State v. Miller

1

NOT DESIGNATED FOR PUBLICATION

No. 115,764


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHARLES DOUGLAS MILLER,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed July 14, 2017.
Appeal dismissed.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

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

Before HILL, P.J., MCANANY and ATCHESON, JJ.

Per Curiam: The Kansas rules of appellate practice could not be clearer. If an
issue is not raised in a lower court, an appellant's brief must offer an explanation why the
issue is properly before the appellate court. Charles Douglas Miller fails to explain in his
brief why we should consider his claim that there is no proof of his voluntarily waiving
counsel in two California cases, when he argued to the district court that the two
convictions were simply uncounseled. Obedient to the stern warning of our Supreme
Court to enforce our rules, we decline to consider his issue. Consequently, we must
dismiss his appeal.
2

While serving his sentence after revocation of probation, Miller contends his sentence
was illegal.

In this case, where Miller pled guilty to an offender registration violation, he filed
a pro se motion to correct an illegal sentence, where he argued that our Supreme Court's
holding in State v. Neal, 292 Kan. 625, 258 P.3d 365 (2011), made his sentence illegal.
Miller alleged that two convictions from Santa Clara County, California, were
uncounseled misdemeanors and could not be used in the computation of his criminal
history score. The district court appointed counsel for Miller and his counsel filed
additional authority to support Miller's position. Miller requested an order for the State to
satisfy the burden of showing the disputed prior convictions could be used in the
calculation of his criminal history.

When the district court held a hearing on Miller's motion, his counsel asserted the
California misdemeanors were uncounseled and should not be counted in Miller's
criminal history. His counsel did not submit any evidence to support Miller's claims. We
note that when Miller was sentenced, he did not object to his criminal history. Miller
admitted that the 11 convictions listed on his criminal history were his convictions. So,
the question of the existence of the two convictions was not before the district court, nor
is it before us.

The State presented a journal entry from the California cases. The journal entry is
marked indicating that Miller was advised of various rights. The journal entry also
indicates Miller waived the rights to counsel, "Court/Jury Trial,
Subpoena/Confront/Examine Witnesses," and self-incrimination. Additionally, the State
argued that Miller's plea to an offender registration violation showed the validity of the
California convictions. Miller entered his plea shortly after the motion to correct an
illegal sentence was filed, and the offense he pled to was predicated on the validity of the
California convictions.
3

The district court decided that Miller had waived his right to counsel in the
California cases and, thus, ruled the misdemeanors were not uncounseled and denied
Miller's motion to correct an illegal sentence.

Miller now raises a new issue in this appeal.

Miller raises a new claim of error that was not raised before the district court—that
the State never proved that Miller knowingly and voluntarily waived the right to counsel
in his California cases. Additionally, Miller has not argued any exception that would
overcome the general rule that issues raised for the first time on appeal are deemed
waived or abandoned.

Kansas Supreme Court Rule 6.02(a)(5) (2017 Kan. S. Ct. R. 35) is clear and
concise: "If the issue was not raised below, there must be an explanation why the issue is
properly before the court." Miller makes no such explanation.

Our Supreme Court takes this issue seriously and after a warning to all in State v.
Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014), the court in State v. Godfrey, 301
Kan. 1041, 1043-44, 350 P.3d 1068 (2015), declined to reach the merits of an issue
because the brief failed to explain why a new issue should be considered for the first time
on appeal. The court held: "We are now sufficiently post-Williams that litigants have no
excuse for noncompliance with Rule 6.02(a)(5)." Godfrey, 301 Kan. at 1044. We are duty
bound to follow the Supreme Court.

We realize that there are several recognized exceptions to this general rule. See
State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). In order for an exception to
apply, however, the party raising the issue for the first time on appeal must explain to the
court why the issue is properly before the court. Godfrey, 301 Kan. at 1043-44. Miller has
not argued any exception that would overcome the general rule.
4

We offer one further point on this—after the State raised this issue in its brief,
Miller did not file a reply brief addressing the State's argument. Our Supreme Court was
puzzled in both Godfrey and Williams concerning why the respective litigants did not
address the State's arguments in a reply brief. See Godfrey, 301 Kan. at 1044; Williams,
298 Kan. at 1085. We are likewise puzzled. Had Miller argued an exception to the rule in
a reply brief, we could then have at least considered it. As it is now, we must consider the
issue waived.

Appeal dismissed.