Opinion
No. 104,908.
2012-06-8
STATE of Kansas, Appellee, v. David WEBSTER, Appellant.
Appeal from Cowley District Court; Nicholas M. St. Peter, Judge. Michelle Davis, of Kansas Appellate Defender Office, for appellant. James R. Spring, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Cowley District Court; Nicholas M. St. Peter, Judge.
Michelle Davis, of Kansas Appellate Defender Office, for appellant. James R. Spring, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
David Webster appeals his conviction and sentence for intentional second-degree murder. He argues the district court erred by refusing to give requested jury instructions and by using a prior uncounseled conviction to calculate his criminal history. We affirm.
Webster lived with his girlfriend Diane Chambers. On March 27, 2009, Diane told her neighbor, Marilyn Turner, that she wanted to kick Webster out of the house, but she would not because he would hit her. Webster had never hit Diane, but she thought he was capable of it. That same day, Webster injured his knee by slipping on a semi-trailer at work.
In the evening of March 30, Marilyn saw Diane picking up tree limbs in the yard. Diane was “really mad” and did not want to talk. Later that night, Marilyn saw Diane and Webster on their porch. Around 9 p.m. Deron Withers collected Webster and they went to a local bar, where they stayed for about an hour. Webster was upset over issues with Diane. He told Withers he had been lying in the house because his leg had been hurting, and Diane was upset because he had not helped her with the yard work. On the way home, the two went to an ATM. Webster said that Diane handled the money, but when he checked the balance, it was not what he thought it should be. Withers dropped Webster at home around 10 p.m. Shortly thereafter, Withers received a call from Webster but did not answer it. Webster left a message at 10:24 p.m.
Around 9 p.m. that same night, Chelsea Chambers made plans with her mother, Diane, over the phone. Diane was to pick up Chelsea in Manhattan the next day at 12 p.m. and return with her to Winfield. Diane wanted Chelsea to help her get her phone and key back from Webster. The next day, March 31, Diane did not arrive. At around 5 p.m., after calling Diane's workplace, Webster, and the hospital and discovering that no one had heard from Diane, Chelsea got a ride to Winfield and met with police.
On March 31, Webster reported Diane missing at Chelsea's urging. Officer Ryan Walker responded to the couple's residence, where Webster explained that Diane was to collect Chelsea in Kansas City, but Chelsea had called to tell him Diane never arrived. Webster also said that he had argued with Diane the night before over his failure to help with yard work. Because Diane's phone, purse, keys, and vehicle were still at the residence, Officer Walker knew he was not dealing with a normal missing person case.
Withers contacted police after listening to Webster's voicemail message, which had recorded Webster and Diane arguing. Webster can be heard to say, “Well, you grabbed my fuckin' hair/ass and I've got a bad fuckin' knee. Leave me the fuck alone.” At one point, Diane called Webster a “woman beater,” to which he replied, “I'm far from it.”
On April 2, KBI Agent David Falletti collected Webster at his motel room and brought him in for an interview. Webster told KBI Agent Rick Atteberry that he and Diane had argued before he left with Withers, and when he returned after “cool[ing] off,” he and Diane got into another argument, which escalated at around 11 p.m. But Webster said that “they kissed and said they loved each other” before heading to bed. On the ride back to the motel, Webster told Agent Falletti twice that he could not tell him where Diane was. Agent Falletti told Webster to call the police department if he wanted to talk.
Webster took him up on his offer almost immediately. Agent Falletti returned to the motel, where Webster admitted to killing Diane:
“WEBSTER: I didn't know what to do. You guys were right on the money and uh, I didn't know what to do. What happened was we started with an argument and uh, I was sitting in the chair and she kicked me and then jerked me up out of the chair and hit me right here. That's why it's swelled up.
“FALLETTI: Okay.
“WEBSTER: And I snapped. The next thing I knew we was on the floor and I choked her and I didn't know what to do after that. I didn't know what to do. I don't know where I got the strength or anything to get her out of the house. And I threw her in the car and I took her somewhere and uh, then took her over by Cambridge and uh, throw'd her off a bridge.
....
“FALLETTI: How did, how did you know she had, she had passed away?
“WEBSTER: She had no pulse.
....
“WEBSTER: ... I just don't know what come over me. I hadn't done drugs or nothin' in a very, very long time and I even quit drinking there for a while and it just, the stress I think of work and everything just hit me all at once. I didn't mean to do it. I didn't, I mean it hap—it just happened.
“FALLETTI: Uh huh.
“WEBSTER: I mean, if, I know me probably not thinking and throwing her off the bridge is probably gonna get me murder one anyway. I know it's manslaughter, cuz I didn't mean to do it. It wasn't premeditated; I didn't think about it. It just fucking happened.
....
“WEBSTER: ... I don't know whether I hit her with my (inaudible) or what.
....
“FALLETTI: Was she face up when you were choking her? ...
“WEBSTER: Face up.” (Emphasis added.)
An audiotape of this conversation was played for the jury and a transcript was provided.
Dr. Brian Dennett, the county coroner, examined Diane's body at the disposal site. He ruled Diane's death a homicide by manual strangulation. Dr. Dennett explained, “[I]n this case, it's felt this was related to strangulation with the hands. Somebody is going to fight that, so it's possible that there would be a period without oxygen then the person would fight free, then possibly [get] choked again.... [So the time it took for the person to die] depends on how efficient the person was in killing the other person.” Dr. Dennett also said that manual strangulation could take several minutes.
After Webster showed them where Diane's body was located, the KBI agents interviewed him again. This time, Webster explained the events in more detail:
“WEBSTER: ... I don't know exactly what time it was when [Withers] and I come back ... Diane was [alright] then and uh, he had left and when he left she got on me again. And I said, why don't you just leave me the fuck alone. And she said, I ain't got to, this is my fucking house. Or something like that. And then, she, she went to kick the chair; instead she kicked me in the leg, the bad leg. And I said, quit. And then she, I don't know whether she slapped me or hit me, but um, when she did that I just flew out of the chair and we both went to the floor and I, and that's when I choked her. And uh, I just, I don't know how long it took me, but I don't know where it came from. Just happened and when it was done, oh no, my God. I got up, I didn't know what to do and I checked her pulse, didn't find one and I freaked out.”
Dr. Adeagbo performed an autopsy on Diane's body. He discovered multiple antemortem (before death) injuries: blunt force injuries on the head, consistent with “major blow[s]” not just “slap[s]”; defensive abrasions on the arms; petechial hemorrhaging around the eyes, an injury caused by lack of oxygen; and a thyroidal cartilage fracture, a throat injury caused by “significant impact,” more like a punch than a squeeze. Dr. Adeagbo concluded that Diane's cause of death was manual strangulation with blunt force trauma to the head and neck as contributors. He explained that while the blunt force trauma alone could have killed her, the strangulation actually caused her death.
The first issue we will address is whether the district court erred by refusing to instruct the jury on unintentional but reckless second-degree murder and reckless involuntary manslaughter.
Webster was charged with first-degree premeditated murder. Defense counsel's proposed jury instructions—which were submitted to the district court 2 weeks before trial—included a reckless involuntary manslaughter instruction and an instruction defining “reckless.” At the final pretrial hearing, the court expressed confusion regarding why defense counsel sought instruction on reckless involuntary manslaughter but not reckless second-degree murder. The matter was to be revisited because the court normally treated the instructions as a package-deal.
At the close of evidence, the district court held a jury instructions conference. At the beginning of the conference, defense counsel said he had reviewed the court's proposed instructions and had no objections to them. Then the court proceeded to go over each instruction. The judge explained that it had considered defense counsel's reckless involuntary manslaughter instruction request, as well as a reckless second-degree murder instruction sua sponte, and concluded:
“THE COURT: ... [B]ased upon [a] number of cases I looked at, I don't believe that the evidence as presented here, even through Mr. Webster's version of the eyents[,] could be construed to be reckless, I think they can only be construed to be intentional. For that reason the Court is not giving any lesser included instructions involving reckless conduct. [Defense counsel], any objection to the instructions as a whole?
“[DEFENSE COUNSEL]: No, Your Honor.”
After being instructed on first-degree premeditated murder and the lesser included crimes of intentional second-degree murder and voluntary manslaughter, the jury found Webster guilty of intentional second-degree murder.
Webster argues that because there was some evidence that would reasonably justify either an unintentional but reckless second-degree murder or reckless involuntary manslaughter conviction, the district court should have instructed the jury on those lesser included crimes. The State counters that Webster's argument has already been rejected in the factually analogous State v. Jones, 267 Kan. 627, 984 P.2d 132 (1999).
The standard of review for determining this issue varies depending upon whether the instruction was requested. State v. Henson, 287 Kan. 574, 581–82, 197 P.3d 456 (2008). Compare State v. Cook, 286 Kan. 1098, Syl. ¶ 4, 191 P.3d 294 (2008) (if instruction is not requested, claim of error reviewed under clearly erroneous standard; K.S.A. 22–3414[3] ), with State v. Moore, 287 Kan. 121, 130, 194 P.3d 18 (2008) (if instruction is requested, claim of error reviewed by examining evidence to determine if lesser included crime is established by evidence when viewed in light most favorable to requesting party).
In this case, the determination of which standard applies is not clear. The record reflects a specific request for an instruction on reckless involuntary manslaughter but not reckless second-degree murder. Nevertheless, during the instructions conference, the district court acknowledged that it considered instructing on both lesser included reckless crimes. Ultimately, the court ruled that because the evidence established conduct that could “only be construed to be intentional,” it would not give “any lesser included instructions involving reckless conduct.” And instead of arguing in favor of giving such instructions, defense counsel stood silent. During oral argument, Webster's counsel acknowledged that the clearly erroneous standard applied. “an instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Martinez, 288 Kan. 443, 451–52, 204 P.3d 601 (2009).
Reckless second-degree murder is an unintentional killing committed recklessly “under circumstances manifesting extreme indifference to the value of human life,” and it is a lesser included crime of first-degree murder. K.S.A. 21–3402(b); K.S.A. 21–3107(2)(a); Martinez, 288 Kan. at 453. Reckless involuntary manslaughter is an unintentional killing committed recklessly, and is also a lesser included crime of first-degree murder. K.S.A. 21–3404(a); K.S.A. 21–3107(2)a; State v. Engelhardt, 280 Kan. 113, 135, 119 P.3d 1148 (2005) (explaining that the only difference between reckless second-degree murder and reckless involuntary manslaughter is the degree of recklessness). Therefore, this court must determine whether there was evidence that Webster's conduct was reckless, “done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” K.S.A. 21–3201(c). Cf.K.S.A. 21–3201(b) (“Intentional conduct is conduct that is purposeful and willful and not accidental.”).
Our Supreme Court has dealt with this issue many times over the years. In State v. Pierce, 260 Kan. 859, 927 P.2d 929 (1996), after the defendant was convicted of first-degree premeditated murder, he argued that the jury should have been instructed on reckless second-degree murder. The evidence showed that the defendant shot the victim in the arm and body, intending to shoot him in the leg but not kill him. The Pierce court found no evidence of recklessness because the defendant's actions were intentional, and thus it held that the district court had no duty to instruct on reckless second-degree murder. 260 Kan. at 867.
In State v. Robinson, 261 Kan. 865, 934 P.2d 38 (1997), after the defendant was convicted of reckless second-degree murder, he argued that the evidence was insufficient to support his conviction. The evidence showed that the defendant hit the victim in the head with a golf club, intending to hit him in the arms but not kill him. The Robinson court found sufficient evidence of recklessness to affirm the defendant's conviction. 261 Kan. at 881.
In State v. Bailey, 263 Kan. 685, 952 P.2d 1289 (1998), after the defendant was convicted of intentional second-degree murder, he argued that the jury should have been instructed on reckless second-degree murder and reckless involuntary manslaughter. The evidence showed that the defendant shot the victim in the head, intending to shoot to frighten everyone. The Bailey court found Pierce to be controlling and thus held that the district court properly refused to instruct on the reckless lesser included crimes. 263 Kan. at 691 (“[A] defendant's actions in pointing a gun at someone and pulling the trigger are intentional rather than reckless even if the defendant did not intend to kill the victim.”).
In Jones, 267 Kan. 627, after the defendant was convicted of intentional second-degree murder, he argued that the jury should have been instructed on reckless second-degree murder. The Jones court held:
“[The defendant's] self-serving statement is the only evidence that would tend to support an instruction on reckless second-degree murder. In light of all the other evidence, in particular the objective findings of the pathologist, defendant's statement is insubstantial and insufficient to support a theory of unintentional killing. [Citation omitted]. All the other evidence excludes a theory of reckless second-degree murder. [The victim] died when [the defendant] used his hands to grip her neck hard enough to break pliable bone and cartilage structures and long enough—4 to 6 minutes—to fatally deprive her of oxygen. His actions were intentional and not reckless. [The defendant's] self-serving statement does not support a reckless second-degree murder instruction.” 267 Kan. at 633 (citing Bailey ).
Our Supreme Court recently changed its approach in State v. Deal, 293 Kan. 872, 885, 269 P.3d 1282 (2012) disapproving contrary language in Jones, Bailey, and Pierce. In Deal, after the defendant was convicted of reckless second-degree murder, he argued that the evidence was insufficient to support his conviction because he acted intentionally not recklessly. Our Supreme Court disagreed:
“Notwithstanding the contrary language in this court's previous decisions, today we hold that K.S.A. 21–3402 focuses culpability on whether a killing is intentional or unintentional, not on whether a deliberate and voluntary act leads to death. In the present case, the facts most favorable to the State are that [the defendant] went to [the victim]'s house to get [the victim]'s side of the story, [the victim] became physically aggressive and tried to hit [the defendant] with the tire iron, [the defendant] wrestled the tire iron away, and [the defendant], without an intent to kill, struck [the victim] one time in the shoulder area and one time in the head. While [the defendant] acted deliberately, he denied he intended to kill, and it cannot be said that death, as opposed to serious injury, is a substantially certain result of hitting someone in the head with a metal bar, albeit a risk and even a probable risk.... [T] he evidence was sufficient to establish an unintentional but reckless second-degree murder in violation of K.S.A. 21–3402(b).” (Emphasis added). 293 Kan. at 885–86.
Our Supreme Court's application of Deal in State v. McCullough, 293 Kan. 970, 979, 270 P.3d 1142 (2012), is instructive. In McCullough, after being convicted of first-degree premeditated murder, the defendant argued that the jury should have been instructed on reckless involuntary manslaughter. The district court did instruct the jury on second-degree murder. The evidence showed that the defendant left a convenience store after a fistfight with the victim, returned with a knife, reached around another person, and stabbed the victim in the abdomen. The McCullough court found no evidence that the killing was unintentional—not even “a statement from the defendant about her purpose in stabbing the victim”—and thus held that the district court had no duty to instruct on reckless involuntary manslaughter. 293 Kan. at 979–80.
State v. Calderon, 270 Kan. 241, 13 P.3d 871 (2000), was cited in McCullough and is dispositive. In Calderon, after being convicted of intentional second-degree murder, the defendant argued that the jury should have been instructed on reckless second-degree murder and reckless involuntary manslaughter. The evidence showed that when the victim approached the defendant and threatened to hit him, the defendant drew a knife and stabbed the victim in the abdomen. In his interview with police, the defendant stated that he had attempted to cut the victim on the arm. The Calderon court found “overwhelming evidence of intent and no evidence of recklessness” and concluded that “[the defendant]'s ‘self-serving statement regarding his lack of intent’ did not in itself invoke a duty on the trial judge to instruct on recklessness.” 270 Kan. at 256;cf. State v. Gregory, 218 Kan. 180, 184, 542 P.2d 1051 (1975) (evidence of recklessness where additional evidence corroborated defendant's testimony that he did not intend to kill victim).
After Deal, our inquiry must be whether the evidence, viewed in the light most favorable to Webster, supports a finding that the killing was unintentional. This case is distinguishable from Deal . Death may not be a substantially certain result of hitting someone in the head and shoulder with a tire iron, but it is a certain result of choking someone until he or she dies from lack of oxygen. This case is also distinguishable from McCullough because there is evidence that the killing was unintentional—Webster stated twice that he “didn't mean” to kill Diane. But like in Calderon, all of the other evidence points to an intentional killing: multiple blunt force injuries to Diane's head and neck, broken throat cartilage, eye injuries from oxygen deprivation, and death by manual strangulation.
The district court was required to instruct on lesser included crimes even if the supporting evidence was weak or inconclusive. Here, Webster's self-serving statements were the only evidence of an unintentional killing. The court was not required to so instruct if the jury could not have reasonably convicted Webster of an unintentional killing. Here, there was overwhelming physical evidence of an intentional killing and no real evidence to the contrary.
Because there was no additional evidence to corroborate Webster's self-serving statements that he did not intend to kill Diane, the district court did not commit clear error by refusing to instruct on reckless second-degree murder and reckless involuntary manslaughter. See Calderon, 270 Kan. at 256;cf. Deal, 203 Kan. at 979–80.
Next, Webster argues that the district court should not have aggregated his prior person misdemeanor convictions into a prior person felony conviction because he was not represented by counsel when he was convicted of one of the misdemeanors.
Webster's criminal history contained one nonperson felony and three prior person misdemeanor convictions, which were aggregated into one person felony and elevated Webster's criminal history score from a G to a C. Webster filed an objection to his criminal history, arguing that two of the three person misdemeanor convictions should not be eligible for conversion to a person felony because he was not represented by counsel in either case. At the sentencing hearing, Webster testified that he “did not hire counsel” and he “spent time in jail before and after going to court” for his Oklahoma misdemeanor conviction. The State responded by providing an authenticated docket sheet, complaint, and bench warrant concerning that conviction.
Ultimately, the district court found that the challenged convictions should be included in the criminal history because Webster had not been sentenced to imprisonment. On February 22, 2010, Webster was sentenced to 285 months' imprisonment for intentional second-degree murder.
Webster argues, as he did to the district court, that the uncounseled Oklahoma conviction cannot be used as part of the person felony calculation. While conceding the conviction was uncounseled, the State replies that the Sixth Amendment right to counsel was not implicated in the conviction at issue because Webster was not sentenced to a term of imprisonment; therefore, it can be used in subsequent criminal history calculation even if Webster was not represented by counsel during the proceedings.
In early 1998, Webster was convicted of domestic abuse under Okla. Stat. tit. 21, § 644(C) (1996 Supp.), which provides in relevant part:
“Any person who commits any assault and battery against ... a person living in the same household as the defendant shall be guilty of domestic abuse. Upon conviction, the defendant shall be punished by imprisonment in the county jail not exceeding one (1) year, or by a fine of not more than Three Thousand Dollars ($3,000.00), or by both such fine and imprisonment.... Every conviction of domestic abuse shall require as a condition of a suspended sentence that the defendant participate in counseling or treatment to bring about the cessation of domestic abuse.” (Emphasis added.)
See Okla. Stat tit. 22, § 991a(A)(1) (1996 Supp.) (Oklahoma courts have the power to “[s]uspend the execution of sentence in whole or in part, with or without probation.”).
More than 10 years later, Webster's Oklahoma conviction was aggregated under K.S.A. 21–4711(a), which provides: “Every three prior adult convictions or juvenile adjudications of class A and class B person misdemeanors in the offender's criminal history, or any combination thereof, shall be rated as one adult conviction or one juvenile adjudication of a person felony for criminal history purposes.” This version was in effect at the time Webster was sentenced. Interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).
Kansas appellate courts have fleshed out the proper use of prior uncounseled misdemeanor convictions for sentence enhancement. In State v. Delacruz, 258 Kan. 129, 135, 899 P.2d 1042 (1995), the Kansas Supreme Court held:
“[T]he use of an uncounseled misdemeanor conviction that does not result in incarceration may be used in determining a defendant's criminal history under the Kansas Sentencing Guidelines even though it has the effect of enhancing his or her sentence under the guidelines. [Citation omitted.] Prior uncounseled misdemeanor convictions ... are constitutional where no jail time is imposed .”
Then the United States Supreme Court decided Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002). In Shelton, the defendant was convicted of a misdemeanor and sentenced to 30 days in jail. But the court suspended his sentence and placed him on 2 years' unsupervised probation, conditioned on his payment of court costs, a fine, reparations, and restitution. The United States Supreme Court held: “[A] suspended sentence that may ‘end up in the actual deprivation of a person's liberty’ may not be imposed unless the defendant was accorded ‘the guiding hand of counsel’ in the prosecution for the crime charged.” 535 U.S. at 658 (quoting Argersinger v. Hamlin, 407 U.S. 25, 40, 92 S.Ct. 2006, 32 L.Ed.2d 530 [1972] ). The Court concluded: “[The defendant] is entitled to appointed counsel at the critical stage when his guilt or innocence of the charged crime is decided and his vulnerability to imprisonment is determined.” 535 U.S. at 674.
In State v. Youngblood, 288 Kan. 659, 206 P.3d 518 (2009), our Supreme Court determined Shelton's impact on Kansas law. In Youngblood, the defendant was charged with felony drug possession based on a prior misdemeanor drug possession conviction. For his misdemeanor conviction, the court had sentenced him to 6 months in jail but placed him on probation. Our Supreme Court held:
“[The defendant] was entitled to counsel when the municipal court found him guilty and sentenced him to a [jail] term, even though the jail time was conditioned upon probation. The denial of that right to counsel renders the uncounseled misdemeanor conviction in municipal court unconstitutional under the Sixth Amendment. Accordingly, the unconstitutional conviction could not be collaterally used in district court for sentence enhancement.” 288 Kan. at 670.
The Kansas Court of Appeals applied Youngblood in State v. Long, 43 Kan.App.2d 328, 225 P.3d 754 (2010). In Long, the defendant's three person misdemeanor convictions were rated as 1 person felony conviction for criminal history purposes. His sentence for each battery conviction was 1 year of probation, alcohol evaluation and counseling for a minimum of 1 year, a fine, and court costs. There was no indication in the court records that he was ordered to serve any jail time for the convictions. The Long court found the sentences “akin to [ ] suspended sentence[s]” and refused to distinguish Youngblood on the fact that the district court never specified the underlying jail term. Long, 43 Kan.App.2d at 337. The panel also opined that the defendant would not have been entitled to counsel “had [he] received only a fine without any term of probation.” 43 Kan.App.2d at 337.
“A person accused of a misdemeanor has a Sixth Amendment right to counsel at the stage of the proceedings where guilt is adjudicated if the sentence to be imposed upon conviction includes a term of imprisonment, even if the jail time is suspended or conditioned upon a term of probation.” 43 Kan.App. 2nd 328, Syl. ¶ 3.
The Long court ultimately held:
“[B]ecause [the defendant] was sentenced to probation ... without counsel or having waived counsel at the time his guilt was adjudicated, his misdemeanor battery convictions were obtained in violation of his Sixth Amendment right to counsel and should not have been scored in his criminal history.... [His] sentence is vacated, and the case is remanded for resentencing without including his misdemeanor battery convictions in his criminal history score.” 43 Kan.App.2d at 338.
Cf. State v. Crawford, 46 Kan.App.2d 401, 419–21, 262 P.3d 1070 (2011) (holding conviction for which defendant “received a suspended fine and was required to pay court costs” was properly used to calculate criminal history), pet. for review filed October 6, 2011) (pending); State v. Gomez, No. 103,629, 2011 WL 3891841, at *2 (Kan.App.2011) (unpublished opinion) (holding conviction for which defendant “received a fine, which was suspended if he obtained an alcohol evaluation, [but no] probation or jail time” was properly used to calculate criminal history).
Our Supreme Court's latest application of Youngblood came in State v. Neal, 292 Kan. 625, 258 P.3d 365 (2011). In Neal, the defendant's three person misdemeanor convictions were rated as one person felony conviction for criminal history purposes. The defendant pled guilty to one battery conviction, was sentenced to 3 months in jail, and was placed on probation, on which he was to report monthly for 6 months, pay a fine and restitution, use no alcohol or drugs, and violate no laws. He also pled guilty to another battery conviction; was sentenced to 6 months in jail; and was placed on probation, on which he was to report for 6 months, attend a domestic violence program, and violate no laws. Our Supreme Court held: “[The defendant] was sentenced to jail [for both convictions] and because the conditions of probation would be meaningless without consequence, we also conclude the jail sentence had been suspended during his compliance with the conditions” and, thus, “he was entitled to legal counsel on [both cases].” 292 Kan. at 634–35.
Here, the docket sheet gives us a brief look at Webster's uncounseled misdemeanor conviction. In March 1998, Webster pled guilty in an Oklahoma court to domestic abuse, agreed to pay courts costs within 6 months, and was ordered to attend both AA and domestic abuse counseling. His sentence was deferred for 1 year and review was set for 6 months. In December 1998, the State moved for imposition of the judgment and sentence, and a bench warrant was issued. In January 1999, the deferred sentence remained and courts costs of $50 per month were due. In mid–2001, a fine-and-cost letter was mailed but returned. In early 2005, Webster owed $3,112.90, and a second letter was mailed and returned before a bench warrant was issued. In mid–2008, a third letter was mailed and returned before the last bench warrant was issued, which conditioned Webster's release upon payment of $5,112.90.
This case is like Long in that the district court ordered counseling as a condition of Webster's suspended sentence, but failed to specify an underlying sentence. But the defendant in Long was placed on probation, whereas Webster was not. This case is more like Crawford because the district court issued a bench warrant conditioning Webster's release upon payment of a fine, which suggests the absence of an underlying jail term. Thus, like the defendant in Crawford, Webster received a suspended fine only.
Webster's misdemeanor domestic abuse conviction, which generated no imprisonment sentence, probation, or suspension of an imprisonment sentence, did not trigger his constitutional right to counsel, so the district court properly used it to calculate his criminal history. Cf. Neal, 292 Kan. at 634–35;Youngblood, 288 Kan. at 670.
Finally, Webster 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), when it sentenced him to an increased sentence, based upon his criminal history, without requiring that the State prove his criminal history to a jury beyond a reasonable doubt. Webster concedes that the Kansas Supreme Court has already decided this issue against him in 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 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. Barnes, 293 Kan. 240, 265, 262 P.3d 297 (2011). Therefore, the district court did not violate Webster's constitutional rights at sentencing.
Affirmed.