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Scott v. Werholtz

November 21, 2007; as amended December 26, 2007

VINCENT SCOTT, APPELLANT,
v.
ROGER WERHOLTZ, SECRETARY OF CORRECTIONS, AND STATE OF KANSAS APPELLEES.



Appeal from Johnson District Court; PETER V. RUDDICK, judge.

SYLLABUS BY THE COURT

1. A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review.

2. In an appeal from a criminal conviction, appellate counsel should raise only those issues that, in the exercise of professional judgment, have merit.

3. Once law enforcement lawfully obtains an individual's blood sample and DNA profile through a valid search warrant, that evidence may be used in the investigation of other crimes for identification purposes.

4. Interpretation of a statute presents a question of law over which an appellate court has unlimited review. An appellate court is not bound by the trial court's interpretation of a statute.

5. When a defendant is bound over on charges identical to those in the original complaint, the State is not required to file an information or an additional complaint under K.S.A. 22-2905. Instead, the original complaint serves as the formal charging document at trial.

The opinion of the court was delivered by: Green, J.

Affirmed.

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

Vincent Scott appeals from the trial court's summary denial of his K.S.A. 60-1507 motion. First, Scott argues that the trial court should have appointed counsel and held a hearing to determine the factual validity of his assertion that his trial counsel was ineffective for allowing him to proceed to a bench trial on stipulated facts. Nevertheless, the record in this case shows that Scott was fully aware that he was waiving his right to a jury trial and was agreeing to a bench trial on the stipulated facts. Scott's attorney was not deficient in allowing Scott to proceed to a bench trial on stipulated facts when Scott agreed to that course of action and fully understood the consequences of his actions. Therefore, Scott cannot prevail on this issue.

Next, Scott argues that his trial counsel was ineffective for failing to raise the argument that his rights under the Fourth Amendment to the United States Constitution were violated when his DNA evidence lawfully obtained during an investigation of a burglary case was compared with DNA evidence in other unsolved cases. Nevertheless, once law enforcement lawfully obtained Scott's blood sample and DNA evidence, no privacy interest persisted in this evidence. Scott's DNA profile could be used in the investigation of other crimes for identification purposes. Because Scott's argument lacks merit, Scott is unable to meet the test for ineffective assistance of counsel.

Finally, Scott contends that the trial court lacked jurisdiction in his underlying criminal case because no complaint or information was filed after the preliminary hearing, in violation of K.S.A. 22-2905. Nevertheless, where the charges against Scott remained the same as those contained in the original complaint, the State was not required to file an additional complaint or an information under K.S.A. 22-2905. Based on the facts of this case, the trial court had jurisdiction to convict Scott of the charged offenses. Accordingly, we affirm.

While investigating a burglary of a gun shop that occurred in August 1997, law enforcement officers served a search warrant on Scott in January 1998. The search warrant authorized the officers to obtain blood, saliva, and hair samples from Scott. A DNA analysis revealed that the blood collected from Scott matched the blood found at the gun shop. A forensic chemist with the Johnson County crime lab also compared the DNA profile from Scott's blood sample with the DNA profiles from other biological samples recovered in unsolved crimes. Scott's DNA profile matched the DNA profile from semen stains recovered in an unsolved 1996 case, in which a 21-year-old female was raped and sodomized. After the DNA connection was discovered, Scott's fingerprints were compared to a latent fingerprint recovered in the 1996 rape case. A latent print examiner with the Johnson County Sheriff's Department determined that Scott's fingerprint matched the latent fingerprint recovered in the rape case. See State v. Scott, No. 88,129, unpublished opinion filed May 2, 2003, slip op. at 7-8.

The State charged Scott with burglary, felony theft, and criminal damage to property in the gun shop case--case no. 98CR1568. In addition, Scott was charged with rape and aggravated criminal sodomy in the 1996 case--case no. 98CR2782. Scott moved to suppress the evidence in both cases. The trial court denied Scott's motions to suppress.

Based on a plea agreement, Scott pled no contest to burglary, rape, and aggravated criminal sodomy counts with the understanding that he would preserve his right to appeal the denial of his motions to suppress. The trial court found Scott guilty of the three counts. Scott appealed his convictions to this court. This court consolidated Scott's two criminal cases. This court remanded the case for a determination of whether Scott's counsel was ineffective in advising Scott to plead no contest so he could preserve his suppression issues for appeal. On remand, the trial court set aside Scott's no contest pleas. Scott filed two new motions to suppress, but the trial court again denied his motions.

Scott agreed to submit the charges of rape, aggravated criminal sodomy, and burglary to the trial court for a bench trial on stipulated facts. The State agreed to dismiss the charges of felony theft and criminal damage to property. At the conclusion of the bench trial, the trial court convicted Scott of the three charges. Scott appealed to this court, challenging the denial of his motions to suppress. This court affirmed Scott's convictions in State v. Scott, No. 88,129, unpublished opinion filed May 2, 2003.

In July 2004, Scott moved for relief under K.S.A. 60-1507 in case number 04CV05344. Scott argued that his trial counsel was ineffective by allowing him to be convicted based upon stipulated facts when he did not agree to the stipulated facts nor did he fully understand the contents of the agreement. In addition, Scott argued that his trial and appellate counsel were ineffective for failing to challenge the collection of his DNA and the comparison of it with DNA samples in the 1996 rape case.

In August 2004, Scott filed two supplemental K.S.A. 60-1507 motions, setting forth the same two issues raised in 04CV05344. These later motions were each assigned a separate case number. The trial court determined that all of the claims asserted by Scott pertained to 04CV05344. In September 2004, Scott filed a second amended petition in 04CV05344. Scott argued that the trial court lacked jurisdiction to convict him in his underlying criminal case because the prosecutor never filed an information formally charging him with the crime for which he had been bound over for trial. Determining that all of the issues raised by Scott lacked merit, the trial court summarily denied relief under K.S.A. 60-1507.

Standard of Review

On appeal, Scott argues that the trial court erred in summarily denying his K.S.A. 60-1507 motion and denying his request for appointment of counsel. The trial court shall hold an evidentiary hearing on a K.S.A. 60-1507 motion and make findings of fact and conclusions of law with respect thereto, unless the motion and the files and records of the case conclusively show the prisoner is not entitled to relief. K.S.A. 60-1507(b); Supreme Court Rule 183(f) and (j) (2006 Kan. Ct. R. Annot. 227). The burden is on the movant to allege facts sufficient to warrant a ...


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