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April 22, 2016, Appellate Court Digests
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Kansas Supreme Court – Criminal

CONSTITUTIONAL LAW; CRIMES AND PUNISHMENT; PRIOR CONVICTIONS
STATE V. BUSER
MITCHELL DISTRICT COURT – REVERSED
NO. 105,892 – APRIL 22, 2016

FACTS: Buser was convicted in 2009 of indecent liberties with a child. District court ordered lifetime registration as sex offender under Kansas Offender Registration Act (KORA), K.S.A. 22-4901et seq.,because Buser had prior juvenile adjudication. Buser appealed, claiming the prior adjudication was not a conviction, and could not be used to enhance the KORA registration period. State agreed, but argued Buser as a first offender was subject to 25-year registration term in KORA as amended in 2011. Buser argued in reply that a 10-year registration term applied, and that application of 2011 amendment to expand the registration term violated the Ex Post Facto Clause. In unpublished opinion, court of appeals found State correctly conceded error in the lifetime registration term, held the 25-year registration term could be applied retroactively, and remanded case to district court. Buser’s petition for review on the Ex Post Facto Clause claim granted.

ISSUE: Retroactive application of KORA 2011 amendments

HELD: Buser is subject to KORA provisions in effect in 2009. Consistent with holdings in companion Ex Post Facto cases, Doe v. Thompson and State v. Redmond, KORA’s statutory scheme after 2011 amendments was so punitive in effect as to negate implied legislative intent to deem it civil, thus Ex Post Facto Clause precludes application of KORA as amended in 2011 to any sex offender who committed the qualifying crime prior to July 1, 2011. [This holding is overruled inState v. Petersen-Beard, filed this same date.]

DISSENT (Biles, J., joined by Nuss, C.J. and Luckert, J.): Dissents for reasons stated in his dissent in Doe v. Thompson. Majority disregards contrary federal caselaw.

STATUTES: K.S.A. 2011 Supp. 22-4902(b), -4902(c)(2); K.S.A. 22-4906et seq., -4906(a)

Kansas Supreme Court – Criminal

CONSTITUTIONAL LAW; CLOSING ARGUMENT; CRIMES AND PUNISHMENT; SENTENCING; STATUTES
STATE V. CHARLES
SEDGWICK DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART
NO. 105,148 – APRIL 22, 2016

FACTS: Charles was convicted of reckless aggravated battery, felony criminal damage to property, and criminal threat. District court imposed prison term and found Charles’ commission of aggravated battery employing a deadly weapon required registration as a violent offender under Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. Charles appealed claiming: (1) lesser included offense instruction for reckless aggravated battery was impermissibly overbroad; (2) State failed to prove each means of reckless aggravated battery beyond a reasonable doubt; (3) district court erroneously failed to give limiting instruction on statements Charles made to one store clerk moments prior to statements Charles made to a second clerk; (4) prosecutor impermissibly injected his personal opinion of evidence; and (5) cumulative error denied Charges a fair trial. Charles also challenged the KORA requirement for a judicial fact-finding of violent offender as violating Apprendi v. New Jersey, 530 U.S. 466 (2000). Court of appeals affirmed in unpublished opinion. Review granted on all issues.

ISSUES: (1) Breadth of lesser included instruction, (2) Sufficiency of evidence on asserted alternative means, (3) Prosecutorial misconduct, (4) Need for limiting instruction, (5) Cumulative error, (6) Constitutionality of KORA registration requirement for violent offender

HELD: Giving a lesser included offense instruction that is overbroad compared with State’s charged theory of the case is error. State charged Charles with intentional aggravated battery by using SUV to cause bodily harm to the victim. District court erred by expanding the lesser included instruction to state that Charles could be convicted if jury found he inflicted bodily harm on victim “in any manner whereby great bodily harm, disfigurement or death can be inflicted.” This overbroad lesser included offense instruction was not factually or legally appropriate, but in this case did not qualify as a clear reversible error under K.S.A. 22-3414(3).

Reckless aggravated battery is not an alternative means crime. Sufficient evidence supported Charles’ conviction.

A prosecutor’s repeated use of “I think” or its equivalent or substantive opposites is discouraged as susceptible to interpretation as expression of improper and irrelevant opinion on quantity and quality of evidence. In this case, prosecutor’s use of the phrase was troubling, but viewed in context appears to have been verbal tic or time filler which did not fall outside wide latitude given to prosecutor in discussing evidence during closing argument.

Store clerk’s testimony about statements Charles made to another clerk during Charles’ short time in store was not subject to K.S.A. 60-455. A limiting instruction on prior bad act evidence was not legally or factually appropriate.

Cumulative error doctrine is inapplicable where only a single error is identified on appeal.

Informed by Doe v. Thompson (filed this same date), the registration requirement for violent offenders under 2009 version of KORA qualified as punishment under Due Process Clause. Under Apprendi, imposition of this requirement required a jury to find Charles used a deadly weapon. It could not be constitutionally imposed based on judicial, rather than jury, fact-finding. Registration requirement in Charles’ sentence is vacated. Court notes that the holding by new majority in Petersen-Beard (filed this same date) may influence whether the KORA holding of this case can be relied upon by violent offenders whose appeals have yet to be decided.

CONCURRENCE (Johnson, J., joined by Luckert, J. and Michael J. Malone, Senior Judge assigned): Concurs in the result, but takes exception to majority’s holding that prosecutor committed no error. Would instead find the prosecutor’s erroneous statements of personal opinion were harmless error.

STATUTES: K.S.A. 2011 Supp. 22-4907, -4909(a); K.S.A. 21-3201(c), 22-3414(a)(2)(B), -3414(3), -4901et seq., -4907, -4909(a), 60-455

Kansas Supreme Court – Criminal

STATE V. HANKINS
JOHNSON DISTRICT COURT – REVERSED AND REMANDED
NO. 109,123 – APRIL 22, 2016

FACTS: Hankins filed motion to correct illegal sentence, claiming sentencing court used incorrect criminal history score by including an Oklahoma deferred judgment as a prior conviction. District court denied the motion, finding defense attorney’s comments during sentencing waived Hankins’ right to challenge criminal history score, and Hankins failed to prove score was incorrectly calculated. Court of appeals affirmed, holding invited error doctrine barred Hankins’ challenge, and opining Hankins would lose on the merits because his Oklahoma deferred judgment sufficiently established his guilt to make it a conviction for Kansas sentencing purposes. 49 Kan.App.2d 971 (2014). Concurring judge disagreed with majority’s holding on invited error, but agreed with results on the merits based on Kansas Supreme Court precedent. Hankins’ petition for review granted.

ISSUES: (1) Invited Error - Review of an illegal sentence, (2) Criminal history scoring of Oklahoma deferred judgment

HELD: In Kansas, a defendant cannot agree to an illegal sentence. Stipulation of Hankins’ attorney was directed at a legal finding, not a factual one. Hankins’ illegal sentence challenge is subject to appellate review.

District court and court of appeals are reversed, and case is remanded for resentencing with proper criminal history score. Under Oklahoma’s deferred sentencing statute, when Hankins met all conditions of the deferred judgment, his guilty plea was expunged and the charge dismissed with prejudice. A judgment of guilt by the foreign court is required to meet Kansas’ definition of a conviction. Because no judgment of guilt was ever entered upon Hankins’ plea of guilt, the Oklahoma case did not constitute a conviction for purposes of calculating Hankin’s criminal history score under the Kansas Sentencing Guidelines Act. Also, the fact that the mitigated sentence imposed from the incorrect grid block is less than the potential sentence from the correct grid block does not legalize an otherwise illegal sentence.

DISSENT (Stegall, J., joined by Luckert, J.): Would affirm lower court’s application of invited error doctrine in this case. Applying rule in State v. Vadervort, 276 Kan. 164 (2003), as modified in State v. Dickey, 301 Kan. 10108 (2015), Hanks stipulated to the existence of the conviction he now challenges, and that stipulation was factual, strategic, and intentional. Would not extend the Dickey exception to the Vandervort rule to encompass failures to object to the existence of conviction noted on a defendant’s PSI.

STATUTES: K.S.A. 2014 Supp. 21-5111, K.S.A. 2010 Supp. 21-4704(e)(1), -4710(d)(2), -4715(c); K.S.A. 21-3110(4), -4204(a)(3), -4703(q), -4711(e), -4715(c), 60-1501, -1507

Kansas Supreme Court – Criminal

STATE V. MULLEN
JOHNSON DISTRICT COURT – AFFIRMED
NO. 110,468 – APRIL 22, 2016

FACTS: Anticipatory search warrant issued for search of home after mail delivery of a package to which a K-9 had alerted. While under law enforcement surveillance of residence, a postal inspector knocked on the door of the residence to deliver a package, and left the package at the door when no one answered. Mullen opened the door a few minutes later and retrieved the package, then the search warrant was executed. Mullen was charged with possession of marijuana with intent to distribute. He filed motion to suppress the marijuana and his statements to police, arguing the triggering event within the anticipatory search warrant required hand to hand delivery. District court found the search warrant was supported by probable cause, and law enforcement effected a controlled delivery of the package. Mullen appealed. Court of appeals rejected Mullen’s claims concerning lack of probable cause for the warrant and no controlled delivery, but reversed and remanded on other grounds. Supreme court granted Mullen’s petition for review of the court of appeals decision affirming the denial of motion to suppress.

ISSUES: (1) Probable cause for search warrant, (2) Controlled delivery

HELD: Law enforcement affidavit in this case provided a substantial basis for district court’s determination that probable cause supported a search of the home. Citing U.S. v. Grubbs, 547 U.S. (2006), and other cases, no merit to Mullen’s argument that an anticipatory search warrant of a home must be supported by evidence indicating an occupant of the home anticipates receiving a package in the mail containing contraband.

A “controlled delivery” does not require law enforcement to employ a specific method of conveyance. As long as means employed to deliver contraband to site of an anticipatory search warrant was (1) performed under control and supervision of law enforcement officers, and (2) establishes a fair probability that contraband will be found inside the location upon execution of the search warrant, then the delivery will be considered a “controlled delivery.” Under facts in case, a controlled delivery of the package to a resident of the home was accomplished.

STATUTES: None

Kansas Supreme Court – Criminal

CONSTITUTIONAL LAW; CRIME AND PUNISHMENTS; SENTENCING; STATUTES
STATE V. PETERSEN-BEARD
SALINE DISTRICT COURT – AFFIRMED
NO. 108,061 – APRIL 22, 2016

FACTS: District court imposed sentence that included lifetime registrations as a sex offender pursuant to Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. Petersen-Beard appealed, claiming cruel and unusual punishment under U.S. and Kansas constitutions. Court of appeals affirmed in unpublished opinion. Review granted.

ISSUE: Lifetime sex offender registration under KORA

HELD: Lifetime post-release registration for sex offenders mandated by KORA does not constitute punishment for purposes of applying provisions of the U.S. Constitution or Kansas Constitution Bill of Rights. Contrary holdings by majority that heard and decided three companion cases (Doe v. ThompsonState v. Redmond, and State v. Buser) are overruled. Dissent in Thompson is liberally quoted, and reasoning therein is adopted. No textual or historical reason is found to depart from general practice of giving identical interpretation to identical language appearing in both Kansas and U.S. constitutions.

DISSENT (Johnson, J., joined by Beier and Rosen, JJ.): Explains the unusual circumstance whereby opinions in the companion 2014 ex post facto cases are filed the same day as the instant 2015 case that purports to overrule their holdings, and to state that the defendants in the companion 2014 Ex Post Facto cases remain entitled to the relief granted in their appeals. Maintains the majority’s assertion, that KORA is not punitive for Eighth Amendment purposes requires reversal of the prior companion Ex Post Facto cases, is dictum. Criticizes majority’s rationale and reliance on federal circuit court decisions to decide constitutionality of the Kansas act, and argues the current U.S. Supreme Court would now view disclosure provisions in KORA differently than those viewed in the Alaska act in Smith v. Doe, 538 U.S. 84 (2003). Voices opposition to practice of simply adopting federal constitutional interpretation for similar State constitutional provisions.

STATUTES: K.S.A. 2015 Supp. 8-1567(m), 59-29a01, -29a07(g); K.S.A. 20-2616(b), -3018(b), 22-4901 et seq., 60-2101(b)

Kansas Supreme Court – Criminal

CONSTITUTIONAL LAW; CRIMES AND PUNISHMENTS; SENTENCING; STATUTES
STATE V. REDMOND
SHAWNEE DISTRICT COURT – AFFIRMED
NO. 110,280 – APRIL 22, 2016

FACTS: Redmond was convicted in 2001 of indecent solicitation of a child. His suspended prison sentence included probation and registration as sex offender under Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. with 10-year reporting requirement. State charged Redmond of violating KORA, based on three instances of failing to report in 2012. Redmond filed motion to dismiss the charges, claiming ex post facto violation. District court granted the motion. State’s appeal transferred to Kansas Supreme Court.

ISSUE: Retroactive Application of KORA 2011 Amendments

HELD: Consistent with holdings in companion ex post facto cases, Doe v. Thompson and State v. Buser, district court is affirmed. KORA’s statutory scheme after 2011 amendments was so punitive in effect as to negate implied legislative intent to deem it civil, thus the Ex Post Facto Clause precludes application of KORA as amended in 2011 to any sex offender who committed the qualifying crime prior to July 1, 2011. [This holding is overruled in State v. Petersen-Beard, filed this same date.]

DISSENT (Biles, J., joined by Nuss, C.J. and Luckert, J.): Dissents for reasons stated in his dissent in Doe v. Thompson. Majority disregards contrary federal caselaw.

STATUTES: K.S.A. 2011 Supp. 22-4902(b), -4902(c)(6), -4906(b)(1)(B); K.S.A. 2001 Supp. 22-4906(a), -4906(b); K.S.A. 20-3018(c), 22-4901et seq.; K.S.A. 21-3510 (Furse 1995)

Kansas Supreme Court – Criminal

CONSTITUTIONAL LAW; CRIMES AND PUNISHMENT; SENTENCING; STATUTES
DOE V. THOMPSON
SHAWNEE DISTRICT COURT – AFFIRMED
NO. 110,318 – APRIL 22, 2016

FACTS: “John Doe” was convicted in 2003 of indecent liberties with a child. He completed probation term in 2006, registered as sex offender under Kansas Offender Registration Act (KORA), K.S.A. 22- 4901et seq., and complied with 10 year reporting requirement. KBI notified Doe in 2011 that amendments to KORA extended the reporting period to 25 years. Doe filed declaratory judgment action against State claiming retroactive application of 2011 amendments to KORA violated Ex Post Facto Clause of U.S. Constitution. District court allowed Doe to proceed under pseudonym. It granted summary judgment to Doe, finding legislature intended KORA to be a civil statutory scheme but the effect of the act was punitive pursuant to factors in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), thus retroactive application of 2011 amendments to KORA violated the Ex Post Facto Clause. District court ordered termination of Doe's additional 15-year registration requirement, and deletion of all publicly displayed KORA information. State appealed, arguing district court erroneously (1) refused to strike inadmissible evidence submitted with Doe's motion for summary judgment and took judicial notice of certain journal articles; (2) permitted Doe to proceed under a pseudonym; and (3) concluded the KORA amendments violated the Ex Post Facto Clause. State also complained about district court granting Doe leave to proceed with pseudonym.

ISSUES: (1) Motion to strike material attached to summary judgment motion, (2) Use of pseudonym, (3) Retroaction application of 2011 KORA amendments

HELD: Affidavits attached to Doe’s motion are examined, finding any inadmissible information can be disregarded in reviewing district court’s judgment. Likewise, no need to reference appended journal articles which district court erroneously found were not subject to judicial notice statute.

No abuse of district court’s discretion in allowing Doe to proceed pseudonymously.

KORA as amended in 2011 is compared and distinguished from Alaska sex offender registration act examined in Smith v. Doe, 538 U.S. 84 (2003). District court correctly found the legislature intended KORA to be a civil statutory scheme, but as amended in 2011 the act was punitive in effect. Ex Post Facto Clause is violated by retroactive application of KORA 2011 amendment to any sex offender who committed the qualifying crime prior to July 1, 2011. [This holding is overruled in State v. Petersen-Beard, filed this same date.]

CONCURRENCE (Biles, J., joined by Nuss, C.J. and Luckert, J.): Agrees that legislature intended KORA and 2011 amendments to be a civil regulatory scheme, and agrees the proper retroactivity test is whether 2011 amendments at issue in this case render KORA so punitive as applied to sex offenders as to negate that intent. Majority, however, disregards substantial federal caselaw that offender registration laws are non-punitive and may be applied retroactively without violating Ex Post Facto Clause.

STATUTES: K.S.A. 2012 Supp. 60-356(e)(1), -460(1); K.S.A. 2002 Supp. 22-4906(a); K.S.A. 22-4901 et seq., 60-409 et seq., -409(a), -409(b)(3), -409(b)(4), -410, -2101(b); K.S.A. 21-3503(a)(1) (Furse 1995)

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