State v. Myers

697 P.2d 879, 10 Kan. App. 2d 266, 1985 Kan. App. LEXIS 662

Opinions

Briscoe, J.:

Defendant Myers appeals criminal convictions and sentencing on drug charges.

On July 15, 1982, a search warrant was issued for a residence owned and occupied by the defendant and his wife in Emporia, Kansas. The search warrant was issued for amphetamines, items for the sale or use of amphetamines, and items which would identify the occupants of the residence. The warrant was executed the next day, July 16. The defendant’s residence was searched and various items of personal property were seized. As items of property were collected, Officer Paul Yonally, using a tape recorder, described the items and the locations from which they were taken within the residence. As a result of the search, numerous charges were filed against the defendant.

The defendant filed a motion to suppress all of the seized items, alleging they were beyond the scope of the search warrant. A suppression hearing was held, during which the defendant moved to strike the testimony of Yonally because the evidence inventory tape had been erased. The district court denied the motion to suppress and the motion to strike Yonally’s testimony.

With the defendant reserving the right to appeal on issues of law, the case was tried to the court upon the parties’ stipulation to the facts. The district court found the defendant guilty of possession of a hallucinogenic drug (K.S.A. 1984 Supp. 65-4127b[a][3]) and possession of a depressant (65-4127b[a][l]). Both counts were held to be class D felonies because of defendant’s prior conviction under 65-4127b. K.S.A. 1984 Supp. 65-4127b(a).

The defendant was sentenced to two concurrent terms of three to ten years. Subsequent motions to modify the sentence were denied. Defendant raises three issues on appeal:

(1) Whether the district court erroneously refused to strike the testimony of Yonally when his tape-recorded inventory statement had been erased;

(2) Whether the evidence seized by the police officers in the course of their search of defendant’s home was inadmissible; and

(3) Whether there was sufficient evidence of a prior conviction under 65-4127b for the district court to sentence the defendant for a class D felony.

Prior to oral argument, we questioned the timeliness of defendant’s appeal and ordered the parties to address at argument our jurisdiction to hear the appeal. We turn first to an examina tion of the jurisdictional issue raised on our own motion. State v. Bickford, 234 Kan. 507, 509, 672 P.2d 607 (1983).

Several dates are relevant to this issue. The defendant was orally sentenced from the bench on June 1,1983. He then filed a motion to modify his sentence, which was denied. On September 21, 1983, the defendant filed a second motion to modify his sentence, 112 days after sentencing. This second motion was orally denied on October 5,1983,126 days after sentencing, with the journal entry memorializing the denial filed on October 20, 1983, 141 days after sentencing. Defendant filed his notice of appeal on October 26, 1983, 147 days after sentencing.

The time within which a criminal defendant may appeal is fixed by statute. K.S.A. 22-3608(1) provides:

“If sentence is imposed, the defendant may appeal from the judgment of the district court not later than ten days after the expiration of the district court’s power to modify the sentence.”

K.S.A. 1984 Supp. 21-4603(3) provides:

“Any time within 120 days after a sentence is imposed . . . the court may modify such sentence ... by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits. If an appeal is taken and determined adversely to the defendant, such sentence may be modified within 120 days after the receipt by the clerk of the district court of the mandate from the supreme court or court of appeals.”

The two statutes, read together, appear to give a criminal defendant 130 days after sentencing in which to take a direct appeal. Kansas cases have so held. See, e.g., State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980); State v. Smith, 223 Kan. 47, 47, 574 P.2d 161 (1977).

The jurisdictional issue raised in this appeal is whether judicial interpretation of K.S.A. 1984 Supp. 21-4603(3) extending the time in which a district court can rule on a sentence modification motion also extends the appeal time under K.S.A. 22-3608(1). See State ex rel. Owens v. Hodge, 230 Kan. 804, 641 P.2d 399 (1982).

General principles of appellate jurisdiction are well established and often stated:

“The right of appeal is entirely a statutory right; no appellate review is required by the federal constitution [citation omitted] or the Kansas Constitution. [Citations omitted.] It is the established rule in this state that this court has no jurisdiction to entertain an appeal by defendant in a criminal case, unless he takes his appeal within the time prescribed by the statutes providing for such an appeal. [Citations omitted.] The supreme court has only such appellate jurisdiction as is conferred by statute pursuant to Article 3, Section 3, of the Kansas Constitution, and when the record discloses lack of jurisdiction, it is the duty of the supreme court to dismiss the appeal. [Citations omitted.]” State v. Smith, 223 Kan. at 48.

See also State v. Moses, 227 Kan. at 404; City of Kansas City v. Sherman, 9 Kan. App. 2d 757, 758, 687 P.2d 1383 (1984).

The jurisdictional issue we address is one of first impression and arises as a corollary to the decision in State ex rel. Owens v. Hodge, 230 Kan. 804. In Hodge, the petitioner district attorney sought a mandamus against the respondent district judge which would require the judge to withdraw an order placing a convicted criminal defendant on probation. The issue posed was “whether a district court in Kansas loses jurisdiction to act upon a motion for reduction of a sentence or for probation under K.S.A. 21-4603(3) ... at the expiration of the applicable 120-day period, even though a motion for reduction of sentence or for probation was timely filed by the defendant within that time period.” 230 Kan. at 804. Relying on federal precedent and enunciating Kansas Criminal Code and Kansas Code of Criminal Procedure philosophy, Hodge rejected literal interpretation of K.S.A. 21-4603(3) and held that “a district court does not lose jurisdiction to act upon a motion for reduction of sentence or for probation at the expiration of the 120-day period after sentence was imposed, where a timely motion has been filed by defendant within that time period and where the district judge reasonably needs the time to consider and act upon the motion.” 230 Kan. at 814.

Here, the defendant timely filed his second motion to modify sentence by filing it 112 days after the oral pronouncement of his sentence, which is within the 120-day period after sentence was imposed. K.S.A. 1984 Supp. 21-4603(3). Although the district court ruled on the motion to modify 126 days after the pronouncement of sentence, the court still had jurisdiction to make that ruling under State ex rel. Owens v. Hodge, 230 Kan. at 814.

The time limitation on a criminal defendant’s right to a direct appeal is statutorily linked to the time in which a district court may modify his sentence. K.S.A. 22-3608(1) and K.S.A. 1984 Supp. 21-4603(3). Under K.S.A. 22-3608 (1), the defendant has 10 days after the district court’s decision on the motion to modify in which to perfect his appeal. The statute provides the defendant may appeal “not later than ten days after the expiration of the district court’s power to modify the sentence.” Since the district court’s power to modify is extended beyond the 120-day period under Hodge, the defendant would have 10 days from the date the district court ruled on the motion to modify to file his notice of appeal.

Although this procedure may result in the extension of the 130-day time limitation for the filing of a direct criminal appeal in certain cases, that extension is required under K.S.A. 22-3608(1) and K.S.A. 1984 Supp. 21-4603(3) when read with Hodge. This procedure also has the avoidance of concurrent jurisdiction to recommend it. In State v. Dedman, 230 Kan. 793, 796-97, 640 P.2d 1266 (1982), the court held the district court lacked jurisdiction to modify a sentence after the notice of appeal was filed, referring to the general rule that district court jurisdiction ends upon appellate docketing. This position was reaffirmed in State v. Williams, 235 Kan. 485, 495, 681 P.2d 660 (1984). Dedman is distinguishable from the case at bar in that defendant Dedman perfected his appeal, including an attack on his sentence, before filing a motion in the district court to modify his sentence. Nonetheless, we think it significant that, in dicta, the court stated a policy position that criminal actions be lodged in only one court at a time. 230 Kan. at 797. If a criminal defendant’s appeal time were strictly limited to 130 days, regardless of a pending motion to modify sentence, defendant would have to file his direct appeal within 130 days on all issues except those pertaining to his sentence. Issues pertaining to his sentence could not be appealed until decided by the district court, and the appellate court would have no alternative but to stay the appeal until determination of the motion to modify. In effect, defendant’s appeal would not move forward, and two courts would be involved in the case. The potential for drift in the system is enormous.

In the case at bar, the defendant’s notice of appeal was filed six days after the journal entry denying the motion to modify, but 21 days after the court’s oral denial. The crucial issue in this case then becomes whether the 10-day period of K.S.A. 22-3608(1) begins to run from the oral denial of the motion, or from the filing of the journal entry denying the motion. We conclude the 10-day period to file a notice of appeal must run from the filing of the journal entry deciding the motion, not from the oral ruling.

The rationale for running the 120-day appeal time from oral pronouncement of the sentence is unique to sentencing. See State v. Moses, 227 Kan. 400, 402, 607 P.2d 477 (1980), and cases cited therein. K.S.A. 1984 Supp. 22-3405(1) requires that the defendant be present when sentence is imposed. The defendant’s presence at sentencing insures defendant’s immediate notice of the sentence imposed and the opportunity to timely pursue an appeal. However, the presence of a defendant at the pronouncement of the decision on a post-sentencing motion is discretionary with the district court. State v. Bryant, 227 Kan. 385, 390, 607 P.2d 66 (1980).

As the defendant has no right to be present when the district court rules on his motion to modify, the court’s power to modify a sentence upon a motion filed within the 120 days should end upon the filing of the order denying the motion. If the district court acts on a timely filed motion to modify sentence beyond the 120-day statutory limit, the criminal defendant has ten days from the filing of the journal entry deciding the motion in which to perfect his appeal. Here, defendant’s notice of appeal was timely when filed six days after the journal entry denying the motion to modify.

Having determined jurisdiction, we turn to defendant’s first issue. Defendant contends the district court erred in failing to strike Detective Yonally’s testimony at the suppression hearing when his tape-recorded inventory of items seized had been erased prior to the hearing. As a result of this erasure, the State could not produce the tape pursuant to the defendant’s request under K.S.A. 22-3213. Defendant also raised the discrepancy in the number of items on the two typed property returns as further support of his motion to strike. One return listed 74 items; the other, 75 items.

The district court should consider the following factors when ruling upon a motion to strike testimony for failure to comply with K.S.A. 22-3213:

“why the statement was not produced; if it was lost, the facts and circumstances surrounding the loss; the negligence or fault on the part of the state; the nature, relevance and importance of the statement; the risk of prejudice to the defendant;the essentiality of the testimony to the state; and the other evidence in the case.” State v. Wilkins, 220 Kan. 735, 741, 556 P.2d 424 (1976).

Whether the testimony will be stricken is within the district court’s discretion, subject to reversal on appeal only if no reasonable person would adopt the district court’s view. Wilkins, 220 Kan. at 741-42.

In the case at bar there was no evidence or contention that Detective Yonally acted in bad faith. He erased the tape after he read and reviewed what he believed were accurate transcriptions of the tape. The detective explained the discrepancy in the number of items listed by testifying item number 75 was some residue he scraped from a scale seized in the search of defendant’s residence. Item 75 was not on the original tape of the items seized, but was added upon Detective Yonally’s request after the search. The record reveals the defendant thoroughly cross-examined Detective Yonally regarding this discrepancy.

The defendant has failed to show that he was prejudiced by the erasure of the tape. As in State v. Eubanks, 2 Kan.App.2d 262, 264, 577 P.2d 1208, rev. denied 225 Kan. 846 (1978), verbatim transcriptions were made of the tape, and the defendant was afforded complete access to the transcriptions. Defendant had the opportunity to cross-examine Detective Yonally regarding the tape and the transcripts, and also Officer Finger regarding the items seized at defendant’s residence.

The district court did not abuse its discretion in refusing to strike the testimony of Detective Yonally.

Defendant next contends the evidence seized by police officers in the course of their search of defendant’s home was inadmissible. Specifically, defendant alleges the police acted beyond the scope of the search warrant in violation of the Fourth Amendment’s prohibition against unreasonable search and seizure, and that the search did not fall within the “plain view” exception to the warrant requirement as set out in State v. Galloway, 232 Kan. 87, 94, 652 P.2d 673 (1982).

Defendant’s contention that the officers’ search exceeded the scope of the search warrant is without merit. The search warrant authorized a search of defendant’s house for amphetamines. One of the officers who conducted the search testified that amphetamines can be in powder, tablet or capsule form. The container search conducted here, which included search of Tylenol bottles and prescription bottles, was reasonable given the object searched for. As stated in United States v. Ross, 456 U.S. 798, 820-822, 72 L.Ed.2d 572, 102 S.Ct. 2157 (1982):

“A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. . . . When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home . . . must give way to the interest in the prompt and efficient completion of the task at hand.”

In order to conduct a search for something which was as small in size as amphetamines, the officers acted reasonably in searching containers and small areas. Further, it appears logical that a search for amphetamines would include a search of pill bottles.

The defendant also contends that the seizure of items not listed on the search warrant was illegal. Defendant argues the search had become a “general search” resulting in the “wholesale collection of any and all medicines, tablets, capsules or other things located within the home.” We find seizure of these additional items proper under the plain view exception to the Fourth Amendment.

The plain view exception is applicable where it is shown:

“1) The initial intrusion which afforded the authorities the plain view was lawful by virtue of a warrant (search or arrest), waiver or exigent circumstances; 2) the discovery of the evidence was inadvertent; and 3) the authorities immediately had reasonable or probable cause to believe the evidence observed in plain view was incriminating in nature.” State v. Galloway, 232 Kan. 87, 94, 652 P.2d 673 (1982).

The defendant concedes the initial intrusion into the defendant’s residence was lawful by virtue of a valid search warrant. The police officers testified the Tylenol and prescription bottles were of such a size that they could contain amphetamines. Detective Yonally testified the reason he opened a prescription bottle was because he was looking for amphetamines and/or any other controlled substance. As previously stated, a search for something the size of amphetamines would require the search of small containers. Here, the officers’ discovery of other narcotics while embarked on a reasonable search for amphetamines was inadvertent, satisfying the second requirement of the plain view exception. State v. Galloway, 232 Kan. at 94.

A search of the Tylenol bottles and prescription bottles revealed pills and substances other than Tylenol. The officers testified as to the various shapes and forms amphetamines can have and that they believed it was possible the contents of the bottles could be amphetamines. These facts taken together would give authorities both reasonable and probable cause to believe the evidence observed in plain view was incriminating in nature. Therefore, the search satisfies all of the requirements of the plain view exception as set out in State v. Galloway, 232 Kan. at 94. The evidence seized by the police officers was clearly admissible.

The defendant contends there was insufficient evidence of a prior conviction under 65-4127b for the district court to sentence the defendant for a class D felony. K.S.A. 1984 Supp. 65-4127b(a) provides in pertinent part:

“Any person who violates this subsection shall be guilty of a class A misdemeanor, except that upon conviction for a second or subsequent offense, such person shall be guilty of a class D felony.”

The parties stipulated to certain facts at a trial to the court. One of the facts offered by the State was that the defendant had previously been convicted of a violation of 65-4127b, making both of the offenses charged class D felonies. In the presence of the defendant, defense counsel objected to the introduction of evidence of the prior conviction because, although the conviction was under 65-4127b, it was for marijuana or THC and not diazepam or lysergic acid diethylamide. At sentencing, the defendant indicated he had received a copy of the presentence report and that he knew of no amendments or deletions which should be made to the report. Although not in the record on appeal, both parties acknowledge that the report indicated defendant had been previously convicted of possession of marijuana and possession of phenobarbital.

Evidence of prior convictions is not an element of the offense charged, but rather is pertinent only to sentence enhancement under K.S.A. 1984 Supp. 65-4127b and should be presented in the same manner as such evidence is presented under the habitual criminal act, K.S.A. 1984 Supp. 21-4504. State v. Loudermilk, 221 Kan. 157, 161, 557 P.2d 1229 (1976) (analyzing K.S.A. 65-4127a). K.S.A. 1984 Supp. 21-4504(e) provides that “[a] judgment may be rendered pursuant to this section only after the court finds from competent evidence the fact of former convictions for felony . . . Where a defendant admits prior convictions of felonies, competent evidence of prior convictions has been provided by the admission. See State v. Hazelwood, 209 Kan. 649, 658, 498 P.2d 607 (1972); Tuscano v. State, 206 Kan. 260, 264-65, 478 P.2d 213 (1970); Darling v. Hoffman, 180 Kan. 137, 138, 299 P.2d 594 (1956).

In the case at bar, the defendant’s attorney admitted the defendant’s prior convictions in the presence of the defendant at the time of the stipulations and at the time' of sentencing. These statements provided evidence of prior convictions which was sufficient for the court to enhance the penalty under K.S.A. 1984 Supp. 65-4127b to class D felonies. State v. Ralph, 194 Kan. 356, 360-61, 399 P.2d 548 (1965); Reffitt v. Edmondson, 177 Kan. 83, 85, 276 P.2d 341 (1954).

Affirmed.