Generally, appellate courts require a party to submit an
issue to the trial court- that is, to preserve an
issue-before the issue can be raised on appeal. Nevertheless,
because that general practice is prudential, rather than
jurisdictional, courts do not draw a bright line. Three
recognized exceptions allow an appellate court to consider an
issue raised for the first time on appeal if: (1) The newly
asserted claim involves only a question of law arising on
proved or admitted facts and is determinative of the case;
(2) consideration of the claim is necessary to serve the ends
of justice or to prevent the denial of fundamental rights; or
(3) the district court is right for the wrong reason.
defendant who asserts a violation of K.S.A. 2017 Supp.
22-3302(7), which addresses a criminal defendant's right
to be present during competency proceedings, may raise the
issue on appeal for the first time because the allegation
involves a potential deprivation of the due process
guaranteed by law, and the right to due process is a
2017 Supp. 22-3302 does not mandate that the defendant be
present when the discussion concerns whether to hold a
of the judgment of the Court of Appeals in an unpublished
opinion filed May 27, 2016. Appeal from Saline District
Court; Jerome P. Hellmer, judge.
of the Court of Appeals affirming the district court is
affirmed. Judgment of the district court is affirmed.
A. Kaul, of Kansas Appellate Defender Office, argued the
cause and was on the briefs for appellant.
M. Jumpponen, assistant county attorney, argued the cause,
and Ellen Mitchell, county attorney, and Derek Schmidt,
attorney general, were with her on the briefs for appellee.
D. Gross asks us to determine whether K.S.A. 2017 Supp.
22-3302(7) granted him a right to be present when, during the
first day of his trial, his attorney spoke with the trial
judge and the prosecutor about the attorney's concerns
regarding Gross' mental state. Gross' attorney did
not ask explicitly for a competency examination or a
competency hearing, and this court has previously held
"K.S.A. 22-3302 does not mandate that the defendant be
present when the discussion concerns whether to hold
a competency hearing." State v. Perkins, 248
Kan. 760, 770, 811 P.2d 1142 (1991).
Gross argues Perkins' analysis is inconsistent
with the plain language of 22-3302(7) and thus with the
rubric this court currently employs when interpreting
statutes. He asks us to overrule that holding or to at least
determine it does not apply to the facts of this case. We
reject both arguments.
conclude this court's holding in Perkins applies
in this case, K.S.A. 2017 Supp. 22-3302 is ambiguous, and the
statute's language does not clearly support Gross'
reading of its meaning. In light of those conclusions, the
doctrine of stare decisis and 27 years of legislative
acquiescence to this court's interpretation persuade us
to reaffirm and apply the Perkins holding.
and Procedural History
State filed four criminal cases against Gross for crimes he
allegedly committed while in the Saline County Jail. The
trial judge consolidated the cases for trial.
trial, the judge ordered a competency evaluation based on his
"own knowledge and observation of Defendant in this
matter." Central Kansas Mental Health Center (CKMHC)
performed the evaluation. The evaluator concluded Gross was
competent to stand trial, observing Gross "had no
difficulty expressing himself verbally, " understood the
nature of the charges against him, understood court-related
terms, and would be able to assist his attorney. The
evaluator also noted that Gross "expressed a verbal
understanding of appropriate behavior but verbalized that he
chooses to behave in a threatening and destructive manner
despite any potential consequences."
this evaluation had been performed, Gross gave notice of his
intent to assert a defense based on mental disease or defect.
The State responded with its own motion for a mental health
evaluation, which the trial judge granted. Larned State
Hospital conducted an evaluation and submitted a report.
also filed a notice of waiver of his right to a jury trial in
all four cases. Prior to the start of the trial, the judge
engaged in a colloquy to assure Gross had received the advice
of his attorney and was freely and voluntarily waiving his
right to a jury trial. During that colloquy, the judge asked
Gross whether he was mentally ill or incompetent. Gross
replied, "Well, no I'm mentally ill[.] I have a lot
of mental illnesses but you know." The judge followed up
and ultimately asked Gross: "[I]n other words, you are
competent and you may have an illness but you are competent[,
] is that your understanding?" Gross replied,
"Yes." The judge accepted Gross' jury trial
waiver and began to hear evidence.
in the day, Gross' attorney requested the conference that
gives rise to the issue on appeal. In chambers, Gross'
attorney spoke to the trial judge and prosecutor outside
Gross' presence. Gross' attorney stated he wanted to
make a record of his "concerns regarding Mr. Gross'
mental state currently. Obviously the Court [is] aware of his
outbursts that he has been making during the course of the
trial so far." The attorney then detailed other
off-topic comments Gross made during the proceeding. For
example, Gross noticed his counsel used a Staples brand legal
pad, which led to "discourse about whether the owner of
that company had not run for president at some time." At
another point, Gross noticed his counsel's watch and
asked how old it was. Counsel indicated these off-topic
comments, the outbursts, and Gross' general conduct
caused him to question Gross' ability to assist in his
own defense. The State asserted that the outbursts were
consistent with those made in the past, both prior to and
since the mental health evaluation that determined Gross was
trial judge responded by first noting he had observed
Gross' demeanor throughout the day. He then noted:
"Mr. Gross has been very actively participating in the
assistance of counsel by writing extensive notes, following
the testimony of the witnesses and [as] the record indicates
made certain verbal outbursts during the course of the
testimony which reflects his understanding of the testimony
of the witness and his disagreement with the witnesses[']
testimony and bringing that to the attention of counsel.
"While [defense counsel's] points are of concern as
his relationship with his client would clearly be such that
he would be more aware of the individual nuances of Mr. Gross
than the Court[, t]hat does not in the Court's mind rise
itself to the level of any concern for his competency[.]
[A]nd we have had multiple opportunities for evaluations of
the competency of Mr. Gross[, ] and while he may suffer from
certain mental illness they are not sufficient defects which
would prevent him from participating in the process of
assisting counsel[.] [A]nd the record is clear that he is
very actively assisting counsel and responding actively and
appropriately to his perception of the evidence being
presented by the witnesses called thus far.
"So the concern is noted on the record but the Court
feels that Mr. Gross remains in a capacity to proceed and
participate and understand the proceedings that are before
the Court today."
second day of trial, which Gross attended, the State offered
the CKMHC evaluation and the Larned State Hospital report.
Gross did not object, and the judge admitted both reports.
The judge then made "a formal finding . . . of
competency on the part of Mr. Gross since we have that
determination by the appropriate mental Health Agency."
judge again addressed Gross' competency during the third
day of trial. On that day, Gross took the stand in his own
defense. Gross' attorney questioned Gross about his
mental health history. The State raised objections, which the
judge ruled on by stating:
"At this point in time the Court has found Mr. Gross to
be competent to stand trial and to assist counsel, we have
that report from the Larned State Hospital confirming the
same, he has been able to be present and participate in all
of the prior proceedings and he has done so appropriately
assisting counsel in this regard[.] [S]o the Court has no
concerns about his competency or his ability to assist
counsel in this matter or to recall his own medical history
and to testify about his medical history[.] [T]he ...