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December 27, 2013, Appellate Court Digests

Posted By Administration, Friday, December 27, 2013
Updated: Thursday, August 24, 2017

Kansas Supreme Court


State v. Hurd
Seward District Court – Reversed and remanded
Court of Appeals – Reversed
No. 104,198 – December 27, 2013

FACTS: Hurd convicted in trial that consolidated case with assault, battery, and criminal threat charges, and case charging two counts of failure to register as sex offender. Hurd appealed on nine issues, in part challenging district courts decision to consolidate the cases, trial judge’s refusal to recuse, and district court’s refusal to find complaint charging him with failing to register was jurisdictionally defective. In unpublished opinion, Court of Appeals rejected each issue and affirmed convictions and sentences. Hurd’s petition for review granted.

ISSUES: (1) Consolidation of cases, (2) defective complaint, (3) sufficiency of evidence of criminal threat, (4) recusal of trial judge, (5) authority to disqualify prosecutor

HELD: District court erred in consolidating the two cases. District court’s calendar considerations do not provide a basis for joinder, and Supreme Court rejects Court of Appeals’ finding that crimes were connected. State v. Anthony, 257 Kan. 1003 (1995) is distinguished. State’s case as to battery, assault, and criminal threat charges was not strong, and jury might well have been influenced by Hurd’s prior convictions. Under the circumstances there was a reasonable probability that the improper consolidation affected the outcome of Hurd’s trial. Reversed and remanded for two separate trials.

Complaint charging Hurd with two counts of failing to register was jurisdictionally defective. Complaint’s language did not substantially follow language of K.S.A. 22-4904(a)(1), nor charge the offense in equivalent words to fully inform Hurd of particular offense charged. Final charging document also was confusing because it blended language from two different statutory provisions. Because conviction was void as a result of district court’s error in denying motion for arrest of judgment, State not prevented from recharging Hurd.

Under facts of case viewed in light most favorable to prosecution, sufficient evidence supported Hurd’s conviction for criminal threat. Remand for a new trial on this charge does not violate Double Jeopardy Clause.

Because Hurd essentially alleged prosecutor violated Kansas Rules of Professional Conduct, trial court had discretion to disqualify that attorney from the case. If issue arises on remand, district court should consider whether prosecutor’s alleged conduct warrants disqualification.

STATUTES: K.S.A. 2012 Supp. 60-261; K.S.A. 20-311d, -311d(c), -311d(d), 3018(b); K.S.A. 22-3202, -3202(1), -3203, -3502, -4904(a)(1), -4904(b); and K.S.A. 60-2101(b)

Habeas corpus
Makthepharak v. State
Sedgwick District Court – Affirmed
No. 105,932 – December 27, 2013

FACTS: Makthepharak charged as juvenile on charges related to home invasion and murder. District court granted state’s motion for adult prosecution. Makthepharak’s convictions and sentences for first-degree felony murder, aggravated burglary, and criminal possession of firearm were affirmed on appeal. 276 Kan. 563 (2003). In 2010, Makthepharak filed pro se motion to correct illegal sentence and for appointment of counsel. District court denied the motion without a substantive hearing or appointment of counsel. Makthepharak appealed, claiming district court lacked jurisdiction to impose sentence because Makthepharak was never properly certified for adult prosecution, and alternatively, that district court improperly construed his pro se motion. He also claimed district court’s summary denial of K.S.A. 22-3504 motion was fundamentally unfair, and alternatively claimed he was entitled to assistance of counsel during the court’s initial examination of the motion.

ISSUES: (1) Procedural claims – motion to correct illegal sentence, (2) summary denial of motion to correct illegal sentence and certification for adult prosecution, (3) construing the pro se motion

HELD: Makthepharak made no persuasive argument for revisiting or abandoning longstanding interpretation of K.S.A. 22-3504 as not requiring a substantive proceeding and assistance of counsel in all cases, and that statute’s protections do not apply when a court summarily denies a motion to correct an illegal sentence.

District court properly considered statutory factors in K.S.A. 38-1636(e). Because Makthepharak was properly certified as an adult under the statute, district court had jurisdiction over the criminal trial. Makthepharak’s sentence was therefore lawful.

Although district court erred in part by construing Makthepharak’s motion as an improper method of attack and perhaps as seeking unavailable relief, Makthepharak was not prejudiced because his claim was still considered and properly denied on its merits.

STATUTES: K.S.A. 2012 Supp. 22-3601(b)(3); K.S.A. 2010 Supp. 38-2347(e); K.S.A. 22-3504, -3504(1); K.S.A. 38-1601 et seq., -1636(e); K.S.A. 60-1507

Kansas Court of Appeals


Workers Compensation
Lake v. Jessee Trucking and Continental Western Group
Workers Compensation
No. 109,519 – December 27, 2013

FACTS: Glenn C. Lake appealed the denial of his workers compensation claim. Lake had an accident at work and then experienced increasing symptoms of back pain and arm and leg numbness. Lake's treating physicians, a neutral physician appointed by the administrative law judge (ALJ), and a physician retained by Lake, all testified that the work accident caused his injuries. A physician retained by Lake's employer, Jessee Trucking, offered no opinion because he was uncertain regarding the onset of Lake's symptoms. The ALJ heard sworn testimony from Lake describing his work accident, his symptoms, and his medical care. The ALJ determined that the work accident caused significant neurological injuries and awarded Lake compensation for his permanent total disability. Upon review, however, the Workers Compensation Board (Board) rejected Lake's testimony and held that he had failed to prove the work accident had caused his neurological injuries.

ISSUE: Workers compensation

HELD: Court held that under the facts of this workers compensation case, having considered all of the evidence—including the credibility determinations made by the administrative law judge regarding the claimant and the reasons given by the Board for disagreeing with those credibility determinations, the Board's findings of fact in support of its conclusion to deny compensation are not supported by substantial evidence when viewed in light of the record as a whole. Court stated that because the question here was not the existence of a work accident, which the Board found, or even of injury to Lake, which the Board found in the form of a pulled groin, but only of a link between the work accident and Lake's neurological injuries, the causation opinions of the doctors did not seem improbable, unreasonable, or untrustworthy. Court concluded that the weight of this medical evidence, coupled with the lack of substantial evidence to uphold the Board's findings that Lake was not credible (contrary to the ALJ's determination) and the evidence corroborating Lake's testimony that he experienced neurological symptoms during and shortly after the accident, require reversal of the Board's ruling. Court held the Board's findings of fact in support of its conclusion to deny compensation were not supported by substantial evidence viewed in light of the record as a whole. Court reversed the Board's order and remanded with directions to reinstate the ALJ's award of compensation.

STATUTES: K.S.A. 44-501, -556; K.S.A. 77-601, -621

Smith v. Kansas Orthopaedic Center P.A.
Sedgwick District Court – Affirmed
No. 109,084 – December 27, 2013

FACTS: In 2007, Lana Smith began work as a physical therapist for a Wichita medical practice. After she left its employment, she sued for bonuses she said were owed to her. Smith said that the practice's business manager promised her a minimum $10,000 per year bonus before she began work. But Smith's employment agreement also clearly provided that she was an at-will employee, something she has not contested, and the compensation of at-will employees may be changed on a going-forward basis. Her employer announced new compensation terms during 2008, paid her more than $10,000 in bonuses for 2008, and applied the new compensation terms to bonuses in later years. Smith sued for her benefits and the district court held that by staying on after new compensation terms are announced for future compensation, an at-will employee impliedly accepts those terms. Accordingly, the district court granted summary judgment against Smith's claim for additional bonuses from 2009 until she ended her employment in 2011.

ISSUE: At-will employment

HELD: Court held that in an at-will employment, the employer can change the terms under which the employee is compensated for wages not yet earned by providing notice to the employee. If the employee continues to work after the new compensation terms have been announced, the employee impliedly accepts those terms.


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