Kansas Supreme Court
ORDER OF SUSPENSION
IN RE KEVIN T. CURE
NO. 120,518 – MAY 10, 2019
FACTS: A hearing panel determined that Cure violated KRPC 8.4(b) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer); 8.4(d) (misconduct prejudicial to the administration of justice); 8.4(d) (misconduct that adversely reflects on the lawyer's fitness to practice law); and Supreme Court Rule 203(c)(1) (failure to report felony charge). The complaint was filed after Cure had four DUI convictions and appeared in court under the influence.
HEARING PANEL: The panel noted Cure's multiple convictions as well as his conduct which directly affected clients. The panel considered both aggravating and mitigating factors, which included Cure's alcoholism. The disciplinary administrator recommended an indefinite term of suspension. Cure asked that he be placed on probation. The hearing panel recommended an 18-month suspension, with Cure required to undergo a Rule 219 hearing prior to the consideration of a petition for reinstatement.
HELD: Cure filed no exceptions to the hearing panel's report. The court found that Cure has made significant strides towards changing his circumstances. But his ethical violations were serious. For that reason, a majority of the court agreed with the panel's recommendation of an 18-month suspension. A minority of the court would have imposed lesser discipline.
ORDER OF SUSPENSION
IN RE DAVID E. HERRON, II
NO. 119,726—MAY 10, 2019
FACTS: A hearing panel determined that Herron violated KRPC 1.6 (confidentiality); 3.3(a)(1) and (d) (candor toward tribunal); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Charges arose after Herron told law enforcement that his client told him that she was faking urine tests in order to hide positive results. There was also an issue with a different client when Herron allegedly lied to the court about opposing counsel's willingness to reargue an issue after a bench warrant was issued. Herron was fired and his former employer filed a disciplinary complaint.
HEARING PANEL: The hearing panel found several instances where Herron lied to the district court. The hearing panel found a number of aggravating factors, including the submission of false evidence during the disciplinary process. The disciplinary administrator recommended disbarment. The hearing panel recommended that Herron be suspended for 30 days.
HELD: Herron disputed the hearing panel's findings. After considering Herron's arguments, the court adopted most of the hearing panel's report, but found that some actions flagged by the hearing panel as misconduct were within the realm of appropriate representation. A majority of the court concluded that a 60-day suspension was appropriate discipline. A minority of the court would have imposed a longer suspension.
DRAM SHOP LAW—TORTS
KUDLACIK V. JOHNNY'S SHAWNEE, INC.
JOHNSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS AFFIRMED
NO. 115,869—MAY 10, 2019
FACTS: Kudlacik was gravely injured by Smith, who was intoxicated after spending the evening drinking at Johnny's Shawnee and Barley's Bar. Kudlacik sued Johnny's, claiming that bartenders continued to serve Smith even after they knew or should have known that he was intoxicated to an extent that he was a danger to others. Johnny's moved to dismiss on grounds that Kansas does not recognize a cause of action for a third-party to sue dispensers of alcoholic beverages for harm done to the third party. Kudlacik appealed and the Court of Appeals summarily affirmed. The Supreme Court granted Kudlacik's petition for review.
ISSUES: (1) Existence of negligence claim; (2) aiding and abetting
HELD: Kansas has repeatedly refused to impose a dram shop liability. Kudlacik's arguments that the current rule is outdated and bad public policy have merits, but not enough to change the status quo. There is no duty of care that runs from tavern owners to third-parties injured by tavern patrons after they have left the premises. Aiding and abetting claims exist only under narrow circumstances which are not applicable here.
STATUTES: No statutes cited.
QUO WARRANTO—STATUTORY INTERPRETATION
STATE V. KELLY
ORIGINAL ACTION—QUO WARRANTO GRANTED
NO. 121,061—MAY 10, 2019
FACTS: A vacancy on the Kansas Court of Appeals was created by the retirement of Judge Patrick McAnany on January 14, 2019. As required by statute, 60 days later, Governor Kelly nominated Judge Jeffry Jack to fill the vacancy. It is undisputed that the nomination was made and accepted within the statutory time frame. On March 18, 2019, Judge Jack sent a letter informing the Senate that he was withdrawing his name from consideration at the governor's request. The following day, Governor Kelly communicated this withdrawal to the Senate Majority Leader. In that same communication, Governor Kelly told the Senate Majority Leader that she would make a new appointment within 60 days. This prompted a discussion between the Governor, the Attorney General, and the Senate President about what could be done to fill the vacancy. Acting on a request from the Attorney General, the State filed this quo warranto action in an attempt to determine who holds the appointing authority. After the action was filed, Governor Kelly appointed a different attorney to fill the vacancy.
ISSUES: (1) Senate's capacity to be sued; (2) authority to appoint replacement judge
HELD: A quo warranto action demands that an individual or corporation show by what authority it has engaged in a challenged action—in this case, the action being challenged is Governor Kelly's second nomination. Although the Senate participated in this action and did not object to service, there is no authority giving the Senate President unilateral power to enter the Senate into litigation. There was no chamber resolution or authorization from the coordinating council directing action in this matter. The Senate has not engaged in any allegedly unauthorized action. Under these circumstances, the Senate is not a proper party to this action, and it is dismissed. K.S.A. 2018 Supp. 20-3020 governs appointments to the Court of Appeals. That statute provides that appointments are effective at the time they are made and does not contain any language for withdrawing a nomination. The parties rely on K.S.A. 75-4315b. But it is inapplicable for several reasons. First, Judge Jack withdrew his own name from consideration. More importantly, K.S.A. 2018 Supp. 20-3020(b) establishes different rules regarding the vote process. There is no statutory provision for a nominee to be withdrawn. This silence in the statute is an indication that the Legislature did not intend to provide this power, especially because the prior Court of Appeals appointment statutes did address the ability to withdraw a nominee from consideration. The only way for Judge Jack's nomination to be closed is for the Senate to vote. Because his nomination was still active at the time the second candidate was named, the second nomination is a legal nullity and is treated as though it never happened.
STATUTES: Kansas Constitution Article III, section 3, section 18; K.S.A. 2018 Supp. 20-3020, -3020(a), -3020(b), 46-1222a(a), -1222a(f); K.S.A. 60-1202(l), 75-4315b
constitutional law—criminal procedure—sentences—statutes
state v. brook
Nemaha district court—affirmed; court of appeals—affirmed
no.115,657—may 10, 2019
FACTS: Brook entered a no contest plea to sexual exploitation of a child in 2013. Sentence imposed included 36-month prison term suspended for 36 months’ probation, and 2 years postrelease supervision. When Brook committed another crime, district court revoked probation and imposed the original sentence, correcting the postrelease term from two-year to a lifetime term as required for a sexually violent crime. Brook appealed, arguing the postrelease term could not be corrected as an illegal sentence, citing K.S.A. 2018 Supp. 22-3717(d)(3) and K.S.A. 2013 Supp. 22-3717(d)(1). He also claimed lifetime postrelease supervision is cruel and unusual punishment. Court of Appeals affirmed in unpublished opinion. Review granted.
ISSUES: (1) K.S.A. 2018 Supp. 22-3717(d)(3); (2) K.S.A. 2013 Supp. 22-3717(d)(1); (3) Constitutional claim
HELD: Book’s statutory arguments are rejected. Imposition of an underlying prison term after a probation violation is not equivalent to “incarceration for a supervision violation,” thus a period of postrelease supervision term may be modified while serving the underlying prison sentence after probation revocation.
The original sentence was illegal because the two-year postrelease term did not conform to applicable statutory requirements, thus it was subject to later correction.
Brook’s categorical constitutional challenge to lifetime postrelease supervision is defeated by State v. Williams, 298 Kan. 1075 (2014). State v. Dull, 302 Kan. 32 (2015), applicable to juvenile offenders, is distinguished and not expanded.
STATUTES: K.S.A. 2018 Supp. 22-3504(1), -3717, -3717(d)(1), -3717(d)(1)(D), -3717(d)(3); K.S.A. 2013 Supp. 22-3717(d)(1)(D), -3717(d)(1)(G); K.S.A. 22-3504
state v. edwards
sedgwick district court—affirmed in part, vacated in part, remanded
117,305—may 10, 2019
FACTS: Criminal charges filed against Edwards, including two counts of capital murder. District court appointed two experienced public defenders. Edwards filed a pro se motion for appointment of new counsel, claiming pressure to accept a plea deal. District court denied the motion. He eventually entered a guilty plea to two counts of felony murder, aggravated burglary and aggravated robbery. Two weeks later, he filed a pro se motion to withdraw his plea, alleging pleas resulted from attorney manipulation and lies, and that he engaged in sexual encounters with one of the public defenders. Hearing held with new appointed counsel. District court applied factors in State v. Edgar, 281 Kan. 30 (2006), finding: overwhelming evidence supported the competency of Edwards’ attorneys; Edwards was not misled, coerced, mistreated, or unfairly taken advantage of; and the allegations of sexual misconduct were not credible. At sentencing, district court imposed lifetime postrelease supervision for the felony-murder convictions and orally waived payment of the BIDS administrative fee, but journal entry assessed a $100 BIDS fee. Edwards appealed claiming district court erred in denying motion to withdraw plea. He also claimed district court lacked authority to order lifetime postrelease supervision, and the journal entry must be corrected to show district court’s waiver of the BIDS administrative fee.
ISSUES: (1) Lifetime postrelease supervision; (2) waiver of BIDS administrative fee; (3) motion to withdraw plea
HELD: State concedes that sentence for off-grid first-degree felony murder should have ordered lifetime parole instead of lifetime postrelease supervision.
The judge’s oral pronouncement is controlling. Any journal entry variance from a judge’s oral pronouncement during sentencing is a clerical error that may be corrected at any time. District court is ordered to correct the journal entry to properly reflect the waiver of BIDS fees.
Edwards relies exclusively on second Edgar factor to claim he was coerced into taking his plea, but evidence of his dissatisfaction with counsel is insufficient to establish good cause to withdraw a guilty plea. Edwards also objected to district court’s comments regarding plea offers by State in a co-defendant’s case. However, district court expressly confined itself to Edgar factors when deciding Edwards’ motion, and no abuse of district court’s discretion is shown. Edwards’ motion to withdraw his guilty plea is affirmed.
STATUTE: K.S.A. 2018 Supp. 22-3210(d)(1), -3504(2), -3601(b)(3)
appellate procedure—criminal law—criminal
state v. garcia-garcia
montgomery district court—convictions affirmed,
sentence vacated in part, case remanded
116,648—may 10, 2019
FACTS: Garcia-Garcia was involved in a high-speed chase in Oklahoma, with shots fired from Garcia-Garcia’s car. After entering Kansas, he obtained a ride from Shafer, who felt threatened by a gun and was able to escape. Garcia-Garcia then obtained ride with Henderson, who was injured when officer Grimes stopped Henderson’s truck and exchanged gunfire with Garcia-Garcia. Prior to trial, district court denied a motion in limine to bar evidence about Garcia-Garcia’s criminal acts in Oklahoma. Jury convicted Garcia-Garcia of attempted capital murder of Grimes, kidnapping of Shafer, and interference with law enforcement. Sentence imposed included hard 25 life sentence with consecutive presumptive sentences for the remaining offenses. Garcia-Garcia appealed: (1) challenging relevancy and prejudice of evidence about his Oklahoma criminal acts, (2) claiming prosecutor error in voir dire and closing argument; (3) alleging district court should have given unrequested jury instruction on attempted kidnapping because overwhelming evidence that Shafer escaped; and (4) arguing district court erroneously imposed BIDS fees as a percentage of attorney fees without knowing the exact amount. Supplemental briefing ordered on the notice appeal, which was titled to the Kansas Court of Appeals instead of the Kansas Supreme Court.
ISSUES: (1) Appellate jurisdiction; (2) evidence of Oklahoma crimes; (3) prosecutorial error; (4) lesser included offense instruction; (5) BIDS fee assessment
HELD: Kansas Supreme Court’s jurisdiction under K.S.A. 2016 Supp. 22-3601(b)(3) and (b)(4) is examined, holding the court has jurisdiction despite the misdirected notice of appeal.
Under facts in case, no abuse of district court’s discretion to find evidence of the Oklahoma criminal acts was not unduly prejudicial. Garcia-Garcia did not preserve his challenge to relevancy of the Oklahoma evidence.
Prosecutor’s voir dire explanation of reasonable doubt did not alter or lower the State’s burden. Prosecutor’s suggestion during closing argument that Garcia-Garcia had a duty to act in defense of officers was harmless error in this case.
By showing his gun, Garcia-Garcia gained sufficient control over Shafer to complete the crime of kidnapping. An instruction on lesser included offense of attempted kidnapping was not factually appropriate.
Court reviews the newly raised BIDS issue. Under State v. Robinson, 281 Kan. 538 (2006), district court’s failure to fulfill its statutory duty to consider the defendant’s financial resources and burden created by the attorney fees before granting a partial waiver was reversible error. Attorney fees assessment is vacated and case remanded for reconsideration of Garcia-Garcia’s obligation.
STATUTES: K.S.A. 2017 Supp. 21-5109(b)(3). -5301(a), -5401(a)(5), -5408(a)(2), -6620(a)(2)(A), 60-455, -455(b), -2103(b); K.S.A. 2016 Supp. 22-3601(b), -3601(b)(3), -3601(b)(4)(G); K.S.A. 2015 Supp. 21-5401(c), -6620(a)(2)(A); K.S.A. 22-4513, 60-404, -455
criminal law—criminal procedure—sentences
state v. moore
wyandotte district court—sentence vacated in part and case remanded
No. 117,275—may 10, 2019
FACTS: Moore and Warren were tried together and convicted of premeditated first-degree murder, intentional second-degree murder, and attempted premeditated first-degree murder. Hard 50 life sentences were imposed for the off-grid premeditated murder convictions. In Moore’s case, gridbox sentences of 195 months and 155 months were imposed, with all of Moore’s sentences to run concurrent. Convictions in both cases were affirmed on appeal, but hard 50 sentences were vacated due to Alleyne v. United States, 570 U.S. 99 (2013). On remand, the district court imposed hard 25 sentences for first-degree murder convictions, modified the duration and concurrent nature of the on-grid convictions, and ordered all sentences to run consecutive instead of concurrent. Moore appealed.
ISSUE: Sentencing on remand
HELD: Applying the controlling holding in State v. Warren, 307 Kan. 609 (2018), district court on remand erred by changing life sentence from “running concurrent with,” to “consecutive to,” Moore’s sentences for his two non-vacated on-grid crimes, and by modifying the two non-vacated, on-grid sentences in length and sequence. Sentence vacated in part and case remanded for resentencing to reinstate Moore’s original 195-month and 155-month concurrent grid sentences, to run concurrent with the new hard 25 sentence.
STATUTE: K.S.A. 2018 Supp. 21-6801 et seq., 22-3601(b)(3)
Kansas Court of Appeals
DRIVER'S LICENSE—STATUTORY CONSTRUCTION
JARVIS V. KANSAS DEPARTMENT OF REVENUE
JOHNSON DISTRICT COURT—AFFIRMED
NO. 119,116—MAY 10, 2019
FACTS: Officer Hirsch stopped Jarvis on suspicion of DUI. Officer Hirsch read the implied consent advisories to Jarvis, who refused to take a breath test. This resulted in the administrative suspension of Jarvis' driver's license. Jarvis requested an administrative hearing but the suspension was upheld. Jarvis then sought judicial review, claiming that the officer lacked reasonable suspicion to initiate the stop. After hearing testimony and reviewing the evidence—including video of the traffic stop—the district court reversed the suspension. In so holding, the district court found that Officer Hirsch's testimony was not credible. The Department of Revenue appealed.
ISSUES: (1) Reasonable suspicion for the car stop; (2) effect of 2016 amendment to K.S.A. 8-1020(p); (3) good faith exception
HELD: Appellate courts are unable to review a lower court's factual findings regarding witness credibility, and the district court found that Officer Hirsch's testimony was not credible. Legislative history shows that the 2016 amendment to K.S.A. 8-1020(p) was designed to provide licensees with a meaningful opportunity to challenge the legality of the traffic stop in a driver's license suspension case. In this case, the district court's ruling was not based on an application of the exclusionary rule. The district court did not suppress evidence but rather set aside the suspension of Jarvis' license finding that the plain language of K.S.A. 2018 Supp. 8-1020(p) justified reversal of the suspension. The issue of application of the good faith exception was not raised below. As such, it will not be reviewed for the first time on appeal. Even if the court were to address it on the merits, it would not be a winning argument, since the reversal of Jarvis' suspension was not based on the exclusionary rule.
STATUTES: K.S.A. 2018 Supp. 8-1020(p); K.S.A. 8-1020(h)(2)
COMMUNITY FIRST NATIONAL BANK V. NICHOLS
WABAUNSEE DISTRICT COURT—AFFIRMED
NO. 118,981—MAY 10, 2019
FACTS: Sarah Grace and Kurtis Nichols obtained two home loans from Community First National Bank. When the Nicholses failed to make payments, the bank filed this foreclosure action. The Nicholses filed several counterclaims alleging violations of the Kansas Consumer Protection Act. The bank filed a motion for partial summary judgment arguing that it was not subject to the KCPA. The district court granted that motion, dismissed the rest of the Nicholses' counterclaims, and granted the Bank's motion for foreclosure. The Nicholses appealed.
ISSUES: (1) Applicability of the KCPA; (2) application of payments; (3) fraud in applying credit; (4) ability to charge late fees; (5) accrual of interest during deferral period
HELD: The plain text of the KCPA states that banks are not included in the definition of "supplier" if the bank is subject to state or federal regulation related to disposition of repossessed collateral. This holding is in line with Kansas federal courts and gives meaning to the plain language of the statute. The mortgage contract is clear about how interest is accrued but silent on how payments should be applied. The district court erred by finding that the contract was unambiguous. However, any error was harmless, as the amount owed by the Nicholses was ultimately correct. The Nicholses' claims about fraud are unsupported by the record on appeal. The evidence supports the district court's findings that any errors in late fee calculation were unintentional and minimal. The deferral agreement clearly deferred payments but did not stop interest accrual.
STATUTES: K.S.A. 2018 Supp. 50-624(1), -626, -627; K.S.A. 16a-2-103(2)(a), -502(l), -5-201(3), -5-201(4), -5-201(7)
criminal law—criminal procedure—sentences—statutes
state v. pollman
finney district court—sentence vacated and case remanded for resentencing
no.118,672—may 10. 2019
FACTS: Pollman was charged in 2011 with discharging a firearm at an occupied vehicle, and two counts of criminal damage to property. Pursuant to plea agreement he entered no-contest plea to amended charge of discharge of firearm at an unoccupied vehicle—a crime that did not exist—and State dismissed the two criminal damage counts. District court accepted the plea, categorized the nonexistent offense as a severity level 8 person felony, ordered $4000+ in restitution, imposed a 10-month prison term, and granted 18-month probation. Pollman was charged and convicted in 2017 on a drug possession charge. Sentencing court scored the nonexistent 2011 offense as a person felony. Pollman appealed the 2017 sentence, arguing that rule of lenity or by treating the 2011 conviction as an unclassified crime, the 2011 crime should be scored as a nonperson misdemeanor. In supplemental briefing on appellate court questioning the validity of the 2011 conviction, Pollman argued the 2011 conviction for a noncriminal act was invalid or void for purpose of his criminal history.
ISSUES: (1) Use of nonexistent offense in criminal history score, (2) scoring the nonexistent offense for purposes of criminal history
HELD: Pollman’s 2011 conviction for discharging firearm at an unoccupied vehicle stands. He forfeited right to attack an underlying infirmity in the charge to which he pleaded, as established by cited cases in Kansas and other jurisdictions. Other nonexistent or hypothetical crimes are discussed. Factors in Spencer v. State, 24 Kan. App. 2d 125 (1997), aff’d on other grounds 264 Kan. 4 (1998), for pleading to a nonexistent crime are satisfied. Pollman pleaded to a nonexistent crime as part of a plea agreement. He was initially brought into court on a valid pleading that alleged only crimes defined by Kansas Legislature. He received a beneficial plea agreement. And he voluntarily and knowingly entered into the plea agreement.
Pollman’s 2011 conviction is not among the exclusive statutory exceptions to general rule that requires all convictions are to be counted. The 2011 conviction was a verified conviction. By nature of penalty imposed, it was a felony, and this unclassified felony should have been scored as a nonperson crime. The rule of lenity does not apply because criminal code guides how to classify unclassified, omitted, or unranked convictions. Pollman’s 2017 sentence is vacated and remanded for resentencing to score the 2011 offense as a nonperson felony rather than a person felony.
DISSENT (Atcheson, J.): Dissents from majority’s result and reasoning. District court’s acceptance of Pollman’s plea created a common-law crime existing by judicial declaration rather than legislative enactment. This is contrary to Kansas Criminal Code; it ignores controlling Kansas Supreme Court precedent; and almost certainly violates Kansas Constitution’s separation of powers. Majority’s broad endorsement of plea agreements and convictions for common-law crimes is unjustified. Plea bargaining in Kansas does not contemplate common-law crimes. Majority misapplied judicial reasoning by analogy. Cases cited by majority are distinguished as resulting in convictions for statutory crimes, unlike Pollman’s 2011 conviction for an offense not in the Kansas Criminal Code. Future problems in plea bargaining are envisioned, and the majority failed to consider collateral consequences apart from scoring criminal histories.
STATUTES: K.S.A. 2018 Supp. 2-2449(a), 8-2118(c), 21-5210, -5301,-5302, -5813, -6308, -6613, -6614, 22-4902(c), -4902(c)(16), -4902(c)(18), 47-830(e); K.S.A. 2016 Supp. 21-5102, -5102(a), -5102(d), -5103(a), -6602(a)(4), -6806(c), -6807(c)(1)-(3), -6810(c), -6810(d), -6810(d)(1), -6810(d)(6), -6810(d)(9), -6813(b)(5); K.S.A. 2011 Supp. 22-4902(e)(2); K.S.A. 2010 Supp. 21-4217(a)(1), -4217(a)(2), 22-3502; K.S.A. 8-1534(d), 21-3102, -3105, -3720, -3720(b)(2), -4219, -4219(b), -5301(c)(1), 22-3504, -4901 et seq., 60-1507, 65-6615(a)(2)