IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 124,598
STATE OF KANSAS,
Appellee,
v.
RICHARD DANIEL SHOWALTER
Defendant,
(MATTHEW DOUGLAS HUTTO),
Appellant.
SYLLABUS BY THE COURT
1.
The Fifth Amendment to the United States Constitution provides that no person
shall be compelled in any criminal case to be a witness against himself or herself. The
United States Supreme Court has long held this provision is to be liberally construed.
2.
The Fifth Amendment privilege against self-incrimination applies to the states
through the Fourteenth Amendment to the United States Constitution.
3.
Section 10 of the Kansas Constitution Bill of Rights provides that no person shall
be a witness against himself or herself and extends the same protections against self-incrimination as the Fifth Amendment.
1
4.
The Fifth Amendment provides two distinct privileges against self-incrimination:
(1) that of criminal defendants not to be compelled to testify at their own trial and (2) that
of any person not to be compelled to answer questions which may incriminate him or her
in future criminal proceedings.
5.
The privilege against self-incrimination protects a person from being forced to
disclose information which would support a criminal conviction against that person as
well as that which would furnish a link in the chain of evidence that could lead to a
criminal prosecution of that person.
6.
The proper standard to determine whether the Fifth Amendment privilege protects
a witness from being compelled to testify is whether the testimony sought exposes the
witness to a legitimate risk—meaning a real and appreciable danger—of incrimination,
not a hypothetical or speculative one. The witness' fear of self-incrimination must be
objectively reasonable and the threat discernible for the privilege to apply.
7.
A guilty plea constitutes a limited waiver of the privilege against self-incrimination for purposes of establishing guilt. A defendant who waives the privilege by
guilty plea retains it for sentencing and until the risk of incrimination terminates.
8.
When determining the availability of the privilege against self-incrimination, the
risk-of-incrimination standard applies equally when the information sought relates to a
witness' prior conviction by verdict or by guilty plea. Language to the contrary in State v.
2
Longobardi, 243 Kan. 404,
756 P.2d 1098 (1988), and State v. Bailey,
292 Kan. 449,
255
P.3d 19 (2011), is overruled.
9.
The Fifth Amendment privilege against self-incrimination remains available to a
defendant or witness who has filed a direct appeal in a criminal case and a decision on
appeal is not final (or whose right to file a direct appeal has not expired) when the
testimony sought exposes the witness to a legitimate risk of incrimination.
10.
A defendant cannot take a direct appeal from a conviction flowing from a plea of
guilty or no contest. The right to take such a direct appeal is one of the rights surrendered
when the plea is entered.
11.
A defendant who pleads guilty and moves to withdraw the plea after sentencing
pursuant to K.S.A. 22-3210(d)(2) can directly appeal the district court's denial of that
motion.
12.
The Fifth Amendment privilege against self-incrimination remains available to a
defendant or witness who pled guilty but has filed a postsentence motion to withdraw
plea pursuant to K.S.A. 22-3210(d)(2) and (e) and a decision on the motion or a decision
on the timely appeal of denial of the motion is not final, when the testimony sought
exposes the witness to a legitimate risk of incrimination.
3
13.
A conviction is generally not considered final until the judgment of conviction has
been rendered, the availability of an appeal has been exhausted, and the time for any
rehearing or final review has passed.
Review of the judgment of the Court of Appeals in 62 Kan. App. 2d 675,
522 P.3d 292 (2022).
Appeal from Shawnee District Court; DAVID B. DEBENHAM, judge. Oral argument held September 11,
2023. Opinion filed August 2, 2024. Judgment of the Court of Appeals affirming the district court is
reversed. Judgment of the district court is reversed, and the sentence is vacated.
Shawna R. Miller, of Miller Law Office, LLC, of Holton, argued the cause and was on the briefs
for appellant.
Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Derek Schmidt, former
attorney general, and Kris W. Kobach, attorney general, were with him on the briefs for appellee.
The opinion of the court was delivered by
STANDRIDGE, J.: Matthew Douglas Hutto pled guilty to two counts of felony
murder and received two consecutive hard 25 life sentences. After sentencing, Hutto filed
a pro se motion to withdraw his pleas. The district court denied his motion and this court
affirmed. In the interim period between this court announcing its decision and the
deadline to file a motion for rehearing or modification, Hutto refused to testify against
Richard Daniel Showalter, his accomplice in the felony murders, by invoking his Fifth
Amendment privilege against self-incrimination. The district court ruled Hutto no longer
had a privilege against self-incrimination, but Hutto still refused to testify. The district
court entered an order finding Hutto in contempt and imposed a sanction of six months in
jail.
4
Hutto appealed the district court's finding of direct contempt and the sanction.
Relying on State v. Smith, 268 Kan. 222, 235,
993 P.2d 1213 (1999), Hutto argued he
retained the privilege against self-incrimination at the time he refused to testify because
he had not yet exhausted all methods of attacking his convictions and sentences,
including a Supreme Court Rule 7.06 motion for rehearing or modification of this court's
decision on his request to withdraw his guilty pleas and a possible K.S.A. 60-1507
motion for habeas corpus relief. (2024 Kan. S. Ct. R. at 51). A Court of Appeals panel
rejected Hutto's argument, questioning Smith's holding given the weight of our precedent
establishing defendants lose their privilege against self-incrimination at sentencing when
they plead guilty and do not move to withdraw their plea before sentencing. State v.
Showalter,
62 Kan. App. 2d 675, 687-90,
522 P.3d 292 (2022). Because Hutto did not
move to withdraw his guilty pleas before sentencing, the panel found the district court
correctly directed Hutto to testify because he lost his privilege against self-incrimination
when sentenced for those crimes. Thus, the panel affirmed the finding of direct contempt
for violating the district court's directive. 62 Kan. App. 2d at 692-93.
On review, we hold the proper standard to determine whether the Fifth
Amendment privilege protects a witness from being compelled to testify is whether the
testimony sought exposes the witness to a legitimate risk—meaning a real and
appreciable danger—of incrimination, not a hypothetical or speculative one. The witness'
fear of self-incrimination must be objectively reasonable and the danger discernible for
the privilege to apply.
In line with controlling federal precedent on availability of the privilege when
there is a legitimate risk of incrimination present, including after a guilty plea, we hold
the risk-of-incrimination standard applies equally when the information sought relates to
a witness' prior conviction by verdict or by guilty plea, overruling State v. Longobardi,
5
243 Kan. 404, 409,
756 P.2d 1098 (1988), and State v. Bailey,
292 Kan. 449, 461-63,
255
P.3d 19 (2011).
Consistent with this standard and the weight of authority across the country, we
hold the Fifth Amendment privilege remains available to a defendant or witness who
filed a direct appeal in a criminal case and a decision on appeal is not final (or whose
right to file a direct appeal has not expired), when the testimony sought exposes the
witness to a legitimate risk of incrimination.
Finally, we have construed a defendant's statutory right to withdraw a guilty plea
postsentence under K.S.A. 22-3210(d)(2) as implying a right to directly appeal the
district court's denial of that motion. In such a case, compelled testimony relating to the
underlying crime could expose the defendant to a legitimate risk of incrimination if the
relief was granted and the defendant was retried. Therefore, we hold the privilege
similarly remains available to a defendant or witness who pled guilty but has filed a
postsentence motion to withdraw plea pursuant to K.S.A. 22-3210(d)(2) and (e) and a
decision on the motion or a decision on the timely appeal of denial of the motion is not
final, when the testimony sought exposes the witness to a legitimate risk of incrimination.
Applying this standard and our related holdings to the facts here, we conclude
Hutto faced a legitimate risk of incrimination if forced to testify to the specific question
posed to him in Showalter's trial about how he caused the victims to die. At that time,
Hutto still had a legally viable opportunity to challenge this court's decision denying him
relief by filing a motion for rehearing or modification as part of his direct appeal. And if
such relief was granted, Hutto's response to the question in Showalter's trial could have
incriminated him in a new trial. Having properly invoked the Fifth Amendment privilege,
Hutto could not be punished for refusing to testify. We therefore reverse the district
court's order finding Hutto in contempt and vacate the sanction of six months in jail.
6
FACTS
The relevant facts relating to Hutto's felony-murder convictions are detailed in
State v. Hutto, 313 Kan. 741,
490 P.3d 43 (2021). Highly summarized, the State charged
Hutto with two counts of premeditated first-degree murder and single counts of
conspiracy to commit first-degree murder and aggravated burglary. The charges were
based on evidence suggesting Hutto and three other men took part in the July 2018
murders of Lisa Sportsman and 17-year-old J.P. The State later amended its complaint to
include two alternative counts of felony murder and one count each of attempted first-degree murder and possession of methamphetamine. Hutto told law enforcement he and
the other men traveled from Greenleaf, Kansas, to Topeka, Kansas, to kill Sportsman.
Hutto claimed Showalter committed both murders but admitted he helped Showalter
enter Sportsman's house and followed Showalter inside. 313 Kan. at 742-44.
On January 18, 2019, Hutto pled guilty to the two counts of felony murder in
exchange for the State's dismissal of the remaining charges. The district court sentenced
Hutto to two consecutive hard 25 life sentences on May 10, 2019. Hutto, 313 Kan. at 744.
Twelve days after he was sentenced, on May 22, 2019, Hutto filed a pro se motion
with the district court seeking posttrial relief on several grounds, including various trial
errors, prosecutorial misconduct, and ineffective assistance of his plea counsel he claimed
resulted in a manifest injustice that justified withdrawing his guilty pleas. Hutto, 313
Kan. at 744. The district court construed Hutto's motion as a postsentence motion to
withdraw a guilty plea, which is permitted under K.S.A. 22-3210(d)(2). The court
appointed new counsel, held an extensive hearing on the motion, and eventually found
against Hutto on all points raised in his motion, issuing its decision on February 11, 2020.
7
Less than a week later, on February 17, 2020, Hutto filed an appeal of the district court's
denial of his postsentence motion to withdraw his guilty pleas.
We affirmed the district court in an opinion filed on July 9, 2021. Hutto, 313 Kan.
at 751. Just days later, and before expiration of the deadline for filing a Supreme Court
Rule 7.06 motion for rehearing or modification of this court's decision on his request to
withdraw his guilty pleas, a jury trial began for Showalter, Hutto's felony-murder
accomplice. The State subpoenaed Hutto to testify and granted him "use immunity" to do
so. But when the State called him to the stand on July 13, 2021, he refused. Outside the
jury's presence, the State questioned Hutto about his felony-murder convictions. When
the prosecutor asked Hutto why he was convicted of felony murder, Hutto responded, "I
told you guys that I'm not testifying. I plead the Fifth." The prosecutor advised the district
court that Hutto "no longer ha[d] an evidentiary privilege to refuse to testify" because he
was already sentenced for his crimes and because this court affirmed the denial of his
postsentence motion to withdraw his guilty pleas.
The district court agreed and directed Hutto to testify. The court warned Hutto
that, if he refused, it could find him in contempt of court and impose up to a six-month
jail sanction. Despite the court's warning, Hutto still refused to testify, claiming there was
no reason to do so because he was already serving "50-plus years" for his felony-murder
convictions. As a result, the court found Hutto in direct contempt of court. The court did
not immediately impose sanctions, opting instead to allow Hutto the opportunity to purge
himself of contempt later in the proceedings. But when the State recalled Hutto to the
stand again on July 16, 2021, he still refused to testify. Given the court's prior contempt
ruling, it ordered Hutto to serve 6 months in jail as a sanction, independent of his two
existing, consecutive hard 25 life sentences.
8
Hutto appealed the district court's finding of direct contempt, arguing the court
erred in deciding he no longer had a Fifth Amendment privilege against self-incrimination when he refused to testify at Showalter's trial. Relying on Smith, Hutto
asserted that a person continues to have a Fifth Amendment privilege against self-incrimination until the person has exhausted all methods of attacking an underlying
criminal conviction and sentence, which in his case would include a motion for rehearing
or modification with this court under Supreme Court Rule 7.06 and a potential motion for
habeas corpus relief under K.S.A. 60-1507.
A Court of Appeals panel acknowledged our holding in Smith but rejected Hutto's
argument, holding the weight of our precedent establishes that defendants lose their
privilege against self-incrimination at sentencing when they plead guilty and do not move
to withdraw their plea before sentencing. Because Hutto was sentenced before he tried to
withdraw his felony-murder guilty pleas, the panel found he lost his privilege against
self-incrimination when sentenced for those crimes. As a result, the panel concluded the
district court correctly directed Hutto to testify and affirmed the finding of contempt for
violating the district court's directive. Showalter, 62 Kan. App. 2d at 686-87, 690-93.
We granted Hutto's petition for review. Jurisdiction is proper. See K.S.A. 20-
3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-
2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon
petition for review).
ANALYSIS
The issue presented is whether Hutto had a Fifth Amendment privilege against
self-incrimination that protected him from testifying to matters underlying his convictions
when he first refused to testify at Showalter's trial on July 13, 2021. To resolve this issue,
9
we must determine (1) the proper standard to assess whether a witness can invoke the
Fifth Amendment privilege to prevent compelled testimony; (2) whether that standard
should be different when the witness has pled guilty rather than being convicted by
verdict; and (3) whether the privilege can be asserted after sentencing and, if so, under
what circumstances.
Hutto argues the applicable standard permits a defendant to invoke the privilege to
prevent compelled testimony until a defendant has exhausted all methods of attacking
underlying criminal convictions and sentences, and the standard applies equally when the
information sought relates to a witness' prior conviction by verdict or by guilty plea. See
Smith, 268 Kan. at 235. The State disagrees, claiming Kansas applies a bright-line
standard for termination of the privilege when a defendant pleads guilty in an underlying
case: the privilege is lost at sentencing unless a motion to withdraw that plea was filed
before sentencing. See Longobardi,
243 Kan. at 409.
The panel ultimately held Kansas Supreme Court precedent favors the State's
position: "Because Hutto had entered his felony murder guilty pleas and had been
sentenced for those crimes without first moving to withdraw his guilty pleas, his privilege
against self-incrimination ended upon sentencing." Showalter, 62 Kan. App. 2d at 691.
But missing from our privilege precedent, and in turn from the panel's analysis, is
recognition of United States Supreme Court precedent on the limited effect of a guilty
plea on the Fifth Amendment privilege. See Mitchell v. United States, 526 U.S. 314, 316,
321, 326,
119 S. Ct. 1307,
143 L. Ed. 2d 424 (1999) (holding a guilty plea is not a waiver
of the privilege against self-incrimination beyond the guilt-phase of a criminal
proceeding). Because it is necessary to determine whether our precedent adheres to the
high Court's interpretation of the federal Constitution, we begin with that review.
10
I. Federal privilege law
The Fifth Amendment to the United States Constitution provides that no person
"shall be compelled in any criminal case to be a witness against himself." U.S. Const.
amend V. The resulting privilege against compulsory self-incrimination fulfills the
essential role in our adversarial justice system of ensuring the State achieves criminal
convictions by its own efforts, not by the forced disclosures of the accused. See Murphy
v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 55,
84 S. Ct. 1594,
12 L. Ed. 2d
678 (1964); Ullmann v. United States,
350 U.S. 422, 427,
76 S. Ct. 497,
100 L. Ed. 511
(1956). Based on the fundamental importance of the privilege to principles of liberty and
due process, the United States Supreme Court has long held this constitutional provision
must be liberally construed. Hoffman v. United States,
341 U.S. 479, 486,
71 S. Ct. 814,
95 L. Ed. 1118 (1951).
The Fifth Amendment privilege is far from absolute. It must be timely and
affirmatively invoked or else it is lost. Roberts v. United States, 445 U.S. 552, 559,
100 S.
Ct. 1358,
63 L. Ed. 2d 622 (1980). And it only protects individuals from making factual
disclosures that are testimonial, compelled, and incriminating in nature. Hiibel v. Sixth
Judicial Dist. Court of Nevada,
542 U.S. 177, 189,
124 S. Ct. 2451,
159 L. Ed. 2d 292
(2004).
The Fifth Amendment includes two distinct privileges against self-incrimination:
(1) that of criminal defendants not to be compelled to testify at their own trial and (2) that
of any person not to be compelled to answer questions which may incriminate him or her
in future criminal proceedings. McCarthy v. Arndstein, 266 U.S. 34, 40,
45 S. Ct. 16,
69
L. Ed. 158 (1924). This includes witnesses called to testify—"in any proceeding, civil or
criminal, administrative or judicial, investigatory or adjudicatory"—when the answer
could subject them to criminal liability. Kastigar v. United States,
406 U.S. 441, 444-45,
11
92 S. Ct. 1653,
32 L. Ed. 2d 212 (1972). Along with protecting answers which would
support a criminal conviction, the privilege also protects information which "would
furnish a link in the chain of evidence" that could lead to a criminal prosecution.
Hoffman,
341 U.S. at 486.
The scope of a witness' privilege differs depending on the status of the person
asserting it. While defendants can invoke a blanket privilege not to testify at their own
trial, a compelled witness may only assert the privilege on a question-by-question basis
and must establish a legitimate risk of incrimination to justify silence. See generally 3
Crim. Prac. Manual § 88:9 ("The rights of an accused and the rights of a witness differ.
The Fifth Amendment allows the accused to refuse even to take the stand. A witness,
however, must take the stand when called and then assert the privilege in response to a
particular question.").
A. Risk-of-incrimination standard
The United States Supreme Court first articulated a formal risk-of-incrimination
standard well over a hundred years ago in Brown v. Walker, 161 U.S. 591, 599-600,
16 S.
Ct. 644,
40 L. Ed. 819 (1896). The Court found a valid assertion of the Fifth Amendment
privilege exists only when a witness faces a "real and appreciable" danger from
compelled testimony based on an objective standard:
"[T]he danger to be apprehended must be real and appreciable, with reference to the
ordinary operation of law in the ordinary course of things; not a danger of an imaginary
and unsubstantial character, having reference to some extraordinary and barely possible
contingency, so improbable that no reasonable man would suffer it to influence his
conduct." Brown, 161 U.S. at 599-600.
12
Based on this standard, the risk of incrimination triggering Fifth Amendment protection
is measured by a reasonable fear of an appreciable danger. These requirements reflect the
underlying condition that the privilege is available only when the danger it is meant to
protect against actually exists.
Since Brown, the Court has expressed this standard in various, similar ways to
convey that the risk to be feared must be of a consequential nature to warrant the Fifth
Amendment's protection. See, e.g., Zicarelli v. New Jersey State Comm'n of Investigation,
406 U.S. 472, 478,
92 S. Ct. 1670,
32 L. Ed. 2d 234 (1972) ("It is well established that
the privilege protects against real dangers, not remote and speculative possibilities.");
Marchetti v. United States, 390 U.S. 39, 53,
88 S. Ct. 697,
19 L. Ed. 2d 889 (1968) ("The
central standard for the privilege's application has been whether the claimant is
confronted by substantial and 'real,' and not merely trifling or imaginary, hazards of
incrimination."); Mason v. United States, 244 U.S. 362, 365,
37 S. Ct. 621,
61 L. Ed.
1198 (1917) ("The constitutional protection against self-incrimination 'is confined to real
danger, and does not extend to remote possibilities out of the ordinary course of law.'").
More recently in Mitchell, the Court expressed the risk-of-incrimination standard
in broader terms by recognizing that the danger faced by a witness in responding to
questions extends to other "adverse consequences" beyond criminal prosecution and
conviction. See 526 U.S. at 326. Mitchell was charged in federal court for her alleged
role in a cocaine distribution conspiracy. She pled guilty to all counts but reserved the
right to contest the drug quantity at sentencing. When sentencing came and some of her
codefendants put on evidence, Mitchell asserted her Fifth Amendment privilege against
self-incrimination and opted not to testify. Because of her guilty plea, the district court
found Mitchell had lost the right to remain silent about the details of her crime and held
her silence against her when imposing a harsher sentence. The Third Circuit affirmed,
holding a guilty plea constitutes a permanent waiver of the Fifth Amendment privilege.
13
As part of that decision, the appellate court concluded the Fifth Amendment does not
protect against the risk of an increased sentence after a guilty plea. See United States v.
Mitchell, 122 F.3d 185, 189-90 (3d Cir. 1997).
The Supreme Court reversed, holding a defendant who pleads guilty retains the
Fifth Amendment privilege at sentencing, resolving a circuit split on this issue in the
process. See Phelps, Applicability of the Fifth Amendment Privilege Against Self-incrimination at Sentencing: Mitchell v. United States Settles the Conflict, 38 Brandeis
L.J. 107, 109 (1999). One of the key aspects of the Court's decision was its recognition
that a conviction, including one by guilty plea, does not eliminate the possibility of
further incrimination. See Mitchell,
526 U.S. at 326. The Court noted the constitutional
protection against compulsory self-incrimination was always meant to ensure "'that the
State which proposes to convict and punish an individual produce the evidence against
him by the independent labor of its officers, not by the simple, cruel expedient of forcing
it from his own lips.'"
526 U.S. at 326 (quoting Estelle v. Smith,
451 U.S. 454, 462,
101
S. Ct. 1866,
68 L. Ed. 2d 359 [1981]). Since the risk of incrimination extends beyond
conviction (the guilt-phase of criminal proceedings), the Court held the Fifth Amendment
privilege must be available past this point at least through sentencing.
526 U.S. at 326.
In discussing the risk of postconviction incrimination, the Court first
acknowledged the underlying principle "that where there can be no further incrimination,
there is no basis for the assertion of the privilege." Mitchell, 526 U.S. at 326. The Court
then explained this general rule "applies to cases in which the sentence has been fixed
and the judgment of conviction has become final."
526 U.S. at 326. Finally, the Court
declared that the risk of incrimination is eliminated when "no adverse consequences can
be visited upon the convicted person by reason of further testimony."
526 U.S. at 326.
14
Although the "adverse consequences" phrasing in Mitchell differs from the "real
and appreciable" language previously used by the Court, the root concept is not new. The
availability of the privilege has always required some legal detriment bearing on criminal
liability. See Rogers v. United States, 340 U.S. 367, 373,
71 S. Ct. 438,
95 L. Ed. 344
(1951) ("the privilege against self-incrimination presupposes a real danger of legal
detriment arising from the disclosure"); see generally Wigmore on Evidence § 2279, p.
481 (1961) ("Legal criminality consists in liability to the law's punishment. When that
liability is removed, criminality ceases; and with the criminality the privilege."). The
Mitchell Court also expressed that a convicted person's "fear of adverse consequences"
warranting Fifth Amendment protection must be "legitimate"—evoking the underlying
standard from Brown and its progeny that this fear be reasonable and based on a
discernible risk from compelled testimony. See Mitchell, 526 U.S. at 326. Viewed in this
context, the language in Mitchell complements the existing framework and roughly
defines the outer limit of the privilege postconviction. It also implies a case-by-case
analysis of the risk of incrimination is crucial.
B. Waiver of the Fifth Amendment privilege
Like other constitutional rights, the privilege against self-incrimination can be
waived. A person waives the privilege by failing to assert it, by voluntarily testifying, or
by pleading guilty to a crime. The type of waiver determines its scope and the extent of
any privilege that remains. The State can also remove the risk of incrimination by a
sufficient offer of immunity that is coextensive with constitutional protections. Kastigar,
406 U.S. at 449.
1. Broad waiver by voluntary testimony—extends to all relevant information
The Supreme Court has distinguished between a waiver of the privilege by
agreeing to testify and a waiver by pleading guilty to a crime. The first type of waiver is a
15
broad waiver, which removes the privilege for the information disclosed and requires a
full disclosure of all relevant details. Rogers, 340 U.S. at 373-74 ("[W]here criminating
facts have been voluntarily revealed, the privilege cannot be invoked to avoid disclosure
of the details."). In this situation, a strong judicial interest in preserving the integrity of
the court's fact-finding mission warrants requiring an extensive waiver. To do otherwise
would transform the Fifth Amendment from a constitutional "safeguard against judicially
coerced self-disclosure" into "a positive invitation to mutilate the truth a party offers to
tell." Brown v. United States, 356 U.S. 148, 156,
78 S. Ct. 622,
2 L. Ed. 2d 589 (1958).
2. Narrow waiver by guilty plea—limited to guilt phase of trial
By contrast, the Court has held an accused's waiver of the privilege by guilty plea
serves an entirely different function and does not pose the same risks to the judicial
process as voluntary, selective testimony. Mitchell, 526 U.S. at 319-25. In Mitchell, the
Court acknowledged that a guilty plea necessarily removes the privilege against self-incrimination for establishing guilt by taking those matters out of dispute.
526 U.S. at
323. A plea also waives the right to a trial by jury, to be presumed innocent, and to force
the State to put on evidence to prove guilt. See Brady v. United States,
397 U.S. 742, 748,
90 S. Ct. 1463,
25 L. Ed. 2d 747 (1970). But the Mitchell Court explained that "the
defendant who pleads guilty puts nothing in dispute regarding the essentials of the
offense."
526 U.S. at 323 (a "guilty plea is more like an offer to stipulate than a decision
to take the stand"). The Court explained why a broader waiver in this instance would
defeat the fundamental due process interest at stake:
"Were we to accept the Government's position, prosecutors could indict without
specifying the quantity of drugs involved, obtain a guilty plea, and then put the defendant
on the stand at sentencing to fill in the drug quantity. The result would be to enlist the
defendant as an instrument in his or her own condemnation, undermining the long
tradition and vital principle that criminal proceedings rely on accusations proved by the
16
Government, not on inquisitions conducted to enhance its own prosecutorial power." 526
U.S. at 325.
Since Mitchell, federal and state courts addressing the issue now recognize that a
guilty plea does not constitute a broad waiver of the Fifth Amendment privilege against
self-incrimination. See, e.g., United States v. Rivas-Macias, 537 F.3d 1271, 1280 (10th
Cir. 2008); United States v. Warren,
338 F.3d 258, 263 (3d Cir. 2003); United States v.
Smith,
245 F.3d 538, 543 (6th Cir. 2001); Landeverde v. State,
769 So. 2d 457, 462-64
(Fla. Dist. Ct. App. 2000); State v. Garber,
674 N.W.2d 320, 326 (S.D. 2004); State v.
Worthington,
8 S.W.3d 83, 92 (Mo. 1999); Carroll v. State,
42 S.W.3d 129, 132 (Tex.
Crim. App. 2001).
II. Kansas privilege law
The Fifth Amendment privilege against self-incrimination applies to the states
through the Fourteenth Amendment to the United States Constitution. Malloy v. Hogan,
378 U.S. 1, 6,
84 S. Ct. 1489,
12 L. Ed. 2d 653 (1964); State v. Brown,
286 Kan. 170,
172-73,
182 P.3d 1205 (2008). This court has held section 10 of the Kansas Constitution
Bill of Rights grants the same protections against compelled self-incrimination as the
Fifth Amendment. State v. Faidley,
202 Kan. 517, 520,
450 P.2d 20 (1969). Additionally,
we liberally construe constitutional provisions securing personal rights, including the
Fifth Amendment privilege. State v. Morris,
255 Kan. 964, 981,
880 P.2d 1244 (1994).
The Kansas Legislature has codified an individual's privilege against self-incrimination under K.S.A. 60-425 and also statutorily defined "incrimination" under
K.S.A. 60-424. With regard to this definition, this court has held Kansas' "constitutional
17
prohibition against self-incrimination is broader than [the state] statute's definition." State
v. Green, 254 Kan. 669, 679,
867 P.2d 366 (1994).
Consistent with federal precedent, this court has held the State can remove the fear
of incrimination, thereby eliminating the privilege, by a sufficient grant of immunity in
return for the witness' testimony. The combination of "use and derivative use" immunity
is sufficient to compel incriminating testimony because it protects a witness from the use
of compelled testimony and any evidence derived therefrom. State v. Delacruz, 307 Kan.
523, 525, 534-35,
411 P.3d 1207 (2018) (citing Kastigar,
406 U.S. at 453).
A. Kansas standard to assess availability of the Fifth Amendment privilege
As a general rule, this court's privilege decisions refer to a risk-of-incrimination
standard when considering whether a convicted and sentenced witness has a valid Fifth
Amendment privilege. See, e.g., State v. George, 311 Kan. 693, 708,
466 P.3d 469 (2020)
(the privilege "'protects any disclosures which the witness may reasonably apprehend
could be used in a criminal prosecution or which could lead to other evidence that might
so be used'"); Delacruz, 307 Kan. at 534 ("a witness who has no reasonable cause to fear
incrimination cannot invoke the right"); Green, 254 Kan. at 679 ("The Fifth Amendment
operates only where a witness is asked to incriminate himself or herself; that is, to give
testimony which could possibly expose the witness to a criminal charge."); State v. Larry,
252 Kan. 92, 96,
843 P.2d 198 (1992) (same), holding modified on other grounds by State
v. Solomon,
257 Kan. 212,
891 P.2d 407 (1995). Although this court has expressed the
standard in different ways, the underlying principle is the same and aligns with our
current interpretation of the federal standard: a convicted defendant or witness may
invoke the privilege by establishing a legitimate—meaning a real and appreciable—risk
of incrimination if compelled to testify.
18
But significant here, this court has departed from its own general risk-ofincrimination standard to create an exception when assertion of the privilege follows a
guilty plea. Under those circumstances, we construed the plea as a broad waiver of the
Fifth Amendment privilege that terminates absolutely upon sentencing, rather than when
there is no longer a legitimate risk of incrimination. See, e.g., Longobardi, 243 Kan. at
409 (holding "once a plea of guilty has been regularly accepted by the court, and no
motion is made to withdraw it, the privilege against self-incrimination ends after sentence
is imposed"). This has resulted in different outcomes on availability of the privilege
depending on the type of conviction. Compare Delacruz, 307 Kan. at 533-35 (reversing
contempt order of convicted witness who refused to testify at codefendant's trial because
he was appealing his state conviction and the State's grant of immunity did not protect
him from federal prosecution), with Bailey,
292 Kan. at 461-63 (finding a witness who
pled guilty and had been sentenced, but was appealing his conviction, no longer had a
Fifth Amendment privilege when called to testify at codefendant's trial). As we resolve
this inconsistency in our Fifth Amendment jurisprudence, it helps to understand how we
got here.
B. Waiver of the privilege
1. Kansas Anderson-Longobardi bright-line rule
Within Kansas caselaw, State v. Anderson, 240 Kan. 695,
732 P.2d 732 (1987), is
the starting point for the scope of a witness' Fifth Amendment privilege after pleading
guilty. In Anderson, this court held an accused who pled guilty but who had not yet been
sentenced could still assert the Fifth Amendment privilege as a witness in an accomplice's
trial.
240 Kan. at 700-01. Anderson pled guilty to aggravated robbery but then tried to
withdraw his plea before sentencing, which the district court denied. When Anderson was
called to testify against a codefendant, his time to appeal the denial of his motion to
19
withdraw his guilty plea had not yet expired. On this basis, Anderson argued he should
still be able to invoke his privilege against self-incrimination.
This court began its analysis by noting the "general rule" that "a witness cannot
claim a Fifth Amendment privilege with respect to those matters to which he has pled
guilty." Anderson, 240 Kan. at 699-700 (citing
9 A.L.R. 3d 990, § 2 [1966]). The court
then considered a body of persuasive federal and state authority holding the privilege
against self-incrimination extends at least until a sentence has been imposed and in some
cases beyond that point. See
240 Kan. at 700-01 (citing multiple authorities holding the
Fifth Amendment privilege may be invoked after a guilty plea where there is a continued
risk of self-incrimination or impact on the disposition of an appeal). Ultimately, this court
similarly held that a witness in Anderson's situation, having pled guilty but awaiting
sentencing, had not waived his privilege against self-incrimination.
240 Kan. at 701.
Anderson fit within the mainstream of the considered authority at the time and followed
federal precedent, which preserved the Fifth Amendment privilege through the penalty
phase of a defendant's criminal proceeding. See Estelle,
451 U.S. at 462-63.
Just a year after Anderson, this court limited that ruling in Longobardi. While
Anderson permissively held a witness who pled guilty could still invoke the privilege
against self-incrimination through sentencing, the Longobardi holding was framed in
restrictive terms—cutting off the privilege at sentencing without a successful withdrawal
of the plea. See Longobardi, 243 Kan. at 409 ("[O]nce a plea of guilty has been regularly
accepted by the court, and no motion is made to withdraw it, the privilege against self-incrimination ends after sentence is imposed."). In the process, the court considered two
standards from Supreme Court caselaw: requirements for a valid waiver of a
constitutional right and a version of the federal risk-of-incrimination standard. See 243
Kan. at 409 (citing Boykin v. Alabama,
395 U.S. 238, 243,
89 S. Ct. 1709,
23 L. Ed. 2d
274 [1969], and Ullmann,
350 U.S. at 431). But the court was clearly more focused on
20
the first of these, as to waiver, and appeared to conclude that as long as the guilty plea
satisfied the knowing-and-voluntary-waiver standard, there could be no further risk of
incrimination after sentencing. The witness in Longobardi asserted the Fifth Amendment
privilege on grounds that the time for an appeal, rehearing, or sentence modification had
not yet passed. This court rejected that contention outright. See Longobardi, 243 Kan. at
409.
Longobardi marks Kansas' adoption of a special, bright-line rule for terminating
the privilege against self-incrimination after a guilty plea and once a sentence is imposed,
which has since been the controlling precedent for this jurisdiction. See George, 311 Kan.
at 709; State v. Soto, 301 Kan. 969, 980,
349 P.3d 1256 (2015); Bailey,
292 Kan. at 460;
Green,
254 Kan. at 678. There are two problems with this line of precedent. First, the
Longobardi rule treats a guilty plea as a broad waiver of the Fifth Amendment privilege
and therefore a special kind of conviction which terminates the right absolutely upon
sentencing. As discussed, this conflicts with Mitchell, which definitively held a guilty
plea is only a limited waiver of the privilege against self-incrimination to establish guilt
and does not extend beyond that phase of the original criminal proceeding. See Mitchell,
526 U.S. at 315 ("Treating a guilty plea as a waiver of the privilege [beyond the confines
of the guilt phase of trial] would be a grave encroachment on defendants' rights."). The
Court's analysis in Mitchell confirms that a guilty plea is unrelated to the availability of
the privilege postsentence, other than being the means of conviction and thereby limiting
the types of postconviction challenges available. And second, the Longobardi rule cutting
off the privilege at sentencing departs from the flexible federal approach that frames the
availability of the privilege in terms of the risk of self-incrimination.
21
2. State v. Smith: Extension of the Fifth Amendment privilege postsentence
In his petition, Hutto focused exclusively on Smith, which was decided in the same
year as Mitchell and appeared to extend the Kansas privilege rule "until there is a final
judgment in a case and a right to appeal has expired." 268 Kan. at 235 (citing State v.
Aldape,
14 Kan. App. 2d 521, 526,
794 P.2d 672 [1990]). Smith dealt mostly with the
Sixth Amendment confrontation right and only speculated that codefendants would have
retained the Fifth Amendment privilege and therefore would not necessarily have been
available as exculpatory witnesses. Of note, the potential witnesses in Smith had not pled
guilty so waiver was not an issue that was raised or discussed.
In Smith, this court properly looked to a risk-of-incrimination standard for when
the privilege applies, noting "'it protects any disclosures which the witness may
reasonably apprehend could be used in a criminal prosecution or which could lead to
other evidence that might be so used.'" 268 Kan. at 235 (citing State v. Lekas,
201 Kan.
579, 589,
442 P.2d 11 [1968]). This recitation of the rule is close to the United States
Supreme Court's standards. See Brown,
161 U.S. at 599 ("danger to be apprehended must
be real and appreciable"), and Malloy, 378 U.S. at 11 ("'The privilege afforded not only
extends to answers that would in themselves support a conviction . . . but likewise
embraces those which would furnish a link in the chain of evidence needed to
prosecute."). But the Smith court did not engage in further analysis on the continued risk
of incrimination the codefendants faced that would warrant continued availability of the
privilege as contemplated by Mitchell. Instead, it simply announced the extent of the
privilege postsentence as stated above: "until there is a final judgment in a case and a
right to appeal has expired." Smith, 268 Kan. at 235.
The Showalter-Hutto panel found Smith incompatible with this court's privilege
decisions in the context of a guilty plea. See Showalter, 62 Kan. App. 2d at 687-88. We
22
note Smith is distinguishable from this line of cases because the witness in Smith had not
pled guilty. See Smith, 268 Kan. at 226. Smith appears to be consistent with federal
precedent in that it references the proper risk-of-incrimination standard and also agrees
with the majority rule on availability of the privilege postsentence. Even so, we do not
adopt its stated rule for availability of the privilege because it also terminates the
privilege at a definite procedural point rather than when the risk of incrimination ends.
Therefore, we neither overturn nor adopt Smith. It is merely one of many cases in our
privilege decisions in which we referenced availability of the privilege up to a certain
phase of the criminal proceedings in the context of the facts presented.
3. Modern Application of Longobardi rule: State v. Bailey
As explained, the Longobardi rule fails to use a risk-of-incrimination standard to
test whether a witness may invoke the Fifth Amendment privilege. This court's decision
in State v. Bailey aptly illustrates this problem.
On appeal, Bailey challenged the availability of the Fifth Amendment privilege for
two of the State's key witnesses. For the first witness, Cheryl Starr, Bailey argued the
court improperly advised Starr that she did not have a Fifth Amendment privilege. At the
time of Bailey's trial, Starr was serving a 12-year sentence after pleading guilty to
second-degree murder, robbery, and aggravated burglary. Notably, Starr did not file an
appeal or otherwise challenge her conviction. Applying Longobardi, this court held Starr
had no Fifth Amendment privilege with regard to the charges because she was sentenced
and had not moved to withdraw her guilty plea. Bailey, 292 Kan. at 461. As applied to
Starr, the Longobardi rule largely achieved the right result, though not because Starr pled
guilty and did not withdraw her plea before sentencing; rather, Starr had no privilege
because she no longer faced a risk of incrimination as to the facts supporting her
completed conviction.
23
Bailey made the opposite argument for a second witness, DaQuan Dean, who had
also pled guilty and been sentenced but who had filed a notice of appeal. Bailey argued
Dean still had a Fifth Amendment privilege, so the State should not have called him as a
witness. This court affirmed the district court's finding that Dean had no privilege against
self-incrimination because of his guilty plea and imposition of sentence, regardless of his
pending appeal. Bailey, 292 Kan. at 461-63. In Dean's case, the Longobardi rule
precluded the essential inquiry: whether he still faced a risk of incrimination after
sentencing, pending his appeal. Bailey underscores the need to align our Fifth
Amendment privilege standards with federal law.
III. Aligning Kansas privilege law with risk-of-incrimination principles
A. Adopting the risk-of-incrimination standard as our guiding principle
In its brief, the State argues the general rule expressed in Mitchell should be
interpreted as a bright-line rule cutting off the privilege after sentencing. The State asserts
Mitchell's reference to the privilege being available until "the judgment of conviction has
become final" meant that the privilege terminates when a district court issues a final,
appealable order. But the State fails to recognize the overarching guiding principle in this
inquiry has always been whether there is a legitimate risk of incrimination to the witness,
not the procedural point at which the judgment is considered "final" for purposes of
appeal. Nor do we read Mitchell as establishing sentencing or finality of judgment as the
clear and definitive point at which the risk of self-incrimination always ends. See, e.g.,
Milke v. City of Phoenix, 325 F. Supp. 3d 1008, 1015-16 (D. Ariz. 2018) ("[A] conviction
should qualify as 'final' [under Mitchell], such that the privilege does not apply, when an
individual is no longer facing 'substantial and real . . . hazards of incrimination.'")
(quoting Marchetti, 390 U.S. at 53).
24
In accordance with Mitchell, the proper standard to determine whether the Fifth
Amendment privilege protects a witness from being compelled to testify is whether the
testimony sought exposes the witness to a legitimate risk—meaning a real and
appreciable danger—of incrimination, not a hypothetical or speculative one. The witness'
fear of self-incrimination must be objectively reasonable and the threat discernible for the
privilege to apply. Consistent with this approach, we decline to adopt a bright-line rule
cutting off the privilege at any specific procedural point.
B. Eliminating the Longobardi bright-line exception for guilty pleas
Our privilege caselaw has yet to recognize that a guilty plea is only a limited
waiver of the privilege against self-incrimination for establishing guilt and does not, on
its own, impact the availability of the privilege beyond that point. This was the central
holding in Mitchell, which we are duty-bound to follow when interpreting the Fifth
Amendment. See 526 U.S. at 329-30. Thus, we hold the risk-of-incrimination standard
applies equally when the information sought relates to a witness' prior conviction by
verdict or by guilty plea, overruling Longobardi and Bailey.
"'We do not overrule precedent lightly and must give full consideration to the
doctrine of stare decisis.'" State v. Johnson, 317 Kan. 458, 467,
531 P.3d 1208 (2023).
"We recognize that '[t]he application of stare decisis ensures stability and continuity—
demonstrating a continuing legitimacy of judicial review. Judicial adherence to
constitutional precedent ensures that all branches of government, including the judicial
branch, are bound by law.'" Herington v. City of Wichita,
314 Kan. 447, 456,
500 P.3d
1168 (2021).
25
Yet stare decisis "'is not a rigid inevitability but a prudent governor on the pace of
legal change.'" Herington, 314 Kan. at 456. "While this court is not inexorably bound by
its own precedent, we generally will follow the law of earlier cases unless clearly
convinced that the rule 'was originally erroneous or is no longer sound because of
changing conditions and that more good than harm will come by departing from
precedent.'" 314 Kan. at 457. In this case, we are clearly convinced that we erred in
Longobardi and subsequent caselaw applying that holding. Based on our analysis above,
we correct our previous error and hold the Fifth Amendment extends the privilege against
self-incrimination to a convicted defendant or witness who can establish a legitimate risk
of incrimination, even if the basis for the conviction is a plea and no motion to withdraw
plea is made before sentence is imposed.
C. Availability of the privilege against self-incrimination after sentencing
Yet our adherence to Mitchell does not definitively resolve the primary issue at
hand, which is whether the privilege is available after sentencing and, if so, under what
circumstances. The United States Supreme Court has yet to address this issue, so the
outer limit of the privilege remains an open question.
1. Privilege against self-incrimination available during direct appeal
The weight of federal and state authority to consider whether the privilege extends
past sentencing holds the privilege is available while a defendant challenges their
conviction on direct appeal or until the time for such appeal has expired. McCormick is
instructive on what appears to be the mainstream position:
"If direct appeal from a conviction is pending or remains available, defendants might
harbor hope that their convictions will be reversed on appeal but fear that any disclosures
they make could be used against them on retrial. Because of this possibility, the courts
26
have generally held that a convicted defendant retains the protection of the privilege until
either the appeal is exhausted or the time for appeal expires. The possibility of reversal
and retrial is not so remote as to constitute a negligible risk under the prevailing
standard." McCormick on Evid. § 121 (8th ed.).
Courts applying this majority rule use a risk-of-incrimination standard to
determine whether an individual retains the privilege past sentencing. See, e.g., United
States v. Kennedy, 372 F.3d 686, 691-92 (4th Cir. 2004) (a defendant convicted of drug
trafficking retained privilege while appealing his conviction when called as a witness to
testify before a grand jury about the facts supporting his conviction) ("Because any post-conviction evidence could be used against a defendant if his conviction were to be
overturned, the risk of coerced self-incrimination remains until the conviction has been
affirmed on appeal."); United States v. Duchi, 944 F.2d 391, 394 (8th Cir. 1991) (noting
split in authority on the issue of availability of the privilege postconviction but favoring
majority rule that extends it "until the time for appeal has expired or until the conviction
has been affirmed on appeal"); Ottomano v. United States,
468 F.2d 269, 273-74 (1st Cir.
1972) (holding witness could claim privilege postsentencing while motion to vacate
sentence was still pending) ("Had this motion been granted, Ottomano could conceivably
have been retried . . ." and in this event, his testimony "would have been admissible
against him."); Holsen v. United States, 392 F.2d 292, 293 (5th Cir. 1968) (holding
witness who was appealing his conviction retained the privilege during the appeal process
and could not have been compelled to testify at codefendant's trial); Mills v. United
States,
281 F.2d 736, 741 (4th Cir. 1960) (holding witness may claim privilege as long as
time for an appeal has not expired); Graham v. Durr,
433 P.3d 1098, 1102-04 (Alaska
2018) (concluding "defendants appealing only their sentences—like defendants appealing
their convictions—may invoke the privilege against self-incrimination until their
convictions become final"); State v. Gretzler,
126 Ariz. 60, 88,
612 P.2d 1023 (1980)
("The Fifth Amendment privilege is available to a convicted person when his conviction
27
or sentence is being appealed."); People v. Villa, 671 P.2d 971, 973 (Colo. App. 1983)
("[W]hen a defendant is appealing his conviction, or seeking other post-conviction relief,
the privilege continues in order to protect him from the subsequent use of selfincriminating statements in the event relief is granted."); State v. Johnson, 77 Idaho 1, 8-
9,
287 P.2d 425 (1955) (witness retained privilege not to testify at alleged accomplice's
trial while his appeal was pending); Ellison v. State,
310 Md. 244, 258-59,
528 A.2d 1271
(1987) (holding witness who had been convicted and sentenced could invoke the
privilege during the time to seek appellate review or while appealing the conviction or
sentence); People v. Lindsay,
69 Mich. App. 720, 722-23,
245 N.W.2d 343 (1976)
(witness who was appealing his guilty plea could assert the privilege during the pendency
of his appeal); Johnson v. Fabian,
735 N.W.2d 295, 310 (Minn. 2007) (holding "a
convicted individual can claim the privilege against self-incrimination as long as a direct
appeal of that conviction is pending, or as long as the time for direct appeal of that
conviction has not expired"); Myers v. State,
154 P.3d 714, 714-15 (Okla. Crim. App.
2007) ("[T]he weight of authority permits a witness whose conviction has not been
finalized on direct appeal to invoke the privilege against self-incrimination and to refuse
to give any testimony whatever in regard to the subject matter which formed the basis of
[the] conviction."); State v. Ducharme, 601 A.2d 937, 944-45 (R.I. 1991) (witness
retained a privilege not to testify at an alleged accomplice's trial because he still had time
to file a motion for a new trial or appeal his conviction).
At least two state appellate courts have found a witness may similarly invoke the
privilege while appealing a denial of a postsentence motion to withdraw a guilty plea or
until the deadline for such an appeal has expired. See, e.g., State v. Marks, 194 Wis. 2d
79, 92-96,
533 N.W.2d 730 (1995) (a real and appreciable fear of incrimination may exist
for a witness who intends and still has the right to withdraw a guilty plea, who intends to
appeal within the deadline or has an appeal pending, or a witness who intends to request a
reduction in sentence); State v. Harris,
92 Wis. 2d 836, 846-49,
285 N.W.2d 917 (Ct.
28
App. 1979) (witness who still had time to file an appeal or a postsentence motion to
withdraw a guilty plea retained the Fifth Amendment privilege against self-incrimination).
We find these decisions persuasive. Thus, in applying the risk-of-incrimination
standard, we hold the Fifth Amendment privilege remains available to a defendant or
witness who has filed a direct appeal in a criminal case and a decision on appeal is not
final (or whose right to file a direct appeal has not expired) when the testimony sought
exposes the witness to a legitimate risk of incrimination.
2. Privilege against self-incrimination available during direct appeal of motion
to withdraw guilty plea
Having determined the privilege is available until a decision on direct appeal
becomes final, we now must determine whether the risk of compelled self-incrimination
also justifies availability of the privilege until a final decision on direct appeal of a
motion to withdraw guilty plea. To resolve this issue, we begin with the statutes
governing criminal appeals.
Under K.S.A. 22-3602(a), defendants generally have the right to appeal from any
district court judgment to an appellate court having jurisdiction of the appeal. But the
statute provides an exception to this general rule when a defendant has pleaded guilty or
no contest. In those cases, a defendant has no right to file a direct appeal from a judgment
of conviction because this is one of the rights surrendered by the plea. See K.S.A. 22-
3602(a) ("No appeal shall be taken by the defendant from a judgment of conviction
before a district judge upon a plea of guilty or nolo contendere[.]"). See also State v. Hall,
292 Kan. 862, 866-68,
257 P.3d 263 (2011) ("A defendant cannot take a direct appeal
from a conviction flowing from a guilty plea. The right to take such a direct appeal is one
of the rights surrendered" when the plea is entered by agreement or in open court.). A
29
guilty plea without a subsequent motion to withdraw deprives the appellate court of
jurisdiction over the conviction. 292 Kan. at 867 (explaining the district court is better
equipped to address these types of issues); but see 292 Kan. at 868 ("A guilty plea does
not surrender a defendant's right to [directly] appeal a sentence.") (Emphasis added.)
(citing State v. Patton, 287 Kan. 200, 226,
195 P.3d 753 [2008]).
Rather, to challenge a conviction after a guilty plea, the defendant must first move
to withdraw the plea in the district court pursuant to K.S.A. 22-3210. After sentencing, a
judgment of conviction by guilty plea may be set aside to correct manifest injustice.
K.S.A. 22-3210(d)(2); K.S.A. 22-3210(e) (A postsentence motion to withdraw plea must
be brought within one year of a final appellate order on a direct appeal, termination of
appellate jurisdiction, or denial or grant of a petition for writ of certiorari to the United
States Supreme Court.). See also White v. State, 203 Kan. 687, 693,
455 P.2d 562 (1969)
("[O]nce a plea of guilty has been entered and sentence pronounced whether or not the
plea can later be withdrawn is a matter within the sound discretion of the trial court,
whose judgment will not be disturbed unless there has been an abuse of that discretion.").
Once a defendant has filed a postsentence motion to withdraw a guilty plea and it
is denied, the defendant may then appeal the denial within the direct appeal time period.
See K.S.A. 22-3608(c) (time for appeal from judgment of district court). This court has
held the statutory bar on a direct appeal from a judgment of conviction by guilty plea
under K.S.A. 22-3602(a) does not preclude a direct appeal from the district court's denial
of the motion to withdraw since K.S.A. 22-3210(d)(2) provides a means of withdrawing
the plea postsentence. See State v. McDaniel, 255 Kan. 756, 758-59,
877 P.2d 961 (1994)
("Implicit in the legislature's enactment of K.S.A. 22-3210[d], permitting withdrawal of a
plea of guilty or nolo contendere . . . is the right to a direct appeal from the trial court's
denial of a motion to withdraw plea.").
30
In light of a criminal defendant's implicit right to directly appeal a district court's
denial of a motion to withdraw plea under K.S.A. 22-3210(d)(2), we find this type of
appeal indistinguishable from a direct appeal of a conviction by verdict under K.S.A. 22-
3602(a) as it relates to the risk-of-incrimination and applicability of the privilege. To
conclude otherwise would undermine the statutory right of a defendant to withdraw a
guilty plea in the interest of manifest justice at the district court's discretion. Thus, we
hold the Fifth Amendment privilege against self-incrimination similarly remains
available to a defendant or witness who pled guilty but has filed a postsentence motion to
withdraw plea pursuant to K.S.A. 22-3210(d)(2) and (e) and a decision on the motion or a
decision on the timely appeal of denial of the motion is not final, when the testimony
sought exposes the witness to a legitimate risk of incrimination.
3. Finality of appeal
As explained above, the risk of coercive incrimination justifies extending the
privilege after sentencing while a direct appeal is pending. But this justification fades
away when the direct appeal becomes final. Because finality is an issue here, we provide
a brief overview on the subject.
In State v. Heath, 222 Kan. 50, 54,
563 P.2d 418 (1977), this court stated that "[a]
conviction is generally not considered 'final' until (1) the judgment of conviction has been
rendered, (2) the availability of an appeal has been exhausted, and (3) the time for any
rehearing or final review has passed." The phrase "time for any rehearing or final review
has passed" necessarily means that the period during which a rehearing could be
requested or a final decision could be reviewed has elapsed without any such action being
taken. Relevant here, a motion for rehearing or modification can be filed within 21 days
after an appellate decision is filed. Rule 7.06(a).
31
This brings us to the effect of a Kansas appellate court's mandate on the finality of
a conviction, which is governed by Kansas Supreme Court Rule 7.03 (2024 Kan. S. Ct.
R. at 45) and K.S.A. 60-2106. After an appellate court's decision is announced by the
filing of an opinion, a certified copy of that opinion is mailed to the district court along
with a "mandate" to enforce the decision. K.S.A. 60-2106(c); Supreme Court Rule
7.03(a), (b). The mandate issues 7 days after: "(i) the time to file a petition for review or
motion for rehearing or modification expires; (ii) entry of an order denying a timely
petition for review or motion for rehearing or modification; or (iii) any other event that
finally disposes of the case on appeal." (Emphasis added.) Rule 7.03(b)(1)(A) (2024 Kan.
S. Ct. R. at 45-46).
The mandate is effective when issued and becomes part of the final judgment.
Rule 7.03(b)(1)(C); K.S.A. 60-2106(c) ("Such mandate and opinion, without further
order of the judge, shall thereupon be a part of the judgment of the court if it is
determinative of the action, or shall be controlling in the conduct of any further
proceedings necessary in the district court."). Of course, the district court cannot enforce
the judgment until the mandate has issued. Therefore, a judgment on appeal is not
considered final until the mandate has issued.
V. Applying Kansas rule on availability of the privilege to Hutto's facts
Whether the privilege was available to Hutto when he was called to testify at
Showalter's trial depends on whether Hutto faced a legitimate risk of incrimination. Hutto
claims he faced such a risk because he still had the opportunity to file (1) a motion for
rehearing or modification of this court's decision to affirm the denial of his motion to
withdraw plea pursuant to Supreme Court Rule 7.06; and (2) a motion for writ of habeas
corpus under K.S.A. 60-1507 alleging ineffective assistance of counsel for giving
inaccurate advice to Hutto regarding the guilty plea. A review of the factual and
32
procedural history of this case is necessary to determine whether Hutto's claim is
legitimate.
Hutto pled guilty to two counts of felony murder and avoided going to trial. As we
now recognize, a guilty plea does not waive the Fifth Amendment privilege beyond the
point of conviction. See Mitchell, 526 U.S. at 321. Rather, a defendant convicted by
plea—like a defendant convicted by verdict—retains the privilege until the risk of
incrimination terminates.
The district court sentenced Hutto on May 10, 2019. Since Hutto pled guilty and
did not withdraw his pleas before sentencing, he could not directly appeal his conviction,
having waived that right. See Hall, 292 Kan. at 866-68 (A guilty plea waives the right to
directly appeal the conviction.). Under these circumstances, the only way Hutto could
directly appeal from his conviction was to first file a motion to withdraw his guilty pleas.
On May 22, 2019, Hutto filed a pro se motion with the district court seeking
posttrial relief, including an ineffective assistance of counsel allegation that he claimed
justified withdrawing his guilty pleas. Hutto, 313 Kan. at 744. The district court
construed that motion to be a postsentence motion to withdraw plea, which can be
granted to correct a manifest injustice under K.S.A. 22-3210(d)(2) within the deadlines
set forth in K.S.A. 22-3210(e)(1). Hutto filed his motion to withdraw plea 12 days after
the district court entered his sentence, well within the required deadline under K.S.A. 22-
3210(e)(1)(A) requiring that the motion be filed within 1 year of termination of appellate
jurisdiction. See State v. Smith, 315 Kan. 124, 127,
505 P.3d 350 (2022) ("When there is
no appeal, appellate jurisdiction terminates 14 days after sentencing.") (citing K.S.A.
2020 Supp. 22-3608[c]).
33
After holding an evidentiary hearing on the motion and considering briefs filed by
the parties, the district court denied Hutto's request to withdraw his pleas on February 11,
2020. Less than a week later, on February 17, 2020, Hutto filed a direct appeal of the
district court's denial of his motion to withdraw his pleas. See K.S.A. 22-3608(c)
("[D]efendant shall have 14 days after the judgment of the district court to appeal."). As
discussed, a defendant who pled guilty but files a motion to withdraw the plea pursuant to
K.S.A. 22-3210(d)(2) and (e) in the district court can directly appeal the denial of that
motion. McDaniel, 255 Kan. at 758-59. For purposes of determining availability of the
privilege against self-incrimination, we hold this type of appeal is no different than a
direct appeal of a conviction by verdict.
We affirmed the district court in an opinion filed on July 9, 2021. Hutto, 313 Kan.
at 751. In the interim period between this court filing its decision and expiration of the
deadline in which Hutto could file a motion to reconsider or modify the decision, the
State subpoenaed Hutto to testify at Showalter's trial. Hutto affirmatively invoked his
Fifth Amendment privilege. The transcript reflects the most relevant exchange:
"Q. Good afternoon. Can you please tell us your name?
"A. Matthew Hutto.
"Q. Mr. Hutto, are you currently an inmate in the Kansas Department of Corrections?
"A. Yep.
"Q. And why are you an inmate?
"A. I was convicted, or pled guilty. I don't . . .
"Q. What crimes were you convicted of?
"A. Felony murder.
"Q. Was it one or two counts?
"A. Two counts.
"Q. And who were you convicted of murdering?
"A. Is that relevant?
"Q. Yes.
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"A. Lisa Sportsman and [J.P.].
"Q. What did you do to cause them to die, and be convicted of felony murder?
"A. I don't see how this is relevant.
"Q. Okay. Well, it is, so answer my question.
"A. And it's my turn. I told you guys that I'm not testifying. I plead the Fifth."
Based on his answers, Hutto apparently believed he faced no risk of incrimination
by naming the victims of the felony-murder conviction but believed he did face a risk of
incrimination if he had to explain what he did to the victims to cause them to die. Was
Hutto's assessment of the risk legitimate—real and appreciable? We conclude it was. As
Hutto argues, the July 30, 2021, deadline for filing a motion for rehearing or modification
of this court's July 9, 2021, decision had not expired when he refused to testify on July
13, 2021, and again on July 16, 2021. See Rule 7.06(a), (b) ("A motion for rehearing or
modification in a case decided by the Supreme Court may be served and filed no later
than 21 days after the decision is filed . . . A motion for rehearing or modification stays
the issuance of the mandate pending determination of the issues raised by the motion.").
Thus, the direct appeal of the court's denial of his motion to withdraw guilty plea was not
final. And as Hutto further argues, compelling him to explain in detail what he did to the
victims to cause them to die—an explanation that goes far beyond a guilty plea limited to
a factual basis establishing the elements of the crime—created a legitimate risk of
compelled incrimination if his request for relief was granted. For these reasons, we
conclude Hutto could assert the Fifth Amendment privilege to prevent answering this
specific question.
We pause to note the panel correctly held the State did not remove Hutto's
privilege by granting him "use immunity." Showalter, 62 Kan. App. 2d at 676-77. As the
panel concluded, only a grant of use and derivative use immunity extinguishes the
privilege against self-incrimination to permit compelled, self-incriminatory testimony.
See Delacruz, 307 Kan. at 534-535 ("[I]f the government wants to compel testimony
35
from a witness claiming the Fifth Amendment privilege against compulsory self-incrimination, it must grant the witness at least use and derivative use immunity,
otherwise a citation in contempt must be reversed."). Thus, the State's grant of use
immunity was insufficient to terminate Hutto's privilege against self-incrimination.
As such, Hutto properly invoked the Fifth Amendment privilege, and the district
court could not punish him for his refusal to testify. We therefore reverse the district
court's order finding Hutto in contempt and vacate the six-month jail sanction.
Our decision finding Hutto faced a legitimate risk of incrimination when he
refused to testify is based on his pending direct appeal of the district court's denial of his
postsentence motion to withdraw plea. Although we affirmed the district court's denial of
Hutto's motion, the direct appeal was not final at the time he was called to testify at
Showalter's trial because the deadline to file a motion to reconsider or modify the
decision had not yet expired, thus the mandate for our decision had not even begun to
run, let alone issue.
We acknowledge Hutto's argument that he also faced a legitimate risk of
incrimination because he might file a motion for writ of habeas corpus under K.S.A. 60-
1507 alleging ineffective assistance of counsel for giving him inaccurate advice regarding
his guilty plea. But as we held above, a risk of incrimination analysis must be conducted
case-by-case to consider whether the risks of incrimination specifically identified by the
person invoking the privilege are real and appreciable. The witness' fear of self-incrimination must be reasonable and the threat discernible for the privilege to apply. A
hypothetical or speculative danger of self-incrimination is not enough to invoke the
privilege.
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Unlike Hutto's pending appeal of the district court's denial of his motion to
withdraw plea, there is no evidence in the record to show Hutto had filed a K.S.A. 60-
1507 motion related to his felony murder convictions, or that he intended to do so at the
time he was called to testify in Showalter's trial. Thus, as it relates to a potential K.S.A.
60-1507 motion, Hutto has failed to establish a real and appreciable risk of incrimination
to invoke the privilege.
The judgment of the Court of Appeals affirming the district court is reversed. The
district court's order of contempt is reversed, and the sanction of six months in jail is
vacated.
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