State v. Guebara

544 P.3d 794

STATE of Kansas, Appellee,

v.Paul GUEBARA, Appellant.

No. 120,994

Supreme Court of Kansas.

Submitted Without Oral Argument

November 3, 2023.

Opinion Filed March 8, 2024.

Syllabus by the Court

1. Because Kansas’ statutory possession-of-a-weapon ban applies to people who have committed only certain felonies, a stipulation to only a prior felony does not satisfy the prosecution’s burden because it fails to establish that the defendant had committed a felony that prohibited the defendant from possessing a weapon on the date in question.

2. When requested by a defendant charged with unlawful possession of a weapon, a district court must approve a stipulation that the defendant had committed a prior felony that prohibited the defendant from owning or possessing a weapon on the date in question.

3. When a stipulation in a criminal-possession-of-a-weapon case is inadequate to establish that the defendant had committed a prior felony that prohibited the defendant from possessing a weapon on the date in question, appellate courts review under the constitutional harmless-error standard. In doing so, the appellate court may consider a journal entry admitted into the record but withheld from the jury under the procedures governing prior-felony stipulations in criminal-possession eases.

Review of the judgment of the Court of Appeals in an unpublished opinion filed February 24, 2023. Appeal from Finney District Court; Robert J. Frederick, judge.

Paul Guebara, appellant pro se, was on the briefs.

Brian R. Sherwood, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, Natalie Chalmers, assistant solicitor general, Derek Schmidt, former attorney general, and Kris W. Kobach, attorney general, were on the briefs for appellee.

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

[1] Kansas law prohibits people convicted of certain felonies from possessing a weapon for a statutorily prescribed period. K.S.A. 2022 Supp. 21-6304(a)(1)-(4), (d). To support a conviction under that statute, the State must (1) prove the defendant possessed a weapon; and (2) establish the defendant’s status as a prohibited felon, meaning the defendant was convicted of a prior felony that made it unlawful to possess a weapon on the date in question.

Persons charged under that statute will often stipulate at trial to their prohibited status for fear that the details of the prior felony conviction would unfairly prejudice the jury against them. In this case, we consider how much detail that stipulation must include to establish the prohibited-status element of the offense.

Guebara was charged with attempted first-degree murder and criminal possession of a weapon by a felon for shooting a man in Garden City. At trial, Guebara stipulated that he had previously been convicted of "a felony crime" without further detail. A jury convicted him of both crimes, but a panel of the Court of Appeals reversed the criminalpossession conviction based on our decision in State v. Valdez, 316 Kan. 1, 20, 512 P.3d 1125 (2022). There, we determined that a generic stipulation like Guebara’s failed to establish that a defendant had been convicted of one of the felonies that would prohibit him from possessing a weapon.

In a concurring opinion, Judge Malone argued that Valdez contradicts an earlier decision of our court, State v. Lee, 266 Kan. 804, 977 P.2d 263 (1999). State v. Guebara, No. 120,994, 2023 WL 2194542, at *23-24 (Kan. App. 2023) (unpublished opinion) (Malone, J., concurring). In. Lee, our court required the district court to approve a defendant’s stipulation that acknowledged "the defendant is, without further elaboration, a prior convicted felon." 266 Kan. 804, Syl. ¶ 4, 977 P.2d 263.

[2] We disagree that our caselaw is inconsistent. Later decisions—particularly State v. Mitchell, 285 Kan. 1070, 179 P.3d 394 (2008)—flesh out our holding in Lee. Under those decisions, a stipulation to only a prior felony crime provides insufficient evidence for a criminal-possession conviction. Instead, because only certain felonies trigger the weapons ban, the stipulation must establish that the defendant had a prior felony that prohibited the, defendant from possessing, a weapon on the date in question. 285 Kan. 1070, Syl. ¶ 3, 1079, 179 P.3d 394. And consistent with that caselaw, we held in Valdez that the stipulation was inadequate because it established only that the defendant had been convicted of "a felony." Valdez, 316 Kan. at 19-20, 512 P.3d 1125.

For the same reasons, Guebara’s stipulation was inadequate. The district court also failed to secure a jury-trial waiver before accepting Guebara’s stipulation, an omission we have recently deemed to be constitutional error. See State v. Bentley, 317 Kan. 222, Syl. ¶ 2, 526 P.3d 1060 (2023). Even so, those errors were harmless beyond a reasonable doubt. Guebara did not contest the prohibited-status element of his criminal-possession charge, and if he had, the State was prepared to present conclusive evidence of Guebara’s prior conviction to the jury. Evidence establishing Guebara’s prohibited-felon status was submitted to and accepted by the district court. But guided by our caselaw, the district court excluded it from the jury’s view to avoid the risk of undue prejudice to Guebara.

Guebara, who—by his own choice—represented himself on appeal, has raised many other challenges. But we agree with the Court of Appeals panel that none warrant reversal of his convictions. The State also asked us to reverse a Confrontation Clause holding the panel made, but we decline to do so for prudential reasons. We therefore affirm Guebara’s convictions.

Facts and Procedural Background

A man was shot in Garden City, and he identified Guebara as the shooter. According to the victim, Guebara had followed him after an argument at a poker game and then shot the victim as he exited his truck. Officers who investigated the shooting eventually enlisted Guebara’s daughter and her fiancé to record a series of conversations. In those conversations, Guebara’s friends and family discussed how to get rid of the gun Guebara had used. Officers later recovered a stainless-steel .357 revolver that had been concealed in the living room chair of a close friend of Guebara’s brother-in-law. The panel below described these facts in greater detail, but we need not restate them to resolve the issues before us. See Guebara, 2023 WL 2194542, at *1-5.

The State charged Guebara with one count of attempted first-degree murder and one count of criminal possession of a weapon by a felon. At that time, criminal possession of a weapon was codified at K.S.A. 2014 Supp. 21-6304. One way to violate that statute was by possessing a weapon after being convicted "within the preceding 10 years" of certain enumerated felonies. See K.S.A. 2014 Supp. 21-6304(a)(3)(A). The State alleged that Guebara had violated that provision because he had been released from prison within the past 10 years for first-degree murder, one of the enumerated felonies. See State v. LaGrange, 294 Kan. 623, Syl. ¶ 3, 279 P.3d 105 (2012) (10-year statutory weapons ban begins when offender is released from prison). He was convicted of that offense in 1983 and sentenced to life in prison. Our court affirmed his conviction. See State v. Guebara, 236 Kan. 791, 799, 696 P.2d 381 (1985). Guebara was later paroled.

Before trial, Guebara conveyed that he would stipulate to his prohibited status as a prior felon. The stipulation that Guebara and the State agreed to was admitted into evidence during Guebara’s trial and later included in the jury instructions. It said that Guebara "had been released from prison for a felony crime" within the last 10 years:

"51.020. Stipulations and Admissions:

"The following facts have been agreed to by the parties and are to be considered by you as true:

"1. The defendant within 10 years preceding February 24, 2015, had been released from prison for a felony crime.

"2. The defendant was not found to be in possession of a firearm at the time of the prior crime, and has not had the prior conviction expunged or been pardoned for such crime."

Consistent with the procedures for stipulations in criminal-possession cases that we laid out in Lee and Mitchell, the State also introduced the certified journal entry of Guebara’s 1983 murder conviction outside the jury’s presence. See Mitchell, 285 Kan. at 1079, 179 P.3d 394; Lee, 266 Kan. at 815-16, 977 P.2d 263. The district court admitted the journal entry "for purposes of completing the record" but stated that it would not "be made available to the jury," which was "consistent with [the court’s] understanding of what case law provides for and allows." But the court failed to follow one of the procedures set out in those cases—it did not consult Guebara "outside the presence of the jury" to secure his "voluntary waiver of the right to have the State otherwise prove [the defendant’s felon] status beyond a reasonable doubt to the jury." Mitchell, 285 Kan. at 1079, 179 P.3d 394 (citing Lee, 266 Kan. at 815-16, 977 P.2d 263).

At the end of a 7-day trial that included more than 100 exhibits and testimony from 23 witnesses, the jury found Guebara guilty as charged. A slew of posttrial motions were filed by Guebara’s trial attorney, by a new attorney appointed by the court, and by Guebara himself—so many, in fact, that sentencing did not take place until three years after his conviction.

Two sets of those motions are relevant to the issues before us. First, Guebara and his new attorney filed motions for a new trial based on ineffective assistance of trial counsel. After a two-day evidentiary hearing, the district court denied the motion in a 63-page decision that scrutinized each of the many claims Guebara had made. Second, Guebara and his attorney filed motions for a new trial based on the State’s disclosure that, starting about 14 months after the trial, the lead detective began a sexual relationship with Guebara’s daughter,...