State v. Luarks

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NOT DESIGNATED FOR PUBLICATION

No. 116,113

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RICHARD ALLEN LUARKS,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed September 22,
2017. Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Jodi Litfin, deputy district attorney, Michael F. Kagay, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before GREEN, P.J., BUSER and LEBEN, JJ.

PER CURIAM: Richard Allen Luarks was convicted by a jury of one count of
aggravated battery. This court affirmed Luarks' conviction and sentence. Our Supreme
Court granted Luarks' petition for review and reversed Luarks' sentence because the
sentencing court made an error in calculating his criminal history score. Luarks' case was
remanded for resentencing. On remand, Luarks was sentenced to 162 months'
imprisonment based on his criminal history score of B. Luarks appeals, arguing that
because he was provided ineffective assistance of counsel at resentencing, he was denied
due process. Finding no ineffective assistance of counsel, we affirm his sentence.
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In 2011, a jury convicted Luarks of one count of aggravated battery. Luarks had
been charged with aggravated battery after he stabbed his girlfriend's neighbor at a
Topeka apartment complex in July 2010. Luarks' criminal history score was calculated as
A, and he was sentenced to 172 months' imprisonment. See State v. Luarks, 302 Kan.
972, 973-74, 360 P.3d 418 (2015).

On direct appeal to this court, Luarks argued that the trial court had misclassified
three of his pre-Kansas Sentencing Guidelines Act (KSGA) convictions as person
felonies: (1) a 1981 conviction for attempted rape; (2) a 1986 conviction for aggravated
battery; and (3) a 1981 conviction for burglary of a residence. See State v. Luarks, No.
106,643, 2012 WL 6634395 (Kan. App. 2012) (unpublished opinion), rev'd 302 Kan.
972. "[T]he panel concluded there was no error in classifying the disputed convictions as
person felonies, and consequently, it approved his criminal history score." Luarks, 302
Kan. at 974. Our Supreme Court granted Luarks' petition for review. He presented two
arguments: (1) that "the court erred by over-classifying all three of his pre-[KSGA]
convictions as person felonies"; and (2) that "the classification as a person felony of one
of those convictions—for burglary—was unconstitutional because it was based on a fact
that was never proven to a jury beyond a reasonable doubt." 302 Kan. at 973. Our
Supreme Court held:

"Luarks' arguments are controlled by our recent decisions in State v. Keel, 302
Kan. 560, 357 P.3d 251 (2015), and State v. Dickey, 301 Kan. 1018, 350 P.3d 1054
(2015). Under Keel, we readily reject Luarks' first argument regarding his pre-KSGA
convictions for attempted rape and aggravated battery. But as for Luarks' remaining pre-
KSGA conviction for burglary, we agree with him. Under Dickey, its person
classification was improperly based on the implicit judicial finding that he burglarized a
dwelling, a fact never proven to a jury beyond a reasonable doubt.
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"Accordingly, with only two person felony convictions attributable to Luarks
instead of the three calculated by the district court, we vacate Luarks' sentence and
remand to that court for resentencing." 302 Kan. at 973.

At the resentencing hearing, Luarks was represented by counsel, Joshua Luttrell.
The sentencing court acknowledged our Supreme Court's mandate and found that Luarks'
criminal history score should have been B. Luarks, through Luttrell, objected to his new
criminal history score. Luttrell also told the court that Luarks had prepared a pro se
motion that he intended on filing. Luttrell conceded that he had not had an opportunity to
sufficiently discuss the motion with Luarks. When Luarks attempted to explain his
motion, the court told him that Luttrell would need to speak on his behalf. Luttrell told
the court that Luarks was asserting that our Supreme Court mandated that he be
resentenced under K.S.A. 2014 Supp. 21-6804(q), which defined an "optional nonprison
sentence." Luttrell had difficulty conveying Luarks' argument, so the court allowed
Luarks to present the argument himself.

Luarks directed the court to look at State v. Kirk, a 2004 case that Luarks was
unable to provide a citation for. After examining Luarks' argument and conducting our
own research, we now know that Luarks was citing to State v. Kirk, No. 94,487, 2006
WL 2129158 (Kan. App. 2006) (unpublished opinion). Luarks presented his argument
based on Kirk, which was actually based on our Supreme Court's holding in State v.
Collier, 263 Kan. 629, 635, 952 P.2d 1326 (1998), which was quoted in Kirk. Luarks read
the following excerpt from Collier to the court:

"'In cases decided by the supreme court, brought on error, when the facts are found by the
trial court, and a mandate is sent to that court directing it to render judgment upon the
findings for defendant below, the case is not to be retried by the district court upon the
old facts, nor upon facts which ought to have been and might have been presented upon
the trial; nor is the court below, after receiving the mandate, authorized to make
additional findings upon the evidence originally offered, to aid or cure the judgment
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pronounced erroneous by the supreme court and ordered to be reversed.'" Collier, 263
Kan. at 635 (quoting Duffitt & Ramsey v. Crozier, Judge, 30 Kan. 150, Syl. ¶ 1, 1 Pac. 69
[1883]).

Luarks asserted that the holding from Collier applied equally to his resentencing
"[b]ecause the mandate in [his] opinion by the Supreme Court gave K.S.A. 21-6804(q),
as defining presumptive sentence, which is a non-prison sanction." The sentencing court
addressed Luarks' argument and clarified our Supreme Court's mandate in his case:

"I don't have a case site [sic] from this State versus Kirk, nor do I find that the
information provided by the defendant or the argument based on that is applicable to this
case.
"What the Supreme Court said in that last paragraph, you have to read the whole
paragraph, is that: Without this prohibited finding, Luarks' 1981 burglary conviction
should have been classified as a nonperson crime. That classification would have resulted
in a lower criminal history score—two person felony convictions instead of three—and
thus a lower presumptive sentence for Luarks under the Kansas Sentencing Guidelines.
Then they said: See K.S.A. 2014 Supp. 21-6809 (computing criminal history categories
based upon number and types of convictions); K.S.A. 21-6804(q), (defining presumptive
sentences). Accordingly, we vacate Luarks' sentencing and remand for sentencing.
"What the Supreme Court did is they disagreed with your argument that all three
of your prior person felony convictions should have been classified as nonperson. They
found that one, a 1981 burglary conviction, should have been classified as a nonperson,
and that would have resulted in a criminal history score of two person felony convictions
instead of three. Two person felony convictions makes this a B Criminal History. So I do
find, after hearing your argument, Mr. Luarks, I do find that criminal history should be
classified as B in this case. I'll note your objection for the record though."

Next, the court heard the parties' sentencing recommendations. The State
recommended that Luarks be sentenced to a prison term of 162 months, which
represented the aggravated prison sentence for an individual with a criminal history score
of B. In response to the State's recommendation, Luttrell stated that he objected "to the
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sentencing under the ex post facto laws of the Supreme Court of the United States." The
court once again allowed Luarks to address the court regarding his ex post facto
argument. Luarks argued that sentencing him using the 2014 amended version of K.S.A.
2014 Supp. 21-6810, the statute covering criminal history categories, would violate ex
post facto laws. Luarks then presented the court with a copy of his written motion. The
court read the motion. The State responded to Luarks' motion. In summary, the State
argued "that the defendant's two prior convictions for aggravated battery and attempted
rape are appropriately classified as person felonies. The burglary would be a nonperson
felony. Defendant would be sentenced as to Criminal History B, and this particular
statute in question does not pose an ex post facto situation." The court addressed Luarks'
ex post facto argument:

"Supreme Court already addressed your issue on State versus Keel when they addressed
the mandate in this particular case. . . . In fact, you've addressed that also in your motion
to correct an illegal sentence. Under Keel, the Supreme Court noted that they had readily
rejected your first argument regarding your pre KSGA convictions . . . for attempted rape
and aggravated battery. But for your remaining conviction on burglary, they agreed with
you under the Dickey decision basically.
"In your motion to correct an illegal sentence that you filed today with the Court,
I noted that you mentioned that the mandate, State versus Keel, had been stayed, pending
the final petition for cert in the United States Supreme Court. That cert was denied on
January 11th, 2016 by the United States Supreme Court. Keel is the law in this case. I'm
obligated to follow the law as the Supreme Court of Kansas has defined them. Under that,
your two prior convictions for aggravated battery and attempted rape are to be compared
to like-convictions. Under the Kansas Sentencing Guidelines, they are classified as
person felony convictions, therefore, they are appropriately classified as person felony
convictions for your resentencing in this case.
"I believe that the Supreme Court has already addressed the issues that you
brought about in your motion to correct an illegal sentence. That motion is denied. I find
that your appropriate criminal history is a B Criminal History . . . and as such, the Kansas
Sentencing Guidelines has a range of 144 to 162 in this particular case."

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The court sentenced Luarks to 162 months' imprisonment. Luarks again raised his
ex post facto argument. The court responded,

"I did not do that, I didn't even address that. But . . . that statute has been held to be not ex
post facto. But the Supreme Court has ruled in the Keel decision that those . . . prior
convictions . . . that happened prior to the effective date of the Kansas Sentencing
Guidelines enactment, must be addressed as the same type of conviction, post Kansas
Sentencing Guideline, and categorizes as person or nonperson. And that's what I followed
in this case."

The court informed Luarks of his right to appeal and concluded sentencing. Luarks
filed a timely notice of appeal.

Was Luarks' Counsel at Resentencing Ineffective to the Point That He Was Denied
Due Process?

Before we can reach Luarks' argument, we must address a preliminary issue.
Luarks acknowledges that he failed to raise the issue of ineffective assistance of counsel
at his resentencing hearing. The State argues that "[t]his court should not address this
issue as it was not properly preserved for review."

Generally, issues not raised before the trial court cannot be raised for the first time
on appeal. State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). This includes
constitutional grounds for reversal. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068
(2015). Of course, there are exceptions to the rule.

"Three commonly cited circumstances where an issue, including a constitutional issue,
can be presented for the first time on direct appeal are: (1) The newly asserted theory
involves only a question of law arising on proved or admitted facts and the issue is finally
determinative of the case; (2) resolution of the question is necessary to serve the ends of
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justice or to prevent denial of fundamental rights; or (3) the district court reached the
right conclusion but relied on the wrong ground or assigned a wrong reason for its
decision." Trotter v. State, 288 Kan. 112, Syl. ¶ 3, 200 P.3d 1236 (2009).

Luarks argues that he should be permitted to present his claim for the first time on
appeal because he was deprived of due process, a fundamental right, by his counsel's
ineffectiveness at his resentencing hearing. But the State points out that ineffective
assistance of counsel claims cannot generally be raised for the first time on appeal. See
Trotter, 288 Kan. at 127-28 ("[W]e have generally determined a district court must
consider the evidence to determine the two-prong test for establishing ineffective
assistance of counsel . . . ."). Indeed, our Supreme Court has held that

"the trial court, which observed counsel's performance and was aware of the trial strategy
involved, is in a much better position to consider counsel's competence than an appellate
court is in reviewing the issue for the first time from a cold record. Many times what
would appear in the record as an indication of ineffective counsel was fully justified
under the circumstances present in the trial court. The trial judge should be the first to
make a determination of such an issue and our refusal to consider the matter for the first
time on appeal is sound. . . . [A] remedy exists under K.S.A. 60-1507." State v. Van
Cleave, 239 Kan. 117, 119, 716 P.2d 580 (1986).

As we mentioned earlier, Luarks leans on the second exception to the rule listed
above—that he should be excused from failing to raise this issue below because
resolution of the question is necessary to prevent the denial of a fundamental right. He
asserts that he was denied his right to due process under the Fourteenth Amendment to
the United States Constitution because his counsel at resentencing was ineffective.

"The fundamental requirement of due process is the opportunity to be heard 'at a
meaningful time and in a meaningful manner.' [Citation omitted.]" Mathews v. Eldridge,
424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); see also State v. King, 288 Kan.
333, 354, 204 P.3d 585 (2009). And to present a successful claim of ineffective assistance
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of counsel, a criminal defendant must show (1) that the performance of counsel fell
below an objective standard of reasonableness, based on the totality of the circumstances,
and (2) that counsel's performance resulted in prejudice, i.e., that there is a reasonable
probability that a different result would have been reached but for the deficient
performance. Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh.
denied 467 U.S. 1267 [1984]).

Luarks asserts that "[t]he question, . . . was whether [he] was deprived of a
'meaningful hearing' in the context of Due Process." Luarks argues that "his Counsels'
[sic] ineffectiveness is sufficient grounds for this Court to conclude that [he] was
deprived of Due Process for a lack of a 'meaningful hearing.'" Specifically, Luarks argues
that his counsel at resentencing was ineffective because "[a]ny reasonably effective
attorney would have moved the Court for a continuance based on reasonable cause."

Luarks' argument fails for two reasons: (1) notwithstanding his counsel's actions,
he was afforded a meaningful opportunity to be heard, and (2) he concedes on appeal that
he was not prejudiced in the final disposition of the hearing.

First, we recall that Luarks showed up for resentencing with a motion that he had
prepared himself. Luarks' counsel acknowledged that he had not seen the motion before
the resentencing hearing. Still, Luarks' counsel made an attempt to argue the motion. But
Luarks was not satisfied with his counsel's effort in arguing the motion. So, the
sentencing court allowed Luarks to argue his own motion. The State asserts in its brief
that "Luarks was not forced to argue his pro se motion but wanted to represent himself."
The State's argument is supported by the record. At his resentencing hearing, Luarks told
the court, "I'm here to speak for myself." And Luarks did speak for himself. He presented
his argument fully at the resentencing hearing. When the court determined that his
arguments were flawed, it denied his motion. Luarks' attempt to show that he was not
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afforded a meaningful opportunity to be heard falls short of the mark. Luarks was
provided every opportunity to be heard at his resentencing hearing. He chose to argue his
motion himself. He cannot now claim that he was denied due process because he made
that choice. A litigant is not allowed to invite error and then complain of that error on
appeal. State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014). Thus, Luarks' counsel's
performance notwithstanding, he has failed to show that he was denied due process.

But even if we were to consider Luarks' ineffective assistance of counsel claim,
our conclusion would not change. Luarks himself admits on appeal that "[i]t is not so
much that the final disposition of the hearing was prejudiced, because of Counsel's
ineffectiveness throughout the resentencing hearing, but rather a question that the process
of getting to the final disposition of the resentencing hearing was fatally flawed."

Thus, assuming arguendo that Luarks' counsel was deficient, Luarks would
admittedly be unable to prove that he was prejudiced by the deficiency. This conclusion
is supported by a short examination of the arguments that Luarks presented at his
resentencing. First, we must emphasize the purpose for Luarks' resentencing. On direct
appeal from his original conviction and sentence, our Supreme Court held that the
original sentencing court had misclassified one of Luarks' prior convictions in calculating
his criminal history score. That misclassification resulted in Luarks receiving a higher
criminal history score than he should have received. Accordingly, our Supreme Court
remanded the case for resentencing with the correct criminal history score. All in all, the
resentencing should have been a relatively simple affair.

On remand, Luarks offered his pro se motion. In his motion, he argued (1) that the
holding from Kirk, 2006 WL 2129158, made it illegal to resentence him under his new
criminal history score, and (2) that resentencing him under the amended criminal history
statute would violate the constitutional prohibition against ex post facto laws.

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First, we recognize that Kirk does not support Luarks' assertion that his
resentencing would have been illegal. In Kirk, this court held that "a party cannot attempt
to correct the record and relitigate a matter resolved by reliance upon a prior set of facts."
2006 WL 2129158, at *3. Instead, "the district court's jurisdiction on remand extend[s]
only as far as necessary to effectuate the mandate of [the higher] court." 2006 WL
2129158, at *2. Thus, in actuality, Kirk supports the resentencing court's actions here.
The court read our Supreme Court's mandate and resentenced Luarks accordingly—
nothing less, nothing more. As a result, Luarks is unable to show that he was prejudiced
by his counsel's failure to sufficiently address Kirk.

Additionally, Luarks argued that sentencing him under the then-recently amended
K.S.A. 2014 Supp. 21-6810 would violate the prohibition against ex post facto laws. The
resentencing court noted that Luarks' ex post facto argument failed in the face of our
Supreme Court's decision in State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert.
denied 136 S. Ct. 865 (2016). In Keel, the Supreme Court held, independent of K.S.A.
2014 Supp. 21-6810, that "the classification of a prior conviction or juvenile adjudication
as a person or nonperson offense for criminal history purposes under the KSGA is
determined based on the classification in effect for the comparable Kansas offense at the
time the current crime of conviction was committed." 302 Kan. at 590. Additionally, the
court held that "classifying a prior conviction or juvenile adjudication based on the
classification in effect for the comparable offense when the current crime was committed
complies with the Ex Post Facto Clause of the United States Constitution." 302 Kan. at
589. And our Supreme Court noted "that the classification rule . . . is consistent with the
recent amendments the legislature made to K.S.A. 2014 Supp. 21-6810." 302 Kan. at
590.

Thus, the resentencing court here was correct to rule that Keel, although indirectly,
had sufficiently addressed Luarks' argument that K.S.A. 2014 Supp. 21-6810 could not
be applied retroactively without violating the prohibition against ex post facto laws.
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Accordingly, Luarks is unable to show that he was prejudiced by his counsel's failure to
sufficiently address his ex post facto argument.

In conclusion, Luarks contends that his resentencing counsel should have
requested a continuance. But we cannot say that the passage of time would have made
Luarks' arguments any more persuasive. And by conceding that he cannot show
prejudice, Luarks implicitly agrees. Because Luarks cannot show that his resentencing
counsel's performance resulted in prejudice, he cannot show that his counsel was
ineffective. Moreover, because he cannot show that his counsel was ineffective, he
cannot show that he was denied due process at his resentencing.

Affirmed.