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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 Court of Appeals affirmed in unpublished opinion, holding the registration requirement was not punishment.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 

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August 4, 2017 Digests

Posted By Administration, Monday, August 7, 2017

Kansas Supreme Court

Civil

EVIDENCE—JURIES—TORTS
BULLOCK V. BNSF RAILWAY COMPANY
WYANDOTTE DISTRICT COURT— COURT IS APPEALS IS AFFIRMED—DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 111,599—AUGUST 4, 2017

FACTS: While working for BNSF, Bullock slipped and was injured after stepping in diesel fuel. It was later determined that the fuel was spilled by one of Bullock's co-workers. Bullock sued BNSF and BNSF claimed the affirmative defense that Bullock was contributorily negligent for failing to appreciate the danger posed by the diesel fuel. Evidence at trial showed that Bullock was not disciplined for his conduct but that the employee who caused the spill was disciplined. The jury found BNSF 100 percent at fault. After BNSF appealed, the Court of Appeals found that evidence of the other employee's discipline was a subsequent remedial measure barred by K.S.A. 60-451, and that court ordered the matter remanded for a new trial. Bullock's petition for review was granted.

ISSUES: (1) Use of post-accident employee discipline as evidence; (2) counsel's statements during closing argument

HELD: The post-accident discipline of another employee constitutes a subsequent remedial measure and is barred from introduction by K.S.A. 60-451. This is true even if a party attempts to use evidence of subsequent remedial measures to prove causation or defeat a claim of contributory negligence. But evidence of an employer's post-event investigation is admissible under that same statute. A jury should not be instructed to act on their feelings about what is fair or to be concerned with community standards or community conscience. Counsel's remarks during closing argument were inappropriate.

STATUTE: K.S.A. 60-451, 3701(d)(1)

Criminal

CONFRONTATION CLAUSE—EVIDENCE—FINDINGS OF FACT
STATE V. JONES
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 113,409—AUGUST 4, 2017

FACTS: Jones and a co-defendant were convicted of killing a man by injecting him with a lethal amount of methamphetamine. Jones appealed two issues to the Kansas Supreme Court.

ISUES: (1) Admission of forensic test results; (2) admission of out-of-court statements

HELD: The lab's chief toxicologist interpreted data to determine that there were high levels of methamphetamine present in the decedent's blood. From that information, the coroner determined that the victim died from methamphetamine toxicity. The coroner testified at trial about the toxicology results and what they meant, and the toxicologist testified about the results of the laboratory tests. Even if the person who actually performed the testing did not testify, any error stemming from that fact is harmless. The issue of whether evidence was properly admitted under the co-conspirator exception to the hearsay rule was not preserved for appeal.

STATUTE: K.S.A. 2016 Supp. 60-460, -460(i)(2)

 

CONSTITUTIONAL LAW—STATUTES
STATE V. MEREDITH
RILEY DISTRICT COURT—COURT OF APPEALS IS AFFIRMED—DISTRICT COURT IS AFFIRMED
NO. 110,520—AUGUST 4, 2017

FACTS: Meredith pled no contest to a drug crime in 2009. At the time he committed the offense, the Kansas Offender Registration Act (KORA) required Meredith to register as an offender for 10 years. But mistakes in both the sentencing procedure and the journal entry made it unclear how long Meredith's registration period was to run. After Meredith's probation was revoked, the district court noted that the current statute required a 15-year registration period and that sentence was imposed. Meredith appealed and the Court of Appeals affirmed, finding that KORA does not violate the Ex Post Facto Clause. Meredith's petition for review was granted.

ISSUE: Retroactive application of KORA

HELD: The legislature intended KORA to be a non-punitive civil regulatory scheme for all offenders. The record on appeal does not show any evidence that registration is punitive for drug offenders. Since the registration requirement is not a punishment, it cannot be an Ex Post Facto violation.

DISSENT: (Beier, J., joined by Rosen and Johnson, JJ.) KORA constitutes punishment even if that was not the legislature's intent.  

STATUTES: United States Constitution Article I, § 10; K.S.A. 2011 Supp. 22-4906(a); K.S.A. 2008 Supp. 65-4161(a)

 

CONSTITUTIONAL LAW—STATUTES
STATE V. REED
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED
NO. 110,277—AUGUST 4, 2017

FACTS: Reed was convicted of a sex crime and, as a result, was required to register as a sex offender for 10 years. Reed stipulated that for a period of time during that 10 years, he did not comply with registration requirements. Before Reed's registration period expired, the legislature amended the Kansas Offender Registration Act (KORA) and added a tolling period for periods of registrant noncompliance or incarceration. When he was convicted for registration violations, Reed claimed that he could not be convicted because his registration period had expired prior to being charged. After his conviction, Reed appealed, claiming that the tolling provision added by the legislature could not be applied to him without violating the Ex Post Facto Clause of the United States Constitution. The Court of Appeals affirmed the district court, finding that the amendments to KORA were not punitive. Reed's petition for review was granted.

ISSUE: Retroactive application of KORA amendments

HELD: The court has jurisdiction to hear this statutory argument even though it was not raised below. Registration under KORA for sex offenders is not punishment, so retroactive application of any provision cannot violate the Ex Post Facto Clause.

DISSENT: (Johnson, J., joined by Beier and Rosen, JJ.) KORA is punitive in effect rendering this an Ex Post Facto Violation.

STATUTES: K.S.A. 2016 Supp. 22-3210(d)(2), -3210(e)(2); K.S.A. 1994 Supp. 22-4902(b)(3), -4906(a); K.S.A. 22-4906(a)

 

EVIDENCE—JURY INSTRUCTIONS—PROSECUTORIAL MISCONDUCT
STATE V. SEAN
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 114,417—AUGUST 4, 2017

FACTS: Sean was convicted of first-degree premeditated murder and other serious felonies after he allegedly killed a man by injecting him with a lethal amount of methamphetamine. Most of the state's evidence was provided by codefendants. Sean appealed.

ISSUES: (1) Suppression of interrogation statements; (2) prosecutorial misconduct; (3) erroneous admission of bad acts evidence; (4) erroneous admission of hearsay statements; (5) motion for mistrial; (6) limitation on cross-examination; (7) improper sympathy evidence; (8) cumulative error

HELD: The court cannot and will not reach the merits of Sean's argument about his custodial statements because his attorney did not properly preserve this issue for appeal. The introduction of evidence about drugs did not violate the order in limine. Comments about Sean's retention of an attorney were beyond the latitude afforded to prosecutors, but the error was not so prejudicial as to require reversal. The prosecutor's comment on a witness' testimony was a fair comment on facts in evidence and not inappropriate commentary on that witness' credibility. The issue of prior bad acts evidence is not properly before the court due to the lack of a contemporaneous objection. Several of the statements about which Sean now complains are not hearsay. The other statements might have been hearsay, but their admission was harmless. Testimony about gang affiliation was a passing comment by a witness and not a deliberate violation of a pretrial order. And while that testimony was a fundamental failure of the proceedings, the district court did not abuse its discretion by deciding that any resulting prejudice could be mitigated. The subject matter that was excluded during cross-examination offered no substantive or exculpatory evidence and was consequently not wrongly excluded. The court will not review any claim of error regarding testimony of the victim's mother because the issue was not preserved for appeal by a contemporaneous objection. Sean was not prejudiced by cumulative error.

STATUTES: K.S.A. 2016 Supp. 60-261, -455, -460, -460(j); K.S.A. 22-3423(1)(c), 60-404, -2105

Kansas Court of Appeals

Civil

 DEFAULT JUDGMENT—GARNISHMENT
MAINLAND INVESTMENT GROUP V. DIVERSICARE
LYON DISTRICT COURT—REVERSED AND VACATED
NO. 116,921—AUGUST 4, 2017

FACTS: Mainland filed a petition against Tonya Smith after she allegedly wrote a bad check. Smith did not respond to the petition and Mainland received a default judgment. Mainland tried to collect on that judgment for 10 years but was apparently unable to locate Smith. After finally tracking her down, Mainland received an order of garnishment and served Diversicare, who Mainland believed was Smith's employer. Diversicare did not answer the order of garnishment and Mainland sought judgment against Diversicare for lack of compliance. At this point Diversicare sought permission to file an out-of-time answer, claiming that it never received the original garnishment order and that it had never employed Smith. The district court ultimately denied this motion and ordered Diversicare to pay the judgment plus costs.

ISSUE: Ability to garnish

HELD: Diversicare failed to answer the order of garnishment, but it is undisputed that Mainland released Diversicare from the order of garnishment. In the absence of any garnishment order there is nothing upon which to enter default judgment against Diversicare, and the district court erred by entering judgment against Diversicare.

STATUTES: K.S.A. 2016 Supp. 61-3003(g), -3504(a), -3504(b), -3507, -3507(a), -3507(b), -3508, -3510; K.S.A. 61-3502, -3514

 

ICWA—PARENTAL RIGHTS
IN RE D.H., JR.
MEADE DISTRICT COURT—AFFIRMED IN PART, REMANDED WITH DIRECTIONS
NO. 116,422—AUGUST 4, 2017

FACTS: D.H., Jr. caught the attention of state officials shortly after his birth, when it was suggested that Mother used methamphetamine during her pregnancy. As the child's life progressed, there was a series of contacts with the police over drug use and domestic violence, and the family had no stability in housing or employment. D.J., Jr. finally came in to custody after both parents were incarcerated. After their parental rights were terminated, both parents appealed.

ISSUES: (1) Sufficient evidence to terminate father's rights; (2) sufficient evidence to terminate mother's rights; (3) ineffective assistance of counsel; (4) compliance with ICWA requirements

HELD: Father did not make sufficient efforts to regain custody of his child. His continued positive drug tests were a primary cause of this. There was sufficient evidence that Father's rights should have been terminated. Mother was similarly situated. She had a long history of drug abuse and instability. In addition, mother was subject to statutory presumptions of unfitness. Mother's first attorney has been disbarred, and the record shows that his representation of mother fell below minimum standards. But that representation came early in the case, and the two other lawyers who were appointed for mother ably represented her. Providing information to a tribe is mandatory under ICWA. When the tribe requested more information the state had an obligation to provide it. The case must be remanded so that an attempt can be made to provide missing information to the tribe.

STATUTES: 25 U.S.C. § 1903(4); K.S.A. 2016 Supp. 38-2269(a), -2269(b), -2269(c), -2269(f), -2269(g)(1), -2271(a)(1), -2271(a)(3), -2271(b)

Tags:  Lyon  Meade  Riley  Sedgwick  Wyandotte 

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July 28, 2017 Digests

Posted By Administration, Monday, July 31, 2017

Kansas Supreme Court

Criminal 

constitutional law—criminal law—search and seizure—statutes
state v. bannon
sedgwick district court
court of appeals reversed and remanded to court of appeals for reconsideration
no. 112,212—july 28, 2017

FACTS: Wichita State University officers were told that Bannon always carried a handgun and had other guns and ammunition in his university apartment. Officers entered the restricted access apartment building, approached Bannon in a common area, and found a concealed handgun in his waistband. Bannon was charged with criminal carry of a firearm, K.S.A. 2012 Supp. 21-6302(a)(4). He filed a motion to dismiss, arguing he could not be convicted for possessing a concealed gun in his abode or within its curtilage. District court denied the motion. Bannon then filed motion to suppress the gun, arguing the warrantless patdown search was presumptively unreasonable, the stop-and-frisk exception under Terry v. Ohio, 392 U.S. 1 (1968), did not apply, and no probable cause supported his arrest. District judge denied the motion, finding in part the patdown was within the scope of Terry because officers had reasonable suspicion that Bannon was carrying a gun, and they were entitled to search to ensure officer safety. Bannon appealed the denial of both motions. Court of Appeals reversed in unpublished opinion. Panel assumed the officers had a reasonable suspicion that

Bannon was violating the law, but Terry’s second prong was not met because there was no evidence the officers were actually subjectively concerned for their safety or the safety of others. Panel did not address Bannon’s second issue regarding the motion to dismiss. Petition for review granted.

ISSUE:  Terry Stop - subjective vs. objective belief of officer

HELD:  Terry stops were examined, identifying conflicting federal and state cases regarding whether Terry’s second prong is a subjective or an objective test. Court holds the test is objective: whether an officer would reasonably suspect that the person stopped is armed and presently dangerous. Any testimony on the officer’s actual subjective belief or suspicion on that point is just one factor to consider in the totality of the circumstances. Panel incorrectly treated the lack of officer testimony as a dispositive negative determinant on the constitutionality of the Terry frisk. Court of Appeals is reversed and case is remanded for consideration under the correct test. If it determines on remand that the gun did not require suppression, then it must consider and decide Bannon’s second appellate issue.  

STATUTES:  K.S.A. 2012 Supp. 21-6302(a)(4); K.S.A. 22-2402

 

constitutional law—criminal procedure—sentencing—statutes
state v. Donaldson
sedgwick district court—affirmed; court of appeals—affirmed
no. 108,801—july 28, 2017

FACTS: Donaldson filed motion to challenge the retroactive application of the Kansas Offender Registration Act as violating the Ex Post Facto Clause. District court dismissed the action for lack of jurisdiction. Court of Appeals agreed in unpublished opinion. Petition for review granted.

ISSUE: Jurisdiction - motion to correct illegal sentence

HELD: Following holdings in State v. Wood, 306 Kan. 283 (2017), and State v. Reese, 306 Kan. 279 (2017), the lower courts had jurisdiction to consider Donaldson’s motion as a motion to correct an illegal sentence. But no meritorious claim was presented because the definition of an illegal sentence does not include a sentence that allegedly violates a constitutional provision. Outcome of the lower courts is affirmed as right for the wrong reason.

STATUTE: K.S.A. 22-3504, -4901 et seq.

 

constitutional law—criminal procedure—sentencing—statutes
state v. kilpatrick
reno district court—affirmed; court of appeals—affirmed
no. 111,054—july 28, 2017

FACTS: Kilpatrick filed motion to challenge the retroactive application of the Kansas Offender Registration Act as violating the Ex Post Facto Clause. District court dismissed the action for lack of jurisdiction. Court of Appeals agreed in unpublished opinion. Petition for review granted.

ISSUE: Jurisdiction - motion to correct illegal sentence

HELD: Following holdings in State v. Wood, 306 Kan. 283 (2017), and State v. Reese,  306 Kan. 279 (2017), the lower courts had jurisdiction to consider Kilpatrick’s motion as a motion to correct an illegal sentence. But no meritorious claim was presented because the definition of an illegal sentence does not include a sentence that allegedly violates a constitutional provision. Outcome of the lower courts is affirmed as right for the wrong reason.

STATUTES: K.S.A. 22-3504, -4901 et seq.; K.S.A. 2005 Supp. 22-4902

 

Kansas Court of Appeals

Civil 

ATTORNEY FEES—CONTRACTS—DAMAGES
HARDER V. FOSTER
LEAVENWORTH DISTRICT COURT—AFFIRMED IN PART—REVERSED IN PART—REMANDED
NO. 116,117—JULY 28, 2017

FACTS: Harder purchased a house from Foster. The house sat on land and had a lake and a dam. After the purchase concluded, Harder learned that the dam was illegal because it was constructed without a permit, and that obtaining a permit would require extensive repairs. Harder filed suit against Foster in 2013 alleging negligent misrepresentation and other claims related to the house purchase. A jury eventually found in Harder's favor. Citing language in the real estate purchase contract, the district court granted Harder's motion for attorney fees. There was a protracted process after that decision while the district court decided Foster's motion to alter or amend. Because of the delay, Harder filed a second motion for attorney fees to recoup funds spent litigating the attorney fee issue. That motion was denied, as the court found that the second set of attorney fees were not related to the real estate purchase contract. Harder filed a second suit against Foster in 2015, claiming that he fraudulently conveyed the proceeds of the purchase to his children so that he was insolvent after the judgment was issued. Foster passed away, but his estate paid to the district court funds sufficient to satisfy the judgment and attorney fees awarded to Harder. The district court believed that Harder had been satisfied and dismissed the 2015 action as moot.

ISSUES: (1) Error in denying the second motion for attorney fees from the 2013 case; (2) error to dismiss the 2015 case

HELD: Harder's first motion for attorney fees compensated her for expenses incurred through December 16, 2014. But Harder incurred costs far beyond that as the parties worked through the post-trial motions filed by Foster. All of those fees were related to Foster's default under the contract; as such, Harder should have been compensated. The merger doctrine does not deny Harder's second request for attorney fees, and she did not waive any of those fees. The 2015 action was not moot because Harder potentially had a cause of action under the Uniform Fraudulent Transfer Act and, under that Act, potentially had a right to attorney fees to any act related to the third-party claim. Harder was not entitled to punitive damages because punitive damages can only be collected from a wrong-doer, and Foster is now deceased.

STATUTE: K.S.A. 33-102, -201(c), -201(d), -201(g), -204, -204(a), -204(b), -207, -210 

COMITY—DIVORCE—JURISDICTION
WARD V. HAHN
OSBORNE DISTRICT COURT—REVERSED
NO. 116,654—JULY 28, 2017

FACTS: During divorce proceedings, a Nebraska court awarded Ward Hahn one-half interest in land in Osborne County. Ward subsequently petitioned a Kansas court to enforce the Nebraska order and to partition the land between herself and Hahn's parents. The district court noted that the Nebraska court did not have subject matter jurisdiction to directly transfer legal title of the Kansas land to Ward, but it partitioned the land anyway under the principle of comity. The Hahns appealed.

ISSUE: Did the Nebraska court have jurisdiction to direct a land transfer in Kansas

HELD: Courts of one state generally cannot directly affect the legal title to land situated in another state. The Nebraska court could have ordered Hahn, over whom it did have personal jurisdiction, to transfer ownership of the land to Ward. But that did not happen here. The Kansas district court's application of the principle of comity was an abuse of discretion because the Nebraska decree was a violation of Kansas public policy.

STATUTE: No statutes

Criminal

attorney and client—criminal law—evidence—statutes
state v. boatwright
sedgwick district court—reversed and remanded
no. 115,075—july 28, 2017

FACTS: During meeting with attorney to discuss State’s plea offer in criminal cases charging Boatwright with violating a protective order and stalking, Boatwright threatened to kill his ex-fiancé. After checking with supervisor and obtaining clearance from the disciplinary administrator, attorney disclosed Boatwright’s communication to sheriff’s office. Boatwright was acquitted on the protective order and stalking charges, but then was charged with criminal threat. At trial, the attorney and the detective to whom she reported the communication testified about Boatwright’s threats. Based on the disciplinary rule relating to client-lawyer relationship and confidentiality of information, KRPC 1.6, the district court admitted the statements over Boatwright’s repeated objections. Jury convicted Boatwright. He appealed, arguing his statement to his attorney was protected by the attorney-client privilege.

ISSUE: Attorney-client privilege

HELD: In determining the admissibility of Boatwright’s statement to his attorney, parties and district court failed to argue or address the statutory rule of evidence prescribing the attorney-client privilege, K.S.A. 2016 Supp. 60-426, which is different from the concept of client confidentiality under KRPC 1.6. District court erred in admitting Boatwright’s threat under KRPC 1.6(b), as it is not a rule of evidence and does not govern the admissibility of evidence at trial. Here, K.S.A. 2016 Supp. 60-426 barred the admission of Boatwright’s statement to his attorney. State’s argument for the crime-fraud exception is rejected because Boatwright’s meeting with his attorney was for the specific purpose of discussing State’s plea offer and not for seeking legal advice in order to enable or aid the commission or planning of a crime.

District court’s error was not harmless under facts in this case. Boatwright’s conviction is reversed.

STATUTE: K.S.A. 2016 Supp. 60-426, -426(a), -426(b)(1)

Tags:  Reno  Sedgwick 

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July 21, 2017 Digests

Posted By Administration, Tuesday, July 25, 2017

Kansas Supreme Court

 

Attorney Discipline

 

ORDER OF DISBARMENT
IN THE MATTER OF MARGO E. BURSON
NO. 10,805—JULY 19, 2017

FACTS: In a letter signed July 18, 2017, Margo E. Burson voluntarily surrendered her license to practice law in Kansas. At the time the respondent surrendered her license, a complaint was pending with the Office of the Disciplinary Administrator. The complaint alleged violations of various rules of professional conduct relating to competence, communication, and candor toward the tribunal.

HELD: The court examined the files of the Office of the Disciplinary Administrator and found that the surrender of Burson's license should be accepted and that she should be disbarred.

 

Civil

 

INDIGENTS' DEFENSE—MANDAMUS
LANDRUM V. GOERING
ORIGINAL ACTION—WRIT OF MANDAMUS GRANTED IN PART
NO. 116,447—JULY 21, 2017

FACTS: This original action in mandamus questions whether a partially indigent defendant who has retained counsel may receive funding for certain services through the State Board of Indigents' Defense Services (BIDS). Landrum has privately retained counsel, but he moved to be declared partially indigent. The district court made that declaration and provided Landrum with a copy of the preliminary hearing transcript at a reduced price. The court also approved funding for investigative services. But after the presiding judge changed, all further requests were denied; the new judge ruled that Landrum could access BIDS payments only for expenses associated with his defense through an appointed, not retained, attorney. Landrum filed a petition for writ of mandamus, and BIDS served as the primary respondent.

ISSUE: Whether BIDS is required to fund services for a partially indigent defendant who has privately retained counsel

HELD: The court has jurisdiction to consider this application for mandamus and Landrum has standing. The only attorneys specifically excluded in K.S.A. 22-4508 are public defenders. The statute considers only the financial inability of the defendant to pay for defense services and the necessity of the requested services. Therefore, a district court has a duty to conduct an ex parte hearing when an attorney, other than a public defender, asks the court to consider a defendant's request for services. The writ issued here extends only to the district court's duty to hold a hearing; the court does not dictate the outcome of that hearing, and any orders entered depend on whether Landrum shows that he cannot afford the requested services, and that those services are necessary to his defense.

STATUTE: K.S.A. 22-4503(a), -4503(c), -4503(e), -4504, -4507, -4508, -4509, -4522,  -4523, 60-801

 

ADMINISTRATIVE—STATUTORY INTERPRETATION
MIDWEST CRANE & RIGGING V. KANSAS CORPORATION COMMISSION
SHAWNEE DISTRICT COURT—COURT OF APPEALS IS REVERSED—
DISTRICT COURT IS REVERSED
NO. 114,168—JULY 21, 2017

FACTS: Midwest Crane & Rigging (Midwest) is a contractor that provides a crane service. One of Midwest's trucks was stopped by law enforcement; during the stop, the trooper noticed that the truck did not have a license plate. In addition to a violation for failing to display a license plate, the trooper identified a possible issue with Midwest's failure to pay the federal Unified Carrier Registration Act (UCR) fee. The truck had a crane permanently attached to the chassis, and the truck only carried the tools that were necessary to operate the crane. The KCC fined Midwest $300 for failing to register and pay the UCR fee. The fine was upheld after the KCC determined that the truck was a "commercial motor vehicle." The district court affirmed the KCC, as did a majority of the Court of Appeals' panel. The Supreme Court granted review.

ISSUE: Is the crane truck a commercial motor vehicle that is principally used to transport cargo

HELD: In order to qualify as a commercial motor vehicle, the truck in question must be used principally to transport cargo. In this case, the crane and its associated tools are not cargo. Because the crane is not cargo, the truck is not a commercial motor vehicle and Midwest need not pay a fee.

STATUTES: 49 U.S.C. § 14504a(a)(1)(A)(ii), § 31101(1), § 13102(14), § 31132(1), § 14504a(a)(8), § 14504a(a)(9), § 14504(c), § 14504(e); K.S.A. 2016 Supp. 8-128(b), 66-1,115, -1,139a, 77-621(c)(4)

 

 

Criminal:

 

criminal law and procedure—evidence—prosecutors
state V. banks
sedgwick district court—affirmed
no. 114,614—july 21, 2017

FACTS: Flores was convicted of premeditated first-degree murder. On appeal he claimed:  (1) insufficient evidence supported the conviction because state’s evidence of premeditation was based upon impermissible inference stacking; (2) prosecutorial error by encouraging jury to decide case based on unreasonable inferences rather than on direct or circumstantial evidence; and (3) district court’s exclusion of photographs that depicted handwritten notes found in Flores’ car violated Banks’ right to present evidence critical to his defense.

ISSUES: (1) Sufficiency of the evidence, (2) prosecutorial error, (3) admission of evidence

HELD: Flores mistakenly equates inference stacking with state’s reliance on multiple circumstances. Impermissible inference stacking is not present where different circumstances are used to support separate inferences or where multiple pieces of circumstantial evidence separately support a single inference. Under facts in this case, the state provided sufficient evidence that the killing of the victim was premeditated.

No error was found in prosecutor’s closing argument. Prosecutor may have come close to scripting the crime for the jury in more detail than the evidence justified, but the relevant inferences asserted by the prosecutor were supported by the evidence and were reasonable.

District court correctly refused to admit the unauthenticated writings. Banks made no effort to comply with authentication requirements of K.S.A. 60-464; there was no evidence as to whose handwriting appears in the photographed writings; and nothing in the content of the writings gives a clue as to who might have authored them.   

STATUTES: K.S.A. 2013 Supp. 21-5402(a)(1); K.S.A. 60-404

  

criminal procedure—evidence—statutes
state v. davey
johnson district court—affirmed; court of appeals—affirmed
no. 111,774—july 21, 2017

FACTS: Davey was convicted of attempted first-degree murder and conspiracy to commit first-degree murder of her husband. At trial, state introduced hearsay statements that were made among the conspirators. Davey appealed, claiming this evidence did not fit the coconspirator exception in K.S.A. 2016 Supp. 60-460(i)(2). Court of Appeals affirmed in an unpublished opinion. Sole issue in Davey’s petition for review was whether the co-conspirator exception to the hearsay rule is applicable where the state offers the hearsay through a co-conspirator.

ISSUES: Co-conspirator exception to the hearsay rule

HELD: The coconspirator exception to the hearsay rule, based upon K.S.A. 60-2016 Supp. 60-460(i)(2), does not require that the coconspirator’s statement be offered to the court by a third person who is not a participant in the conspiracy. The third person requirement for application of the coconspirator exception, as declared in the five-part test in State v. Bird, 238 Kan. 160 (1985), and its progeny, is disapproved and overruled. K.S.A. 2016 Supp. 60-460(i)(2) sets up just three requirements for the co-conspirator exception to the hearsay rule to apply:  (1) the out-of-court statement must have been made by one of the co-conspirators; (2) the statement of the co-conspirator must have been made while the conspiracy was in progress; and (3) the statement must be relevant to the plan or its subject matter. Substantial competent evidence supports the factual requirements for application of K.S.A. 2016 Supp. 60-460(i)(2) in this case. Trial court did not err in admitting the evidence.

STATUTES: K.S.A. 2016 Supp. 60-460(i), -460(i)(2); K.S.A. 60-404

 

district courts—criminal law and procedure—discovery—evidence
state v. pollard
sedgwick district court—affirmed
no. 114,005—july 21, 2017

FACTS: Jury convicted Pollard of first-degree felony murder and aggravated robbery. Prior to trial, Pollard filed pro se motion seeking to compel state’s production of certain evidence. County clerk’s response stated that no hearings were scheduled and no further action would be taken absent further direction from Pollard’s appointed defense counsel as to how to proceed. During trial, district court ruled that Pollard’s gang status was admissible to enable state to explain how Pollard became a suspect. On appeal, Pollard claimed the prosecutor erred by introducing gang affiliation evidence. He also claimed the Sedgwick County clerk’s method of dealing with pro se motions in criminal cases violated his due process rights.

ISSUES: (1) Prosecutorial error, (2) pro se motion for discovery

HELD: Prosecutor did not mislead the trial judge about the grounds for admitting gang affiliation evidence. Pollard’s identity was a central issue in the case, and law enforcement used the department’s gang database in the process of connecting Pollard to the crimes. No merit was found in any of Pollard’s related claims of error by the prosecutor and trial court.

Pollard’s challenge as to how the county clerk’s office handles pro se motions in other cases cannot be brought in Pollard’s direct appeal, and there is no support in the record for Pollard’s challenge to the clerk’s handling of his motion. Pollard also failed to establish that he was in any way prejudiced by having his motion referred to appointed defense counsel rather than heard on its own. Under facts in this case, Pollard was not denied meaningful access to the court.

STATUTES: K.S.A. 2016 Supp. 60-455; K.S.A. 60-402(b)

 

 

Kansas Court of Appeals


 

constitutional law—criminal law—jury instructions—prosecutors—statutes
State v. Taylor
johnson district court—reversed, sentences vacated
no. 114,779—july 21, 2017

FACTS: Taylor was arrested for driving on a suspended license. Search of car discovered a gun stolen more than a year earlier. Marijuana found in Taylor’s shoe during his booking at the county jail. Jury convicted Taylor of theft, possession of marijuana, trafficking contraband in a correctional facility, and driving with a suspended license. Taylor appealed, arguing prosecutor and court erred in telling jury that the theft statute made possession of a stolen gun enough for a theft conviction, and that insufficient evidence supported his conviction on this charge. He also argued he was unconstitutionally denied notice that marijuana was contraband such that he could be separately convicted on the trafficking charge, and that insufficient evidence supported that conviction.

ISSUES: (1) Theft statute, (2) prosecutorial error, (3) sufficiency of the evidence of theft, (4) constitutional application of trafficking in contraband statute

HELD: Nothing within the plain language of the theft statute provides that persons found to be in possession of stolen firearms are guilty of theft regardless of whether they had knowledge the firearms they possessed were stolen. Under no circumstances is the state relieved of its duty of establishing the defendant acted with the intent to commit theft.

By telling the jury that it is the legislature’s desire to convict persons who possess stolen firearms of theft regardless of whether those persons had knowledge the firearms were stolen, the prosecutor seriously misstated the law and erroneously conveyed to the jury that the prosecutor is the final arbiter of the legislature’s intent. Under facts in this case, the prosecutor’s error was prejudicial.

There was insufficient evidence that Taylor intended to permanently deprive the owner of the handgun. A theft conviction based solely upon possession of stolen property must be supported by sufficient evidence that the person provided unsatisfactory explanations for possessing the stolen property, and that the property they possessed had been recently stolen. Here, the gun found in Taylor’s possession some 14 to 20 months after it was reported stolen was too remote in time to be considered recently stolen. Taylor’s theft conviction was reversed and sentence was vacated without possibility of retrial.

The trafficking in contraband statute was unconstitutionally applied to Taylor. State v. Watson, 273 Kan. 426 (2002), makes clear that the statute can prohibit the introduction or attempted introduction of contraband only if the correctional institution’s administrator has given notice of what items constitute contraband. Controlled substances are not per se contraband under the statute. Under facts in this case, the jail administrator had not identified marijuana as contraband, thus Taylor was denied the notice to which he was entitled. Accordingly, insufficient evidence supported his trafficking in contraband conviction which was reversed and the sentence vacated. Error in trial court’s instructions were also noted.

STATUTES: K.S.A. 2016 Supp. 21-5202, -5203, -5701, -5801(a), , -5801(a)(1)-(a)(4), -5801(b)(1), -5801(b)(7), -5801(h), -5904, -5904(a), -5904(b), -5904(b)(2)(A)-(D), -5914(d)(1), -5914(d)(16), 50-1201 et seq., 65-4105(d)(16), 75-7c01 et seq.; K.S.A. 2014 Supp. 8-262, 21-5706(b)(3), -5801(a), -5914; K.S.A. 2001 Supp. 21-3826; K.S.A. 21-3826(c)(1), -5801

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July 7, 2017 Digests

Posted By Administration, Tuesday, July 11, 2017

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN RE NWAKANMA
NO. 116,773—JULY 7, 2017

FACTS: Nwakanma was accused of violating KRPC 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (fees), 1.15 (safekeeping of property), 1.16 (termination of representation), 3.4 (fairness to opposing party and counsel), 8.1 (bar admission and disciplinary matters), 8.4 (misconduct), and Kansas Supreme Court Rule 207 (cooperation). Nwakanma lives and practices in Texas and was accused of violating several Texas Disciplinary Rules of Professional Conduct. Nwakanma's Kansas license has been suspended on multiple occasions for failing to comply with annual requirements, and it was suspended at the time of the disciplinary hearing. Nwakanma was never licensed independently in Texas. At the time of the hearing, Nwakanma had no active license to practice law in any jurisdiction.

HEARING PANEL: The hearing panel determined that Nwakanma's actions violated the Kansas Rules of Professional Conduct. After considering the aggravating and mitigating factors, the hearing panel recommended that Nwakanma be disbarred.

HELD: Nwakanma filed no exceptions to the hearing panel's final report, and the panel's findings of fact were deemed admitted. Nwakanma failed to appear at the hearing before the court, despite being allowed a continuance. The court upheld the discipline of disbarment. 

Tags:  Attorney Discipline 

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June 30, 2017 Digests

Posted By Administration, Wednesday, July 5, 2017

Kansas Supreme Court

 

Criminal

 

appeals—constitutional law—criminal procedure—search and seizure— statutes
state v. nece
Saline district court—affirmed; court of appeals—reversed
affirmed on rehearing
no. 11,140—june 30, 2017

FACTS: Nece filed motion to suppress breath blood-alcohol test results, arguing the officer coerced Nece’s consent to the testing by advising him, pursuant to K.S.A. 2016 Supp. 8-1025, he could be charged with a crime for refusing testing. District court agreed and suppressed the evidence as resulting from an involuntary consent. Court of Appeals reversed in unpublished opinion. Kansas Supreme Court affirmed the district court’s decision, applying holding in State v. Ryce, 303 Kan. 899 (2016 (Ryce I), that K.S.A. 2016 Supp. 8-1025 was unconstitutional. State v. Nece, 303 Kan. 888 (2016) (Nece I). Mandates in Ryce I and Nece I were stayed pending U.S. Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160 (2016). Rehearings in the Ryce and Nece appeals were then held with additional briefs and arguments. Opinion in Ryce II, decided this same date, modified the analysis in Ryce I but reaffirmed its holding that K.S.A. 2016 Supp. 8-1025 was unconstitutional.

ISSUE: Effect of Birchfield on Nece I

HELD ON REHEARING: Nothing in Birchfield or Ryce II requires modification of Nece I. Under totality of circumstances in this case, Nece’s consent was involuntary because it was obtained by means of an inaccurate and coercive advisement.

DISSENT (Stegall, J.): Dissents for reasons stated in his dissent in Ryce I.

STATUTE: K.S.A. 2016 Supp. 8-1001, -1001(k), -1025

 

appeals—constitutional law—criminal procedure—search and seizure - statutes
state v. ryce
sedgwick district court—affirmed—affirmed on rehearing
no. 111,698—June 30, 2017

FACTS: Ryce was charged with violating K.S.A. 2016 Supp. 8-1025(a) for refusing to submit to testing for blood alcohol content. On appeal, he challenged the constitutionality of 8-1025. State v. Ryce, 303 Kan. 899 (2016) (Ryce I), held the statute was facially unconstitutional because it punished an individual’s withdrawal of consent to search. Mandate was stayed on State’s motion, pending United State’s Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160 (2016). Motions for rehearing granted, and parties allowed to submit additional briefs and oral arguments.

ISSUE: Effect of Birchfield on Ryce I

HELD: Ryce I is modified, pursuant to Birchfield, to reflect the validity of conducting a breath test in a DUI case where the arrest is made under the warrant exception of a search incident to a lawful arrest. But the holding in Ryce I is reaffirmed. K.S.A. 2016 Supp. 8-1025, which is premised on the consent exception alone, is facially unconstitutional.

DISSENT (Stegall, J.): Dissented for reasons stated in his dissent in Ryce I.

STATUTE: K.S.A. 2016 Supp. 8-1001, -1001(a), -1001(b), -1001(b)(1)(B), -1001(b)(2), -1001(c), -1001(d), -1001(k), -1013, -1013(b)(1), -1013(i), -1001(j), -1025, -1025(a)

appeals—constitutional law—criminal procedure—search and seizure—statutes
State v. wilson
Shawnee district court—affirmed
affirmed on rehearing
No. 112,009—june 30, 2016

FACTS: Wilson was charged with violating K.S.A. 2016 Supp. 8-1025. District court considered Wilson’s challenge to the constitutionality of that statute, and dismissed the charge. The Kansas Supreme Court affirmed, applying holding in State v. Ryce, 303 Kan. 888 (2016 (Ryce I), that K.S.A. 2016 Supp. 8-1025 was facially unconstitutional. State v. Wilson, 306 Kan. __ (2016)(Wilson I). Mandates in Ryce I and Wilson I were stayed pending U.S. Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160 (2016). Rehearings in the Ryce and Wilson appeals were then held with additional briefs and arguments. Opinion in Ryce II, decided this same date, modified the analysis in Ryce I but reaffirmed its holding that K.S.A. 2016 Supp. 8-1025 was unconstitutional.

ISSUE: Effect of Birchfield on Wilson I

HELD: For the reasons set forth in Ryce I and Ryce II, district court’s dismissal of the charge against Wilson was affirmed.

DISSENT (Stegall, J.): Dissented for reasons stated in his dissent in Ryce I.

STATUTE: K.S.A. 2016 Supp. 8-1001, -1025

appeals—constitutional law—criminal procedure—search and seizure— statutes
state v. wycoff
saline district court—affirmed
affirmed on rehearing
no. 110,393—june 30, 2017

FACTS: Wycoff was charged with violating K.S.A. 2016 Supp. 8-1025. District court considered Wycoff’s challenge to the constitutionality of that statute, and dismissed the charge. The Kansas Supreme Court affirmed, applying holding in State v. Ryce, 303 Kan. 888 (2016 (Ryce I), that K.S.A. 2016 Supp. 8-1025 was facially unconstitutional. State v. Wycoff, 303 Kan. 885 (2016)(Wycoff I). Mandates in Ryce I and Wycoff I were stayed pending U.S. Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160 (2016). Rehearings in the Ryce and Wycoff appeals were then held with additional briefs and arguments. Opinion in Ryce II, decided this same date, modified the analysis in Ryce I but reaffirmed its holding that K.S.A. 2016 Supp. 8-1025 was unconstitutional.

ISSUE: Effect of Birchfield on Wycoff I

HELD: For the reasons set forth in Ryce I and Ryce II, district court’s dismissal of the charge against Wycoff was affirmed.

DISSENT (Stegall, J.): Dissented for reasons stated in his dissent in Ryce I.

STATUTES: K.S.A. 2016 Supp. 8-1001, -1025

 

 

Kansas Court of Appeals

 

Civil

 

ADMINISTRATIVE LAW—TAX APPEALS
IN RE TAX APPEAL OF BARKER
BOARD OF TAX APPEALS—AFFIRMED
NO. 116,034—JUNE 30, 2017

FACTS: The Barkers leased an oil and gas interest on land that he eventually obtained ownership of by a transfer on death deed. The Barkers received a tax exemption for low-production leases. But the county assessed a tax on the equipment that the Barkers used to produce oil from those exempted wells. The Barkers appealed that tax to BOTA, which held that equipment is not included in the term "oil lease" as that term is used in the exemption for low-production leases. The Barkers appealed.

ISSUES: (1) Consultation of an oil and gas appraisal guide; (2) improper advocacy; (3) exemption of oil lease equipment; (4) attorney fees

HELD: The Division of Property Valuation is allowed to adopt rules and regulations or appraiser directives, and there is a statutory mandate requiring county appraisers to follow the policies, procedures, and guidelines of DPV. In addition, the court may take judicial notice of any official state document prepared by a state official. The facts in this case were undisputed but there was a dispute over a question of law – whether the Barkers' equipment was exempt. Because of that dispute, summary judgment was inappropriate regardless of whether BOTA responded to the Barkers' motion. On this issue of first impression, the court looks to the tax code for answers. When reading applicable statutes together, they suggest that equipment is not part of an oil lease for purposes of the tax exemption at issue here. The Barkers are not entitled to attorney fees because the tax assessed on the Barkers' equipment was allowed under the law.

STATUTES: K.S.A. 2016 Supp. 60-256(e)(2), 79-201t, -201t(a), -331(b), -332a(a), -505(a), -1439(b)(2)(B), -1439(b)(2)(E), -1456(a); K.S.A. 79-301, -329, -3268(f)

 

GARNISHMENT
LEAF FUNDING V. SIMMONS MEDICAL CLINIC
CRAWFORD DISTRICT COURT—AFFIRMED
NO. 116,666—JUNE 30, 2017

FACTS: Leaf obtained a default judgment against Simmons in federal court in Delaware. After obtaining that judgment, Leaf filed a notice of the foreign judgment in Crawford County District Court. Some years later, Leaf filed a motion to revive that judgment, which was granted by the district court. After the revival, Leaf filed requests for garnishment on two banks, and the district court issued orders of garnishment. Simmons objected, claiming that he had no notice of the Delaware lawsuit and that the funds being garnished were exempt Social Security disability benefits. Simmons later clarified that the disability benefits were from private disability insurance and not Social Security benefits. The parties agreed on some issues, but a question remained about whether funds attributable to a disability insurance police were exempt from garnishment. The district court ultimately ruled that private disability insurance benefits were subject to garnishment, and Simmons appealed.

ISSUE: Ability to garnish funds from a private disability insurance policy

HELD: K.S.A. 60-2313(a)(1) exempts from garnishment only the funds specifically enumerated in the statutes. Since Simmons' funds – derived from private disability insurance – were not mentioned, they are subject to garnishment.

STATUTES: K.S.A. 2016 Supp. 60-735(c), 60-2308, 74-4927, -4960; K.S.A. 20-2609, 60-724(3), -2308, -2308(b), -2313, -2313(a)(1)

 

Criminal:

 

constitutional law—criminal—fourth amendment
state v. glover
douglas district court—reversed and remanded
no. 116,466—june 30, 2016

FACTS: Law enforcement officer ran the plate on a car which he then stopped to investigate because the driver’s license of the registered owner (Glover) had been revoked.  Glover was charged with driving without a license as a habitual violator. He filed motion to suppress, arguing there was no reasonable suspicion of criminal activity to justify the stop. District court agreed and found the initial stop was unlawful. State filed interlocutory appeal.

ISSUE: Reasonable suspicion for traffic stop

HELD: Kansas courts have not previously confronted the narrow issue of whether an officer’s knowledge that vehicle owner’s license is revoked, by itself, provides reasonable suspicion to initiate a stop. Decisions in other states were reviewed, finding agreement with the consensus of their state supreme courts. A law enforcement officer has reasonable suspicion to initiate a stop of a vehicle to investigate whether the driver has a valid driver’s license if, when viewed in conjunction with all other information available to the officer at the time of the stop, the officer knows the registered owner of the vehicle has a suspended license, and the officer is unaware of any other evidence or circumstances from which an inference could be drawn that the registered owner is not the driver of the vehicle. In this case it was reasonable for the officer to infer the driver was the owner of the vehicle, thus the officer properly initiated a traffic stop to investigate whether Glover was illegally driving his vehicle. District court’s decision to grant Glover’s motion to suppress is reversed, and matter is remanded.

STATUTES: K.S.A. 2016 Supp. 8-287; K.S.A. 22-2402(1), -3216(2)

 

crimes and punishment—criminal procedure—sentencing—statutes
state v. horselooking
jackson district court—vacated and remanded
no. 115,656—june 30, 2017

FACTS: Horselooking was convicted of aggravated battery and DUI. Sentencing court scored Horselooking’s prior Kickapoo Nation tribal conviction of residential burglary as a person felony for criminal history purposes. Horselooking appealed, claiming his tribal conviction should be scored as a misdemeanor because the Kickapoo Nation Tribal Code does not designate crimes as felonies or misdemeanors.

ISSUE: Criminal history scoring of out-of-state convictions

HELD: Horselooking’s Kickapoo conviction for residential burglary would be classified as a felony under State v. Hernandez, 24 Kan.App.2d 285, rev. denied 263 Kan. 888 (1997), and State v. Lackey, 45 Kan.App.2d 257, rev. denied 292 Kan. 968 (2011), but panel discussed why the Kansas Supreme Court would not embrace Hernandez and Lackey in this case. Where the convicting jurisdiction does not designate a prior conviction as a felony or misdemeanor, the rule of lenity should apply, thus Horselooking’s tribal conviction of residential burglary should have been classified as a misdemeanor for criminal history purposes. Horselooking’s sentence was vacated and remanded to district court for resentencing using the correct criminal history score.

DISSENT (Atcheson, P.J.): Agreed that Hernandez, and the reiteration of its holding in Lackey,     impose a default rule that cannot be reconciled with K.S.A. 2-15 Supp. 21-6811. Disagreed with majority’s focus on Kickapoo Nation’s criminal code as not explicitly labeling crimes as “felonies” or “misdemeanors.” Instead, legislature intended for what another jurisdiction treats as a serious crime be scored as a felony for criminal history purposes, while a minor crime from that jurisdiction should be scored as a misdemeanor. Examining the types of punishment for various wrongs under the Kickapoo Nation’s tribal criminal code, residential burglary is a serious crime. Horselooking’s conviction should have been treated as a felony in determining his criminal history.

STATUTE: K.S.A. 2015 Supp. 21-5102, -5102(a), -5102(d), -5807(a)(1), -5807(c)(1)(A), -6803(c), -6810(c), -6811, -6811(e), -6811(e)(1), -6811(e)(2), -6811(e)(2)(A), -6811(e)(2)(B), -6811(e)(4)

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June 23, 2017 Digests

Posted By Administration, Monday, June 26, 2017

Kansas Supreme Court

JURY INSTRUCTIONS—NEW TRIAL
STATE V. ASHLEY
JOHNSON DISTRICT COURT—AFFIRMED
NO. 114,052—JUNE 23, 2017

FACTS: Investigation by law enforcement implicated Ashley in the murder of a business owner. After a jury trial, Ashley was convicted of first-degree murder and attempted aggravated robbery. Ashley appealed.

ISSUES: (1) Necessity of a cautionary jury instruction for testimony from a prison informant; (2) motion for new trial; (3) use of a limiting instruction

HELD: The prison witness was not acting as an agent of the State at the time Ashley's comments were made, meaning a limiting instruction was not required. Newly discovered evidence that tends merely to discredit a witness' testimony is not grounds for a new trial. And the evidence Ashley relied on was not credible and would not have resulted in a different verdict. The limiting instruction given by the district court was appropriate given the evidence that was introduced at trial.

STATUTE: K.S.A.  60-455

 

EVIDENCE—JURY INSTRUCTIONS
STATE V. PEREZ
SEDGWICK DISTRICT COURT—AFFIRMED
No. 114,554—JUNE 23, 2017

FACTS: Perez lived in a compound in Wichita with followers who were forced to follow his will. The group was financed primarily by life insurance proceeds following the death of group members. After a group member's boyfriend alerted authorities, Perez was charged with one count of first-degree murder and multiple counts of rape, aggravated criminal sodomy, and offering a false statement.

ISSUES: (1) Admission of out-of-court statements; (2) assisted suicide instruction; (3) admission of prior crime evidence; (4) appropriateness of requested limiting instructions

HELD: Testimony from an investigating detective was not offered for the truth of the matter asserted. And even if admission of any of the evidence was erroneous, that error was harmless. Most of the testimony was duplicative of other testimony that was not challenged. The facts of this case do not support a jury instruction for assisting suicide as there was no evidence that the victim attempted to take her own life. The prior crime evidence was more probative than prejudicial, and the district court gave an appropriate limiting instruction. The limiting instructions were clearly tailored to appropriately instruct the jury.

STATUTES: K.S.A.  2016 Supp. 21-5407; K.S.A. 2015 Supp. 60-261,  -455, -455(a),-455(b), -455(c),-455(d), -460

Kansas Court of Appeals

Civil

MOOTNESS—STALKING
C.M. V. MCKEE
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 115,001—JUNE 23, 2017

FACTS: McKee lived next door to A.M.'s family. At the time of this case, C.M. was 11 years old. A.M. alleged that, on three occasions, McKee acted in ways that made her fear for her safety. A.M.'s parents filed a protection from stalking action against McKee, and it was granted by the district court. McKee appealed.

ISSUES: (1) Mootness; (2) sufficiency of the evidence

HELD: The protection from stalking order expired before this appeal could be decided. But because there is an issue that persists— specifically, whether a child can provide testimony sufficient to sustain a protective order—this appeal is not moot. There was sufficient evidence to prove that a reasonable 11-year old girl would be scared by McKee's conduct. Because of that, the district court's decision is affirmed.

STATUTE: K.S.A. 2016 Supp. 60-31a01(b), -31a02(a), -31a02(b), -31a02(c), -31a05(a)

HABEAS CORPUS—MEDICAL TREATMENT
STOCKWELL V. STATE
PAWNEE DISTRICT COURT—REVERSED AND REMANDED
NO. 115,897—JUNE 23, 2017

FACTS: Stockwell is involuntarily committed to the state Sexual Predator Treatment Program. Stockwell sought to execute an advanced directive for health care decisions, but program staff told him that he did not have the right to enter a do-not-resuscitate (DNR) order. Stockwell filed suit, and the facility allowed him to file both a DNR and a living will. But he was told those forms would be honored only if two medical professionals determined that Stockwell was terminally ill. Believing that the decision on the DNR violated his civil rights, Stockwell filed suit.

ISSUE: Does the hospital's policy on the DNR violate Stockwell's civil rights

HELD: Stockwell's right to refuse medical treatment is constitutional in nature. Because Stockwell is in State custody, the State must use reasonable efforts to accommodate his right to refuse treatment.

DISSENT: (Powell, J.) The State hospital reasonably accommodated Stockwell's wishes by requiring that his advance directive be honored under circumstances where it would be medically appropriate.

STATUTES: K.S.A. 2016 Supp. 60-1501; K.S.A. 65-4944

 

STATUTORY INTERPRETATION—WORKERS COMPENSATION
KNOLL V. OLATHE SCHOOL DISTRICT NO. 233
WORKERS COMPENSATION APPEALS BOARD—REVERSED AND REMANDED
NO. 116,167—JUNE 23, 2017

FACTS: Knoll was an employee of the school district. She was injured after falling in a parking lot, and she received medical treatment for those injuries. Knoll's injury occurred contemporaneously with amendments to the workers compensation statutes, specifically, a change which reduced from five years to three the time in which a claim must be filed. Knoll filed an application for hearing in 2011, after the statutory amendments became effective. In 2015, the District moved to dismiss Knoll's claim for lack of prosecution, since more than three years had passed since the filing of her application for hearing. Both the ALJ and the Board agreed with Knoll's defense that the version of the statute in effect at the time of her injury controlled, meaning there was a five-year time limit. The district appealed.

ISSUE: Whether the amendment to K.S.A. 44-523(f) applies retroactively

HELD: The date that the application for hearing was filed had no bearing on which version of the statute applies. But the amendment to the statute changing the time limit from five years to three was procedural, not substantive. This required retrospective application of the amendment. Applying the three-year time limitation, Knoll's claim was subject to dismissal for lack of prosecution. Knoll's claim must be dismissed.

STATUTES: K.S.A. 2016 Supp. 44-523(f)(1); K.S.A. 2011 Supp. 44-523(f)(1); K.S.A. 2009 Supp. 44-523(f), -523(f)(1); K.S.A. 2006 Supp. 44-523(f)

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June 16, 2017 Digests

Posted By Administration, Tuesday, June 20, 2017
Updated: Tuesday, June 20, 2017

Kansas Supreme Court

 

Criminal

 

constitutional law—criminal procedure
search and seizure—sentences
state v. hachmeister
shawnee district court—affirmed
court of appeals—affirmed
no. 112,260—june 17, 2017

FACTS: Police obtained search warrants during investigation of the murder of Hachmeister’s mother. Discovery of pornographic images of apparently prepubescent children during search of Hachmeister’s computer resulted in his conviction on 105 counts of sexual exploitation of a child. Sentence imposed included lifetime registration as a sex offender, based on district court finding the victims in the images were under 14 years old. Hachmeister appealed, claiming in part the district court erred in denying Hachmeister’s motions to suppress the recovered images, and claiming the sex offender registration requirement violated Apprendi. Court of Appeals affirmed in unpublished opinion. Hachmeister’s petition for review granted on two issues: (1) whether evidence from his computer should have been suppressed because it was not properly within the scope of search warrants issued during the homicide investigation; and (2) whether the district court violated Apprendi when it made the factual finding the victims were under 14 years old. 

ISSUES: (1) Search warrants , (2) lifetime registration as sex offender

HELD: All search warrants issued are reviewed. Hachmeister failed to preserve his challenge to three of them. The affidavit supporting a fourth warrant provided a sufficient basis for the district court to conclude there was a fair probability that evidence related to the murder might be found on Hachmeister’s computer.  Because probable cause supported that warrant, it did not taint the remaining warrant being challenged.

As decided in State v. Petersen-Beard, 304 Kan. 192 (2016), lifetime sex offender registration is not punishment for constitutional purposes, thus the finding that the victims were under 14 years old did not expose Hachmeister to an increased penalty within the meaning of Apprendi.

DISSENT: (Beier, J., joined by Rosen and Johnson, JJ.): Dissents from majority’s holding that lifetime sex offender registration is not punishment. 

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

 

Kansas Court of Appeals

 

Civil

 

EVIDENCE—PARENTAL RIGHTS
IN RE L.M.B., A.B., AND L.B.
KIOWA DISTRICT COURT—AFFIRMED
NO. 116,155—JUNE 16, 2017

FACTS: The children in this case were removed after a relative alleged that the parents were using drugs in the home. All three children in this case are members of the Citizen Potawatomi Nation. The tribe was notified about the child in need of care (CINC) action almost as soon as it was initiated and a member of the Citizen Potawatomi Nation testified as an expert witness at the hearing on the motion to terminate parental rights. After their parental rights were terminated, both parents appealed.

ISSUES: (1) Sufficiency of the evidence; (2) qualification of the State's expert witness; (3) active efforts to prevent the breakup of the Indian family

HELD: There was sufficient evidence that the parents were unfit such that the termination of parental rights was warranted. The State's expert witness was a member of the children's tribe and—as a professor at an Indian Nations university—was recognized by the trial community as knowledgeable in tribal customs. It is undisputed that the State made every effort to involve the children's tribe and extended family members in order to protect the children's Indian culture. And any failure to complete reintegration tasks was caused by the parents' failures and not by a lack of support.

STATUTES: 25 U.S.C. § 1912(e), §1912(f), §1914; 25 U.S.C.A. § 1912(d), § 1912(f); K.S.A. 2016 Supp. 38-2269(a), 60-261

 

attorney and client—constitutional law
criminal law post-conviction relief
khalil-alsalaami v. state
riley district court—reversed and remanded
no. 115,184—june 17, 2017

FACTS: Jury’s conviction of Ziad Khalil-Alsalaami (Ziad) on two counts of aggravated criminal sodomy was affirmed on direct appeal. He then filed K.S.A. 60-1507 motion alleging ineffective assistance of counsel who represented him both at trial and on direct appeal. Allegations included counsel’s failure to request an interpreter at trial. District court conducted a full hearing and denied the motion. Ziad appealed. 

ISSUE: Ineffective assistance of counsel

HELD: Ziad’s allegations were reviewed in light of counsel’s overall trial strategy that DNA evidence was transferred to the victim, and that police tricked Ziad into a false confession. Under facts in this case, Ziad’s attorney was ineffective for not requesting an interpreter at trial.  Prejudice would be presumed because this implicated the basic consideration of fairness to Ziad. Other instances of ineffective assistance are further noted, including counsel’s failure to not raise the interpreter issue on direct appeal, failure to file a motion to suppress or to mount a defense at the Jackson v. Denno hearing, stipulating to the voluntariness of the confession, failing to object to prosecutor’s questions about Ziad’s conversation with his wife, failing to object to prosecutor’s misstatement of the evidence during closing argument, and failure to raise issue of prosecutorial misconduct during closing argument on direct appeal. These errors went to the heart of counsel’s defense strategy, and their cumulative effect impacted Ziad’s ability to receive a fair trial. Reversed and remanded for further proceedings. 

STATUTES: K.S.A. 2016 Supp. 21-6627(a)(1)(D), 75-452; K.S.A. 22-3215, 60-404, -1507, 75-4351, -4351(b), -4351(e)

 

Criminal: 

creditors and debtors—criminal procedure—jurisdiction—restitution sentences—statutes
state v. jamerson
shawnee district court—reversed
no. 116,413—june 17, 2017

FACTS: Jamerson was convicted and sentenced in 2001 to prison term and over $5,000 in restitution. Restitution again ordered in 2013 resentencing. Thereafter, the district court entertained a request for and entered an order of garnishment of Jamerson’s prisoner account. Jamerson appealed, claiming the district court lacked jurisdiction to enter garnishment order prior to the conclusion of Jamerson’s resentencing appeal.

ISSUES: (1) Jurisdiction, (2) restitution

HELD: Kansas criminal code does not contain statutes outlining a procedure by which a person owed restitution may seek recovery of the judgment. When restitution is ordered, it is a judgment against the defendant which can be collected by garnishment proceedings as in any civil case. Although the district court lost jurisdiction to alter or amend Jamerson’s sentence while the case was on appeal—including the amount of restitution—it had jurisdiction to enter an order of garnishment.

District court erred when it entered order allowing garnishment of Jamerson’s inmate account. A district court has discretion to order payment of restitution while a defendant is incarcerated, but it must declare that intention unambiguously. In this case, district court failed to make clear that restitution was payable immediately, thus restitution did not become due until Jamerson's release.   

STATUTES: K.S.A. 2016 Supp. 21-6604(b)(1), -6604(b)(2), 60-729(a), -731(a), -2103(d)(1); K.S.A. 2002 Supp. 21-4603d(a)(11), -4603d(b); K.S.A. 60-4301

 

criminal procedure—search and seizure
state v. lewis
sedgwick district court—reversed, sentence vacated and remanded
no. 115,285—june 17, 2017

FACTS: At the completion of a traffic stop, police had Lewis exit his car so dog sniff of car could be conducted. When the dog indicated drugs, the ensuing search resulted in the discovery of cocaine inside the center console. Lewis filed motion to suppress the evidence, contending in part the police unreasonably prolonged his traffic stop to obtain a dog sniff. District court denied the motion, finding the 21-minute stop was not excessive, and the dog’s aggressive indicator was sufficient probable cause for the search. District court also found the officer’s information from a confidential informant was sufficient to establish a reasonable suspicion that Lewis might be involved in criminal activity. Lewis was convicted on stipulated facts. On appeal, he claimed the district court erred in denying the motion to suppress, arguing in part the police unreasonably prolonged the traffic top to obtain a dog sniff. 

ISSUES: (1) Reasonable suspicion, (2) traffic stop

HELD: No support in the record for State’s argument that reasonable suspicion to extend the traffic stop was based on Lewis’ jumpiness. And under facts in this case, the confidential informant’s anonymous tip would not have allowed officers to infer a reasonable suspicion of illegal conduct.

Under the circumstances, where the traffic investigation had just been completed as the drug sniffing dog arrived, the officers unreasonably prolonged the traffic stop to conduct the dog sniff. Lewis’ conviction is reversed, his sentence is vacated, and case is remanded with directions to grant his motion to suppress.   

STATUTES: K.S.A. 21-36a06(a), -36a06(c)(1)

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June 9, 2017

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

Kansas Supreme Court

Civil

ATTORNEYS—DAMAGES
CONSOLVER V. HOTZE
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED, DISTRICT COURT IS AFFIRMED
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

 

HABEAS CORPUS—INEFFECTIVE ASSISTANCE OF COUNSEL
BOGGUESS V. STATE
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED
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

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

 

Civil

DAMAGES—LANDLORD AND TENANT
MILLER V. BURNETT
WABAUNSEE DISTRICT COURT—REVERSED AND REMANDED
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

CONTEMPT—JURIES—JURISDICTION
IN RE MCDANIEL
SEDGWICK DISTRICT COURT—REVERSED AND REMANDED
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 

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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December 27, 2013, Appellate Court Digests

Posted By Administration, Friday, December 27, 2013
Updated: Thursday, August 24, 2017

Kansas Supreme Court – Civil


State v. Hurd
Seward District Court – Reversed and remanded
Court of Appeals – Reversed
No. 104,198 – December 27, 2013
FACTS:

Hurd convicted in trial that consolidated case with assault, battery, and criminal threat charges, and case charging two counts of failure to register as sex offender. Hurd appealed on nine issues, in part challenging district courts decision to consolidate the cases, trial judge’s refusal to recuse, and district court’s refusal to find complaint charging him with failing to register was jurisdictionally defective. In unpublished opinion, Court of Appeals rejected each issue and affirmed convictions and sentences. Hurd’s petition for review granted.

ISSUES: (1) Consolidation of cases, (2) defective complaint, (3) sufficiency of evidence of criminal threat, (4) recusal of trial judge, (5) authority to disqualify prosecutor
HELD:

District court erred in consolidating the two cases. District court’s calendar considerations do not provide a basis for joinder, and Supreme Court rejects Court of Appeals’ finding that crimes were connected. State v. Anthony, 257 Kan. 1003 (1995) is distinguished. State’s case as to battery, assault, and criminal threat charges was not strong, and jury might well have been influenced by Hurd’s prior convictions. Under the circumstances there was a reasonable probability that the improper consolidation affected the outcome of Hurd’s trial. Reversed and remanded for two separate trials.

Complaint charging Hurd with two counts of failing to register was jurisdictionally defective. Complaint’s language did not substantially follow language of K.S.A. 22-4904(a)(1), nor charge the offense in equivalent words to fully inform Hurd of particular offense charged. Final charging document also was confusing because it blended language from two different statutory provisions. Because conviction was void as a result of district court’s error in denying motion for arrest of judgment, State not prevented from recharging Hurd.

Under facts of case viewed in light most favorable to prosecution, sufficient evidence supported Hurd’s conviction for criminal threat. Remand for a new trial on this charge does not violate Double Jeopardy Clause.

Because Hurd essentially alleged prosecutor violated Kansas Rules of Professional Conduct, trial court had discretion to disqualify that attorney from the case. If issue arises on remand, district court should consider whether prosecutor’s alleged conduct warrants disqualification.

STATUTES: K.S.A. 2012 Supp. 60-261; K.S.A. 20-311d, -311d(c), -311d(d), 3018(b); K.S.A. 22-3202, -3202(1), -3203, -3502, -4904(a)(1), -4904(b); and K.S.A. 60-2101(b)

Kansas Supreme Court – Civil

Habeas corpus
Makthepharak v. State
Sedgwick District Court – Affirmed
No. 105,932 – December 27, 2013
FACTS:

Makthepharak charged as juvenile on charges related to home invasion and murder. District court granted state’s motion for adult prosecution. Makthepharak’s convictions and sentences for first-degree felony murder, aggravated burglary, and criminal possession of firearm were affirmed on appeal. 276 Kan. 563 (2003). In 2010 Makthepharak filed pro se motion to correct illegal sentence and for appointment of counsel. District court denied the motion without a substantive hearing or appointment of counsel. Makthepharak appealed, claiming district court lacked jurisdiction to impose sentence because Makthepharak was never properly certified for adult prosecution, and alternatively, that district court improperly construed his pro se motion. He also claimed district court’s summary denial of K.S.A. 22-3504 motion was fundamentally unfair, and alternatively claimed he was entitled to assistance of counsel during the court’s initial examination of the motion.

ISSUES: (1) Procedural claims – motion to correct illegal sentence, (2) summary denial of motion to correct illegal sentence and certification for adult prosecution, (3) construing the pro se motion
HELD:

Makthepharak made no persuasive argument for revisiting or abandoning longstanding interpretation of K.S.A. 22-3504 as not requiring a substantive proceeding and assistance of counsel in all cases, and that statute’s protections do not apply when a court summarily denies a motion to correct an illegal sentence.

District court properly considered statutory factors in K.S.A. 38-1636(e). Because Makthepharak was properly certified as an adult under the statute, district court had jurisdiction over the criminal trial. Makthepharak’s sentence was therefore lawful.

Although district court erred in part by construing Makthepharak’s motion as an improper method of attack and perhaps as seeking unavailable relief, Makthepharak was not prejudiced because his claim was still considered and properly denied on its merits.

STATUTES: K.S.A. 2012 Supp. 22-3601(b)(3); K.S.A. 2010 Supp. 38-2347(e); K.S.A. 22-3504, -3504(1); K.S.A. 38-1601 et seq., -1636(e); K.S.A. 60-1507

Kansas Court of Appeals – Civil

Workers Compensation
Lake v. Jessee Trucking and Continental Western Group
Workers Compensation –
No. 109,519 – December 27, 2013
FACTS:

Glenn C. Lake appealed the denial of his workers compensation claim. Lake had an accident at work and then experienced increasing symptoms of back pain and arm and leg numbness. Lake's treating physicians, a neutral physician appointed by the administrative law judge (ALJ), and a physician retained by Lake, all testified that the work accident caused his injuries. A physician retained by Lake's employer, Jessee Trucking, offered no opinion because he was uncertain regarding the onset of Lake's symptoms. The ALJ heard sworn testimony from Lake describing his work accident, his symptoms, and his medical care. The ALJ determined that the work accident caused significant neurological injuries and awarded Lake compensation for his permanent total disability. Upon review, however, the Workers Compensation Board (Board) rejected Lake's testimony and held that he had failed to prove the work accident had caused his neurological injuries.

ISSUE: Workers compensation
HELD:

Court held that under the facts of this workers compensation case, having considered all of the evidence—including the credibility determinations made by the administrative law judge regarding the claimant and the reasons given by the Board for disagreeing with those credibility determinations, the Board's findings of fact in support of its conclusion to deny compensation are not supported by substantial evidence when viewed in light of the record as a whole. Court stated that because the question here was not the existence of a work accident, which the Board found, or even of injury to Lake, which the Board found in the form of a pulled groin, but only of a link between the work accident and Lake's neurological injuries, the causation opinions of the doctors did not seem improbable, unreasonable, or untrustworthy. Court concluded that the weight of this medical evidence, coupled with the lack of substantial evidence to uphold the Board's findings that Lake was not credible (contrary to the ALJ's determination) and the evidence corroborating Lake's testimony that he experienced neurological symptoms during and shortly after the accident, require reversal of the Board's ruling. Court held the Board's findings of fact in support of its conclusion to deny compensation were not supported by substantial evidence viewed in light of the record as a whole. Court reversed the Board's order and remanded with directions to reinstate the ALJ's award of compensation.

STATUTES: K.S.A. 44-501, -556; K.S.A. 77-601, -621

Kansas Court of Appeals – Civil


Smith v. Kansas Orthopaedic Center P.A.
Sedgwick District Court – Affirmed
No. 109,084 – December 27, 2013
FACTS:

In 2007, Lana Smith began work as a physical therapist for a Wichita medical practice. After she left its employment, she sued for bonuses she said were owed to her. Smith said that the practice's business manager promised her a minimum $10,000 per year bonus before she began work. But Smith's employment agreement also clearly provided that she was an at-will employee, something she has not contested, and the compensation of at-will employees may be changed on a going-forward basis. Her employer announced new compensation terms during 2008, paid her more than $10,000 in bonuses for 2008, and applied the new compensation terms to bonuses in later years. Smith sued for her benefits and the district court held that by staying on after new compensation terms are announced for future compensation, an at-will employee impliedly accepts those terms. Accordingly, the district court granted summary judgment against Smith's claim for additional bonuses from 2009 until she ended her employment in 2011.

ISSUE: At-will employment
HELD:

Court held that in an at-will employment, the employer can change the terms under which the employee is compensated for wages not yet earned by providing notice to the employee. If the employee continues to work after the new compensation terms have been announced, the employee impliedly accepts those terms.

STATUTE: None

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