Green v. State

PER CURIAM.

Appeal from Johnson District Court; Stephen R. Tatum, Judge.
Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BUSER, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.

PER CURIAM.

Charles David Green appeals the district court's denial of his K.S.A. 60–1507 motion alleging ineffective assistance of counsel. Green was convicted of reckless aggravated battery following a jury trial. Green argues that his trial counsel was ineffective for failing to present the testimony of certain witnesses and failing to timely obtain certain discovery. He also argues that his appellate counsel was ineffective for failing to argue on direct appeal that his double jeopardy rights were violated when the facts surrounding his prior convictions were used to support an upward durational departure. Finding no merit in Green's claims, we affirm the district court's judgment.

This case arises from a car accident that occurred on Interstate 35 in Johnson County, Kansas, during the early morning hours of August 9, 2003. Witnesses testified that they saw a Mustang speeding, glancing off the center concrete barrier, and crossing multiple lanes of traffic. The Mustang passed in front of the witnesses and continued down the Interstate, at which point the witnesses saw brake lights and a cloud of dust and debris. Seconds later, the witnesses came upon the scene of an accident involving the Mustang and a pickup truck. Green, the driver of the Mustang, appeared unhurt but was walking around, acting hyper and jittery. Mike Anderson, the driver of the truck, was still inside the truck. He was bleeding heavily and asking to be removed from the truck.

Two police officers who were located on a nearby frontage road observed the Mustang speeding and heard a crash almost immediately after they lost sight of the Mustang. They were at the scene within a minute of the accident. At the scene, the officers observed a Mustang with extensive front-end damage and a truck with extensive rear-end damage. The truck also had all-around damage consistent with rolling over. A third police officer arrived and diagrammed the scene of the accident. Based on the damages to both vehicles and witness statements, one of the officers gave the opinion that Green had caused the accident by hitting the rear of Anderson's truck and causing the truck to spin out of control. But all three officers admitted that they did not take any photographs or videos of the scene of the accident that day.

One of the officers believed that Green may have been under the influence of alcohol or drugs based on some of his unusual behavior, although the officer admitted that people involved in accidents often are jittery and excited. The officer asked Green to submit to a preliminary breath test, which showed that Green did not have any alcohol on his breath. The officer then asked Green to submit to a urine test because he believed that something other than alcohol may have been a contributing factor. Green agreed to undergo the tests and went with the officer to KU Medical Center, where the samples were collected. Green admitted that he was on multiple prescription drugs, including Xanax. The test results indicated that Green had Xanax, cocaine, and cocaine metabolites in his system, although no indication of quantity was given. Despite the presence of drugs in his system, Green denied that he was intoxicated at the time of the accident.

Anderson later testified that he was driving on Interstate 35 on his way to work when he suddenly was rear-ended and began to roll. He stated that he lost consciousness and woke up after his truck came to a rest. Anderson initially was taken by emergency medical services (EMS) personnel to KU Medical Center. According to information relayed to doctors by EMS personnel, Anderson did not lose consciousness and was able to walk outside his vehicle at the scene of the accident. Doctors at KU Medical Center determined that Anderson fractured a vertebra in his neck, had significant weakness in his upper and lower extremities, had difficulty breathing, and had bruising and other superficial injuries all over his body. However, the doctors initially did not recommend surgery for Anderson.

Within a week after the accident, Anderson requested to be transferred to Olathe Medical Center, which was his primary medical center. Doctors at Olathe Medical Center determined that based on Anderson's injuries, surgery was the best course of treatment. The surgery involved realigning vertebrae to take pressure off pinched nerves and fusing the spine back together. Anderson made a significant recovery after surgery and was cleared to return to work about 2 months later. But even after returning to work, Anderson continued to have headaches and numbness in his extremities.

On December 18, 2003, the State charged Green with one count of reckless aggravated battery, a severity level 5 person felony. The district court appointed Jessica Travis to represent Green. In June 2004, Travis filed a motion for discovery, requesting in part that the State turn over all relevant medical reports and photographs. Travis apparently received the medical report on Anderson from KU Medical Center but believed that other medical reports were missing. She sent her paralegal to review the State's file, but according to the paralegal, the file did not contain any reports mentioning surgery or Olathe Medical Center. Travis also apparently received a single sheet of six black and white photographs of the scene of the accident. Because the accident reconstructionist engaged by Travis told her that the photographs were insufficient evidence for reconstruction, Travis again requested all available photographs from the State. However, Travis evidently did not receive any additional photographs before trial. The State contended that all requested discovery, including medical reports from Olathe Medical Center regarding surgery on Anderson and color photographs of the vehicles involved in the accident, was provided or made available to Travis.

In January 2005, the State filed a notice of intent to seek an upward dispositional and/or durational departure, alleging that Green was not amenable to probation and that Anderson had suffered a greater degree of harm than typical for the offense of reckless aggravated battery. At a preliminary hearing on the matter, the State indicated that in support of its upward departure motion, it intended to present the following evidence of criminal activity committed by Green while on felony bond in this case: (1) an open container charge in April 2004, in which Green was allegedly found driving with an unbelted minor child in his lap and with an open container of alcohol in the vehicle; (2) an obstruction of justice charge in June 2004, in which Green allegedly lied to police after he had hit several parked cars while driving drunk; (3) a driving under the influence (DUI) charge in October 2004; and (4) a DUI charge in November 2004. The district court found that the alleged criminal activity could be an appropriate basis for upward departure insofar as it indicated that Green was a future threat to public safety. But the district court deferred making a final ruling on the departure motion until the time of trial.

In April 2005, a few days before jury trial was scheduled to begin, Travis moved for a continuance. She contended that the defense had only recently received information that Anderson had undergone surgery at Olathe Medical Center. Travis asked for a continuance so that she could obtain any medical reports from Olathe Medical Center and speak to the doctors who had treated Anderson there. The State argued that the medical reports had been made available to the defense and that in any case the defense was aware of the seriousness of Anderson's injuries, so a continuance was unnecessary. The district court denied the motion and ordered the trial to proceed as scheduled.

Trial began on May 2, 2005. The State presented the testimony of eyewitnesses who saw Green's car immediately before and immediately after the accident. The State also presented the testimony of the police officers who responded to the scene of the accident. During the testimony of one of the police officers, the State sought to admit several color photographs of the vehicles involved in the accident after the vehicles had been removed to a tow lot. Travis objected on the ground that she had never been provided the color photographs of the vehicles despite her repeated discovery requests. Travis was concerned that she had been unable to provide these photographs to the accident reconstructionist that she had engaged. The district court ultimately admitted the photographs into evidence with the allowance that the accident reconstructionist be permitted to review the photographs before he testified. Finally, the State presented the testimony of Anderson and the doctors who treated him. Travis thoroughly cross-examined these witnesses regarding the seriousness of Anderson's injuries.

Green testified on his own behalf, stating that he was not intoxicated at the time of the accident and that the truck had caused the accident by pulling in front of him. The defense also presented the testimony of an accident reconstructionist. He stated that he was unable to conclusively determine which vehicle had caused the accident based on the information he was given, including the color photographs that he reviewed the day of trial. But based on those photographs, he believed that the Mustang had not hit the center concrete median. The jury found Green guilty of reckless aggravated battery.

After the guilt phase of trial was completed, the district court again took up the State's motion for an upward departure. The district court found that greater degree of harm than typical for reckless aggravated battery was not an appropriate departure factor because the degree of harm is built into the offense. The district court also found that nonamenability to probation was not an appropriate departure factor because Green was expected to fall within a presumptive imprisonment grid-box. But over Travis' objections, the district court ruled that future threat to public safety was an appropriate departure factor and stated that it would allow the State to present evidence on that factor.

The State presented evidence surrounding the open container charge, obstruction of justice charge, and two DUI charges Green received while on felony bond in this case. At that point, Green had been convicted of open container and obstruction of justice, but the two DUI charges were still pending. The State's evidence emphasized Green's reckless and dangerous conduct in each case and how his actions constituted a threat to public safety. After hearing the evidence, the jury found beyond a reasonable doubt that Green presented a future threat to public safety.

Travis filed a motion for new trial and to set aside the penalty phase. She argued in part that the district court erred in denying the pretrial motion to continue based on the late disclosure of discovery related to Anderson's treatment at Olathe Medical Center, erred in admitting at trial several color photographs that had not previously been made available to Travis despite repeated discovery requests, and erred in allowing the jury to consider evidence related to Green's future threat to public safety as an appropriate factor for an upward durational departure. The district court denied the motion for new trial. The district court found that the discovery issues were ultimately a result of an unfortunate miscommunication or misunderstanding between the parties but that the court had not erred in denying the defense's motion for a continuance or in allowing the color photographs to be admitted into evidence.

At sentencing, Travis argued that Green's double jeopardy rights would be violated if the district court relied on Green's criminal activity committed while on felony bond to support an upward departure. The district court rejected Travis' arguments and found that the evidence of Green's criminal activity committed while on felony bond supported the conclusion that Green presented a future threat to public safety, which in turn supported an upward durational departure sentence. The presumptive sentencing range was 46 to 51 months' imprisonment, but the district court imposed a durational departure sentence of 15 months' imprisonment. Green timely appealed his conviction and sentence.

Green's appellate counsel raised numerous claims of error on direct appeal, including an argument that the district court had erred in considering Green's criminal activity while on felony bond to support an upward durational departure. However, Green's appellate counsel did not frame that argument in terms of Green's double jeopardy rights. This court affirmed Green's conviction and sentence except as to the imposition of attorney fees. State v. Green, No. 96,211, 2008 WL 2510151 (Kan.App.2008) (unpublished opinion), rev. denied 293 Kan. –––– (December 19, 2011) ( Green I ). Green's appellate counsel did not file a petition for review.

On May 28, 2009, Green filed a pro se K.S.A. 60–1507 motion. Liberally construed, Green argued that he received ineffective assistance of trial counsel based on Travis' failure to present the testimony of EMS personnel and failure to timely obtain the color photographs of the vehicles involved in the accident or the medical reports concerning Anderson's treatment at Olathe Medical Center. Green also argued that his double jeopardy rights were violated because he was double punished when his open container and obstruction of justice convictions were used to support an upward durational departure. Green contended that his appellate counsel was ineffective for failing to raise the double jeopardy issue. Finally, Green argued that appellate counsel was ineffective for failing to timely file a petition for review in the direct appeal.

The district court appointed counsel and held a full evidentiary hearing on Green's K.S.A. 60–1507 motion. Green testified on his own behalf. With respect to trial counsel's failure to call EMS personnel to testify at trial, Green stated that the EMS personnel would have testified that Anderson had denied any loss of consciousness and was able to walk. According to Green, the testimony would have tended to show that Anderson was not seriously injured. With respect to trial counsel's failure to timely obtain the medical reports from Olathe Medical Center, Green testified that if he had more complete information regarding the extent of Anderson's injuries, he may have chosen to make a plea bargain rather than proceed to trial. Green also testified that trial counsel's failure to timely obtain the color photographs of the vehicles involved in the accident hindered the accident reconstructionist's ability to testify as to the cause of the accident. Finally, as to the double jeopardy issue, Green stated that he had already been punished for the open container and obstruction of justice convictions and that the convictions should not have been used to support an upward durational departure.

Travis also testified at the hearing. With respect to her failure to call EMS personnel to testify at trial, she stated that she did not consider Anderson's apparent injuries and demeanor at the scene of the accident to be the crux of the case. With respect to her alleged failure to timely obtain the medical reports from Olathe Medical Center, Travis testified that she was aware that the State was alleging more serious injuries to Anderson than supported by the documentation in her possession, and Travis stated that she had informed Green of these allegations. Travis testified that she undertook extensive efforts to obtain any missing documentation, including writing several letters to the State regarding missing medical reports and sending her paralegal to review the State's entire file. Travis testified that despite her efforts, those reports did not surface until shortly before trial, at which point she moved for a continuance. Travis also testified that she sought the color photographs before trial but stated that the photographs had not been provided or made available in the State's file. Travis testified that there had never been meaningful plea negotiations because Green was extremely adamant about going to trial, even though she had warned him that the State was alleging serious injuries to Anderson and that medical reports substantiating those injuries could surface at any time.

The district court granted the K.S.A. 60–1507 motion with respect to appellate counsel's ineffectiveness for failing to timely file a petition for review. The district court allowed Green to file a late petition for review, which was ultimately denied.

The district court denied the remainder of Green's K.S.A. 60–1507 motion. The district court found that Travis was not ineffective for failing to call EMS personnel as witnesses and that no prejudice resulted from her failure to do so. As to Travis' alleged failure to timely obtain the color photographs and the medical reports from Olathe Medical Center, the district court found that Travis had made efforts to obtain those documents and that it was impossible to determine whether the State had withheld the documents or whether Travis had overlooked them. Furthermore, the district court found that Travis had competently dealt with the setback by filing and arguing a motion for continuance and a motion for new trial based on the late discovery. The district court also found that Green had failed to show prejudice because he was adamant about going to trial regardless of any plea offers made, the medical reports were not admitted at trial, and the defense was allowed additional time to review the color photographs before they were admitted. Finally, the district court found the double jeopardy issue to be moot because the only remedy would be to resentence Green, and he had already been released from prison. Green timely appealed the district court's judgment.

Green first claims the district court erred in denying his claim of ineffective assistance of trial counsel. Green argues that he received ineffective assistance of trial counsel based on Travis' failure to present the testimony of EMS personnel and failure to timely obtain medical reports from Olathe Medical Center and color photographs of the vehicles involved in the accident. The State contends that Travis' performance was not deficient and that Green was not prejudiced by Travis' alleged failures.

After a full evidentiary hearing on a K.S.A. 60–1507 motion, the district court must issue findings of fact and conclusions of law on all issues presented. Supreme Court Rule 183(j) (2012 Kan. Ct. R. Annot. 274). An appellate court reviews the district court's findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support the district court's conclusions of law. Appellate review of the district court's ultimate conclusions of law is de novo. Bellamy v.. State, 285 Kan. 346, 354–55, 172 P.3d 10 (2007). A claim alleging ineffective assistance of counsel also presents mixed questions of fact and law. An appellate court reviews the underlying factual findings for substantial competent evidence and the legal conclusions based on those facts de novo. Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009).

To establish a claim of ineffective assistance of trial counsel, the defendant must prove that (1) counsel's performance was deficient and (2) counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). The first prong of the test requires the defendant to show that counsel's representation fell below an objective standard, considering all the circumstances. Judicial scrutiny of counsel's performance must be highly deferential, with every effort made to eliminate the distorting effects of hindsight. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. 283 Kan. at 90. The second prong of the test requires the defendant to establish prejudice by showing that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the case, with the court considering the totality of the evidence on the claim of ineffectiveness. 283 Kan. at 90–91.

Green first contends that Travis was ineffective for failing to call EMS personnel, who he believes would have testified that Anderson was able to walk at the scene of the accident and had denied losing consciousness. Green claims that this testimony would have shown that Anderson's injuries were not as serious as the State claimed and would have cast doubts on Anderson's version of the accident and its aftermath, which in turn could have affected the outcome of the trial. The State contends that EMS personnel's testimony would not have affected the outcome of the case because there was substantial evidence that Anderson's injuries were serious. The State argues that Travis made a reasonable strategic decision to focus the defense on intoxication and causation.

At trial, doctors testified that Anderson had fractured his neck and suffered significant weakness in his extremities. Surgery was later determined to be the best course of treatment, and Anderson underwent surgery and physical therapy. However, he still had lingering physical problems as a result of the accident. As the district court noted, regardless of when surgery was recommended or whether Anderson ever lost consciousness, there was strong evidence that Anderson's injuries were serious and went beyond the mere bruising or superficial injuries that might be attributable to simple battery. See State v. Whitaker, 260 Kan. 85, 93, 917 P.2d 859 (1996), disapproved on other grounds by State v. Brice, 276 Kan. 758, 80 P.3d 1113 (2003).

Based on the evidence, it is reasonable to conclude that EMS personnel's testimony that Anderson denied losing consciousness and could walk around at the scene of the accident would not have overcome the strong evidence of the seriousness of Anderson's injuries. Thus, substantial competent evidence supports the district court's finding that Travis' failure to present such evidence was not outside the bounds of reasonable professional assistance. This is especially true given the fact that Travis explored and attempted to mitigate the seriousness of Anderson's injuries through cross-examination and that Travis had a clear trial strategy of focusing the defense on intoxication and causation.

Furthermore, because the State's evidence was so strong, there is no reasonable probability that the outcome of the trial would have been different even if EMS personnel testified as Green proffered they would. Therefore, Green was not prejudiced by Travis' failure to present the testimony of EMS personnel. Since Travis' failure to present the testimony of EMS personnel did not constitute deficient performance and Green was not prejudiced by the exclusion of such evidence, the district court correctly concluded that Green did not receive ineffective assistance of counsel on this basis.

Next, Green argues that Travis was ineffective for failing to timely obtain the medical reports from Olathe Medical Center and the color photographs of the vehicles involved in the accident. Green argues that the reports substantiated the seriousness of Anderson's injuries and he would have been more likely to take a plea offer if he had that information. He also notes that the color photographs would have been helpful to the accident reconstructionist. The State contends that Travis made efforts to obtain the discovery and that even if she overlooked the specified reports and photographs, she quickly and competently adjusted her strategy when the late discovery was disclosed.

As the district court noted, it is impossible to determine from the record whether Travis was at fault for failing to earlier obtain the discovery. This court made a similar finding on direct appeal. Green I, 2008 WL 2510151, at *5 (“It is simply impossible for us to determine whether the State withheld the documents or whether the defense somehow overlooked them when it obtained discovery.”). Also, substantial evidence supports the district court's finding that Travis competently dealt with the discovery setbacks. She filed and argued a motion to continue after the Olathe Medical Center reports were disclosed and objected when the State attempted to admit the color photographs at trial. She also filed a motion for new trial based in part on the late discovery. Given this evidence and in light of the lack of conclusive evidence that Travis was at fault for failing to obtain the discovery, the district court reasonably concluded that her performance fell within the range of reasonable professional assistance.

As to prejudice, the district court found that Green was adamant about going to trial regardless of any plea offers made. This finding is supported by Travis' testimony. Green fails to explain what specific prejudice resulted from the late disclosure of the color photographs. And as the district court observed, the defense was given the opportunity to review the photographs and provide them to the accident reconstructionist before he testified. Green has failed to show there was a reasonable probability that the outcome of trial would have been different but for Travis' failure to timely obtain the medical reports and the color photographs. Thus, the district court correctly concluded that Green did not receive ineffective assistance of counsel on this basis.

Green argues that appellate counsel was ineffective for failing to argue on direct appeal that Green's double jeopardy rights were violated when the facts surrounding his convictions for open container and obstruction of justice were used to support an upward durational departure. Green contends that appellate counsel's ineffectiveness in failing to raise the issue on direct appeal constitutes an exceptional circumstance allowing him to raise the issue in his K.S.A. 60–1507 motion. Because he believes the issue has merit, he asks this court to vacate his sentence and remand for resentencing. The State argues that Green's double jeopardy claim has no merit and thus appellate counsel was not ineffective for failing to raise the issue and Green is not entitled to any relief.

As discussed above, an appellate court applies a mixed standard of review to a district court's decision following a full evidentiary hearing on a K.S.A. 60–1507 motion. An appellate court determines whether the district court's factual findings are supported by substantial competent evidence and are sufficient to support its conclusions of law. The district court's ultimate conclusions of law are reviewed de novo. Bellamy, 285 Kan. at 354–55. The issue of whether there is a double jeopardy violation under either the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution or § 10 of the Kansas Constitution Bill of Rights is a question of law subject to unlimited review. State v. Schoonover, 281 Kan. 453, Syl. ¶ 1, 133 P.3d 48 (2006).

As a preliminary matter, the district court declined to address Green's double jeopardy argument as moot because the only redress would be to resentence Green, who has already been released from prison. But although Green apparently has been released from the imprisonment portion of his sentence, the record is unclear whether he remains on postrelease supervision. On December 1, 2005, Green was sentenced to 75 months' imprisonment followed by 24 months' postrelease supervision for a total term of 99 months. Taking into account the approximately 8 months of jail credit that Green was granted, it appears that he may not complete his total sentence until on or about July 1, 2013. Because it is impossible to tell from the record whether Green has completed his sentence including postrelease supervision, we will address the merits of Green's claim. See State v. Black, 36 Kan.App.2d 593, 593–94, 142 P.3d 319 (2006) (appeal regarding jail time credit not moot where defendant remained on postrelease supervision).

The Double Jeopardy Clause of the Fifth Amendment protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Schoonover, 281 Kan. 453, Syl. ¶ 2. The same protections are also contained within § 10 of the Kansas Constitution Bill of Rights. 281 Kan. 453, Syl. ¶ 10; see also K.S.A. 21–3108 (effect of former prosecution).

To support his double jeopardy claim, Green cites his own prior appeal before this court in State v. Green, No. 99,856, 2009 WL 2499288 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1098 (2010) ( Green II ). In Green II, the State proceeded to prosecute Green for one of the DUIs that occurred while he was on felony bond in his reckless aggravated battery case. Green filed a motion to dismiss the DUI charge on double jeopardy grounds, arguing that his upward durational departure for reckless aggravated battery was based in part on the evidence surrounding the DUI charge. The district court rejected the argument and denied the motion to dismiss. The district court reasoned that Green's upward durational departure was not based solely on the DUI but on the finding that Green posed a future threat to public safety and thus double jeopardy did not bar the State from separately prosecuting Green for the DUI. at *2. On appeal, a panel of this court reversed Green's DUI conviction. This court concluded that because “significant” evidence of Green's DUI was used to support an upward durational departure for reckless aggravated battery beyond the statutory maximum prescribed by the Kansas Legislature, the State's subsequent prosecution for the DUI violated Green's double jeopardy rights. 2009 WL 2499288, at *5–6.

Although the facts of Green II are distinguishable from the facts herein, the court's holding in that case provides support for Green's double jeopardy claim. But as a general rule, Kansas courts have held that future threat to public safety can constitute a substantial and compelling reason justifying an upward dispositional and/or durational departure. State v. Snow, 282 Kan. 323, 345–46, 144 P.3d 729 (2006), disapproved on other grounds by State v. Guder, 293 Kan. 763, 267 P.3d 751 (2012); State v. Yardley, 267 Kan. 37, 43–44, 978 P.2d 886 (1999). Moreover, Kansas courts have held that a defendant's prior convictions can be used to justify a departure sentence so long as the focus is specifically on what the criminal history says about the defendant, such as a future threat to public safety. See, e.g., State v. Gideon, 257 Kan. 591, 625, 894 P.2d 850 (1995); State v. Carr, 29 Kan.App.2d 501, 504, 28 P.3d 436 (2001), aff'd 274 Kan. 442, 53 P.3d 843 (2002); State v. Howes, 22 Kan.App.2d 837, 839–40, 923 P.2d 1064 (1996); State v. Vazquez, No. 89,895, 2004 WL 90062 (Kan.App.2004) (unpublished opinion).

The same double jeopardy argument that Green raises herein recently was rejected by this court in State v. Angilda, No. 106,226, 2013 WL 1234188 (Kan.App.2013) (unpublished opinion). Angilda was convicted of numerous sex crimes, including rape and aggravated criminal sodomy of a 92–year–old woman. Following the trial, the district court held a hearing on the State's motion for an upward departure sentence. The State presented evidence to the jury of a prior crime Angilda had committed in Missouri in which he tried to steal a woman's car during the day with what the victim thought was a handgun. The State also presented evidence that Angilda had violated his probation for the prior crime by failing a drug test and committing the sex crimes in this case. After hearing the evidence, the jury found two aggravating factors: (1) Angilda was aware that the victim was particularly vulnerable due to her age, and (2) Angilda presented a risk of future dangerousness as to the property crimes.

On appeal, Angilda contended that the upward departure sentence violated his double jeopardy rights. Specifically, Angilda argued that because the State presented evidence of his prior crimes to support the claim of future dangerousness, he was punished twice for the same conduct. This court noted that Kansas courts have held that prior crimes may be used to support an upward departure sentence if the focus is on what the history says about future dangerousness, rather than general criminal history. 2013 WL 1234188, at *9. In rejecting Angilda's double jeopardy argument, this court stated:

“Here, the district court focused on the violent nature, time of day, and location of Angilda's prior crimes. These were facts that his criminal history did not contain and evidence of Angilda's dangerous character. Angilda was not punished twice for his past crimes; the circumstances of his past crimes evinced that he was a future danger, which caused an upward departure sentence for his current crimes.” 2013 WL 1234188, at *9.

Here, the facts surrounding the open container conviction indicated that Green was driving with an unbelted minor child in his lap and an open container of alcohol in the vehicle. The facts surrounding the obstruction of justice conviction indicated that Green ran into parked cars while driving drunk and then lied about it to police. It is clear from the record that the State's main purpose in introducing the conduct surrounding those convictions was to show Green's future threat to public safety. Under the circumstances, we conclude that the introduction of the evidence surrounding Green's prior convictions to justify a departure sentence did not violate Green's double jeopardy rights.

But even if Green's double jeopardy argument has merit, we must still determine whether appellate counsel was ineffective for failing to raise the issue in his direct appeal. To establish ineffective assistance of counsel on appeal, the defendant must show that (1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) the defendant was prejudiced to the extent that there is a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful. State v. Smith, 278 Kan. 45, 51–52, 92 P.3d 1096 (2004). Although the failure of appellate counsel to raise a particular issue on direct appeal is not, per se, ineffective assistance of counsel, appellate counsel's failure to foresee a change in the law may lead to relief if the failure was not objectively reasonable. Laymon v. State, 280 Kan. 430, Syl. ¶ 3, 122 P.3d 326 (2005).

In Laymon, the defendant filed a K.S.A. 60–1507 motion, alleging that his appellate counsel, who was an attorney with the Appellate Defender Office (ADO), was ineffective because counsel had failed to challenge the defendant's sentence for conspiracy to manufacture methamphetamine by asserting a McAdam-type argument. See State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). Our Supreme Court agreed, finding that the ADO attorney's failure to raise the McAdam-type argument on direct appeal was objectively unreasonable where other attorneys within the ADO had been pursuing that argument with some success and where developing caselaw in Kansas was favorable to that argument. Laymon, 280 Kan. at 444. And because the defendant's direct appeal would have been successful if his ADO attorney had raised the identical offense doctrine, the Supreme Court determined the defendant was prejudiced by his ADO attorney's deficient performance. 280 Kan. at 444.

This case is unlike Laymon. The double jeopardy argument that Green is asserting now was without any precedent in Kansas caselaw at the time of Green's direct appeal, and its failure before the district court was unsurprising in light of Kansas cases which permit evidence surrounding a defendant's prior convictions to be used in certain circumstances to support an upward durational departure. No favorable Kansas caselaw existed until this court decided Green II, well after Green's direct appeal in Green I was filed and decided by this court. Because there was no Kansas caselaw at the time of Green's direct appeal that directly supported the double jeopardy argument and at least some Kansas caselaw that indirectly opposed it, we conclude that appellate counsel's failure to raise the issue was not objectively unreasonable and did not constitute deficient performance. See Laymon, 280 Kan. at 440 (stating that right to effective assistance of counsel requires counsel's competence, not omniscience).

In summary, we conclude that Green's argument that his upward departure sentence violated his double jeopardy rights is without merit. But even if there is some legal merit to the argument, we conclude that Green's appellate counsel was not ineffective for failing to raise the issue in Green's direct appeal under the facts and circumstances of this case. Accordingly, Green's claim of ineffective assistance of appellate counsel fails.

Affirmed.