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January 29, 2016, Appellate Court Digests
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Kansas Supreme Court - Criminal

Appellate Practice; and Criminal Procedure
State v. Smith
Sumner District Court – Affirmed
No. 112,250 – January 29, 2016

FACTS: Smith entered guilty pleas in 2006 to felony murder and aggravated robbery. Seven years later he filed direct appeal and motion to withdraw pleas, alleging in part he was not properly informed of his appeal rights or consequences of his pleas, and was unaware of time limit to withdraw pleas. District court rejected both efforts, finding defense counsel had advised Smith of right to appeal, and Smith failed to demonstrate the excusable neglect required to permit an untimely motion. Smith appealed.

ISSUES: (1) Untimely Notice of Appeal, (2) Untimely Motion to Withdraw Plea

HELD: Court applies three-part framework for exception in State v. Ortiz, 230 Kan. 735 (1982), allowing untimely notice of appeal if the defendant was not informed of right to appeal. First two parts are satisfied because sentencing judge said only that Smith may” have a right to appeal and advised him to consult his attorney, and district court did not find that defense counsel actually advised Smith to right of appointed appellate counsel if indigent. But Smith's argument to district court, that he would have timely appealed if he had understood consequences of his pleas, failed to carry burden of showing he would have timely appealed but for his ignorance of right to appointed counsel on appeal. District court’s dismissal of appeal as untimely is affirmed.

No argument presented on appeal as to why motion to withdraw pleas was not time barred, thus Smith waived or abandoned his challenge to district court's ruling.

STATUTE: K.S.A. 2014 Supp. 22-3210(e)(1), -3210(e)(2), -3601(b)(3), -3601(b)(4)

Kansas Court of Appeals - Civil

ARBITRATION AND AWARD; ATTORNEYS; CONTRACTS; DEBTORS; AND CREDITORS
PORTFOLIO RECOVERY ASSOCIATES, LLC V. DANETTE R. DIXON
RICE DISTRICT COURT – REVERSED AND REMANDED WITH DIRECTIONS
NO. 113,077 – JANUARY 29, 2016

FACTS: Dixon opened a credit card account. The agreement included an arbitration provision that allowed either party to require that a claim be resolved by binding arbitration. Dixon allegedly failed to pay her credit card balance and she eventually defaulted. The account was sold to Portfolio Recovery Associates (PRA), which filed suit for repayment of Dixon's debt. Dixon filed both an answer and a class-action counterclaim in which she alleged that PRA was attempting to collect debts in Kansas without a license. PRA's answer to the counterclaim mentioned arbitration, but it did not move to compel until two years later, after an extensive discovery period. Dixon opposed the motion to compel, claiming that the delay was effectively an arbitration waiver by PRA. The district court agreed with Dixon, finding that the delay constituted a waiver of the right to arbitration. The district court also struck the appearance of two of PRA's lawyers after finding that the attribution of a quote from the U.S. District Court for the state of Kansas to the U.S. Supreme Court in a brief was a "material misrepresentation of the law." PRA appealed both the denial of the motion to compel arbitration and the disqualification of its attorneys.

ISSUES: (1) Whether Motions to Compel Arbitration May be Time Barred, (2) Whether Misattribution of Quoted Material Constitutes a "Material Misrepresentation of the Law"

HELD: Precedent requires that any questions related to the waiver of arbitration must be arbitrated. Therefore, the issue of whether PRA's litigation conduct constituted waiver must be decided by an arbitrator. However, instead of remanding with directors to refer the case to arbitration the case was sent back to the district court for a determination of whether PRA, as a successor in interest, could rely on the credit card arbitration agreement. Lawyers should only be disqualified "upon a showing of compelling circumstances." After reviewing the disputed case citation, the Court of Appeals held that the district court could not have been misled by the misattribution. If the court could not have been misled, disqualification of the attorneys was improper. PRA's attorneys were ordered reinstated upon remand.

STATUTE: 9 U.S.C. § 2

Kansas Court of Appeals – Criminal

Fourth Amendment; Parole and Probation; and Privacy
State v. Toliver
Riley District Court – Reversed and remanded
No. 11,897 – January 29, 2016

FACTS: Toliver, a parolee under supervision of Kansas Department of Corrections (KDOC), was convicted on drug evidence found when parole officer, accompanied by law enforcement officers, conducted first visit to Toliver’s home with search of the residence. District court found the warrantless search was not supported by a reasonable suspicion of parole violation or criminal activity, but denied motion to suppress relying on State v. Bennett, 288 Kan. 86 (2009), and language in KDOC Conditions of Release for Post-Incarceration Supervision agreement. On appeal Toliver claimed Fourth Amendment violation. Court of Appeals requested supplemental briefing regarding application of K.S.A. 2014 Supp. 22-3717(k).

ISSUE: Fourth Amendment and K.S.A. 2014 Supp. 22-3717(k)

HELD: Toliver’s Fourth Amendment rights were violated. Scope of K.S.A. 22-3717(k)(2) is examined, finding additional requirement in KDOC agreement allowing for search of a parolee's residence was not statutorily authorized and limited Toliver's privacy interests more than Kansas law allows. Consistent with Samson v. California, 547 U.S. 843 (2006), and Bennett, a Kansas parolee’s diminished privacy interest as set forth in K.S.A. 2014 Supp. 22-3717(k)(2), which requires only that parolees agree to be subject to search or seizure, does not empower parole officers to engage in suspicion-less searches of their residence and any other property under their control as provided by KDOC agreement. Related 2012 amendment to K.S.A. 22-3717, allowing search of a probationer's residence and property, is noted. Toliver’s conviction is reversed, and case remanded to grant motion to suppress.

DISSENT (Gardner, J.): Would find the detectives’ search of Toliver's residence at request of parole officer did not violate Fourth Amendment. K.S.A. 2014 Supp. 22-3717(k)(2), reasonably construed, does not limit search to parolee's person but instead subjects parolees to search in accordance with or coextensive to their written agreements.

STATUTES: K.S.A. 2014 Supp. 21-6607, -6607(c)(5), 22-3717(k), -3717(k)(2), -3717(k)(3), 75-5217(a)

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