Mitchell v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 119,181

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CARL MITCHELL,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed February 1, 2019.
Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Barry K. Disney, senior deputy county attorney, Barry R. Wilkerson, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., MALONE and LEBEN, JJ.

PER CURIAM: Carl A. Mitchell appeals the district court's summary denial and
dismissal of his motions for relief pursuant to K.S.A. 60-1507. Mitchell argues (1) that
the Kansas Supreme Court's decision in State v. Keel, 302 Kan. 560, 357 P.3d 251
(2015), cert. denied 136 S. Ct. 865 (2016), violates the Ex Post Facto Clause of the
United States Constitution; (2) that application of House Bill 2053, later codified at
K.S.A. 2017 Supp. 21-6810, which was the legislative response to State v. Murdock, 299
Kan. 312, 323 P.3d 846 (2014), also violates the Ex Post Facto Clause; and (3) the district
court failed to comply with the requirements of Supreme Court Rule 183(j) (2019 Kan. S.
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Ct. R. 228) with respect to Mitchell's claim that his sentence violated the Eighth
Amendment's prohibition on cruel and unusual punishment. Finding that the district court
did not err in summarily denying Mitchell's K.S.A. 60-1507 motions, we affirm.

In 1996, pursuant to a plea agreement, Mitchell pled no contest to and the district
court convicted him of aggravated kidnapping, rape, aggravated criminal sodomy, and
aggravated sexual battery. State v. Mitchell, No. 102,012, 2010 WL 2545661, at *1 (Kan.
App.) (unpublished opinion), rev. denied 290 Kan. 1100 (2010). His criminal history
consisted of out-of-state convictions: nine person felonies, four committed as an adult
and five committed as a juvenile. The district court determined that Mitchell's criminal
history score was A, so it sentenced him to a controlling term of 461 months'
imprisonment. Mitchell did not pursue a direct appeal. 2010 WL 2545661, at *1.

In 2008, Mitchell filed a pro se motion to correct illegal sentence pursuant to
K.S.A. 22-3504(1), arguing that his sentence had been improperly calculated. 2010 WL
2545661, at *1. He also sought to withdraw his pleas under K.S.A. 22-3210(d), arguing
that he had not been properly advised of the potential sentencing range for the rape
charge. 2010 WL 2545661, at *1. The district court denied Mitchell's motion, and this
court affirmed. 2010 WL 2545661, at *2-4.

In 2014, after the Kansas Supreme Court's ruling in Murdock, Mitchell filed a
second pro se motion to correct illegal sentence pursuant to K.S.A. 22-3504. Therein, he
argued that under Murdock, his criminal history score was incorrect because it was
calculated by classifying his pre-1993 out-of-state convictions as person felonies instead
of nonperson felonies. The district court appointed counsel to represent Mitchell and held
a hearing at which both parties presented oral argument. After the hearing, the district
court denied Mitchell's motion, holding that Murdock was not retroactive and did not
apply to Mitchell's case. Mitchell appealed.
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While Mitchell's appeal was pending, the Kansas Supreme Court issued its opinion
in Keel, overruling Murdock. See 302 Kan. at 589. Shortly thereafter, this court issued a
show-cause order directing Mitchell to "show cause, by written response . . . why the
above-captioned appeal should not be summarily affirmed under [Supreme Court] Rule
7.041 and State v. Keel." In response, Mitchell acknowledged that Keel overturned
Murdock, but he summarily asserted that Keel was wrongly decided. On October 16,
2015, this court issued an order noting Mitchell's response and summarily affirming the
district court under Rule 7.041 (2015 Kan. Ct. R. Annot. 67) and Keel.

On February 28, 2017, Mitchell filed a pro se motion to vacate sentence, arguing
again that Keel was wrongly decided and that Keel and House Bill 2053, now codified at
K.S.A. 2017 Supp. 21-6810, violate his due process rights, his equal protection rights,
and the Ex Post Facto Clause of the United States Constitution. He also contended that
his sentence violated the Eight Amendment's prohibition on cruel and unusual
punishment by using his juvenile record to calculate his criminal history score. On March
15, 2017, Mitchell filed a pro se motion pursuant to K.S.A. 60-1507, raising largely the
same issues.

On April 5, 2017, the district court issued an order denying Mitchell's motions and
dismissing the case. The district court noted that Keel overruled Murdock and that
Mitchell had argued in his earlier appeal to this court that Keel was wrongly decided, yet
this court had summarily affirmed the district court in that appeal. The district court
concluded:

"[T]he two issues raised [by Mitchell] were decided in Keel. Classifying a prior
conviction based on the classification in effect for the comparable offense when the
current crime was committed does not change the penalty imposed for the earlier
conviction and thus complies with the Ex Post Facto Clause of the United States
Constitution. See Keel[, 302 Kan. at 589]."

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Moreover, the district court noted that Mitchell argued "that his juvenile
convictions . . . were not scored appropriately," but because Mitchell "had a criminal
history with four (4) person felonies committed as an adult, his juvenile convictions had
no bearing on his criminal history." Mitchell filed a motion for reconsideration, which the
district court denied on April 26, 2017. Mitchell appealed.

Where, as here, a district court determines that the motion, files, and case records
conclusively show that the 60-1507 movant is not entitled to relief, the district court may
deny the motion summarily, without a hearing. See Sola-Morales v. State, 300 Kan. 875,
881, 335 P.3d 1162 (2014). On appeal, we review such a summary denial de novo to
determine whether the motion, files, and records of the case conclusively establish that
relief is unavailable to the movant. 300 Kan. at 881.

Mitchell first argues that Keel is unconstitutional because it violates the Ex Post
Facto Clause of the United States Constitution. The Kansas Supreme Court has soundly
and repeatedly rejected this argument. State v. Campbell, 307 Kan. 130, 135, 407 P.3d
240 (2017) (citing State v. Sims, 306 Kan. 618, 622, 395 P.3d 413 [2017], and State v.
Collier, 306 Kan. 521, 525, 394 P.3d 1164 [2017]). "Relying on statutes in effect at the
time a crime is committed eliminates the need for an ex post facto analysis," and the 1993
statutes interpreted in Keel were those in effect when Mitchell committed crimes in 1996;
they are not laws that increased the potential punishment after Mitchell's crimes were
committed. See Campbell, 307 Kan. at 135-36.

We are duty bound to follow Kansas Supreme Court precedent unless there is
some indication that the court is departing from its previous position. See Heartland
Presbytery v. The Presbyterian Church of Stanley, Inc., 53 Kan. App. 2d 622, 645, 390
P.3d 581 (2017). In light of the Kansas Supreme Court's clear holdings in Campbell,
Sims, and Collier, Mitchell's Ex Post Facto Clause argument fails. See Campbell, 307
Kan. at 135-36.
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Second, Mitchell argues that the retroactive application of House Bill 2053, now
codified at K.S.A. 2017 Supp. 21-6810, violates the Ex Post Facto Clause. We need not
address this argument, however, because the district court did not apply K.S.A. 2017
Supp. 21-6810 in denying Mitchell's motions. Rather, it denied the motions based upon
our Supreme Court's holding in Keel. See, e.g., Sims, 306 Kan. at 622 ("Because [this]
case is controlled by Keel, the court need not address [the appellant's] argument that
K.S.A. 2016 Supp. 21-6810[d] and [e] violate the Ex Post Facto Clause"); Keel, 302 Kan.
at 590-91 (stating that it "eliminates the need for any ex post facto analysis"); State v.
Boatman, No. 113,890, 2016 WL 3407995, at *3 (Kan. App. 2016) (unpublished
opinion) (declining to address statutory argument because Keel controlled).

Finally, Mitchell argues that his sentence violates the Eighth Amendment, and that
the district court violated Supreme Court Rule 183(j) by failing to set forth findings of
fact and conclusions of law on his Eighth Amendment claim. Mitchell devotes the
majority of his appellate argument to this final issue, contending that the district court's
failure to address his Eighth Amendment claim in either the order denying his initial
motions or the order denying his motion for reconsideration requires remand.

Supreme Court Rule 183(j) requires a district court considering a motion brought
pursuant to K.S.A. 60-1507 to "make findings of fact and conclusions of law on all issues
presented." (2019 Kan. S. Ct. R. 230). Whether a district court's findings of fact and
conclusions of law comply with Supreme Court Rule 183(j) is a question of law that we
review de novo. Robertson v. State, 288 Kan. 217, 232, 201 P.3d 691 (2009).

Mitchell is correct that the district court did not explicitly acknowledge the Eighth
Amendment issue he raised in his 60-1507 motion, nor did the district court do so even
after Mitchell made the required objections under Rule 183(j) in his motion to reconsider.
See Phillips v. State, 282 Kan. 154, 179, 144 P.3d 48 (2006) (noting that a party that does
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not object in the district court to inadequate findings of fact and conclusions of law
generally waives the issue on appeal).

The district court's orders in the present case arguably fall short of Rule 183(j)'s
requirements. In its order denying Mitchell's motions and dismissing the case, however,
the district court referred to Mitchell's argument "that his juvenile convictions from 1983
to 1984 were not scored appropriately." The court then noted that because Mitchell "had a
criminal history with four (4) person felonies committed as an adult, his juvenile
convictions had no bearing on his criminal history." We read this portion of the district
court's order as an attempt to address Mitchell's Eighth Amendment argument.

In any event, even assuming noncompliance with Rule 183(j), the failure to
directly acknowledge and address Mitchell's Eighth Amendment argument does not
impede our review of the issue. See State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000)
(noting that "the fundamental problem with [the lack of findings of fact and conclusions
of law] is that it impedes appellate review"). Because the record now before us
conclusively shows that Mitchell was not entitled to relief on this issue, any failure by the
district court to fully comply with Rule 183(j) was harmless error. See State v. Wilson,
308 Kan. 516, 527, 421 P.3d 742 (2018) (finding remand for failure to comply with Rule
183[j] was unnecessary where it did not impede review of the issue).

Mitchell argued to the district court that because the calculation of his criminal
history included consideration of juvenile adjudications, he was subjected to "an
unquestionably lengthy sentence due to enhancements drawn from acts he had committed
as a child." Noting that "[c]hildren often lack the ability to fully appreciate or recognize
the consequences of their actions," Mitchell contended before the district court that his
sentence violates the Eighth Amendment's prohibition on cruel and unusual punishment.
On appeal, he does not further develop his Eighth Amendment argument, arguing only
that the district court erred by failing to make findings of fact and conclusions of law.
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As the district court noted in its order and the State points out on appeal, Mitchell's
criminal history at the time of his sentencing included four adult person felonies and,
therefore, his criminal history score would have been A even if none of the juvenile
adjudications were considered. See K.S.A. 21-4709 (setting criminal history category A
as appropriate when "[t]he offender's criminal history includes three or more adult
convictions . . . for person felonies"). Accordingly, Mitchell's Eighth Amendment
argument—which is solely based on the use of his juvenile adjudications in calculating
his criminal history score—must fail because, even without those adjudications, his
criminal history score would remain the same and his sentence would be unaffected.
Thus, a remand for further findings of fact and conclusions of law on Mitchell's Eighth
Amendment argument is unnecessary.

Affirmed.