State v. Martinez-Lopez

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NOT DESIGNATED FOR PUBLICATION

No. 114,179

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANTONIO MARTINEZ-LOPEZ,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; BARBARA KAY HUFF, judge. Opinion filed January 27,
2017. Affirmed in part, vacated in part, and remanded with directions.

Joanna Labastida, of Kansas Appellate Defender Office, for appellant.

Natalie Yoza, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before PIERRON, P.J., ATCHESON and ARNOLD-BURGER, JJ.

Per Curiam: Defendant Antonio Yibran Martinez-Lopez waived juvenile
adjudication in Douglas County District Court on a series of sex crimes. After securing a
plea agreement on adult charges and successfully entering a no contest plea to them,
Martinez hired a new lawyer who filed a motion challenging the waiver of juvenile court
jurisdiction but not the plea agreement on the grounds Martinez' original lawyer had not
adequately informed him of the legal implications of the waiver. The district court held
an evidentiary hearing on the motion at which both Martinez and his original lawyer
testified. The district court made a factual finding that Martinez had been sufficiently
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informed about the waiver and understood its legal effect. Based in part on that finding,
the district court denied the motion. We find no error and affirm the ruling.

Martinez also challenges the lifetime term of postrelease supervision the district
court imposed on him as unconstitutionally cruel and unusual punishment, since he was
less than 18 years old when he committed the crimes. Based on State v. Dull, 302 Kan.
32, 35, 351 P.3d 641 (2015), cert. denied 136 S. Ct. 1364 (2016), which was decided
after the district court sentenced Martinez, we agree with that characterization. We,
therefore, vacate Martinez' sentence and remand to the district court for a new sentencing
hearing.

FACTUAL AND PROCEDURAL HISTORY

We sketch briefly the relevant facts and outline the procedural history of this
prosecution. When Martinez was between 16 and 18 years old, he had serial relationships
with three 13-year-old girls. He disclaimed knowing the girls' actual ages and asserted he
thought they were older. At least for purposes of this appeal, everyone agrees Martinez
and the girls had sexual encounters. He described the encounters as voluntary and
unforced—part of his "dating" of the girls. The girls told investigators that at least
sometimes, they felt pressured to have sex with Martinez. One of the girls described an
incident in which Martinez physically forced her into a school building and sexually
assaulted her in a restroom. The police obtained a security videotape from the school
showing the initial part of that incident. Law enforcement officers also secured posts
ostensibly made by Martinez on a social media site that tended to confirm the sexual
relationships. Those events took place between 2011 and 2013.

The Douglas County prosecutor filed a complaint against Martinez in juvenile
court alleging multiple offenses that would constitute serious felonies if charged against
an adult. As we discuss in more detail later, the juvenile court file is not part of the record
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on appeal, so we don't know the precise offenses charged there. We can safely infer from
the district court records we do have that the prosecutor alleged numerous offenses.

By the time the charges were filed in juvenile court, Martinez was living with a
relative in Arizona. He was arrested there and extradited to Douglas County. He was then
19 years old. Martinez' family hired a lawyer to represent him. The prosecutor filed a
motion in juvenile court to have Martinez referred to the district court, meaning he would
be charged under the criminal code and would otherwise be treated as an adult. See
K.S.A. 2015 Supp. 38-2347. At a hearing on the motion in April 2014, Martinez appeared
with his lawyer and waived juvenile court jurisdiction. The juvenile court then granted
the motion.

The prosecutor charged Martinez in the district court with six counts of rape, two
counts of aggravated criminal sodomy, one count of kidnapping, and three counts of
battery. Martinez' lawyer reached an agreement with the prosecutor calling for Martinez
to plead no contest to one count of attempted rape, one count of aggravated sexual
battery, and one count of aggravated indecent solicitation of a child. The prosecutor also
agreed to recommend a sentencing arrangement that yielded a controlling prison term of
91 months for Martinez. At a hearing, the district court accepted Martinez' pleas to the
amended charges and scheduled his sentencing.

Before sentencing, Martinez discharged his lawyer and hired a new lawyer. The
new lawyer filed a motion challenging the juvenile court's referral of Martinez on the
grounds that Martinez did not make an informed waiver of that court's jurisdiction to
adjudicate him. The district court held an evidentiary hearing on the motion in March
2015 at which Martinez and his original lawyer, among other witnesses, testified.

Martinez testified that he is "pretty fluent" in English, although some members of
his family, including his mother, are not. Martinez testified without a translator and
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agreed that he reads and writes English and understood the questions being asked of him.
According to Martinez, his original lawyer never explained that the case against him had
been filed in juvenile court or that the hearing in juvenile court was to determine if he
would be prosecuted as an adult. He said the original lawyer simply instructed him to
answer "yes" to all of the judge's questions during the juvenile court hearing. Martinez
testified his original lawyer never told him what was going on in the case and never
discussed the evidence with him. He said someone had come to the jail to show him the
videotape from the school.

Martinez' original lawyer testified that she met with Martinez several times in the
jail—records from the jail admitted at the hearing confirm multiple visits. The lawyer
said she outlined the evidence to Martinez, including the videotape and the social media
posts. She said either an investigator or her legal assistant would have shown the
videotape to Martinez. The lawyer testified that she specifically went over the
prosecutor's motion to refer Martinez to district court and explained to Martinez the
differences between adjudication in juvenile court and prosecution as an adult in district
court. The lawyer said she advised Martinez that he almost certainly would be referred to
district court given his age, the number of charges against him, and the seriousness of the
charges. The lawyer thought the waiver would pave the way for meaningful discussions
with the prosecutor about a plea agreement entailing reduced charges and a lesser
sentence in the district court. But she acknowledged the waiver of juvenile court
jurisdiction was not itself part of a negotiated plea agreement.

Martinez' original lawyer testified that although Martinez asked no questions about
the waiver, he voiced no objection to her recommendation that he consent to the referral
to district court. During her testimony, Martinez' lawyer expressed some hindsight
concern that Martinez might not have understood everything they discussed because
English was not his native language.

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Several weeks later, the district court issued a detailed written order denying
Martinez' motion challenging the waiver of juvenile court jurisdiction. After summarizing
the testimony and other evidence introduced at the hearing, the district court found that
Martinez "was adequately informed of his rights to a hearing on the issue of waiver [from
juvenile court] to adult status." The district court also found that Martinez' original
lawyer performed competently in advising him and that he "understood her advice and
followed it."

The district court sentenced Martinez in May 2015 in conformity with the
recommendation in the plea agreement. Martinez received a controlling 91-month term of
imprisonment. As required by the governing sentencing statute, the district court also
placed Martinez on lifetime postrelease supervision. K.S.A. 2015 Supp. 22-
3717(d)(1)(G). Martinez has timely appealed.

LEGAL ANALYSIS

Waiver of Juvenile Court Jurisdiction

Martinez contends the district court erred in denying his motion challenging the
juvenile court's referral of him for prosecution as an adult. Before analyzing the specifics
of the challenge, we outline the referral process as it was at that time. The State could file
a motion in the juvenile court to have a particular juvenile offender referred to district
court to be prosecuted as an adult. K.S.A. 2015 Supp. 38-2347. As provided in K.S.A.
2015 Supp. 38-2347(b), certain juveniles would be presumed to be referable as adults
based on their ages and the seriousness of the charged offenses. Martinez fell in that
category, so he had the burden of rebutting that presumption in the juvenile court. K.S.A.
2015 Supp. 38-2347(b). In 2016, the legislature eliminated the presumption, a change that
does not affect Martinez' case. The statute otherwise remains substantially the same in all
relevant respects.
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In weighing the referral of a juvenile offender to the district court for prosecution
as an adult, the juvenile court had to consider the overall circumstances encompassed in
eight enumerated statutory factors. K.S.A. 2015 Supp. 38-2347(e). A juvenile offender
was entitled to an evidentiary hearing on the State's motion for referral. But the juvenile
could waive a hearing—as Martinez did here, consistent with his original lawyer's advice.
Even with a waiver from the juvenile, the juvenile court still had to evaluate the statutory
factors in light of the grounds set forth in the State's motion and otherwise determine
referral to be warranted. See State v. Ellmaker, 289 Kan. 1132, 1149-50, 221 P.3d 1105
(2009); State v. Smith, 268 Kan. 222, 245, 993 P.2d 1213 (1999).

For purposes of this appeal, we assume Martinez' presentencing motion reflected a
procedurally proper vehicle to challenge his waiver. We think it plain that a juvenile
could, at some juncture, assert a claim that his or her waiver had not been knowingly or
voluntarily made and was, therefore, ineffective. See State v. Randolph, 297 Kan. 320,
330, 301 P.3d 300 (2013) (valid waiver of Miranda rights must be knowing and
voluntary); State v. Beaman, 295 Kan. 853, 858, 286 P.3d 876 (2012) (valid waiver of
right to jury trial must be knowing and voluntary). Whether a criminal defendant has
validly waived a right typically presents question of fact. See Beaman, 295 Kan. at 858;
State v. Bland, 33 Kan. App. 2d 412, 415, 103 P.3d 492 (2004). We, therefore, review the
district court's pertinent findings to determine if they are supported in the record by
substantial competent evidence. Beaman, 295 Kan. at 858; Bland, 33 Kan. App. 2d at
415. Substantial evidence is that which would lead a reasonable person to accept it as
supporting a given conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012);
Hodges v. Johnson, 288 Kan. 56, Syl. ¶ 7, 199 P.3d 1251 (2009). In making that
determination, appellate courts do not reweigh the evidence, engage in credibility
determinations, or consider testimony or documents detracting from the district court's
finding. State v. Brown, 286 Kan. 170, 172, 182 P.3d 1205 (2008). Ultimately, the factual
findings must legally justify the district court's ruling.
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The district court made a factual finding that Martinez had been duly informed
about the waiver and its legal implications and understood the information his original
lawyer imparted to him before he agreed to the waiver during the juvenile court hearing.
The finding necessarily reflects a predicate conclusion that the original lawyer was more
credible than Martinez in describing their discussions about the waiver specifically and
the pertinent aspects of juvenile and district court processes more generally. The district
court could not have found as it did had it credited Martinez, since he testified his
original lawyer effectively told him nothing about the evidence against him, the nature of
the case, or the purpose of the juvenile court hearing. We necessarily must respect the
district court's determination and the requisite credibility call on which it rests. See State
v. Franco, 49 Kan. App. 2d 924, 936-37, 319 P.3d 551 (2014) (explanation of why
appellate courts do not make independent credibility findings in context of jury trial);
State v. Duque, No. 107,168, 2013 WL 3455773, at *3 (Kan. App. 2013) (unpublished
opinion) (appellate court defers to district court's credibility determinations), rev. denied
February 12, 2014.

The original lawyer's testimony furnished substantial evidence showing Martinez
had been informed about the charges against him, the waiver of juvenile court
jurisdiction, and the differences between juvenile court and district court in handling
criminal charges. The lawyer's speculation that a language barrier might have impeded
their communication was unfounded. Martinez' testimony established that he
communicated effectively in English. In addition, Martinez introduced a report from a
psychologist who had evaluated him at the request of his new lawyer. The psychologist's
narrative indicated that Martinez understood the original lawyer's advice and only later
concluded the waiver was not necessarily in his best interest. The district court cited the
report as corroborating the original lawyer's account of her communications with
Martinez and undercutting his contrary version.

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In short, substantial evidence supports the district court's finding of fact that
Martinez knowingly and voluntarily waived his right to an evidentiary hearing on the
prosecutor's motion to refer him from the juvenile court to the district court. The district
court, then, properly denied Martinez' motion challenging the legal adequacy of the
waiver. Because that disposes of the issue on the merits, we do not consider the
alternative arguments the State has presented for affirming the district court. We,
likewise, express no opinion on an appropriate remedy for an invalid waiver.

In his appellate brief, Martinez seems to argue as an alternative ground for relief
that the juvenile court failed to make sufficient findings that the factors in K.S.A. 2015
Supp. 38-2347(e) justified referral. Assuming Martinez has made the argument—the
briefing is less than clear in that respect—we decline to consider it. As we have
mentioned, the record on appeal contains nothing from the juvenile court proceedings.
We, therefore, have neither the prosecutor's motion to refer Martinez to the district court
nor the transcript of the hearing on that motion. And we have neither a bench ruling nor a
written order from the juvenile court. What we have (and all we have) are several lengthy
excerpts from the juvenile court hearing quoted in Martinez' motion challenging his
waiver. Those representations cannot substitute for a transcript of the juvenile court
hearing and the juvenile court's actual ruling. If Martinez wished to have this court
consider the juvenile court's determination to refer him to the district court—in contrast
to the validity of his waiver—he needed to include the relevant parts of the juvenile court
file in the record on appeal. State v. Kidd, 293 Kan. 591, 601, 265 P.3d 1165 (2011);
State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008).

Imposition of Lifetime Postrelease Supervision

As provided in K.S.A. 2015 Supp. 22-3717(d)(1)(G), defendants convicted of
specified sex offenses must be sentenced to lifetime postrelease supervision. Based on his
crimes of conviction, Martinez came within K.S.A. 2015 Supp. 22-3717(d)(1)(G), and
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the district court ordered he be placed on lifetime postrelease supervision after serving his
time in prison.

About a month after Martinez was sentenced, the Kansas Supreme Court held that
imposing lifetime postrelease supervision on any defendant who was less than 18 years
old when he or she committed aggravated indecent liberties with a child amounted to
categorically unconstitutional cruel and unusual punishment. Dull, 302 Kan. 32, Syl. ¶ 8.
In Dull, the court considered only a categorical challenge based on the prohibition of
cruel and unusual punishment in the Eighth Amendment to the United States
Constitution. 302 Kan. at 39. A categorical challenge looks at the constitutionality of
imposing a particular form of punishment on a class of criminal offenders without regard
to any individualized factual circumstances. See Graham v. Florida, 560 U.S. 48, 82, 130
S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (successful categorical challenge to imposition of
life sentences without possibility of parole on juvenile offenders found to have committed
offenses other than homicide).

After thoroughly analyzing United States Supreme Court authority and Kansas
caselaw, the court concluded that the duration and conditions of lifetime postrelease
supervision violated the Eighth Amendment when imposed on persons who had
committed sex crimes when they were less than 18 years old. Dull, 302 Kan. at 60-61.
Although the narrow holding in Dull applies to convictions for aggravated indecent
liberties with a child—that was Dull's crime of conviction—the decision rests on the
general characteristics of juveniles as criminal defendants in sex cases and the grossly
disproportionate adverse effects lifetime postrelease supervision would have on them as a
class when weighed against the penological benefits.

The rationale of Dull, therefore, requires the same outcome with respect to
Martinez' constitutional attack on lifetime postrelease supervision as a part of his
sentence. The State effectively concedes we are compelled by the reasoning and result in
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Dull to find lifetime postrelease supervision an unconstitutional punishment in this case.
In accordance with Dull, we vacate Martinez' sentence and remand to the district court
with directions to impose a constitutionally appropriate punishment at a new sentencing
hearing.

Affirmed in part, vacated in part, and remanded with directions.