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November 25, 2015, Appellate Court Digests
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Kansas Supreme Court – Attorney Discipline

DISBARMENT
In the Matter of CHRISTOPHER W. O'BRIEN
No. 8804 – November 24, 2015

FACTS: In a letter signed November 10, 2015, respondent Christopher W. O'Brien, an attorney admitted to practice law in Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217. At the time the respondent surrendered his license, a complaint had been docketed by the office of the Disciplinary Administrator for investigation. The complaint alleged that the respondent violated Kansas Rules of Professional Conduct 1.15 (2015 Kan. Ct. R. Annot. 556) (safekeeping property) and 8.4(b) and (c) (2015 Kan. Ct. R. Annot. 672) (misconduct). The allegations involved conversion of client funds.

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

ORDER OF REINSTATEMENT
In the Matter of SUSAN L BOWMAN
No. 109,512 – November 24, 2015

FACTS: On October 18, 2013, Court suspended the petitioner, Susan L. Bowman, from the practice of law in Kansas for a period of 12 months. See In re Bowman, 298 Kan. 231, 310 P. 3d 1054 (2013). The court further ordered that the petitioner undergo a hearing, pursuant to Supreme Court Rule 219 (2015 Kan. Ct. R. Annot. 403), prior to consideration of a petition for reinstatement. On January 21, 2015, petitioner filed a motion for reinstatement.

HEARING PANEL: On August 13, 2015, a hearing panel of the Kansas Board for Discipline of Attorneys conducted a hearing to consider the petitioner’s petition for reinstatement. On August 18, 2015, the hearing panel filed its report setting out the circumstances leading to the petitioner’s suspension, a summary of the evidence presented, and its findings and recommendations. The panel unanimously recommended that the petitioner’s petition for reinstatement of her license to practice law in Kansas be granted, subject to certain terms and conditions detailed in the report.

HELD:Court accepted the findings and recommendations of the hearing panel and granted the petitioner’s petition for reinstatement of her license to practice law in Kansas, subject to compliance with the terms and conditions detailed in the hearing panel’s report.

Kansas Supreme Court – Criminal

STATE V. DERN
POTTAWATOMIE DISTRICT COURT -  AFFIRMED IN PART, REVERSED IN PART
COURT OF APPEALS - AFFIRMED IN PART, REVERSED IN PART ON ISSUE REVIEWED
NO. 106,406 - NOVEMBER 25, 2015

FACTS: Dern convicted of two counts each of aggravated indecent liberties and aggravated criminal sodomy.   Victims were twin daughters F.D. and C.D. In unpublished opinion, Court of Appeals affirmed all convictions, finding no error in: (1) district court’s finding that Dern’s confession to law enforcement officers was voluntary, and denial of motion to suppress; (2) Dern’s confession to prior uncharged sexual misconduct of the victims was admissible under K.S.A. 60-455 to prove “criminal disposition;” (3) jury instruction for aggravated criminal sodomy improperly included alternative means of committing sodomy, but error was invited by Dern’s failure to object; (4) there was adequate corroborating evidence of Dern’s crimes against C.D. to satisfy common-law corpus delicti doctrine; (5) jury instruction for aggravated indecent liberties did not state alternative means; and (6) jury was properly instructed on reasonable doubt.  Dern’s petition for review on all issues granted.

ISSUES: (1) Voluntary Confession, (2) Evidence of Prior Sexual Misconduct, (3) Invited Error Doctrine – Jury Instruction, (4) Corpus Delicti Rule, (5) Alternative Means – Aggravated Indecent Liberties Instruction, (6) Reasonable Doubt Instruction

HELD: Under totality of circumstances, district court correctly held that Dern’s confession to law enforcement officers was voluntary and admissible.  Substantial competent evidence supported district court’s findings that undercut Dern’s arguments regarding his mental condition and fairness of interrogation techniques.

Court’s adherence to State v. Prine, 297 Kan. 460 (2013)(Prine II), continues.  Balancing test argued by parties is applied, finding no abuse of discretion in district court’s ruling that probative value of evidence of Dern’s prior sexual misconduct was not outweighed by undue prejudice.

Both aggravated criminal sodomy convictions are reversed.  Jury was improperly instructed on alternative means of committing aggravated criminal sodomy without supporting evidence for each means, and panel erroneously applied invited error doctrine to save those convictions.  Dern’s proposed instruction did not include sodomy definition with alternative means language.  Panel improperly extended State v. Schreiner, 46 Kan.App.2d 778 (2011), to apply invited doctrine error based only on Dern not objecting to the faulty instruction in this case.  Open question remains whether Schreiner and progeny appropriately applied doctrine when instruction was in fact requested. Consideration of whether alternative means error can ever be harmless is precluded by State’s failure to argue the point.

Background and development of formal corpus delicti rule is discussed.  Adherence to formal rule in this case would require reversal of Dern’s aggravated indecent liberties conviction concerning C.D. because no independent evidence corroborated Dern’s confession.  Criticisms of formal rule are outlined, including U.S. Supreme Court’s adoption of trustworthiness standard whereby a reliable confession is sufficient evidence to establish corpus delicti of the alleged offense.  Trustworthiness standard in Kansas is recognized, citing longstanding recognition in Kansas cases of this method of showing corpus delicti. Nonexclusive list of factors for determining trustworthiness are stated.  Evidentiary standard for finding a confession or admission sufficiently trustworthy to satisfy State’s obligation to present prima facie showing of corpus delicti is akin to standard of review applicable to sufficiency of the evidence claims.  That standard is satisfied in Dern’s case.

Alternative means claim based on aggravated indecent liberties jury instruction is defeated by State v. Brown, 295 Kan. 181 (2012).

Claim regarding reasonable doubt instruction is defeated by State v. Herbel, 296 Kan. 1101 (2013).

CONCURRENCE AND DISSENT (Biles, J.): This court has not previously adopted or applied “trustworthiness” standard embraced by majority.  Does not champion formal rule, and agrees with many criticisms of the rule, but Dern’s conviction can and should be affirmed using multiple crimes exception to formal corpus delicti rule as applied in State v. Long, 189 Kan. 273 (1962), which does not raise inescapable due process concern arising from application of trustworthiness rule in this case.  Also, believes error in the aggravated criminal sodomy instruction was harmless in this case, but a future case will have to provide opportunity to revisit alternative means jurisprudence for harmless error analysis.

CONCURRENCE AND DISSENT (Johnson, J.): Joins Biles’ concurrence and dissent addressing corpus delicti rule, but adds that C.D.’s prior statements and her sister’s contemporaneous statements provide additional basis from which to draw justifiable inference that crime against C.D. did in fact occur.   Also, agrees with majority and Biles that State’s failure to argue harmless error precludes reconsideration of caselaw on this matter, and is open to further discussion on whether alternative means error can ever be harmless error.  

STATUTES: K.S.A. 2014 Supp. 60-455, -455(d); K.S.A. 20-3018(b), 21-3504a)(3)(4), -3506(a)(1), 22-3414(3), 60-417, -455, -2101(b)

Kansas Court of Appeals – Civil

TELECOMMUNICATIONS; RURAL CARRIERS
Bluestem Telephone Company, et al., v. Kansas Corp. Com., et al.
Washington District Court – Reversed in part, vacated in part, and remanded with directions
No. 112,364 – November 25, 2015

FACTS:Bluestem Telephone Company and numerous other rural local exchange carriers (RLECs) appeal the district court's order affirming an order from the Kansas Corporation Commission (Commission), altering the manner in which the RLECs would receive support from the Kansas Universal Service Fund (KUSF) in light of a new order from the Federal Communications Commission (FCC) and subsequent state statutory amendments.

The district court upheld the Commission's determination that K.S.A. 2013 Supp. 66-2005(c)(1) was preempted, either expressly or impliedly. The district court determined that the KUSF reimbursement statute stood as an obstacle to the objectives of the Transformation Order's reform of intercarrier compensation and its transition to a bill-and-keep methodology. The district court also found that the Commission's interpretation that the statute's only require embedded costs and revenue requirements be the "starting point" for calculating KUSF subsidies was a reasonable interpretation of the statute and that the Commission appropriately considered the Transformation Order and the public policy goals supporting it.

ISSUES: (1) Telecommunications and (2) Rural Carriers

HELD:Court held that absent evidence that KUSF is being used to undermine the FCC's goals of expanding broadband deployment, ensuring more efficiencies as a condition of FUSF support, and transitioning to a bill-and-keep marketplace, it concluded the Commission and district court erred in finding the Transformation Order preempted state aid mechanisms to assist RLECs in carrying forth with obligations under the Transformation Order. In light of the fact that the federal transition for RLECs is scheduled to take place over 9 years from 2011, it does not appear at present that K.S.A. 2014 Supp. 66-2005(c)(1) is expressly or impliedly preempted by the Transformation Order. Court also found the RLECs failed to establish how the Commission has taken any action to compensate them less than required by the KTA or "traditional ratemaking." Therefore, the RLECs' challenge to the Commission's rulings regarding reimbursement for their reasonable embedded costs and revenue requirements is not ripe for adjudication. Court vacated the district court's order approving the Commission's ruling that support for rate-of-return carriers could be less than each carrier's "embedded costs, revenue requirements, investments and expenses" as provided in K.S.A. 2014 Supp. 66-2008(e)(1) and remanded the matter to the district court with instructions for it to dismiss that part of the petition.

STATUTES: K.S.A. 66-118a, -2001, -2005, -2008; K.S.A. 77-601, -621

Kansas Court of Appeals – Criminal

MOTION TO WITHDRAW PLEA; INEFFECTIVE ASSISTANCE OF COUNSEL CONFLICT OF INTEREST
State v. Jackson
Seward District Court – Reversed and remanded with directions
No. 112,575 – November 25, 2015

FACTS: Deshawn Jackson pled guilty to attempted second-degree murder. Jackson appeals the trial court's denial of his post-sentencing motion to withdraw plea. On appeal, Jackson argues that there are two reasons the trial court erred when it denied his motion. First, Jackson argues that he has established that his attorney, Aaron Gipson, coerced him into accepting the plea agreement by telling him that if he rejected the plea agreement he would receive the maximum possible sentence. Second, Jackson argues that Gipson provided ineffective assistance of counsel due to a conflict of interest that adversely affected his representation because he had previously represented a witness in the case and was dually representing the witness now.

ISSUES: (1) Motion to Withdraw Plea, (2) Ineffective Assistance of Counsel, and (3) Conflict of Interest

HELD: Court rejected Jackson's coercion argument. Court stated the trial court made a credibility determination which was supported by substantial compete evidence and Court deferred to the trial court's findings. However, Court held Jackson successfully showed that Gipson represented Jackson when the conflict of interest arose and, after that, Gipson negotiated a plea agreement that encompassed the very offense giving rise to the conflict of interest. Because the effect of Gipson's actual conflict of interest extended to the guilty-plea proceeding, it adversely affected the adequacy of his representation of Jackson during the plea negotiations with the State. Court concluded Gipson's representation adversely affected Jackson's interests.

DISSENT: Judge Lahey dissented and stated that when a defendant knows of a conflict and fails to object, the defendant must show the conflict had a significant actual effect on the adequacy of counsel's representation. Judge Lahey would find Jackson failed to make the required showing.

STATUTES: K.S.A. 21-5301, -5402, -5403, -5413, -5420; K.S.A. 22-3210

FEDERAL ACTS – CRIMES AND PUNISHMENT – APPELLATE PRACTICE
STATE V. OCHOA-LARA
JOHNSON DISTRICT COURT - AFFIRMED
NO. 112322 - NOVEMBER 25, 2015

FACTS: Ochoa-Lara used another person’s Social Security number to obtain employment. Because his actions were subject to Kansas identity statute before and after date K.S.A. 21-4018 was repealed and replaced by K.S.A. 2011 Supp. 21-6107, State charged separate identity theft charges under each statute. Ochoa-Lara was convicted of two counts of identity theft following bench trial on stipulated facts. On appeal he argued the charges should have been dismissed for lack of jurisdiction because the Immigration Reform and Control Act (IRCA) preempts state prosecution for identity theft based on unlawful use of another person’s Social Security number. He also claimed the charges were multiplicitous.

ISSUES: (1) Preemption and (2) Multiplicity

HELD: Kansas identity theft statute does not regulate conduct associated with employment-related verification of immigration status, nor does it create criminal penalties for unauthorized aliens working or seeking work in Kansas. State prosecution of identity theft based upon unlawful use of another’s Social Security number is not preempted by IRCA. Cases in accord from other jurisdictions are cited. Here, State’s prosecution of Ochoa-Lara for illegal use of another person’s Social Security number did not depend on his immigration status, the lawfulness of his presence in the U.S., or his eligibility for employment.

Ochoa-Lara failed to preserve multiplicity claim for appellate review. He articulated no exception allowing court to consider issue for first time on appeal, filed no reply brief to State’s preservation argument, and failed to comply with Rule 6.02(a)(5).

STATUTES: 8 U.S.C. §§1324a, 1324a(a)(3), 1324a(b)(5) (2012); K.S.A. 2011 Supp. 21-6107, -6107(a)(1); K.S.A. 21-4018, -4018(a)

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