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March 25, 2016, Appellate Court Digests
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Kansas Supreme Court – Attorney Discipline

Original Proceeding in Discipline
In re David A. Hardy
TWO YEAR SUSPENSION
No. 114,725 – MARCH 25, 2016

FACTS: The Office of the Disciplinary Administrator filed a complaint against Hardy in July 2015, alleging that Hardy violated KRPC 8.4(b) and 8.4(g) by committing a criminal act that reflected adversely on his honesty. The claims arose after Hardy was convicted of felony driving under the influence. Hardy's license to practice law in Missouri was indefinitely suspended in February 2015. After noting the mitigating factors, including Hardy's impairment, his self-reporting of the incident, and his willingness to seek treatment, the hearing panel recommended that Hardy's law license be suspended for two years.

HELD: The factual allegations and legal conclusions were not challenged by Hardy. The Court unanimously adopted the recommendation and suspended Hardy's license for two years, with the suspension retroactive to January 7, 2015, the date that a temporary suspension was put in place.

Kansas Supreme Court – Criminal

criminal procedure; motions
State v. Davisson
Neosho District Court - Affirmed
No. 109,778 - march 25, 2016

FACTS: Davisson filed 2011 motion to withdraw his 2000 guilty plea. At evidentiary hearing to determine if excusable neglect justified the late motion, Davisson claimed he had been unaware of plea withdrawal statute and time limit for filing. District court found this did not constitute excusable neglect, and dismissed the motion. Davisson appealed

ISSUE: Excusable Neglect - K.S.A. 2015 Supp. 22-3210(e)(2)

HELD: Issue of first impression for Kansas Supreme Court. Based upon holding and rationale in State v. Woodward, 288 Kan. 297 (2009), which rejected the use of newly found statutory grounds in support of motion to withdraw plea, a defendant’s untimely use of newly found statutory right to file such a motion is rejected. Under circumstances of this case, Davisson’s ignorance of the law was insufficient to show excusable neglect that would justify the late filing. Civil and criminal cases cited for proposition that ignorance of the law should not constitute excusable neglect. District court’s decision is affirmed.

STATUTES: K.S.A. 2015 Supp. 22-3210, -3210(d), -3210(d)(2), -3210(e)(1), -3210(e)(2), -3601(b)(3), 60-260(b)(1); K.S.A. 2010 Supp. 22-3210(d); K.S.A. 22-2901, -3210

Kansas Supreme Court – Criminal

CRIMINAL LAW; STATUTES
STATE V. JORDAN
SEDGWICK DISTRICT COURT – AFFIRMED
NO. 106,409 – MARCH 25, 2016

FACTS: After Jordan allegedly drove away with the car while taking a test drive, police stopped him for traffic violations. In one case, he was charged with the commission of four traffic offenses. The case went to trial on stipulated facts, and Jordan was found guilty of three of the four crimes charged. In a second case, Jordan was charged with theft by deception and intentionally obtaining control over a stolen license plate. Prior to trial, defense counsel moved to dismiss the charges based on K.S.A. 21-3102(2)(a), the compulsory joinder rule. The motion was denied, and Jordan was convicted after a bench trial. On appeal, Jordan challenges the district court's refusal to dismiss for failure to join.

ISSUE: (1) Whether the District Court Erred By Failing to Dismiss the Complaint Due to the State's Failure to Join Charges

HELD: Compulsory joinder exists to prevent the State from "substantially proving" a crime at a trial where that crime is not charged and then essentially retrying the defendant for that same crime in a different trial where the crime is charged. In order to have the compulsory joinder rule bar subsequent prosecution, the defendant must show that evidence presented at the first trial would lead a rational fact-finder to find the defendant guilty at the second trial. In this case, the evidence at Jordan's first trial was insufficient to prove guilt, and the district court correctly denied Jordan's motion to dismiss.

DISSENT: Justice Johnson would have revisited the court's prior decision in State v. Wilkins, as he believes it dilutes the joinder requirements that protect a criminal defendant's constitutional rights.

STATUTE: K.S.A. 21-3108(2)(a)

Kansas Supreme Court – Criminal

appellate practice; crimes and punishment; criminal procedure
State v. Perry
Brown District Court - Reversed; Court of Appeals - affirmed
No. 109,506 - march 25, 2016

FACTS: Perry and husband Shelly each pled no contest to unlawful distribution of drug precursor and unlawful possession of drug precursor. Defense counsel filed no direct appeal. Perry filed K.S.A. 60-1507 motion arguing for sentence reduction under the identical offense doctrine discussed in State v. Snellings, 294 Kan. 149 (2012), a case handed down the date of Perrry’s sentencing. District court held Snellings applied only to the possession of drug precursor conviction, and reduced that sentence. Perry appealed. Court of Appeals remanded for hearing to determine if any exception under State v. Ortiz, 230 Kan. 733 (1982), excused the late appeal. District court found no exception applied. Court of Appeals panel in Perry’s case reversed in unpublished opinion, holding the third Ortiz exception applied. It also ruled in Perry’s favor on merits of her Snellings challenge, and ordered resentencing on Perry’s conviction for unlawful distribution of drug precursor. State’s petition for review on Ortiz issue granted. State did not contest panel’s ruling on merits of identical offense doctrine.

ISSUES: Third Ortiz Exception for Untimely Appeal

HELD: As in Shelly decided this date, evaluation of third Ortiz exception requires consideration of whether the defendant received effective assistance of counsel under Roe v. Flores-Ortega, 528 U.S. 470 (2000). A criminal defendant whose counsel erroneously advises that there is no issue worthy of direct appeal is eligible for application of third Ortiz exception if the defendant demonstrates a timely appeal would have been taken but for the erroneous advice. Court of Appeals is affirmed on this point of law.

STATUTES: K.S.A. 2011 Supp. 21-5710; K.S.A. 60-1507

Kansas Supreme Court – Criminal

appellate practice; crimes and punishment; criminal procedure
state v. shelly
Brown District Court – Reversed; Court of Appeals – reversed and remanded
no. 109,292 - march 25, 2016

FACTS: Shelly and wife Perry each pled no contest to unlawful distribution of drug precursor and unlawful possession of drug precursor. Defense counsel filed no direct appeal. Shelly filed K.S.A. 60-1507 motion arguing for sentence reduction under the identical offense doctrine discussed in State v. Snellings, 294 Kan. 149 (2012), a case handed down the date of Shelly’s sentencing. District court held Snellings applied only to the possession of drug precursor conviction, and reduced that sentence. Shelly appealed. Court of Appeals remanded for hearing to determine if any exception under State v. Ortiz, 230 Kan. 733 (1982), excused the late appeal. Shelly argued the first exception applied because he was not informed of right to appeal the severity level of the sentence as required by State v. Patton, 287 Kan. 200 (2008), and third exception applied because defense counsel knew Shelly wanted to appeal sentence and failed to file timely notice of appeal. District court found no exception applied, noting third exception not applicable because Shelly did not direct counsel to perfect an appeal. Court of Appeals panel in Shelly’s case affirmed and dismissed the appeal. 49 Kan.App.2d 942 (2014). Shelly’s petition for review granted.

ISSUES: (1) First Ortiz Exception for Untimely Appeal, (2) Third Ortiz exception for Untimely Appeal

HELD: Panel did not err in concluding the first Ortiz exception was inapplicable. Patton is discussed and distinguished.

Evaluation of third Ortiz exception requires consideration of whether the defendant received effective assistance of counsel under Roe v. Flores-Ortega, 528 U.S. 470 (2000). That was not done in this case by district court or the panel. As to whether Shelly satisfied the exception’s standard, federal circuit court opinions are cited for persuasive guidance. Where counsel erroneously advises there is no issue worthy of direct appeal, a criminal defendant is eligible for application of third Ortiz exception if the defendant demonstrates a timely appeal would have been taken but for the erroneous advice. Under facts in this case, the third Ortiz exception permitted Shelly’s untimely direct appeal. Court of Appeals’ dismissal of the appeal is reversed and case is remanded for consideration of Shelly’s Snellings argument on his distribution of drug precursor conviction. See also Perry’s appeal, decided the same date.

STATUTES: K.S.A. 2015 Supp. 22-3608(c); K.S.A. 2011 Supp. 21-5710; K.S.A. 22-3210(a)(2), -3424(f), -4505, 60-1507

more Calendar

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KBA Webinar: Looking for Answers: Using Ethics to Guide Your Law Practice Management Decisions

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