State v. Delira

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NOT DESIGNATED FOR PUBLICATION

No. 119,005

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

FRANCISCO JAVIER DELIRA,
Appellant.


MEMORANDUM OPINION

Appeal from Thomas District Court; KEVIN BERENS, judge. Opinion filed May 31, 2019.
Affirmed in part, vacated in part, and remanded with directions.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Rachel Lamm, county attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, P.J., SCHROEDER, J., and MCANANY, S.J.

PER CURIAM: Francisco Delira appeals his conviction of possession of
methamphetamine with intent to distribute. Delira claims: (1) the district court erred in
denying his motion to suppress; (2) the district court erred in denying his challenge to the
State's peremptory strike of a potential juror under Batson v. Kentucky, 476 U.S. 79, 106
S. Ct. 1712, 90 L. Ed. 2d 69 (1986); and (3) the district court abused its discretion in
ordering him to pay $5,423.84 in Board of Indigents' Defense Services (BIDS) attorney
fees. We grant relief to Delira only on the third issue.


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FACTUAL AND PROCEDURAL BACKGROUND

On August 24, 2016, Officer Cole Andreasen of the Colby Police Department
stopped Delira for failing to use a turn signal at least 100 feet before turning onto an I-
70 entrance ramp. Andreasen told Delira why he had pulled him over and briefly visited
with him about his travel plans. Andreasen asked Delira for his driver's license and rental
agreement for the car. He returned to his patrol car, checked the documents, and returned
them to Delira.

Andreasen did not give Delira a ticket but instead gave him a verbal warning and
told him to "drive safe[ly]." He turned away to walk back to his car when he heard Delira
say something. Andreasen turned back to Delira's car and Delira said, "Have a good one."
Andreasen again turned to walk back to his patrol car and as he did, Delira asked
Andreasen his name. Andreasen returned to Delira's car, told Delira his name, and shook
his hand. Andreasen then asked Delira if he would speak with him further, and Delira
said yes.

Andreasen inquired more about Delira's travel plans. Andreasen then asked Delira
if he had any illegal drugs, currency, or weapons in his car. Delira said no. Andreasen
then asked if Delira had "any personal use marijuana in the vehicle." Delira told
Andreasen that he had "what was left of a joint."

Andreasen searched the rental car and found a "tiny piece of what was left of a
[marijuana] joint" in the glove compartment. Andreasen searched the rest of the car and
at first found no other drugs or evidence of a crime. Although he already had searched the
trunk, Andreasen decided to search it again and pulled up the carpet and side panels of
the trunk. He found five bags of methamphetamine within the side panels. Andreasen
arrested Delira after the search.

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The next day, the State charged Delira with one count of possession of
methamphetamine with intent to distribute. Delira later filed a motion to suppress his
statements and any evidence found from the search of his car. The motion argued that the
search exceeded the scope of Delira's consent and that all evidence seized in the search
should be suppressed as fruit of the poisonous tree. After holding a hearing, the district
court denied the motion to suppress.

The case proceeded to a jury trial and at the end of the jury selection, Delira raised
a Batson challenge. He argued that the State used a peremptory challenge to strike the
only member of the jury that was Hispanic—the same ethnicity as Delira. The State
informed the court that the potential juror was struck because the juror's mother was in
poor health and, if anything happened to her, the juror would be distracted. The district
court found there was a nonracial and nondiscriminatory purpose for the strike and
denied the Batson challenge.

The State presented its evidence, and Delira did not object to the admission of the
methamphetamine found during the search of his rental car. After hearing the evidence,
the jury found Delira guilty as charged. The district court sentenced Delira to 146 months'
imprisonment and ordered him to pay $5,423.84 in BIDS attorney fees. Delira timely
appealed the district court's judgment.

MOTION TO SUPPRESS

Delira first claims the district court erred in denying his motion to suppress the
drug evidence seized from his car. Delira's brief concedes that he did not make a
contemporaneous objection to the evidence at trial. But he argues that we should address
the suppression issue anyway because he challenged the evidence in his pretrial motion to
suppress and again in a posttrial motion for new trial.

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Typically, in order to preserve an evidentiary issue for appellate review, a party
must make a "contemporaneous objection," in a "specific and timely" manner at trial.
K.S.A. 60-404; State v. Dukes, 290 Kan. 485, 487-88, 231 P.3d 558 (2010). The Kansas
Supreme Court has consistently held that a defendant must contemporaneously object to
evidence at a jury trial in order to preserve a claim on appeal that the district court erred
by denying a pretrial motion to suppress. See State v. Richard, 300 Kan. 715, 726, 333
P.3d 179 (2014); State v. Hollingsworth, 289 Kan. 1250, 1255, 221 P.3d 1122 (2009);
State v. Houston, 289 Kan. 252, 270, 213 P.3d 728 (2009); State v. King, 288 Kan. 333,
349, 204 P.3d 585 (2009).

In King, our Supreme Court emphatically stated: "From today forward, in
accordance with the plain language of K.S.A. 60-404, evidentiary claims—including
questions posed by a prosecutor and responses to those questions during trial—must be
preserved by way of a contemporaneous objection for those claims to be reviewed on
appeal." 288 Kan. at 349. Although the contemporaneous objection rule has been relaxed
in a bench trial on stipulated facts, this exception does not apply here. See State v. Kelly,
295 Kan. 587, 594, 285 P.3d 1026 (2012); State v. Bogguess, 293 Kan. 743, 746-47, 268
P.3d 481 (2012).

As Delira concedes, he did not object at his jury trial to the admission of the
methamphetamine found in the search of his rental car to give the trial court the
opportunity to rule on any objection. Based on our Kansas Supreme Court precedent, we
find that Delira has failed to preserve the suppression issue for appeal.

BATSON CHALLENGE

Next, Delira claims the district court erred in denying his challenge to the State's
peremptory strike of a potential juror under Batson. Generally, a party can use
peremptory strikes to reject a certain number of jurors without stating a reason. A party
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may object to a peremptory strike under Batson, claiming that the other party's
peremptory strike is motivated by purposeful discrimination. If a party objects under
Batson, the district court must follow a specified procedure to determine if purposeful
discrimination motivated the strike. Only after following this procedure may the court
allow the strike. State v. Gonzalez-Sandoval, 309 Kan. 113, 114-15, 431 P.3d 850 (2018).

Appellate courts engage in a three-step analysis when reviewing Batson
challenges. Each step of the three-step analysis requires a distinct standard of review:

"First, the party challenging the strike must make a prima facie showing that the
other party exercised a peremptory challenge on the basis of race. Appellate courts utilize
plenary or unlimited review over this step.
"Second, if a prima facie case is established, the burden shifts to the party
exercising the strike to articulate a race-neutral reason for striking the prospective juror.
This reason must be facially valid, but it does not need to be persuasive or plausible. The
reason offered will be deemed race-neutral unless a discriminatory intent is inherent in
the explanation. The opponent of the strike continues to bear the burden of persuasion.
"Third, the trial court must determine whether the objecting party has carried the
burden of proving purposeful discrimination. This step hinges on credibility
determinations. '[U]sually there is limited evidence on the issue, and the best evidence is
often the demeanor of the party exercising the challenge. As such, it falls within the trial
court's province to decide, and that decision is reviewed under an abuse of discretion
standard.' [Citations omitted.]" State v. Kettler, 299 Kan. 448, 461-62, 325 P.3d 1075
(2014).

Step one: Prima facie showing that peremptory challenge is based on race

Under the first Batson step, a defendant alleging discrimination in the jury
selection must make out a prima facie case of purposeful discrimination. Gonzalez-
Sandoval, 309 Kan. at 121. At the end of the jury selection, Delira's attorney and the
court had the following discussion:
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"[Defense Attorney]: . . . I'm challenging that [strike] under the issue that there
wasn't anything provided during the voir dire that would indicate that [potential juror]
would not be a fair and impartial juror, and she is obviously the only one on that panel of
Hispanic descent, of a Hispanic culture. And my client, for the record, is Hispanic.
"[Court]: Okay. Well, under a Batson challenge you must present a prima facie
case as to—so I guess the only allegation you have is that she was the only Hispanic
person on the jury and she was stricken, is that—
"[Defense Attorney]: I'm stating that she's the only one who appears to be of
Hispanic ethnicity on the jury panel, Your Honor. She's been stricken by the State. I'm
also stating that there was no indication from the answers that she gave during voir dire to
the State, I don't believe she gave any to the defense—well, yes, she did give answers to
the defense that would indicate any reason that would prevent her from being a fair and
impartial juror. And the State now would be [required to] indicate their prima facie
reason for removing her from there that would have to meet a non racial reason.
"[Court]: Well I think the case law is that you have to show a prima facie that it
was purposeful discrimination. And there's some case law that also says the fact that only
on person is of the same ethnicity as the defendant being stricken doesn't actually raise to
that level.
"However, for the sake of the record, [Prosecutor], do you have a
nondiscriminatory reason for striking [potential juror] from the panel?"

On appeal, the parties dispute whether Delira made a prima facie showing that the
State exercised a peremptory challenge on the basis of race. But while the parties dispute
this step, the Kansas Supreme Court has found: "When the trial court rules on the
ultimate question of discrimination, the preliminary issue of whether the defendant has
made a prima facie showing becomes moot." State v. Bolton, 271 Kan. 538, 540-41, 23
P.3d 824 (2001); see also, Hernandez v. New York, 500 U.S. 352, 359, 111 S. Ct. 1859,
114 L. Ed. 2d 395 (1991) (finding issue of prima facie showing of intentional
discrimination is moot). Here, the district court made a ruling on the ultimate question of
discrimination and so the issue of a prima facie showing is moot.


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Step two: The State must establish a neutral, nondiscriminatory reason

Under the second step of the Batson analysis, once a party has established a prima
facie case of discriminatory intent, the burden of production shifts to the party making the
peremptory strike to come forward with a neutral, nondiscriminatory reason for
exercising the peremptory strike. While the burden of production switches, the burden of
persuasion rests with, and never shifts from, the opponent of the strike. Gonzalez-
Sandoval, 309 Kan. at 122.

Here, the State provided the following explanation for submitting a peremptory
strike against the potential juror that was the subject of this challenge:

"She specifically stated that her mother is in questionably poor health and that if anything
would happen she would be distracted and want to go be with her mother. That was the
defendant's question asked and it has nothing to do with race or bias of any nature. If you
need further explanation I could possibly provide that to you."

This explanation by the State gives a race-neutral reason for exercising the
peremptory strike. The explanation does not relate to the characteristics of any particular
race and thus it is race neutral. See Hernandez, 500 U.S. at 360 ("A neutral explanation in
the context of our analysis here means an explanation based on something other than the
race of the juror."); see also Purkett v. Elem, 514 U.S. 765, 768-69, 115 S. Ct. 1769. 131
L. Ed. 2d 834 (1995) (prosecution's proffered explanation about a potential juror's
appearance satisfied its burden of articulating a nondiscriminatory reason for the strike).

Step three: Delira's burden to show pretext

Under the third step of the Batson analysis, once the prosecution offers a race-
neutral explanation, the defendant bears the burden of showing pretext, which requires
the judge to assess the plausibility of that reason in light of all the evidence bearing on it.
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Gonzalez-Sandoval, 309 Kan. at 126. An appellate court reviews the district court's
decision on this third step under an abuse of discretion standard. 309 Kan. at 126-27.

Delira argues that the district court did not allow him to have an opportunity to
show purposeful discrimination under this step. After the State provided the race-neutral
explanation for the strike under step two, the district court found: "I think you've met
sufficiently there's a nonracial, nondiscriminatory purpose for your strike, therefore the
Court will deny . . . the challenge for Batson and allow the strike."

The above-quoted sentence is the entirety of the district court's analysis and
findings. Delira argues that the district court did not properly follow the three-step
process because it did not allow him to try to prove purposeful discrimination. Delira
cites State v. Davis, 37 Kan. App. 2d 650, 655-56, 155 P.3d 1207 (2007), to support his
argument. In Davis, the defendant was denied a chance to respond to the State's reason
for striking jurors because the prosecutor objected to any further argument on the ground
that the law required the State only to give a race-neutral reason. The prosecutor in Davis
argued the trial court could not second guess this reasoning and the trial court agreed. On
appeal, this court remanded for proper consideration of whether the defendant could
show purposeful discrimination after finding the defendant was not allowed to submit any
arguments against the State's reasoning. 37 Kan. App. 2d at 659-60.

While Davis appears to apply, it is distinguishable. Here, the district court found
the State's explanation was race neutral and denied the Batson challenge. Nothing in the
record suggests that the district court or the State stopped or deterred Delira's attorney
from challenging the State's response. Even if the district court only properly completed
the second Batson step, it was Delira who failed to proceed to the third step and failed to
meet the burden required in Batson. See State v. Angelo, 287 Kan. 262, 277-78, 197 P.3d
337 (2008). In Angelo, the trial court denied a Batson challenge after completing the
second step of the analysis, and the defendant made no attempt to argue that the State's
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explanation for the peremptory strike was pretextual. On appeal, the court ruled that
although the better practice would be for the trial court to follow each step in the analysis,
there was no reversible error because the defendant failed to come forward with an
argument on the third step. 287 Kan. at 278.

Delira's case is more like Angelo than Davis. Here, the district court did not refuse
to allow Delira to proceed with the third step of the analysis. Instead, Delira asserted no
objection to the State's explanation for striking the juror and made no attempt to show
that it was pretextual. "Such an objection would have given the trial court an opportunity
to clarify or to cure the purported defect." Angelo, 287 Kan. at 278. Under the
circumstances presented here, we find the district court did not commit reversible error in
denying Delira's Batson challenge.

BIDS ATTORNEY FEES

Finally, Delira claims the district court erred in ordering him to pay $5,423.84 in
BIDS attorney fees. The district court reviews the amount of BIDS fees imposed under an
abuse of discretion standard. State v. Hernandez, 292 Kan. 598, 609, 257 P.3d 767
(2011). The applicable statute, K.S.A. 22-4513, states in part:

"(a) If the defendant is convicted, all expenditures made by the state board of
indigents' defense services to provide counsel and other defense services to such
defendant or the amount allowed by the board of indigents' defense reimbursement tables
as provided in K.S.A. 22-4522, and amendments thereto, whichever is less, shall be taxed
against the defendant and shall be enforced as judgments for payment of money in civil
cases.
"(b) In determining the amount and method of payment of such sum, the court
shall take account of the financial resources of the defendant and the nature of the
burden that payment of such sum will impose. A defendant who has been required to pay
such sum and who is not willfully in default in the payment thereof may at any time
petition the court which sentenced the defendant to waive payment of such sum or of any
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unpaid portion thereof. If it appears to the satisfaction of the court that payment of the
amount due will impose manifest hardship on the defendant or the defendant's immediate
family, the court may waive payment of all or part of the amount due or modify the
method of payment." (Emphasis added.)

The Kansas Supreme Court has held that when a sentencing court assesses fees to
reimburse BIDS, the court "must consider the financial resources of the defendant and the
nature of the burden that payment will impose explicitly, stating on the record how those
factors have been weighed in the court's decision." State v. Robinson, 281 Kan. 538, 546,
132 P.3d 934 (2006). The court emphasized that "[w]ithout an adequate record on these
points, meaningful appellate review of whether the court abused its discretion in setting
the amount and method of payment of the fees would be impossible." 281 Kan. at 546.

At the sentencing hearing, the district court ordered Delira to "reimburse [BIDS]
for the amount [of attorney fees] actually paid by them, or $5,565, whichever is less."
The journal entry of judgment assessed BIDS attorney fees in the amount of $5,423.84.
After assessing the fees, the district court asked Delira's attorney if she wanted to
"provide any information to the Court in compliance with State [v.] Robinson for the
Court to determine the financial resources and burdens imposed by the BIDS application
fee and attorney's fees?" Delira's attorney argued:

"[I]'d ask the Court to note that [Delira] is going to be incarcerated for a significant
amount of time. He's looking at 146 months, which, with good time, is going to come out
somewhere close to 12 years['] incarceration, Your Honor, somewhere in that range. And
he's not going, unless he can get a job in the prison system, he's not going to have access
to funds to pay on these fees. So I'd ask the Court to consider forgiving them, based on
the length of incarceration for my client."

The State argued that Delira's incarceration was not a factor in assessing attorney
fees. The district court then found: "Well, based upon the arguments of counsel, the
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Court's going to find that the imposition of the BIDS attorney's fees as well as the
application fees does not impose an undue burden upon [Delira] at this time and therefore
the Court will stand by its previous order."

On appeal, the State argues that the district court had "access to [Delira's] entire
case file" and could make a determination based on the information in the file. The State
points out that the case file included the financial affidavit and records that would show
the judge was "aware" that Delira had no spouse or children to support and that he
claimed only his mother as a dependent. While the State is correct in detailing what
information was available to the judge to make a determination on BIDS fees, the State's
reliance of what the judge was "aware" of from the record is irrelevant. Under Robinson
and K.S.A. 22-4513, the judge must consider explicitly, on the record at the time of the
assessment the financial resources of Delira and the burden the payment of the fees
impose and how those factors weighed in the judge's determination. 281 Kan. at 546.

Here, the district court ordered Delira to pay the BIDS fees and then asked for
information to satisfy Robinson. The district court may have weighed the financial
resources of Delira and the burden of payments on him, but the district court did not
consider the factors explicitly on the record at the time of the assessment. Thus, we
vacate the assessment of the BIDS attorney fees and remand for the district court to
consider Delira's financial resources and the nature of the burden that payment of the
attorney fees will impose on him, explicitly stating on the record how those factors have
been weighed in the court's decision. See Robinson, 281 Kan. at 546. To be clear, we do
not vacate the assessment of the $100 BIDS application fee. See State v. Hawkins, 285
Kan. 842, 854, 176 P.3d 174 (2008).

Affirmed in part, vacated in part, and remanded with directions.