State v. Flores

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NOT DESIGNATED FOR PUBLICATION

No. 116,853

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

OSCAR FLORES,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed February 23,
2018. Affirmed.

Carl Maughan, of Maughan Law Group LC, of Wichita, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

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

PER CURIAM: Oscar Flores was found guilty by a jury of assault, domestic battery,
and eight counts of violating a protective order. Flores appeals, arguing that the district
court erred by running some of his misdemeanor sentences consecutively and by allowing
the State to amend the complaint, adding new charges, a few days before his trial.
Finding no abuse of discretion, we affirm the district court's judgment.

We will briefly review the facts. On August 9, 2015, while driving, Flores
allegedly backhanded his then-girlfriend K.S. in the face; grabbed her leg to prevent her
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from leaving the car, causing bruising; and threatened her life with a knife. K.S.
eventually escaped from the situation when Flores stopped at a gas station. The following
day, K.S. made a police report and she was interviewed by an officer with the Wichita
Police Department. Following the interview, Flores was arrested and placed in jail.

On August 18, 2015, the State charged Flores with one count of aggravated assault
with a deadly weapon and one count of domestic battery. On the same day, the district
court granted a protective order forbidding contact between Flores and K.S.

While the case was pending, Flores contacted K.S. numerous times using the
jailhouse telephone and video-visit system. K.S. estimated that Flores contacted her over
70 times, while the State estimated that Flores contacted K.S. over 100 times. Throughout
these calls, Flores continued to threaten and harass K.S. Flores even tried to prevent K.S.
from testifying by instructing her not to show up for any court dates.

At a pretrial hearing on April 22, 2016, as a result of the jailhouse contacts, the
State sought to amend the original complaint, adding eight new charges of violating a
protective order. After hearing arguments of counsel, the district court granted the State's
request to amend the complaint. Because the trial was scheduled to start April 25, 2016,
Flores' trial counsel requested a continuance. The State had no objection to the trial
continuance, yet, Flores himself objected. Against his counsel's recommendation, Flores
insisted that he go to trial on April 25. When the district court informed Flores of the risk
of going to trial if he was not ready, he responded: "I will take my chances."

Flores' trial began April 25, 2016. K.S. testified for the State, as well as several
law enforcement officers who had investigated the case. Throughout the trial, Flores
expressed dissatisfaction with his counsel for refusing to call certain witnesses and
refusing to ask certain questions during cross-examination. Flores' counsel explained that
he tried to contact the witnesses, but he was having difficulties contacting them. The
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district court recessed trial for a day, in part, so Flores could bring in his witnesses. The
next day, Flores' witnesses were present. Following yet another discussion with the court,
Flores and his counsel decided not to call his witnesses for strategic purposes. Flores also
decided that he would not testify. Flores' defense was based on attacking the credibility of
K.S. After hearing the evidence, the jury found Flores guilty as charged, with the
exception of finding him guilty of the lesser charge of simple assault, rather than
aggravated assault. Each conviction was for a misdemeanor crime.

On June 7, 2016, the district court sentenced Flores to 30 days in jail for assault,
six months for domestic battery, and one year for each protective order conviction. The
district court then ordered that the assault, domestic battery, and four of the protective
order sentences run consecutively, resulting in a controlling term of 55 months in jail.
Flores timely filed a notice of appeal.

CONSECUTIVE SENTENCES

Flores first claims the district court erred by ordering some of his sentences to run
consecutive to one another. The State, in turn, argues that the district court's decision to
order consecutive sentences for Flores' misdemeanor convictions was not arbitrary or
unreasonable in light of the facts and circumstances of his case.

As Flores acknowledges, it is generally within the district court's discretion to
determine whether a sentence should run concurrent with or consecutive to another
sentence. K.S.A. 2017 Supp. 21-6606(a); State v. Mosher, 299 Kan. 1, 2, 319 P.3d 1253
(2014). A judicial action constitutes an abuse of discretion if (1) no reasonable person
would take the view adopted by the district court; (2) it is based on an error of law; or (3)
it is based on an error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).
The party asserting that the district court abused its discretion bears the burden of
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showing such an abuse. State v. Robinson, 303 Kan. 11, 90, 363 P.3d 875 (2015), cert.
denied 137 S. Ct. 164 (2016).

Flores does not assert that the district court's action constituted an error of law or
an error of fact, so his claim is that no reasonable person would have taken the view
adopted by the district court to run the sentences consecutively. To show that the district
court acted unreasonably, Flores points to an extensive discussion between himself and
the district court during the trial, outside the presence of the jury. This discussion
concerned witnesses that Flores wanted to call against his trial counsel's recommendation
and Flores' assertion that his counsel was ineffective. On appeal, Flores asserts that this
discussion was "heated" and "argumentative." While conceding that this discussion does
not conclusively reveal bias, Flores claims that the discussion indicates an animosity, or
an appearance of animosity, between the district court and himself, leading the court to
abuse its discretion by imposing consecutive sentences.

Based upon our review of the trial transcript, we disagree with Flores'
interpretation that the discussion between himself and the district court was "heated." In
fact, the district court appeared to be very willing to listen to Flores. If any party became
argumentative during the discussion, it was Flores who was arguing with the court, not
the other way around. On multiple occasions, the district court patiently tried to explain
the law to Flores in order to resolve the issues he was raising at trial. We fail to find any
animosity, or even the appearance of animosity, between the district court and Flores
which led to the district court running the sentences consecutively.

Flores' brief also mentions the "double rule" which prohibits a district court from
imposing a maximum sentence that is twice the base sentence for felony convictions. See
K.S.A. 2017 Supp. 21-6819(b)(2), (4); State v. Eisenhour, 305 Kan. 409, 410, 384 P.3d
426 (2016) ("Under the double base-sentence rule, a maximum sentence of imprisonment
cannot exceed twice the base sentence imposed on a primary crime."). Flores correctly
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concedes that the "double rule" does not apply to misdemeanor sentences. See State v.
Huff, 277 Kan. 195, 197-98, 83 P.3d 206 (2004). Nonetheless, Flores asks us to apply the
reasoning of the "double rule" to his case and asks us to find that imposing a sentence
greater than double the maximum sentence of the primary crime is "presumptively
unreasonable." However, Flores fails to provide any legal authority to support his request,
and we refuse to apply the "double rule" reasoning to Flores' misdemeanor sentences.

In making its sentencing determination, the district court considered that Flores
had 23 entries on his criminal history worksheet, including two prior convictions for
domestic violence and one for battery. The district court also considered the evidence
surrounding the jailhouse phone calls between Flores and K.S. Finally, the district court
considered that although Flores violated his protective order concerning K.S. over 100
times, the State only charged Flores with eight counts of violating a protective order.
Based on the record, we are unable to say that no reasonable person would have taken the
view adopted by the district court in ordering consecutive sentences. Accordingly, we
conclude that Flores has failed to meet his burden of demonstrating that the district court
abused its discretion in running his sentences consecutively.

AMENDED COMPLAINT

Next, Flores claims the district court erred in allowing the State to amend the
complaint just a few days before trial. Because the State amended the complaint by
adding new charges, Flores claims he did not have time to prepare a solid defense. The
State asserts that the district court did not abuse its discretion when it allowed the State to
amend the complaint because doing so did not subject Flores to substantial prejudice.

Although Flores asserts that this issue involves statutory interpretation subject to
unlimited review, we disagree. Instead, as asserted by the State, the district court's
decision to allow an amendment to a complaint is reviewed for an abuse of discretion.
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State v. Bischoff, 281 Kan. 195, 205, 131 P.3d 531 (2006). The party asserting an abuse
of discretion bears the burden of showing such abuse. Robinson, 303 Kan. at 90.

K.S.A. 22-3201(e) governs the amending of complaints: "The court may permit a
complaint or information to be amended at any time before verdict or finding if no
additional or different crime is charged and if substantial rights of the defendant are not
prejudiced." Our Supreme Court has interpreted this statute to mean that a district court
has considerable discretion to allow an amended complaint prior to trial, even if it adds
new charges, as long as the amendment does not prejudice the substantial rights of the
defendant. Bischoff, 281 Kan. at 205; State v. Woods, 250 Kan. 109, Syl. ¶ 1, 825 P.2d
514 (1992).

Here, at the pretrial hearing, the State explained to the district court that Flores'
trial counsel was aware "for weeks" that additional charges would be added to the
original complaint. On appeal, Flores fails to show how the amendment prejudiced his
substantial rights. Granted, the amendment allowed additional charges to be filed a few
days before trial. However, the State and the district court were willing to continue
Flores' trial, but he insisted on going to trial without a continuance. Flores asserts that the
district court had an obligation to protect his rights to a fair trial by continuing his case
over his objection. However, Flores supplies us with no legal authority to support this
claim. More importantly, the record reflects that Flores was able to bring his witnesses to
trial, but he decided not to call them for strategic purposes. Under these circumstances,
we conclude that Flores has failed to establish that the district court abused its discretion
in allowing the State to amend the complaint.

Affirmed.