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April 13, 2018 Digests

Posted By Administration, Tuesday, April 17, 2018

Kansas Supreme Court


constitutional law—criminal procedure—sentencing
state v. Gilkes
wyandotte district court—reversed as to issue subject to reveiw
court of appeals—reversed as to issue subject to review
no. 109,259—april 13, 2018

FACTS: Gilkes convicted of aggravated assault. On appeal he alleged trial errors and challenged his obligation to register as an offender under the Kansas Offender Registration Act (KORA), claiming in part the district court never made a finding on the record that Gilkes used a deadly weapon in the commission of the crime. In unpublished opinion, Court of Appeals affirmed the conviction and sentence, but remanded with directions to correct the journal entry to reflect the missing registration requirement. Review granted on Gilkes’ KORA claim.

ISSUE: KORA registration requirement

HELD: Pursuant to State v. Marinelli (No. 111227, this day decided), the question on appeal is whether Gilkes is a “violent offender” who must register under KORA. In this case, jury made the deadly weapon finding, but district court made no finding on the record that Gilkes used a deadly weapon to commit the offense. Unlike Marinelli, the journal entry of judgment in this case does not reflect the requisite finding. Gilkes is not an “offender” as defined by K.S.A. 2017 Supp. 22-4902(e)(2). Panel was without authority to remand the case to the district court to make the required on-the-record finding. The order to register as a violent offender is vacated. See State v. Thomas (No. 109951, this day decided).

CONCURRENCE AND DISSENT (Rosen, J., joined by Beier and Johnson, JJ.): Concurs in the result. Disagrees with majority’s determination that registration is not part of the criminal sentence and resulting constitutional infirmities. Agrees with reasons set forth in Justice Johnson’s concurring opinion in Thomas that address additional concerns in majority’s rationale in the instant case.

STATUTES: K.S.A. 2017 Supp. 22-3504(2), -4902(a), -4902(a)(1)(N), -4902(a)(2), -4902(e)(2); K.S.A. 20-3018(b), 22-4901 et seq.

appeals—constitutional law—criminal procedure—sentencing—statutes
state v. marinelli
riley district court—affirmed; court of appeals—affirmed
no. 111,227—april 13, 2018

FACTS: Marinelli entered no contest plea to aggravated assault with a deadly weapon. District court addressed at sentencing, rather than at time of conviction, the registration requirement under the Kansas Offender Registration Act (KORA). On direct appeal, Marinelli claimed he should be excused from registration requirements because district court failed to comply with KORA’s statutory procedures. Court of Appeals affirmed in unpublished opinion. Review granted to consider whether Marinelli is a “violent offender” as defined by K.S.A. 2012 Supp. 22-4902(e)(2), and if so, whether he is excused from KORA’s registration requirement because the district court failed to comply with KORA’s statutory directive to notify him at the time of conviction of his duty to register.

ISSUES: (1) Appellate jurisdiction, (2) noncompliance with KORA statutory procedures

HELD: Issue of first impression as to whether a defendant who has entered a guilty or no contest plea has available grounds, in the KORA context, for a direct appeal. Court reviews caselaw permitting sentencing appeals following a plea of guilty or nolo contendere, and holds that KORA is not part of a defendant’s sentence. Rather, the duty to register under KORA arises (“springs into existence”) by operation of law upon the existence of distinct sets of statutory conditions identified in the opinion. Accordingly, there is jurisdiction to consider Marinelli’s direct appeal of the district court’s order to register under KORA. To be valid that registration requirement must be predicated on the district court’s finding that Marinelli used a deadly weapon in the commission of his offense. That action is appropriately viewed under K.S.A. 2017 Supp. 22-3601(a) as a judgment, decision, or intermediate order in the case.

District court’s order that Marinelli comply with KORA is affirmed. Under facts in this case and documents filed by the court, including a Sentencing Guidelines Journal Entry of Judgment, district court made the requisite finding on the record that Marinelli was a violent offender. District court’s failure to inform Marinelli on the record at the time of conviction about the procedure to register and KORA requirements did not excuse his registration obligations.

CONCURRENCE (Rosen, J., joined by Beier and Johnson, JJ.): Agrees there is jurisdiction under K.S.A. 2017 Supp. 22-3602(a) to decide if the KORA registration responsibilities imposed by the district court are invalid. Criticizes the majority’s excursion into whether KORA provisions are sentencing provisions, and its misinterpretation of State v. Jackson, 291 Kan. 34 (2010). Agrees with rationale of Justice Johnson’s concurring opinion in State v. Thomas (1099951 this day decided) that concludes the KORA registration is part of the sentencing in that case. Citing his disagreement with State v. Petersen-Bead, 304 Kan. 192, cert. denied 137 S.Ct (2016), would hold there is jurisdiction based on the court’s longstanding rule that a defendant may appeal from the sentence imposed after a plea of guilty or nolo contendere.

STATUTES: K.S.A. 2017 Supp. 22-3601, -3602, -3602(a), -4902, -4902(a), -4902(a)(4), -4902(a)(5), -4902(b)(2), -4902(c)(18), -4902(e)(2), -4902(f), -4903, -4903(a), -4904, -4904(a)(1)(A), -4904(a)(1)(B), , -4904(a)(1)(B)(iii), -4906, -4906(a)(1)(M), -4906(a)(1)(N), -4906(f), -4906((f)(2), -4906(g), -4906(i); K.S.A. 2012 Supp. 22-4902(e)(2), -4904(a)(1)(A); K.S.A. 22-2103, -3424, -3602(a), -4901et seq., 60-1507; K.S.A. 22-3602(a) (Ensley); K.S.A. 22-3601 (Weeks); K.S.A. 62-1701 (Corrick)

criminal procedure—restitution—sentencing
state v. meeks
shawnee district court—affirmed; court of appeals—affirmed
no. 113,593—april 13, 2018

FACTS: Meeks pleaded guilty to felony theft of a vehicle. District court sentenced Meeks to 11 month prison term, 12 month postrelease supervision, and ordered Meeks to pay $14,356.21 in restitution—the fair market value of the car plus the victim’s deductible—upon his release from prison and until paid in full. Meeks appealed the restitution order, arguing the amount made any plan unworkable due to his limited resources. Court of Appeals affirmed in unpublished opinion. Review granted.

ISSUE: Restitution - unworkable plan

HELD: Wariness stated with rigid definition of an “unworkable” plan of restitution that has been evolving in Court of Appeals’ caselaw. The opinion reiterates that unworkability should be evaluated on a case-by-case basis, and cites relevant factors for consideration. On the facts in this case, the district court did not abuse its discretion when it ruled that Meeks failed to show a restitution plan was unworkable.

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

STATUTE: K.S.A. 2017 Supp. 21-6604, -6604(b)(1)


state v. pewenofkit
sedgwick district court—court of appeals dismissal of the appeal—affirmed
no. 109,542—april 13, 2018

FACTS: Pewenofkit pleaded no contest to kidnapping, aggravated kidnapping, and aggravated burglary. Prior to his plea, Kansas Offender Registration Act amended in 2011 to enlarge the registration requirement from ten years to lifetime registration. On appeal Pewenofkit argued for first time that imposition of the lifetime registration requirement violated the Ex Post Facto Clause. In unpublished opinion, Court of Appeals sua sponte dismissed the appeal, stating Pewenofkit failed to explain why the issue should be considered for the first time on appeal, and failed to provide any factual basis upon which to analyze his ex post facto claims on appeal. Review granted.

ISSUE: Appeal on issue not raised in district court

HELD: Pewenofkit’s petition for review failed to challenge the panel’s holdings as error. Panel’s dismissal of the appeal is affirmed

STATUTE: K.S.A. 22-4901 et seq.

appeals—constitutional law—criminal procedure—sentencing
state v. redick
shawnee district court—convictions affirmed—sentence vacated—remanded
no. 113,300—april 13, 2018

FACTS: In trial to the court, Redick was convicted of premeditated first-degree murder and arson in the killing of his girlfriend and burning of her car. District court granted defense counsel’s request for sequestration order. When defense called its first witness and admitted the witness had been in the courtroom during the state’s case, the district judge disallowed the witness’ testimony because the witness had violated the sequestration order. District judge imposed a hard 25 life sentence for the first-degree murder charge, identified the murder conviction as the “primary crime,” and sentenced Redick to 13 months on the arson, based in part on a criminal history score of “I.” On appeal Redick challenged: (1) the adequacy of his waiver of the right to jury trial, specifically the judge’s failure to tell him that a jury’s guilty verdict would have to be unanimous; (2) the district judge’s refusal to admit testimony from a defense witness who had violated the sequestration order; and (3) the legality of his sentence.

ISSUES: (1) Waiver of jury trial, (2) violation of sequestration order and exclusion of testimony, (3) illegal sentence

HELD: Waiver issue, raised for first time on appeal, is addressed on the merits. On record in this case, Redick’s waiver of his right to a jury trial was knowing and voluntary. State v. Frye, 294 Kan. 364 (2012), is factually distinguished. District judge’s colloquy during the waiver hearing was minimally adequate; her failure to specifically address the requirement that a guilty verdict be unanimous was not fatal; and Redick demonstrated his awareness and understanding of the right he affirmatively chose to surrender. Court would have preferred that the district judge explained steps that could have been taken to ensure the seating of a fair and impartial jury whose participation would have been unadulterated by prejudicial press coverage, but the omission of this information did not render Redick’s waiver unacceptable.

District judge erred as a matter of law and thus abused her discretion to the extent she treated exclusion of the defense witness’ testimony as an automatic consequence of the violation of the sequestration order. But it is impossible to determine whether the legally erroneous exclusion was harmless because defense counsel failed to proffer the unidentified witness’ testimony, and substantial circumstantial evidence supports the conviction.

Redick’s claim that his sentence violated the double rule lacks merit because that rule does not apply to off-grid sentences. However, district judge erred in identifying the off-grid crime of first-degree murder as the primary crime, with resulting error in the criminal history score used for calculating Redick’s sentence.Redick’s sentence is vacated and case is remanded for resentencing using the on-grid crime of arson as the primary crime.

CONCURRENCE (Biles, J., joined by Nuss C.J. and Stegall, J.): Agrees with majority opinion except for the jury trial waiver claim. Concurs in the result on that claim, but would affirm the district court on this point as generically as it was argued in Redick’s brief, and would hold that any argument on a more specific concern of potential juror bias was abandoned as not briefed.

STATUTE: K.S.A. 2016 Supp. 21-6604(f)(2), -6606(c), -6804, -6819(b)(3)

appeals—constitutional law—criminal procedure—sentencing
state v. rocheleau
sedgwick district court—affirmed
court of appeals—reversed
no. 110,243—april 13, 2018

FACTS: Rocheleau entered guilty plea to aggravated indecent solicitation of a child. Sentence imposed included lifetime registration under the Kansas Offender Registration Act (KORA) as amended in 2011. Rocheleau appealed, arguing lifetime registration violated the Ex Post Facto Clause because it exceeded the pre-2011 amendment registration period applicable at the time of his crime. In unpublished opinion Court of Appeals dismissed the appeal because the notice of appeal only mentioned sentencing, holding this limited its jurisdiction because KORA registration was not part of a criminal sentence. Review granted.

ISSUES: (1) Appellate jurisdiction, (2) Ex Post Facto Clause

HELD: Rocheleau’s notice of appeal should be read broadly enough to encompass his KORA challenge under the conflicting caselaw existing when he appealed. After State v. Marinelli (111227, this day decided), a criminal defendant pursuing KORA challenges is advised not to recite in the notice of appeal that the defendant is appealing only sentencing issues.

Holding in State v. Petersen-Beard, 304 Kan. 192, cert. denied 137 S.Ct. 226 (2016), defeats Rocheleau’s ex post facto claim. The lifetime registration requirement is affirmed.

CONCURRENCE (Malone, J.): No change to his position in his concurring opinion in State v. Watkins, 306 Kan. 1093 (2017), wherein he expressed disagreement with Petersen-Beard but the principle of stare decisis compelled his concurrence with the majority in that case.

CONCURRENCE AND DISSENT (Johnson, J., joined by Beier and Rosen): Agrees there is jurisdiction to hear the appeal. Disagrees with majority’s determination that KORA registration is not part of the criminal sentence.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with her votes in Petersen-Beard and other cases dealing with Eighth Amendment and Ex Post Facto claims, dissents from majority’s holding that lifetime sex offender registration is not punishment.

STATUTES: K.S.A. 2017 Supp. 22-3601, -3602(a), -3608(c), 60-102, -2103, -2103(b); K.S.A. 22-2103, -3606, -4901 et seq.

constitutional law—criminal procedure—sentencing—statutes
state v. thomas
sedgwick district court—affirmed in part, reversed in part
court of appeals—affirmed in part, reversed in part
no. 109,951—april 13, 2018

FACTS: Thomas convicted of aggravated battery for using a stiletto heel to attack a fellow dancer. District court informed Thomas at sentencing of her duty to register under Kansas Offender Registration Act (KORA) as a violent offender, but never made a finding on the record that a deadly weapon was used in the commission of the crime. On appeal Thomas claimed: (1) district court erred by disallowing cross-examination of victim about victim’s civil action against their mutual employer; (2) prosecutor’s closing argument misstated the evidence and diluted State’s burden of proof; (3) cumulative error denied her a fair trial; and (4) her KORA registration obligation should be excused. In unpublished opinion, Court of Appeals affirmed the conviction, vacated the registration requirement, and remanded to the district court for consideration of the deadly weapon question. Thomas’ petition for review granted on all issues, and on her challenge to the remand.

ISSUES: (1) Right of confrontation, (2) prosecutorial error, (3) remand for resentencing

HELD: No abuse of district court’s discretion in excluding evidence concerning the victim’s civil lawsuit. Under facts in case, district court did not cut off Thomas’ ability to confront the victim, and Thomas failed to show how details in the civil case could have provided any basis to impeach the victim’s testimony.

Prosecutor confused the parties during closing argument. This misstatement argued facts not in evidence, but the error was isolated and harmless under facts in the case.

Cumulative error doctrine not available for a single prosecutorial error.

State filed no cross-petition, so no review of panel’s holding that the KORA obligation to register as a violent offender must be triggered by the district court’s explicit finding on the record that a deadly weapon was used in the commission of a crime. But see State v. Marinelli (111227, this day decided)(holding such a finding is required before the obligation to register arises under KORA). In this case, no statutorily defined condition identified in Marinelli exists, thus the obligation to register never springs into existence. The absence of a court-made finding on the record that Thomas used a deadly weapon is not a sentencing error. The remand order is vacated.

CONCURRENCE AND DISSENT (Rosen, J., joined by Beier and Johnson, JJ.): Agrees that remand is not needed. Dissents from majority’s interpretation of KORA as applied, and disagrees with its underlying position that KORA is not a sentencing statute that increases punishment for designated convictions. Agrees with Justice Johnson’s rationale and conclusion in his concurring opinion that KORA registration is a part of sentencing.

CONCURRENCE (Johnson, J, joined by Beier and Rosen, JJ.): Concurs with the result, but challenges the majority’s newly manufactured “springing obligation” theory to support its theory that Thomas’ KORA registration obligation was not part of the sentence imposed. Would hold the district court’s sentencing pronouncement ordering Thomas to register under KORA was illegal because it did not conform to applicable statutory provisions. Would vacate that part of the pronounced sentence and hold that pursuant to the lawful sentence entered, Thomas is not required to register under KORA.

STATUTES: K.S.A. 2017 Supp. 22-3504(3), -4902(a), -4902(a)(5), -4902(b)(2), -4902(b)(3), -4902(b)(4), -4902(c), -4902(c)(18), -4902(d), -4902(e), -4902(e)(2), -4902(f), -4904(a)(1)(B), -4904(a)(1)(B)(iii), -4906(a)(1)(M), -4906(f), -4906(g); K.S.A. 2012 Supp. 22-4904(a)(1)(A); K.S.A. 2011 Supp. 21-5413(b)(1)(B), 22-4902(e)(2), -4904(a)(2); K.S.A. 22-2101 et seq., -4901 et seq., 60-101 et seq.

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