State v. Hastings

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NOT DESIGNATED FOR PUBLICATION

No. 112,222

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

V.

KAROLYN G. HASTINGS,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed March 4, 2016.
Affirmed in part and dismissed in part.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin and Kyle Edelman, assistant district attorneys, Chadwick J. Taylor, district attorney,
and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., BUSER, J., and HEBERT, S.J.

Per Curiam: Karolyn G. Hastings appeals her convictions for driving under the
influence of drugs or alcohol (DUI), fleeing or attempting to elude a police officer, and
failing to maintain a single lane. For her first issue on appeal, Hastings contends the trial
court improperly forbid the jury from exercising its power of nullification when it
instructed the jurors that in the absence of reasonable doubt they should find her guilty.
For her second issue, Hastings claims the sentencing court erred when it denied her
request for retroactive application of the look-back period provided in K.S.A. 2011 Supp.
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8-1567(j)(3) and erroneously imposed the enhanced sentence applicable to a defendant
with four prior DUI convictions rather than three prior DUI convictions.

Having carefully considered the record on appeal and the parties' briefs, we affirm
the convictions and dismiss Hastings' claim of sentencing error as moot.

FACTUAL AND PROCEDURAL BACKGROUND

At about 1:30 a.m. on January 7, 2009, Officer Hoa Lam of the Topeka Police
Department observed Hastings' pickup truck weaving in its traffic lane and crossing the
double yellow lines. This driving behavior continued for some distance. Based upon his
observations, Officer Lam suspected that Hastings was DUI.

Officer Lam activated his emergency equipment whereupon Hastings made a wide
turn and "the rear of the [truck] kind of slid a little bit." Hastings did not yield in response
to Officer Lam's activation of his vehicle's emergency lights and siren but continued
travelling down the Interstate. Finally, Hastings exited the highway and stopped her
vehicle just past a stop sign. Upon arresting Hastings for eluding a police officer, Officer
Lam observed that Hastings' speech was slurred, her "eyes were watery, they were
bloodshot, and [he] could smell the strong odor of alcoholic beverages coming from her
breath."

At the Law Enforcement Center, Officer Lam offered Hastings the option of
performing standardized field sobriety tests, but she declined. Hastings did agree,
however, to submit to evidentiary chemical testing. Officer Lam administered two
Intoxilyzer 8000 breath tests, both of which yielded "deficient" samples. The second test,
however, provided sufficient pressure and volume to yield a result of "deficient sample,
highest value equals .188." Officer Lam and Amanda Thurman, a laboratory specialist
with the Kansas Department of Health and Environment, both testified that the highest
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value reading represents the "very least . . . breath alcohol concentration" the person
submitting to the test has within his or her body.

Hastings was charged with DUI, as a third or subsequent offense, fleeing or
attempting to elude a police officer, and failing to maintain a single lane. Hastings had
two separate jury trials on the State's charges. The first trial resulted in convictions for
fleeing or attempting to elude and failure to maintain a single lane. The jury, however,
was unable to render a verdict on the DUI charge. A second trial resulted in a DUI
conviction.

Hastings was sentenced on November 30, 2012. The district court sentenced
Hastings to a controlling 12-month jail sentence. She was ordered placed on supervised
parole after serving 180 days in custody. Hastings filed a timely appeal.

REASONABLE DOUBT INSTRUCTION

At the outset, Hastings acknowledges that criminal defendants are not entitled to
have the jury instructed on its inherent power of nullification—the power to disregard the
rules of law and evidence in order to acquit the defendant based upon the jurors'
sympathies, notions of right and wrong, or a desire to send a message on some social
issue. See State v. Naputi, 293 Kan. 55, 65-66, 260 P.3d 86 (2011) (Juries should not be
instructed on nullification because "[i]t is not the role of the jury to rewrite clearly
intended legislation, nor is it the role of the courts to instruct the jury that it may ignore
the rule of law, no matter how draconian it might be.").

Still, Hastings complains it was improper to provide the juries in both trials with
the following instruction on reasonable doubt: "If you have no reasonable doubt as to the
truth of each of the claims required to be proved by the State, you should find the
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defendant guilty." (Emphasis added.) In Hastings' view, this instruction "misstated the
law regarding the jury's obligation to enter a guilty verdict."

As Hastings candidly concedes, however, she did not object to the trial court's
instruction on reasonable doubt in either trial. This failure to object is consequential: A
party may not claim error because the trial court gave or failed to give a jury instruction
unless (1) the party objects before the jury retires, stating distinctly the matter to which
the party objects and the grounds for the objection; or (2) the instruction or the failure to
give the instruction is clearly erroneous. K.S.A. 22-3414(3); State v. Smyser, 297 Kan.
199, 204, 299 P.3d 309 (2013).

Appellate courts utilize a two-step process in determining whether a challenged
instruction was clearly erroneous: (1) The court must determine whether there was any
error at all by considering whether the subject instruction was legally and factually
appropriate, employing an unlimited review of the entire record; (2) if the court finds
error, it must assess "'whether it is firmly convinced that the jury would have reached a
different verdict had the instruction error not occurred.'" 297 Kan. at 204. Reversibility is
subject to unlimited review and is based on the entire record; the party claiming error in
the instructions has the burden to prove the degree of prejudice necessary for reversal.
State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014).

Preliminarily, we must address the State's assertion that we should not review
whether the district court's reasonable doubt instructions directed a verdict for the State
because Hastings invited the error of which she now complains. Indeed, prior to her first
trial, Hastings requested a reasonable doubt instruction that was virtually identical to the
instruction the district court ultimately provided to the jury. Hasting's proposed
instruction included the sentence which she now, for the first time on appeal, claims was
erroneous: "If you have no reasonable doubt as to the truth of any of the claims required
to be proved by the State, you should find the defendant guilty." (Emphasis added.)
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Generally, a defendant may not invite error and then complain of the error on
appeal. State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014). In other words,
"'[w]here a party procures a court to proceed in a particular way and invites a particular
ruling, [the party] is precluded from assailing such proceeding and ruling on appellate
review.'" State v. Schreiner, 46 Kan. App. 2d 778, 788, 264 P.3d 1033 (2011), rev. denied
296 Kan. 1135 (2013); see State v. Bailey, 292 Kan. 449, 459, 255 P.3d 19 (2011)
("When defendant's requested instruction is given to the jury, the defendant cannot
complain the requested instruction was error on appeal. [Citation omitted.]"). But in this
appeal, it is unclear whether Hastings intended to use in the second trial the proposed
instructions she provided the district court prior to the first trial. As a result, we will
decline to find invited error with regard to this issue, but we will address the merits of
Hastings' argument.

As Hastings acknowledges, the reasonable doubt instruction the trial court
provided at each jury trial is identical to PIK Crim. 3d 52.02. (The post-2005 version of
PIK Crim. 3d 52.02 is identical to PIK Crim. 4th 51.010.). However, Hastings contends it
was legally inappropriate for the trial court to utilize PIK Crim. 3d 52.02 because the use
of the word "should" rather than "may" erroneously provides for a mandatory
adjudication of guilt upon a finding that all elements of the charged crimes were proven
beyond a reasonable doubt.

In support of her argument, Hastings cites State v. Smith-Parker, 301 Kan. 132,
Syl. ¶ 6, 340 P.3d 485 (2014). Smith-Parker argued that the trial court misstated the law
on reasonable doubt when it gave the jury the following instruction on first-degree
murder: "'If you do not have a reasonable doubt from all the evidence that the State has
proven murder in the first degree on either or both theories, then you will enter a verdict
of guilty.' (Emphasis added.)" 301 Kan. at 163. Of relevance to Hasting's appeal, Smith-
Parker argued that the district court should have provided the jury with "the general
reasonable doubt instruction . . . [t]hat . . . said: 'If you have no reasonable doubt as to
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the truth of each of the claims required to be proved by the State, you should find the
defendant guilty.' (Emphasis added.)" 301 Kan. at 163.

Our Supreme Court agreed with Smith-Parker's argument: "Although we have
rejected a defense argument that a criminal jury should be instructed on its inherent
power of nullification, [citation omitted], the district judge's instruction in this case went
too far in the other direction. It essentially forbade the jury from exercising its power of
nullification. [Citation omitted.]." 301 Kan. at 164. The Supreme Court determined that
the word "will" used in the first-degree murder instruction essentially directed a verdict
for the State and a judge "cannot compel a jury to convict, even if it finds all elements
proved beyond a reasonable doubt." 301 Kan. at 164.

Of note, however, Smith-Parker did not object to and our Supreme Court did not
disapprove of the use of the word should used in the general reasonable doubt instruction
in Smith-Parker. This distinguishes Smith-Parker from the crux of Hastings' complaint in
this appeal where she is objecting to the use of the word should in the reasonable doubt
instruction.

The instruction at issue here, however, does not upset the balance between
encouraging jury nullification and forbidding it. As Hastings asserts, the American
Heritage Dictionary of the English Language 1623 (5th ed. 2011) defines "should" as a
word used to express "obligation or duty," But unlike the words must, shall, and will, the
word should does not express a mandatory, unyielding duty or obligation; instead, it
merely denotes the proper course of action and encourages following the advised path.
Accordingly, PIK Crim. 3d 52.02 does not direct a verdict for the State.

Moreover, PIK Crim. 3d 52.02 equally protects the rights of the accused and the
State, as its description of the proper function and duty of a jury is fully consistent with
our statutory law. For example, K.S.A. 2015 Supp. 60-247(d) provides: "The jurors must
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swear or affirm to try the case conscientiously and return a verdict according to the law
and the evidence." Indeed, in State v. McClanahan, 212 Kan. 208, 216-17, 510 P.2d 153
(1973) our Supreme Court stated:

"The administration of justice cannot be left to community standards or community
conscience but must depend upon the protections afforded by the rule of law. The jury
must be directed to apply the rules of law to the evidence even though it must do so in the
face of public outcry and indignation. Disregard for the principles of established law
creates anarchy and destroys the very protections which the law affords an accused.
Finally, to permit a jury to disregard the principles of law laid down by a trial court is
contrary to the statutory law of this state. [Citation omitted.]
. . . .
"Although it must be conceded that the jurors in a criminal case have the raw
physical power to disregard both the rules of law and the evidence in order to acquit a
defendant, it is the proper function and duty of a jury to accept the rules of law given to it
in the instructions by the court, apply those rules of law in determining what facts are
proven and render a verdict based thereon." (Emphasis added.)

Finally, a panel of our court recently rejected an argument similar to Hastings. See
State v. Jones, No. 111,386, 2015 WL 4716235, at *5-6 (Kan. App. 2015) (unpublished
opinion), rev. denied 303 Kan. ___ (February 18, 2016). In Jones, the defendant
contended the trial court should have granted his request to alter PIK Crim. 4th 51.010 by
using the word may instead of should, because "the jury was not under an obligation to
make a guilty finding." 2015 WL 4716235, at *6. Our court disagreed, explaining:

"Jones claims his proposed jury instruction was legally appropriate because the
PIK instruction spoke in terms of a mandatory adjudication of guilt and, thus, erroneously
informed the jury that it had no right to nullify. Although the use of PIK instructions is
not required, it is strongly recommended, as those instructions have been developed by a
knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions.
'Absent a particular need under the facts of a case to alter . . . PIK instructions, they
should be followed.' State v. Acevedo, 49 Kan. App. 2d. 655, 663, 315 P.3d 261 (2013),
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rev. denied 300 Kan. 1104 (2014). Jones' requested jury instruction was not legally
appropriate. The district court correctly declined to use Jones' proposed jury instruction
and provided the proper jury instruction." 2015 WL 4716235, at *6.

We agree with the rationale stated in Jones and find it persuasive in resolving this issue.

In summary, we hold the trial court did not err when it provided the jury with PIK
Crim. 3d 52.02, the approved and applicable instruction on reasonable doubt. This
instruction was legally and factually appropriate. Given this holding, we decline to
conduct a reversibility inquiry.

SENTENCE ENHANCEMENT AS A FOURTH-TIME DUI OFFENDER

Prior to sentencing, a presentence investigation (PSI) report determined that
Hastings had three prior convictions for DUI, i.e., a Shawnee County District Court
conviction on May 17, 2012, and two prior convictions from Topeka Municipal Court,
one on July 28, 2006, and another on June 16, 1997. Hastings objected to the sentencing
court's consideration of her 1997 DUI conviction for sentence-enhancement purposes
based upon her contention that the shortened look-back period in K.S.A. 2011 Supp. 8-
1567(j)(3) should apply retroactively.

The sentencing court overruled Hastings' objection and imposed the enhanced
sentence applicable to a defendant with four prior DUI convictions. Specifically, the
sentencing court sentenced Hastings to a controlling 12-month jail term, but the court
ordered her placed on supervised parole after serving 180 days in custody.

On appeal, Hastings complains that the sentencing court erred when it determined
that the limited look-back period set forth in K.S.A. 2011 Supp. 8-1567(j)(3)—which
excludes all pre-July 1, 2001, DUI convictions from consideration for sentence-
enhancement purposes—did not apply retroactively. Hastings argues that the sentencing
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court erroneously counted her 1997 DUI conviction (pursuant to the lifetime look-back
provision in effect at the time she committed the current DUI offense), to sentence her as
a fourth-time DUI offender. See K.S.A. 2008 Supp. 8-1567(n)(3).

Based upon State v. Reese, 300 Kan. 650, 658-59, 333 P.3d 149 (2014), the State
properly concedes that the sentencing court erred. In Reese, our Supreme Court held:

"K.S.A. 2011 Supp. 8-1567(j)(3) provides that the sentencing court is to take into
account only those prior driving under the influence (DUI) convictions that occurred on
or after July 1, 2001, and make the determination at the time of sentencing whether the
current conviction is a first, second, third, fourth, or subsequent offense for purposes of
imposing a sentence enhancement. Accordingly, the provisions of K.S.A. 2011 Supp. 8-
1567(j)(3) apply to all persons who are sentenced for DUI on or after the July 1, 2011,
effective date of the amended statute." 300 Kan. 650, Syl.

Although Hastings committed her current offense on January 7, 2009, she was not
sentenced until November 30, 2012. As a consequence, the provisions of K.S.A. 2012
Supp. 8-1567(i)(1), rather than K.S.A. 2011 Supp. 8-1567(j)(3), governed the sentencing
court's consideration of whether Hastings' conviction was her first, second, third, fourth,
or subsequent DUI offense. Nevertheless, similar to K.S.A. 2011 Supp. 8-1567(j)(3),
K.S.A. 2012 Supp. 8-1567(i)(1) provides:

"(i) For the purpose of determining whether a conviction is a first, second, third,
fourth or subsequent conviction in sentencing under this section:
(1) Convictions for a violation of this section, or a violation of an ordinance of
any city or resolution of any county which prohibits the acts that this section prohibits, or
entering into a diversion agreement in lieu of further criminal proceedings on a complaint
alleging any such violations, shall be taken into account, but only convictions or
diversions occurring on or after July 1, 2001. Nothing in this provision shall be construed
as preventing any court from considering any convictions or diversions occurring during
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the person's lifetime in determining the sentence to be imposed within the limits provided
for a first, second, third, fourth or subsequent offense." (Emphasis added.)

Under a plain reading of K.S.A. 2012 Supp. 8-1567(i)(1), the sentencing court
erred when it considered Hastings' 1997 DUI conviction for sentence-enhancement
purposes.

Given this sentencing error, what is the appropriate remedy? The State insists it is
unnecessary for our court to reverse and remand for resentencing because Hastings has
served her sentence which renders the issue moot. In support, the State submits a letter in
accordance with Supreme Court Rule 2.042 (2015 Kan. Ct. R. Annot. 18). This letter
states: "According to the Kansas Department of Corrections website, KASPER, Hastings
was discharged on September 24, 2014, and is no longer serving a sentence in Shawnee
County case 10CR1637." The State attached a KASPER printout which indicates that
Hastings' current status is discharged with a discharged date of September 24, 2014, due
to the expiration of her sentence.

Importantly, Hastings did not file a reply brief or other memoranda rebutting the
State's factual assertions or challenging the State's mootness argument.

Kansas appellate courts do not generally render advisory opinions or decide moot
questions. State v. Hilton, 295 Kan. 845, 849, 286 P.3d 871 (2012). Mootness is a
doctrine of court policy which recognizes that a court's role is to determine real
controversies relative to the legal rights of persons and properties that are actually
involved in the particular case properly brought before it and to adjudicate those rights in
an operative, final, and conclusive manner. 295 Kan. at 849. As a result, an appeal is
moot if "'it is clearly and convincingly shown the actual controversy has ended, the only
judgment that could be entered would be ineffectual for any purpose, and it would not
impact any of the parties' rights.'" State v. Montgomery, 295 Kan. 837, 840-41, 286 P.3d
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866 (2012). Our court analyzes questions involving the mootness doctrine under an
unlimited standard of review. Hilton, 295 Kan. at 849.

On a related matter, we note that Hastings appealed the sentence she received in
another case after her May 17, 2012, conviction for DUI on the same basis as this
appeal—the district court's refusal to apply K.S.A. 2011 Supp. 8-1567(j)(3) retroactively.
See State v. Hastings, No. 112,221, 2015 WL 6834879, at *1, 3-5 (Kan. App. 2015)
(unpublished opinion), petition for rev. filed December 3, 2015. In response, the State
argued this issue was moot because Hastings had "'served the balance of the sentence . . .
and was not ordered to serve a period of post-release supervision.'" Hastings, 2015 WL
6834879, at *4. A panel of our court disagreed with the State:

"The State's argument fails. Our Supreme Court has held: 'An appeal will not be
dismissed for mootness, unless it is clearly and convincingly shown the actual
controversy has ended, the only judgment that could be entered would be ineffectual for
any purpose, and it would not impact any of the parties' rights.' [Citations omitted.]
Furthermore, our Supreme Court has found:
"'Challenging the efficacy of a conviction is simply a different proposition than is
presented here. The possible collateral consequences of a conviction are "too obvious to
declare [an] appeal [of the conviction] moot simply because defendant cannot be
subjected to additional jail time." [Citation omitted.] The impact of a conviction is
tangible and immediate.
"'For instance, a conviction is immediately added to the defendant's criminal
history score and will thereafter accompany the defendant as a fact that speaks for itself.
The criminal history score will be a fact that subsequent courts must use to calculate
future sentences; a district court cannot exercise its discretion to disregard a prior
conviction.' [Citation omitted.]
"In this case, the district court sentenced Hastings to a felony DUI and scored this
as a third DUI conviction. According to K.S.A. 2014 Supp. 8-1567(b)(1)(B), Hastings'
current conviction should have been a class A nonperson misdemeanor. When the district
court sentenced Hastings in this case, it also sentenced Hastings in the case the State
referred to on appeal [the case currently before this court on appeal]. There, the district
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court found that was Hastings' fourth DUI conviction. According to K.S.A. 2014 Supp. 8-
1567 that conviction is a nonperson felony. While the second case—or the fourth DUI—
is not before this court, it is worth noting that if Hastings' third DUI is not changed, then
Hasting would have two felony convictions on her record. Thus, our decision herein
impacts a substantial right, and the State is incorrect; the sentencing issue is not moot."
2015 WL 6834879, at *4-5.

Returning to the present appeal, as the State asserts, it appears that unlike
Hastings' prior appeal, resentencing her in this case would be ineffectual for any purpose
because it would not affect any of her rights. Cf. Hastings, 2015 WL 6834879, at *4-5.
Although Hastings' DUI conviction should have been scored as her third DUI rather than
her fourth, she is still guilty of a nonperson felony regardless of how her prior DUIs are
counted. This is because, according to K.S.A. 2008 Supp. 8-1567(f)(1) (the version of the
statute in effect when Hastings' committed her current crime of conviction), "[o]n the
third conviction of [DUI], a person shall be guilty of a nonperson felony." Likewise,
under K.S.A. 2015 Supp. 8-1567(b)(1)(C)-(D), individuals who are convicted of their
third DUI are guilty of a nonperson felony if they have "a prior [DUI] conviction which
occurred within the preceding 10 years."

As a result, the sentencing court's error in this case will not impact Hastings'
criminal history because a defendant's "criminal-history score is based on the number of
past convictions, as well as whether those convictions were for felonies or misdemeanors
and were person or nonperson offenses." (Emphasis added.) See State v. Jones, No.
111,371, 2015 WL 6444262, at *1 (Kan. App. 2015) (unpublished opinion), petition for
rev. filed November 10, 2015.

In conclusion, Hastings has served her entire sentence and the State of Kansas has
no authority to punish or supervise her further. Therefore, any action this court would
take to remedy the sentencing court's incorrect determination that she qualified as a
fourth-time DUI offender for sentence-enhancement purposes would be an idle act
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insofar as Hastings' rights are concerned. Because we cannot remedy the sentencing
court's error, Hastings' appeal is essentially a request for an advisory opinion and, for
these reasons, we find the issue is moot and dismiss this issue on appeal.

Hastings' convictions are affirmed. Her appeal of the sentencing court's imposition
of a DUI sentence as a fourth-time DUI offender is dismissed as moot.

Affirmed in part and dismissed in part.