State v. Polk

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NOT DESIGNATED FOR PUBLICATION

Nos. 117,856
117,857
117,858

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RUSSELLER W. POLK,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed September 21,
2018. Affirmed.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., ATCHESON, J., and LORI BOLTON FLEMING, District Judge
assigned.

PER CURIAM: In this consolidated appeal, Russeller W. Polk raises two issues.
First, Polk argues that he cannot remain under sentences that were imposed as the result
of convictions for refusing to submit to a chemical test, claiming that the Kansas
Supreme Court has found this crime to be facially unconstitutional. Second, Polk argues
that the district court erred in imposing 36 months of probation during his sentencing for
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a level 9 felony, claiming that the district court failed to follow K.S.A. 2017 Supp. 21-
6608(c)(5) which might have allowed an exception to the presumed 12-month probation
period.

With regard to the first issue, we find that Polk's guilty pleas deprive us of the
necessary jurisdiction to consider Polk's appeal on these issues. We also find that Polk's
appeal of this issue is untimely. Even if we were to construe Polk's appeal as a motion to
correct illegal sentence, the constitutional issue Polk raises is not the proper subject of
such a motion. Finally, Polk has appealed from his probation revocation hearing. The
appeal of a probation revocation may properly be considered a "direct appeal" thereof,
but it may not raise issues related to the original conviction or sentence.

With regard to the second issue, we conclude that the particularized findings made
by the district court were sufficient to support the district court's decision to order 36,
rather than 12, months of probation pursuant to K.S.A. 2017 Supp. 21-6608(c)(5). Based
upon these findings, we affirm.

FACTUAL AND PROCEDURAL HISTORY

A. 13CR1872

On July 11, 2013, the State charged Polk with five criminal counts in 13CR1872:
(1) refusing to submit to a test to determine the presence of alcohol or drugs, a nongrid
nonperson felony in violation of K.S.A. 2012 Supp. 8-1025(a)(2); (2) DUI habitual
violator, a class A misdemeanor in violation of K.S.A. 2012 Supp. 8-285 and K.S.A.
2012 Supp. 8-287; (3) no proof of insurance, a class B misdemeanor in violation of
K.S.A. 2012 Supp. 40-3104(c); (4) refusal of a preliminary breath test, an infraction in
violation of K.S.A. 2012 Supp. 8-1012; and (5) speeding, an infraction in violation of
K.S.A. 2012 Supp. 8-1558.
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On February 10, 2014, Polk filed a motion to dismiss, arguing that K.S.A. 2012
Supp. 8-1025 was facially unconstitutional. On April 4, 2014, the State added a sixth
charge, driving under the influence, a nongrid nonperson felony in violation of K.S.A.
2012 Supp. 8-1567(a)(3). The same day, Polk entered into a plea agreement with the
State, wherein Polk agreed to plead guilty to the test refusal, habitual violator, and DUI
charges in exchange for the State dismissing all other charges. There is no transcript of
the plea hearing in the record on appeal; however, the district court accepted his plea and
denied his motion to dismiss on the same day.

B. 13CR3278

On November 26, 2013, the State charged Polk with one count of criminal threat,
a severity level 9 person felony in violation of K.S.A. 2013 Supp. 21-5415(a)(1). The
charge stemmed from an alleged threat Polk made against a neighbor.

On July 20, 2014, Polk entered into a plea agreement with the State. The plea
agreement did not modify the charge Polk faced in the case but, instead, addressed how
the parties would approach sentencing. The district court held a plea hearing in this case
on July 21, 2014, and, after a detailed colloquy with Polk about his rights, accepted his
plea of guilty to the crime of criminal threat, a level 9 person felony.

C. 14CR2269

On September 8, 2014, the State charged Polk with refusal to submit to a test to
determine presence of alcohol or drugs, a nongrid nonperson felony in violation of
K.S.A. 2012 Supp. 8-1025(a)(1), and driving while intoxicated habitual violator, a class
A misdemeanor in violation of K.S.A. 2012 Supp. 8-285 and K.S.A. 2012 Supp. 8-287.

On January 7, 2015, Polk pled guilty without a plea agreement to both counts.
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D. Facts Relevant to All Cases

In all three cases, on September 30, 2014, Polk filed simultaneous pro se motions
to withdraw from plea agreements and to dismiss his counsel. On October 10, 2014, the
district court noted that Polk's motion to dismiss counsel was moot due to a conflict. On
December 22, 2014, after a hearing on the issue, the record indicates Polk withdrew his
motions to withdraw his pleas.

On January 21, 2015, the district court sentenced Polk in all three cases. In case
13CR1872, the district court sentenced Polk to a controlling sentence of 24 months of jail
time, suspended to 36 months of probation after he served approximately 270 days in jail.
In case 13CR3278, the district court sentenced Polk to 11 months of prison time,
suspended to 36 months of probation that began after he completed his jail time in the
other cases. Finally, in case 14CR2269, the district court sentenced Polk to a controlling,
underlying sentence of 24 months of jail time, to run consecutive to the other sentences,
with the sentence suspended to 36 months of probation after he served some jail time.
Ultimately, between all three sentences, the district court ordered that Polk serve
approximately 18 months of jail time and 6 months of house arrest, with his probation to
start once he was released from jail.

At some point prior to February 6, 2017, Polk was released from jail and began his
probation sentence. On February 6, 2017, Polk possessed and consumed illicit drugs,
tested with a blood alcohol content above the legal limit, and drove a vehicle while on a
suspended license. Following these actions, the district court issued a warrant for Polk's
arrest on February 10, 2017.

On March 31, 2017, the district court held a probation revocation hearing in all
three cases. The district court determined that Polk violated the terms of his probation in
numerous ways and imposed the underlying sentences in all three cases.
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On April 18, 2017, Polk filed a notice of appeal in all three cases. On June 15,
2017, Polk filed a pro se motion to correct an illegal sentence only in case 13CR1872, but
the district court does not appear to have addressed this motion.

MUST POLK'S CONVICTIONS FOR REFUSING TO SUBMIT TO A CHEMICAL TEST
BE VACATED?

In his first issue on appeal, Polk urges us to vacate his two underlying convictions
for refusing to submit to a chemical test. These convictions occurred as the result of
guilty pleas in cases 13CR1872 and 14CR2269. At the time of the guilty pleas, the basis
for the charges and convictions was K.S.A. 2012 Supp. 8-1025.

Polk is correct that in State v. Ryce, 306 Kan. 682, 700, 396 P.3d 711 (2017), the
Kansas Supreme Court found K.S.A. 2016 Supp. 8-1025 to be facially unconstitutional.
Polk argues that under United States Supreme Court precedents, he cannot be denied his
right to raise the lack of constitutional grounds underlying his convictions, regardless of
statutory restrictions on his right to appeal. Polk believes that because K.S.A. 2016 Supp.
8-1025 was found unconstitutional after he pled guilty and was sentenced, he is entitled
to have his convictions vacated.

The State asserts that this court does not have jurisdiction to hear Polk's appeal as
to his convictions under K.S.A. 2012 Supp. 8-1025 as Polk is directly appealing his
convictions following successful guilty pleas. Specifically, the State asserts that this court
is without jurisdiction as Polk did not raise this appeal from the correct posture, as he has
not filed a motion to withdraw his plea.

This issue involves a question of law over which an appellate court's scope of
review is unlimited. State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016).
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The right to appeal is entirely statutory and is not contained in the United States or
Kansas Constitutions. In Kansas, criminal defendants are granted an appeal as a matter of
statutory right from any judgment against them. See K.S.A. 2017 Supp. 22-3602.
However, K.S.A. 2017 Supp. 22-3602(a) broadly prohibits an appeal of a defendant's
conviction following a guilty plea, stating in relevant part: "No appeal shall be taken by
the defendant from a judgment of conviction before a district judge upon a plea of guilty
or nolo contendere." Moreover, Kansas law is well settled that

"[a] defendant cannot take a direct appeal from a conviction flowing from a guilty plea.
Such defendant must first file a motion to withdraw plea in the district court. If that
motion is denied, a direct appeal may follow. The defendant's failure to file a motion to
withdraw plea in the district court in this case deprives the court of appellate
jurisdiction." State v. Hall, 292 Kan. 862, Syl. ¶ 1, 257 P.3d 263 (2011).

Although a defendant who pleads guilty to a crime can still appeal his or her
sentence, K.S.A. 2017 Supp. 22-3602(a) is a jurisdictional bar to a defendant's appeal of
his or her conviction resulting from a guilty plea. As a result, an accused who enters a
voluntary plea of guilty waives any defects or irregularities occurring in any of the prior
proceedings in district court, "'even though the defects may reach constitutional
dimensions.'" State v. Edgar, 281 Kan. 30, 39, 127 P.3d 986 (2006) (quoting State v.
Melton, 207 Kan. 700, 713, 486 P.2d 1361 [1971]). Contrary to Polk's argument, prior
Kansas cases have analyzed the issue in the context of alleged constitutional violations.
See Melton, 207 Kan. at 713; see also Young v. State, 206 Kan. 318, 319, 478 P.2d 194
(1970) (claim that no probable cause existed for issuance of arrest warrant waived by
guilty plea); Dexter v. Crouse, 192 Kan. 151, 153, 386 P.2d 263 (1963) (conviction
cannot be challenged based on claim of illegal search and seizure when defendant
voluntarily pled guilty); Greenwood v. State, 30 Kan. App. 2d 870, 872, 50 P.3d 105
(2002) (defendant's collateral attack claiming his conduct did not violate statute was
waived by guilty plea).

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Polk acknowledges there are no Kansas cases in support of his position. Instead,
Polk cites several federal decisions in support of his argument. In Blackledge v. Perry,
417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974), a North Carolina penitentiary
inmate, Perry, was convicted of misdemeanor assault in District Court of Northampton
County and sentenced to serve six months at the completion of his prison term. Perry
filed a notice of appeal to the Northampton County Superior Court, which entitled him to
a trial de novo. Instead of proceeding with the de novo trial, the prosecutor obtained a
grand jury indictment charging him with the felony of assault with a deadly weapon with
intent to kill inflicting serious bodily injury. Perry pled guilty and was sentenced to a
five- to seven-year term to be served concurrently with his current identical sentence.
Perry then filed a federal habeas corpus case, claiming a violation of his due process
rights under the Fourteenth Amendment to the United States Constitution. The Court
specifically considered "whether, because of his guilty plea to the felony charge in the
Superior Court, Perry is precluded from raising his constitutional claims in this federal
habeas corpus proceeding." 417 U.S. at 29. The Court concluded that Perry could proceed
in his federal case to raise a constitutional claim notwithstanding his guilty plea in state
court. 417 U.S. at 31.

Clearly, that is not the case here. First, Polk is directly appealing a criminal
conviction, entered upon a plea of guilty, in state court. Second, Blackledge is limited to
the facts of the case: The State was punishing Perry for appealing his conviction by filing
a felony, rather than a misdemeanor, charge. Third, Blackledge does not address a statute
of conviction that was later declared unconstitutional.

Also cited by Polk, Menna v. New York, 423 U.S. 61, 96 S. Ct. 241, 46 L. Ed. 2d
195 (1975), is likewise distinguishable. In Menna, the defendant was adjudicated in
contempt of court under a New York state law for failing to testify before a grand jury
and sentenced to 30 days in civil jail. The next year, he was indicted for his refusal to
answer questions before the grand jury. After unsuccessfully asserting the Double
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Jeopardy Clause, he pled guilty and was sentenced. Certiorari was granted to review a
judgment of the New York Court of Appeals affirming the conviction. The Court held
that where the State was precluded by the Double Jeopardy Clause from haling a
defendant into court on a charge, federal law required that a conviction on that charge be
set aside even if the conviction was entered pursuant to a counseled plea of guilty. The
Court reversed the judgment of the New York Court of Appeals and remanded the case
for a determination of defendant's double jeopardy claim on the merits. 423 U.S. at 62-
63. This case is also not analogous to Polk's situation.

Additionally, in Tollett v. Henderson, 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d
235 (1973), a case cited by many federal decisions on the issue, the Court reached the
opposite conclusion than the Court in Blackredge and Mann. Tollett involved the alleged
unconstitutional exclusion of African-Americans from a grand jury which had indicted
Henderson. Henderson later pled guilty to murder and challenged his conviction on his
constitutional right to have a properly selected grand jury. The Court rejected the
argument and held that "[f]or nearly a hundred years it has been established that the
Constitution prohibits a State from systematically excluding Negroes from serving upon
grand juries that indict for crime and petit juries that try the factual issue of the guilt or
innocence of the accused." 411 U.S. at 261. Nonetheless, the Court further held that

"after a criminal defendant pleads guilty, on the advice of counsel, he is not automatically
entitled to federal collateral relief on proof that the indicting grand jury was
unconstitutionally selected. The focus of federal habeas inquiry is the nature of the advice
and the voluntariness of the plea, not the existence as such of an antecedent constitutional
infirmity." 411 U.S. at 266.

Polk also cites Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718, 193 L. Ed.
2d 599 (2016), in support of his position. The Montgomery Court held where a new
substantive rule of constitutional law controls the outcome of a case, the Constitution
requires state collateral review courts to give retroactive effect to that rule. 136 S. Ct. at
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736. However, Polk has cited the case out of context. There is no new substantive rule of
constitutional law at play in this case.

Polk further argues that a recently decided case, Class v. United States, 583 U.S.
____, 138 S. Ct. 798, 200 L. Ed. 2d 37 (2018), requires us to find in his favor. Class pled
guilty in United States District Court for the District of Columbia to possession of a
firearm on U.S. Capitol grounds. Class had a written plea agreement that set forth the
terms of his guilty plea, but that agreement said nothing about the right to raise on direct
appeal a claim that the statute of conviction was unconstitutional. After sentencing, Class
filed a direct federal appeal challenging the constitutionality of the statute of conviction.
On appeal, the question was "whether a guilty plea by itself bars a federal criminal
defendant from challenging the constitutionality of the statute of conviction on direct
appeal." 138 S. Ct. at 803. The United States Supreme Court held a guilty plea itself does
not bar a federal criminal defendant of making such a challenge on direct appeal.
However, the holding was limited to the circumstances of that particular case and
specifically limited to a "federal criminal defendant." 138 S. Ct. at 803.

"In sum, the claims at issue here do not fall within any of the categories of claims that
Class' plea agreement forbids him to raise on direct appeal. They challenge the
Government's power to criminalize Class' (admitted) conduct. They thereby call into
question the Government's power to "'constitutionally prosecute'" him. A guilty plea does
not bar a direct appeal in these circumstances." 138 S. Ct. at 805.

There are similarities between Class and the present case in that Class challenged
the constitutionality of the statute of conviction. But the Class Court appears to base its
ruling on federal law, including an examination of federal criminal procedure. It also
appears to be limited to a "federal criminal defendant." There is no United States
Supreme Court case analogous to Polk's situation.

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The right to appeal in Kansas is purely based on Kansas statutory law. The right to
appeal within the federal system remains within federal statutes. Because the right to
appeal is entirely statutory within each individual system, we find that the holding in
Class does not affect the longstanding rule under Kansas law that Polk cannot directly
appeal his state criminal convictions following a guilty plea, even when a constitutional
issue is raised. Edgar, 281 Kan. at 39. There is no indication from the language in Class
that it is meant to apply to anything except federal appeals. The line of United States
Supreme Court cases discussed herein remain applicable to the individual facts of each
case.

In sum, we continue to follow Kansas law which provides no exception to the rule
that a direct appeal of a criminal conviction cannot be taken following a guilty plea
without first filing a motion to withdraw plea in district court.

While K.S.A. 2012 Supp. 8-1025 was declared unconstitutional after Polk pled
guilty and was sentenced, Polk was not without any remedy. Kansas law provides Polk
with adequate remedies to raise his constitutional claims against his convictions outside
of a direct appeal. While K.S.A. 2017 Supp. 22-3602(a) says "[n]o appeal shall be taken
by the defendant from a judgment of conviction before a district judge upon a plea of
guilty or nolo contendere," the statute goes on to allow appeals on "other grounds going
to the legality of the proceedings . . . as provided in K.S.A. 60-1507."

Polk could have filed a motion to withdraw his plea postconviction pursuant to
K.S.A. 2017 Supp. 22-3210(d)(2). This was the procedure outlined by the Kansas
Supreme Court in State v. Hall, 292 Kan. 862, Syl. ¶ 1, 257 P.3d 263 (2011).

Polk does not argue why this procedure is insufficient to protect his constitutional
claim. And if Polk were unsuccessful on a motion to withdraw plea, K.S.A. 2017 Supp.
22-3602(a) does not preclude a defendant who has pled guilty or nolo contendere from
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taking a direct appeal from the district court's denial of a motion to withdraw the plea.
See State v. Solomon, 257 Kan. 212, 218-19, 891 P.2d 407 (1995).

As Polk has failed to demonstrate why this court should ignore the statutory
prohibition in K.S.A. 2017 Supp. 22-3602, this court is without jurisdiction to hear his
direct appeal of his criminal convictions for refusing to submit to a chemical test.

Beyond this jurisdictional bar to Polk's claim, Polk's direct appeal of these two
convictions is also untimely. Polk had 14 days from his sentencing to raise a direct appeal
against his convictions. See K.S.A. 2017 Supp. 22-3608(c). The district court sentenced
Polk on January 21, 2015. Polk filed this appeal on April 18, 2017, over two years after
the deadline to file a direct appeal of his conviction. For this additional reason, Polk's
appeal of this issue is without merit.

In the event Polk's appeal might be construed as a motion to correct an illegal
sentence, he is still not entitled to relief. An "illegal sentence" as contemplated by K.S.A.
2017 Supp. 22-3504(1) is "'(1) a sentence imposed by a court without jurisdiction; (2) a
sentence that does not conform to the applicable statutory provision, either in the
character or the term of the authorized punishment; or (3) a sentence that is ambiguous
with respect to the time and manner in which it is to be served. [Citations omitted.]'"
State v. Gray, 303 Kan. 1011, 1014, 368 P.3d 1113 (2016).

K.S.A. 2017 Supp. 22-3504(1) provides that a court may correct an illegal
sentence at any time. A defendant may challenge a sentence even for the first time on
appeal. State v. Fisher, 304 Kan. 263, 264, 373 P.3d 781 (2016). However, generally, a
sentence is not illegal if it is illegal only due to a constitutional violation. State v. Lee,
304 Kan. 416, 418, 372 P.3d 415 (2016). Thus, even if the court were to construe Polk's
argument as a motion to correct illegal sentence, he is not entitled to relief.

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A final problem with Polk's position is that Polk is appealing underlying
convictions within the context of a direct appeal from a probation revocation hearing. A
timely, direct appeal of a probation revocation can only be related to the matters
surrounding the probation revocation proceeding itself. "The appeal of a probation
revocation may properly be considered a 'direct appeal' thereof, but it may not raise issues
related to the original conviction or sentence." Wilkerson v. State, 38 Kan. App. 2d 732,
734, 171 P.3d 671 (2007).

For all of these reasons, we hold that Polk is not entitled to relief on his first issue.

DID THE DISTRICT COURT ERR IN SENTENCING POLK
TO 36 MONTHS OF PROBATION IN 13CR3278?

In Polk's second issue on appeal, he argues that his sentence in 13CR3278 is
illegal because it does not conform to the applicable statutory provisions found at K.S.A.
2017 Supp. 21-6608(c)(3) and (5). Polk admits he did not raise this issue at the trial court
level; however, K.S.A. 2017 Supp. 22-3504(1) provides that a court may correct an
illegal sentence at any time.

K.S.A. 2017 Supp. 21-6608(c)(3) provides that "in felony cases sentenced at
severity levels 9 and 10 on the sentencing guidelines grid for nondrug crimes . . . if a
nonprison sanction is imposed, the court shall order the defendant to serve a period of
probation of up to 12 months." In 13CR3278, Polk was convicted of criminal threat, a
severity level 9 person felony, and placed on probation. However, instead of ordering
Polk to serve a period of 12 months of probation, the district court ordered 36 months.

K.S.A. 2017 Supp. 21-6608(c)(5) permits the district court to impose a longer
period of probation than the terms found at (c)(3) "if the court finds and sets forth with
particularity the reasons for finding that the safety of the members of the public will be
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jeopardized or that the welfare of the inmate will not be served by the length of the
probation terms provided in subsection (c)(3) . . . the court may impose a longer period of
probation."

At the sentencing hearing on January 21, 2015, the district court made a number of
findings relevant to all three cases for which Polk was being sentenced. These comments
referred to Polk's significant history with alcohol. While sentencing Polk in 13CR1872,
the district court referred to Polk as "an alcoholic." The district court went on to state:

"And my problem, Mr. Polk, is that you have shown absolutely no respect for any of the
traffic laws, including and up to and including what is one of the more violent crimes in
our community and that is drinking and driving. There is a lot of crimes you can do
where nobody gets killed. This is a crime where a lot of people get killed.
. . . .
". . . That's the way it goes, but with you, you're not supposed to be driving,
you're not supposed to be drinking, Lord knows you're not supposed to be doing both and
you've done it over and over again. You've got caught probably one out of the 50 times
you've done it."

The district court then turned to 13CR3278:

"So okay then, in Count—in second case he'll be, I'm going to go ahead and
sentence him to the high number, 11 months in the custody of the Secretary of
Corrections with 12 months post release supervision. I will go ahead and approve
probation from the confinement portion of that sentence for a period of right now 36
months. I'll specifically make the finding under the statute under the nature and
circumstances of his alcoholism, his prior criminal history, which does include mostly
traffic stuff and so forth, but clearly serious alcohol problems. I assume, based upon what
I know, that he was [under] the influence when this occurred, and so I think that it is
justified to have an extended probation period of 36 months in that case. If we get to the
point we've gone through treatment and got everything taken care of and we need to
reduce that, then I'll certainly consider that at some point."
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Before us, Polk argues the district court failed to articulate the public safety or
welfare findings with particularity. The State has failed to respond to this argument;
however, the State's failure does not preclude meaningful review. When something is to
be set forth with particularity, it must be distinct rather than general, with exactitude of
detail, especially in description or stated with attention to a concern with details. State v.
Huskey, 17 Kan. App. 2d 237, Syl. ¶ 2, 834 P.2d 1371 (1992). Identifying specific needs
of the defendant or specific ways the defendant threatens the community are sufficient to
overcome the particularity requirement. See State v. McIntyre, 30 Kan. App. 2d 705, 709,
46 P.3d 1212 (2002); State v. Bledsoe, No. 111,955, 2015 WL 5036821, at * 3-4 (Kan.
App. 2015) (unpublished opinion).

With regard to the safety risk Polk presented to the community, while the district
court generally referenced Polk's prior criminal history in its findings, when considered in
the context of the entire sentencing hearing, it is clear the district court was referring to
the fact that Polk was also being sentenced that day on his ninth and tenth lifetime DUI
convictions. The district court spent considerable time outlining the severe risk Polk
presented to the community and his past failures at rehabilitation from alcohol. The
district court also noted Polk's continued need for treatment and showed a willingness to
reduce Polk's probation if he was successful on probation. Considering past rehabilitation
efforts had clearly failed Polk, the district court recognized a need for a longer probation
period to assist Polk with his sobriety. We hold the district court's findings set forth, with
sufficient particularity, reasons for finding both the safety of the members of the public
would have been jeopardized, and Polk's welfare not served, by 12 months of probation.

Affirmed.

* * *
ATCHESON, J., concurring: I concur in the result the majority reaches on the first
issue Defendant Russeller W. Polk has raised on appeal. He has failed to assert any valid
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legal ground to set aside his convictions for violating K.S.A. 2012 Supp. 8-1025. I join in
the majority opinion as to the second issue, rejecting his challenge to the Sedgwick
County District Court's decision to place him on probation for 36 months for felony
criminal threat as permitted by K.S.A. 21-6608 (c)(5).