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March 2, 2018 Digests

Posted By Administration, Monday, March 5, 2018

Kansas Supreme Court

Attorney Discipline


NO. 118,378—MARCH 2, 2018

FACTS: A hearing panel determined that Haley violated KRPC 1.3 (diligence), 3.2 (expediting litigation), 5.5(a) (unauthorized practice of law), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). Haley's license to practice law in Missouri was suspended in 2007 after he failed to file an appeal in federal court. At the same time, Haley failed to complete his annual registration requirements in Kansas, and his Kansas law license was suspended. It was not until Haley began to explore reinstatement that the Kansas disciplinary administrator learned of Haley's misconduct suspension in Missouri. Haley's Missouri license was reinstated in 2015, although he was placed on probation. But he never addressed the reciprocal discipline issues that existed in Kansas.

HEARING PANEL: Most of the conduct addressed by the hearing panel occurred in Missouri. But Haley did self-report one instance of unauthorized practice which occurred when he prepared a codicil for his mother's will. While Haley's experience with the practice of law was an aggravating factor, there were significant mitigating factors including mental health conditions and Haley's cooperation with the process. The disciplinary administrator recommended that Haley be suspended for one year, with that suspension stayed so that Haley could complete a term of probation. The hearing panel agreed with the disciplinary administrator and made that recommendation to the court.

HELD: After considering the hearing report, the court imposed a one-year disciplinary suspension. If Haley is able to satisfy all administrative requirements to end his administrative suspension, he will be allowed to petition the court for an order to suspend the disciplinary suspension and the imposition of a two-year probation period.


NO. 113,928—MARCH 1, 2018

FACTS: In October 2015, the court stayed the imposition of a two-year suspension and placed Hueben on probation for two years, with specific conditions. In November 2017, Hueben filed a motion for discharge from probation along with evidence of her compliance. That compliance was confirmed by the Office of the Disciplinary Administrator.

HELD: After reviewing the motion, affidavits, and recommendation of the disciplinary administrator, the motion is granted. Hueben is discharged from probation and this matter is closed.




constitutional law—criminal law—criminal procedure—Fifth Amendment—immunity—jurisdiction—statutes
state v. delacruz
reno district court—reversed and sentence vacated—court of appeals—reversed
No. 111,795—march 2,2018

FACTS: Victim murdered in robbery committed by Delacruz and four others, including Waller. Delacruz convicted of aggravated robbery. Thereafter, State subpoenaed Delacruz as witness at Waller’s murder trial. Delacruz refused court orders to testify, claiming in part the immunity offered did not protect his Fifth Amendment right against self incrimination. State filed accusation of contempt, and jury found Delacruz guilty of direct criminal contempt of court. A 108-month sentence imposed, consecutive to his 83-month aggravated robbery sentence. Delacruz appealed on his Fifth Amendment claim, and challenged the length of his sentence. Court of Appeals affirmed the contempt conviction and sentence. 52 Kan.App.2d 153 (2015).

ISSUES: (1)  Subject matter jurisdiction, (2) fifth amendment right against self incrimination

HELD: Court considered sua sponte whether contempt order was void for lack of jurisdiction. District court’s journal entry failed to comply with the compulsory statutory procedure in K.S.A. 20-1203 for direct contempt, but Delacruz failed to challenge the district court’s jurisdiction and a decision on the merits is especially clear. Court presumes, without deciding, that district court did not lose jurisdiction to find Delacruz in direct contempt of court through a deficient journal entry.

            State granted Delacruz mere use immunity, rather than derivative immunity. Delacruz had a valid Fifth Amendment right to refuse to testify because the immunity granted to him was not coextensive with his constitutional right against self-incrimination. The order of contempt is reversed, and the sentence imposed is vacated.

CONCURRENCE: (Johnson, J.) Concurs in the result.

STATUTE: K.S.A. 20-1201, -1203, 22-3415, -3415(a), -3415(b)(2), -3415(c), 60-425


constitutional law—criminal procedure—statutes
state v. hayes
atchison district court—affirmed
No. 116,717—march 2, 2018

FACTS: Hayes was convicted in 1994 of first-degree murder, aggravated robbery, and conspiracy to commit robbery. Convictions affirmed on direct appeal, 258 Kan. 629 (1995). In 2015 Hayes filed pro se motion to correct an illegal sentence. District court summarily dismissed the motion, finding no merit or legal basis. Hayes appealed, claiming district court denied him due process by failing to hold a hearing on the motion without Hayes being present, as required by the plain language of K.S.A. 22-3504.

ISSUE: Motion to correct an illegal sentence

HELD: Hayes’ statutory argument is defeated by holding in State v. Campbell, 307 Kan. 130 (2017), that a district court’s preliminary examination of a motion to correct an illegal sentence does not trigger the movant’s right to be present. Hayes’ due process claim is defeated by holding in State v. Swafford,  306 Kan. 537 (2017), that the summary denial, without a hearing, of a motion to correct an illegal sentence does not run afoul of the Fourteenth Amendment’s due process guarantee.

STATUTES: K.S.A. 2017 Supp. 22-3504(1) -3504(3), -3601(b)(3); K.S.A. 2016 Supp. 21-6801 et seq., K.S.A. 22-3504


Kansas Court of Appeals



constitutional law—criminal law—Evidence—Fourth Amendment -
state v. perkins
ellis district court—affirmed
No. 112,449—march 2, 2018

FACTS: Officer stopped Perkins for traffic infraction, conducted field sobriety tests, and arrested him for driving under the influence of alcohol. Result of agreed-to breath test was over the legal limit. Perkins moved to suppress the breath test results, claiming consent was coerced and involuntary, and breath test was an unreasonable search that violated Fourth Amendment. District court denied the motion and convicted Perkins on stipulated facts. Perkins appealed. Court ordered supplemental briefing to address rulings by the United States and Kansas supreme courts while this appeal was pending. State argued the warrantless breath test result was constitutionally admissible as a result of a search incident to an arrest. Alternatively, State argued for application of the good-faith exception to the exclusionary rule.

ISSUES: (1) Search incident to arrest, (2) good-faith exception to the exclusionary rule

HELD: District court correctly denied Perkins’ motion to suppress. Under Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), and State v. Nece, 303 Kan. 888 (2016)(Nece I), aff’d on reh’g, 306 Kan. 679 (2017)(Nece II), Perkins’ consent was coerced because he was told it was a crime to refuse the test, but officer was permitted to conduct the breath test in this case as a lawful search incident to arrest.

Additionally, the breath test result was admissible because the officer, in good faith, acted in reliance on the implied consent statute before it was ruled unconstitutional by the Kansas Supreme Court.

CONCURRENCE (Atcheson, J.): Agrees the good-faith exception to the exclusionary rule applies here, and district court’s denial of the suppression motion should have been affirmed on that basis alone. Majority should have declined to explore alternative pathway of search-incident-to-arrest exception to the Fourth Amendment warrant requirement. He is unpersuaded that the search-incident-arrest exception provides an alternative rationale in this case, and voices risk of implicitly promoting untoward government action and Fourth Amendment violations.

STATUTES: K.S.A. 2016 Supp. 8-1001, -1025; K.S.A. 2014 Supp. 8-1025; K.S.A. 2012 Supp. 8-1025, -1567(a)(2), -1567(a)(3), -1567(b)(1)(B)

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