State v. Lira ( 2021 )


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  •                            NOT DESIGNATED FOR PUBLICATION
    No. 122,259
    IN THE COURT OF APPEALS OF THE STATE OF KANSAS
    STATE OF KANSAS,
    Appellee,
    v.
    ARMANDO CIPRIANO LIRA,
    Appellant.
    MEMORANDUM OPINION
    Appeal from Wyandotte District Court; JENNIFER L. MYERS, judge. Opinion filed March 26,
    2021. Affirmed.
    Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.
    Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
    Schmidt, attorney general, for appellee.
    Before BRUNS, P.J., GREEN and ATCHESON, JJ.
    PER CURIAM: Armando Lira appeals his aggravated robbery, aggravated assault,
    and driving with a suspended license convictions. Lira argues that we should reverse his
    convictions because, after his warrantless arrest, the trial court did not promptly make a
    judicial determination of probable cause in violation of his rights under the Fourth
    Amendment to the United States Constitution and K.S.A. 2020 Supp. 22-2901(1).
    Nevertheless, because Lira's argument is not warranted by law and fact, we affirm his
    convictions.
    1
    Background
    On October 17, 2018, around 9:20 p.m., Joshua Wells reported to the police that
    Armando Lira had just driven away in his tow truck after forcing him out of his tow truck
    at gunpoint, threatening Wells with his own handgun. Because Wells' tow truck
    contained a GPS tracker, the police quickly located Wells' tow truck within minutes of
    Wells' report. When the police arrested Lira around 9:30 p.m., Lira was walking away
    from Well's tow truck with Well's handgun near his feet.
    Two days after his warrantless arrest, on October 19, 2018, a trial judge signed
    Lira's arrest warrant. Three days after this on October 22, 2018, the State charged Lira
    with kidnapping, aggravated robbery, aggravated assault, theft, criminal damage to
    property, and driving with a suspended license. At this same time on October 22, 2018,
    the court clerk certified Lira's arrest warrant. Significantly, this was the same arrest
    warrant that the trial judge had already signed sometime on October 19, 2018. Then, the
    next day, October 23, 2018, the trial court held Lira's first appearance.
    The transcript of Lira's first appearance is not in the record on appeal. Even so,
    because the trial court did not dismiss the State's charges against Lira, it is readily
    apparent that at his first appearance, the trial court determined that probable cause
    supported Lira's warrantless arrest five days earlier on October 17, 2018, around 9:30
    p.m.
    Next, before his jury trial, Lira moved to dismiss the State's charges against him.
    In his motion to dismiss, Lira argued that the trial court's failure to timely conduct a
    probable cause hearing following his warrantless arrest violated his rights under the
    Fourth Amendment. In making this argument, Lira pointed to the United States Supreme
    Court's holding in County of Riverside v. McLaughlin, 
    500 U.S. 44
    , 56, 
    111 S. Ct. 1661
    ,
    
    114 L. Ed. 2d 49
     (1991). The Court held that the Fourth Amendment requires a judicial
    2
    determination of probable cause following a defendant's warrantless arrest to occur
    within 48 hours of that defendant's warrantless arrest. 
    500 U.S. at 56-57
    . Lira then
    asserted that the five-day delay between his warrantless arrest and probable cause
    determination at his first appearance prejudiced his defense because the delay prevented
    him from being "released [from jail] to obtain the legal representation of his choice."
    The State responded that Lira's motion was meritless because regardless of when
    Lira's first appearance occurred, a trial judge signed Lira's arrest warrant within two days
    of his arrest. The State further responded that even if the trial court did not timely make a
    judicial determination of probable cause in violation of K.S.A. 22-2901(1), dismissal of
    its charges against Lira was an extreme sanction not warranted under the facts of Lira's
    case.
    The trial court held a hearing on Lira's motion. Although Lira's written motion to
    dismiss focused on a potential violation of the Fourth Amendment at the hearing, Lira
    also argued that an unnecessary delay between his warrantless arrest and the trial court's
    probable cause determination at his first appearance violated his rights under K.S.A. 22-
    2901(1). In the end, however, the trial court denied Lira's motion. The trial court agreed
    with the State's argument, ruling that a timely judicial determination of probable cause
    occurred in Lira's case because a trial judge signed Lira's arrest warrant just two days
    after his warrantless arrest.
    After denying Lira's motion to dismiss, the trial court held Lira's jury trial. At the
    conclusion of his trial, the jury found Lira guilty of aggravated robbery, aggravated
    assault, and driving with a suspended license. The jury was unable to reach a unanimous
    verdict on Lira's kidnapping, theft, and criminal damage to property charges. The trial
    court then sentenced Lira to a controlling term of 259 months' imprisonment followed by
    36 months' postrelease supervision.
    3
    Lira timely appealed.
    Whether a trial court violated a defendant's right to a prompt judicial
    determination of probable cause following his or her warrantless arrest constitutes a
    question of law over which this court exercises unlimited review. See Doe v. Thompson,
    
    304 Kan. 291
    , 307, 
    373 P.3d 750
     (2016) (holding that "'[w]hen the application of a statute
    is challenged on constitutional grounds, [an appellate] court exercises an unlimited, de
    novo standard of review'"), overruled on other grounds by State v. Petersen-Beard, 
    304 Kan. 192
    , 
    377 P.3 1127
     (2016); see also State v. Garcia, 
    282 Kan. 252
    , 260, 
    144 P.3d 684
     (2006) (holding that an appellate court's review over the trial court's denial of a
    defendant's motion to dismiss hinges on the ground on which the defendant sought
    dismissal).
    Following a warrantless arrest, the Fourth Amendment requires a prompt judicial
    determination of probable cause. Gerstein v. Pugh, 
    420 U.S. 103
    , 114, 
    95 S. Ct. 854
    , 
    43 L. Ed. 2d 54
     (1975). To be considered prompt for Fourth Amendment purposes, a judicial
    determination of probable cause must occur within 48 hours of a defendant's warrantless
    arrest. McLaughlin, 
    500 U.S. at 56-57
    . Yet, even if a defendant establishes that there was
    an untimely judicial determination of probable cause following his or her warrantless
    arrest, the "appropriate remedy for failure to conduct a timely probable cause hearing will
    depend on the particular facts and circumstances of the case." State v. Hershberger, 
    27 Kan. App. 2d 485
    , Syl. ¶ 2, 
    5 P.3d 1004
     (2000). Also, in such cases, the "dismissal of
    charges is an extreme remedy only warranted if the prolonged detention substantially
    impedes a defendant's ability to prepare a defense." 
    27 Kan. App. 485
    , Syl. ¶ 2.
    In Kansas, K.S.A. 22-2901(1) also requires the prompt judicial determination of
    probable cause following a defendant's warrantless arrest. In relevant part, K.S.A. 2020
    Supp. 22-2901(1) provides that if the defendant's "arrest has been made on probable
    cause, without a warrant, he shall be taken without unnecessary delay before the nearest
    4
    available magistrate and a complaint shall be filed forthwith." Under K.S.A. 22-2901(1),
    "[w]hether a delay is unreasonable or prejudicial must depend on the facts and
    circumstances of each case." State v. Crouch, 
    230 Kan. 783
    , 786, 
    641 P.2d 394
     (1982).
    Still, K.S.A. 22-2901(1) "provides no sanctions in the event there is unnecessary delay in
    taking a person under arrest before the nearest available magistrate." State v. Wakefield,
    
    267 Kan. 116
    , 123, 
    977 P.2d 941
     (1999). Furthermore, "[a]n unwarranted delay in taking
    the accused before a magistrate after he or she has been arrested is not in itself a denial of
    due process unless it has in some way prejudiced the right of the accused to a fair trial."
    Wakefield, 
    267 Kan. 116
    , Syl. ¶ 6.
    Thus, regardless of whether a defendant's challenge falls under the Fourth
    Amendment or K.S.A. 22-2901(1), to be entitled to dismissal of the State's charges based
    on the trial court's untimely judicial determination of probable cause following a
    defendant's warrantless arrest, the defendant must prove the following three things: (1)
    that there was an unnecessary delay in the judicial determination of probable cause
    following his or her warrantless arrest; (2) that this unnecessary delay prejudiced his or
    her defense; and (3) that this unnecessary delay prejudiced his or her defense to an extent
    that the only equitable remedy available is dismissal of the State's charges.
    On appeal, Lira argues that the five-day delay between his warrantless arrest and
    the trial court's probable cause determination at his first appearance violated his rights
    under the Fourth Amendment and K.S.A. 22-2901(1). In making this argument, Lira
    concedes that a trial judge signed his arrest warrant two days after his warrantless arrest.
    Nonetheless, Lira points out that there is no evidence concerning the exact time when the
    trial judge signed his arrest warrant. As a result, Lira asserts that despite signing his arrest
    warrant two days after his warrantless arrest, the trial judge may have signed his arrest
    warrant more than 48 hours after his warrantless arrest. Thus, according to Lira, this
    means that the record does not definitively establish that the trial court made a prompt
    5
    determination of probable cause after his warrantless arrest as required under the Fourth
    Amendment to the United States Constitution and K.S.A. 22-2901(1).
    Alternatively, Lira argues that regardless of when the trial judge signed his arrest
    warrant, the act of signing his arrest warrant does not satisfy K.S.A. 22-2901(1)'s
    requirement to have a prompt probable cause hearing before a magistrate judge. Lira then
    asserts that the trial court's failure to make a prompt probable cause determination
    following his warrantless arrest prejudiced his defense because it "prevented him from
    marshalling the resources he needed to secure an attorney and develop a defense."
    Indeed, the preceding argument is Lira's sole argument about why the five-day delay
    between his warrantless arrest and the trial court's probable cause determination at his
    first appearance prejudiced his defense. Nevertheless, there are significant problems with
    Lira's arguments.
    To begin with, Lira argues that the trial judge may have signed his arrest warrant
    more than 48 hours after his warrantless arrest. The police arrested Lira around 9:30 p.m.
    on Wednesday, October 17, 2018. Thus, the burden was on Lira to show a McLaughlin
    and a K.S.A. 22-2901(1) violation had occurred between October 17, 2018, and October
    19, 2018. Here, it is undisputed that a trial judge signed Lira's arrest warrant at some point
    on Friday, October 19, 2018. Because Lira has shown no 48-hour violation, he has failed
    to establish that the trial court made an untimely probable cause determination. See First
    Nat'l Bank & Trust Co. v. Lygrisse, 
    231 Kan. 595
    , 602, 
    647 P.2d 1268
     (1982) (holding
    that "[o]n appeal, error below is never presumed and the burden is on the appellant to
    make it affirmatively appear").
    Next, notwithstanding the preceding problem, Lira's argument concerning how the
    five-day delay between his warrantless arrest and the trial court's probable cause
    determination at his first appearance prejudiced his defense is fatally flawed. As the State
    correctly points out in its brief, even if the trial court's probable cause determination
    6
    following Lira's warrantless arrest was untimely, the record on appeal entirely
    undermines Lira's contention that the trial court's untimely determination of probable
    cause in his case "prevented him from marshalling the resources he needed to secure an
    attorney and develop a defense."
    For example, the record on appeal shows that Lira never retained an attorney to
    represent him in his criminal case. Instead, appointed counsel represented Lira
    throughout the pendency of his criminal case. And appointed counsel continues to
    represent Lira on appeal. Also, although the trial court set Lira's bond at his first
    appearance at $75,000, it seems Lira lacked the resources to bond out of jail because he
    remained in jail throughout the pendency of his criminal case. In short, the record on
    appeal clearly establishes that Lira had no resources available to bond out of jail let alone
    to retain an attorney to develop his defense.
    Based on the preceding, it is readily apparent that Lira's contention that the five-
    day delay between his warrantless arrest and the trial court's probable cause
    determination at his first appearance prejudiced his defense because it "prevented him
    from marshalling the resources he needed to secure an attorney and develop a defense" is
    meritless. Because Lira is not entitled to any remedy or sanction for the trial court's
    allegedly untimely determination of probable cause contrary to his Fourth Amendment
    and K.S.A. 22-2901(1) rights absent a showing of prejudice, Lira's failure to establish
    prejudice is fatal. See Wakefield, 
    267 Kan. 116
    , Syl. ¶ 6; Hershberger, 
    27 Kan. App. 485
    ,
    Syl. ¶ 2.
    Finally, it is important to note that in his brief, Lira never explains how the
    outcome of his case would have been different had he been able to retain counsel during
    the five-day delay between his warrantless arrest and the trial court's probable cause
    determination at his first appearance. Nor does Lira allege that his appointed counsel's
    representation of him was somehow prejudiced by this five-day delay. It is a well-known
    7
    rule that "[c]onclusory contentions without evidentiary basis are not sufficient for relief."
    Gilkey v. State, 
    31 Kan. App. 2d 77
    , 82, 
    60 P.3d 351
     (2003). In this case, even if we were
    to ignore the evidence indicating (1) that Lira failed to meet his burden to show that the
    trial court made an untimely probable cause determination following Lira's arrest and (2)
    that Lira could not afford to retain an attorney regardless of any untimely judicial
    determination of probable cause, Lira's argument that the trial court wrongly denied his
    motion to dismiss would still fail because Lira neither explains nor shows how his inability
    to retain counsel during the five-day delay between his warrantless arrest and the trial
    court's probable cause determination at his first appearance actually negatively affected his
    defense.
    Thus, for each of the preceding reasons, we affirm the trial court's denial of Lira's
    motion to dismiss.
    Affirmed.
    8
    

Document Info

Docket Number: 122259

Filed Date: 3/26/2021

Precedential Status: Non-Precedential

Modified Date: 3/26/2021