State v. Randall

NOT DESIGNATED FOR PUBLICATION

No. 124,015

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LEROY RANDALL,
Appellant.

MEMORANDUM OPINION

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed November 4,
2022. Sentence vacated and case remanded with directions.

Kristen B. Patty, of Wichita, for appellant, and Leroy Randall, appellant pro se.

Andrew R. Davidson, assistant district attorney, Thomas Stanton, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before WARNER, P.J., GREEN and HILL, JJ.

PER CURIAM: In this direct criminal appeal, we must answer whether we can
review a sentencing procedure for a presumption of vindictiveness in a prosecution when
the defendant appeals a guideline sentence. Both the United States Supreme Court and
the Kansas Supreme Court have ruled that whenever a court imposes a more severe
sentence after an appeal and a new trial, the sentencing court must give its reasons for
imposing a harsher sentence. A sentencing court's failure to give any reason for the
harsher sentence creates a presumption of vindictiveness to the second, longer sentence
and is a violation of the Due Process Clause of the Fourteenth Amendment to the United

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States Constitution. After a successful appeal resulting in the reversal of his convictions,
the defendant here was retried and convicted of the same crimes as before. The same
court imposed a longer prison sentence and gave no reasons why it imposed a longer
sentence. Because the Constitution is the law of the land—the law that binds together all
of our laws, we must hold that the presumption of vindictiveness applies to this sentence.
We may be barred from reviewing a guideline sentence, but we are not barred from
enforcing the Constitution and reviewing how the court imposed this sentence. Due
process demands that we vacate and remand for resentencing.

Randall is tried and convicted of several serious crimes, again.

In this retrial, a jury convicted Leroy Randall of aggravated robbery, two counts of
kidnapping, and two counts of aggravated assault after he robbed a Dollar General and
held two employees at gunpoint.

Randall had been convicted of these same crimes in his first prosecution but those
convictions were overturned on appeal. A panel of this court held that the district court
erred by denying Randall's request to represent himself at trial. The panel reversed the
convictions and remanded this case for a new trial. State v. Randall, No. 119,301, 2019
WL 6974164, at *7 (Kan. App. 2019) (unpublished opinion).

The jury in the second trial found Randall guilty of all charges. Randall asked for
a durational departure sentence. The State opposed his request for a departure and asked
the district court, instead, to sentence him to the aggravated presumptive sentence for
each crime. The district court denied Randall's request for a departure, but did impose a
harsher sentence.

This time, the court sentenced Randall to 247 months—the aggravated
presumptive sentence—for aggravated robbery. The court then sentenced him to 61

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months for each kidnapping charge but ordered one of those sentences to be served
consecutively. The court sentenced Randall to 13 months for each aggravated assault
charge and ordered one of those sentences to be served consecutively. Randall's total
prison sentence was 321 months.

In his first prosecution, the district court sentenced Randall to 292 months in
prison. Randall's new sentence, imposed by the same trial judge, is 29 months longer than
his original prison sentence. For this new sentence, the court used the aggravated number
in the grid box for each crime to sentence Randall for aggravated robbery, kidnapping
(two counts), and aggravated assault (two counts). The overall length of the sentence was
also increased by ordering some sentences to be served consecutively rather than
concurrently. All sentences are, however, guideline sentences. The judge gave no reasons
why this sentence was longer than the prior sentence for the same crimes.

Randall appeals, arguing that his due process rights were violated when the district
court sentenced him to a longer sentence after his case was reversed on appeal and
remanded for a new trial. He also argues, in his own brief, filed without benefit of
counsel, that his speedy trial rights were violated.

Longer sentences imposed after an appeal and a retrial can be a due process violation.

Randall claims a due process violation here because he received a longer sentence
for the same crimes. Our United States Supreme Court, in North Carolina v. Pearce, 395
U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), ruled on this subject. Pearce involved
two separate cases in which the defendants successfully appealed their original
convictions and on retrial received greater sentences than they had received originally.
For the defendant Pearce, the State offered "no evidence" to justify the increased sentence
and had not attempted to explain or justify the greater penalty. For the defendant Rice,
the State advanced no reason for his increased sentence "beyond the naked power to

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impose it." 395 U.S. at 726. The Court in Pearce noted that the Due Process Clause of the
Fourteenth Amendment to the United States Constitution prevented increased sentences
motivated by vindictive retaliation by the trial court upon resentencing:

"Due process of law, then, requires that vindictiveness against a defendant for
having successfully attacked his first conviction must play no part in the sentence he
receives after a new trial. And since the fear of such vindictiveness may
unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack
his first conviction, due process also requires that a defendant be freed of apprehension of
such a retaliatory motivation on the part of the sentencing judge." 395 U.S. at 725.

The Court then set out some clear directions about how to deal with retrials
and new sentences.

"In order to assure the absence of such a motivation, we have concluded that
whenever a judge imposes a more severe sentence upon a defendant after a new trial, the
reasons for his doing so must affirmatively appear. Those reasons must be based upon
objective information concerning identifiable conduct on the part of the defendant
occurring after the time of the original sentencing proceeding. And the factual data upon
which the increased sentence is based must be made part of the record, so that the
constitutional legitimacy of the increased sentence may be fully reviewed on appeal." 395
U.S. at 726.

The Pearce mandate is clear: If a court intends to increase a sentence after an
appeal and retrial, then that court must give its reasons for doing so. 395 U.S. at 726.

In the years following Pearce, the United States Supreme Court has refined its
initial ruling. Some circumstances prevent the application of the presumption of
vindictiveness. See, e.g., Colten v. Kentucky, 407 U.S. 104, 119-20, 92 S. Ct. 1953, 32 L.
Ed. 2d 584 (1972) (presumption not applicable in two-tiered trial system where defendant
appeals for de novo trial; different courts in first, second trial); Chaffin v. Stynchcombe,

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412 U.S. 17, 18, 26-27, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973) (presumption does not
apply when different jury imposes increased sentence on retrial; jury has "no motivation
to engage in self-vindication"); Blackledge v. Perry, 417 U.S. 21, 27, 94 S. Ct. 2098, 40
L. Ed. 2d 628 (1974) (presumption applied; court concerned with punishment posing "a
realistic likelihood of 'vindictiveness'"); Wasman v. United States, 468 U.S. 559, 572, 104
S. Ct. 3217, 82 L. Ed. 2d 424 (1984) (defendant given more severe sentence for separate
conviction between first, second sentencing; presumption does not apply); Texas v.
McCullough, 475 U.S. 134, 138-40, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986)
(presumption does not apply when judge in first trial grants motion for new trial, does not
apply when "significant evidence" not before first sentencer); Alabama v. Smith, 490 U.S.
794, 801, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989) (presumption does not apply when
sentence imposed after trial more severe than one imposed after earlier guilty plea;
information brought out in trial often more detailed than information supporting guilty
plea). There is no absolute ban on longer sentences after an appeal and retrial, but there
are certain constitutional restrictions.

Despite these refinements, the Kansas Supreme Court has embraced the Pearce
rule. The court has applied the presumption of vindictiveness in two cases: State v. Rinck,
260 Kan. 634, 923 P.2d 67 (1996), and more recently in State v. Brown, 309 Kan. 369,
375, 435 P.3d 546 (2019).

In Rinck, 260 Kan. 634, Syl. ¶1, the Kansas Supreme Court followed the United
States Supreme Court. The court held:

"Due process of law requires that vindictiveness against a defendant for having
successfully attacked his or her first conviction or sentence must play no part in the sentence the
defendant receives after a new trial or upon resentencing. Since the fear of such vindictiveness
may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his
or her first conviction, due process also requires that a defendant be freed of apprehension of such
a retaliatory motivation on the part of the sentencing judge."

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 The court directed that objective information in the record must be the basis for a
harsher sentence:

"In order to assure the absence of a retaliatory motivation whenever a judge
imposes a more severe sentence upon a defendant after a new trial or upon resentencing,
the judge's reasons for doing so must affirmatively appear on the record. Those reasons
must be based on objective information concerning identifiable conduct on the part of the
defendant. The factual data upon which the increased sentence is based must be made
part of the record so that the constitutional legitimacy of the increased sentence may be
fully reviewed on appeal. In this manner, the presumption of vindictiveness created by
the imposition of a more severe sentence upon a defendant after a new trial or upon
resentencing may be overcome." 260 Kan. 634 Syl. ¶ 2.

Then, in Brown, Brown's defense counsel had questioned the judge about why
Brown received an additional 12 months on his sentence after a successful appeal and
retrial. The judge replied, "'The—I don't think—No more than just it's an appropriate
legal sentence, and the Court considered all the factors in the, in the Sentencing
Guidelines relative to durational departure.'" 309 Kan. at 374. On a petition for review
from a divided Court of Appeals ruling approving the longer sentence, the court reversed
that holding. The court pointed out that, the district judge, while stating substantial and
compelling reasons for both departures, failed to state a reason for giving Brown a 12-
month increase. 309 Kan. at 377-78.

Longer sentences are not prohibited. But a court must state its reasons for
imposing a longer sentence so the matter can be reviewed.

When the presumption does not apply, the defendant must affirmatively prove
actual vindictiveness to prevail. State v. Cooper, 275 Kan. 823, 829, 69 P.3d 559 (2003);
Rinck, 260 Kan. at 641.

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The court did not mention its first sentence after this retrial.

The district court gave these reasons for sentencing Randall:

"Well, Mr. Randall, you know, I look at this case and, you know, I heard the
argument that the gun wasn't operable but that doesn't matter to anybody that matters. I
know a lot of, I personally know a lot of self-defense firearm trainers, maybe, oh, dozens
and almost every one of them tells their students that you should probably never use your
firearm to stop a robbery unless the robber starts taking people to the back room. You
know, in other words, that's the time that we expect, we hope that armed citizens
intervene and take action because those things when people are taken and confined is
really, really, really dangerous. It's, like, the last step before executing your victims.
These, so whether the gun was real or not, the situation you created was about as serious
as it could possibly get and you did that on purpose. In fact, you know, you took the time
to go to the Dollar General before you robbed it and look around not just in the store
itself but in the back room in the office and stuff. I saw the video of you just poking
through the drawers in the office so that's the sign of a person that considers this his
profession, which kind of buys into [the prosecutor's] argument that this is your
profession. You obtained, after you did that, you know, you obtained the gun. You helped
gather the materials you needed to create a disguise for yourself. After the robbery you
got rid of your clothes. You took these peoples' phones. You did about as thorough a job
of robbery and kidnapping as I can imagine, so I think it's appropriate to give you and I
will sentence you on Count One the aggravated robbery of 247 months."

These comments are all observations about the evidence presented at this second
trial. The district court did not mention Randall's original sentence, let alone explain why
it was giving him a harsher sentence. The State cites differences between Randall's two
trials that could have affected the court's decision, but the court did not mention any of
those differences when handing down the sentence. The district court talked about two
things when sentencing Randall: (1) Randall purposefully put his victims in fear, and (2)
the thoroughness of Randall's crimes, as if he considers robbery his profession. Despite

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the State's attempt to differentiate Randall's second trial from his first, the district court's
reasons for giving Randall a longer sentence do not affirmatively appear in this record.

From our review of the record, the sentencing court's decision to impose a harsher
sentence here is not based on any objective information concerning identifiable conduct
on the part of the defendant, as required by the rule in Pearce, 395 U.S. at 726. Thus, a
presumption of vindictiveness applies here. The court violated Randall's due process
rights because nothing in the record supports imposing a harsher sentence than Randall
originally received.

But that ruling does not end our discussion. Do we have jurisdiction to make such
a ruling?

We are concerned with K.S.A. 2021 Supp. 21-6820(c)(1). It says: "(c) On appeal
from a judgment of conviction entered for a felony committed on or after July 1, 1993,
the appellate court shall not review: (1) Any sentence that is within the presumptive
sentence for the crime."

None of the cases we have cited above addressed whether appellate courts could
reach this issue when the appellant received a presumptive sentence. In Rinck, 260 Kan.
634, the defendant was sentenced before our sentencing guidelines were enacted. In
Brown, 309 Kan. 369, the defendant received a departure sentence. The law permits
appellate review of departure sentences at the request of either the State or the defendant.
See K.S.A. 2021 Supp. 21-6820(a).

More recently in State v. Williams, No. 121,697, 2020 WL 6372300 (Kan. App.
2020) (unpublished opinion), a panel of this court dealt with the issue. Williams had
received a guideline sentence for felony possession of marijuana and a concurrent one-
year sentence for DUI. The felony conviction was affirmed on appeal. The panel,

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however, reversed the DUI conviction but remanded the question to the district court to
decide whether there was sufficient evidence to convict Williams on the alternative DUI
charge since his jury had found him guilty on both alternative DUI charges. By the time
the matter returned to the district court on remand, Williams had served more than a year
in prison. Despite this, the judge on remand changed the DUI sentence and ordered it to
be served consecutively and thus imposed an additional 12-month sentence. Williams
appealed, raising a claim of vindictiveness. The State conceded that the presumption of
vindictiveness applied, and the case was remanded without discussion of jurisdiction.
2020 WL 6372300, at * 2.

This is a guideline sentence. We are reviewing the sentencing procedure more than
the sentence itself. How the court sentenced Randall violated due process.

Our ruling simply reflects the general rule on sentences in Kansas. "A criminal
sentence that is within statutory limits will not be disturbed on appeal absent a showing
of abuse of discretion or vindictiveness on the part of the sentencing court." State v.
Cooper, 275 Kan. 823, Syl. ¶ 5, 69 P.3d 559 (2003). With no explanation from the court
for the harsher sentence, we must follow our Supreme Court's direction and presume
vindictiveness and vacate this sentence and remand for a new sentence.

The law of the case bars our consideration of Randall's speedy trial claims.

In his pro se supplemental brief, Randall argues that his statutory speedy trial
rights were violated because more than 150 days passed before he was brought to trial.
The statute that controls this issue is K.S.A. 2021 Supp. 22-3402(a). It says:

"(a) If any person charged with a crime and held in jail solely by reason thereof
shall not be brought to trial within 150 days after such person's arraignment on the
charge, such person shall be entitled to be discharged from further liability to be tried for

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 the crime charged, unless the delay shall happen as a result of the application or fault of
the defendant or a continuance shall be ordered by the court under subsection (e)."

Randall was arraigned on April 8, 2016. He was brought to trial September 12,
2017. That is 522 days. Our review of the record reveals there were many continuances
of this prosecution so the court could provide counsel for Randall.

But we need not go into those details. Randall did not raise this speedy trial issue
in his prior direct appeal. The State argues that Randall should be precluded from raising
his speedy trial issue at this stage under the law-of-the-case doctrine. We agree.

Our Supreme Court has addressed this issue and given clear instructions:

"Under Kansas law, where an appeal is taken from the sentence imposed and/or a
conviction, the judgment of the reviewing court is res judicata as to all issues actually
raised, and those issues that could have been presented, but were not presented, are
deemed waived." State v. Neer, 247 Kan. 137, 140-41, 795 P.2d 362 (1990). When a
defendant's claim was not raised at trial or on direct appeal, such a default prevents the
defendant from raising the claim in a second appeal. State v. Smith, 315 Kan. 717, 722,
510 P.3d 696 (2022).

Randall did not raise a speedy trial argument in his prior appeal. The argument he
now makes depends solely on events that took place between his arraignment and his first
trial. Randall could have and should have made this argument in his first appeal. He is
barred from raising it now.

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We are also barred from considering Randall's claim about the district court losing
jurisdiction.

In his pro se supplemental brief, Randall argues that the district court lost
jurisdiction over his case because it failed to "complete the 6th Amendment requirement,
by providing effective assistance of counsel, conflict free for Mr. Randall." He claims
that he was denied conflict-free counsel for nine months while he was represented by
Charles Osburn because Osburn's partner represented a potential witness for the State.
Randall argues the court constructively denied him the right to counsel and effective
representation by appointing Osburn. Randall alleges that the district court and prosecutor
knew of the conflict of interest but failed to inform him. Randall asks this court to reverse
and remand his case to the district court with instructions to dismiss.

This issue depends solely on events that occurred before Randall's first appeal—
but Randall did not raise the issue in his first appeal. He is precluded from raising the
issue now. Smith, 315 Kan. at 722.

We vacate Randall's sentence and remand to the district court for resentencing
with directions to comply with the rule in Pearce as adopted by our Supreme Court in
Rinck and Brown.

Sentence vacated and case remanded with directions.

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