State v. Jones

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NOT DESIGNATED FOR PUBLICATION

No. 116,240

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRENT L. JONES,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DAVID L. DAHL, judge. Opinion filed November 17, 2017.
Affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BUSER, P.J., BRUNS, J., and STUTZMAN, S.J.

PER CURIAM: Brent L. Jones appeals from his sentence after being convicted of
aggravated assault. On appeal, Jones contends that his sentence is illegal because the
district court improperly included five municipal court convictions in calculating his
criminal history score. Based on our review of the record on appeal, we conclude that the
State presented substantial competent evidence upon which the district court could rely to
conclude by a preponderance of the evidence that three or more of Jones' prior municipal
court convictions should be combined to count as a person felony for sentencing purposes
in this case. Thus, we affirm.
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FACTS

On February 23, 2016, Jones pled guilty to—and was convicted of—one count of
aggravated assault. His presentence investigation (PSI) report indicated that he had a
criminal history score of A. In response, Jones filed an objection to his criminal history
score as reflected on his PSI report because he disputed several entries on his criminal
history worksheet involving prior person misdemeanor convictions in Wichita Municipal
Court.

The district court continued Jones' sentencing hearing to give the State an
opportunity to obtain journal entries regarding the challenged convictions from the
municipal court. After receiving the journal entries the State intended to rely upon at
sentencing, Jones filed a motion to remove 10 entries from his criminal history
worksheet. Specifically, Jones asserted that the State had failed to show that an attorney
represented him in several of his municipal court cases.

At the sentencing hearing, the district court gave both parties the opportunity to
present evidence. In support of its burden, the State presented journal entries to establish
most of the challenged entries on the criminal history worksheet. In response, Jones
testified that he could not remember if an attorney represented him in some of his
municipal court cases. Although he did not identify any specific case or cases, Jones
generally recalled that there were times that he had appeared in municipal court without
an attorney.

After reviewing the journal entries presented by the State, the district court granted
Jones' motion in part and removed three entries from his criminal history worksheet. The
district court also decided not to consider two additional convictions for statutory
reasons. As to the remaining five municipal court cases, the district court determined that
the State had proven by a preponderance of the evidence that Jones had been represented
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by counsel and that his criminal history score of A was correct. Accordingly, the district
court sentenced Jones to 32 months' imprisonment pursuant to the Kansas Sentencing
Guidelines.

ANALYSIS

On appeal, Jones contends that the district court imposed an illegal sentence
because it included five person misdemeanor convictions from the Wichita Municipal
Court convictions in calculating the criminal history score used to determine his sentence
in this case. In response, the State contends that the district court correctly determined—
based on the evidence presented at the sentencing hearing—that Jones was represented by
an attorney in at least three of the municipal court cases in which he was convicted of
person misdemeanors. Furthermore, the State contends that the district court correctly
aggregated the municipal court convictions as a person felony for sentencing purposes.

If a defendant disputes his or her criminal history, the State must prove the
appropriate criminal history score by a preponderance of the evidence. K.S.A. 2016
Supp. 21-6814(a). Under a preponderance of the evidence standard, the party bearing the
burden of proof is only required to present evidence to demonstrate that a fact is more
probably true than not true. State v. Stewart, 306 Kan. 237, 252, 393 P.3d 1031 (2017).
On appeal, we must determine whether there is substantial competent evidence in the
record to support the district court's finding that the State met its burden of proof. See
State v. Hughes, 290 Kan. 159, 162, 224 P.3d 1149 (2010).

The Sixth Amendment to the United States Constitution protects a criminal
defendant's right to counsel. The right to counsel "arises at the stage of the proceedings
where guilt is adjudicated, eligibility for imprisonment is established, and the prison
sentence determined." State v. Youngblood, 288 Kan. 659, Syl. ¶ 2, 206 P.3d 518 (2009).
In municipal court cases, the right to counsel is applicable where a defendant is found
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guilty and sentenced to incarceration—even if the jail time is suspended or conditioned
upon a term of probation. 288 Kan. 659, Syl. ¶ 2.

In order to have a criminal history score of A, the State must establish that a
defendant has three or more prior person felonies in his or her criminal history. K.S.A.
2016 Supp. 21-6809. Moreover, three prior person misdemeanor convictions—from
either the district or municipal court—are to be counted as an additional person felony for
the purpose of calculating a defendant's criminal history score under K.S.A. 2016 Supp.
21-6811(a). Because it is undisputed in this case that Jones had at least two prior person
felonies, we must determine if there was substantial competent evidence to support the
district court's aggregation of at least three of his prior person misdemeanor convictions
in municipal court as a third person felony for sentencing purposes.

The first challenged entry on the criminal history scoresheet involves a 1992
conviction in Wichita Municipal Court Case No. 91-C104159 for domestic battery—a
person misdemeanor. At sentencing in the present case, the State produced the municipal
court journal entry from this case that shows the defense attorney to be "Parker CPD."
The State explained at the sentencing hearing that CPD stands for city public defender.
The bar number listed on the form returns a result in the Kansas Supreme Court attorney
registration database for Patricia Parker with an active license. The journal entry further
reflects that Parker entered her appearance in the case on November 12, 1991. In
addition, the journal entry also shows that the case was resolved by a no contest plea and
that Jones was sentenced on March 31, 1992. There is no indication that Parker sought or
was granted leave to withdraw after she entered her appearance.

The second challenged entry on the criminal history worksheet also involves a
conviction in Wichita Municipal Court Case No. 91-C104159. The journal entry provided
by the State at sentencing shows that Jones was convicted of battery of a law enforcement
officer—a person misdemeanor. This journal entry also listed "Parker CPD" on the line
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for defense attorney and again included the bar number for Patricia Parker. It appears
from the journal entry that Parker entered the case on January 7, 1992. In addition, the
journal entry shows that the case was resolved by a no contest plea and that Jones was
sentenced on March 31, 1992. There is no indication that Parker sought or was granted
leave to withdraw after she entered her appearance.

Jones also challenges the inclusion of his conviction in Wichita Municipal Court
Case No. 91-C34854. The journal entry reflects that Jones was convicted of battery—a
person misdemeanor. Once again, the defense attorney is listed as "Parker CPD" with the
same bar number as the other journal entries. The journal entry shows that Parker entered
her appearance on June 18, 1991. In addition, the journal entry shows that the case was
resolved by a no contest plea and that Jones was sentenced on March 17, 1992. There is
no indication that Parker sought or was granted leave to withdraw after she entered her
appearance.

A sentence based on a criminal history score that was improperly calculated
because it included uncounseled municipal court convictions constitutes an illegal
sentence that may be corrected at any time. State v. Neal, 292 Kan. 625, 631, 258 P.3d
365 (2011). Although this legal principle set forth in State v. Neal is applicable to the
present case, there are significant factual and procedural differences between this case
and Neal. Unlike this case, Neal involved a motion to correct illegal sentence after the
defendant's direct appeal had ended. Moreover, unlike this case, the district court
summarily dismissed the defendant's motion in Neal. Consequently, the Kansas Supreme
Court remanded the case to the district court for an evidentiary hearing. 292 Kan. at 640.
Finally, as Jones candidly admits in his brief, there is "certainly more information"
provided in the municipal court journal entries presented to the district court in this case
than was provided in Neal.

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Likewise, we also do not find the holding in State v. Hooks, No. 107,582, 2013
WL 1876448 (Kan. App. 2013) (unpublished opinion), rev. denied 298 Kan. 1206
(2014)—which was cited by the State—to be particularly helpful to resolving the issue
presented in the present case. In Hooks, a panel of this court concluded that "without an
affirmative assertion that [a municipal court] conviction was uncounseled, there is no
disputed evidentiary issue in light of the documents contained in the record." 2013 WL
1876448, at *5. However, Hooks involved a motion to correct illegal sentence, in which
the defendant bears the burden of proof. 2013 WL 1876448, at *5. Here, it was the State
that had the burden of proof.

From a procedural standpoint, we note that State v. Coleman, No. 104,530, 2012
WL 307346 (Kan. App. 2012) (unpublished opinion), is much more similar to the present
case than either Neal or Hooks. Like this case, the defendant in Coleman objected to his
criminal history score at sentencing. In an attempt to meet its burden of proof, the State
produced a copy of a journal entry from the Wichita Municipal Court that contained the
initials "CPD" written on the line for defense attorney. As in this case, the State explained
that "CPD" stood for city public defender. However, unlike this case, the journal entry in
Coleman was "not dated and the name of the attorney who purportedly represented [the
defendant was] not identified." 2012 WL 307346, at *6. Additionally, unlike this case,
the defendant in Coleman testified that he believed that he did not have an attorney in that
specific municipal court case.

After the district court overruled the defendant's objection to his criminal history
score in Coleman, a panel of this court found that the municipal court journal entry
presented by the State did not provide sufficient information to prove by a preponderance
of the evidence that the defendant was actually represented by counsel in the municipal
court proceedings. The panel found it significant that no attorney was specifically
identified and that the defendant had testified that he believed he did not have an attorney
in the municipal court case. Accordingly, the panel vacated the sentence imposed by the
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district court and remanded "the issue of whether [the defendant] was actually
represented by counsel to the district court for a factual determination and for
resentencing according to the appropriate criminal history once this issue [was]
resolved." 2012 WL 307346, at *5-6.

Despite the procedural similarities between the Coleman case and this case, we
also note that there are significant factual differences. Again, as Jones candidly admits in
his brief, each of the journal entries for the three municipal court convictions discussed
above contain more information regarding defense counsel—including the name and bar
number of the attorney who represented him—than did the journal entry in Coleman. In
addition, Jones did not testify at the evidentiary hearing held in this case that he was
unrepresented in these specific municipal court cases nor did he even testify that he
believed that to be the case as the defendant did in Coleman.

Unlike Neal or Coleman, the State presented substantial competent evidence to the
district court in this case regarding the identity of the attorney who represented Jones in
the three municipal court cases referenced above. In Kansas, an attorney continues to
represent a defendant until a court grants the attorney leave to withdraw or until the
attorney files a notice of withdrawal after another attorney has entered an appearance to
represent the defendant. See Kansas Supreme Court Rule 117 (2017 S. Ct. R. 190). Here,
there is nothing in the record to indicate that the attorney representing Jones in the
municipal court cases at issue here ever withdrew as his attorney.

In summary, we find that the district court appropriately allowed the parties to
present evidence at the sentencing hearing to address Jones' objection to his criminal
history score. In support of its position that at least three of the prior person misdemeanor
convictions from municipal court convictions should be included in Jones' criminal
history score, the State presented journal entries that indicated that Jones was in fact
represented by legal counsel and that specifically identified the attorney who represented
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him. Moreover, as indicated above, there is no evidence in the record on appeal to
suggest that Jones' attorney ever withdrew or otherwise failed to perform her duties after
entering an appearance in the municipal court cases. See State v. Kelly, 298 Kan. 965,
970, 318 P.3d 987 (2014).

In his testimony, Jones never indicated that his attorney withdrew or failed to
perform her duties in the municipal court cases. Likewise, Jones never testified that he
believed that he was unrepresented at any critical stage of the municipal court
proceedings. Instead, Jones simply testified that he could not remember if an attorney
represented him in some of his municipal court cases. Although Jones stated that there
were "plenty of times" that he had appeared in municipal court without an attorney, he
did not identify any specific case. As the record reflects, Jones has been prosecuted in
Wichita Municipal Court in approximately 20 cases over the years.

We conclude that the State presented substantial competent evidence upon which a
reasonable finder of fact could find it to be more probably true than not true that Jones
was represented by counsel in the three municipal court cases referenced above. In
particular, we find that it was reasonable for the district court to infer that Patricia
Parker—the attorney who had entered her appearance on Jones' behalf in the municipal
court cases prior to his sentencing and conviction—fulfilled her duties to her client at all
critical stages of the proceedings.

Finally, we note that Jones was also convicted of two additional person
misdemeanors—battery and unlawful restraint—in Wichita Municipal Court Case No.
00-C111107. At Jones' sentencing hearing in the present case, the State presented the
journal entry reflecting those convictions as well as a waiver of counsel form signed by
Jones. There is a notation on the journal entry indicating that Jones signed the waiver of
counsel form on December 19, 2000.

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A review of the record on appeal in the present case reveals that Jones did not
dispute the fact that he waived his right to counsel in Wichita Municipal Court Case No.
00-C111107. Interestingly, even though it appears that Jones waived his right to an
attorney the State also presented evidence that Ronald Sickmann entered an appearance
on Jones' behalf on April 4, 2001, which is the same day that the record sheet shows that
Jones was convicted and sentenced. Accordingly, we find substantial competent evidence
in the record to support the validity of including these two municipal court convictions in
Jones' criminal history score as well.

Under the circumstances presented in this case, we conclude that the district court
did not err in finding by a preponderance of the evidence that at least three of Jones'
municipal court convictions should be counted in his criminal history score to determine
his sentence in this case. We, therefore, affirm Jones' sentence.

Affirmed.