NOT DESIGNATED FOR PUBLICATION
No. 112,082
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DEVEON D. SHARKEY,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; BENJAMIN L. BURGESS and ERIC WILLIAMS, judges.
Opinion on remand filed April 9, 2021. Affirmed.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before ATCHESON, P.J., POWELL and SCHROEDER, JJ.
PER CURIAM: Deveon D. Sharkey appealed his convictions for aggravated
robbery, aggravated sodomy, kidnapping, and attempted criminal use of a financial card.
Sharkey alleged various trial errors and further alleged his statutory speedy trial rights
were violated when the district court granted a continuance at the request of his attorney
without Sharkey present. We found no error and affirmed Sharkey's convictions and
sentence. State v. Sharkey, No. 112,082, 2017 WL 1033707, at *1, 8 (Kan. App. 2017)
(unpublished opinion). Sharkey timely petitioned our Supreme Court for review, which it
granted in part. 308 Kan. 1600 (2018). The sole issue for which our Supreme Court
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granted review was Sharkey's speedy trial claim. In light of State v. Wright, 305 Kan.
1176, 390 P.3d 899 (2017) (Wright I), the matter was remanded to this court with
instructions that we, in turn, remand to the district court for an evidentiary hearing and
written findings of fact and conclusions of law regarding Sharkey's speedy trial claim.
We have received the district court's findings and will now consider the merits of
Sharkey's speedy trial claim in light of our Supreme Court's holding in State v. Wright,
307 Kan. 449, 410 P.3d 893 (2018) (Wright II).
Based on our review of the record, we conclude the district court's findings that
the State was prepared to go to trial on the scheduled trial dates and the outcome of trial
would have been the same was properly supported by the evidence. We affirm.
FACTS
We will not repeat the facts of this case as they are fully set forth in our prior
opinion. See Sharkey, 2017 WL 1033707, at *1-2. Relevant to the issue on remand, on
September 3, 2013—22 days after his arrest—Sharkey filed a pro se motion asserting his
statutory right to a speedy trial and objecting to any continuances. He waived his
preliminary hearing and was arraigned on September 12, 2013. His jury trial was initially
set for November 4, 2013. On November 4, 2013, the trial date was continued to
December 9, 2013. On November 15, 2013, Sharkey filed a pro se motion to dismiss
counsel, alleging his attorney violated his right to be present by continuing his jury trial
without his consent. He informed the district court he had filed a motion asserting his
speedy trial rights and objecting to all continuances. Sharkey's motion to dismiss counsel
was heard and granted on December 6, 2013. At the hearing, Sharkey agreed to postpone
the jury trial set for December 9, 2013, so he could obtain new counsel.
New counsel was appointed on December 10, 2013, and the jury trial was
rescheduled for January 6, 2014. Sharkey advised his new counsel at their first meeting
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he objected to any more continuances and was asserting his speedy trial rights. Counsel
then told Sharkey he had several cases in front of him and it would be approximately six
months before he would be ready for Sharkey's case to go to trial.
Defense counsel asked the district court to continue the trial set for January 6,
2014. Sharkey was not present at the hearing. A new trial date was set for February 3,
2014. Defense counsel then requested a continuance from that date. Counsel did not
consult with Sharkey about the continuance because he had already told Sharkey his case
would be continued for several months. Sharkey was not present at the hearing. The trial
was continued two more times by defense counsel. Sharkey was not present at either of
those continuance hearings. On May 21, 2014, Sharkey filed a motion to dismiss for
violation of his right to be present at the hearings and violation of his statutory speedy
trial rights; however, the district court never addressed the motion. Sharkey's trial began
on May 27, 2014.
On appeal, Sharkey argued his statutory speedy trial rights were violated because
he was in custody awaiting trial and the case was not tried within 90 days of the date of
his arraignment contrary to K.S.A. 2013 Supp. 22-3402(a), the speedy trial statute in
effect at the time. We rejected Sharkey's argument because the delays were attributable to
Sharkey's counsel. Sharkey, 2017 WL 1033707, at *2-3. However, shortly after we issued
our decision, our Supreme Court issued its decision in Wright I, 305 Kan. at 1178,
holding a criminal defendant has a right to be present at a hearing on a continuance
request. Here, Sharkey was not present when the district court granted the continuances at
his counsel's request. Accordingly, remand for factual findings was necessary to
determine whether Sharkey was prejudiced by the district court's decision to grant the
continuances. See 305 Kan. at 1179-80.
On remand, we instructed the district court to conduct an evidentiary hearing and
presume Sharkey would have objected to his attorney's requests for continuances and
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those requests could not have been granted over Sharkey's objections. We directed the
district court to determine whether the State could have brought Sharkey to trial within
the remaining time for doing so under the statutory speedy trial deadline. Specifically, we
instructed the district court to receive and consider evidence
"on the time the State would have needed to prepare the case for trial, any potential
problems with witness availability or other evidentiary constraints the State would have
faced with trying the case within the speedy trial time, and other facts relevant to the
State's ability to have satisfied the requirements of K.S.A. 22-3402 had the defense
continuances been denied."
The district court conducted the requested evidentiary hearing. Sharkey was
present and chose not to testify. The only witness was the lead prosecutor, who testified
the continuances were due to defense counsel's caseload, not the State's readiness to try
the case. The prosecutor stated she had the necessary evidence to try the case on
December 9, 2013. The only additional evidence was a DNA report the State received in
January 2014, relating to Sharkey's sexual assault of the victim. However, the prosecutor
stated she did not believe the DNA report would have been necessary for the State to
proceed to trial because the victim had positively identified Sharkey as the person who
assaulted her and stole her bank cards and Sharkey was found at a nearby convenience
store shortly after the incident with the victim's bank cards in his possession. In other
words, the DNA report was merely corroborating evidence of the victim's account.
The prosecutor admitted she had not subpoenaed witnesses for the December 2013
and January 2014 trial dates. However, the reason she had not done so was because she
knew Sharkey had requested new counsel to be appointed for him prior to the December
2013 trial date and his newly appointed counsel told her he would be continuing the
January trial date because of his already existing caseload. Thus, she did not want to issue
subpoenas if the case was not actually going to proceed to trial on those dates.
Nevertheless, the prosecutor believed the witnesses still could have been subpoenaed in
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time for trial, or otherwise would have appeared voluntarily, if the district court had not
granted the defense counsel's requests for continuances.
After considering the evidence, the district court found the State was prepared to
go to trial and could have done so within the statutory speedy trial deadline if the defense
counsel's continuance requests had been denied. The district court noted trial was
originally scheduled for December 9, 2013. However, on December 6, 2013, Sharkey's
pro se motion for appointment of new counsel was granted and Sharkey personally
agreed to a continuance so new counsel could be appointed. A new trial date was set for
January 6, 2014, which was continued by defense counsel three times until the jury trial
commenced on May 27, 2014.
The district court found between the date of arraignment and the trial date set for
December 9, 2013, 87 days of the speedy trial deadline should be charged to the State.
The district court also found the State was prepared to proceed to trial on December 9,
2013, well within the 90-day speedy trial deadline. The district court noted the only
additional evidence was a DNA report the State obtained in January 2014. The district
court held the State's evidence and witnesses at trial, with the exception of the doctor who
testified in reference to the DNA report, would have been the same.
The district court found there was no problem with witness availability or
evidentiary constraints on the part of the State to be ready for the December 9, 2013 trial
date. The district court held the DNA report was of minimal significance because, at trial,
Sharkey testified in his own defense and admitted to sexual contact with the victim,
claiming it was consensual. The DNA report obtained in January 2014 merely
corroborated the fact sexual contact occurred—something Sharkey admitted—not
whether it was consensual—the point of the parties' dispute. The district court found the
available evidence as of the December 2013 trial date would have been sufficient to
prove Sharkey guilty because the victim identified Sharkey on the day of the assault and
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Sharkey was apprehended near the victim's home with the victim's financial cards in his
possession.
Following the district court's decision, Sharkey and the State submitted additional
briefing to this court.
ANALYSIS
When a continuance is granted without the defendant present, the defendant's right
to be present at all critical stages of the proceedings is violated. Thus, continuances
requested by defense counsel and granted when the defendant is not present may violate a
defendant's statutory speedy trial rights. Even if the continuance is attributed to the
defense and should have been attributed to the State, appellate remedy is limited. See
K.S.A. 2020 Supp. 22-3402; Wright I, 305 Kan. at 1178. However, any error in not
bringing a defendant to trial within the statutory speedy trial deadline may nevertheless
be declared harmless.
To declare such an error harmless, the party benefitting from the error—here, the
State—must prove "'beyond a reasonable doubt that the error complained of will not or
did not affect the outcome of the trial in light of the entire record, i.e., where there is no
reasonable possibility that the error contributed to the verdict.' [Citations omitted.]" 305
Kan. at 1179. "When the lower court ruling entails factual findings arising out of disputed
evidence, a reviewing court will not reweigh the evidence and will review those factual
findings for 'supporting substantial competent evidence' only. State v. Sanchez-Loredo,
294 Kan. 50, 54, 272 P.3d 34 (2012)." State v. Hardy, 305 Kan. 1001, 1012, 390 P.3d 30
(2017). Substantial competent evidence refers to legal and relevant evidence that a
reasonable person could accept as being adequate to support a conclusion. State v. Doelz,
309 Kan. 133, 138, 432 P.3d 669 (2019).
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Sharkey argues the district court's decision was not supported by substantial
competent evidence. He asserts because the State had not issued any subpoenas for the
December 9, 2013 or January 6, 2014 trial dates, it would not have been prepared to try
the case within the statutory speedy trial deadline. Essentially, Sharkey does not dispute
the State had the necessary evidence as of the relevant dates; rather, he asserts the State
did not show it was prepared to present the evidence on the trial dates. We find Sharkey's
argument on this point unpersuasive. Given the uncontested evidence by the lead
prosecutor, we see no reason the State could not have subpoenaed its witnesses or
obtained their voluntary appearance in sufficient time had defense counsel's continuance
requests been denied.
The December 9, 2013 trial date was set within the statutory timeline for a speedy
trial. Then Sharkey requested new counsel, and his motion was granted on December 6,
2013, at a hearing he attended and agreed on the record to a continuance to allow new
counsel to be appointed. We cannot find any prejudicial error from the granting of a
continuance which Sharkey initiated and personally agreed to while present at the motion
hearing. In any event, we see no reason—and Sharkey fails to explain any reason—the
State could not have proceeded to trial on the date of December 9, 2013. As a practical
matter, it would not have been reasonable for anyone to have expected new counsel to
have been ready to try a case like this one with limited time to prepare.
The lead prosecutor's testimony reflected witnesses were typically subpoenaed 14
to 21 days prior to trial but subpoenas can be issued much closer to trial. The prosecutor
further testified witnesses would sometimes appear voluntarily for trial without the
issuance of subpoenas. All of the post-December 2013 trial continuances were at the
request of the defense counsel, which resulted in the jury trial starting on May 27, 2014.
We also note the prosecutor testified she fully expected the matter to be continued by the
defense and did not believe it would proceed to trial in January 2014, or shortly
thereafter, because defense counsel, after he was appointed to represent Sharkey, had
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made it clear he was going to request continuances and needed time to prepare for trial
given his existing caseload. Thus, we cannot see any reason to fault the State for not
subpoenaing witnesses for trials it had no reason to expect would commence on the
earlier scheduled dates. The pertinent question is whether the State could have still
proceeded to trial if defense counsel's expected continuance requests had been denied.
The uncontroverted evidence in the record reflects the district court accepted the
prosecutor's testimony the State could have been ready. Sharkey does not meaningfully
dispute the State had the necessary evidence to convict him had the trial occurred in
December 2013 or January 2014.
The district court—as the fact-finder—had the opportunity to weigh the evidence
and determine the credibility of the prosecutor's statements. The record before the district
court reflects, and the district court found, the State had no constraints stopping it from
bringing Sharkey to trial within the statutory speedy trial limits. Based on finding the
State was prepared to and could have timely proceeded to trial—particularly its finding
"[t]here were no potential problems with witness availability or other evidentiary
constraints the state would have faced in bringing the defendant to trial"—the district
court found the prosecutor's statements credible. We will not reweigh evidence or disturb
credibility determinations underlying the district court's findings. See Hardy, 305 Kan. at
1012.
The district court found the DNA report was the only materially different or
additional piece of evidence available to the State at the time of trial. And its
determination the report was largely insignificant is well founded based on Sharkey's
testimony claiming consensual sexual contact with the victim and his theory of defense at
trial. The other evidence already available to the State before he requested new counsel
included: The victim's testimony that Sharkey entered her house, sexually assaulted her,
demanded and took her financial cards; Sharkey's arrest near the victim's home shortly
after the incident; the fact Sharkey was found trying to use the victim's financial cards at
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the time of his arrest; and the victim identified Sharkey as her assailant shortly after his
arrest. There was sufficient evidence to support Sharkey's convictions both before the
trial was continued in December 2013 and at the time of trial in May 2014. And the State
could have had its witnesses available to testify as it did.
Because of the abundance of evidence already existing in December 2013, the
State gained no advantage by the delay that would enhance the strength of its case against
Sharkey. The record reflects the State could have tried him before his statutory right to a
speedy trial ran, even without the DNA evidence. There is no doubt Sharkey had a right
to be present at each of the hearings where the jury trial was continued, and the trial may
have occurred sooner based on his objection to a continuance, but regardless of when he
went to trial, he would have been convicted given the State's evidence. We are firmly
convinced the error was harmless.
Affirmed.
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