Print Page   |   Contact Us   |   Sign In   |   Register
KBA Search
Appellate Court Digests
Blog Home All Blogs
Search all posts for:   

 

View all (31) posts »
 

August 11, 2017 Digests

Posted By Administration, Monday, August 14, 2017

Kansas Supreme Court

 

Criminal

 

constitutional law—criminal procedure—sentences—statutes
state v. burdick
riley district court—affirmed; court of appeals—affirmed
no. 110472 - august 11, 2017

FACTS: Burdick was convicted of a drug offense, and was required by Kansas Offender Registration Act (KORA) to register with sheriff within ten days of residing in the county. KORA was later amended to require registration updates within three business days. Burdick was subsequently arrested and charged with failing to timely update his registration. Burdick sought dismissal of the charge, arguing application of the amended registration period violated the Ex Post Facto Clause. District court denied the motion. Court of Appeals affirmed in unpublished opinion, holding the registration requirement was not punishment. Review granted.

ISSUE: Kansas Offender Registration Act - Ex Post Facto Claim

HELD: As set forth in State v. Meredith, 306 Kan. __ (2017), non-sex offenders seeking to avoid retroactive application of KORA provisions must, in order to satisfy the “effects” prong of test in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), produce a record that distinguishes - by the “clearest proof”- KORA’s effect on those classes of offenders from the Act’s effects on sex offenders as a class. Record in Burdick’s case is not sufficiently developed to satisfy the “clearest proof” standard.”  

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with votes in State v. Petersen-Beard, 304 Kan. 192 (2016), State v. Reed, 306 Kan. __ (2017), and Meredith, finds the current KORA registration requirement is punishment in effect if not intent, whether claim is raised under Ex Post Facto Clause or Eighth Amendment. And it is no less so for a drug offender than a sex offender.

STATUTES: K.S.A. 2012 Supp. 22-4905(g); K.S.A. 2008 Supp. 22-4902(a)(11)(C); K.S.A. 22-4901 et seq., -4904(a)(2)

 

constitutional law—criminal procedure—sentences—statutes
state v. donaldson
sedgwick district court—affirmed—court of appeals—affirmed
no. 109,671—august 11, 2017

FACTS: On appeal Donaldson alleges in part his lifetime offender registration under Kansas Offender Registration Act (KORA) violates the Ex Post Facto Clause because at the time he committed the crimes, he would have been subject to registration only if the victim of the aggravated kidnapping charge was under the age of 18. Court of Appeals affirmed in unpublished opinion. Review granted.

ISSUE: Kansas Offender Registration Act - Ex Post Facto Claim

HELD: As set forth in State v. Meredith, 306 Kan. __ (2017), non-sex offenders seeking to avoid retroactive application of KORA provisions must, in order to satisfy “effects” prong of test in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), produce a record that distinguishes - by the “clearest proof”- KORA’s effect on those classes of offenders from the Act’s effects on sex offenders as a class. Record in Donaldson’s case is not sufficiently developed to satisfy the “clearest proof” standard.”

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with votes in State v. Petersen-Beard, 304 Kan. 192 (2016), State v. Reed, 306 Kan. __ (2017), and Meredith, finds the current KORA registration requirement is punishment in effect if not intent, whether claim is raised under Ex Post Facto Clause or Eighth Amendment. And it is no less so for a drug offender than a sex offender.

STATUTES: K.S.A. 2011 Supp. 22-4906(d)(10); K.S.A. 2010 Supp. 22-4902(a)(4)(B), -4906(a); K.S.A. 22-4901 et seq.

 

constitutional law—criminal procedure—sentences—statutes
state v. hill
crawford district court—affirmed; court of appeals—affirmed
no. 111,226—august 11, 2017

FACTS: Hill was convicted of two drug offenses. District court required her to register as a violent offender, pursuant to the Kansas Offender Registration Act (KORA) as amended prior to Hill’s sentencing. On appeal Hill claimed the retroactive application of the registration requirement violated the Ex Post Facto Clause. Court of Appeals affirmed in an unpublished opinion. Review granted.

ISSUE: Kansas Offender Registration Act—Ex Post Facto Claim

HELD: As set forth in State v. Meredith,  306 Kan. __ (2017), non-sex offenders seeking to avoid retroactive application of KORA provisions must, in order to satisfy “effects” prong of test in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), produce a record that distinguishes - by the “clearest proof”- KORA’s effect on those classes of offenders from the Act’s effects on sex offenders as a class. Record in Hill’s case is not sufficiently developed to satisfy the “clearest proof” standard.”

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with votes in State v. Petersen-Beard, 304 Kan. 192 (2016), State v. Reed, 306 Kan. __ (2017), and Meredith, finds the current KORA registration requirement is punishment in effect if not intent, whether claim is raised under Ex Post Facto Clause or Eighth Amendment. And it is no less so for a drug offender than a sex offender.

STATUTES: K.S.A. 2012 Supp. 22-4902(f)(2); K.S.A. 2009 Supp. 22-4902(a)(11)(B)

 

constitutional law—criminal procedure—sentences—statutes
state v. hirschberg
shawnee district court—
affirmed; court of appeals—affirmed
no. 109,689—august 11, 2017

FACTS: Hirschberg was convicted of a drug offense and was required under the Kansas Offender Registration Act (KORA) to register as a violent offender for 15 years instead of 10 years, pursuant to KORA as amended prior to his sentencing. On appeal Hirschberg claimed the retroactive application of the longer registration requirement violated the Ex Post Facto Clause. Court of Appeals affirmed in an unpublished opinion. Review granted.

ISSUE: Kansas Offender Registration Act - Ex Post Facto Claim

HELD: As set forth in State v. Meredith,  306 Kan. __ (2017), non-sex offenders seeking to avoid retroactive application of KORA provisions must, in order to satisfy “effects” prong of test in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), produce a record that distinguishes - by the “clearest proof”- KORA’s effect on those classes of offenders from the Act’s effects on sex offenders as a class. Record in Hirschberg’s case is not sufficiently developed to satisfy the “clearest proof” standard.”

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with votes in State v. Petersen-Beard, 304 Kan. 192 (2016), State v. Reed, 306 Kan. __ (2017), and Meredith, finds the current KORA registration requirement is punishment in effect if not intent, whether claim is raised under Ex Post Facto Clause or Eighth Amendment. And it is no less so for a drug offender than a sex offender.

STATUTES: K.S.A. 2011 Supp. 22-4906(a)(1)(O); K.S.A. 22-4901 et seq.

 

constitutional law—criminal procedure—sentences—statutes
state v. huey
shawnee district court—affirmed as to issues subject to review
court of appeals—affirmed as to issues subject to review
no. 109,690—august 11, 2017

FACTS: Huey was convicted of robbery and aggravated burglary, and was ordered to register as a violent offender under Kansas Offender Registration Act (KORA) after district judge found Huey used a deadly weapon to commit those offenses. On appeal, Huey claimed for first time that the KORA registration requirement violated Booker/Apprendi because jury did not find he had used a deadly weapon.

ISSUES: Kansas Offender Registration Act—Apprendi

HELD: State v. Petersen-Beard, 304 Kan. 192, cert. denied (2016), held that KORA registration for sex offenders was not cruel and unusual punishment under Eighth Amendment.  This overturned caselaw that supported State v. Charles, 304 Kan. 158 (2016), thus Charles is not viable authority for Huey or other violent offenders as to whether KORA is punitive. That issue may be resolved only upon an evidentiary record supplying the clearest proof to overcome the legislature’s intent that KORA be a regulatory scheme that is civil and nonpunitive. Huey did not establish such a record in this case. District court’s offender registration order is affirmed.

DISSENT (Beier, J., joined by Rose and Johnson, JJ.): Would not explicitly or implicitly overrule Charles. Huey met any burden of proof he bears on whether the imposition of the registration requirement qualifies as punishment. Under Apprendi and its progeny, Huey’s registration requirement should be vacated because he cannot be subjected to that requirement on the basis of a judge-made fact finding that he used a deadly weapon.

STATUTES: K.S.A. 20-3018(b), 22-4901 et seq., 60-2101(b)

 

constitutional law—criminal procedure—sentences—statutes
state v. kilpatrick
reno district court—affirmed; court of appeals—affirmed
no. 111,055—August 11, 2017

FACTS: Kilpatrick filed motion to correct an illegal sentence, arguing the retroactive imposition of registration requirements under the Kansas Offender Registration Requirements (KORA) violated the Ex Post Facto Clause. District court denied the motion, agreeing with State’s arguments that KORA’s provisions are not punishment, and that Kilpatrick waived jurisdictional attacks on his sentence by not raising them in his case. Court of Appeals affirmed in unpublished opinion. Petition for review of the registration requirement granted.

ISSUE: Motion to Correct Illegal Sentence - Ex Post Facto Claim

HELD: District court's decision is affirmed for a different reason. Following State v. Wood, 306 Kan. 283 (2017), and State v. Reese, 306 Kan. 279 (2017), district court had jurisdiction to hear and consider Kilpatrick’s motion to correct an illegal sentence, but his ex post facto claim has no merit because definition of an illegal sentence does not include a claim the sentence violates a constitutional provision.   

STATUTES: K.S.A. 2013 Supp. 22-3716(c)(9); K.S.A. 22-4902; K.S.A. 22-4901 et seq., -4902(a)(11)(B)

 

constitutional lawcriminal law—criminal procedure—evidence—
instructions—juries—speedy trial—statutes
state v. robinson
wyandotte district court—affirmed; court of appeals—affirmed
no. 110,040—august 11, 2017

FACTS: A jury convicted Robinson of aggravated burglary, aggravated battery, and criminal damage to property. Robinson appealed, claiming in part: (1)  a violation of his statutory rights to a speedy trial because continuance granted to State for a material witness was not supported by a sufficient showing of unavailability; (2) insufficient evidence supported his aggravated burglary conviction because he was a cohabitant;  (3) the jury instruction on “bodily harm” was erroneous because it directed jury that certain circumstances are bodily harm as a matter of law, and thereby precluded jury from finding that element beyond a reasonable doubt; (4) district court erred in refusing to redact victim’s statement to a doctor; (5) district court erred in admitting K.S.A. 60-455 evidence without providing a limiting instruction; (6) the written format of district court’s answer to jury’s deliberation questions violated Robinson’s rights to be present, to have a public trial, and to  have an impartial judge; and  (7) cumulative error denied him a fair trial. Court of Appeals affirmed in unpublished opinion. Review granted.  

ISSUES: (1) Speedy Trial, (2) Sufficiency of the Evidence - Aggravated Battery, (3) “Bodily Harm” Instruction, (4) Motion to Redact, (5) Limiting Instruction, (6) Written Response to Jury’s Questions, (7) Cumulative Error

HELD: Robinson’s statutory speedy trial rights were not violated. While a slim record substantiates State’s claim that the witness was unavailable, and better practice would be to present evidence in support of a request for such a continuance, Robinson’s claim in this case is unpreserved. Sufficient evidence supported Robinson’s conviction of aggravated burglary. Under conflicting facts viewed in light most favorable to the State, a reasonable juror could conclude that Robinson lacked authority to enter the home. Robinson’s constitutional challenge to the aggravated battery statute, raised for first time on appeal, is not reviewed. 

District court’s instruction on “bodily harm” was legally and factually appropriate. Under facts in this case, Robison’s objection to the doctor’s testimony was not properly preserved for appellate review. District court failed to provide a limiting instruction regarding the admission of K.S.A. 60-455 evidence, but this was harmless error under facts in the case. Robinson abandoned his arguments regarding rights to a public trial and an impartial judge. Even assuming a violation of Robinson’s right to be present, the error was harmless in this case. Robinson’s cumulative error claim fails because evidence against him was strong, and the two assumed errors in this case were harmless.  

STATUTES: K.S.A. 2016 Supp 22-3402(a), -3414(3); K.S.A. 21-3414(a)(1)(A)-(B), 22-3402, -3402(3), -3402(5), -3402(5)(c), 60-402, -455

 

constitutional law—criminal procedure—
sentences—statutes
state v. wingo
crawford district court—affirmed; court of appeals—affirmed
no. 108,275—august 11, 2017

FACTS: Wingo convicted of second-degree intentional murder and was required under the Kansas Offender Registration Act (KORA) to register as a violent offender for 15 years instead of 10 years, pursuant to KORA as amended prior to her sentencing. On appeal Wingo claimed the retroactive application of the longer registration requirement violated the Ex Post Facto Clause. Court of Appeals affirmed in an unpublished opinion. Review granted.  

ISSUE: Kansas Offender Registration Act - Ex Post Facto Claim

HELD: As set forth in State v. Meredith,  306 Kan. __ (2017), non-sex offenders seeking to avoid retroactive application of KORA provisions must, in order to satisfy “effects” prong of test in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), produce a record that distinguishes - by the “clearest proof”- KORA’s effect on those classes of offenders from the Act’s effects on sex offenders as a class. Record in Wingo’s case is not sufficiently developed to satisfy the “clearest proof” standard.”

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with votes in State v. Petersen-Beard, 304 Kan. 192 (2016), State v. Reed, 306 Kan. __ (2017), and Meredith, finds the current KORA registration requirement is punishment in effect if not intent, whether claim is raised under Ex Post Facto Clause or Eighth Amendment. And it is no less so for a drug offender than a sex offender.

STATUTES: K.S.A. 2011 Supp. 22-4906(a)(1)(G); K.S.A. 2009 Supp. 22-4902(d)(3); K.S.A. 22-4901 et seq., -4906(a)

 

 

Kansas Court of Appeals –

 

Civil

 

ADMINISTRATIVE LAW—JURISDICTION
WALL V. DEPARTMENT OF REVENUE
RUSSELL DISTRICT COURT—AFFIRMED
NO. 116,779—AUGUST 11, 2017

FACTS: Wall was arrested for driving under the influence of alcohol. The arresting officer completed a DC-27 form showing that Wall failed a breath test. But the actual test results show that no breath sample was given. The officer also failed to mark several boxes on the form that must be completed in the event that a test subject fails a breath test. Wall appealed, arguing lack of reasonable grounds to request the test and that his due process rights were violated. After the suspension of Wall's driver's license was upheld, he filed a petition for judicial review. At that proceeding Wall argued for the first time that the suspension should be dismissed because of the irregularities with the DC-27 form. The district court granted Wall's motion for summary judgment and the Department of Revenue appealed.

ISSUE: Jurisdiction to suspend Wall's driver's license

HELD: Because subject matter jurisdiction may be raised at any time there was no error in considering Wall's argument even though he failed to raise it at the administrative proceeding. And the Department of Revenue had an independent, statutory duty to verify the validity of the DC-27 form. Because the form was not properly completed the Department of Revenue lacked subject matter jurisdiction to suspend Wall's license and the district court correctly overturned the suspension.

STATUTE: K.S.A. 2016 Supp. 8-1002(a), -1002(a)(1), -1002

Tags:  Crawford  Reno  Riley  Russell  Sedgwick  Shawnee 

Share |
Permalink | Comments (0)
 
more Calendar

1/25/2018
Lunch & Learn: Use of Electronic Evidence in Litigation

Vendor Marketplace

Featured Jobs
Membership Software Powered by YourMembership  ::  Legal