State v. Myers ( 2022 )


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  •                                             No. 123,439
    IN THE COURT OF APPEALS OF THE STATE OF KANSAS
    STATE OF KANSAS,
    Appellee,
    v.
    ANTHONY D. A. MYERS,
    Appellant.
    SYLLABUS BY THE COURT
    1.
    When two or more criminal cases are consolidated for trial because all the charges
    could have been brought in one charging document, then applying the base sentence rules
    under K.S.A. 2020 Supp. 21-6819(b) separately to the defendant's convictions in each
    case violates the Equal Protection Clause of the Fourteenth Amendment to the United
    States Constitution.
    2.
    For K.S.A. 2020 Supp. 21-6819(b) to comply with the Equal Protection Clause of
    the Fourteenth Amendment, when two or more cases are consolidated for trial because all
    the charges could have been brought in one charging document, and the defendant is
    convicted of multiple charges at trial, the defendant shall be sentenced using only one
    primary crime of conviction and one base sentence, as though all the charges had been
    brought in one complaint.
    Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed April 8, 2022.
    Convictions affirmed, sentences vacated, and case remanded with directions.
    1
    Peter Maharry of Kansas Appellate Defender Office, for appellant.
    Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
    attorney general, for appellee.
    Before MALONE, P.J., ATCHESON and WARNER, JJ.
    MALONE, J.: After a consolidated trial of two criminal cases, a jury convicted
    Anthony D. A. Myers of attempted first-degree murder, two counts of aggravated battery,
    two counts of criminal discharge of a firearm, and two counts of criminal possession of a
    weapon by a convicted felon. The district court sentenced Myers separately in each case,
    imposing a controlling sentence of 855 months' imprisonment.
    Myers appeals, arguing (1) the district court erred in consolidating his two cases
    for trial; (2) the district court erred in denying his motion for new counsel; (3) he received
    ineffective assistance of counsel at trial; (4) his convictions for first-degree murder and
    aggravated battery were multiplicitous, as were his convictions for criminal discharge of
    a firearm and aggravated battery; (5) cumulative error denied him a fair trial; (6) K.S.A.
    2020 Supp. 21-6819(b), as applied, violates his rights under the Equal Protection Clause
    of the Fourteenth Amendment to the United States Constitution; and (7) the district court
    erred in calculating his criminal history score because the State failed to provide evidence
    that his prior misdemeanor convictions were counseled. After thorough review of the
    record, we affirm Myers' convictions but remand for resentencing.
    FACTUAL AND PROCEDURAL BACKGROUND
    On February 15, 2017, Dawnisha Johnson rented a 2005 gray Pontiac G6 from
    Kwik Kars. Johnson knew Myers for four or five years through close acquaintances.
    Johnson rented the Pontiac for Myers because Myers did not have a license. Johnson
    continued to extend the rental for Myers, who would give her cash to pay Kwik Kars.
    2
    Carla Carter lived at her home in Wichita with her husband, her daughters, and her
    four grandchildren, including J.W., who was 13, and J.C., who was 16. On February 23,
    2017, Carter was standing outside watching two of her grandchildren play basketball
    when a car came down the street "pretty fast." Carter yelled, "'Slow down. The kids are
    playing.'" The car then stopped and backed up to the front of Carter's driveway. Carter
    again told the driver to slow down. The driver then told her, "'Stuff like that will get a
    person shot up, and [he was] the type . . . who could do this.'" Carter got the tag number
    from the car and noticed the driver was a black male with dreadlocks. J.C. was standing
    near Carter when this occurred, and she told Carter after the car drove away that she got a
    good look at the driver. Carter called 911 to report the incident because she was scared.
    Wichita Police Officer Ryan Oliphant was dispatched. Oliphant spoke to Carter
    who reported that a silver Pontiac G6, with tag number 757FBB, sped down her street so
    she yelled at the driver to slow down. Carter stated that the driver then told her, "You
    don't know if I'm the one to come back and shoot the house—or shoot the place up later."
    Carter described the driver as a black male with shoulder-length dreadlocks.
    Oliphant ran the tag and discovered the car was registered to a car rental company
    called Kwik Kars. He spoke to the company and learned that the car was rented to
    Johnson. Kwik Kars called Johnson and said the police were interested in the car. After
    hearing that the police were calling about the car, Johnson contacted Myers to try to get
    the car back. When Johnson told Myers about the police, Myers told her it was just about
    some argument he had with some women who yelled at him in the car. Johnson told
    Myers to get the car back to her before the police found him. Johnson exchanged text
    messages with Myers about getting the car back, but he never returned it to her.
    3
    February 25, 2017 shooting
    On February 25, 2017, at around 5 a.m., J.W. was asleep in his bed, in the den by
    the front window of Carter's house. J.W.'s bed was positioned against the wall near the
    window. Meanwhile, Carter was sitting up in her chair watching the security cameras
    when she noticed car lights and then saw brake lights. She said this caught her attention
    because the houses around her were empty. Carter then saw a shadow on her camera that
    went up the driveway and between two parked cars. Carter started to walk to the door to
    see what was happening when she heard "pop, pop, pop, pop, pop" and glass breaking.
    Carter yelled, "'We've been shot'" and she saw the car leaving.
    Carter was concerned about her husband and J.W. because they occupied the
    bedroom or den facing the front of the house. Carter ran to J.W., who was screaming and
    bleeding from his leg. Carter helped J.W. to the living room and called 911. The bullet
    had gone all the way through J.W.'s ankle, cracking the bone.
    Wichita Police Officer Tyler Richards was dispatched to Carter's home. Richards
    asked J.W. if he had been in any arguments with anybody who would have targeted him
    because Richards noticed all the gunshots focused on his room. J.W. told Richards that a
    few days earlier someone threatened to shoot up the house. After speaking to police,
    Carter went with J.W. to the hospital.
    Wichita Police Department Crime Scene Investigator Karie Railing responded to
    Carter's house. She photographed the scene, and her photos were admitted at trial. Railing
    documented damage to the front window. Railing saw three bullet holes on the right pane
    of the window and saw the center pane was broken. Railing also noticed bullet holes in
    the siding of the home and the entry door. Based on the bullet holes, the shooter stood in
    front of the house, shooting into the house. Railing found a bullet on J.W.'s bed that she
    collected. Railing found other bullet holes in the mattress but was unable to recover any
    4
    other bullets from the scene. Outside the house, Railing recovered casings. Railing did
    not find any fingerprints on the casings.
    Wichita Police Detective Brian Mock was assigned the case. On February 27,
    2017, Mock obtained the Kwik Kars rental form and found Johnson rented the car. Mock
    talked to the owner of Kwik Kars, Brady Dody, who helped Mock locate the car by
    activating its GPS locator. The GPS did not allow officers to track the car but pinged its
    location when requested. Mock directed Wichita Police Officer Jared Henry and his
    partner, Detective Christopher Hornberger, to locate the Pontiac.
    Mock called Johnson, and Johnson informed him that Myers drove the rental car
    on February 23, 2017, and she did not see it until after 5:30 p.m. Johnson asked why the
    police were interested in the car, and Johnson said that Myers had told her that he had
    been in some sort of argument with a lady he did not know. Johnson told Mock that she
    knew Myers had a gun in the past.
    Henry located the car, which was unoccupied, and called an undercover officer to
    watch the Pontiac. Wichita Police Officer Michael Russell responded in an undercover
    car. Russell observed a male access the Pontiac from the passenger side and then the
    driver's side. The male then got into the passenger seat of a white Cadillac driven by a
    female. Russell observed the Cadillac start to drive away before coming to a stop. The
    male then exited the Cadillac and walked back to the Pontiac. Russell thought the man
    was carrying something small in his hands. The man then got into the Pontiac's driver's
    side for a moment before returning to the Cadillac. The Cadillac then started to leave the
    area. Russell told Henry and Hornberger to follow the Cadillac. Russell returned to
    watching the Pontiac.
    Henry and Hornberger saw the driver of the Cadillac fail to signal, so they
    initiated a traffic stop. Henry contacted the driver, later identified as Elizabeth Alverado.
    5
    Hornberger approached the passenger's side and the passenger identified himself as
    "Derek Myers." Hornberger thought the passenger was giving him a false name and
    asked if he had any tattoos because he could visibly see one on the passenger's chest. The
    tattoo said, "'Loyalty.'"
    Hornberger had just confirmed the passenger was Myers, when he saw him open
    his door and run off. Henry chased Myers through a neighborhood. Hornberger detained
    Alverado. Henry eventually found Myers hiding in a backyard. Henry searched Myers
    and found a rental car key and some money. Russell searched the Pontiac and found a .9-
    millimeter handgun under the driver's seat. Mock had the casings recovered from Carter's
    house and the gun from the Pontiac submitted for testing.
    Mock met with J.C. and Carter on March 2, 2017. Mock did not tell them that
    anyone had been arrested but showed J.C. a photo array. J.C. identified Myers as the
    driver who threatened them on February 23, 2017, two days before the shooting. Mock
    did not get the results back from the casings and gun comparison until May 2018. In the
    meantime, in April 2018, Myers' name surfaced in another shooting investigation.
    April 11, 2018 shooting
    J.S., a 15-year-old, lived with his father and his sister, C.S., a 17-year-old. J.S.
    liked to play basketball at the McAdams Park rec center. The rec center had an indoor
    basketball court, which players had to sign in to use, and surveillance cameras.
    In the early morning of April 11, 2018, C.S. and J.S. were at home alone. J.S. was
    sleeping when he heard banging on the door, so he got up and saw a man through the
    peephole standing on the porch. J.S. opened the door and recognized the man as someone
    he had played basketball with at the rec center. J.S. saw the man pull a gun out of his
    hoodie pocket with his left hand, so J.S. started to shut the door. The man then shot
    6
    through the front door. J.S. got hit in the left thigh and right foot. The man continued to
    fire through the door while J.S. tried to get away from the door.
    C.S. woke up to banging on the door and the gunshots and then she heard J.S.
    scream. C.S. went into the living room and saw J.S. standing in a puddle of blood. J.S.
    told her that he had been shot and showed her his leg and his foot. C.S. called 911. J.S.
    told C.S. that the guy who shot him was a guy he played basketball with who had dreads.
    Wichita Police Officer Cort DePeugh was dispatched to the house around 6:30
    a.m. When he arrived, he saw bullet strikes on the doorway and a trail of blood. DePeugh
    followed the blood trail into a bedroom and found a young male laying on the bed
    complaining of pain in his leg. DePeugh looked at the male's leg and noticed he was
    bleeding from his ankle and his upper left leg. The male identified himself as J.S. and
    told DePeugh he was sleeping when he heard someone banging on the door repeatedly,
    so he went to answer it. J.S. said that when he opened the door someone stepped off the
    porch, pulled out a gun, and shot him so he closed the door and ran to the bedroom. J.S.
    said he recognized the shooter as a guy he played basketball with at the rec center, but he
    did not know the guy's name. EMS took J.S. to the hospital.
    Wichita Police Crime Scene Investigator Lori Scott processed the scene. Scott
    took pictures of the house and the evidence, which were admitted at trial. Scott collected
    eight .9-millimeter casings from the front yard of the house. Scott found eight bullet holes
    going through the front door of the house. Scott also found bullet fragments in the house.
    Wichita Police Officer Donielle Watson went to the hospital to talk to J.S. J.S.
    gave Watson a description of the shooter and stated that the shooter was left-handed. J.S.
    also told him that he played basketball with the shooter on either March 14 or March 21.
    Henry took the description and went to the rec center. Henry found J.S.'s signature on the
    7
    sign in sheet from March 21 and then watched the surveillance footage from around that
    time. While watching the footage, Henry recognized Myers from the prior investigation.
    Henry relayed the information to the violent crime task force. Watson returned to
    the hospital to show J.S. a photo array. J.S. identified a photo of the shooter, Myers.
    Wichita Police Officer Bryan Knowles and his partner Brock Kampling found
    Myers and took him into custody. Matthew Balthazor, a detective with the Wichita
    Violent Crime Unit, completed a personal history form on Myers and had him review and
    sign the forms. Balthazor observed that Myers signed the forms with his left hand.
    Charges and criminal proceedings
    On May 25, 2018, the State charged Myers with attempted first-degree murder,
    aggravated battery, criminal discharge of a firearm, and criminal possession of a weapon
    by a convicted felon under case number 18CR941 for the shooting of J.S. On June 26,
    2018, the State then charged Myers with criminal discharge of a firearm, aggravated
    battery, criminal possession of a weapon by a convicted felon, and possession of cocaine
    under case number 18CR1664 for the shooting in February 2017 injuring J.W.
    On June 29, 2018, Myers requested an attorney and the district court appointed
    Casey Cotton to represent him. On July 13, 2018, Cotton moved to withdraw after Myers
    filed an ethics complaint against him. The district court granted Cotton's motion. The
    district court then appointed Steven Wagle to represent Myers.
    On October 22, 2018, Myers filed a pro se motion to remove Wagle. At a hearing
    on the motion, Wagle asserted that he was physically assaulted by Myers, Myers had
    called him by a racial slur multiple times, and there was a complete lack of
    communication between the two. The district court granted the motion, finding counsel
    8
    had been physically assaulted by Myers and there was a complete breakdown of
    communication. The district court then appointed Steven Mank to represent Myers.
    Mank moved to withdraw as counsel on December 18, 2018. The district court
    granted the motion and appointed Kenneth Clark.
    On April 29, 2019, the State moved to consolidate 18CR941 and 18CR1664 for
    trial. Myers opposed the consolidation. The district court granted the State's motion to
    consolidate over Myers' objection, finding the cases were of the same general character.
    On July 3, 2019, less than three weeks before the scheduled jury trial, Myers
    moved to remove Clark as counsel. At the hearing, Myers complained to the district court
    about his lack of communication with Clark. Clark acknowledged some lack of
    communication and stated Myers "might be better served with different counsel." The
    district court denied the motion, finding Myers had failed to show a complete breakdown
    in communication, an irreconcilable disagreement, or a conflict of interest.
    The district court held a four-day jury trial beginning July 22, 2019. The State
    dismissed count four, possession of cocaine, in 18CR1664 at trial. The State called
    various law enforcement officers and other witnesses who testified to the above facts.
    Some testimony relevant to the issues on appeal will be mentioned.
    J.C. identified Myers as the person driving the car on February 23, 2017. J.C.
    testified that she had never seen Myers before the day he threatened them. Forensic
    Scientist Justin Rankin testified as an expert that the casings recovered from Carter's
    house were fired from the gun found in the Pontiac. When asked about the more than a
    year delay in testing the weapon, Rankin explained that he was the only person
    responsible for every firearm comparison case in Sedgwick County and he had to
    prioritize testing based on upcoming trial dates. He also explained that because he is the
    9
    only examiner, he had to get an outside source to verify his results, meaning he would
    have to submit his cases to another agency to verify his results. J.S. also identified Myers
    as the person he played basketball with and who shot him. The State rested and Myers
    moved for a judgment of acquittal, which the district court denied.
    Myers testified on his own behalf. Myers testified that he let at least two other
    people use the Pontiac, including someone named Orlando. Myers testified that he did
    not argue with Carter on February 23, 2017, and that he never told Johnson that he did.
    He also claimed he had never seen Carter before. He claimed he did not own a gun and
    did not put a gun in the Pontiac. Myers testified that he recognized J.S. from playing
    basketball but he never saw him anywhere else, and he never went to J.S.'s house.
    Myers also called D.D., who testified that he was friends with J.S. and often
    played basketball at the rec center. D.D. stated that a lot of people who played basketball
    at the rec center had dreads. D.D. testified that he did not recognize Myers. On cross-
    examination, D.D. maintained he did not tell any police officer he knew the shooter had
    "'Loyalty'" tattooed on his chest even though the report stated he did. The defense rested.
    The State called rebuttal witnesses. The State called K.W., J.S.'s friend, who
    testified that he and J.S. played basketball with Myers about half of the time they were at
    the rec center. K.W. testified that sometimes the basketball games would become "testy,"
    but he could not think of any fight or incident that would have led to the shooting. K.W.
    said he heard the police sirens and went over to J.S.'s house and talked to his sister who
    described the shooter. K.W. thought the description sounded like someone he and J.S.
    had played basketball with at the rec center. K.W. told Watson that the shooter sounded
    like a guy they played basketball with who had a "'Loyalty'" tattoo on his chest. The State
    also recalled Balthazor, who testified that he could not locate any record for a person
    named "Orlando Stantin" and that the closest he could find was an "Orlando Stanford,"
    but Stanford was in prison during the time of both crimes.
    10
    The district court instructed the jury. The jury found Myers guilty of attempted
    first-degree murder, aggravated battery, criminal discharge of a firearm, and criminal
    possession of a weapon by a convicted felon in case 18CR941. The jury found Myers
    guilty of criminal discharge of a firearm, aggravated battery, and criminal possession of a
    weapon by a convicted felon in 18CR1664.
    Posttrial proceedings
    On August 7, 2019, Myers filed a pro se motion for new trial based on ineffective
    assistance of counsel. Clark also filed a motion for judgment of acquittal, based on
    multiplicity. The presentence investigation (PSI) report revealed that Myers had a
    criminal history score of B. Myers filed a pro se objection to the PSI report.
    On October 16, 2019, Myers filed a pro se motion to remove Clark as counsel,
    alleging he was ineffective. The district court appointed Mark Sevart to represent Myers.
    On June 17, 2020, Sevart objected to the PSI report asserting that it incorrectly
    scored Myers' previous misdemeanors. Sevart also filed a motion for new trial asserting
    Myers had received ineffective assistance of counsel during his trial.
    On July 9, 2020, the district court held a sentencing hearing and heard Myers'
    motion for new trial. Sevart stated that "as far as the evidence goes" for his motion for
    new trial, he would ask the court to take judicial notice of the court file. He then
    presented his arguments on the motion for new trial, including whether Myers received
    ineffective assistance of counsel. The district court denied the motion.
    The district court proceeded to sentencing, where Sevart withdrew his objection to
    the criminal history. Myers then personally affirmed that he was not objecting to his
    criminal history score of B. In 18CR941, the district court set the base sentence for
    11
    attempted first-degree murder at 618 months' imprisonment. The district court ran the
    remaining three charges in that case concurrent to the base offense for a controlling
    sentence of 618 months' imprisonment with 36 months' postrelease supervision. In
    18CR1664, the district court set the base sentence for criminal discharge of a firearm at
    228 months' imprisonment. The district court ran the criminal possession of a firearm
    conviction consecutive to the criminal discharge of a firearm conviction and ran the
    aggravated battery conviction concurrent for a controlling sentence of 237 months'
    imprisonment with 36 months' postrelease supervision. The district court ordered the
    sentences in the two cases to run consecutive for a total term of 855 months'
    imprisonment. Myers timely appealed the district court's judgment.
    DID THE DISTRICT COURT ERR BY CONSOLIDATING THE CASES FOR TRIAL?
    Myers first claims the district court erred in consolidating his two cases for trial.
    The district court can order two charging documents charged against a single defendant
    to be tried together "if the crimes could have been joined in a single complaint,
    information or indictment." K.S.A. 22-3203. Crimes can be joined in a single charging
    document when the crimes charged "are of the same or similar character or are based on
    the same act or transaction or on two or more acts or transactions connected together or
    constituting parts of a common scheme or plan." K.S.A. 22-3202(1).
    Myers argued against consolidation before trial, but the district court granted the
    State's motion to consolidate, finding the two cases of the same general character. The
    district court found that although some of the charges were different, the two cases
    occurred at the same time of day and involved individuals Myers had prior contact with.
    The district court also noted that both cases involved Myers allegedly shooting at homes,
    using a .9-millimeter firearm, and had a victim identify Myers as the shooter. The district
    court also rejected Myers' prejudice argument, stating that it believed jurors follow the
    instructions given and make the State prove every element of every offense.
    12
    Myers argues that the two cases were not of the same character because the
    incidents occurred at different locations, involved different people, and occurred over a
    year apart. Myers argues that the district court's reliance on the fact that both cases
    involved shooting into an occupied home cannot support consolidation because that fact
    is "a product of the charge, not of some unique similarity between the two cases." Myers
    also argues that at trial, the evidence in both cases was separate; the State first called 14
    witness to testify to the February 2017 shooting, then called 9 witnesses to testify to the
    April 2018 shooting, and only one witness—Officer Henry—overlapped both cases.
    Finally, Myers argues that even if consolidation were legally appropriate, the district
    court abused its discretion because consolidation prejudiced Myers by bolstering the
    evidence in each case and leading the jury to believe Myers was a "'general wrongdoer.'"
    The State argues that the district court properly granted consolidation. The State
    argues that the cases need only be similar not identical and that the differences Myers
    focuses on do not refute the district court's finding. The State asserts that the crimes in
    each case were similar because the facts supporting the charges were similar. The State
    argues that the district court did not abuse its discretion in consolidating the cases
    because the district court properly considered that juries follow instructions and there was
    no sign that consolidation would prejudice Myers. Finally, the State asserts that any error
    in consolidating the cases was harmless.
    This court uses a three-step analysis when reviewing challenges to a district court's
    decision to consolidate cases for trial:
    "First, we determine whether K.S.A. 22-3203 permits consolidation. Under that statute,
    multiple complaints against a defendant can be tried together if the State could have
    brought the charges in a single complaint. K.S.A. 22-3202(1) sets out the conditions
    under which multiple crimes may be joined in a single complaint. Whether one of these
    conditions is satisfied is a fact-specific inquiry, and we review the district court's factual
    13
    findings for substantial competent evidence and the legal conclusion that one of the
    conditions is met de novo.
    "Second, because K.S.A. 22-3202 provides that the district court 'may' order
    charges joined together, the court retains discretion to deny a consolidation request even
    if a statutory condition is met. . . . We review this decision for an abuse of discretion.
    "Finally, if an error occurred in the preceding steps, we determine whether the
    error resulted in prejudice—that is, whether the error affected a party's substantial rights.
    [Citations omitted.]" State v. Carter, 
    311 Kan. 783
    , 793, 
    466 P.3d 1180
     (2020).
    We first determine whether the statutes permit consolidation. The district court
    allowed consolidation on the statutory ground that the charges in the two cases were of
    "the same or similar character." K.S.A. 22-3202(1). Here, neither party challenges the
    district court's factual findings. Instead, Myers argues that the findings did not satisfy the
    condition that the cases be of the same or similar character. We have unlimited review of
    the district court's legal conclusion that the statutory test is satisfied. Carter, 311 Kan. at
    793.
    Myers argues that the crimes in the two cases were not of the same or similar
    character because they occurred over one year apart, they involved different people, and
    they occurred at different locations. But as the district court noted in its ruling, the
    Kansas Supreme Court has upheld consolidation even when the crimes occurred after a
    passage of time, occurred at different locations, and involved different people. For
    instance, in State v. Cruz, 
    297 Kan. 1048
    , 
    307 P.3d 199
     (2013), Cruz shot and killed a
    man in the early morning hours in a nightclub parking lot. Investigation revealed that
    Cruz had been involved in a murder a year earlier in the early morning in a strip club
    parking lot. The State charged Cruz in two separate cases and the district court
    consolidated the two cases against Cruz for trial, finding them to be of the same or
    similar character. On appeal, the Kansas Supreme Court upheld the consolidation and
    summarized the facts and similarities of the two crimes:
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    "Both crimes involved patrons leaving a nightclub at closing time; both victims were
    accosted and challenged in the establishment's parking lot before the patrons could reach
    their respective vehicles; both victims had scant warning before being shot repeatedly and
    killed with a handgun; the same weapon was used in both shootings and contained a
    small amount of DNA that did not exclude Cruz as a contributor; a fellow gang member
    identified Cruz as the shooter in both incidents; and both cases charged first-degree
    murder and criminal possession of a firearm. If that scenario does not establish two
    crimes of the same or similar nature, one would need a novelist's imagination to conjure
    up one that would." 297 Kan. at 1055.
    We observe that there were more similarities in Cruz than we have here: the same
    weapon was used in both shootings and the same fellow gang member identified Cruz as
    the shooter in both cases. But the State is correct that Cruz supports consolidation here
    and establishes that the mere passage of time does not render two cases dissimilar in
    character. 297 Kan. at 1057; see also State v. Crosby, 
    312 Kan. 630
    , 634, 
    479 P.3d 167
    (2021) (finding argument that 1-year time difference prevented crimes from being of
    similar character unpersuasive and citing cases rejecting similar arguments for time
    periods of 17 months and 4 years). Thus, Myers' claim that the crimes could not be of
    similar character because of the one-year period between the two is unpersuasive.
    Similarly, Myers' argument that the cases are not similar in character because they
    involve different people and occurred at different locations is unpersuasive. While the
    two cases each involved a group of people that did not know the other, the character of
    the groups was the same: both victims interacted with Myers before the shootings. And
    again, while the precise address of the crimes was different, the character of the location
    was the same: the residence of the victim. See Crosby, 312 Kan. at 634-35 (finding cases
    similar despite differing locations and differing people because both crimes involved a
    drug dealer as the victim and Crosby threatened the victim with a firearm while trying to
    take drugs without payment).
    15
    Myers also argues that the motive in each case was not the same because the State
    did not establish a motive in J.S.'s shooting. But the State at least offered a possible
    reason for J.S.'s shooting when K.W. testified that the basketball games at the rec center
    would become "testy." While the State did not establish a definite motive for J.S.'s
    shooting, it did establish that both cases were similar in that the victims did not know
    Myers well and he still shot up their houses within a brief time of interacting with them.
    The seemingly inexplainable overreaction by Myers is another similarity between the two
    cases, not a fact undermining consolidation.
    To best illustrate how different two cases must be to not satisfy the same or similar
    character test, we look to State v. Thomas, 
    206 Kan. 603
    , 
    481 P.2d 964
     (1971), where our
    Supreme Court reversed a district court's decision to consolidate a murder case and an
    unrelated forgery case. The murder case stemmed from a body found in a car containing
    Thomas' fingerprint and witness accounts that Thomas and the victim were seen together
    earlier in the evening at a club. In contrast, the forgery case stemmed from checks and
    cards stolen from various victims over a few weeks. Our Supreme Court reasoned that the
    forgery and murder cases were in no way similar, and the district court's decision to
    consolidate the cases for trial amounted to prejudicial error. 
    206 Kan. at 608
    .
    There are many more similarities here than existed in Thomas. Both cases filed
    against Myers involved early morning shootings at residences; a .9-millimeter weapon
    was used in both shootings; Myers had contact with the victims a brief time before the
    shootings in each case; both shootings involved Myers overreacting to minor incidents
    with the victims; and the charges filed in each case were identical except that 18CR941
    included a count of attempted first-degree murder. The Kansas Legislature has said that a
    court can consolidate two cases for trial when the charges are of the same or similar
    character. This is a broad test that is relatively easy to satisfy. We are satisfied that the
    State could have initially filed all the charges against Myers in a single complaint because
    16
    the cases were of the same or similar character. Thus, we find the district court did not err
    in finding that the statutory test for consolidation was met.
    Finding a statutory condition for consolidation is met—that the charges in the
    cases are of the same or similar character—we must next examine whether the district
    court abused its discretion in ordering consolidation. A district court abuses its discretion
    if its action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3)
    based on an error of fact. Crosby, 312 Kan. at 635. Myers bears the burden of showing an
    abuse of discretion. 312 Kan. at 635.
    Myers argues the district court abused its discretion because consolidation
    prejudiced him in that a jury would be less likely to believe that two individuals who did
    not know each other were both mistaken in identifying Myers as the shooter. Myers
    likened this prejudice to admitting prior crimes evidence under K.S.A. 60-455. He asserts
    that consolidation bolstered the State's evidence in each case, leading the jury to believe
    that Myers was a "general wrongdoer." The State counters that the district court did not
    abuse its discretion because it considered the prejudice but found that jurors would follow
    the instructions. The State asserts that Myers identifies no real prejudice, just speculation.
    Myers cannot meet his burden of establishing the district court abused its
    discretion in consolidating his two cases for trial. First, Kansas appellate courts have
    consistently rejected the argument that consolidation is equivalent to the prejudicial
    admission of other-crimes evidence under K.S.A. 60-455. See, e.g., State v. Smith-
    Parker, 
    301 Kan. 132
    , 161, 
    340 P.3d 485
     (2014) ("'Kansas case law and the provisions of
    K.S.A. 22-3202(1) make it clear that joinder is not dependent upon the other crimes being
    joined meeting the admissibility test set forth in K.S.A. 60-455.'").
    Second, the jury was instructed: "Each crime charged against the defendant is [a]
    separate and distinct offense. You must decide each separately on the evidence and law
    17
    applicable to it, uninfluenced by your decision as to any other charge." Kansas appellate
    courts have found this instruction "negates the inherently prejudicial effect of trying a
    person on multiple counts." Cruz, 297 Kan. at 1058. And jurors are presumed to follow
    the district court's instructions. State v. Llamas, 
    298 Kan. 246
    , 261, 
    311 P.3d 399
     (2013).
    We have little doubt that consolidation of the cases against Myers for trial may
    have bolstered the State's evidence against him. Almost any defendant can make this
    complaint when cases are consolidated for trial. But without Myers pointing to something
    more specific as to how consolidation of the cases for trial prejudiced him in his situation,
    we are unable to find that no reasonable person would have agreed with the district
    court's decision to consolidate the cases against Myers for trial. Thus, we conclude the
    statutory test for consolidation was met, and Myers has failed to meet his burden of
    showing that the district court abused its discretion in consolidating the cases for trial.
    DID THE DISTRICT COURT ERR IN REFUSING
    TO APPOINT NEW COUNSEL BEFORE THE START OF TRIAL?
    Myers next claims the district court abused its discretion in denying his motion for
    new counsel before trial. The state and federal Constitutions guarantee criminal
    defendants a right to effective assistance of counsel, but they do not guarantee the
    defendant the right to choose which attorney will represent him or her. State v.
    Breitenbach, 
    313 Kan. 73
    , 90-91, 
    483 P.3d 448
    , cert. denied 
    142 S. Ct. 255
     (2021). The
    rules surrounding a motion for substitute counsel are well established:
    "'[T]o warrant substitute counsel, a defendant must show "justifiable
    dissatisfaction" with appointed counsel. Justifiable dissatisfaction includes a showing of a
    conflict of interest, an irreconcilable conflict, or a complete breakdown in
    communications between counsel and the defendant. But ultimately, "'[a]s long as the
    trial court has a reasonable basis for believing the attorney-client relation has not
    18
    deteriorated to a point where appointed counsel can no longer give effective aid in the
    fair presentation of a defense, the court is justified in refusing to appoint new counsel.'"
    "Further, when the defendant's dissatisfaction emanates from a complaint that
    cannot be remedied or resolved by the appointment of new counsel—such that
    replacement counsel would encounter the same conflict or dilemma—the defendant has
    not shown the requisite justifiable dissatisfaction. [Citations omitted.]" 313 Kan. at 90-91.
    Myers filed a pro se motion to remove Clark as counsel less than three weeks
    before trial, alleging "a major communication issue," that Clark had stated he is too busy
    to properly provide counsel to Myers, and that Myers had filed several pro se motions
    that Clark did not adopt. The district court held a hearing on Myers' pro se motion on July
    10, 2019. At the hearing, Myers stated that he and Clark had not had a chance to go over
    his defense, that he asked Clark to send some subpoenas out for him, and that Clark had
    not contacted witnesses Myers told him to contact. Myers stated that he needed to be
    "communicating with [his] counsel, which [wa]s not happening."
    The district court inquired of Clark. Clark said:
    " . . . I can't disagree with what Mr. Myers is saying about a lack of
    communication frankly. My workload right now has been a struggle for me, and I have
    not had as much time as I would like to have communicated with him about this case. I
    did meet with him recently.
    "And just to address comments that he made, I do have an investigator who is in
    the process of trying to contact the witnesses he gave me. And I had talked briefly with
    his sister just to let these folks know that someone would be contacting them.
    "Judge, I think that, unfortunately, the circumstances have been such that
    we've—Mr. Myers and I have kind of come to a situation where we're not able to
    communicate; and when we do communicate, it's not as effectively as we should, to be
    able to work together to prepare a defense in this case. He is facing significant charges.
    The cases, as the Court noted, have now been consolidated. But I'm concerned about my
    ability going forward to effectively represent him. And frankly, I think he might be better
    served with different counsel."
    19
    The district court asked Clark if he had met with Myers and whether Myers had
    told him what he wants done on the case, to which Clark responded, "We have had
    meetings to that effect, yes, Your Honor." The district court pointed out that Myers has
    had several lawyers appointed and that if a new attorney was appointed it was unlikely
    that trial would occur as scheduled. The district court then asked Myers what he thought a
    new attorney could do that Clark did not, with the explanation that lawyers need not file a
    motion that is frivolous. Myers responded, "Well, communication [wa]s key," and that he
    could not establish his defense if he could not speak with an attorney.
    The State then argued that Myers' motion seemed to follow a pattern where he
    waited until close to the jury trial date then moved to get new counsel appointed. Myers
    responded to the State's assertion, conceding that he has been through many attorneys,
    but asserted if he called his attorney and the attorney did not return his call or come talk
    to him, there was nothing he could do to communicate with them.
    The district court responded that lawyers can prepare a case without necessarily
    contacting the defendant regularly and that there were 12 days until trial in which he and
    Clark could discuss strategy. The district court reiterated that he heard Clark state he had
    a lot of work to do, but the court stated every attorney has a lot of work and the test was
    whether there was a conflict of interest or breakdown in communication. The district
    court found no conflict of interest was alleged. The district court then addressed whether
    Myers showed an irreconcilable disagreement or complete breakdown in communication.
    The district court found that a lawyer need not visit a defendant a certain number of times
    and although Clark stated he felt Myers may be better off with another attorney, that
    statement did not rise to the level of justifiable dissatisfaction. The district judge also
    stated that Myers' request for new counsel seemed to be a pattern for him:
    "This is a pattern, and I'm taking that into account. This is a pattern of Mr.
    Myers. [The prosecutor] laid out how many attorneys there have been; some very good
    20
    attorneys that Mr. Myers has had, or found complaints about. And I'm considering and
    thinking about the easy thing for me to do is to appoint another lawyer.
    "But a decision has to be made upon whether or not, like I have stated, whether
    there is a conflict of interest, which there is none that I have been told about. An
    irreconcilable disagreement—there is disagreement. Nobody has told me that it's
    irreconcilable; nobody has told me that these witnesses won't be subpoenaed; nobody has
    told me that motions won't necessarily be filed. And I haven't heard about a complete
    breakdown in communication."
    On appeal, Myers argues that he established a breakdown in communication and
    that counsel had a conflict of interest because counsel did not have time to prepare
    adequately. The State counters that the district court did not abuse its discretion in finding
    no breakdown of communication and Myers' previous actions showed a pattern of
    creating conflicts to obtain new counsel.
    This court reviews a district court's decision on whether to substitute counsel for
    an abuse of discretion. State v. Pfannenstiel, 
    302 Kan. 747
    , 762, 
    357 P.3d 877
     (2015). A
    district court abuses its discretion if its action is (1) arbitrary, fanciful, or unreasonable;
    (2) based on an error of law; or (3) based on an error of fact. Crosby, 312 Kan. at 635.
    Myers bears the burden of establishing an abuse of discretion. 312 Kan. at 635.
    Myers briefly argues that he established a conflict of interest for Clark to continue
    to represent him. But Myers did not argue there was a conflict of interest before the
    district court. The district court even noted as much stating it had not been told of any
    conflict of interest. An issue not raised before the district court cannot be raised on
    appeal. State v. Gonzalez, 
    311 Kan. 281
    , 295, 
    460 P.3d 348
     (2020).
    Myers mainly argues on appeal that the facts showed a complete breakdown of
    communication and that the district court committed an error of fact by finding there was
    no breakdown of communication. Myers points to his assertions to the district court that
    21
    he had only met with Clark to discuss the motion to consolidate and there had been no
    discussion about trial or his defense. Myers also points to his assertion that he repeatedly
    tried to call Clark, but they had not talked at all. Myers also asserts that Clark agreed with
    Myers, by telling the district court that because of his workload he had not spent as much
    time as was necessary on Myers' case.
    The State counters that the record does not establish a complete breakdown of
    communication. The State asserts that the hearing established that Clark had met with
    Myers and that Myers had said what he wanted done in the case. The State also points out
    that Clark admitted that the two do communicate, with the caveat that they may not
    communicate as effectively as they should. The State also points out that there was no
    other evidence to support a complete breakdown of communication.
    Myers fails to acknowledge that after he raised his concerns to the district court
    about a lack of communication with Clark, the court conducted further inquiry,
    explaining that there was still time before trial for Clark to discuss a defense with Myers,
    that Clark stated he was investigating the witnesses Myers identified, and that simply
    because Clark had not spoken to him as much as Myers would desire did not mean Clark
    was not working on the case. The district court did not disregard Myers' assertions but
    merely considered them along with the other information presented and found that Myers'
    complaints did not rise to the level of a complete breakdown of communication.
    The district court's finding that Myers did not establish a justifiable dissatisfaction
    supporting new counsel based on a lack of communication is supported by the record.
    Myers' main complaint he kept reiterating at the hearing was that he could not get a hold
    of Clark when he called his office, and he felt Clark had not visited him enough to
    discuss the case. But disagreements or a lack of communication between a defendant and
    counsel will not always rise to the level of justifiable dissatisfaction. State v. Brown, 
    305 Kan. 413
    , 425, 
    382 P.3d 852
     (2016). "'The focus of the justifiable dissatisfaction inquiry
    22
    is the adequacy of counsel in the adversarial process, not the accused's relationship with
    his attorney.'" State v. Staten, 
    304 Kan. 957
    , 972, 
    377 P.3d 427
     (2016).
    As the district court pointed out, just because counsel is not visiting with the
    defendant does not mean that counsel is not working on the case. Clark acknowledged
    that he had an investigator working on the leads Myers gave him, and Myers himself
    acknowledged that Clark had recently seen him to go over the motion to consolidate. And
    as the district court pointed out, there was still time for Clark to talk to Myers about the
    strategy he planned to present at trial, including the defense. See Edgar v. State, 
    294 Kan. 828
    , 839, 
    283 P.3d 152
     (2012) (acknowledging that counsel has a duty to consult with
    defendant's questions of overarching defense strategy); State v. Rivera, 
    277 Kan. 109
    ,
    117, 
    83 P.3d 169
     (2004) ("Strategical and tactical decisions like preparation, scheduling,
    and the type of defense, however, lie with the defense counsel . . . .").
    Myers could not provide a specific answer about what new counsel could do for
    him beyond what Clark had been doing, stating merely that "communication was key"
    and that he had to communicate with his attorney. But this vague assertion identifies
    nothing that the appointment of new counsel would address. See Breitenbach, 313 Kan.
    at 90-91 ("[W]hen the defendant's dissatisfaction emanates from a complaint that cannot
    be remedied or resolved by the appointment of new counsel—such that replacement
    counsel would encounter the same conflict or dilemma—the defendant has not shown the
    requisite justifiable dissatisfaction.").
    Myers also argues that the district court's finding that he was trying to delay trial
    by requesting new counsel was contrary to the facts. But Myers reads too much into the
    district court's statement. Although the district court did acknowledge a pattern of
    substituting counsel, the court noted that it needed to determine whether there was an
    irreconcilable disagreement or a complete breakdown in communication. The district
    court did not explicitly state it found that Myers was trying to delay the trial by moving
    23
    for new counsel. In any event, the district court's consideration of the potential delay of
    appointing new counsel was not necessarily inappropriate. See Pfannenstiel, 302 Kan. at
    764 (noting federal courts addressing potential conflict of interest have routinely included
    timeliness or potential delay as one of the factors considered when determining whether a
    trial court abused its discretion in denying a motion for new counsel).
    The district court never directly asked Clark if he would be prepared to represent
    Myers at the upcoming trial. But the district court indirectly gathered information
    relevant to this inquiry when Clark explained that he had been meeting with Myers about
    what Myers wanted him to do on the case and that an investigator was trying to contact
    witnesses. We observe that Clark did not file any motion requesting a trial continuance
    because he was not ready to proceed. Perhaps more significantly, we also observe that
    after the trial, the district court found that Clark's representation of Myers at trial was not
    ineffective based on any of the grounds Myers asserted in his motion for new trial.
    In sum, Myers did not establish a complete breakdown in communication with
    Clark to warrant the appointment of new counsel on the eve of the trial. The fact that
    Myers was asking the district court for a fifth court-appointed attorney was a factor for
    the court to consider in deciding whether Myers showed justifiable dissatisfaction. The
    district court asked about Myers' concerns about his communication with Clark, and the
    court's finding that Myers failed to show a complete breakdown in communication is
    supported by the record. The district court is justified in refusing to appoint new counsel
    "'[a]s long as the trial court has a reasonable basis for believing the attorney-client
    relation has not deteriorated to a point where appointed counsel can no longer give
    effective aid in the fair presentation of a defense.'" Breitenbach, 313 Kan. at 90. The
    district court made that call here and Myers has failed to show the decision was an abuse
    of discretion.
    24
    DID THE DISTRICT COURT ERR IN DENYING MYERS' MOTION
    FOR NEW TRIAL BASED ON INEFFECTIVE ASSISTANCE OF COUNSEL?
    Myers next claims the district court erred in denying his motion for new trial based
    on ineffective assistance of counsel. The State asserts that the district court correctly
    denied Myers' motion for new trial.
    On August 7, 2019, Myers filed a pro se motion for new trial on the grounds of
    ineffective assistance of counsel. Myers asserted that Clark: failed to investigate his case,
    failed to produce photographs "that were cru[c]ial for defendant's rebuttal evidence,"
    failed to submit video surveillance from the rec center to rebut preliminary hearing
    evidence that Myers was the only person who wore his hair in dreadlocks, failed to
    communicate with Myers, failed to object to any of the State's evidence or testimony,
    failed to contact alibi witnesses provided by Myers, failed to cross-examine the State's
    expert witness on firearms, failed to raise at trial that Myers was never subjected to
    gunshot residue testing, and failed to object to prosecutorial misconduct.
    Clark also moved for a new trial on Myers' behalf, arguing that there was
    insufficient evidence to support the verdicts and that his jury trial rights were violated
    because the jury was all white while Myers is African American. Myers' new counsel,
    Sevart, later moved for a new trial alleging that Myers received ineffective assistance of
    counsel based on a conflict of interest between him and Clark, Clark's lack of
    preparation, Clark's failure to call witnesses to testify to Myers' lack of gold tipped hair,
    and Clark's failure to call alibi witnesses.
    The district court addressed these motions at sentencing. Sevart argued the
    motions and stated that "as far as the evidence goes" on the motions for new trial, he
    would ask the court to take judicial notice of the court file. Sevart did not ask to call any
    witnesses to support the motions. After hearing arguments, including whether Myers
    25
    received ineffective assistance of counsel, the district court denied the motions for new
    trial, finding Myers failed to establish either prong of the ineffective assistance of counsel
    test. The district court noted that it had observed the trial and saw Clark cross-examine
    witnesses, that he showed an understanding of the case, and found that nothing in the
    record suggested that Clark's performance fell below an objective standard of
    reasonableness. The district court also noted that there was no information before the
    court about Clark's thought process in relation to the alibi defense.
    On appeal, Myers asserts that his convictions should be reversed because Clark
    was deficient in several areas, "which cumulatively had a direct impact on the verdict
    rendered by the jury." The State responds that Myers failed to show in district court that
    Clark provided ineffective representation. Both parties agree that in a motion for new trial
    based on ineffective assistance of trial, we generally must review the district court's
    findings of fact for substantial competent evidence and review its conclusions of law de
    novo. See State v. Coones, 
    301 Kan. 64
    , 69-70, 
    339 P.3d 375
     (2014).
    The Sixth Amendment to the United States Constitution, as applied to the states
    under the Fourteenth Amendment, guarantees that in criminal prosecutions the accused
    has the right to effective assistance of counsel. Sola-Morales v. State, 
    300 Kan. 875
    , 882,
    
    335 P.3d 1162
     (2014). An ineffective assistance of counsel claim based on deficient
    performance is subject to the two-prong test set forth in Strickland v. Washington, 
    466 U.S. 668
    , 687, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984).
    "'"The first prong of the test for ineffective assistance of counsel requires a
    defendant to show that counsel's representation fell below an objective standard of
    reasonableness, considering all the circumstances. Judicial scrutiny of counsel's
    performance must be highly deferential, and a fair assessment of attorney performance
    requires that every effort be made to eliminate the distorting effects of hindsight, to
    reconstruct the circumstances of counsel's challenged conduct, and to evaluate the
    26
    conduct from counsel's perspective at the time. We must indulge a strong presumption
    that counsel's conduct falls within the wide range of reasonable professional assistance.
    "'"[Under the second prong of the test for ineffective assistance of counsel], the
    defendant also must 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. A court hearing an ineffectiveness claim must consider the
    totality of the evidence before the judge or jury. [Citations omitted.]"'" State v. Butler,
    
    307 Kan. 831
    , 852-53, 
    416 P.3d 116
     (2018).
    Appellate courts generally will not consider an allegation of ineffective assistance
    of counsel raised for the first time on appeal. State v. Salary, 
    309 Kan. 479
    , 483, 
    437 P.3d 953
     (2019). Myers' ineffective assistance of counsel claims were raised and ruled on in
    district court. But as we will discuss, our review of some of Myers' claims is hampered
    by the lack of an adequate evidentiary record in the district court. Myers' claims on
    appeal of ineffective assistance of trial counsel fall generally into five categories. Some
    of the claims Myers raised in district court are not argued on appeal. An issue not briefed
    is deemed waived or abandoned. State v. Davis, 
    313 Kan. 244
    , 248, 
    485 P.3d 174
     (2021).
    (1) Clark failed to admit evidence that would undermine J.S.'s and J.C.'s identification.
    First, Myers asserts Clark erred in not procuring the surveillance video from the
    rec center because it would have showed multiple individuals playing basketball with
    dreadlocks which would have undermined J.S.'s identification. Myers asserts that Clark
    also erred in not producing multiple photographs of Myers before and after the alleged
    shootings to show that he never had blonde hair, which would undermine J.C.'s
    identification. Myers asserts Clark also called no witnesses to testify that Myers never
    had blonde hair or gold tips.
    27
    But Myers cannot prevail on these claims. While Clark may not have admitted
    surveillance video, he still elicited this information when questioning D.D.:
    "[CLARK:] In your experience with playing basketball up there, were
    there typically guys there who were playing basketball that wore their
    hair in dreads?
    "A. Yes.
    "Q. Was that a fairly frequent occurrence?
    "A. I mean, it's like a lot of people come up there with dreads, dreaded
    hair, like people with different hairstyles."
    And Clark did admit a photo of Myers, taken February 3, 2017, that showed he
    had no color in his hair. Myers himself testified that he had never dyed his hair. Johnson
    also testified that she did not remember Myers' hair being blonde or gold in color at the
    time of the 2017 shooting. Thus, Myers has not established that Clark was deficient on
    this point.
    (2) Clark failed to challenge J.S.'s photo array identification.
    Myers asserts that Clark should have highlighted or followed up on J.S.'s answer
    of "yes" to the prosecutor's question about whether the detective who showed him the
    photo array suggested who he should pick out. Myers asserts that Clark also never sought
    to suppress the suggestive photo array.
    Myers fails to recognize that the entire exchange and other evidence in the record
    established that detectives did not tell J.S. who to choose. The relevant exchange between
    the J.S. and the prosecutor stated:
    "Q. All right. You said, you didn't know his name, but you
    recognized his face as soon as you saw him?
    "A. Yes.
    28
    "Q. When the officer came, did he show you some photos?
    "A. Yes.
    "Q. Did he indicate anybody's name, or anything at that point, or just showed
    you the photos?
    "A. He just showed me the photos.
    "Q. Did he indicate who you should pick out or anything?
    "A. Yeah. Yes, he did.
    "Q. Say that again.
    "A. Yes, he did. Yes.
    "Q. I guess my question is, did he show you the photos and let you look at them
    yourself—
    "A. Yes.
    "Q. —so you could see if you could pick somebody out?
    "A. Yes." (Emphasis added.)
    Both before and after the complained of statement, the prosecutor reiterated that
    the detectives simply gave J.S. the photos and let him look at them. And Watson testified
    that he did not know who was in the photo array because department policy required
    another detective prepare it. Watson also testified that he never told J.S. who to pick out
    and he read J.S. an admonition that stated that the suspect may not even be in the photos.
    Myers has not established that the photo array was tainted requiring action from Clark.
    (3) Clark failed to call witnesses to present an alibi defense.
    Myers argues that he gave Clark "multiple names of alibi witnesses" and that
    Clark was deficient for only contacting one and deciding not to pursue an alibi defense.
    He argues Clark's actions constituted a failure to conduct a reasonable investigation.
    Clark filed an alibi notice for the April 11, 2018 shooting. The notice listed two
    witnesses, "exact address unknown." The notice stated that Myers was at the residence
    shared by the two witnesses at the time of the shooting but did not otherwise specify the
    29
    substance of the testimony of the two witnesses. The record does not reflect why the
    witnesses were not called to testify at trial.
    Our review of the merits of this claim is hampered by the lack of an adequate
    evidentiary record in the district court. Myers did not testify at the hearing on his motion
    for new trial to elaborate on his claim that Clark was ineffective for not calling the alibi
    witnesses. Myers also did not call either witness to develop what his alibi defense would
    have been at trial and to establish that the alibi witnesses were, in fact, willing and able to
    testify at trial. Most importantly, Myers did not call Clark as a witness in district court to
    establish whether Clark's failure to call the witnesses resulted from a strategic decision
    made by Clark after investigating the witnesses.
    Generally, the decision whether to call a witness at trial is a strategic decision left
    to counsel's discretion. Sola-Morales, 300 Kan. at 887. Strategic choices made by counsel
    after a thorough investigation of the law and the facts are virtually unchallengeable. State
    v. Cheatham, 
    296 Kan. 417
    , 437, 
    292 P.3d 318
     (2013). To prove a claim of ineffective
    assistance of counsel, the defendant bears the burden of demonstrating that trial counsel's
    alleged deficiencies were not the result of trial strategy. State v. Gleason, 
    277 Kan. 624
    ,
    644, 
    88 P.3d 218
     (2004). There is a strong presumption that trial counsel's conduct falls
    within the wide range of reasonable professional assistance. Butler, 307 Kan. at 853.
    Myers could have called Clark as a witness to support his motion for new trial but
    did not do so. Without Clark's testimony to explain why he did not pursue the alibi
    defense and to establish the decision did not result from reasonable trial strategy, Myers
    fails to overcome the strong presumption that Clark provided reasonable professional
    assistance. We give full play to that presumption precisely because Myers had the chance
    to call Clark as a witness but did not do so. Based on the record before us, Myers fails to
    show that Clark's performance was deficient on the failure to present an alibi defense.
    30
    (4) Clark failed to challenge the State's lack of physical evidence.
    Myers argues that Clark failed to properly challenge the State's lack of evidence
    about fingerprints and the State's failure to subject Myers to gunshot residue testing.
    Myers concedes that the State's witnesses testified that fingerprints were not obtained
    from the casings, but he asserts that Clark "ignored" the lack of evidence.
    This argument is confusing because during closing Clark used the witnesses'
    testimony that they recovered no fingerprints to argue that there was no evidence directly
    linking Myers to the shootings. Thus, it is unclear how Myers wanted Clark to further
    "challenge" the witnesses' testimony that there were no fingerprints found in the case.
    Myers failed to show that Clark's performance was deficient on this point.
    (5) Clark failed to object to the makeup of the jury pool.
    Myers argues that Clark failed to object to the jury pool which had only one
    African American member. Myers argues that because Clark failed to object, the district
    court refused to consider his jury pool argument in his motion for new trial.
    While Clark and Sevart both asserted the jury pool issue in their motions for new
    trial, neither raised the claim as an ineffective assistance of counsel issue. Instead, it was
    raised as a separate constitutional basis for a new trial. Thus, Myers is raising this
    ineffective assistance of counsel claim for the first time on appeal, although he does not
    acknowledge it. Generally, an appellate court does not review issues raised for the first
    time on appeal. State v. Johnson, 
    309 Kan. 992
    , 995, 
    441 P.3d 1036
     (2019).
    In any event, Myers' argument fails because he incorrectly asserts that the district
    court failed to consider his argument because Clark failed to object. The district court
    pointed out that this issue should have been raised when the jury was selected. But the
    31
    district court then addressed the merits of the argument, stating the general rules and
    finding no evidence that jury members had been purposely and systemically excluded
    from jury service. The district court then denied the motion for new trial based on the
    makeup of the jury panel. Thus, Clark's failure to object did not bar Myers' motion for
    new trial based on the makeup of the jury panel.
    In sum, Myers fails to establish that Clark's performance was deficient on each of
    the claims he argues on appeal. Without a showing by Myers that Clark's performance
    was deficient, we need not reach the prejudice prong of the ineffective assistance of
    counsel claim. Myers fails to show the district court erred in denying his motion for new
    trial based on ineffective assistance of counsel.
    WERE MYERS' CONVICTIONS MULTIPLICITOUS?
    Myers next argues that his convictions of aggravated battery and attempted first-
    degree murder in 18CR941 were multiplicitous and that his convictions of aggravated
    battery and criminal discharge of a firearm in 18CR1664 were multiplicitous. The State
    argues that none of the convictions were multiplicitous under the proper test.
    Myers raised the multiplicity issue in case 18CR941 below but did not raise the
    issue for the charges in 18CR1664. Generally, this court does not hear issues raised for
    the first time on appeal. Gonzalez, 311 Kan. at 295. But Myers correctly asserts that the
    Kansas Supreme Court has heard a multiplicity issue for the first time on appeal to
    prevent the denial of fundamental rights. 311 Kan. at 295. Thus, we will address Myers'
    claim. This court applies unlimited review to multiplicity challenges. 311 Kan. at 295.
    "The Double Jeopardy Clause prevents a defendant from being punished more
    than once for the same crime." 311 Kan. at 296. Multiplicity occurs when a single offense
    is charged as several offenses in a charging document. Multiplicity involves a two-part
    32
    test, determining first whether the convictions arise from the same conduct, and second
    whether by statutory definition there is only one offense. 311 Kan. at 296. Under the first
    prong, the court determines if "the conduct is discrete," meaning the convictions do not
    arise from the same conduct. 311 Kan. at 296. But if the convictions arise from the same
    act or transaction then the conduct is unitary, and the court must consider the second
    prong. Under the second prong, if the convictions are for violating different statutes, the
    court applies "the same-elements" test: determining "'whether each offense contains an
    element not contained in the other; if not, they are the 'same offen[s]e' and double
    jeopardy bars additional punishment and successive prosecution.'" 311 Kan. at 296.
    Neither party contests that the first prong of the multiplicity test is met in either
    case: both challenged convictions arise from the same transaction. Thus, Myers'
    challenges hinge on the second prong: whether the offenses each contain an element the
    other does not.
    Myers' convictions of aggravated battery and attempted first-degree murder in 18CR941
    are not multiplicitous.
    In 18CR941, the State charged Myers with attempted first-degree murder. An
    attempt is "any overt act toward the perpetration of a crime done by a person who intends
    to commit such crime but fails in the perpetration thereof or is prevented or intercepted in
    executing such crime." K.S.A. 2020 Supp. 21-5301(a). First-degree murder is defined as
    "the killing of a human being committed: (1) [i]ntentionally, and with premeditation."
    K.S.A. 2020 Supp. 21-5402(a)(1). Thus, the State had to prove that Myers performed an
    overt act toward the perpetration of first-degree murder, that he intended to commit first-
    degree murder, and that he failed to complete the crime of first-degree murder. The State
    also charged Myers with aggravated battery in that case, which is "[k]nowingly causing
    great bodily harm to another person or disfigurement of another person." K.S.A. 2020
    Supp. 21-5413(b)(1)(A).
    33
    Myers concedes that "[a]t first blush" the two crimes have different elements, but
    he argues that the linchpin of this analysis depends on the overt act for the attempted
    murder charge. Myers asserts that because the overt act for the attempted murder was the
    aggravated battery—Myers shooting J.S. in the leg and continuing to fire—the
    aggravated battery elements were identical to some of the elements of attempted first-
    degree murder and thus the two convictions were multiplicitous. Myers cites State v.
    Appleby, 
    289 Kan. 1017
    , 
    221 P.3d 525
     (2009), in support of his argument.
    But Appleby is distinguishable. There, the defendant was convicted of capital
    murder under K.S.A. 21-3439(a)(4) defined as the intentional and premeditated killing of
    the victim in the commission of attempted rape. Our Supreme Court addressed whether
    the defendant's capital murder conviction and the defendant's attempted rape conviction
    were multiplicitous. 289 Kan. at 1025-26. The court reasoned:
    "To prove the elements of capital murder, the State had to prove beyond a reasonable
    doubt that Appleby intentionally, and with premeditation, killed A.K. in the commission
    of, or subsequent to, the crime of attempted rape. Hence, all of the elements of attempted
    rape were identical to some of the elements of the capital murder, meaning the attempted
    rape was a lesser included offense." 289 Kan. at 1029-30.
    In Appleby, the capital murder conviction was statutorily based on killing the
    victim during the commission of attempted rape. Here, the attempted first-degree murder
    charge is not statutorily based the commission of aggravated battery. This distinction
    renders Appleby unhelpful to the issue at hand.
    The State asserts that under the "same-elements" test, Myers' convictions of
    attempted first-degree murder and aggravated battery each contain a distinct element the
    other does not. Attempted first-degree murder requires an intent to commit first-degree
    murder—or an intent to kill a human being—which aggravated battery does not. See
    Gonzalez, 311 Kan. at 297 ("When the crime at issue is an attempt, the mental culpability
    34
    required is intent to commit that crime."). Similarly, aggravated battery contains an
    element—the infliction of great bodily harm—which attempted first-degree murder does
    not. Thus, the two convictions were not multiplicitous under the "same-elements" test.
    As Myers acknowledges, this court addressed a similar multiplicity argument in
    State v. Walker, No. 122,222, 
    2021 WL 2603087
     (Kan. App. 2021) (unpublished
    opinion), rev. denied 
    314 Kan. 859
     (2021). The panel addressed whether attempted
    second-degree murder and aggravated battery were multiplicitous. 
    2021 WL 2603087
    , at
    *6. The panel compared the elements of the two offenses, concluding that:
    "By following the [State v.] Schoonover[, 
    281 Kan. 453
    , 
    133 P.3d 48
     (2006),]
    elements test, we see the statutes for attempted second-degree murder and aggravated
    battery define different crimes because each offense contains a distinct element.
    Attempted intentional second-degree murder requires an intent to kill, while aggravated
    battery does not. Aggravated battery requires a knowing infliction of great bodily harm,
    which attempted murder does not—after all, a person could be guilty of attempted
    second-degree murder for shooting at a person and missing." 
    2021 WL 2603087
    , at *8.
    Myers asserts that the Walker panel's reasoning is erroneous because it failed to
    consider "what the State had to prove to establish the overt act" and it "only looked at the
    generic elements of aggravated battery and attempted second-degree murder." But as the
    State asserts, the "same-elements" test only requires the court to determine "'whether each
    offense contains an element not contained in the other.'" Gonzalez, 311 Kan. at 296. Our
    Supreme Court has clarified, "[T]he same-elements test . . . '"has nothing to do with the
    evidence presented at trial."'" 311 Kan. at 298. Thus, Myers' argument that this court
    must consider what the State had to prove at trial is contrary to the law.
    Finally, Myers argues that aggravated battery is a lesser included offense of
    attempted first-degree murder under K.S.A. 2020 Supp. 21-5109(b)(2) and thus he cannot
    be convicted of both. But this argument is different from a multiplicity argument and
    35
    Myers does not assert whether this argument is preserved. In any event, assuming it is
    properly before this court, his argument also fails.
    The lesser included offense statute states: "Upon prosecution for a crime, the
    defendant may be convicted of either the crime charged or a lesser included crime, but
    not both." K.S.A. 2020 Supp. 21-5109(b). The statute then defines a lesser included crime
    as "a crime where all elements of the lesser crime are identical to some of the elements of
    the crime charged." K.S.A. 2020 Supp. 21-5109(b)(2). The lesser included offense
    statute, like the multiplicity analysis, requires the elements of the two convictions to be
    examined to determine whether they contain identical elements. As analyzed above, both
    offenses contain a distinct element the other does not. See State v. Gaither, 
    283 Kan. 671
    ,
    Syl. ¶ 12, 
    156 P.3d 602
     (2007) ("aggravated battery does not qualify as a lesser-included
    crime of attempted first-degree murder"). In sum, Myers' convictions of aggravated
    battery and attempted first-degree murder are not multiplicitous.
    Myers' convictions of aggravated battery and criminal discharge of a firearm in
    18CR1664 are not multiplicitous.
    In 18CR1664, the State charged Myers with criminal discharge of a firearm, which
    is the "[r]eckless and unauthorized discharge of any firearm: (A) At a dwelling, building
    or structure in which there is a human being whether the person discharging the firearm
    knows or has reason to know that there is a human being present" and the "criminal
    discharge results in great bodily harm to a person." K.S.A. 2020 Supp. 21-6308(a)(1)(A)
    and (b)(1)(B). In that case the State also charged Myers with aggravated battery, which is
    "[k]nowingly causing great bodily harm to another person or disfigurement of another
    person." K.S.A. 2020 Supp. 21-5413(b)(1)(A). Myers again concedes that criminal
    discharge of a firearm has "some additional elements," but argues that the two crimes are
    identical in that both require the State to prove great bodily harm. The State counters that
    the offenses each contain a distinct element.
    36
    The State's analysis is persuasive. Under the same elements test, criminal
    discharge of a firearm has distinct elements that aggravated battery does not, including
    reckless discharge of a firearm, at an occupied building, and the criminal discharge
    resulted in great bodily harm. Similarly, aggravated battery contains a distinct element
    that criminal discharge of a firearm does not: knowingly causing great bodily harm.
    While Myers is correct that the State had to establish that he caused bodily harm for both
    offenses, he fails to recognize that for criminal discharge of a firearm the bodily harm is
    merely a result of his reckless discharge of the firearm. Whereas for aggravated battery,
    the defendant's causing the great bodily harm is the actus reus: the defendant must
    knowingly cause great bodily harm. Thus, each offense contains a distinct element the
    other does not, meaning the two convictions are not multiplicitous.
    Myers also again argues that aggravated battery is a lesser included offense of
    criminal discharge of a firearm under K.S.A. 2020 Supp. 21-5109(b)(2). But because
    aggravated battery contains an element that criminal discharge of a firearm does not, it is
    not a lesser included offense of criminal discharge of a firearm. In sum, Myers'
    convictions of aggravated battery and criminal discharge of a firearm are not
    multiplicitous.
    DID CUMULATIVE ERROR DEPRIVE MYERS OF A FAIR TRIAL?
    Myers argues that cumulative error denied him a fair trial. A cumulative error
    analysis aggregates all errors and determines whether the combined effect of the errors
    violated the defendant's right to a fair trial. State v. Tully, 
    293 Kan. 176
    , 205, 
    262 P.3d 314
     (2011). But the cumulative error analysis does not apply when multiple errors have
    not been found. State v. Gonzalez, 
    307 Kan. 575
    , 598, 
    412 P.3d 968
     (2018). Myers did
    not establish any errors. As a result, a cumulative error analysis does not apply.
    37
    DOES K.S.A. 2020 SUPP. 21-6819(b), AS APPLIED, VIOLATE MYERS' RIGHTS UNDER THE
    EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
    TO THE UNITED STATES CONSTITUTION?
    Under the revised Kansas Sentencing Guidelines Act (KSGA), when a defendant
    is convicted in a "multiple conviction case," the district court may impose concurrent or
    consecutive sentences subject to certain rules. K.S.A. 2020 Supp. 21-6819(b). In
    determining the sentence in a multiple conviction case, the district court must establish a
    "base sentence" for the primary crime—which is the crime with the highest severity level.
    K.S.A. 2020 Supp. 21-6819(b)(2). The base sentence is then calculated by applying the
    defendant's full criminal history to the primary crime. K.S.A. 2020 Supp. 21-6819(b)(3).
    The rest of the defendant's sentences for convictions in the multiple conviction case are
    calculated using a criminal history score of I. K.S.A. 2020 Supp. 21-6819(b)(5). "The
    total prison sentence imposed in a case involving multiple convictions arising from
    multiple counts within an information, complaint or indictment cannot exceed twice the
    base sentence." K.S.A. 2020 Supp. 21-6819(b)(4).
    Although Myers' two cases were consolidated for trial, the district court sentenced
    him separately in each case. In 18CR941, the base sentence for attempted murder in the
    first degree was 618 months' imprisonment. The district court ran the remaining three
    charges in that case concurrent to the base offense for a controlling sentence of 618
    months' imprisonment with 36 months' postrelease supervision. In 18CR1664, the base
    sentence for criminal discharge of a firearm was 228 months' imprisonment. The district
    court ran count three, criminal possession of a weapon by a convicted felon, consecutive
    to the criminal discharge of a firearm and ran count two, aggravated battery, concurrent
    for a controlling sentence in 18CR1664 of 237 months' imprisonment with 36 months'
    postrelease supervision. The district court ordered 18CR1664 to run consecutive to
    18CR941, for a total term of 855 months' imprisonment.
    38
    Myers argues that K.S.A. 2020 Supp. 21-6819(b)—which directs the district court
    to designate a base sentence for the primary crime in a multiple conviction case and apply
    an offender's full criminal history to the base sentence—as applied, violated his equal
    protection rights. He asserts that allowing the district court to apply a base sentence for
    each case treats one class of defendants—those that have multiple convictions after one
    trial based on charges raised in a single charging document—differently from another
    class of defendants—those that have multiple cases consolidated for one trial because the
    charges could have been brought in one charging document—even though the only
    difference between the two classes is the number of case numbers attached to the charges.
    A statute's constitutionality is a question of law subject to unlimited review.
    Gonzalez, 307 Kan. at 579. Generally, appellate courts presume statutes are constitutional
    and must resolve all doubts in favor of a statute's validity. 307 Kan. at 579. Likewise,
    courts must interpret a statute in a way that makes it constitutional if there is any
    reasonable construction that would maintain the Legislature's intent. 307 Kan. at 579. But
    when a statute implicates "'fundamental interests,'" the presumption of constitutionality
    does not apply. Hilburn v. Enerpipe Ltd., 
    309 Kan. 1127
    , 1132, 
    442 P.3d 509
     (2019).
    Preservation
    Myers concedes that he raises this issue for the first time on appeal. Generally, this
    court will not hear an issue raised for the first time on appeal, even a constitutional one.
    State v. Phillips, 
    299 Kan. 479
    , 493, 
    325 P.3d 1095
     (2014). There are three exceptions,
    including when the "theory involves only a question of law arising on proved or admitted
    facts and is determinative of the case" or when "consideration of the theory is necessary
    to serve the ends of justice or to prevent the denial of fundamental rights." 299 Kan. at
    493. Myers argues that this issue can be raised under these two exceptions.
    39
    The State argues that this case is not a pure legal question because this issue
    requires determining whether Myers is similarly situated to "other offenders whose
    crimes were all charged in a single complaint" which the State claims is "inherently
    factual." The State also argues that the issue does not fall under the second exception
    because Myers cannot meet his burden of establishing an equal protection violation.
    The State's arguments are not persuasive. Contrary to the State's assertion, this
    court need not consider the facts of Myers' case compared to the facts of other
    hypothetical cases in addressing an equal protection claim. The similarly situated inquiry
    only involves comparing Myers' sentencing limitations to those that would have applied
    had he been charged in one charging document; it does not require comparison to other
    specific cases. While the State is correct that determining whether consolidation of
    charges for trial is warranted is a factual inquiry, that question is not the issue here.
    Instead, this court looks only to the classes as defined by Myers and determines
    whether the law as applied to those classes violates equal protection. See State v. Denney,
    
    278 Kan. 643
    , 650-51, 
    101 P.3d 1257
     (2004) (addressing whether the classes presented
    by the appellant were indistinguishable even though the issue was raised for the first time
    on appeal, finding it presented a question of law on proven or admitted facts); see also
    State v. Dixon, 
    60 Kan. App. 2d 100
    , 131-32, 
    492 P.3d 455
     (finding equal protection
    challenge to "double rule" properly before the court for the first time on appeal because
    the court need only consider whether the statute created two classes and if the classes
    were similarly situated, a question of law requiring no factual findings), rev. denied 
    314 Kan. 856
     (2021). There is no question of fact that this court needs to decide in addressing
    Myers' claim. As a result, this challenge can be heard under the first exception. We also
    agree with Myers that consideration of the issue is necessary to serve the ends of justice
    or to prevent the denial of fundamental rights.
    40
    Analysis
    The Equal Protection Clause of the Fourteenth Amendment states: "No state shall
    . . . deny to any person within its jurisdiction the equal protection of the laws." U.S.
    Const. amend. XIV, § 1. Under the Equal Protection Clause "similarly situated
    individuals should be treated alike." State v. Gaudina, 
    284 Kan. 354
    , 372, 
    160 P.3d 854
    (2007). Stated another way, the clause "does not require that all persons receive identical
    treatment, but only that persons similarly situated with respect to the legitimate purpose
    of the law receive like treatment." 284 Kan. at 372.
    This court engages in a three-step process in reviewing an equal protection claim:
    "First, it considers whether the legislation creates a classification resulting in different
    treatment of similarly situated individuals. If the statute treats '"arguably
    indistinguishable"' individuals differently, the court determines next the appropriate level
    of scrutiny to assess the classification by examining its nature or the right at issue. Then,
    the court applies that level of scrutiny to the statute. [Citations omitted.]" State v.
    LaPointe, 
    309 Kan. 299
    , 316, 
    434 P.3d 850
     (2019).
    Before addressing the parties' arguments, it helps to summarize a recent case from
    this court that both parties discuss, State v. Dixon, 
    60 Kan. App. 2d 100
    . Dixon, like
    Myers, had two criminal cases that were consolidated for trial based on the State's motion
    that the two cases could have been charged in one charging document. A jury convicted
    Dixon of all charges across both cases. The district court sentenced Dixon separately in
    both cases, designating a base sentence in each case and imposing consecutive sentences
    on the remaining counts. On appeal, Dixon raised an equal protection challenge to K.S.A.
    2020 Supp. 21-6819(b)(4), the provision known as the "double rule," arguing that the
    double rule, which applied to multiple convictions brought in one charging document,
    treated one class of defendants—those with multiple counts charged in one charging
    document—differently than another class—those with multiple cases consolidated for
    41
    trial because the charges could have been brought in one charging document. 60 Kan.
    App. 2d at 130.
    This court found merit in Dixon's argument that the double rule treated arguably
    indistinguishable classes of individuals differently. 60 Kan. App. 2d at 134. The court
    explained that both classes proceeded to one trial on multiple charges that were "'of the
    same or similar character or are based on the same act or transaction or on two or more
    acts or transactions connected together or constituting parts of a common scheme or
    plan.'" 60 Kan. App. 2d at 134 (quoting K.S.A. 22-3202[1]). But only those defendants
    who had their charges brought in one charging document benefited from the double rule.
    The panel found the only difference between the two classes of defendants was the
    number of case numbers attached to the charges. 60 Kan. App. 2d at 134.
    The panel then proceeded to the next step of the equal protection analysis—
    determining whether the double rule passed rational basis scrutiny. Dixon acknowledged
    that the double rule had a legitimate goal when applied to separate charging documents
    containing unrelated charges but argued the rule had no legitimate purpose "when there
    was one trial because the charges could have been brought in one charging document, but
    the State declined to do so." 60 Kan. App. 2d at 136. The panel acknowledged that the
    decision to proceed to a consolidated trial was a discretionary decision for the prosecutor
    but found that if the prosecutor elected to proceed to a consolidated trial because the
    prosecutor could have brought the charges in one charging document, then Dixon should
    receive the same sentencing benefit he would have a right to receive had the charges been
    brought in one charging document. 60 Kan. App. 2d at 136-37. The panel concluded that
    it was the State's arbitrary decision to charge the crimes in separate criminal cases that led
    to the sentencing disparity in Dixon's case. 60 Kan. App. 2d at 137.
    The panel found that had the double rule been applied to Dixon as though he had
    been charged in one charging document, he would have received a maximum sentence of
    42
    1,306 months' imprisonment, which was more than 700 months, or about 61 years, less
    than the sentence he received because the district court applied a base sentence—and the
    double rule—in each case. 60 Kan. App. 2d at 139. Thus, the panel found that the double
    rule, as applied to Dixon's case, violated his equal protection rights:
    "We are mindful that the rational basis test is a very lenient standard and a statute
    must be enforced as written 'if any state of facts reasonably may be conceived to justify
    it.' [Citation omitted.] But we are unable to find that the strict application of K.S.A. 2020
    Supp. 21-6819(b)(4) to Dixon's case implicates any legitimate sentencing goal. As a
    result, we find that the statute, as applied to Dixon's cases, does not pass rational basis
    scrutiny." 60 Kan. App. 2d at 139.
    The panel concluded that the proper remedy was to extend the double rule to cases
    that are consolidated for trial because they could have been charged in one charging
    document. 60 Kan. App. 2d at 139-40. The panel stated:
    "We note that our decision does not stand for the proposition that the State must
    always consolidate cases for trial when they are related. Instead, our decision stands for
    the proposition that when the State chooses to consolidate cases for trial because the
    charges could have been brought in one charging document, then the State must be held
    to the sentencing limitations applicable to a trial based on one charging document." 60
    Kan. App. 2d at 140.
    In Dixon, the double rule under K.S.A. 2020 Supp. 21-6819(b)(4) was violated.
    Myers' sentences in his two cases did not violate the double rule. But the issue here is
    whether a sentencing court should sentence a defendant in separate cases designating a
    primary crime and a base sentence in each case when the cases were consolidated for trial
    because the charges could have been brought in a single complaint. As we will see in
    Myers' cases, using this sentencing procedure results in a longer controlling sentence than
    he would have received had all the charges been brought in one charging document.
    43
    Do the base sentence rules treat arguably indistinguishable classes of individuals
    differently?
    Myers argues that the base sentence rules in K.S.A. 2020 Supp. 21-6819(b)
    distinguish between two similarly situated defendants: (1) defendants who had one trial
    on multiple counts charged in one case and (2) defendants who had one trial on multiple
    counts charged in separate cases consolidated for trial based on a finding that the charges
    could have been brought in one charging document. He asserts the first group benefits
    from the base sentence rules by having only one base sentence while the second class has
    a base sentence for each case. He argues the only distinction between these two classes of
    defendants is that the latter class has multiple case numbers attached to the charges.
    The State argues that Myers' argument is really a challenge to prosecutorial
    discretion. The State argues that there is a distinction between Myers and defendants who
    have one trial on counts in a single document: his cases could have been tried separately
    because the cases were not subject to compulsory joinder.
    Myers bears the burden of establishing that he is similarly situated to members of
    a class receiving different treatment. State v. Cheeks, 
    298 Kan. 1
    , 5, 
    310 P.3d 346
     (2013),
    overruled on other grounds by State v. LaPointe, 
    309 Kan. 299
    , 316, 
    434 P.3d 850
    (2019). In conducting review, this court is "limited 'by the distinctions argued by the
    complaining party.'" Cheeks, 298 Kan. at 5. Our Supreme Court has recognized that
    "[d]etermining whether individuals are similarly situated is 'not always susceptible to
    ease of application.'" 298 Kan. at 5.
    The State is correct that Myers' cases were not consolidated under compulsory
    joinder and his cases could have been tried separately. But that does not undermine
    Myers' argument that when the State chooses to consolidate the cases because it could
    have brought the charges in one charging document, he should be treated similarly—
    44
    sentenced with only one base sentence—to those defendants who were charged in one
    charging document. His argument, like Dixon's, is persuasive.
    The State moved, and the district court granted, consolidation under K.S.A. 22-
    3203, which states: "The court may order two or more complaints, informations or
    indictments against a single defendant to be tried together if the crimes could have been
    joined in a single complaint, information or indictment." Crimes can be charged in the
    same charging document "if the crimes charged . . . are of the same or similar character
    or are based on the same act or transaction or on two or more acts or transactions
    connected together or constituting parts of a common scheme or plan." K.S.A. 22-
    3202(1). Thus, both classes of defendants identified by Myers had multiple convictions
    after one trial because the crimes charged were of the same or similar character or
    stemmed from the same act or transaction or two or more acts or transactions constituting
    parts of a common scheme or plan.
    But only defendants who have their charges brought in a single case, or in one
    charging document, get the benefit of a single base sentence for multiple convictions.
    When a defendant is charged in two separate cases, even though the charges are later
    consolidated for one trial because they could have been brought in a single complaint, the
    defendant is sentenced separately in each case and receives a base sentence in each case,
    leading to a longer controlling sentence. As in Dixon, the only difference between the two
    classes of defendants is the number of case numbers attached to the charges.
    We find the base sentence rules in K.S.A. 2020 Supp. 21-6819(b) treat arguably
    indistinguishable classes of defendants differently. We must now proceed to the next step
    in the analysis to determine the appropriate level of scrutiny to assess to the classification
    and decide whether K.S.A. 2020 Supp. 21-6819(b) passes that level of scrutiny.
    45
    Do the base sentence rules in K.S.A. 2020 Supp. 21-6819(b) pass rational basis scrutiny?
    Both parties agree that because the statute does not involve suspect or quasi-
    suspect classes, rational basis scrutiny applies. The rational basis test is "'a very lenient
    standard.'" Denney, 
    278 Kan. at 651
    . "'For a statute to pass constitutional muster under
    the rational basis standard, it therefore must meet a two-part test: (1) It must implicate
    legitimate goals, and (2) the means chosen by the legislature must bear a rational
    relationship to those goals. '" 
    278 Kan. at 651
    . The test is only violated when the
    classification "'rests on grounds wholly irrelevant to the achievement of the State's
    legitimate objective'" and the statute will not "'be set aside if any state of facts reasonably
    may be conceived to justify it.'" 
    278 Kan. at 651-52
    . Myers bears the burden of "negating
    '"every conceivable [reasonable] basis which might support"' the differing treatment.
    [Citation omitted.]" See Cheeks, 298 Kan. at 8.
    Myers cites Dixon and argues that applying the base sentence rules in K.S.A. 2020
    Supp. 21-6819(b) to each case despite the cases being consolidated for trial because the
    charges could have been brought in one charging document is an arbitrary distinction. He
    argues that the distinction allows the State to secure harsher sentences by charging
    defendants in multiple cases but proceeding to only one trial.
    Myers' cases show the sentencing disparity he is talking about. Myers received a
    base sentence of 618 months' imprisonment for attempted first-degree murder in
    18CR941. Myers received a base sentence of 228 months' imprisonment for criminal
    discharge of a firearm in 18CR1664. He also received a consecutive term of 9 months'
    imprisonment for criminal possession of a weapon by a convicted felon for a controlling
    sentence in 18CR1664 of 237 months' imprisonment. The district court ordered the
    sentences in the two cases to run consecutive for a total term of 855 months'
    imprisonment. Had the charges been filed in one complaint, Myers' presumptive sentence
    range for criminal discharge of a firearm would have been 61-59-55 months'
    46
    imprisonment, calculated using a criminal history score of I. See K.S.A. 2020 Supp. 21-
    6819(b)(5). In other words, even assuming the high range on the sentencing grid, Myers'
    sentence for that count would have been at least 167 months less than the 228-month base
    sentence he received (228-61=167). Even if the district court ran the same counts in the
    two cases consecutive, Myers' total term would have been 688 months' imprisonment
    instead of the 855-month sentence he received (618+61+9=688).
    The State filed the complaint in case 18CR941 on May 25, 2018, for the crimes
    arising from the April 2018 shooting. The State filed the complaint in case 18CR1664 on
    June 26, 2018, for the crimes arising from the February 2017 shooting. Interestingly, the
    report on the shell casings recovered from Carter's house was completed on May 21,
    2018. It was within the State's discretion to file the two cases separately. But the State
    later consolidated the cases for trial because all the charges could have been brought in a
    single complaint under K.S.A. 22-3202(1). As a result of the State's decision to file the
    complaints separately, Myers ultimately received a sentence that was 167 months longer
    than the sentence he would have received for the same convictions had all the charges
    originally been filed in a single complaint. As reasoned in Dixon, this sentencing
    disparity based solely on the number of cases attached to the charges at a consolidated
    trial seems to defeat the KSGA's purpose of uniform sentencing. See State v. Fowler, 
    311 Kan. 136
    , 152, 
    457 P.3d 927
     (2020) ("[T]he Legislature's stated policy goal[] in enacting
    the KSGA [is] uniformity in sentencing.").
    The State argues there are rational reasons for the different treatment. The State
    asserts that "[i]t is perfectly logical and reasonable to allow for harsher sentences for
    offenders, such as defendant, who victimize multiple people on different occasions." The
    State asserts the consolidation promotes judicial economy and that such economy should
    not result in a "windfall" at sentencing for defendants. The State also argues that Myers'
    arguments will require "the State to make a choice it should not be forced to make which
    will lead to alternative Equal Protection claims from defendants." The State asserts that
    47
    defendants will now have an incentive to have their cases consolidated for trial and if the
    cases are not consolidated, defendants will argue they should have been, creating a
    "Catch 22" for the State. The State argues that the KSGA already provides defendants
    with a "significant benefit" under K.S.A. 2020 Supp. 21-6810(a), which provides that
    counts joined for trial under K.S.A. 22-3203 and amendments thereto do not count as
    prior convictions in determining the defendant's criminal history.
    The State's arguments are unpersuasive. To begin, we agree with the State that
    prosecutors have wide discretion in charging decisions. As this court stated in Dixon:
    "[W]e recognize that a prosecutor is the representative of the State in criminal
    prosecutions and has broad discretion in controlling those prosecutions. The scope of this
    discretion extends to the power to investigate and to determine who shall be prosecuted
    and what crimes shall be charged. [Citations omitted.] The discretion to decide what
    charges to file in any situation is an important tool reserved to the prosecutor, and courts
    should not try to interfere with such discretion, nor do we have the power to do so." 60
    Kan. App. 2d at 136-37.
    Although we agree the prosecutor has charging discretion, the State's argument
    that a defendant who victimizes multiple people on different occasions deserves a harsher
    sentence misses the point. While the crimes Myers committed victimized different people
    on different occasions, the State ultimately consolidated the cases for trial because they
    were of the same or similar character and could have been charged in one charging
    document. Thus, it was the State's discretionary but arbitrary decision to originally file
    similar charges—that could have been brought in one charging document—in separate
    charging documents that led to the sentencing disparity in this case.
    The State's judicial economy argument is also problematic. Judicial economy
    supports consolidating cases for trial, but it does not support the disparate sentencing
    treatment that results from consolidation, especially considering that the goal of the
    48
    KSGA is uniformity in sentencing. See Fowler, 311 Kan. at 152. Again, Myers is not
    asserting that the State cannot consolidate cases for trial. He is merely asserting that if the
    State chooses to consolidate cases for trial because the State could have charged the
    crimes in one charging document, then the cases should be sentenced as if they were in
    fact brought in one charging document. Disparate sentencing based solely on the number
    of cases attached to charges bears no rational relationship to promoting judicial economy.
    We also disagree that sentencing Myers as though all the charges for which he was
    convicted had been filed in one complaint results in a "windfall" for him. Myers only
    received one trial and the consolidation of the cases provided the State with a significant
    procedural and strategic advantage at trial. The jury found Myers guilty of all the charges.
    As it stands, Myers received a sentence that was 167 months longer than the sentence he
    would have received for the same convictions had all the charges originally been filed in
    a single complaint. Myers simply argues that if he is to be tried as though all the charges
    against him had been filed in one complaint, he should be sentenced as though all the
    charges were filed in one complaint. There is no windfall here.
    The State's arguments about forcing it to make a choice that may lead to different
    equal protection claims in the future is also not persuasive. First, it seems that speculating
    on the possibility of future equal protection claims if there is a ruling in Myers' favor is
    hypothetical. And as for defendants now having an incentive to ask for consolidated
    trials, if all the charges against a defendant are of the same or similar character, then a
    consolidated trial is appropriate and should be considered whether the request is made by
    the defendant or by the State. Second, a ruling in Myers' favor will not force the State to
    make a decision it should not have to make. The only choice the State will need to make
    is whether it should try two cases separately and receive the full benefit of the base
    sentence rules or consolidate the cases for trial with the understanding that the defendant
    will be sentenced as though the charges had been brought in one case.
    49
    Finally, the State points to the "significant benefit" the defendant already receives
    under K.S.A. 2020 Supp. 21-6810(a), which provides that counts joined for trial under
    K.S.A. 22-3203 and amendments thereto do not count as prior convictions in determining
    criminal history. But we see this argument as working against the State and not in its
    favor. The Kansas Legislature seems to recognize that when a defendant is convicted of
    charges in separate complaints that were consolidated for trial because the charges could
    have been brought in one charging document, it is inappropriate to count the convictions
    against each other in determining criminal history. This KSGA provision shows some
    acknowledgment by the Legislature that at least in terms of determining criminal history,
    a defendant who is tried as though all the charges could have been brought in one
    complaint should be sentenced as though all the charges were brought in one complaint.
    As we observed in Dixon, 60 Kan. App. 2d at 139, "[w]e are mindful that the
    rational basis test is a very lenient standard, and a statute must be enforced as written 'if
    any state of facts reasonably may be conceived to justify it.'" (quoting Denney, 
    278 Kan. at 652
    ). But we are unable to find that the strict application of K.S.A. 2020 Supp. 21-
    6819(b) to Myers' cases implicates any legitimate sentencing goal. As a result, we find
    that the statute, as applied to Myers' cases, does not pass rational basis scrutiny. Thus, we
    conclude that the base sentence rules found in K.S.A. 2020 Supp. 21-6819(b), as applied
    to Myers' cases, violates his equal protection rights under the Fourteenth Amendment.
    Our final step is to determine the remedy for this violation.
    What is the remedy for this violation?
    There are two remedies when a statute is under-inclusive: (1) either declare the
    statute void or (2) order that its benefits include the aggrieved class. Denney, 
    278 Kan. at 656
    . To decide between the two remedies, the court should look at the importance of the
    statute and the effects of striking it down. 
    278 Kan. at 656
    .
    50
    Given the two remedies, it would be more consistent with the purpose of the
    KSGA to extend the coverage of the statute as opposed to striking it down. Such a
    remedy has been taken in other cases. See, e.g., Denney, 
    278 Kan. at 660
     (extending
    coverage of statute to aggrieved class finding the remedy better than nullifying the
    statute); Dixon, 60 Kan. App. 2d at 140 (expanding coverage of double rule found in
    K.S.A. 2020 Supp. 21-6819[b][4] to defendants who had a consolidated trial based on a
    finding that the charges could have been brought in one charging document); State v.
    Kelsey, 
    51 Kan. App. 2d 819
    , 829, 
    356 P.3d 414
     (2015) (expanding coverage of statute to
    cover narrow class at issue after equal protection challenge).
    In sum, we vacate Myers' sentences and remand for resentencing with the court
    designating one primary crime of conviction—attempted first-degree murder—and only
    one base sentence for both cases. Contrary to the State's argument, our decision does not
    stand for the proposition that the State must always consolidate cases for trial when they
    are related. Instead, we merely hold that when the State chooses to consolidate cases for
    trial because the charges could have been brought in one charging document, then the
    State must be held to the sentencing limitations—applying only one base sentence—
    applicable to a trial based on one charging document. See Dixon, 60 Kan. App. 2d at 140
    (reasoning same in relation to double rule).
    DID THE DISTRICT COURT ERR IN CALCULATING MYERS' CRIMINAL HISTORY SCORE?
    Myers argues, for the first time on appeal, that the district court erred in finding
    his criminal history score was B because the State did not present evidence that he had
    counsel or waived counsel for his prior misdemeanor convictions. See K.S.A. 2020 Supp.
    21-6811(a) (allowing three prior misdemeanor convictions to be aggregated to one person
    felony conviction). Myers concedes that he withdrew any objection to the PSI report and
    personally affirmed that he did not object to a criminal history score of B. But Myers
    argues that the State had the burden to prove his criminal history score, including whether
    51
    his misdemeanor convictions were counseled or that he waived counsel and because the
    State did not meet this burden, his case must be remanded.
    The State correctly asserts that the Kansas Supreme Court recently rejected the
    same claim in State v. Roberts, 
    314 Kan. 316
    , 
    498 P.3d 725
     (2021). In Roberts, the
    defendant claimed for the first time on appeal that the State failed to prove that his three
    prior municipal convictions were counseled or that he waived counsel and thus his
    sentence was illegal. Roberts admitted his criminal history in the PSI report and never
    notified the court of any alleged error. Our Supreme Court reaffirmed that "'[a] person
    accused of a misdemeanor has a Sixth Amendment right to counsel if the sentence to be
    imposed upon conviction includes a term of imprisonment, even if the jail time is
    suspended or conditioned upon a term of probation,'" and that uncounseled misdemeanor
    convictions cannot be used in subsequent criminal proceedings. 314 Kan. at 320.
    The Roberts court stated that resolution of the issue depended on who had the
    burden of proving the validity of prior convictions: the State or the defendant. 314 Kan.
    at 321. The court found that under K.S.A. 2020 Supp. 21-6814, the State satisfies its
    initial burden of proving an offender's criminal history by providing the PSI report. If the
    offender provides written notice of any error in the PSI report, then the State must prove
    the disputed portion of the criminal history. But if the offender does not object to any
    errors in the PSI report, the report satisfies the State's burden of proving criminal history,
    and the burden shifts to the offender to prove any error in the alleged criminal history by
    a preponderance of the evidence. 314 Kan. at 322. The court then held:
    "[A] defendant who fails to object under K.S.A. 2020 Supp. 21-6814(c) at sentencing to
    the constitutional validity of a prior conviction used to enhance a current sentence, based
    on a claim of the absence of counsel without a valid waiver, has the burden to show the
    prior conviction is invalid, regardless of whether the defendant's constitutional challenge
    to the allegedly uncounseled conviction in criminal history is brought on direct appeal of
    52
    the current sentence or in a proceeding collaterally attacking that sentence." 314 Kan. at
    334-35.
    The court elaborated that without an objection at sentencing, "a presumption of
    regularity attaches to a final judgment entered in a prior case and the defendant bears the
    burden of producing evidence to rebut that presumption." 314 Kan. at 335. The court
    found that because Roberts admitted his criminal history at sentencing and did not object,
    the PSI report satisfied the State's burden to prove the constitutional validity of his prior
    misdemeanor convictions and Roberts had the burden to show in his direct appeal that the
    prior convictions were constitutionally invalid. 314 Kan. at 336; see also State v. Corby,
    
    314 Kan. 794
    , 
    502 P.3d 111
     (2022) (applying same analysis to defendant's criminal
    history challenge in direct appeal).
    Identical to Roberts, Myers personally admitted his criminal history at sentencing
    after withdrawing his objection to his criminal history. Because Myers admitted his
    criminal history, the PSI report met the State's burden of proving the validity of his prior
    convictions, including the three misdemeanor convictions. Thus, Myers bears the burden
    in this, his direct appeal, to show the prior convictions were invalid. But Myers does not
    claim, let alone point to evidence to establish, that his prior misdemeanor convictions
    were uncounseled. As a result, Myers is entitled to no relief on this claim in his direct
    appeal. But we observe that Myers may still move to correct his alleged illegal sentence,
    and in such a motion he will have the burden of proving his misdemeanor convictions
    were uncounseled, resulting in a different criminal history score and an illegal sentence.
    Convictions affirmed, sentences vacated, and case remanded with directions.
    53