State v. Jernigan

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NOT DESIGNATED FOR PUBLICATION

No. 116,410

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TYRONE JERNIGAN,
Appellant.


MEMORANDUM OPINION

Appeal from Geary District Court; RYAN W. ROSAUER, judge. Opinion filed March 2, 2018.
Reversed and remanded with directions.

Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant.

Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., HILL, J., and WALKER, S.J.

PER CURIAM: Tyrone Jernigan appeals from his sentence for possession of
marijuana with intent to sell. Jernigan pled no contest, and the district court enhanced his
sentence by six months for possessing a firearm during the commission of the crime.
Jernigan argues that the district court violated his rights by enhancing his sentence
without a jury finding of fact that he possessed the gun. Because we find the firearm
enhancement to Jernigan's sentence violated his rights as set out in Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and related Kansas
cases, we vacate the six-month firearm enhancement to his sentence.

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FACTS

On August 14, 2015, Lieutenant Angela Weeks of the Junction City/Geary County
Drug Operations Group executed a search warrant at an apartment in Junction City,
Kansas. The lieutenant and other officers determined the apartment belonged to Jernigan.
During the search, the officers found "suspected marijuana, numerous smoking devices, a
black in color Hi-Point 9mm hand gun and three prescriptions [sic] pills." Lieutenant
Weeks advised Jernigan of his Miranda rights, and Jernigan agreed to speak with the
officers. He admitted to possessing the gun and dealing small amounts of marijuana.

Shortly thereafter, the State charged Jernigan with one count of possession of
marijuana with intent to sell within 1,000 feet of a school zone, a drug severity level 3,
nonperson felony, plus an additional six months' imprisonment due to possessing a
firearm during the commission of the crime; one count of possession of drug
paraphernalia, a drug severity level 5, nonperson felony; and one count of possession of
amphetamine, a drug severity level 5, nonperson felony.

On January 15, 2016, Jernigan entered into a plea agreement with the State. In
exchange for a plea of no contest, the State agreed to lower count one to possession of
marijuana with intent to sell, a drug severity level 4 nonperson felony, and to dismiss all
remaining charges. The written plea agreement set out the penalty range for a drug
severity level 4 felony, but it did not mention any charges or sentencing enhancements
due to Jernigan's gun possession. As per the agreement, the State filed an amended
complaint on the same day. Conversely to the plea agreement, the amended complaint did
not set out the statutory penalty range for a drug severity level 4 felony but did include
language stating "[p]lus an additional 6 months due to possessing a firearm."

On the same day, the district court held a plea hearing. The court performed a
detailed colloquy and informed Jernigan of his rights, the charge he faced, and the
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possible sentence from that charge, including the potential sentence enhancement of six
months for possession of a firearm. At the end of the colloquy, Jernigan pled no contest
to the amended charge. The State proffered a statement of facts, including a description
of the firearm and ammunition that police officers found in Jernigan's home. The court
asked Jernigan if he had any objections to the State's factual statement, and Jernigan
advised that he did not. The district court then accepted Jernigan's plea.

The district court held a sentencing hearing on June 6, 2016. The court sentenced
Jernigan to 24 months' imprisonment, which included the 6-month enhanced sentence for
committing the crime while in possession of a gun, along with 24 months' postrelease
supervision.

Jernigan has filed this timely appeal from his sentence.

ANALYSIS

As his single issue on appeal, Jernigan challenges the legality of his sentence,
specifically objecting to the district court's enhancement of his sentence based on his
possession of a firearm. He argues that the fact he possessed a weapon at the time he
committed the crime was not properly established and, thus, violated the holding of the
United States Supreme Court in Apprendi. In response, the State contends the factual
record establishes that the district court adequately found Jernigan to be in possession of
a gun at the time of the crime and during the plea hearing it informed Jernigan of the
sentence enhancement which he would face at sentencing.

Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question
of law over which the appellate court has unlimited review. State v. Lee, 304 Kan. 416,
417, 372 P.3d 415 (2016).

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The holding of the nearly two-decade-old Apprendi decision is clear and
unambiguous. "Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." 530 U.S. at 490.

The issue raised in our case is similar to others resolved in two recent unpublished
opinions from this court. See State v. Arnold, No. 113,750, 2016 WL 1079487 (Kan.
App. 2016) (unpublished opinion), rev. denied 306 Kan. 1320 (2017), and State v.
Morales, No. 114,223, 2016 WL 4070748 (Kan. App. 2016) (unpublished opinion). A
careful analysis of these decisions provides important guidance to us in deciding whether
Jernigan's enhanced sentence was legal in this case.

In Arnold, the defendant pled no contest to one count of possession of marijuana
with intent to distribute while in possession of a firearm. Arnold's plea agreement did not
mention a six-month enhancement for possession of a weapon at the time of the crime. At
the plea hearing, in addition to agreeing that the State could produce evidence regarding
the drug possession with intent charge, Arnold also answered affirmatively to the district
court's inquiry about whether he believed that the State could come forward with
"'additional evidence about [a] firearm'" in the vehicle he was driving when he was
arrested. 2016 WL 1079487, at *1. Arnold also agreed that his sentence could
"'potentially include an additional six months'" thus increasing his possible sentence by 6
months, resulting in a penalty range of 52 to 89 months in prison. 2016 WL 1079487, at
*1.

However, at the plea hearing Arnold did not stipulate or otherwise admit to the
facts alleged by the State, and the district court did not make a specific finding regarding
the firearm other than a general finding that there was "'a factual basis to convert
[Arnold's] plea to a finding of guilt.'" 2016 WL 1079487, at *4.

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On appeal, this court determined that Arnold's sentence was illegal. Although he
entered a no contest plea and agreed on the record at the plea hearing that the State could
come forward with sufficient evidence to prove there was a firearm in the vehicle he was
driving when arrested, Arnold did not agree to the facts that the State presented. Since the
district court only made a broad, generic finding of guilt, the court thereby omitted a
necessary factual finding to permit the sentence enhancement. 2016 WL 1079487, at *4.

The Arnold panel also noted the critical distinction between guilty and no contest
pleas in situations of this sort, as well as the need for very specific factual findings by the
district court:

"Unlike a plea of guilty, which is an admission of the truth of the charge as well as every
material fact alleged by the State, a no contest plea does not involve an express admission
of guilt or of the material facts. State v. Case, 289 Kan. 457, 461, 213 P.3d 429 (2009).
Moreover, in Case the Kansas Supreme Court found that a district court cannot impose a
sentencing enhancement beyond the statutorily provided range based on the State's
factual proffer in support of a no contest plea. It may only do so based on a defendant's
admission of the necessary facts or a trier of fact's determination of them. See 289 Kan.
at 467-68." (Emphasis added.) 2016 WL 1079487, at *4.

Although application of Apprendi was not at issue in the Arnold case, the panel
ultimately overturned his sentence as illegal, concluding that there was no factual finding
made by the district court that Arnold carried a firearm during the commission of the
drug crime as required by K.S.A. 2014 Supp. 21-6805(g)(1)(A). 2016 WL 1079487, at
*5.

Similarly, defendant Morales pled guilty to two counts of possession of illicit
drugs with intent to distribute. Each of the charges pled to in the complaint contained
language warning that each crime was "'a drug severity level 4, nonperson felony, plus
six months for possessing a firearm.'" 2016 WL 4070748, at *1. Morales' plea agreement
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made no mention of her waiving her right to a trial on the six-month sentence
enhancement, and a six-month enhancement for firearm possession was not discussed
during the plea colloquy with the district court. Though the prosecutor, when stating the
factual basis for the plea, did indicate that a firearm was found in Morales' car among her
belongings, and upon inquiry, Morales did not object to the factual basis, the district
court did not mention any possible sentencing enhancements and made no specific
finding regarding Morales' carrying or possession of a firearm.

The Morales panel found no indication that Morales was waiving her right to a
jury to determine a sentence enhancement. And, noting that "[a] stipulation by a party
unequivocally proves the fact to which the parties stipulated," the court found that mere
assent to a State's factual proffer did not amount to a valid stipulation by the defendant of
her possession of a firearm beyond a reasonable doubt. 2016 WL 4070748, at *3. Thus,
the record bore no indication that Morales stipulated to the facts necessary to support a
firearm enhancement by the district court. Finding this to be a clear violation of
Apprendi, the Morales panel vacated the six-month firearm enhancement to the
defendant's sentence. Morales, 2016 WL 4070748, at *4.

After carefully examining the record in Jernigan's case, we find two significant
flaws which are similar to those in both the Arnold and Morales decisions, and which are
fatal to the sentencing enhancement imposed on Jernigan.

First, Jernigan's plea agreement makes no mention of the sentence enhancement.
Similar to Morales, the plea agreement in this case left sentencing up to the parties.

The second and most critical problem here is the absence of a valid stipulation by
Jernigan in order to waive the jury trial requirement under Apprendi. As a panel of this
court noted in 2016, "the Kansas Supreme Court has said that under Apprendi, a
defendant's guilty plea doesn't constitute a waiver of his or her due-process rights,
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including the right to have facts that increase his or her sentence proved beyond a
reasonable doubt. [Citations omitted.]" (Emphasis added.) State v. Moore, 52 Kan. App.
2d 799, 803, 377 P.3d 1162, rev. granted 305 Kan. 1256 (2016). And as the Supreme
Court decision in Case teaches, the lack of an admission to material facts inherent in a no
contest plea, such as one that was entered by Jernigan in our case, places an even higher
premium on obtaining a clear stipulation from a defendant, proving facts beyond a
reasonable doubt, which may then lead to a valid sentencing enhancement. See State v.
Case, 289 Kan. 457, 213 P.3d 429 (2009).

Unlike Arnold and Morales, here the district court twice mentioned the six-month
sentence enhancement without objection from Jernigan. But the district court never
informed Jernigan of his rights under Apprendi to have a jury determine the facts
necessary for the firearm sentencing enhancement. Although the State proffered specific
evidence on the question of possession of a gun while presenting a factual basis for the
plea, and Jernigan agreed the proffer was sufficient "to sustain a finding of guilt," nothing
with the specificity and clarity of a stipulation was entered into by the parties and no
specific finding based on a stipulation was made by the district court. Though the district
court also asked Jernigan if he had any objections to the State's proffer of evidence, and
he declined to object, the lesson to be learned from Case, Morales, and similar decisions
is that this kind of unfocused blessing of a litany of facts presented by the State cannot
support a finding beyond a reasonable doubt that Jernigan actually carried or possessed a
firearm in order to achieve a meaningful waiver of his Apprendi rights.

The district court here clearly tried to fulfill its role by mentioning the six-month
enhancement several times during the plea hearing. The factual basis presented by the
State was sufficiently detailed to put everyone on notice as to what evidence the State
would rely on if it proceeded to trial. A nonobjection by a defendant to proffered facts is
usually sufficient for the taking of most pleas. But Apprendi is strong constitutional
medicine. And our caselaw makes it abundantly clear that the normal rules for taking
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garden variety pleas not involving factually based sentencing enhancements just are not
good enough in cases where Apprendi's constitutional principles are implicated.

We hold that the plea proceedings in this case did not result in Jernigan knowingly
waiving his Apprendi rights, and consequently the district court erred in its finding that
Jernigan should be subject to the six-month enhanced sentencing requirement.
Accordingly we order the six-month sentence enhancement vacated, which will
necessitate the resentencing of Jernigan.

Reversed and remanded for resentencing of the defendant without the six-month
firearm enhancement.