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September 2, 2016, Appellate Court Digests
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Kansas Supreme Court – Attorney Discipline

Original Proceeding in Discipline
In the Matter of Kenton M. Hall
60 Day Suspension
No. 114,636 – September 2, 2016

FACTS: In June 2015, a hearing panel of the Kansas Board for Discipline of Attorneys determined that Hall violated KRPC 3.3(a)(1) (candor toward tribunal), 8.4(c) (engaging in conduct involving misrepresentation), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and Supreme Court Rule 208 (registration of attorneys). Hall was initially licensed in Kansas, but after he was licensed in Missouri and accepted employment there he changed his Kansas registration status to "inactive". In 1996, Hall failed to pay the inactive registration fee, and his Kansas license was suspended. Hall twice inquired about the procedure for changing his status to "active", but he never completed the process. After 2012, Hall submitted several applications to appear pro hac vice in Kansas district courts. On the applications, Hall did not list his Kansas bar admission. A complaint was submitted to the Office of the Disciplinary Administrator after local counsel discovered that Hall's Kansas license was suspended.

Hearing Panel: The hearing panel determined that Hall did not engage in the unauthorized practice of law. Hall stipulated to violations of KRPC 3.3(a)(1), 8.4(c), 8.4(d), and Supreme Court Rule 218. The hearing panel found that Hall acted negligently. After considering many mitigating factors, the hearing panel recommended discipline of published censure. The Disciplinary Administrator appealed, arguing that the hearing panel assigned Hall the wrong mental state and considered an inappropriate mitigating circumstance.

HELD: The hearing panel erred when it found that Hall did not violate Supreme Court rule 5.5(a) by engaging in the unauthorized practice of law. Because he had a Kansas license, albeit a suspended one, Hall was ineligible to be admitted to practice pro hac vice. The Disciplinary Administrator recommend that Hall's license to practice be suspended for 60 days. After finding that the hearing panel erred by finding that Hall's conduct was negligent rather than knowing, a majority of the court agreed and imposed a 60 day suspension. A minority of the court would have imposed a greater sanction.

Kansas Court of Appeals – Civil

Landlord and tenant; Statutory Interpretation; Summary Disposition
Nauheim v. City of Topeka
Shawnee District District Court – Reversed and Remanded
No. 114,271 – September 2, 2016

FACTS: Nauheim and another man were a long-term tenants of a business property. After being approached by the City, the landlord agreed to sell the property to the City in connection with a drainage project. During purchase negotiations, the City made it clear that it needed the property to be vacant before the City acquired title, so that the City would not have to exercise its eminent domain power and, consequently, pay relocation expenses. The tenants relocated without the City exercising eminent domain power. But the tenants filed suit against the City to recover relocation expenses that were incurred when the landlord cancelled the leases on the property. The parties filed competing motions for summary judgment and the district court found in the City's favor, concluding that the tenants failed to prove to prerequisites for recovery of relocation expenses. The tenants appeal.

ISSUES: (1) Are tenants "displaced persons" as that phrase is used in K.S.A. 2015 Supp. 26-518, (2) Was the property acquired "in advance of a condemnation action"

HELD: The relevant question is whether the tenants were displaced because their relocations were a "direct result" of the City acquiring the property owned by the landlord. The uncontroverted facts show that the City's purchase of the property was contingent on the property being vacant at the time of closing. The tenants' forced relocation was a direct result of the City's acquisition of the property, making them displaced persons. But in order to be entitled to relocation benefits, the tenants must prove that the City either threatened or took affirmative action towards condemnation. After viewing the evidence, there are genuine issues of fact as to whether the City acquired the property in advance of condemnation actions. Given the uncertainty in the record, the matter was remanded for further findings of fact.

STATUTE: None

Kansas Court of Appeals – Civil

Guilty Plea; Habeas Corpus; Res Judicata
Woods v. State
Sedgwick District District Court – Affirmed
No. 114,213 – September 2, 2016

FACTS: Under a plea agreement, Woods agreed to plead guilty to one count of second-degree murder. After conducting the necessary inquiries, the district court asked Woods for a factual basis for the guilty plea. Woods addressed the court and said, "I shot and killed" the victim. The district court accepted the plea and found Woods guilty. Woods tried to withdraw his plea prior to sentencing but that motion was denied. That denial was upheld on appeal. Woods filed a K.S.A. 60-1507 motion in district court which was denied. That denial was upheld on appeal. Woods filed a second K.S.A. 60-1507 motion in district court in which he again claimed that he was given ineffective assistance of trial counsel. Woods explained that manifest injustice – a claim of actual innocence – excused the successive filing and required relief on his behalf. The district court disagreed, finding both that no manifest injustice existed and that Woods' claims were barred by res judicata. Woods appealed.

ISSUE: Whether a successive K.S.A. 60-1507 motion is barred by res judicata and waiver

HELD: The issues raised by Woods in this K.S.A. 60-1507 motion have been raised on two prior occasions, and he is barred by case law from raising them a third time. Woods attempts to distinguish his case by claiming actual innocence. But a collateral attack may not be used to challenge a valid guilty plea.

STATUTE: K.S.A. 60-1507

Kansas Court of Appeals – Criminal

Appeals; crimes and punishment; jurisdiction; waiver
State v. Shull
Montgomery District District Court – Affirmed
No. 114,357 – September 2, 2016

FACTS: Shull pled no contest to five counts of sexual exploitation of a child under 18 years old. Plea agreement included amended charges and agreement for upward durational departure sentence of 136 month prison term, which district court imposed. Shull appealed, arguing sentence was illegal because district court did not state substantial and compelling reasons justifying the upward durational departure sentence. State argued in part that there was no jurisdiction for Shull’s appeal, asserting State v. Duncan, 291 Kan. 467 (2010), was wrongly decided. State also argued that Shull waived right to appeal his sentence through his plea negotiations in district court.

ISSUES: (1) Appellate jurisdiction, (2) Waiver of right to appeal, (3) Sentence

HELD: Duncan is indistinguishable from Shull’s case. While panel may agree with State’s assertion that Duncan was wrongly decided, it remains controlling precedent. There is appellate jurisdiction to review Shull’s challenge to the legality of his sentence even if it resulted from a plea agreement.

Striking similarity to State v. Bennett, 51 Kan.App.2d 356 (2015), is noted. As in that case, facts demonstrate the plea agreement was ambiguous as to whether Shull was waiving right to appeal his sentence. Consistent with Bennett, the plea agreement must be strictly construed in Shull’s favor to allow the appeal.

State v. Whitesell, 270 Kan. 259 (2000), is distinguished. Although better practice is for district court to expressly state on record at time of sentencing the substantial and compelling reasons for departure, district court in this case sufficiently complied with K.S.A. 2015 Supp. 21-6815(a) where record clearly shows substantial and compelling reasons justifying the departure sentence requested by both parties.

STATUTES: K.S.A. 2015 Supp. 21-6815(a), -6820(c)(2); K.S.A. 21-4716(a), -4721(a), -4721(c)(2), 22-3504(1)

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