                IN THE SUPREME COURT OF THE STATE OF KANSAS

                                              No. 112,635

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                        KRISTOFER J. WRIGHT,
                                             Appellant.


                                   SYLLABUS BY THE COURT


1.
        A continuance hearing is a critical stage of a criminal trial, requiring the
defendant's presence.


2.
        When the record on appeal does not contain sufficient factual findings to permit an
appellate court to determine whether a violation of a defendant's right to be present at a
continuance hearing was harmless, the appropriate response is to remand temporarily to
the district court to make the necessary findings.


        Appeal from Sedgwick District Court; JOSEPH BRIBIESCA, judge. Opinion filed March 24, 2017.
Remanded with directions.


        Krystle Dalke, of Law Office of Michael P. Whalen, of Wichita, argued the cause, and Michael P.
Whalen, of the same firm, was with her on the briefs for appellant.


        Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.


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The opinion of the court was delivered by


       BEIER, J.: Defendant Kristofer J. Wright appeals his convictions for first-degree
premeditated murder and conspiracy to commit murder. Wright raises five issues in his
appeal, but today we address only his claim that his right to be present at all critical
stages of his trial was violated.


       Because the record is insufficient for us to complete meaningful review of this
issue, and it may be dispositive of the entire appeal, we remand to the district court for
factual findings, as described below. We retain appellate jurisdiction and will revisit this
case once the findings have been made and added to the record before us.


                        FACTUAL AND PROCEDURAL BACKGROUND


       Wright was charged with premeditated first-degree murder and conspiracy to
commit murder for the shooting death of Jordan A. Turner. Defense attorney Timothy A.
Frieden was appointed to represent Wright.


       Wright wrote Frieden multiple letters from jail while awaiting trial. Wright also
mailed the letters to the clerk of the district court to have them included in his case file. In
a letter mailed and file stamped shortly before his first scheduled trial date, Wright wrote
that he did not "want any more continuance[s] accredited to me" and that he wished to
"invoke my right to be present at all critical stages."


       Frieden nevertheless appeared before the district court on the date first set for
trial—August 19, 2013—without Wright. Frieden also requested a continuance. The


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district judge granted the continuance, which delayed the start of Wright's trial past the
applicable statutory 90 days. See K.S.A. 2012 Supp. 22-3402(a).


       After the 90 days expired, Wright filed a pro se motion to dismiss the case against
him, arguing that his right to be present at all critical stages and his right to a speedy trial
were violated on August 19.


       At the hearing on the motion to dismiss, Frieden said he could not argue the merits
of the motion because of Wright's assertion that Frieden's request for the continuance was
unauthorized. The district judge allowed Wright to speak on his motion, and Wright said
that he had told Frieden he did not want any continuances and that he wanted to be
present at all critical stages. The State argued in response that it would have requested a
continuance on August 19, had it known Wright objected to the continuance sought by
Frieden, because there was still unavailable material evidence at that time. The district
judge denied Wright's pro se motion to dismiss.


       Frieden withdrew from representation of Wright, and attorney Steven D. Mank
entered his appearance as Wright's new counsel.


       After a jury convicted Wright on both counts, he filed a motion for new trial. The
testimony at the motion hearing focused primarily on the alleged violation of Wright's
right to a speedy trial, even though Wright continued to assert a violation of his right to
be present. The district judge denied Wright's motion for new trial without making any
findings about Wright's right to be present on August 19. Neither Mank nor the State
objected to the lack of findings on that issue.




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                                             DISCUSSION


       In this appeal, Wright again argues that his statutory and constitutional right to be
present at every critical stage was violated, compelling reversal of his convictions and
dismissal of the charges.


       An appellate argument on a "defendant's right to be present at every critical stage
of his or her criminal trial raise[s] an issue of law over which this court exercises
unlimited review." State v. Verser, 299 Kan. 776, 787, 326 P.3d 1046 (2014).


       We have recently resolved the question of whether a continuance hearing is a
critical stage at which a defendant is entitled to be present:


               "Under the plain language of [the speedy trial statute,] K.S.A. 22-3402, a
       continuance resulting from a defendant's request stays the running of the statutory speedy
       trial period. When the request is made by defense counsel, the request for continuance is
       attributable to the defendant unless the defendant timely voices an objection. Because a
       defendant's disagreement matters in a statutory speedy trial analysis, a defendant must
       have an opportunity to be present to express that disagreement." State v. Dupree, 304
       Kan. 43, Syl. ¶ 2, 371 P.3d 862 (2016).


Moreover, if a defendant is denied his or her right to be present and object at a
continuance hearing, and the continuance is granted, it is unlikely there will be a remedy
on appeal even if an appellate court later attributes the continuance time to the State. See
State v. Brownlee, 302 Kan. 491, 511, 354 P.3d 525 (2015) (interpreting K.S.A. 22-3402)
(even if continuance originally attributed to defense is attributed to State on appeal,
appellate remedy very limited). In other words, in most instances, if a personal objection
from the defendant is going to be more than a hollow gesture, it needs to be heard and
adjudicated in the district court.
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       This case provides a signal example of these principles. Wright and Frieden
evidently did not agree on the necessity or advisability of the continuance Frieden
obtained on August 19, but Wright was not present at this critical stage to voice his
opinion. We have no hesitance in ruling that his right to be present at all critical stages of
his trial was violated.


       Having determined that there was a violation of Wright's right to be present, we
would normally move to an evaluation of whether the State has established that the error
was harmless under the constitutional standard. See Verser, 299 Kan. at 789. Under that
standard,


       "'error may be declared harmless where the party benefitting from the error proves
       beyond a reasonable doubt that the error complained of will not or did not affect the
       outcome of the trial in light of the entire record, i.e., where there is no reasonable
       possibility that the error contributed to the verdict.' State v. Ward, 292 Kan. 541, Syl. ¶ 6,
       256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012)." Verser, 299 Kan. at 789.


       Unfortunately, our ability to examine harmlessness here is stymied by the lack of
factual findings on the presence issue from the district court. See State v. Hoge, 283 Kan.
219, 221-22, 150 P.3d 905 (2007) (meaningful appellate review precluded when trial
court's findings of fact, conclusions of law inadequate to disclose controlling facts, basis
for court's findings); see also State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000)
(district judge must make factual findings before appellate review can occur). Without
more information about the parties' circumstances and the avenues available to them and
the judge on August 19, we cannot determine with any level of confidence whether
Wright's absence was prejudicial. We are unable to assume that he would have changed
the judge's mind about granting the continuance, making his trial timely commenced; we
are unable to assume that the State would have obtained the continuance in spite of
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Wright's objection; we are unable to make any reliable prediction of the strength of the
State's case or the strength of Wright's defense depending on the day the trial began. See
Verser, 299 Kan. at 789-90 (strength of prosecution's case one of the factors in
harmlessness analysis after violation of defendant's right to be present at all critical stages
of trial).


        Ordinarily we would be inclined to lay the impotence of the record on appeal on
this issue solely at the feet of the State, which must demonstrate harmlessness once an
error is shown. See Ward, 292 Kan. 541, Syl. ¶ 6 (State, as party benefitting from error,
bears burden of showing harmlessness). We do not do so automatically here, because
defense counsel and the district judge also share some responsibility for the absence of
findings in the record. Defense counsel put no emphasis on this issue at the hearing on
the motion for new trial and did not object to the lack of findings. See State v. Rodriguez,
302 Kan. 85, 91, 350 P.3d 1083 (2015) (party must object to inadequate findings of fact
to preserve issue for appeal). And the judge did not ensure that all necessary findings
were made on each outstanding issue, which is inconsistent with the judge's duty under
Rule 165 (2017 Kan. S. Ct. R. 214).


        The one person who certainly shares none of the responsibility for letting this
issue drop is Wright himself. He asserted his right to be present in the letter to Frieden,
copied to the clerk of the court, who placed the letter in the court file. Wright filed the pro
se motion to dismiss for violation of his right to speedy trial and, as part of it, again drew
the court's attention to the violation of his right to be present. He repeatedly voiced his
disapproval of the continuance Frieden obtained in his absence. This chain of events is
reminiscent of those in State v. Raskie, 293 Kan. 906, 925-26, 269 P.3d 1268 (2012), and
State v. Seward, 289 Kan. 715, 217 P.3d 443 (2009), in which defendants took steps to
raise constitutional issues before district judges, but the judges' findings were inadequate
for purposes of appellate review.
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       "When an appellate court is presented with inadequate findings, the proper course
taken depends on whether the issue was raised and can be resolved without remand."
State v. Neighbors, 299 Kan. 234, 240, 328 P.3d 1081 (2014) (citing Raskie, 293 Kan. at
925-26 [remanding because district judge made inadequate findings on defendant's cruel
and unusual punishment argument]). We are left with no choice but remand for findings
here, because we cannot decide from the record before us whether Wright's absence on
August 19 had serious or minimal consequences. As soon as the district court has made
findings about what would have occurred during the August 19 court appearance if
Wright had been included, we can move forward with this appeal. We therefore retain
appellate jurisdiction, in the same manner that we retain it when we remand to district
court for examination of an ineffective assistance of counsel claim under State v. Van
Cleave, 239 Kan. 117, 120-21, 716 P.2d 580 (1986).


                                        CONCLUSION


       This case is remanded for factual findings by the district court, as outlined above.
This court retains appellate jurisdiction.




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