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October 4, 2019 Digests

Posted By Administration, Tuesday, October 8, 2019

Kansas Supreme Court

Criminal

Appeals–Appellate Procedure—Constitutional law—evidence—fourth amendment—statutes
State v. Perkins
Ellis District Court—Affirmed
Court of Appeals—Affirmed
No. 112,449—October 4, 2019

FACTS: Perkins arrested for DUI. He filed motion to suppress results of breath test to which he had consented. District court denied the motion and convicted him on stipulated facts. Perkins appealed. Court of Appeals directed State to show cause why the matter should not be summarily reversed per State v. Nece, 303 Kan. 888 (2016)(Nece I), and State v. Nece, 306 Kan. 679 (2017)(Nece II). Reflecting the State’s redirected arguments, panel affirmed district court, finding the search incident to arrest exception to warrant requirement allows a warrantless breath test; and finding the good-faith exception applied in this case because officer acted with objectively reasonable reliance on statute that was later determined to be unconstitutional. State v. Perkins, 55 Kan.App.2d 372 (2018). Perkins’ petition for review granted.

ISSUES: (1) Preservation Exception; (2) Good-Faith Exception; (3) Search Incident to Arrest

HELD: State’s redirected arguments are considered. Panel’s request that State brief new arguments on appeal is akin to panel raising the issue sua sponte, and parties are to be afforded an opportunity to present their positions to the court. Nece is distinguished. 

District court’s refusal to suppress the result of breath test is affirmed. Good-faith exception to exclusionary rule would save evidence in this case even through Perkins’ consent to search was invalid. Case is analogous to State v. Daniel, 291 Kan. 490 (2010). Here, officer followed existing law and could not reasonably be expected to know that K.S.A. 2012 Supp. 8-1025 would later be found unconstitutional. While provisions that criminalized test refusal were unconstitutional, the entire implied consent statutory scheme was not invalidated. 

No need to discuss alternative argument about search incident to arrest exception.

CONCURRENCE (Luckert, J.): Agrees with application of good-faith exception. Also concurs with majority’s implicit application of U.S. Supreme Court caselaw to § 15 of Kansas Constitution Bill of Rights, but questions whether continued application should be in lockstep with federal caselaw. Open to reexamination of Daniel, but not in this case. Application by federal and state courts of Illinois v. Krull, 480 U.S. 340 (1987), warrants reconsideration of whether its exception leaves Kansas without the protection guaranteed by § 15.

STATUTES: K.S.A. 2012 Supp. 8-1025, -1567(a)(2), -1567(a)(3), -1567(b)(1)(B); K.S.A. 22-2501(c)

Kansas Court of Appeals

Civil

ADOPTION
IN RE ADOPTION OF C.S.
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 120,359 – OCTOBER 4, 2019

FACTS: Father and Mother started a relationship in early 2017. By spring of that year, Mother was pregnant. At the time, both she and Father were under age 18, although Father turned 18 about five months into the pregnancy. During her pregnancy, Mother spent a great deal of time with Father at his mother's home, where she received food and clothing, but never any monetary support. Mother claims that she spent so much time with Father because he wanted to control her, and there was evidence that Father was verbally abusive. In an effort to get away from him, Mother moved to Florida to live with extended family for the last part of her pregnancy. C.S. was born in December 2017 and moved to live with potential adoptive parents in March 2018. Mother waived her parental rights but Father would not, so the adoptive parents filed a motion seeking to terminate his parental rights for lack of support. The district court granted the motion and Father appealed.

ISSUES: (1) Evaluation of support given Father's age; (2) sufficiency of the evidence

HELD: The obligation to provide support begins at pregnancy, not birth. That support need not be complete but must be of consequence and reasonable under the circumstances. Father was 18 for most of the relevant look-back period where support was required. And there is no statutory distinction between parents who are minors and parents who are legal adults during the relevant time period where support must be provided. Further, Father does not get credit for support that his mother provided to Mother. The district court's decision to terminate Father's parental rights is supported by clear and convincing evidence.

STATUTES: K.S.A. 2018 Supp. 59-2136(h)(1)(D), -2136(h)(2)(A), -2136(h)(2)(B), -2136(h)(4)

Criminal

Constitutional law - criminal procedure - motions - sentences - statutes
State v. Gales
Edwards District Court—Affirmed
No. 119,302—October 4, 2019

FACTS: Gales convicted of intentional second-degree murder and arson. Sentencing criminal history score included a 1976 California juvenile burglary adjudication that was classified asa person felony. Convictions and sentence affirmed on direct appeal. Gales I (unpublished, rev. denied). Gales filed motion to correct an illegal sentence to challenge classification of the California adjudication. Relying on State v. Dickey, 301 Kan. 1018 (2015)(Dickey I), Court of Appeals vacated Gales’ sentence and remanded to district court to make additional findings under Dickey to determine classification of the California adjudication as a person or nonperson offense. Gales II (unpublished). Thereafter, State v. Dickey, 305 Kan. 217 (2016)(DickeyII) extended Dickey I; State v. Wetrich, 307 Kan. 552 (2018), held that a prior out-of-state crime must have identical or narrower elements that the Kansas offense being compared; and Legislature amended K.S.A. 22-3504. Supplemental briefing ordered. 

ISSUE: (1) Illegal Sentence - Retroactivity and Application of Dickey

HELD: Gales entitled to constitutional rule in Apprendi because his conviction became final after Apprendi was announced. Gales does not get benefit of the identical-or-narrower definition of comparable offenses announced in Wetrich which constituted a change in the law. Under complicated facts in this case, district court’s process for deciding to classify the prior California crime as a person offense violated Apprendi but the decision is affirmed utilizing the classification process set forth in Dickey which does not constitute a change in the law as contemplated by the 2019 amendment to K.S.A. 22-3504.

STATUTES: K.S.A. 22-3504, -3504(c)(amended 2019); K.S.A. 2018 Supp. 21-6811(d), -6811(e)(3); K.S.A. 2015 Supp 21-6811(e)(3); K.S.A. 2000 Supp. 21-4711; K.S.A. 21-3715, -3715(a), -3715(b), -3715(c), -4711(d), -6811(e)(3), 22-3504, -3504(c)

appeals—constitutional law—criminal procedure—trials
State v. Williams
Graham District Court—Reversed and remanded
No. 120,099—October 4, 2019

FACTS: Under a deferred prosecution diversion agreement, State would dismiss felony charges if, in part, Williams paid $490 in costs and fees within one year. After 11 months of nonpayment, State moved to rescind the agreement. District court granted the motion and immediately found Williams guilty as charged based on fact stipulations in the diversion agreement. Williams appealed.

ISSUES: (1) Diversion Agreement; (2) Waiver of Right to Jury Trial

HELD: District court’s revocation of the diversion agreement, based on Williams’ admitted lack of payments, was not error.

Issue is reviewed for first time on appeal to prevent denial of a fundamental right. A district court’s failure to comply with requirement to advise a defendant of right to a jury trial on the record requires reversal and remand. Here, no written waiver and the record does not show the district court ever advised Williams about his right to a jury trial. Reversed and remanded to either afford Williams his constitutional right to a trial by jury based on stipulated facts or to allow him to execute a valid waiver of a jury trial.

STATUTE: K.S.A. 22-2911, -3403(1)

Tags:  Edwards District Court  Ellis District Court  Graham District Court  Shawnee District Court 

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