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September 14, 2018 Digests

Posted By Administration, Monday, September 17, 2018

Kansas Court of Appeals

Civil

DIVORCE — STATUTORY CONSTRUCTION
IN RE MARRIAGE OF GERLEMAN
DOUGLAS DISTRICT COURT – REVERSED AND REMANDED
NO. 118,457 – SEPTEMBER 14, 2018

FACTS: After a contentious divorce, the district court entered judgment against Robert Gerleman for back spousal maintenance owed to Jeannette, as well as judgment on Robert's previous agreement to pay Jeannette a portion of his military retirement pay. In an effort to collect past-due amounts, the district court issued orders of garnishment to Robert's employer. Robert's father was diagnosed with brain cancer in 2017, and Robert took off more than two weeks from work in order to assist his father during surgery and treatment. Citing K.S.A. 60-2310(c), Robert asked that the garnishment be released because of the illness and his inability to work. The district court refused to issue the release, and Robert appealed.

ISSUE: (1) Interpretation of K.S.A. 60-2310(c)

HELD: K.S.A. 60-2310(c) allows for a release of garnishment if the debtor is prevented from working for more than two weeks because of illness of the debtor or any family member of the debtor. Under the plain meaning of the statute, Robert's father is "any member" of Robert's family. There is no requirement in the statute that the family member be an immediate family member residing with the debtor. The affidavit submitted by Robert was sufficient to prove that he missed work for more than two weeks while caring for his father. The district court's decision is reversed, and the case is remanded for a factual determination about when the garnishment could resume.

STATUTES: K.S.A. 2017 Supp. 17-2205(a)(4)(A), 60-2310(c)

criminal

criminal procedure — motions — sentences — statutes
State v. Smith
Sedgwick District Court – sentence vacated, case remanded
No. 118,042 — September 14, 2018

FACTS: Smith convicted in 2006 of aggravated kidnapping. In 2014 he filed a K.S.A. 22-3504 motion to correct an illegal sentence, challenging the sentencing court’s criminal history scoring of a South Carolina burglary conviction as a personal felony in Smith’s criminal history. District court denied the motion and Smith appealed. In unpublished opinion the Court of Appeals vacated Smith’s sentence and remanded for resentencing. On remand, district court again found the South Carolina conviction to be a person felony, and denied Smith’s motion. Smith appealed. Issue before the panel centers on whether the holding in State v. Wetrich, 307 Kan. 552 (2018), was a change in the law that occurred after Smith was sentenced. State argued it was, and through retroactive application of the 2017 amendment to K.S.A. 22-3504, Smith’s sentence was not an illegal sentence.

ISSUE: (1) Sentencing and (2) Classification of an Out of State Conviction

HELD: Kansas Supreme Court’s decision in Wetrich was not a change in the law within the meaning of the 2017 amendment to the definition of an illegal sentence in K.S.A. 2017 Supp. 22-3504(3).  Instead, the decision reinterpreted the meaning of the term “comparable offenses” within the Kansas Sentencing Guidelines Act. No final decision on whether the 2017 amendment to K.S.A. 22-3504 can apply retroactively in Smith’s case, but panel rejects State’s claim that that 2017 amendment defining an illegal sentence is jurisdictional. Here, the South Carolina burglary statute that Smith was convicted under is not identical to or narrower than the Kansas burglary statute in effect when Smith committed his current crime of conviction, thus based on holding in Wetrich, Smith’s prior South Carolina burglary cannot be scored as person felony for criminal history purposes. Sentence is vacated and case is remanded for resentencing to classify the South Carolina burglary as a nonperson felony.

STATUTES: K.S.A. 2017 Supp. 21-6810(a), -6811(d), -6811(e), -6811(e)(3), 22-3504(1), -3504(3); K.S.A. 1993 Supp. 21-4711(e); K.S.A. 21-3110(7), -3715, -4711(e), 22-3504, 60-1507(f)

Tags:  divorce  Douglas District  motions  Sedgwick District  statutory construction 

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September 5 and September 7, 2018 Digests

Posted By Administration, Monday, September 10, 2018

Kansas Supreme Court

ATTORNEY DISCIPLINE

ORDER OF REINSTATEMENT
IN THE MATTER OF LYLE LOUIS ODO
NO. 114,863 – SEPTEMBER 5, 2018

FACTS: Odo's license to practice law in Kansas was suspended for one year in July 2016. In July 2017, Odo filed a petition for reinstatement. After a hearing, the Kansas Board for Discipline of Attorneys recommended that the petition for reinstatement be granted. After careful consideration, the court accepted the panel's findings and grants the petition for reinstatement.

CIVIL

CONTRACTS—PHYSICIANS
CENTRAL KANSAS MEDICAL CENTER V. HATESOHL
BARTON DISTRICT COURT—AFFIRMED
COURT OF APPEALS—REVERSED
NO. 113,675—SEPTEMBER 7, 2018

FACTS: Central Kansas Medical Center is a nonprofit corporation which is licensed to operate an ambulatory surgical center. CKMC contracted with Dr. Hatesohl to provide family medicine services. The contract contained a postemployment clause which prevented Dr. Hatesohl from practicing medicine within a 50-mile radius of CKMC. Although he was dissatisfied with the way that the family practice merged with an urgent care facility, Dr. Hatesohl worked the full term of his contract. When he left, CKMC let him know that it would enforce all post-employment covenants. Dr. Hatesohl responded that he believed his employment contract was void because it violated the prohibition against the corporate practice of medicine doctrine. The day after his contract expired, Dr. Hatesohl entered a new contract with Great Bend Regional Hospital to practice family medicine. CKMC sought injunctive relief and damages alleging breach of contract. Dr. Hatesohl countered with a claim that CKMC's ambulatory surgical center license did not cover family medicine. The district court agreed and granted Dr. Hatesohl's motion for summary judgment, finding his employment contract was illegal.  The court of appeals reversed and the petition for review was granted.

ISSUE: (1) Validity of employment contract

HELD: The practice of medicine is limited to licensed persons, not corporations. But a corporation which is licensed by the State may employ a physician to provide medical services, with the caveat that the physician may not practice medicine that the corporation is not licensed to provide. Since CKMC only held an ambulatory surgical center license, its power to provide family medicine services through Dr. Hatesohl had to flow from that license. It did not. An ambulatory surgical center license is not broad enough to encompass a family practice. Because Dr. Hatesohl was hired to practice medicine that CKMC was not licensed to perform, his employment contract violated the corporate practice of medicine doctrine and was void.

CONCURRENCE (Stegall, J.): The corporate practice of medicine doctrine should be abandoned because it is a judicial intrusion in to the legislative arena and was created to aid special interest groups. The decision of the majority is correct because the court was not asked to overturn the doctrine and stare decisis compels this decision.

STATUTES: K.S.A. 2017 Supp. 17-2707(b)(9), 40-3401(f), 60-256(c)(2), 65-2803(a); K.S.A. 17-2709(a), 48-1603(o), -1607(a), 65-425(a), -425(b), -425(e), -425(f), -425(h), -427, -431(a), -431(c)

 

INSURANCE—STARE DECISIS
MCCULLOUGH V. WILSON
WYANDOTTE DISTRICT COURT — AFFIRMED
COURT OF APPEALS — AFFIRMED
NO. 115,067—SEPTEMBER 7, 2018

FACTS: Wilson was driving excessively fast when he collided with the back of car carrying McCullough and his passenger, Risley. McCullough and Risley filed a lawsuit against Wilson, seeking monetary damages for lost wages, pain and suffering, and medical expenses. Risley's medical expenses were paid by the PIP coverage provided by his AAA insurance. But AAA never requested reimbursement from Wilson's insurance company. After a jury decided in Risley's favor, Wilson sought to overturn part of the verdict on grounds that Risley's cause of action passed to AAA and that only AAA could recover damages for Risley's medical expenses. The district court denied the motion and the Court of Appeals affirmed. Wilson's petition for review was granted.

ISSUES: (1) Assignment of subrogation rights

HELD: The doctrine of stare decisis suggests that the district court's decision should be affirmed. Especially in cases involving contracts, reliance on prior precedent is important. Because there is no reason to depart from prior holdings, Risley is entitled to the entire verdict awarded by the jury, including the portion covering medical expenses.

STATUTE: K.S.A. 40-3103, -3113a, -3113a(c)

criminal

probation—sentences—statutes
State v. Clapp
reno district court—reversed and remanded
court of appeals—reversed
No. 112,842—September 7, 2018

FACTS: Clapp was sentenced to a 118-month prison term and granted a downward dispositional departure to 36 months probation with a 60-day jail sanction to be suspended when inpatient drug treatment had been arranged. State filed its first motion to revoke in January 2014. District court revoked probation and imposed a180-day prison sanction. State filed a second motion to revoke in August 2014. District court revoked probation and imposed the underlying sentence, specifically stating he did not feel Clapp valued Community Corrections as a way to help change how Clapp thought and lived his life. District court agreed that Clapp had not committed a new crime, had not absconded, had a job, and was still in treatment, but commented on the convictions leading to Clapp’s probation, his criminal history, and his dishonesty with his intensive supervision officer. Clapp appealed, claiming in part the district court failed to make the statutory findings required by K.S.A. 2014 Supp. 22-3716(c)(9) to bypass the statutory intermediate sanctions for parole violators. Court of appeals affirmed in an unpublished opinion, finding in part that K.S.A. 2014 Supp. 22-3716 does not require district court to make statutory findings to bypass intermediate sanctions when a violator has already served a 180-day intermediate sanction, and that, even if required in this case, the district court implicitly satisfied the particularity requirement to revoke based upon public safety. Clapp’s petition for review was granted.

ISSUE: Probation violation sanctions under 2013 and 2014 Versions of K.S.A. 22-3716

HELD: District court’s revocation of Clapp’s probation under subsection (c)(1)(E) for a second probation violation did not conform to the graduated sanctioning scheme in the 2013 and 2014 versions of K.S.A. 22-3716. For a second violation, the district court could have utilized the prison sanction of 120- or 180-days under subsections (c)(1)(C)-(D). Imposition of the underlying sentence on a probation violator was not authorized under subsection (c)(1)(E) because no previous jail sanction pursuant to K.S.A. 2014 Supp. 22-3716(b)(4)(A)-(B) or K.S.A. 2014 Supp. 22-3716(c)(1)(B) had been imposed, notwithstanding the 60-day jail term in the original sentence or the district court’s error in imposing a 180-day sanction for Clapp’s first violation. Nor did the district court set forth the particularized reasons required by K.S.A. Supp. 22-3716(c)(9) to bypass the graduated intermediate sanctions. Instead, district court’s remarks were akin to historical reasoning for revoking probation prior to the 2013 amendment to K.S.A. 22-3716. Reversed and remanded for a new dispositional hearing to comply with K.S.A. 2014 Supp. 22-3716.

STATUTES: K.S.A. 2014 Supp. 22-3716, -3716(b), -3716(b)(4)(A)-(B), -3716(c)(1)(A)-(E), -3716(c)(8), -3716(c)(9), -3716(c)(12); K.S.A. 2013 Supp. 22-3716(c)(1)(D)-(E), -3716(c)(8), -3716(c)(9); and K.S.A. 22-3504(1)

Tags:  Attorney Discipline  Barton District  probation  Reno District  sentencing  statutes  Wyandotte District 

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August 31, 2018 Digests

Posted By Administration, Tuesday, September 4, 2018
Updated: Tuesday, September 4, 2018

Kansas Supreme Court

Criminal

criminal law—criminal procedure–probation—sentencing—statutes
State v. Sandoval
Sedgwick district court—affirmed
court of appeals—affirmed
No. 113,299—august 31, 2018

FACTS: Sandoval was convicted in 2011 of aggravated indecent solicitation. Probation was ordered with an underlying 34 month prison term and 24 month postrelease supervision. Probation revoked in 2012. District judge denied defense request for modification, and ordered service of the original underlying sentence. Later recognizing the 24-month postrelease supervision did not comply with the sentencing statute at the time of Sandoval’s crime, State filed K.S.A. 22-3504 motion seeking substitution of lifetime postrelease supervision. District judge granted the motion. Sandoval appealed, arguing the district judge was empowered by K.S.A. 2017 Supp. 22-3716(b)(3)(B)(iii) to impose a lesser sentence than the lifetime term required at the original sentence, thus no illegality existed in the postrevocation sentence. Court of appeals affirmed in unpublished opinion. Sandoval’s petition for review granted.

ISSUE: Sentencing after probation revocation

HELD: After revoking probation, a district judge may choose to sentence anew, even if some component of the original sentence was illegal because it failed to match a mandatory statutory minimum. In the alternative, a judge may simply require the defendant to serve the original sentence. If a new sentence is pronounced from the bench after probation revocation, any original illegality no longer exists, and the new sentence is not subject to challenge or correction under K.S.A. 22-3504. If the judge instead requires the defendant to serve the original sentence, any original illegality continues to exist and is subject to challenge or correction under K.S.A. 22-3504(1). Here, no new sentence was imposed. The judge who revoked Sandoval’s probation explicitly declined to modify the original sentence and required Sandoval to serve it. This left an illegal postrelease term in place and open to correction. State v. McKnight, 292 Kan. 776 (2011), is factually distinguished.

CONCURRENCE (Beier, J.)(joined by Nuss, C.J., and Biles, J.): Write separately to reinforce majority’s decision with alternative and more broadly applicable plain language rationale. K.S.A. 2017 Supp. 22-3716(b)(3)(B), read as a whole including introductory “[e]xcept as otherwise provided,” has additional benefit of harmonizing the statute with the explicit purpose of the Kansas Sentencing Guidelines Act: uniformity. 

DISSENT (Johnson, J.)(joined by Rosen, J.): A judge pronouncing sentence after probation revocation inevitably sentences anew, and any illegality in the original sentence no longer exists. While judge in this case did not appreciate at time of revocation the error in the postrelease supervision term in the original sentence, when he refused to modify that term, he effectively reduced it. This reduction was legal and could not be modified through a motion under K.S.A. 22-3504.  Facts in this case are not meaningfully different from McKnight. Would vacate the lifetime postrelease supervision component of the sentence and remand for journal entry substituting a term of 24 months. 

STATUTES: K.S.A. 2017 Supp. 22-3504(3), -3716)(b)(3)(B)(iii); K.S.A. 21-6806(c), 22-2201(3), -3504, -3504(1), -3716, -3716(b), -3717(d)(1)(B), -3717(d)(1)(G), -3717(d)(2)(G)

 

criminal law—criminal procedure—probation—sentencing—statutes
state v. roth
finney district court—reversed and remanded
court of appeals—affirmed
No. 113,753—august 31, 2018

FACTS: Roth was convicted of aggravated sexual battery and two counts of aggravated burglary. Sixty months of probation ordered with underlying prison term totaling 102 months and 24 month postrelease supervision. When probation was revoked in 2010, district judge modified the prison term to run the three sentences concurrently instead of consecutively, with the 24-month postrelease supervision period. In 2014, State filed motion to correct an illegal sentence, seeking the mandatory lifetime postrelease supervision for Roth’s crime. Roth argued the postrelease supervision component of the postrevocation sentence was a legal “lesser sentence” under K.S.A. 2017 Supp. 22-3716(b)(3)(B)(iii). District judge ruled the 24-month postrelease term was illegal and ordered lifetime postrelease supervision. Roth appealed. Count of appeals affirmed in unpublished opinion. Roth’s petition for review granted. 

ISSUE: Sentencing after probation revocation

HELD: As in Sandoval (decided this same date), Roth’s appeal addresses limits of a district judge’s sentencing power after probation revocation. Here, the judge who revoked probation chose to give Roth a “lesser sentence” as expressly permitted by K.S.A. 2017 Supp. 22-3716(b)(3)(B)(iii), and this new sentence was not subject to challenge or correction under K.S.A. 22-3504. Court of appeals is reversed. Lifetime postrelease supervision component of Roth’s sentence is vacated and case is remanded for journal entry modifying the sentence to substitute a term of 24 months of postrelease supervision. 

CONCURRENCE (Johnson, J.)(joined by Rosen, J.): Concurs for same reasons set out in his dissent in Sandoval.

DISSENT (Beier, J.)(joined by Nuss, C.J., and Biles, J.): Dissents for reasons set out in her concurrence in Sandoval.

STATUTES: K.S.A. 2017 Supp. 22-3716(b)(3)(B), -3716(b)(3)(B)(iii); K.S.A. 2010 Supp. 22-3717(d)(1)(G), -3717(d)(2)(I); K.S.A. 21-3518(a)(1), -3716, 22-3504, -3504(1)

Tags:  Concurrence  Dissent  Finney District  Sedgwick District 

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August 21 and 24, 2018 Digests

Posted By Administration, Monday, August 27, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF DAVID BEN MANDELBAUM
NO. 13,026—AUGUST 21, 2018

FACTS: Mandelbaum has been accused of violating Kansas Rule of Professional Conduct 8.4(b) pleading guilty to a felony count of attempting to evade or defeat tax. On the day of his plea, Mandelbaum voluntarily surrendered his license to practice law in Kansas. The court accepted his surrender and he is disbarred.

Civil

CONTRACT INTERPRETATION
TREAR V. CHAMBERLAIN
LYON DISTRICT COURT—
REVERSED—CASE REMANDED
COURT OF APPEALS IS AFFIRMED

NO. 115,819—AUGUST 24, 2018
 

FACTS: Trear purchased land from Chamberlain in 1986. The sale contract included a preemptive provision covering an adjoining tract of land; the provision gave Trear the right of first refusal should Chamberlain wish to sell the parcel. In 2013, Chamberlain offered the parcel to Trear for $289,000. The offer stated that it would expire after eight days and that silence would be deemed as a refusal to purchase. Trear did not respond, and Chamberlain listed the parcel for $295,000. The property did not sell; a year later, Chamberlain sold part of the parcel to her daughter for $91,124. At that time, Trear sued, claiming that she violated his right of first refusal. As a remedy, he asked to be able to purchase the land from the daughter for the price that she paid. The district court ruled that the right of first refusal clause violated the rule against perpetuities and was unenforceable. It also held that the clause did not violate the statute of frauds and that Chamberlain did not comply with the provision requiring right of first refusal to Trear. Trear appealed the dispositive rule against perpetuities decision. Chamberlain cross-appealed arguing that she was entitled to judgment on the statute of frauds and contract compliance arguments. The court of appeals reversed, overruling the district court's rule against perpetuities decision. It agreed with the district court on the statute of frauds issue and that Chamberlain did not fully perform under the original purchase contract. The only issue preserved in the petition for review was whether Chamberlain complied with the contractual right of first refusal provision.

ISSUE: (1) Contract interpretation

HELD: Chamberlain initially complied with the contract when she offered to sell Trear the entire parcel for $289,000. He chose not to pursue the offer. Any interpretation that differs from this conclusion reads into the contract something that is not there and is erroneous. Similarly, the contract did not require Chamberlain to again contact Trear and offer him the smaller parcel. But factual issues remain regarding whether Chamberlain acted with good faith and in fair dealing. Because there remain factual questions about whether Chamberlain acted in good faith, this case must be remanded for further factfinding.

CONCURRENCE AND DISSENT (Johnson, J. joined by Beier, J.): The majority's decision is correct regarding the contract interpretation. But there is no need for a remand to determine whether Chamberlain acted in good faith.

STATUTES: No statutes cited.

 

APPELLATE PROCEDURE—CAUsATION
CASTLEBERRY V. DEBROT
SEDGWICK DISTRICT COURT—AFFIRMED
COURT OF APPEALS—AFFIRMED
NO. 111,105—AUGUST 24, 2018

FACTS: Castleberry suffered a stroke and, a year later, fell and sustained a fatal head injury. Her heirs sued Dr. DeBrot, claiming that he missed signs of her stroke and that this negligence then caused the fatal injury. A jury found Dr. DeBrot at fault and awarded damages to Castleberry's estate. On appeal, the court of appeals affirmed. Dr. DeBrot's petition for review was granted.

ISSUES: (1) Scope of petition for review; (2) causation instructions; (3) improper closing argument; (4) admission of expert testimony

HELD: In order to preserve an issue for review by the Kansas Supreme Court, the petition for review must list with specificity all issues that will be argued. A general statement about scope will not preserve issues for review. Expert testimony opined that Castleberry's stroke would not have happened had Dr. DeBrot met the standard of care. The court of appeals erred by finding that the causation instruction given was legally inappropriate, although harmless. In actuality, the instruction was both legally and factually appropriate. Castleberry's counsel exceeded the scope of permissible closing argument when he asked the jury whether it wanted "safe or unsafe medicine". But the error was harmless. Expert testimony was required to prove the standard of care, and the witnesses were allowed to explain the applicable standard.

CONCURRENCE (Beier, J., joined by Luckert and Johnson, JJ): The majority's decision is sound and none of the other issues raised before the court of appeals would have changed the outcome here. But Rule 8.03, as it exists now, did not prevent the Supreme Court from reviewing all issues raised by Dr. DeBrot in front of the court of appeals.

STATUTES: K.S.A. 2015 Supp. 60-456; K.S.A. 60-404, -456(b)

 

JURY INSTRUCTIONS
BIGLOW V. EIDENBERG
SEDGWICK DISTRICT COURT—AFFIRMED
COURT OF APPEALS—AFFIRMED
NO. 112,701—AUGUST 24, 2018

FACTS: Charla Biglow went to the emergency room suffering from a persistent cough and a fever. Charla complained about a rapid heartbeat, but Dr. Eidenberg attributed it to her having pneumonia and the breathing treatment she received. Charla was admitted to the hospital, where her complaints about her heart rate continued. Not long after admission, Charla died. Kevin, Charla's husband, brought suit against Dr. Eidenberg alleging that he violated the standard of care by not performing an EKG to check on Charla's rapid heartbeat. At trial, the expert testimony was divided as to whether Dr. Eidenberg met the standard of care. A jury found in favor of Dr. Eidenberg and the court of appeals affirmed. Kevin's petition for review was granted.

ISSUES: (1) Jury instructions; (2) motion in limine

HELD: The jury received a "physician's selection of course of treatment' instruction. This instruction was factually and legally appropriate. There is nothing to suggest that Dr. Eidenberg's failure to order an EKG was an unreasonable medical decision based on Charla's symptoms. Similarly, neither jury instruction defining negligence was clearly erroneous. The instruction which mentioned common experience was legally inappropriate, since establishing causation requires expert testimony. But the instruction was not clearly erroneous and any error was harmless. An order in limine prevented Kevin from using the words "safe" or "needless endanger a patient" during trial. Some review is precluded because Kevin never proffered what expert testimony was excluded by the order in limine. And substantively, the words covered by the order misstate the standard of care in Kansas and were properly excluded.

STATUTE: K.S.A. 2017 Supp. 60-251(c), -251(d)(2)

 

CAUSATION—DAMAGES
BURNETTE V. EUBANKS
JOHNSON DISTRICT COURT—AFFIRMED IN PART AND REVERSED IN PART—CASE REMANDED
COURT OF APPEALS—AFFIRMED IN PART AND REVERSED IN PART
NO. 112,429—AUGUST 24, 2018 

FACTS: Joel Burnette sued Dr. Eubanks and her clinic alleging negligence in administering epidural steroid injections for back pain. Joel believed that the negligent manner of delivering the injections caused side effects which included nerve damage and significant pain. Four years after the injection, Joel committed suicide. Joel's parents filed a wrongful death case against the defendants on behalf of the estate and the lawsuits were consolidated by the district court. A jury found Dr. Eubanks liable for Joel's injuries and death. The verdict was affirmed by the court of appeals and the Burnettes' petition for review was granted.

ISSUES: (1) Causation instructions; (2) expert testimony; (3) damages

HELD: Taken as a whole, the jury instructions correctly supplied the cause-in-fact requirement for causation. The use of the phrase "contributed to" was not erroneous. Expert testimony proved but-for causation tying Dr. Eubanks' negligence to Joel's back pain and subsequent death. The $550,000 economic damages awarded by the jury to Joel's parents were improperly categorized as economic. The jury should not have been allowed to allocate damages for the harm of "loss of a complete family" and there was inadequate evidence to justify any additional economic award.

STATUTES: K.S.A. 2017 Supp. 60-250, -250(a); K.S.A. 60-1901, -19a02, -1903, -1903(e), -1904(a), 65-6319

 

OPEN RECORDS
STATE V. GREAT PLAINS OF KIOWA COUNTY, INC.
KIOWA DISTRICT COURT—AFFIRMED
COURT OF APPEALS—AFFIRMED IN PART AND REVERSED IN PART
NO. 115,932—AUGUST 24, 2018

FACTS: Kiowa County Memorial Hospital operates in Greensburg. The Hospital is managed by a Board of Trustees which is elected according to statute. The Board has statutory authority to levy a tax to operate and maintain the hospital. Great Plains is a non-profit corporation which is responsible for operating the hospital under the terms of a lease. Under the terms of the lease agreement, if Great Plains believes that additional revenue is necessary, it will inform the board of the need and the board will request that the county levy a tax. After three years of escalating levies, the county commission sought information about the hospital's budget and finances. The county commissioner sent a letter seeking, under the Kansas Open Records Act, certain budget documents. Great Plains refused the request, claiming that it was exempt from KORA. The state filed an action in district court seeking KORA enforcement and a fine for what it viewed as Great Plains' bad-faith refusal to comply. The district court granted the state's motion for summary judgment, ordered disclosure of the requested records, and imposed a $500 fine. The court of appeals affirmed the finding that Great Plains is subject to KORA but remanded the case for further findings about whether specific requested records were relevant to Great Plains' contractual performance. The Supreme Court granted both a petition and a cross-petition for review.

ISSUES: (1) Great Plains' status under KORA; (2) need for a remand

HELD: The Court finds for the first time on appeal that KORA explicitly covers instrumentalities of political and taxing subdivision and that Great Plains meets the definition of an instrumentality of county government. It is uncontroverted that the hospital is meant to be an arm of county government. As an instrumentality, Great Plains is a public agency and as such, is covered by KORA. The nature of the records sought by the state is irrelevant. As an agency covered by KORA, Great Plains has a duty to disclose. The court of appeals' order of remand is reversed.

STATUTES: K.S.A. 2016 Supp. 45-217(f)(1), -220(b), -221, -229(a), 75-4318(a); K.S.A. 2015 Supp. 45-217(f)(1), -217(f)(2), -217(g)(2); K.S.A. 19-4603, -4605, -4605(a), -4611, -4611(d), 60-404

 

criminal 

criminal law—criminal procedure—evidence—sentences—statutes
state v. atkisson
anderson district court—reversed and remanded
court of appeals—reversed
No. 115,468—august 24, 2018

FACTS: Atkisson convicted of raping a child under 14 years old. Hard 25 life sentence imposed under Jessica’s Law. Atkisson appealed the denial of his motion under K.S.A. 2013 Supp. 21-6627(d) for a downward departure. In unpublished opinion, Court of Appeals vacated the sentence and remanded for resentencing in light of State v. Jolly,  301 Kan. 313 (2015). At resentencing, district court again denied the recommended departure and reimposed the hard 25 life sentence. Atkisson appealed, claiming district court abused its discretion by failing to apply Jolly, claiming the district court improperly weighed mitigating factors against aggravating factors, and relied on factual determinations - mostly from the probable cause affidavits - relating to uncharged conduct, dismissed counts, or otherwise unproven allegations. Court of Appeals affirmed in unpublished opinion. Atkisson’s petition for review granted.

ISSUES:  (1) Facts material to the departure determination, (2) source of facts relied on when determining departure

HELD: As decided in State v. Powell (decided this same date), district court can consider facts material to the substantial and compelling reason determination, and is not limited to focusing only of the facts surrounding the crime of conviction. Here, the district court did not abuse its discretion by considering immaterial subject matter in ruling on the departure motion. Facts referenced by the district court were relevant to the departure determination because they rebutted Atkisson’s mitigation claim based on his presentence investigation report that he had no significant criminal history.

District court’s determination to deny departure was an abuse of discretion because its reliance on these facts was unsupported by the evidence. Neither the probable cause affidavit nor the victim’s father’s statement were offered or admitted as evidence. Court of Appeals is reversed. Sentence is vacated, and case remanded to district court for reconsideration of the departure motion and resentencing.

CONCURRENCE (Beier, J.)(joined by Nuss, C.J. and Johnson, J.): Concurs in the result and majority’s rationale, subject to the same limitation described in her concurrence in Powell.

STATUTES: K.S.A. 2013 Supp. 21-6627, -6627(d), -6627(a)(1), -6627(d)(1), -6801 et seq., -6804, 60-460( b); K.S.A. 20-3018(b), 60-418, -2101(b)

 

constitutional law—criminal law—fourth amendment
search and seizure
state v. boggess
butler district court—affirmed
court of appeals—affirmed
No. 111,361—august 24, 2018

FACTS: Motley allowed law enforcement officers to search car she was driving with Boggess as front-seat passenger. Among clutter on passenger floorboard, officer found and opened a small nondescript black zippered bag that held drug contraband. When it was discovered the bag belonged to Boggess, she was charged with drug offenses. She filed motion to suppress, claiming Motley had neither actual nor apparent authority to consent to a search of Boggess’ belongings. District court denied the motion finding Motley had apparent authority to consent to the search, and found Boggess guilty on all counts. Court of appeals affirmed in unpublished opinion. Boggess’ petition for review was granted.

ISSUE: Apparent authority to consent to search

HELD: Motley had apparent authority to consent to the search of the zippered bag. Under facts in case, when Motley gave her consent, it was objectively reasonable for officers to believe she had authority to consent to a search of the nondescript zippered bag. Cited facts included: (1) driver’s easy access to front passenger floorboard often used to store objects while driving, and Eleventh Circuit case (United States v. Barber, 777 F.3d 1303 [20105]) on similar facts; (2) Boggess was aware of the consent and that officers were going to search the vehicle but remained silent and did not claim ownership in any item in the vehicle; (3) nothing about the small zippered bag would signal to a reasonable person that Motley did not exercise common authority over it; and (4) the presence of clutter on the floorboards suggested the driver either placed the clutter there or sanctioned its presence in the vehicle.

DISSENT (Luckert, J.)(joined by Beier and Johnson, JJ.): Disagrees that officer’s reliance on Motley’s consent to search bags located at feet of passenger was objectively reasonable. Agrees that Motley had apparent authority to consent to a search, but once the zippered bag was found in passenger area, a person of reasonable caution would have questioned whether the driver had apparent authority to consent to a search of that bag. Disagrees with decision in Barber. Rejects majority’s dismissal of expectation of privacy in a small, zippered bag, as opposed to a purse. And under facts in this case, rejects majority’s reliance on Boggess’ silence. Would reverse judgments of Court of Appeals and district court, and remand for new trial.

STATUTE: K.S.A. 22-3216,-3216(3), 60-2101(b)

 

CRIMINAL LAW—CRIMINAL PROCEDURE—EVIDENCE—SENTENCES—STATUTES
state v. powell
sedgwick district court—affirmed
court of appeals—reversed
No. 115,457—august 24, 2018

FACTS: Powell was convicted of aggravated indecent liberties with a child. District court imposed a hard 25 life sentence under Jessica’s Law, and denied Powell’s motion under K.S.A. 2017 Supp. 21-6627(d)(1) for a downward durational departure of 29.5 months. Powell appealed, claiming district court failed to follow the required analytical framework set forth in State v. Jolly, 301 Kan. 313 (2015), by failing to determine if mitigating circumstances existed, and by including aggravating circumstances and inappropriate facts of a stepchild’s testimony about Powell’s prior uncharged abuse. Divided court of appeals panel reversed and remanded for resentencing in compliance with Jolly because district court did not affirmatively declare that it reviewed Powell’s mitigating circumstances without weighing them against aggravating circumstances. 53 Kan.App.2d 758 (2017). Dissent argued the district court had complied with Jolly, and urged review to clarify how sentencing courts should conduct hearings on departure motions under Jessica’s Law. State’s petition for review was granted.

ISSUES: (1) Jessica’s Law departure motion, (2) abuse of district court’s discretion

HELD: The district court’s failure to perform Jolly steps on the record is not reversible error. District courts considering a Jessica’s Law departure motion need not affirmatively state they are not weighing aggravating and mitigating circumstances. Language in caselaw contrary to today’s holding is no longer sound.

On review, an appellate court should disregard characterizations of evidence that might reasonably bear on a defendant’s sentence for a first time Jessica’s Law conviction as “aggravating.” The question is whether the evidence relates to the decision to be made, i.e., whether the mitigating circumstances advanced both exist and supply a substantial and compelling reason to depart from the hard 25 life sentence. Here, Powell failed to show the district court abused its discretion by denying departure. District court’s consideration of the prior-sex-crime evidence in ruling on the departure motion was proper because:  (1) it was a “fact of the case” for the substantial and compelling reason determination required under K.S.A. 2017 Supp. 21-6627(d)(1), showing the convicted crime was not an isolated incident; (2) it was relevant to whether Powell proved his claimed mitigating circumstances; and (3) Powell failed to contemporaneously object to this evidence. Panel majority’s decision is reversed. Powell’s sentence is affirmed.

CONCURRENCE (Beier, J.)(joined by Nuss, C.J. and Johnson, J.): Agrees the district court’s judgment must be affirmed. No abuse of discretion in what district judge said—with or without majority’s criticism and clarification of Jolly. Writes separately to distance from overbroad and unnecessary statements that how a district judge labels or characterizes evidence or the fact it has been admitted to prove is of no moment.

STATUTES:  K.S.A. 2017 Supp. 21-5506(b)(3)(A), -6627, -6627(a)(1), -6627(d), -6627(d)(1), -6804, 22-3608(c), 60-455(d); K.S.A. 20-3018(b), 21-4643, 60-404, -2101(b)

 

Kansas Court of Appeals

 

Civil

WORKERS COMPENSATION
TRAVELERS CASUALTY INSURANCE V. KARNS
SHAWNEE DISTRICT COURT
—REVERSED AND REMANDED
NO. 117,128—AUGUST 24, 2018

FACTS: An employee received workers compensation benefits for years of repetitive use injuries. The claims spanned two employers and several insurance companies. OneBeacon American Insurance Company paid approximately $152,000 to the employee after March 1, 2005. After an appeal, the award was remanded back to the Workers Compensation Board of Appeals for further factual findings. The board awarded a maximum disability benefit of $200,000, total, for two different injuries but did not address which insurance company was responsible for paying which injury. OneBeacon informed Karns, the Director of Workers Compensation, that it was not responsible for covering any preliminary medical benefits. OneBeacon identified the Workers Compensation Fund as the likely source for reimbursement, a position echoed by Travelers. The Fund believed that Travelers was the source of repayment to OneBeacon. Karns considered the parties' submissions and then issued an order which included findings of fact and conclusions of law. The order directed Travelers to reimburse OneBeacon. Travelers filed a petition for review with the district court, which ruled that Travelers had no statutory remedy in district court. Travelers appealed.

ISSUES: (1) Statutory remedy; (2) district court decision

HELD: The Workers Compensation Act addresses a situation where a party believes it has paid benefits that should have been paid by another entity. K.S.A. 2017 Supp. 44-556(e) requires a decision maker to identify the amount and the entity responsible for repayment. After that decision is made, the director certifies that amount for reimbursement. ALJs, the board, and the appellate courts must make the substantive decisions. That didn't happen here, and Karns exceeded his authority by making findings of fact and conclusions of law. That order is reversed, and this matter is remanded to the board for further proceedings and a decision on reimbursement. Karns' reimbursement order was essentially an agency action which could be challenged in district court. The order also exceeded Karns' authority and was challengeable on those grounds.

STATUTES: K.S.A. 2017 Supp. 44-534a(b), -551(p), -556(a), -556(d), -556(e), 77-529(a), -603(a), -603(c), -621, -621(c); K.S.A. 77-602(b)(1), -622(b)

 

JURY INSTRUCTIONS; WILLS
MOORE V. MOORE
BROWN DISTRICT COURT—AFFIRMED IN PART
REVERSED IN PART—REMANDED
NO. 117,499—AUGUST 24, 2018

FACTS: John and Joyce Moore owned land in trust as an estate plan for all four of their children. One son, Steven, convinced John to sell their homestead to Steven's son. Months later, Steven got Joyce to sell land to her grandson. The real estate was sold for much less than market value and left the trust mostly stripped of assets. Joyce, on behalf of the trust, sued Steven and his son seeking to have the purchase contracts set aside. Joyce claimed that both she and John lacked the capacity to sell the homestead and farmland under contract. In addition, she claimed that the contracts should be set aside because of Steven's undue influence over his parents. A jury found in Steven's favor and Joyce appeals.

ISSUES: (1) Jury instructions on undue influence; (2) improper jury argument

HELD: Contracts between parties in a fiduciary relationship are due close scrutiny. In this case, Steven held a position of confidence with his parents. Because of that fact, the district court failed to instruct the jury on the appropriate burden of proof on an undue influence claim. The evidence shows that the case was a close one, meaning that the absence of an instruction on how to allocate the burden of proof was not a harmless error. This is true even if the contracts are viewed as testamentary documents, as a rational factfinder could have found the existence of suspicious circumstances. The claim of an inappropriate comment during closing argument is difficult to address because it was handled by an off-the-record bench conference. Because so much is unknown, the appellate court can't find an abuse of discretion.

STATUTE: K.S.A. 2017 Supp. 60-460(a)

 

criminal 

criminal law—probation—sentences—statutes
state v. baker
johnson district court—reversed and vacated
No. 118,338—august 24, 2018

FACTS: In case at issue, Baker convicted of two counts of forgery and one count of theft. Sentencing court ordered prison terms for each charge, with a 24 month probation period. Journal entry more fully detailed 18 months of probation for each forgery conviction, and 24 months’ probation for the theft. Over 18 months later, district court revoked probation and ordered her to serve the three aggregated prison terms. Baker objected, arguing she completed her 18-month probation, and thus her sentences on the forgery convictions, well before the State took action to revoke her probation. District court disagreed, reasoning a unitary probation period of 24 months applied to the case. Baker appealed.

ISSUE: Sentencing - probation in multiple cases

HELD:  District court’s pronouncement was technically incomplete and should have included a probation period for each of the three convictions. Pertinent sentencing statutes are reviewed, finding K.S.A. 2017 Supp. 21-6819(b)(8) is susceptible to two conflicting readings. Concept of in pari materia interpretation underscores the reasonableness of applying rule of lenity to Baker’s advantage. When the district court revoked Baker’s probation and ordered her to prison, she had already completed her probation and satisfied the sentence on each of the forgery convictions. Only service of the sentence on the theft conviction could be required. District court’s revocation of Baker’s probations on the forgery convictions are reversed, and the resulting sentences of imprisonment for those convictions are vacated.

STATUTES: K.S.A. 2017 Supp. 21-6603(g), -6604(a)(3), -6608, -6608(c)(1)(B), -6608(c)(3), -6608(c)(4), -6608(c)(5), -6819, -6819(b)(8); K.S.A. 22-3202(a)

 

criminal law—criminal procedure—prosecutors—statutes
state v. lacy
sedgwick district court—reversed and remanded
No. 117,884—august 24, 2018

FACTS: K.S.A. 2015 Supp. 21-5506(b)(2) and (b)(3) sets forth two forms of indecent liberties with a child - with the required criminal intent the offender either touches the victim or solicits the victim to touch another person. Prosecutor charged Lacy with the solicitation form of  aggravated indecent liberties, but trial evidence and jury instructions involved only the touching form of that aggravated offense. Lacy appealed, claiming insufficient evidence supported his conviction on the charged offense.

ISSUE: Sufficiency of the evidence

HELD: State charged Lacy with the wrong crime, never asked for the charge to be amended, and obtained a conviction for the wrong charge. Facts in case supported only the touching form of aggravated indecent liberties, and jury was instructed about that form rather than the charged offense Because the evidence did not support the elements of the crime charged and convicted, and there were no potential lesser-included offenses at issue, Lacy’s conviction must be reversed. As a teaching tool, Court identifies points when prosecutors and district court might have recognized and corrected the error in this case. District court’s judgment is reversed, and Lacy’s sentence is vacated.

STATUTES:  K.S.A. 2015 Supp. 21-5506(a), -5506(b), -5506(b)(2), -5506(b)(3), -5506(b)(3)(B); K.S.A. 22-3201(e)

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August 17, 2018 Digests

Posted By Administration, Tuesday, August 21, 2018

Kansas Supreme Court

Criminal

criminal procedure—statutes—witnesses
state v. brosseit
franklin district court—affirmed
court of appeals—affirmed
No. 114,753—august 17, 2018

FACTS: Brosseit was convicted of DUI. At trial, State sought endorsement of a person not identified in the complaint as a potential witness—the EMS paramedic (Harris) who drew Brosseit’s blood sample. District court allowed the late endorsement. Brosseit appealed, claiming in part that K.S.A. 22-3201(g) requires the State to endorse all known witnesses when it files the complaint, and only permits endorsement after that time if the State was unaware of the witness when it filed the complaint. State argued this claim was not preserved in district court. Court of appeals affirmed in unpublished opinion without addressing preservation. Review granted on this claim and argument that K.S.A. 22-3201(g) had been wrongly interpreted.

ISSUES: (1) Preservation of issue for appellate review, (2) late endorsement of a witness

HELD:  As in State v. Gray, 306 Kan. 1287 (2017), State failed to cross-petition for review of Court of Appeals conclusion or lack thereof regarding preservation. Nor did the State submit a response to the petition for review. The preservation issue thus is not before the Kansas Supreme Court.

In light of ambiguity in the statute and the legislature’s more than century-long acquiescence, the doctrine of stare decisis is followed. Kansas Supreme Court cases interpreting K.S.A. 22-3201(g) and its predecessors are upheld. To show reversible error on appeal, the defendant must have objected to the late endorsement, requested a continuance, and been denied that continuance. In this case, Brosseit did not request a continuance. Court of appeals is affirmed.

CONCURRENCE (Rosen, J., joined by Johnson and Stegall, JJ.): Concurs in the result only. Does not agree with majority’s interpretation of K.S.A. 22-3201(g). On plain language of the statute, the long-standing interpretation of K.S.A. 22-3201(g) is incorrect. Would hold that if the State wishes to endorse a witness after it has filed its complaint, then the State has a duty to show that it was unaware of the witness at the time of filing. The district court erred in allowing State to endorse Harris on the day of trial, but under facts in the case the error was harmless.

STATUTE: K.S.A. 2013 Supp. 8-1567(a)(1), -1567(a)(2), -1567(a)(3); K.S.A. 22-3201(g)

appeals—criminal procedure—criminal law—evidence—statutes
state v. campbell
sedgwick district court—affirmed
no. 116,430—august 17, 2018

FACTS: Jury convicted Campbell of first-degree premeditated murder of his wife. On appeal, Campbell first claimed the State improperly rehabilitated a jailhouse informant by introducing testimony of former prosecutor (Morehead) regarding past instances when the informant was credible, but State contends defense counsel failed to preserve this argument with an appropriate objection. Second; he claimed district court erred by admitting testimony of a witness who described Campbell as controlling of his wife. Campbell contends this evidence was inadmissible under K.S.A. 2017 Supp. 60-455 because it did not constitute evidence of a “crime or civil wrong,” but State counters this evidence of marital discord was properly admitted through K.S.A. 60-455. Third; he claimed the jury should have been instructed on a heat-of-passion voluntary manslaughter based on Campbell’s sudden quarrel with his wife. And fourth; he claimed cumulative error denied him a fair trial.

ISSUES: (1) Appellate review of Witness Rehabilitation claim, (2) evidence of marital discord, (3) voluntary manslaughter jury instruction, (4) cumulative error

HELD: Campbell objected to Morehead’s testimony on grounds of hearsay and of bolstering or vouching for the informant’s credibility. He now asserts for first time on appeal the more salient objection that Morehead’s proposed testimony would violate the specific instances rule. This newly asserted challenge on appeal is not considered.

District court properly admitted testimony describing Campbell as controlling of his wife. Prior caselaw on marital discord evidence is reviewed, with modification to the holding in State v. Gunby, 282 Kan.39 (2006). Evidence of discord in a marital relationship that does not amount to a crime or civil wrong is not subject to the limitations of K.S.A. 2017 Supp. 60-455. Under facts in this case, the evidence of discord was not subject to K.S.A. 2017 Supp. 60-455. District court’s admission of this evidence is affirmed.

An instruction for heat-of-passion voluntary manslaughter, which would have been legally appropriate, was not factually appropriate in this case.

Cumulative error doctrine not applicable where no error has been found.  

DISSENT (Johnson, J.): Disagrees that the defense objection to Morehead testifying was not preserved for appeal. District court’s error in allowing the testimony was not the result of a misunderstanding as to the reasons the defense objected to the testimony. Would address the issue, find in favor of the defendant, reverse the conviction, and remand for a new trial.

STATUTES: K.S.A. 2017 Supp. 21-5404, 22-3601(b)(3), 60-455; K.S.A. 60-404, -422, -455

 

criminal procedure—probation—sentencing
state v. horton
leavenworth district court—affirmed
court of appeals—affirmed
no. 115,051—august 17, 2018 

FACTS: Horton was convicted of residential burglary and felony theft. At a November 1998 sentencing, probation was ordered with understanding that the first part of probation would be served in jail because Horton had other charges pending. District court granted State’s December 1998 motion to revoke probation based on Horton’s failure to report. In 2015, Horton filed a pro se K.S.A. 22-3504 motion to correct an illegal sentence, arguing the district court erred in revoking probation because it was impossible for Horton to report as required when he was incarcerated for other offenses. District court summarily dismissed the motion. Horton appealed. Court of appeals affirmed in unpublished opinion. Horton’s petition for review granted.

ISSUE: Motion to correct an illegal sentence - probation revocation

HELD: The two-step probation revocation process is analogous to the conviction and sentencing process. A probation violator cannot use K.S.A. 22-3504 to collaterally attack the district court’s guilty determination at a probation violation hearing. A revoked probationer must directly attack the factual determination that a probation violation occurred. District court’s summary dismissal of Horton’s claim is affirmed.

STATUTE: K.S.A. 22-3504, -3504(1), -3716, -3716(b)

 

appeals—criminal procedure—evidence—judges
state v. smith
sedgwick district court—reversed and remanded
no. 116,968—august 17, 2018

FACTS: Smith convicted in 1993 of first-degree felony murder, aggravated kidnapping, aggravated robbery, and possession of a firearm by a minor. Twenty years later, he filed a pro se motion to file a direct appeal out of time, claiming his defense counsel never acted on Smith’s request to file an appeal. Kansas Supreme Court remanded to district court for an Ortiz  hearing to determine if Smith was eligible to appeal out of time. District court denied the motion, making no findings but referencing Smith’s failure to do anything for all the years. Holding the length of time is a factor but not a threshold bar, Kansas Supreme Court remanded to district court to determine credibility of Smith’s testimony that he repeatedly tried throughout 1993 and 1994 to tell his attorney to file an appeal. State v. Smith, 304 Kan. 916 (2016). Second Ortiz hearing held before a different judge who denied the motion to appeal out of time, finding Smith’s testimony was not credible. Smith appealed, arguing the district court arbitrarily disregarded undisputed testimony that he told his trial counsel he wanted to appeal.

ISSUE: Appearance of judicial bias and prejudice

HELD: Court reviews the district court’s stated reasons for denying the motion and notes the failure to consider the potentially corroborating testimony of Smith’s grandmother. In two stated reasons—Smith’s taste in music and Smith’s tattoos/brands—the district court improperly considered information irrelevant to the credibility determination and applied a negative stereotype. Also, district court inappropriately conducted independent factual research through a post-hearing sua sponte request to department of corrections for Smith’s tattoo/brand information, and failed to provide parties reasonable opportunity to respond before denying Smith’s motion. Reversed and remanded for a new Ortiz hearing before a different judge to consider only evidence in the record that is relevant to Smith’s credibility.

STATUTES: K.S.A. 2017 Supp. 22-3601; K.S.A. 1993 Supp. 21-4701 et seq.; K.S.A. 60-401(b), 409, -409(b)(4), -410, -410(a), -412(d)

Kansas Court of Appeals

 

Civil

DEBTOR AND CREDITOR—EQUITY—SUCCESSION
WELLS FARGO VENDOR FINANCIAL SERVICES V. NATIONWIDE LEARNING
WYANDOTTE DISTRICT COURT—AFFIRMED IN PART—REVERSED IN PART
NO. 118,334—AUGUST 17, 2018

FACTS: Nationwide Learning, Inc. created kits for teachers and students that allowed for publication of books which contained student-created content. At the time it was incorporated, Nationwide borrowed almost $5 million from C3 Capital Partners. As the business evolved, Wells Fargo obtained lease agreements on three printers. C3 ultimately foreclosed on Nationwide's assets and conveyed them to Studentreasures. Wells Fargo repossessed its collateral and sold the printers. It then sued Nationwide, which was defunct, for breaching the printer lease agreement. Wells Fargo also sued Studentreasures for both actual and punitive damages on theories of successor liability and violation of the Kansas Uniform Fraudulent Transfer Act. The district court awarded Wells Fargo in excess of $490,000 in damages and attorney fees but denied all other claims. Wells Fargo appealed.

ISSUES: (1) Successor liability; (2) application of fraudulent avoidance of debt exception; (3) liability under KUFTA; (4) punitive damages

HELD: Kansas generally recognizes the general rule of successor nonliability, with four exceptions. Successor liability is applied sparingly and must only be used when required by equity. In this case, the district court made errors of law when evaluating certain tests. Because Studentreasures is a mere continuation of Nationwide, the imposition of successor liability is warranted. To apply the fraudulent avoidance of debt exception to successor liability, Wells Fargo must prove, by clear and convincing evidence, actual fraud. That proof did not exist in this case. Because no assets were transferred, the KUFTA cannot apply. In the absence of willful or wanton conduct, the district court correctly denied the motion for punitive damages.

STATUTES: K.S.A. 2017 Supp. 84-1-103(b), 84-9-617; K.S.A. 33-201(1), -201(b)(1), -201(h), -203(b), -204(a)(1), -204(b), 60-3702(c)

Tags:  8/17/2018  Franklin District  Leavenworth District  Sedgwick District  Wyandotte District 

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August 10, 2018 Digests

Posted By Patti Van Slyke, Monday, August 13, 2018

Kansas Supreme Court 

Civil

 

NEGLIGENCE
MANLEY V. HALLBAUER
LABETTE DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS AFFIRMED
NO. 115,531—AUGUST 10, 2018

FACTS: Manley died in a car accident which occurred at the intersection of two gravel roads. Neither road had a traffic sign. A law enforcement investigation concluded that vegetation on one of the corners likely created a blind spot, making it impossible for either driver to see approaching traffic. The Hallbauers owned the property with the trees, which had been there since before they purchased the lot. Manley's estate's wrongful death suit included the Hallbauers as defendants. The Hallbauers moved for summary judgment, claiming they could not be held liable for failing to remove trees or other vegetation. The district court granted that motion and Manley's estate appealed. The Court of Appeals turned to the Restatement of Torts (Second) in concluding that the Hallbauers had no duty to clear vegetation from their lot. The estate's petition for review was granted.

ISSUE: (1) Existence of duty

HELD: Kansas law reflects a public policy not to impose tort liability on a landowner for natural obstructions on the landowner's property. Because it is not necessary to do so, the court takes no position at this time on whether the Restatement (Third) should be used in Kansas. There is no justification to depart from the established rule that a landowner owes no duty in a case such as this. It is especially true when, as was the case here, the landscape was rural.

STATUTES: No statutes cited

 

Criminal

 

criminal lawcriminal procedureprobationstatutes
state v. dooley
mcpherson district court—reversed and remanded
court of appeals—reversed
No. 111,554—august 10, 2018

FACTS:  Finding Dooley admitted to drug usage, failed to report to Oxford House, failed to report to Dodge City Community Corrections and absconded, district court revoked Dooley’s probation and ordered him to serve underlying prison term. Dooley appealed, claiming district court failed to base its decision on a statutory exception that would have authorized bypassing the intermediate probation violation sanctions mandated by K.S.A. 2013 Supp. 22-3716 before completely revoking probation. Court of Appeals affirmed in unpublished opinion, noting the district court accepted Dooley’s stipulation that he had absconded, and journal entry stated revocation was based in part on that basis.  Review granted.    

ISSUE:  Revocation of probation

HELD:  Changes in the dispositional alternatives for a probation violation after the 2013 amendments to K.S.A. 22-3716 are discussed. Court rejects State’s argument, raised for first time on appeal, that the 2013 amendments are not applicable in this case. Under the 2013 amendments, Dooley had received a first-step intermediate sanction so the next graduated intermediate sanction should have been a prison sanction of 120 or 180 days unless a statutory bypass exception existed. To invoke the bypass exception under K.S.A. 2013 Supp. 22-3716(c)(8), State must show and district court must find that the probation violator engaged in some course of action (or inaction) with the conscious intent to hide from or otherwise evade the legal process. Here, the revocation hearing transcript does not confirm the district court made a specific finding that Dooley absconded, and the journal entry was ambiguous on this point. The meaning of “absconds from supervision” is adopted, citing Oregon Supreme Court’s efforts as persuasive. District court’s ruling that Dooley violated the terms of his probation is affirmed. The revocation of probation and imposition of the underlying sentence is reversed and remanded for district court to either impose an intermediate sanction under K.S.A. 2013 Supp. 22-3716(c)(1)(C) or (D), or to invoke the bypass provision of K.S.A. 2013 Supp. 22-3716(c)(8) based on a finding, supported by substantial competent evidence, that Dooley absconded from supervision.  

STATUTE:  K.S.A. 2013 Supp. 22-3716, -3716)b), -3716(b)(4), -3716(c)1), -3716(c)(1)(B)-(E), -3716(c)(8), -3716(c)(9)

 

DUI—STATUTORY INTERPRETATION
STATE V. FISHER
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 115,277—AUGUST 10, 2018

FACTS: Fisher was charged with DUI. Because he had two prior municipal convictions for DUI, the State charged him with a felony. One of the prior convictions was obtained under a Wichita municipal ordinance. Fisher's counsel filed a motion to dismiss, arguing that the prior conviction could not be used because the ordinance is broader than the state statute. The motion was denied and Fisher was convicted. The Court of Appeals reversed the conviction, finding that the sentencing court should have used the categorical approach in analyzing the similarity of the statutes. The State's petition for review was granted.

ISSUE: (1) Ability to use municipal conviction to establish a felony

HELD: The Court of Appeals is affirmed under the rationale applied this day in State v.  Gensler.

DISSENT: (Stegall, J.) He dissents for the reasons established in State v. Gensler.

STATUTES: K.S.A. 2017 Supp. 8-1567, -1567(i)(1); K.S.A.  8-1485

 

appeals—criminal law—criminal procedure—statutes
state v. fitzgerald
cowley district court—reversed; court of appeals—affirmed
No. 112,492—august 10, 2018

FACTS:  Fitzgerald was convicted of aggravated criminal sodomy of a child. On appeal he claimed that insufficient evidence supported the charged offense under K.S.A. 2017 Supp. 21-5504(b)(2) of causing the victim to engage in sodomy ”with another person.” Relying on State v. Labore, 303 Kan. 1 (2015), and State v. Dickson, 275 Kan. 683 (2003), Court of Appeals reversed in unpublished opinion, finding State proved aggravated sodomy of the victim by the defendant [K.S.A. 2017 Supp. 21-5504(b)(1)], but failed to present evidence of the charged offense which was causing the victim to engage in sodomy with someone else. State’s petition for review granted. Parties were asked to supplement briefs to address State v. Dunn, 304 Kan. 773 (2016), which reformed the analysis on charging document error.

ISSUES:  Sufficient evidence of the crime charged

HELD:  Charging document in this case does not suffer from any of the infirmities identified in Dunn. As in Labore, the issue is the evidence supporting the verdict on the crime charged. No overruling of holding in Dickson that “any person” in identically worded predecessor statute to K.S.A. 2017 Supp. 21-5504(b)(2) means “a person other than the defendant.” State charged Fitzgerald under subsection (b)(2), but proved aggravated criminal sodomy under subsection (b)(1). State presented insufficient evidence of the charged offense. Fitzgerald’s conviction is reversed. 

CONCURRENCE (Biles, J.):  Concurs in the result.

CONCURRENCE (Lukart, J., joined by Nuss, C.J. and Rosen, J.):  Explains reasons for not departing from Dickson, relying on rules of statutory interpretation and rules of statutory construction of the ambiguity in K.S.A. 2017 21-5504(b).

DISSENT (Stegall, J.):  Would overrule Dickson, and criticizes the statutory interpretation in that case. Instead, argues the use of “any person” in K.S.A. 2017 Supp. 21-5504(b)(2) includes rather than excludes Fitzgerald, thus sufficient evidence supports his conviction. 

STATUTES:  K.S.A. 2017 Supp. 21-5504(b), -5504(b)(1), -5504(b)(2); K.S.A. 22-3301(a), -3301(b)

 

Appeals—constitutional law—criminal procedure—statutes
state v. fleming
johnson district court—affirmed; court of appeals—affirmed
No. 125,449—august 10, 2018

FACTS:  Jury found Fleming guilty of aggravated robbery and aggravated burglary, but not guilty of theft of a television, PlayStation, laptop computer, and watches. Fleming appealed, claiming in part error in the aggravated robbery jury instruction which referred to the taking of “property” without specifying the stolen property alleged in the complaint—a cell phone and wallet. In unpublished opinion, Court of Appeals held that Fleming had not preserved that issue because he invited the error by proposing the instruction. Review granted.

ISSUE:  Invited error 

HELD:  Invited error precludes review of Fleming’s alleged instruction error. Invited-error doctrine is reviewed, and parties in future cases are urged to more deeply explore whether Kansas cases follow or should follow concepts of estoppel or waiver because application of the doctrine may vary depending on which doctrinal route applies. Clear-error test imposed by K.S.A. 22-3414(3) does not preclude application of the invited-error doctrine to claimed errors in a jury instruction. Pretrial requests may invite error and did so here, where the language difference between the complaint and the proposed instruction was as obvious before trial as after. Mere fact that Fleming raises constitutional issues regarding the instruction’s deviation from the charging document does not prevent application of the invited-error doctrine. There is no bright-line rule for application of the invited-error doctrine. An appellant’s actions in causing an alleged error and the context in which those actions occurred must be carefully reviewed in deciding whether to apply the doctrine. Such analysis is appropriate in this and future cases to ensure application of the doctrine is limited to cases in which the complaining party truly invites error. 

STATUTE:  K.S.A. 22-3414(3), 60-404, -1507

 

DUI—STATUTORY INTERPRETATION
STATE V. GENSLER
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED
DISTRICT COURT IS VACATED—CASE REMANDED
NO. 112,523—AUGUST 10, 2018

FACTS: Gensler had two prior DUI convictions when he was charged with a third DUI. The prior convictions were obtained under a Wichita municipal ordinance. Prior to trial, Gensler objected to the inclusion of the municipal convictions because, he claimed, the ordinance in effect at the time of his conviction prohibited a broader range of conduct than the state DUI statute. Gensler's objection was overruled, and he was convicted after a bench trial on stipulated facts. Gensler also objected to the two prior convictions being used to enhance his criminal history score. The objection was overruled. The Court of Appeals found that Gensler was appropriately convicted because the documents from his prior convictions showed that he was cited for operating a motor vehicle while under the influence. Gensler's petition for review was granted.

ISSUE: (1) Classification of prior convictions

HELD: The state DUI statute is ambiguous in what  t allows to count as a prior conviction. Under the version of the statute as it existed at the time of Gensler's conviction, the municipal ordinance could not criminalize a broader range of acts than are criminalized under the state DUI statute. The Wichita ordinance defined "vehicle" much more broadly than the state statute, in a way that cannot be treated as alternative elements. Because the elements of the ordinance are not the same as or narrower than the statute, Gensler's prior convictions should not have been used in this DUI prosecution.

DISSENT: (Stegall, J.) K.S.A. 2017 Supp. 8-1567(i)(1) is not ambiguous. The Legislature clearly intended to allow consideration of a prior conviction which arose from an ordinance such as the one in place in Wichita.

STATUTES: K.S.A. 2017 Supp. 8-1485, -1567, -1567(a), -1567(i)(1); K.S.A. 8-1485, -1567(j)

 

capital sentences—constitutional law
criminal procedure—juries—statutes
state v. lloyd
sedgwick district court—affirmed
No. 115,834—august 10, 2018

FACTS:  Lloyd was convicted of first-degree premeditated murder, felony murder, and abuse of an infant victim. Hard 50 sentence imposed without a jury. Convictions affirmed on direct appeal, but remand ordered for resentencing in compliance with Alleyne v. United States, 570 U.S. 99 (2013). State v. Lloyd, 299 Kan. 620 (2014). At resentencing, same evidence presented but in part through prior testimony of a key witness (Loudermilk) who was unavailable for the resentencing proceeding. Hard 50 sentence again imposed, based on jury’s finding that Lloyd’s 2007 guilty plea to aggravated assault for shooting Loudermilk in the foot was a prior  felony resulting in great bodily harm, and that Lloyd committed the instant crime in an especially heinous, atrocious, or cruel manner. Lloyd appealed, claiming district court erred by allowing Loudermilk’s coerced pretrial statements and testimony from the first trial. Lloyd also claimed the State presented insufficient evidence that he had a prior felony conviction for a crime in which he inflicted great bodily harm because the crime of aggravated assault contains no such essential legal element. 

ISSUES:  (1) Coerced testimony, (2) sufficient evidence of prior conviction as aggravating factor

HELD:  United States Supreme Court case has not addressed whether testimony of a coerced witness may be used against a defendant at trial, but Kansas Supreme Court has held that basing a conviction in whole or in part on the coerced statement of a witness may deprive a criminal defendant of due process. State v. Daniels, 278 Kan. 53 (2004). Assuming without deciding the admission of Loudermilk’s transcribed testimony was erroneous, any such error was harmless under facts in this case. 

            Nothing in K.S.A. 2017 Supp. 21-6624(a) requires that bodily harm be an element of the felony serving as an aggravating factor. Jury had sufficient evidence to enable it to reach the reasonable conclusion that Lloyd committed a felony that inflicted great bodily harm or disfigurement on Loudermilk. 

STATUTE:  K.S.A. 2017 Supp. 21-6620(e) -6620(e)(3), 6624(A), -6624(f)

 

DUI—STATUTORY INTERPRETATION
STATE V. MEARS
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 115,278—AUGUST 10, 2018

FACTS: Mears was charged with DUI. Because he had two prior municipal convictions for DUI, the State charged him with a felony. One of the prior convictions was obtained under a Wichita municipal ordinance. Mears' counsel  filed a motion to dismiss, arguing that a Wichita municipal conviction could not serve as the basis for a felony DUI conviction. The motion was denied and Fisher was convicted. The Court of Appeals reversed the conviction, finding that the sentencing court should have used the categorical approach in analyzing the similarity of the statutes. The State's petition for review was granted.

ISSUE: (1) Ability to use municipal conviction to establish a felony

HELD: The Court of Appeals is affirmed under the rationale applied this day in State v.  Gensler.

DISSENT: (Stegall, J.) He dissents for the reasons established in State v. Gensler.

STATUTES: K.S.A. 2017 Supp. 8-1567, -1567(i)(1); K.S.A. 2016 Supp. 8-1567(b); K.S.A.  8-1485

 

DUI—STATUTORY INTERPRETATION
STATE V. SCHRADER
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS VACATED—CASE REMANDED
NO. 115,196—AUGUST 10, 2018

FACTS: Schrader was charged with five counts including involuntary manslaughter while driving under the influence. After entering a no contest plea, Schrader objected to the inclusion in his criminal history score of a prior felony under a Wichita municipal DUI ordinance. The court overruled the objection and Schrader's sentence included the disputed municipal conviction. On appeal, the Court of Appeals agreed that the municipal ordinance's breadth precluded its use as a person felony in Schrader's criminal history. The State's petition for review was granted.

ISSUES: (1) Use of prior conviction in criminal history

HELD: Prior municipal convictions may be used to enhance sentencing only if the ordinances are the same as, or narrower than, the state DUI statutes. The comparison of the ordinance and the statutes is driven by their elements. The Wichita ordinance under examination here defines "vehicle" more broadly than the state statute. Because this results in the ordinance criminalizing more behavior than the statute, Schrader's prior conviction under that ordinance cannot be used to enhance his sentence here.

DISSENT: (Stegall, J.) He dissents for the reasons established in State v. Gensler.

STATUTES: K.S.A. 2017 Supp. 8-1485, -1567, -1567(a), -1567(i)(1); K.S.A.  2014 Supp. 21-5405(a)(3), -6811(c)(2)

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August 3, 2018 Digests

Posted By Administration, Tuesday, August 7, 2018

Kansas Court of Appeals

Civil

ATTORNEY AND CLIENT—HABEAS CORPUS
ROBINSON V. STATE
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 116,483—AUGUST 3, 2018

FACTS: Robinson was convicted of reckless second-degree murder and aggravated arson after he started a house fire which resulted in the death of an occupant. Those convictions were affirmed on direct appeal. Robinson then filed a motion for habeas corpus relief in which he alleged that he was prejudiced by the ineffective assistance of trial counsel. After an extensive evidentiary hearing, the district court found that trial counsel was ineffective for failing to investigate and present expert testimony that would counter the State's expert witness. Finding that Robinson was prejudiced by these errors and the cumulative damage they did, the court ordered a new trial for Robinson. The State appeals that finding. Robinson cross-appealed the district court's denial of other arguments.

ISSUES: (1) Expert witness testimony; (2) cross-appeal

HELD: Although expert testimony about causation can be crucial in an arson case, defense counsel did not consult with an arson expert. He spoke with one witness less than two weeks before trial. Evidence presented at the habeas corpus hearing showed that expert testimony could have poked significant holes in the State's case. Trial counsel's failure to obtain assistance from an expert resulted in a less than complete investigation and provided prejudicially ineffective assistance to Robinson. None of the issues raised by Robinson in his cross-appeal independently require a new trial.

STATUTES: No statutes cited.

REMEDY—WORKERS COMPENSATION
JOHNSON V U.S. FOOD SERVICE
WORKERS COMPENSATION BOARD—REVERSED AND REMANDED
NO. 117,725—AUGUST 3, 2018

FACTS: Johnson was injured while performing his job as a truck driver. After surgery, Johnson was returned to work but he was still experiencing symptoms. Johnson's surgeon used the Sixth Edition of the AMA guides when assigning Johnson a permanent impairment rating of 6% of the whole person. The surgeon noted that under the Fourth Edition of that Guide, Johnson would have received a 25% impairment rating, which the doctor believed was more accurate. The Board affirmed the 6% impairment rating, but neither the ALJ nor the Board had the authority to address Johnson's claim that use of the Sixth Edition was unconstitutional on its face. He now raises that issue on appeal.

ISSUES: (1) Facial constitutionality of K.S.A. 2015 Supp. 44-510e

HELD: Kansans have a constitutional right to remedy. The workers compensation statutes allow injured workers to trade certain benefits for the common law right to sue. But this quid pro quo is constitutional only if the certain benefits are adequate. The legislature's adoption of the Sixth Edition resulted in a system that no longer provides an adequate remedy. In the absence of any scientific reason to adopt the Sixth Edition, the use of that Guide results in an unconstitutional system. The appropriate remedy is to reinstate the Fourth Edition. This case must be remanded for recalculation using that Guide.

STATUTES: Kansas Constitution Bill of Rights, § 18; K.S.A. 2015 Supp. 44-510c(a)(1), -510c(a)(2), -510c(c), -510d(b)(23), -510d(b)(24), -510e, -510e(a)(2)(B), -510e(a)(2)(C), -510h; K.S.A. 44-574(b)

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July 27, 2018 Digests

Posted By Administration, Monday, July 30, 2018

Kansas Supreme Court

Civil

 

REAL PROPERTY—STATUTE OF LIMITATIONS
LCL V. FALEN
RICE DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS REVERSED, CASE REMANDED
 No. 115,434—JULY 27, 2018

FACTS: The Mary Louise Falen-Olsen Trust entered a contract to sell 200 acres of real property to Sammy Dean. The Trust owned all of the surface rights plus an undivided one-half mineral interest. It is undisputed that the Trust intended to sell the surface rights and retain the mineral interest. RCAT was the closing agent and title insurer. The deed prepared by RCAT did not include any reference to the mineral reservation. Neither of the co-trustees noticed this omission before they signed and filed the deed. LCL purchased the property in April 2014. At the time, LCL acknowledged that the mineral rights would not come with the property. RCAT again acted as the closing agent, and the deed again did not note the Trust's mineral rights reservation. After the sale closed, LCL inquired about the difference between the deed's language and its understanding of what it purchased. RCAT conducted a title search and discovered that none of the deeds included the reservation of the Trust's mineral interest. LCL refused to sign a corrected deed. The Trust first learned of this in August 2014, when royalty payments were suspended. LCL filed a petition to quiet title to the mineral interests. The Falens both filed an answer denying LCL's ownership and filed a third-party petition against RCAT for negligence and breach of contract. RCAT moved for summary judgment, claiming that the statute of limitations began to run in January 2008, when the original deed was prepared. The district court granted that motion, but that decision was reversed by the court of appeals, which found that the Falens did not sustain any damage until August 2014, when the royalty payments stopped. RCAT's petition for review was granted.

ISSUES: (1) Negligence cause of action; (2) breach of fiduciary duty cause of action

HELD: In the context of a statute of limitations, "substantial injury" means "actionable injury". There are two inquiries relevant to determining when the statute of limitations began to run – when did the Falens suffer actionable injury, and when did the existence of that injury become reasonably ascertainable? They were injured when the 2008 deed was filed because their mineral interest title became clouded. This injury was compounded in 2013, when their ability to reform the title became much more limited. But there remains a genuine issue of material fact about whether the Falens reviewed or understood the deed before signing and filing it. And factual questions remain about the Falens' continued receipt of royalty payments. Because of these factual disputes, summary judgment was inappropriate and the case must be remanded for further factfinding. The Falens' breach of fiduciary duty claims extended to the 2014 deed, meaning that the petition was filed well within the statute of limitations.

STATUTE: K.S.A. 58-2222, 60-511(5), -513(a)(4), -513(b)

 

DUE PROCESS—HABEAS CORPUS
IN RE HABEAS CORPUS BY SNYDER
ORIGINAL ACTION—WRIT DENIED
NO. 117,167—JULY 27, 2018

FACTS: Clay Snyder was charged with several off-grid felonies in 2012. He was found not competent to stand trial because of an intellectual disability in 2013; Snyder has microcephaly. That finding has renewed on multiple occasions, most recently in 2016. Snyder was involuntarily committed for the first time in 2014. Medical personnel have testified that it is unlikely that Snyder will ever be competent to stand trial. Snyder petitioned for original habeas relief, asking that he be released from confinement because of violations to his speedy trial, due process, and equal protection rights.

ISSUES: (1) Speedy trial; (2) due process; (3) equal protection

HELD: The speedy trial clock for Snyder's criminal trial remains suspended because Snyder is not competent to stand trial. Although Snyder maintains the right to a speedy trial, he cannot be constitutionally tried until he is competent. The competency statutes in Kansas provide deadlines that suggest a reasonable time to attempt to restore a defendant's competency. The state complied, and then used a lawful civil commitment procedure to justify his continued restraint. Compliance with statutory procedures must be strict, and delay could serve as the basis for a constitutional claim. Snyder's equal protection argument was not adequately briefed and is thus deemed abandoned.

STATUTE: K.S.A. 2017 Supp. 22-3302(4), -3303, -3303(1), 60-1501

 

INVOLUNTARY COMMITMENT
IN RE CARE AND TREATMENT OF SNYDER
PAWNEE DISTRICT COURT—AFFIRMED
NO. 117,512—JULY 27, 2018

FACTS: In 2012, Snyder was charged with multiple sex offenses. He asked a judge to determine his competency to stand trial. He was found not competent, and those findings have persisted. In 2016, the district court found that Snyder was not competent and that there was no substantial probability that he would obtain competency in the foreseeable future. Consequently, the Kansas Department of Aging and Disability Services commenced involuntary commitment proceedings against Snyder. The district court held a bench trial and heard evidence that Snyder was intellectually disabled and dangerous to others, which warranted further treatment. The district court determined that Snyder met the criteria for involuntary commitment, and he appealed. The case was transferred to the Kansas Supreme Court on its own motion.

ISSUES: (1) Equal protection; (2) due process; (3) sufficiency

HELD: The Care and Treatment Act provides for the involuntary commitment of certain mentally ill persons. It excludes from civil commitment a mentally ill person who is diagnosed solely with an intellectual disability. But a person with an intellectual disability may be involuntarily committed if that person has been accused of an off-grid felony and found incompetent to stand trial. The state has a rational basis to treat potentially dangerous individuals differently, negating Snyder's equal protection argument. Snyder was given due process because the state was required to prove not only that he was charged with an off-grid felony but that he was likely to cause harm to self and others. There is no constitutional bar to the state civilly committing an individual whose mental condition cannot be cured. There was sufficient evidence presented to show that Snyder is likely to cause harm to himself or to others.

STATUTE: K.S.A. 2017 Supp. 22-3303, -3303(1), 59-2946(e), -2946(f)(1), -2946(f)(3), -2966(a)

 

Criminal

 

POLICE POWERS—SEARCH AND SEIZURE
IN RE J.O.
JOHNSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS AFFIRMED
NO. 116,954—JULY 27, 2018

FACTS: In 2015, the Prairie Village Police Department arranged for controlled drug buys in Shawnee, Kansas. On two occasions, a confidential informant was sent to buy drugs from J.O. in Shawnee. There were no Shawnee officers present at either buy and the Shawnee Police Department never provided assistance. After the buys, J.O. was charged with multiple drug offenses. J.O. moved to suppress all evidence obtained from the controlled buys on grounds that PVPD had no jurisdiction to operate in Shawnee. The district court agreed that PVPD exceeded its jurisdiction by operating in Shawnee. But the motion to suppress was denied because J.O. had a voluntary encounter with the CI and was neither searched nor seized by PVPD officers. The district court admonished the PVPD to respect its jurisdictional boundaries and warned of potential recriminations if those boundaries were not followed. J.O. appealed, and the court of appeals agreed with the district court that the exclusionary rule was not an appropriate remedy for this case. The petition for review was granted.

ISSUE: (1) Application of exclusionary rule

HELD: Statutory limits exist to protect the local autonomy of neighboring cities and not to protect citizens from encroachment by law enforcement. The court of appeals erred when it found that the PVPD properly requested assistance. The PVPD's continued failure to follow K.S.A. 2017 Supp. 22-2401a is troubling. But in the absence of an individual right, J.O. cannot claim any injury that would justify suppression.

STATUTES: K.S.A. 2017 Supp. 22-2401a(2); K.S.A. 2016 Supp. 22-2401a; K.S.A. 22-3216

 

constitutional law—criminal law—traffic stop
state v. glover
douglas district court—affirmed
court of appeals—reversed
No. 116,446 - july 27, 2018

FACTS: Officer stopped a vehicle assuming the driver was the registered owner (Glover) whose driver’s license had been revoked. No other information supported this assumption, and the officer did not try to confirm the driver’s identity before initiating the traffic stop. Glover was in fact the driver. State charged him with driving as a habitual violator. He filed motion to suppress evidence obtained during the stop, arguing the officer lacked a reasonable suspicion of illegal activity when he stopped the car. District court granted the motion on stipulated facts, finding the officer’s assumption was unreasonable. State filed interlocutory appeal. Court of Appeals reversed, 54 Kan. App.2d 377 (2017). Review granted. 

ISSUE: Reasonable suspicion for vehicle stop

HELD: Officer lacked an articulable and reasonable suspicion that the unidentified driver did not have a valid driver’s license. Officer’s assumption was only a hunch unsupported by a particularized and objective belief. Opinion reviews general principles about reasonable searches and seizures, the distinction between assumptions and inferences, and reasons for rejecting the owner-is-the-driver presumption. State has burden to prove the officer had reasonable suspicion that the driver of the vehicle—not just the registered owner—had a suspended driver’s license. To draw inferences in favor of the State based on lack of evidence in the record impermissibly relieves State of its burden. Court of appeals is reversed. District court’s judgment is affirmed. 

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

 

competency—criminal procedure—evidence—juries
state v. Jenkins
saline district court—affirmed
No. 106,741—july 27, 2018

FACTS: Jenkins, Parker, and two others burglarized two apartments and killed one resident.  Jenkins was convicted of first-degree murder, aggravated burglary, and theft. For threats and actions thereafter against his wife and son, Jenkins also was convicted of criminal threat, domestic battery, and criminal restraint. Jenkins appealed. Some nine months later, prosecutor reported that a juror sent her gifts which the prosecutor returned, and some two months later the same juror sent the prosecutor a holiday greeting. District court conducted a hearing each time, finding no juror misconduct had influenced the jury’s verdict. Jenkins also sought resolution of his pretrial motion for a competency hearing. Case was remanded to district court which found a retrospective competency determination was feasible and that Jenkins had been competent at time of his trial. On appeal Jenkins claimed: (1) insufficient evidence supported his convictions of first-degree murder, aggravated burglary, and theft; (2) district court erred in finding no evidence of juror misconduct; and (3) district court erred in concluding a retrospective competency hearing was feasible. 

ISSUES: (1) Sufficiency of the evidence, (2) juror misconduct, (3) retrospective competency hearing

HELD: Under facts of case, the evidence viewed in light most favorable to the State was sufficient to establish that Jenkins aided or abetted others in committing the aggravated burglaries and theft, and that Parker shot and killed the fatality victim during the aggravated burglary of that victim’s apartment. 

            No abuse of district court’s discretion in finding no juror misconduct had occurred.  Juror did not contact prosecutor until well after trial had ended, and juror had based his verdict on the evidence. No need to consider whether the alleged juror misconduct created a fundamental failure in the proceeding.

            Factors in McGregor v. Gibson, 248 F.3d 946 (10th Cir.2001), are applied to determine if it is feasible to retrospectively determine a defendant’s competency. Here, three McGregor factors are discussed with factual comparison to State v. Ford, 302 Kan. 455 (2015), and State v. Murray, 302 Kan. 478 (2015). All three factors support the district court’s ruling that a retrospective competency determination on Jenkins’ competency at the time of trial was feasible. 

STATUTES: K.S.A. 2017 Supp. 21-5402(a), -5402(c)(1)(J), -5801, -5807(b); K.S.A. 21-3205, 22-3302

 

appellate procedure—constitutional law—criminal law—search and seizure
state v. ton
johnson district court—affirmed
court of appeals—affirmed
No. 113,220—july 27, 2018

FACTS:  Using a confidential informant tip, supporting information, and drug dog alert, officer obtained search warrants to open a UPS package and to search a residence once the resealed  package was delivered hours after the scheduled delivery time. Marijuana discovered in the package and the residence led to Ton’s conviction for possession of marijuana with intent to sell and failure to pay Kansas drug tax stamp. Ton filed motion to suppress, arguing the officers lacked a reasonable suspicion to detain the package past the scheduled delivery time.  District court denied the motion, finding the package was not seized until police removed it from the UPS facility after the scheduled delivery time, and there was reasonable suspicion to seize the package. Ton appealed the reasonable suspicion ruling, and also argued the package was detained for an unreasonable length of time. Court of appeals affirmed in unpublished opinion, concluding the police had reasonable suspicion of criminal activity that justified seizing Ton’s package, and did not reach question of whether reasonable suspicion was required or not. Panel declined to address Ton’s unreasonable-length-of-time claim which was presented for first time on appeal. Ton’s petition for review granted.

ISSUES: (1) Reasonable suspicion, (2) preservation of length of time issue

HELD: No error found in panel’s analysis. Government had reasonable suspicion to seize the package, whether reasonable suspicion was needed or not.
            Ton affirmatively narrowed the scope of his Fourth Amendment claim in the suppression hearing to an argument that reasonable suspicion did not support seizure of the package. Record on appeal thus lacks findings Ton needs to support argument about the detention being an unreasonable amount of time. Panel’s decision to not address the merits of this additional argument is upheld.  

STATUTES:  None

 

Kansas Court of Appeals

Civil

ATTORNEY AND CLIENT—INTENT
CALHOUN V. STATE
SEDGWICK DISTRICT COURT—AFFIRMED IN PART
REVERSED IN PART—REMANDED
NO. 117,704—JULY 27, 2018

FACTS: Calhoun was convicted of multiple high-level felonies. The jury was instructed that it could convict Calhoun if it believed Calhoun was either the principal or an aider or abettor. The jury instruction on aiding and abetting allowed the jury to find Calhoun guilty if it believed that the crimes were a "reasonably foreseeable" consequence of the intended crime. At trial, Calhoun admitted that he participated in the robbery but denied committing any of the violent crimes with which he was charged. After Calhoun was convicted of some, but not all, of the charges he faced, two jurors came forward with reports of a compromise verdict. Calhoun's motion for a new trial was denied. Calhoun's convictions were affirmed on direct appeal and his petition for review was denied. Calhoun then filed a timely K.S.A. 60-1507 motion which argued, in part, that both trial and appellate counsel were ineffective for failing to argue that the jury instruction on aiding and abetting was inappropriate. The motion was denied and this appeal followed.

ISSUES: (1) Trial errors; (2) aiding and abetting jury instruction

HELD: K.S.A. 60-1507 can be used to correct trial errors only if exceptional circumstances exist. Calhoun never argued the existence of exceptional circumstances, and the court will not consider allegations of trial error in this proceeding. The aiding and abetting instruction given to the jury allowed for a guilty finding if the jury believed that any of the crimes with which Calhoun was charged were reasonably foreseeable consequences of the intended crime of aggravated robbery. Supreme Court precedent establishes that this jury instruction is not appropriate for defendants, such as Calhoun, charged with specific intent crimes. Trial counsel was ineffective for failing to object to this instruction, and appellate counsel was ineffective for failing to raise this issue on direct appeal. The jurors' comments about their confusion shows that the jury was improperly influenced by the inappropriate instruction. For this reason, Calhoun's convictions for aggravated kidnapping, attempted voluntary manslaughter, and criminal threat are reversed based on ineffective assistance of counsel.

STATUTE: K.S.A. 21-3205, 60-1507 

Tags:  intent  police powers  search and seizures  trial errors 

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July 20, 2018 Digests

Posted By Administration, Tuesday, July 24, 2018

Kansas Court of Appeals

civil

constitutional law—juvenile justice code—interrogation—statutes
in re. P.W.G.
butler district court—affirmed
No. 118,211—july 20, 2018

FACTS: Thirteen-year-old P.W.G. was questioned at police station about allegations of fondling his younger step-brother. Father of both boys brought P.W.G. to police station as directed, and remained with P.W.G. during questioning. P.W.G. eventually made incriminating statements after they both signed waiver of Miranda rights. State charged P.W.G. with aggravated indecent liberties with a child. District court granted P.W.G.’s motion to suppress statements made during interrogation, finding the police interrogation was custodial and that the Miranda waiver was invalid under K.S.A. 2017 Supp. 38-2333(b). State filed interlocutory appeal arguing the statute did not apply because the interrogation was not custodial, and even if custodial, the presence of P.W.G.’s father when P.W.G. waived his Miranda rights satisfied the statute.

ISSUES:  (1) Custodial interrogation of juvenile. (2) voluntariness of Miranda Waiver

HELD:  Although a close call, under totality of the circumstances as set forth in the opinion, a 13-year-old child would not have felt free to terminate the interrogation and leave. District court’s finding that the interrogation was custodial is affirmed.

            P.W.G. did not voluntarily and knowingly waive his Miranda rights under the requirements set forth in K.S.A. 2017 Supp. 38-2333.  Interrogating officer in this case did not provide any time for father to consult, provide an explanation, or give guidance to P.W.G.  State failed to comply with K.S.A. 2017 Supp. 38-2333(a), thus the totality of the circumstances test is not sufficient to ensure that P.W.G.’s waiver was intelligent and knowing.  More than the mere presence of a parent is required; the parent must be acting with the interests of the juvenile in mind.  While statute does not govern unique facts presented here, P.W.G.’s waiver would be invalid because the father of both the alleged victim and the alleged perpetrator had an irreconcilable conflict of interest.  Better practice would have been contacting P.W.G’s mother who was not related to the alleged victim.  District court’s finding that P.W.G.’s waiver of his Miranda rights was invalid under K.S.A. 2017 Supp. 38-2333 is affirmed.

DISSENT (Buser, J.):  Does not agree that the officer conducted a custodial interrogation of P.W.G., thus K.S.A. 2017 Supp. 38-2333(a)-(b) are not applicable to facts and circumstances of this case.  Instead, the officer’s questioning was an investigative interview for which a valid waiver of Miranda rights was not required.   Factors to be considered in analyzing whether the interrogation was custodial are detailed, criticizing majority’s findings on seven of the eight factors.  Would reverse the district court’s order of suppression and remand for further proceedings.

STATUTES:  K.S.A. 2017 Supp. 38-2333, -2333(a), -2333(b); K.S.A. 74-7833 et seq.

 

criminal

criminal law—criminal procedure—immunity—statutes
state v. collins
sedgwick district court—reversed and remanded
No. 117,743—july 20, 2018

FACTS: Three unarmed women followed Collins up an apartment stairwell following an earlier heated encounter in the parking lot. When Collins brandished a knife at the top of the second floor landing, he and the women fell down nine stairs after one pulled on Collins’ shirt, with Collins swinging the knife at least twice as he fell. Collins got up, closed his knife, and went back up the stairs to his apartment, but one woman had been fatally stabbed and another had a knife wound. State charged Collins with intentional second-degree murder and aggravated battery. Prior to trial, Collins filed a motion seeking self-defense immunity under the Stand Your Ground statute. District court conducted an evidentiary hearing and found Collins’ use of deadly force was lawful because Collins reasonably believed deadly force was necessary to prevent great bodily harm to himself. District court granted the motion and dismissed the charges. State appealed, arguing Collins lacked a reasonable belief that deadly force was needed to prevent great bodily harm, and that as an aggressor, he was not subject to a statutory safe harbor retreat exception.

ISSUE:  Stand Your Ground Statute, K.S.A. 2017 Supp. 21-5220 et seq.

HELD:  Background of the Stand Your Ground statute is reviewed, including immunity under K.S.A. 2017 Supp. 21-5231 that prevents a case from going to trial. Here, the district court was not required to decide whether Collins was justified in his use of deadly force in self-defense. Instead, to overcome a defendant’s self-defense immunity claim, State has burden of establishing probable cause the defendant’s use of force was not statutorily justified. That probable cause burden can be met by evidence the defendant acted as an aggressor and provoked the use of force. Under facts in this case, State met its burden because a reasonable person—given the district court’s assessment of conflicting evidence—could have concluded Collins’ acts were not justified. Thus Collins is not entitled to immunity, and his claim of self-defense is appropriately left for a jury to decide. District court’s grant of immunity and dismissal of the charges is reversed, and case is remanded for further proceedings. 

STATUTES:  K.S.A. 2017 Supp. 21-5220 et seq., -5221, -5222, -5223, -5224(a)(2), -5225, -5226(c), -5230, -5231; K.S.A. 2015 Supp. 21-5403(a)(1), -5413(b)(2)(B)

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July 13, 2018 Digest

Posted By Administration, Monday, July 16, 2018

Kansas Supreme Court

 

Attorney Discipline

 

ORDER OF DISCHARGE FROM PROBATION
IN THE MATTER OF JARED WARREN HOLSTE
NO. 113,970—JULY 12, 2018

FACTS: Holste was placed on a two-year suspension in October 2015. Holste was told that he could apply for reinstatement after six months, subject to terms and conditions. Holste requested and received an early reinstatement in 2016. He was allowed to return to practice subject to an 18-month term of probation. In June 2018, Holste requested that he be discharged from probation. The disciplinary administrator did not object to the request.

HELD: In the absence of an objection, Holste's motion was granted. He was discharged from probation.

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