State v. Overman

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 105,504
STATE OF KANSAS,
Appellee,
v.
LARRY G. OVERMAN,
Appellant.
SYLLABUS BY THE COURT
1.
The State has the burden of proving that a search and seizure was lawful.
2.
A warrantless search by a police officer is per se unreasonable under the Fourth
Amendment to the United States Constitution, unless the State can fit the search within
one of the recognized exceptions to the warrant requirement. One of those exceptions is
probable cause plus exigent circumstances, a subclass of which is known as the
automobile exception.
3.
Under the automobile exception, the mobility of the vehicle establishes the
requisite exigency, thereby permitting a vehicle search based on probable cause alone.
Probable cause to search the vehicle can be established if the totality of the circumstances
indicates there is a fair probability that the vehicle contains contraband or evidence.
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4.
Multiplicity occurs when a single offense is charged in more than one count of the
charging document and such double charging is proscribed because it creates the
potential for multiple punishments for a single crime in contravention of the Double
Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section
10 of the Kansas Constitution Bill of Rights.
5.
In considering a double jeopardy issue, the overarching inquiry is whether the
convictions are for the same offense. There are two components to this inquiry, both of
which must be met for there to be a double jeopardy violation: (1) Do the convictions
arise from the same conduct? and (2) By statutory definition are there two offenses or
only one?
6.
If the double jeopardy issue arises from multiple convictions of different statutes,
in other words if it is a multiple-description issue, the same elements test is applied. The
same elements test asks whether each offense contains an element not contained in the
other.
7.
When there is a clear expression of legislative intent to provide multiple
punishments for the same conduct, double jeopardy is not violated even if overlapping
provisions have identical elements. The legislature intended separate punishments for
violations of K.S.A. 2007 Supp. 65-7006(a) and K.S.A. 2007 Supp. 65-4152(a)(3).
2
8.
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),
does not require a jury to find the fact of a prior conviction beyond a reasonable doubt.
Review of the judgment of the Court of Appeals in an unpublished opinion filed December 14,
2012. Appeal from Cherokee District Court; OLIVER KENT LYNCH, judge. Opinion filed April 17, 2015.
Judgment of the Court of Appeals affirming the district court on the issues subject to our grant of review
is affirmed. Judgment of the district court on those issues is affirmed.
John Grube, of Kansas Appellate Defender Office, argued the cause, and Matthew J. Edge, of the
same office, was on the brief for appellant.
Natalie A. Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney
general, was with her on the brief for appellee.
The opinion of the court was delivered by
JOHNSON, J.: A jury convicted Larry G. Overman of six drug offenses, and he
appealed those convictions and corresponding sentences to the Court of Appeals, which
affirmed in part and reversed in part. State v. Overman, No. 105,504, 2012 WL 6634362
(Kan. App. 2012) (unpublished opinion). Overman seeks our review of that portion of the
Court of Appeals' decision that was adverse to him, including the affirmance of the
district court's denial of his suppression motion; the affirmance of his convictions for the
separate offenses of possessing red phosphorous and iodine and possessing drug
paraphernalia with intent to manufacture; and sanctioning the use of his prior convictions
to enhance his sentence. The State did not seek review of the portion of the Court of
Appeals' opinion in favor of Overman. Finding no error on the issues presented in
Overman's petition for review, we affirm.
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FACTUAL AND PROCEDURAL OVERVIEW
The charges against Overman arose out of a traffic stop on October 4, 2007, in
Baxter Springs. Two days earlier, Baxter Springs Police Officer David Groves had seen
Overman and Sharlotte Carey traveling in a Chevy Citation, which was registered in both
of their names. The officer knew both persons, and, because he believed that Overman
had previously been involved in illegal narcotic activity, the officer conducted a criminal
background check and driver's license scan on both Overman and Carey. That inquiry
revealed that both had prior drug charges and arrests and that Overman currently had a
suspended driver's license. That information prompted Officer Groves to enlist the aid of
Sergeant Joseph Sparks and Officer Jon Hunt to effect the traffic stop on October 4.
After the stop was effected in a parking lot, the two exited the vehicle. Sergeant
Sparks had Overman sit on the ground by the front of his patrol car, while the sergeant
conferred with Officer Groves. Then, the sergeant advised Overman of the reason for the
stop and that he was going to be arrested. In connection with a patdown search for
weapons, the sergeant discovered that Overman was carrying coffee filters, which the
sergeant knew from training and experience could be used in the manufacturing of
methamphetamine. The sergeant then escorted the handcuffed Overman to the backseat
of his patrol car.
Meanwhile, Officer Groves found a small black pouch on the ground near where
Overman had just been sitting. The pouch contained what appeared to be a marijuana
cigarette, $330, a baggy containing white powder, and three small pieces of plastic with a
white powdery substance on them. From their training and experience, the officers
thought the white powder was methamphetamine.
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Sergeant Sparks read Overman his Miranda rights and asked about the pouch.
Overman claimed ownership and surmised that it must have fallen from his lap when he
exited the vehicle. Further, Overman admitted that the hand-rolled cigarette was
marijuana, but he claimed that the white powder was "BC Powder" and that it would not
test positive for methamphetamine.
At the same time, Officer Groves was interviewing Carey, who he had handcuffed
but not formally arrested. Carey said that several days earlier she had accompanied
Overman to a residence, where she presumed Overman had manufactured
methamphetamine, and afterwards they both used hypodermic needles to inject
methamphetamine. Carey told the officer that the needles might still be in the Citation.
After sharing their respective information, the officers decided to search the
Citation. Their initial search revealed several items consistent with the manufacturing of
methamphetamine, so the officers terminated the search, towed the vehicle to
headquarters, and obtained a search warrant. The subsequent warrant search revealed
additional items associated with the manufacture of methamphetamine.
The State charged Overman with driving with a suspended license and multiple
drug crimes. Overman filed a motion to suppress "all evidence seized as a result of the
illegal detention of his person and automobile." At the suppression hearing, both arresting
law enforcement officers testified that Overman's vehicle was searched incident to his
arrest. The sergeant said that Overman was arrested for the crimes of possession of
marijuana and possession of drug paraphernalia, but he further explained that because
they had discovered the coffee filters, the marijuana cigarette, and the white powder he
thought was methamphetamine, and because of Carey's statement about hypodermic
needles, he thought the vehicle might contain items used to manufacture
methamphetamine.
5
The district court denied Overman's motion to suppress based on the search
incident to arrest exception to the warrant requirement. The court found that "the concept
of arrest is broad enough for a vehicle search incident to lawful arrest to include searches
relating to crimes discovered in the course of the arrest process before the search is
conducted." The court reasoned that the officers had probable cause to arrest Overman
for possession of marijuana and "[p]robable cause for an arrest for possession of
paraphernalia could certainly be argued." The court also noted that because Carey had not
been arrested, she could have left with the vehicle and the evidence could have been
destroyed, i.e., exigent circumstances existed.
At trial, Overman preserved his objection to the vehicle search with a standing
objection. In addition to the trial testimony of the arresting law enforcement officers,
Kansas Bureau of Investigation (KBI) Drug Task Force Agent Ronnie Light testified that
the vehicle search revealed numerous items associated with the manufacture of
methamphetamine: a sealed bottle of strong iodine, a Pyrex glass dish with a red residue,
a blue cooler containing a water jug turned upside down, coffee filters containing iodine
crystals, an opened canister of acetone, four unopened bottles of Heet brand antifreeze, a
light bulb with red sludge, a t-shirt with white sludge, multiple boxes of matches, one box
of which contained 300 match books with missing striker plates and match heads, a
bucket containing white crystals, a half-full bottle of lighter fluid, a pair of corroded
scissors, a glass measuring cup, a hot plate, and a knife with residue. As a result of the
items found, Light concluded that the manufacture of methamphetamine had occurred
utilizing the "Red P" method, in which a reaction vessel is used to combine ephedrine,
iodine, and red phosphorous. Light explained that the striker plates on match books
contain the red phosphorous needed for the manufacturing process.
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The search also revealed four hypodermic needles, which Light explained could be
used to inject methamphetamine into the body.
KBI testing confirmed that the cigarette was marijuana and that iodine, red
phosphorous, and methamphetamine were present on items taken from the car.
The jury convicted Overman of manufacturing a controlled substance in violation
of K.S.A. 2007 Supp. 65-4159; possession of red phosphorous and iodine with intent to
manufacture a controlled substance in violation of K.S.A. 2007 Supp. 65-7006;
possession of drug paraphernalia with the intent to manufacture methamphetamine in
violation of K.S.A. 2007 Supp. 65-4152(a)(3); possession of methamphetamine in
violation of K.S.A. 2007 Supp. 65-4160(a); possession of marijuana in violation of
K.S.A. 65-4162(a)(3); and possession with intent to use drug paraphernalia in violation of
K.S.A. 2007 Supp. 65-4152(a)(2). The district court sentenced Overman to 324 months'
imprisonment.
In addition to the issues raised in this petition for review, Overman's appeal to the
Court of Appeals included claims of error that were successful. He convinced the panel
that the district court had improperly instructed the jury on the definition of drug
paraphernalia, resulting in a reversal of his conviction for possession of drug
paraphernalia with the intent to manufacture methamphetamine. Overman, 2012 WL
6634362, at *7. The Court of Appeals also agreed with Overman's argument that the
district court had misclassified the severity level of his conviction for possession of red
phosphorus and iodine with intent to manufacture. 2012 WL 6634362, at *9-10. Based on
State v. Adams, 294 Kan. 171, 187, 273 P.3d 718 (2012) and State v. Snellings, 294 Kan.
149, 155-59, 273 P.3d 739 (2012), the panel vacated his sentence for that crime based on
a severity level 2 drug felony and remanded for resentencing based on a severity level 4
7
drug felony. 2012 WL 6634362, at *9-10. Without a cross-petition from the State, those
issues are not now before this court for review.
MOTION TO SUPPRESS
Overman first argues that the district court erred in denying his challenge to the
warrantless search of his vehicle. As noted, some of the evidence used to convict
Overman was obtained pursuant to a warrant. But Overman contends that the unlawful
warrantless vehicle search tainted the subsequent warrant and its execution, and the State
does not refute that claim. Instead, the State ultimately relies on the argument that the
initial vehicle search was lawful based upon the probable cause plus exigent
circumstances exception to the warrant requirement. We agree with the State's latest
argument.
Standard of Review
The district court's factual findings on a motion to suppress are reviewed for
substantial competent evidence, but the legal conclusions to be drawn from the evidence
are reviewed de novo. State v. Pettay, 299 Kan. 763, 768, 326 P.3d 1039 (2014) (citing
State v. Daniel, 291 Kan. 490, 495, 242 P.3d 1186 [2010], cert denied 131 S. Ct. 2114
[2011]).
Analysis
The State has the burden of proving that a search and seizure was lawful. State v.
Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). State v. Sanchez-Loredo, 294 Kan.
50, 55, 272 P.3d 34 (2012), sets out the fundamental constitutional principles at issue
when police conduct a warrantless search:
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"We start with the premise that a warrantless search by a police officer is per se
unreasonable under the Fourth Amendment unless the State can fit the search within one
of the recognized exceptions to the warrant requirement. Those recognized exceptions
are: 'consent; search incident to a lawful arrest; stop and frisk; probable cause plus
exigent circumstances; the emergency doctrine; inventory searches; plain view or feel;
and administrative searches of closely regulated businesses.' [State v.] Fitzgerald, 286
Kan. [1124,] 1127[, 192 P.3d 171 (2008)]."
In the district court, the State argued that two exceptions to the warrant
requirement were present in this case: (1) search incident to a lawful arrest; and, (2)
probable cause plus exigent circumstances. The district court ruled in favor of the State
based upon the search incident to arrest exception to the warrant requirement, then
codified at K.S.A. 22-2501(c). But in a Supreme Court Rule 6.09(b) (2014 Kan. Ct. R.
Annot. 52) letter, the State conceded that this court's recent decisions in State v. Julian,
300 Kan. 690, 695-96, 333 P.3d 172 (2014), and Pettay negate its reliance on the search
incident to arrest exception in this case.
We agree with the State's concession. At the time of Overman's October 2007
arrest, K.S.A. 22-2501 permitted a law enforcement officer effecting a lawful arrest to
reasonably search the arrested person and "the area within such person's immediate
presence" for certain purposes. Pettay observed that the plain language of K.S.A. 22-
2501 had statutorily controlled the physical scope of a search incident to arrest for a long
time. 299 Kan. at 765. The physical area that is "within such person's immediate
presence" does not extend to a defendant's vehicle when the defendant is handcuffed and
sitting in the patrol car.
But in the district court, and now on review, the State raised the alternative basis
that the arresting officers also had probable cause to believe that the vehicle contained
contraband in the form of drugs and drug paraphernalia. Probable cause plus exigent
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circumstances is a recognized exception to the Fourth Amendment warrant requirement.
Sanchez-Loredo, 294 Kan. at 55. Moreover, a subclass of that exception is the
"automobile exception," whereby the mobility of the vehicle establishes the requisite
exigency. 294 Kan. at 58. Here, there was no dispute that Overman's vehicle was mobile.
The only question is whether the district court's findings of fact supported the requisite
probable cause to search Overman's vehicle.
"'Probable cause' to search a vehicle can be established if the totality of the
circumstances indicates there is a 'fair probability' that the vehicle contains contraband or
evidence." 294 Kan. at 55. "Contraband" is defined as "[g]oods that are unlawful to
import, export, produce, or possess." Black's Law Dictionary 389 (10th ed. 2014). In the
district court, the State quoted from State v. Campbell, 24 Kan. App. 2d 553, 555, 948
P.2d 684, rev. denied 263 Kan. 887 (1997), where the Court of Appeals rejected
Campbell's argument that the search of his vehicle violated his Fourth Amendment rights:
"[Campbell] argues that he did not consent to the search, nor was it a search incident to a
lawful arrest. Campbell has simply missed the target in his argument as to the dispositive
legal principle.
"In State v. Jaso, 231 Kan. 614, Syl. ¶ 5, 648 P.2d 1 (1982), the Supreme Court
held:
"'When police officers have made a lawful stop of a vehicle and have probable
cause to believe that contraband is in the vehicle, the officers may search every area of
the vehicle and its contents which might reasonably contain the contraband without the
necessity of first obtaining a warrant.'
"After being arrested, Campbell told Officer Regan that there was contraband in
the car. Thus, the subsequent search of the car was not justified as incidental to an arrest
or Campbell's consent; the search was based upon Officer Regan's probable cause that the
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car contained contraband. The trial court did not err in its ruling upon this issue." 24 Kan.
App. 2d at 555.
Similarly, in this case, the district court's findings of fact established probable
cause to search Overman's vehicle, even if the circumstances did not establish a search
incident to arrest exception. Specifically, the district court found that Overman's
passenger had told the police that the hypodermic needles she and Overman had
previously used to inject methamphetamine might still be in the car. It is illegal to possess
drug paraphernalia, which includes "needles . . . used or intended for use in parenterally
injecting controlled substances into the human body." K.S.A. 2007 Supp. 65-4150(c)(11);
K.S.A. 2007 Supp. 65-4152. Additionally, the court found that Overman had admitted
ownership of the marijuana and admitted that the pouch in which it was found probably
fell off of his lap as he exited the vehicle, i.e., there had been drugs in the vehicle before
the stop. Further, the coffee filters found on Overman's person were unusual items for a
person's pocket, but commonly known to be used in the manufacturing of
methamphetamine. But cf. State v. Fisher, 283 Kan. 272, 305, 154 P.3d 455 (2007)
(discussing legitimate uses for ether). In short, when the totality of the officers'
information is assessed through the lens of a trained law enforcement officer, that
evidence supported probable cause to believe that Overman's vehicle contained
contraband.
Accordingly, the automobile exception applied under the facts established by the
State and found by the district court, and, therefore, the denial of Overman's motion to
suppress was the correct result. See State v. Prine, 297 Kan. 460, 481, 303 P.3d 662
(2013) (affirming district court as right for wrong reasons).
Before commencing the next issue, we pause to address the concurrence's
contention that Overman's petition for review was inadequate to challenge the panel's
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alternative ruling that the automobile exception was also applicable. As noted above, the
fact that the search was conducted without a warrant established it as per se unreasonable,
i.e., leading to illegally obtained evidence, unless the State carried its burden to establish
a recognized exception to the warrant requirement. Clearly, then, to determine whether
the trial court erroneously admitted illegally obtained evidence fairly includes the
question of whether the State proved an exception that would validate an otherwise per se
unreasonable search.
MULTIPLICITY
Next, Overman argues that his convictions for possession of red phosphorous and
iodine with intent to manufacture and possession of drug paraphernalia with intent to
manufacture were multiplicitous. To clarify, Overman does not present a statutory
argument under K.S.A. 21-3107 or challenge these two convictions on any other basis
than a double jeopardy violation. Our review is limited accordingly.
Multiplicity occurs when a single offense is charged in more than one count of the
charging document and such double charging is proscribed because it creates the
potential for multiple punishments for a single crime in contravention of the Double
Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section
10 of the Kansas Constitution Bill of Rights. State v. Carr, 300 Kan. 1, 163, 331 P.3d 544
(2014) (citing State v. Scott, 286 Kan. 54, 65, 183 P.3d 801 [2008]).
Standard of Review
"[T]he issue of whether convictions are multiplicitous is a question of law subject
to unlimited review." State v. Schoonover, 281 Kan. 453, 462, 133 P.3d 48 (2006).
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Analysis
Overman's conviction for possession of red phosphorous and iodine with intent to
manufacture a controlled substance was governed by K.S.A. 2007 Supp. 65-7006(a),
which provided: "(a) It shall be unlawful for any person to possess ephedrine,
pseudoephedrine, red phosphorous, lithium metal, sodium metal, iodine, anhydrous
ammonia, pressurized ammonia or phenylpropanolamine, or their salts, isomers or salts
of isomers with intent to use the product to manufacture a controlled substance."
(Emphasis added.)
Possession of drug paraphernalia with intent to manufacture is proscribed in a
different statute, K.S.A. 2007 Supp. 65-4152(a)(3), which reads in relevant part: "(a) No
person shall use or possess with intent to use: . . . (3) any drug paraphernalia to . . .
manufacture . . . a controlled substance in violation of the uniform controlled substances
act."
In turn, "drug paraphernalia" is defined as "all equipment and materials of any
kind which are used . . . in . . . manufacturing . . . a controlled substance and in violation
of the uniform controlled substances act." K.S.A. 2007 Supp. 65-4150(c).
Schoonover is our recent seminal case on double jeopardy/multiplicity claims.
After a comprehensive review of federal and Kansas analyses, Schoonover announced the
following analytical framework:
"In considering a double jeopardy issue, the overarching inquiry is whether the
convictions are for the same offense. There are two components to this inquiry, both of
which must be met for there to be a double jeopardy violation: (1) Do the convictions
arise from the same conduct? and (2) By statutory definition are there two offenses or
only one?" 281 Kan. at 496.
13
Here, in applying the first component of the inquiry, the Court of Appeals opined
that "[i]t is undisputed that Overman was convicted based on one methamphetamine
manufacturing event." Overman, 2012 WL 6634362, at *8. Accordingly, the panel turned
to the second inquiry, under which
"the test to be applied depends on whether the convictions arose from one or two statutes.
If the double jeopardy issue arises from convictions for multiple violations of a single
statute, the unit of prosecution test is applied. If the double jeopardy issue arises from
multiple convictions of different statutes, in other words if it is a multiple-description
issue, the strict-elements test is applied." State v. Appleby, 289 Kan. 1017, 1027, 221 P.3d
525 (2009) (citing Schoonover, 281 Kan. at 497).
Overman's petition for review concedes that Schoonover's "same elements" test
(sometimes referred to as the "strict-elements" test) applies in his case because the two
convictions he claims are multiplicitous arose from alleged violations of two different
statutes: K.S.A. 2007 Supp. 65-7006 and K.S.A. 2007 Supp. 65-4152(a). Moreover, he
cites to Schoonover, 281 Kan. at 467, as support for his statement that "[t]he same
elements test asks whether each offense contains an element not contained in the other. If
not, then they are the same offense, and double jeopardy bars multiple punishment." But
then, inexplicably, he declares that we must reach a result directly opposite of the result
we reached in Schoonover, based solely upon an argument that Schoonover specifically
rejected, i.e., the K.S.A. 2007 Supp. 65-7006 product(s) possessed by the defendant also
fit the definition of drug paraphernalia under K.S.A. 2007 Supp. 65-4152(a)(3).
Schoonover involved an elements comparison of the same statutes as this case,
K.S.A. 65-7006(a) and K.S.A. 65-4152(a)(3). The only difference in the two cases is the
particular products that the respective defendant was alleged to have possessed;
Schoonover was charged with possessing ephedrine or pseudoephedrine, whereas
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Overman was charged with possessing red phosphorous and iodine. All of those products
are part of the proscribed list in K.S.A. 65-7006(a), and the factual distinction of a
different listed product has no bearing on our legal analysis of the statutes' comparative
elements.
The Schoonover defendant argued that possession of ephedrine or
pseudoephedrine under K.S.A. 65-7006 and possession of drug paraphernalia under
K.S.A. 65-4152(a)(3) were multiplicitous because, by statutory definition, the single act
of possessing ephedrine/pseudoephedrine constituted both crimes, i.e., he was being
punished twice for the single offense of possessing ephedrine/pseudoephedrine. Overman
makes the same argument with respect to his possession of red phosphorous and iodine,
i.e., the statutory definition of drug paraphernalia results in his being punished twice for
the single offense of possessing red phosphorous and iodine. Indeed, as the Court of
Appeals observed, the instructions given to Overman's jury could have resulted in his
being convicted of "two different offenses . . . based on his possession of red
phosphorous and iodine." Overman, 2012 WL 6634362, at *8.
But Schoonover rejected that argument, characterized the relationship between
K.S.A. 65-7006 and K.S.A. 65-4152(a)(3) as "'overlapping rather than identical,'" and
opined that "simply because the statutes overlap, there is not necessarily a double
jeopardy violation." 281 Kan. at 503-04. The Schoonover court relied upon the rationale
that K.S.A. 65-7006 requires proof of possession of ephedrine/pseudoephedrine whereas
K.S.A. 65-4152(a)(3) does not, but rather "K.S.A. 65-4152(a)(3) . . . applies to possession
of other paraphernalia as well." 281 Kan. at 503 (discussing and quoting from State v.
Cherry, 279 Kan. 535, 541, 112 P.3d 224 [2005]). In short, Schoonover established the
point of law that the elements of K.S.A. 65-7006 and K.S.A. 65-4152(a)(3) are not
identical.
15
Although Overman does not explicitly ask us to overrule the ultimate holding in
Schoonover, that is what we would have to do to accept his argument on this issue. See
Crist v. Hunan Palace, Inc., 277 Kan. 706, 715, 89 P.3d 573 (2004) (quoting Samsel v.
Wheeler Transport Services, Inc., 246 Kan. 336, 356, 789 P.2d 541 [1990], overruled on
other grounds Bair v. Peck, 248 Kan. 824, 844, 811 P.2d 1176 [1991]) (doctrine of stare
decisis provides that "'once a point of law has been established by a court, that point of
law will generally be followed by the same court and all courts of lower rank in
subsequent cases where the same legal issue is raised'"). Granted, subsequently, in State
v. Thompson, 287 Kan. 238, 259, 200 P.3d 22 (2009), we clarified that when overlapping
statutory provisions have identical elements, the rule of lenity "will usually mean the
legislature intended only one punishment." Nevertheless, when there "is a clear
expression of legislative intent to provide multiple punishments for the same conduct,
double jeopardy is not violated even if overlapping provisions have identical elements."
287 Kan. at 259 (discussing Schoonover). Schoonover found such a clear expression of
legislative intent in the context of K.S.A. 65-7006(a) and K.S.A. 65-4152(a)(3), the
statutes at issue in Overman's challenge. 281 Kan. at 501-04.
Consequently, we affirm the Court of Appeals' holding that Overman's convictions
for both possession of red phosphorous and iodine with intent to manufacture
methamphetamine and possession of drug paraphernalia with intent to manufacture
methamphetamine were not multiplicitous as a violation of double jeopardy, based upon
this court's precedent in Schoonover.
APPRENDI CHALLENGE TO SENTENCE
Finally, Overman argues that his rights under the Sixth and Fourteenth
Amendments were violated because the State did not include his prior convictions in the
charging document nor did it prove those convictions to the jury beyond a reasonable
16
doubt. Overman contends that such a process is required by Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). But he acknowledges that this court
has specifically rejected his argument, holding in State v. Ivory, 273 Kan. 44, 41 P.3d 781
(2002), that Apprendi does not require the jury to find the fact of a prior conviction.
Moreover, we have repeatedly confirmed Ivory's holding. See, e.g., State v. Adams, 294
Kan. 171, 185, 273 P.3d 718 (2012). The imposition of the enhanced sentence was not
unconstitutional.
Affirmed.
***
BILES, J., concurring: I concur in the result as to the suppression issue. I write
separately only to note that Overman's petition for review ignored the alternative basis for
the Court of Appeals ruling: that the search of his vehicle was lawful because of the
automobile exception. State v. Overman, No. 105,504, 2012 WL 6634362, at *4 (Kan.
App. 2012) (unpublished opinion). Therefore, I would affirm the panel's decision on the
search question because its alternative rationale was not challenged. This makes the
majority's analysis on this issue unnecessary.
Under Supreme Court Rule 8.03(a)(4)(C) and (h)(1) (2014 Kan. Ct. R. Annot. 77),
a party must specify what issues were decided erroneously by the Court of Appeals.
Otherwise, that issue is not properly before the Supreme Court on a petition for review.
See State v. Trujillo, 296 Kan. 625, 634-35, 294 P.3d 281 (2013) (declining to reach
merits of evidence suppression issue when defendant failed to petition for review of a
Court of Appeals holding that defendant failed to preserve issue for appeal by failing to
lodge contemporaneous objection at trial); see also State v. Sanchez-Laredo, 294 Kan. 50,
53, 272 P.3d 34 (2012) ("Before proceeding, we pause to clarify the issues we will not be
17
addressing[,] . . . [because] Sanchez-Loredo's petition for review did not challenge these
holdings.").
I would hold that Overman did not specify as a point of error or otherwise address
the alternative basis for the panel's decision, so the suppression issue is not properly
before us on review. I agree with the multiplicity and Apprendi sections of the opinion.
NUSS, C.J., joins in the foregoing concurrence.
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