State v. Witten

1

Nos. 103,476
103,477

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KEVIN WITTEN,
Appellant.


SYLLABUS BY THE COURT

1.
When a defendant challenges the sufficiency of the evidence in a criminal case,
the standard of review is whether, after reviewing all the evidence, viewed in the light
most favorable to the prosecution, the appellate court is convinced that a rational
factfinder could have found the defendant guilty beyond a reasonable doubt.

2.
The State must sustain its burden of proof on each element of an offense charged.
Circumstantial evidence and the logical inferences therefrom are sufficient to support a
conviction of even the most serious crime. Here, the State failed to present evidence that
the school in question was "for student instruction or attendance or extracurricular
activities of pupils enrolled in kindergarten or any of the grades one through 12" as
required in K.S.A. 2007 Supp. 65-4161(d).

3.
When a defendant has been convicted of the greater offense but evidence supports
only a lesser included offense, the case must be remanded to resentence the defendant for
conviction of the lesser included offense.
2

4.
Allegations of prosecutorial misconduct require a two-step analysis. First, the
appellate court must determine whether the comments were outside the wide latitude
allowed in discussing the evidence. Second, the appellate court must decide whether
those comments constitute plain error; that is, whether the statements prejudiced the jury
against the defendant and denied the defendant a fair trial, thereby requiring reversal.

5.
In the second part of the two-step prosecutorial misconduct analysis, the appellate
court considers three factors to determine whether a new trial should be granted. The
court must determine (1) whether the misconduct is gross and flagrant; (2) whether the
misconduct reflected ill will on the prosecutor's part; and (3) whether the State's evidence
is of such a direct and overwhelming nature that the misconduct would likely have had
little weight in the minds of the jurors. No one of these factors is individually controlling.
Before the third factor can ever override the first two factors, the reviewing court must be
able to say that the harmlessness tests of both K.S.A. 60-261 (inconsistent with
substantial justice) and Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed.
2d 705 (1967) (finding beyond reasonable doubt that the error had little, if any, likelihood
of having changed the results of the trial), have been satisfied.

6.
This court is duty bound to follow Kansas Supreme Court precedent, absent some
indication the court is departing from its previous position. Accordingly, the district court
did not err in sentencing the defendant based on his prior criminal history although it was
not submitted to the jury for determination.

7.
Under the facts of this case, the defendant's conviction for sale of
methamphetamine within 1,000 feet of a school is vacated and remanded to properly
3

show conviction for sale of methamphetamine and imposition of a sentence
corresponding to the conviction.

Appeal from Pratt District Court; ROBERT J. SCHMISSEUR, judge. Opinion filed March 18, 2011.
Affirmed in part, reversed in part, and remanded with directions.

Joanna Labastida, of Kansas Appellate Defender Office, for appellant.

Kenneth Van Blaricum, county attorney, and Steve Six, attorney general, for appellee.

Before STANDRIDGE, P.J., MCANANY, J., and KNUDSON, S.J.

KNUDSON, J.: In district court case No. 08CR89, a jury found Kevin Witten guilty
of the sale of methamphetamine within 1,000 feet of a school and possession of
methamphetamine without a drug tax stamp. In a companion case, No. 08CR276, Witten
pled guilty to the possession of methamphetamine and possession of a controlled
substance without a drug tax stamp. On appeal, Witten challenges his convictions in case
No. 08CR89, claiming that prosecutorial misconduct deprived him of a fair trial and that
there was insufficient evidence that he sold methamphetamine within 1,000 feet of a
school. Witten also contends the district court erred in denying his motion to withdraw
his guilty pleas in case No. 08CR276. Finally, Witten also appeals the process used to
determine his criminal history for sentencing purposes.

We affirm in case No. 08CR276. We affirm in part and reverse in part in case No.
08CR89. We remand case No. 08CR89 to the district court with directions to vacate
Witten's conviction and sentence for the sale of methamphetamine within 1,000 feet of a
school and enter a judgment of conviction for the lesser included offense of sale of
methamphetamine. He is to be resentenced on the sale of methamphetamine conviction.
Witten's conviction and the sentence imposed for possession of a controlled substance
without a drug tax stamp are affirmed.
4

The underlying facts in case No. 08CR89

On January 23, 2007, Detective Jeff Ward of the Pratt Police Department
contacted a confidential informant, Frank Sturgeon, who claimed that he could purchase
methamphetamine from Witten. Detective Ward and Lieutenant Robert Walker met with
Sturgeon that evening and searched his person and vehicle. Sturgeon was given an
electronic transmitting device and prerecorded investigative funds. Walker and Ward
followed Sturgeon to Witten's residence in Pratt and observed him enter the front door.
Over the transmitter, the officers heard Sturgeon greet Witten by name and begin
discussing the sale of methamphetamine. The officers heard Witten agree to sell Sturgeon
2 grams of methamphetamine for $200. Sturgeon testified at trial that he left $200 with
Witten, who agreed to deliver the drugs the next day. Witten's residence was located 333
feet from the Liberty Middle School building.

Sturgeon, on leaving Witten's house, was met by Ward and Walker. Sturgeon
returned the balance of undercover funds to the officers. The next day, Sturgeon was
again searched by Ward and fitted with an electronic transmitting device. The officers
observed Witten and Sturgeon meeting outside a local convenience store that was
subsequently determined to be 854 feet from the Liberty Middle School building.
Sturgeon went to the door of Witten's car and was given a small package. At trial,
Detective Ward testified he did not see the exchange between Witten and Sturgeon;
Lieutenant Walker testified that he personally observed the exchange.

After the exchange, Sturgeon was again searched and he delivered to the officers a
small baggie containing methamphetamine. No drug tax stamp was affixed to the
package.

5

The above factual circumstances led to the charges of sale of methamphetamine
within 1,000 feet of a school and possession of a controlled substance without a drug tax
stamp.

A jury found Witten guilty of both charges. His trial counsel filed a timely motion
for a new trial claiming juror misconduct and error in the jury instructions. Shortly
thereafter, Witten requested an appointment of a new attorney. Sam Kepfield was then
appointed to represent Witten. Kepfield filed a motion for judgment of acquittal and a
motion for a dispositional and departure sentence.

The underlying facts in case No. 08CR276

On November 13, 2007, Detective Ward met with a second confidential informant,
Debbie Fields, who was asked to attempt to arrange to buy 1 gram of methamphetamine
from Witten. Fields contacted Ward and advised him that arrangements had been made
for the buy. That evening, officers met with Fields and searched her and her car for drugs
and money. Finding none, Fields was given an electronic transmitting device and $100 of
prerecorded investigative funds. Fields was observed driving to Witten's home and
entering it through the rear door. In the audio transmission, Witten was heard discussing
the loss of his job and the sale of illegal drugs.

After Fields left Witten's house, she was met by police and searched. Fields gave
the officers a plastic bag containing a white crystalline substance which field-tested
positive for methamphetamine. Fields was searched and no other drugs or additional cash
was found. There was no drug tax stamp attached to the baggie. The distance between
Witten's home and Liberty Middle School was again measured and determined to be less
than 1,000 feet. Testing by the Kansas Bureau of Investigation confirmed the package
delivered to Fields contained methamphetamine.

6

The above factual circumstances led to the charges of possession of
methamphetamine within 1,000 feet of a school and possession of a controlled substance
without a drug tax stamp. Ultimately, a written plea agreement was entered into that
provided the sale of methamphetamine within 1,000 feet of a school count would be
reduced to simple possession of methamphetamine and Witten would plead guilty to the
reduced charge and to possession of a controlled substance without a drug tax stamp. The
parties also agreed to recommend the sentences in cases Nos. 08CR89 and 08CR276 run
concurrently. An extensive hearing was held before the district court, and Witten's pleas
of guilty were accepted.

The posttrial proceedings and sentencing

A hearing on posttrial motions in both cases and sentencing was scheduled for
April 24, 2009. On April 15, 2009, Witten wrote a letter to the court claiming Kepfield
was neglecting him and requesting new counsel. The hearing was postponed. On May 1,
2009, the court appointed Linda Eckelman to represent Witten in both cases. Eckelman
filed a supplemental motion for judgment of acquittal in case No. 08CR89 and a motion
to set aside his guilty pleas in case No. 08CR276.

A hearing was held on all posttrial motions on October 2, 2009. Witten testified
about the circumstances surrounding his request for a new trial, focusing on the State's
posttrial delivery of additional recordings of the undercover transactions. Witten also
testified that he thought that because Kepfield had withdrawn as his attorney, the plea
agreement in 08CR276 was withdrawn.

The testimony and arguments on all the posttrial motions focused primarily on
allegations of misconduct and improper manipulation by the prosecutor. There was no
testimony from Witten or argument by his counsel suggesting Kepfield had been
ineffective counsel.
7

After hearing Witten's testimony and arguments of counsel, the district court
denied Witten's motion for a new trial in case No. 08CR89 and his motion to withdraw
his plea in case No. 08CR276.

During the sentencing portion of the hearing, the court determined that Witten's
criminal history score was F. In case No. 08CR89, the court granted a downward
durational departure sentence of 28 months' incarceration for the sale of
methamphetamine within 1,000 feet of a school charge and a concurrent sentence of 6
months on the drug tax stamp charge. With respect to case No. 08CR276, the court
sentenced Witten to a controlling prison sentence of 17 months, to be served concurrently
with the sentence in case No. 08CR89.

Witten has filed a timely appeal in both cases, and we turn to our analysis and
disposition of the issues that have been raised.

The State failed to prove the sale of methamphetamine occurred within 1,000 feet of a
school

Witten contends there was insufficient evidence to support his conviction in case
No. 08CR89 of the sale of methamphetamine within 1,000 feet of a school. Specifically,
Witten contends that the State failed to establish that Liberty Middle School qualified as a
"school" within the meaning of K.S.A. 2007 Supp. 65-4161(d).

"When a defendant challenges the sufficiency of the evidence in a criminal case,
the standard of review is whether, after reviewing all the evidence, viewed in the light
most favorable to the prosecution, the appellate court is convinced that a rational
factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation
omitted.]" State v. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009).


8

The relevant statute, K.S.A. 2007 Supp. 65-4161(d), stated in material part:

"Notwithstanding any other provision of law, upon conviction of any person for a
first offense pursuant to subsection (a), such person shall be guilty of a drug severity level
2 felony if such person is 18 or more years of age and the substances involved were
possessed with intent to sell, deliver or distribute; sold or offered for sale in or on, or
within 1,000 feet of any school property upon which is located a structure used by a
unified school district or an accredited nonpublic school for student instruction or
attendance or extracurricular activities of pupils enrolled in kindergarten or any of the
grades one through 12." (Emphasis added.)

At trial, the detective testified as to the distances between Witten's home and the
convenience store from Liberty Middle School. The detective also testified that Liberty
Middle School was "operated by a Unified School District" known as "USD 382."
However, there was no other evidence presented as to exactly what purposes or district
functions were carried out at Liberty Middle School.

The appellate courts have been called on repeatedly to interpret the types of
evidence needed to prove this element of an offense under K.S.A. 2007 Supp. 65-
4161(d). Cases have established that evidence that the subject property is leased by a
school district and used for one or more of the statutory purposes is sufficient to support a
conviction. See State v. Prosper, 260 Kan. 743, 746-47, 926 P.2d 231 (1996). However,
mere permissive use of public ball fields by the school is insufficient. State v. Wilt, 273
Kan. 273, 276-77, 44 P.3d 300 (2002).

In addition, the educational use of the property need not be extensive. For
example, in State v. Randolph, No. 92,329, unpublished opinion filed March 24, 2006,
rev. denied 282 Kan. 795 (2006), a school superintendent testified that the district's
administration building, located 919 feet from the sale, was "school property." He also
testified that two special education students worked there with a teacher as part of their
9

education, and the building served as a point of departure and return for special education
students who attended various schools in the district. The court held this evidence was
sufficient to sustain convictions under the statute. Slip op. at 20.

Although the State presented evidence that Liberty Middle School was operated
by a school district, no witness testified as to whether the building was used for one of the
purposes set forth in the statute. Witten justifiably relies on State v. Star, 27 Kan. App. 2d
930, 10 P.3d 37, rev. denied 270 Kan. 903 (2000). In Star, the evidence at trial
established that the transactions occurred within 1,000 feet of "Hickok School." 27 Kan.
App. 2d at 933. The evidence included a diagram of the area of the sale, including the
school parking lot and school grounds. However, no evidence was presented that Hickok
School was a structure used by a school district "for any of the uses listed in the statute."
27 Kan. App. 2d at 933. The Star court found that in order to sustain a conviction for the
crime of the sale of cocaine within 1,000 feet of a school, the State was required to
present evidence that the structure referred to as a school satisfied the definition in K.S.A.
1999 Supp. 65-4161(d). "Such evidence is necessary to prove a necessary element of the
offense, and where lacking, a jury cannot be allowed to speculate or infer through its own
observations that the structure complies with the statutory definition of a school." 27 Kan.
App. 2d at 936.

On appeal, the State argues that the court should take judicial notice of the
function of the school under K.S.A. 60-409 and that "[w]ell informed persons in Pratt
County . . . are aware of the existence and nature of Liberty Middle School." However,
the Star court specifically rejected the State's arguments that members of the jury could
bring their common sense and background of experiences to take notice that the building
was operated as a school. 27 Kan. App. 2d at 934. The same argument also was rejected
in State v. West, No. 99,063, unpublished opinion dated November 7, 2008, rev. denied
289 Kan. 1285 (2009) (because State failed to present evidence to jury that Garfield
10

School was part of a unified school district or an accredited nonpublic school, reversal of
convictions was required).

The State must sustain its burden of proof on each element of an offense charged,
and circumstantial evidence and the logical inferences therefrom are sufficient to support
a conviction of even the most serious crime. State v. Scott, 285 Kan. 366, 372, 171 P.3d
639 (2007). However, the State cannot evade its responsibility to present evidence that
Liberty Middle School was being used "'for student instruction or attendance or
extracurricular activities of pupils enrolled in kindergarten or any of the grades one
through 12.'" (Emphasis added.) See K.S.A. 2007 Supp. 65-4161(d); Star, 27 Kan. App.
2d at 936; see also State v. Perez-Rivera, 41 Kan. App. 2d 579, 582-83, 203 P.3d 735
(2009) (jury could not infer from witness' physical appearance that she was underage at
the time of encounter with defendant). Despite the name of the building, districts close
buildings or use them for different purposes that may not qualify under the statute.

Based on the reasoning of Star and West, the State failed to present sufficient
evidence that Witten sold methamphetamine within 1,000 feet of a school as defined in
K.S.A. 2007 Supp. 65-4161(d). However, there was ample evidence that Witten sold
methamphetamine as alleged by the State, and Witten does not contend otherwise on
appeal. "'Where a defendant has been convicted of the greater offense but evidence
supports only a lesser included offense, the case must be remanded to resentence the
defendant for conviction of the lesser included offense.' State v. Kingsley, 252 Kan. 761,
782, 851 P.2d 370 (1993)." Wilt, 273 Kan. at 278.

Accordingly, Witten's conviction for the sale of methamphetamine within 1,000
feet of a school is set aside and the case is remanded for Witten to be resentenced for the
lesser included offense of sale of methamphetamine.


11

The prosecutor did not commit reversible misconduct in closing argument

Witten claims the prosecutor committed misconduct during the closing arguments
of the jury trial in case No. 08CR89. Witten contends the prosecutor improperly appealed
to the jury's sense of community, vouched for a State's witness, and commented on facts
not in evidence. Accordingly, Witten claims his right to a fair trial was violated.

"Allegations of prosecutorial misconduct require a two-step analysis. First, the
appellate court must determine whether the comments were outside the wide latitude
allowed in discussing the evidence. Second, the appellate court must decide whether
those comments constitute plain error; that is, whether the statements prejudiced the jury
against the defendant and denied the defendant a fair trial, thereby requiring reversal.
State v. Elnicki, 279 Kan. 47, 58, 105 P.3d 1222 (2005) (quoting State v. Tosh, 278 Kan.
83, 85, 91 P.3d 1204 [2004]). We have applied the test to prosecutorial action in contexts
beyond mere comment on the evidence. [Citation omitted.]." State v. White, 284 Kan.
333, 337-38, 161 P.3d 208 (2007).

In the second part of the two-step analysis, the appellate court considers three
factors to determine whether a new trial should be granted. The court must determine (1)
whether the misconduct is gross and flagrant; (2) whether the misconduct reflected ill
will on the prosecutor's part; and (3) whether the State's evidence is of such a direct and
overwhelming nature that the misconduct would likely have little weight in the minds of
the jurors. No one of these factors is individually controlling. Before the third factor can
ever override the first two factors, the reviewing court must be able to say that the
harmlessness tests of both K.S.A. 60-261 (inconsistent with substantial justice) and
Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) (finding
beyond reasonable doubt that the error had little, if any, likelihood of having changed the
results of the trial), have been satisfied. State v. Bryant, 285 Kan. 970, Syl. ¶ 2, 179 P.3d
1122 (2008).

12

Witten takes issue with various comments made by the prosecutor during closing
argument. First, Witten complains of the prosecutor's comments at the conclusion of his
argument as follows:

"We know about the drug activities. We know things are going on. We hear about
methamphetamines and now we're addressing a real problem. We're addressing a real
situation. Somebody in our community is selling methamphetamines. Now it's up to you
and I ask you to find Mr. Witten guilty on both counts."

Witten asserts these comments were designed to inflame the prejudices of the jury
and asking the jury to protect the community.

A prosecutor should not make statements intended to inflame the prejudices of the
jury or to divert the jury's attention from its duty to decide the case based on the evidence
and the controlling law. State v. Tosh, 278 Kan. 83, 90, 91 P.3d 1204 (2004). The
Supreme Court has held that a prosecutor's comment that "'[w]e don't want people
making meth in our communities'" and a comment regarding on preventing "'people from
making meth in our community'" were improper in that such comments inferentially
asked the jury to render a verdict to protect the community. State v. Finley, 273 Kan. 237,
245, 42 P.3d 723 (2002); see also State v. Green, 254 Kan. 669, 684-85, 867 P.2d 366
(1994) (finding the statement "'[w]hat you decide will be what our community stands
for'" improper); State v. Ruff, 252 Kan. 625, 631, 847 P.2d 1258 (1993) (improper for
State to urge jury to "not allow [the defendant's alleged] conduct to be tolerated in our
county"); City of Dodge City v. Ingram, 33 Kan. App. 2d 829, 837, 839-40, 109 P.3d
1272 (2005) (finding statement that jury is the "'conscience of the community'"
improper). We believe the prosecutor's statements were improper and intended to appeal
to the passions of the jurors.

13

The prosecutor's comments also injected facts not in evidence. None of the police
witnesses testified that the sale of methamphetamine was a serious issue in Pratt, Kansas.
In its brief, the State asserts the prosecutor was simply "[stating] the obvious." A
fundamental rule in closing arguments requires prosecutors to confine their comments to
matters in evidence. State v. Richmond, 289 Kan. 419, 440-41, 212 P.3d 165 (2009)
(citing State v. Baker, 281 Kan. 997, Syl. ¶ 11, 135 P.3d 1098 [2006]). Granted, a
prosecutor is allowed considerable latitude in discussing the evidence and drawing
reasonable inferences from that evidence. Richmond, 289 Kan. at 441. However, there
was no evidence from which to infer that the sale of methamphetamine was a serious
problem in the Pratt community, and we conclude the remarks were improper and
intended to appeal to the passions of the jurors.

Because we have determined the comments thus far noted were outside the wide
latitude allowed to the prosecution in discussing evidence, we must next decide whether
those comments prejudiced the jury and denied Witten a fair trial. We believe this to be a
very close issue. Our appellate courts have repeatedly reminded prosecutors to abstain
from making the comments that appeal to the passions of jurors. Prosecutors have to
know by now that an argument exhorting jurors to be the conscience of the community is
highly improper. Likewise, informing the jury with conspiratorial "we know" statements
about community drug activities, what is going on, and drug activity in the community, is
likewise highly improper.

Recognizing the many forceful and unequivocal published opinions of our
appellate courts disapproving of such comments, we determine the prosecutorial
misconduct must be considered gross and flagrant. The second factor is whether the
prosecutor's misconduct demonstrates ill will. We are mindful the Supreme Court has
found ill will when the prosecutor's statements were intentional and not made in good
faith. Tosh, 278 Kan. at 94. Nevertheless, we are persuaded by the reasoning expressed in
State v. Miller, 284 Kan. 682, 719-20, 163 P.3d 267 (2007), that a finding of ill will
14

would be improvident. Finally, we conclude under the third factor that the State's
evidence is of such a direct and overwhelming nature that the misconduct would likely
have had little weight in the minds of the jurors. Hence, we conclude under the facts of
this case that the prosecutorial misconduct constitutes harmless error under K.S.A. 60-
261 and Chapman.

Witten also complains about the prosecutor's closing statements regarding Liberty
Middle School. In his remarks, the prosecutor stated: "All of this happened right by
Liberty Middle School and we all know what happens there. That's where we send our
7th, 8th, 6th, 7th, 8th [sic] graders to be educated." (Emphasis added.) Although the
detective testified the transactions occurred within 1,000 feet of "Liberty Middle School"
which was operated by "USD 382," there was no evidence presented that the building
was used for educational purposes for students between kindergarten and the 12th grade.
Such evidence must be presented at trial to prove the necessary element of the criminal
offense. A jury is not permitted to use its own knowledge to establish an element of the
crime. See Star, 27 Kan. App. 2d at 936. Because we have concluded for the reasons
previously discussed that Witten's conviction for the sale of methamphetamine within
1,000 feet of a school must be vacated, we fail to see how the above comments would
support the grant of a new trial.

Finally, Witten complains the prosecutor vouched for his own witnesses by
commenting on Detective Ward's testimony—stating he did a "pretty good job of
testifying." Detective Ward made mistakes in his paperwork concerning dates and times
of the offenses charged. Ward explained that he had to type his own reports but that his
testimony at trial was accurate as to the series of events. We agree with the State that the
complained-of statements made in rebuttal were responsive to the defendant's closing
argument and were made in the context of the date and time errors on reports.
Additionally, Ward's testimony regarding the underlying events was substantially
15

corroborated by the testimony of Lieutenant Walker and Sturgeon. We conclude the
statement did not constitute vouching or prejudice Witten's right to a fair trial.

Witten did not establish good cause to withdraw guilty pleas

With respect to his convictions in case No. 08CR276, Witten argues on appeal that
the district court abused its discretion in denying his motion to withdraw his guilty pleas
for good cause shown filed pursuant to K.S.A. 22-3210(d). However, on appeal Witten
fails to raise any issue that was the subject of his motion or the district court's subsequent
denial. An issue not raised in the appellate brief is deemed abandoned. State v. Martin,
285 Kan. 994, 998, 179 P.3d 457, cert. denied ___ U.S. ___, 129 S. Ct. 192 (2008).

Instead, Witten's claim on appeal is based on statements he made during
allocution. At that time, Witten contended his second attorney, Sam Kepfield, pressured
him into pleading guilty. In addition, Witten claims the district court failed to make
adequate findings of fact and conclusions of law as to whether Kepfield unduly pressured
him to plead guilty.

There is an obvious disconnect between the evidence offered in Witten's motion to
withdraw his pleas and his statements made during allocution. Witten waited until
allocution to allege his pleas were coerced. We conclude Witten did not properly present
his unsubstantiated allegation to the district court. Secondly, Witten did not object to
inadequate findings of fact before the district court. Consequently, this issue was not
preserved for appeal. See Gilkey v. State, 31 Kan. App. 2d 77, 77-78, 60 P.3d 351, rev.
denied 275 Kan. 963 (2003).

There are also multiple reasons to conclude Witten's statements made in allocution
were untrustworthy. First, during the prior plea hearing, the court asked Witten if he
understood the plea agreement, if he waived arraignment to the amended charge, and if
16

he had visited with counsel regarding the potential penalties with a severity level 4 drug
felony. Witten reported he did not have any questions about the sentences. Witten also
reported he had seen the written acknowledgment of rights and that he did not have any
questions about the matters set forth in the form. He also testified that no other promises
had been made to him, including that if he pled guilty it would result in better treatment
from the court. Witten's only hesitation was when the State represented the amount of
methamphetamine involved was 1.63 grams rather than 1 gram; the court clarified that
the plea agreement provided Witten would plead guilty to possessing at least 1 gram. The
court then found Witten guilty of the charges.

Second, Witten's claim of coercion was not mentioned in his motion to withdraw
his pleas or during the evidentiary hearing on the motion. Eckelman had represented
Witten for 5 months and had obtained several continuances before filing the motion to
withdraw pleas. Notwithstanding that a claim of coercion will frequently be the very
essence of such a motion, it is apparent Witten either did not mention his concern to
Eckelman or deem it important enough to properly present at the hearing.

Based on the totality of the circumstances, Witten's belated attempt to inject a
claim of coercion during allocution was untimely and untrustworthy. We conclude Witten
failed to demonstrate good cause to support the setting aside of his guilty pleas.

Determination of Witten's criminal justice history does not run afoul of Apprendi v. New
Jersey

Finally, Witten contends the district court violated his constitutional due process
rights by enhancing his sentence by considering his prior convictions without proving
those convictions to a jury beyond a reasonable doubt. He relies on Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Witten concedes our
17

Supreme Court rejected this argument in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002),
but includes this issue to preserve it for federal review.

This court is duty bound to follow Kansas Supreme Court precedent, absent some
indication the court is departing from its previous position. State v. Merrills, 37 Kan.
App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007). Because our Supreme
Court continues to adhere to its holding in Ivory, see, e.g., State v. Raschke, 289 Kan.
911, 912, 219 P.3d 481 (2009), this argument fails.

Conclusion

In case No. 08CR276, we affirm. In case No. 08CR89, we affirm in part, reverse
in part, and remand with directions. Witten's conviction and sentence for the sale of
methamphetamine within 1,000 feet of a school is vacated; on remand, the journal entry
of judgment is to be corrected to show Witten's conviction of the lesser included offense
of the sale of methamphetamine and he is to be resentenced; Witten's conviction and the
sentence imposed for possession of a controlled substance without a drug tax stamp are
affirmed.