IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 125,254
STATE OF KANSAS,
Appellee,
v.
DEVAWN T. MITCHELL,
Appellant.
SYLLABUS BY THE COURT
1.
A party who raises a claim concerning a criminal defendant's competence to stand
trial bears the burden of proving that claim by a preponderance of the evidence.
2.
Courts presume a criminal defendant is competent to stand trial.
3.
An appellate court reviews a district court's decision to order an evaluation under
K.S.A. 2020 Supp. 22-3429 for abuse of discretion.
4.
For purposes of K.S.A. 2022 Supp. 21-6819(b), a life sentence cannot be either a
base or a nonbase sentence.
5.
Nothing in the plain language of K.S.A. 2022 Supp. 21-6620(b)(2) converts a life
sentence into a grid sentence.
1
Appeal from Lyon District Court; W. LEE FOWLER, judge. Oral argument held May 17, 2023.
Opinion filed December 8, 2023. Affirmed.
Kurt P. Kerns, of Kerns Law Group, of Wichita, argued the cause and was on the brief for
appellant.
Carissa Brinker, assistant county attorney, argued the cause, and Marc Goodman, county
attorney, and Kris W. Kobach, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
WILSON, J.: Devawn T. Mitchell appeals from his bench trial convictions for firstdegree felony murder, aggravated assault on a law enforcement officer, two counts of
felony fleeing and eluding, and misdemeanor fleeing and eluding. Mitchell claims the
district court erred by finding him competent to stand trial, by failing to obtain a
psychological evaluation under K.S.A. 2020 Supp. 22-3429 before sentencing him, and
by applying his "B" criminal history score to a nonbase offense to increase his mandatory
minimum sentence. We find no error and affirm Mitchell's convictions and sentence.
FACTS AND PROCEDURAL HISTORY
The parties do not dispute the facts. In short, over the afternoon of March 18,
2021, Mitchell committed traffic infractions that led to several short, isolated pursuits by
law enforcement in Emporia. The afternoon's events, which began when Mitchell
swerved at a police car, tragically ended about an hour later when Mitchell's car slammed
into Steven Henry's truck, killing Henry.
The State charged Mitchell with five counts over the incident, including firstdegree felony murder and aggravated assault of a law enforcement officer. Mitchell's
2
counsel filed a pretrial notice of lack of intent due to mental disease or defect and told the
district court that Mitchell had an "extensive history of psychiatric illness and
hospitalization." But after hearing back from the psychologist contracted by the defense
to evaluate Mitchell, Mitchell's counsel withdrew the notice. Mitchell also waived his
right to a jury trial.
The district court held a two-day bench trial. Mitchell presented no evidence. The
district court examined each charge on the record and found Mitchell guilty on all counts.
After trial, Mitchell's counsel filed a motion to determine competency. The district
court ordered a competency evaluation with Crosswinds. After Crosswinds submitted its
report, the district court found Mitchell competent. We will discuss the facts surrounding
this motion, including the evaluation report, in greater detail below.
The district court sentenced Mitchell to a life sentence with a minimum 554
months before parole eligibility, followed by a consecutive controlling 39-month
sentence for Mitchell's remaining convictions. Mitchell directly appealed to this court.
ANALYSIS
Mitchell failed to carry his burden of proving his incompetency to stand trial.
Mitchell first argues the district court erred by finding him competent to stand
trial. He focuses on one line from the Crosswinds report, arguing that it set forth
conditions on his competency and that the district court failed to ensure that those
conditions were met at all critical stages of the case.
3
Standard of review
"An appellate court applies an abuse of discretion standard when determining
whether a district court made the correct decision regarding a defendant's competency to
stand trial. 'Judicial discretion can be abused in three ways: (1) if no reasonable person
would have taken the view adopted by the trial court; (2) if the judicial action is based on
an error of law; or (3) if the judicial action is based on an error of fact.' [Citations
omitted.]" State v. Marshall, 303 Kan. 438, 444-45,
362 P.3d 587 (2015).
"[A] party who raises the issue of competence to stand trial has the burden of
going forward with the evidence, which will be measured by the preponderance of the
evidence standard." State v. Cellier, 263 Kan. 54, 70,
948 P.2d 616 (1997). We have also
recognized "a presumption that the defendant is competent." State v. Woods,
301 Kan.
852, 860,
348 P.3d 583 (2015).
Additional facts
Mitchell's counsel filed a posttrial motion to determine competency, which
prompted the district court to order a competency evaluation with Crosswinds. After two
interviews, Crosswinds issued an evaluation report diagnosing Mitchell with
schizophrenia. The report documented:
"Mr. Mitchell demonstrates likely auditory hallucinations that persecute him
during the day hours or instructs [sic] him to misbehave. He has paranoia, hypersexual
behaviors, social isolation, bizarre behaviors, combative and argumentative behaviors
without any seeming trigger, hostility, outbursts of anger, screaming, threatening
statements and actions. He appears extremely immature and lacks ability to understand
consequences to his own behaviors."
4
Despite this diagnosis, the report concluded that Mitchell was "competent." While
the report noted the "unusual" difficulty of the assessment and that "Mr. Mitchell clearly
is mentally ill or has mental deficiencies that cause his significant struggles," it concluded
that:
"Despite these concerns regarding his mental health or possible cognitive
struggles, overall, he does possess the ability to understand the legal process and
participate adequately in his own defense if given coaching and support. He does
understand that he could be facing a prison sentence given his current conviction and
does express a normal fear and depression that this consequence may occur. While his
behavioral response seems unpredictable and could be highly inappropriate, he does
demonstrate the ability to control this. Ultimately, it does appear that Mr. Mitchell is
competent to stand trial and/or to participate adequately in his sentencing advocacy."
(Emphasis added.)
During a short hearing, the district court accepted the competency evaluation
report. After the district court gave the parties a chance to present additional evidence—
which neither chose to do—the court found the defendant "competent based upon the
findings in the report." It then set the matter for sentencing.
Discussion
"'[T]he Due Process Clause of the Fourteenth Amendment prohibits the criminal
prosecution of a defendant who is not competent to stand trial.'" State v. Ford, 302 Kan.
455, 461,
353 P.3d 1143 (2015). Under this due process umbrella, Mitchell raises both
procedural and substantive competency claims. Our court has explained the difference
between these two claims.
"A procedural competency claim falls under K.S.A. 22-3302 and is generally
based upon the district court's alleged failure to hold a competency hearing or its failure
5
to hold an adequate competency hearing. A substantive competency claim alleges the
defendant was tried and convicted while, in fact, incompetent." State v. Stewart, 306 Kan.
237, 252,
393 P.3d 103 (2017).
In assessing a procedural competency claim, due process is satisfied if the court
adheres to the statutory framework set forth in K.S.A. 2022 Supp. 22-3302. Woods, 301
Kan. at 859; State v. Barnes,
263 Kan. 249, 262-63,
948 P.2d 627 (1997). In assessing a
substantive competency claim, due process is satisfied if substantial competent evidence
supports a finding of actual competency. Woods,
301 Kan. at 860.
Mitchell's procedural competency claim is without support in the record.
K.S.A. 2022 Supp. 22-3302 states:
"(a) At any time after the defendant has been charged with a crime and before
pronouncement of sentence, the defendant, the defendant's counsel or the prosecuting
attorney may request a determination of the defendant's competency to stand trial. If,
upon the request of either party or upon the judge's own knowledge and observation, the
judge before whom the case is pending finds that there is reason to believe that the
defendant is incompetent to stand trial, the proceedings shall be suspended and a hearing
conducted to determine the competency of the defendant.
"(b) If the defendant is charged with a felony, the hearing to determine the
competency of the defendant shall be conducted by a district judge.
"(c)(1) The court shall determine the issue of competency . . . . The court may
order a psychiatric or psychological examination of the defendant. . . .
....
(4) Upon notification of the court that a defendant committed for psychiatric or
psychological examination under this subsection has been found competent to
6
stand trial, the court shall order that the defendant be returned no later than seven
days after receipt of the notice for proceedings under this section. . . .
"(d) If the defendant is found to be competent, the proceedings that have been
suspended shall be resumed. . . .
....
"(f) If proceedings are suspended and a hearing to determine the defendant's
competency is ordered after the defendant is in jeopardy, the court may either order a
recess or declare a mistrial.
"(g) The defendant shall be present personally at all proceedings under this
section."
Here, the district court both ordered a competency evaluation and held a hearing
after receiving the report from Crosswinds. The district court admitted the report into
evidence without objection and offered both parties the opportunity to present additional
evidence. Neither party did so. In short, the district court followed the proper procedure.
We now turn to Mitchell's substantive competency claim alleging he was tried and
convicted while incompetent. In support of this claim, Mitchell argues the district court
ignored the facts set forth in the Crosswinds report. He focuses on the evaluation report's
qualification that "he does possess the ability to understand the legal process and
participate adequately in his own defense if given coaching and support." (Emphasis
added.) Mitchell argues that the report showed he was only conditionally competent and
complains that the record lacks evidence that he had "coaching and support" during all
critical stages of pretrial and trial proceedings.
We disagree. Mitchell bore the burden of proof to show he had not been provided
such coaching and support. The record does not explain exactly what is meant by
7
"coaching and support," but the report's narrative undermines the weight Mitchell places
on the phrase:
"In our second contact with Mr. Mitchell, we explained the importance of being
able to complete this assessment to make a case on his behalf about possible placement
besides prison as he has been strongly advocating that he needs mental health services
instead. He did then complete the remainder of the assessment with more ease. He
showed more tearfulness and fearfulness about possibly going to prison. At the
conclusion, he was coached by us to identify tools he could use to stay calm and
cooperative when he returned to his cell. It was presented to Mr. Mitchell that he had a
far better chance of reaching his placement goals if he was cooperative with the staff, not
screaming or becoming combative. We followed up with staff at the end of the day to see
how Mr. Mitchell behaved after that coaching. It is our understanding that when he left
our area, he did initially try to walk to the exit door, but otherwise was cooperative and
remained civil the remainder of the day. This seems to indicate that Mr. Mitchell can
control his impulses when given incentives. It also seems to suggest that he is more
cooperative when he believes others are in his corner." (Emphases added.)
Mitchell points to excerpts from this paragraph as proof that, without coaching, he
was incompetent to stand trial. But the trial court was justified in drawing precisely the
opposite conclusion, as nothing in the report suggests that the "tools" or "coaching" given
to Mitchell affected his understanding—just his ability to control his behavior. While the
social worker could, of course, have testified on this point, Mitchell failed to present the
social worker's testimony. In light of that failure, Mitchell cannot complain that the
district court drew conclusions adverse to his position.
Having failed to clarify the meaning of "coaching and support" as something
inconsistent with the court's inferences of competency, the absence of evidence does not
help Mitchell prove otherwise. After all, Mitchell and his counsel appear to have
discussed various matters from time to time throughout the case. Moreover, nothing
suggests that Mitchell could not control his behavior throughout the proceedings.
8
Ultimately, given the court's reasonable inferences from the report, no evidence
suggests that Mitchell was incompetent during any critical stage of his case. Thus,
Mitchell has failed to satisfy his burden to overcome the presumption of competence
through proof of his incompetence. In light of this failure, the presumption that Mitchell
was competent controls. We find no error in the district court's competency
determination.
The district court did not abuse its discretion in failing to sua sponte order an evaluation
under K.S.A. 2020 Supp. 22-3429.
Mitchell next claims the district court erred by failing to order a mental evaluation
for him under K.S.A. 2020 Supp. 22-3429.
Standard of review
We review a district court's decision to order an evaluation under K.S.A. 2020
Supp. 22-3429 for abuse of discretion. State v. Hilyard, 316 Kan. 326, 343,
515 P.3d 267
(2022).
Preservation
We begin with preservation. Mitchell claims the district court erred by rejecting
his "explicit" request for an evaluation at Larned. But the record does not support this
characterization. At the competency hearing, Mitchell had the following exchange with
the district court:
"[Mitchell]: I've been tested.
9
"[District Court]: You've been evaluated, but you've not been sentenced.
"[Mitchell]: From Larned?
"[District Court]: You've been evaluated by Crosswinds Counseling.
"[Mitchell]: Crosswinds Counseling. Do I get evaluated by Larned as well?
"[District Court]: At this point, that—
"[Mitchell]: Okay. But I—I haven't been receiving my medication is what I'm trying to
get to. I need my meds."
We see no "explicit" request for an evaluation by Larned in this exchange. At
most, it was a request for clarification, which he interrupted before the court could fully
respond. Consequently, we view Mitchell's argument as a complaint that the district court
failed to sua sponte order an evaluation under K.S.A. 2020 Supp. 22-3429.
Still, we have previously recognized that claims like Mitchell's implicate a
fundamental right, which is one of three prudential exceptions to our general preservation
rules. Hilyard, 316 Kan. at 343. We will again apply this exception to address Mitchell's
argument for the first time on appeal.
Discussion
K.S.A. 2020 Supp. 22-3429 provides:
"After conviction and prior to sentence and as part of the . . . presentence
investigation report as provided in K.S.A. 21-6813, and amendments thereto, the trial
judge may order the defendant committed for mental examination, evaluation and report.
If the defendant is convicted of a felony, the commitment shall be to the state security
10
hospital or any suitable local mental health facility. . . . A report of the examination and
evaluation shall be furnished to the judge and shall be made available to the prosecuting
attorney and counsel for the defendant. A defendant may not be detained for more than
120 days under a commitment made under this section."
K.S.A. 2022 Supp. 22-3430(a) authorizes a district court to commit a defendant to
a mental care institution instead of imprisonment
"[i]f the report of the examination authorized by K.S.A. 22-3429, and amendments
thereto, shows that the defendant is in need of psychiatric care and treatment, that such
treatment may materially aid in the defendant's rehabilitation and that the defendant and
society are not likely to be endangered by permitting the defendant to receive such
psychiatric care and treatment."
We have rejected arguments like Mitchell's twice in recent years. First, in State v.
Evans, 313 Kan. 972, 993,
492 P.3d 418 (2021), the defendant asserted we should reverse
a district court's unjustified, perfunctory denial of a motion for evaluation under K.S.A.
2020 Supp. 22-3429. Evans, 313 Kan. at 992. Instead, we reasoned that the defendant's
argument, if accepted, would have established "a rule that all requests for presentencing
mental evaluations must be granted unless the trial court can state some compelling
reason not to grant the request." 313 Kan. at 992. We observed that such a rule would
conflict with the statute, which contained "clearly permissive" language granting district
courts discretion over orders for evaluation under K.S.A. 2020 Supp. 22-3429. 313 Kan.
at 992-93. We thus concluded that defendants bear the burden of persuading sentencing
courts to order such evaluations. It was not the sentencing court's duty to specify, subject
to appellate scrutiny, why the discretionary evaluation was not done. 313 Kan. at 992.
In Hilyard, we again addressed a challenge to a district court's failure to order an
evaluation under K.S.A. 2016 Supp. 22-3429. 316 Kan. at 343-44. Unlike Evans, Hilyard
did not ask the district court to order an evaluation. Hilyard, 316 Kan. at 343. But, as
11
noted, we addressed Hilyard's claim anyway because we agreed that "a fundamental right
is implicated." 316 Kan. at 343. Even so, we still rejected Hilyard's argument:
"Hilyard did not request a mental examination, let alone meet her burden to
persuade the sentencing court to order a mental examination. The statute imposes no
affirmative duty for courts to raise this issue sua sponte and whether to do so is clearly
discretionary. There is no indication the sentencing judge was unaware of this discretion.
There is no error." Hilyard, 316 Kan. at 345.
The same is true here. Although evidence of mental illness was present in both
Hilyard's and Mitchell's cases, the district court was under no duty to sua sponte order an
evaluation under K.S.A. 2020 Supp. 22-3429. Nor, as we pointed out in Evans, was it
obliged to set forth compelling reasons not to order an evaluation. Thus, despite the
district court's recognition that Mitchell "does have a mental illness" and the statements
of counsel—which informed the district court that Mitchell had a history of involuntary
commitment—the district court did not err in failing to sua sponte order an evaluation.
Mitchell also argues that the district court abused its discretion by failing to
recognize that it had any discretion to exercise. But Mitchell takes the district court's
comments out of context. When the district court noted at sentencing that it had "no
decision today on the length of the sentence," it was speaking not of its discretion to order
an evaluation, but of its discretion to order a different sentence. And the district court
spoke accurately: without an evaluation in hand, it had no discretion to order a different
sentence, as we will discuss below. Thus, the district court did not indicate ignorance of
its discretion by failing to sua sponte order an evaluation under K.S.A. 2020 Supp. 22-
3429 and did not abuse its discretion by electing not to order the evaluation.
12
The district court's application of Mitchell's criminal history score to his life sentence, as
required by K.S.A. 2020 Supp. 21-6620(b), did not create an illegal sentence.
Finally, Mitchell argues the district court erred by applying his "B" criminal
history score to his felony murder sentence and to his aggravated assault on a law
enforcement officer conviction.
Standard of review
Mitchell's argument turns on statutory interpretation, which this court reviews de
novo. E.g., Roe v. Phillips County Hosp., 317 Kan. 1, 5,
522 P.3d 277 (2023).
Additional facts
Upon receiving the presentence investigation report, Mitchell's counsel filed a
motion for departure because "[p]ursuant to K.S.A. 21-6620, the sentence moves from
the hard 25 to the grid." In the motion and again at sentencing, Mitchell's counsel argued
against the double application of Mitchell's criminal history score to his sentence.
The district court reasoned that it "really does not have a decision today on the
length of the sentence" for the felony murder conviction because "the statute" mandated
"you go to the box on the grid, which is a 554-month minimum sentence" based on
Mitchell's criminal history score of "B." The district court's journal entry reflects this as a
life sentence with a minimum of 554 months before parole eligibility. The court also
considered count two—aggravated assault on a law enforcement officer—as the "primary
offense," and although it ran Mitchell's sentences for counts two through five (the longest
of which was 39 months) concurrent, it ran them all consecutive with the 554-month
sentence for count one. The district court thus ordered that Mitchell could not begin
13
serving his effective 39-month sentence on counts two through five until he had been
paroled from his life sentence for count one.
Discussion
Mitchell's argument hinges on an alleged discrepancy between K.S.A. 2022 Supp.
21-6620(b)(2) and K.S.A. 2022 Supp. 21-6819(b). Mitchell claims that, under K.S.A.
2022 Supp. 21-6819(b), felony murder cannot be the primary crime and thus—as a
nonbase offense—the only criminal history score that can be applied to it is "I."
We disagree. K.S.A. 2022 Supp. 21-6819(b) provides, in relevant part:
"(b) The sentencing judge shall otherwise have discretion to impose concurrent
or consecutive sentences in multiple conviction cases. . . . In cases where consecutive
sentences may be imposed by the sentencing judge, the following shall apply:
....
(2) The sentencing judge shall establish a base sentence for the primary crime.
The primary crime is the crime with the highest crime severity ranking. An off-grid crime shall not be used as the primary crime in determining the base
sentence when imposing multiple sentences. If sentences for off-grid and on-grid
convictions are ordered to run consecutively, the offender shall not begin to serve
the on-grid sentence until paroled from the off-grid sentence, and the postrelease
supervision term will be based on the off-grid crime. . . .
....
(5) Nonbase sentences shall not have criminal history scores applied, as
calculated in the criminal history I column of the grid, but base sentences shall
have the full criminal history score assigned." (Emphasis added.)
14
But K.S.A. 2022 Supp. 21-6620(b) provides:
"(b) The provisions of this subsection shall apply only to the crime of murder in
the first degree as described in K.S.A. 21-5402(a)(2), and amendments thereto,
committed on or after July 1, 2014.
(1) Except as provided in subsection (b)(2), a defendant convicted of murder in
the first degree as described in K.S.A. 21-5402(a)(2), and amendments thereto,
shall be sentenced to imprisonment for life . . . . In addition, the defendant shall
not be eligible for parole prior to serving 25 years' imprisonment, and such 25
years' imprisonment shall not be reduced by the application of good time credits.
No other sentence shall be permitted.
(2) The provisions of subsection (b)(1) requiring the court to impose a mandatory
minimum term of imprisonment of 25 years shall not apply if the court finds the
defendant, because of the defendant's criminal history classification, would be subject to
presumptive imprisonment pursuant to the sentencing guidelines grid for nondrug crimes
and the sentencing range would exceed 300 months if the sentence established for a
severity level 1 crime was imposed. In such case, the defendant is required to serve a
mandatory minimum term equal to the sentence established for a severity level 1 crime
pursuant to the sentencing range. The defendant shall not be eligible for parole prior to
serving such mandatory minimum term of imprisonment, and such mandatory minimum
term of imprisonment shall not be reduced by the application of good time credits. No
other sentence shall be permitted." (Emphasis added.)
Mitchell's claim that his felony murder sentence must be nonbase hinges on a false
dilemma: that K.S.A. 2022 Supp. 21-6819(b)(2) separates all sentences into base and
nonbase categories. If this were true, off-grid sentences—which, by statute, cannot be
base sentences—would necessarily qualify as nonbase sentences.
15
But this premise dissolves upon closer inspection. K.S.A. 2022 Supp. 21-6819(b)
concerns grid-eligible crimes; it only mentions off-grid crimes to clarify that (1) off-grid
crimes cannot be the primary crime that establishes a base sentence, and (2), "If
sentences for off-grid and on-grid convictions are ordered to run consecutively, the
offender shall not begin to serve the on-grid sentence until paroled from the off-grid
sentence, and the postrelease supervision term will be based on the off-grid crime." Since
a base sentence is only established by a primary crime, and an off-grid crime cannot be
the primary crime, nothing in the plain language of the statute suggests that off-grid
crimes result in either a base or nonbase sentence. They instead represent a separate
category: life sentences. Cf. State v. Louis, 305 Kan. 453, 466-68,
384 P.3d 1 (2016)
(rejecting argument that the "double rule" of K.S.A. 2011 Supp. 21-6819[b][4] "limit[s]
the total prison term for off-grid crimes to twice the sentence for any grid-felony
conviction also entered in a multiple conviction case" because "[t]he statute clearly
contemplates on-grid and off-grid sentences may be imposed in the same case"); State v.
Grotton,
50 Kan. App. 2d 1028, 1033,
337 P.3d 56 (2014) (concluding "that grid and off-grid sentences are handled separately" under the predecessor to K.S.A. 21-6819[b] for
purposes of the double rule); State v. Cessna, No. 115,999,
2018 WL 386844, at *5-6
(Kan. App. 2018) (unpublished opinion). To highlight this distinction, K.S.A. 2022 Supp.
21-6819(b)(2) mandates that a defendant must first be paroled from an off-grid sentence
before they can begin to serve a consecutive on-grid sentence.
Further, nothing in the language of K.S.A. 2022 Supp. 21-6620(b)(2) alters the
distinct character of life sentences by converting them to grid sentences. Unlike K.S.A.
2022 Supp. 21-6819(b)(5), K.S.A. 2022 Supp. 21-6620(b)(2) does not "apply" a
defendant's criminal history score to a sentence—it applies the score to the minimum
amount of time before a defendant is eligible for parole while serving a life sentence.
Finally, unlike State v. Zabrinas, 271 Kan. 422,
24 P.3d 77 (2001), to which Mitchell
likens his case, neither the plain language nor any reasonable interpretation of the statutes
16
here prohibits the use of Mitchell's criminal history score to calculate his minimum "life"
sentence before parole eligibility. Thus, Mitchell's sentence was lawful.
CONCLUSION
Because we conclude the district court did not abuse its discretion and correctly
applied Mitchell's criminal history to his mandatory minimum life sentence before parole
eligibility, we affirm Mitchell's conviction and sentence.
Affirmed.
17
