IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 119,741
STATE OF KANSAS,
Appellee,
v.
DOMINIC VARGAS,
Appellant.
SYLLABUS BY THE COURT
1.
A district court has no authority to hold one of two convictions for alternatively
charged counts in abeyance.
2.
When a jury returns guilty verdicts on two alternatively charged counts, a district
court may enter only one conviction.
3.
Where alternatively charged counts result in multiple guilty verdicts for alternative
ways of committing one crime, the multiple verdicts merge into one conviction.
Review of the judgment of the Court of Appeals in an unpublished opinion filed October 25,
2019. Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed July 30, 2021.
Judgment of the Court of Appeals reversing the district court is affirmed in part and reversed in part on
the issue subject to review. Judgment of the district court is reversed on the issue subject to review, and
the case is remanded to the district court with directions.
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Kasper Schirer, of Kansas Appellate Defender Office, argued the cause, and was on the brief for
appellant.
Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
WILSON, J.: The State seeks review of the portion of the judgment of the Court of
Appeals in State v. Vargas, No. 119,741, 2019 WL 5485179 (Kan. App. 2019)
(unpublished opinion), reversing one of Dominic Vargas' two alternatively charged
convictions for fleeing or attempting to elude a law enforcement officer. The State asserts
it is appropriate for the court to keep both convictions, so long as one is held "in
abeyance." The State is wrong. The two guilty verdicts on alternatively charged counts in
this case can support only one conviction. There is no authority for a second conviction,
regardless of what it might be labelled. On this point we agree with the panel below.
However, the panel overstepped by dictating that the second conviction must be reversed.
Rather, the guilty verdicts on alternative counts charging the same crime merge by
operation of law to result in a single conviction for fleeing or attempting to elude law
enforcement. Consequently, we affirm the panel in part and reverse it in part. The district
court is reversed on the sole issue before us, and we remand the matter to the district
court with directions to enter an amended journal entry reflecting the merger of the two
guilty verdicts into one conviction, as we will discuss below.
FACTUAL AND PROCEDURAL BACKGROUND
For purposes of our review, the underlying facts of this case are not at issue; a
more detailed summary of the facts may be found in the Court of Appeals opinion.
Briefly stated, on March 31, 2016, Sedgwick County Sheriff's Deputy James Maness saw
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a black Pontiac G6 cut other cars off on Kellogg Avenue. Maness activated his lights and
siren in an effort to pull the G6 over, but when the G6's driver—later identified by
Maness as Vargas—defied these signals and "floored it" to escape, Maness pursued him.
Vargas ultimately evaded Maness after a short pursuit through Wichita, at one point
exceeding 120 mph in a 50 mph zone. During the chase, Maness saw Vargas commit
numerous traffic violations, including speeding infractions, running red lights, and failing
to use turn signals, among others.
Maness subsequently learned that the G6 belonged to Jessica Garcia. Deputies
dispatched to her residence learned that Vargas was Garcia's boyfriend. Although Garcia
and the deputies presented somewhat conflicting testimony at trial on this point, the
deputies were informed, at the very least, that Vargas had access to Garcia's car that day.
Based on Vargas' driver's license photo and his observations of the G6's driver during the
pursuit, Maness identified the G6's driver as Vargas.
Following this identification, the State charged Vargas with two alternative counts
of fleeing or attempting to elude an officer: the first alleging, under "K.S.A. 2015 Supp.
8-1568(b)(1)(E)[,](c)(2)," that Vargas committed five or more moving violations (Count
One) and the second alleging, under "K.S.A. 2015 Supp. 8-1568(b)(1)(C)[,](c)(2)," that
Vargas engaged in reckless driving (Count Two). The State also charged Vargas with
unlawfully operating a motor vehicle based on failure to signal a lane change (Count
Three).
At the conclusion of trial, the jury returned guilty verdicts on all three counts, and
the district court convicted Vargas of all three. At sentencing, the State suggested that the
district court could hold Count Two "in abeyance" and sentence Vargas based on Count
One as the primary crime of conviction, and—with no objection from Vargas' counsel—
the district court agreed. The district court then sentenced Vargas on Count One and
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Count Three, giving him a total term of 15 months' incarceration. The journal entry
ultimately entered by the district court memorialized Vargas' conviction for Count Two
but noted that the sentence was held in abeyance.
Vargas appealed. Before the Court of Appeals, Vargas argued—among other
things—that the district court erred by entering convictions on both alternatively charged
counts of fleeing or attempting to elude a law enforcement officer. The State, meanwhile,
conceded that merger of Counts One and Two could be appropriate but argued that the
district court's decision to hold Count Two in abeyance eliminated the need to consider
merger. The panel noted this concession but said no more about the question of merger.
Based largely on State v. Garza, 290 Kan. 1021, 1035-36, 236 P.3d 501 (2010), the panel
concluded that the district court lacked authority to enter both convictions, and that it had
no authority to hold one conviction in abeyance. The panel went on to state:
"Accordingly, we [reverse] Vargas' second conviction for fleeing or attempting to elude a
law enforcement officer for reckless driving and remand this case with directions to the
district court to enter an amended journal entry reflecting one conviction for fleeing or
attempting to elude a law enforcement officer as well as the conviction for failing to
signal a lane change." Vargas, 2019 WL 5485179, at *4.
The panel rejected Vargas' other claimed errors, including a challenge to the
verdict form, a challenge to the district court's denial of Vargas' motion for mistrial, and a
claim of prosecutorial error, along with a claim of cumulative error. 2019 WL 5485179,
at *4-8. Both parties petitioned this court for review, but we granted only the State's
cross-petition for review on the issue of the district court's authority to hold in abeyance
an alternatively charged conviction.
For reasons set out more fully below, we hold that both alternatively charged
convictions cannot stand. In this case, the alternative jury verdicts for one crime—fleeing
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or attempting to elude law enforcement—merge to form one conviction for fleeing or
attempting to elude law enforcement.
ANALYSIS
The district court lacked authority to enter two convictions on the alternative counts of
fleeing or attempting to elude law enforcement.
Standard of Review
As the issue before this court requires consideration of whether the district court
exceeded its statutory authority and whether the district court entered multiplicitous
convictions, we review the district court's decision de novo. See, e.g., State v. George,
311 Kan. 693, 696, 466 P.3d 469 (2020) (multiplicity); State v. Eddy, 299 Kan. 29, 32,
321 P.3d 12 (2014) (statutory interpretation); In re Marriage of Doney & Risley, 41 Kan.
App. 2d 294, 297, 201 P.3d 770 (2009) (district court exceeding statutory authority).
Discussion
Vargas' at-issue convictions lie under K.S.A. 2015 Supp. 8-1568(b)(1), which
provides, in relevant part:
"(b) Any driver of a motor vehicle who willfully fails or refuses to bring such
driver's vehicle to a stop, or who otherwise flees or attempts to elude a pursuing
police vehicle or police bicycle, when given visual or audible signal to bring the
vehicle to a stop, and who: (1) Commits any of the following during a police
pursuit: . . . (C) engages in reckless driving as defined by K.S.A. 8-1566, and
amendments thereto; . . . or (E) commits five or more moving violations."
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We have recognized that driving recklessly and committing moving violations
might occur simultaneously.
"The State can prove that unsafe vehicle operation by either establishing the
definition of 'reckless' as applicable to the crime of reckless driving or by establishing
that, during the flight, the defendant committed five or more moving violations. Contrary
to being mutually exclusive, those proofs would most likely overlap. It is difficult to
imagine that a juror would not view the act of running multiple stop signs at speeds
exceeding 100 miles per hour as evidence of reckless driving." (Emphasis added.) State v.
Castleberry, 301 Kan. 170, 185, 339 P.3d 795 (2014).
The panel here, relying on Garza, 290 Kan. at 1036, reversed Vargas' conviction
for Count Two because "'a defendant cannot be convicted of both offenses when the
crimes are charged in the alternative.'" Vargas, 2019 WL 5485179, at *4. The panel also
noted that Garza cited State v. Blanchette, 35 Kan. App. 2d 686, 704, 134 P.3d 19 (2006),
and State v. Dixon, 252 Kan. 39, 49, 843 P.2d 182 (1992), for support. Vargas, 2019 WL
5485179, at *4.
The State attempts to "save" the second conviction by claiming that the district
court may hold one alternatively charged conviction "in abeyance." In support, the State
cites several cases where appellate courts have held (or recognized the holding of) entire
cases, or portions of those cases, in abeyance for various procedural reasons; the State
also cites several cases where a district court has purported to stay or hold in abeyance
some aspect of a case, usually as part of an agreement with the defendant. See, e.g.,
Gannon v. State, 303 Kan. 682, 741, 368 P.3d 1024 (2016) (mandate stayed in order to
give the Legislature time to craft a solution); State v. Petersen-Beard, 304 Kan. 192, 212,
377 P.3d 1127 (2016) (Johnson, J., dissenting) (dissent recognized that the appeal in
another case had been "held in abeyance pending" the Petersen-Beard decision); State v.
Scott, 286 Kan. 54, 91, 183 P.3d 801 (2008) (recognizing that appeal had been held in
abeyance pending outcome of Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L.
6
Ed. 2d 429 [2006]), overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d
332 (2016); State v. Campbell, 273 Kan. 414, 424, 44 P.3d 349 (2002) (recognizing
district court's authority to sentence a defendant on counts initially suspended under an
agreement between the defendant and the State); State v. Orr, 262 Kan. 312, 316, 940
P.2d 42 (1997) (appellate court retained jurisdiction over appeal despite a remand for a
hearing under State v. Van Cleave, 239 Kan. 117, 119, 716 P.2d 580 [1986]); State v.
Dalton, 21 Kan. App. 2d 50, 55, 895 P.2d 204 (1995) (diversion agreement placed
criminal charges "in abeyance"); State v. Bollig, No. 115,408, 2018 WL 1976689, at *22
(Kan. App. 2018) (unpublished opinion) (appellate court retained jurisdiction over the
appeal despite remanding the matter to the district court for further findings of fact on a
suppression issue); State v. Peterson, No. 116,931, 2018 WL 4840468, at *6 (Kan. App.
2018) (unpublished opinion) (appellate court retained jurisdiction over the appeal despite
remanding the matter to the district court to conduct a hearing under Batson v. Kentucky,
476 U.S. 79, 88-89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 [1986]), rev. denied 309 Kan. 1352
(2019).
However, we find these authorities to be distinguishable. None of the above cases
support a district court's exercise of power to hold a criminal conviction in abeyance.
Several cases have considered the ultimate fate of multiple convictions on
alternatively charged counts. In State v. Sullivan, 224 Kan. 110, 112, 578 P.2d 1108
(1978), disapproved of on other grounds by State v. Berry, 292 Kan. 493, 254 P.3d 1276
(2011), one of the defendants received two convictions and sentences for first-degree
murder arising out of a single killing. As the court wrote:
"As pointed out in State v. Jackson, 223 Kan. 554, 575 P.2d 536 (1978), two first degree
murder convictions and sentences stemming from one homicide constitute double
punishment and cannot be allowed to stand. When an information charges the defendant
with premeditated murder and felony murder for the commission of a single homicide the
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state may introduce evidence on both theories at the trial, but the trial court should
instruct the jury on both theories in the alternative in order to avoid double convictions or
sentences. If either or both theories are proven only one conviction of murder in the first
degree results. Accordingly, one of the sentences for murder in the first degree . . . must
be and the same is hereby set aside." (Emphasis added.) 224 Kan. at 112.
Actually, State v. Jackson reached a slightly different outcome. 223 Kan. 554, 575
P.2d 536 (1978). There, the Kansas Supreme Court found "technical[]" error in the
district court's jury "instruction regarding conviction on both theories" and in "the
conviction under both theories," but did not reverse because Jackson received only one
sentence. The court went on to "hold it to be better practice for the trial court to instruct
the jury in the alternative on first degree murder so that no possibility of jury confusion
results." 223 Kan. at 557. Thus, while the Sullivan court was unequivocal that only one
conviction could result, the Jackson court apparently let both convictions stand.
Nevertheless, as a later case clarified:
"It has long been the law of Kansas that an accusatory pleading in a criminal action may,
in order to meet the exigencies of proof, charge the commission of the same offense in
different ways. In such a situation, a conviction can be upheld only on one count, the
function of the added counts in the pleading being to anticipate and obviate fatal
variance between allegations and proof. Thus, it has been held proper to charge by
several counts of an information the same offense committed in different ways or by
different means to the extent necessary to provide for every possible contingency in the
evidence." (Emphasis added.) State v. Saylor, 228 Kan. 498, 503, 618 P.2d 1166 (1980)
(citing numerous cases).
Thus, our caselaw fails to disclose any authority for the district court to hold an
alternatively charged conviction in abeyance. Nor does K.S.A. 2020 Supp. 22-3424—or
any other statute—provide such authority. The State suggests that nothing in K.S.A. 2020
Supp. 22-3424 requires a district court to dismiss one of two guilty verdicts on alternative
theories, but we find this proposition to be irrelevant. The infirmity of multiple
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convictions on alternatively charged theories arises from double jeopardy concerns, not
from statute.
"The Double Jeopardy Clause of the Fifth Amendment provides: '[N]or shall any
person be subject for the same offence to be twice put in jeopardy of life or limb.' U.S.
Const. amend. V. The provision was made applicable to the States by the Fourteenth
Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707
(1969). . . .
....
"[T]he [United States Supreme] Court divides the protection created by the
Double Jeopardy Clause of the Fifth Amendment into three broad categories, stating the
clause protects against: (1) a second prosecution for the same offense after acquittal; (2)
a second prosecution for the same offense after conviction; and (3) multiple punishments
for the same offense." State v. Schoonover, 281 Kan. 453, 463, 133 P.3d 48 (2006).
This case raises double jeopardy concerns of multiple punishments for the same
offense, as opposed to successive prosecutions.
The State asserts there is no harm—no "punishment," if you will—for a conviction
alone on the alternative count charged, so long as that conviction is held by what is
described "in abeyance." Therefore, it reasons, there cannot be a double jeopardy
concern. The State's position is not persuasive. The very fact of a conviction, regardless
of its label as "in abeyance," shelved, "in the pocket," or anything similar, is
punishment—even without a concomitant sentence. As the United States Supreme Court
has explained:
"The separate conviction, apart from the concurrent sentence, has potential adverse
collateral consequences that may not be ignored. For example, the presence of two
convictions on the record may delay the defendant's eligibility for parole or result in an
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increased sentence under a recidivist statute for a future offense. Moreover, the second
conviction may be used to impeach the defendant's credibility and certainly carries the
societal stigma accompanying any criminal conviction. Thus, the second conviction, even
if it results in no greater sentence, is an impermissible punishment. [Citations omitted.]"
Ball v. United States, 470 U.S. 856, 865, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985).
Consequently, we find no support for the State's proposition that a district court
has the power to hold an alternative conviction in abeyance. However, we find support
for the State's fallback position: that the verdict on Count Two should merge by
operation of law with the verdict on Count One and result in one conviction. In this
respect, we diverge from the panel's analysis.
Primarily, our criminal caselaw has discussed the concept of merger in the context
of either felony murder or multiplicity. See, e.g., State v. Pattillo, 311 Kan. 995, 1000,
469 P.3d 1250 (2020) (discussing felony-murder implications); Schoonover, 281 Kan. at
478-95 (considering, and ultimately rejecting, continued application of the "single act of
violence/merger" analysis to evaluate multiplicity). The PIK section on alternative
charges advises, in relevant part, "If the jury returns appropriate verdicts of guilty to
multiplicitous charges, the trial court must accept only the verdict as to the greater charge
under a doctrine of merger." PIK Crim. 4th 68.090. The general rule elsewhere suggests
that merger is the appropriate course of action when a jury returns guilty verdicts on two
alternatively charged counts, as here. See, e.g. State v. Berry, 503 S.W.3d 360, 362
(Tenn. 2015); 21 Am. Jur. 2d, Criminal Law § 21 (merger appropriate, inter alia, when
multiple convictions represent "offenses that merely offer an alternative basis for
punishing the same criminal conduct"). We agree.
We have not previously expounded upon the practical impact of merger on the
situation the State appears to fear the most: where one alternatively charged conviction is
later reversed on appeal, leaving only a dismissed alternative conviction behind. The
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State presents one such example in Penn v. State, No. 105,777, 2012 WL 3171813, at *6
(Kan. App. 2012) (unpublished opinion), where the district court—at the State's
request—dismissed alternatively charged convictions at sentencing, while the surviving
convictions were later reversed for lack of sufficient evidence. Without detouring
unnecessarily into the facts, the Penn panel ultimately concluded that, once dismissed,
alternatively charged convictions were "rendered void and cannot be reinstated." The
panel also opined that "[t]he court could not have merged the verdicts into single
convictions for each act of rape because doing so would have yielded an alternative
means problem," citing State v. Wright, 290 Kan. 194, 201-06, 224 P.3d 1159 (2010), for
support. 2012 WL 3171813, at *6.
We are skeptical of the Penn panel's somewhat offhanded remark about the nature
of merger, given the doctrinal underpinnings of our alternative means caselaw. Indeed,
where a jury finds a defendant guilty of both alternatives charged, there is no issue with
juror unanimity, which lies at the core of our alternative means jurisprudence. See, e.g.,
State v. Brown, 295 Kan. 181, 188, 284 P.3d 977 (2012). When two alternatively charged
jury verdicts merge into one conviction and an appellate court later reverses one of the
verdicts based on insufficient evidence, for example, there is no concern that the jury was
unclear as to which of the two theories it embraced—having returned unanimous guilty
verdicts on both. Cf. State v. Sanchez, 282 Kan. 307, 319, 144 P.3d 718 (2006) ("[E]ven
if a conviction on one underlying felony must be reversed, the felony-murder conviction
can still be valid when, on a separate verdict form, the jury unanimously finds the
defendant guilty of a different, legally sufficient felony that supports the felony-murder
conviction."); Beier, Lurching Toward the Light: Alternative Means and Multiple Acts
Law in Kansas, 44 Washburn L.J. 275, 300 (2005) ("Unless it is clear from a verdict form
that the jury was unanimous on premeditated murder alone or on premeditated murder
and on felony murder, the defendant cannot be sentenced to the harsher penalty.").
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Here, the two alternatively charged counts required proof of the same
elements for a single crime: fleeing or attempting to elude a pursuing police
vehicle while driving dangerously. See State v. Davis, 312 Kan. 259, 264-66, 474
P.3d 722 (2020) (distinguishing elements of K.S.A. 2019 Supp. 8-1568[b][1]
[dangerous driving while fleeing from an officer in pursuit, which creates an
immediate public danger] from K.S.A. 2019 Supp. 8-1568[b][2] [evading capture
for a felony, which does not necessarily present the same immediate public danger
because there is no requirement of an active pursuit]). The two verdicts were, thus,
multiplicitous. Schoonover, 281 Kan. at 497-98. Our opinion is limited to that
circumstance. The merger of the two verdicts for multiplicitous, alternatively
charged counts into one single conviction was the proper course of action. While
the panel correctly diagnosed the problem of multiple convictions for the
alternatively charged counts, we disagree with its proffered remedy for this
problem, and reverse it in part on that basis.
We are sympathetic to the district court's attempted solution, in light of the
unusual situation and the relative lack of precedential or statutory guidance on the proper
course of action. Nevertheless, Vargas cannot receive two convictions for committing
this single, alternatively charged crime. Accordingly, the alternatively charged jury
verdict in Count One and Count Two must merge into one conviction.
CONCLUSION
The judgment of the Court of Appeals reversing the district court is affirmed in
part and reversed in part on the issue subject to review. Judgment of the district court is
reversed on the issue subject to review. The jury's verdicts of guilty in Count One and
Count Two are merged as a matter of law. We remand this case to the district court with
directions to enter an amended journal entry correctly reflecting that Vargas' second
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verdict for fleeing or attempting to elude a law enforcement officer has merged with his
first, resulting in a single conviction for fleeing or attempting to elude law enforcement.
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