              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.


       On the facts of this case, the denial of defendant's right to be present when a
continuance was requested by defense counsel against the defendant's wishes was not
reversible error. Nor was any error arising from his counsel's later inability to argue in
favor of the defendant's pro se motion to dismiss for violation of the speedy trial statute
or any error from the prosecution's failure to bring the defendant to trial within 90 days of
arraignment reversible.


2.


       Listing of legally correct factors supporting an inference of premeditation in a jury
instruction on premeditation is not error.


3.


       A prosecutor's misstatement of law during a jury instructions conference does not
require reversal of a defendant's convictions when the record does not demonstrate that
                                              1
the misstatement influenced the judge and when the instruction language advocated for
by the prosecutor correctly states the law.


4.


        A "constitutional nullity" argument raised for the first time on appeal need not be
considered on its merits.


5.


        Under K.S.A. 2016 Supp. 21-5202(h), a criminal defendant's intent is subject to
proof by circumstantial evidence. Specifically, a defendant need not testify to be
convicted.


        Appeal from Sedgwick District Court; JAMES R. FLEETWOOD and JOSEPH BRIBIESCA, judges.
Opinion filed February 16, 2018. Affirmed.


        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.


The opinion of the court was delivered by


        BEIER, J.: This is defendant Kristofer J. Wright's direct appeal from his conviction
for first-degree premeditated murder and conspiracy to commit murder. We previously
issued a decision remanding the case for an evidentiary hearing in district court to
establish a record on whether a violation of Wright's right to be present at a continuance

                                                     2
hearing caused reversible harm. State v. Wright, 305 Kan. 1176, 390 P.3d 899 (2017).
The hearing has now been conducted; we retained appellate jurisdiction.


       Having evaluated the results of the hearing on remand, we hold that there was no
reversible error resulting from the violation of Wright's right to be present, from any
related allegation of error based on his lawyer's later failure to argue in favor of dismissal
for violation of the speedy trial statute, or from the prosecution's failure to bring Wright
to trial within 90 days of his arraignment.


       We also have reviewed Wright's remaining appellate challenges to his convictions,
one of which deals with the content of the jury instruction on premeditation, one of which
addresses the prosecutor's erroneous statement about that content during the instructions
conference with the district judge, and one of which challenges the content of the
instruction on intent. None of these challenges requires reversal.


                        FACTUAL AND PROCEDURAL BACKGROUND

       The facts of Wright's crimes are irrelevant to his purely legal arguments and thus
will not be recited here.


       Our earlier decision recited the procedural history necessary to an understanding
of Wright's appellate claim that his right to be present at all critical stages of the
prosecution against him had been violated. Of course, our remand continued the
development of the procedural history on that claim, and the following further recitation
provides necessary context for our ultimate disposition.


       Immediately after issuance of our earlier decision, the State filed a motion for
rehearing or modification. Before that motion could be ruled upon, Judge Warren M.

                                               3
Wilbert, the district judge who had presided over the docket call at which Wright's
counsel, Timothy A. Frieden, successfully sought the continuance Wright did not want,
telephoned and sent a letter to this court, attempting to explain what was likely to have
occurred when the continuance was granted. The court filed Judge Wilbert's letter with
the Clerk of the Appellate Courts, and the parties were notified of Judge Wilbert's efforts
to contact the court.


       Wright's appellate lawyer then filed a motion seeking to have a district judge other
than Judge Wilbert assigned on remand.


       By order dated May 26, 2017, this court denied the State's motion for rehearing or
modification and granted Wright's motion to have a different judge assigned to conduct
the evidentiary hearing on remand. This court's order also gave further, more explicit
instructions for the hearing and its aftermath, stating:


               "We emphasize that the issue before this court is whether Wright's presence
       would have made any difference in the decision to grant the continuance. In order to
       arrive at findings on this question, the district judge assigned by Chief Judge [James]
       Fleetwood must give both Wright and his lawyer on the one hand and the State on the
       other hand an opportunity for an on-the-record, evidentiary hearing.


               "After that hearing is held, the district judge must produce a journal entry
       containing his or her factual findings. That journal entry must be added to the appellate
       record before us in this case. Neither a telephone call nor a letter to any member of the
       court or to the appellate clerk will be sufficient for the judge to discharge his or her duty
       under this order or under our [earlier] opinion.


               "A transcript of any hearing held on the issue also must be produced and added to
       the appellate record.



                                                     4
               "When both the journal entry and the transcript of any hearing have been added
       to the appellate record, counsel for Wright and for the State shall file a joint notice with
       the appellate clerk that the case is ready for further appellate review by this court. No
       further briefing or oral argument will be permitted."


       On October 5, 2017, the parties filed the required joint notice. Chief Judge
Fleetwood had assigned himself to conduct the evidentiary hearing, which was held on
August 8, 2017. Wright, Frieden, two prosecutors, and Judge Wilbert testified at the
hearing.


       As of the time of the August 19, 2013, grant of the continuance for which Wright
was not present, the State still had 35 of its 90 statutory days to bring the defendant to
trial. Instead, trial did not commence until the following February—after intervening,
unchallenged events further delayed it beyond its second setting of October 21, 2013.


       The witnesses at the evidentiary hearing mentioned five possibilities for what
would have occurred on the day Frieden obtained the continuance had Wright been
present to voice his objection:


       1.      A less-than-35-day continuance would have been granted and charged to
               the State, and the case would have been brought to trial within the statutory
               90 days.


       2.      Wright would have been persuaded to acquiesce in the continuance sought
               by Frieden, meaning the continuance would have been correctly charged to
               the defense.




                                                     5
       3.     The continuance would have been granted and charged to the defense
              despite Wright's objections, because his expectation that his counsel would
              be ready for trial so quickly in a murder case was unrealistic.

       4.     Judge Wilbert would have ordered a 30-day continuance under K.S.A. 2013
              Supp. 22-3402(e)(4) based on the court's crowded docket, and the case
              would have been brought to trial within 90 days.


       5.     The State would have been granted a 90-day material evidence continuance
              under K.S.A. 2013 Supp. 22-3402(e)(3), which would have avoided speedy
              trial concerns.


       Judge Fleetwood made a factual finding that Judge Wilbert was aware of the five
possibilities, regardless of the more limited information that Judge Wilbert's letter to this
court had conveyed. Judge Fleetwood also found that Option 1, the scenario the
prosecutors had described as most likely, would have occurred if Wright had been present
and objecting. The trial would have been continued, because local procedures for alerting
the court to the need for a judge to try the case that day had not been followed, and no
judge was available to try it. The defendant had no statutory right to trial that day. The
State would have been required to take a continuance charged to it, and prosecutors and
the court would have ensured that the defendant's trial began within the next 35 days, i.e.,
before expiration of the statutory time limit of 90 days. If, by the time of the next trial
setting, the prosecutors continued to believe that certain cell phone and tower records
were important for the State's case, and they had not received them, they would have
been free to seek a material evidence continuance of up to an additional 90 days. Because
the records ultimately were obtained well within what would have been that additional 90
days, the State could have met its speedy trial obligation.



                                               6
       As mentioned, Wright advances two other appellate challenges related to his claim
that the violation of his right to be present caused his statutory right to speedy trial to be
violated, a right he cannot vindicate effectively on appeal. 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).


       First, Wright alleges that he was denied conflict-free counsel when Frieden did not
argue Wright's pro se motion to dismiss based on the speedy trial statute.


       The record before us demonstrates that Wright filed a pro se motion to dismiss on
October 10, 2013—52 days after Frieden sought and obtained a continuance on August
19, i.e., 17 days after the expiration of 90 days from Wright's arraignment. Wright argued
that his right to be present had been violated and that attribution of the continuance to
him without his agreement violated his statutory right to a speedy trial.


       On October 21, 2013, the date of the second trial setting resulting from the
continuance Frieden had obtained, Wright was with Frieden in court before Judge
Wilbert when the substance of the pro se motion was discussed. Frieden informed the
judge that he had wanted the August continuance and had thought Wright was "on board"
with that plan but that Wright had objected. Judge Wilbert noted that there had been only
one continuance. One of the prosecutors, Jennifer Amyx, informed the judge that new
discovery had just been sent to Frieden.


       Judge Wilbert asked Wright if he would give Frieden more time to prepare for
trial, given the seriousness of the charges. Wright said no. Wilbert then told Wright that
he would be forcing Frieden to go to trial unprepared—"biting off your nose to spite your
face"—and said that a continuance on a first-degree murder case was not unusual. The
                                               7
judge declined to dismiss and again continued the case, this time attributing the
continuance to the State.


       On November 8, 2013, Wright again was in court with Frieden when Judge Joseph
Bribiesca considered Wright's pro se motion. Frieden told Judge Bribiesca that he did not
believe he could argue the motion. The judge agreed:


       "Wright is, in essence, taking the position that there were continuances taken by the
       defense that he didn't authorize. . . . And so that . . . places you, Mr. Frieden, in a rather
       compromising position of, on the one hand, you're his attorney, you represent him, and
       on the other hand, . . . [Wright] is taking the position that he didn't authorize you to
       request continuances on his behalf, so I don't see how you can argue the motion either."


       The judge then told Wright to tell him "what it is [Wright wanted] to tell" him.
Wright explained that he had told Frieden he did not want any continuances and that he
wanted to be present at all critical stages of the proceedings. Wright said that Frieden told
him "that he wanted to take a vacation on my trial" but Wright was firm that he wanted
no continuances. Wright was unsure how a continuance was credited to him and why he
had not been present to object when it was sought.


       When Judge Bribiesca heard from the State, Amyx referred him to letters Wright
had written to Frieden before August 19, in which Wright asserted his right to be present
and said he wanted no continuances. But Amyx pointed out that the letters also sought
further investigation of the case less than two weeks before the first trial setting. She
stated that a single continuance on a first-degree murder case was reasonable and that
dismissal would be inappropriate. She also stated that no prosecutor had been present on
August 19 either; had one been present, the State




                                                      8
       "would have made a record under the statute . . . that there was material evidence which
       was unavailable, that reasonable efforts had been made to procure the evidence, and there
       was grounds to believe that it would have been procured within the next 90 days and the
       trial could be commenced within that time."


       Judge Bribiesca noted that Wright, despite his insistence on speed, had also
requested further investigation and had wanted Frieden to file a motion to sever his case
from that of a codefendant. The judge continued:


       "[Wright's] asking his lawyer to do all these things, and his lawyer can't do all these
       things on his behalf in a matter of 24 hours. It takes time to gather up all this information.
       It takes time to file motions and have 'em heard. It takes time to review any records that
       are obtained by way of either discovery or through an attorney's own investigation, with
       the help of an investigator or doing it himself.


               ....


               "The defendant cannot be heard now to scream that his speedy trial right has
       been violated as a result of him making demands on his lawyer to obtain information and
       file motions on his behalf, but it wasn't done fast enough to satisfy him."


       Wright was again permitted to comment. He reiterated that he had told Frieden
that he did not want any continuances charged to him, but he acknowledged that he had
also requested further investigation by Frieden.


       Judge Bribiesca ruled that the speedy trial statute required only that Frieden
consult with Wright on continuances, not that Wright approve them, and that Wright had
"caused the continuance that took place on [August 19] because [he asked] his lawyer to
do all these things." He therefore denied the pro se motion to dismiss.



                                                     9
       Wright also argues on appeal that the State's failure to bring him to trial within 90
days, despite being on notice of his assertion of his statutory right to speedy trial, was
reversible prosecutorial error.


       One of Wright's three remaining appellate issues centers on the wording of the
premeditation jury instruction and the way in which one of the prosecutors advocated for
that wording.


       As mentioned in our previous decision, Frieden eventually withdrew as Wright's
counsel and was replaced by Steven Mank, who represented Wright through trial and
posttrial proceedings in the district court. Mank objected during conference with the trial
judge to the State's proposed premeditation instruction. The proposed instruction listed
factors a jury may consider in inferring the existence of premeditation. It read:


                "Premeditation cannot be inferred from the use of a deadly weapon alone, but it
       may be inferred where other circumstances also exist. The circumstances which may give
       rise to an inference of premeditation include but are not limited to:


                1.      The nature of the weapon used,


                2.      A lack of provocation,


                3.      The defendant's conduct before and after the killing,


                4.      Threats and/or declarations made by the defendant before and
                        after the killing, and


                5.      Lethal blows inflicted after the deceased was felled and rendered
                        helpless."



                                                    10
       Mank conceded that the instruction correctly stated the law but argued that the
listing of the factors was more appropriate for closing argument and that the factors in the
instruction would "[draw] too much attention" to them. Prosecutor Robert Short
responded:


               "Judge, our response is two-fold. One, this is wording directly taken from case
       law in the state of Kansas. In fact, in the case law it references this instruction being used
       in a closing where it was not part of the instructions. The better practice, according to that
       case, was to include it in the instructions, and so we have taken it word for word,
       proposed it to the Court to include in the instruction."


       The trial judge overruled Mank's objection: "[T]here's a number of cases where
the . . . appellate courts have cited this language with apparent approval. And therefore,
the Court doesn't see a problem with giving this instruction to the jury."


       Wright's final appellate argument focuses on the language of the jury instruction
on intent. His counsel did not challenge the language at trial. The instruction read: "A
defendant acts intentionally when it is the defendant's desire or conscious objective to do
the act complained about by the State."


                      RIGHT TO BE PRESENT AND RELATED CHALLENGES

       We have already ruled that Wright's right to be present at all critical stages of his
prosecution was violated when he was absent from the August 19 proceeding in which
Frieden successfully requested the continuance. Wright, 305 Kan. at 1178. The question
remaining before us is whether that error was harmless. Would that continuance or some
other continuance that avoided a speedy trial violation have been granted anyway, even if
Wright was present and objecting?


                                                    11
       The transcript of the evidentiary hearing and Chief Judge Fleetwood's findings on
remand now enable us to answer that question.


       Four of the five options discussed by the witnesses at the evidentiary hearing on
remand have debilitating weaknesses.


       Option 2's concept that Wright could have been persuaded to acquiesce in the
continuance is simply not supported by substantial competent evidence in the record. As
discussed in our earlier decision and more extensively above, Wright was dogged in
asserting his right to speedy trial. He insisted well in advance of August 19 that he
wanted no continuances and consistently repeated that assertion throughout the original
proceedings in the district court, before this court, and on remand. He was not cowed by
the skepticism he faced from Judge Wilbert or from Judge Bribiesca; without Frieden's
meaningful assistance, he advocated powerfully for his position on the pro se motion to
dismiss. We have no reason, other than Judge Wilbert's belief he could have been
persuasive, to think Wright would have behaved differently had he been present on
August 19.


       Option 3—granting of the continuance and attribution of it to the defense despite
Wright's objections, because his expectation that his counsel would be ready for trial so
quickly in a murder case was unrealistic—does not appear to be supported by law. A
defendant's right to speedy trial is not defense counsel's to waive without his or her
client's agreement. Automatically allowing counsel to waive without that agreement
could render any statutory or constitutional protection of the defendant's right to speedy
trial practically worthless in any case in which a serious crime has been charged. In
addition, we note that the testimony at the remand hearing about this option was unclear
as to how long a continuance might have been granted, meaning we cannot know if it


                                             12
truly would have mitigated the violation of speedy trial harm threatened to result from
violation of Wright's right to be present on August 19.


       As to Option 4, granting of a court continuance, the testimony from Judge Wilbert
was unequivocal and emphatic; Wright's case was not going to go to trial on August 19,
the date of the first trial setting. But generally a court continuance is designed as a fail-
safe when a case cannot be brought to trial within the statutory time limit; both Judge
Wilbert and the prosecutors testified that this case could have been prioritized and
brought to trial within the permitted 90 days. A court continuance 35 days before
expiration of the 90-day limit in this case would not have been appropriate.


       On Option 5, a 90-day material evidence continuance granted to the State, again,
there is an evidentiary infirmity. The prosecutors' testimony was internally inconsistent—
on the one hand, asserting that the State's case was already very strong and ready to go by
the time the continuance was granted and certainly could have been tried within 90 days
and, on the other hand, stating that certain cell phone and tower records were still needed
to rule out the existence of exculpatory information or corroborate the State's witnesses.


       All of this being said, it is apparent from Chief Judge Fleetwood's findings that he
recognized the factual and legal weaknesses in Options 2 through 5 listed by the
witnesses. He sifted the wheat from the chaff, identifying the first option as the one
supported by the facts and the law and the one most likely to have occurred had Wright
been permitted to be present at the time his counsel sought the August continuance. That
option—granting a less-than-35-day continuance and charging it to the State—would
have been the sensible course. And it would have brought the case to trial within the 90
days permitted by the speedy trial statute. Wright was not, as Chief Judge Fleetwood
recognized, entitled to trial on August 19. He was entitled to trial within 90 days and he
would have gotten it. His presence on August 19 would not have prevented a continuance
                                              13
from being granted. It merely would have shortened the length of the continuance and
pushed the court and the State to meet the 90-day deadline. There is no evidence or
argument that the State's case would have been meaningfully weakened by the
accelerated schedule, and there is no evidence or argument that Wright's case would have
been strengthened. Under such circumstances, we cannot say that Wright's absence when
the defense continuance was granted on August 19 resulted in reversible harm.


       This outcome also dooms Wright's appellate claims that he is entitled to reversal
of his convictions because he was denied conflict-free counsel to argue his pro se motion
to dismiss and because violation of his statutory right to speedy trial stemmed from
prosecutorial error. We need not decide the predicate issue of whether there was error on
either of these bases; we can assume it for purposes of argument. But any such error, if it
existed, was as harmless as the error that underlay these claims, the denial of Wright's
right to be present on August 19. Regardless, Wright would have gone to trial and he
would have been convicted. He might have arrived at that result by a slightly different
route, but his ultimate destination was bound to be the same.


                       CONTENT OF PREMEDITATION INSTRUCTION

       Wright's fourth issue on appeal deals with the content of the premeditation
instruction.


       Wright asserts that the trial judge erred by including language from our caselaw
regarding factors that may be considered by a jury when drawing an inference on the
existence of premeditation. This appellate issue was fully preserved for appeal through
Mank's objection at trial.




                                            14
       Our decision on the merits of this claim is controlled by our recent decision in
State v. Bernhardt, 304 Kan. 460, 472, 372 P.3d 1161 (2016). As Mank conceded, the
language is a correct statement of the law. It was not error for the trial judge to include it
in the premeditation instruction.


                 PROSECUTORIAL ERROR IN INSTRUCTIONS CONFERENCE

       Wright's fifth issue on appeal challenges one of the prosecutor's statements during
the jury instructions conference with the trial judge. When defense counsel Mank
objected to inclusion of the list of factors in the premeditation instruction discussed
above, the prosecutor stated that prior caselaw indicated it was "better practice" for
judges to include the factors in the premeditation instruction.


       In fact, no such caselaw exists, and the prosecutor's statement to the contrary was
legally erroneous.


       Nevertheless, Wright's appellate issue has at least two fatal weaknesses. First,
there is nothing in the record that demonstrates that the prosecutor's erroneous statement
was solely responsible for the judge's decision to include the factors in the instruction.
And, second, as discussed in response to the preceding issue, inclusion of the factors was
not erroneous.


                             CONTENT OF INTENT INSTRUCTION


       Wright's final complaint on appeal was not preserved at trial. He now insists that
the district court's jury instruction on intent was "ineptly drawn, unconstitutional and
prevented the State from meeting its burden of proof," and he invokes preservation
exceptions for newly asserted claims involving only a question of law arising on proved

                                              15
or admitted facts and determinative of the case and for those whose consideration is
necessary to serve the ends of justice or prevent the denial of fundamental rights. See
State v. Reed, 306 Kan. 899, 902, 399 P.3d 865 (2017) (listing three exceptions that allow
issue to be raised for first time on appeal).


       We are not fully persuaded that Wright's amorphous claim is a good candidate for
a jurisprudential exception to the requirement of preservation for appellate review.
Wright argues in his brief that the instruction, modeled on K.S.A. 2016 Supp. 21-
5202(h), cannot be legally correct:


               "In short, absent a statement from a defendant as to what he did and what his
       desired outcome was, the State can't prove anything to be intentional. The plain language
       states that intent is based completely on the desire or conscious objective of the
       defendant. And no guidance is given as to what this means or how it can ever be proved
       by the [S]tate. In short, the language is a constitutional nullity."


       Even if we were to accept Wright's invitation to a more fulsome discussion of this
issue, we would rule against him, disposing of it in the same manner that we disposed of
similar claims raised by the same appellate counsel on behalf of a different client in State
v. Thach, 305 Kan. 72, 378 P.3d 522 (2016).


       In Thach, we declined to specifically address the "constitutional nullity" aspect of
the defendant's argument raised for the first time on appeal. We did, however, interpret
K.S.A. 2016 Supp. 21-5202(h)—which provides that "[a] person acts 'intentionally,' or
'with intent,' with respect to the nature of such person's conduct or to a result of such
person's conduct when it is such person's conscious objective or desire to engage in the
conduct or cause the result"—to mean that "the State may use circumstantial evidence to
prove a defendant's conscious objective or desire to engage in the conduct or cause the


                                                     16
result of a charged crime." Thach, 305 Kan. at 84. Specifically, a defendant need not
testify to be convicted.


                                        CONCLUSION

       We reject all of defendant Kristofer J. Wright's arguments for reversal of his
convictions for premeditated first-degree murder and conspiracy to commit murder and
affirm the judgment of the district court.


                                             ***


       JOHNSON, J., concurring: I agree with the majority's determination that Wright's
absence from the August 19 proceeding was a violation of his constitutional right to be
present at all critical stages of his criminal prosecution. I also agree that Wright's
presence at that hearing "would have shortened the length of the continuance and pushed
the court and the State to meet the 90-day [speedy trial] deadline." Slip op. at 14. I part
company with the majority when it finds that the constitutional violation was harmless
because the record does not contain evidence that the State's case would have been
weakened or that the defense would have been strengthened if the trial would have
occurred within the 90-day statutory period.


       First, the majority fails to explain why the absence of evidence in the record is
being used against the party whose constitutional rights were violated. Where the State
and the district court have violated a criminal defendant's rights by conducting a critical-
stage hearing without the defendant's presence, our precedent suggests that the State
should be charged with the burden to prove beyond a reasonable doubt that the
constitutional violation was harmless. Cf. State v. Ward, 292 Kan. 541, 568-69, 256 P.3d
801 (2011) ("Chapman [v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705

                                              17
(1967)] would require the party favored by the error—usually the State—to carry the
burden of production." Benefitted party must prove beyond a reasonable doubt that the
error did not affect outcome of trial, i.e., no reasonable possibility that error affected the
verdict.). But in this instance, all the State proved was that the constitutional violation
did, in fact, prejudice Wright. As Judge Fleetwood found, if Wright had been present, a
continuance within the statutory speedy trial boundaries would have been granted, but it
would have been charged to the State, not the defense. Consequently, without the
constitutional error and corresponding attribution of the continuance to the defense,
Wright would have received the statutory speedy trial date to which he was entitled and
for which he had unequivocally advocated.


       As noted, the majority finds harmlessness in its assessment that there is no
evidence that the defense would have been impaired by the later trial date. But
impairment of the defense is only one of the recognized interests that a speedy trial is
designed to protect. The United States Supreme Court in Barker v. Wingo, 407 U.S. 514,
532, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), identified three ways in which a defendant
is prejudiced by a speedy trial violation, to-wit:


       "Prejudice, of course, should be assessed in the light of the interests of defendants which
       the speedy trial right was designed to protect. This Court has identified three such
       interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and
       concern of the accused; and (iii) to limit the possibility that the defense will be impaired."


       Nevertheless, I feel compelled to concur in the result reached by the majority. We
are not dealing with a constitutional speedy trial question. The constitutional violation in
this case involved the defendant's right to be present at critical stages of the prosecution,
the direct result of which was to deny Wright his statutory speedy trial rights. But, as the
majority notes, those statutory rights were effectively eviscerated by this court's decision

                                                    18
in State v. Brownlee, 302 Kan. 491, 511, 354 P.3d 525 (2015). Based on the way that
Brownlee interpreted the speedy trial statute, K.S.A. 22-3402, the incorrect assignment of
the continuance to Wright would not have been an appealable matter, even if he had been
present at the district court hearing. Accordingly, Wright cannot get relief here despite
the constitutional violation. But it is not because he failed to establish that the relative
strength of the State's case was affected.


       LUCKERT, J., joins the foregoing concurring opinion.




                                               19
