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January 12, 2018 Digests

Posted By Administration, Tuesday, January 16, 2018

Kansas Supreme Court

Attorney Discipline

 

ONE YEAR SUSPENSION
IN THE MATTER OF DANIEL HART PHILLIPS
NO. 118,210—JANUARY 12, 2018

FACTS: A hearing panel determined that Phillips violated KRPC 8.4(g) (engaging in conduct adversely reflecting on a lawyer's fitness to practice law). The issue arose after Phillips made inappropriate sexual remarks to a prospective client. During the investigation, Phillips admitted to making the comments, apologized, and blamed his prior history of substance abuse as a precipitating factor.

HEARING PANEL: At the hearing, the panel concluded that Phillips was not fully honest when answering questions from the disciplinary administrator's office. After considering the other aggravating and mitigating factors, and the Disciplinary Administrator's conditional recommendation of probation, the hearing panel recommended that Phillips be suspended for one year with a two-year term of probation starting after 30 days.

HELD: The hearing panel's findings were deemed admitted. At oral argument, the Deputy Disciplinary Administrator introduced evidence to show that Phillips was not in compliance with his proposed probation plan. Because of this evidence, the court ruled that probation was not an appropriate disposition. The court suspended Phillips for one year and refused probation.

 

criminal

 

criminal law—fraud and deceit—statutes
state v. ward
johnson district court—reversed; court of appeals—affirmed
111,640—january 12, 2018

FACTS:  As a loan to All Construction Guaranteed Roofing and Restoration (ACG), a company formed and operated by Ward and Rhodes, Sweeney wrote a Bank of America check to ACG.  Ward added his name as a payee on the check, and deposited it in his personal account at First National Bank.  State charged Ward with theft by deception from ACG or Bank of America, and with making false information.  On appeal, Wade claimed insufficient evidence supported the theft by deception conviction, and the State proved the crime of forgery rather than making false information.  Court of Appeals agreed and reversed both convictions.  State v. Ward, 52 Kan.App.2d 663 (2016).  State’s petition for review granted.

ISSUES:  (1) Theft by deception, (2) making false information

HELD:  On facts in this case, insufficient evidence supported Ward’s conviction of theft by deception.  No proof that either of the two possible victims named in the charging document and jury instruction was deceived by Ward.  Departing from panel’s analysis, Supreme Court finds the theft by deception from Bank of America fails because First National Bank, rather than Bank of America, was deceived by Ward’s actions.

      Making false information and forgery statutes are interpreted, with extensive discussion of their statutory history.  A defendant’s conviction for making false information can be affirmed regardless of whether the criminal conduct pertains to his or her own business or affairs.  Any earlier statement in or impression from State v. Rios, 246 Kan. 517 (1990), and Sate v. Gotti, 273 Kan. 459 (2002), to the contrary is explicitly rejected.  Under facts in this case, evidence that Ward altered the payee line of a check was insufficient to prove he made false information.

STATUTES:  K.S.A. 2016 Supp. 21-5801(a)(1), -5801(a)(2), -5811, -5823, -5823(a), -5824, -5824(a), 84-3-103(5); K.S.A. 2012 Supp. 21-5111(e), -5111(s); K.S.A. 21-5801, -5801(a)(2), -5824, -6804, -6807; K.S.A. 1996 Supp. 21-3711; K.S.A. 21-3711 (Ensley 1988); K.S.A. 1970 Supp. 21-3710, -3711; G.S. 1923, 21-601 through 637

 

Kansas Court of Appeals

 

Civil

 

ACQUIESCENCE—DEBTORS—JUDGMENTS—MOOTNESS
SECURITY BANK OF KANSAS CITY V. TRIPWIRE OPERATIONS GROUP, LLC
WYANDOTTE DISTRICT COURT—APPEAL DISMISSED
NO. 117,534—JANUARY 12, 2018

FACTS: Security Bank of Kansas City had a guaranty contract with Anthony Nichols to guarantee the debts of Tripwire Operations Group, LLC. When Tripwire defaulted on a credit card, the Bank sued Tripwire, Nichols, and Ryan Morris. After the district court granted summary judgment to the Bank, Nichols appealed. After the appeal was docketed but before it could be heard by the panel, the Bank moved to involuntarily dismiss this appeal on grounds of mootness. The Bank claimed that Nichols acquiesced in the judgment because the Bank exercised its right of setoff and took money out of Nichols' bank account to cover the judgment.

ISSUES: (1) Availability of setoff as remedy; (2) mootness; (3) acquiescence

HELD: Setoff is a statutory self-help remedy available to banks. There is no requirement that any judicial action occur before setoff is exercised. And the guaranty contract signed by Nichols included a setoff provision. In the absence of a stay of the judgment against Nichols, the Bank exercised its right of setoff and satisfied its claim against Nichols. Once the judgment was satisfied, the Bank filed a satisfaction of judgment. The satisfaction of judgment concluded this litigation, rendering this appeal moot. Because the setoff was not a voluntary relinquishment by Nichols, the doctrine of acquiescence did not apply.

STATUTES: K.S.A. 2016 Supp. 60-262(d), -2401; K.S.A. 9-1206, 60-721

 

Criminal

 

constitutional law—criminal law—evidence—fourth amendment—search and seizure
state v. bannon
sedgwick district court—affirmed
112,212—january 12, 2018

FACTS:  Acting on verified information, officers located Bannon in student apartment lobby and found a concealed hand gun during a pat-down search.  Bannon filed motion to suppress this evidence, arguing it was taken during a warrantless search of his person within the curtilage of his apartment, or alternatively, the officers lacked reasonable suspicion or probable cause to seize and search him.  District court denied the motion, and jury convicted Bannon of criminal carrying of a weapon.  On appeal Bannon claimed he was in lawful possession of the firearm because the front lobby to his apartment building qualified as part of his abode or curtilage.  He also claimed the district court erred in not granting his motion to suppress, arguing the evidence was discovered as a result of an improper pat-down search.  In unpublished opinion, Court of Appeals found the motion to suppress should have been granted because a warrantless pat-down search occurred without evidence a law enforcement officer had an actual, subjective belief Bannon was armed and presently dangerous, or that officers were reasonably concerned for their safety or safety of others.  State’s petition for review granted.  Supreme Court reversed and remanded, adopting and applying a hybrid approach to the second step of a Terry stop:  testimony as to officer’s subjective belief or fear is a factor for consideration in the objective analysis of the totality of the circumstances, but absence of such testimony does not invalidate the reasonableness of a frisk.  State v. Bannon, 306 Kan. 886 (2017).

ISSUES:  (1) Curtilage or abode, (2) motion to suppress

HELD:  Issue of first impression in Kansas as to whether the lobby of an apartment building is considered the tenant’s land or abode under K.S.A. 2012 Supp. 21-6302(a)(4).   Under analysis in recent unpublished Kansas Court of Appeals case and cases in other jurisdictions, the student apartment lobby in this case was not an extension of Bannon’s apartment or abode.  More than nonexclusive permissive use with others is needed.  Also, at time of the stop and frisk, Bannon was sitting in a chair reading.  He was not using the lobby as an extension of his land through an ingress-egress easement, and had no right under an easement to possess a firearm in the front lobby.

     District court’s denial of Bannon’s motion to suppress did not violate the Fourth Amendment.  The stop of Bannon in the lobby was sufficiently public for officers to initiate the stop.  Considering the totality of the circumstances, and applying the hybrid test adopted by the Supreme Court, it was objectively reasonable for the officers to believe Bannon had a gun and to perform a pat-down search for their safety and the safety of others.     

STATUTES:  K.S.A. 2012 Supp. 21-6302, -6302(a)(4)

 

criminal  

 

criminal law—evidence—statutes
state v. brazzle
riley district court—affirmed
116,649—january 12, 2017

FACTS:  Brazzle was convicted of drug charges involving methamphetamine and possession of oxycodone based on gray pills identified by an officer using www.drugs.com.  District court allowed State to present evidence that Brazzle was involved in undercover methamphetamine transactions a week before his arrest in this case. On appeal, Brazzle claimed the admission of this K.S.A. 60-455 evidence was error because he never claimed his possession of methamphetamine was innocent, and the potential prejudice outweighed its probative value. He next challenged the jury instruction on the elements for possession of oxycodone. Third, he claimed insufficient evidence supported the oxycodone conviction because the State failed to present evidence the pill was tested, and failed to present any evidence that Brazzle did not have a prescription for that drug.   

ISSUES:  (1) Admission of evidence, (2) jury Instruction, (3) sufficiency of the evidence - possession of a controlled substance, (4) proof of prescription

HELD:  District court did not abuse its discretion by admitting the evidence under K.S.A. 60-455.  By claiming the State could not prove the items discovered in the stopped vehicle belonged to him, Brazzle essentially raised a defense of innocence, and the evidence was highly probative of his intent to distribute the methamphetamine he possessed rather than to possess it for personal use.

     Brazzle invited error by advocating the version of the instruction given to the jury.

     Issue of first impression in Kansas. When sufficiency of the evidence for possession of a controlled substance is challenged, uncontroverted testimony by a witness identifying the substance through consultation with www.drugs.com is sufficient to support jury’s conclusion beyond a reasonable doubt that the substance was that identified by the witness.  Here, this evidence was admitted without objection and without any evidence to the contrary.  The officer’s testimony was sufficient for jury to reasonably conclude the gray pills were oxycodone hydrochloride.

     Relevant statutes are interpreted. Lawful possession of a controlled substance by prescription is an affirmative defense to the charge of possession of a controlled substance under K.S.A. 2016 Supp. 21-5706.  A person charged with unlawful possession of a controlled substance must bring forward a claim of legal authorization to possess the controlled substance at issue. 

CONCURRENCE and DISSENT (Atcheson, J.): Dissents from majority’s finding that sufficient evidence supported the possession of oxycodone conviction.  Here the jurors had to speculate on the facts and basic details about the officer’s internet-based identification of the seized pills as oxycodone, and cases cited by the majority are inapposite to the majority’s conclusion.

STATUTES:  K.S.A. 2016 Supp. 21-5706, 60-455, -455(b), 65-4107(b)(1)(N), -4107(b)(2), -4116(a), -4116(b), -4116(c), -4116(c)(3), -4123, -4123(a), -4123(b); K.S.A. 60-455, 65-4101 et seq.

 

criminal  

 

constitutional law—due process—criminal law—criminal procedure—statutes
state v. owens
wyandotte district court—reversed and vacated
116,979—january 12, 2018

FACTS:  Owens was convicted in 2003 of aggravated indecent liberties with a child, and was required to register with sheriff four times a year. He did so in 2014, but was unable to pay the $20 fee for each registration. Each failure to pay was itself a crime absent compliance with K.S.A 2014 Supp. 22-4905(k)(3) which provides waiver of the fee payment only if the offender obtained a judicial finding of indigency prior to the required reporting. Owen challenged the constitutionality of that statute, as applied to him, as not providing procedural due process.

ISSUE:  Due Process

HELD:  Finding a defendant criminally liable for failure to pay the $20 registration fee under the Kansas Offender Registration Act violates the defendant’s procedural-due-process rights as applied in this case because Owens had no reasonably available path to get a court finding of indigency.  Owens received no notice of a procedure he could use to get a court to determine he was unable to pay the fee before his registration dates, and Legislature provided no clear guidance about how one might do so. 

STATUTE:  K.S.A. 2014 Supp. 21-5203(f), 22-4903, -4903(c)(3), -4905, -4905(k)(3)

 

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January 5, 2018 Digests

Posted By Administration, Monday, January 8, 2018

Kansas Supreme Court

CRIMINAL

constitutional law—crimes and punishment—sentencing—statutes
state v. kinder
wyandotte district court—reversed; court of appeals—reversed
NO. 112,844—january 5, 2018

FACTS: Kinder entered no contest plea to one count of mistreatment of a dependent adult. District court imposed a presumptive 9-month sentence with 18-months’ probation, and awarded credit for 360 days of pretrial confinement. Kinder appealed, arguing probation was improper and violated Double Jeopardy Clause because he had already served his sentence of confinement. In unpublished opinion, Court of Appeals dismissed the appeal without addressing whether sentencing probation was error under Kansas Sentencing Guidelines Act (KSGA). Instead, the panel held there was no jurisdiction to review a presumptive sentence. Kinder’s petition for review granted.

ISSUE: KSGA Sentence of Probation

HELD: Panel’s dismissal of the appeal is reversed. Review is appropriate because Kinder is not actually challenging a presumptive sentence. District court erred in imposing probation. “Probation,” as defined by KSGA, cannot be imposed after the underlying full sentence of confinement has been served.

STATUTES:  K.S.A. 2016 Supp. 21-6603(e), -6603(g), -6615, -6803(q), -6804, -6804(a)(3), -6820(c)(1), 22-3716, -3716(c)(1)(B)-(E), -3716(c)(7), -3716(c)(11) -3717(d)(1)(C); K.S.A. 20-3018(b)

Kansas Court of Appeals

CIVIL

MOOTNESS—PROTECTION FROM STALKING
KERRY G. V. STACY C.
HARVEY DISTRICT COURT—REVERSED AND VACATED
NO. 117,070—JANUARY 5, 2018

FACTS: Kerry and Stacy were involved in a romantic relationship. After issues arose, Kerry reported Stacy to the police and filed a petition for a protection from abuse order against him. The district court entered a final PFA order against Stacy that was to be in place until October 13, 2016. Prior to the expiration of that PFA, Kerry filed a motion to extend the PFA for an additional year. The matter was never set for hearing, although both parties and their attorneys made appearances before the district court. But Stacy did not learn about the extended PFA until an order was served on him. He moved to dismiss the extension, claiming that the lack of notice and hearing violated his due process rights. The district court denied that motion, claiming that the district court could extend the PFA without notice or hearing. Stacy appealed.

ISSUES: (1) Mootness; (2) due process considerations in extending the PFA; (3) constitutionality of K.S.A. 2016 Supp. 60-3107(e)(1)

HELD: The PFA has already expired, meaning that Stacy cannot receive relief from the appellate court. But this issue is capable of repetition, and the issue is one of public importance. Because of that, the appeal is not moot. It is undisputed that the motion to extend the PFA was not served on Stacy or his attorney. The content of the motion did not provide any clue as to why Kerry believed extension of the PFA was necessary. Because the PFA was entered without any notice to Stacy it violated his due process rights. That order was vacated. K.S.A. 2016 Supp. 60-3107(e)(1) was not void for vagueness. The district court's grant of the PFA extension without exercising any discretion at all was an abuse.

STATUTES: K.S.A. 2016 Supp. 59-3073(a)(7), 60-205(a)(1)(D), -205(b)(1), -205(b)(2)(C), -206(b), -206(c), -207(b), -3104(a), -3104(d), -3105(a), -31a05(b), -3106(a), -3106(b), -3107(e); K.S.A. 53-601

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December 22 and 29, 2017 Digests

Posted By Administration, Tuesday, January 2, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF LUKE B. HARKINS
No. 12,264—DECEMBER 15, 2017

FACTS: In a letter dated December 6, 2017, Luke B. Harkins, an attorney licensed to practice law in Kansas, voluntarily surrendered his license. At the time of surrender, a complaint was pending against Harkins which alleged multiple violations of the Kansas Rules of Professional Conduct.

HELD: The court found that Harkins' surrender of his license should be accepted, and Harkins was disbarred.

ORDER OF DISBARMENT
IN THE MATTER OF RICKEY EDWARD HODGE, JR.
No. 116,542—DECEMBER 29, 2017

FACTS: A hearing panel found that Hodge violated KRPC 1.7 (concurrent conflict of interest), 1.8(a) (conflict of interest arising from entering business transaction with client), 1.8(b) (using information to the client's disadvantage), 4.2 (communication with person represented by counsel), and 8.4(g) (engaging in conduct adversely reflecting on a lawyer's fitness to practice). The violations arose after Hodge became embroiled in a business transaction involving clients.

HEARING PANEL: The panel found that Hodge continued to provide legal advice to his client even after he ostensibly withdrew from representation and even though Hodge testified that he was operating as a business person and not as an attorney. And while he was acting as an attorney, Hodge used knowledge he gained in his representative capacity to attempt to enrich his solely-owned business. After finding that Hodge behaved in a deceptive manner and refused to acknowledge his wrongdoing, the hearing panel agreed with the disciplinary administrator and recommended that Hodge be disbarred.

HELD: Hodge disputed many of the findings of fact from the hearing panel. After reviewing the parties' arguments, the court agreed with the hearing panel that Hodge was acting as an attorney during the period in question. Hodge's simultaneous representation violated the rules of professional conduct. After affirming the hearing panel's findings regarding Hodge's rules violations, the court considered that Hodge's behavior was motivated by self-dealing. The court found that any mitigating factors failed to outweigh the aggravating factors and imposed discipline of disbarment.

CIVIL

TAXATION
IN THE MATTER OF THE APPEAL OF BHCMC
BOARD OF TAX APPEALS—COURT OF APPEALS IS AFFIRMED—BOARD OF TAX APPEALS IS AFFIRMED
NO. 112,911—DECEMBER 29, 2017

FACTS: The State billed Boot Hill Casino & Resort for compensating use tax for tax years 2009 through 2011. The tax was based on the sale price for electronic gaming machines (EGM) that were on the casino floor at the casino in Dodge City. Under Kansas statutes, BHCMC owns all ancillary facilities at the resortamenities such as the restaurant. The State, through the Kansas Lottery, owns all of the lottery gaming facilities and operations. BHCMC operates all of the resort through a management agreement. This arrangement is required by both statute and the Kansas Constitution. Because the Kansas Lottery, and not BHCMC, is the actual owner of the EGM that were subject to taxation, BHCMC filed a motion for refund with the Kansas Department of Revenue. That request was denied, and BHCMC appealed to BOTA, which determined that BHCMC was not required to pay the use tax because it did not make use "incident to ownership" of the EGM. That decision was affirmed by the Court of Appeals, and the Supreme Court accepted the State's petition for review.

ISSUE: Whether BHCMC is subject to compensating use tax

HELD: Compensating use tax is tied to the use, storage, or consumption of property. For a person to exercise a right or power over property incident to the ownership of that property, the person exercising that right or power must own the property. In this case, the statutory language is ambiguous. Any statutory ambiguity must be resolved in favor of the taxpayer. Under the management agreement, BHCMC does not own the EGM and does not use them within the meaning of the statute. And because BHCMC does not own the EGM, it cannot be made to pay a compensating use tax.

STATUTES: Kansas Constitution, article 15, § 3; K.S.A. 2016 Supp. 74-8733, 77-621(c), 79-3702(c), -3703; K.S.A. 2015 Supp. 74-2426(c); K.S.A. 2007 Supp. 74-8734(h)(17); K.S.A. 79-3703a

 

Kansas Court of Appeals

CIVIL

EVIDENCE—IMMUNITY—PRIVILEGE—PUBLIC HEALTH
ROCKHILL PAIN SPECIALISTS V. HANCOCK
JOHNSON DISTRICT COURT—AFFIRMED
No. 115,620—DECEMBER 22, 2017

FACTS: Drs. Kloster and Hancock are physicians specializing in pain management. They worked closely together in their practice, Rockhill Pain Specialists, and also had a close personal relationship. For reasons that are unclear, both the business and personal relationships deteriorated beginning in 2011. Around this time, Hancock developed concerns over the quality of Kloster's patient care. Without telling Kloster, Hancock hired two outside physicians to review certain aspects of Kloster's patient care. These physicians were concerned with what they found and filed complaints with the Kansas Board of Healing Arts and the Missouri Board of Registration for the Healing Arts. Upon Hancock's urging, the reviewing physicians also contacted the attorneys general for Kansas and Missouri and the Drug Enforcement Administration. Hancock also called the local police department. Amid a dissolution of the practice, Kloster filed suit against Hancock for, among other things, fraud, breach of fiduciary duty, and defamation. Hancock responded by taking his concerns about Kloster to the press. Ultimately, Kloster was cleared by all licensing agencies. And a jury found in Kloster's favor on all charges. Hancock appealed.

ISSUES: (1) Admissibility of administrative records; (2) error in denying discovery request; (3) proof of damages; (4) applicability of statutory cap; (5) delineation between Kloster and Rockhill

HELD: K.S.A. 65-4925 does not prohibit testimony about the ultimate outcome of an administrative investigation. There is no public policy prohibition on this testimony. And Hancock's testimony regarding the administrative actions rendered harmless any error in admission of evidence. The district court erred by prohibiting Hancock from discovering Kloster's responses to the peer review committees at the Board of Healing Arts. Kloster's responses were not privileged and, even if they were, he did not own the privilege. But the error in excluding this evidence from discovery was harmless. Kloster's damages were proved by sufficient evidence of actual damages. Defamation is not a personal injury action, so the statutory $250,000 cap does not apply. The damages awarded to Kloster personally were supported by the evidence.

STATUTES: K.S.A. 2016 Supp. 60-226(c)(1)(D), 261, -19a02, 65-4915, -4915(b); K.S.A. 60-401(b), -407, -407(f), -409, -412(c), 65-2839a, -2898, -2898(a), -4923, -4924, -4925, -4925(a)(3)

EVIDENCE—PROBABLE CAUSE
FISCHER V. KANSAS DEPARTMENT OF REVENUE
ELLIS DISTRICT COURT—AFFIRMED
No. 112,243—DECEMBER 29, 2017

FACTS: After a concerned neighbor called the police, law enforcement made contact with Fischer, who was sitting in a parked car. The officer could smell alcohol and noticed that Fischer, who was under age 21, had bloodshot eyes. Fischer consented to a preliminary breath test which showed a breath alcohol content over .02. An administrative law judge ruled that the officer had reasonable grounds to request the PBT and suspended Fischer's driver's license. That ruling was upheld by the district court, and Fischer appealed.

ISSUES: (1) Constitutionality of only requiring reasonable suspicion; (2) constitutionality of coercing a driver's consent to PBT

HELD: Because Fischer was under age 21, the statute required the officer to certify that he had reasonable grounds to believe that Fischer was operating a vehicle while having alcohol in his system. There was probable cause that Fischer was under the influence which means that Fischer's first constitutional argumentabout the reasonableness of allowing only reasonable suspicionneed not be addressed. Any error in requiring the PBT was harmless because this is a civil administrative proceeding, not a criminal action, and the exclusionary rule did not apply.

STATUTE: K.S.A. 2016 Supp. 8-1012, -1012(a), -1012(b), -1567a(a), -1567a(d)(1)(A)

TAXATION
IN THE MATTER OF THE EQUALIZATION APPEAL OF TARGET CORPORATION
BOARD OF TAX APPEALS—AFFIRMED
No. 116,607—DECEMBER 29, 2017

FACTS: The properties at issue in this case are four Target stores located in Sedgwick County. All four stores sought equalization appeals for tax year 2015. During that appeal, the county provided testimony from a mass appraisal expert. Her testimony regarding valuation was predicated on computer models and 2013 settlement values. Target provided testimony from an expert appraiser who inspected the buildings and researched comparable land and sales. After finding Target's evidence more compelling than the county's, BOTA decreased the buildings' valuations and the county appealed.

ISSUE: The validity of BOTA's decision

HELD: Because the property at issue is commercial property, the county had the burden of production and persuasion before BOTA. The county's valuations were not based on actual views and inspections of the buildings. Moreover, the carryover data relied on by the county has been deemed unconstitutional, a decision that had been made at the time of the BOTA hearing. Because she did not personally appraise the subject properties, the county's expert could not offer a valid opinion of value. Conversely, Target's expert's appraisal was appropriate and complied with Kansas law. BOTA's decision was reasonable.

STATUTES: K.S.A. 2016 Supp. 74-2426(a), -2426(c), 77-603(a), -621(a), -621(c), -621(d), 79-501, -503a, -505, -506(a), -1609; K.S.A. 79-501, -1455

CRIMINAL

constiutional law—criminal procedure—fourth amendment—search and seizure
state v. hadley
sedgwick district court—affirmed
No. 115,428—December 22, 2017

FACTS: Hadley was convicted of possession of marijuana after a prior conviction. The marijuana was discovered in Hadley’s undergarment during a law enforcement search subsequent to a traffic stop. Hadley argued the warrantless search based on the odor of marijuana lacked probable cause in violation of her Fourth Amendment rights. On appeal, she claimed the district court erred in denying her motion to suppress this evidence.

ISSUE: Warrantless search based on probable cause with exigent circumstances

HELD: Court examined what constitutes probable cause when a person is searched without a warrant based, in whole or in part, on the odor of marijuana. Approach taken by other states, allowing search of a person based on odor of marijuana alone, is not adopted. State v. Fewell, 286 Kan. 370 (2008), is discussed and applied. Under totality of circumstances in this case, no error in district court’s ruling that the warrantless search of Hadley was based on probable cause with exigent circumstances.

STATUTES: K.S.A. 2013 Supp. 21-5706(b)(3), -5706(c)(2)(B); K.S.A. 8-125

constitutional law—crimes and punishment—sentencing—statutes
state v. robinson
johnson district court—reversed in part, vacated in part, remanded
No. 116,872—December 22, 2017

FACTS: Robinson was convicted in part of refusal to submit to testing in violation of K.S.A. 2016 Supp. 8-1025, and refusal to submit to a preliminary breath test (PBT) in violation of K.S.A. 2016 Supp. 8-1012. On appeal, he claimed these convictions were based on unconstitutional statutes. He also challenged the use of his prior Arizona and California DUI convictions to sentence him as a fourth or subsequent DUI offender.

ISSUES: (1) Refusal to submit to testing in violation of K.S.A. 2016 Supp. 8-1025, (2) refusal to submit to PBT in violation of K.S.A. 2016 Supp. 8-1012, (3) out-of-state DUI convictions

HELD: State concedes that Robinson’s conviction for refusal to submit to testing in violation of K.S.A. 2016 Supp. 8-1025 must be reversed pursuant to State v. Ryce, 303 Kan. 899 (2016) (Ryce I), aff’d on reh’g, 306 Kan. 682 (2017)(Ryce II). 

As issue of first impression, K.S.A. 2016 Supp. 8-1012 is unconstitutional for same reasons that K.S.A. 2016 Supp. 8-1025 was found to be unconstitutional in Ryce I and Ryce II, i.e., the statute criminalizes a person’s right to withdraw consent to a warrantless search, and the statute is not narrowly tailored to serve a compelling state interest. This conviction and sentence was reversed. Whether any evidence must be suppressed following a driver’s arrest that is based in part on the use of a PBT is not addressed.

State conceded that Robinson’s Arizona DUI convictions were based on a statute having no comparable offense in Kansas, thus cannot be used to enhance Robinson’s DUI sentence. Parties agreed that the case should be remanded for district court to determine whether the prior California DUI convictions can be used to enhance Robinson’s sentence under the Kansas DUI statute. 

STATUTES: K.S.A. 2016 Supp. 8-1001, -1001(a), -1012, -1012(a), -1012(b), -1012(c), -1012(d), -1025, 21-5102; K.S.A. 2014 Supp. 8-1025; K.S.A. 22-3504(1)

criminal procedure—jury instructions—statutes
state v. white
finney district court—reversed and remanded
No. 116,048—december 22, 2017

FACTS: Officers discovered children who were locked in a smelly unsafe room by mother when she went to bed, then released by father (White) 12-14 hours later when he woke up. White was charged with aggravated endangerment of a child. Over defense and State objections, district court instructed jury on the affirmative defense of parental discipline, citing “static force” of locking children in room to protect them from danger. White was convicted and appealed, claiming insufficient evidence supported the conviction, and claiming the parental defense instruction was error which denied him the right to control the theory of his own defense. 

ISSUES: (1) Sufficiency of the evidence, (2) jury instruction

HELD: A close call, but facts viewed in light most favorable to the State were sufficient to support the conviction.

The parental discipline instruction, which discusses use of reasonable amount of “force” upon a child was not factually appropriate where there was no evidence presented of corporal punishment and the mother locked the children in the room, nor was the instruction legally appropriate. District court’s decision to add this instruction denied White a meaningful opportunity to present his chosen theory of defense, and State failed to show that this affirmative defense instruction given over White’s objection did not affect outcome of the trial. Conviction was reversed and remanded for a new trial. 

STATUTE: K.S.A. 2016 Supp. 21-5601(b)(1)

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December 15, 2017 Digests

Posted By Administration, Monday, December 18, 2017

Kansas Supreme Court

criminal

constitutional law—criminal procedures—statutes
state v. amos
wyandotte district court—affirmed
No. 115,925—december 15, 2017

FACTS: Amos’ 1999 convictions of first-degree murder and conspiracy to commit aggravated robbery were affirmed on direct appeal. In 2015, he filed a motion to correct an illegal sentence, seeking relief under 2014 Kansas decisions and under 2013 legislation (now codified at K.S.A. 2016 Supp. 21-6620) enacted in response to Alleyne v. United States, 570 U.S. 99 (2013), to require jury findings before an enhanced mandatory minimum sentence can be imposed for first-degree murder. District court summarily denied the motion. Amos appealed, arguing for the first time that K.S.A. 2016 Supp. 21-6620(f), which makes the 2013 amendment inapplicable to sentences that were final before June 17, 2013, violates the Equal Protection Clause.

ISSUE: Motion to correct illegal sentence

HELD: A claim that a sentence is illegal because it violates the constitution cannot be brought via K.S.A. 22-3504(1). Nor can a K.S.A. 22-3504(1) motion to correct an illegal sentence serve as the procedural vehicle for attacking the constitutionality of K.S.A. 2016 Supp. 21-6620(f). Impact of 2017 amendment of K.S.A. 22-3504 is not considered in this case.

STATUTES: K.S.A. 2016 Supp. 21-6620, -6620(f); K.S.A. 22-3504(1)

criminal

constitutional law—criminal procedure—sentencing
state v. campbell
sedgwick district court—affirmed
No. 114,814—december 15, 2017

FACTS: Campbell was convicted in 1996 of first-degree murder and multiple crimes. In calculating criminal history for application of the Kansas Sentencing Guidelines Act (KSGA), district court classified several of Campbell’s out-of-state convictions as person felonies. In 2015, Campbell filed motion to correct an illegal sentence, citing State v. Murdock, 299 Kan. 312 (2014). District court summarily denied relief, refusing to apply Murdock retroactively. Murdock was later overruled by State v. Keel, 302 Kan. 560 (2015). Campbell appealed claiming: (1) his sentence was illegal under Murdock; (2) application of Keel to Campbell’s motion violated the Ex Post Facto Clause; (3) KSGA’s person/nonperson classification of pre-KSGA offenses violates the Sixth Amendment; and (4) summary denial of his motion denied him his right under K.S.A. 22-3504(1) to a hearing. Appeal transferred to the Kansas Supreme Court.

ISSUES: (1) Classification of out-of-state convictions, (2) Ex Post Facto Clause, (3) Sixth Amendment, (4) summary denial

HELD: Campbell was not entitled to have his out-of-state convictions classified as nonperson offenses under Murdock which was overruled by Keel, and is not entitled to relief under holding in Keel. Impact of 2017 amendment of K.S.A. 22-3504 is not addressed.

Application of Keel in this case does not violate the Ex Post Facto Clause. The 1993 statutes interpreted in Keel were in effect when Campbell committed crimes in 1996. They are not laws that increased the potential punishment after Campbell’s crimes were committed.

Holding in State v. Collier, 306 Kan. 521 (2017), defeats Campbell’s Sixth Amendment claim.

Campbell mistakenly relies on 2017 amendment to K.S.A. 22-3504 which was not effective until after Campbell’s hearing. Under law that applied at the time of Campbell’s hearing, he had no right to be present for the court’s preliminary review or to demand a hearing at which he could be present.

STATUTES:  K.S.A. 2016 Supp. 21-6810(d), -6810(e), 22-3601(b)(3); K.S.A. 1993 Supp. 21-4710; K.S.A. 21-4711, 22-3504, -3504(1)

criminal

criminal procedure—juries—prosecutors—sentencing
state v. hilt
johnson district court—affirmed
No. 114,682—december 15, 2017

FACTS: Hilt was convicted of first-degree murder. Conviction affirmed, but hard-50 sentence vacated and remanded for resentencing in accord with Alleyne v. United States, 570 U.S. 99 (2013). On remand, district court replaced a juror who had consulted a high school yearbook in violation of the court’s repeated admonitions, and was not forthright when questioned. District court imposed hard-50 sentence pursuant to jury’s verdict. Hilt appealed claiming: (1) district court’s removal of the juror during deliberation was error because the juror was not doing internet research on the case, and the juror’s failure to be forthright was not a proper basis for dismissal; (2) prosector erred during closing argument by telling jury that its role was to determine whether Hilt would get hard 50 sentence or be eligible for parole in 25 years, and telling jury it did not have to determine which blows to the victim were inflicted by Hilt and which were inflicted by co-defendants; and (3) the district court’s pronouncement of sentence was illegal and violated his right to be present at sentencing

ISSUES: (1) Removal of juror, (2) prosecutorial error, (3) pronouncement of sentence

HELD: No abuse of district court’s discretion to remove and replace a juror. Under facts in case, juror who consulted the yearbook violated the judge’s admonitions to do no investigation of any matter outside the courtroom. Judge’s express skepticism of the juror’s honesty was not an independent basis for removal and replacement.

Statutory subsections governing Hilt’s crime made a hard-50 sentence mandatory once a jury found beyond a reasonable doubt that an aggravating circumstance existed that was not outweighed by any applicable mitigating circumstances. District judge had no discretion to deviate from the jury’s hard-50 verdict, and prosecutor did not misstate the law. Nor did prosecutor misstate the law by telling jurors they could vote for hard-50 sentence even if State did not prove which co-defendant inflicted specific blows or wounds.

District judge’s statements in open court, that appropriateness of imposing the hard-50 sentence was the jury’s decision which the court was going to follow and impose, did not create an illegal ambiguity in the length of Hilt’s sentence or violate his right to be present at sentencing.

STATUTES: K.S.A. 2016 Supp. 21-6620(c), -6620(d), -6620(e), -6620(e)(1), -6620(e)(5), -6623, -6624(f), -6625, -6625(a), -6625(a)(4), 22-3405, -3412(c); K.S.A. 2013 Supp. 21-6620, -6624;  K.S.A. 22-3424, -3504(3)

criminal

crimes and punishment—criminal procedure—juries—sentencing
state v. ruiz-ascencio
lyon district court—convictions affirmed—sentence vacated in part— remanded
No. 115,343—december 15, 2017

FACTS: Ruiz-Ascencio was convicted of attempted first-degree murder, first-degree murder, aggravated assault, and illegal use of a communication facility. District court imposed hard-25 sentence for first-degree murder, prison terms for the other three offenses, and lifetime post-release supervision on all four counts. Ruiz-Ascencio appealed claiming the district court: (1) erred by not instructing jury on voluntary manslaughter for the first-degree murder and attempted first-degree murder charges because both victims were shot during a sudden quarrel; and (2) imposed an illegal sentence by ordering lifetime post-release supervision on each count.

ISSUES: (1) Jury instructions, (2) sentencing

HELD: Kansas cases are reviewed. Under facts in this case, a voluntary manslaughter instruction was not factually appropriate. No facts or reasonable inferences that can be drawn therefrom to suggest a sudden quarrel, or that Ruiz-Ascencio otherwise acted in a heat of passion. One victim’s words or gestures were not enough to constitute legally sufficient provocation.

State concedes error in sentencing. Judgment imposing lifetime post-release supervision on all four counts is vacated as contrary to K.S.A. 2016 Supp. 22-3717. Remanded for resentencing.   

CONCURRENCE (Johnson, J.): Concurs in the result.

STATUTES: K.S.A. 2016 Supp. 21-5404(1), 22-3717, -3717(b)(2)(C), -3717(d)(1)(A), -3717(d)(1)(C); K.S.A. 21-5404, 22-3504

Kansas Court of Appeals

CIVIL

LIMITATION OF ACTIONS—TORTS
BONNETTE V. TRIPLE D AUTO PARTS
HAMILTON DISTRICT COURT—AFFIRMED
NO. 116,578—DECEMBER 15, 2017

FACTS: Triple D Auto Parts purchased its store in 1990. At that time, the building's exterior had not changed since its construction in 1925. One feature of the exterior was a step down from the entrance/exit door to the sidewalk. Bonnette, who was a regular customer, fell when leaving the store and badly broke her wrist. Although she had navigated the step on dozens of occasions, she alleged that she fell because she could not see the step. Bonnette filed suit against Triple D, claiming negligence. Triple D responded by claiming that it was protected by the statute of repose. The district court granted Triple D's motion for summary judgment on those grounds, and this appeal followed.

ISSUES: (1) Applicability of the statute of repose; (2) duty to warn

HELD: The facts show that Triple D failed to warn Bonnette about the dangerous step. Because the duty to warn is an ongoing duty, that duty was breached on the day Bonnette was injured. This ongoing duty prevents application of the statute of repose.  But, Bonnette had actual knowledge of the step, and the danger was open and obvious. There is no evidence that Bonnette was distracted when leaving the store. Because Triple D did not have a duty to warn it is entitled to judgment as a matter of law.

STATUTES: K.S.A. 60-513, -513(b)

Tags:  constitutional law  criminal procedure  Hamilton  juries  limitations of actions  Lyon  procedures  prosecutors  Sedgwick  sentencing  statutes  torts  Wyandotte 

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December 8, 2017 Digests

Posted By Administration, Monday, December 11, 2017

Kansas Supreme Court

criminal

criminal procedure
state v. beck
sedgwick district court—affirmed
115,219—december 8, 2017

FACTS: Beck was convicted on guilty pleas pursuant to plea agreement recommending concurrent sentences. District court accepted the pleas, imposed a hard-25 sentence for the first-degree murder conviction and a downward departure sentence for the attempted first-degree murder conviction, and ordered the sentences to be served consecutively. Beck appealed, arguing the district court erred by refusing to follow the plea agreement’s recommendation for concurrent sentences.   

ISSUE: Sentencing—plea agreement

HELD: No abuse of sentencing court’s discretion. Sentence recommendations made pursuant to a plea agreement are not binding on a sentencing court. 

STATUTES: K.S.A. 2016 Supp. 22-3601(b)(3); K.S.A. 2013 Supp. 21-5301(c)(1), -6804

 

Kansas Court of Appeals

CIVIL

CONTRACTS—SETTLEMENTS
JAMES COLBURN REVOCABLE TRUST V. HUMMON CORPORATION
BARBER DISTRICT COURT—AFFIRMED
NO. 117,584—DECEMBER 8, 2017

FACTS: Hummon Corporation leased a saltwater disposal well. The Trust owned a two-thirds interest in the land on which the well was located. In 2015, Trust administrators sued Hummon alleging that it failed to pay for its use of the well after the lease expired. Hummon admitted that it owed some compensation to the Trust for using the well beyond the lease term, but it disputed the amount requested by the Trust. All parties agreed to mediation. That process produced a mediation agreement which required Hummon to pay $42,500 and to remove certain equipment from the site. In exchange, the Trust agreed to assign to Hummon any interest owned in a steel pipeline and to assign Hummon an easement for pipeline access. A dispute arose over the extent of that easement. After the Trust filed suit to enforce the mediation agreement, the district court agreed that the mediation agreement was specific and enforceable. Hummon appealed.

ISSUES: (1) Adequacy of consideration; (2) existence of condition precedent; (3) validity of mediation agreement; (4) reasonableness of mediation agreement

HELD: The text of the mediation agreement shows sufficient consideration. The record shows that Hummon did not raise the issue of a condition precedent before the district court. For that reason, and in the absence of any compelling reason for the court to consider the issue, the panel declines to address the merits of Hummon's complaint about the performance of a condition precedent. The mediation agreement was not so vague or indefinite to be unenforceable. The district court's interpretation of the mediation agreement was consistent with its plain language.

STATUTES: No statutes cited.

criminal

appeals—constitutional law—criminal procedure—statutes
state v. dawson
sedgwick district court—affirmed
116,530—december 8, 2017

FACTS: Dawson convicted in 1997 of rape. After unsuccessful challenges to conversion of his misdemeanor convictions to calculate criminal history, the convictions and sentence became final in March 2000. After State v. Dickey, 301 Kan. 1018 (2015), Dawson filed motion to correct an illegal sentence. District court summarily denied the motion, stating Apprendi and Dickey did not apply retroactively to a final sentence. Dawson appealed, arguing an incorrect criminal history classification can be challenged at any time. At panel’s request, parties addressed impact of 2017 amendment to K.S.A. 22-3504 which became effective after briefs had been filed.

ISSUES: (1) 2017 Amendment to K.S.A. 22-3504, (2) criminal history calculation

HELD: Dickey and subsequent cases were discussed. K.S.A. 22-3504(3), as amended in 2017, clarified the intended application of the term “illegal sentence” used in K.S.A. 22-3504(1). The amendment is procedural in nature and applies retroactively. A sentence is not an illegal sentence based on holding in Dickey if that sentence was final prior to Apprendi. Dawson’s sentence was legal when pronounced, and was not rendered illegal by the subsequent change in the law. District court’s summary denial of the motion to correct an illegal sentence was not error.

Any right to appellate review of claim concerning the conversion of Dawson’s misdemeanor convictions has been exhausted and is barred by res judicata.

STATUTES: K.S.A. 2017 Supp. 22-3504(3); K.S.A. 22-3504, -3504(1), -3504(3), 60-1507

Tags:  Barber District  Sedgwick District 

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December 5, 2017 Digests

Posted By Administration, Tuesday, December 5, 2017

Kansas Supreme Court

Attorney Discipline

ORDER OF INDEFINITE SUSPENSION
IN THE MATTER OF HARRY LOUIS NAJIM
NO. 116,943 – DECEMBER 1, 2017
 

FACTS: This disciplinary matter arose after Najim was caught offering to provide legal services to an undercover agent engaged in a conspiracy to commit wire fraud and contraband cigarette trafficking. Najim's retainer was paid in cash, and Najim did not notify his law firm about the payment in excess of $10,000 cash so that it could report the payment to the Financial Crimes Enforcement Network. The failure to report is a Class D federal felony, and after a conviction a hearing panel determined that Najim violated Rule 8.4(b) (commission of a criminal act reflecting adversely on the lawyer's honesty).

HEARING PANEL: Najim pled guilty to one of the 44 counts that were filed against him in federal court. But after the disciplinary administrator filed its complaint, Najim denied that his conduct violated Rule 8.4(b). The disciplinary administrator asked that Najim's license be suspended indefinitely, retroactive to a temporary suspension that was entered after criminal charged were first filed. Najim thought that a 2-year suspension was appropriate, retroactive to May 2015. A majority of the hearing panel ultimately recommended that Najim be suspended for three years, with suspension running from the date of the Supreme Court's opinion.

HELD: Although Najim disputes the idea that he committed a crime, the record of criminal judgment was admitted into evidence during the disciplinary hearing. That judgment is conclusive evidence that a crime was committed. And the crime of which Najim was convicted was one of dishonesty. The evidence before the court warrants an indefinite suspension from the practice of law.

THREE-YEAR SUSPENSION
IN THE MATTER OF BRANDY L SUTTON
NO. 117,395 – DECEMBER 1, 2017

FACTS: A hearing panel found that Brandy L. Sutton violated KRPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). The complaint arose after a former employee accused Sutton of failing to make promised contributions to that employee's individual retirement account. A review by the employee revealed a shortfall of almost $9,000. Sutton disputed the amount but acknowledged there were some shortfalls which were caused by the law firm's financial distress. And, Sutton claimed, that distress was caused by the employee's negligence.

HEARING PANEL: After being notified of these issues, Sutton made whole not only the complaining employee but also other employees whose IRAs were not properly funded. The disciplinary administrator asked that Sutton be indefinitely suspended, although he acknowledged that a shorter term might be appropriate. Sutton asked that she be allowed to continue practicing law, subject to a probation plan. The hearing panel agreed with Sutton that probation was a good option for Sutton.

HELD: The hearing panel's findings were adopted. The court found that Sutton's behavior was, essentially, conversion, and that conversion historically warrants a more severe sanction than probation. Accordingly, a majority of the court elected to impose a three-year suspension, subject to lifting the suspension after six months upon application. A minority of the court would have approved the probationary plan suggested by the hearing panel.

 

Civil

NEGLIGENCE – TORTS
MCELHANEY V. THOMAS
RILEY DISTRICT COURT – 
AFFIRMED IN PART, REVERSED IN PART, REMANDED
COURT OF APPEALS – AFFIRMED IN PART, REVERSED IN PART
NO. 111,590 – DECEMBER 1, 2017

FACTS: Thomas was driving a pick-up truck when he ran over McElhaney's feet in a school parking lot. It is undisputed that Thomas was driving, but there was no agreement about his state of mind at the time. Thomas claimed it was purely an accident. McElhaney testified that Thomas told her that he just meant to "bump" her with the truck. McElhaney brought claims for both negligence and intentional tort theories. She later asked to amend her petition to include a claim for punitive damages, but that request was denied. The district court also dismissed her intentional tort claim, finding there was no evidence of an intent to injure. The Court of Appeals agreed with this assessment. And a majority of the panel upheld the district court's ruling disallowing a claim for punitive damages. This appeal followed after McElhaney's petition for review was granted.

ISSUE: Standard for proving tort of civil battery

HELD: An intent to injure is a necessary element of the tort of battery in Kansas. This includes both the intent to do actual harm and the intent to cause an offensive contact. A person may be guilty of civil battery if the defendant intends to make an offensive contact and bodily harm results. In so ruling, the court does away with the concept of "horseplay" as a legal category. And because McElhaney should have been allowed to bring her battery claim, the district court also erred by not permitting McElhaney to amend her petition and claim punitive damages.

STATUTE: K.S.A. 60-3703

criminal

constitutional law – criminal procedure – sentencing – statutes
state v. simmons
saline district court – affirmed; court of appeals – affirmed
No. 108,885 – december 1, 2017

FACTS: Simmons convicted of drug offense in 2005. Prior to her release on parole, Kansas Offender Registration Act (KORA) was amended to require registration of drug offenders. When Simmons was charged with failing to register, district court found her guilty and ordered payment of $200 DNA database fee. On appeal Simmons claimed: (1) the retroactive application of the KORA registration requirement violated the Ex Post Facto Clause; (2) it was error to impose the DNA database fee because she would have provided a DNA sample before her release on parole; and (3) even if the KORA registration was not punishment, it was part of her 2005 sentence which could not be modified by the executive branch. Court of Appeals affirmed. 50 Kan.App.2d 448 (2014). Simmons’ petition for review granted.

ISSUES: (1) Ex Post Facto Challenge, (2) Modification of Sentence, (3) DNA Database Fee

HELD: Under State v. Petersen–Beard, 304 Kan. 192 (2016), lifetime sex offender registration does not constitute “punishment” for Eighth Amendment and ex post facto challenges. Record in this appeal is insufficient to demonstrate that drug offenders as a class are distinguishable from the class of sex offenders such that KORA registration becomes punitive rather than civil when applied to drug offenders.

Challenge to authority of executive branch to order Simmons to register is issue of first impression. Simmons’ 2005 criminal sentence is not illegal, and has not been “modified” by the post–sentencing registration obligation.

District court did not err by imposing the DNA database fee required by K.S.A. 2012 Supp. 75–724. Simmons failed to show that she previously paid a DNA database fee or that she did not submit a DNA sample for the current offense.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with dissent in Petersen–Beard, Kansas offender registration requirement is punishment for sex or violent offender, and no less so for drug offender. Simmons met burden of showing an ex post facto violation in this case.

STATUTES: K.S.A. 2012 Supp. 75–724, –724(a)–(b); K.S.A. 22–4901 et seq.

 

appeals – criminal procedure – juries
state v. mcbride
shawnee district court – reversed
court of appeals – reversed
No. 112,277 – december 1, 2017

FACTS: McBride convicted of kidnapping. On appeal he claimed he was denied a fair trial because prosecutor asserted the alleged victim deserved consideration similar to the presumption of innocence constitutionally recognized for criminal defendants. In unpublished opinion, Court of Appeals agreed that this was prosecutorial error but found the error was harmless under State v. Tosh, 278 Kan. 83 (2004). Review granted on this issue.

ISSUE: Prosecutorial Error – Harmless Error

HELD: No cross–petition of panel’s determination that the prosecutor misstated the law, so only issue on appeal is whether this prosecutorial error was harmless. Harmless error inquiry in Tosh was abandoned in State v. Sherman, 305 Kan. 88 (2016). Applying Sherman to facts in this case, where prosecutor improperly tried to bolster victim’s credibility by claiming she deserved a credibility presumption akin to McBride’s presumption of innocence, denied McBride a fair trial. Kidnapping conviction is reversed and case is remanded to district court.

STATUTES: K.S.A. 2016 Supp. 21–5408(a)(3); K.S.A. 20–3018(b), 60–261, –2101(b)

 

criminal procedure – habeas corpus – sentencing
state v. buford
wyandotte district court – affirmed
No. 114,175 – december 1, 2017

FACTS: Buford is serving a life sentence imposed for 1990 felony murder conviction. e filed 2014 motion to correct an illegal sentence, arguing the parole board instituted a new sentence each time it denied him parole, and these “sentences” were illegal because the parole board should have classified his pre–1993 crime as a nonperson felony. District court summarily denied the motion. Buford appealed.

ISSUE: Motion to Correct Illegal Sentence

HELD: The denial of parole is not a sentence, so K.S.A. 22–3504 has no application. Claim is not construed as habeas motion because it is not clear Buford has exhausted administrative remedies.

STATUTES: K.S.A. 22–3504, 60–1501; K.S.A. 21–5401(a), 22–3717(b) (Ensley 1988)

Tags:  appeals  Attorney Discipline  constitutional law  criminal procedure  habeas corpus  juries  negligence  Saline District  sentencing  statutes  torts 

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November 22, 2017 Digest

Posted By Administration, Tuesday, November 28, 2017
Updated: Monday, November 27, 2017

Kansas Court of Appeals

CRIMINAL

CRIMES AND PUNISHMENT—SENTENCES—STATUTES
STATE v. FOWLER
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 116,803—NOVEMBER 22, 2017

FACTS: Fowler pled guilty to felony domestic battery, felony possession of methamphetamine, and misdemeanor violation of a protective order. The domestic battery offense was charged as a felony because he had been convicted of domestic battery twice within the past five years. The anticipated presumptive probation for the primary crime of possession of methamphetamine, however, was altered to presumptive prison when the presentence investigation report calculated Fowler’s criminal history by aggregating six prior misdemeanors to two person felonies. To follow spirit of the plea agreement, State joined Fowler’s request for a dispositional departure to probation. District court denied the motion and imposed sentence which included prison term for the primary crime of felony possession of methamphetamine. Fowler appealed, arguing for first time the sentence was illegal because the sentencing court, in violation of K.S.A. 2015 Supp. 21-6810(d)(9) of the Kansas Sentencing Guidelines Act (KSGA), “double counted” two of Fowler’s prior person misdemeanor convictions both to enhance the domestic battery conviction from a misdemeanor to a felony and to elevate Fowler’s criminal history.

ISSUE: Sentencing - use of prior misdemeanor domestic battery convictions

HELD: Reasoning in State v. Vontress,  266 Kan. 248 (1998), reaffirmed in State v. Davis, 275 Kan. 107 (2003), was discussed and applied. Fowler was properly charged with felony domestic battery, a non-grid felony. The KSGA sentencing grid is inapplicable to this crime because the crime has its own sentencing scheme with no severity level designation. Felony domestic battery thus cannot be designated as the primary crime for the purpose of applying a criminal history score to calculate a sentence. District court properly designated Fowler’s methamphetamine conviction as the primary crime of conviction for purpose of calculating Fowler’s base sentence, and correctly calculated Fowler’s criminal history score because Fowler’s two prior domestic battery convictions were not used to elevate the classification of the primary crime. 

DISSENT (Malone, J.): Use of Fowler’s two prior domestic battery convictions to calculate his criminal history and to elevate the domestic battery conviction from a misdemeanor to a felony violates the plan language of K.S.A. 2015 Supp. 21-6819(d)(9). Vontress is distinguishable from Fowler’s case. Would vacate Fowler’s sentence and remand for resentencing.  

STATUTES: K.S.A. 2015 Supp. 5414, -5414(a), -5414(b), -5414(b)(3), -6803(d), -6804(a), -6804(c), -6804(i)(1), -6804(i)(3), -6805(a), -6806(c), -6806(d), -6809, -6810, -6810(d)(9), -6811, -6811(a), -6819(b), -6819(b)(2), -6819(b)(3), -6819(b)(5); K.S.A. 21-4710, -4710(d)(11), -4720, 22-3504(1)

Tags:  crimes and punishment  Sedgwick  Sedgwick District  sentences  statutes 

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November 17, 2017 Digests

Posted By Administration, Monday, November 20, 2017

Kansas Supreme Court

Attorney Discipline

ORDER OF PROBATION
IN THE MATTER OF MATTHEW B. WORKS
NO. 117,607—NOVEMBER 17, 2017

FACTS: A hearing panel determined that Works violated KRPC 1.2(c) (scope of representation), 1.3 (diligence), 1.4(a) (communication), 1.16(d) (termination of representation), and 3.2 (expediting litigation). The violations occurred after Works was appointed to represent clients on appeal but failed to docket the cases

HEARING PANEL: When determining the appropriate discipline, the hearing panel noted that Works was disciplined on five prior occasions. But there were a number of mitigating factors, including Works' mental health issues and a traumatic house fire. The disciplinary administrator recommended that Works be placed on probation with an underlying suspension of 12 months to two years. After noting that Works provided a workable, substantial probation plan, the hearing panel determined that a term of probation was in the best interests of the legal profession and the general public.

HELD: The court admitted the hearing panel's final hearing report. A majority of the court agreed with the hearing panel that Works should be suspended for two years, with imposition of that discipline stayed and a three-year term of probation. A minority of the court would have imposed a harsher sanction, including a period of immediate suspension.

Kansas Court of Appeals

Civil

ARBITRATION—CONTRACTS—JURISDICTION—MEDIATION
WASINGER V. ROMAN CATHOLIC DIOCESE OF SALINA
RUSSELL DISTRICT COURT—REVERSED AND REMANDED
NO. 116,764—NOVEMBER 17, 2017

FACTS: Wasinger was hired to design and construct a parish rectory for a church in Russell. The contract included a requirement that the parties submit to "binding mediation" if disputes arose during the construction process. A dispute arose early during the process. Under the terms of the contract, the parties went to mediation and received a decision. Wasinger did not agree with that decision, and as a result he filed a mechanic's lien on the property. Wasinger followed up by filing a motion to foreclose on the lien. The Diocese filed a motion for summary judgment in which it claimed that the clause requiring "binding mediation" was actually an arbitration provision, meaning that the mediator's decision was binding. The district court granted the motion and this appeal followed.

ISSUES: (1) Whether mediator's decision was binding; (2) lack of cross-appeal

HELD: Kansas case law does not recognize "binding mediation." The mediation set out in the contract was a voluntary, out-of-court alternate dispute resolution procedure. By statute, a mediator in Kansas has no decision-making authority. It was a mistake to use the terms "mediation" and "arbitration" interchangeably. Under the plain language of the contract, Wasinger was free to seek judicial resolution of issues not resolved by mediation. The Diocese did not cross-appeal the district court's ruling on arbitration which means this issue cannot be considered on appeal. And the argument fails on the merits because the district court erred when finding that interstate commerce was implicated.

STATUTE: K.S.A. 5-405(a), -405(b), -405(c), -502(e), -502(f), -502(g), -502(h), -502(m)

Criminal

MOOTNESS—PROBATION—SENTENCING
STATE V. ALLEN
GEARY DISTRICT COURT - VACATED
NO. 116,886—NOVEMBER 17, 2017

FACTS: Allen was serving an 18-month term of probation when he committed two new offenses. He served a 30-day term in custody for violating his probation and received a sentence of probation for the new offenses. Allen then violated his probation for a second time. A judge in the first case imposed a 60-day jail sanction. A different judge in the second case also imposed a 60-day jail sanction to be served consecutively to the first sanction. Allen objected but the district court overruled the objection and Allen appealed.

ISSUE: Ability to sentence terms consecutively

HELD: K.S.A. 2016 Supp. 22-3716(c)(10) requires that any intermediate sanctions must be imposed concurrently. There is nothing in the statute suggesting that this language does not apply to cases heard before different judges. Although Allen has served his entire sentence, this case is capable of repetition and is of public importance so it is not moot.

STATUTE: K.S.A. 2016 Supp. 22-3716(c)(1)(B), -3716(c)(1)(C), -3716(c)(1)(D), -3716(c)(10), -3716(c)(11)

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November 9, 2017 Digests

Posted By Administration, Monday, November 13, 2017
Updated: Monday, November 13, 2017

Kansas Supreme Court

Attorney Discipline

ORDER OF PUBLISHED CENSURE
IN THE MATTER OF LAWRENCE E. SCHNEIDER
NO. 117,361 – NOVEMBER 9, 2017

FACTS: A hearing panel determined that Schneider violated KRPC 1.3 (diligence) and 1.4(b) (communication). These violations arose after Schneider failed to list possible federal and state earned income credit exemptions on bankruptcy petitions. Schneider's inaction resulted in his clients' inability to respond to orders from the court.

HEARING PANEL: The panel noted that Schneider's actions were negligent and that he timely made restitution to his clients which ameliorated the consequences of his misconduct. Schneider also fully cooperated with the hearing panel and acknowledged wrongdoing. The disciplinary administrator recommended a 3-month suspension. The hearing panel noted that in the 2 years since the misconduct first arose there had been no further incidents and that Schneider had taken steps to correct his diligence issues. For those reasons, the hearing panel suggested published censure.

HELD: The court adopted the hearing panel's conclusions. After following up with the complainant, the disciplinary administrator recommended at the hearing on this matter that Schneider be disciplined by published censure. The court agreed and the sentence was imposed. 

Civil

STATUTORY CONSTRUCTION
HAYES V. STATE
SEDGWICK DISTRICT COURT – AFFIRMED
COURT OF APPEALS – AFFIRMED
NO. 108,233 – NOVEMBER 9, 2017

FACTS: Hayes was convicted of involuntary manslaughter in 1998. After his release from prison, Hayes was charged with two counts of violating the Kansas Offender Registration Act. He was sentenced to probation but violated the terms and he served a 38-month prison sentence. After that conviction and sentence, Hayes filed a K.S.A. 60-1507 motion in which he challenged, among other things, amendments to KORA. Hayes acknowledged before the district court that his 1507 pleading was untimely, but he asked the court to rule on the merits. The district court disagreed and denied the motion on grounds that Hayes could not show manifest injustice such that the 1-year time limitation should be extended. Hayes appealed. The Court of Appeals affirmed that decision and Hayes' petition for review was granted.

ISSUE: (1) Constitutionality of subjecting Hayes to the 1-year statute of limitations

HELD: After Hayes filed his motion, the Legislature amended K.S.A. 60-1507 to more clearly define what constitutes manifest injustice. The question of whether that amendment applies retroactively to Hayes need not be answered because Hayes cannot show manifest justice under any standard.

STATUTES: K.S.A. 2016 Supp. 60-1507(f); K.S.A. 2006 Supp. 22-4904(b); K.S.A. 1997 Supp. 22-4902(d)(5), -4906(a); K.S.A. 60-1507

criminal

attorneys and clients – constitutional law – criminal procedure – sentencing
state v. richardson
sedgwick district court – affirmed 
court of appeals – affirmed
no. 107,786 – november 9, 2017

FACTS: Richardson convicted in 2003 of sale of cocaine.  After he was sentenced, the Kansas Offender Registration Act (KORA) was amended to require registration by those convicted of that drug offense.   Richardson thereafter pled guilty to offender registration violations.  Prior to sentencing he filed pro se motions to withdraw his plea and for appointment of new counsel, pursuing an ex post facto challenge to the retroactive application of the amended KORA.  District court denied both motions.  Richardson appealed claiming he should have been allowed to withdraw his plea, and claiming his attorney failed to advise him of the ex post facto issue.  In unpublished opinion, Court of Appeals affirmed. Richardson’s petition for review granted.  

ISSUES: (1) Ex Post Facto Challenge to KORA; (2) Conflict of Interest - Attorney and Client

HELD: Lifetime sex offender registration under KORA does not constitute “punishment” for application of the Eighth Amendment or the Ex Post Facto Clause.  Non-sex offenders seeking to avoid retroactive application of KORA provisions must satisfy the “effect” prong of test set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), by producing a record that distinguishes — by the “clearest proof” — KORA’s effect on those classes of offenders from KORA’s effects on sex offenders as a class. Richardson failed to do so on the the record in this case.

Richardson cannot show his attorney provided incorrect legal advice.  District courts are reminded that if they become aware of a potential conflict between a defendant and his or her attorney, they abuse their discretion if they fail to conduct an inquiry.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.):  Dissent is consistent with her votes in State v. Petersen-Beard, 304 Kan. 192 (2016); State v. Reed, 306 Kan. 899 (2017); and State v. Meredith,306 Kn. 906 (2017).  Richardson met any burden of proof he bore at this point, and should be permitted to withdraw his plea for good cause shown.    

STATUTES: K.S.A. 2010 Supp. 22-4904(c); K.S.A. 2007 Supp. 22-4902(a)(11)(C); K.S.A. 22-4901 et seq.

Kansas Court of Appeals

Civil

FORUM SELECTION – JURISDICTION – VENUE
AKESOGENX COR V. ZAVALA
JOHNSON DISTRICT COURT – AFFIRMED
NO. 116,896 – NOVEMBER 9, 2017

FACTS: AkesoGenX Corporation (AKG) is a Delaware corporation with its principal place of business in Kansas. Zavala was AKG's CEO. He was terminated after money was found to be missing from the company's accounts. AKG sued both Zavala and Kunkle, the company's Secretary/Treasurer, for breach of fiduciary duty and conversion. After Zavala failed to appear at a scheduling conference, the district court granted default judgment to AKG. Zavala then moved to set aside the default, claiming that he was never served with the petition. That motion was denied. Zavala responded by filing a motion to reconsider. In that motion, Zavala claimed, for the first time, that the judgment was void because AKG's articles of incorporation included a forum selection clause that required all proceedings to be in Delaware. That motion was denied and Zavala appealed.

ISSUES: (1) Denial of the motion to reconsider; (2) Whether the forum selection clause was mandatory or permissive; (3) Denial of motion to set aside default judgment

HELD: Forum selection clauses are valid in Kansas as long as certain criteria are met. But the existence of a forum selection clause does not divest a court of subject matter jurisdiction. In this case, Zavala's complaint was really about venue. And complaints about venue can be waived. In order to preserve the complaint an objection to venue must be timely raised in a responsive pleading. While Zavala did raise the issue in a pleading it was not timely. Because AKG could consent to venue outside of Delaware, the forum selection clause in its articles of incorporation was permissive rather than mandatory. And the evidence shows that AKG waived venue in Delaware when it initiated this legal action in Kansas. Zavala failed to include the transcript from the hearing on the motion to set aside default judgment. In the absence of that transcript, the district court's decision cannot be evaluated. Since Zavala had the burden to designate the appellate record his argument fails. Because service was properly obtained on Zavala in California, it does not matter if service was not perfected in Texas.

STATUTES: K.S.A. 2016 Supp. 60-205, -205(b)(2)(B)(ii), -205(e), -212(b)(3), -255(b), -258, -259(f), -260(b)(1), -308(a); K.S.A. 60-260(b)(6)

 

Civil

IMMUNITY – REASONABLE SUSPICION – TORT CLAIMS
SCHREINER V. HODGE
JOHNSON DISTRICT COURT – AFFIRMED
NO. 117,034 – NOVEMBER 9, 2017

FACTS: Police officers in the City of Mission received two reports of a suspicious truck. Both callers reported seeing a man park the truck and then walk into the woods. While Officer Hodge was investigating the second report, Schreiner walked out of the woods and back to his truck. Schreiner refused to answer Officer Hodge's questions and attempted to leave the scene in the truck. Officer Hodge temporarily detained Schreiner until he could finish the investigation. After the investigation did not disclose any illegal activity, Schreiner was allowed to leave. The entire encounter took between 20 and 25 minutes. Schreiner filed a pro se action against Officer Hodge seeking damages for assault, battery, false arrest, and false imprisonment. Officer Hodge moved for summary judgment claiming discretionary function immunity. The district court agreed and granted the motion. Schreiner appealed.

ISSUES: (1) Application of discretionary function immunity

HELD: A police officer may detain a citizen if the officer reasonably suspects that criminal activity is occurring. This is a discretionary act based on the officer's training and experience. Schreiner's actions were suspicious and his actions in dealing with Officer Hodge provided justification for the subsequent investigation. For this reason, Officer Hodge is entitled to discretionary function immunity and summary judgment was appropriate.

CONCURRENCE AND DISSENT (Atcheson, J.): Because Officer Hodge's action was unreasonable under the Fourth Amendment his behavior cannot be excused by the discretionary function exception.

 STATUTES:  K.S.A. 2016 Supp. 75-6104(e); K.S.A. 22-2402(1)

Tags:  Attorney Discipline  Johnson  Sedgwick 

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November 3, 2017 Digest

Posted By Administration, Monday, November 6, 2017

Kansas Supreme Court

 

ATTORNEY DISCIPLINE

 

ORDER OF DISBARMENT
IN THE MATTER OF JEROME PATIENCE
NO. 22,022—NOVEMBER 1, 2017

FACTS: In a letter signed October 19, 2017, Jerome M. Patience, an attorney admitted to practice law in Kansas, voluntarily surrendered his law license. At the time of surrender, a disciplinary complaint was pending. The complaint was filed after Patience was charged with several felony offenses in Missouri.

HELD: The court found that the surrender of Patience's license should be accepted, and Patience is disbarred.

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