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February 14, 2020 Digests

Posted By Administration, Tuesday, February 18, 2020

Kansas Supreme Court

criminal

appeals—constitutional law—motions—sentences
state v. peterson
Geary District Court—affirmed
No. 119,314—february 14, 2020

FACTS: Peterson filed 2007 no contest plea to first-degree murder. Ten years later he filed motion to correct an illegal sentence, arguing his hard 25 life sentence was disproportionate in violation of federal and state constitutional protections against cruel and unusual punishment. District court issued a nunc pro tunc order, agreeing that lifetime postrelease supervision should not have been imposed, but rejected Peterson’s constitutional claims. Peterson appealed, challenging the constitutionality of his hard 25 sentence.

ISSUE: (1) Motion to Correct Illegal Sentence—Constitutional Challenge

HELD: Merits of Peterson’s constitutional arguments are not considered. A motion to correct an illegal sentence cannot raise claims that a sentence is unconstitutional.

STATUTES: None

criminal procedure—sentences—statutes
state v. fowler
sedgwick district court—affirmed
court of appeals—affirmed
No. 116,803—February 14, 2020

FACTS: Fowler pleaded guilty to felony possession of methamphetamine, felony domestic battery, and violation of a protective order. The domestic battery conviction qualified as a felony because it was his third such conviction within five years. In calculating criminal history score for the drug possession conviction, district court included the same two misdemeanor domestic battery convictions used to elevate the current domestic battery to a felony. Fowler appealed, arguing the district court impermissibly double counted the two prior misdemeanor domestic battery convictions. Court of Appeals affirmed. 55 Kan.App.2d 92 (2017). Fowler’s petition for review granted.

ISSUE: (1) Sentencing—Multiple Conviction Case

HELD: Prior cases dealing with double counting statute have not explicitly addressed question of which crime does K.S.A. 2015 Supp. 21-6810(d)(9)’s phrase “the present crime of conviction” refer? Design and structure of the Kansas Sentencing Guidelines Act is reviewed. Here, sentencing judge did not violate K.S.A. 2015 Supp. 21-6810(d)(9)’s restriction on double counting by using the same two prior misdemeanor domestic batteries both to calculate Fowler’s criminal history for his base sentence on the primary grid crime, and to elevate the current domestic battery to a felony.

CONCURRENCE (Rosen, J.): Agrees that including Fowler’s prior domestic battery convictions in the criminal history calculation for his primary grid conviction did not violate the double-counting provision of K.S.A. 2015 Supp. 21-6810(d)(9), but writes separately to emphasize that the confusion in this case necessitating two appellate courts addressing this sentencing issue is completely avoidable. Citing his concurring opinion in State v. Garcia, 295 Kan. 53 (2012), a predetermined, accurate criminal history should be a required part of plea negotiations.

STATUTES: K.S.A. 2018 Supp. 21-5414(c)(1)(C), -6801 et seq., -6802(a), -6802(c), -6803(c), -6803(d), -6803(k), -6803(l), -6805, -6805(c)(2), -6805(c)(3), -6806, -6806(c), -6806(d), -6807, -6808, -6810(d)(9), -6810(d)(10), -6819, -6819(b)(2), -6819(b)(3), -6819(b)(4), -6819(b)(5); K.S.A. 2015 Supp. 8-1567(b)(1)(D), -1567(b)(1)(E), 21-5414(b)(3), -5701 et seq., -5706(a), -5924(a)(4), -5924(b)(1), -6804, -6804(c), -6804(d), -6804(e)(1), -6804(e)(2), -6804(e)(3), -6804(f), -6804(g), -6804(h), -6804(i), -6804(j), -6804(k), -6810(a), -6810(d)(9), -6811(a), -6811(i); and K.S.A. 21-4710(d)(11), 22-3504(1)

appellate procedure—criminal law—juries—jury instructions
state v. boeschling
reno district court—affirmed
court of appeals—affirmed
No. 116,757–February 14, 2020

FACTS: Boeschling convicted in jury trial on charges of nonresidential burglary, theft of a pickup, and unlawful possession of a firearm. On appeal he argued the district court’s response to jury’s mid-deliberation question about whether nullification can be applied to the firearms charge was reversible error. He also claimed error in the jury instruction defining the elements of burglary, and in the instruction that cautioned the jury about accomplice testimony. Court of Appeals affirmed in unpublished opinion. Boeschling’s petition for review granted.

ISSUES: (1) Jury Nullification; (2) Jury Instruction—Burglary; (3) Jury Instruction—Accomplice Testimony

HELD: State’s preservation challenge is not properly before the court because State failed to argue lack of preservation to Court of Appeals, and failed to cross-petition the panel’s opinion. District judge’s response - “You took the oath as jurors at the start of the case to follow the law in the case that you were instructed by the case.” - to jury’s nullification question was not error. The response did not amount to affirmative misinformation, imply that nullification did not apply, or amount to a warning that nullification would violate the jurors’ oaths.

District court judge erred by adding a culpable mental state of “knowingly” to the burglary instruction that otherwise included the correct mens rea of “intent to commit a theft.” No clear reversible error resulted in this case because the erroneous wording added to rather than subtracted from State’s burden of proof.

State v. Anthony, 242 Kan. 493 (1988), is still good law. A district court judge may instruct a jury to view an accomplice’s testimony with caution even when that testimony is favorable to a criminal defendant. The accomplice instruction in this case was both legally and factually appropriate.

STATUTES: K.S.A. 2018 Supp. 21-5202(b), 22-3414(3), 60-247(d); and K.S.A. 2015 Supp. 21-5807(a)(2)

criminal procedure—motions—sentences
State v. Newman
Shawnee District Court—affirmed in part and vacated in part
No. 118,608—February 14, 2020

FACTS: Newman entered guilty plea to first-degree felony murder and attempted second-degree intentional murder. Prior to sentencing he moved to withdraw his please, citing emotional distress due in part to his mother’s hospitalization, and newly discovered evidence District court denied the motion. Eight days later, Newman filed motion to vacate his plea due to ineffective assistance of counsel. District court denied that motion, finding defense counsel was more credible than Newman. Sentence imposed included lifetime postrelease supervision for the first-degree murder conviction. Newman appealed the denials of his motions to withdraw his pleas, and the imposition of lifetime postrelease supervision.

ISSUES: (1) Withdrawal of Guilty Pleas; (2) Sentencing

HELD: District court’s denial of both motions is affirmed. No abuse of discretion shown in district court’s conclusion that Newman’s plea was fairly and understandingly made. And appellate court will not reassess district court’s credibility findings.

Parties correctly agreed that district court erred in ordering lifetime postrelease supervision on the first-degree murder conviction. That portion of Newman’s sentence is vacated.

STATUTES: K.S.A. 2018 Supp. 22-3210(d)(1); K.S.A. 2010 Supp. 22-3717(b)(2); and K.S.A. 21-3401, -4706, -4706(c)

Tags:  appeals  constitutional challenge  Geary District Court  motions  Reno District Court  Sedgwick District Court  Shawnee District Court 

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