State v. Wilson

1

NOT DESIGNATED FOR PUBLICATION

No. 114,203

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

BRIAN DEAN WILSON,
Appellee.


MEMORANDUM OPINION

Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed March 25, 2016.
Affirmed.

Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt,
attorney general, for appellant.

Nicholas David, of The David Law Office LLC, of Topeka, for appellee.

Before PIERRON, P.J., BRUNS and GARDNER, JJ.

Per Curiam: This interlocutory appeal by the State of Kansas asks whether the
district court abused its discretion in denying a motion for reconsideration of its decision
suppressing evidence. Attached to the motion to reconsider was evidence that the district
court admitted would have changed its decision about suppression had that evidence been
timely presented. Nonetheless, for the reasons stated below, we find no abuse of
discretion.

2

Procedural background

In December 2014, Wilson was arrested. Topeka police had come to Wilson's
house in search of another man. After taking that man into custody, police arrested three
other occupants, one of whom had drug paraphernalia in her pocket. Police learned that
Wilson was on parole so they contacted Kansas Department of Corrections employees to
determine what was required to conduct a search. Believing that they had reasonable
suspicion that a crime had occurred or was about to occur, police searched Wilson's
bedroom and found marijuana, ammunition, and a handgun. Wilson was then charged
with criminal possession of a firearm, possession of marijuana, and unlawful use of drug
paraphernalia.

Wilson filed a motion to suppress the evidence, claiming that the search was
unlawful. The State argued that Wilson had given consent and that the law enforcement
officers had reasonable suspicion sufficient to search a parolee. After hearing testimony
on April 14 and April 28, 2015, the district court ruled that the search was illegal and
suppressed the evidence. The district court found that Wilson's consent had not been
freely given and because no evidence showed that Wilson had agreed in writing to be
subject to search, the police did not have authority to search Wilson’s home. The district
court relied in part on State v. Chapman, 51 Kan. App. 2d 401, Syl. ¶¶ 4, 7, 347 P.3d 700
(2015), which found that K.S.A. 2012 Supp. 22-3717(k)(3) allows law enforcement
officers to search a parolee if they have reasonable suspicion of criminal activity or a
parole violation and the parolee has agreed in writing to be subject to search.

Three days after that ruling, the State filed a motion to reconsider, requesting an
additional evidentiary hearing and attaching a copy of Wilson's written consent to be
searched. The State's motion referenced the district court's decision to suppress, then
stated: "The State subsequently contacted the Defendant's Parole Officer, Jaclyn
3

Steinbach, to determine if any such evidence even existed." Jaclyn Steinbach had testified
during the suppression hearing.

The district court stated that the written consent would likely have changed its
previous ruling on the motion to suppress, but it nonetheless denied the motion, reasoning
as follows: The State had already had "ample opportunity" to present the evidence; the
witness who ultimately provided the evidence had previously testified; and that
conservation of judicial resources and the threat of prejudice against Wilson outweighed
the State's interests. The State now appeals the denial of its motion to reconsider.

Jurisdiction

We first address our jurisdiction to hear this matter. K.S.A. 2015 Supp. 22-3603
allows prosecutors to appeal a pretrial order suppressing evidence within 14 days after
entry of the order suppressing evidence. Prosecutors must also show appellate courts that
the order suppressing evidence substantially impairs the prosecution's ability to prosecute
the case. State v. Newman, 235 Kan. 29, 35, 680 P.2d 257 (1984). Here, that requirement
is met, as the district court's denial of the State's motion effectively reaffirmed its earlier
decision granting the motion to suppress, barring the State's use of the primary, if not the
sole, evidence against Wilson.

Wilson contends this court nonetheless lacks jurisdiction because the State's
appeal is untimely. His rationale follows: The State's motion to reconsider tolled the
deadline to appeal only if that motion is considered a K.S.A. 2015 Supp. 60-259(f)
motion; the State's motion was not a 60-259(f) motion because such a motion alters or
amends a judgment; an order suppressing evidence is a sanction, not a judgment; and the
motion to reconsider is akin to a K.S.A. 2015 Supp. 60-260(b) motion which does not toll
the appeal deadline.

4

Wilson is generally correct that a timely filed motion to alter or amend under
K.S.A. 2015 Supp. 60-259(f) tolls the running of the time for an appeal, while a timely
filed motion under K.S.A. 2015 Supp. 60-260 does not. See Giles v. Russell, 222 Kan.
629, 632, 567 P.2d 845 (1977); In re Marriage of Webster, No. 94, 112, 206 WL
2129130, at *2 (Kan. App. 2006)(unpublished opinion).

We admit that Wilson's argument has a certain logical appeal. See State v.
Remlinger, 266 Kan. 103, 106-07, 968 P.2d 671 (1998) (finding Kansas cases have
repeatedly defined a criminal "judgment" as a pronouncement of guilt and the
determination of punishment); State v. Heigele, 14 Kan. App. 2d 286, 287-88 789 P.2d
218 (1990) (finding a suppression order is not a final judgment where the State does not
appeal the order pursuant to K.S.A. 22-3603). But in support of his assertion that the
State's appeal is untimely, Wilson cites cases from Missouri, Arizona, and Florida.
Wilson cites no Kansas caselaw in support of the asserted final-judgment requirement in
this context–where the State files an interlocutory appeal from the district court's order
suppressing evidence.

We note that we often refer to a district court's decision suppressing evidence as a
"judgment" when reviewing the State's interlocutory appeals. See, e.g., State v. Reed, No.
113, 576, 2015 WL 9287062, at *1 (Kan. App. 2015) (unpublished opinion); State v.
Cousins, No. 112,497, 2015 WL 4879202, at *1 (Kan. App. 2015). More importantly, we
have previously found that K.S.A. 60-259(f) can apply to an order suppressing evidence.
State v. Little, No. 105,221, 2011 WL 4035796, at *1-2 (Kan. App. 2011) (unpublished
opinion) (finding an argument similar to Wilson's has "no merit"), rev. denied 293 Kan.
1111 (2012). Although unpublished opinions from our court are "not binding precedent,"
they may have "persuasive value with respect to a material issue not addressed in a
published opinion of a Kansas appellate court." Supreme Court Rule 7.04(g)(2) (2015
Kan. Ct. R. Annot. 65). Such is the case here.

5

In Little, as here, the district court granted the defendant's motion to suppress then
denied the prosecution's motion to reconsider, and the State appealed. We held that the
prosecution's motion to reconsider was proper and tolled the time for appeal. 2011 WL
4035796, at *2 (citing K.S.A. 60-2103[a]). The cited statute provides that the running of
the time for appeal is terminated by a timely motion made pursuant to K.S.A. 2015 Supp.
60-259, and "the full time for appeal fixed in this subsection commences to run and is to
be computed from the entry of" the denial of a timely K.S.A. 2015 Supp. 60-259 motion.
K.S.A. 2015 Supp. 60-2103(a).

Similarly, we consider the State's motion to reconsider the suppression decision to
be a K.S.A. 2015 Supp. 60-259(f) motion. When the State files a motion for
reconsideration in a criminal case within 28 days of the district court's suppression
decision, we thus construe that motion as a K.S.A. 2015 Supp. 60-259(f) motion, and the
time for interlocutory appeal is tolled until the date the motion for reconsideration is
denied, on which date the time for appeal commences to run, restarting anew. See K.S.A.
2015 Supp. 60-2103(a).

That rule, as applied to our facts, shows the State's appeal was timely. The district
court's memorandum decision granting Wilson's motion to suppress was entered on June
8, 2015. The State filed its motion to reconsider on June 11, 2015, 3 days later, well
within the required 28 days for filing a K.S.A. 2015 Supp. 60-259(f) motion. The district
court's order denying the State's motion to reconsider was entered on July 9, 2015. The
State filed its notice of appeal 13 days later on July 22, 2015, within the 14 days
permitted for interlocutory appeals. K.S.A. 2015 Supp. 22-3603. Because the State's
appeal is timely, this court has jurisdiction. See State v. Patton, 287 Kan. 200, 206, 195
P.3d 753 (2008) (noting that "a timely notice of appeal ordinarily is jurisdictional").

6

Standard of Review

We review the denial of a motion to reconsider for an abuse of discretion.
Reinmuth v. Pride National. Ins. Co., No. 111,174, 2015 WL 1310804, at *4 (Kan. App.
2015) (unpublished opinion), rev. denied 303 Kan.___January 25, 2016). A district court
abuses its discretion if its action:

"(1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken
the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is
guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if
substantial competent evidence does not support a factual finding on which a prerequisite
conclusion of law or the exercise of discretion is based." State v. Ward, 292 Kan. 541,
550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).

The party claiming that the district court abused its discretion bears the burden of
showing that judicial discretion was abused. State v. Rojas-Marceleno, 295 Kan. 525,
531, 285 P.3d 361 (2012).

Motion to Reconsider

A motion to reconsider is generally not a creature of statute, but of caselaw.
Kansas caselaw shows that in civil cases, a district court may grant a motion to reconsider
when new evidence has been discovered. See In re Marriage of Steele, No. 110,593,
2014 WL 1708125, at *4 (Kan. App. 2014) (unpublished opinion). K.S.A. 2015 Supp.
60-259(f)'s purpose is to provide the district court with an opportunity to correct prior
errors. Denno v. Denno, 12 Kan. App. 2d 499, 501, 749 P.2d 46 (1988). Motions to alter
and amend "may properly be denied where the moving party could have, with reasonable
diligence," presented the evidence earlier. Wenrich v. Employers Mut. Ins. Co., 35 Kan.
App. 2d 582, 590, 132 P.3d 970 (2006). The same is true for denials of motions to
reconsider. See In re Marriage of Mullokandova, & Kikirov No. 112,921, 2016 WL
7

197743, at *12 (Kan. App. 2016) (unpublished opinion) (affirming denial of motion to
reconsider because "[t]he evidence itself must be newly discovered. Counsel's new
realization that the evidence could perhaps have helped at the earlier hearing does not
make the evidence newly discovered.").

Kansas cases have held that motions to reconsider, treated as motions to alter or
amend a judgment under K.S.A. 2015 Supp. 60-259(f), apply in criminal cases in the
absence of a specific statute to the contrary. McPherson v. State, 38 Kan. App. 2d 276,
287, 163 P.3d 1257 (2007); State v. Marks, 14 Kan. App. 2d 594, Syl. ¶ 2, 796 P.2d 174,
rev. denied 247 Kan. 706 (1990). We believe the standards for evaluating a motion to
reconsider in the civil context are relevant for evaluating a motion to reconsider in a
criminal case, finding no good reason to distinguish between the two. See United States
v. D'Armond, 80 F. Supp. 2d 1157, 1170-71 (D. Kan. 1999); United States v. Becker, No.
09-40008-01-JAR, 2010 WL 1424360, at *2 (D. Kan. 2010).

Kansas cases, however, lack developed standards for motions for reconsideration
in civil and criminal cases, and the Rules of the Kansas Supreme Court do not generally
address them. Federal cases in Kansas, however, have well-developed standards for
motions to reconsider. We find those standards, summarized below, to be persuasive
here.

First, the decision whether to grant or deny a motion to reconsider is committed to
the court's sound discretion. See Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395
(10th Cir. 1988).

Second, a motion to reconsider is not a second chance for the losing party to try
again. "A motion to reconsider is not a second chance for the losing party to make its
strongest case or to dress up arguments that previously failed." Voelkel v. General Motors
Corp., 846 F. Supp. 1482, 1483 (D. Kan. 1994). "A court's rulings "are not intended as
8

first drafts, subject to revision and reconsideration at a litigant's pleasure." Koch v. Koch
Industries, Inc., 6 F. Supp. 2d 1207, 1209 (D. Kan. 1998) (quoting Quaker Alloy Casting
v. Gulfco Industries, Inc., 123 F.R.D. 282, 288 [N.D.Ill.1988]), aff'd 203 F.3d 1202 (10th
Cir.), cert. denied 531 U.S. 926, (2000).

Instead, a motion to reconsider is limited to specific situations where limited
circumstances warrant it.

"We have held that a motion to reconsider may be granted when the court has
misapprehended the facts, a party's position, or the law. Servants of The Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Specific situations where circumstances
may warrant reconsideration include '(1) an intervening change in the controlling law, (2)
new evidence previously unavailable, and (3) the need to correct clear error or prevent
manifest injustice.' Id." United States v. Huff, 782 F.3d 1221, 1224 (10th Cir.), cert.
denied 136 S. Ct. 537 (2015).

Lastly, a motion to reconsider is not appropriate to revisit issues already addressed
or to advance arguments that could have been raised earlier. See United States v. Christy,
739 F.3d 534, 539 (10th Cir. 2014).

"A motion to reconsider is appropriate if the court has obviously misapprehended a
party's position, the facts, or applicable law, or if the party produces new evidence that
could not have been obtained through the exercise of due diligence. [Citations omitted.]
A motion to reconsider is not appropriate if the movant only wants the court to revisit
issues already addressed or to hear new arguments or supporting facts that could have
been presented originally. Comeau v. Rupp, 810 F. Supp. [1172.] 1175." Koch [D. Kan.
(1992)], 6 F. Supp. 2d at, 1209.

We find these standards to be well reasoned, persuasive, and consistent with our
statutes and limited caselaw regarding motions to reconsider, so we apply them here. See,
e.g., K.S.A. 2015 Supp. 60-259(a)(i)(E) (stating a new trial may be granted based on
"newly discovered evidence that is material for the moving party, which it could not, with
9

reasonable diligence, have discovered and produced at the trial"); cf. K.S.A. 2015 Supp.
60-260 (b)(2) (providing a court may relieve a party from an order because of "newly
discovered evidence that, with reasonable diligence, could not have been discovered in
time to move for a new trial" under K.S.A. 2015 Supp. 60-259(b).

Analysis

Our analysis of whether the district court abused its discretion in denying the
State's motion to reconsider focuses on whether the evidence the State presented in
support of that motion could have been discovered earlier with reasonable diligence.

In its motion to reconsider and its accompanying memorandum, the State suggests
that it was unaware of the need to present evidence that Wilson had agreed in writing to
be subject to a search. At the hearing on the motion to reconsider, the State said it would
have presented that evidence had it been available. But during oral argument at the
suppression hearing, the State had argued that written evidence was not required, yet it
also drew the district court's attention to Chapman which held law enforcement officers
may search a parolee if they have reasonable suspicion of criminal activity or a parole
violation and if the parolee has agreed in writing to be subject to a search. Thus, the State
had notice of Chapman's evidentiary requirement.

Yet during the suppression hearing, the State neither showed evidence that all
parolees in Kansas consent in writing to a reasonable suspicion law-enforcement search
of their residence as one of many conditions precedent to their release on parole, nor
evidence that Wilson, as a parolee, had so consented. The State had not one but two
opportunities to do so during the continued suppression hearing—once on April 14 and
again on April 28, 2015.

10

Further, as the district court mentioned, Parole Officer Steinbach, from whom the
State eventually obtained the written consent, had testified at the suppression hearing.
The State asked her very few questions and did not ask if she knew whether Wilson had
consented in writing to be subject to search. While arguing its motion to reconsider, the
State claimed that it had asked three of its witness if they had documents showing that
Wilson had agreed to be subject to search and was told that they did not have any or that
they did not know that they had any. But Steinbach was not among those witnesses.

The State suggests that after the district court granted Wilson's motion, it asked
Steinbach again about any documents. But the State's motion to reconsider makes clear
that it initially contacted Steinbach about documents after the district court issued its
decision by referencing the district court's decision to suppress and then stating: "The
State subsequently contacted the Defendant's Parole Officer, Jaclyn Steinbach, to
determine if any such evidence even existed." (Emphasis added.) The State has not
shown that it asked Steinbach before the motion to suppress was granted whether she
knew of Wilson's signed consent, even though, as Wilson's supervising parole officer, she
was likely to have had knowledge of that document.

The State cites several cases showing that a district court may allow additional
evidence to be presented after a motion to suppress has been granted. See, e.g., City of
Prairie Village v. Hof, No. 106,491, 2012 WL 2924615, at *1-3 (Kan. App. 2012)
(unpublished opinion). We have no doubt that a district court has discretion to do so. But
those cases, including Hof, show only that a district court may consider additional
evidence after granting or denying a motion to suppress if it believes the facts of the case
warrant reconsideration. They do not show that reconsideration is mandatory or was
warranted here. More importantly, these cases are not illustrative of the State's diligence
or lack of diligence, which is the pivotal issue here.

11

The State also argues that the district court's denial of its motion to reconsider was
unreasonable because it was an "extreme measure" which prejudiced the State. The State
claims that this appeal might be its only remedy because the doctrines of res judicata or
law of the case could bar it from relitigating this issue. But the State does not provide
sufficient authority or analysis to show whether either doctrine would likely apply in this
context or that such prejudice warrants a different result. Even assuming such a bar to
relitigation of this case, the State could have avoided this prejudice by the exercise of
reasonable diligence. Had it been reasonably diligent during the continued suppression
hearing it could have discovered the crucial evidence before the district court granted
Wilson's motion to suppress. The district court properly concluded that the State had
already had "ample opportunity" to present the evidence and that the witness who
ultimately provided Wilson's signed consent form had previously testified.

The district court additionally weighed the "conservation of judicial resources" in
finding the balance tipped against the State. That is a legitimate and important interest in
the administration of justice. See State v. Parry, 51 Kan. App. 2d 928, 935-6, 358 P.3d
101 (2015) (Gardner J., dissenting) (agreeing with majority that the State cannot not
piece-meal its theories about the legality of a search and try them seriatim).

The district court weighed the relevant factors and chose not to reconsider its
decision when the State tardily proffered the crucial evidence. We believe a reasonable
person could have come to that same conclusion, so we find the district court did not
abuse its discretion by denying the State's motion to reconsider even though that motion
presented evidence that, had it been timely, would have changed the outcome of the
suppression motion.

Affirmed.