BY THE COURT
reviewing a district court judge's decision to deny a
motion to sever charges, an appellate court follows three
steps. Each requires application of a different standard of
review. The court first considers whether the governing
statute permits joinder. On this issue, the appellate court
reviews the judge's factual findings for substantial
competent evidence and the judge's legal conclusion on
whether one of the statutory conditions has been met de novo.
Second, the court determines whether the district court judge
properly exercised his or her discretion on joinder or
severance; there is no error on this step unless the
appellate court discerns an abuse of discretion. Third and
finally, if there was an error on the first or second step or
both, the appellate court must determine whether the error
affected a party's substantial rights. On the record in
this case, there was no error in the district court's
denial of the defendant's motion to sever two sets of
charges against him.
There is no federal constitutional requirement to instruct
juries on offenses that are not lesser included crimes of the
charged crime under state law. And the inviolate right of
jury trial in Section 5 of the Kansas Constitution Bill of
Rights is limited to fact issues in criminal cases; it does
not demand that a jury be permitted to determine a legal
question such as the choice of instructions on lesser degrees
of a charged crime.
judge's use of criminal history that has not been
included in a charging document and proved beyond a
reasonable doubt to a jury as a basis for a criminal sentence
or its enhancement is not prohibited by Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
from Sedgwick District Court; David J. Kaufman, judge.
Opinion filed March 3, 2017. Affirmed.
Heather R. Cessna, of Kansas Appellate Defender Office,
argued the cause and was on the brief for appellant.
J. Maloney, assistant district attorney, argued the cause,
and Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were with him on the brief for appellee.
Keith A. Ritz appeals his convictions for multiple counts of
¶eeing or attempting to elude, two counts of theft, and
a single count of first-degree felony murder. Ritz raises
three issues in his appeal, alleging error in the district
court judge's denial of a defense motion to sever
charges, error in the district court judge's failure to
instruct the jury on lesser degrees of felony murder, and
error in the district court judge's reliance on his
criminal history for sentencing.
detailed below, we reject each of Ritz' arguments and
affirm his convictions and sentence.
and Procedural Background
evening of December 26, 2012, Officer Bradley Carver of the
Wichita Police Department was on patrol when he saw a
Corvette that appeared to be speeding. Carver did not get a
radar reading of the Corvette's speed because of a Honda
that was following the Corvette. Carver followed the Corvette
until it turned onto a side street and stopped in front of a
house. The Honda stopped behind the Corvette. A passenger got
out of the Corvette, ran up to the front door, appeared to
unscrew a floodlight on the front of the house, and then ran
back to the street and got into the Honda. Carver started to
get out of his car. As soon as he did, the "Corvette . .
. squealed tires and took off." Carver got back into his
car, turned on his siren, and began pursuit. The chase that
followed was captured on the dashboard camera in Carver's
patrol car, and the video would later be admitted at
pursued the Corvette through a residential area at
"probably 60 to 65 miles [per] hour." At one point
in the chase, the Corvette failed to negotiate a T
intersection and jumped a curb into a church parking lot. The
Corvette continued out of the parking lot, and Carver
followed. At another point, it appeared to Carver that the
chase was over because the Corvette had failed to make a
right-hand turn and had overcorrected, spun, and went up onto
a curb. But the driver of the Corvette backed out and
continued. Eventually Carver "noticed the left rear tire
of [the Corvette] leave the vehicle . . . and [the driver]
lost control . . . spun a complete 180 and struck a light
pole" on the corner of an intersection.
the Corvette was stopped, Carver exited his car, drew his
weapon, and approached the Corvette. Carver ordered the
driver to show his or her hands and acknowledge Carver's
presence. Carver got no response. As Carver approached the
Corvette, he noticed that it was so damaged that the
"driver's seat was not really visible from the
driver's side." When Carver went around the front of
the car, he found the only occupant "laid across the
front seat with his feet still underneath the steering wheel
of the vehicle and his head partially out of the sunroof of
Corvette driver would later be identified as Ritz.
was charged with two alternative counts of fleeing or
attempting to elude an officer, theft, and driving while a
habitual violator in connection with the events of December
morning of March 5, 2013, Officer Jason Emery of the Wichita
Police Department responded to a dispatch to check on a
vehicle near the Arkansas River. A second officer, Alex
Recio, also responded. When Emery arrived in the area, he
spotted a parked full-size GMC pickup matching the
description he had been given.
and Recio each pulled behind the pickup. The pickup started
rolling forward and traveled a very short distance before
pulling into the private drive of a residence. Emery and
Recio pulled in behind the pickup and stopped. Recio got out
of his car and started to walk toward the pickup. Emery
started to do the same but decided to stay in his car. As
Recio approached, the pickup was backed out of the drive into
the street. It then started to roll forward and accelerated
away. Emery activated his lights and sirens and gave chase.
the pickup was driving approximately 40 miles per hour
through a 30-miles-per-hour residential area. It continued
gaining speed and drove through several stop signs and
stoplights, making it difficult for Emery to keep up. Emery
nevertheless continued his pursuit. When he reached Harry
Street he saw "debris, like a big smoke cloud and debris
flying in ...