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September 13, 2019 Digests

Posted By Administration, Monday, September 16, 2019

Kansas Supreme Court

 

Attorney Discipline

ORDER OF REINSTATEMENT
IN RE HARRY LOUIS NAJIM
NO. 116,943—SEPTEMBER 11, 2019

FACTS: Najim's license to practice law in Kansas was indefinitely suspended in December 2017. Najim petitioned for reinstatement in November 2018. After an investigation, Najim appeared at a hearing and the panel recommended that Najim's license be reinstated.

HELD: After a thorough review of the hearing panel's report, the court accepts the findings and finds that Najim's license should be reinstated.

 

ORDER OF REINSTATEMENT
IN RE DAVID E. HERRON,II
NO. 119,726—SEPTEMBER 11, 2019

FACTS: In May 2019, Herron's license to practice law in Kansas was suspended for 60 days. After that time elapsed, Herron filed a petition for reinstatement. The office of the Disciplinary Administrator had no objection to reinstatement

HELD: Seeing no objection, the court considered and granted Herron's petition for reinstatement.

 

Kansas Court of Appeals

 

criminal

criminal law—evidence—motions—statutes
state v. justice-puett
riley county district court—reversed and sentence vacated
no. 119,697—september 13, 2019

FACTS: Jurtice-Puett appealed her jury conviction for possession of a theft detection device remover. Citing the lack of evidence identifying what she had used to cut a security detection device from two phones, she argued in part that K.S.A. 2018 Supp. 21-5805(c) only prohibits possession of either a tool or device specifically designed to remove or defeat theft detection devices on merchandise.   

ISSUE: K.S.A. 2018 Supp. 21-5805(c)

HELD: K.S.A. 2018 Supp. 21-5805(c) is interpreted as issue of first impression. The statute is plain and unambiguous. State’s argument that statute prohibits possessing any kind of tool or device capable of removing a theft detection device is rejected. Instead, when words of K.S.A. 2018 Supp. 21-5805(c) are given their ordinary meaning, and read in context with other subsections, it is clear that "tool" and "device" are both modified by the descriptive phrase "designed to allow the removal of any theft detection device." Thus the phrase "designed to allow the removal of any theft detection device" requires an intentional design particular to, and designed for the purpose of, the removal of any theft detection device. Viewing evidence in light most favorable to the State, no rational fact-finder could have found Justice-Puett guilty of possessing a tool or device designed to allow the removal of any theft detection device. Without evidence of what tool she may have used, the burden of proof regarding the intentional design element is not met. Defendant's motion for judgment of acquittal should have been granted.

STATUTE: K.S.A. 2018 Supp. 21-5805(c)

Tags:  Attorney Discipline  Riley Co. District Court 

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September 6, 2019 Digests

Posted By Administration, Tuesday, September 10, 2019

Kansas Supreme Court

CIVIL

AMANUENSIS—ESTATES
IN RE ESTATE OF MOORE
COWLEY DISTRICT COURT—AFFIRMED
COURT OF APPEALS—AFFIRMED

NO. 115,628—SEPTEMBER 6, 2019

FACTS: Roxie Moore owned close to 900 acres of land throughout the state. Over the years, she used portions of that land as security to help her son, Harvey. Not only did Roxie use land as collateral for Harvey, but Harvey took over $100,000 from Roxie through the years. Roxie's health began to decline, and she named Maureen—Harvey's ex-wife—as her durable power of attorney. Around this time, Roxie hired counsel to protect the rest of her property from Harvey. She wanted a transfer-on-death deed that would assign the land to Harvey's children through Maureen. After the deed was prepared and Roxie read it, she asked Maureen to sign the deed for her, with a note that she was the power of attorney. Roxie died in 2009, and Maureen executed a warranty deed transferring property to Harvey's sons, as Roxie wished. Harvey opened a probate proceeding seeking a determination of descent of the real estate. The sons responded that certain real estate had passed to them under the transfer-on-death deed. The district court granted summary judgment to the sons, finding that Maureen acted as amanuensis in signing the new deed for Roxie. The court of appeals affirmed, and the Supreme Court granted Harvey's petition for review.

ISSUES: (1) Signature by amanuensis; (2) undue influence

HELD: There is no statutory prohibition against signing a deed via an amanuensis. The amanuensis signs with the same authority and legal effect as if the signature were physically provided by the principal directing the signature. The district court properly found, by a preponderance of the evidence, that Maureen fulfilled Roxie's request to sign the deed on her behalf. That is a valid exercise of an amanuensis. When signing the deed, Maureen directed the property to herself and then on to her sons. A self-interested amanuensis presents a danger. But in this case, clear and convincing evidence rebutted any presumption of undue influence, and there was no evidence that Roxie was not competent to execute the deed.

CONCURRENCE (Stegall, J.): Kansas law clearly allows an amanuensis to sign a deed. But the majority improperly conflates amanuensis with an owner's agent. The use of an agent would not be a binding signature.

DISSENT (Johnson, J.): It is not permissible to skip the formalities associated with creating a property deed.

STATUTES: K.S.A. 2018 Supp. 58-654(f)(6); K.S.A. 58-2209, 59-605(b), -3501, -3501(a), -3502

NATURAL GAS
NORTHERN NATURAL GAS V. ONEOK
PRATT DISTRICT COURT—REVERSED AND REMANDED
NO. 118,239—SEPTEMBER 6, 2019

FACTS: Northern Natural Gas maintains an underground natural gas storage facility. It holds certifications which allow it to inject and store previously extracted natural gas, which allows Northern to sell it when there are favorable market conditions. In 2008, Northern filed suit against two producers, claiming they artificially created conditions which caused Northern's storage gas to migrate beyond the storage field's certified boundaries. That suit ultimately ended up with FERC issuing a certificate on June 2, 2010, authorizing Northern to expand its field boundaries, extending its buffer zone to protect migrating gas from capture. Back in district court, Northern's motion for reconsideration, which asked for different treatment for post-FERC decision gas capture, was denied. Northern appealed and the case was transferred to the Kansas Supreme Court after docketing.

ISSUE: (1) Right to capture storage gas after June 2, 2019

HELD: Northern became exempt from common-law rule of capture after June 2, 2010, when it received the FERC certificate authorizing additional condemnation. The district court erred when it ruled that K.S.A. 55-1210 superseded case law to the contrary. This caselaw is not an unconstitutional taking of property. The rule of capture does not vest title, it simple recognizes an ability to produce.

DISSENT (Johnson, J., joined by Stegall, J.): Neither a court nor a federal agency can take a property interest from a Kansas landowner.

DISSENT (Stegall, J.): In addition to agreeing with Justice Johnson, the prior caselaw relied on by the majority is wrong and should be reversed.

STATUTE: K.S.A. 55-1201, -1202, -1204, -1205, -1210, -1210(a), -1210(c)

APPELLATE PROCEDURE—RES JUDICATA
IN RE CARE AND TREATMENT OF SIGLER
BARTON DISTRICT COURT—AFFIRMED
COURT OF APPEALS—AFFIRMED
NO. 118,914—SEPTEMBER 6, 2019

FACTS: Sigler was convicted of aggravated criminal sodomy and indecent solicitation of a child. Before he was released from prison, the State petitioned that he be committed as a sexually violent predator. That case went to trial in 2015, but after a hearing the district court determined that Sigler did not meet all of the criteria to be indefinitely committed. Sigler was released, but was returned to prison shortly thereafter for violating the terms of his parole. As it did before, the State filed a petition before Sigler's release asking that he be committed as a sexually violent predator. Sigler asked that the petition be denied on grounds of res judicata or collateral estoppel. The motion was denied and a jury determined that Sigler was a sexually violent predator. Sigler appealed and the court of appeals affirmed the jury's finding. Sigler's petition for review was granted.

ISSUES: (1) Existence of a material change in circumstances; (2) denial of motion for mistrial

HELD: Sigler failed to preserve for appeal any argument involving collateral estoppel. Under a res judicata analysis, the State presented evidence of a material change in Sigler's mental state and risk assessment. Specifically, the State proved that Sigler has serious difficulty controlling his dangerous behavior. Statements made about Sigler at trial were unquestionably wrong. But any prejudice which arose from those statements was cured, and the district court did not err by denying a motion for mistrial.

DISSENT (Johnson, J.): The Sexually Violent Predator Act should be interpreted to permit the State only one opportunity to seek involuntary civil commitment. In addition, viewing pornography or sexually explicit websites cannot be grounds for commitment.

STATUTE: K.S.A. 59-29a03, -29a03(a)(1)

 

EMPLOYMENT LAW—RETALIATORY JOB ACTION
HILL V. STATE
SHAWNEE DISTRICT COURT—AFFIRMED IN PART
AND REVERSED IN PART, CASE REMANDED
COURT OF APPEALS—
AFFIRMED IN PART AND REVERSED IN PART
NO. 114,403—SEPTEMBER 6, 2019

FACTS: Hill was hired by the Kansas Highway Patrol as a trooper. He was assigned to Troop H in southeastern Kansas. Hill was fired in November 2011 after he was involved in a dispute with a supervisor who was investigating a civilian complaint against Hill. The Kansas Civil Service Board reversed the termination but found that Hill deserved discipline and sanctioned him with a one-year suspension without pay. KHP abided by the decision and treated Hill as a new hire who could be assigned wherever staffing needs were greatest. At that time, Finney County in southwestern Kansas had the greatest need for troopers. KHP admitted that it was unusual to involuntarily reassign a trooper to a different geographic area. Hill asked the KCSB to prevent the transfer but the Board denied his request. Hill then asked KHP for a hardship assignment so that he could care for his mother, who had serious health problems. Hill reported to Finney County but quickly asked for reassignment back to his former duty station. Hill sued both KHP and his supervisor in district court, claiming that the transfer was retaliatory and in violation of public policy. In the time since the suit was filed, Hill received a transfer and a promotion. The district court granted the defendants' motion for summary judgment, finding that Hill did not establish prima facie proof of retaliation. The court of appeals affirmed that decision. The Kansas Supreme Court granted Hill's petition for review.

ISSUES: (1) Jurisdiction; (2) sovereign immunity; (3) summary judgment

HELD: Torts committed by a state agency fall outside of the Kansas Judicial Review Act and the Civil Service Act does not provide administrative review for wrongful transfers or job assignments. This gives the court jurisdiction to hear Hill's case. There are exceptions to Kansas's employment-at-will doctrine. Specifically, there is an anti-retaliation public policy. Some employee retaliations which fall short of termination or demotion may give rise to an actionable tort, as long as those retaliations are sufficiently coercive to undermine public policy. The Kansas Tort Claims Act does not immunize the defendants from liability for such a retaliation claim. Hill presented a prima facie case of job retaliation, which should have prompted the district court to ask KHP to provide a nondiscriminatory reason for the transfer.

DISSENT (Stegall, J., joined by Luckert, J.): The majority read the KTCA too broadly. The KTCA provides immunity to KHP.

STATUTES: K.S.A. 2018 Supp. 75-2929d(a)(1), -2949(g). -6103(a), -6104, -6104(h), -6104(n), -6104(s); K.S.A. 75-2947(a), -2957

Criminal

appellate procedure—criminal procedure—evidence—
prosecutors—sentences—statutes—witnesses
State v. Ballou
Miami District Court—Affirmed in part and vacated in part
Court of Appeals—affirmed
No. 116,252—september 6, 2019

FACTS: Ballou was convicted of rape and aggravated indecent liberties with a child. On appeal, Ballou claimed prosecutor erred in closing argument by expanding time frame when crime allegedly occurred. He also claimed district court erred in admitting evidence of videotaped interview of child victim without ensuring compliance with K.S.A. 2018 Supp. 60-456(b) for scientific evidence of Finding Words/ChildFirst protocol, or conducting a taint hearing to determine reliability; by admitting evidence of alleged prior sexual misconduct by Ballou; and in not ordering a psychological evaluation of child victim. Court of appeals affirmed the convictions and sentence, assuming in part the prosecutor misstated the law defining “on or about” the date of the alleged crime, but finding error was harmless. Review granted on Ballou’s issues and on State’s conditional cross-petition for holding that prosecutor’s comments were not a misstatement of law. Sentencing error considered sua sponte.    

ISSUES: (1) Prosecutorial error; (2) evidence—child interview and taint hearing; (3) independent psychological examination; (4) cumulative error; (5) sentencing error

HELD: No need to reach legal arguments about meaning of “on or about” in this case because no factual support for prosecutor’s suggestion that the charged crimes occurred during four-and-a-half months prior to the alleged date of the crime. Any time discrepancy in time frame related to the possibility the crimes occurred after the date alleged. Prosecutor’s argument outside the evidence was error, but State meet its Chapman burden of establishing no reasonable possibility this error contributed to the verdict.

K.S.A. 2018 Supp. 60-456(b) does not apply to the child’s interview, and district court did not err in admitting the interview. Expert testimony is not necessarily required as a foundation to introducing a child witness’ interview into evidence and no specific formula or protocol need be followed when conducting an interview. Here, examiner never offered an opinion or otherwise testified to anything based on her scientific, technical, or other specialized knowledge. She simply relayed the factual circumstances under which the statement was taken, and did not offer an opinion about the reliability of the child’s statement or whether she found the statement believable or truthful. Ballou failed to preserve his argument about the need for a taint hearing.

Ballou failed to preserve his pretrial objection to the admission of prior acts of sexual misconduct. Panel’s conclusion on this point is affirmed, but disagreement stated with panel’s alternative finding—that Ballou waived the argument because after the State admitted the complained-of-evidence Ballou used it to discredit the child’s testimony—and with panel’s cite of State v. Berriozabal, 291 Kan. 568 (2010), for support.

No abuse of district court’s discretion in denying Ballou’s pretrial motion for an independent psychological examination of the child victim. District court applied the appropriate factors in State v. Gregg, 226 Kan. 481 (1979), for determining whether a criminal defendant is entitled to an independent psychological evaluation of a witness.

The single, nonreversible prosecutorial error found in this case does not establish reversible cumulative error.

Off-grid lifetime sentences are to be followed by parole, not lifetime postrelease supervision as ordered in this case. That portion of the district court’s judgment is vacated.

STATUTES: K.S.A. 2018 Supp. 60-455(d), -456, -456(a), -456(b); K.S.A. 2013 Supp. 21-5503(b)(2), -5506(c)(3), -6627(a)(1)(B), -6627(a)(1)(C), 22-3717(b)(5); and K.S.A. 22-3504, 60-401, -401(a), -404, -407, -417, -419

constitutional law—criminal procedure—judges—juries—jury instructions
State v. Boothby
Stevens district court—affirmed
court of appeals—affirmed
No. 116,505—september 6, 2019

FACTS: Jury convicted Boothby of aggravated assault and criminal threat for pointing a gun at victim and threatening to come back when victim was alone. On appeal, Boothby claimed reversible judicial misconduct during voir dire by district court judge’s suggestion to one venire panel that Boothby was charged with aggravated battery in a former case. Citing State v. Smith-Parker, 301 Kan. 132 (2014), as recognizing a right to jury nullification, Boothby also claimed district court erred when it instructed jury that its verdict “must be founded entirely upon the evidence admitted and the law as given in these instructions.” Court of appeals affirmed in unpublished opinion, finding Boothby—as the party alleging judicial misconduct—failed to meet his burden of showing prejudice. Panel also found the challenged jury instruction was legally correct, and in the alternative, the instruction was not clearly erroneous. Boothby’s petition for review granted.

ISSUES: (1) Judicial comment error; (2) jury instruction—verdict

HELD: From now on, an erroneous judicial comment made in front of the jury that is not a jury

instruction or legal ruling will be reviewed as "judicial comment error" under the constitutional harmlessness test in Chapman v. California, 386 U.S. 18 (1967). Existing precedent concerning structural error or other kinds of error traditionally labeled “judicial misconduct” remains undisturbed. State’s invitation to adopt the federal plain error standard is declined. Judicial comment error will be analyzed in two steps: error and prejudice, with the prejudice step reviewed under the Chapman constitutional harmlessness test. Thus, judicial comment error is reversible unless the State, as the party benefitting from judicial comment error, proves beyond a reasonable doubt that the error did not affect the outcome of trial in light of the entire record. Judicial comment error is reviewable on appeal despite the lack of a contemporaneous objection at trial. Here, State met its burden to prove the judicial comment error was harmless.

Instruction challenged in this case is legally correct, and a district court does not err when it tells a jury to follow the law. Smith-Parker did not establish a “right” to jury nullification, and the Court declines to recognize such a right in this case. Also, the reasonable doubt instruction in Smith-Parker is distinguishable from the instruction Boothby challenges.

STATUTES: K.S.A. 2018 Supp. 22-3414(3); K.S.A. 22-3403(3), 60-455

criminal procedure—evidence
state v. howling
pratt district court—affirmed
court of appeals—affirmed
No. 116,524—september 6, 2019

FACTS: Howling was convicted of aggravated criminal sodomy. On appeal, he claimed district court erred in admitting a videotape of the forensic interview of the child victim, arguing this should have been treated as expert testimony. He also challenged sufficiency of the evidence supporting his conviction, citing the victim’s inconsistent statements and caregivers’ failure to observe any injury for more than 24 hours while the child was in their care. Court of Appeals affirmed in unpublished opinion, finding a video of a forensic interview is not expert testimony, and the evidence was relevant and admissible. It further found sufficient evidence supported the aggravated criminal sodomy conviction. Howling’s petition for review on both issues granted.

ISSUES: (1) Evidence—forensic interview of child; (2) sufficiency of the evidence

HELD: Trial court did not err in admitting the interview. As explained in State v. Ballou, 310 Kan. __ (decided this same day), a forensic interview standing alone is not expert testimony. K.S.A. 2018 Supp. 60-456(b) does not provide a basis for excluding a forensic interview of an alleged child sexual abuse victim that does not include opinions or other testimony based on scientific, technical, or other specialized knowledge. Whether to adopt a taint hearing process in Kansas is not considered. No separate taint hearing was required in this case where district court performed its gatekeeping function to consider the reliability of the child’s statements resulting from the forensic interview.

Under facts in this case, sufficient evidence supported Howling’s aggravated criminal sodomy conviction.  

STATUTE: K.S.A. 2018 Supp. 60-456, -456(b)

 

constitutional law—criminal law—criminal procedure—
jury instructions—sentences
state v. Perez-Medina
ford district court—affirmed
court of appeals—affirmed
No. 114,589—september 6, 2019

FACTS: A jury convicted Perez-Median as charged of aggravated battery for knowingly causing great bodily harm or disfigurement by using a knife to cut victim’s face. District court refused to give any recklessness-based lesser included crime instructions because evidence justified knowing rather than reckless actions. Sentence included registration under Kansas Offender Registration Act (KORA) based on sentencing court’s finding that a deadly weapon was used. Perez-Medina appealed, claiming in part the jury should have been instructed on reckless aggravated battery. He also claimed the sentencing court’s finding of a deadly weapon to impose KORA registration violated Apprendi. Court of Appeals affirmed in unpublished opinion, finding no clear error was shown by omission of instructions on lesser included crimes where such instructions were legally but not factually appropriate. Review granted on jury instruction challenge, and on challenge to KORA registration.

ISSUES: (1) Jury instructions; (2) KORA registration

HELD: Clear error standard does not apply because Perez-Median adequately preserved this issue for appellate review. Even assuming district court erred in refusing to instruct on reckless aggravated battery offenses, the error is not reversible because no evidence supported a reckless act by the defendant.

Perez-Medina must register as a violent offender. He provided no evidence or argument to establish the punitive effects of registration under KORA. Under State v. Petersen-Beard, 304 Kan 192, cert. denied 138 S.Ct. 2673 (2018), the registration requirement is upheld by an equally-divided court of six justices.

CONCURRENCE AND DISSENT (Johnson, J.)(joined by Beier and Rosen, JJ.): Agrees with majority’s handling of the lesser included offenses, but would vacate the registration requirement. He continues his vigorous dissent on majority’s holding that KORA registration is not punishment.

STATUTES:  K.S.A. 2018 Supp. 21-5202(b), -5202(c), -5202(h), -5202(i), 22-3414(3), -4901 et seq.; K.S.A. 2014 Supp. 21-5413(b)(1)(A), -5413(b)(1)(B), -5413(b)(2)(A), 5413(b)(2)(B); and K.S.A. 60-404

 

appeals—appellate procedure—attorney and client—criminal law—
criminal procedure—jury instructions—sentences—statutes
state v. toothman
saline district court—affirmed
court of appeals—affirmed in part and reversed in part
No. 114,944—september 6, 2019

FACTS: A jury convicted Toothman of seven sex crimes for rape and sodomy of the victim over a two year period. District court imposed sentences for primary offenses of aggravated criminal sodomy and rape, and set aside convictions on alternative charges of criminal sodomy, aggravated indecent liberties with a child, and aggravated incest. Toothman appealed claiming district court: (1) committed clear error by failing to instruct jury that criminal sodomy is a lesser included crime of aggravated criminal sodomy; (2) abused its discretion by failing to adequately inquire about a potential conflict between Toothman and his trial counsel before sentencing; and (3) committed clear error by instructing jury that its verdict “must be founded entirely upon the evidence admitted and the law as given in these instructions.” In unpublished opinion on summary calendar, court of appeals sua sponte reversed two convictions and remanded with directions to resentence Toothman for aggravated incest as the more specific crime because Toothman had a familial relationship with the victim. Review granted on Toothman’s petition and on State’s cross-petition from panel’s reversal of the two convictions with reinstatement of lesser alternative counts of aggravated incest in their place.

ISSUES: (1) Panel’s sua sponte reversal of convictions; (2) jury instructions—criminal sodomy; (3) defendant’s dissatisfaction with attorney; (4) jury instruction—verdict

HELD: Court of appeals panel ignored cautionary directive that when an appellate court raises an issue sua sponte, counsel for all parties should be afforded a fair opportunity to brief the new issue to present their positions to the appellate court before the issue is finally decided. Here, panel erred when it sua sponte reversed Toothman’s convictions for aggravated criminal sodomy and rape by relying on caselaw and statute at issue prior to Legislature’s 1993 change of aggravated incest statute to effectively overrule State v. Williams, 250 Kan. 730 (1992). Aggravated incest, as now defined, is not a more specific crime than aggravated criminal sodomy or rape. Panel is reversed on this ground. Toothman’s convictions for aggravated criminal sodomy and rape are affirmed.

District court did not err in listing criminal sodomy as an alternative offense to aggravated criminal sodomy, rather than as a lesser included offense as Toothman requested.   

No dispute that the letter Toothman submitted the day of sentencing triggered the district court’s duty to inquire, but under facts in this case, district court adequately inquired into Toothman’s dissatisfaction with his attorney.

Jury instruction challenged in this case is identical to that challenged in State v. Boothby, 310 Kan. __ (decided this same day). Following Boothby, the instruction is legally correct, and a district court does not err when it tells a jury to follow the law.

STATUTES: K.S.A. 2018 Supp. 21-5109(b), -5604(b)(2)(A), 22-3414(3); K.S.A. 2011 Supp. 21-5503(a)(1)(A), -5504(a)(3), -5504(b)(3)(A), -5506(b)(1), -5604(b)(2)(A); K.S.A. 1991 Supp. 21-3501(4), -3503; K.S.A. 21-3107(2), -3107(2)(b); K.S.A. 21-3603, -3603(2)(a) (Ensley 1988); K.S.A. 21-3603(1) (Ensley 1981); and K.S.A. 21-3603(1) (Weeks 1974); K.S.

Court of Appeals

CIVIL

NAME CHANGES
IN RE PETITION OF CLARK
NORTON DISTRICT COURT—REVERSED AND REMANDED
NO. 121,034—SEPTEMBER 6, 2019

FACTS: While serving a sentence at the Norton Correctional Facility, Clark filed a petition to change his last name. He wanted to re-take the name of his biological father to carry on that legacy. After a phone conference, the district court denied Clark's petition, finding that the name change was precluded due to Clark's status as an inmate. Clark appealed.

ISSUE: (1) Ability to change name while incarcerated

HELD: Name changes are governed by statute. Petitioners need not provide a compelling reason for the change, as long as the judge is satisfied as to the truth of the allegations made in the petition. There is no regulation or statute which would bar an inmate from obtaining a name change. Regulations do require that the inmate continue to respond to the name that was used at the time of conviction, and records will continue to reflect the original name. But nothing precludes the actual name change. Further, there is no requirement that a petitioning inmate show a compelling reason for the name change.

STATUTES: K.S.A. 2018 Supp. 22-4903, -4905(i), 23-2506, -2716; K.S.A. 60-1401, -1402(a), -1402(b), -1402(c), 77-425

Tags:  amenuensis  Barton District Court  Cowley Co. District Court  Employment Law  Ford District Court  Miami District Court  natural gas  Norton District Court  Pratt District Court  retaliatory job action  Saline District Court  Shawnee District Court  Stevens District Court  Weekly20190910 

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August 30, 2019 Digest

Posted By Administration, Tuesday, September 3, 2019

Kansas Supreme Court

 

ATTORNEY DISCIPLINE

ORDER OF DISBARMENT
IN RE LARRY DEAN TOOMEY
NO. 11,959—AUGUST 29, 2019

FACTS: In a letter dated August 13, 2019, Larry Dean Toomey voluntarily surrendered his license to practice law in Kansas. At the time of surrender, a disciplinary complaint was pending. Toomey was convicted of two counts of felony theft; the victim was his client.

HELD: The Court accepted the surrender, and Toomey is disbarred.

Tags:  Attorney Discipline  Disbarment 

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August 23, 2019 Digests

Posted By Administration, Monday, August 26, 2019

Kansas Supreme Court

Civil 

DRIVERS LICENSE—DUE PROCESS
CREECY V. KANSAS DEPARTMENT OF REVENUE
JOHNSON DISTRICT COURT—AFFIRMED IN PART AND REVERSED IN PART
COURT OF APPEALS—
AFFIRMED IN PART AND REVERSED IN PART
NO. 117,035—AUGUST 23, 2019

FACTS: It is undisputed that law enforcement had probable cause to arrest Creecy for DUI. Creecy showed signs of a medical emergency, and EMS was called, but he momentarily recovered. Law enforcement gave Creecy the implied consent advisories, both orally and using the DC-70 written form. Creecy attempted to give a breath sample but was unable to produce enough air to register a sample. After the second failure, the officer told Creecy that his inability to provide a sample constituted a failure. The officer completed the notice of suspension form—the DC-27—and Creecy was arrested. Creecy requested an administrative hearing, paying the statutorily-required $50 fee. The ALJ affirmed the suspension, and Creecy petitioned for review. The district court affirmed the ALJ and Creecy appealed, claiming that his failure to complete the test was caused by a medical condition, that both the implied consent advisory and the notice of suspension were statutorily insufficient, and that the required $50 is facially unconstitutional. The court of appeals affirmed the district court. Creecy's petition for review was granted.

ISSUES: (1) Constitutionality of mandatory fee; (2) adequacy of service; (3) whether failure equaled refusal; (4) adequacy of implied consent advisory

HELD: There is no statutory provision for a waiver of the $50 fee that must be paid in advance of an administrative hearing. A driver's license is an interest which entitles the holder to procedural due process protections before revocation or suspension. Where fundamental rights are implicated, allowances should be made for indigent litigants. The lack of such allowances here creates a barrier to due process. Accordingly, the $50 fee is unconstitutional on its face. Evidence shows that Creecy was given the DC-27 form before being transported to the hospital. That is adequate to show that Creecy received adequate service. Creecy had the burden to show that his test failure was due to a medical condition. He did not introduce any evidence to show the cause of his failure to produce a sample. In the absence of this evidence, the district court is affirmed. The DC-70 advisory given by law enforcement substantially complied with the statute.

CONCURRENCE: Stegall, J. concurs in the result

STATUTES: K.S.A. 2014 Supp. 8-1001(a), -1001(b)(1)(A), -1001(k), -1001(q), -1002, -1002(c), -1012(d), -1013(i), -1020(a)(1), -1020(d)(2), -1020(o), -1020(p); and K.S.A. 77-611

DRIVERS LICENSE—DUE PROCESS
MEATS V. KANSAS DEPARTMENT OF REVENUE
JOHNSON DISTRICT COURT—AFFIRMED
NO. 116,469—AUGUST 23, 2019

FACTS: Meats was arrested for DUI. He refused to perform a post-arrest evidentiary breath test. An officer gave Meats the implied consent advisory both orally and in writing. After being released, Meats requested an administrative hearing to challenge the administrative suspension of his driver's license. The suspension was affirmed by an ALJ, and Meats appealed to district court where he argued, among other things, that the $50 fee that is statutorily required before an administrative hearing is held is unconstitutional. The district court affirmed the license suspension but agreed with Meats that the fee is unconstitutional because it lacks reasonable accommodations for indigent drivers. The issue was moot with respect to Meats, who had already paid the fee. The Department of Revenue appealed the ruling on the fee, and Meats cross-appealed the suspension of his license. Under K.S.A. 60-2101(b), the appeal was heard directly by the Supreme Court.

ISSUES: (1) Constitutionality of mandatory fee; (2) adequacy of implied consent advisory

HELD: The $50 fee imposed by K.S.A. 2014 Supp. 8-1020(d)(2) is unconstitutional on its face because it requires payment of a fee, without provision for indigency, before a motorist can obtain procedural due process during the license suspension process. The DC-70 form given to Meats substantially complies with relevant statutes. The evidence before the court shows that law enforcement complied with the statute when serving Meats with the DC-27.

CONCURRENCE: Stegall, J. concurs in the result

STATUTES: K.S.A. 2014 Supp. 8-1001(k)(4)(A), -1002(c), -1013(i), -1020(a)(1), -1020(d)(2); and K.S.A. 60-2101(b)

  

DRIVERS LICENSE—DUE PROCESS
ROSENDAHL V. KANSAS DEPARTMENT OF REVENUE
MIAMI DISTRICT COURT—AFFIRMED IN PART AND REVERSED IN PART
NO. 117,862—AUGUST 23, 2019

FACTS: After responding to the scene of a car accident, law enforcement asked Rosendahl to perform field sobriety tests. After she failed the preliminary breath test, Rosendahl was arrested. The Intoxilyzer test showed she was well over the legal driving limit. Rosendahl requested an administrative hearing and paid the statutorily-required $50 fee. The ALJ affirmed the suspension, finding that the officer had reasonable grounds to believe that Rosendahl was operating a vehicle under the influence. Rosendahl petitioned for review, arguing before the district court that her intoxication was due to alcohol consumption after the accident but before law enforcement arrived. After hearing evidence, the district court reversed the ALJ finding that the breath test was due to Rosendahl's post-accident alcohol consumption. The district court also agreed with Rosendahl that the $50 filing fee was unconstitutional, but found the issue moot since Rosendahl paid the fee. The Department of Revenue appealed, and under K.S.A. 2015 Supp. 8-1020(d)(2) the case was heard directly by the Supreme Court.

ISSUES: (1) Reasonable grounds to request a breath test; (2) constitutionality of mandatory fee

HELD: Rosendahl failed to raise the issue of post-accident alcohol consumption before the ALJ. Based on the totality of the circumstances, law enforcement had no duty to inquire about whether Rosendahl was drinking after the accident, especially since Rosendahl did not raise the issue herself. The district court erred by giving controlling weight to testimony concerning intervening alcohol consumption. As held in other decisions issued this day, the nonrefundable $50 fee required by K.S.A. 2015 Supp. 8-1020(d)(2) is unconstitutional on its face.

CONCURRENCE AND DISSENT (Stegall, J., joined by Rosen and Johnson, JJ.): The majority correctly found that the officer had reasonable grounds to request a breath test and that the administrative hearing fee is unconstitutional. But the district court should be affirmed as being right for the wrong reason. It is clear that Rosendahl was not driving under the influence

STATUTES: K.S.A. 2018 Supp. 8-259, 77-614(b)(6); and K.S.A. 2015 Supp. 8-1001(b), -1020(d)(2), -1020(h)(2), -1020(h)(2)(A), -1020(q)

HABEAS CORPUS
LITTLEJOHN V. STATE
SEDGWICK DISTRICT COURT—Case Remanded
COURT OF APPEALS—REVERSED

NO. 115,904—AUGUST 23, 2019

FACTS: Littlejohn confessed to killing someone during a botched robbery attempt. Before trial, counsel filed a motion to determine competency and a motion to suppress. A report pronounced Littlejohn competent but cautioned that IQ testing was warranted. At trial, counsel did not mount a mental defect defense and did not request any jury instructions relating to Littlejohn's low IQ. He was convicted as charged, and those convictions were affirmed on appeal. Littlejohn filed one K.S.A. 60-1507 motion which was denied. His second 60-1507 motion is the subject of this appeal. In that motion, Littlejohn argued that trial counsel was ineffective for failing to raise a mental defect defense. The motion was denied as successive and an abuse of remedy. Littlejohn appealed, and the court of appeals reversed the district court finding that trial counsel should have investigated Littlejohn's mental defect defense. The Supreme Court accepted the State's petition for review.

ISSUE: (1) Standard for determining exceptional circumstances

HELD: K.S.A. 60-1507 specifically bars second or successive motions for similar relief on behalf of the same prisoner. Over the years, case law has allowed exceptions if the movant can prove exceptional circumstances. The test is whether Littlejohn presented exceptional circumstances to justify reaching the merits of a successive motion, factoring in whether justice would be served by doing so. Because the court of appeals used the wrong test, the case is remanded to the court of appeals.

CONCURRENCE: Nuss, C.J., Biles and Stegall, JJ, concur in the result

STATUTE: K.S.A. 60-1507

HABEAS CORPUS
NOYCE V. STATE
SEDGWICK DISTRICT COURT—Affirmed
COURT OF APPEALS—REVERSED

NO. 114,971—AUGUST 23, 2019

FACTS: Noyce was convicted of capital murder but pled guilty to avoid a death sentence. He received two consecutive hard 40 sentences, to be served consecutive to an aggravated arson sentence. Noyce did not appeal this sentence. Noyce did appeal the denial of a motion to correct illegal sentence, but his sentences were affirmed. Shortly thereafter, Noyce filed an untimely K.S.A. 60-1507 motion in which he claimed ineffective assistance of counsel and multiple instances of collusion between his counsel, the district attorney and the district court. The district court summarily denied the motion as untimely and Noyce appealed. The court of appeals reversed the district court, finding that two of Noyce's claims of ineffective assistance at the plea stage raised issues that could constitute manifest injustice. The Kansas Supreme Court accepted the State's petition for review.

ISSUE: (1) Existence of manifest injustice

HELD: It was Noyce's burden to produce a record on appeal which showed error. Noyce did waive appellate rights by pleading guilty, and he also waived any claims about multiplicity. Trial counsel's advice that Noyce's sentence was not appealable was not manifestly unjust, especially in light of the fact that Noyce was potentially facing a death sentence. Withdrawing Noyce's guilty pleas would potentially open him to an eventual death sentence. The district court's summary denial of Noyce's motion is affirmed.

STATUTE: K.S.A. 22-3504, 60-1507

criminal 

criminal law—evidence—jury instructions—statutes
state v. chavez
wyandotte district court—affirmed in part,
reversed in part, vacated in part
court of appeals—affirmed
no. 115,602—august 23, 2019

FACTS: Jury convicted Chavez of aggravated burglary, stalking and criminal threat. He  appealed claiming: (1) insufficient evidence supported the stalking conviction which required the State to prove legally impossible mental states; (2) district court should have instructed jury and allowed Chavez to argue that victim had waived her right to enforce the protection from abuse (PFA) order; (3) district court failed to give jury a limiting instruction concerning the PFA because it constituted evidence of prior crimes or civil wrongs; and (3) cumulative error denied him a fair trial. In an unpublished opinion, the court of appeals reversed the aggravated burglary conviction but affirmed the stalking and criminal threat convictions. Panel found in part that Chavez was not entitled to a K.S.A. 60-455 limiting instruction regrading the PFA because the existence of the PFA was an element of the stalking charge, and did not address the implied waiver claim. Chavez’ petition for review granted.

ISSUES: (1) Stalking; (2) implied waiver of PFA; (3) limiting instruction; (4) cumulative error

HELD: Kansas stalking statute, K.S.A. 2018 Supp. 21-5427 is reviewed to understand the culpable mental states at issue. Chavez’ reliance on State v. O’Rear, 293 Kan. 892 (2012), for his legal impossibility argument is undermined by the 2011 recodification of the Kansas criminal code to include a new culpable mental state paradigm. Here, sufficient evidence supported Chavez’ stalking conviction. He knowingly confronted the victim after being served with a court order not to do so, which satisfied the reckless element of the charged crime.

The protected person under a PFA order does not have the authority to unilaterally modify the court order by waiving its restraints or consenting to its violation. Chavez was not entitled to a jury instruction on principles of implied waiver of a PFA, and such an instruction was not legally appropriate.

Similar to approach taken in State v. Sims, 308 Kan. 1488 (2018), petition for cert. filed April 29, 2019, court will assume the PFA falls within ambit of the 60-455 requirement for a limiting instruction, but no showing the failure to give a limiting instruction in this case was clearly erroneous.

Error that led to the reversal of Chavez’ aggravated burglary conviction, combined with assumed limiting instruction error, did not create substantial prejudice that denied Chavez a fair trial.

STATUTES: K.S.A. 2018 Supp. 21-5202, -5202(b, -5202(c), -5427, -5427(a)(3), -5427(b)(1)-(3) -5427(c), -5427(f)(1), -5427(f)(1)(B), -5924, 22-3414(3), 60-455, -3107(f); K.S.A. 21-3201, -3201(b), 60-3101(b)

criminal procedure—sentences—statutes
state v. hambright
sedgwick district court—reversed and remanded
court of appeals—reversed on issue subject to review
no. 115,259—august 23, 2019

FACTS: Hambright entered a guilty plea to felony criminal damage to property and misdemeanor theft. Presumed probation period for Hambright’s severity level 7 felony was 24 months, but the district court imposed a 36-month probation term with $60,000 in restitution. Hambright appealed, arguing in part his sentence was illegal because the district court used K.S.A. 2018 Supp. 21-6608(c)(5) for severity level 8-10 crimes to increase the probation term. In an unpublished opinion, the court of appeals in part agreed that 21-6608(c)(5) did not apply to Hambright’s conviction, but found the increased probation term was within the district court’s discretion under K.S.A. 2018 Supp. 21-6608(c), and the departure sentencing procedures in State v. Whitesell, 270 Kan. 259, 13 P.3d 887 (2000), for increased probation terms no longer applied. Hambright’s petition for review granted.

ISSUE: (1) Departure sentence—increased term of probation

HELD: Panel’s analysis of Whitesell is criticized and reversed. District court’s imposition of an extended term of probation beyond the presumptive 24 months for Hambright’s conviction constitutes a departure that must be supported on the record by substantial and compelling reasons. Matter is remanded to district court for resentencing on the duration of probation under the correct legal standard.  

STATUTES: K.S.A. 2018 Supp. 21-6801 et seq., -6803(f), -6803(i), -6803(o), -6803(q), -6608, -6608(c), -6608(c)(1)(B), -6608(c)(2), -6608(c)(5), -6608(c)(6) -6608(c)(7), -6608(c)(8), -6815(a), -6815(b), -6817(a)(3); K.S.A. 2000 Supp. 21-4611; K.S.A. 1999 Supp. 21-4611(c)(1)(B), -4716; K.S.A. 22-3504; K.S.A. 21-3438(a), -4703(i) (Furse 1995)

Kansas Court of Appeals 

CIVIL

CIVIL PROCEDURE—TORTS
FLOREZ V. GINSBERG
DOUGLAS DISTRICT COURT—AFFIRMED IN PART, 
REVERSED IN PART, REMANDED
NO. 120,129—AUGUST 23, 2019

FACTS: Florez was admitted to the KU School of Education to pursue a Master's degree with an endorsement in Teaching English to Speakers of Other Languages. He successfully completed the coursework and received his Master's degree. From the time Florez applied to the school to the time he graduated, the KU School of Education website read that the coursework in the degree program "fulfills the requirement for the degree and a Kansas initial teaching license." This was incorrect—the coursework did not meet the qualifications necessary to obtain an initial teaching license in Kansas. After graduation, Florez learned for the first time that he did not meet the requirements for a teaching license. He would need to enroll in an additional two-year program and pay in excess of $10,000 to get the certification. His advisor and other school leadership disagreed with Florez that the website represented that Florez would graduate and meet the requirements for a teaching license. However, the next day, the website was changed that the language upon which Florez allegedly relied was removed. Florez sued, claiming common-law negligence plus violations of the Kansas Consumer Protection Act. All defendants sought dismissal, arguing that Kansas does not recognize a tort of educational malpractice. The district court agreed and dismissed Florez's petition. He appeals.

ISSUES: (1) Negligence; (2) negligent misrepresentation; (3) Kansas Consumer Protection Act; (4) motion to alter or amend

HELD: It is undisputed that Kansas does not recognize a tort of educational malpractice. But Florez's claim does not relate to the quality of the education provided. Instead, it focuses on whether the University knowingly placed false information on its website. The nature of Florez's claim means it is not one for educational malpractice. Florez's petition states an actionable claim of negligent misrepresentation and should not have been dismissed by the district court. A cause of action under the KCPA accrues when the harm is first suffered, whether the consumer recognizes the harm or not. Florez first became aggrieved when he relied on the school's website and enrolled in the program. A new cause of action under the KCPA arose any time he relied on the website. Florez must be given the opportunity to develop a record to show whether he suffered legal harm in the three years preceding the filing of his petition. The district court did not abuse its discretion by denying Florez's motion to alter or amend.

STATUTES: K.S.A. 2018 Supp. 50-626(b)(5); K.S.A. 50-634, 60-512(2)

OIL AND GAS UNITIZATION
LARIO OIL & GAS COMPANY V. KANSAS CORPORATION COMMISSION
SCOTT DISTRICT COURT—AFFIRMED
NO. 120,121—AUGUST 23, 2019

FACTS: Lario owns and operates working interests in several wells. Lario applied to the KCC for unitization and unit operations for one unit. Most of the working interest and royalty holders approved of unitization, but some did not, and they filed a protest to the application. After hearing extensive witness testimony, the KCC denied Lario's application to unitize. The KCC specifically found that Lario did not meet its burden to show that the proposed unit constituted a single-pressure system. Lario appealed to the district court, which affirmed the KCC, finding substantial competent evidence in the record to support the KCC's finding that Lario failed to establish a single-pressure system. Lario appealed.

ISSUES: (1) Whether the KCC misapplied the law; (2) existence of substantial competent evidence to support unitization; (3) whether KCC orders are arbitrary and capricious

HELD: The KCC did not improperly require full communication between pressure systems. It properly interpreted and applied the statutes when denying Lario's application. The witnesses who testified against unitization had experience and expertise on which the KCC could have relied. The KCC properly considered all of the evidence and weighed it when making a decision. The KCC's decision was not arbitrary or capricious.

STATUTES: K.S.A. 2018 Supp. 77-621(c)(8), -621(d); and K.S.A. 55-1302, -1302(b), -1304(a)(1), -1304(a)(2)

criminal

appeals—criminal procedure—sentences—statutes
state v. chardon
douglas district court—reversed
No. 119,464—august 23, 2019

FACTS: Chardon stipulated to violating terms of his probation, and was held in jail for 65 days awaiting disposition hearing. District court imposed 60-day jail sanction and extended probation for 12 months. District court refused Chardon’s request to credit the 65 days awaiting disposition toward the 60-day sanction, and instead ordered the sanction to begin from date of disposition with the 65 days credited toward the underlying sentence. Chardon appealed.

ISSUES: (1) Mootness; (2) jail sanction for probation violation

HELD: Chardon’s sentencing claim is moot because he had already served the 60-day sanction, but issue is considered because the question is capable of repetition and is of public interest.

Rule of lenity applies. Following State v. Petz, 27 Kan. App. 2d 805 (2007), and considering how the Kansas Legislature created the 60-day sanction, Chardon should have received credit for the 65 days served awaiting disposition of a probation violation.

STATUTES:  K.S.A. 2018 Supp. 21-6604(a)(3), -6615(a), 22-3716(c)(1)(B)-(E), -3716(c)(11); and K.S.A. 2017 Supp. 22- 3716(c)(11)

Tags:  Douglas District  Scott District  Weekly20190827 

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August 16, 2019 Digests

Posted By Administration, Monday, August 19, 2019

Kansas Supreme Court

Civil

DEEDS—REAL PROPERTY
JASON OIL COMPANY V. LITTLER
RUSH DISTRICT COURT—AFFIRMED
NO. 118,387—AUGUST 16, 2019

FACTS: Through deeds, Littler (Grantor) conveyed two tracts of real estate to two different couples, the Grantees. The deed excluded from conveyance all oil, gas, and minerals in and under the property that may be produced "for a period of 20 years or as long thereafter as oil and/or gas and/or other minerals may be produced." That 20-year term expired in December 1987, and no oil, gas, or minerals were ever produced from either tract. In 2016, Jason Oil Company moved to quiet title to both tracts, claiming to hold valid oil and gas leases. The Grantor's descendants (the Grantor's Heirs) answered, claiming an interest in the mineral rights via will and arguing that any attempt to convey rights to the Grantees, or their heirs, was void under the Rule Against Perpetuities. The Grantees' Heirs also answered, claiming a successor interest in the mineral rights. Alternatively, they claimed that if the conveyance did violate the Rule it could be reformed under the Uniform Statutory Rule Against Perpetuities (USRAP). The district court granted the Grantees' Heirs' motion for summary judgment, finding there was no dispute that the Grantor conveyed all of his interest in the properties to the grantees and created a defeasible estate by reservation.

ISSUE: (1) Application of the Rule

HELD: The Rule is a creation of common law. The Grantor's mineral interest was a defeasible term mineral interest. This was a present interest which remained vested after the conveyances and for at least 20 years. Any mineral interest that passed to the Grantees was a future interest which vested no earlier than December 1987 at the end of the Grantor's 20-year term. The deeds conveyed by the Grantor created a springing executory interest. Applying the Rule in this case would result in the Grantor's Heirs holding the mineral interests in the real estate in perpetuity, and excepting agreements such as this from application of the Rule has many benefits, including promoting the alienability of land and reducing chaos.

STATUTE: K.S.A. 59-3405(b)

criminal

appeals—criminal law—criminal procedure—motions—statutes
state v. sartin
sedgwick district court—affirmed in part
court of appeals—affirmed in part, remanded
no. 115,172—august 16, 2019

FACTS: Criminal history score for Sartin’s 1995 Kansas sentence included scoring five prior Illinois convictions classified as person felonies. He filed 2015 motion to correct an illegal sentence, arguing one of his Illinois convictions should have been scored as a nonperson felony pursuant to State v. Murdock, 299 Kan. 312 (2014)(Murdock I). District court denied the motion, based on State v. Keel, 302 Kan. 560 (2015), overruling Murdock I. Sartin appealed, contesting the scoring of all five Illinois convictions. In unpublished opinion, court of appeals affirmed the district court’s denial of the motion, finding the Illinois crime of aggravated criminal sexual abuse was comparable to Kansas crime of aggravated sexual battery. Panel declined to consider Sartin’s challenge to the other four Illinois convictions because they were not mentioned in the K.S.A. 22-3504 motion. Sartin’s petition for review granted.

ISSUES: (1) Classification of Illinois crime of aggravated criminal sexual abuse; (2) consideration of other illegal sentencing claims

HELD: Pursuant to State v. Murphy,  309 Kan. 585 (2019)(Murdock II), Sartin is stuck with the “closest approximation” test for comparable offenses, the law in effect at the time his 1995 sentence was imposed. Panel correctly determined that Illinois’ aggravated criminal sexual abuse is comparable to Kansas’ aggravated sexual battery, and thus was properly scored as a person felony in Sartin’s criminal history score.

Appellate courts have statutory authority to consider illegal sentence issues for first time on appeal based on statutory directive in K.S.A. 22-3504(1). Panel erred when it declined to consider Sartin’s challenge to the classification of his other four Illinois convictions. Case remanded to court of appeals with instructions to consider and rule on merits of the person offense classification of the other four Illinois convictions.

STATUTES: K.S.A. 2018 Supp. 21-6811;  K.S.A. 21-4701 et seq., 22-3504, –3504(1); K.S.A. 1994 Supp. 21-3518

Kansas Court of Appeals

criminal

criminal law—criminal procedure—securities—sentences—statutes
state v. morley
shawnee district court—reversed, sentences vacated, remanded
no. 120,017—august 16, 2019

FACTS: Four Kansas investors lost $845,900 as a consequence of Morley’s actions in selling preferred stock shares in Summit Trust Company. Morley was indicted on multiple counts of securities fraud, sale of unregistered security and acting as an unregistered issuer agent. Pursuant to plea agreement, Morley entered no contest plea to one count of securities fraud and one count of acting as unregistered issuer agent, and State dismissed remaining ten counts. Both convictions have presumptive prison terms, and are subject to special rule of presumed imprisonment for violations of Kansas Uniformed Securities Act. Morley’s criminal history included similar wrongdoing that culminated in a 2006 consent order issued by Maryland Securities Commissioner permanently barring Morley from the securities and investment advisory business in that state. District court imposed concurrent prison terms, but granted Morley’s motion for dispositional departure, placed Morley on probation for 36 months, and ordered payment of $845,900 in restitution. Sole basis stated for the dispositional departure was Morley taking responsibility for his actions. State appealed.

ISSUES: (1) Substantial competent evidence for acceptance of responsibility; (2) substantial and compelling reason to support a dispositional departure

HELD: Kansas law applicable to departure decisions is summarized. Under facts of this case, Morley's acceptance of responsibility for his crimes may be a valid non-statutory mitigating factor in support of a downward durational departure sentence, but there was no substantial competent evidence to support that factor. As in State v. Theurer, 50 Kan. App. 2d 1203 (2014), motivation for Morley’s no contest pleas was not to accept responsibility but to mitigate his accountability by obtaining a very favorable outcome. And while Morley agreed to pay restitution, he offered no plan and had no real financial ability to pay all or a substantial part of victims’ losses given his age, limited income and pending bankruptcy proceedings.

Even if substantial competent evidence supported this mitigating factor is assumed, in this case the district court erred in its legal conclusion that this factor was real, substantial, and compelling such that the district court was forced by the case facts to abandon the status quo, venture beyond presumptive prison sentences, and grant probation. Reversed and remanded to district court for resentencing.

STATUTES: K.S.A. 2018 Supp. 17-12a508(a)(5), 21-6604(b)(1), -6604(b)(2) ,-6815(a), -6815(c)(1)(A)-(E), -6817(a)(1), -6817(a)(4), -6820(f); K.S.A. 17-12a301, 12a402, -12a501, 22-3209(2)

Tags:  8808  deeds  real property  Weekly20190820 

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August 2, 2019 Digests

Posted By Administration, Monday, August 5, 2019

Kansas Supreme Court

civil

attorney fees—courts—probate code—wills
In re estate of Oroke
jefferson district court—affirmed and remanded
court of appeals—reversed
NO. 116,333—august 2, 2019

FACTS: Testator (Oroke) deposited original will and codicil with probate court of home county. A few weeks after his death, heirs tried to locate the will but clerk of the court was unable to find it and informed heirs the will was not in the custody of the court. After a search elsewhere found no will, testator's daughter filed intestate probate proceeding. While that proceeding was pending, and after imitation period for petitioning a will for probate had passed, clerk of the court located the will and codicil. Testator's stepdaughter filed separate petition to probate the will. District court consolidated the two probate proceedings and admitted the will to probate, finding step-daughter had exercised due diligence in attempting to locate the will. Testator's daughter appealed. Court of appeals reversed. State v. Hirsh, 54 Kan. App. 2d 705, 405 P.3d 41 (2017). Panel found no exceptions applied to toll the running of the limitation period because the will was not “knowingly” withheld, and found this case indistinguishable from In re Estate of Strader, 301 Kan. 50, 339 P.3d 769 (2014). Stepdaughter's petition for review granted. After oral argument in Kansas Supreme Court, stepdaughter moved for appellate attorney fees and expenses for the entire appellate process to be paid from the estate.

ISSUES: (1) Probate—statute of limitations; (2) appellate attorney fees

HELD: Clerk’s failure in duty to produce the will distinguishes this case from Strader. Circumstances of this case conform in all respects with requirements of the unique circumstances doctrine. While that doctrine is used sparingly, neither the Legislature in repealing K.S.A. 59-620, nor the enactment of Supreme Court Rule 108(e)(4)(A), intended that an error by a judicial employee should be inconsequential as to the statute of limitations. Equitably tolling the statute of limitations provides a realistic and fair remedy for an unusual situation not contemplated by the statutory scheme. This is not a modification of Strader, but ia holding limited to the unique and rare circumstances of a district court clerk not following a duty imposed by law.

Stepdaughter’s attempts to have the appellate courts uphold the district court's admission of the will to probate provides this court with authority to entertain her motion for attorney fees. Motion for attorney fees was timely filed for consideration of appellate services rendered before Kansas Supreme Court, but not for appellate services while appeal was pending in Court of Appeals. The attorney fee request, limited to appellate services provided after panel’s opinion was filed, is reviewed and found to be reasonable. Decision of the district court is affirmed and case is remanded for further proceedings conforming with this opinion.

STATUTES:  K.S.A. 2018 Supp. 20-343, 60-2601; K.S.A. 20-343, 59-617, -618, -620, -621, -1504; and K.S.A. 59-620 (Furse 1994)

criminal

constitutional law—criminal procedure—sentences—statutes
state v. ewing
sedgwick district court—sentences vacated and cases remanded
court of appeals—affirmed in part, reversed in part
NO. 116,641—august 2, 2019

FACTS: Ewing pleaded guilty to charges of felony theft and aggravated burglary in three cases. Presentence investigation report in each case included a person felony converted from combining a Kansas misdemeanor with two Arkansas misdemeanors. Ewing appealed, arguing district court’s classification of the Arkansas convictions as person offenses required judicial fact-finding in violation of Sixth and Fourteenth Amendments. In unpublished opinion, court of appeals held the Arkansas false imprisonment conviction was properly scored as a person crime, but vacated the sentences in each case and remanded for resentencing because record was unclear as to what statute or subsection the Arkansas battery offense arose under. Panel also rejected State’s procedural argument for presumption of proper classification because Ewing did not lodge an objection and failed to designate a record sufficient to identify the Arkansas offense in question. Petitions for review by both sides granted in consolidated appeals.

ISSUES: (1) Out-of-state conviction—false imprisonment; (2) out-of-state conviction—battery

HELD: District court pronounced Ewing’s sentences prior to State v. Wetrich, 307 Kan. 552 (2018). State’s arguments against application of Wetrich are rejected. Arkansas false imprisonment is not a person crime. A person who would not be guilty of criminal restraint in Kansas might be guilty of second-degree false imprisonment in Arkansas. Accordingly, the Kansas crime is not comparable to second-degree false imprisonment in Arkansas because circumstances justifying an act otherwise constituting the Arkansas crime are not identical to or broader than those in Kansas. District court and panel erred when concluding the Arkansas offense should be classified as a person crime.

Insufficient evidence supports the district court’s legal conclusion that Ewing’s battery conviction was a person crime. Even though Ewing failed to object, State had burden of establishing that he committed a version of the offense supporting the person classification. State v. Obregon, 309 Kan. __, __ (June 28, 2019). State did not meet its burden in this case. Sentences vacated and case remanded for recalculation of criminal history score and resentencing under Wetrich. If misdemeanor conversion to a felony is no longer possible without the Arkansas false imprisonment conviction being scored as a person misdemeanor, the person or non-person classification of the Arkansas battery conviction may be moot.:  

STATUTES: K.S.A. 2018 Supp. 21- 6801 et seq.,: -6809, -6811(a), 22-3504(3); K.S.A. 2015 Supp. 21-5425; K.S.A. 20-3018(b), 21-3110, -3715, -4711(e), 60-2101(b)

constitutional law—criminal law—juries—prosecutors—trials
state v. Hirsh
barton district court—affirmed in part, reversed in part
vacated in part, and remanded
court of appeals—affirmed
NO. 116,356—august 2, 2019

FACTS: Hirsh was convicted of aggravated assault, two counts of criminal threat for threatening wife and children, and domestic battery. Court of appeals affirmed the criminal threat and domestic battery convictions and sentences, reversed the aggravated assault conviction and vacated that sentence, and remanded for retrial on the aggravated assault charge. Review granted on five allegations of error: (1) Brady violation of right to timely disclosure of exculpatory evidence—­a sheriff’s testimony and production of a disciplinary report that provided an inconsistent account of where the incident occurred in the house; (2) two convictions for criminal threat are multiplicitous; (3) prosecutorial error; (4) erroneous refusal to recall jury to explore possible misconduct during voir dire of three jurors who did not disclose they were victims of domestic abuse; and (5) cumulative error denied him a fair trial.

ISSUES: (1) Brady violation; (2) multiplicitous crimes; (3) prosecutorial error; (4) recall of jury; (5) cumulative error

HELD: Panel erred by rejecting in par the Brady argument because prosecutor had not suppressed the report, as knowledge and possession of information by law enforcement is imputed to the prosecutor. Nonetheless the Brady claim is rejected on the merits because on facts in this case, the one inconsistent location stated in the report did not qualify as “material” under Brady and its progeny.

Multiplicity claim challenges the two criminal threat convictions—threat to kill wife and threat to kill children. Hirsh demonstrated the threats were “unitary” conduct, but there were two units of prosecution for criminal threat in this case. Because Hirsh cannot demonstrate the second component under State v. Schoonover, 281 Kan. 453 (2006), of only one unit of prosecution for criminal threat, there is no double jeopardy or multiplicty problem.

Under longstanding Kansas caselaw, prosecutor telling jury that a witness told the truth is error. But under circumstances in this case, no reasonable probability that prosecutor’s error contributed to the verdict.

Transcript of voir dire does not support allegation that three jurors ever failed to respond appropriately during voir dire. Hirsh cannot satisfy threshold in State v. Ruebke, 240 Kan. 493 (1987), of just cause to recall jurors. Case is analogous to State v. Hopkins, 257 Kan. 723 (1995). State v. Jenkins, 269 Kan. 334 (2000), is distinguished.

Even if an individually immaterial Brady error is assumed, and combined with a single-sentence individually harmless prosecutorial error, these two minor errors are insufficient to employ cumulative error doctrine.      

CONCURRENCE (Beier, J., joined by Rosen and Stegall, JJ.): Concurs in all respects but for majority’s multiplicity analysis. Does not accept that Hirsch’s threats, separated by a plea from his wife to which he obviously reacted, qualify as “unitary” conduct. Would reject the multiplicity challenge on the first Schoonover component and not reach or analyze the second.

DISSENT (Johnson, J.): Dissents in part on majority’s determination that there were two units of prosecution with respect to criminal threat. Would reverse one of the convictions.

STATUTES: K.S.A. 2018 Supp. 21-5415,-5415(a), 22-3501(1); K.S.A. 21-3419(a)(1), 60-404

criminal procedure—sentences—statutes
state v. saucedo
reno district court—reversed, sentence vacated, case remanded
court of appeals—reversed
NO. 117,299—august 2, 2019

FACTS: Saucedo appealed his sentence, alleging the district court erred in classifying his prior Washington residential burglary conviction as a person felony. In its unpublished opinion, the court of appeals affirmed, relying heavily on State v. Moore, 52 Kan. App. 2d 799 (2016), prior to that case being reversed, 307 Kan. 599 (2018), by applying test in State v. Wetrich, 307 Kan. 552 (2018). Saucedo’s petition for review was granted, and parties were ordered to show cause why the court should not (1) summarily vacate the panel's decision; (2) summarily vacate Saucedo's sentence; and (3) remand the case to the district court for resentencing in accordance with Wetrich and Moore.

ISSUE: (1) Out-of-state conviction—residential burglary

HELD: Under Wetrich and Moore, Saucedo's Washington conviction was not comparable to any offense under the Kansas criminal code because the Washington crime's mental state element is not identical to, or narrower than that of the Kansas crime. As the durational departure sentence ultimately imposed obviously followed from district court’s erroneous view of the sentence, there was an abuse of discretion. Sentence is vacated and case remanded to district court for resentencing with a criminal history score characterizing the Washington conviction as a nonperson felony.

STATUTE: K.S.A. 2018 Supp. 21-5413(a), -5413(g)(1), -5807(a)(1) -6203, -6801 et seq., -6805, -6811(e)(3)

Kansas Court of Appeals

civil

civil procedure—creditors and debtors—estoppel and waiver—fraud and deceit—limitations of actions—statutes—summary judgment—torts
Foxfield Villa Assocs. v. Robben
johnson district court—affirmed
No. 119,611—august 2, 2019

FACTS: Parties were involved in a complex and unsuccessful real estate project that resulted in loss of millions of dollars, two federal lawsuits, a bankruptcy, and two district court lawsuits in Johnson County, one of which resulted in this appeal. Paul Robben, married to Lori Robben, was transaction broker for a 2008 real estate transactions involving Foxfield Villa Associates and parties (collectively “FVA”). FVA defaulted on a 2010 loan from Bank of Blue Valley (“BBV”) for purchase and development of acreage. FVA then sued BBV in Johnson County and federal court. District court ruled against FVA’s claims and in favor of BBV’s counterclaims. Based on Paul’s 2013 disclosure that he was acting as the transaction broker under Lori’s supervising authority during the 2008 transaction, FVA filed second suit in 2016 against Lori (collectively “Lori”) alleging negligent supervision, vicarious liability, aiding and abetting negligence, common-law negligent supervision, fraudulent transfer of three properties, conspiracy to commit fraudulent transfer, and aiding and abetting fraudulent transfer. District court granted Lori’s motion for summary judgment on all FVA claims, finding in part the two-year statute of limitations barred FVA’s claims of negligence, and FVA’s claims had been extinguished based on the Uniform Fraudulent Transfer Act (UFTA). FVA appealed arguing: (1) it could not have reasonably ascertained it was injured within the two-year statute of limitations and thus was entitled to equitable estoppel; and (2) its fraudulent transfer claims survive because FVA could not have reasonably discovered the transfers until after it filed suit in this case. FVA also asked for recognition of new causes of actions in Kansas—conspiracy to commit fraudulent transfers, and aiding and abetting fraudulent transfers.

ISSUES: (1) Negligence claims; (2) equitable estoppel; (3) fraudulent transfer claims; (4) new causes of actions

HELD: District court did not err in applying K.S.A. 60-513(b) to FVA’s negligence claims. The act causing FVA’s injuries happened on or before 2008. Even assuming FVA did not know of Lori’s involvement until 2016, FVA’s negligence claims are still barred because the statutory limitation period begins once FVA knew it was injured, not when FVA discovered who injured it. Summary judgment was appropriate because no facts disputed that FVA had reasonably ascertained it was injured when it filed its first lawsuit in 2011.

FVA is not entitled to equitable estoppel. FVA presented no facts to establish Lori or Paul committed affirmative acts to limit FVA’s discovery of alleged negligence. FVA’s claims of fraudulent concealment, dodging subpoena service, and refusal to attend depositions are waived by failure to cite to the appellate record. FVA presented no facts or law to support a finding that Lori had a fiduciary relationship to disclose any supervisory relationship she had with Paul. And FVA’s equitable estoppel claim presents no fact questions appropriate for trial.

District court did not err in granting summary judgment on FVA’s fraudulent transfer claim that was based on transfer of three properties. Each property transfer is reviewed. FVA’s fraudulent transfer claim relies on K.S.A. 33-204(a)(2) or K.S.A. 33-205(a) which grant a creditor the right to recover for a fraudulent transfer when a debtor does not receive reasonable value for transfer of the property. Such claims are subject to the four-year time limitation in K.S.A. 3-209(b) and are not entitled to saving clause in that statute. Even if fraudulent transfer of the properties for actual intent could be presumed as arising under K.S.A. 33-204(a)(1), FVA is not entitled to the savings clause on facts in this case. District court’s reliance on Bi-State Dev. Co, In., v. Shafer, Kline & Warren, Inc., 26 Kan App. 2d 573 (2018), was harmless error. FVA waived estoppel and limited discovery arguments by failing to brief the arguments.

District court did not err in granting summary judgment against FVA’s claims of conspiracy to commit fraudulent transfers, and aiding and abetting fraudulent transfers. Even if FVA had a cause of action for conspiracy to commit a fraudulent transfer, FVA cannot recover because summary judgment against the underlying claim of fraudulent transfer was appropriate. Kansas courts have never determined whether conspiracy can extend to include conspiracy for fraudulent transfers, or whether a party may raise a claim of aiding and abetting a fraudulent transfer. Split of authority in other jurisdictions is noted.

STATUTE: K.S.A. 33-201 et seq., -201(g), -204, -204(a)(1), -204(a)(2), -204(b)(1), -204(b)(3) -205, -205(a), -209(a), -209(b), 60-513(a), -513(a)(4), -513(b)

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July 26, 2019

Posted By Administration, Monday, July 29, 2019

Kansas Supreme Court

criminal 

appeals—constitutional law—criminal procedure
evidence—fourth amendment—motions
state v. christian
reno district court—reversed and remanded
court of appeals—reversed
NO. 116,133—july 26, 2019

FACTS: Christian was arrested for failure to provide proof of insurance. Based on evidence discovered in search of Christian and his vehicle, he was charged and convicted in bench trial on drug crimes. District court denied motion to suppress. In an unpublished opinion, court of appeals reversed the convictions and sentences, holding Christian did not properly waive right to a jury trial, and provided guidance on remand about Christian’s motion to suppress evidence seized after police officer unconstitutionally detained him. Panel found the initial seizure was unsupported by reasonable suspicion. But citing Utah v. Strieff, 579 U.S. __ (2016), the panel applied the attenuation doctrine to conclude the evidence could be admitted because the officer’s discovery of an expired tag on the vehicle presented an intervening circumstance that attenuated the taint of the officer’s unconstitutional seizure. Christian’s petition for review was granted on the suppression issue.

ISSUE: (1) Attenuation doctrine

HELD: The panel’s finding that the officer unlawfully seized Christian is accepted because State did not cross-petition for review of that ruling. The three attenuation doctrine factors stated in Brown v. Illinois, 422 U.S. 590 (1975), are discussed and applied. First, the temporal proximity factor favors suppression because no significant lapse in time between the unlawful seizure and discovery of evidence. Second, the intervening circumstances factor also favors suppression because discovering evidence of a crime when that discovery flows directly from the unconstitutional seizure does not attenuate the taint of the Fourth Amendment violation.  State’s comparison of the discovery of an expired license plate to the discovery of an outstanding warrant in Strieff is rejected. Third, the panel’s discussion of the flagrancy factor was partially incorrect and narrow, lacking a discussion of the officer’s subjective good faith.  The panel’s implied conclusion that the search of Christian’s vehicle was a proper search incident to arrest for no proof of insurance conflicts with the permissible scope for search of a vehicle. It was not reasonable for officers to believe they would find evidence of the lack-of-insurance crime in the vehicle. Guidance judgment of court of appeals affirming the district court on the single issue subject to review is reversed. Judgment of district court is reversed, and the case was remanded for further proceedings.

STATUTE: K.S.A. 20-3018(b), 22-2402

appeals—constitutional law—criminal procedure—
evidence—fourth amendment—motions
state v. sanders
shawnee district court—affirmed
court of appeals—reversed
NO. 118,640—july 26, 2019

FACTS: Officers stopped, handcuffed and searched Sanders after he walked away from car and then allegedly ran and attempted to conceal himself by standing behind a drainpipe in the alleyway. Sanders was arrested upon discovery of outstanding warrant. Further search of his possessions resulted in drug charges. Sanders filed motion to suppress, arguing he had been unlawfully seized and searched. The district court granted the motion, noting inconsistencies and problems with officers’ testimony. State filed interlocutory appeal. In an unpublished opinion, the court of appeals panel upheld the district court’s finding that officers lacked reasonable suspicion to detain Sanders, but reversed suppression of the evidence, applying the attenuation doctrine analysis in Utah v. Strieff, 579 U.S. __ (2016), based on discovery of Sanders’ outstanding arrest warrant. Sanders petitioned for review of the panel’s application of the attenuation doctrine. State cross-petitioned for review, arguing Sanders’ attempt to conceal himself and flee from the police was sufficient evidence for reasonable suspicion, and the inventory of possessions on arrest and booking would sustain application of the inevitable discovery doctrine.

ISSUES: (1) Reasonable suspicion to detain, (2) attenuation doctrine, (3) inevitable discovery

HELD: The only evidence that Sanders attempted to flee and conceal himself was the officer’s supposition which district court found incredible.  Under facts and circumstances in this case, State failed to show error in district court’s conclusion that the officers’ initial seizure of Sanders was unsupported by probable cause.

            Background of attenuation doctrine and exclusionary rule is reviewed.  The three attenuation doctrine factors stated in Brown v. Illinois, 422 U.S. 590 (1975), are discussed and applied.  Here, all three factors favor suppression.  First, the timing between the investigatory detention without reasonable suspicion and the discovery of the outstanding warrant were in close proximity.   Second, the initial search of Sanders before discovery of the preexisting warrant was not an intervening circumstance that broke the causal chain between the unconstitutional seizure and search because Strieff’s reasoning was specific to a search incident to arrest after the warrant is discovered.  Third, officers committed several unconstitutional violations, and their actions were purposeful and flagrant misconduct.

            State did not preserve its arguments about either the inevitable discovery doctrine or an inventory search exception.   District court appropriately suppressed the evidence based on the arguments presented.  Judgment of Court of Appeals reversing the district court is reversed.  Judgment of the district court is affirmed. 

STATUTE:  K.S.A. 20-3018(c)

appeals—appellate procedure—constitutional law—
criminal procedure—evidence—motions—statutes
state v. soto
sedgwick district court—reversed and remanded
NO. 117,059—july 26, 2019

FACTS:  Soto convicted of first-degree premeditated murder. Convictions affirmed but hard-50 sentence vacated pursuant to Alleyne v. United States, 570 U.S. 99 (2013), and case remanded to district court for resentencing. Mandate signed in May 2014. Prior to resentencing, State discovered and shared with the defense some polygraph evidence that was contrary to testimony of a key witness against Soto. Soto filed June 2016 motion seeking a new trial based on a Brady violation and newly discovered evidence. He also argued the mandate rule did not apply because it prohibited only relitigation of issues and the Brady violation had never been litigated. State opposed the motion, and filed notice it would no longer seek a hard-50 sentence. Soto filed amended motion alleging ineffective assistance of trial counsel in failing to discover the witness polygraphs and related statements. District court denied the motion without addressing merits of the Brady claim, and resentenced Soto to hard 25 life sentence. Soto appealed. State’s brief argued in part the mandate rule eliminated district court’s subject matter jurisdiction beyond that necessary to replace Soto’s vacated hard 50 sentence. State also argued the motion for new trial was not filed within the two-years of final judgment. 

ISSUES:  (1) Mandate rule - subject matter jurisdiction, (2) timeliness of motion for new trial, (3) ineffective assistance of counsel

HELD:  K.S.A. 60-2106(c) and K.S.A. 20-108, designed to enforce the hierarchy of Kansas courts, were not designed to set up broad limits on subject matter jurisdiction once a case was remanded.  Soto sought district court action on a legal issue arising from facts unknown to him until the morning his resentencing trial was set to begin.  Mandate rule would not have prevented the judge from reaching the merits of the Brady issue. 

            Where Soto’s conviction was affirmed on appeal but some part of the sentence was vacated and remanded to the district court for resentencing, there was no final sentence, hence no final judgment under K.S.A. 2018 Supp. 22-3501(1).  District judge could have heard Soto’s motion seeking a new trial.  By failing to recognize he was legally authorized to hear merits of the Brady claim, district judge’s denial of Soto’s motion qualified as an abuse of discretion.  Case is remanded to evaluate merits of the Brady claim and whether discovery of the polygraph reports is so significant that new trial on Soto’s guilt is required.

             No need to reach merits of the ineffective assistance of counsel claim which Soto advanced only because it might make a procedure other than a motion for new trial available. 

STATUTES:  K.S.A. 2018 Supp. 21-6806(c), 22-3501(1), -3717(b)(2)(B); K.S.A. 20-108, -3401, 60-1507, -2106(c)

constitutional law—criminal procedure—evidence
fourth amendment—motions
state v. tatro
saline district court—remanded with directions
court of appeals—reversed
NO. 118,237—july 26, 2019

FACTS: An officer stopped Tatro who was walking with a flashlight in middle of a public street in a high-crime area for vehicle burglaries. Tatro was arrested when a warrant check disclosed an outstanding warrant. Seizure and search of Tatro’s purse resulted in Tatro being charged with possession of drug paraphernalia. She moved to suppress evidence, arguing she had been unconstitutionally detained and searched. District court granted the motion. State filed interlocutory appeal. In an unpublished opinion, the court of appeals upheld the district court’s finding that the encounter was involuntary and officer’s detention of Tatro was unsupported by reasonable suspicion. But it reversed district court’s ultimate decision, relying on Utah v. Strieff, 579 U.S. __ (2016), to hold an intervening circumstance attenuated the taint of an unlawful seizure and thus did not invalidate a later search. Tatro’s petition for review was granted. 

ISSUE: (1) Attenuation doctrine

HELD: The panel’s holding that the officer unconstitutionally seized Tatro is accepted because the State did not cross-petition for review of this adverse holding. The background of the exclusionary rule and attenuation doctrine is reviewed. The three attenuation doctrine factors stated in Brown v. Illinois, 422 U.S. 590 (1975), are discussed and applied. The district court did not err in finding the temporal proximity factor favored suppression, but the intervention factor strongly favored the State. Under Strief, the district court erred in failing to consider the officer’s discovery of an arrest warrant as a circumstance that intervened between the officer’s illegal detention of Tatro and the search of her purse after arresting her on the warrant. The district court’s findings are too unclear to determine whether it correctly decided the flagrancy factor. The case was remanded to district court for further appropriate findings of fact under the correct legal standard. 

STATUTE: K.S.A. 20-3018(b), 22-2402

 

Kansas Court of Appeals

Civil

UNINSURED MOTORIST
HEMENWAY V. AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE
JOHNSON DISTRICT COURT—REVERSED AND REMANDED
NO. 120,358—JULY 26, 2019

FACTS: E.H. and the rest of her family were injured in an auto accident caused by another driver. The at-fault driver's insurance policy covered bodily injury up to $25,000 per person and $50,000 per accident. E.H.'s parents' own insurance policy had underinsured motorist coverage. After all of the claims were filed, the at-fault driver's policy settled up to policy limits with all of the injured parties. Both E.H. and her father filed a claim with Automobile Club Inter-Insurance Exchange, their insurer, for UIM benefits. ACIIE disputed the amount of UIM benefits due to E.H., and she filed suit in district court for breach of contract. E.H. believed she was due $38,000, which was the $50,000 per person UIM limit minus the $12,000 she received from the at-fault driver's coverage. ACIIE countered that the $50,000 limit was per accident and not per person. The district court agreed with E.H. and awarded her $38,000, subject to her actually proving damages. ACIIE appealed.

ISSUES: (1) Amount of UIM coverage available; (2) effect of state law

HELD: When calculating the amount of UIM coverage available, the district court should have added together everything that the family received from the at-fault driver's insurance coverage and subtracted that from the $100,000 per occurrence cap available through ACIIE. That results in a maximum available benefit to E.H. of $35,000. Any language in ACIIE's policy that attempts to limit coverage runs counter to the mandatory language of K.S.A. 40-284(b) and is void and unenforceable.

STATUTE: K.S.A. 40-284(b), -284(e)

criminal 

constitutional law—criminal procedure—fourth amendment—motions
state v. Arrizabalaga
saline district court—affirmed
NO. 120,209—july 26, 2019

FACTS: Trooper stopped Arrizabalaga on I-70 for traffic infraction, and noted the van smelled of a strong odor-masking product and was filled with boxes and bags. Ticket issued when dispatch confirmed Arrizabalaga’s license was valid and provided criminal history.  Arrizabalaga consented to further questioning about criminal record and to search of his van, but withdrew consent some 24 minutes into the stop when trooper stated he was searching for large amount of drugs and asked passenger to exit the van. Arrizabalaga was then detained for another 24 minutes for police dog to arrive. Dog alert resulted in Arrizabalaga’s arrest on drug charges. Arrizabalaga filed motion to suppress. District court denied the motion, finding in part that reasonable suspicion existed for the initial traffic stop, and that Arrizabalaga consented to additional questions until withdrawing his consent for search of the van. Arrizabalaga filed second motion to suppress, arguing the length of detention for drug dog’s arrival was too long.  District court granted this motion, based on trooper’s lack of diligence in pursuing purpose of stop, and holding Arrizabalaga for excessive time until drug dog arrived. State filed interlocutory appeal, citing Rodriguez v. United States, 575 U.S. 348 (2015), to argue the length of detention does not matter once trooper has reasonable suspicion during a traffic stop.

ISSUE: (1) Traffic stop—duration of detention

HELD: No Kansas caselaw directly addresses the narrow issue in this case as to whether trooper was diligent enough in verifying or dispelling his suspicion of drugs after finding reasonable suspicion. State’s reliance on Rodriguez is criticized. Here, district court properly applied analysis in United States v. Sharpe, 470 U.S. 675 (1985), to find in context of facts of this case that the length of the stop was excessive. Substantial competent evidence supports district court’s finding that trooper failed to diligently and reasonably pursue the purpose of the stop, because he did nothing about his suspicion until the second 24-minute period began.

DISSENT (Gardner, J.):  Would reverse the district court’s suppression of evidence. Neither the law nor facts in this case suggest that Arrizabalaga’s detention for 24 minutes based on trooper’s reasonable suspicion of a crime was unreasonable. No Kansas case has examined the permitted length of a detention justified by reasonable suspicion after the conclusion of a traffic stop to get a drug dog on site, but federal cases are cited and discussed. No authority suggests due diligence requires officer to call a drug dog as soon as the officer reasonably suspects criminal activity is occurring, particularly where other factors, such as consent, show no need for a drug dog at the time. Under facts in this case, trooper was diligent in trying to get drug dog as soon as possible under the circumstances.   

STATUTES:  K.S.A. 2018 Supp. 22-3608; K.S.A. 22-2402(1)

criminal procedure—motions—sentences
state v. schulze
saline district court—sentence vacated and case remanded
NO. 119,184—july 26, 2019

FACTS: Schulze entered no contest plea to felony theft. District court imposed sentence using a PSI report that showed a criminal history score of C and listed 18 prior convictions. Shortly after sentencing, court services provided an amended PSI that increased criminal score to B and listed 23 prior convictions, including two person misdemeanors not included in the original report. State moved to correct an illegal sentence. District court granted the motion and imposed an increased sentence, holding the original sentence violated applicable statutory provisions requiring all of a defendant’s prior convictions to be counted. Schulze appealed.

ISSUE: (1) Sentencing - error in presentence report

HELD: Schulze’s original sentence controls. State has burden of proving the defendant’s criminal history score, and if it fails to find one or more convictions, it is prohibited from later amending, and ultimately increasing, the severity level of the defendant’s criminal history for the crime(s) at issue. Based on State v. Dickey, 301 Kan. 1018 (2015), and State v. Weber, 297 Kan. 805 (2013), State cannot later challenge the factual basis for Schulze’s criminal history score when it failed to object to it before the district court. Invited error rule, and distinction between factual and legal stipulations, are discussed.  

STATUTES: K.S.A. 2018 Supp. 22-3504; K.S.A. 2017 Supp. 21-6810(c), -6810(d)(6), -6811(a), -6814(a), -6814(b), 22-3504; K.S.A. 2016 Supp. 21-6804(a)

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July 19, 2019 Digests

Posted By Administration, Tuesday, July 23, 2019

Kansas Supreme Court

CIVIL

CONTEMPT
IN RE PATERNITY OF S.M.J. V. OGLE
DOUGLAS DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS VACATED—CASE REMANDED
NO. 115,776—JULY 19, 2019

FACTS: Ogle and Jacobs were involved in a paternity and custody proceeding. It turned contentious, enough that the district court ordered Ogle to cease widespread slander of Jacobs. Ogle did not stop, and Jacobs moved the court to hold him in indirect contempt after his comments caused her to lose her job. The district court held Ogle in indirect contempt, even though neither Ogle nor his attorney appeared at the contempt hearing. Ogle appealed and the court of appeals vacated the contempt finding, holding that the district court could not hold Ogle in indirect contempt when he did not appear at the hearing. Jacobs' petition for review was granted.

ISSUE: (1) Necessity of personal appearance at the hearing

HELD: K.S.A. 2018 Supp. 20-1204a does not specifically mention whether an accused must appear at the hearing. But after reading all of the statute's provisions together, it is clear that a district court judge is allowed to proceed with a contempt hearing once the person accused is present, but not before.

STATUTE: K.S.A. 2018 Supp. 20-1204a

criminal 

criminal law—criminal procedure—jury instructions—motions—statutes
state v. cottrell
sedgwick district court—affirmed
court of appeals—affirmed
no. 114,635 —july 19, 2019

FACTS: Undercover officer (Padron) obtained hydrocodone and oxycodone from Cottrell, through sale set up by his daughter. Jury convicted Cottrell of distributing a controlled substance and conspiring to distribute a controlled substance. On appeal, Cottrell claimed: (1) district court erred in failing to give a unanimity instruction because State alleged multiple overt acts in furtherance of the conspiracy; (2) alternatively, the overt acts alleged were alternative means to commit the crime of conspiracy, and State failed to produce sufficient evidence to support each one; (3) district court erred in instructing jury that “knowingly” was the culpable mental state for distribution of a controlled substance; and (4) district court erred in denying Cottrell’s motion for judgment of acquittal because insufficient evidence supported the charges. Court of appeals affirmed. 53 Kan. App. 2d 425 (2017). Review granted.

ISSUES: (1) Unanimity instruction—multiple acts; (2) alternative means—crime of conspiracy; (3) jury instruction; (4) motion for acquittal

HELD: No unanimity instruction was required because alleging several overt acts in furtherance of one conspiracy does not present a multiple acts case. State presented arguments and evidence about one agreement between Cottrell and his daughter: to illegally sell hydrocodone and oxycodone to Padron.

Jury instruction that lists several overt acts in furtherance of a conspiracy does not create alternative means for the crime of conspiracy.

Following State v. Brown, 295 Kan. 181 (2012), only language of a statute can create alternative means for a crime, and the conspiracy statute does not do so. State v. Enriquez, 46 Kan. App. 2d 765 (2011), is overruled. A jury instruction listing more than one overt act in furtherance of a conspiracy does not create alternative means. Instead, such an instruction merely describes the factual scenarios that could prove the material element of an overt act.

Invited error precludes reaching the merits of Cottrell’s jury instruction challenge. Cottrell actively pursued an instruction for distribution of a controlled substance that included a knowing culpable mental state, was unwavering in this request, and any error was as obvious before trial as after. Defense counsel also stated on the record that he did not object to the final instruction.

No error in district court’s denial of the motion for acquittal. No appellate reweighing of Cottrell’s testimony, and significant evidence supported Cottrell’s knowledge that he was distributing controlled substances

STATUTES: K.S.A. 2018 Supp. 21-5302(a), -5402(c); K.S.A. 2912 Supp. 21-5302(a)

constitutional law—criminal law—jurisdiction
motions—securities—statutes
state v. lundberg
sedgwick district court—affirmed
court of appeals—reversed
no. 114,897—july 19, 2019

FACTS: Minnesota residents Lundberg and Elzufon, formed a Minnesota corporation they registered to do business in Kansas to develop properties in downtown Wichita. As principals for four Kansas limited liability corporations (LLCs), they sold securities by using intermediaries who resided in California who made sales presentations in California and sold the securities from California to individuals who did not reside in Kansas.  State filed criminal charges under the Kansas Uniform Securities Act (KUSA) against Lundberg and Elzufon for selling or offering to sell unregistered securities and committing fraud in selling or offering to sell securities. Lundberg and Elzufon filed motions to dismiss for lack of jurisdiction, arguing neither the offers to sell, the sales, the offers to purchase, nor the purchases were made or accepted in Kansas. Parties stipulated to the facts for deciding this motion. District court dismissed 56 of the counts related to sales involving the California intermediaries, rejecting State’s argument that any of the offers originated within Kansas. State voluntarily dismissed remaining charges and appealed. Court of Appeals reversed. 53 Kan.App.2d 721 (2017). Lundberg’s and Elzufon’s petitions for review granted.

ISSUE: (1) Jurisdiction for criminal charges - KUSA

HELD: KUSA is interpreted, examining “sale,” “offer to sell,” and whether “multiple sales” were consummated in Kansas. Nexus analysis applied by Court of Appeals is rejected. Even under expansive reading permitted by definition of “offer to sell” in KUSA, Kansas’ jurisdiction is statutorily limited to situations in which the offer originates within the territorial boundaries of Kansas—not just because the transaction has some sort of “nexus” to the state. On facts in this case the sales were not made in Kansas nor did the offers to sell originate in Kansas, thus no jurisdiction exists based on a sale occurring in Kansas.  

CONCURRENCE (Vano, D.Judge assigned): There is no stipulated fact regarding the place where any offer to sell originated, and the word “nexus” appears nowhere in the KUSA. The jurisdictional statute, K.S.A. 17-12a610, limits criminal sanction to sales or offers to sell originating within the state. On the stipulated facts in this case, the offers did not occur or originate in Kansas.  Dissent goes too far in adding a penal reach that is not expressed by the Legislature and is inconsistent with Kansas precedent on reading, construing, and applying criminal statutes and sanctions strictly in favor of the accused, and keeping the court out of the business of drafting legislation—particularly penal sanctions.

DISSENT (Luckert, J.) (joined by Beier and Rosen, JJ.): Would interpret the offers as originating with and the sales being made by the Kansas LLCs acting through their officers and shareholders—Lundberg and Elzufon—to retain California intermediaries who extended the Kansas LLCs’ offers to California investors. These acts are sufficient to say the sales or offers to sell originated in Kansas. Thus application of Kansas law and jurisdiction is proper, and applying KUSA here does not violate any federal constitutional restriction against extraterritorial application of Kansas law.   

STATUTES: K.S.A. 2019 Supp. 17-12a302, -12a303, -12a508(a)(2), -12a508(a)(3), -7662 et seq., -7663(1), -7668, 21-5106; K.S.A.17-12a101 et seq., -12a102, -12a102(17), -12a102(26), -12a310, -12a304, -12a501, -12a501(2), -12a501(3), -12a508, -12a610, -12a610(a), -12a610(b), -12a610(c), -12a610(e), 60-2101(b)

appellate procedurecriminal lawstatutes
state v. Rizal
johnson district court—affirmed; court of appeals—affirmed
no. 115,036 —july 19, 2019

FACTS: In bench trial on stipulated facts, Rizal convicted of possessing a controlled substance —naphthoylindole (“K2”), a synthetic cannabinoid — with intent to distribute it at gas station she owned. Rizal appealed, claiming in part that insufficient evidence supported the conviction because State only proved she knowingly sold what she thought was “incense,” and not that  she possessed K2 with “knowledge” as defined in McFadden v. United States, 576 U.S. __ (2015). Court of Appeals affirmed in unpublished opinion, distinguishing McFadden from the Kansas statute, but also finding substantial competent evidence if McFadden applied. Review granted. In supplemental brief Rizal argued new claim that that the substance she possessed was not a controlled substance, but a controlled substance analog, based on her lay analysis of chemical compounds in packets sold.

ISSUES: (1) New claim on appeal; (2) knowledge of nature of the controlled substance; (3) sufficiency of the evidence

HELD: Rizal’s new analog argument is unpreserved and not reviewed. Undisputed fact in the record that Rizal possessed the controlled substance naphthoylindole.

Court examines what it means to “knowingly” exercise control over a controlled substance, finding Court of Appeals erred in its interpretation of K.S.A. 2011 Supp. 21-5705(a)’s knowledge requirement. To convict a defendant of possession with intent to distribute a controlled substance under K.S.A. 2011 Supp. 21-5705(a), State must prove the defendant had knowledge of the nature of the controlled substance. This knowledge requirement can be established by proving the defendant either knew the identity of the substance or knew that the substance was controlled. A mistake of fact about the nature of a controlled substance can negate the knowledge requirement.

Under facts in this case, Rizal’s conviction is affirmed because State presented sufficient evidence that Rizal knew the substance was controlled.

STATUTES: K.S.A. 2018 Supp. 21-5207(a); K.S.A. 2014 Supp. 60-455(b); K.S.A. 2011 Supp. 21-5202(i), -5701(a), -5701(q), -5705(a), -5705(a)(7), -5705(c)(1)(A), 65-4101(bb)(1), -4101(bb)(2), -4105(h)(2); K.S.A. 60-455

appellate procedure—criminal procedure
evidence—jury instructions—prosecutors
state v. ross
sedgwick district court—affirmed
no. 117,850—july 19, 2019

FACTS: Ross convicted of felony murder and second-degree murder as a lesser included offense of premeditated murder, and felony abuse of a child. On appeal he claimed: (1) State committed prosecutorial error during rebuttal closing argument by stating the jury must find the defendant guilty if it did not believe the defendant’s testimony; (2) district court violated Ross’ statutory right to lesser included offense instructions by not offering an instruction on unintentional but reckless second-degree murder as a lesser included offense of premeditated murder; (3) district court erred in admitting into evidence two recorded jail phone calls between Ross and his mother; (4) pro se additional issues claiming the jury’s verdict operated as a de facto acquittal on the charge of first-degree felony murder, and claiming K.S.A. 2018 Supp. 21-5109(b)(1) infringed his right to present a complete defense; and (5) cumulative error denied him a fair trial.

ISSUES: (1) Prosecutorial error; (2) jury instruction; (3) admission of phone call evidence; (4) supplemental issues raised pro se; (5) cumulative error

HELD: Prosecutor’s misstatement was error, but in context of prosecutor’s surrounding comments did not effectively shift burden of proof. No reversible error shown.

An instruction on reckless second-degree murder was legally appropriate, but whether it was factually appropriate is immaterial because any error in failing to offer the instruction was harmless. On evidence in the case, no reasonable probability that jury could have inferred the killing of the child victim was done unintentionally but recklessly.

No error in admitting the two phone calls. Probative value of the calls far outweighed the resulting prejudice.

Ross’ newly raised arguments were insufficiently preserved for appellate review.

Aggregated effect of prosecutor’s misstatement which did not prejudice Ross’ right to a fair trial, and assumed instructional error which was harmless, did not constitute reversible error.             

STATUTES: K.S.A. 2018 Supp. 21-5108, -5109(b)(1), -5403(a)(2); K.

 

Kansas Court of Appeals

CIVIL

DUE PROCESS—PARENTAL RIGHTS
IN RE J.L.
SHAWNEE DISTRICT COURT—REVERSED AND REMANDED
NO. 120,504—JULY 19, 2019

FACTS: In April 2018 the State sought to have J.L. declared to be a child in need of care. Later that year, the State scheduled a pretrial conference hearing. Notice was mailed, but Father's address was listed as "unknown." Father's attorney appeared at that pretrial conference hearing, but Father was not in the room when the hearing started. Because of his absence, the State moved for a default judgment on the CINC petition. Father appeared within 10 minutes of the start of the hearing and moved to set aside the default judgment. Father appealed.

ISSUE: (1) Due process violation

HELD: Father has a fundamental liberty interest in parenting his child. Finding J.L. to be a CINC opens Father up to further intervention and potential liberty deprivations. To protect against undue deprivations, the State is required to prove the need for adjudication by clear and convincing evidence. It is uncertain that any portion of the default judgment statute can apply to proceedings held under the juvenile code. Further, Father was never told that a CINC adjudication would occur at the pretrial conference hearing. Even the State did not anticipate the finding and there were no witnesses available. Nothing about the default judgment advanced the State's interests or J.L.'s wellbeing; this was about the district court's annoyance. The default judgment is reversed and the case is remanded for further proceedings.

STATUTE: K.S.A. 2018 Supp. 38-2239, -2248(e), -2250, -2251(a), 60-255, -255(a)

GRIEVANCE—HABEAS CORPUS
PETERSON V. SCHNURR
RENO DISTRICT COURT—AFFIRMED
NO. 119,869—JULY 19, 2019

FACTS: Peterson is an inmate who subscribed to a newspaper. The correctional facility seized two issues of the paper, claiming that they had content which was a threat to the facility's safety. Peterson appealed the seizure and the decision was upheld by the Secretary of Corrections' designee. Peterson then filed an inmate grievance claiming he was subject to improper censorship. That grievance was denied. Peterson followed up by filing a K.S.A. 60-1501 petition, arguing that the Department of Corrections was not properly applying its own regulations regarding censorship. The district court denied the petition as untimely, and Peterson appealed.

ISSUE: (1) Timeliness of petition

HELD: Peterson's use of the facility grievance procedure was not part of his administrative remedies and did not toll the time in which to file his 60-1501 petition. Because the time limit was not tolled, the district court properly dismissed Peterson's petition as untimely.

STATUTES: K.S.A. 2017 Supp. 60-1501, -1501(b); K.S.A. 75-52,138

Tags:  8807  Johnson District  Reno District  Sedgwick District  Shawnee District 

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July 12, 2019 Digests

Posted By Administrator, Tuesday, July 16, 2019
Updated: Monday, July 15, 2019

Kansas Supreme Court

CIVIL

CHILDREN—JURISDICTION
IN RE A.A.-F.
GEARY DISTRICT COURT—AFFIRMED
Court of Appeals—AFFIRMED
NO. 117,368—July 12, 2019

FACTS: These proceedings involve five of Mother's six children. Two of the children were born in Kansas. All of the children were subject to child in need of care proceedings while living in California. After a fight with her husband, Mother brought the children to Kansas without telling anyone. The California court revoked the children's physical placement with Mother and ordered them returned to California. The children returned, and the California court began to inquire about a possible placement with the children's grandmother, who resides in Kansas. In June 2015, the California court cited the UCCJEA and transferred the case to Kansas. After several years working on reintegration, the State sought termination of Mother's parental rights. At a hearing, Mother argued that Kansas lacked jurisdiction. The district court overruled Mother's concerns about jurisdiction and, after hearing evidence, terminated her parental rights. In a divided opinion, the Court of Appeals held that the record did not show that UCCJEA jurisdiction properly passed from California to Kansas and found it was error for the district court to so find. But, it ruled that any error was harmless because there was home state jurisdiction in Kansas by the time the termination hearing occurred. Mother's petition for review was granted.

ISSUES: (1) Subject matter jurisdiction; (2) procedural due process rights

HELD:When the CINC proceedings began, California was the children's home state. The California order transferring the case to Kansas did not specify what provision of the UCCJEA is relied on when ceding jurisdiction. Unfortunately, there is nothing in the record on appeal to show exactly what happened in California. Nevertheless, the transfer order from California gave the Kansas court jurisdiction, and Kansas knew that California would not still be trying to make decisions in the case. Principles of comity apply to the California transfer order, even though it was not a final decision in this case. There was no abuse of discretion when Kansas accepted jurisdiction in this case, in accordance with the purposes of the UCCJEA. The failure to hold a hearing within 30 days did not violate Mother's due process rights.

STATUTES: K.S.A. 2018 Supp. 23-37,102(b), -37,110(a), -37,110(b), -37,110(d), -37,110(e), -37,201, -37,202, -37,202(a)(1), -37,202(a)(2), -37,207, -37,313, 38-2202(d), -2203; K.S.A. 20-301

HABEAS CORPUS
BREEDLOVE V. STATE
Sedgwick District Court—Affirmed in Part, Reversed in Part, Case remanded
Court of Appeals—AFFIRMED IN PART AND REVERSED IN PART
NO. 115,401—July 12, 2019

FACTS: Breedlove was convicted of felony murder in 1995. His conviction and sentence were reversed and he was retried, where he was again convicted of first-degree murder. That conviction and sentence was affirmed on direct appeal. Breedlove timely filed a K.S.A. 60-1507 motion which sat in district court for two years. Breedlove sent letters inquiring about the status of his motion. When those letters did not get a response, Breedlove attempted to file a motion for summary disposition. The district court refused to file the motion for summary disposition unless Breedlove paid a $195 filing fee. Breedlove eventually paid the fee. The district court, on multiple occasions, emailed the prosecutor's office requesting a response. After another email, the State responded, and the district court adopted the State's findings of fact and conclusions of law when denying Breedlove's motion. The Court of Appeals affirmed on all issues, including Breedlove's challenge to the imposition of the filing fee for the motion for summary disposition. Breedlove's petition for review was granted.

ISSUES: (1) Adoption of findings; (2) appointment of counsel; (3) ineffective assistance; (4) imposition of filing fee

HELD: There is no bright-line rule which prevents a district court from adopting in total a party's proposed findings of fact and conclusions of law. The statutory right to counsel is triggered only when the district court finds that a 60-1507 motion presents substantial questions of law or triable issues of fact. The district court was not required to appoint counsel for Breedlove. There is no evidence that any of Breedlove's attorneys were ineffective. Any argument made to the contrary is conclusory and without support in the record. Demanding a docketing fee in a case that was opened with a poverty affidavit is plain error. Breedlove should never have been charged, and the case is remanded so that he may be refunded.

CONCURRENCE: (Stegall, J.) There was no separation of powers violation because Breedlove failed to prove that the district court failed to conduct an independent review of the record. But prosecutors should never have judicial or quasi-judicial function.

STATUTES: K.S.A. 2015 Supp. 60-2008, -2008(a), -2008(b); K.S.A. 60-1507, -1507(b)

HABEAS CORPUS
DAWSON V. STATE
Sedgwick District Court—Affirmed
Court of Appeals—AFFIRMED
NO. 115,129—July 12, 2019

FACTS: Dawson was convicted of a child sex crime. His conviction was affirmed on appeal and after that, Dawson filed multiple K.S.A. 60-1507 motions. All of those motions were decided adversely and affirmed on appeal. In 2015, Dawson filed his fourth 60-1507 motion in which he argued ineffective assistance of counsel and prejudice due to the State's destruction of evidence that was potentially exculpatory. After Dawson filed the motion, the district court emailed the State and asked the State to respond to Dawson's motion. The State's response asked that the motion be denied as time-barred and successive. The district court agreed and denied the motion. That decision was affirmed on appeal by the Court of Appeals, which found no error in the district court's solicitation of a response from the State. The Supreme Court granted Dawson's petition for review.

ISSUES: (1) Solicitation of written response; (2) right to counsel; (3) timeliness of State's response to motion; (4) adequacy of forms; (5) right to an evidentiary hearing

HELD: A district court's review of a State's filed response to a 60-1507 motion, standing alone, does not create an indigent movant's right to counsel. Because the district court did not hold a hearing, Dawson did not have the right to counsel even if the response was solicited by the district court. A 60-1507 movant has only a statutory right to counsel. The court is not required to appoint counsel for an indigent movant while the merits of the motion are still being weighed. The 7-day response timeline of Rule 133(b) is not jurisdictional. Dawson's challenge to the adequacy of Judicial Council forms was not raised in any prior proceeding. In addition, Dawson shows no prejudice resulting from any alleged deficiency in the form. It was not error to find that Dawson failed to establish exceptional circumstances that would warrant a hearing on his 60-1507 motion.

STATUTE: K.S.A. 60-1507, -1507(f)(2)

HABEAS CORPUS
REQUENA V. STATE
BUTLER DISTRICT COURT—Court of Appeals IS AFFIRMED
DISTRICT COURT IS AFFIRMED
NO. 116,251—July 12, 2019

FACTS: Requena was convicted of rape in 1999. His conviction was affirmed on appeal. A few years later, Requena filed a K.S.A. 60-1507 motion, arguing the ineffective assistance of trial counsel. The motion was summarily dismissed and that decision was also affirmed on appeal. In 2014, Requena filed a second 60-1507 motion. He repeated his claim of ineffective assistance plus added new issues. The State filed a response and the district court summarily denied the motion, although the district court did not address Requena's claim that he could not be convicted because he was a sovereign citizen. The Court of Appeals affirmed; the opinion included a finding that Requena's sovereign citizen claim was meritless. The Supreme Court accepted Requena's petition for review.

ISSUES: (1) Consideration of written response; (2) Murdock claim

HELD: Considering a written response is not the same as holding a hearing. The right to have counsel appointed only attaches if a hearing is held. In this case, the district court had no obligation to appoint counsel for Requena and his due process rights were not violated. Because this 60-1507 motion was untimely, Requena had the burden to show that not giving him relief would result in manifest injustice. Requena's issues raise no substantial issues of law, and Murdock cannot apply because all of Requena's prior convictions occurred in Kansas.

STATUTES: K.S.A. 60-1507

HABEAS CORPUS
SHERWOOD V. STATE
Sedgwick District Court
Court of Appeals IS AFFIRMED
DISTRICT COURT IS AFFIRMED
NO. 115,899—July 12, 2019

FACTS: Sherwood was convicted of rape in 1997. His conviction was affirmed on direct appeal. More than 15 years after the mandate was issued, Sherwood filed a pro se K.S.A. 60-1507 motion alleging ineffective assistance of counsel and sentencing errors. The State responded, asking that the motion be denied as untimely. The district court summarily denied the motion, finding that not only was it time barred but also meritless. The Court of Appeals affirmed, and Sherwood's petition for review was granted.

ISSUES: (1) Appointment of counsel; (2) adequacy of form; (3) adequacy of findings; (4) merits of the claim

HELD: Considering the State's written response is not the same as a hearing. Counsel must be appointed for an indigent 60-1507 movant if a hearing is held, but the appointment of counsel is discretionary in the absence of a hearing. Sherwood's use of the Judicial Council form did not result in a due process violation or any prejudice. Sherwood appeared to know that he was required to prove manifest injustice. The district court's order, while concise, adequately conveyed the reasons for the denial of Sherwood's motion. The lower courts correctly found that Sherwood failed to show manifest injustice that would excuse the untimeliness of his claim. There is little evidence to support Sherwood's theory that he had a right to have appointed counsel file a writ of certiorari for him.

STATUTES: K.S.A. 60-1507

HABEAS CORPUS
STEWART V. STATE
Sedgwick District Court
Court of Appeals IS AFFIRMED
DISTRICT COURT IS AFFIRMED
NO. 115,149—July 12, 2019

FACTS: Stewart was convicted of aggravated robbery and his conviction was affirmed on appeal. He filed a timely K.S.A. 60-1507 motion which is the subject of this appeal. In that motion, he claimed ineffective assistance of counsel among other errors. Almost a year later, the State filed a response to the motion. It is unknown whether the district court asked the State to respond or whether the State responded of its own volition. The district court denied Stewart's motion, adopting the State's arguments and authorities as persuasive. Stewart appealed the denial to the Court of Appeals, arguing that it was a due process violation for the district court to consider the State's written response without appointing counsel for him. The Court of Appeals agreed that it was error for the district court to consider the State's response without appointing counsel. But it found that the error was harmless because Stewart's 60-1507 motion contained no valid claims. The Supreme Court accepted Stewart's petition for review on the lack of error and the State's cross-petition on whether Stewart was due counsel before the State's written response could be considered.

ISSUES: (1) Appointment of counsel; (2) substantive claims

HELD: There is a statutory right to counsel in a 60-1507 proceeding. In the district court, that right exists only when a motion presents substantial questions of law or triable issues of fact. The right to counsel does not exist if there is merely a potential substantial issue that would trigger the statutory right to counsel. The district court may, but is not required, to appoint counsel for an indigent 60-1507 movant while the merits of the motion are still being decided. A movant is entitled to counsel if the district court holds a hearing at which the State will be represented. But that right does not extend to the district court's consideration of a written response to a motion. There is no evidence that counsel's performance was deficient. Nothing else in the motion warranted an evidentiary hearing, and the district court properly denied the motion without a hearing.

STATUTE: K.S.A. 22-4506, -4506(b), 60-1507, -1507(b)

HABEAS CORPUS
THUKO V. STATE
Sedgwick District Court—AFFIRMED
Court of Appeals—AFFIRMED

NO. 115,662 —July 12, 2019

FACTS: Thuko was convicted of sex charges in 2004. His convictions were affirmed on direct appeal. Thuko filed one K.S.A. 60-1507 motion in 2008, which was ultimately denied. Thuko filed a second 60-1507 motion in 2014. After some months passed, the district court solicited a response from the State. After the response was filed, the district court summarily denied Thuko's motion, finding that it was both untimely and successive and failing to find any manifest injustice that would allow for a successive motion. The Court of Appeals affirmed, and Thuko's petition for review was granted.

ISSUES: (1) Right to counsel; (2) right to a hearing

HELD:A 60-1507 movant has a statutory right to counsel that attaches only if the district court finds substantial questions of law or triable issues of fact. The district court is not required to appoint counsel while it is evaluating the merits of the motion, although it must appoint counsel if a hearing is held at which the State is represented. A written response to the motion is not a hearing, and no right to counsel attaches. Thuko did not prove the existence of either manifest injustice or exceptional circumstances to excuse his untimely and successive 60-1507 motion. For these reasons, his motion was properly summarily denied.

STATUTE: K.S.A. 60-1507, -1507(c), -1507(f)(1)

criminal

constitutional law—criminal procedure—motions—
postconviction remedies—sentences—statutes
state v. dawson
Sedgwick District Court—affirmed
Court of Appeals—affirmed
NO. 116,530—July 12, 2019

FACTS: Relying on State v. McAlister, 54 Kan.App.2d 65 (2017)(McAlister I), Dawson filed 2015 motion alleging his 1997 sentence was illegal because his pre-Kansas Sentencing Guidelines Act burglary conviction should have been classified as a nonperson crime District court summarily denied the motion as procedurally barred. Applying State v. Dickey, 305 Kan. 217 (2016)(Dickey II), Court of Appeals affirmed. 55 Kan.App.2d 109 (2017). Dawson’s petition for review granted.

ISSUE: (1) Motion to correct an illegal sentence—legality of the sentence

HELD: See State v. McAlister, __ Kan. __ (2019)(this day decided), reversing holding in McAlister I. Pursuant to State v. Murdock, 309 Kan. 585 (2019)(Murdock II), the point in time to assess a sentence’s legality for purposes of a K.S.A. 22-3504(1) motion to correct an illegal sentence is the moment the sentence was pronounced. If a sentence was legal when pronounced, subsequent changes in the law will not render it illegal and amenable to correction under K.S.A. 22-3504(1). The rule in Dickey I and Dickey II derived directly from Apprendi v. New Jersey, 530 U.S. 466 (2000), a change in the law after Dawson’s sentence became final. Pursuant to Murdock II, Dawson cannot avail himself of that subsequent change in the law. District court’s denial of the motion to correct an illegal sentence is affirmed.

STATUTES: K.S.A. 2017 Supp. 22-3504(3); K.S.A. 22-3504, -3504(1), 60-1507

constitutional law—criminal procedure—motions—
postconviction remedies—sentences—STATUTES
State v. Laughlin
Sedgwick District Court—Affirmed
NO. 117,156—July 12, 2019

FACTS: More than ten years after his felony-murder conviction, Laughlin filed pro se motions to correct an illegal sentence and to withdraw his plea. District court summarily denied the motions. On appeal Laughlin argued the district court erred by considering the State’s written responses to his motions without appointing counsel to represent him, and claimed his sentence is illegal because his convictions are multiplicitous.

ISSUES: (1) Due process right to appointment of counsel; (2) summary denial of motion to correct an illegal sentence

HELD: State v. Redding, __ Kan. __ (2019)(this day decided), affirmed treating K.S.A. 22-3504 motions like K.S.A. 60-1507 motions when determining whether appointment of counsel is required, held that due process of law requires appointment of counsel at a hearing on a K.S.A. 22-3504 motion where the State is represented by counsel unless the defendant waives that right, and determined that a district court’s consideration of State’s response to a K.S.A. 22-3504 motion is not the equivalent of a hearing. Taken together, State v. Jackson, 255 Kan. 455 (1994), and State v. Hemphill, 296 Kan. 583 (2008), confirm that post-sentence plea withdrawal motions are treated like K.S.A. 60-1507 motions for purposes of determining whether the right to counsel was triggered. Thus rules announced in State v. Stewart, __ Kan. __ (2019)(this day decided) apply. Laughlin’s statutory right to counsel was not triggered for either motion because district court did not find a substantial issue of law or triable issue of fact. Moreover, district did not conduct a hearing on either motion, and its consideration of State’s written response did not equate to one.

Summary denial of the motion was appropriate because mulitplicity challenges fall outside the scope of a motion to correct an illegal sentence.

STATUTES: K.S.A. 2018 Supp. 22-3210(d)(2), -3210(e)(2), -3504(1), -3601(b)(3); K.S.A. 22-3504, 60-1507

constitutional law—criminal procedure—motions—
postconviction remedies—sentences—statutes
state v. mcalister
finney district court—affirmed and case remanded
Court of Appeals—reversed
NO. 115,887—July 12, 2019

FACTS: McAlister filed 2015 motions alleging his 1996 sentences were illegal in light of State v. Dickey, 301 Kan. 1018 (2015)(Dickey I), because his pre-Kansas Sentencing Guidelines Act burglary convictions should have been classified as nonperson felonies. District court summarily denied the motions as procedurally barred. Applying State v. Dickey, 305 Kan. 217 (2016)(Dickey II), Court of Appeals reversed. 54 Kan. App. 2d 65 (2017). State’s petition for review granted.

ISSUE: (1) Motion to correct an illegal sentence - legality of the sentence

HELD: McAlister’s sentences were final for purposes of post-conviction relief in February 1999, prior to Apprendi v. New Jersey, 530 U.S. 466 (2000), which founded holdings in Dickey I and Dickey II. Pursuant to State v. Murdock, 309 Kan. 585 (2019)(Murdock II), this subsequent change in the law cannot transform a legally imposed sentence into an illegal sentence. McAlister’s sentences were legal when imposed and remained so at the time his direct appeal became final. Subsequent changes in the law did not render his sentences illegal for purposes of a K.S.A. 22-3504(1) motion to correct an illegal sentence. Court of Appeals reversal of the district court is reversed and case is remanded with directions to reinstate McAlister’s original lawful sentences.

STATUTES: K.S.A. 2018 Supp. 21-5807(a)(1), -5807(c)(1)(A), -6811; K.S.A. 1999 Supp. 21-3715; K.S.A. 21-4701 et seq., 22-3504, -3504(1)

constitutional law—criminal procedure—motions—
postconviction remedies—sentences—statutes
state v. redding
rice district court—affirmed
Court of Appeals—affirmed
NO. 115,037—July 12, 2019

FACTS: Redding entered no contest plea to rape and aggravated indecent liberties of underage girls. Jessica’s Law sentence imposed for each count, with departure to the jointly recommended total sentence of 210 months. More than two years later he filed pro se motion to correct an illegal sentence. District court denied the motion after reviewing State’s response. Redding appealed claiming: (1) his pro se motion should have been liberally construed as a K.S.A. 60-1507 motion; (2) his due process rights were violated when district court requested a response from the State before summarily denying the motion without appointment of counsel; and (3) his sentence was illegal because district court did not consider his written allocution as a second motion to further depart from the grid-box numbers. Court of Appeals affirmed in unpublished opinion. Redding’s petition for review granted.

ISSUES: (1) Liberally construing the motion; (2) due process right to appointed counsel; (3) summary denial of motion to correct an illegal sentence

HELD: Under facts in this case, including form and content of Redding’s motion, district court did not err in construing the motion as one filed under K.S.A. 22-3504 seeking to correct an illegal sentence.

Appellate courts treat motions under K.S.A. 22-3504 like motions under K.S.A. 60-1507 motions for purposes of determining whether a hearing and appointment of counsel are required. If district court conducts a hearing to determine whether a K.S.A. 22-3504 motion presents substantial questions of law or triable issues of fact, a movant’s due process right to appointed counsel is implicated. But a district court’s review of State’s response to the motion, standing alone, is not the equivalent of a hearing and does not trigger the movant’s due process right to counsel. See State v. Stewart, __ Kan. __ (2019)(this day decided).

When district court accepts the recommendation of a plea agreement to depart from an off-grid Jessica’s Law hard-25 life sentence to a specific on-grid sentence, the court’s failure to consider a second departure to an even shorter sentence does not render the agreed-upon sentence illegal. Here, district court properly considered Redding’s initial departure motion as a request to depart from hard 25 Jessica’s law sentence to an on-grid sentence, followed statutory procedures for doing so, and was under no obligation to consider any further departures that were obliquely referenced in allocution.

STATUTES: K.S.A. 2018 Supp. 22-3504(1); K.S.A. 21-3502(a)(2), -3504(a)(3)(A), 22-3504, -4506(b), 60-1507, -1507(b), -1507(f)

constitutional law—criminal procedure—
motions—postconviction remedies
state v. roberts
Sedgwick District Court—affirmed;
Court of Appeals—affirmed
NO. 114,726—July 12, 2019

FACTS: In consolidated appeal, Roberts contends: (1) district court’s summary denial of the K.S.A. 60-1507 motion without appointment of counsel after receiving State’s written response to the pro se motion failed to follow protocol established in Lujan v. State, 270 Kan. 163 (2000), and thereby violated his due process rights; and (2) district court erred by denying Roberts’ request for an evidentiary hearing on the 60-1507 motion, finding the motion was untimely and successive. Court of Appeals affirmed in unpublished opinion. Review granted.

ISSUES: (1) Due process right to appointed counsel; (2) summary denial of K.S.A. 60-1507 motion

HELD: Stewart v. State, __ Kan. __ (2019)(this day decided), clarified that the Lujan protocol does not require appointment of counsel when the district court discerns a potentially substantial issue, albeit the court has discretion to do so. District court may, but is not required to, appoint an indigent K.S.A. 60-1507 movant an attorney during the period the court is making its determination of whether the motion, files, and records present a substantial question of law or triable issue of fact. Here, district court was not statutorily required to appoint counsel, as it determined the motion, files, and records of the case presented no substantial question of law or triable issue of fact. And district court did not conduct a hearing at which the State was represented by counsel, so as to trigger Roberts’ due process right to appointed counsel.

Roberts’ request for remand to attempt to make case to district court for exceptions to the procedural bars to his untimely and successive K.S.A. 60-1507 motion, in leu of establishing the existence of the exceptions on appeal, is denied.

STATUTE: K.S.A. 22-3402, -4506(b), 60-1507, -1507(c), -1507(f), -1507(f)(2)

constitutional law—criminal procedure—motions—
postconviction remedies—sentencing—statute
state v. tauer
Sedgwick District Court—affirmed
Court of Appeals—affirmed
NO. 114,432—July 12, 2019

FACTS: Some 20 years after his conviction and sentence became final in 1996, Tauer filed motion citing State v. Dickey, 301 Kan. 1018 (2015 (Dickey I), and State v. Dickey, 305 Kan. 217 (2016)(Dickey II), and claiming his prior New Mexico juvenile conviction should have been classified as a nonperson felony in sentencing. Court of Appeals affirmed in unpublished opinion. Review granted due to conflicting panel opinions.

ISSUE: (1) Motion to correct illegal sentence

HELD: Issue in this case is whether Tauer’s sentence is illegal, not the date he filed his motion under K.S.A. 22-3504(1). Pursuant to State v. Murdock, 309 Kan. 585 (2019)(Murdock II), the point in time to assess a sentence’s legality for purposes of a K.S.A. 22-3504(1) motion to correct an illegal sentence is the moment the sentence was pronounced. If a sentence was legal when pronounced, subsequent changes in the law will not render it illegal and amenable to correction under K.S.A. 22-3504(1). The rule in Dickey I and Dickey II derived directly from Apprendi v. New Jersey, 530 U.S. 466 (2000), a change in the law after Tauer’s sentence became final. Pursuant to Murdock II, Tauer cannot avail himself of that subsequent change in the law. District court’s denial of the motion to correct an illegal sentence is affirmed.

STATUTE: K.S.A. 22-3504(1)

Kansas Court of Appeals

CIVIL

SERVICE OF PROCESS—STATUTORY CONSTRUCTION
COASTAL CREDIT, LLC V. MCNAIR
RILEY DISTRICT COURT—REVERSED AND REMANDED
NO. 119,798—July 12, 2019

FACTS: McNair borrowed money from Coastal Credit so that he could buy a car. After McNair defaulted, Coastal Credit repossessed the car and sold it. There was a deficiency, though, so Coastal Credit filed a limited action lawsuit against McNair seeking the remaining balance, plus interest. At the time the lawsuit was filed, McNair was deployed with the United States Army to an overseas location. His wife and children lived in off-base housing. A process server attempted to serve McNair by serving a copy at McNair's "usual place of abode" with his wife. McNair did not answer the suit or appear. Eventually, the district court granted default judgment to Coastal Credit. After noticing that his wages were being garnished, McNair moved to set aside the default judgment on grounds that service was improper. At a hearing, McNair's wife disputed that she ever received service at the apartment. The district court denied the motion to set aside and McNair appealed.

ISSUE: (1) Adequacy of service

HELD: McNair's only argument on appeal is that the judgment was void for lack of legal service of process. Although it is undisputed that McNair's family lived in Manhattan, the relevant question is the location of McNair's place of abode. The term "usual place of abode", as used in the statute, is not the same as a person's domicile. At the time process was served, McNair's usual place of abode was at his Army deployment in Africa. McNair was never properly served, and the default judgment must be set aside.

STATUTE: K.S.A. 2018 Supp. 60-260(b)(4), -260(c), 61-3301(c), -3301(d), -3003(d)(1), 77-201 Twenty-fourth

NEUTRAL RISK—WORKERS COMPENSATION
JOHNSON V. STORMONT VAIL HEALTHCARE
WORKERS COMPENSATION BOARD—AFFIRMED
NO. 120,056—July 12, 2019

FACTS: Johnson worked as a housekeeper at Stormont Vail Hospital. In 2015, while working, Johnson tripped and fell. The resulting injury to her knee required rehabilitation and physical therapy, and kept her off work for three months. Six months later Johnson fell again. As before, she did not know what caused the fall. She broke her wrist and was again off work for an extended period. Johnson sought workers compensation benefits and an administrative law judge awarded compensation for both falls. Stormont Vail sought review from the Workers Compensation Appeals Board, arguing that Johnson's falls stemmed from neutral risks and did not arise out of and in the course of her employment. The Board disagreed, and Stormont Vail appealed.

ISSUES: (1) Causation beyond neutral risk; (2) burden of proof

HELD: The Board correctly found that walking was part of Johnson's work duties. She was working, and walking, when she fell. Both falls involved neutral risk with a particular employment character, and as such, her injuries are compensable. Johnson was not required to prove that her injuries did not result from a neutral risk. Once the Board found that Johnson met her statutory burden, the burden shifted to Stormont Vail to support its claim that there was no particular employment character tied to Johnson's activity during the falls.

STATUTE: K.S.A. 2018 Supp. 44-501b(c), -508(f)(3)(A), -508(f)(3)(A)(ii), -508(h), 77-201

Tags:  8807  burden of proof  causation  Finney District  neutral risk  Rice District  Riley District  Sedgwick District  Workers Compensation  Workers Compensation Board 

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July 5, 2019 Digest

Posted By Administration, Monday, July 8, 2019

Kansas Court of Appeals

criminal

constitutional law—criminal law—fourth amendment—
probation—sentences—statutes
state v. hinnenkamp
sedgwick district court—affirmed
No. 119,125—july 5, 2019

FACTS: District court ordered Hinnenkamp to submit to random drug and alcohol testing as a condition of probation for her aggravated escape from custody conviction. Hinnenkamp appealed, arguing K.S.A. 2018 Supp. 21-6607(c)(6), which requires district courts to impose random drug and alcohol testing as a condition of probation, violates her federal and state constitutional right against unlawful search and seizure. State responds on merits of this argument, and also claims this issue is improperly raised for first time on appeal, jurisdiction is lacking because the issue is not ripe for consideration, and Hinnenkamp waived the issue by inadequate briefing.

ISSUES: (1) Threshold issues—preservation, ripeness, waiver; (2) constitutionality of K.S.A. 2018 Supp. 21-6607(c)(6)

HELD: Hinnenkamp is asserting her constitutional claim for first time on appeal, but her facial challenge to the constitutionality of the statute is considered. Her facial challenge to the statute is ripe for appeal, and she has not waived or abandoned her constitutional claim based on inadequate briefing.

K.S.A. 2018 Supp. 21-6607(c)(6), which subjects probationers to suspicionless drug and alcohol testing, does not, on its face, violate the Fourth Amendment of U.S. Constitution or §15 of Kansas Bill of Rights. This mandatory statutory condition of probation is exempt from Fourth Amendment’s general warrant requirement because (1) special needs of the probation system make the warrant and probable cause requirement impracticable, and (2) the primary purpose of random drug and alcohol testing for probationers is distinguishable from State’s general interest in crime control. Weighing a probationer’s diminished expectation of privacy against State’s interest in promoting rehabilitation and probation compliance, and considering the efficacy of random suspicionless drug and alcohol testing, it is reasonable to permit a court services officer or community correctional services officer to order a probationer to submit to random drug and alcohol testing, even without any suspicion of wrongdoing. Two recent unpublished Court of Appeals opinions upholding the constitutionality of K.S.A. 2018 Supp. 21-6607(c)(6) in similar cases are cited and reviewed.

STATUTES: K.S.A. 2018 Supp. 21-6607(c)(5), -6607(c)(6), 22-3717(k)(2); K.S.A. 2014 Supp. 8-1025

Tags:  8807  Constitutional Law  Fourth Amendment  Probation  Sedgwick District 

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