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June 23, 2017 Digests

Posted By Administration, Monday, June 26, 2017

Kansas Supreme Court

JURY INSTRUCTIONS—NEW TRIAL
STATE V. ASHLEY
JOHNSON DISTRICT COURT—AFFIRMED
NO. 114,052—JUNE 23, 2017

FACTS: Investigation by law enforcement implicated Ashley in the murder of a business owner. After a jury trial, Ashley was convicted of first-degree murder and attempted aggravated robbery. Ashley appealed.

ISSUES: (1) Necessity of a cautionary jury instruction for testimony from a prison informant; (2) motion for new trial; (3) use of a limiting instruction

HELD: The prison witness was not acting as an agent of the State at the time Ashley's comments were made, meaning a limiting instruction was not required. Newly discovered evidence that tends merely to discredit a witness' testimony is not grounds for a new trial. And the evidence Ashley relied on was not credible and would not have resulted in a different verdict. The limiting instruction given by the district court was appropriate given the evidence that was introduced at trial.

STATUTE: K.S.A.  60-455

 

EVIDENCE—JURY INSTRUCTIONS
STATE V. PEREZ
SEDGWICK DISTRICT COURT—AFFIRMED
No. 114,554—JUNE 23, 2017

FACTS: Perez lived in a compound in Wichita with followers who were forced to follow his will. The group was financed primarily by life insurance proceeds following the death of group members. After a group member's boyfriend alerted authorities, Perez was charged with one count of first-degree murder and multiple counts of rape, aggravated criminal sodomy, and offering a false statement.

ISSUES: (1) Admission of out-of-court statements; (2) assisted suicide instruction; (3) admission of prior crime evidence; (4) appropriateness of requested limiting instructions

HELD: Testimony from an investigating detective was not offered for the truth of the matter asserted. And even if admission of any of the evidence was erroneous, that error was harmless. Most of the testimony was duplicative of other testimony that was not challenged. The facts of this case do not support a jury instruction for assisting suicide as there was no evidence that the victim attempted to take her own life. The prior crime evidence was more probative than prejudicial, and the district court gave an appropriate limiting instruction. The limiting instructions were clearly tailored to appropriately instruct the jury.

STATUTES: K.S.A.  2016 Supp. 21-5407; K.S.A. 2015 Supp. 60-261,  -455, -455(a),-455(b), -455(c),-455(d), -460

Kansas Court of Appeals

Civil

MOOTNESS—STALKING
C.M. V. MCKEE
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 115,001—JUNE 23, 2017

FACTS: McKee lived next door to A.M.'s family. At the time of this case, C.M. was 11 years old. A.M. alleged that, on three occasions, McKee acted in ways that made her fear for her safety. A.M.'s parents filed a protection from stalking action against McKee, and it was granted by the district court. McKee appealed.

ISSUES: (1) Mootness; (2) sufficiency of the evidence

HELD: The protection from stalking order expired before this appeal could be decided. But because there is an issue that persists— specifically, whether a child can provide testimony sufficient to sustain a protective order—this appeal is not moot. There was sufficient evidence to prove that a reasonable 11-year old girl would be scared by McKee's conduct. Because of that, the district court's decision is affirmed.

STATUTE: K.S.A. 2016 Supp. 60-31a01(b), -31a02(a), -31a02(b), -31a02(c), -31a05(a)

HABEAS CORPUS—MEDICAL TREATMENT
STOCKWELL V. STATE
PAWNEE DISTRICT COURT—REVERSED AND REMANDED
NO. 115,897—JUNE 23, 2017

FACTS: Stockwell is involuntarily committed to the state Sexual Predator Treatment Program. Stockwell sought to execute an advanced directive for health care decisions, but program staff told him that he did not have the right to enter a do-not-resuscitate (DNR) order. Stockwell filed suit, and the facility allowed him to file both a DNR and a living will. But he was told those forms would be honored only if two medical professionals determined that Stockwell was terminally ill. Believing that the decision on the DNR violated his civil rights, Stockwell filed suit.

ISSUE: Does the hospital's policy on the DNR violate Stockwell's civil rights

HELD: Stockwell's right to refuse medical treatment is constitutional in nature. Because Stockwell is in State custody, the State must use reasonable efforts to accommodate his right to refuse treatment.

DISSENT: (Powell, J.) The State hospital reasonably accommodated Stockwell's wishes by requiring that his advance directive be honored under circumstances where it would be medically appropriate.

STATUTES: K.S.A. 2016 Supp. 60-1501; K.S.A. 65-4944

 

STATUTORY INTERPRETATION—WORKERS COMPENSATION
KNOLL V. OLATHE SCHOOL DISTRICT NO. 233
WORKERS COMPENSATION APPEALS BOARD—REVERSED AND REMANDED
NO. 116,167—JUNE 23, 2017

FACTS: Knoll was an employee of the school district. She was injured after falling in a parking lot, and she received medical treatment for those injuries. Knoll's injury occurred contemporaneously with amendments to the workers compensation statutes, specifically, a change which reduced from five years to three the time in which a claim must be filed. Knoll filed an application for hearing in 2011, after the statutory amendments became effective. In 2015, the District moved to dismiss Knoll's claim for lack of prosecution, since more than three years had passed since the filing of her application for hearing. Both the ALJ and the Board agreed with Knoll's defense that the version of the statute in effect at the time of her injury controlled, meaning there was a five-year time limit. The district appealed.

ISSUE: Whether the amendment to K.S.A. 44-523(f) applies retroactively

HELD: The date that the application for hearing was filed had no bearing on which version of the statute applies. But the amendment to the statute changing the time limit from five years to three was procedural, not substantive. This required retrospective application of the amendment. Applying the three-year time limitation, Knoll's claim was subject to dismissal for lack of prosecution. Knoll's claim must be dismissed.

STATUTES: K.S.A. 2016 Supp. 44-523(f)(1); K.S.A. 2011 Supp. 44-523(f)(1); K.S.A. 2009 Supp. 44-523(f), -523(f)(1); K.S.A. 2006 Supp. 44-523(f)

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June 16, 2017 Digests

Posted By Administration, Tuesday, June 20, 2017
Updated: Tuesday, June 20, 2017

Kansas Supreme Court

Criminal

constitutional law—criminal procedure
search and seizure—sentences
state v. hachmeister
shawnee district court—affirmed
court of appeals—affirmed
no. 112,260—june 17, 2017

FACTS: Police obtained search warrants during investigation of the murder of Hachmeister’s mother. Discovery of pornographic images of apparently prepubescent children during search of Hachmeister’s computer resulted in his conviction on 105 counts of sexual exploitation of a child. Sentence imposed included lifetime registration as a sex offender, based on district court finding the victims in the images were under 14 years old. Hachmeister appealed, claiming in part the district court erred in denying Hachmeister’s motions to suppress the recovered images, and claiming the sex offender registration requirement violated Apprendi. Court of Appeals affirmed in unpublished opinion. Hachmeister’s petition for review granted on two issues: (1) whether evidence from his computer should have been suppressed because it was not properly within the scope of search warrants issued during the homicide investigation; and (2) whether the district court violated Apprendi when it made the factual finding the victims were under 14 years old. 

ISSUES: (1) Search warrants; (2) lifetime registration as sex offender

HELD: All search warrants issued are reviewed. Hachmeister failed to preserve his challenge to three of them. The affidavit supporting a fourth warrant provided a sufficient basis for the district court to conclude there was a fair probability that evidence related to the murder might be found on Hachmeister’s computer.  Because probable cause supported that warrant, it did not taint the remaining warrant being challenged.

As decided in State v. Petersen-Beard, 304 Kan. 192 (2016), lifetime sex offender registration is not punishment for constitutional purposes, thus the finding that the victims were under 14 years old did not expose Hachmeister to an increased penalty within the meaning of Apprendi.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Dissents from majority’s holding that lifetime sex offender registration is not punishment. 

STATUTE: K.S.A. 22-4901 et seq., 60-2101(b)

Kansas Court of Appeals

Civil

EVIDENCE—PARENTAL RIGHTS
IN RE L.M.B., A.B., AND L.B.
KIOWA DISTRICT COURT—AFFIRMED
NO. 116,155—JUNE 16, 2017

FACTS: The children in this case were removed after a relative alleged that the parents were using drugs in the home. All three children in this case are members of the Citizen Potawatomi Nation. The tribe was notified about the child in need of care (CINC) action almost as soon as it was initiated and a member of the Citizen Potawatomi Nation testified as an expert witness at the hearing on the motion to terminate parental rights. After their parental rights were terminated, both parents appealed.

ISSUES: (1) Sufficiency of the evidence; (2) qualification of the State's expert witness; (3) active efforts to prevent the breakup of the Indian family

HELD: There was sufficient evidence that the parents were unfit such that the termination of parental rights was warranted. The State's expert witness was a member of the children's tribe and—as a professor at an Indian Nations university—was recognized by the trial community as knowledgeable in tribal customs. It is undisputed that the State made every effort to involve the children's tribe and extended family members in order to protect the children's Indian culture. And any failure to complete reintegration tasks was caused by the parents' failures and not by a lack of support.

STATUTES: 25 U.S.C. § 1912(e), §1912(f), §1914; 25 U.S.C.A. § 1912(d), § 1912(f); K.S.A. 2016 Supp. 38-2269(a), 60-261

attorney and client—constitutional law
criminal law post-conviction relief
khalil-alsalaami v. state
riley district court—reversed and remanded
no. 115,184—june 17, 2017

FACTS: Jury’s conviction of Ziad Khalil-Alsalaami (Ziad) on two counts of aggravated criminal sodomy was affirmed on direct appeal. He then filed K.S.A. 60-1507 motion alleging ineffective assistance of counsel who represented him both at trial and on direct appeal. Allegations included counsel’s failure to request an interpreter at trial. District court conducted a full hearing and denied the motion. Ziad appealed. 

ISSUE: Ineffective assistance of counsel

HELD: Ziad’s allegations were reviewed in light of counsel’s overall trial strategy that DNA evidence was transferred to the victim, and that police tricked Ziad into a false confession. Under facts in this case, Ziad’s attorney was ineffective for not requesting an interpreter at trial.  Prejudice would be presumed because this implicated the basic consideration of fairness to Ziad. Other instances of ineffective assistance are further noted, including counsel’s failure to not raise the interpreter issue on direct appeal, failure to file a motion to suppress or to mount a defense at the Jackson v. Denno hearing, stipulating to the voluntariness of the confession, failing to object to prosecutor’s questions about Ziad’s conversation with his wife, failing to object to prosecutor’s misstatement of the evidence during closing argument, and failure to raise issue of prosecutorial misconduct during closing argument on direct appeal. These errors went to the heart of counsel’s defense strategy, and their cumulative effect impacted Ziad’s ability to receive a fair trial. Reversed and remanded for further proceedings. 

STATUTES: K.S.A. 2016 Supp. 21-6627(a)(1)(D), 75-452; K.S.A. 22-3215, 60-404, -1507, 75-4351, -4351(b), -4351(e)

Criminal

creditors and debtors—criminal procedure—jurisdiction—restitution sentences—statutes
state v. jamerson
shawnee district court—reversed
no. 116,413—june 17, 2017

FACTS: Jamerson was convicted and sentenced in 2001 to prison term and over $5,000 in restitution. Restitution again ordered in 2013 resentencing. Thereafter, the district court entertained a request for and entered an order of garnishment of Jamerson’s prisoner account. Jamerson appealed, claiming the district court lacked jurisdiction to enter garnishment order prior to the conclusion of Jamerson’s resentencing appeal.

ISSUES: (1) Jurisdiction, (2) restitution

HELD: Kansas criminal code does not contain statutes outlining a procedure by which a person owed restitution may seek recovery of the judgment. When restitution is ordered, it is a judgment against the defendant which can be collected by garnishment proceedings as in any civil case. Although the district court lost jurisdiction to alter or amend Jamerson’s sentence while the case was on appeal—including the amount of restitution—it had jurisdiction to enter an order of garnishment.

District court erred when it entered order allowing garnishment of Jamerson’s inmate account. A district court has discretion to order payment of restitution while a defendant is incarcerated, but it must declare that intention unambiguously. In this case, district court failed to make clear that restitution was payable immediately, thus restitution did not become due until Jamerson's release.   

STATUTES: K.S.A. 2016 Supp. 21-6604(b)(1), -6604(b)(2), 60-729(a), -731(a), -2103(d)(1); K.S.A. 2002 Supp. 21-4603d(a)(11), -4603d(b); K.S.A. 60-4301

criminal procedure—search and seizure
state v. lewis
sedgwick district court—reversed, sentence vacated and remanded
no. 115,285—june 17, 2017

FACTS: At the completion of a traffic stop, police had Lewis exit his car so dog sniff of car could be conducted. When the dog indicated drugs, the ensuing search resulted in the discovery of cocaine inside the center console. Lewis filed motion to suppress the evidence, contending in part the police unreasonably prolonged his traffic stop to obtain a dog sniff. District court denied the motion, finding the 21-minute stop was not excessive, and the dog’s aggressive indicator was sufficient probable cause for the search. District court also found the officer’s information from a confidential informant was sufficient to establish a reasonable suspicion that Lewis might be involved in criminal activity. Lewis was convicted on stipulated facts. On appeal, he claimed the district court erred in denying the motion to suppress, arguing in part the police unreasonably prolonged the traffic top to obtain a dog sniff.

ISSUES: (1) Reasonable suspicion, (2) traffic stop

HELD: No support in the record for State’s argument that reasonable suspicion to extend the traffic stop was based on Lewis’ jumpiness. And under facts in this case, the confidential informant’s anonymous tip would not have allowed officers to infer a reasonable suspicion of illegal conduct.

Under the circumstances, where the traffic investigation had just been completed as the drug sniffing dog arrived, the officers unreasonably prolonged the traffic stop to conduct the dog sniff. Lewis’ conviction is reversed, his sentence is vacated, and case is remanded with directions to grant his motion to suppress.

STATUTES: K.S.A. 21-36a06(a), -36a06(c)(1)

Tags:  Kiowa  Riley  Sedgwick  Shawnee 

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June 9, 2017 Digests

Posted By Administration, Tuesday, June 13, 2017
Updated: Wednesday, June 14, 2017

Kansas Supreme Court

Civil

ATTORNEYS—DAMAGES
CONSOLVER V. HOTZE
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED, DISTRICT COURT IS AFFIRMED
NO. 110,483—JUNE 9, 2017

FACTS: This case was a fee dispute between attorneys Bradley Pistotnik and Stephen Brave. Each represented Consolver at different stages of her legal action. Pistotnik handled the case through discovery and mediation under a contingency fee agreement. The parties reached an agreement for a $300,000 settlement if Consolver could show that further medical treatment was necessary. But before that settlement was finalized, Pistotnik was dismissed as counsel. Pistotnik filed an attorney lien to recover fees plus his portion of the $300,000 settlement. Brave eventually settled the case for $360,000 but there was no agreement about how to satisfy Pistotnik's lien. The district court awarded $86,944.27 in attorney fees and $10,156.81 in expenses. The Court of Appeals reversed, finding that the district court's quantum meruit payment was fundamentally incompatible with a contingency fee. The Supreme Court granted review.

ISSUE: Consideration of the value of Pistotnik's services in light of the contingency fee agreement

HELD: An attorney employed under a contingency fee contract who is discharged without cause is limited to a quantum meruit recovery for the reasonable value of services rendered. The district court's decision was not an abuse of discretion.

STATUTE: K.S.A. 2016 Supp. 7-121b

HABEAS CORPUS—INEFFECTIVE ASSISTANCE OF COUNSEL
BOGGUESS V. STATE
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED
NO. 111,299—JUNE 9, 2017

FACTS: Bogguess was convicted of multiple high-level felonies after he requested a bench trial on stipulated facts. The district court engaged in a thorough colloquy with Bogguess to verify that the decision to waive a jury trial was made freely and voluntarily. On the morning of sentencing, Bogguess filed a motion to dismiss counsel, claiming ineffective assistance. It was denied, and Bogguess' convictions were affirmed on direct appeal. Bogguess subsequently filed a K.S.A. 60-1507 motion in which he again alleged ineffective assistance of counsel. The motion was summarily denied and the Court of Appeals affirmed. The Supreme Court granted review.

ISSUES: (1) Res judicata as a bar to raising claims; (2) analysis of the claim on the merits

HELD: Bogguess' collateral action raising claims of ineffective assistance was not barred by res judicata because the issues raised were not litigated on direct appeal. But the Court of Appeals correctly concluded that Bogguess' claim failed on the merits because he cannot demonstrate prejudice.

STATUTE: K.S.A. 60-1507

Criminal

criminal law—sentencing—statutes
state v. Lee
sedgwick district court—affirmed
no. 114,336—june 9,2017

FACTS: Prior to the July 1993 effective date of Kansas Sentencing Guidelines Act (KSGA), Lee committed January 1993 crimes of first-degree murder, aggravated kidnapping, kidnapping, and aggravated assault. He was convicted of all four crimes.  Sentencing court in 1995 applied the pre-KSGA sentencing statute applicable at the time Lee committed the crimes.  Lee filed 2014 motion to correct an illegal sentence, seeking conversion of his sentences to grid sentences under the KSGA.  District court summarily denied the motion. On appeal Lee argued his pre-KSGA crimes must be considered conversion eligible under rationale underlying State v. Murdock, 299 Kan. 312 (2014), and district court’s summary denial of Lee’s motion denied him his statutory right to a hearing under K.S.A. 22-3504.

ISSUES: (1) Pre-KSGA sentence conversion, (2) summary disposition

HELD: District court did not err in denying Lee’s motion. Murdock was overruled by State v. Keel, 302 Kan. 560 (2015), and State v. Jeffries,  304 Kan. 748 (2016), defeats Lee’s argument that the post-KSGA severity level of Lee’s crimes could not be used to deny conversion because there were no severity level designations at the time he committed his offense. 

District court’s summary denial of Lee’s motion was not error because record conclusively shows he was not entitled to relief. 

STATUTES: K.S.A. 2016 22-3601(b)(2); K.S.A. 21-3401, -3410, -3420, -3421, -4711(e), -4724, -4724(b)(1), -4724(c)(1), -4724(f), 22-3504, -3504(1); K.S.A. 1993 Supp. 21-4701 et seq., -4706(c)

constitutional law—criminal law—sentencing—statutes
state v. sims
sedgwick district court—affirmed
no. 114,008—june 9, 2017

FACTS:  Sims was convicted on 1995 aggravated battery. District court imposed sentence under Kansas Sentencing Guidelines Act (KSGA), classifying a 1992 juvenile adjudication for aggravated assault as a person felony.  Sims filed a 2015 motion to correct an illegal sentence, arguing the sentencing court used an incorrect criminal history score because the 1992 juvenile adjudication should have been classified as a nonperson offense under State v. Murdock, 299 Kan. 312 (2014). District court summarily denied relief. Sims appealed claiming: (1) error in the classification of the 1992 juvenile adjudication; (2) the person/nonperson classification of pre-KSGA offenses violated Apprendi case law; and (3) district court’s summary dismissal denied Sims his statutory right to a hearing under K.S.A. 22-3504.   

ISSUES: (1) Classification of the pre-KSGA offense, (2) apprendi—person/nonperson classification, (3) summary disposition

HELD: Murdock was overruled by State v. Keel, 302 Kan. 560 (2015). Applying Keel, the sentencing court properly classified Sims’ pre-KSGA aggravated assault adjudication as a person felony.

Sims’ Apprendi argument was defeated by State v. Collier, 306 Kan. __ (June 2, 2017).

District court’s summary denial of the motion was not error because record in case conclusively showed Sims was not entitled to relief.       

STATUTES:  K.S.A. 2016 Upp. 21-6810(d), -6810(e), 22-3601(b)(3); K.S.A. 21-3410, -4710(d)(2), -4710(d)(6), 22-3504, -3504(1); K.S.A. 1994 Supp. 21-4701 et seq.; K.S.A. 21-3410 (Ensley 1988)

Kansas Court of Appeals

Civil

DAMAGES—LANDLORD AND TENANT
MILLER V. BURNETT
WABAUNSEE DISTRICT COURT—REVERSED AND REMANDED
NO. 116,373—JUNE 9, 2017

FACTS: Miller rented 35 acres of pastureland from Burnett. She filed suit against Barnett, claiming that he violated the terms of their oral lease by allowing horses to graze on her rented pastureland and by denying her access for 3 months. Burnett counterclaimed, alleging that she hadn't paid rent for the current lease term. The small claims court found for Burnett and ordered Miller to pay rent. Miller appealed and the decision was affirmed by the district court. Miller appealed.

ISSUES: (1) Damages for violation of oral lease; (2) duty to mitigate damages

HELD: In the absence of the trial transcript, it was impossible to determine whether the district court's factual findings were correct. Miller had the burden to prove an adequate record and without the transcript, her claim of error must fail. Evidence showed that Miller breached the lease. But because Miller did not abandon the property, the district court erred by holding that Burnett was required to graze horses on the rented land in order to mitigate damages caused by the breach. Case had to be remanded to allow for proper application of the law to the facts.

STATUTE: K.S.A. 58-2507, -2524

CONTEMPT—JURIES—JURISDICTION
IN RE MCDANIEL
SEDGWICK DISTRICT COURT—REVERSED AND REMANDED
NO. 115,614—JUNE 9, 2017

FACTS: McDaniel was summoned for jury duty, and she timely appeared on the appointed day. She was not seated on the first day, and was told to appear at 8:45 the next morning. Prior to that time, McDaniel called to advise the jury clerk that she had child care difficulties. She offered to either come later in the day or bring her son with her. The jury clerk told McDaniel that she had no option other than to timely appear without her son. McDaniel appeared in the afternoon as promised. At that time, the jury clerk informed McDaniel that she was to appear at a hearing scheduled three days later to explain why she was late. At that hearing, where McDaniel appeared without counsel, the district court found her in direct contempt of court and imposed a 6-month jail sentence with work release after 30 days. McDaniel's mother obtained counsel for her, but counsel had a difficult time entering an appearance because the file was sealed. Four days after she was jailed, the district court summoned McDaniel back to chambers. Her sentence was commuted to time served and she was released. She appealed.

ISSUES: (1) Jurisdiction; (2) sufficiency to prove direct contempt

HELD: McDaniel's appeal was dismissed by the district court for failure to docket. Instead of filing a motion to reinstate, counsel filed a motion to docket out of time. That error was not jurisdictional, since appellate court rules governing procedure are not jurisdictional. Because McDaniel's notice of appeal was timely, the court may hear McDaniel's substantive arguments. McDaniel's failure to timely appear for jury duty did not constitute direct criminal contempt but, perhaps, indirect criminal contempt. And the proceedings in district court violated some of McDaniel's constitutional rights. And the district court did not properly complete the required journal entry. McDaniel's conviction had to be vacated.

STATUTE: K.S.A. 2016 Supp. 20-1204a(a), -1204a(d), 22-3608(c); K.S.A. 20-1201, -1202, -1203, 43-165

Criminal

criminal law—jurisdiction—statutes
state v. castillo
sedgwick district court—affirmed
no. 115,504—june 9, 2017

FACTS: Castillo entered guilty pleas to two DUI offenses.  District court imposed consecutive 1-year prison terms and 1-year post-release supervision periods. After serving both jail sentences she violated terms of her post-imprisonment supervision.  District court revoked supervision and ordered service of the balance of the supervision period in county jail.  Castillo appealed, claiming district court lacked jurisdiction to impose additional jail time. She argued the post-release period for felony DUI should be treated the same as a post-release period from other felony convictions governed by the Kansas Sentencing Guidelines Act (KSGA), and only the agency supervising her release (Department of Corrections) had authority to revoke her release and not the district court which lost jurisdiction upon sentencing. State argues this jurisdictional claim was not raised below, and Castillo failed to brief why the issue is properly before the appellate court. 

ISSUE: (1) Appellate jurisdiction, (2) jurisdiction to revoke post-release supervision or post-imprisonment supervision

HELD: Castillo’s challenge to the district court’s subject matter jurisdiction is addressed.

DUI sentences are not calculated pursuant to the KSGA because the Kansas DUI law, K.S.A. 8-1567, is a self-contained criminal statute that includes elements of the crime, severity levels, and applicable sentences. Inmates on post-release supervision remain in the legal custody of the Department of Corrections and are subject to orders of the Secretary, while DUI offenders are on post-imprisonment supervision and remain subject to jurisdiction of the district court. District court in this case had jurisdiction to revoke Castillo’s post-imprisonment supervision for her DUI offenses and to impose additional jail time.  

STATUTES: K.S.A. 2016 Supp. 8-1567, -1567(b)(3), 20-346a(b), 21-5413(h)(10), -6603(b), -6804(i)(1), 22-3716, -3716(b)(3)(B), -3717(a), 75-5291(a)(2)(G); K.S.A. 2010 Supp. 8-1567(g)(2); K.S.A. 8-1567, 75-5217

criminal law—sentencing—statutes
State v. lamone
sedgwick district court—sentence vacated and case remanded
no. 115,451—june 9, 2017

FACTS: Lamone was convicted of felony DUI based on two previous municipal court DUI convictions under a Wichita city ordinance. On appeal she argued her prior municipal convictions could not be used to enhance her DUI sentence because at the time of her previous convictions the city ordinance was broader than the state statute in defining the term “vehicle.” She also contended the trial court’s finding of fact regarding what type of vehicle she was driving when charged with DUI under the city ordinance violated Apprendi  case law.

ISSUE: Sentencing for felony DUI—use of prior DUI municipal court convictions

HELD: Trial court erred in using Lamone’s two prior municipal court convictions as a basis for convicting her of felony DUI. Wichita city ordinance was broader than the state statute, but definition of “vehicle” under the Wichita City Ordinance did not create an alternative element but only enumerated one or more factual ways of committing the single offense of DUI. Because the Wichita ordinance is not divisible, the trial court improperly invoked the modified categorical approach to consult the charging documents of Lamone’s two previous municipal court convictions to determine what type of vehicle she was operating or attempting to operate when charged with the DUI offenses. Lamone’s sentence was vacated and case was remanded for resentencing under K.S.A. 2016 Supp. 8-1567 without use or consideration of Lamone’s two previous municipal court DUI convictions. 

DISSENT (Gardner, J.): Would affirm Lamone’s sentence. Because the Wichita ordinance prohibits the acts prohibited by the state statute, under the categorical approach Lamone’s prior municipal convictions can be used to enhance her sentence. Alternatively, if alternative elements are assumed in the definition of “vehicle” in the Wichita ordinance, then the ordinance is divisible, and Lamone’s sentencing judge was permitted to examine the municipal court citations upon which her prior convictions were based.

STATUTES: K.S.A. 2016 Supp. 8-1485, -1567, -1567(a), -1567(i); K.S.A. 2013 Supp. 8-1567(a)(2), -1567(a)(3), -1567(b)(1)(D), -1567(i); K.S.A. 8-1567

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June 2, 2017, Appellate Court Digests

Posted By Administration, Monday, June 5, 2017
Updated: Sunday, January 28, 2018

Kansas Supreme Court

ATTORNEY DISCIPLINE

ORDER OF DISBARMENT
IN THE MATTER OF MARK J. SCHULTZ
NO. 13,619 – MAY 31, 2017

FACTS: In a letter signed May 17, 2017, Schultz voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217. At the time he surrendered his license, a complaint had been docketed with the office of the Disciplinary Administrator for investigation. The complaint alleged violations of KRPC 1.15 (safekeeping property) and 8.4(b) and (c) (misconduct).

HELD: The court examined the files of the office of the Disciplinary Administrator and found that the surrender of Schultz' license should be accepted, and that he should be disbarred.

ORDER OF DISBARMENT
IN THE MATTER OF DANIEL A. WILLIAMS
NO. 18,779 – MAY 31, 2017

FACTS: In a letter signed May 22, 2017, Williams voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217. At the time he surrendered his license, the office of the Disciplinary Administrator had filed a formal complaint alleging violations of KRPC 1.1 (competence), 1.3 (diligence), 1.5 (fees), 1.15 (safekeeping property), 1.16 (terminating representation), 8.1 (disciplinary matters), 8.4 (misconduct), and Supreme Court Rule 207 (cooperation).

HELD: The court examined the files of the office of the Disciplinary Administrator and found that the surrender of Williams' license should be accepted, and that he should be disbarred.

Constitutional Law—Criminal Law—Juvenile Justice Code—Sentencing
In the Matter of A.D.T.
Wyandotte District Court—Affirmed
No. 114,834—June 2, 2017

FACTS: In an Extended Juvenile Jurisdiction Prosecution (EJJP) of charges against a13-yr old, A.D.T. pled guilty to first-degree premeditated murder. District judge imposed juvenile sentence with substance abuse evaluation, and a hard-25 adult sentence which was statutorily stayed conditioned upon A.D.T’s successful completion of the juvenile sentence. A.D.T. completed the incarceration portion of the juvenile sentence without receiving the court-recommended substance abuse treatment, and was placed on conditional release which he violated twice by testing positive for drugs. District court revoked A.D.T.’s juvenile sentence and imposed the adult life sentence. A.D.T. appealed, arguing manifest injustice to impose life sentence for dirty UA’s, and claiming he did not receive proper notice of what conduct would cause the district court to invoke the adult sentence.

ISSUE: Violating conditional release in an extended jurisdiction juvenile prosecution

HELD: EJJP statutes were reviewed. District judge correctly held she had no discretion to modify the revocation of A.D.T.’s juvenile sentence, and that she was required to execute A.D.T.’s adult sentence and transfer jurisdiction to the adult criminal court. No application of the manifest injustice concept to a nondiscretionary, statutorily required judicial order where constitutionality of underlying statute was not challenged. And facts in case did not support a due process claim of being denied fair notice. On issues raised in the appeal, district court was affirmed.

CONCURRENCE (Rosen, J.): Concurred in the result, but identified and discussed areas of concern not raised in this case, including the possibility that the EJJP sentence or the failure to provide substance abuse treatment resulted in Eighth Amendment violations, and the possibility that the failure to provide substance abuse treatment resulted in a Fourteenth Amendment violation or necessitated reconsideration of A.D.T.’s original sentence. Recent changes to EJJP statutes were noted which would have exempted A.D.T. from the adult sentence, made it unlikely the juvenile sentence would have been revoked for dirty UA’s, or even if still subject to EJJP, the judge would have had authority to reconsider terms of that adult sentence before its imposition.

STATUTES: K.S.A. 2016 Supp. 38-2347(a)(1), -2364(a)(2), -2364(b); K.S.A. 2015 Supp. 22-3601(b), 38-2301, -2361(a), -2364(a)(1), -2364(a)(2), -2364(b); K.S.A. 2013 Supp. 38-2364; K.S.A. 2007 38-2301 et seq., -2347(f)(2), -2369(a)(1)(A)

Criminal

Constitutional Law—Criminal Procedure—Statutes
State v. Collier
Sedgwick District Court—Affirmed
No. 114,304—June 2, 2017

FACTS: Collier convicted of 1993 aggravated robbery. In calculating criminal history under the Kansas Sentencing Guidelines Act (KSGA), sentencing court classified three prior “residential burglary” offenses as person felonies. Collier filed motion to correct an illegal sentence, claiming these offenses were misclassified. District court summarily denied relief. Collier appealed, arguing his pre-KSGA residential burglary offenses should be reclassified as nonperson offenses under State v. Murdock, 299 Kan. 312 (2014), and State v. Dickey, 301 Kan. 1018 (2015)(Dickey I). He also claimed application of the person/nonperson classification to pre-KSGA offenses violated Apprendi, and the district court’s summary denial of his motion violated his statutory right to a hearing.

ISSUES: (1) Reclassification of residential burglary offenses, (2) person/nonperson classification, (3) summary denial of motion

HELD: State v. Keel, 302 Kan. 560 (2015), overruled Murdock. Based on Keel, Collier’s argument that Murdock should be extended to control the classification of his in-state pre-KSGA offenses fails. Applying Keel, the sentencing court properly classified Collier’s residential burglary offenses as person felonies because at the time of his current offenses, the Kansas offense comparable to the prior offenses was classified as a person crime. And Collier’s pre-KSGA conviction and adjudications were for violations of K.S.A. 21-3716 - not K.S.A. 21-3715 as in Dickey I. The impermissible judicial fact-finding present in Dickey I did not occur in Collier’s case.

Collier’s Apprendi claim had no merit. The person-crime classification generally does not require the type of historical fact-finding ordinarily at issue in Apprendi cases.

Motions, records, and files in the present case conclusively show that Collier was entitled to no relief on his claim that K.S.A. 22-3504(1) granted him the right to a hearing at which he was entitled to be personally present and to have assistance of counsel.

STATUTES: K.S.A. 2016 Supp. 22-3601(b)(3), -6810(d), -6810(e); K.S.A. 2014 Supp. 21-6811(d); K.S.A. 21-3715, -4710(d)(2), 22-3504(1); K.S.A. 1993 Supp. 21-3716, -4701et seq., -4711(d); K.S.A. 21-3716 (Ensley 1988)

Criminal Procedure
State v. Donaldson
Sedgwick District Court—Reversed and Remanded
No. 114,032—June 2, 2017

FACTS: Donaldson was convicted of first-degree felony murder and sale of cocaine. Sentence imposed under the Kansas Sentencing Guidelines Act (KSGA) based on a criminal history that included a 1990 felony burglary adjudication which district court classified as a person crime. Donaldson filed motion to correct an illegal sentence, claiming error in that classification under State v. Dickey, 301 Kan. 1018 (2015)(Dickey I). District court summarily denied relief. Donaldson appealed.

ISSUE: Person/nonperson classification of pre-KSGA offenses

HELD: Burglary statute at time of Donaldson’s 1990 juvenile adjudication did not require proof the crime involved a “dwelling.” Sentencing court’s conclusion that it did so resulted in a higher criminal history score than otherwise would have applied. Sentence imposed based on this erroneous criminal history score was illegal. District court’s summary denial of relief was reversed. Based on Dickey I, Donaldson’s sentence for the sale of cocaine was reversed and remanded with directions to reclassify the 1990 burglary adjudication as a nonperson felony. State’s arguments for why Dickey I should not dictate outcome of this case were reviewed and rejected.

STATUTES: K.S.A. 2016 Supp. 22-3601(b)(3); K.S.A. 21-3715, -3715(a), -4701 et seq., -4705, -4705(a), -4705(d), -4709, 22-3504(1), 65-4161(a); K.S.A. 2002 Supp. 21-4711(d); K.S.A. 1990 Supp. 21-3715

Criminal Procedure—Statutes
State v. Kingsley
Sedgwick District Court—Affirmed
No. 114,468—June 2, 2017

FACTS: Kingsley was convicted of first-degree premeditated murder for a 1991 killing. District court imposed hard-40 sentence recommended by jury. Conviction and sentence were affirmed on direct appeal. Kingsley filed 2014 motion to correct an illegal sentence, seeking conversion of indeterminate sentences to grid sentences under Kansas Sentencing Guidelines Act (KSGA). He also claimed error in his presentence investigation (PSI) report as listing Florida convictions that never occurred. District court ordered correction to the PSI, but decided resentencing was unnecessary because an illegal sentence was not created by the error. Kingsley appealed, arguing the sentencing court’s mistaken view of Kingsley’s criminal history rendered his sentence illegal, and he was denied due process because of the erroneous PSI.

ISSUES: (1) Legality of sentence, (2) constitutional claim

HELD: Kingsley’s hard-40 sentence conforms to the then-controlling statutory provision, and was not an illegal sentence. The hard-40 sentencing determination in Kingsley’s case did not turn on his criminal history classification, and Kingsley’s reliance on cases involving direct appeals from sentences imposed under the KSGA was misplaced.

      Kingsley’s due process claim is not cognizable in a motion to correct an illegal sentence.

STATUTES: K.S.A. 2016 Supp. 22-3601(b)(2), -3601(b)(3); K.S.A. 21-4606, -4701 et seq., 22-3504, -3504(1); K.S.A. 1991 Supp. 21-4624(6), -4628

Appeals—Civil Procedure—Criminal Procedure
State v. Swafford
Saline District Court—Affirmed
No. 114,534—June 2, 2017

FACTS: Swafford was sentenced in 1993 to life sentence for felony murder and 15 years to life for aggravated robbery, with sentences to be served consecutively to each other and to sentences imposed in separate cases in Saline and Geary counties. Convictions and sentences were affirmed on direct appeal. Swafford filed fourth motion to correct an illegal sentence, arguing district judge’s pronouncement of consecutive sentences was ambiguous, and district judge was prohibited from ordering consecutive service of sentence to underlying Geary County that had pending probation revocation proceeding. District court summarily denied the motion. Swafford then filed motion for additional findings. District court denied the motion and cancelled the hearing date that had been set. Swafford appealed the next day, arguing the district court erred in denying the motion to correct an illegal sentence, and denied Swafford due process when it cancelled the scheduled hearing on the motion for additional findings. State challenged appeal as untimely filed within 14 days.

ISSUES: (1) Appellate jurisdiction, (2) legality of sentence

HELD: Swafford timely filed his appeal. No support for 14-day limit cited by the State. As in K.S.A. 60-1507 proceedings, Swafford had 30 days to appeal from entry of judgment. Under facts in this case, Swafford timely filed a motion for additional findings of fact within 28 days, which tolled the time for filing an appeal. When district court denied the motion for additional findings, Swafford had 13 days to appeal the denial of his motion to correct an illegal sentence.  

     District court’s summary denial of motion to correct an illegal sentence was affirmed. Under facts in case, there was no ambiguity in Swafford’s sentence, and district court had discretion to impose sentence while Swafford’s probation revocation proceeding was pending in Geary county.

STATUTES: K.S.A. 2016 Supp. 22-3608(c), 60-252, -259, -2103(a); K.S.A. 21-4608(f)(3), 22-3504, -3606, 60-1507; K.S.A. 21-4501(a), -4501(b) (Ensley 1988); K.S.A. 1980 Supp. 21-4608(2)

Kansas Court of Appeals

CIVIL

ADMINISTRATIVE LAW—SECURITIES—STATUTORY INTERPRETATION
SCHNEIDER V. THE KANSAS SECURITIES COMMISSIONER
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 115,383—JUNE 2, 2017

FACTS: Schneider is an investment adviser representative and broker-dealer. In that capacity, he advised the Silvermans on their investments. After Jeffrey's death, Mary Lou called Schneider to discuss the investments in hopes that he could find a way to generate more income for her. Schneider invested her funds in inverse investment products called exchange traded funds (ETFs). Schneider made this decision despite learning that these products were not suitable for retail investors. Ultimately, the account suffered losses in excess of $90,000. Because of this, the Securities Commissioner sought sanctions against Schneider under the Kansas Uniform Securities Act (KUSA). A district court affirmed sanctions of $25,000 in addition to restitution covering all of the losses. Schneider appealed.

ISSUES: (1) Use of FINRA notice as governing legal standard; (2) sufficiency of the evidence

HELD: There was no evidence that the court improperly relied on a FINRA notice; the initial notice contained several Kansas regulation references. Testimony at the hearing relied on a variety of sources, not just the FINRA notice. An expert witness cannot testify to a legal conclusion, as that role is left to the tribunal. And there was no evidence that the ETF product was a suitable investment for Schneider's client. There was no evidence that the Commissioner attempted to enforce an unpublished internal policy of the agency. The Commissioner did not violate the non-delegation doctrine. There was substantial competent evidence to support the Commissioner's findings.

STATUTES: K.S.A. 2016 Supp. 77-415(b)(1), -415(c)(4), -621(a)(1), -621(c), -621(d); K.S.A. 17-12a412, -12a412(d)(13), 77-425, -527, -623

ATTORNEY FEES—INSURANCE—STATUTORY INTERPRETATION
ALLIANCE INDEMNITY CO. V. KERNS
JOHNSON DISTRICT COURT—AFFIRMED
NO. 115,882—JUNE 2, 2017

FACTS: Kerns was involved in an automobile accident while driving a rental car that was secured for her by her employer. She was insured under an auto policy issued by Alliance. Her employer carried a policy issued by Federal Insurance Company, and Kerns suggested that she was covered under that policy in addition to any coverage coming from her own policy with Alliance. Kerns obtained a default judgment against the other driver, who was uninsured. Alliance paid uninsured motorist benefits under Kerns' policy. Kerns filed suit in Missouri. While that suit was pending, Alliance filed a declaratory judgment action in Kansas, seeking a determination of its applicable coverage under both Kerns' policy and the Kansas anti-stacking statutes. After the Missouri court found in Alliance's favor, a panel of this court remanded this case to the district court so that the declaratory judgment action could be dismissed without prejudice. On remand, Kerns moved for an order awarding attorney fees and expenses. The district court refused to award fees and Kerns appealed.

ISSUE: Basis for an award of attorney fees

HELD: Kansas courts will not award attorney fees in the absence of a statute authorizing the fees or an agreement between the parties. Kerns did not gain coverage by legal action; the suit was dismissed after Kerns received an adverse decision in Missouri. And it does not appear that the legislature intends to allow for the recovery of attorney fees to parties who successfully defend a declaratory judgment action. In a lawsuit, "costs" do not include attorney fees.

STATUTE: K.S.A. 23-9,313, 26-509, 40-908, 50-505, 60-1305, -1703, -1711

PRODUCT LIABILITY
CORVIAS MILITARY LIVING V. VENTAMATIC, LTD.
GEARY DISTRICT COURT—REVERSED AND REMANDED
NO. 116,307—JUNE 2, 2017

FACTS: Corvias builds, owns, and manages private family housing at Fort Riley. Through subcontractors, Corvias purchased a number of bathroom exhaust fans manufactured by Ventamatic. Over time, it was alleged that a defective electrical motor in these fans caused several fires in Corvias-built residences. After replacing all of the fans, Corvias filed suit against Ventamatic and other defendants, asserting a product liability claim. The district court found in Ventamatic's favor and Corvias appealed.

ISSUE: Whether recovery is barred by the integrated system approach

HELD: The exhaust fans were easily distinguishable from the other property that was damaged by fires. In order to be "integral", the damaged property must be unable function properly without the allegedly defective product. That was not the case here, as the exhaust fans are not integral to the function of the damaged housing units. For that reason, the district court erred by dismissing on summary judgment Corvias' product liability claim.

STATUTES: K.S.A. 2016 Supp. 60-256(c)(2); K.S.A. 60-3302(c), -3302(d)

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May 26, 2017 Digests

Posted By Administration, Tuesday, May 30, 2017
Updated: Sunday, January 28, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN RE ALVIN R. LUNDGREN
NO. 117,201—MAY 26, 2017

FACTS: Lundgren is licensed in Kansas but he resides in Utah. Lundgren was found to have violated KRPC 1.15(a) and (d) (safekeeping property), 8.3(a) (reporting professional misconduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), Rule 207(c) (failure to report action), and Rule 208(c) (failure to notify Clerk of the Appellate Courts of a change of address). The violations stemmed from an allegation that Lundgren practiced law in California without a license. It was also alleged that Lundgren was not truthful during disciplinary proceedings in several states, and that he misappropriated client funds while practicing in Utah. Lundgren failed to notify the disciplinary administrator of any discipline imposed in other states.

HEARING PANEL: The hearing panel determined that Lundgren's conduct in other statutes constituted a disciplinary violation in Kansas. The disciplinary administrator rejected Lundgren's request for probation and recommended that he be disbarred. The hearing panel adopted the disciplinary administrator's recommendation.

HELD: The court adopted the hearing panel's findings of fact. Lundgren failed to appear at the hearing before the court or to provide written testimony. The court adopted the hearing panel's recommendation and ordered that Lundgren be disbarred.

 

PUBLISHED CENSURE
IN RE JEFFERY A. SUTTON
NO. 117,357—MAY 26, 2017

FACTS: Sutton was accused of violating KRPC 1.4(b) (communication), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The complaint related to Sutton's conduct with his client in a post-divorce matter.

HEARING PANEL: The panel acknowledged that Sutton's client was difficult. And Sutton fully complied with the investigation and produced good character letters from colleagues. The disciplinary administrator asked for a short suspension. Sutton's counsel asked for an informal admonition. The hearing panel recommended public censure.

HELD: The court adopted the hearing panel's findings and conclusions. After finding that Sutton's conduct was negligent the court imposed discipline of public censure.

Civil

CIVIL PROCEDURE—STATUTE OF LIMITATIONS
LOZANO V. ALVAREZ
FORD DISTRICT COURT—COURT OF APPEALS IS AFFIRMED—DISTRICT COURT IS AFFIRMED
NO. 113,060—MAY 26, 2017

FACTS: Lozano filed a tort action against the Alvarezes. That action was dismissed for lack of prosecution. Using the saving statute, the action was refiled and then dismissed again for lack of prosecution. Lozano filed a third action, again relying on K.S.A. 60-518 to save the filing. The district court granted the Alvarezes' motion to dismiss, finding that K.S.A. 60-518 may only be used once. The Court of Appeals affirmed the dismissal and the Supreme Court accepted review.

ISSUE: May K.S.A. 60-518 be applied more than once

HELD: K.S.A. 60-518 may not be invoked after the expiration of 6 months following the dismissal of the original action that was filed within the statute of limitations. The savings statute does not modify the statute of limitations or create a new one, it merely tolls the statute of limitations under certain circumstances in order to allow for a decision on the merits.

STATUTE: K.S.A. 60-518

Criminal

HABEAS CORPUS—PRO SE LITIGANTS
STATE V. DITGES
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 113,775—MAY 26, 2017

FACTS: Ditges filed a motion to correct illegal sentence in district court, claiming that his sentence was illegal because the district court failed to include a required jury instruction. After that motion was summarily denied, Ditges appealed.

ISSUE: Was the district court required to construe Ditges' motion as a request for relief under K.S.A. 60-1507?

HELD: Ditges' clear citation to K.S.A. 22-3504(1) and his knowledge about time limitations shows that he was attempting to correct an illegal sentence. And Ditges' motion to reconsider reiterated that he sought only to change his sentence, not his conviction. These actions are not consistent with a K.S.A. 60-1507 motion. Had the motion been construed as one filed under K.S.A. 60-1507, Ditges was not entitled to relief. The motion was filed well outside of the statutory time limit and there was no allegation of manifest injustice. And there is little chance that Ditges would have been able to succeed on the merits of his argument.

STATUTES: K.S.A. 2016 Supp. 60-1507(d); K.S.A. 22-3414(3), -3504, -3504(1), 60-1507, -1507(f)

APPELLATE PROCEDURE—GUILTY PLEA
STATE V. REU-EL
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 113,799—MAY 26, 2017

FACTS: After entering a no contest plea but prior to sentencing, Reu-El filed a motion to withdraw his plea, claiming that the district court lacked jurisdiction because of a double jeopardy defense. After that motion was denied, he appealed.

ISSUE: Whether it was error to deny the motion to withdraw guilty plea?

HELD: The root of Reu-El's complaint is whether he was misinformed about whether he could continue to raise a double jeopardy claim on appeal after entering a no contest plea. A court considering a motion to withdraw plea should look at the entire plea process, including the written agreement, counsel's advice, and the plea colloquy before the court, to see whether the plea was entered voluntarily. The written plea agreement did not contain any misinformation and the colloquy also gave Reu-El accurate information. Nothing in the record suggests that counsel misled Reu-El regarding his appellate rights.

STATUTE: K.S.A. 2016 Supp. 22-3208(4), -3210(a), -3210(d)(1), -3210(d)(2), -3602(a)

EVIDENCE—JURY SELECTION—STATUTORY INTERPRETATION
STATE V. ROBINSON
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 113,684—MAY 26, 2017

FACTS: Robinson was charged with premeditated first-degree murder, aggravated burglary, and misdemeanor theft and a jury found him guilty of all charges. He received a hard 50 life sentence and appealed a variety of trial and sentencing errors.

ISSUES: (1) Exclusion of evidence regarding other online postings by the victim; (2) prosecutorial misconduct; (3) sufficiency of the aggravated burglary evidence; (4) Imposition of the hard 50 life sentence; (5) limitation on voir dire; (6) adequacy of sentencing notice

HELD: Evidence of the victim's willingness to have sex on first dates was not material to Robinson's defense. The State never attempted to prove that Robinson committed rape. The use of the word "strangulation" does not require that the victim died of strangulation but merely implies a hand placement that restricts breathing. This made the prosecutor's statements consistent with the evidence. The prosecutor's comments on premeditation were consistent with the law. The prosecutor's passing reference to Santa Claus bore little weight and was unlikely to have distracted the jury or jeopardized the verdict. In order to support a verdict for aggravated burglary the "human being" referenced in the statute must be alive. Here, the jury found that the victim was still alive when Robinson formed the intent to steal her possessions. Retroactive application of K.S.A. 21-6620 does not violate the ex post facto clause. There is no constitutional right to case-specific mitigation questioning during voir dire. The statute requires the prosecutor to give "reasonable" notice that a hard 50 sentence will be sought. The notice provided by the prosecution in this case was reasonable.

CONCURRENCE AND DISSENT: (Johnson, J.) would reverse Robinson's conviction for aggravated burglary because of the lack of proof that Robinson remained in the house without authority.

STATUTES: K.S.A. 2013 Supp. 21-5807, -6620(c)(1), -6620(d); K.S.A. 21-6620, 22-3408(3), 60-401(b)

Kansas Court of Appeals

Civil

CIVIL PROCEDURE—OPEN RECORDS
GREEN V. UNIFIED GOVERNMENT OF WYANDOTTE COUNTY
WYANDOTTE DISTRICT COURT—REVERSED AND REMANDED
NO. 116,038—MAY 26, 2017

FACTS: Trina Green asked to see records about the shooting of her son by law enforcement officers. The Wyandotte County Sheriff's Department and the Kansas City (Kansas) Police Department refused her request, citing an exception to disclosure for criminal-investigation records. Green sued to get an order to produce the records. The Unified Government filed a motion to dismiss with prejudice that was granted by the district court, and Green appealed.

ISSUE: Whether the request for records was properly denied

HELD: A district court must not make factual findings when deciding a motion to dismiss for failure to state a claim. Instead, it must accept the facts that have been included in the petition. The district court's order did not provide any findings of fact on how release of the requested records would be problematic. The district court abused its discretion by ruling without an evidentiary record and without weighing the statutory factors.

STATUTES: K.S.A. 2016 Supp. 45-221(a)(10), -222(c), 60-212(b)(6); and K.S.A. 45-216(a)

CONTRACTS—DIRECTED VERDICT—FIDUCIARY RELATIONSHIP—FRAUD
RAIL LOGISTICS L.C. V. COLD TRAIN, L.L.C.
JOHNSON DISTRICT COURT—AFFIRMED IN PART AND REVERSED IN PART
NO. 115,416—MAY 26, 2017

FACTS: Lerner and Mnichowski were co-managers of Rail Logistics, L.C. and Cold Train, L.L.C., but after a falling out, they ended their business relationship. The dissolution of the relationship resulted in three interconnected written agreements—an exchange agreement, a promissory note, and a pledge agreement—designed to end the joint ownership. Lerner kept Rail Logistics and Mnichowski took Cold Train. Cold Train borrowed money from Rail Logistics, and Cold Train pledged not to encumber any of its assets until Rail Logistics was repaid. Mnichowski violated the terms of that pledge agreement, and Rail Logistics took over Cold Train. A jury found in favor of Rail Train on four theories, including fraud by silence and constructive fraud. Mnichowski appealed.

ISSUES: (1) Judgment as a matter of law; (2) erroneous jury instruction; (3) sufficiency of the evidence; (4) constructive fraud claim

HELD: The three written instruments must be considered jointly, and when construed that way, they justify the jury's verdict. Because this is true, the jury was properly instructed. There was sufficient evidence to support the verdict. In order to succeed with a claim of constructive fraud, the plaintiff must show a confidential relationship. There was no evidence of such a relationship here.

STATUTE: K.S.A. 2016 Supp. 60-250(a)(1)

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May 19, 2017 Digests

Posted By Administration, Tuesday, May 23, 2017
Updated: Wednesday, January 31, 2018

Kansas Supreme Court

Criminal

CRIMINAL PROCEDURE—SENTENCING
STATE V. BAILEY
JOHNSON DISTRICT COURT—AFFIRMED AND REMANDED WITH DIRECTIONS
NO. 112,888—MAY 19, 2017

FACTS: Bailey was convicted of first-degree felony murder and sentenced to a term of life imprisonment. The district court also set a restitution amount of $37,521.07. Bailey's conviction was affirmed on direct appeal and he has had numerous other appeals relating to his sentence. This appeal comes after Bailey filed a motion to find that his restitution judgment was dormant and that any funds already paid should be reimbursed to him. He also appeals the denial of his motion to correct illegal sentence.

ISSUES: (1) Was restitution wrongly collected; (2) is Bailey's sentence illegal

HELD: The sentencing court merely provided an advisory calculation of restitution for the parole board to consider, rather than an enforceable judgment of restitution. Because there was no order, the dormancy statutes do not apply. But a clerical error triggered the wrongful collection of Bailey's money, and the case had to be remanded to correct that error which was affecting the current collection of restitution from Bailey. Bailey's offenses were properly classified and his sentence was not illegal.

STATUTES: K.S.A. 2013 Supp. 60-2403; K.S.A. 1993 Supp. 21-3401(b), -3427; K.S.A. 1991 Supp. 21-4603; K.S.A. 1986 Supp. 21-4603; K.S.A. 22-3504, 60-2403, -2404

EVIDENCE—JURY INSTRUCTIONS—PROSECUTORIAL MISCONDUCT
STATE V. DAVIS
SHAWNEE DISTRICT COURT—AFFIRMED IN PART AND REVERSED IN PART
NO. 113,537—MAY 19, 2017

 FACTS: Davis was arrested for the murder of 8-year-old, A.I. He was apprehended and taken to the police station. After an interrogation which detectives alleged was consensual, Davis admitted to multiple burglaries and also confessed that he beat, choked, and raped A.I. before putting her in the clothes dryer where she was found. Davis denied that he intended to kill her and expressed surprise that she was dead. Davis was convicted of multiple counts, including capital murder and rape. The jury declined to impose the death penalty.

ISSUES: (1) Was there sufficient evidence of premeditation; (2) was Davis prejudiced by prosecutorial misconduct; (3) was Davis' confession properly viewed as voluntary; (4) were the jury instructions erroneous; (5) were convictions for capital murder and rape multiplicitous

HELD: In order to prove lack of premedication, Davis must establish that evidence supporting the State's theory was legally insufficient. Death by strangulation presents strong evidence of premeditation. The prosecutor misstated the law during closing argument and injected error into the trial. Because of the ample evidence at trial, the error did not affect the trial's outcome. And if Davis meant to rely on a voluntary intoxication theory, he had the burden to prove impairment. The record supports the district court's decision not to suppress Davis' confession. The jury was instructed on unanimity in a separate instruction, rendering Davis' requested instruction unnecessary. Because the jury was properly instructed, there was no error in refusing a jury instruction that would merely have added emphasis. Because Davis was convicted of capital murder for a killing caused during commission of or subsequent to rape, his conviction for rape was multiplicitous and must be reversed.

STATUTES: K.S.A. 2016 Supp. 60-261; K.S.A. 2011 Supp. 21-5401(a)(4), -5401(a)(7), -5402(a)(1)

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May 12, 2017, Appellate Court Digests

Posted By Administration, Tuesday, May 16, 2017
Updated: Monday, September 10, 2018

Kansas Supreme Court

Civil

Appeals–Criminal Procedure–Post-conviction Remedies–Sentences
Kirtdoll v. State
Shawnee District Court – Affirmed
No. 114,465 – May 12, 2017
FACTS:

Kirtdoll’s 2004 conviction and hard 50 sentence were affirmed in his direct appeal which included an Apprendi  challenge to his hard 50 sentence. No relief was granted in his two post-conviction motions under K.S.A. 60-1507. He filed a post-conviction motion in 2013, citing Alleyene v. United States, 570 U.S. __ (2013). District court analyzed the motion under K.S.A. 22-3504 and K.S.A. 60-1507 and denied relief, finding a motion to correct an illegal sentence could not be used to raise a constitutional claim, and the change in the law in Alleyne did not excuse a successive and untimely motion under K.S.A. 60-1507. Kirtdoll appealed.

ISSUES: (1) Appellate jurisdiction, (2) retroactive application of Alleyne to final cases
HELD:

To dispose of the entire matter, the 60-1507 portion of the appeal is transferred to the Kansas Supreme Court on its own motion. 

To the extent Kirtdoll’s motion is considered a motion to correct an illegal sentence under K.S.A. 22-3504, the rule of law in Alleyne cannot be applied retroactively to invalidate a sentence that was final when the Alleyne decision was released.  For K.S.A. 60-1507 motions to be considered hereafter, Alleyne’s prospective-only change in the law cannot provide the exceptional circumstances required to permit a successive 60-1507 motion, or the manifest injustice necessary to excuse an untimely 60-1507 motion.

STATUTES: K.S.A. 2016 Supp. 22-3601(b)(3), 60-1507(d); K.S.A. 2013 Supp. 21-6620; K.S.A. 20-3018(c), 21-4635, 22-3504, 60-1507

Criminal

Criminal Procedure–Sentences–Post-conviction Remedies
State v. Brown
Wyandotte District Court – Affirmed
No. 114,350 – May 12, 2017
FACTS:

Brown’s 1999 conviction and hard 40 life sentence were affirmed on direct appeal, and he obtained no relief from various post-conviction motions. In 2013 he filed a motion to correct an illegal sentence, K.S.A. 22-3504, citing Alleyne v. United States, 570 U.S. __ (2013). District court denied relief, finding Alleyne did not apply retroactively to cases that were final when Alleyne was decided.  Brown appealed, arguing K.S.A. 2013 Supp. 21-6620 mandates retroactive application of Alleyene.

ISSUE: Retroactive Application of Alleyne to Final Cases
HELD:

A claim that a sentence violated the holding in Alleyne does not fit within the definition of an illegal sentence that may be addressed with a K.S.A. 22-3504 motion to correct an illegal sentence. K.S.A. 2013 Supp. 21-6620(d)(2) does not provide an independent reason to correct a hard 40 life sentence, such as Brown’s, that was final prior to June 2013. Because his conviction and sentence have not been vacated, they are excluded from that statute’s hard 50 sentencing procedures.

STATUTES: K.S.A. 2013 Supp. 21-6620, -6620(d)(2); K.S.A. 22-3504, -3504(1), 60-1507

Tags:  Shawnee District  Wyandotte District 

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May 5, 2017, Appellate Court Digests

Posted By Administration, Tuesday, May 9, 2017
Updated: Monday, September 10, 2018

Kansas Supreme Court

CIVIL

ADMINISTRATIVE LAW—CIVIL PROCEDURE
BOARD OF COUNTY COMM'RS V. KANSAS RACING & GAMING COMM'N
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 115,978—MAY 5, 2017

FACTS: Castle Rock Casino Resort, LLC and the Board of County Commissioners of Cherokee County filed this action after the Kansas Lottery Commission selected Kansas Crossing Casino, LLC to manage a state-owned and operated casino in Southeast Kansas. The Lottery Commission rejected Castle Rock's proposal and suggested the state would be better served by a smaller casino in Crawford County, primarily because Castle Rock's proposed site was directly across the state line from a large casino in Oklahoma. After the Lottery Commission made its selection, the Kansas Racing and Gaming Commission received many public comments, many of which disagreed with the Lottery Commission's choice. After a public hearing, the KRGC voted unanimously to approve Kansas Crossing's proposed facility. Cherokee County sought review in district court, as did Castle rock. The district court denied the requests for relief, finding that the decision to select Kansas Crossing was not arbitrary, capricious, or unreasonable in light of the Southeast Kansas market. The motion to alter or amend was denied.

ISSUES: (1) Was the scope of discovery appropriate; (2) was there error when ruling on the motion to amend the petitions; (3) was there error in refusing to allow an evidentiary hearing; (4) did the KRGC misapply the lottery act by failing to make required findings; (5) was the KRGC's decision supported by sufficient evidence

HELD: The scope of discovery was within the trial court's discretion and it was unclear whether traditional discovery was available in proceedings under the KJRA. It did not matter in this case, though, since the district court disallowed discovery because the requested discovery did not relate to issues raised in the petition for judicial review. Because Appellants did not brief the issue of whether amended petitions would have prejudiced the defendants, the district court was affirmed on that issue. The request for an evidentiary hearing was a duplicative renewed motion for discovery that was properly denied. The KRGC has broad discretion to decide which gaming contract is best for the state. The statute does not specifically require findings of fact. The record as a whole shows substantial evidence to support the choice of Kansas Crossing.

STATUTES: K.S.A. 2016 Supp. 74-8702(f)(2), -8734(b), -8734(g), -8734(h) -8735, -8735(a), -8735(h), -8736(b), -8736(e), -8737, 77-603(a), -614(b), -614(c), -621(a), -621(c), -621(d); K.S.A. 2015 Supp. 74-8736(b), 77-621(c); K.S.A. 2007 Supp. 74-8702(f), -8734(a); K.S.A. 77-606, -619(a)

 CRIMINAL

criminal law—sentences
state v. reese
sedgwick district court—affirmed
court of appeals—affirmed
no. 110,021—may 5, 2017

FACTS: Reese convicted of aggravated assault with a deadly weapon. The sentencing court applied recent amendments to Kansas Offender Registration Act (KORA) making Reese’s use of deadly weapon a person felony, and lengthening the time violent offenders are required to register. Reese filed post-judgment motions to challenge the retroactivity of the KORA amendments. District court ruled that it lost subject matter jurisdiction once the sentencing order became final. Reese appealed, arguing the district court possessed jurisdiction to consider his challenge as a motion to correct an illegal sentence. In unpublished opinion, Court of Appeals cited cases that rejected a similar argument, and dismissed the appeal for lack of jurisdiction. Reese’s petition for review granted.

ISSUE: Motion to Correct Illegal Sentence - Constitutional Claim

HELD: Lower courts had jurisdiction to hear and consider Reese’s motions to correct an illegal sentence, but Reese’s claim is premised on allegations of constitutional deficiencies. As in State v. Dickey, 305 Kan. 217 (2016), Reese advanced no meritorious argument demonstrating his sentence is illegal, so his claim fails on the merits. Judgments below are affirmed as right for the wrong reason.

STATUTES: K.S.A. 2016 Supp. 22-4902(e)(2), -4906(a)(1); K.S.A. 22-3504, -3504(1), -4901 et seq.

 

criminal law—sentences
 state v. Wood
sedgwick district court—affirmed; court of appeals—affirmed
no. 111,243—may 5, 2017

FACTS: Wood was convicted in 2003 of attempted indecent liberties with a child. Sentence imposed included certification of Wood as a sex offender with duty to register. Kansas Offender Registration Act (KORA) was amended in 2011 to increase registration period from 10 to 25 years. Woods filed motion challenging the retroactive application of the 2011 amendments. District court ruled it lacked jurisdiction to consider Wood’s constitutional claims. Wood appealed, arguing the district court possessed jurisdiction to consider his challenge as a motion to correct an illegal sentence. In unpublished opinion, Court of Appeals cited cases that rejected a similar argument, and dismissed the appeal for lack of jurisdiction. Wood’s petition for review granted.

ISSUE: Motion to correct illegal sentence—Constitutional claim

HELD: Lower courts had jurisdiction to hear and consider Wood’s motions to correct an illegal sentence, but Wood’s claim was premised on allegations of constitutional deficiencies. As in State v. Dickey, 305 Kan. 217 (2016), Wood advanced no meritorious argument demonstrating his sentence was illegal, so his claim failed on the merits. Judgments below were affirmed as right for the wrong reason.

STATUTES: K.S.A. 2011 Supp. 22-4906(b)(1)(E); K.S.A. 2002 Supp. 22-4902(c)(2), -4906(b); K.S.A. 22-3504, -3504(1), -4901 et seq.

 

constitutional law—criminal law—search and seizure
state v. zwickl
reno district court—reversed and remanded
court of appeals—affirmed
no. 113,362—may 5, 2017

FACTS: Officers executed a warrant for search of Zwickl’s car and discovered pounds of marijuana. This led to issuance of a search warrant for Zickl’s residence where more drug evidence was discovered. State charged Zwickl with possession of marijuana with intent to sell and other related offenses. He filed motion to suppress, alleging the affidavit supporting the vehicle search warrant provided insufficient evidence to find probable cause for issuing the warrant. District court granted the motion, finding it entirely unreasonable for an officer to believe the vehicle search warrant was valid. State filed interlocutory appeal. In unpublished opinion, Court of Appeals reversed, finding sufficient indicia of probable cause for officers to reasonably rely in good faith on the warrant. Zwickl’s petition for review was granted.

ISSUE: Good-faith exception—probable cause determination

HELD: Applying Leon good-faith exception to exclusionary rule, adopted in State v. Hoeck, 284 Kan. 441 (2007), the details in the affidavit supporting the vehicle search warrant were examined, including the Colorado surveillance of Zwickl. That affidavit contained sufficient indicia of probable cause such that an officer’s reliance on the warrant was not entirely unreasonable. Panel’s decision was affirmed. District court’s suppression of the evidence was reversed and case was remanded.

STATUTE: K.S.A. 60-2101(b)

Tags:  administrative law  civil procedure  constitutional law  Reno District  search and seizure  Sedgwick District  Shawnee District 

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April 28, 2017 Digests

Posted By Administration, Tuesday, May 2, 2017
Updated: Monday, September 10, 2018

Kansas Supreme Court

CRIMINAL

criminal law—evidence—venue
state v. chapman
barton district court—affirmed
no. 113,962—april 28, 2017

FACTS: Jury convicted Chapman of first-degree murder. On appeal he claimed district court erred by denying Chapman’s repeated requests for change of venue due to pretrial publicity including publicity generated about a defense request to remove or cover a provocative tattoo, and Chapman’s family. He also claimed trial court erred by permitting State to cross examine him about a text message that was hearsay and unduly prejudicial.

ISSUES: (1) Venue, (2) hearsay evidence

HELD: Factors to be considered when determining whether a change of venue is necessary are stated and applied to facts of case, finding a few could favor a change of venue but balance of all factors does not. No abuse of district court’s discretion in denying Chapman’s requests for change of venue.

Any error in the admission of the text message was harmless on the facts and record of this case. No reasonable probability the prosecutor’s question about the text message affected the trial’s outcome.  

STATUTES: K.S.A. 2016 Supp. 22-3601(b)(3), 60-261, -460(i)(2); K.S.A. 22-2616(1)

 

criminal law—evidence—jury instructions
state v. stewart
johnson district court—affirmed
no. 111,995—April 28, 2017

FACTS: Stewart was convicted of offenses including felony murder and aggravated robbery.  Relevant to issues raised on appeal, the trial judge adopted the pretrial judge’s rejection of Stewart’s request for a Frye hearing about blood spatter evidence, and denied Stewart’s renewed motion for a hearing; reviewed competing evaluations of Stewart’s mental competency and found Stewart competent to stand trial; and used PIK Crim. 3rd 56.02-A to instruct jury on State’s alternative theories of first-degree murder—premeditated murder and felony murder. On appeal Stewart claimed: (1) district court erred in instructing jury to consider lesser included offenses for both alternative theories of first-degree murder, despite felony murder having no lesser included offenses; (2) district court failed to instruct jury that the justified force in the self-defense jury instruction could not satisfy the taking-by-force element of aggravated robbery; (3) district court should have found him incompetent to stand trial based on evidence of low IQ and corresponding impaired cognitive function; (4) error to admit blood spatter evidence over Stewart’s objection based on Frye; and (5) cumulative error denied him a fair trial.

ISSUES: (1) Jury instructions—alternative theories of first-degree murder, (2) jury instruction on force, (3) competency to stand trial, (4) blood spatter evidence, (5) cumulative error

HELD: District court appropriately instructed jury to simultaneously consider both alternative theories of proving first-degree murder, and upon finding Stewart guilty on either or both theories, to sign the verdict form, ending deliberations without consideration to any lesser included homicide offenses.

In response to jury question about what constituted force for aggravated robbery, Stewart failed to dispel any purported confusion about force. If any instructional error, defense’s unequivocal affirmative assertion that the instruction packet contained all the instructions Stewart wanted precludes first-time-on-appeal argument that jury instructions were clearly erroneous.

District court’s finding that Stewart was competent to stand trial is affirmed. District court acted well within its discretion by relying on opinions of State’s experts, after carefully weighing conflicting evidence.

Any abuse of trial court’s discretion in failing to independently consider the merits of Stewart’s Frye objection is harmless on the record in this case.

Cumulative effect of one possible error by trial court in not ruling on merits of Stewart’s Frye objection, and of one instructional error invited by defense, did not substantially prejudice Stewart and deny him a fair trial.      

STATUTES: K.S.A. 2015 Supp. 21-5402(d), -5402(e), 22-3601(b)(3)-(4); K.S.A. 21-3426, -3427, 22-3219, -3301(1), -3303(1), -3302(1), -3414(3), 60-404

 

Kansas Court of Appeals

CIVIL

DISCOVERY—HABEAS CORPUS
WHITE V. SHIPMAN
LEAVENWORTH DISTRICT COURT—AFFIRMED
NO. 116,232—APRIL 28, 2017

FACTS: White filed a K.S.A. 60-1501 petition after Department of Corrections staff withheld from White two magazines and a book; DOC staff informed White that the content was either a safety threat or too sexually explicit. White challenged the seizure of this material as a First Amendment violation and also claimed the DOC regulations were unconstitutionally vague and overbroad. White filed requests for discovery with DOC. The request was met with objection from DOC, which claimed that the materials requested by White created safety concerns. The district court ruled that the full array of discovery was not available in a K.S.A. 60-1501 proceeding and denied White's request. White's K.S.A. 60-1501 petition was denied after an evidentiary hearing, and he appealed.

ISSUES: (1) Do the rules of discovery apply to a K.S.A. 60-1501 proceeding, (2) was White entitled to an evidentiary hearing

HELD: K.S.A. 60-1501 proceedings are not subject to the ordinary rules of civil procedure. This includes the rules of discovery. The heightened pleading requirements for K.S.A. 60-1501 petitions almost always make discovery unnecessary. And even if White was entitled to discovery, none of the requested discovery was relevant to this action. White arguably received two evidentiary hearings before the district court. White chose to use that opportunity to continue to argue his request for discovery, but that was a strategic choice on his part.

STATUTES: K.S.A. 2016 Supp. 60-201(b), -226(b), -265, -267, -1503(a), -1505(a); K.S.A. 60-1501, -1507

 

CRIMINAL

criminal law—sentences—statutes
state v. carter
sedgwick district court—affirmed
no. 114,556—april 28, 2017

FACTS: Jury found Carter guilty of aggravated battery in violation of K.S.A. 2015 Supp. 21-5413(b)(1)(A), and also found the crime was an act of domestic violence. On appeal, Carter claimed clear error by trial court in failing to instruct jury on domestic battery as a lesser included offense of aggravated battery. He also claimed district court unconstitutionally considered Carter’s criminal history to enhance the sentence.

ISSUES: (1) Lesser included offenses of aggravated burglary, (2) sentencing

HELD: Domestic battery, K.S.A. 2015 Supp. 21-5414(a)(1), is not a lesser included offense of aggravated battery, K.S.A. 2015 Supp. 21-5413(b)(1)(A). Trial court did not err in failing to instruct jury on crime of domestic battery as a lesser included offense. Panel examines cases cited by Carter, and expressly disagrees with the conclusion in State v. Howard, No. 102738 (Kan.App. 2011)(unpublished).

Controlling Kansas precedent defeats Carter’s Apprendi sentencing claim.

STATUTE: K.S.A. 2015 Supp. 21-5109(b), -5413(a)(1), -5413(b)(1)(A)-(B), -5413(g)(2)(B)-(D), -5414(a), 22-3414(3), -4616

 

constitutional law—criminal law—sentences
state v. fahnert
johnson district court—sentence vacated and case remanded with directions
no. 115,058—april 28, 2017

FACTS: District court classified Fahnert’s prior Missouri burglary conviction as a person felony for purposes of scoring his criminal history. Fahnert appealed.

ISSUE: Classification of Prior Out-of-State Conviction

HELD: Court reviewed constitutional protections in Mathis v. United States, 579 U.S. __ (2016), Descamps v United States, 570 U.S. __ (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), as applied in State v. Dickey,  301 Kan. 1018 (2015). K.S.A. 2016 Supp. 21-6811(e) governs classification of a prior conviction as a person or nonperson offense for purposes of scoring criminal history when the prior offense qualifies as both an out-of-state conviction and as a prior burglary conviction. Under facts in this case, district court was constitutionally prohibited from classifying Fahnert’s prior burglary conviction as a person felony because doing so necessitated making or adopting a factual finding that the prior burglary involved a dwelling. This went beyond simply identifying the statutory elements of the prior burglary conviction. Under Dickey, Fahnert’s Missouri burglary conviction should have been classified as a nonperson felony. Sentence is vacated and case remanded for resentencing. Conflict noted between this decision and State v. Sodders, No. 115,366 (Kan.App. 2017)(unpublished), petition for review filed March 3, 2017.

STATUTES: K.S.A. 2016 Supp. 21-5111(k), -5807, -6811 et seq., -6811(d), -6811(e); K.S.A. 2014 Supp. 21-5807; K.S.A. 21-3715(a), -4711(d), -4711(e)

criminal law—sentences
state v. mcalister
Finney District Court—sentence vacated and case remanded with directions
no. 115,887—april 28, 2017

FACTS: McAllister’s convictions and sentences for 1996 offenses were affirmed on appeal. In 2015, he filed motions to correct his illegal sentences. Citing State v. Dickey, 301 Kan. 1018 (2015), he claimed the 1992 Missouri burglary-related convictions in his criminal history should have been scored as nonperson felonies. District court denied the motions as procedurally barred by res judicata, and because holding in Dickey did not apply retroactively to McAlister’s sentences. McAlister appealed. State did not preserve res judicata argument on appeal, but argued McAlister was not entitled to retroactive relief under Dickey because unlike Dickey, McAlister’s sentences became final prior to Apprendi.

ISSUE: Motion to correct illegal sentence

HELD: Holding in Dickey was reviewed, as clarified by State v. Dickey, 305 Kan. 217 (2016)(Dickey II). The proper classification of a prior crime as a person or nonperson felony for criminal history purposes is a question of state statutory law, not constitutional law. Accordingly, a defendant whose sentence is illegal based on holding in State v. Dickey, 301 Kan. 1018 (2015), is entitled to receive a corrected sentence at any time, even if the sentence became final prior to Apprendi. District court erred in finding McAlister’s motions to correct his illegal sentences were procedurally barred. Remanded for resentencing based on the correct criminal history score.

CONCURRENCE (Gardner, J.): Concurs in the result because panel is bound by holding in Dickey II, but does not read Dickey II as broadly as the majority, and does not believe the “at any time” language in K.S.A. 22-3504 means an illegal sentence can be corrected in any manner under any circumstances, or repeatedly litigated.

STATUTES: K.S.A. 2016 Supp. 21-6811(d); K.S.A. 2014 Supp. 21-5807(a)(1), -6811(d); K.S.A. 21-3715(a), 22-3501(1), -3504(1), -3628(c), 60-1501(b), -1507(f)(1); K.S.A. 1991 Supp. 21-3715

Tags:  Barton District  Finney District  Johnson District  Leavenworth District  Sedgwick District 

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January 8, 2016, Appellate Court Digests

Posted By Administration, Friday, January 8, 2016
Updated: Monday, September 10, 2018

Kansas Supreme Court

Criminal

State v. Hurley
Saline district court – reversed and remanded; court of appeals – reversed
No. 108,735 – January 8, 2016

FACTS: At revocation hearing, Hurley stipulated to allegations he violated terms of probation in three cases. District court reinstated probation on same terms and conditions, and ordered 90-day jail sanction (30 days in each case). When Hurley responded with query about going to prison instead, district court denied Hurley’s request to serve 90-day sanction on weekends, and requests for a different intension supervision officer (ISO). During prosecutor’s attempt to clarify start date of jail sanction and probation extension, ISO interrupted to tell court that Hurley had just made a disparaging comment to him. District court entered a finding of contempt, reopened the matter of whether probation should be reinstated with 90-day jail sanction, and remanded Hurley to prison. On appeal Hurley claimed district court (1) lacked jurisdiction to reopen the probation revocation hearing after pronouncing its disposition, and (2) violated his due process rights by summarily revoking newly imposed probation without hearing based upon newly alleged probation violation of contempt. Court of Appeals affirmed in unpublished opinion. Review granted.

ISSUE: Revocation of Probation

HELD: District court revoked Hurley’s probation based upon a ground for which Hurley was not provided sufficient notice and opportunity to be heard. Reversed and remanded to district court for new probation revocation hearing that comports with statutory and constitutional requirements.

STATUTES: K.S.A. 2011 Supp. 22-3716, -3716(b); K.S.A. 20-1203

State v. Michael R. Williams
Sedgwick District Court – Affirmed
No. 109,353 – January 8, 2016

FACTS: In 2010, Michael R. Williams lived in the same house with Deborah Weiss—whom Williams described as his common-law wife—and with Sean Putnam. On the evening of December 21, Williams called the police in an attempt to have Putnam evicted from the home, but the police refused. Later that evening, Williams shot Putnam in the head, killing him. A few days after that, Williams buried Putnam's body in a shallow grave. A jury convicted Williams of first-degree premeditated murder. The district court imposed a hard 25 sentence.

ISSUES: (1) Evidence, (2) motion for new trial, (3) lesser included offense instruction, (4) prosecutorial misconduct, and (5) cumulative error

HELD: First, Court held the record lacked any evidence establishing a nexus between the alleged prior bad act of the victim—Putnam in this case—and the defendant's state of mind at the time the defendant claims to have acted in self-defense, or defense of another concerning the victim's attempted rape of the witness. In these circumstances, the prior bad act of the victim is not relevant to a material fact and is not admissible. Second, Court held the trial court made a similar ruling regarding evidence of another rape by the victim. Court stated that Williams became aware of the rape victim's statements at some point, but nothing in the record indicated he was aware of them at the time of the shooting. Next, Court held this is exactly the kind of case to which the skip rule for lesser-included offenses reasonably applies. The jury convicted Williams of premeditated first-degree murder when it had the option to convict of intentional second-degree murder. Such circumstances necessarily show that the jury would have rejected the still lesser culpable mental state required for a conviction of voluntary manslaughter. There was no reasonable possibility the error affected the outcome. Next, Court held the prosecutor's colloquial use of "story" to refer to a defendant's testimony does not by itself imply either truth or fiction and does not constitute prosecutorial misconduct. Last, Court found no error to cumulate.

STATUTES: K.S.A. 21-3211; K.S.A. 22-3501, -3601(b)(3); K.S.A. 60-401, -447

State v. Tarlene A. Williams
Wyandotte District Court – Affirmed
No. 112,417 – January 8, 2016

FACTS: Tarlene A. Williams has previously filed unsuccessful motions to withdraw her 2008 no contest plea to a first-degree murder charge. In this instance, she argues the district court erred in holding her latest motion failed to demonstrate excusable neglect as required by K.S.A. 22-3210(e)(2). She concedes this motion is successive to others she has filed and lost.

ISSUES: (1) Habeas, (2) successive motions, (3) excusable neglect

HELD: Court stated that under K.S.A. 22-3210(e)(1), a motion to withdraw a plea must be brought within 1 year of: (a) the final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (b) the denial of a petition for a writ of certiorari to the United States Supreme Court or issuance of such Court's final order following the grant of such petition. But these time limitations can be extended upon an additional, affirmative showing of excusable neglect by the defendant under K.S.A. 22-3210(e)(2). Court held Williams failed to demonstrate excusable neglect.

STATUTES: K.S.A. 22-3210, -3601; K.S.A. 60-1507

Kansas Court of Appeals

Criminal

State v. Gauger
Leavenworth district court – affirmed
No. 112,913 – January 8, 2016

FACTS: Gauger charged his purchase of goods from auto parts store to former employer’s store account without authorization. Prior to opening statements, district court’s instruction to jury included statement regarding cost and burden of mistrial if there was jury misconduct. During trial, district court allowed State to introduce printed copies of auto store’s electronically stored receipts and invoice. On appeal Gauger claimed: (1) admission of these exhibits violated best evidence rule, and (2) district court’s preliminary instruction denied Gauger a fair trial.

ISSUES: (1) Best Evidence Rule – Electronically Stored Documents, (2) Preliminary Jury Instruction

HELD: Best evidence rule is stated and applied to electronically stored information. Analysis of issue of first impression in State v. Robinson, 303 Kan. __ (2015), regarding admission of printed version of email communication, equally applies in this case. Under that rule, a printed version of an electronically stored document may be admitted as the original, provided there is no genuine dispute regarding authenticity. Here, copies of auto store’s electronically stored receipts and a monthly invoice were properly admitted as originals.

Clear error test applies to appellate review of instructional errors in district court’s preliminary instructions. Instruction at issue in this case, as in State v. Tahah, 302 Kan. 783 (2015), was given as warning to jurors against committing misconduct, and was legally and factually appropriate.

STATUTES: K.S.A. 2014 Supp. 22-3414(3); K.S.A. 60-467

Tags:  Leavenworth District  Saline District  Sedgwick District  Wyandotte District 

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