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June 9, 2017 Digests

Posted By Administration, Tuesday, June 13, 2017
Updated: Wednesday, June 14, 2017

Kansas Supreme Court


NO. 110,483—JUNE 9, 2017

FACTS: This case was a fee dispute between attorneys Bradley Pistotnik and Stephen Brave. Each represented Consolver at different stages of her legal action. Pistotnik handled the case through discovery and mediation under a contingency fee agreement. The parties reached an agreement for a $300,000 settlement if Consolver could show that further medical treatment was necessary. But before that settlement was finalized, Pistotnik was dismissed as counsel. Pistotnik filed an attorney lien to recover fees plus his portion of the $300,000 settlement. Brave eventually settled the case for $360,000 but there was no agreement about how to satisfy Pistotnik's lien. The district court awarded $86,944.27 in attorney fees and $10,156.81 in expenses. The Court of Appeals reversed, finding that the district court's quantum meruit payment was fundamentally incompatible with a contingency fee. The Supreme Court granted review.

ISSUE: Consideration of the value of Pistotnik's services in light of the contingency fee agreement

HELD: An attorney employed under a contingency fee contract who is discharged without cause is limited to a quantum meruit recovery for the reasonable value of services rendered. The district court's decision was not an abuse of discretion.

STATUTE: K.S.A. 2016 Supp. 7-121b

NO. 111,299—JUNE 9, 2017

FACTS: Bogguess was convicted of multiple high-level felonies after he requested a bench trial on stipulated facts. The district court engaged in a thorough colloquy with Bogguess to verify that the decision to waive a jury trial was made freely and voluntarily. On the morning of sentencing, Bogguess filed a motion to dismiss counsel, claiming ineffective assistance. It was denied, and Bogguess' convictions were affirmed on direct appeal. Bogguess subsequently filed a K.S.A. 60-1507 motion in which he again alleged ineffective assistance of counsel. The motion was summarily denied and the Court of Appeals affirmed. The Supreme Court granted review.

ISSUES: (1) Res judicata as a bar to raising claims; (2) analysis of the claim on the merits

HELD: Bogguess' collateral action raising claims of ineffective assistance was not barred by res judicata because the issues raised were not litigated on direct appeal. But the Court of Appeals correctly concluded that Bogguess' claim failed on the merits because he cannot demonstrate prejudice.

STATUTE: K.S.A. 60-1507


criminal law—sentencing—statutes
state v. Lee
sedgwick district court—affirmed
no. 114,336—june 9,2017

FACTS: Prior to the July 1993 effective date of Kansas Sentencing Guidelines Act (KSGA), Lee committed January 1993 crimes of first-degree murder, aggravated kidnapping, kidnapping, and aggravated assault. He was convicted of all four crimes.  Sentencing court in 1995 applied the pre-KSGA sentencing statute applicable at the time Lee committed the crimes.  Lee filed 2014 motion to correct an illegal sentence, seeking conversion of his sentences to grid sentences under the KSGA.  District court summarily denied the motion. On appeal Lee argued his pre-KSGA crimes must be considered conversion eligible under rationale underlying State v. Murdock, 299 Kan. 312 (2014), and district court’s summary denial of Lee’s motion denied him his statutory right to a hearing under K.S.A. 22-3504.

ISSUES: (1) Pre-KSGA sentence conversion, (2) summary disposition

HELD: District court did not err in denying Lee’s motion. Murdock was overruled by State v. Keel, 302 Kan. 560 (2015), and State v. Jeffries,  304 Kan. 748 (2016), defeats Lee’s argument that the post-KSGA severity level of Lee’s crimes could not be used to deny conversion because there were no severity level designations at the time he committed his offense. 

District court’s summary denial of Lee’s motion was not error because record conclusively shows he was not entitled to relief. 

STATUTES: K.S.A. 2016 22-3601(b)(2); K.S.A. 21-3401, -3410, -3420, -3421, -4711(e), -4724, -4724(b)(1), -4724(c)(1), -4724(f), 22-3504, -3504(1); K.S.A. 1993 Supp. 21-4701 et seq., -4706(c)

constitutional law—criminal law—sentencing—statutes
state v. sims
sedgwick district court—affirmed
no. 114,008—june 9, 2017

FACTS:  Sims was convicted on 1995 aggravated battery. District court imposed sentence under Kansas Sentencing Guidelines Act (KSGA), classifying a 1992 juvenile adjudication for aggravated assault as a person felony.  Sims filed a 2015 motion to correct an illegal sentence, arguing the sentencing court used an incorrect criminal history score because the 1992 juvenile adjudication should have been classified as a nonperson offense under State v. Murdock, 299 Kan. 312 (2014). District court summarily denied relief. Sims appealed claiming: (1) error in the classification of the 1992 juvenile adjudication; (2) the person/nonperson classification of pre-KSGA offenses violated Apprendi case law; and (3) district court’s summary dismissal denied Sims his statutory right to a hearing under K.S.A. 22-3504.   

ISSUES: (1) Classification of the pre-KSGA offense, (2) apprendi—person/nonperson classification, (3) summary disposition

HELD: Murdock was overruled by State v. Keel, 302 Kan. 560 (2015). Applying Keel, the sentencing court properly classified Sims’ pre-KSGA aggravated assault adjudication as a person felony.

Sims’ Apprendi argument was defeated by State v. Collier, 306 Kan. __ (June 2, 2017).

District court’s summary denial of the motion was not error because record in case conclusively showed Sims was not entitled to relief.       

STATUTES:  K.S.A. 2016 Upp. 21-6810(d), -6810(e), 22-3601(b)(3); K.S.A. 21-3410, -4710(d)(2), -4710(d)(6), 22-3504, -3504(1); K.S.A. 1994 Supp. 21-4701 et seq.; K.S.A. 21-3410 (Ensley 1988)

Kansas Court of Appeals


NO. 116,373—JUNE 9, 2017

FACTS: Miller rented 35 acres of pastureland from Burnett. She filed suit against Barnett, claiming that he violated the terms of their oral lease by allowing horses to graze on her rented pastureland and by denying her access for 3 months. Burnett counterclaimed, alleging that she hadn't paid rent for the current lease term. The small claims court found for Burnett and ordered Miller to pay rent. Miller appealed and the decision was affirmed by the district court. Miller appealed.

ISSUES: (1) Damages for violation of oral lease; (2) duty to mitigate damages

HELD: In the absence of the trial transcript, it was impossible to determine whether the district court's factual findings were correct. Miller had the burden to prove an adequate record and without the transcript, her claim of error must fail. Evidence showed that Miller breached the lease. But because Miller did not abandon the property, the district court erred by holding that Burnett was required to graze horses on the rented land in order to mitigate damages caused by the breach. Case had to be remanded to allow for proper application of the law to the facts.

STATUTE: K.S.A. 58-2507, -2524

NO. 115,614—JUNE 9, 2017

FACTS: McDaniel was summoned for jury duty, and she timely appeared on the appointed day. She was not seated on the first day, and was told to appear at 8:45 the next morning. Prior to that time, McDaniel called to advise the jury clerk that she had child care difficulties. She offered to either come later in the day or bring her son with her. The jury clerk told McDaniel that she had no option other than to timely appear without her son. McDaniel appeared in the afternoon as promised. At that time, the jury clerk informed McDaniel that she was to appear at a hearing scheduled three days later to explain why she was late. At that hearing, where McDaniel appeared without counsel, the district court found her in direct contempt of court and imposed a 6-month jail sentence with work release after 30 days. McDaniel's mother obtained counsel for her, but counsel had a difficult time entering an appearance because the file was sealed. Four days after she was jailed, the district court summoned McDaniel back to chambers. Her sentence was commuted to time served and she was released. She appealed.

ISSUES: (1) Jurisdiction; (2) sufficiency to prove direct contempt

HELD: McDaniel's appeal was dismissed by the district court for failure to docket. Instead of filing a motion to reinstate, counsel filed a motion to docket out of time. That error was not jurisdictional, since appellate court rules governing procedure are not jurisdictional. Because McDaniel's notice of appeal was timely, the court may hear McDaniel's substantive arguments. McDaniel's failure to timely appear for jury duty did not constitute direct criminal contempt but, perhaps, indirect criminal contempt. And the proceedings in district court violated some of McDaniel's constitutional rights. And the district court did not properly complete the required journal entry. McDaniel's conviction had to be vacated.

STATUTE: K.S.A. 2016 Supp. 20-1204a(a), -1204a(d), 22-3608(c); K.S.A. 20-1201, -1202, -1203, 43-165


criminal law—jurisdiction—statutes
state v. castillo
sedgwick district court—affirmed
no. 115,504—june 9, 2017

FACTS: Castillo entered guilty pleas to two DUI offenses.  District court imposed consecutive 1-year prison terms and 1-year post-release supervision periods. After serving both jail sentences she violated terms of her post-imprisonment supervision.  District court revoked supervision and ordered service of the balance of the supervision period in county jail.  Castillo appealed, claiming district court lacked jurisdiction to impose additional jail time. She argued the post-release period for felony DUI should be treated the same as a post-release period from other felony convictions governed by the Kansas Sentencing Guidelines Act (KSGA), and only the agency supervising her release (Department of Corrections) had authority to revoke her release and not the district court which lost jurisdiction upon sentencing. State argues this jurisdictional claim was not raised below, and Castillo failed to brief why the issue is properly before the appellate court. 

ISSUE: (1) Appellate jurisdiction, (2) jurisdiction to revoke post-release supervision or post-imprisonment supervision

HELD: Castillo’s challenge to the district court’s subject matter jurisdiction is addressed.

DUI sentences are not calculated pursuant to the KSGA because the Kansas DUI law, K.S.A. 8-1567, is a self-contained criminal statute that includes elements of the crime, severity levels, and applicable sentences. Inmates on post-release supervision remain in the legal custody of the Department of Corrections and are subject to orders of the Secretary, while DUI offenders are on post-imprisonment supervision and remain subject to jurisdiction of the district court. District court in this case had jurisdiction to revoke Castillo’s post-imprisonment supervision for her DUI offenses and to impose additional jail time.  

STATUTES: K.S.A. 2016 Supp. 8-1567, -1567(b)(3), 20-346a(b), 21-5413(h)(10), -6603(b), -6804(i)(1), 22-3716, -3716(b)(3)(B), -3717(a), 75-5291(a)(2)(G); K.S.A. 2010 Supp. 8-1567(g)(2); K.S.A. 8-1567, 75-5217

criminal law—sentencing—statutes
State v. lamone
sedgwick district court—sentence vacated and case remanded
no. 115,451—june 9, 2017

FACTS: Lamone was convicted of felony DUI based on two previous municipal court DUI convictions under a Wichita city ordinance. On appeal she argued her prior municipal convictions could not be used to enhance her DUI sentence because at the time of her previous convictions the city ordinance was broader than the state statute in defining the term “vehicle.” She also contended the trial court’s finding of fact regarding what type of vehicle she was driving when charged with DUI under the city ordinance violated Apprendi  case law.

ISSUE: Sentencing for felony DUI—use of prior DUI municipal court convictions

HELD: Trial court erred in using Lamone’s two prior municipal court convictions as a basis for convicting her of felony DUI. Wichita city ordinance was broader than the state statute, but definition of “vehicle” under the Wichita City Ordinance did not create an alternative element but only enumerated one or more factual ways of committing the single offense of DUI. Because the Wichita ordinance is not divisible, the trial court improperly invoked the modified categorical approach to consult the charging documents of Lamone’s two previous municipal court convictions to determine what type of vehicle she was operating or attempting to operate when charged with the DUI offenses. Lamone’s sentence was vacated and case was remanded for resentencing under K.S.A. 2016 Supp. 8-1567 without use or consideration of Lamone’s two previous municipal court DUI convictions. 

DISSENT (Gardner, J.): Would affirm Lamone’s sentence. Because the Wichita ordinance prohibits the acts prohibited by the state statute, under the categorical approach Lamone’s prior municipal convictions can be used to enhance her sentence. Alternatively, if alternative elements are assumed in the definition of “vehicle” in the Wichita ordinance, then the ordinance is divisible, and Lamone’s sentencing judge was permitted to examine the municipal court citations upon which her prior convictions were based.

STATUTES: K.S.A. 2016 Supp. 8-1485, -1567, -1567(a), -1567(i); K.S.A. 2013 Supp. 8-1567(a)(2), -1567(a)(3), -1567(b)(1)(D), -1567(i); K.S.A. 8-1567

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