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October 30, 2015, Appellate Court Digests
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Kansas Supreme Court – Attorney Discipline

TWO-YEAR SUSPENDED SUSPENSION AND NO LESS THAN TWO YEARS’ SUPERVISED PROBATION
IN RE ELIZABETH ANNE HUEBEN
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 113,928 – OCTOBER 30, 2015

FACTS: This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against the respondent, Hueben, of Kansas City, Missouri, an attorney admitted to the practice of law in Kansas in 2004. Hueben's ethical issues involve drug and alcohol abuse/convictions and her recovery with the help of KALAP.

DISCIPLINARY ADMINISTRATOR: On February 11, 2015, the Office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on March 9, 2015. The disciplinary administrator recommended that Hueben's license to practice law be suspended for 18 months.

HEARING PANEL: A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on April 14, 2015, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated Supreme Court Rule 203(c)(1) (2014 Kan. Ct. R. Annot. 306) (automatic temporary suspension of attorneys convicted of a felony crime) and KRPC 8.4(b) (2014 Kan. Ct. R. Annot. 680) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer). The hearing panel unanimously recommended to the Court that Hueben be suspended for two years.

HELD: Court held the evidence before the hearing panel established by clear and convincing evidence the charged ethical misconduct. Court held that based upon the circumstances of Hueben's criminal convictions and her concerted and consistent efforts to address the root cause of her disciplinary problems, Court suspended her law license for two years, but suspended the suspension for a period of no less than two years pursuant to the plan of supervised probation.

DISBARMENT
IN RE STEVEN T. MAJORS
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 21,526 – OCTOBER 27, 2015

FACTS: In a letter signed September 30, 2015, addressed to the clerk of the appellate courts, respondent Majors, an attorney admitted to practice law in Kansas, voluntarily surrendered his license to practice law in Kansas. At the time the respondent surrendered his license, a hearing on a formal complaint was scheduled before the Kansas Board for Discipline of Attorneys. The formal complaint alleged that the respondent violated Kansas Rules of Professional Conduct 1.4 (2014 Kan. Ct. R. Annot. 495) (communication), 1.7 (2014 Kan. Ct. R. Annot. 531) (conflict of interest), 1.15 (2014 Kan. Ct. R. Annot. 567) (safekeeping property), 1.16 (Kan. Ct. R. Annot. 583) (declining or terminating representation), 8.1 (2014 Kan. Ct. R. Annot. 670) (disciplinary matters), 8.3 (2014 Kan. Ct. R. Annot. 678) (reporting misconduct), 8.4 (2014 Kan. Ct. R. Annot. 680) (misconduct), and Supreme Court Rule 208 (2014 Kan. Ct. R. Annot. 356) (registration of attorneys).

HELD: Court having examined the files of the Office of the Disciplinary Administrator, found that the surrender of the respondent's license should be accepted and that the respondent should be disbarred.

DISBARMENT
IN RE G. THOMAS WILLIAMS
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 113,929 – OCTOBER 30, 2015

FACTS: This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against the respondent, Williams, of Overland Park, an attorney admitted to the practice of law in Kansas in 1982. Williams' ethical problems involved his representation of a client in a tax liability case and his subsequent dealings with the Office of the Disciplinary Administrator.

DISCIPLINARY ADMINISTRATOR: On September 25, 2014, the Office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed a motion for additional time to file answer on October 16, 2014, which was granted by order dated October 20, 2014, and filed an answer on October 27, 2014. On January 7, 2015, the parties entered into written stipulations of facts. The disciplinary administrator recommended that Williams be disbarred.

HEARING PANEL: A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on January 15, 2015, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.3 (2014 Kan. Ct. R. Annot. 475) (diligence); 1.4(a) (2014 Kan. Ct. R. Annot. 495) (communication); 8.4(c) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct involving misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law); 8.1(a) (2014 Kan. Ct. R. Annot. 670) (false statement in connection with disciplinary matter); and Kansas Supreme Court Rule 207(b) (2014 Kan. Ct. R. Annot. 342) (failure to cooperate in disciplinary investigation). The hearing panel unanimously recommended that Williams be indefinitely suspended from the practice of law.

HELD: Court held the evidence before the hearing panel established by clear and convincing evidence the charged misconduct. Court held Williams validated its decision of disbarment by continuing to suggest that his behavior was something less than criminal and that this characterization somehow minimizes the severity of his actions. However, Williams admitted the conduct of twice lying under oath, which actually is a crime punishable by imprisonment. Court concluded Williams' pattern of misconduct, including the dishonesty, fraud, deceit, and misrepresentation outlined in the hearing panel's report coupled with Williams' continuing denial of the gravity of his conduct lead Court to conclude that disbarment was the appropriate discipline.

Kansas Supreme Court – Criminal

STATE V. LUARKS
SHAWNEE DISTRICT COURT – REVERSED AND REMANDED WITH DIRECTIONS
COURT OF APPEALS – REVERSED
NO. 106,643 – OCTOBER 30, 2015

FACTS: Luarks raised two challenges to the district court's calculation of his criminal history score and his resulting 172-month prison sentence after he was convicted of aggravated battery. He generally contended the court erred by over-classifying all three of his pre-Kansas Sentencing Guidelines Act (KSGA) convictions as person felonies. And he also argued the classification as a person felony of one of those convictions—for burglary—was unconstitutional because it was based on a fact that was never proven to a jury beyond a reasonable doubt.

ISSUES: Criminal history

HELD: Court first stated failure to properly classify prior convictions raises the issue of an illegal sentence. Court held Luarks' arguments are controlled by the recent decisions in State v. Keel, 302 Kan. __, __ P.3d __, 2015 WL 5081212 (No. 106,096, August 28, 2015), and State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). Under Keel, Court readily rejected Luarks' first argument regarding his pre-KSGA convictions for attempted rape and aggravated battery. But as for Luarks' remaining pre-KSGA conviction for burglary, Court agreed with him. Under Dickey, its person classification was improperly based on the implicit judicial finding that he burglarized a dwelling, a fact never proven to a jury beyond a reasonable doubt.

STATUTES: K.S.A. 21-3018, -3414, -3502, -3503, -3504, -3715, -4701, -4711, -5111, -6804, -6809, -6810, -6811; and K.S.A. 60-2101

Kansas Court of Appeals – Civil

JUDGMENTS AND EXCUSABLE NEGLECT
MORTON COURT HOSPITAL V. HOWELL
MORTON DISTRICT COURT – AFFIRMED
NO. 112,768 – OCTOBER 30, 2015

FACTS: Howell was served with a petition and summons to appear in a limited actions case being brought against him by Morton County Hospital for money he allegedly owed it. Howell appeared and admitted the allegations. A judgment was entered against him. Exactly one year later, Howell filed a motion to set aside the judgment claiming excusable neglect. Howell claimed his neglect was excusable because he "did not understand the allegations" he admitted to at the hearing. The district court denied the motion.

ISSUES: (1) Judgments and (2) excusable neglect

HELD: Court stated that district courts have the responsibility under K.S.A. 2014 Supp. 60-260(c)(1) to make a determination regarding whether a motion to set aside the judgment filed under K.S.A. 2014 Supp. 60-260(b) was filed within a reasonable time after the judgment or order was entered. By necessity, there is subject matter jurisdiction for the district court to consider whether a motion filed under K.S.A. 2014 Supp. 60-260(b) has been filed within a reasonable time. Court stated that excusable neglect, for the purposes of K.S.A. 2014 Supp. 60-260(b)(1), must be determined on a case-by-case basis under the facts presented. Court held the district court did not abuse its discretion in implicitly finding that Howell's one-year delay in filing his motion was reasonable. Court concluded that the district court did not abuse its discretion when it found that Howell's stated reasons did not constitute excusable neglect.

STATUTES: K.S.A. 60-252, -259, -260; and K.S.A. 61-2912, -3304

Kansas Court of Appeals – Criminal

STATE V. GRAY
HARVEY DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS
NO. 112,035 – OCTOBER 30, 2015

FACTS: Gray gave false name when he was stopped by Officer Huntley for not signaling a turn, and tried to run from the investigating officers. Disclosure of his true identity revealed outstanding warrants and a suspended driver’s license. State charged Gray with drug possession charges, traffic offenses, and two counts of felony interference with law enforcement — one based on giving Huntley a false name, one based on trying to run from officers. Gray filed motion to suppress, alleging illegal traffic stop and detention. At hearing on the motion, he argued for first time that the stop violated Kansas statutes prohibiting racial profiling. District court denied the motion, finding Huntley did not stop Gray because of Gray’s race, and the stop was a permissible pretrextual stop. Grey was convicted in bench trial of possession of traffic offenses, drug offenses including felony possession of marijuana, and two counts of felony interference with law enforcement. On appeal Grey claimed district court erred in denying motion to suppress where officer who conducted traffic stop violated K.S.A. 2014 Supp. 22-4609, and a Batson -type hearing was required because statute has no prescribed mechanism for enforcement. State argued that this issue was not preserved for appeal, that statutory prohibitions against racial or other biased-based policing are not constitutional protections subject to exclusionary rule, and that substantial competent evidence supported district court’s finding that Huntley did not stop Gray because of Gray’s race. In his appeal Gray also claimed insufficient evidence supported felony interference with law enforcement convictions because State did not prove Huntley believed he was investigating a felony. Gray also claimed the district court lacked jurisdiction to impose felony sentence for possession of marijuana because State did not charge that offense.

ISSUES: (1) Remedy for violation of K.S.A. 2014 Supp. 22-4609, (2) sufficiency of evidence – felony interference with law enforcement, and (3) jurisdiction to impose felony sentence for possession of marijuana

HELD: Adoption of Batson-like procedure to resolve racial policing claims is unnecessary. Gray is not asserting violation of constitutional rights, thus judicially created exclusionary rule does not provide a remedy for suppressing the evidence. But plain language of K.S.A. 22-3216(1) authorizes Gray to seek suppression of evidence obtained as a result of the claimed unlawful traffic stop, notwithstanding civil remedy provided in K.S.A. 2014 Supp. 22-4611(c) for racial or biased-based policing. As in any motion to suppress, State bears burden of proving lawfulness of the search and seizure. Whether officer unlawfully used racial or other biased-based policing is question of fact to be determined by district court, and appellate court examines whether substantial competence evidence supports that determination. In this case, district court did not err in denying motion to suppress because substantial competent evidence supports the district court’s finding that traffic stop was lawful with no violation of K.S.A. 2014 Supp. 22-4609.

Under facts in this case, State failed to provide evidence that Huntley was investigating a felony when Gray gave false name and tried to run away. Evidence was sufficient to support convictions of two counts of misdemeanor interference with law enforcement. Felony interference convictions are reversed. Case is remanded for resentencing Gray for misdemeanor convictions.

Jurisdictional sentencing issue raised for first time on appeal is considered. State clearly charged Gray with possession of marijuana, a severity level 5 felony. The complaint provided Gray with proper notice of the severity level of the felony charge, and district court had jurisdiction to impose a felony sentence.

STATUTES: K.S.A. 2014 Supp. 21-5706, -5706(c)(2); K.S.A. 2014 Supp. 22-4606, -4606(d), -4609, -4609(b), -4611, -4611(c); K.S.A. 2013 Supp. 21-5904, -5904(a)(1)(B), -5904(a)(3), -5904(b)(2), -5904(b)(6); K.S.A. 2011 Supp. 21-5706(b)(3); K.S.A. 21-3808; K.S.A. 22-3216(1), -3216(2); and K.S.A. 65-4160

STATE V. MULLENS
MONTGOMERY DISTRICT COURT – VACATED AND REMANDED WITH DIRECTIONS
NO. 112,988 – OCTOBER 30, 2015

FACTS: Mullens convicted of aggravated escape from custody. He appealed his sentence, arguing for first time Sixth and 14th amendments violations as articulated in Apprendiand Descamps by district court making a factual determination in classifying Mullens’ 2003 Texas juvenile adjudication of burglary as a person felony for criminal history purposes. State argued that Mullens, by not challenging criminal history in district court, effectively stipulated the Texas burglary was comparable to a person felony burglary in Kansas. State also argued this argument could not be raised for first time on appeal, and no factual determination was made because Texas and Kansas statutes were comparable as a matter of law.

ISSUE: Person classification – prior foreign convictions

HELD: Under holding in State v. Dickey, 301 Kan. 1018 (2015), Mullens can challenge person classification of the 2003 Texas burglary for first time on appeal, and State’s argument based on Mullens’ stipulation to his criminal history is rejected. Here, sentencing court necessarily found the Texas burglary adjudication involved entering a dwelling without authority with the intent to commit a felony, theft, or sexually motivated crime therein. It erred in making that factual finding without examining the permissible documents identified in Dickey for information that would have supported such a finding. Mullens’ sentence is vacated. Case is remanded for further proceedings to determine whether Mullens’ Texas burglary adjudication should be classified as a person or nonperson offense for criminal history purposes

STATUTES: K.S.A. 2014 Supp. 21-5111(k), -5807, -5807(a)(1), -6811, -6811(d), -6811(d)(1); and K.S.A. 22-3504(1)

STATE V. WHITE
SALINE DISTRICT COURT – AFFIRMED
NO. 113,164 – OCTOBER 30, 2015

FACTS: Ryan White pled no contest to one count of possessing marijuana with intent to distribute, and the district court imposed 36 months of probation with an underlying sentence of 98 months in prison. White completed all of the conditions of his probation, and in October 2014, he filed a motion to be released from his probation early, citing the presumptive-release statute, K.S.A. 2013 Supp. 21-6608(d), which states that low-risk defendants who comply with their probation for 12 months are eligible for early release, unless the district court finds substantial and compelling reasons to keep them on probation. The district court denied White's motion.

ISSUES: (1) Presumptive early release and (2) effective date of statute

HELD: Court held that K.S.A. 2013 Supp. 21-6608(d), which provides for the presumptive early release of certain defendants from probation, does not apply retroactively to defendants sentenced for crimes committed before July 1, 2013, the effective date of that statute. The State argued that the presumptive-release statute that White relies on doesn't actually apply to his case—White committed his crime in April 2013, and the statute didn't take effect until July 2013. Court stated that the statutes in place at the time a crime is committed control unless the language of a new statute clearly shows that the legislature intended to apply it retroactively. Court found no such language. Since the new presumptive-release statute didn't apply, the district court had complete discretion on the question of White's early release, and it did not abuse its discretion in denying it.

STATUTES: K.S.A. 21-6604, -6608, -6820; and K.S.A. 22-3602

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