State v. Brashier

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NOT DESIGNATED FOR PUBLICATION

No. 117,701


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRIANA MARIE BRASHIER,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; JAMES E. PHELAN, judge. Opinion filed November 30, 2018.
Affirmed.

Catherine A. Zigtema, of Zigtema Law Office LC, of Shawnee, for appellant.

Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BUSER, P.J., ATCHESON, J., and WALKER, S.J.

PER CURIAM: Defendant Briana Marie Brashier appeals her convictions for two
counts of battery and one count of misdemeanor criminal damage to property following a
bench trial in Johnson County District Court on the grounds her trial lawyers
ineffectively represented her by failing to object to a lack of personal jurisdiction and by
failing to assert a statutory speedy trial violation. She also asserts her waiver of her right
to jury trial was legally insufficient. We find the contentions to be without merit and
affirm Brashier's convictions and resulting sentences.
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Brashier does not contest the sufficiency of the State's evidence to support the
charges, and her points on appeal do not depend upon the underlying factual
circumstances. So we dispense with a narrative account of them. All three charges arose
from a single incident in May 2015. Brashier was promptly taken into custody, charged,
and released on bond the following day. The State dismissed the initial case without
prejudice on September 25, 2015, when a witness failed to appear for the scheduled trial.
The State refiled the charges as a new case on September 29, 2016, just over a year later.

In late December 2016, Brashier sought to change lawyers. On January 11, 2017,
the district court ended up appointing a new lawyer to represent her. The new lawyer
filed a request for jury trial a week later and about two months after that waived a jury in
favor of a bench trial. The district court tried the case on April 12 and after hearing the
evidence convicted Brashier of all three misdemeanors. The district court sentenced
Brashier to concurrent six-month jail terms on each conviction and placed her on
probation for 12 months. Brashier has timely appealed.

Brashier characterizes her first point on appeal as ineffective assistance of her trial
lawyers in violation of right to counsel as guaranteed in the Sixth Amendment to the
United States Constitution. In turn, Brashier identifies what she says are two instances of
constitutionally ineffective representation: (1) Her first lawyer failed to assert the State's
lack of personal jurisdiction over her in the refiled case because she purportedly never
received a summons or a copy of the complaint; and (2) her second lawyer failed to assert
a violation of K.S.A. 2017 Supp. 22-3402 that affords criminal defendants a statutory
right to speedy trial.

We typically do not look at ineffectiveness claims on direct appeal for the very
practical reason that little in the record sheds much light on the strategic considerations, if
any, a trial lawyer may have had for taking certain actions or for having not acted in other
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ways. State v. Dull, 298 Kan. 832, 839, 317 P.3d 104 (2014). That sort of evidence can be
developed in a habeas corpus proceeding where the defendant's trial lawyer often will
testify about why he or she handled the criminal case in a particular manner. In
exceedingly rare instances, we might consider a constitutional ineffectiveness claim if the
relevant facts were undisputed and the purported grounds could not possibly be explained
as the product of a reasoned defense strategy. See Wimbley v. State, 292 Kan. 796, 807,
275 P.3d 35 (2011). That rare case is not this case.

Although we decline to consider Brashier's constitutional claim for ineffective
representation in the district court, we can and will review as free-standing assertions of
error the constituent issues she has identified as composing that claim.

After the State refiled the charges, Brashier apparently wasn't served with a
summons or a copy of the complaint in the new case. She seems to have raised the lack of
service more than once. The record is unclear whether the State initially corrected the
oversight. The error would affect the district court's personal jurisdiction over Brashier
rather than its subject matter jurisdiction over the criminal case.

In any event, the record shows that during a hearing on November 30, 2016,
Brashier asserted that she had never received the complaint from the refiled case. The
State suggested that was incorrect. The district court, however, printed out a copy of the
complaint and gave it to Brashier and her lawyer. So Brashier indisputably received the
complaint and notice of the charges as of that date.

Brashier may not have gotten a summons—the record isn't excruciatingly clear
and at least suggests she might not have been served. But the purpose of a summons is to
notify a defendant that a complaint has been filed, to describe the charges, and to require
the defendant to appear before the district court at a specified time and place to respond.
See K.S.A. 2017 Supp. 22-2304(b). Here, by the time Brashier formally received the
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complaint on the record, she already had a lawyer and had made several court
appearances in the refiled case. To the extent there might have been a technical slipup in
the paperwork, the error was harmless. Brashier obviously had notice of the charges long
before she elected to go to trial, and she claims no actual prejudice. Any problem affected
neither the district court's subject matter jurisdiction over the case nor its personal
jurisdiction over Brashier.

Brashier also complains that she did not receive a trial within the time limits in
K.S.A. 2017 Supp. 22-3402. Her second lawyer acknowledged a potential issue. The
lawyer informed the district court he reviewed the lapsed time, taking account of both the
original and refiled cases, and saw no speedy trial violation. On appeal, Brashier
essentially says that's wrong. We have carefully examined the record and find no
statutory speedy trial violation. There appear to be no disputed facts, and to the extent the
record may be imprecise we give the benefit of any imprecision to Brashier. So the issue
presents a question of law we can resolve. State v. Dupree, 304 Kan. 43, 48, 371 P.3d
862, cert. denied 137 S. Ct. 310 (2016).

Brashier concedes she was free on an appearance bond during the prosecution of
the initial case and the refiled case. The State, therefore, had to bring her to trial within
180 days. See K.S.A. 2017 Supp. 22-3402(b). But delays attributable to Brashier, such as
requested continuances of the trial, don't count against the 180-day limit. For purposes of
determining the time attributable to a criminal defendant's requests, the district court
measures from the date a request for continuance is granted to the next trial date. State v.
Robinson, 306 Kan. 1012, 1019, 399 P.3d 194 (2017); State v. Brown, 283 Kan. 658, 666,
157 P.3d 624 (2007).

The statutory speedy trial time begins to run at arraignment or when arraignment
is waived. Robinson, 306 Kan. at 1018; State v. Jamison, 248 Kan. 302, 304, 806 P.2d
972 (1991). Because the charges in the refiled case were identical to the charges in the
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original case that the State dismissed, the speedy trial time should be aggregated or
tacked. State v. Parry, 305 Kan. 1189, 1197, 390 P.3d 879 (2017) ("[T]his court has
viewed the filing of the same criminal charges against the same defendant in successive
cases as a single action for purposes of computing speedy trial times under K.S.A. 22-
3402."); Jamison, 248 Kan. at 304 ("[T]he State cannot avoid the time limitations of
K.S.A. 22-3402[2] by dismissing an action and then refiling the identical charges against
the same defendant, absent a showing of necessity."). The State has not shown
necessitous circumstances for dismissing the first case that would preclude tacking the
speedy trial time for it with the speedy trial time for the refiled case, since it did not
request a continuance before dismissing. See Jamison, 248 Kan. at 305 (citing with
approval State v. Ransom, 234 Kan. 322, 325-27, 673 P.2d 1101 [1983], and State v.
Cuezze, Houston & Faltico, 225 Kan. 274, 275-79, 589 P.2d 626 [1979]). So the time
between Brashier's arraignment in the first case on May 22, 2015, and the dismissal of
that case on September 25, 2015, has to be assessed for statutory speedy trial purposes.

One hundred twenty-six days elapsed between Brashier's arraignment and the
dismissal of the first case. At the arraignment, the district court set the case for a
scheduling conference on June 17, 2015. The record doesn't clearly establish who
requested the scheduling conference, so we give Brashier the benefit and count the time
between May 22 and June 17 for speedy trial purposes.[*] According to the register of
action, at the scheduling conference, the district court set trial for July 21. The time
between the scheduling conference and that trial date also counts toward the speedy trial
limit. The day before trial the State requested a continuance, and the district court set a
new date for August 25. That time counts against the speedy trial limit. On August 25,
Brashier requested a continuance; the district court reset the trial for September 25. That
delay, resulting from Brashier's request, does not reduce the 180-day period. The case
was dismissed on September 25. Reviewing the record as favorably as possible for
Brashier for speedy trial purposes, the State was responsible for 95 days in the first case
from May 22 through August 25, 2015.
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[*]The transcript of the arraignment shows that a lawyer appeared for Brashier,
since he or she acknowledged receipt of the complaint and waived its reading. The
individual, however, is not identified by name and is referred to only as "Voice." A
prosecutor also appeared at the arraignment and presented the State's position on bond.
The prosecutor is also unnamed and identified as "Voice." In between the statement
obviously made by the defense lawyer Voice and the statement obviously made by the
prosecutor Voice, the district court asks whether the case should be set for a scheduling
conference or trial. One or the other Voice responds, "Scheduling." And the district court
set the conference for June 17. We suppose that choice typically would have been
extended to Brashier, as the defendant. But the record is effectively inscrutable as to who
actually responded to the district court's question. We, therefore, assume the prosecutor
did and attribute the time from May 22 to June 17 to the State.

To resolve Brashier's claim on appeal, we assume without deciding that the 180-
day speedy trial time resumed when the State filed the complaint in the new case on
September 29, 2016. The assumption is debatable, especially given Brashier's contention
she never received a summons and wasn't served with the complaint. But Brashier could
be entitled to no more favorable an assessment. The time between the dismissal of the
case in September 2015 and its refiling in September 2016 does not count for speedy trial
purposes. K.S.A. 2017 Supp. 22-3402(b) (180-day limit applies to period defendant
"charged with a crime and held to answer on an appearance bond"); Jamison, 248 Kan. at
304. Brashier went to trial on April 12, 2017—195 days after the new case had been
filed. But during that stretch, she prompted various delays of the trial.

Brashier sought and received a continuance to find a new lawyer. When she
couldn't, the district court appointed a lawyer who then obtained additional continuances
of the trial. As set out in Brown, the time between the date Brashier obtained a
continuance and the new trial date were attributable to her for speedy trial purposes. See
Brown, 283 Kan. at 666. By that measure, the entire period from December 20, 2016, to
April 12, 2017, had to be excluded from the 180-day speedy trial time. In turn, the most
that could be charged to the State in the refiled case was 82 days—from September 29 to
December 20, 2016. When that time is aggregated with the chargeable speedy trial time
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from the original case, the total is 177 days—just within the statutory 180-day limit.
K.S.A. 2017 Supp. 22-3402(b). Brashier received a speedy trial.

With respect to Brashier's first point on appeal, we find no tangible error. The
manner in which Brashier was supplied with a copy of the complaint in the refiled case
neither substantively diminished any of her rights nor caused her actual prejudice. And
she was not deprived of a speedy trial. So Bashier has not presented any reversible error
underlying her claim for a violation of her Sixth Amendment right to counsel.

For her remaining issue on appeal, Brashier contends the waiver of her right to
jury trial was inadequate and the inadequacy vitiated the bench trial along with the
resulting convictions. Brashier's argument collapses because of a foundational flaw: She
failed to secure her right to a jury trial on these charges. Brashier couldn't waive what she
never had. The sufficiency of a waiver of a nonexistent right amounts to a legal
irrelevancy.

All of the charges against Brashier carried a maximum punishment of six months
in jail. See K.S.A. 2014 Supp. 21-5413(g)(1) (penalty provision for battery); K.S.A. 2014
Supp. 21-5813(b)(3) (penalty provision for criminal damage to property under $1,000);
K.S.A. 2014 Supp. 21-6602(a)(2) (defining the penalty for class B misdemeanors). In the
words of the law, that makes them "petty offenses." Criminal defendants have no
constitutional right to jury trials for petty offenses. Duncan v. Louisiana, 391 U.S. 145,
159-61, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); State v. Shannon, 258 Kan. 425, 435-36,
905 P.2d 649 (1995); State v. Woolverton, 52 Kan. App. 2d 700, 701-02, 371 P.3d 941
(2016), rev. denied 306 Kan. 1331 (2017). The constitutional right to jury trial
automatically attaches to "serious crimes" (those punishable by incarceration for more
than six months), and a defendant must affirmatively waive that right.

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Although Brashier had no constitutional right to a jury trial, she did have a
statutory right conferred in K.S.A. 22-3404. But the statutory right for petty offenses does
not operate in the same way as the constitutional right. Pertinent here, a defendant must
affirmatively request a jury trial for a petty offense—the right does not automatically
arise. Under K.S.A. 22-3404(1), the defendant has to file a written request for a jury trial
"not later than seven days after first notice of trial assignment is given to the defendant or
such defendant's counsel."

In the refiled case, the district court scheduled and then rescheduled the trial for
October 26, November 30, and then December 20, 2016. The district court put any later
trial setting on hold while Bashier unsuccessfully sought to hire a lawyer. As we
mentioned, the district court appointed a new lawyer for Bashier in January 2017. The
new lawyer filed a request for jury trial on January 17. The request, however, was long
past the deadline fixed in K.S.A. 22-3404(1).

As provided in K.S.A. 22-3404(1), the district court may excuse a defendant's
failure to timely request a jury trial if it finds the failure "would cause undue hardship or
prejudice to the defendant." Brashier didn't request such a finding, and the district court
never granted her relief from the deadline. As a result, Brashier's jury trial request was
legally ineffective and secured nothing. The later waiver, whether or not facially
sufficient in form, amounted to an empty exercise, since Brashier purported to waive a
right she had never acquired. Brashier's appellate claim of error fails.

Affirmed.