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|December 31, 2015, Appellate Court Digests|
Kansas Supreme Court – Civil
LEGAL MALPRACTICE – DEFAULT JUDGMENT
FACTS: George Michael Garcia retained criminal defense attorney, Charles Ball, to represent him in a probation revocation proceeding. The district court accepted Garcia's stipulation to violating probation, revoked his probation, and remanded Garcia to the custody of the Kansas Department of Corrections to serve his originally imposed prison term. But the journal entry of sentencing erroneously directed that Garcia was subject to post release supervision following his probation revocation, which error ultimately led to Garcia serving more time in prison than his original sentence. Garcia sued Ball, alleging legal malpractice. When Ball failed to answer the petition, Garcia notified Ball of the amount of claimed damages and obtained a default judgment. The district court subsequently set aside the default judgment but ultimately dismissed the lawsuit because Garcia had not established his innocence under the exoneration rule. The Court of Appeals reversed, finding that the district court had erred in setting aside the default judgment for excusable neglect under K.S.A. 60-260(b)(1). Ball petitioned this court for review, arguing that the district court properly set aside the default judgment pursuant to K.S.A. 60-260(b)(6). Garcia filed a cross-petition, asking this court to decide whether his legal malpractice claim was barred by either the exoneration rule or the statute of limitations.
ISSUES: (1) Legal malpractice, and (2) default judgment
HELD:Court reversed the Court of Appeals, finding that the district court did not abuse its discretion in setting aside the default judgment pursuant to K.S.A. 60-260(b)(6). Court also reversed the district court's dismissal of the lawsuit, based on recent cases holding that the exoneration rule applicable to a criminal defendant's claim that his or her attorney's legal malpractice resulted in the defendant serving an illegal sentence requires the defendant to obtain post-sentencing relief from the illegal sentence, but the rule does not require the defendant prove that he or she was innocent of the crime for which the illegal sentence was imposed. Court also stated that for a legal malpractice claim based upon an illegal sentence, the cause of action accrues, and the statute of limitations begins to run, when the criminal defendant obtains court-ordered post-sentencing relief from the illegal sentence. Court remanded to the district court to resume the proceedings.
STATUTES: K.S.A. 20-3018; K.S.A. 22-3210, -3716; K.S.A. 60-254, -255, -260, -513, -1507, -2101
Kansas Supreme Court – Criminal
FACTS: Collins entered guilty plea to felony domestic battery. Sentence imposed included 24 months of probation. On appeal Collins argued the 24 month probation term did not conform to applicable statutory scheme, and must be reduced to 12 months. Court of Appeals affirmed in unpublished opinion. Review granted.
ISSUE: Terms of Probation under K.S.A. 2011 Supp. 21-6608
HELD: Because legislature has not prescribed maximum probation term for felony domestic battery convictions, the length of such term is within sentencing court’s discretion. No abuse of district court’s discretion found in this case. Court expresses no opinion regarding other non-grid felonies that lack sentencing-grid severity levels.
STATUTES: K.S.A. 2014 Supp. 21-6412(a)(1), -6412(a)(6), -6412(b)(1), -6416; K.S.A. 2011 Supp. 21-5414, -5414(a), -5414(b), -5414(b)(3), -6601 et seq., -6607(b), -6608, -6608(a), -6608(c), -6608(c)(6); K.S.A. 60-2101(b)
FACTS: Fuller admitted to sexual contact with neighbor, but claimed it was consensual. Jury convicted him of rape, aggravated sexual battery, and aggravated burglary. Defense counsel (Pittman) filed motion for judgment of acquittal, and Fuller filed pro se motion construed as motion for new trial. District court denied both motions after hearing Fuller’s oral arguments of ineffective assistance of counsel. Court of Appeals affirmed in Fuller’s direct appeal without considering allegations against Pittman because record on appeal was not sufficiently developed. Fuller then filed K.S.A. 60-1507 motion on allegations concerning Pitman’s performance. Following evidentiary hearing on three claims of ineffective assistance, district court denied relief without discussing any alleged conflict of interest. Fuller appealed claiming: (1) Pittman was ineffective on direct examination of Fuller; (2) Pittman was ineffective for failing to call witness who would have testified the victim was a "flirt and tease,” and (3) Fuller was denied conflict-free representation at hearing on motion for new trial. Court of Appeals affirmed in unpublished opinion, finding in part the notice of appeal was insufficient for appellate review of claim that Pittman failed to call a witness. Fuller petitioned for review on same three claims.
ISSUES: (1) Ineffective assistance of counsel - direct examination, (2) ineffective assistance of counsel – failing to call witness, and (3) ineffective assistance of counsel – failure to argue fuller’s pro se motion for new trial
HELD: Three categories of ineffective assistance of counsel claims are reiterated: constitutionally deficient performance; assistance of counsel denied at a critical stage of the proceeding; and attorney conflict of interest. Under facts of this case and when considered in context, Pittman’s cross-examination style questions of Fuller during his direct trial testimony were the product of a considered trial strategy and not constitutionally deficient performance, and did not transform defense counsel into a second prosecutor or wholly deprive Fuller of representation at a critical stage of the proceedings.
Notice of Appeal in this case was sufficient to confer jurisdiction on appellate courts to consider the witness issue, but no showing of ineffective assistance of counsel by Pittman electing not to proffer a witness who could have provided only irrelevant and inadmissible testimony.
Record does not support district court’s and Court of Appeals panel’s conclusion that Pittman never gave up his role as Fuller’s advocate at the hearing on Fuller’s motion for a new trial. Instead it is abundantly clear a conflict between Fuller and Pittman arose at that hearing - a critical stage of the proceeding - when Pittman elected to defend himself against Fuller’s allegations. Fuller met any burden that might be imposed to satisfy the Mickens exception, the third subcategory of attorney conflict-of-interest cases. Case is remanded to district court with instructions to hold new hearing based on arguments before district court during Fuller’s motion for new trial hearing that have not yet been disposed of adversely to him in these K.S.A. 60-1507 proceedings.
STATUTE: K.S.A. 21-3525, 22-3501(1), 60-446, -1507, -1507(b), -2103(b)
STATE V. JONES
FACTS: Jones’ conviction as an adult of first-degree murder was affirmed on direct appeal. Unsuccessful collateral challenges followed. In present appeal from denial of successive K.S.A. 60-1507 motion and motion to correct illegal sentence, Jones argued that at time of trial he was a juvenile who suffered from mental defect that rendered him incompetent to comprehend fully the nature and possible consequences of charges against him, thus district court was required to suspend proceedings once Jones’s competence to stand trial came into question.
ISSUE: Motion to correct illegal sentence
HELD: An alleged violation of K.S.A. 22-3302 by failing to suspend criminal proceedings to conduct a competency hearing after finding reason to question a criminal defendant’s competency raises a procedural not a jurisdictional issue. Based on State v. Ford, 302 Kan. __ (2015), State v. Donaldson, 302 Kan. __ (2015), and court’s prior decision in Jones’ own appeals, Jones cannot obtain the relief he seeks through a motion to correct illegal sentence.
STATUTE: K.S.A. 22-3302, -3302(1), -3504, 60-1507
FACTS: Marshall convicted of capital murder for slaying of two victims. District court imposed lifetime imprisonment without possibility of parole. On appeal Marshall claimed: (1) district court erred in failing to order a competency evaluation; (2) district court failed to sufficiently inquire into Marshall’s requests for new counsel; (3) district court misspoke during his reading of instructions to the jury; and (4) cumulative effect of district court’s errors denied Marshall a fair trial.
ISSUES: (1) Competency evaluation, (2) inquiry into request for new counsel, (3) reading of jury instruction, and (4) cumulative error
HELD: Court’s review of record on appeal does not raise a bona fide doubt regarding Marshall’s competency to stand trial. No abuse of district court’s discretion in failing to order sua sponte a competency evaluation of Marshall.
Under facts in case, district court did not abuse its discretion by failing to inquire further into reasons for Marshall’s displeasure with defense counsel.
No merit to Marshall’s claim of judicial error during reading of jury instructions. State clarified that judge correctly told jury that Marshall pled "not guilty” to capital murder, but court reporter inadvertently omitted the word "not” from transcript. Court reporter filed amended transcript reflecting this change and an amended certificate of filing, which noted the error in the original transcript.
Cumulative error argument is defeated by finding no error in issues raised on appeal.
STATUTES: K.S.A. 2014 Supp. 22-3302(1), 60-1501; K.S.A. 22-3301(1)
FACTS: On charges arising from incident in which Page and minor neighbor sexually assaulted Page’s son, jury convicted Page of abuse of a child, aggravated indecent liberties with a child, aiding and abetting aggravated indecent liberties with a child, and promoting obscenity to a minor. Hard 25 life sentence imposed with lifetime post release supervision. On appeal Page argued: (1) under K.S.A. 60-455 in effect when crimes were committed, district court erred in admitting propensity evidence of prior sexual abuse that Page had inflicted on a relative; (2) insufficient evidence supported the aggravated indecent liberties convictions because minor neighbor’s testimony was not credible; (3) district court erred by admitting nurse’s preliminary hearing testimony after finding she was unavailable as trial witness based on doctor’s note and prosecutor’s testimony of conversations regarding nurse’s hospitalization; (4) district court erred in admitting 200+ pornographic images that minor neighbor received from Page; (5) cumulative error denied Page a fair trial; and (6) district court erred in imposing lifetime post release supervision.
ISSUES: (1) Admissibility of prior sexual abuse testimony, (2) sufficiency of the evidence, (3) admission of nurse’s pretrial testimony, (4) admission of pornographic photographs, (5) cumulative error, and (5) sentencing
HELD: District court did not err in admitting the relative’s testimony. While version of K.S.A. 60-455 at time of crime did not list propensity as a basis for admission of this testimony, at time of trial K.S.A. 2010 Supp. 60-455 controlled, and relative’s testimony was admissible propensity evidence under that version. Review of whether testimony was relevant, and district court’s failure to list propensity evidence in limiting instruction, was waived by Page’s failure to raise or argue these issues.
Under facts in case, State presented sufficient evidence at trial as to each element of aggravated indecent liberties with a child.
Issue of first impression. K.S.A. 60-402 establishes general requirement for application of Kansas evidentiary rules in all proceedings unless exempted elsewhere. Unlike the federal rule, K.S.A. 60-408 does not carve out an exception for trial court’s determinations of preliminary fact questions governing admissibility such as whether a witness in unavailable. Evidentiary rules apply. Doctor’s note and prosecutor’s testimony regarding conversations about nurse’s hospitalization were hearsay with no showing or argument of any exception to hearsay rule. District court abused its discretion in relying on inadmissible hearsay evidence to find nurse was unavailable, but error was harmless under facts of case.
At trial, Page’s counsel objected to photographic evidence on basis of relevance, but on appeal argued undue prejudice. This issue was not properly preserved for appellate court’s consideration.
Cumulative error doctrine is inapplicable where only one harmless error found.
Lifetime post release supervision is vacated pursuant to State v. Williams, 298 Kan. 1975 (2014).
STATUTES: K.S.A. 2010 Supp. 60-455; K.S.A. 21-3205(a), -3504(a)(3)(A), 60-402, -408, -455, -459(g), -459(g)(3), -460, -460(c), -460(c)(2)(B)
Kansas Court of Appeals – Civil
FACTS: SCHROEDER, J.: The Kansas Department of Revenue (KDOR) appeals the determination that BHCMC, L.L.C. does not owe compensating use tax (use tax) on electronic gaming machines (EGMs) at the Boot Hill Casino & Resort (Boot Hill). BHCMC paid use tax in the total amount of $801,588.05 when it bought the EGMs for the Kansas Lottery. The EGMs were purchased from five out-of-state vendors. Each EGM sales agreement identified BHCMC as a purchasing agent and the Kansas Lottery as the owner of the EGMs purchased. After paying the tax under protest, BHCMC applied to the KDOR for a refund, which was denied. The Kansas Board of Tax Appeals (BOTA) found BHCMC was only the manager of Boot Hill, where it uses and operates the EGMs owned by the Kansas Lottery on behalf of the State of Kansas (Kansas Lottery). BOTA found BHCMC had no indicia of ownership in the EGMs for the use tax to be imposed.
ISSUES: (1) Tax appeal, (2) casinos, and (3) electronic gaming machines
HELD: Court agreed with BOTA that a compensating use tax may not be imposed on a lottery gaming facility manager because the State of Kansas is the ultimate consumer of the electronic gaming machines and the lottery gaming facility manager has no incident of ownership in the electronic gaming machines.
STATUTES: K.S.A. 74-8701, -8703, -8733, -8734, -8749, -8750; K.S.A. 79-3226, -3701, -3702, -3703
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