State v. Kuszmaul

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NOT DESIGNATED FOR PUBLICATION

No. 113,296

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JULIAN MICHAEL KUSZMAUL,
Appellant.

MEMORANDUM OPINION


Appeal from Douglas District Court; BARBARA KAY HUFF, judge. Opinion filed March 25, 2016.
Affirmed.

Thomas J. Bath and Tricia A. Bath, of Bath & Edmonds, P.A., of Overland Park, for appellant.

Andrew D. Bauch, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before PIERRON, P.J., BRUNS and GARDNER, JJ.

Per Curiam: Julian Michael Kuszmaul appeals the denial of his motion to dismiss
all charges against him for a violation of his statutory right to a speedy trial. Kuszmaul
asserts that judicial interpretations of Kansas law establish that interlocutory appeals filed
by the State pursuant to K.S.A. 2015 Supp. 22-3603, contesting orders suppressing
evidence, are not authorized by statute unless the State makes a showing of substantial
impairment. He contends that because the State failed to address the issue of substantial
impairment after the issue was briefed by Kuszmaul, the State has failed to make the
requisite showing of substantial impairment. He alleges that since the State's appeal was
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not authorized by statute, due to the State failing to argue the issue of substantial
impairment, any time attributable to the State's interlocutory appeal should be charged
against the State for purposes of determining Kuszmaul's statutory speedy trial rights.

We, however, affirm finding that under the applicable statutes the appeal was
authorized even though not successful.

On August 26, 2012, Kuszmaul was operating a motor vehicle when he struck a
vehicle that was illegally parked in the roadway and injured a pedestrian. Police at the
scene stated that Kuszmaul smelled of alcohol and burnt marijuana, and his eyes were
bloodshot and watery. Kuszmaul said he slammed on the breaks to avoid the collision,
but no skid marks were observed on the roadway. An individual driving immediately
behind Kuszmaul during the accident did not notice any weaving, drifting, or erratic
driving.

Due to a miscommunication between law enforcement officers at the scene, no
one asked Kuszmaul to submit to any standard field sobriety tests. Kuszmaul was
transported to the hospital by law enforcement, where they requested he submit to a
blood draw. Kuszmaul declined. Law enforcement then requested medical professionals
take a sample of Kuszmaul's blood pursuant to K.S.A. 2015 Supp. 8-1001. Kuszmaul
admitted to consuming two beers earlier in the night while eating supper, but he denied
consuming any illegal drugs.

On January 2, 2013, Kuszmaul was formally charged with two misdemeanor
counts, possession of marijuana and driving under the influence, along with one
alternative and a traffic infraction of following too closely. He was ordered to appear by
summons on February 5, 2013, and on that date he appeared, was arraigned, and pled not
guilty to all charges. Kuszmaul was then released on a $1,500 own recognizance bond to
appear on March 5, 2013, for trial.
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On March 5, 2013, Kuszmaul requested the case be continued to April 23, 2013.
On April 23, 2013, Kuszmaul requested the case be continued again until June 11, 2013,
in order to file motions. On June 4, 2013, Kuszmaul filed a motion to suppress the
warrantless blood draw. On June 7, 2013, Kuszmaul requested a continuance, and the
suppression hearing was continued to July 23, 2013, with a trial date of September 4,
2013. On July 22, 2013, the State amended the complaint to add a fourth count, charging
Kuszmaul with misdemeanor refusal to submit to testing. Also on July 22, 2013, the State
responded to Kuszmaul's motion to suppress. On July 23, 2013, Kuszmaul requested
another continuance to respond to the State's response; the trial court then set the deadline
for all defense motions of August 6, 2013. On August 6, 2013, Kuszmaul filed a motion
to dismiss the charge of refusal to submit to testing. On August 15, 2013, the State filed a
response to this motion to dismiss, and on August 23, 2013, Kuszmaul filed a response to
the State's reply regarding the motion to suppress the warrantless blood draw.

The blood draw issue was submitted to the district court on stipulated facts on
August 27, 2013. On October 7, 2013, the district court issued a memorandum decision
granting Kuszmaul's motion to suppress and denying his motion to dismiss the count of
misdemeanor refusal to submit to testing. The district court set the matter for trial on
October 22, 2013. On October 16, 2013, the State filed a timely notice of interlocutory
appeal pursuant to K.S.A. 2015 Supp. 22-3603, regarding the suppression of the blood
evidence. This appeal was docketed in the Court of Appeals on October 29, 2013.The
district court canceled the October 22, 2013, trial on October 21, 2013.

On November 6, 2013, Kuszmaul filed a notice of cross-appeal, alleging the
district court had erred in ruling K.S.A. 2015 Supp. 8-1025 (refusal to submit to testing)
was constitutional.

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On December 9, 2013, the State filed its brief relating to the interlocutory appeal
regarding suppression of evidence. Kuszmaul's reply brief regarding the interlocutory
appeal was due on January 13, 2014, on which date Kuszmaul requested a 30-day
extension of time, stating that the reply brief was completed, but additional time was
needed to file paper work for his cross-appeal. It was during this 30-day extension, on
January 31, 2014, that Kuszmaul's cross-appeal was docketed with the Court of Appeals.
On February 10, 2014, the Court of Appeals issued a show cause order, requiring the
parties to respond to the court as to Kuszmaul's statutory authority for filing the cross-
appeal. On February 12, 2014, Kuszmaul filed his reply brief to the State's interlocutory
appeal. On March 3, 2014, the Court of Appeals dismissed Kuszmaul's cross-appeal. On
March 20, 2014, the Court of Appeals set the matter for oral argument in regards to the
State's interlocutory appeal, which was heard on May 20, 2014.

On June 27, 2014, the Court of Appeals issued its opinion dismissing the State's
interlocutory appeal. The court stated it did not have jurisdiction to hear the interlocutory
appeal because the State had not responded to Kuszmaul's brief, which challenged the
court's jurisdiction over the interlocutory appeal. 2014 WL 3024242, at *3-4. The court
pointed out that the State had failed to make any argument that the suppression of
evidence impaired its case, even after Kuszmaul had raised the issue in his brief. 2014
WL 3024242, at *3-4. In dismissing the State's interlocutory appeal, the Court of Appeals
cited to State v. Newman, 235 Kan. 29, 680 P.2d 257 (1984), stating that the State has the
burden of showing a suppression order has substantially impaired its case, though the
court made no mention of whether the State's appeal was authorized by statute. 2014 WL
3024242, at *3. The court found that the State's failure to address the issue of jurisdiction
amounted to waiver or abandonment of the issue. 2014 WL 3024242, at *4. It was also
determined that the record on appeal was so lacking that the court could not determine if
the suppression of the blood-alcohol test substantially impaired the State's case. 2014 WL
3024242, at *3-4. On August 1, 2014, the mandate was returned to the district court.

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On August 4, 2014, the district court filed notice of a hearing, directing the parties
to appear on August 19, 2014. On August 19, 2014, the parties appeared before the court
to set the case for trial on November 19, 2014. At this status conference on August 19,
2014, Kuszmaul requested time to file a motion to dismiss the case for a statutory speedy
trial violation. The district court set the deadlines for briefs, and the hearing was set for
October 14, 2014. On September 16, 2014, Kuszmaul filed his motion to dismiss for
violation of his statutory right to a speedy trial. On October 14, 2014, the parties appeared
for the motion to dismiss for a speedy trial violation and the court took the matter under
advisement. On November 10, 2014, at a status conference, the court orally denied
Kuszmaul's motion to dismiss for a speedy trial violation. On November 10, 2014
Kuszmaul waived his right to a jury trial and also waived his right to a speedy trial from
November 10, 2014 until the scheduled bench trial. The court issued a memorandum
opinion denying the dismissal for speedy trial violation on November 13, 2014. The court
found the State had timely appealed pursuant to the authority granted in K.S.A. 2015
Supp. 22-3603 because evidence was suppressed and, thus, the time the interlocutory
appeal was pending was tolled under K.S.A. 2015 Supp. 22-3604(2) for speedy trial
purposes.

The matter proceeded to bench trial on December 10, 2014, at which time
Kuszmaul was convicted on three counts and acquitted of the charge of following too
closely. Kuszmaul was sentenced on January 22, 2015, to a controlling term of 24 months
in jail, with work-release available after 10 days. Kuszmaul's motion for appeal bond was
denied in part based on the district court's belief that he would not prevail on appeal.
Kuszmaul has now timely appealed the denial of his motion to dismiss for violation of his
statutory speedy trial rights.

Kuszmaul argues that despite the apparent plain language of K.S.A. 2015 Supp.
22-3603, an interlocutory appeal filed by the State challenging an order suppressing
evidence is not authorized by statute for the purpose of tolling the statutory speedy trial
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clock under K.S.A. 2015 Supp. 22-3604(2), unless the State has shown that the exclusion
of that evidence substantially impairs the State's case.

Kuszmaul asserts the State's interlocutory appeal was dismissed for lack of
jurisdiction because the State failed to argue the issue of substantial impairment. He
contends that judicial interpretations of K.S.A. 2015 Supp. 22-3603 hold that the appeal
was not authorized by statute and, therefore, the time the appeal was pending did not toll
his statutory speedy trial clock. The State responds the denial of Kuszmaul's motion to
dismiss was proper, as the State has a statutory right to file a good-faith interlocutory
appeal under K.S.A. 2015 Supp. 22-3603 when the district court makes an order
suppressing evidence and that time is tolled, for speedy trial purposes, while such an
appeal is pending, pursuant to K.S.A. 2015 Supp. 22-3604(2).

In relevant part, Kansas statutory law states that a criminal defendant who has
been released on an appearance bond must be brought to trial within 180 days of his or
her arraignment, or the charges against him or her shall be dropped. K.S.A. 2015 Supp.
22-3402(b). However, any delay in trial caused by the defendant or a continuance will not
count towards this 180-day time requirement. K.S.A. 2015 Supp. 22-3402(b).
Additionally, K.S.A 2015 Supp. 22-3603 allows for the State to file an interlocutory
appeal where prior to the beginning of a trial in a criminal action, a district court has
made an order suppressing evidence as well as warrants and confessions. Delays in
bringing the defendant to trial attributable to an interlocutory appeal by the State will not
be counted towards this 180-day time requirement—the time the appeal is pending will
toll the speedy trial clock—so long as the interlocutory appeal is authorized by statute.
K.S.A. 2015 Supp. 22-3604(2).

As stated above, Kuszmaul argues that the State's interlocutory appeal was not
authorized by statute. The State's right to appeal in a criminal case is purely statutory. An
appellate court only has jurisdiction to entertain the State's appeal if it is taken within
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time limitations and in the manner prescribed by the applicable statutes. State v. Sales,
290 Kan. 130, 134, 224 P.3d 546 (2010). K.S.A. 2015 Supp. 22-3603, the statute granting
the State the right to file an interlocutory appeal, states:

"When a judge of the district court, prior to the commencement of trial of a
criminal action, makes an order quashing a warrant or a search warrant, suppressing
evidence or suppressing a confession or admission an appeal may be taken by the
prosecution from such order if notice of appeal is filed within 14 days after entry of the
order. Further proceedings in the trial court shall be stayed pending determination of the
appeal."

To this end, K.S.A. 2015 Supp. 22-3604(2) provides for the tolling of the statutory
speedy trial clock during certain appeals taken by the State pursuant to K.S.A. 2015
Supp. 22-3603, stating:

"The time during which an appeal by the prosecution is pending shall not be
counted for the purpose of determining whether a defendant is entitled to discharge under
K.S.A. 22-3402, and amendments thereto. For purposes of this section, 'an appeal by the
prosecution' includes, but is not limited to . . . appeals authorized by K.S.A. 22-3603, and
amendments thereto." (Emphasis added.)

Kuszmaul relies on three cases, State v. Unruh, 263 Kan. 185, 946 P.2d 1369
(1997), State v. Jones, 236 Kan. 427, 691 P.2d 35 (1984), and State v. Newman, 235 Kan.
29, 680 P.2d 257 (1984), to argue that interlocutory appeals contesting the suppression of
evidence are not statutorily authorized when the State makes no showing of substantial
impairment. The State responds by arguing that Unruh, Jones, and Newman are
insufficient to support Kuszmaul's argument. Further, the State cites State v. Mitchell,
285 Kan. 1070, 179 P.3d 394 (2008), State v. Brown, 263 Kan. 759, 950 P.2d 1365
(1998), and State v. Grimes, 229 Kan. 143, 622 P.2d 143 (1981), to assert that the district
court did not err in denying Kuszmaul's motion to dismiss.
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Kuszmaul argues Newman is the judicially constructed definition of the
parameters of interlocutory appeals under K.S.A. 2015 Supp. 22-3603, and under
Newman, an interlocutory appeal contesting the suppression of evidence is not authorized
by statute where the State does not make a showing of substantial impairment.

The State argues Newman holds that the appellate courts have discretion to take
jurisdiction over interlocutory appeals involving suppression of evidence where the
State's ability to prosecute is substantially impaired, as opposed to every single pretrial
evidence rule. The State contends Newman does not hold that interlocutory appeals
challenging the suppression of evidence are "statutorily unauthorized" simply because an
appellate court declines to exercise jurisdiction over the matter due to a lack of showing
substantial impairment.

Newman filed a successful motion to suppress his wife's testimony against him,
leading to an interlocutory appeal by the State. On appeal, Newman argued the Kansas
Supreme Court did not have jurisdiction to hear the interlocutory appeal because, under
judicial interpretations of K.S.A. 22-3603 in place at that time, an appellate court could
only hear interlocutory appeals regarding the suppression of evidence obtained through
violation of the defendant's constitutional rights, as opposed to a violation of the statutory
rules of evidence. In adopting a broader interpretation of K.S.A. 22-3603, the Newman
court relied on Judicial Council comments on K.S.A. 22-3603, which stated that the
intent of the section was to "permit appellate review of trial court rulings on pretrial
motions which may be determinative of the case." 235 Kan. at 34-35.

The Newman court emphasized that appellate courts of Kansas "should not take
jurisdiction . . . from every run-of-the-mill pretrial evidentiary ruling," rather,
"[i]nterlocutory appeals are to be permitted only where the pretrial order suppressing or
excluding evidence places the State in a position where its ability to prosecute the case is
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substantially impaired." (Emphasis added.) 235 Kan. at 35. The court ended its
interpretation of K.S.A. 22-3603 by stating that the prosecution should be prepared to
make a showing that the pretrial order substantially impairs the State's ability to prosecute
the case, and that such a showing may be required on order of the appellate court or when
appellate jurisdiction of the interlocutory appeal is challenged by the defendant-appellee.
235 Kan. at 35. The Newman court took jurisdiction over the appeal. The State had
asserted the suppressed evidence was essential to its case. 235 Kan. at 30-31, 35.

It is of note that the Newman court indicated the State may be required to show
substantial impairment in two circumstances, either on order of the appellate court or
when jurisdiction is challenged by the defendant-appellee. 235 Kan. at 35. The court did
not address any exceptions wherein an interlocutory appeal would be permitted where the
State did not show substantial impairment when requested, indicating that failure to make
a showing of substantial impairment, for any reason, would result in an appeal not being
permitted. See 235 Kan. at 35. The Newman court did not state that such an appeal would
not be authorized by statute for the purposes of K.S.A. 22-3604(2); but an appeal should
not be "permitted" without a showing of substantial impairment. 235 Kan. at 35. The use
of the two different words seems to indicate different results.

Next, Kuszmaul relies on State v. Jones, 236 Kan. 427. He argues Jones indicates
the Kansas Supreme Court sees substantial impairment as a statutory requirement for
interlocutory appeals contesting the suppression of evidence. The State counters that
Jones is distinguishable from the present situation. The State argues the appeal in Jones
was deemed unauthorized by statute because the State had substantial evidence, other
than the suppressed evidence, upon which it could prosecute the defendant. In the present
case, the State alleges it had limited evidence, aside from the suppressed evidence, to use
against Kuszmaul.

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The Jones court held that the State did not have statutory authority under K.S.A.
22-3603 to appeal a pretrial evidentiary ruling suppressing evidence in a driving under
the influence case. 236 Kan. at 427-28. The court determined the suppression of evidence
showing the defendant refused to take a finger-to-nose test did not substantially impair
the State's case where the State had results of a blood-alcohol test or evidence the
defendant refused to take such a test, the defendant admitted to consuming alcohol prior
to driving a vehicle, coupled with the defendant crashing into a guard rail. 236 Kan. at
427-28. The court determined that because the State had ample evidence for proceeding
with the prosecution, the State had "no statutory authority to appeal" the district court's
suppression order. 236 Kan. at 428. Jones was decided in the same year as Newman, and
the court relied on its decision in Newman in reaching its result. Jones, 236 Kan. at 427.
The issue of whether the interlocutory appeal filed by the State in Jones would toll the
speedy trial clock under K.S.A. 22-3604(2) was never presented to the court.

In the instant case, the strength of the State's case appears not to be as strong as it
was in Jones.

Last, Kuszmaul relies on State v. Unruh, 263 Kan. 185, for the proposition that
whether the State recognizes its appeal lacks jurisdiction does not affect whether a
defendant's speedy trial time is tolled. The State argues Unruh is distinguishable from the
present case because in Unruh, the State filed an interlocutory appeal contesting the
invalidation of a plea agreement, an appeal clearly not authorized by K.S.A. 22-3603.

Unruh had entered into a plea agreement relating to one count of possession of
methamphetamine. The district court invalidated and vacated the agreement. The State
filed an interlocutory appeal under K.S.A. 22-3603. The Supreme Court dismissed the
appeal for lack of jurisdiction because K.S.A. 22-3603 only authorizes interlocutory
appeals in certain circumstances, none of which concerned the invalidation of a plea
agreement. 263 Kan. at 187.
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Unruh was later convicted. He filed an appeal asserting his statutory right to a
speedy trial had been violated because time was not tolled under K.S.A. 22-3604 during
the State's unauthorized interlocutory appeal. The Supreme Court ultimately decided that
Unruh's statutory right to a speedy trial had been violated because speedy trial time is not
tolled while the State takes an appeal not authorized by statute. 263 Kan. at 190-91. The
court stated that it lacked jurisdiction to hear the case because the State's appeal "did not
fit any statutory category set forth by statute," making no reference to any disparate
treatment of the categories listed in K.S.A. 22-3603. 263 Kan. at 190.

In closing, the Unruh court emphasized that nothing prevented the State from
trying Unruh on the original charges once the plea agreement had been invalidated. The
only reason the State attempted the interlocutory appeal was to avoid wasting time trying
the case, and "considerations of expediency can have no weight in the face of the
preemptory commands of the Kansas Constitution Bill of Rights and K.S.A. 22-3402(1)."
263 Kan. at 191.

Unruh is distinguishable from the current case. Here, the State's interlocutory
appeal contested an order suppressing evidence, which fits into the plain language of the
statutory categories contained in K.S.A. 2015 Supp. 22-3603 and is only an issue as a
result of judicial interpretation of that statute. In Unruh, the appeal at issue did not fall
within the plain language of any statutorily recognized category.

The underlying issue presented by the State was whether the district court erred in
suppressing certain physical evidence. It was necessary for the State to show that the
suppression substantially impaired its ability to prosecute the case to prevail on the
appeal. But the failure to do so, though it doomed the appeal, did not cause the appeal to
be unauthorized ab initio.

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This appeal concerned the suppression of evidence which is among the subjects
permitted for interlocutory appeal under K.S.A. 2015 Supp. 22-3603. Such an appeal is
therefore authorized. Although the appeal was unsuccessful, it was authorized.

Since the appeal was authorized, the time which elapsed during its prosecution
does not count against the 180-day time requirement and the speedy-trial days did not
exceed the statutory limits.

We, therefore, affirm the district court's finding to that effect.

Affirmed.