Opinion
No. 110,436.
2014-10-31
STATE of Kansas, Appellee, v. Jeremy I. RHODES, Appellant.
Appeal from Sedgwick District Court; Christopher M. Magana, Judge.Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.Lesley A, Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Christopher M. Magana, Judge.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. Lesley A, Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jeremy I. Rhodes appeals following his conviction of one count of possession of cocaine. Rhodes claims that the district court (1) failed to adequately inquire into a conflict between Rhodes and his attorney; (2) erroneously denied his motion for continuance of the trial; and (3) violated his constitutional rights by considering his criminal history when calculating his sentence without first requiring the State to allege the criminal history in the complaint and prove it beyond a reasonable doubt. For the reasons explained herein, we affirm the district court's judgment.
On October 31, 2009, Tamara Hamilton was working as a private security guard at a nightclub in Wichita. As part of her job, Hamilton performed pat-downs on people as they entered the nightclub. When Hamilton patted down Rhodes, he had something in his right pants pocket. Rhodes did not comply with Hamilton's request to remove the item from his pocket, so she reached into his pocket and pulled out the item: a plastic bag containing white powder. Hamilton called 911 to request police assistance and detained Rhodes until the police arrived.
City of Wichita Patrol Officer Scott Gillespie responded to Hamilton's call. Hamilton gave Gillespie the bag of powder and told him she believed it was illegal drugs. Gillespie performed a field test on the powder, which tested positive for cocaine. Dr. Phillip Smith of the Sedgwick County Forensic Science Center later tested the powder and found that it was cocaine.
On March 22, 2010, the State charged Rhodes with one count of possession of cocaine. Rhodes subsequently waived his preliminary hearing and, pursuant to a plea agreement, entered a plea of guilty. In September 2012, when Rhodes appeared for sentencing, he informed the district court that he wished to withdraw his plea. Rhodes' new counsel, Timothy Frieden, filed on Rhodes' behalf a motion to withdraw his plea, asserting that Rhodes' prior counsel had been ineffective. After holding a hearing, the district court granted the motion, allowing Rhodes to withdraw his guilty plea, and set the case on the jury trial docket.
The jury trial was set to begin on March 11, 2013. That morning, Frieden informed the district court that Rhodes wanted to address the court. Rhodes told the district court that he did not believe Frieden had received adequate time to prepare for trial, Rhodes believed he had not received complete discovery materials, Rhodes was unhappy with a motion to suppress evidence filed by Frieden, and Rhodes was unhappy with Frieden's failure to file certain pretrial motions, such as a request for a preliminary hearing. Rhodes requested a continuance to address and resolve the issues.
The district court's subsequent inquiry into Rhodes' complaints about his attorney will be discussed in great detail later in the opinion. Ultimately, the district court allowed Rhodes to withdraw the motion to suppress, held that discovery had been properly provided to the defense, and overruled what it construed as Rhodes' oral motion for additional discovery. Regarding Rhodes' desire to withdraw his waiver of preliminary hearing, the district court referred the parties to the criminal presiding judge, Judge Warren Wilbert. Judge Wilbert denied as untimely Rhodes' motion to withdraw his preliminary hearing waiver and also denied his motion for continuance of the jury trial.
Rhodes then waived his right to a jury trial. When the parties reconvened later that afternoon to begin the bench trial, Rhodes again addressed the district court, stating that he was not comfortable proceeding to trial and that he wanted to dismiss Frieden due to ineffective assistance of counsel. Rhodes claimed Frieden was ineffective because he had failed to seek out and interview certain witnesses. When the district court asked Frieden to respond, he stated that earlier that day Rhodes had given him the names and phone numbers of two people, both out-of-state, who Rhodes thought should be interviewed. The district court denied Rhodes' request for new counsel, noting that Rhodes had received ample time to identify the potential witnesses prior to the day of trial. The district court also denied Rhodes' request to continue the bench trial.
At the bench trial, the State presented the testimony of Hamilton, Gillespie, and Smith. Rhodes did not present any evidence. The district court specifically inquired whether Rhodes wanted to testify; he declined. The district court found Rhodes guilty as charged. On August, 20, 2013, the district court granted Rhodes' motion for a downward durational departure and sentenced him to 32 months' imprisonment. Rhodes timely appealed the district court's judgment.
District Court's Inquiry Into Potential Conflict of Interest
Rhodes first contends that the district court abused its discretion by failing to adequately inquire into a potential conflict of interest between Rhodes and Frieden. Prior to trial, Rhodes expressed dissatisfaction with Frieden, complained that Frieden had provided him ineffective assistance of counsel, and asked to dismiss Frieden on that ground. He now argues that the district court did not adequately inquire into the conflict of interest. The State asserts that the district court conducted an extensive inquiry that satisfied its duty.
Rhodes concedes that he did not raise this issue before the district court. However, our Supreme Court has stated that whether a district court failed to perform its duty to inquire into a potential conflict between a criminal defendant and his or her attorney after the court was placed on notice of the conflict is an issue that does not require objection in the district court in order to be considered on appeal. State v. Brown, 300 Kan. –––, ––––, 331 P.3d 797, 806 (2014).
“ “Where a trial court becomes aware of a possible conflict of interest between an attorney and a defendant charged with a felony, the court has a duty to inquire further.' [Citation omitted.] Tf an appropriate inquiry is made, the district court's decision is reviewed under an abuse of discretion standard. [Citations omitted.] But a district court abuses its discretion when it makes no inquiry into the nature of the conflict. [Citation omitted.]' [Citation omitted.]” State v. Sharkey, 299 Kan. 87, 96, 322 P .3d 325 (2014).
In order to address Rhodes' claim, we will provide a detailed summary of the events that transpired on the morning that Rhodes' case was scheduled for jury trial. That morning, Rhodes asked to speak to the district court directly. Rhodes alleged that Frieden had provided ineffective assistance of counsel by (1) failing to adequately investigate the case and identify and interview witnesses; (2) failing to present Rhodes with complete discovery materials; (3) failing to file certain pretrial motions; and (4) filing a motion to suppress evidence of which Rhodes disapproved. Rhodes asked the district court to withdraw the motion to suppress and to grant a continuance to resolve his other issues.
At this point, the district judge, Judge Christopher M. Magana, commenced an extensive inquiry into Rhodes' complaints that covers 72 pages of the hearing transcript. Magana first asked Rhodes about Frieden's alleged failure to investigate the case. Rhodes explained that Frieden had not spoken with him in detail about the night in question and that although he and Frieden had met three times over the prior 2 weeks, they really had not discussed the trial.
Next, the district judge asked Rhodes to explain what discovery he believed he had not received. Rhodes alleged he was missing “[p]olice reports, witness statements, statements by officers, [and] narratives by officers involved in the incident.” When asked why he believed he was missing those items, Rhodes explained that an officer's report referred to a witness giving a statement to another officer, but Rhodes had not received any reports from the second officer. Rhodes also alleged that he had not seen any photographs taken by officers that night, nor did he know if there was surveillance footage from the nightclub.
The district judge next inquired about the pretrial motions Rhodes believed Frieden should have filed; Rhodes replied that Frieden should have filed a motion to challenge the sufficiency of the complaint, but when asked what the basis for that motion should be, Rhodes stated: “None specific. A combination of factors that Mr. Frieden and I discussed that I'd rather not discuss right now.” The district judge pressed further, and Rhodes reiterated his request to file a motion to obtain additional discovery.
The district judge then asked the prosecutor whether there was any indication that discovery was missing. According to the prosecutor, only one of the photographs taken was relevant to the charges and she stated that Frieden had received the copies of the photographs that morning. Regarding the allegedly missing police reports, the prosecutor specifically noted that there was one police officer referred to in other reports who had not written a narrative; accordingly, there was no report to provide to Rhodes. The prosecutor also stated that she was not aware of any written witness statements, but the prosecutor offered to double-check with Hamilton when she arrived for trial.
The district judge then asked Frieden for his response to Rhodes' statement and allegations, and the following colloquy occurred:
“MR. FRIEDEN: We have talked about a motion to dismiss that he's wanted to have filed challenging the sufficiency of the complaint.
“THE COURT: Can you explain that or shed some light on exactly what you're talking about or what Mr. Rhodes is talking about?
“MR. FRIEDEN: No, not really. No. I–I–he has wanted those filed, and I have not-well, in my opinion, there was no basis for the motion, but
“THE COURT: What's your understanding of his challenge to the complaint? Is this some constitutional issue or is this an evidentiary issue or a factual issue?
“MR. FRIEDEN: See, that's where-I haven't quite connected those dots yet, Judge. We have talked about this several times. It seems to center around the fact that there is this witness that's referred to, the officer that didn't do a written narrative. It somehow centers around that.”
Regarding his investigation of and preparation for the case, Frieden admitted that he had not talked to Hamilton. The district court inquired further:
“THE COURT: Why not?
“MR. FRIEDEN: Well, we haven't—I haven't. I have an investigator. We did not—well, we weren't sure where she was at, for one, but we didn't look for her.
“THE COURT: So you couldn't locate her?
“MR. FRIEDEN: I haven't—we haven't really tried to locate her, Judge, but no, we haven't. Well, I've seen Officer Gillespie's report. I—I mean, I suppose it might be somewhat beneficial to talk to Ms. Hamilton. I don't know how much helpful information she's going to provide to me, if it's going to be anything that's going to turn the facts of this case. So I have not, nor have I interviewed the other bouncer.
“THE COURT: Are both the bouncers subpoenaed?
“MS. BOTTER [the prosecutor]: They're both subpoenaed. Actually there's a motion to endorse Ryan Scott, one of the bouncers, that's on file to be addressed this morning. He was not initially subpoenaed.
“And for purposes of the record, Ms. Hamilton has been incredibly difficult for the State to find. We just finally got her personally served on Thursday of last week. I actually had to go to the club there and find her there, and she's been incredibly reluctant in returning any phone calls or showing up. She was supposed to be here at 8:30 this morning and she's still not here. So I'm not sure, even despite the best efforts of the defense to find her, if they would be able to. It has taken a number of movements on the State in order to get her present.”
The district court asked the prosecutor to check with the case detective to ensure that there was no discovery that had not yet been provided to the defense. During a brief recess, the prosecutor did so and received an email from the case detective that stated that the case files contained no written witness statements and no taped reports. She also talked with Hamilton about possible surveillance from the nightclub and learned that there were no surveillance cameras in the area where Rhodes and Hamilton interacted.
The district court ruled that all the discovery had been provided to Rhodes. Regarding whether Frieden had been ineffective for failing to interview Hamilton, the district judge informed Rhodes that Frieden could speak with Hamilton when she arrived prior to trial. The district judge asked Rhodes, “Do you have any other issues with Mr. Frieden's representation that we need to address in that regard?” Rhodes replied, “No.”
The district court then turned to the suppression motion, which Rhodes stated he wished to withdraw, and allowed the withdrawal. Finally, the district court addressed Rhodes' allegation that Frieden had failed to file certain pretrial motions. At that point, Rhodes handed Frieden a motion for a preliminary hearing and argued that his earlier waiver was a direct result of the ineffective assistance of his prior counsel. Rhodes also stated that he wanted Frieden to file a motion to dismiss but Frieden had not done so.
The State opposed the motion for a preliminary hearing, arguing that the motion was untimely and there was no evidence that Rhodes' prior counsel was ineffective in her advice regarding the preliminary hearing waiver. The district court noted that any motion that could result in the jury trial being continued should be heard by Judge Wilbert, the criminal presiding judge. Judge Wilbert denied the motion to set aside the preliminary hearing waiver as untimely and denied Rhodes' request for a trial continuance.
After a recess, the parties reconvened before Judge Magana to begin the jury trial. At that time, Rhodes informed the district court that he wished to waive his right to a jury trial, and the district court accepted the waiver. Immediately before the bench trial commenced, Rhodes informed the district court that he did not “feel comfortable proceeding with trial” and still needed to address his motion to dismiss Frieden due to ineffective assistance. The district judge asked: “What are you specifically stating he's been ineffective at?” Rhodes stated that Frieden had failed to seek out and interview potential witnesses and had not filed “motions that we had discussed in confidence that I would like to have filed.” The district judge stated:
“THE COURT: Well, Mr. Rhodes, 1 am overruling your motion today. You have not clearly stated what I perceive to be a valid argument that Mr. Frieden has been ineffective. In fact, what he has stated, somewhat extensively in various forms over the course of the various motions and oral motions and additional issues that you have put forth this morning yourself has given me, in my opinion, a clear picture that he has met sufficient standards to appear to be doing his job appropriately.
“There is no obligation that he speak to all witnesses before trial. Obviously, he is a seasoned trial attorney and trial strategy and the matter of trial is up to the attorney so he can decide whether or not he needs to speak to a witness before trial or not. And I would note that the witnesses that you're referring to that Mr. Frieden said he did not speak to were the two bouncers, one of them being the alleged individual who you had initial contact with. He has read the police reports and, obviously, those state her apparent statement through another officer. And if he feels that that is sufficient for him to proceed without the need to have a separate conversation with her, then he is certainly free to follow that trial strategy.
“I would further note that Mr. Frieden, again, who does have significant experience in trying cases, including these types of cases, was given the opportunity and he took the opportunity to speak with the witness, Ms. Hamilton, today, who was present. He stated both that he would need no more than 30 minutes to speak with her, which, at least in the Court's evaluation of the nature of this offense, a review of the affidavit, and from listening to counsel this morning and this afternoon as to the nature and extent of the police reports in question, which appear to be ten pages or less, that would, again, with the Court's understanding of what Ms. Hamilton's likely testimony will be, that would seem sufficient for Mr. Frieden to gain any germane information in preparation for trial. So I believe that he has, again, met the appropriate standard to certainly rise beyond being ineffective to this point.
“I would note that you and Mr. Frieden have had multiple conversations today, both in the course of motions, in the course of written motions, and your withdrawal of a motion, and your additional oral motion that you put forth from your motion to withdraw your preliminary hearing waiver to your motion to dismiss for sufficiency of the evidence that you've raised on several occasions today, up to this motion and, in addition, your discussion with him with regard to your jury trial waiver. It would appear that the attorney-client relationship is alive and well and he is providing you good advice to this point, and you two are able to still effectively communicate and effectively make decisions up to this point.
“THE DEFENDANT: Your Honor
“THE COURT: So I do not see any basis to grant a motion to remove Mr. Frieden at this time, and I don't believe a showing has been made that he's been an ineffective attorney.”
Rhodes told the district court that he was unhappy that Frieden had failed to seek and interview witnesses to testify for the defense, not just State's witnesses. When the district judge asked Frieden if he would like to respond, Frieden stated:
“Well, I will—yes. Mr. Rhodes has given me names of two individuals today with the phone numbers that he says they're both out-of-state at this point in time. As best as I can determine, he—as—as you saw the way he came in talking about motions to dismiss and that type of thing, somehow, he had it in his mind that I was to file all these motions and they were going to be heard, resolved, and then he was going to give me the names of witnesses, apparently, once he realized whether or not the case was fully going to trial or not. Of course, that didn't all happen that way. So I can say—tell the Court he's given me the names of two witnesses today, and gave me phone numbers for those witnesses.”
The district court noted that Rhodes originally had pled guilty in November 2011; the State further noted that the jury trial originally was scheduled for February 25, 2013, at which point the State requested a continuance to which the defense objected. The district court again denied Rhodes' request for new counsel or a continuance, explaining that Rhodes had received more than ample time to provide any potential witnesses' names to Frieden. With that, the district court began the bench trial.
Rhodes now argues that although the district court inquired into his allegations that Frieden was ineffective, the district court failed to adequately inquire “into the actual conflict of interest—the personal animosity that may have developed between” Frieden and Rhodes as a result of those allegations. Rhodes argues that the district court should have become aware of a potential conflict of interest—which would trigger the duty to inquire further-when Rhodes told the district court just prior to trial that he did not feel comfortable proceeding with the trial. The defendant has the burden to show that the district court abused its discretion in failing to adequately inquire into an alleged conflict of interest. Brown, 300 Kan. at –––––, 331 P.3d at 804.
Our Supreme Court recently stated that a defendant seeking substitute counsel
“ ‘must show “justifiable dissatisfaction” with his or her appointed counsel,’ which can be ‘demonstrated by showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between counsel and the defendant.’ [Citation omitted.] The defendant bears the responsibility of providing “ ‘an articulated statement of attorney dissatisfaction,’ “ which will, in turn “ ‘trigger the district court's duty to inquire into a potential conflict’ “ of interest. (Emphasis added.) [Citations omitted.]” Brown, 300 Kan. at ––––, 331 P.3d at 807.
In State v. Burnett, 300 Kan. ––––, ––––, 329 P.3d 1169, 1188 (2014), the defendant filed a motion for substitution of counsel, alleging that there was “ ‘a serious conflict’ “ between his attorney and himself and that communication had “ ‘completely broken down.’ “ The district court then conducted a hearing to inquire into the claims; at the hearing, it appeared that the defendant's dissatisfaction with his attorney was due to counsel's “refusal to investigate matters or to call witnesses which Burnett deemed important but, in defense counsel's professional judgment, would not be beneficial to or advance Burnett's defense at trial.” 300 Kan. at –––––, 329 P.3d at 1191. The Burnett court did not recognize an automatic conflict triggering further inquiry when a defendant alleges dissatisfaction with his or her appointed counsel. Instead, the Burnett court stated:
“Burnett's statement at the hearing concerning defense counsel's actions or inactions does not rise to the level of alleging a conflict of interest or a complete breakdown in communication requiring the district court to inquire further. His statement also did not allege an irreconcilable conflict because there is nothing to indicate that Burnett's dissatisfaction would have been alleviated by new counsel. Defense counsel's explanation for his actions appears to be sound, and there is nothing to indicate that a new attorney would not likewise engage in a similar course of conduct.
“Accordingly, we conclude that because Burnett's statement at the hearing implicated none of the grounds warranting further inquiry-let alone warranting substitute counsel—the district court was under no duty to inquire further and did not abuse its discretion in refusing to appoint new counsel. [Citation omitted.]” 300 Kan. at ––––, 329 P3d at 1191.
Likewise, here, Rhodes complained of witnesses Frieden had failed to interview, motions Frieden had filed or failed to file, and missing discovery. The district court addressed each of these complaints. None of these complaints contain an articulated statement of justifiable dissatisfaction—which is demonstrable “ ‘by showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication’ “—that would trigger the district court's duty to inquire further. The district judge observed Frieden and Rhodes' interactions throughout the extensive inquiry and explicitly noted in his ruling that Frieden and Rhodes had conversed several times through the proceedings. The judge commented, “It would appear that the attorney-client relationship is alive and well and he is providing you good advice to this point, and you two are able to still effectively communicate and effectively make decisions up to this point.”
Rhodes does not allege what form his requested “further inquiry” would have taken and, as the party bearing the burden to show error in the district court's failure to inquire further into a potential conflict between Rhodes and Frieden, Rhodes has failed to show that the district abused its discretion. Moreover, while it is not incumbent upon a criminal defendant to ask the district court to undertake its duty to inquire further into a potential conflict when that duty is triggered, Rhodes did not once allege a breakdown in communications, a conflict of interests, or an irreconcilable disagreement with Frieden. Thus, we conclude that the district court conducted an adequate inquiry into Rhodes' complaints about ineffective assistance of counsel and did not abuse its discretion in failing to inquire even further about any conflict of interest between Rhodes and Frieden.
Request for Trial Continuance
Next, Rhodes argues that the district court erred in denying his request for a trial continuance. In a related argument, Rhodes argues that the district court also erred by denying his motion for judgment of acquittal or, in the alternative, for a new trial because those motions were based upon the alleged error of denying the continuance. The State argues that the district court did not abuse its discretion by denying the request for a continuance and, accordingly, also did not err in denying the subsequent motions.
As previously discussed, Rhodes requested a continuance on the day his trial was scheduled to begin; he first requested more time in order to address certain alleged failures by his attorney—filing motions, obtaining discovery, etc.—and later requested more time in order to locate two potential defense witnesses. In the prior section of this opinion, we discussed in detail how the district court addressed each of Rhodes' complaints about ineffective assistance of counsel. As to the second request for a continuance to locate two potential defense witnesses, the district judge stated:
“Mr. Rhodes, I'm going to overrule your request. You've had more than ample time to provide the names of any potential witnesses to Mr. Frieden. At a minimum, you've had since February 25th of 2013, the last jury trial setting. And if it's correct that your objection was to the State's continuance, that indicates you were ready for trial, in whatever form, and if you were part and parcel of that objection, which I would assume you were, to that, then had that objection been sustained by the trial court, then your case would've proceeded to trial at that time. Your failure to provide witness names, potential witnesses to Mr. Frieden until today is your decision, and we are not going to continue this matter when you have waited until the day of trial to request that your attorney find additional witnesses.
“I would further note that, at a minimum, as of the date of your plea being withdrawn on December 19th of 2012, at which time this case was placed on the jury trial docket, your obligation began to notify your attorney of any potential witnesses or evidence, which you failed to do, and it is not too much of a stretch to state that your true obligation to notify your attorney began as early as November 21, 2011, approximately a year and a half ago, when you appeared in court at that time and entered a plea, if your intent was to somehow go to trial. So you've had more than sufficient time if you wanted your attorney to consider or locate witnesses.”
K.S.A. 22–3401 states that a court may grant a trial continuance “for good cause shown.” The district court's refusal to grant a continuance will not be disturbed on appeal absent a showing of an abuse of discretion. Burnett, 300 Kan. at ––––, 329 P.3d at 1182. A judicial action constitutes an abuse of discretion 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 132 S.Ct. 1594 (2012).
Rhodes cites State v. Howard, 221 Kan. 51, 55, 557 P.2d 1280 (1976), in which our Supreme Court instructed that when considering a continuance requested during a trial, the district court must weigh the “possible prejudice to the defendant, the diligence (or lack of it) disclosed in attempting to secure the attendance of the witness, the materiality and importance of the probable testimony, and the probability of the witness' appearance at a later date if the continuance is granted.” Rhodes argues only that the district court here failed to analyze all of the Howard factors and, by failing to do so, used an incorrect legal standard and abused its discretion. The State concedes that the district court did not explicitly articulate consideration of each factor but contends that the district court's ruling was sufficient to satisfy the test.
Initially, we note that Rhodes cites no case in which a Kansas appellate court has reversed the denial of a continuance because a district court failed to explicitly consider the Howard factors on the record. In fact, the Howard factors often are not examined explicitly by appellate courts reviewing the denial of motions for continuance. See Burnett, 300 Kan. at ––––, 329 P.3d at 1184 (finding no abuse of discretion in denying motion for continuance where defendant failed to show that good cause supported the request); State v. Lewis, 299 Kan. 828, 846, 326 P.3d 387 (2014) (finding no abuse of discretion in denying continuance where it could not be said that no reasonable person would adopt the trial court's decision to do so). Moreover, even Howard did not expressly require explicit consideration of the factors. See 221 Kan. at 55.
In any event, even if the Howard factors are considered, the district court did not abuse its discretion in denying Rhodes' motion for a continuance. Rhodes did not offer any information about the importance of the witnesses, their expected testimony or value to the defense, whether he previously had attempted to locate the witnesses, or whether they reasonably could be expected to appear if the court granted a continuance. The only information the district court received was that on the morning of trial, Rhodes provided his attorney with the names and phone numbers of two people, both out-of-state, who Rhodes thought should be interviewed. It cannot be said that no reasonable person would agree with the district court's decision to deny a continuance requested on such sparse information. The district court did not abuse its discretion in denying the continuance motion and, accordingly, did not err in denying the later motions for judgment of acquittal or new trial based upon the alleged error of denying the continuance.
Sentencing Issue
Finally, Rhodes argues that the district court violated his constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution as recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it sentenced him based in part on his criminal history without first requiring the State to allege his criminal history in the complaint and prove it beyond a reasonable doubt to the jury. Rhodes concedes that the Kansas Supreme Court already has decided this issue against him. See State v. Ivory, 273 Kan. 44, 45–48, 41 P .3d 781 (2002). This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its earlier position. See State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). There is no indication that the Kansas Supreme Court is departing from its holding in Ivory. Thus, Rhodes' sentencing issue fails.
Affirmed.