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February 28, 2020 Digests

Posted By Administration, Monday, March 2, 2020
Updated: Monday, March 2, 2020

Kansas Supreme Court

Attorney Discipline

TWO-YEAR SUSPENSION
IN RE LAUREL R. KUPKA
NO. 122,053—FEBRUARY 28, 2020

FACTS: A hearing panel determined that Kupka violated KRPC 1.1 (competence); 1.3 (diligence); 1.4(a) and (b) (communication); 4.1(a) (truthfulness in statements to others); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). The charges arose after Kupka expanded her law practice to include domestic cases while also taking on extra duties after other attorneys at the firm resigned. Kupka's workload grew even heavier around the time her first child was born, and she lost administrative support. The heavy workload, combined with a lack of any support, resulted in Kupka feeling anxious and depressed. As those conditions worsened, Kupka failed to adequately represent clients. She did not file things despite saying that she did, she altered documents in an attempt to make them look file-stamped, and she falsified judge's signatures. Kupka also failed to communicate with clients, and when she did speak with them, she lied about the status of their cases.

HEARING PANEL: Kupka self-reported her misconduct, in addition to another complaint being filed. She fully cooperated and admitted to the misconduct. The hearing panel acknowledged that Kupka engaged in dishonest conduct by cutting and pasting file stamps onto documents and forging clerk and judge signatures. But her actions were driven by an overwhelming workload, a lack of supervision or assistance, and depression. She fully admitted her misconduct and cooperated with the disciplinary process. The disciplinary administrator asked for a two-year suspension, and that the suspension be suspended after one year so that Kupka could complete a one-year term of probation. Kupka asked that she be allowed to continue practicing under the terms of a probation plan. The hearing panel, however, reiterated its position that dishonesty cannot be corrected by probation alone. The hearing panel recommended that Kupka be suspended for two years, but that she be returned to active practice after serving six months of the suspension, with a two-year term of probation to follow.

HELD: The panel's factual findings and conclusions of law were deemed admitted. The court agreed that a two-year suspension was the appropriate discipline. Kupka will be allowed to apply for reinstatement after completing nine months of the suspension. A minority of the court would have required a longer period of suspension before applying for reinstatement.

 

criminal 

constitutional lawcriminal lawcriminal procedurejury instructionsprosecutorssentences
state v. becker
ford district court—affirmed in part, vacated in part
NO. 118,235—february 28, 2020

FACTS: On evidence—including Becker’s confession, jury found him guilty of first-degree premeditated murder. Sentence included a Hard 25 life prison term and lifetime postrelease supervision. On appeal, he claimed prosecutor’s comments during closing argument regarding plea deals taken by codefendants was error. Becker also claimed the district court erred in failing to instruct jury on lesser included crimes, and on voluntary intoxication. He also claimed for first time that failure to instruct on lesser included crimes violated his constitutional rights to due process and jury trial. He claimed cumulative error denied him a fair trial, and claimed the district court erred in ordering lifetime postrelease supervision.

ISSUES: (1) Prosecutorial error; (2) jury instructionslesser included offenses; (3) Constitutional claims; (4) jury instructionvoluntary intoxication; (5) cumulative error; (6) sentencing

HELD: Prosecutor’s comments did not fall outside wide latitude afforded prosecutors, and was not an attempt to obtain a conviction in a manner that offended Becker’s right to a fair trial. Taken in context, prosecutor’s comments did not direct jury to ignore the plea agreements or to give them no weight in determining witness credibility. Instead, prosecutor was rebutting attacks in defense counsel’s closing argument regarding a codefendant’s favorable plea agreement.

District court did not commit reversible error under K.S.A. 2018 Supp. 22-3414 by failing to instruct jury on lesser included offenses of second-degree murder and voluntary manslaughter. Both instructions would have been legally appropriate. Even if error is assumed without decidingthat a second-degree intentional murder instruction was factually appropriate, the error was harmless under facts in this case. And no sudden quarrel factually supported an instruction for voluntary manslaughter.

Court considers Becker’s newly raised constitutional claims. Consistent with Beck v. Alabama, 447 U.S. 625 (1980), and State v. Love, 305 Kan. 716 (2017), no merit to Becker’s  claim that the lack of a lesser included alternative required jury to render an all-or-nothing verdict in violation of Becker’s due process rights. Also, based on Love and a 6th Circuit Court of Appeals case, district court did not preempt function of jury in violation of Becker’s right to a jury trial.

Under facts in this case, district court did not err in failing to instruct jury on voluntary intoxication. Evidence viewed in light most favorable to Becker establishes methamphetamine consumption but not intoxication to impair his ability to form the requisite intent. Nor did parents’ unsworn statements at sentencing hearing establish a level of impairment at time of the crime that would have warranted a voluntary intoxication instruction.

No cumulative error in trial having only one assumed harmless error.

Sentencing court’s order of lifetime postrelease supervision is vacated. District court has no authority to order a term of postrelase supervision in conjunction with an off-grid, indeterminate life sentence.

STATUTES: K.S.A. 2018 Supp. 21-5202(h), 5402(a), -6620(c)(2)(A), 22-3414, -3414(3), -3504, 3504(1), -3601(b)(3), -3601(b)(4); K.S.A. 2015 Supp. 21-5109(b)(1); K.S.A. 2014 Supp. 21-5205(b); K.S.A. 60-2106(c)

appeals—criminal law—criminal procedure—evidence—jury instructions
state v. gray
sedgwick district court—affirmed
NO. 117,747—february 28, 2020

FACTS: Jury convicted Gray of first-degree premeditated murder, rape, and aggravated burglary. During trial, he unsuccessfully challenged district court’s admission under K.S.A. 60-455 of evidence of a previous rape. On appeal, argued for first time that under the identical offense doctrine, the district court should have sentenced him for intentional second-degree murder. Gray next argued the district court abused its discretion in finding evidence of the prior rape was more probative than prejudicial because no juror would have been able to follow the limiting instruction. Gray further claimed the district erred in failing to instruct jury on intentional second-degree murder as a lesser included offense of first-degree murder.

ISSUES: (1) Newly raised claim; (2) K.S.A. 60-455 evidence; (3) jury instructionlesser included offense

HELD: Gray’s identical offense doctrine claim is not considered. K.S.A. 2019 Supp. 21-6820(e)(3) does not support review because Gray does not challenge the classification of his crime or conviction, and no exception to the preservation rule is utilized.

Jury members are presumed to follow instructions, including limiting instructions regarding the admission and use of prior crimes evidence. Gray failed to offer any facts or legal authority to suggest otherwise.

Absence of an instruction on second-degree intentional murder as a lesser included offense of premeditated first-degree murder was not clear error. The instruction would have been legally appropriate, but even if factual appropriateness is assumed, the error was harmless in light of overwhelming evidence of premeditation.

STATUTES: K.S.A. 2019 Supp. 21-6820(e)(3), 60-455(a), -455(b), -455(d); K.S.A. 2015 Supp. 21- 5402(a)(1), -5403(a)(1); K.S.A. 60-455

 

Kansas Court of Appeals

Civil

MECHANIC'S LIENS
IN RE LIEN AGAINST THE DISTRICT AT CITY CENTER, LLC
JOHNSON DISTRICT COURT—REVERSED AND REMANDED
NO. 
121,184—FEBRUARY 28, 2020

FACTS: The District at City Center, LLC, hired a construction company to build a mixed-use development. The construction company hired Kansas City Steel Werx, Inc. as a steel and labor subcontractor. Change orders from KC Steel to the general contractor added approximately $25,000 to the cost of the contract. To ensure complete payment, KC Steel filed a mechanic's lien against the development citing unpaid labor and materials of approximately $400,000. The itemizations filed with the lien included documentation but was incomplete. Instead of challenging the lien as a whole or specific items, the contractor filed a motion claiming the lien was "fraudulent" and asking the court to set it aside. Without waiting for a response, the district court granted the motion and removed the lien. KC Steel appealed.

ISSUE: (1) Ability of the district court to find that the lien was "fraudulent"

HELD: A party asserting a mechanic's lien must strictly comply with our mechanic's lien statutes before that lien becomes enforceable. K.S.A. 2019 Supp. 58-4301 allows a district court to quickly review a lien's status to determine whether it is fraudulent. Legislative history shows this statute was enacted to prevent abuses by militias and common-law groups. The quick review is intended to allow an efficient way to remove an obviously bogus lien that is being used as a tool of harassment. The district court improperly equated an invalid lien with a fraudulent one. The document filed by KC Steel is recognized by Kansas law, and the district court erred by ruling that the lien was fraudulent. The real question is whether KC Steel strictly complied with the mechanic's lien procedures enough to create a valid lien; that is the issue that must be decided on remand.

STATUTES: K.S.A. 2019 Supp. 58-4301, -4301(a), -4301(b), -4301(c), -4301(e), -4302; K.S.A. 60-1102, -1102(a), -1103(a), -1105, -1106, -1108

WORKERS COMPENSATION
AIKINS V. GATES CORPORATION
WORKERS COMPENSATION APPEALS BOARD—AFFIRMED
NO. 120,905—FEBRUARY 28, 2020

FACTS: Aikins was injured in a car accident while leaving work. In May 2018, an ALJ awarded Aikins compensation for her injuries. One week later, she served Gates with a demand for compensation based on that award. The next day, Gates filed for review with the Workers Compensation Board of Appeals. Before the Board could decide the appeal, Aikins filed a motion for penalties with the ALJ because Gates had not yet paid out her award. The ALJ held a hearing and ruled that Aikins was entitled to a penalty payment because Gates had not yet paid as required by K.S.A. 44-512a and had not obtained a stay of the judgment. Gates appealed the imposition of the penalty, arguing that compensation was not yet due so no penalty could accrue. The Board agreed, and Aikins appealed.

ISSUE: (1) Whether payment is due such that penalties could attach

HELD: K.S.A. 44-512a allows claimants to apply for a civil penalty if payments are overdue. In this case, the only issue to determine is whether Aikins's award was due. Statutes clarify that payment of an award is not due until at least 30 days after the Board hears the parties' arguments. There is no statute which requires the employer to seek and receive a stay of judgment; a stay is only required after payment obligations have accrued. Aikins was not due any payment until after the Board ruled on Gates's appeal, and the Board properly reversed the ALJ's award of penalties.

STATUTES: K.S.A. 2019 Supp. 44-551, -551(l)(1), -551(l)(2)(A), -551(l)(2)(B), -551(l)(2)(C), -551(p); K.S.A. 44-512a, -512a(a)

HABEAS CORPUS—MOOTNESS
BURCH V. HOWARD
PAWNEE DISTRICT COURT—AFFIRMED
NO. 120,704—FEBRUARY 28, 2020

FACTS: Burch was committed to the Sexual Predator Treatment Program in 2002. After more than a decade in the program, Burch filed a K.S.A. 60-1501 petition which raised several concerns. Relevant to this case was his claim that the SPTP does not provide adequate treatment for securing an eventual release from the Program. The SPTP operated on a leveled system where treatment was provided in phases, and participants gained independence by completing levels. At a hearing before the district court, the evidence showed that Burch has not participated in any meaningful treatment since July 2009. Based on this lack of participation, the district court ruled that Burch failed to meet his burden to prove shocking or intolerable conduct and denied the petition. Burch appeals.

ISSUES: (1) Mootness; (2) adequacy of treatment provided in the SPTP

HELD: Although the treatment system is different now from when Burch filed his petition, the changes are more style than substance and do not render this appeal moot. Because he declined treatment, Burch does not have standing to challenge the adequacy of the SPTP. The SPTP is consistent with the statutory criteria of the Sexually Violent Predator Act and does not shock the conscience.

STATUTES: K.S.A. 2019 Supp. 59-29a06, -29a07(a), -29a08(a), -29a08(d), -29a08(f); K.S.A. 60-1501

 

criminal

criminal law—criminal procedure—restitution—sentences—statutes
state v. henry
sedgwick district court—affirmed
no. 119,895—february 28, 2020

FACTS: Henry was charged and convicted on one count of felony theft for stealing money from store deposits on 12 different occasions while employed as armored truck driver. District court imposed 60 months’ probation and ordered payment of $78,315 in restitution. On appeal, Henry claimed insufficient evidence supported his conviction because the single larceny doctrine did not apply to thefts that occurred on 12 separate occasions, and each of the individual takings failed to meet the $25,000 threshold of the felony theft charged. He also argued the restitution plan was unworkable because it would take over 43 years to complete, making a multi-decade term of probation per se unreasonable.

ISSUES: (1) Single larceny doctrine; (2) restitution

HELD: Henry’s theft conviction is affirmed. The single larceny doctrine is a rule of evidence and may be invoked whenever the facts warrant it. Disagreement stated with legal conclusion in State v. Ameen, 27 Kan.App.2d 181, rev. denied 269 Kan. 934 (2000). The doctrine is not only limited to instances where multiple misdemeanor takings are charged as a single felony but also permits multiple instances of felony takings to be charged as a single higher severity level felony.  On evidence in this case, Henry should have been charged in the alternative with a lower severity level theft for each separate taking, and the jury should have been instructed in the alternative on the single larceny doctrine and the elements of each lesser theft for each taking separately, but Henry waived or abandoned any claims of error concerning the charging document or instructions. Sufficient evidence supported the key factual determination that Henry’s acts arose out of a single incriminating impulse or plan.

District court imposed a workable restitution plan. Henry admitted the monthly payments are workable, and K.S.A. 2019 Supp. 21-6608(c)(7) explicitly allows for a term of probation to be extended indefinitely to secure payment of restitution.

STATUTES: K.S.A. 2019 Supp. 21-6604(b)(1), -6608(c)(7); K.S.A. 2016 Supp. 21-5801(a)(1), -5801(b)(2), -5801(b)(3), -5801(b)(4)

Tags:  appeals  attorney discipline  Constitutional law  criminal law  criminal procedure  evidence  habeas corpus  jury instructions  mechanic's liens  mootness  prosecutors  restitution  sentences  statutes  workers comp 

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