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March 9, 2018 Digests

Posted By Administration, Tuesday, March 13, 2018

Kansas Supreme Court

CRIMINAL

criminal law—criminal procedure—sentences—statutes
state v. Buell
Shawnee district court—reversed, sentence vacated, remanded
court of appeals—reversed
NO. 113,881–March 9, 2018

FACTS: Buell convicted of robbery and attempted kidnapping. In calculating Buell’s criminal history, sentencing court classified Buell’s two prior Florida burglary juvenile adjudications as person felonies. Buell appealed, arguing the Florida adjudications should not have been classified as person felonies because Kansas had no comparable offense. Court of Appeals affirmed Buell’s criminal history and sentence, finding the burgled structure requirements in the Kansas and Florida statutes were comparable, and it was irrelevant that the intent element in the Florida statute differed from the specific intent required for the Kansas offense. 52 Kan.App.2d 818 (2016). Buell’s petition for review granted.

ISSUE: Classification of out of state conviction

HELD: Panel’s single-element view of comparability is rejected. Meaning of “comparable offense” as determined in State v. Wetrich (decided this same day) is applied, finding Buell’s prior Florida burglary juvenile adjudications had no comparable offense in the Kansas criminal code when Buell committed the Kansas crime. Pursuant to K.S.A. 2017 Supp. 21-6811(e), the Florida adjudications must be scored as nonperson felonies. Sentence is vacated, and matter is remanded for resentencing.

STATUTES: K.S.A. 2017 Supp. 21-6811(e), -6811(e)(3); K.S.A. 2015 Supp. 21-6811(e); K.S.A. 2011 Supp. 21-5807, -6804, -6810(a), -6811(e)

 

appeals—constitutional law—criminal law
criminal procedure—evidence—jury instructions—statutes
state v. gonzalez
pottawatomie district court—affirmed; court of appeals—affirmed
NO. 112,841—march 9, 2018

FACTS: Gonzalez was convicted of unintentional second-degree murder for a shooting death. On appeal Gonzalez claimed for first time that the statute defining unintentional second-degree murder is unconstitutionally vague. He also claimed insufficient evidence supported the conviction; alleged the trial court erred in answering a jury question that sought clarification of the differences between unintentional second-degree murder and involuntary manslaughter; and claimed the trial court should have sua sponte given a limiting instruction about evidence of Gonzalez aiming gun at a passerby some 15 minutes before fatally shooting the victim. Court of Appeals affirmed in an unpublished opinion. Gonzalez’ petition for review granted.

ISSUES: (1) Constitutionality of unintentional second-degree murder, (2) sufficiency of the evidence, (3) jury question, (4) limiting instruction

HELD: Statute defining unintentional second-degree murder is not unconstitutionally vague. Gonzalez’ arguments regarding State v. Deal, 293 Kan. 872 (2012), are rejected. The amended definition of “recklessly” in the 2010 recodification of Kansas Criminal Code does not alter the rationale in State v. Robinson, 261 Kan. 865 (1997), that a difference between unintentional second-degree murder and involuntary manslaughter is one of degree and not one of kind. Finally, Gonzalez’ claim based on Johnson v. United States, 135 S.Ct. 2551 (2015), is misplaced because Johnson does not invalidate Robinson’s rationale.

Jury’s verdict was supported by sufficient evidence which established not only reckless behavior, but also circumstances manifesting extreme indifference to the value of human life.

Gonzalez’ constitutional and statutory rights to be present were violated when trial court prepared the jury question response without Gonzalez or his attorney being present, but that error was harmless beyond a reasonable doubt in light of the entire record. Gonzalez waived or abandoned any challenge to panel’s analysis that trial court’s written response did not violate Gonzalez’ right to a public trial, and Kansas Supreme Court declines to address the public trial question. District court did not abuse its discretion by referring the jury back to the given instructions.

Panel correctly held the district court did not err in failing to give a limiting instruction. The evidence at issue was admitted independent of K.S.A. 2016 Supp. 60-455.

STATUTES: K.S.A. 2016 Supp. 21-5202(j), -5403(a)(2), -5405(a)(1), 22-3405(a), -3414(3), -34120(d), 60-455; K.S.A. 20-3018, -3018(b), 21-3101(c), 22-3417, 60-455, -2101(b)

criminal law—criminal procedure—sentences—statutes
state v. moore
sedgwick district court—reversed, sentence vacated, remanded
court of appeals—reversed
NO. 113,545—march 9, 2018

FACTS: Moore convicted of aggravated indecent liberties with a child. In calculating Moore’s criminal history, sentencing court classified Moore’s 1984 Oregon burglary conviction as a person felony. Moore later filed a motion to correct an illegal sentence, arguing his pre-1993 out-of-state burglary conviction should have been scored as a nonperson felony. District court summarily denied the motion. Moore appealed. Court of Appeals affirmed the denial, finding the burgled structure in the Oregon crime comparable to the dwelling in the Kansas burglary statute, notwithstanding other disparities in the respective crimes’ elements. Moore v. State,  52 Kan.App.2d 799 (2016). Review granted.

ISSUE: Classification of out of state conviction

HELD: Meaning of “comparable offense” as determined in State v. Wetrich (decided this same day) is applied, finding Moore’s 1984 Oregon conviction did not have any comparable offense in the Kansas criminal code when Moore committed the Kansas crime. Pursuant to K.S.A. 2017 Supp. 21-6811(e), the Oregon conviction must be scored as a nonperson felony. Sentence is vacated, and matter is remanded for resentencing.

STATUTES: K.S.A. 2017 Supp. 21-6811(e), -6811(e)(3); K.S.A. 2004 Supp. 21-4704, -4711(e); K.S.A. 21-3715, -4710(a)

appeals—criminal law—criminal procedure—prosecutors—sentences—statutes
state v. sturgis
sedgwick district court—affirmed in part and reversed in part, sentence vacated, remanded
court of appeals—affirmed in part and modified in part
NO. 112,544—march 9, 2018

FACTS: Sturgis was convicted of theft and criminal possession of firearm. In calculating Sturgis’ criminal history, sentencing court classified a prior Michigan conviction for third-degree home invasion as a person offense. Sturgis appealed claiming: (1) error by prosecutor’s comments during closing argument, and (2) error in sentencing court’s classification of the prior Michigan conviction. In unpublished opinion, Court of Appeals found prosecutor misstated the evidence and improperly commented on drug use, but there errors were harmless. Panel also determined the elements of the Michigan offense were broader than the Kansas person felony crime of burglary of a dwelling, but district court should have conducted a modified categorical approach to determine which of the Michigan statute’s alternative elements formed the basis of Sturgis’ conviction.  Sturgis’ petition for review granted. While appeal was pending, State filed change-of-status letter in September 2017 of Sturgis’ release in June 2016.

ISSUES: (1) Custodial status, (2) prosecutorial misconduct, (3) classification of out of state conviction

HELD: State did not argue that the issues presented for review are moot, thus issue of mootness is deemed abandoned.

Each allegation of prosecutorial error is examined. Prosecutor’s comment on Sturgis’ testimony was fair comment to point out inconsistencies and weaknesses, rather than impermissibly comment on Sturgis’ credibility. Prosecutor misstated Sturgis’ testimony, but that error was not a game-changer. Prosecutor’s improper comment implying drug use cuffed the line of reversibility, but panel’s finding of harmless error is affirmed.

Meaning of “comparable offense” as determined in State v. Wetrich (decided this same day) is applied, finding Sturgis’ Michigan home invasion conviction was not comparable to the Kansas burglary of a dwelling offense as it existed when Sturgis committed the Kansas crime. Pursuant to K.S.A. 2017 Supp. 21-6811(e), the Michigan conviction must be scored as a nonperson felony. Convictions are affirmed, sentence is vacated, and matter is remanded for resentencing.

STATUTES:  K.S.A. 2017 Supp. 21-6811(e), -6811(e)(3); K.S.A. 2012 Supp. 21-5807(a)(1), -6810(a), -6811(e)

appeals—criminal procedure—sentences—statutes
state v. warren
wyandotte district court—sentence vacated, remanded
NO. 115,972—march 9, 2018

FACTS: Warren was convicted of premeditated first-degree murder, second-degree murder, and attempted first-degree murder. Hard 50 life sentence was imposed for the off-grid first-degree murder, to run concurrently with the155-month concurrent on-grid sentences for the remaining two counts. Following Alleyne v United States, 570 U.S. 99 (2013), and State v. Santo, 299 Kan. 102 (2014), Warren’s Hard 50 sentence was vacated and case remanded for resentencing. On remand, State sought a lesser sentence that did not constitutionally require impaneling a jury. District court imposed Hard 25 sentence, and ordered all sentences to run consecutively. Warren appealed, arguing State v. Guder, 293 Kan. 763 (2012), and the Kansas Sentencing Guidelines Act (KSGA), barred district court from changing the two non-vacated sentences in length and sequence.

ISSUE: Resentencing on remand

HELD: Holding in Guder is affirmed. KSGA statutory changes to sentencing abrogated the common law authority of district courts to modify any sentences not vacated on appeal, barring the need to alter a non-vacated as a matter of law to avoid an illegal sentence. Applying Guder to facts of this case, district court on remand improperly modified the off-grid sentence to run consecutive to Warren’s on-grid sentence. District court made improper de facto modification to sentences that had not been vacated on appeal, and acted inconsistently with the service of sentence sequence contemplated by K.S.A. 21-4720(b)(2). Remanded for resentencing. District court is ordered to reinstate the original 155-month concurrent on-grid sentences and to run it concurrent with the new Hard 25 off-grid sentence.

STATUTE: K.S.A. 21-4701 et seq., -4720(b), -4720(b)(2), -4720(b)(5), 22-3601(b)(3)

constitutional law—courts—criminal procedure—sentences—statutes
State v. Wetrich
Johnson county district court—reversed, sentence vacated, remanded
court of appeals—affirmed
NO. 112,361—march 9, 2018

FACTS: Prior to sentencing on Kansas offenses, Wetrich unsuccessfully tried to challenge the criminal history scoring of his 1988 Missouri burglary as a person felony.  Court of Appeals reversed and ordered district court to conduct a resentencing hearing. District court again scored the Missouri conviction as a person felony, finding “dwelling” in Kansas statute was comparable with “habitable structure” in the Missouri statute. In unpublished opinion, Court of Appeals vacated Wetrich’s sentence and remanded for resentencing with the correct criminal history score. State petitioned for review, citing a split of authority among Court of Appeals panels regarding the comparability of the Missouri burglary statute.

ISSUE: Classification of out-of-state burglary conviction

HELD: The extent to which recent United States Supreme Court decisions constitutionally mandate the federal identical-or-narrower rule is not examined because issue in this case is resolved by statutory interpretation. For an out-of-state conviction to be comparable to an offense under the Kansas criminal code, the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime. Comparing elements of the Missouri and Kansas burglary offenses, two elements are broader in the Missouri statute - the specific intent required and the structure involved. Wetrich’s prior Missouri conviction should have been classified as a nonperson felony. Reversed, sentence vacated, and case remanded for resentencing.   

STATUTES: K.S.A. 2017 Supp. 21-5807(a)(1), -6811(d)(1), -6811(e), -6811(e)(2)(A), -6811(e)(3); K.S.A. 2008 Supp. 21-4704, -4705, -4710, -4710(a); K.S.A. 21-3110, -3110(7), -3715, -3715(a), -4711, -4711(d)(1), -4711(e)

Kansas Court of Appeals

CIVIL

OPEN RECORDS—STATUTORY INTERPRETATION
CLARK V. USD 287
FRANKLIN DISTRICT COURT—REVERSED AND REMANDED
NO. 117,343—MARCH 9, 2018

FACTS: Gene Hirt was barred from school district property after district officials alleged that he behaved inappropriately at a school board meeting. After reading about the incident, Clark became concerned about the letter that Hirt received, and he wanted to know the exact source and meaning of the district's policy. Clark filed a Kansas Open Records Act request seeking any disciplinary action concerning Hirt as well as any reference to Hirt in official district memorandum. The district denied the request on grounds that it could not disclose correspondence between the district and a private individual. Clark then filed a second KORA request seeking copies of procedures and guidelines that applied to members of the public. The district sent some materials to Clark, but Clark did not believe the materials were responsive to his request, so he filed a complaint in district court. The district court agreed with the district that the letter to Hirt was exempt from disclosure. The district court believed that the district's disclosure of the other materials was appropriate, but that a delay in responding was a technical violation. The court awarded Clark nominal damages and costs. Both Clark and the district appealed.

ISSUES: (1) Mootness; (2) duty to disclose the letter; (3) damages and costs

HELD: Although it is undisputed that Clark now has the letter to Hirt, this appeal is not moot because a question persists regarding whether the district's refusal to provide the letter was allowed under KORA. Although the letter between the district and Hirt was correspondence regarding a private individual, an exception to this exception exists. The district's power to ban a citizen from its property came from the legislative mandate that school boards are allowed to control their property. Because of this power, the district's refusal to provide the letter to Clark violated KORA. Although the district did technically violate KORA by not timely providing materials to Clark, there is no statutory authority for an award of either damages or costs. The district court made no finding that the district acted in bad faith, and the record shows a good-faith effort to comply with Clark's numerous KORA requests. For those reasons, the award of damages and fees was inappropriate and must be reversed.

STATUTES: K.S.A. 2017 Supp. 45-219, -220, -221, -221(a)(14), -222(a), -222(d), 72-1138(e)(1), 1416, -3216(b), -3216(d); K.S.A.  2015 Supp. 45-221(a)(14); K.S.A. 45-216, -218(a), -218(d)

CRIMINAL

 

CONSTITUTIONAL—TRAFFIC—SENTENCING
STATE V. WILLIAMS
SEDGWICK DISTRICT COURT— REVERSED  IN PART, VACATED IN PART
NO.  116,068— MARCH 9, 2018

FACTS: Williams was charged with refusing to submit to a breath test, felony DUI, and failure to maintain a single lane. Because he was charged with a felony, the complaint referenced a prior DUI conviction from municipal court. Williams filed a motion to dismiss the refusal to test count, claiming that the statute unconstitutionally criminalized his failure to submit to a breath test. He also claimed that his prior felony conviction could not be used to enhance his sentence. After that motion was denied, the case was tried, and Williams was found guilty. He objected at sentencing to the enhancement. He appealed his conviction and sentence.

ISSUES: (1) Validity of conviction for failure to submit to a breath test; (2) constitutionality of sentence

HELD: Because K.S.A. 2016 Supp.8-1025 was found to be unconstitutional, Williams' conviction for failure to submit to a breath test must be vacated. There is a clear difference between the municipal ordinance that served as the basis for Williams' prior conviction and the state statute. The Wichita ordinance was broader than the state statute, which means that convictions obtained under the ordinance cannot be used to enhance a punishment.

STATUTES: K.S.A.  2016 Supp. 8-1014, -1025, -1485, -1567, -1567(a), -1567(b)(1)(B), -1567(i)(1), -1567(j), 21-6811(c), -6811(e);  K.S.A. 2012 Supp. 8-1025

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