Kansas Supreme Court
constitutional law—criminal procedure—motions—sentences—statutes
state v. donahue
sedgwick district court—affirmed
No. 116,564—february 8, 2019
FACTS: Donahue filed a motion to correct an illegal sentence to challenge his 1974 life sentence with possibility of parole as violating the Eighth Amendment, arguing Miller v. Alabama, 567 U.S. 460 (2012), applicable to juveniles sentenced to life without possibility of parole, should be extended to his life sentence with the possibility of parole. District court summarily dismissed the motion.
ISSUE: Motion to correct an illegal sentence
HELD: District court’s decision was affirmed. Donahue’s Eighth Amendment claim does not implicate the sentencing court’s jurisdiction, and Kansas Supreme Court has repeatedly held a motion to correct an illegal sentence under K.S.A. 22-3504 cannot raise claims that the sentence violates the United States Constitution.
STATUTES: K.S.A. 2017 Supp. 22-3504(3), -3601(b)(3); K.S.A. 22-3504, -3504(1); K.S.A. 1973 Supp. 21-3421, -4501(a), 22-3717(2)
Kansas Court of Appeals
TIME LIMITATIONS—WORKERS COMPENSATION
SCHNEIDER V. CITY OF LAWRENCE
WORKERS COMPENSATION BOARD—REVERSED AND REMANDED
NO. 119,340—FEBRUARY 8, 2019
FACTS: On two occasions, two years apart, Schneider injured his back while working as a firefighter. Schneider filed an application for hearing more than five years after the second injury. The City moved to deny the applications as untimely. Schneider responded that the application was timely because the City provided authorized medical care in 2012 and again in 2015, just a few weeks before the application was filed. The ALJ denied Schneider's claim as time-barred and the Board affirmed. Schneider appeals.
ISSUE: (1) Timeliness of Schneider's claims
HELD: The Graham case, decided in 1936, held that a statute of limitations cannot be revived by an employer's voluntary compensation once the time to file a claim has passed. But K.S.A. 44-534(b), the statute which applied to Schneider's claim, merely requires that an application be filed within two years of the employer's last compensation payment even if that payment was not voluntary. The Board read ambiguity into the statute where none existed. The legislature could have codified Graham during the overhaul of the workers compensation statutes but chose not to. Schneider's application was timely filed, and this case is remanded.
STATUTE: K.S.A. 44-520a, -534(b)
GREEN V. GENERAL MOTORS CORP.
WORKERS COMPENSATION BOARD—REVERSED AND REMANDED
NO. 119,044—FEBRUARY 8, 2019
FACTS: Green suffered repetitive-use injuries at his job. He filed a claim for workers compensation benefits in 2009. Green had multiple preliminary hearings and actively sought both treatment and temporary benefits. But the case never progressed to a final hearing. In 2017, General Motors filed a motion to dismiss for lack of prosecution, citing K.S.A. 2008 Supp. 44-523(f). The ALJ granted the motion, and a majority of the Workers Compensation Board affirmed. Green appealed.
ISSUE: (1) Proper version of K.S.A. 44-523 to apply
HELD: The amendments to K.S.A. 44-523 are procedural and applied retroactively. The Board erred by using the 2008 version of the statute when addressing Green's claim. The 2017 version of K.S.A. 44-523(f) requires the employer to request dismissal for lack of prosecution. The ALJ must then notify the claimant and set the matter for a hearing. This is very different from the 2008 statute, which mandated dismissal if finality is not reached within a certain time. Because Green did not receive the hearing to which he is entitled by statute, the case must be remanded. On remand, the Board must provide Green with an appropriate forum and determine whether dismissal is warranted.
STATUTES: K.S.A. 2017 Supp. 44-523(f)(1), -534a, 60-241(b)(1), 77-621(c)(4); K.S.A. 2008 Supp. 44-523(f)
PONDS V. STATE
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 119,057—FEBRUARY 8, 2019
FACTS: Ponds was convicted of multiple felony charges in 2009. His conviction was affirmed on direct appeal. In 2017, Ponds filed a K.S.A. 60-1507 motion which raised issues that had been adversely decided on direct appeal. The district court summarily denied the motion. Ponds filed a timely motion for reconsideration, but before a decision was announced, he filed a notice of appeal. The district court denied the motion to reconsider, and Ponds did not file a second notice of appeal.
ISSUES: (1) Jurisdiction; (2) whether Ponds was entitled to a hearing on his motion
HELD: The appellate court only has jurisdiction over a final decision. K.S.A. 60-2103(a) requires the notice of appeal to be filed within 30 days of a final decision. That did not happen here, but Ponds filed a timely motion to reconsider which tolled the time in which to file a notice of appeal. Ponds' notice of appeal was premature because it was filed before the district court ruled on the motion to reconsider, and the denial of Ponds' motion was not announced from the bench. And Ponds did not file a second notice of appeal after the motion was denied. Case precedent shows that the appellate courts have taken an expansive reading of Supreme Court Rule 2.03 and applied it to situations like this. Under that precedent, the court has jurisdiction to consider the denial of Ponds' K.S.A. 60-1507 motion but lacks the authority to review the denial of the motion to reconsider. The claims raised in Ponds' K.S.A. 60-1507 motion are identical to the issues from his direct appeal. Any attempt to relitigate these issues is barred by the doctrine of res judicata.
STATUTES: K.S.A. 2017 Supp. 60-259(f), -2102(a)(4), -2103(a); K.S.A. 60-1507
criminal law—criminal procedure—evidence—juries—
state v. shay
miami district court—affirmed in part, reversed in part, remanded
No. 118,303—february 8, 2019
FACTS: Shay was convicted of rape and aggravated criminal sodomy. On appeal, he claimed both convictions should be reversed because the State presented insufficient evidence the victim was unconscious or physically powerless, one of the alternative means of committing both charges. He also claimed the district court erred in overruling his objection to jury instructions that discouraged jury’s power of nullification.
ISSUES: (1) Sufficient evidence of alternative means—rape, (2) sufficient evidence of alternative means—aggravated criminal sodomy, (3) jury instructions on nullification
HELD: Rape conviction was affirmed. Direct evidence the victim was sleeping when the rape occurred is sufficient evidence that Shay raped the victim while she was unconscious or physically powerless.
Aggravated criminal sodomy conviction is reversed. No evidence that Shay committed this act while the victim was sleeping, and victim’s testimony of being too scared to move does not satisfy statutory element that the crime was committed while she was unconscious or physically powerless. State v. Parker, 48 Kan.App.2d 68 (2012), is factually distinguished. Remanded for new trial only on alternative means supported by sufficient evidence in the first trial—that this crime was committed while victim was overcome by force or fear. Double jeopardy bars retrial on alternative means that crime was committed while victim was unconscious or physically powerless.
District court did not err in overruling Shay’s requested instructions. District court’s reasonable doubt instruction did not sidestep holding in State v. Smith-Parker, 301 Kan. 132 (2014), and no instruction to the jury came too close to directing a verdict for the State.
STATUTE: K.S.A. 2017 Supp. 21-5504(b)(3)