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March 16, 2018 Digest

Posted By Administration, Monday, March 19, 2018

Kansas Supreme Court

Civil

IMMUNITY—NEGLIGENCE—TORTS
PATTERSON V. COWLEY COUNTY
COWLEY DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART
COURT OF APPEALS – AFFIRMED
NO. 114,705—MARCH 16, 2018

FACTS: Jason Patterson and Cortney Brewer drowned when they drove their vehicle off a roadway and into the Arkansas River. The road, which was located in Bolton Township in Cowley County, abruptly ended at the river. The County placed a "Pavement Ends" sign where the road transitioned from paved, county road to unpaved, township road. Beyond that, there was no signage to warn drivers that the road ended and the river began. After the accident, Patterson's widow filed suit against the County and the Township, claiming that all parties negligently failed to provide adequate warnings and barricades. The district court granted summary judgment to the Township, finding that it had no legal duty to erect any signage or barricades. As to the County, the district court found that the County was immune under the Kansas Tort Claims Act for failing to post an advisory speed plaque. But the district court refused to enter judgment on the issue of whether the County was negligent for failing to place a "Dead End" or "No Outlet" sign at the end of the pavement. The court similarly failed to find immunity under the KTCA's recreational use exception. Patterson and the County were each allowed to pursue interlocutory appeals. The Court of Appeals affirmed that the County was not entitled to the recreational use or inspection immunity but reversed the district court's ruling on the County's discretionary function immunity. The Supreme Court granted review.

ISSUES: (1) Township duty to install traffic-control devices; (2) county duty to conduct an engineering study; (3) county discretionary function immunity;

HELD: The Township had no statutory duty to place or maintain traffic-control devices. And there is no statute that provides the Township with the authority to adopt ordinances or regulations relating to vehicular traffic. In that absence, the Township had no duty to erect traffic-control devices and was entitled to summary judgment. The Manual on Uniform Traffic Control Devices does not require periodic surveys of the County's roadways that are meant to preemptively spot trouble. All traffic-control devices placed by local authorities must comply with the MUTCD. In this case, the MUTCD did not require the signs sought by Patterson. In the absence of a mandate, the County's failure to post a sign was a discretionary function and entitled to immunity. Because claims against the County are resolved, it is unnecessary to address analysis of the recreational use and inspection immunity defenses.

STATUTES: K.S.A. 2017 Supp. 8-1432. -2005, 68-101(e), -526, -526(b), 75-6102, -6104(h), 80-101; K.S.A. 8-1432, -1442, -1447, -1512(a), -2003, 68-523, 75-6101, 80-301(a), -306, -307

Tags:  Cowley 

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March 9, 2018 Digests

Posted By Administration, Tuesday, March 13, 2018

Kansas Supreme Court

CRIMINAL

criminal law—criminal procedure—sentences—statutes
state v. Buell
Shawnee district court—reversed, sentence vacated, remanded
court of appeals—reversed
NO. 113,881–March 9, 2018

FACTS: Buell convicted of robbery and attempted kidnapping. In calculating Buell’s criminal history, sentencing court classified Buell’s two prior Florida burglary juvenile adjudications as person felonies. Buell appealed, arguing the Florida adjudications should not have been classified as person felonies because Kansas had no comparable offense. Court of Appeals affirmed Buell’s criminal history and sentence, finding the burgled structure requirements in the Kansas and Florida statutes were comparable, and it was irrelevant that the intent element in the Florida statute differed from the specific intent required for the Kansas offense. 52 Kan.App.2d 818 (2016). Buell’s petition for review granted.

ISSUE: Classification of out of state conviction

HELD: Panel’s single-element view of comparability is rejected. Meaning of “comparable offense” as determined in State v. Wetrich (decided this same day) is applied, finding Buell’s prior Florida burglary juvenile adjudications had no comparable offense in the Kansas criminal code when Buell committed the Kansas crime. Pursuant to K.S.A. 2017 Supp. 21-6811(e), the Florida adjudications must be scored as nonperson felonies. Sentence is vacated, and matter is remanded for resentencing.

STATUTES: K.S.A. 2017 Supp. 21-6811(e), -6811(e)(3); K.S.A. 2015 Supp. 21-6811(e); K.S.A. 2011 Supp. 21-5807, -6804, -6810(a), -6811(e)

 

appeals—constitutional law—criminal law
criminal procedure—evidence—jury instructions—statutes
state v. gonzalez
pottawatomie district court—affirmed; court of appeals—affirmed
NO. 112,841—march 9, 2018

FACTS: Gonzalez was convicted of unintentional second-degree murder for a shooting death. On appeal Gonzalez claimed for first time that the statute defining unintentional second-degree murder is unconstitutionally vague. He also claimed insufficient evidence supported the conviction; alleged the trial court erred in answering a jury question that sought clarification of the differences between unintentional second-degree murder and involuntary manslaughter; and claimed the trial court should have sua sponte given a limiting instruction about evidence of Gonzalez aiming gun at a passerby some 15 minutes before fatally shooting the victim. Court of Appeals affirmed in an unpublished opinion. Gonzalez’ petition for review granted.

ISSUES: (1) Constitutionality of unintentional second-degree murder, (2) sufficiency of the evidence, (3) jury question, (4) limiting instruction

HELD: Statute defining unintentional second-degree murder is not unconstitutionally vague. Gonzalez’ arguments regarding State v. Deal, 293 Kan. 872 (2012), are rejected. The amended definition of “recklessly” in the 2010 recodification of Kansas Criminal Code does not alter the rationale in State v. Robinson, 261 Kan. 865 (1997), that a difference between unintentional second-degree murder and involuntary manslaughter is one of degree and not one of kind. Finally, Gonzalez’ claim based on Johnson v. United States, 135 S.Ct. 2551 (2015), is misplaced because Johnson does not invalidate Robinson’s rationale.

Jury’s verdict was supported by sufficient evidence which established not only reckless behavior, but also circumstances manifesting extreme indifference to the value of human life.

Gonzalez’ constitutional and statutory rights to be present were violated when trial court prepared the jury question response without Gonzalez or his attorney being present, but that error was harmless beyond a reasonable doubt in light of the entire record. Gonzalez waived or abandoned any challenge to panel’s analysis that trial court’s written response did not violate Gonzalez’ right to a public trial, and Kansas Supreme Court declines to address the public trial question. District court did not abuse its discretion by referring the jury back to the given instructions.

Panel correctly held the district court did not err in failing to give a limiting instruction. The evidence at issue was admitted independent of K.S.A. 2016 Supp. 60-455.

STATUTES: K.S.A. 2016 Supp. 21-5202(j), -5403(a)(2), -5405(a)(1), 22-3405(a), -3414(3), -34120(d), 60-455; K.S.A. 20-3018, -3018(b), 21-3101(c), 22-3417, 60-455, -2101(b)

criminal law—criminal procedure—sentences—statutes
state v. moore
sedgwick district court—reversed, sentence vacated, remanded
court of appeals—reversed
NO. 113,545—march 9, 2018

FACTS: Moore convicted of aggravated indecent liberties with a child. In calculating Moore’s criminal history, sentencing court classified Moore’s 1984 Oregon burglary conviction as a person felony. Moore later filed a motion to correct an illegal sentence, arguing his pre-1993 out-of-state burglary conviction should have been scored as a nonperson felony. District court summarily denied the motion. Moore appealed. Court of Appeals affirmed the denial, finding the burgled structure in the Oregon crime comparable to the dwelling in the Kansas burglary statute, notwithstanding other disparities in the respective crimes’ elements. Moore v. State,  52 Kan.App.2d 799 (2016). Review granted.

ISSUE: Classification of out of state conviction

HELD: Meaning of “comparable offense” as determined in State v. Wetrich (decided this same day) is applied, finding Moore’s 1984 Oregon conviction did not have any comparable offense in the Kansas criminal code when Moore committed the Kansas crime. Pursuant to K.S.A. 2017 Supp. 21-6811(e), the Oregon conviction must be scored as a nonperson felony. Sentence is vacated, and matter is remanded for resentencing.

STATUTES: K.S.A. 2017 Supp. 21-6811(e), -6811(e)(3); K.S.A. 2004 Supp. 21-4704, -4711(e); K.S.A. 21-3715, -4710(a)

appeals—criminal law—criminal procedure—prosecutors—sentences—statutes
state v. sturgis
sedgwick district court—affirmed in part and reversed in part, sentence vacated, remanded
court of appeals—affirmed in part and modified in part
NO. 112,544—march 9, 2018

FACTS: Sturgis was convicted of theft and criminal possession of firearm. In calculating Sturgis’ criminal history, sentencing court classified a prior Michigan conviction for third-degree home invasion as a person offense. Sturgis appealed claiming: (1) error by prosecutor’s comments during closing argument, and (2) error in sentencing court’s classification of the prior Michigan conviction. In unpublished opinion, Court of Appeals found prosecutor misstated the evidence and improperly commented on drug use, but there errors were harmless. Panel also determined the elements of the Michigan offense were broader than the Kansas person felony crime of burglary of a dwelling, but district court should have conducted a modified categorical approach to determine which of the Michigan statute’s alternative elements formed the basis of Sturgis’ conviction.  Sturgis’ petition for review granted. While appeal was pending, State filed change-of-status letter in September 2017 of Sturgis’ release in June 2016.

ISSUES: (1) Custodial status, (2) prosecutorial misconduct, (3) classification of out of state conviction

HELD: State did not argue that the issues presented for review are moot, thus issue of mootness is deemed abandoned.

Each allegation of prosecutorial error is examined. Prosecutor’s comment on Sturgis’ testimony was fair comment to point out inconsistencies and weaknesses, rather than impermissibly comment on Sturgis’ credibility. Prosecutor misstated Sturgis’ testimony, but that error was not a game-changer. Prosecutor’s improper comment implying drug use cuffed the line of reversibility, but panel’s finding of harmless error is affirmed.

Meaning of “comparable offense” as determined in State v. Wetrich (decided this same day) is applied, finding Sturgis’ Michigan home invasion conviction was not comparable to the Kansas burglary of a dwelling offense as it existed when Sturgis committed the Kansas crime. Pursuant to K.S.A. 2017 Supp. 21-6811(e), the Michigan conviction must be scored as a nonperson felony. Convictions are affirmed, sentence is vacated, and matter is remanded for resentencing.

STATUTES:  K.S.A. 2017 Supp. 21-6811(e), -6811(e)(3); K.S.A. 2012 Supp. 21-5807(a)(1), -6810(a), -6811(e)

appeals—criminal procedure—sentences—statutes
state v. warren
wyandotte district court—sentence vacated, remanded
NO. 115,972—march 9, 2018

FACTS: Warren was convicted of premeditated first-degree murder, second-degree murder, and attempted first-degree murder. Hard 50 life sentence was imposed for the off-grid first-degree murder, to run concurrently with the155-month concurrent on-grid sentences for the remaining two counts. Following Alleyne v United States, 570 U.S. 99 (2013), and State v. Santo, 299 Kan. 102 (2014), Warren’s Hard 50 sentence was vacated and case remanded for resentencing. On remand, State sought a lesser sentence that did not constitutionally require impaneling a jury. District court imposed Hard 25 sentence, and ordered all sentences to run consecutively. Warren appealed, arguing State v. Guder, 293 Kan. 763 (2012), and the Kansas Sentencing Guidelines Act (KSGA), barred district court from changing the two non-vacated sentences in length and sequence.

ISSUE: Resentencing on remand

HELD: Holding in Guder is affirmed. KSGA statutory changes to sentencing abrogated the common law authority of district courts to modify any sentences not vacated on appeal, barring the need to alter a non-vacated as a matter of law to avoid an illegal sentence. Applying Guder to facts of this case, district court on remand improperly modified the off-grid sentence to run consecutive to Warren’s on-grid sentence. District court made improper de facto modification to sentences that had not been vacated on appeal, and acted inconsistently with the service of sentence sequence contemplated by K.S.A. 21-4720(b)(2). Remanded for resentencing. District court is ordered to reinstate the original 155-month concurrent on-grid sentences and to run it concurrent with the new Hard 25 off-grid sentence.

STATUTE: K.S.A. 21-4701 et seq., -4720(b), -4720(b)(2), -4720(b)(5), 22-3601(b)(3)

constitutional law—courts—criminal procedure—sentences—statutes
State v. Wetrich
Johnson county district court—reversed, sentence vacated, remanded
court of appeals—affirmed
NO. 112,361—march 9, 2018

FACTS: Prior to sentencing on Kansas offenses, Wetrich unsuccessfully tried to challenge the criminal history scoring of his 1988 Missouri burglary as a person felony.  Court of Appeals reversed and ordered district court to conduct a resentencing hearing. District court again scored the Missouri conviction as a person felony, finding “dwelling” in Kansas statute was comparable with “habitable structure” in the Missouri statute. In unpublished opinion, Court of Appeals vacated Wetrich’s sentence and remanded for resentencing with the correct criminal history score. State petitioned for review, citing a split of authority among Court of Appeals panels regarding the comparability of the Missouri burglary statute.

ISSUE: Classification of out-of-state burglary conviction

HELD: The extent to which recent United States Supreme Court decisions constitutionally mandate the federal identical-or-narrower rule is not examined because issue in this case is resolved by statutory interpretation. For an out-of-state conviction to be comparable to an offense under the Kansas criminal code, the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime. Comparing elements of the Missouri and Kansas burglary offenses, two elements are broader in the Missouri statute - the specific intent required and the structure involved. Wetrich’s prior Missouri conviction should have been classified as a nonperson felony. Reversed, sentence vacated, and case remanded for resentencing.   

STATUTES: K.S.A. 2017 Supp. 21-5807(a)(1), -6811(d)(1), -6811(e), -6811(e)(2)(A), -6811(e)(3); K.S.A. 2008 Supp. 21-4704, -4705, -4710, -4710(a); K.S.A. 21-3110, -3110(7), -3715, -3715(a), -4711, -4711(d)(1), -4711(e)

Kansas Court of Appeals

CIVIL

OPEN RECORDS—STATUTORY INTERPRETATION
CLARK V. USD 287
FRANKLIN DISTRICT COURT—REVERSED AND REMANDED
NO. 117,343—MARCH 9, 2018

FACTS: Gene Hirt was barred from school district property after district officials alleged that he behaved inappropriately at a school board meeting. After reading about the incident, Clark became concerned about the letter that Hirt received, and he wanted to know the exact source and meaning of the district's policy. Clark filed a Kansas Open Records Act request seeking any disciplinary action concerning Hirt as well as any reference to Hirt in official district memorandum. The district denied the request on grounds that it could not disclose correspondence between the district and a private individual. Clark then filed a second KORA request seeking copies of procedures and guidelines that applied to members of the public. The district sent some materials to Clark, but Clark did not believe the materials were responsive to his request, so he filed a complaint in district court. The district court agreed with the district that the letter to Hirt was exempt from disclosure. The district court believed that the district's disclosure of the other materials was appropriate, but that a delay in responding was a technical violation. The court awarded Clark nominal damages and costs. Both Clark and the district appealed.

ISSUES: (1) Mootness; (2) duty to disclose the letter; (3) damages and costs

HELD: Although it is undisputed that Clark now has the letter to Hirt, this appeal is not moot because a question persists regarding whether the district's refusal to provide the letter was allowed under KORA. Although the letter between the district and Hirt was correspondence regarding a private individual, an exception to this exception exists. The district's power to ban a citizen from its property came from the legislative mandate that school boards are allowed to control their property. Because of this power, the district's refusal to provide the letter to Clark violated KORA. Although the district did technically violate KORA by not timely providing materials to Clark, there is no statutory authority for an award of either damages or costs. The district court made no finding that the district acted in bad faith, and the record shows a good-faith effort to comply with Clark's numerous KORA requests. For those reasons, the award of damages and fees was inappropriate and must be reversed.

STATUTES: K.S.A. 2017 Supp. 45-219, -220, -221, -221(a)(14), -222(a), -222(d), 72-1138(e)(1), 1416, -3216(b), -3216(d); K.S.A.  2015 Supp. 45-221(a)(14); K.S.A. 45-216, -218(a), -218(d)

CRIMINAL

 

CONSTITUTIONAL—TRAFFIC—SENTENCING
STATE V. WILLIAMS
SEDGWICK DISTRICT COURT— REVERSED  IN PART, VACATED IN PART
NO.  116,068— MARCH 9, 2018

FACTS: Williams was charged with refusing to submit to a breath test, felony DUI, and failure to maintain a single lane. Because he was charged with a felony, the complaint referenced a prior DUI conviction from municipal court. Williams filed a motion to dismiss the refusal to test count, claiming that the statute unconstitutionally criminalized his failure to submit to a breath test. He also claimed that his prior felony conviction could not be used to enhance his sentence. After that motion was denied, the case was tried, and Williams was found guilty. He objected at sentencing to the enhancement. He appealed his conviction and sentence.

ISSUES: (1) Validity of conviction for failure to submit to a breath test; (2) constitutionality of sentence

HELD: Because K.S.A. 2016 Supp.8-1025 was found to be unconstitutional, Williams' conviction for failure to submit to a breath test must be vacated. There is a clear difference between the municipal ordinance that served as the basis for Williams' prior conviction and the state statute. The Wichita ordinance was broader than the state statute, which means that convictions obtained under the ordinance cannot be used to enhance a punishment.

STATUTES: K.S.A.  2016 Supp. 8-1014, -1025, -1485, -1567, -1567(a), -1567(b)(1)(B), -1567(i)(1), -1567(j), 21-6811(c), -6811(e);  K.S.A. 2012 Supp. 8-1025

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March 2, 2018 Digests

Posted By Administration, Monday, March 5, 2018

Kansas Supreme Court

Attorney Discipline

 

ORDER OF SUSPENSION
IN THE MATTER OF LANCE M. HALEY
NO. 118,378—MARCH 2, 2018

FACTS: A hearing panel determined that Haley violated KRPC 1.3 (diligence), 3.2 (expediting litigation), 5.5(a) (unauthorized practice of law), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). Haley's license to practice law in Missouri was suspended in 2007 after he failed to file an appeal in federal court. At the same time, Haley failed to complete his annual registration requirements in Kansas, and his Kansas law license was suspended. It was not until Haley began to explore reinstatement that the Kansas disciplinary administrator learned of Haley's misconduct suspension in Missouri. Haley's Missouri license was reinstated in 2015, although he was placed on probation. But he never addressed the reciprocal discipline issues that existed in Kansas.

HEARING PANEL: Most of the conduct addressed by the hearing panel occurred in Missouri. But Haley did self-report one instance of unauthorized practice which occurred when he prepared a codicil for his mother's will. While Haley's experience with the practice of law was an aggravating factor, there were significant mitigating factors including mental health conditions and Haley's cooperation with the process. The disciplinary administrator recommended that Haley be suspended for one year, with that suspension stayed so that Haley could complete a term of probation. The hearing panel agreed with the disciplinary administrator and made that recommendation to the court.

HELD: After considering the hearing report, the court imposed a one-year disciplinary suspension. If Haley is able to satisfy all administrative requirements to end his administrative suspension, he will be allowed to petition the court for an order to suspend the disciplinary suspension and the imposition of a two-year probation period.

 

ORDER OF DISCHARGE FROM PROBATION
IN THE MATTER OF ELIZABETH ANNE HUEBEN
NO. 113,928—MARCH 1, 2018

FACTS: In October 2015, the court stayed the imposition of a two-year suspension and placed Hueben on probation for two years, with specific conditions. In November 2017, Hueben filed a motion for discharge from probation along with evidence of her compliance. That compliance was confirmed by the Office of the Disciplinary Administrator.

HELD: After reviewing the motion, affidavits, and recommendation of the disciplinary administrator, the motion is granted. Hueben is discharged from probation and this matter is closed.

 

CRIMINAL

 

constitutional law—criminal law—criminal procedure—Fifth Amendment—immunity—jurisdiction—statutes
state v. delacruz
reno district court—reversed and sentence vacated—court of appeals—reversed
No. 111,795—march 2,2018

FACTS: Victim murdered in robbery committed by Delacruz and four others, including Waller. Delacruz convicted of aggravated robbery. Thereafter, State subpoenaed Delacruz as witness at Waller’s murder trial. Delacruz refused court orders to testify, claiming in part the immunity offered did not protect his Fifth Amendment right against self incrimination. State filed accusation of contempt, and jury found Delacruz guilty of direct criminal contempt of court. A 108-month sentence imposed, consecutive to his 83-month aggravated robbery sentence. Delacruz appealed on his Fifth Amendment claim, and challenged the length of his sentence. Court of Appeals affirmed the contempt conviction and sentence. 52 Kan.App.2d 153 (2015).

ISSUES: (1)  Subject matter jurisdiction, (2) fifth amendment right against self incrimination

HELD: Court considered sua sponte whether contempt order was void for lack of jurisdiction. District court’s journal entry failed to comply with the compulsory statutory procedure in K.S.A. 20-1203 for direct contempt, but Delacruz failed to challenge the district court’s jurisdiction and a decision on the merits is especially clear. Court presumes, without deciding, that district court did not lose jurisdiction to find Delacruz in direct contempt of court through a deficient journal entry.

            State granted Delacruz mere use immunity, rather than derivative immunity. Delacruz had a valid Fifth Amendment right to refuse to testify because the immunity granted to him was not coextensive with his constitutional right against self-incrimination. The order of contempt is reversed, and the sentence imposed is vacated.

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

STATUTE: K.S.A. 20-1201, -1203, 22-3415, -3415(a), -3415(b)(2), -3415(c), 60-425

 

constitutional law—criminal procedure—statutes
state v. hayes
atchison district court—affirmed
No. 116,717—march 2, 2018

FACTS: Hayes was convicted in 1994 of first-degree murder, aggravated robbery, and conspiracy to commit robbery. Convictions affirmed on direct appeal, 258 Kan. 629 (1995). In 2015 Hayes filed pro se motion to correct an illegal sentence. District court summarily dismissed the motion, finding no merit or legal basis. Hayes appealed, claiming district court denied him due process by failing to hold a hearing on the motion without Hayes being present, as required by the plain language of K.S.A. 22-3504.

ISSUE: Motion to correct an illegal sentence

HELD: Hayes’ statutory argument is defeated by holding in State v. Campbell, 307 Kan. 130 (2017), that a district court’s preliminary examination of a motion to correct an illegal sentence does not trigger the movant’s right to be present. Hayes’ due process claim is defeated by holding in State v. Swafford,  306 Kan. 537 (2017), that the summary denial, without a hearing, of a motion to correct an illegal sentence does not run afoul of the Fourteenth Amendment’s due process guarantee.

STATUTES: K.S.A. 2017 Supp. 22-3504(1) -3504(3), -3601(b)(3); K.S.A. 2016 Supp. 21-6801 et seq., K.S.A. 22-3504

 

Kansas Court of Appeals

CRIMINAL

 

constitutional law—criminal law—Evidence—Fourth Amendment -
state v. perkins
ellis district court—affirmed
No. 112,449—march 2, 2018

FACTS: Officer stopped Perkins for traffic infraction, conducted field sobriety tests, and arrested him for driving under the influence of alcohol. Result of agreed-to breath test was over the legal limit. Perkins moved to suppress the breath test results, claiming consent was coerced and involuntary, and breath test was an unreasonable search that violated Fourth Amendment. District court denied the motion and convicted Perkins on stipulated facts. Perkins appealed. Court ordered supplemental briefing to address rulings by the United States and Kansas supreme courts while this appeal was pending. State argued the warrantless breath test result was constitutionally admissible as a result of a search incident to an arrest. Alternatively, State argued for application of the good-faith exception to the exclusionary rule.

ISSUES: (1) Search incident to arrest, (2) good-faith exception to the exclusionary rule

HELD: District court correctly denied Perkins’ motion to suppress. Under Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), and State v. Nece, 303 Kan. 888 (2016)(Nece I), aff’d on reh’g, 306 Kan. 679 (2017)(Nece II), Perkins’ consent was coerced because he was told it was a crime to refuse the test, but officer was permitted to conduct the breath test in this case as a lawful search incident to arrest.

Additionally, the breath test result was admissible because the officer, in good faith, acted in reliance on the implied consent statute before it was ruled unconstitutional by the Kansas Supreme Court.

CONCURRENCE (Atcheson, J.): Agrees the good-faith exception to the exclusionary rule applies here, and district court’s denial of the suppression motion should have been affirmed on that basis alone. Majority should have declined to explore alternative pathway of search-incident-to-arrest exception to the Fourth Amendment warrant requirement. He is unpersuaded that the search-incident-arrest exception provides an alternative rationale in this case, and voices risk of implicitly promoting untoward government action and Fourth Amendment violations.

STATUTES: K.S.A. 2016 Supp. 8-1001, -1025; K.S.A. 2014 Supp. 8-1025; K.S.A. 2012 Supp. 8-1025, -1567(a)(2), -1567(a)(3), -1567(b)(1)(B)

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February 23, 2018 Digests

Posted By Administration, Monday, February 26, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF KENNETH J. GENIUK
NO. 118,226—FEBRUARY 23, 2018

FACTS: After a formal complaint was filed, and after Geniuk failed to respond or answer, a hearing panel determined that Geniuk violated KRPC 5.5(a) and (b) (unauthorized practice of law); 7.1(a) (communications concerning a lawyer's services); 8.3(a) (reporting professional misconduct); 8.4(d) (engaging in conduct prejudicial to the administration of justice); Rule 207(c) (failure to report action); 208(c) (failure to notify Clerk of the Appellate Courts of change of address); and 211(b) (failure to file answer in disciplinary proceeding). Geniuk was admitted to the Kansas bar in 2007 and the Missouri bar in 2008. His Kansas license was suspended in 2013 for failure to comply with all annual licensure requirements. Despite the suspension, Geniuk continued to practice in Kansas. After a Kansas judge asked Geniuk about his status, Geniuk informed the court that he was licensed in Missouri. The court did not believe that any rule allowed Geniuk to appear in Kansas and he was asked to leave the court. After a complaint was filed and during the investigation, it was discovered that Geniuk's web site advertised that he provided legal services in Kansas.

HEARING PANEL: After considering the aggravating factors and the lack of mitigators, the hearing panel unanimously recommended that Geniuk be indefinitely suspended.

HELD: Geniuk did not appear at the hearing before the court. Because he filed no exceptions, the hearing panel's report was admitted. Geniuk's failure to appear was considered to be an additional aggravating factor, and a majority of the court ordered that he be disbarred. A minority of the court would have imposed the lesser sanction of indefinite suspension.

criminal

criminal procedure—guilty plea
State v. DeAnda
finney district court—affirmed
No. 115,828—February 23, 2018

FACTS: DeAnda entered guilty plea to first-degree murder in exchange for State dismissing charges of rape and aggravated criminal sodomy. District court accepted the plea and imposed hard-50 life sentence. Sentence vacated on appeal and remanded for resentencing under Alleyne v. United States, 570 U.S. 99 (2013). Prior to resentencing DeAnda filed motion to withdraw his plea, claiming: ineffective advocacy by trial counsel; the plea process and competency evaluation conspired to take advantage of his fragile mental state; and his plea was not free, knowing, and understandable. District court denied the motion, finding none of the three factors in State v. Edgar, 281 Kan. 30 (2006), were satisfied. DeAnda appealed.

ISSUE: Motion to Withdraw a Plea

HELD: No abuse of district court’s discretion in its assessment of the Edgar factors. Case record of the entire plea process, including the plea agreement, counsel’s advice, and the plea colloquy, does not support any of DeAnda’s claims. District court’s denial of DeAnda’s motion to withdraw his plea is affirmed.

STATUTES: K.S.A. 2016 Supp. 22-3210(d), -3210(d)(1), -3601(b); K.S.A. 21-4635, 60-2010(b)

Kansas Court of Appeals

civil

constitutional law—forfeiture—fourth amendment—Search and Seizure
state v. One 2008 Toyota Tundra
geary district court—affirmed
No. 117,571—february 23, 2018

FACTS: Officer stopped a Toyota Tundra for partially obstructed vehicle license. K-9 alert to drugs resulted in seizure of the truck, $84,820 in currency, and 11.9 grams of marijuana. State filed civil forfeiture action against the seized property, giving notice to the driver and passenger as parties who might have ownership interest. District granted the passenger’s motion to suppress this evidence, finding the officer unreasonably prolonged the stop beyond its original purpose by requesting a criminal check on the driver and thereby allowing time for the K-9 search. State filed interlocutory appeal.

ISSUE: Fourth Amendment – Traffic Stop

HELD: Fourth Amendment exclusionary rule applies to civil forfeiture actions. Validity of the initial traffic stop is not challenged, but under facts of this case, the officer’s request of dispatch to conduct a criminal history check of the driver was unjustified and it unreasonably prolonged the stop. At the time of that request, tasks associated with the stop had been completed, and any safety concerns associated with the stop no longer existed. Kansas Supreme Court has not directly addressed impact of Rodriguez v. United States, 575 U.S. __ , 135 S.Ct.1609 (2015), on the duration of a routine traffic stop. Panel declines State’s invitation for a bright-line rule that all traffic stops permit criminal history checks as part of a traffic violation. District court’s conclusion that the seizure that occurred during the dog sniff violated the Fourth Amendment is affirmed.

STATUTES: K.S.A. 60-4101 et seq.

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February 16, 2018 Digests

Posted By Administration, Wednesday, February 21, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF INDEFINITE SUSPENSION
IN THE MATTER OF EDGAR HULT
NO. 118,204—FEBRUARY 16, 2018

FACTS: The Disciplinary Administrator's Office filed a formal complaint against Hult alleging multiple violations of the KRPC. A hearing panel determined that Hult violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.5 (fees), 1.15(a) (safekeeping property), 1.16(d) (termination of representation), 3.2 (expediting litigation), 3.4(c) (fairness to opposing party and counsel), 8.4(d) (engaging in conduct prejudicial to the administration of justice), 8.3(a) (reporting professional misconduct), Rule 207(c) (failure to report action), and Rule 211(b) (failing to file an answer in a disciplinary proceeding). The complaints involved Hult's immigration practice, and subsequent discipline, in Iowa as well as in Kansas.

HEARING PANEL: The hearing panel found that, through a pattern of misconduct, Hult injured his clients. Although the hearing panel did determine that Hult suffers from anxiety and depression, it agreed with the disciplinary administrator that indefinite suspension would be an appropriate sanction.

HELD: After noting that Hult stipulated to the violations, the Court considered the appropriate discipline. Hult agreed that indefinite suspension was an appropriate sanction, and the court imposed that discipline.

ORDER OF DISBARMENT
IN THE MATTER OF KEVIN M. MANZ
NO. 10,687—FEBRUARY 14, 2018

FACTS: In a letter signed January 29, 2018, Kevin M. Manz voluntarily surrendered his license to practice law. At the time of surrender, a disciplinary compliant was pending which alleged that Manz committed misconduct after being convicted for three felony convictions of grand theft.

HELD: The court accepted the surrender and Manz was disbarred.

CRIMINAL

SELF-REPRESENTATION
STATE V. BUNYARD
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED, DISTRICT COURT IS REVERSED
NO. 112,645—FEBRUARY 16, 2018
 

FACTS: Bunyard was arrested after allegedly choking and breaking the jaw of his girlfriend. During a pre-trial hearing, Bunyard interjected and asked to address the court. The judge denied that request, telling Bunyard that he could have counsel communicate or he could represent himself. Bunyard made an "unequivocal" request to represent himself. The district court refused to consider this oral motion. A jury found Bunyard guilty as charged. The Court of Appeals considered Bunyard's argument on his request to represent himself and determined that no error occurred. His convictions were affirmed and the Supreme Court granted review.

ISSUE: Right of self-representation

HELD: After filing multiple pro se motions, Bunyard made an unequivocal request to represent himself. But the district court did not follow up, counsel Bunyard, or try to determine his informed wishes. Bunyard had no way to comply with the direction to file a written motion, and the demand for such left Bunyard without recourse. The district court's error in not allowing Bunyard to self-represent was structural and requires a reversal of all of Bunyard's convictions.

STATUTES: No statutes cited.

APPELLATE PROCEDURE; CONSTITUTION
STATE V. DANIEL
JOHNSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED
NO. 107,963—FEBRUARY 16, 2018

FACTS: Daniel pled no contest to attempted kidnapping and domestic battery. At sentencing, Daniel learned that he would be required to register under the Kansas Offender Registration Act. The State contended that registration requirement would be in place for the rest of Daniel's life, while Daniel's counsel argued for a 10-year registration period. The parties briefed the issue for the court, and Daniel's counsel conceded that the registration requirement was not "punishment", meaning a lifetime term was constitutionally permissible. After receiving a sentence which included a lifetime registration requirement. Daniel appealed. The Court of Appeals refused to reach the merits of Daniel's arguments, finding that Daniel invited error by conceding that the registration requirement was not a punishment. The Supreme Court accepted Daniel's petition for review.

ISSUE: Invited error

HELD: Generally, constitutional claims cannot be raised for the first time on appeal. In this case, Daniel failed to set out an exception to this general rule. The Court of Appeals is affirmed on the ground that Daniel's claim was never preserved for appeal.

STATUTE: K.S.A. 2011 Supp. 22-4906(d)(9), -4906(d)(12)

SENTENCING
STATE V. IBARRA
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED
NO. 108,576—FEBRUARY 16, 2018

FACTS: Ibarra pled guilty to two counts of aggravated indecent liberties. Prior to sentencing, Ibarra moved for both dispositional and durational departures from the presumptive sentence. He claimed that his age, the consensual nature of the relationship, and his ongoing treatment warranted leniency in sentencing. The district court granted only the motion for downward durational departure, finding that Ibarra suffered from a mental impairment which affected his judgment. Ibarra was also ordered to register as a sex offender for the remainder of his life. Ibarra appealed, arguing that the district court erred by denying his motion for dispositional departure and that the lifetime registration requirement violated the Ex Post Facto Clause. The Court of Appeals summarily affirmed the registration requirement, finding that the ex post facto argument was improperly raised for the first time on appeal. The rest of the appeal was dismissed for lack of jurisdiction because the district court had not departed adversely to Ibarra. The petition for review was granted.

ISSUES: (1) New constitutional issue on appeal; (2) reviewability of sentence

HELD: Generally, constitutional issues cannot be raised for the first time on appeal. Although Ibarra did put forth an exception to that rule, he loses on the merits because the registration requirement is not a punishment. The Court of Appeals erred by declining jurisdiction over Ibarra's departure sentence issue. But the claim fails on the merits. The district court did not err by denying the motion for dispositional departure.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ): The dissent is based on the justices' on-going belief that registration is punishment.

STATUTE: K.S.A. 2010 Supp. 21-3504(c), -4704

CRIMINAL PROCEDURE—PLEAS
STATE V. JOHNSON
RENO DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED
NO. 111,550—FEBRUARY 16, 2018

FACTS: Johnson was charged with one count of possession of methamphetamine with intent to sell, one count of criminal possession of a firearm, and other drug-related offenses. Johnson agreed to plead guilty to the possession of methamphetamine with intent to sell charge and the firearm charge. In exchange for his plea, the State agreed to dismiss the remaining counts and make concessions at sentencing. But before Johnson could be sentenced he was charged with another count of possession of methamphetamine with intent to sell. Neither the State nor Johnson's counsel became aware of this charge until Johnson was being sentenced. At this sentencing hearing, Johnson moved to withdraw his plea, arguing that he was innocent and wanted a jury trial. After a counsel change, a new agreement was reached, and Johnson withdrew his motion to withdraw plea. After his sentences were affirmed on direct appeal, Johnson moved to withdraw his plea on grounds that trial counsel was ineffective. That motion was denied, and the Court of Appeals affirmed that decision. Johnson's petition for review was granted.

ISSUE: Withdrawal of plea

HELD: Johnson cannot carry his burden to show that the district court abused its discretion, and he similarly cannot show that he was misled into pleading guilty. For these reasons, the district court is affirmed.

STATUTES: K.S.A. 2016 Supp. 22-3210(a)(2), -3210(d)(2); K.S.A. 22-4902(a)(11)(C), -4905(b)(1), -4906(a)(2)

CRIMINAL PROCEDURE—JURY INSTRUCTIONS—PROSECUTORIAL MISCONDUCT
STATE V. WRIGHT
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 112,635—FEBRUARY 16, 2018

FACTS: Wright was convicted of first-degree premeditated murder and conspiracy to commit murder. In a previous proceeding, the issue arose about whether Wright's constitutional rights were violated when he was not physically present at a continuance hearing. After his conviction, Wright raised several issues on appeal.

ISSUES: (1) Presence at continuance hearing; (2) premeditation jury instruction; (3) prosecutorial misconduct; (4) intent instruction

HELD: Wright's absence from the courtroom at the continuance hearing violated his constitutional rights. But that absence did not result in reversible error, because Wright's presence would not have made a difference in the outcome. The jury instruction given by the court was a correct statement of the law and the court did not err by including that language in the premeditation instruction. At the instructions conference, the prosecutor made a legally erroneous claim in asserting that case law directed certain language to be used in an instruction. But any error that resulted was harmless. Any issue regarding the intent instruction was not properly preserved. But even if addressed on the merits it does not show reversible error.

CONCURRENCE (Johnson, J. joined by Luckert, J.): Justice Johnson does not believe that Wright's absence from the courtroom during the continuance hearing was harmless error. But because statutory speedy trial rights are not of constitutional magnitude, the outcome of this decision is appropriate.

STATUTE: K.S.A. 2016 Supp. 21-5202(h)

Kansas Court of Appeals

CIVIL

ADMINISTRATIVE LAW—STATUTORY INTERPRETATION
CARLSON AUCTION SERVICE, INC. V. KANSAS CORPORATION COMMISSION
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 117,750—FEBRUARY 16, 2018

FACTS: After she was alerted by a citizen, a Highway Patrol officer stopped Carlson's driver while he was delivering a truck from Topeka to Kansas City. During an inspection, the trooper noticed that the truck did not have a USDOT number. Carlson alleged that it did not need to register its vehicles, but the driver was ticketed for failure to pay Unified Carrier Registration Act fees. The KCC then sent Carlson a notice of violation for failure to register with USDOT and pay the UCR fee. Carlson objected but the fee was upheld through the administrative process. After Carlson filed a petition for judicial review, the district court reversed the fee. It determined that since the property being delivered was the vehicle, it was not necessary to pay the UCR fee. The KCC appealed.

ISSUE: Necessity of fee payment

HELD: Carlson did not meet the definition of "motor carrier" and was not under KCC jurisdiction when driving the truck. Instead, Carlson was merely delivering a vehicle to its purchaser. Because Carlson was not subject to registration, the fine should be reversed.

STATUTE: K.S.A. 2016 Supp. 8-143(b)(4), 66-1,108(f), -1,108(i), -1,108b, -1,109, -1,109(q), -1,115, 77-603, -621(c)(4) 

ATTORNEY FEES—EVIDENCE—FRAUD—WILLS
IN RE ESTATE OF EARL O. FIELD
ELLIS DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART
NO. 116,456—FEBRUARY 16, 2018
 

FACTS: After the death of his spouse, Field prepared a will that left the bulk of his sizeable estate to Fort Hays State University. Field met Wanda Oborny and he eventually offered her a job as his bookkeeper. In that capacity, Oborny had access to Field's funds, and she received hundreds of thousands of dollars from him. After Field's death, Oborny claimed that she found a codicil to Field's will that left half of his estate to her. The codicil bore no witness signatures, but two of Oborny's friends claimed that they saw Field sign and codicil. They died prior to trial, but their testimony was admitted via videotaped deposition. After a lengthy hearing, the district court denied Oborny's attempt to admit the codicil to probate. But upon her motion, the district court granted Oborny's motion for attorney fees in the amount of $1 million. Oborny appealed regarding the codicil, and FHSU appealed the attorney fees.

ISSUES: (1) Admission of the codicil to probate; (2) attorney fees

HELD: As the proponent of a testamentary instrument, Oborny had the burden to make a prima facie case that Field had the capacity to duly execute the codicil. Field's testamentary capacity was not at issue, he was clearly competent prior to his death. And on its face, the codicil appears to comply with statutory requirements. Because Oborny met her obligations, the burden shifted to FHSU to prove that the codicil was invalid. Fraud must be proven by clear and convincing evidence. And abundant evidence supports the conclusion that the codicil was not signed by Field. It was an error of fact to conclude that Oborny acted in good faith when attempting to admit the codicil to probate. The award of attorney fees to Oborny was an abuse of discretion and that decision was reversed.

STATUTE: K.S.A. 59-606, -1504, -2224. 84-1-201(19)

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February 9, 2018 Digests

Posted By Administration, Monday, February 12, 2018

Kansas Supreme Court

Criminal

constitutional law—criminal law—death penalty—judges—juries—jury instructions—statutes
state v. kahler
osage district court—affirmed
106981—february 9, 2018

FACTS: Kahler convicted in part of capital murder. No dispute that he fatally shot four victims, but defense argued severe depression rendered Kahler incapable of forming the intent and premeditation required for capital murder. On appeal Kahler claimed:

  1. prosecutor improperly objected to defense counsel's attempt during closing argument to repeat words on a Life Alert recording made during the killings;
  2. six instances of judicial misconduct during trial;
  3. district court erred in not instructing jury on expert witness testimony;
  4. adoption of mens rea approach in K.S.A. 22-3220 unconstitutionally deprived Kahler of asserting an insanity defense;
  5. district court filed to sua sponte instruct jury on felony murder as a lesser included offense;
  6. district court denied Kahler a fair trial by prohibiting defense counsel from questioning prospective jurors about their views on the death penalty;
  7. cumulative trial errors denied Kahler a fair trial;
  8. death sentence imposed upon a severely mentally ill person violates the Eighth Amendment;
  9. the two statutory aggravating factors advanced by the State to justify the death penalty were unconstitutional; and
  10. insufficient evidence supported jury's finding that the crime was committed in an especially heinous atrocious, or cruel manner.

ISSUES:

  1. Prosecutorial error;
  2. judicial misconduct;
  3. expert witness instruction;
  4. constitutionality of Kansas death penalty statute;
  5. lesser offense felony murder instruction;
  6. limitations on defense voir dire;
  7. cumulative error during guilt phase;
  8. Eighth Amendment categorical challenge to death penalty;
  9. constitutionality of aggravating circumstances;
  10. sufficiency of the evidence of an aggravating factor

HELD: Prosecutor's objection was within the permissible latitude to object to the defense summation going beyond the admitted evidence. The alleged ill will of the prosecutor in making the objection has no bearing on whether the objection itself was prosecutorial error.

Specific allegations of judicial misconduct examined, finding only one harmless error:

  1. While district court's preliminary admonition against outbursts of opinion was reasonable, better practice to also clarify that panel members would have opportunity to raise personal concerns outside the presence of other venire members.
  2. Merely requesting trial counsel to move faster if possible is not judicial misconduct, but better practice to make such administrative requests out of panel's presence.
  3. District court's editorial comment about the instruction that counsels' statements are not evidence, given right after defense opening statement, was harmless error.
  4. No misconduct in district court judge questioning a witness for clarification, but better practice to follow the procedure in State v. Boyd, 222 Kan.155 (1977).
  5. District court's premature sustaining of prosecutor's objection to defense counsel repeating words on Life Alert recording was not judicial misconduct, but it was unassigned trial error which alone did not require reversal.
  6. District court's remarks before sending jurors to deliberate did not discourage jurors from asking any questions.

District court erred in refusing to give the requested instruction on expert witness credibility, but error was harmless.

Kahler's arguments are the same as those considered and rejected in State v. Bethel, 275 Kan. 456 (2003), which held the mental disease or defect defense adopted in K.S.A. 22-3220 did not unconstitutionally abrogate Kansas's former insanity defense. Further review of Bethel is not warranted.

Felony murder is not a lesser included offense of capital murder.

Under facts in this case, district court did not prohibit defense counsel from questioning prospective jurors during voir dire about their views on the death penalty.

Cumulative effect of trial errors did not deny Kahler a fair trial, and the identified guilt-phase errors are not the type to impact the same jury's sentencing determination.

Pursuant to State v. Kleypas, 305 Kan. 224 (2016), the Kansas death penalty is not categorically disproportionate punishment for offenders who are severely mentally ill at the time they commit their crimes.

Kansas cases have rejected Kahler's challenge to the constitutionality of the two statutory aggravating factors found in his case.

State presented sufficient evidence to establish that the killings were committed in a heinous, atrocious, or cruel manner. Evidence supports the jury's weighing determination of mitigating and aggravating circumstances, and the jury's sentencing verdict.

CONCURRENCE and DISSENT (Biles, J., joined by Stegall, J.): Concurs with majority's decision to confirm Kahler's convictions and sentences, but disagrees with majority's finding of misconduct and error by the district court judge's aside that “I normally don't do this” before giving pattern jury instruction about remarks of counsel. If error, agrees it was harmless. At worst, this should be a simple “teaching moment” to caution judges about banter with juries.

DISSENT (Johnson, J): Addresses each claim individually, generally agreeing with majority's analysis and decisions on all issues but for the following:

  • Disagrees with majority's suggestion that prosecutor's bad faith or ill will can never play any role in error analysis.
  • Disagrees with majority's reliance on Bethel to reject Kahler's constitutional challenge to K.S.A. 22-3220. Death penalty was not involved in Bethel, and Kansas Supreme Court is obligated to independently analyze whether the procedure of replacing insanity defense with mens rea approach undermines the reliability of jury's determination to impose death penalty.
  • Agrees the cumulative effect of trial errors in this case do not require reversal of the guilty verdict, but strongly disagrees that guilt-phase errors can be ignored when considering the same jury's penalty-phase decision. Would hold the errors in this case undermined the reliability of jury's death sentence, which should be vacated and remanded for a new sentencing trial.
  • Expands his Kleypas dissent to now address Kahler's Eighth Amendment claim. Categorical protection of mentally retarded defendants in Atkins v. Virginia, 536 U.S. 304 (2002), is discussed and critically compared to mentally ill defendants under Kleypas.
  • As unassigned error impacting fairness and justice, reasserts his conclusion that the death penalty violates the Kansas Constitution.

STATUTES: K.S.A. 2016 Supp. 21-3439(a)(6), -5402(d), -6617, -6619, -6619(b), 22-3414(3); K.S.A. 2012 Supp. 21-5402; K.S.A. 21-3439(a), 22-3220, -3420(3)

Kansas Court of Appeals

Civil

APPELLATE PROCEDURE—JUDGMENTS
CITY OF TOPEKA V. RAMOS
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 116,825 – FEBRUARY 9, 2018

FACTS: Ramos was ticketed by city police for traffic infractions. Without appearing in court, Ramos pled no contest and paid his ticket and court costs. Ramos apparently had a change of heart, and three months later he filed a motion to withdraw his plea. The motion was denied by a municipal judge, and Ramos appealed to district court. Once the case was in district court the city filed a motion to dismiss, claiming that the district court lacked jurisdiction because the appeal was filed more than 14 days after Ramos paid his fine. The district court granted the city's motion and Ramos appealed.

ISSUES: (1) Timeliness of the notice of appeal; (2) jurisdiction to consider motion to withdraw plea

HELD: Because Ramos never appeared in court, his sentence was effective on the date in September 2015 when he paid his fine online. Ramos did not file his notice of appeal to the district court until January 2016, well outside of the 14 days allowed by statute. Ramos' appeal was untimely and the district court did not err by dismissing the case on timeliness grounds. The ability to appeal the denial of a motion to withdraw plea differs depending on whether the plea was accepted by a municipal court or by a district magistrate judge or district judge. The plain language of K.S.A. 2016 Supp. 22-3609(a) does not allow for an appeal from the denial of a motion to withdraw plea that was entered in municipal court.

STATUTES: K.S.A. 2016 Supp. 22-3602, -3602(a), -3609, -3609(a), -3609(b), -3609a(a); K.S.A. 12-4102, -4103, -4305(a), -4305(c), -4508

Tags:  constitutional law  death penalty  judges  jury  Osage  Shawnee 

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January 30 and February 2, 2018 Digests

Posted By Administration, Monday, February 5, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF JEFFERY B. BITNER
NO. 25,188—JANUARY 30, 2018

FACTS: In a letter signed January 9, 2018, Jeffery B. Bitner voluntarily surrendered his license to practice law in Kansas. At the time of surrender, a complaint was pending which alleged multiple violations of the Kansas Rules of Professional Conduct.

HELD: The court found that the surrender of Bitner's license should be accepted and Bitner was disbarred.

criminal

constitutional law—criminal procedure—sentencing—statutues
state v. albright
kingman district court—affirmed
No. 116,408—february 2, 2018

FACTS: Albright was convicted in 1999 of first-degree murder, and a Hard 40 sentence was imposed. In 2002, Albright filed a 60-1507 motion alleging ineffective assistance of counsel. In a new trial ordered by Court of Appeals, jury again convicted Albright of first-degree murder, and a Hard 40 sentence was imposed in 2005. Conviction and sentence affirmed, finding no Apprendi violation in sentencing. State v. Albright, 283 Kan. 418 (2007). In 2016, Albright filed motion for resentencing, asserting his Hard 40 sentence was unconstitutional under Alleyne v. United States, 570 U.S. 99 (2013). District court viewed motion as a collateral attack under K.S.A. 50-1507(b) and denied the motion. Albright appealed, arguing his Hard 40 life sentence is unconstitutional under Alleyne because it is the result of judicial fact-finding.

ISSUE: Challenge to the sentence

HELD: Albright was entitled to no relief whether the district court correctly construed the pleading as a collateral attack, or whether it should have been characterized as a motion to correct an illegal sentence. Albright cannot use K.S.A. 22-3504 to challenge the constitutionality of his sentence, and there is no showing of manifest injustice to consider an untimely filed 60-1507 motion. Additionally, Alleyne cannot be applied retroactively to cases that were final when Alleyne was decided.

STATUTES: K.S.A. 2017 Supp. 22-3504; K.S.A. 22-3504, 60-1507, -1507(b), -1507(f)(2)

criminal

sentencing—statutes
state v. brune
johnson district court—affirmed
No. 116,720—February 2, 2018

FACTS: Brune pled guilty to two counts of first-degree felony murder.  Consecutive Hard 25 sentences imposed. On appeal Brune claimed the district court erred in refusing to run the sentences concurrent to each other. Brune argued consecutive sentences were overly harsh given his acceptance of responsibility, expression of remorse, willingness to enroll in rehabilitative programs, and negative effects of sentence on his family relationships.

ISSUE: Abuse of discretion in sentencing

HELD: Kansas Sentencing Guidelines Act does not preclude review of sentences classified as off-grid crimes, but under facts of this case the district court did not abuse its discretion by ordering consecutive service of Brune’s hard 25 sentences. 

STATUTE: K.S.A. 2016 Supp. 22-3601(b)(3)

Tags:  Attorney Discipline  Johnson  Kingman 

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January 26, 2018 Digests

Posted By Administration, Monday, January 29, 2018

Kansas Supreme Court

criminal

criminal law—criminal procedure—jury instructions—sentencing—statutes
state v. mclinn
douglas district court—affirmed in part, reversed in part, remanded
no. 114,506—january 26, 2018

FACTS: Jury convicted McLinn of first-degree premeditated murder. At trial she did not deny killing the victim, but argued a mental disease or defect (dissociative identity disorder) prevented her from forming the requisite culpable mental state. Jury then determined the killing was done in an especially heinous, atrocious, or cruel manner. District court imposed hard 50 life sentence with post-release supervision. McLinn appealed alleging: (1) instructional error regarding the intent needed to establish criminal liability; (2) jury should have been sua sponte instructed on second-degree intentional murder; (3) jury should have been allowed to consider the disposition of her case in determining guilt; (4) district court improperly limited defense counsel from telling jury McLinn would not mind a second trial; (5) cumulative error denied McLinn a fair determination of guilt; (6) insufficient evidence supported the jury’s finding that the murder was especially heinous, atrocious, or cruel; (7) district court erred in declining jury’s request for definition of “heinous,” “atrocious,” and “cruel;” (8) K.S.A. 2013 21-6624 is unconstitutionally vague; (9) district court erred in refusing to depart from a hard 50 sentence; and (10) error to impose lifetime post-release supervision.

ISSUES: (1) Mental disease or defect instruction, (2) instruction on lesser included offense, (3) instruction to not consider disposition of case, (4) restriction on closing argument, (5) cumulative error in guilt phase, (6) sufficiency of the evidence—finding of an especially heinous, atrocious, or cruel murder, (7) response to jury request for definitions, (8) constitutionality of K.S.A. 2013 Supp. 21-6624, (9) hard 25 sentence request, (10) lifetime postrelease supervision

HELD: District court’s mental disease or defect instruction was not clearly erroneous. Statutory definition of “culpable mental state” is not broadened to include premeditation as a culpable mental state. The state must prove premeditation and an intent to kill at the time the murder is committed. Proof of one does not prove the other.

On the facts in this case, an instruction on second-degree intentional murder would have been factually and legally appropriate, but the failure to sua sponte give the unrequested instruction was not clearly erroneous.

Pattern jury instruction, that disposition of the case was not to be considered in arriving at jury’s verdict, merely emphasized jury’s duty to determine guilt or innocence. It did not detract from instruction that informed jurors of what would happen if they determined McLinn not guilty by reason of mental disease or defect.

District court did not err in restricting defense counsel’s remarks during closing argument. Preliminary instruction given prior to opening statements, about the expense and inconvenience of a mistrial if jurors failed to follow rules, was properly issued. To allow a closing argument that McLinn would be fine with a second trial could be interpreted as encouraging jurors to violate their oath to return a verdict based solely on the evidence and to instead consider the consequences of a divided verdict. State v. Salts, 288 Kan. 263 (2009), is contrasted.

The finding of a single error defeats McLinn’s cumulative error claim.

Under facts of this case, sufficient evidence was presented of an especially heinous, atrocious, or cruel murder. K.S.A. 2013 Supp. 21-6624(f) is interpreted.

No abuse of district court’s discretion in declining to further define “heinous,” “atrocious,” or “cruel” when instructing the jury.

K.S.A. 2013 Supp. 21-6624 is not unconstitutionally vague.

District court did not abuse its discretion in declining to impose a hard 25 sentence.

District court should have imposed lifetime parole. Post-release supervision portion of McLinn’s sentence was vacated. Case remanded for resentencing to impose lifetime parole.

CONCURRENCE (Rosen, J.)(joined by Nuss C.J. and Stegall J.): Consistent with prior dissenting opinions on this issue, disagrees with majority’s holding that district court erred in not instructing jury on the lesser included offense of second-degree murder.

CONCURRENCE (Stegall, J.): Joins J. Rosen’s concurrence, and agrees with J. Johnson’s assessment of impact of State v. Tahah, 302 Kan. 783 (2015), on the instant case. District court made factual error and abused its discretion by restricting defense counsel’s closing argument, but error was harmless.

CONCURRENCE and DISSENT (Johnson, J.)(joined by Biles, J. in the concurrence): Concurs with majority but for its assessment of district court’s restrictions on defense counsel’s closing argument. Either the initial coercive instruction was wrong, or the preclusion of defense argument was wrong. Either way there was error, even if harmless.

DISSENT (Beier, J.): Jury instruction that addressed McLinn’s mental disease or defect should have included a reference to premeditation which is part of the mens rea of first-degree murder. Majority’s interpretation of K.S.A. 2013 Supp. 21-5202(a) is criticized. On this unique record the error was reversible.

STATUTES: K.S.A. 2013 Supp. 21-5202, -5202(a), -5202(d), -5209, -5402(a)(1), -6620(b)(6), -6623, -6624, -6624(f), -6624(f)(2), -6624(f)(3), -6624(f)(5), -6625, -6625(a)(1)-(8), 22-3414(3); K.S.A. 21-3401(a), 22-3220, -3420, -3504(1); K.S.A. 1992 Supp. 21-3401(a)(1); and K.S.A. 21-3401 (Weeks)

Kansas Court of Appeals

criminal

criminal procedure—sentencing—statutes
state v. sotta
sumner district court—affirmed
no. 117,187—january 26, 2018

FACTS: Sotta pled guilty to aggravated assault with a deadly weapon and aggravated burglary. Sentence imposed included registration as a violent offender under the Kansas Offender Registration Act (KORA). Sotta appealed, arguing registration under KORA was error because district court failed to comply with K.S.A. 2016 22-4902(e)(2) by making a finding on the record that Sotta used a deadly weapon when he committed aggravated assault.

ISSUE: KORA Registration—Record Finding of a Deadly Weapon

HELD: Based on Sotta’s admissions in response to court inquiries during the plea hearing, district court twice stated the factual basis for Sotta’s plea, including that Sotta had put another person in reasonable apprehension of immediate bodily harm with a deadly weapon, and the weapon was a gun. Court’s statement at the plea hearing constituted a finding on the record that Sotta had committed aggravated assault with a deadly weapon. Court order to register under KORA is affirmed, although it would have been better had the district court, in addition to the findings made, specifically stated that a deadly weapon had been used.

STATUTE: K.S.A. 2016 Supp. 22-4902(a), -4902(e)(1), -4902(e)(2)

Tags:  Douglas  Sumner 

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January 19, 2018 Digests

Posted By Administration, Tuesday, January 23, 2018
Updated: Monday, January 22, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF THEODORE R. HOEFLE
No. 22,228—JANUARY 16, 2018

FACTS: In a letter signed December 29, 2017, Theodore R. Hoefle voluntarily surrendered his license to practice law. At the time of surrender, a disciplinary complaint was pending against Hoefle. The complaint alleged that Hoefle violated Kansas Rule of Professional Conduct 8.4 (misconduct) by failing to correct a false insurance claim and failing to correct false information in a police report.

HELD: The court found that the surrender should be accepted. Hoefle is disbarred.

civil

appeals—appellate procedure—attorney and client—habeas corpus—jurisdiction—postconviction remedies
mundy v. state
lyon district court—affirmed; court of appeals—affirmed
No. 112,131—january 19, 2018

FACTS: Mundy was found guilty of making a false claim to the Medicaid program and obstructing a Medicaid fraud investigation. Sentence imposed included a suspended prison term, probation, and payment of restitution and costs. While on probation Mundy filed a pro se 60-1507 motion, alleging, in part, ineffective assistance of trial attorney. District court appointed counsel. After reviewing the record, the district court summarily denied the 60-1507 motion, finding Mundy failed to show that trial counsel’s representation was not objectively reasonable, and that Mundy failed to plead sufficient facts for an evidentiary hearing. 60-1507 counsel filed notice of appeal. Appellate counsel appointed. Mundy argued, in part, that her release from probation did not deprive courts of jurisdiction, that 60-1507 counsel was ineffective by filing only a bare notice of appeal, and that district court’s summary denial of the 60-1507 motion denied her due process by not following procedural options in Lujan v. State, 270 Kan. 163 (2000). In an unpublished opinion, the Court of Appeals agreed that Mundy’s release from probation did not deprive courts of jurisdiction, found no jurisdiction to consider claim raised for first time on appeal that 60-1507 counsel was ineffective because issue was not included in the notice of appeal, and affirmed the district court’s summary denial of the 60-1507 motion. Mundy’s petition for review was granted.

ISSUES: (1) Jurisdiction, (2) notice of appeal, (3) ineffective assistance of 60-1507 counsel, (4) adjudication of a 60-1507 motion

HELD: Issue of first impression for Kansas Supreme Court. A Kansas court obtains jurisdiction over a 60-1507 motion if it is filed while a movant is in custody, and jurisdiction is not lost if the movant’s custody ends before judgment on the motion becomes final. Adopting the standard applied in habeas context, Mundy’s release from probation did not render her appeal moot because she still faced obligation to pay restitution and costs.

Court of Appeals erred in concluding it lacked jurisdiction to determine Mundy’s ineffective assistance of 60-1507 counsel claim. Panel’s approach effectively took away the availability of a proceeding under State v. Van Cleave, 239 Kan. 117 (1986). A notice of appeal stating the appeal is being taken from trial court’s decisions is sufficiently broad to give an appellate court jurisdiction to hear a claim that counsel appointed to handle 60-1507 proceeding was ineffective, even when the claim is raised for first time on appeal.

The claim of ineffective assistance of 60-1507 counsel is not reached or decided. Mundy was entitled to effective assistance of 60-1507 appointed counsel, but the record is insufficient to resolve that issue. Mundy never requested a Van Cleave remand and Supreme Court declines to sua sponte order a remand in this case.

K.S.A 2016 Supp. 60-1507 and Kansas Supreme Court Rule 183 are interpreted. Nothing in Lujan prevents a district court from concluding without a hearing—even after counsel has been appointed - that the motions, files, and records of a case conclusively show that the movant is entitled to no relief. In this case, Mundy’s 60-1507 motion did not merit an evidentiary hearing and the district court did not err in summarily dismissing the motion.  

STATUTES: K.S.A. 2016 Supp. 60-1507, -1507(a), -1507(b), -2103, -2103(b); and K.S.A. 21-3846(a)(1), -3849, 22-4506(b), 60-2101(b)

Tags:  appellate procedure  Attorney Discipline  disbarment  habeas corpus  Lyon  Lyon District  postconviction remedies 

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January 12, 2018 Digests

Posted By Administration, Tuesday, January 16, 2018

Kansas Supreme Court

Attorney Discipline

ONE YEAR SUSPENSION
IN THE MATTER OF DANIEL HART PHILLIPS
NO. 118,210—JANUARY 12, 2018

FACTS: A hearing panel determined that Phillips violated KRPC 8.4(g) (engaging in conduct adversely reflecting on a lawyer's fitness to practice law). The issue arose after Phillips made inappropriate sexual remarks to a prospective client. During the investigation, Phillips admitted to making the comments, apologized, and blamed his prior history of substance abuse as a precipitating factor.

HEARING PANEL: At the hearing, the panel concluded that Phillips was not fully honest when answering questions from the disciplinary administrator's office. After considering the other aggravating and mitigating factors, and the Disciplinary Administrator's conditional recommendation of probation, the hearing panel recommended that Phillips be suspended for one year with a two-year term of probation starting after 30 days.

HELD: The hearing panel's findings were deemed admitted. At oral argument, the Deputy Disciplinary Administrator introduced evidence to show that Phillips was not in compliance with his proposed probation plan. Because of this evidence, the court ruled that probation was not an appropriate disposition. The court suspended Phillips for one year and refused probation.

criminal

criminal law—fraud and deceit—statutes
state v. ward
johnson district court—reversed; court of appeals—affirmed
No. 111,640—january 12, 2018

FACTS: As a loan to All Construction Guaranteed Roofing and Restoration (ACG), a company formed and operated by Ward and Rhodes, Sweeney wrote a Bank of America check to ACG. Ward added his name as a payee on the check, and deposited it in his personal account at First National Bank. State charged Ward with theft by deception from ACG or Bank of America, and with making false information. On appeal, Wade claimed insufficient evidence supported the theft by deception conviction, and the State proved the crime of forgery rather than making false information. Court of Appeals agreed and reversed both convictions. State v. Ward, 52 Kan.App.2d 663 (2016). State’s petition for review granted.

ISSUES:(1) Theft by deception; (2) making false information

HELD:On facts in this case, insufficient evidence supported Ward’s conviction of theft by deception. No proof that either of the two possible victims named in the charging document and jury instruction was deceived by Ward. Departing from panel’s analysis, Supreme Court finds the theft by deception from Bank of America fails because First National Bank, rather than Bank of America, was deceived by Ward’s actions.

Making false information and forgery statutes are interpreted, with extensive discussion of their statutory history. A defendant’s conviction for making false information can be affirmed regardless of whether the criminal conduct pertains to his or her own business or affairs. Any earlier statement in or impression from State v. Rios, 246 Kan. 517 (1990), and Sate v. Gotti, 273 Kan. 459 (2002), to the contrary is explicitly rejected. Under facts in this case, evidence that Ward altered the payee line of a check was insufficient to prove he made false information.

STATUTES: K.S.A. 2016 Supp. 21-5801(a)(1), -5801(a)(2), -5811, -5823, -5823(a), -5824, -5824(a), 84-3-103(5); K.S.A. 2012 Supp. 21-5111(e), -5111(s); K.S.A. 21-5801, -5801(a)(2), -5824, -6804, -6807; K.S.A. 1996 Supp. 21-3711; K.S.A. 21-3711 (Ensley 1988); and K.S.A. 1970 Supp. 21-3710, -3711; G.S. 1923, 21-601 through 637

Kansas Court of Appeals

Civil

ACQUIESCENCE—DEBTORS—JUDGMENTS—MOOTNESS
SECURITY BANK OF KANSAS CITY V. TRIPWIRE OPERATIONS GROUP, LLC
WYANDOTTE DISTRICT COURT—APPEAL DISMISSED
NO. 117,534—JANUARY 12, 2018

FACTS: Security Bank of Kansas City had a guaranty contract with Anthony Nichols to guarantee the debts of Tripwire Operations Group, LLC. When Tripwire defaulted on a credit card, the Bank sued Tripwire, Nichols, and Ryan Morris. After the district court granted summary judgment to the Bank, Nichols appealed. After the appeal was docketed but before it could be heard by the panel, the Bank moved to involuntarily dismiss this appeal on grounds of mootness. The Bank claimed that Nichols acquiesced in the judgment because the Bank exercised its right of setoff and took money out of Nichols' bank account to cover the judgment.

ISSUES: (1) Availability of setoff as remedy; (2) mootness; (3) acquiescence

HELD: Setoff is a statutory self-help remedy available to banks. There is no requirement that any judicial action occur before setoff is exercised. And the guaranty contract signed by Nichols included a setoff provision. In the absence of a stay of the judgment against Nichols, the Bank exercised its right of setoff and satisfied its claim against Nichols. Once the judgment was satisfied, the Bank filed a satisfaction of judgment. The satisfaction of judgment concluded this litigation, rendering this appeal moot. Because the setoff was not a voluntary relinquishment by Nichols, the doctrine of acquiescence did not apply.

STATUTES: K.S.A. 2016 Supp. 60-262(d), -2401; and K.S.A. 9-1206, 60-721

Criminal

constitutional law—criminal law—evidence—fourth amendment—search and seizure
state v. bannon
sedgwick district court—affirmed
No. 112,212—january 12, 2018

FACTS: Acting on verified information, officers located Bannon in student apartment lobby and found a concealed hand gun during a pat-down search. Bannon filed motion to suppress this evidence, arguing it was taken during a warrantless search of his person within the curtilage of his apartment, or alternatively, the officers lacked reasonable suspicion or probable cause to seize and search him. District court denied the motion, and jury convicted Bannon of criminal carrying of a weapon. On appeal Bannon claimed he was in lawful possession of the firearm because the front lobby to his apartment building qualified as part of his abode or curtilage. He also claimed the district court erred in not granting his motion to suppress, arguing the evidence was discovered as a result of an improper pat-down search. In unpublished opinion, Court of Appeals found the motion to suppress should have been granted because a warrantless pat-down search occurred without evidence a law enforcement officer had an actual, subjective belief Bannon was armed and presently dangerous, or that officers were reasonably concerned for their safety or safety of others. State’s petition for review granted. Supreme Court reversed and remanded, adopting and applying a hybrid approach to the second step of a Terry stop: testimony as to officer’s subjective belief or fear is a factor for consideration in the objective analysis of the totality of the circumstances, but absence of such testimony does not invalidate the reasonableness of a frisk. State v. Bannon, 306 Kan. 886 (2017).

ISSUES: (1) Curtilage or abode, (2) motion to suppress

HELD: Issue of first impression in Kansas as to whether the lobby of an apartment building is considered the tenant’s land or abode under K.S.A. 2012 Supp. 21-6302(a)(4). Under analysis in recent unpublished Kansas Court of Appeals case and cases in other jurisdictions, the student apartment lobby in this case was not an extension of Bannon’s apartment or abode. More than nonexclusive permissive use with others is needed. Also, at time of the stop and frisk, Bannon was sitting in a chair reading. He was not using the lobby as an extension of his land through an ingress-egress easement, and had no right under an easement to possess a firearm in the front lobby.

District court’s denial of Bannon’s motion to suppress did not violate the Fourth Amendment. The stop of Bannon in the lobby was sufficiently public for officers to initiate the stop. Considering the totality of the circumstances, and applying the hybrid test adopted by the Supreme Court, it was objectively reasonable for the officers to believe Bannon had a gun and to perform a pat-down search for their safety and the safety of others.

STATUTES: K.S.A. 2012 Supp. 21-6302, -6302(a)(4)

criminal

criminal law—evidence—statutes
state v. brazzle
riley district court—affirmed
No. 116,649—january 12, 2017

FACTS: Brazzle was convicted of drug charges involving methamphetamine and possession of oxycodone based on gray pills identified by an officer using www.drugs.com. District court allowed State to present evidence that Brazzle was involved in undercover methamphetamine transactions a week before his arrest in this case. On appeal, Brazzle claimed the admission of this K.S.A. 60-455 evidence was error because he never claimed his possession of methamphetamine was innocent, and the potential prejudice outweighed its probative value. He next challenged the jury instruction on the elements for possession of oxycodone. Third, he claimed insufficient evidence supported the oxycodone conviction because the State failed to present evidence the pill was tested, and failed to present any evidence that Brazzle did not have a prescription for that drug.

ISSUES: (1) Admission of evidence, (2) jury Instruction, (3) sufficiency of the evidence - possession of a controlled substance, (4) proof of prescription

HELD: District court did not abuse its discretion by admitting the evidence under K.S.A. 60-455. By claiming the State could not prove the items discovered in the stopped vehicle belonged to him, Brazzle essentially raised a defense of innocence, and the evidence was highly probative of his intent to distribute the methamphetamine he possessed rather than to possess it for personal use.

Brazzle invited error by advocating the version of the instruction given to the jury.

Issue of first impression in Kansas. When sufficiency of the evidence for possession of a controlled substance is challenged, uncontroverted testimony by a witness identifying the substance through consultation with www.drugs.com is sufficient to support jury’s conclusion beyond a reasonable doubt that the substance was that identified by the witness. Here, this evidence was admitted without objection and without any evidence to the contrary. The officer’s testimony was sufficient for jury to reasonably conclude the gray pills were oxycodone hydrochloride.

Relevant statutes are interpreted. Lawful possession of a controlled substance by prescription is an affirmative defense to the charge of possession of a controlled substance under K.S.A. 2016 Supp. 21-5706. A person charged with unlawful possession of a controlled substance must bring forward a claim of legal authorization to possess the controlled substance at issue.

CONCURRENCE and DISSENT (Atcheson, J.): Dissents from majority’s finding that sufficient evidence supported the possession of oxycodone conviction. Here the jurors had to speculate on the facts and basic details about the officer’s internet-based identification of the seized pills as oxycodone, and cases cited by the majority are inapposite to the majority’s conclusion.

STATUTES: K.S.A. 2016 Supp. 21-5706, 60-455, -455(b), 65-4107(b)(1)(N), -4107(b)(2), -4116(a), -4116(b), -4116(c), -4116(c)(3), -4123, -4123(a), -4123(b); K.S.A. 60-455, 65-4101 et seq.

criminal

constitutional law—due process—criminal law—criminal procedure—statutes
state v. owens
wyandotte district court—reversed and vacated
No. 116,979—january 12, 2018

FACTS: Owens was convicted in 2003 of aggravated indecent liberties with a child, and was required to register with sheriff four times a year. He did so in 2014, but was unable to pay the $20 fee for each registration. Each failure to pay was itself a crime absent compliance with K.S.A 2014 Supp. 22-4905(k)(3) which provides waiver of the fee payment only if the offender obtained a judicial finding of indigency prior to the required reporting. Owen challenged the constitutionality of that statute, as applied to him, as not providing procedural due process.

ISSUE: Due Process

HELD: Finding a defendant criminally liable for failure to pay the $20 registration fee under the Kansas Offender Registration Act violates the defendant’s procedural-due-process rights as applied in this case because Owens had no reasonably available path to get a court finding of indigency. Owens received no notice of a procedure he could use to get a court to determine he was unable to pay the fee before his registration dates, and Legislature provided no clear guidance about how one might do so.

STATUTE: K.S.A. 2014 Supp. 21-5203(f), 22-4903, -4903(c)(3), -4905, -4905(k)(3)

Tags:  Attorney Discipline  Johnson  Riley  Sedgwick  suspension  Wyandotte 

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