appeal that there was a bona fide doubt as to his competency is premised on his factual assertion to the district court that he had not been taking his prescribed medication for a variety of diagnosed disorders. Yet, when asked by the district court, Morales did not present evidence of any supposed diagnosis affecting his ability to understand the nature or purpose of the sentencing proceedings if he did not take a prescribed medication.
We note also that when the motion was denied, Morales clearly understood what was going to happen next and asked to withdraw from the sentencing.
The only circumstance Morales points to during the hearing that suggests he was incompetent to be sentenced involved his missed appointment at the Area Mental Health Center immediately prior to sentencing. The district court found Morales' claim not credible given that it had already been notified Morales had refused to attend this appointment. We note that the district court viewed the information the State offered about the videotape indicating Morales' actions at sentencing were a charade as being dispositive. Appellate courts do not reweigh evidence or assess witness credibility. Instead, appellate courts give deference to the trial court's findings of fact. State v. Appleby, 289 Kan. 1017, 1038, 221 P.3d 525 (2009).
A fair reading of the record reveals that defense counsel did not specifically ask for a competency determination. Instead, defense counsel only expressed doubts as to Morales' ability to understand the proceedings by pointing to Morales' factual assertion as being the basis of counsel's concern. In State v. Perry, 266 Kan. 224, 231–32, 968 P.2d 674 (1998), the Supreme Court noted that the defense counsel's doubts about the defendant's competence did not entitle the defendant to a continuance or to have his competency determined before sentencing in the absence of evidence that the defendant's competence had changed since trial. In view of the ruling in Perry, the defense counsel's doubts about Morales' competency do not compel the district court to order a competency hearing.
Morales' final statement to the district court that he was “not ready for this hearing and [he] planned to call some people to the stand when [he] was coming to sentencing” contradicts his argument on appeal. Morales' communication to the district court that he wanted to present witness testimony on his behalf for sentencing purposes clearly reflected an understanding of the nature or purpose of the sentencing proceedings. Similarly, Morales' challenge to the district court to find him in contempt for not going through with sentencing reflected an understanding of potential consequences for his actions. This record does not present one scintilla of evidence that Morales was incompetent or that the district court should have doubted his competence at that sentencing hearing. We address the final issues raised by Morales summarily.
Morales 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). Morales argues that the use of his criminal history, including his juvenile adjudications, for sentencing purposes without requiring the State to prove them before the jury beyond a reasonable doubt enhanced his sentence in violation of Apprendi. Morales concedes that the Kansas Supreme Court rejected similar arguments in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), and State v. Hitt, 273 Kan. 224, 42 P.3d 732 (2002), cert. denied537 U.S. 1104, 123 S.Ct. 962, 154 L.Ed.2d 772 (2003), but includes the issues to preserve it for federal review.
Morales' presentence investigation report indicates seven scored adjudications on his juvenile record prior to sentencing—three from 2005, three from 2004, and one from 2001. Because these juvenile convictions occurred before the decision in In re L.M., 286 Kan. 460, 186 P.3d 164 (2008), Morales was not entitled to have those convictions referred to a jury prior to sentencing. See 286 Kan. 460, Syl. ¶ 3, 186 P.3d 164.
The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, in the absence of some indication the court is departing from its prior position. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (2012). The district court did not err when it used Morales' prior convictions and juvenile adjudications to determine his guidelines sentence and impose the presumptive sentences.
Affirmed.