State v. Duncan ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,965
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
KEVIN J. DUNCAN,
Appellant.
MEMORANDUM OPINION
Appeal from Cherokee District Court; OLIVER KENT LYNCH, judge. Opinion filed October 30,
2020. Affirmed.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., MALONE, J., and WALKER, S.J.
PER CURIAM: Kevin J. Duncan appeals the dismissal of his motion to correct an
illegal sentence. He contends he pled twice to the same crime. He was pursued by police
through two counties and both counties later charged and convicted him of fleeing and
eluding law enforcement. He contends that the second conviction violated the Double
Jeopardy Clause of the Fifth Amendment to the United States Constitution. The State
responds that Duncan cannot bring this type of claim in a motion to correct an illegal
sentence and that he waived the claim by pleading no contest. We agree with the State
and affirm the district court's dismissal of his motion.
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FACTS
In May 2016, Duncan led police on a high-speed chase beginning in Cherokee
County and ending in Crawford County. The officers who began chasing Duncan in
Cherokee County stopped pursuit when Duncan crossed the Crawford County line and
Crawford County officers picked up the pursuit. He was first arrested and charged in
Crawford County. On April 26, 2017, he pled guilty to one count of aggravated assault on
a law enforcement officer and one count of fleeing and eluding law enforcement in
Crawford County. In July 2017, the Crawford County District Court sentenced him to
prison.
One day prior to his guilty plea in Crawford County, Duncan was charged in
Cherokee County with one count of aggravated assault on a law enforcement officer, nine
counts of aggravated assault, two counts of criminal threat, four counts of aggravated
child endangerment, and one count of fleeing and eluding law enforcement.
In October 2017, he pled no contest in Cherokee County to one count of
aggravated assault and one count of fleeing and eluding. In exchange, the State dismissed
the remaining 15 counts. The Cherokee County District Court sentenced him to 38
months in prison to run consecutive to the Crawford County sentence.
Duncan later filed a motion to correct an illegal sentence under K.S.A. 22-3504,
arguing that the Cherokee County District Court lacked jurisdiction to convict him
because the events in this case were identical to those for which he was convicted in
Crawford County District Court, in violation of the Double Jeopardy Clause. The district
court summarily denied the motion because the assault charges in each county had
different victims and Duncan fled from different law enforcement officers. The district
court found they were different crimes committed in two different counties, not one crime
committed across two counties.
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Duncan timely appeals.
ANALYSIS
On appeal, Duncan focuses on his fleeing and eluding convictions in the two
counties. He argues his fleeing and eluding through both counties was an ongoing offense
and that he could have been prosecuted in either Crawford or Cherokee County, but not
both. He cites venue statutes and the Double Jeopardy Clause. He argues that even
though it spanned multiple counties, there was a single police pursuit and therefore his
prosecution in both counties was a violation of the Double Jeopardy Clause.
The State does not directly respond to Duncan's double jeopardy claim; rather the
State argues that Duncan cannot properly raise this issue in a motion to correct a sentence
and that he waived any double jeopardy violation when he pled no contest. The State
contends that double jeopardy is not a jurisdictional bar.
The State's asserted barriers to Duncan's claim are not the same ones on which the
district court based its decision. However, if a district court reaches the correct result, its
decision can be upheld even though it relied on the wrong ground or assigned erroneous
reasons for its decision. See State v. Overman, 301 Kan. 704, 712, 348 P.3d 516 (2015).
The illegal sentence statute has limited application. For a sentence to be "illegal"
under K.S.A. 22-3504 it must (1) have been imposed by a court without jurisdiction; (2)
not conform to the applicable statutory provisions, either in character or punishment; or
(3) be ambiguous with respect to the time and manner in which it is to be served. K.S.A.
2019 Supp. 22-3504(c)(1). Whether a sentence is illegal within the meaning of K.S.A.
22-3504 is a question of law over which this court has unlimited review. State v. Lee, 304
Kan. 416, 417, 372 P.3d 415 (2016).
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An accused person who pleads guilty or no contest waives the right to appeal his
or her conviction. A guilty or no contest plea generally waives "all nonjurisdictional
defects" including claims that the accused's constitutional rights were violated. State v.
Reu-El, 306 Kan. 460, 474-75, 394 P.3d 884 (2017); see K.S.A. 2019 Supp. 22-3208(4);
K.S.A. 2019 Supp. 22-3602(a).
Assuming Duncan is correct that his fleeing and eluding through both counties
constituted the same crime, the issue here is whether Cherokee County had jurisdiction to
prosecute Duncan after he was convicted in Crawford County. If Cherokee County did
not have jurisdiction to prosecute Duncan, then his claim was properly brought in a
motion to correct an illegal sentence and it would not matter that he pled no contest to the
crime.
Jurisdiction is acquired in a criminal case upon the filing of a complaint,
indictment, or information. State v. Edwards, 281 Kan. 1334, 1338, 135 P.3d 1251
(2006). Venue is jurisdictional. State v. Castleberry, 48 Kan. App. 2d 469, 474, 293 P.3d
757 (2013). Prosecution of a crime in Kansas is in the county where the crime was
committed. K.S.A. 22-2602. When "two or more acts are requisite to the commission of
any crime and such acts occur in different counties the prosecution may be in any county
in which any of such acts occur." K.S.A. 22-2603. If a crime is committed in a vehicle
and it cannot readily be determined in which county the crime was committed,
prosecution may be in any county through which such vehicle passed or in which such
travel commenced or terminated. K.S.A. 22-2608. Under these statutes, venue was proper
in Cherokee and Crawford Counties. Both counties had jurisdiction to prosecute Duncan.
Jurisdiction was acquired in both counties when the complaints were filed.
The Double Jeopardy Clause protects individuals from a second prosecution for
the same offense after conviction and from multiple punishments for the same offense.
Edwards, 281 Kan. at 1338. Once a guilty or no contest plea has been accepted by the
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court, the accused has been placed in jeopardy. State v. Fisher, 233 Kan. 29, 34, 661 P.2d
791 (1983). Kansas has codified the constitutional protection against double jeopardy in
K.S.A. 2019 Supp. 21-5110. A prosecution of a defendant is barred if the defendant was
formerly prosecuted for the same crime, based upon the same facts, if such former
prosecution resulted in a conviction. State v. Hanson, 280 Kan. 709, 711, 124 P.3d 486
(2005).
Citing United States v. Broce, 488 U.S. 563, 569-76, 109 S. Ct. 757, 102 L. Ed. 2d
927 (1989), our Supreme Court has held a defendant generally waives a double jeopardy
challenge by pleading guilty or no contest. Noyce v. State, 310 Kan. 394, 401-02, 447
P.3d 355 (2019). The court has further reasoned that because a guilty plea waives claims
of double jeopardy, double jeopardy is not a jurisdictional defect and a double jeopardy
violation is in turn not an illegal sentence. Edwards, 281 Kan. at 1341.
In Broce, the defendants were charged with conspiracy in two separate
indictments. The first indictment charged the defendants with entering into an agreement
in April 1978 to rig bids on a particular highway project. The second indictment charged
the defendants with entering into a similar agreement in July 1979 to rig bids on a
different project. The defendants pled guilty to both. Later, the defendants filed a motion
to vacate their sentences arguing that the bid-rigging scheme was a single conspiracy.
The Court held that when the defendants pled guilty to two charges of conspiracy on the
explicit premise of two separate agreements, they conceded guilt to two separate offenses
and thereby waived their entitlement to attempt to show the existence of only one
conspiracy. 488 U.S. at 571. The Court held the defendants' double jeopardy challenge
was foreclosed by their guilty pleas. 488 U.S. at 565. But the Court noted there were
exceptions to the general rule that a guilty plea results in the waiver of a double jeopardy
claim. 488 U.S. at 574-75.
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One of those exceptions is that a guilty plea will not necessarily result in a waiver
of a double jeopardy claim when the charge, judged on its face, is one which the State
may not constitutionally prosecute. In re Application of Coulter, 18 Kan. App. 2d 795,
798-99, 860 P.2d 51 (1993) (citing Menna v. New York, 423 U.S. 61, 63 n.2, 96 S. Ct.
241, 46 L. Ed. 2d 195 [1975]). In Menna, the indictment was facially duplicative of an
earlier offense of which the defendant had been convicted and sentenced. See Broce, 488
U.S. at 575-76. If a double jeopardy violation is apparent on the face of the indictment or
the record existing at the time the plea was entered, it is not necessarily waived. Thomas
v. Kerby, 44 F.3d 884, 888 (10th Cir. 1995). In Broce, this exception did not apply
because the defendants had pleaded guilty to indictments that on their face described
separate conspiracies. 488 U.S. at 576. The defendants could not prove their claim "by
relying on those indictments and the existing record. Indeed, as noted earlier, they cannot
prove their claim without contradicting those indictments, and that opportunity is
foreclosed by the admissions inherent in their guilty pleas." 488 U.S. at 576.
Here, a parallel to Broce can be made. Looking only at the face of the complaint it
is not apparent whether there was a single pursuit or two separate pursuits. But Broce and
Menna can also be distinguished because the factual basis given at the plea hearing here
did imply a single pursuit. The prosecutor said, "[T]he pursuit crossed into Crawford
County." However, Duncan does not attempt to make this argument or distinguish any of
the numerous cases we have noted. He did not reply to the State's brief at all. And an
issue not briefed is deemed waived or abandoned. State v. Arnett, 307 Kan. 648, 650, 413
P.3d 787 (2018). He has not shown that the general rule—precluding a double jeopardy
claim after a no contest plea—should be abandoned here. And in turn he has not shown
that his sentence is illegal within the meaning of K.S.A. 2019 Supp. 22-3504(c)(1).
Jurisdiction was acquired in both counties upon the filing of the complaints. See Trotter
v. State, 288 Kan. 112, 126-27, 200 P.3d 1236 (2009).
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Moreover, the Noyce court disapproved of the defendants remaining quiet about
double jeopardy concerns in the district court and then raising the issue on appeal to
obtain a more lenient sentence when, had the issue been raised before the district court,
the State could have withdrawn or amended its plea offer. 310 Kan. at 405-06. Here, the
State dismissed 15 counts in exchange for Duncan's plea to two counts. If Duncan had
made a timely complaint about double jeopardy in Cherokee County, the State could have
simply chosen a different charge for its plea offer.
In short, Duncan has not demonstrated he is entitled to the relief he seeks through
a motion to correct an illegal sentence.
Affirmed.
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