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January 5, 2018 Digests

Posted By Administration, Monday, January 8, 2018

Kansas Supreme Court

CRIMINAL

constitutional law—crimes and punishment—sentencing—statutes
state v. kinder
wyandotte district court—reversed; court of appeals—reversed
NO. 112,844—january 5, 2018

FACTS: Kinder entered no contest plea to one count of mistreatment of a dependent adult. District court imposed a presumptive 9-month sentence with 18-months’ probation, and awarded credit for 360 days of pretrial confinement. Kinder appealed, arguing probation was improper and violated Double Jeopardy Clause because he had already served his sentence of confinement. In unpublished opinion, Court of Appeals dismissed the appeal without addressing whether sentencing probation was error under Kansas Sentencing Guidelines Act (KSGA). Instead, the panel held there was no jurisdiction to review a presumptive sentence. Kinder’s petition for review granted.

ISSUE: KSGA Sentence of Probation

HELD: Panel’s dismissal of the appeal is reversed. Review is appropriate because Kinder is not actually challenging a presumptive sentence. District court erred in imposing probation. “Probation,” as defined by KSGA, cannot be imposed after the underlying full sentence of confinement has been served.

STATUTES:  K.S.A. 2016 Supp. 21-6603(e), -6603(g), -6615, -6803(q), -6804, -6804(a)(3), -6820(c)(1), 22-3716, -3716(c)(1)(B)-(E), -3716(c)(7), -3716(c)(11) -3717(d)(1)(C); K.S.A. 20-3018(b)

Kansas Court of Appeals

CIVIL

MOOTNESS—PROTECTION FROM STALKING
KERRY G. V. STACY C.
HARVEY DISTRICT COURT—REVERSED AND VACATED
NO. 117,070—JANUARY 5, 2018

FACTS: Kerry and Stacy were involved in a romantic relationship. After issues arose, Kerry reported Stacy to the police and filed a petition for a protection from abuse order against him. The district court entered a final PFA order against Stacy that was to be in place until October 13, 2016. Prior to the expiration of that PFA, Kerry filed a motion to extend the PFA for an additional year. The matter was never set for hearing, although both parties and their attorneys made appearances before the district court. But Stacy did not learn about the extended PFA until an order was served on him. He moved to dismiss the extension, claiming that the lack of notice and hearing violated his due process rights. The district court denied that motion, claiming that the district court could extend the PFA without notice or hearing. Stacy appealed.

ISSUES: (1) Mootness; (2) due process considerations in extending the PFA; (3) constitutionality of K.S.A. 2016 Supp. 60-3107(e)(1)

HELD: The PFA has already expired, meaning that Stacy cannot receive relief from the appellate court. But this issue is capable of repetition, and the issue is one of public importance. Because of that, the appeal is not moot. It is undisputed that the motion to extend the PFA was not served on Stacy or his attorney. The content of the motion did not provide any clue as to why Kerry believed extension of the PFA was necessary. Because the PFA was entered without any notice to Stacy it violated his due process rights. That order was vacated. K.S.A. 2016 Supp. 60-3107(e)(1) was not void for vagueness. The district court's grant of the PFA extension without exercising any discretion at all was an abuse.

STATUTES: K.S.A. 2016 Supp. 59-3073(a)(7), 60-205(a)(1)(D), -205(b)(1), -205(b)(2)(C), -206(b), -206(c), -207(b), -3104(a), -3104(d), -3105(a), -31a05(b), -3106(a), -3106(b), -3107(e); K.S.A. 53-601

Tags:  Harvey  Wyandotte 

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December 22 and 29, 2017 Digests

Posted By Administration, Tuesday, January 2, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF LUKE B. HARKINS
No. 12,264—DECEMBER 15, 2017

FACTS: In a letter dated December 6, 2017, Luke B. Harkins, an attorney licensed to practice law in Kansas, voluntarily surrendered his license. At the time of surrender, a complaint was pending against Harkins which alleged multiple violations of the Kansas Rules of Professional Conduct.

HELD: The court found that Harkins' surrender of his license should be accepted, and Harkins was disbarred.

ORDER OF DISBARMENT
IN THE MATTER OF RICKEY EDWARD HODGE, JR.
No. 116,542—DECEMBER 29, 2017

FACTS: A hearing panel found that Hodge violated KRPC 1.7 (concurrent conflict of interest), 1.8(a) (conflict of interest arising from entering business transaction with client), 1.8(b) (using information to the client's disadvantage), 4.2 (communication with person represented by counsel), and 8.4(g) (engaging in conduct adversely reflecting on a lawyer's fitness to practice). The violations arose after Hodge became embroiled in a business transaction involving clients.

HEARING PANEL: The panel found that Hodge continued to provide legal advice to his client even after he ostensibly withdrew from representation and even though Hodge testified that he was operating as a business person and not as an attorney. And while he was acting as an attorney, Hodge used knowledge he gained in his representative capacity to attempt to enrich his solely-owned business. After finding that Hodge behaved in a deceptive manner and refused to acknowledge his wrongdoing, the hearing panel agreed with the disciplinary administrator and recommended that Hodge be disbarred.

HELD: Hodge disputed many of the findings of fact from the hearing panel. After reviewing the parties' arguments, the court agreed with the hearing panel that Hodge was acting as an attorney during the period in question. Hodge's simultaneous representation violated the rules of professional conduct. After affirming the hearing panel's findings regarding Hodge's rules violations, the court considered that Hodge's behavior was motivated by self-dealing. The court found that any mitigating factors failed to outweigh the aggravating factors and imposed discipline of disbarment.

CIVIL

TAXATION
IN THE MATTER OF THE APPEAL OF BHCMC
BOARD OF TAX APPEALS—COURT OF APPEALS IS AFFIRMED—BOARD OF TAX APPEALS IS AFFIRMED
NO. 112,911—DECEMBER 29, 2017

FACTS: The State billed Boot Hill Casino & Resort for compensating use tax for tax years 2009 through 2011. The tax was based on the sale price for electronic gaming machines (EGM) that were on the casino floor at the casino in Dodge City. Under Kansas statutes, BHCMC owns all ancillary facilities at the resortamenities such as the restaurant. The State, through the Kansas Lottery, owns all of the lottery gaming facilities and operations. BHCMC operates all of the resort through a management agreement. This arrangement is required by both statute and the Kansas Constitution. Because the Kansas Lottery, and not BHCMC, is the actual owner of the EGM that were subject to taxation, BHCMC filed a motion for refund with the Kansas Department of Revenue. That request was denied, and BHCMC appealed to BOTA, which determined that BHCMC was not required to pay the use tax because it did not make use "incident to ownership" of the EGM. That decision was affirmed by the Court of Appeals, and the Supreme Court accepted the State's petition for review.

ISSUE: Whether BHCMC is subject to compensating use tax

HELD: Compensating use tax is tied to the use, storage, or consumption of property. For a person to exercise a right or power over property incident to the ownership of that property, the person exercising that right or power must own the property. In this case, the statutory language is ambiguous. Any statutory ambiguity must be resolved in favor of the taxpayer. Under the management agreement, BHCMC does not own the EGM and does not use them within the meaning of the statute. And because BHCMC does not own the EGM, it cannot be made to pay a compensating use tax.

STATUTES: Kansas Constitution, article 15, § 3; K.S.A. 2016 Supp. 74-8733, 77-621(c), 79-3702(c), -3703; K.S.A. 2015 Supp. 74-2426(c); K.S.A. 2007 Supp. 74-8734(h)(17); K.S.A. 79-3703a

 

Kansas Court of Appeals

CIVIL

EVIDENCE—IMMUNITY—PRIVILEGE—PUBLIC HEALTH
ROCKHILL PAIN SPECIALISTS V. HANCOCK
JOHNSON DISTRICT COURT—AFFIRMED
No. 115,620—DECEMBER 22, 2017

FACTS: Drs. Kloster and Hancock are physicians specializing in pain management. They worked closely together in their practice, Rockhill Pain Specialists, and also had a close personal relationship. For reasons that are unclear, both the business and personal relationships deteriorated beginning in 2011. Around this time, Hancock developed concerns over the quality of Kloster's patient care. Without telling Kloster, Hancock hired two outside physicians to review certain aspects of Kloster's patient care. These physicians were concerned with what they found and filed complaints with the Kansas Board of Healing Arts and the Missouri Board of Registration for the Healing Arts. Upon Hancock's urging, the reviewing physicians also contacted the attorneys general for Kansas and Missouri and the Drug Enforcement Administration. Hancock also called the local police department. Amid a dissolution of the practice, Kloster filed suit against Hancock for, among other things, fraud, breach of fiduciary duty, and defamation. Hancock responded by taking his concerns about Kloster to the press. Ultimately, Kloster was cleared by all licensing agencies. And a jury found in Kloster's favor on all charges. Hancock appealed.

ISSUES: (1) Admissibility of administrative records; (2) error in denying discovery request; (3) proof of damages; (4) applicability of statutory cap; (5) delineation between Kloster and Rockhill

HELD: K.S.A. 65-4925 does not prohibit testimony about the ultimate outcome of an administrative investigation. There is no public policy prohibition on this testimony. And Hancock's testimony regarding the administrative actions rendered harmless any error in admission of evidence. The district court erred by prohibiting Hancock from discovering Kloster's responses to the peer review committees at the Board of Healing Arts. Kloster's responses were not privileged and, even if they were, he did not own the privilege. But the error in excluding this evidence from discovery was harmless. Kloster's damages were proved by sufficient evidence of actual damages. Defamation is not a personal injury action, so the statutory $250,000 cap does not apply. The damages awarded to Kloster personally were supported by the evidence.

STATUTES: K.S.A. 2016 Supp. 60-226(c)(1)(D), 261, -19a02, 65-4915, -4915(b); K.S.A. 60-401(b), -407, -407(f), -409, -412(c), 65-2839a, -2898, -2898(a), -4923, -4924, -4925, -4925(a)(3)

EVIDENCE—PROBABLE CAUSE
FISCHER V. KANSAS DEPARTMENT OF REVENUE
ELLIS DISTRICT COURT—AFFIRMED
No. 112,243—DECEMBER 29, 2017

FACTS: After a concerned neighbor called the police, law enforcement made contact with Fischer, who was sitting in a parked car. The officer could smell alcohol and noticed that Fischer, who was under age 21, had bloodshot eyes. Fischer consented to a preliminary breath test which showed a breath alcohol content over .02. An administrative law judge ruled that the officer had reasonable grounds to request the PBT and suspended Fischer's driver's license. That ruling was upheld by the district court, and Fischer appealed.

ISSUES: (1) Constitutionality of only requiring reasonable suspicion; (2) constitutionality of coercing a driver's consent to PBT

HELD: Because Fischer was under age 21, the statute required the officer to certify that he had reasonable grounds to believe that Fischer was operating a vehicle while having alcohol in his system. There was probable cause that Fischer was under the influence which means that Fischer's first constitutional argumentabout the reasonableness of allowing only reasonable suspicionneed not be addressed. Any error in requiring the PBT was harmless because this is a civil administrative proceeding, not a criminal action, and the exclusionary rule did not apply.

STATUTE: K.S.A. 2016 Supp. 8-1012, -1012(a), -1012(b), -1567a(a), -1567a(d)(1)(A)

TAXATION
IN THE MATTER OF THE EQUALIZATION APPEAL OF TARGET CORPORATION
BOARD OF TAX APPEALS—AFFIRMED
No. 116,607—DECEMBER 29, 2017

FACTS: The properties at issue in this case are four Target stores located in Sedgwick County. All four stores sought equalization appeals for tax year 2015. During that appeal, the county provided testimony from a mass appraisal expert. Her testimony regarding valuation was predicated on computer models and 2013 settlement values. Target provided testimony from an expert appraiser who inspected the buildings and researched comparable land and sales. After finding Target's evidence more compelling than the county's, BOTA decreased the buildings' valuations and the county appealed.

ISSUE: The validity of BOTA's decision

HELD: Because the property at issue is commercial property, the county had the burden of production and persuasion before BOTA. The county's valuations were not based on actual views and inspections of the buildings. Moreover, the carryover data relied on by the county has been deemed unconstitutional, a decision that had been made at the time of the BOTA hearing. Because she did not personally appraise the subject properties, the county's expert could not offer a valid opinion of value. Conversely, Target's expert's appraisal was appropriate and complied with Kansas law. BOTA's decision was reasonable.

STATUTES: K.S.A. 2016 Supp. 74-2426(a), -2426(c), 77-603(a), -621(a), -621(c), -621(d), 79-501, -503a, -505, -506(a), -1609; K.S.A. 79-501, -1455

CRIMINAL

constiutional law—criminal procedure—fourth amendment—search and seizure
state v. hadley
sedgwick district court—affirmed
No. 115,428—December 22, 2017

FACTS: Hadley was convicted of possession of marijuana after a prior conviction. The marijuana was discovered in Hadley’s undergarment during a law enforcement search subsequent to a traffic stop. Hadley argued the warrantless search based on the odor of marijuana lacked probable cause in violation of her Fourth Amendment rights. On appeal, she claimed the district court erred in denying her motion to suppress this evidence.

ISSUE: Warrantless search based on probable cause with exigent circumstances

HELD: Court examined what constitutes probable cause when a person is searched without a warrant based, in whole or in part, on the odor of marijuana. Approach taken by other states, allowing search of a person based on odor of marijuana alone, is not adopted. State v. Fewell, 286 Kan. 370 (2008), is discussed and applied. Under totality of circumstances in this case, no error in district court’s ruling that the warrantless search of Hadley was based on probable cause with exigent circumstances.

STATUTES: K.S.A. 2013 Supp. 21-5706(b)(3), -5706(c)(2)(B); K.S.A. 8-125

constitutional law—crimes and punishment—sentencing—statutes
state v. robinson
johnson district court—reversed in part, vacated in part, remanded
No. 116,872—December 22, 2017

FACTS: Robinson was convicted in part of refusal to submit to testing in violation of K.S.A. 2016 Supp. 8-1025, and refusal to submit to a preliminary breath test (PBT) in violation of K.S.A. 2016 Supp. 8-1012. On appeal, he claimed these convictions were based on unconstitutional statutes. He also challenged the use of his prior Arizona and California DUI convictions to sentence him as a fourth or subsequent DUI offender.

ISSUES: (1) Refusal to submit to testing in violation of K.S.A. 2016 Supp. 8-1025, (2) refusal to submit to PBT in violation of K.S.A. 2016 Supp. 8-1012, (3) out-of-state DUI convictions

HELD: State concedes that Robinson’s conviction for refusal to submit to testing in violation of K.S.A. 2016 Supp. 8-1025 must be reversed pursuant to State v. Ryce, 303 Kan. 899 (2016) (Ryce I), aff’d on reh’g, 306 Kan. 682 (2017)(Ryce II). 

As issue of first impression, K.S.A. 2016 Supp. 8-1012 is unconstitutional for same reasons that K.S.A. 2016 Supp. 8-1025 was found to be unconstitutional in Ryce I and Ryce II, i.e., the statute criminalizes a person’s right to withdraw consent to a warrantless search, and the statute is not narrowly tailored to serve a compelling state interest. This conviction and sentence was reversed. Whether any evidence must be suppressed following a driver’s arrest that is based in part on the use of a PBT is not addressed.

State conceded that Robinson’s Arizona DUI convictions were based on a statute having no comparable offense in Kansas, thus cannot be used to enhance Robinson’s DUI sentence. Parties agreed that the case should be remanded for district court to determine whether the prior California DUI convictions can be used to enhance Robinson’s sentence under the Kansas DUI statute. 

STATUTES: K.S.A. 2016 Supp. 8-1001, -1001(a), -1012, -1012(a), -1012(b), -1012(c), -1012(d), -1025, 21-5102; K.S.A. 2014 Supp. 8-1025; K.S.A. 22-3504(1)

criminal procedure—jury instructions—statutes
state v. white
finney district court—reversed and remanded
No. 116,048—december 22, 2017

FACTS: Officers discovered children who were locked in a smelly unsafe room by mother when she went to bed, then released by father (White) 12-14 hours later when he woke up. White was charged with aggravated endangerment of a child. Over defense and State objections, district court instructed jury on the affirmative defense of parental discipline, citing “static force” of locking children in room to protect them from danger. White was convicted and appealed, claiming insufficient evidence supported the conviction, and claiming the parental defense instruction was error which denied him the right to control the theory of his own defense. 

ISSUES: (1) Sufficiency of the evidence, (2) jury instruction

HELD: A close call, but facts viewed in light most favorable to the State were sufficient to support the conviction.

The parental discipline instruction, which discusses use of reasonable amount of “force” upon a child was not factually appropriate where there was no evidence presented of corporal punishment and the mother locked the children in the room, nor was the instruction legally appropriate. District court’s decision to add this instruction denied White a meaningful opportunity to present his chosen theory of defense, and State failed to show that this affirmative defense instruction given over White’s objection did not affect outcome of the trial. Conviction was reversed and remanded for a new trial. 

STATUTE: K.S.A. 2016 Supp. 21-5601(b)(1)

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December 15, 2017 Digests

Posted By Administration, Monday, December 18, 2017

Kansas Supreme Court

criminal

constitutional law—criminal procedures—statutes
state v. amos
wyandotte district court—affirmed
No. 115,925—december 15, 2017

FACTS: Amos’ 1999 convictions of first-degree murder and conspiracy to commit aggravated robbery were affirmed on direct appeal. In 2015, he filed a motion to correct an illegal sentence, seeking relief under 2014 Kansas decisions and under 2013 legislation (now codified at K.S.A. 2016 Supp. 21-6620) enacted in response to Alleyne v. United States, 570 U.S. 99 (2013), to require jury findings before an enhanced mandatory minimum sentence can be imposed for first-degree murder. District court summarily denied the motion. Amos appealed, arguing for the first time that K.S.A. 2016 Supp. 21-6620(f), which makes the 2013 amendment inapplicable to sentences that were final before June 17, 2013, violates the Equal Protection Clause.

ISSUE: Motion to correct illegal sentence

HELD: A claim that a sentence is illegal because it violates the constitution cannot be brought via K.S.A. 22-3504(1). Nor can a K.S.A. 22-3504(1) motion to correct an illegal sentence serve as the procedural vehicle for attacking the constitutionality of K.S.A. 2016 Supp. 21-6620(f). Impact of 2017 amendment of K.S.A. 22-3504 is not considered in this case.

STATUTES: K.S.A. 2016 Supp. 21-6620, -6620(f); K.S.A. 22-3504(1)

criminal

constitutional law—criminal procedure—sentencing
state v. campbell
sedgwick district court—affirmed
No. 114,814—december 15, 2017

FACTS: Campbell was convicted in 1996 of first-degree murder and multiple crimes. In calculating criminal history for application of the Kansas Sentencing Guidelines Act (KSGA), district court classified several of Campbell’s out-of-state convictions as person felonies. In 2015, Campbell filed motion to correct an illegal sentence, citing State v. Murdock, 299 Kan. 312 (2014). District court summarily denied relief, refusing to apply Murdock retroactively. Murdock was later overruled by State v. Keel, 302 Kan. 560 (2015). Campbell appealed claiming: (1) his sentence was illegal under Murdock; (2) application of Keel to Campbell’s motion violated the Ex Post Facto Clause; (3) KSGA’s person/nonperson classification of pre-KSGA offenses violates the Sixth Amendment; and (4) summary denial of his motion denied him his right under K.S.A. 22-3504(1) to a hearing. Appeal transferred to the Kansas Supreme Court.

ISSUES: (1) Classification of out-of-state convictions, (2) Ex Post Facto Clause, (3) Sixth Amendment, (4) summary denial

HELD: Campbell was not entitled to have his out-of-state convictions classified as nonperson offenses under Murdock which was overruled by Keel, and is not entitled to relief under holding in Keel. Impact of 2017 amendment of K.S.A. 22-3504 is not addressed.

Application of Keel in this case does not violate the Ex Post Facto Clause. The 1993 statutes interpreted in Keel were in effect when Campbell committed crimes in 1996. They are not laws that increased the potential punishment after Campbell’s crimes were committed.

Holding in State v. Collier, 306 Kan. 521 (2017), defeats Campbell’s Sixth Amendment claim.

Campbell mistakenly relies on 2017 amendment to K.S.A. 22-3504 which was not effective until after Campbell’s hearing. Under law that applied at the time of Campbell’s hearing, he had no right to be present for the court’s preliminary review or to demand a hearing at which he could be present.

STATUTES:  K.S.A. 2016 Supp. 21-6810(d), -6810(e), 22-3601(b)(3); K.S.A. 1993 Supp. 21-4710; K.S.A. 21-4711, 22-3504, -3504(1)

criminal

criminal procedure—juries—prosecutors—sentencing
state v. hilt
johnson district court—affirmed
No. 114,682—december 15, 2017

FACTS: Hilt was convicted of first-degree murder. Conviction affirmed, but hard-50 sentence vacated and remanded for resentencing in accord with Alleyne v. United States, 570 U.S. 99 (2013). On remand, district court replaced a juror who had consulted a high school yearbook in violation of the court’s repeated admonitions, and was not forthright when questioned. District court imposed hard-50 sentence pursuant to jury’s verdict. Hilt appealed claiming: (1) district court’s removal of the juror during deliberation was error because the juror was not doing internet research on the case, and the juror’s failure to be forthright was not a proper basis for dismissal; (2) prosector erred during closing argument by telling jury that its role was to determine whether Hilt would get hard 50 sentence or be eligible for parole in 25 years, and telling jury it did not have to determine which blows to the victim were inflicted by Hilt and which were inflicted by co-defendants; and (3) the district court’s pronouncement of sentence was illegal and violated his right to be present at sentencing

ISSUES: (1) Removal of juror, (2) prosecutorial error, (3) pronouncement of sentence

HELD: No abuse of district court’s discretion to remove and replace a juror. Under facts in case, juror who consulted the yearbook violated the judge’s admonitions to do no investigation of any matter outside the courtroom. Judge’s express skepticism of the juror’s honesty was not an independent basis for removal and replacement.

Statutory subsections governing Hilt’s crime made a hard-50 sentence mandatory once a jury found beyond a reasonable doubt that an aggravating circumstance existed that was not outweighed by any applicable mitigating circumstances. District judge had no discretion to deviate from the jury’s hard-50 verdict, and prosecutor did not misstate the law. Nor did prosecutor misstate the law by telling jurors they could vote for hard-50 sentence even if State did not prove which co-defendant inflicted specific blows or wounds.

District judge’s statements in open court, that appropriateness of imposing the hard-50 sentence was the jury’s decision which the court was going to follow and impose, did not create an illegal ambiguity in the length of Hilt’s sentence or violate his right to be present at sentencing.

STATUTES: K.S.A. 2016 Supp. 21-6620(c), -6620(d), -6620(e), -6620(e)(1), -6620(e)(5), -6623, -6624(f), -6625, -6625(a), -6625(a)(4), 22-3405, -3412(c); K.S.A. 2013 Supp. 21-6620, -6624;  K.S.A. 22-3424, -3504(3)

criminal

crimes and punishment—criminal procedure—juries—sentencing
state v. ruiz-ascencio
lyon district court—convictions affirmed—sentence vacated in part— remanded
No. 115,343—december 15, 2017

FACTS: Ruiz-Ascencio was convicted of attempted first-degree murder, first-degree murder, aggravated assault, and illegal use of a communication facility. District court imposed hard-25 sentence for first-degree murder, prison terms for the other three offenses, and lifetime post-release supervision on all four counts. Ruiz-Ascencio appealed claiming the district court: (1) erred by not instructing jury on voluntary manslaughter for the first-degree murder and attempted first-degree murder charges because both victims were shot during a sudden quarrel; and (2) imposed an illegal sentence by ordering lifetime post-release supervision on each count.

ISSUES: (1) Jury instructions, (2) sentencing

HELD: Kansas cases are reviewed. Under facts in this case, a voluntary manslaughter instruction was not factually appropriate. No facts or reasonable inferences that can be drawn therefrom to suggest a sudden quarrel, or that Ruiz-Ascencio otherwise acted in a heat of passion. One victim’s words or gestures were not enough to constitute legally sufficient provocation.

State concedes error in sentencing. Judgment imposing lifetime post-release supervision on all four counts is vacated as contrary to K.S.A. 2016 Supp. 22-3717. Remanded for resentencing.   

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

STATUTES: K.S.A. 2016 Supp. 21-5404(1), 22-3717, -3717(b)(2)(C), -3717(d)(1)(A), -3717(d)(1)(C); K.S.A. 21-5404, 22-3504

Kansas Court of Appeals

CIVIL

LIMITATION OF ACTIONS—TORTS
BONNETTE V. TRIPLE D AUTO PARTS
HAMILTON DISTRICT COURT—AFFIRMED
NO. 116,578—DECEMBER 15, 2017

FACTS: Triple D Auto Parts purchased its store in 1990. At that time, the building's exterior had not changed since its construction in 1925. One feature of the exterior was a step down from the entrance/exit door to the sidewalk. Bonnette, who was a regular customer, fell when leaving the store and badly broke her wrist. Although she had navigated the step on dozens of occasions, she alleged that she fell because she could not see the step. Bonnette filed suit against Triple D, claiming negligence. Triple D responded by claiming that it was protected by the statute of repose. The district court granted Triple D's motion for summary judgment on those grounds, and this appeal followed.

ISSUES: (1) Applicability of the statute of repose; (2) duty to warn

HELD: The facts show that Triple D failed to warn Bonnette about the dangerous step. Because the duty to warn is an ongoing duty, that duty was breached on the day Bonnette was injured. This ongoing duty prevents application of the statute of repose.  But, Bonnette had actual knowledge of the step, and the danger was open and obvious. There is no evidence that Bonnette was distracted when leaving the store. Because Triple D did not have a duty to warn it is entitled to judgment as a matter of law.

STATUTES: K.S.A. 60-513, -513(b)

Tags:  constitutional law  criminal procedure  Hamilton  juries  limitations of actions  Lyon  procedures  prosecutors  Sedgwick  sentencing  statutes  torts  Wyandotte 

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December 8, 2017 Digests

Posted By Administration, Monday, December 11, 2017

Kansas Supreme Court

criminal

criminal procedure
state v. beck
sedgwick district court—affirmed
115,219—december 8, 2017

FACTS: Beck was convicted on guilty pleas pursuant to plea agreement recommending concurrent sentences. District court accepted the pleas, imposed a hard-25 sentence for the first-degree murder conviction and a downward departure sentence for the attempted first-degree murder conviction, and ordered the sentences to be served consecutively. Beck appealed, arguing the district court erred by refusing to follow the plea agreement’s recommendation for concurrent sentences.   

ISSUE: Sentencing—plea agreement

HELD: No abuse of sentencing court’s discretion. Sentence recommendations made pursuant to a plea agreement are not binding on a sentencing court. 

STATUTES: K.S.A. 2016 Supp. 22-3601(b)(3); K.S.A. 2013 Supp. 21-5301(c)(1), -6804

 

Kansas Court of Appeals

CIVIL

CONTRACTS—SETTLEMENTS
JAMES COLBURN REVOCABLE TRUST V. HUMMON CORPORATION
BARBER DISTRICT COURT—AFFIRMED
NO. 117,584—DECEMBER 8, 2017

FACTS: Hummon Corporation leased a saltwater disposal well. The Trust owned a two-thirds interest in the land on which the well was located. In 2015, Trust administrators sued Hummon alleging that it failed to pay for its use of the well after the lease expired. Hummon admitted that it owed some compensation to the Trust for using the well beyond the lease term, but it disputed the amount requested by the Trust. All parties agreed to mediation. That process produced a mediation agreement which required Hummon to pay $42,500 and to remove certain equipment from the site. In exchange, the Trust agreed to assign to Hummon any interest owned in a steel pipeline and to assign Hummon an easement for pipeline access. A dispute arose over the extent of that easement. After the Trust filed suit to enforce the mediation agreement, the district court agreed that the mediation agreement was specific and enforceable. Hummon appealed.

ISSUES: (1) Adequacy of consideration; (2) existence of condition precedent; (3) validity of mediation agreement; (4) reasonableness of mediation agreement

HELD: The text of the mediation agreement shows sufficient consideration. The record shows that Hummon did not raise the issue of a condition precedent before the district court. For that reason, and in the absence of any compelling reason for the court to consider the issue, the panel declines to address the merits of Hummon's complaint about the performance of a condition precedent. The mediation agreement was not so vague or indefinite to be unenforceable. The district court's interpretation of the mediation agreement was consistent with its plain language.

STATUTES: No statutes cited.

criminal

appeals—constitutional law—criminal procedure—statutes
state v. dawson
sedgwick district court—affirmed
116,530—december 8, 2017

FACTS: Dawson convicted in 1997 of rape. After unsuccessful challenges to conversion of his misdemeanor convictions to calculate criminal history, the convictions and sentence became final in March 2000. After State v. Dickey, 301 Kan. 1018 (2015), Dawson filed motion to correct an illegal sentence. District court summarily denied the motion, stating Apprendi and Dickey did not apply retroactively to a final sentence. Dawson appealed, arguing an incorrect criminal history classification can be challenged at any time. At panel’s request, parties addressed impact of 2017 amendment to K.S.A. 22-3504 which became effective after briefs had been filed.

ISSUES: (1) 2017 Amendment to K.S.A. 22-3504, (2) criminal history calculation

HELD: Dickey and subsequent cases were discussed. K.S.A. 22-3504(3), as amended in 2017, clarified the intended application of the term “illegal sentence” used in K.S.A. 22-3504(1). The amendment is procedural in nature and applies retroactively. A sentence is not an illegal sentence based on holding in Dickey if that sentence was final prior to Apprendi. Dawson’s sentence was legal when pronounced, and was not rendered illegal by the subsequent change in the law. District court’s summary denial of the motion to correct an illegal sentence was not error.

Any right to appellate review of claim concerning the conversion of Dawson’s misdemeanor convictions has been exhausted and is barred by res judicata.

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

Tags:  Barber District  Sedgwick District 

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December 5, 2017 Digests

Posted By Administration, Tuesday, December 5, 2017

Kansas Supreme Court

Attorney Discipline

ORDER OF INDEFINITE SUSPENSION
IN THE MATTER OF HARRY LOUIS NAJIM
NO. 116,943 – DECEMBER 1, 2017
 

FACTS: This disciplinary matter arose after Najim was caught offering to provide legal services to an undercover agent engaged in a conspiracy to commit wire fraud and contraband cigarette trafficking. Najim's retainer was paid in cash, and Najim did not notify his law firm about the payment in excess of $10,000 cash so that it could report the payment to the Financial Crimes Enforcement Network. The failure to report is a Class D federal felony, and after a conviction a hearing panel determined that Najim violated Rule 8.4(b) (commission of a criminal act reflecting adversely on the lawyer's honesty).

HEARING PANEL: Najim pled guilty to one of the 44 counts that were filed against him in federal court. But after the disciplinary administrator filed its complaint, Najim denied that his conduct violated Rule 8.4(b). The disciplinary administrator asked that Najim's license be suspended indefinitely, retroactive to a temporary suspension that was entered after criminal charged were first filed. Najim thought that a 2-year suspension was appropriate, retroactive to May 2015. A majority of the hearing panel ultimately recommended that Najim be suspended for three years, with suspension running from the date of the Supreme Court's opinion.

HELD: Although Najim disputes the idea that he committed a crime, the record of criminal judgment was admitted into evidence during the disciplinary hearing. That judgment is conclusive evidence that a crime was committed. And the crime of which Najim was convicted was one of dishonesty. The evidence before the court warrants an indefinite suspension from the practice of law.

THREE-YEAR SUSPENSION
IN THE MATTER OF BRANDY L SUTTON
NO. 117,395 – DECEMBER 1, 2017

FACTS: A hearing panel found that Brandy L. Sutton violated KRPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). The complaint arose after a former employee accused Sutton of failing to make promised contributions to that employee's individual retirement account. A review by the employee revealed a shortfall of almost $9,000. Sutton disputed the amount but acknowledged there were some shortfalls which were caused by the law firm's financial distress. And, Sutton claimed, that distress was caused by the employee's negligence.

HEARING PANEL: After being notified of these issues, Sutton made whole not only the complaining employee but also other employees whose IRAs were not properly funded. The disciplinary administrator asked that Sutton be indefinitely suspended, although he acknowledged that a shorter term might be appropriate. Sutton asked that she be allowed to continue practicing law, subject to a probation plan. The hearing panel agreed with Sutton that probation was a good option for Sutton.

HELD: The hearing panel's findings were adopted. The court found that Sutton's behavior was, essentially, conversion, and that conversion historically warrants a more severe sanction than probation. Accordingly, a majority of the court elected to impose a three-year suspension, subject to lifting the suspension after six months upon application. A minority of the court would have approved the probationary plan suggested by the hearing panel.

 

Civil

NEGLIGENCE – TORTS
MCELHANEY V. THOMAS
RILEY DISTRICT COURT – 
AFFIRMED IN PART, REVERSED IN PART, REMANDED
COURT OF APPEALS – AFFIRMED IN PART, REVERSED IN PART
NO. 111,590 – DECEMBER 1, 2017

FACTS: Thomas was driving a pick-up truck when he ran over McElhaney's feet in a school parking lot. It is undisputed that Thomas was driving, but there was no agreement about his state of mind at the time. Thomas claimed it was purely an accident. McElhaney testified that Thomas told her that he just meant to "bump" her with the truck. McElhaney brought claims for both negligence and intentional tort theories. She later asked to amend her petition to include a claim for punitive damages, but that request was denied. The district court also dismissed her intentional tort claim, finding there was no evidence of an intent to injure. The Court of Appeals agreed with this assessment. And a majority of the panel upheld the district court's ruling disallowing a claim for punitive damages. This appeal followed after McElhaney's petition for review was granted.

ISSUE: Standard for proving tort of civil battery

HELD: An intent to injure is a necessary element of the tort of battery in Kansas. This includes both the intent to do actual harm and the intent to cause an offensive contact. A person may be guilty of civil battery if the defendant intends to make an offensive contact and bodily harm results. In so ruling, the court does away with the concept of "horseplay" as a legal category. And because McElhaney should have been allowed to bring her battery claim, the district court also erred by not permitting McElhaney to amend her petition and claim punitive damages.

STATUTE: K.S.A. 60-3703

criminal

constitutional law – criminal procedure – sentencing – statutes
state v. simmons
saline district court – affirmed; court of appeals – affirmed
No. 108,885 – december 1, 2017

FACTS: Simmons convicted of drug offense in 2005. Prior to her release on parole, Kansas Offender Registration Act (KORA) was amended to require registration of drug offenders. When Simmons was charged with failing to register, district court found her guilty and ordered payment of $200 DNA database fee. On appeal Simmons claimed: (1) the retroactive application of the KORA registration requirement violated the Ex Post Facto Clause; (2) it was error to impose the DNA database fee because she would have provided a DNA sample before her release on parole; and (3) even if the KORA registration was not punishment, it was part of her 2005 sentence which could not be modified by the executive branch. Court of Appeals affirmed. 50 Kan.App.2d 448 (2014). Simmons’ petition for review granted.

ISSUES: (1) Ex Post Facto Challenge, (2) Modification of Sentence, (3) DNA Database Fee

HELD: Under State v. Petersen–Beard, 304 Kan. 192 (2016), lifetime sex offender registration does not constitute “punishment” for Eighth Amendment and ex post facto challenges. Record in this appeal is insufficient to demonstrate that drug offenders as a class are distinguishable from the class of sex offenders such that KORA registration becomes punitive rather than civil when applied to drug offenders.

Challenge to authority of executive branch to order Simmons to register is issue of first impression. Simmons’ 2005 criminal sentence is not illegal, and has not been “modified” by the post–sentencing registration obligation.

District court did not err by imposing the DNA database fee required by K.S.A. 2012 Supp. 75–724. Simmons failed to show that she previously paid a DNA database fee or that she did not submit a DNA sample for the current offense.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with dissent in Petersen–Beard, Kansas offender registration requirement is punishment for sex or violent offender, and no less so for drug offender. Simmons met burden of showing an ex post facto violation in this case.

STATUTES: K.S.A. 2012 Supp. 75–724, –724(a)–(b); K.S.A. 22–4901 et seq.

 

appeals – criminal procedure – juries
state v. mcbride
shawnee district court – reversed
court of appeals – reversed
No. 112,277 – december 1, 2017

FACTS: McBride convicted of kidnapping. On appeal he claimed he was denied a fair trial because prosecutor asserted the alleged victim deserved consideration similar to the presumption of innocence constitutionally recognized for criminal defendants. In unpublished opinion, Court of Appeals agreed that this was prosecutorial error but found the error was harmless under State v. Tosh, 278 Kan. 83 (2004). Review granted on this issue.

ISSUE: Prosecutorial Error – Harmless Error

HELD: No cross–petition of panel’s determination that the prosecutor misstated the law, so only issue on appeal is whether this prosecutorial error was harmless. Harmless error inquiry in Tosh was abandoned in State v. Sherman, 305 Kan. 88 (2016). Applying Sherman to facts in this case, where prosecutor improperly tried to bolster victim’s credibility by claiming she deserved a credibility presumption akin to McBride’s presumption of innocence, denied McBride a fair trial. Kidnapping conviction is reversed and case is remanded to district court.

STATUTES: K.S.A. 2016 Supp. 21–5408(a)(3); K.S.A. 20–3018(b), 60–261, –2101(b)

 

criminal procedure – habeas corpus – sentencing
state v. buford
wyandotte district court – affirmed
No. 114,175 – december 1, 2017

FACTS: Buford is serving a life sentence imposed for 1990 felony murder conviction. e filed 2014 motion to correct an illegal sentence, arguing the parole board instituted a new sentence each time it denied him parole, and these “sentences” were illegal because the parole board should have classified his pre–1993 crime as a nonperson felony. District court summarily denied the motion. Buford appealed.

ISSUE: Motion to Correct Illegal Sentence

HELD: The denial of parole is not a sentence, so K.S.A. 22–3504 has no application. Claim is not construed as habeas motion because it is not clear Buford has exhausted administrative remedies.

STATUTES: K.S.A. 22–3504, 60–1501; K.S.A. 21–5401(a), 22–3717(b) (Ensley 1988)

Tags:  appeals  Attorney Discipline  constitutional law  criminal procedure  habeas corpus  juries  negligence  Saline District  sentencing  statutes  torts 

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November 22, 2017 Digest

Posted By Administration, Tuesday, November 28, 2017
Updated: Monday, November 27, 2017

Kansas Court of Appeals

CRIMINAL

CRIMES AND PUNISHMENT—SENTENCES—STATUTES
STATE v. FOWLER
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 116,803—NOVEMBER 22, 2017

FACTS: Fowler pled guilty to felony domestic battery, felony possession of methamphetamine, and misdemeanor violation of a protective order. The domestic battery offense was charged as a felony because he had been convicted of domestic battery twice within the past five years. The anticipated presumptive probation for the primary crime of possession of methamphetamine, however, was altered to presumptive prison when the presentence investigation report calculated Fowler’s criminal history by aggregating six prior misdemeanors to two person felonies. To follow spirit of the plea agreement, State joined Fowler’s request for a dispositional departure to probation. District court denied the motion and imposed sentence which included prison term for the primary crime of felony possession of methamphetamine. Fowler appealed, arguing for first time the sentence was illegal because the sentencing court, in violation of K.S.A. 2015 Supp. 21-6810(d)(9) of the Kansas Sentencing Guidelines Act (KSGA), “double counted” two of Fowler’s prior person misdemeanor convictions both to enhance the domestic battery conviction from a misdemeanor to a felony and to elevate Fowler’s criminal history.

ISSUE: Sentencing - use of prior misdemeanor domestic battery convictions

HELD: Reasoning in State v. Vontress,  266 Kan. 248 (1998), reaffirmed in State v. Davis, 275 Kan. 107 (2003), was discussed and applied. Fowler was properly charged with felony domestic battery, a non-grid felony. The KSGA sentencing grid is inapplicable to this crime because the crime has its own sentencing scheme with no severity level designation. Felony domestic battery thus cannot be designated as the primary crime for the purpose of applying a criminal history score to calculate a sentence. District court properly designated Fowler’s methamphetamine conviction as the primary crime of conviction for purpose of calculating Fowler’s base sentence, and correctly calculated Fowler’s criminal history score because Fowler’s two prior domestic battery convictions were not used to elevate the classification of the primary crime. 

DISSENT (Malone, J.): Use of Fowler’s two prior domestic battery convictions to calculate his criminal history and to elevate the domestic battery conviction from a misdemeanor to a felony violates the plan language of K.S.A. 2015 Supp. 21-6819(d)(9). Vontress is distinguishable from Fowler’s case. Would vacate Fowler’s sentence and remand for resentencing.  

STATUTES: K.S.A. 2015 Supp. 5414, -5414(a), -5414(b), -5414(b)(3), -6803(d), -6804(a), -6804(c), -6804(i)(1), -6804(i)(3), -6805(a), -6806(c), -6806(d), -6809, -6810, -6810(d)(9), -6811, -6811(a), -6819(b), -6819(b)(2), -6819(b)(3), -6819(b)(5); K.S.A. 21-4710, -4710(d)(11), -4720, 22-3504(1)

Tags:  crimes and punishment  Dissent  Sedgwick  Sedgwick District  sentences  statutes 

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November 17, 2017 Digests

Posted By Administration, Monday, November 20, 2017

Kansas Supreme Court

Attorney Discipline

ORDER OF PROBATION
IN THE MATTER OF MATTHEW B. WORKS
NO. 117,607—NOVEMBER 17, 2017

FACTS: A hearing panel determined that Works violated KRPC 1.2(c) (scope of representation), 1.3 (diligence), 1.4(a) (communication), 1.16(d) (termination of representation), and 3.2 (expediting litigation). The violations occurred after Works was appointed to represent clients on appeal but failed to docket the cases

HEARING PANEL: When determining the appropriate discipline, the hearing panel noted that Works was disciplined on five prior occasions. But there were a number of mitigating factors, including Works' mental health issues and a traumatic house fire. The disciplinary administrator recommended that Works be placed on probation with an underlying suspension of 12 months to two years. After noting that Works provided a workable, substantial probation plan, the hearing panel determined that a term of probation was in the best interests of the legal profession and the general public.

HELD: The court admitted the hearing panel's final hearing report. A majority of the court agreed with the hearing panel that Works should be suspended for two years, with imposition of that discipline stayed and a three-year term of probation. A minority of the court would have imposed a harsher sanction, including a period of immediate suspension.

Kansas Court of Appeals

Civil

ARBITRATION—CONTRACTS—JURISDICTION—MEDIATION
WASINGER V. ROMAN CATHOLIC DIOCESE OF SALINA
RUSSELL DISTRICT COURT—REVERSED AND REMANDED
NO. 116,764—NOVEMBER 17, 2017

FACTS: Wasinger was hired to design and construct a parish rectory for a church in Russell. The contract included a requirement that the parties submit to "binding mediation" if disputes arose during the construction process. A dispute arose early during the process. Under the terms of the contract, the parties went to mediation and received a decision. Wasinger did not agree with that decision, and as a result he filed a mechanic's lien on the property. Wasinger followed up by filing a motion to foreclose on the lien. The Diocese filed a motion for summary judgment in which it claimed that the clause requiring "binding mediation" was actually an arbitration provision, meaning that the mediator's decision was binding. The district court granted the motion and this appeal followed.

ISSUES: (1) Whether mediator's decision was binding; (2) lack of cross-appeal

HELD: Kansas case law does not recognize "binding mediation." The mediation set out in the contract was a voluntary, out-of-court alternate dispute resolution procedure. By statute, a mediator in Kansas has no decision-making authority. It was a mistake to use the terms "mediation" and "arbitration" interchangeably. Under the plain language of the contract, Wasinger was free to seek judicial resolution of issues not resolved by mediation. The Diocese did not cross-appeal the district court's ruling on arbitration which means this issue cannot be considered on appeal. And the argument fails on the merits because the district court erred when finding that interstate commerce was implicated.

STATUTE: K.S.A. 5-405(a), -405(b), -405(c), -502(e), -502(f), -502(g), -502(h), -502(m)

Criminal

MOOTNESS—PROBATION—SENTENCING
STATE V. ALLEN
GEARY DISTRICT COURT - VACATED
NO. 116,886—NOVEMBER 17, 2017

FACTS: Allen was serving an 18-month term of probation when he committed two new offenses. He served a 30-day term in custody for violating his probation and received a sentence of probation for the new offenses. Allen then violated his probation for a second time. A judge in the first case imposed a 60-day jail sanction. A different judge in the second case also imposed a 60-day jail sanction to be served consecutively to the first sanction. Allen objected but the district court overruled the objection and Allen appealed.

ISSUE: Ability to sentence terms consecutively

HELD: K.S.A. 2016 Supp. 22-3716(c)(10) requires that any intermediate sanctions must be imposed concurrently. There is nothing in the statute suggesting that this language does not apply to cases heard before different judges. Although Allen has served his entire sentence, this case is capable of repetition and is of public importance so it is not moot.

STATUTE: K.S.A. 2016 Supp. 22-3716(c)(1)(B), -3716(c)(1)(C), -3716(c)(1)(D), -3716(c)(10), -3716(c)(11)

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November 9, 2017 Digests

Posted By Administration, Monday, November 13, 2017
Updated: Monday, November 13, 2017

Kansas Supreme Court

Attorney Discipline

ORDER OF PUBLISHED CENSURE
IN THE MATTER OF LAWRENCE E. SCHNEIDER
NO. 117,361 – NOVEMBER 9, 2017

FACTS: A hearing panel determined that Schneider violated KRPC 1.3 (diligence) and 1.4(b) (communication). These violations arose after Schneider failed to list possible federal and state earned income credit exemptions on bankruptcy petitions. Schneider's inaction resulted in his clients' inability to respond to orders from the court.

HEARING PANEL: The panel noted that Schneider's actions were negligent and that he timely made restitution to his clients which ameliorated the consequences of his misconduct. Schneider also fully cooperated with the hearing panel and acknowledged wrongdoing. The disciplinary administrator recommended a 3-month suspension. The hearing panel noted that in the 2 years since the misconduct first arose there had been no further incidents and that Schneider had taken steps to correct his diligence issues. For those reasons, the hearing panel suggested published censure.

HELD: The court adopted the hearing panel's conclusions. After following up with the complainant, the disciplinary administrator recommended at the hearing on this matter that Schneider be disciplined by published censure. The court agreed and the sentence was imposed. 

Civil

STATUTORY CONSTRUCTION
HAYES V. STATE
SEDGWICK DISTRICT COURT – AFFIRMED
COURT OF APPEALS – AFFIRMED
NO. 108,233 – NOVEMBER 9, 2017

FACTS: Hayes was convicted of involuntary manslaughter in 1998. After his release from prison, Hayes was charged with two counts of violating the Kansas Offender Registration Act. He was sentenced to probation but violated the terms and he served a 38-month prison sentence. After that conviction and sentence, Hayes filed a K.S.A. 60-1507 motion in which he challenged, among other things, amendments to KORA. Hayes acknowledged before the district court that his 1507 pleading was untimely, but he asked the court to rule on the merits. The district court disagreed and denied the motion on grounds that Hayes could not show manifest injustice such that the 1-year time limitation should be extended. Hayes appealed. The Court of Appeals affirmed that decision and Hayes' petition for review was granted.

ISSUE: (1) Constitutionality of subjecting Hayes to the 1-year statute of limitations

HELD: After Hayes filed his motion, the Legislature amended K.S.A. 60-1507 to more clearly define what constitutes manifest injustice. The question of whether that amendment applies retroactively to Hayes need not be answered because Hayes cannot show manifest justice under any standard.

STATUTES: K.S.A. 2016 Supp. 60-1507(f); K.S.A. 2006 Supp. 22-4904(b); K.S.A. 1997 Supp. 22-4902(d)(5), -4906(a); K.S.A. 60-1507

criminal

attorneys and clients – constitutional law – criminal procedure – sentencing
state v. richardson
sedgwick district court – affirmed 
court of appeals – affirmed
no. 107,786 – november 9, 2017

FACTS: Richardson convicted in 2003 of sale of cocaine.  After he was sentenced, the Kansas Offender Registration Act (KORA) was amended to require registration by those convicted of that drug offense.   Richardson thereafter pled guilty to offender registration violations.  Prior to sentencing he filed pro se motions to withdraw his plea and for appointment of new counsel, pursuing an ex post facto challenge to the retroactive application of the amended KORA.  District court denied both motions.  Richardson appealed claiming he should have been allowed to withdraw his plea, and claiming his attorney failed to advise him of the ex post facto issue.  In unpublished opinion, Court of Appeals affirmed. Richardson’s petition for review granted.  

ISSUES: (1) Ex Post Facto Challenge to KORA; (2) Conflict of Interest - Attorney and Client

HELD: Lifetime sex offender registration under KORA does not constitute “punishment” for application of the Eighth Amendment or the Ex Post Facto Clause.  Non-sex offenders seeking to avoid retroactive application of KORA provisions must satisfy the “effect” prong of test set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), by producing a record that distinguishes — by the “clearest proof” — KORA’s effect on those classes of offenders from KORA’s effects on sex offenders as a class. Richardson failed to do so on the the record in this case.

Richardson cannot show his attorney provided incorrect legal advice.  District courts are reminded that if they become aware of a potential conflict between a defendant and his or her attorney, they abuse their discretion if they fail to conduct an inquiry.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.):  Dissent is consistent with her votes in State v. Petersen-Beard, 304 Kan. 192 (2016); State v. Reed, 306 Kan. 899 (2017); and State v. Meredith,306 Kn. 906 (2017).  Richardson met any burden of proof he bore at this point, and should be permitted to withdraw his plea for good cause shown.    

STATUTES: K.S.A. 2010 Supp. 22-4904(c); K.S.A. 2007 Supp. 22-4902(a)(11)(C); K.S.A. 22-4901 et seq.

Kansas Court of Appeals

Civil

FORUM SELECTION – JURISDICTION – VENUE
AKESOGENX COR V. ZAVALA
JOHNSON DISTRICT COURT – AFFIRMED
NO. 116,896 – NOVEMBER 9, 2017

FACTS: AkesoGenX Corporation (AKG) is a Delaware corporation with its principal place of business in Kansas. Zavala was AKG's CEO. He was terminated after money was found to be missing from the company's accounts. AKG sued both Zavala and Kunkle, the company's Secretary/Treasurer, for breach of fiduciary duty and conversion. After Zavala failed to appear at a scheduling conference, the district court granted default judgment to AKG. Zavala then moved to set aside the default, claiming that he was never served with the petition. That motion was denied. Zavala responded by filing a motion to reconsider. In that motion, Zavala claimed, for the first time, that the judgment was void because AKG's articles of incorporation included a forum selection clause that required all proceedings to be in Delaware. That motion was denied and Zavala appealed.

ISSUES: (1) Denial of the motion to reconsider; (2) Whether the forum selection clause was mandatory or permissive; (3) Denial of motion to set aside default judgment

HELD: Forum selection clauses are valid in Kansas as long as certain criteria are met. But the existence of a forum selection clause does not divest a court of subject matter jurisdiction. In this case, Zavala's complaint was really about venue. And complaints about venue can be waived. In order to preserve the complaint an objection to venue must be timely raised in a responsive pleading. While Zavala did raise the issue in a pleading it was not timely. Because AKG could consent to venue outside of Delaware, the forum selection clause in its articles of incorporation was permissive rather than mandatory. And the evidence shows that AKG waived venue in Delaware when it initiated this legal action in Kansas. Zavala failed to include the transcript from the hearing on the motion to set aside default judgment. In the absence of that transcript, the district court's decision cannot be evaluated. Since Zavala had the burden to designate the appellate record his argument fails. Because service was properly obtained on Zavala in California, it does not matter if service was not perfected in Texas.

STATUTES: K.S.A. 2016 Supp. 60-205, -205(b)(2)(B)(ii), -205(e), -212(b)(3), -255(b), -258, -259(f), -260(b)(1), -308(a); K.S.A. 60-260(b)(6)

 

Civil

IMMUNITY – REASONABLE SUSPICION – TORT CLAIMS
SCHREINER V. HODGE
JOHNSON DISTRICT COURT – AFFIRMED
NO. 117,034 – NOVEMBER 9, 2017

FACTS: Police officers in the City of Mission received two reports of a suspicious truck. Both callers reported seeing a man park the truck and then walk into the woods. While Officer Hodge was investigating the second report, Schreiner walked out of the woods and back to his truck. Schreiner refused to answer Officer Hodge's questions and attempted to leave the scene in the truck. Officer Hodge temporarily detained Schreiner until he could finish the investigation. After the investigation did not disclose any illegal activity, Schreiner was allowed to leave. The entire encounter took between 20 and 25 minutes. Schreiner filed a pro se action against Officer Hodge seeking damages for assault, battery, false arrest, and false imprisonment. Officer Hodge moved for summary judgment claiming discretionary function immunity. The district court agreed and granted the motion. Schreiner appealed.

ISSUES: (1) Application of discretionary function immunity

HELD: A police officer may detain a citizen if the officer reasonably suspects that criminal activity is occurring. This is a discretionary act based on the officer's training and experience. Schreiner's actions were suspicious and his actions in dealing with Officer Hodge provided justification for the subsequent investigation. For this reason, Officer Hodge is entitled to discretionary function immunity and summary judgment was appropriate.

CONCURRENCE AND DISSENT (Atcheson, J.): Because Officer Hodge's action was unreasonable under the Fourth Amendment his behavior cannot be excused by the discretionary function exception.

 STATUTES:  K.S.A. 2016 Supp. 75-6104(e); K.S.A. 22-2402(1)

Tags:  Attorney Discipline  Johnson  Sedgwick 

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November 3, 2017 Digest

Posted By Administration, Monday, November 6, 2017

Kansas Supreme Court

 

ATTORNEY DISCIPLINE

 

ORDER OF DISBARMENT
IN THE MATTER OF JEROME PATIENCE
NO. 22,022—NOVEMBER 1, 2017

FACTS: In a letter signed October 19, 2017, Jerome M. Patience, an attorney admitted to practice law in Kansas, voluntarily surrendered his law license. At the time of surrender, a disciplinary complaint was pending. The complaint was filed after Patience was charged with several felony offenses in Missouri.

HELD: The court found that the surrender of Patience's license should be accepted, and Patience is disbarred.

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October 27, 2017 Digests

Posted By Administration, Tuesday, October 31, 2017

Kansas Supreme Court

CIVIL

JURISDICTION—REAL PROPERTY
JENKINS V. CHICAGO PACIFIC CORPORATION
JACKSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED
NO. 113,104—OCTOBER 27, 2017

FACTS: The Chicago Pacific Railway Company operated on the disputed property beginning in 1886. In 1985, Chicago Pacific quitclaimed its interests in the property to Dirt & Gravel, Inc. Jenkins acquired her ownership interest via quitclaim deed from Dirt & Gravel. Jenkins later sued to quiet title, asking for a determination that she was a fee simple owner. Jenkins alternately claimed that she acquired fee title through the quitclaim deed or that she acquired title through adverse possession. Chicago Pacific moved for summary judgment, claiming that the 1886 deed only allowed a right of way that would revert to abutting landowners when the property was abandoned by the railroad. The district court granted the motion, finding that Jenkins could not have acquired any title through a quitclaim deed. The district court granted Jenkins' K.S.A. 60-254(b) motion in order to allow an immediate appeal on the question of ownership.

ISSUES: (1) Jurisdiction; (2) real property acquisition from a railroad; (3) the language of the 1886 deed

HELD: Jenkins filed her notice of appeal before the district court made the proper K.S.A. 2016 Supp. 60-254(b) certification. But subsequent certification cured this defect, rendering her notice of appeal timely. When a railroad acquires land for a right of way it generally obtains only an easement. When that easement is abandoned, the estate reverts to the original land owners. In this case, the 1886 deed described the subject property in a manner consistent with a right of way.

STATUTE: K.S.A. 2016 Supp. 60-254(b), -2102, -2102(a), -2102(b), -2102(c)

criminal

criminal procedure—evidence—statutes
state v. gray
harvey district court—reversed on issues subject to review
court of appeals—reversed on issues subject to review
112,035—october 27, 2017

FACTS: Officer followed and eventually stopped Gray’s car for failing to use turn signal. Gray filed motion to suppress evidence obtained in search of car, alleging the officer violated the biased-based policing statute, K.S.A. 2014 Supp. 22-4609 et seq.  District court denied the motion, and in bench trial convicted Gray of charged offenses. Gray appealed, in part challenging the denial of his motion to suppress, and challenging the district court’s jurisdiction to convict Gray of felony possession of marijuana. Court of Appeals reversed or downgraded some conviction offenses but affirmed the district court’s suppression ruling, finding substantial competent evidence supported the determination that Gray was not actually stopped because of his race. 51 Kan.App.2d 1085 (2015). Review granted, in part, on this issue.   

ISSUE: Remedy for violation of K.S.A. 2014 Supp. 22-4606(d) and 22-4609

HELD: Issue of first impression regarding test to be applied under Kansas’ biased-based policing statutes, the availability of a suppression remedy, and the test for determining whether a biased-based policing violation occurred. This appeal involves statutory, rather than constitutional, consideration. K.S.A. 22-3216(1), which permits a defendant aggrieved by an unlawful search and seizure to move to suppress evidence, provides a suppression remedy for violation of K.S.A. 2014 Supp. 22-4606 et seq. When considering such a motion, the district judge must examine more than the ultimate justification of a traffic stop and must consider wether the officer unreasonably used race or any other characteristic listed in K.S.A. 22-4606(d) in deciding to initiate the enforcement action. Unable to determine from the record in this case whether the district judge applied the correct test and evaluated whether the officer unreasonably used raced in deciding to initiate the traffic stop. Convictions reversed and remanded for further action in accord with this decision.   

STATUTES: K.S.A. 2014 Supp. 22-4606 et seq., -4606(d), -4607, -4609, -4609(d); K.S.A. 8-1548, 20-3018(b), 22-3216, -3216(1), -3216(2), -4609

 

 

appeals—criminal procedure—jury instructions—jurisdiction 
state v. saylEr
kingman district court—affirmed; court of appeals—affirmed
11,0048—october 27, 2017

FACTS: Sayler convicted in Kingman county of failing to register under the Kansas Offender Registration Act (KORA). On appeal he argued for first time that the trial court lacked subject matter jurisdiction over the prosecution because the charging document failed to allege he resided in Kingman County, and similarly, that the jury instructions permitted the jury to convict him without finding this essential element of the offense.  In unpublished opinion, the Court of Appeals rejected both arguments and affirmed the conviction. Review granted on both issues. Thereafter, State v. Dunn, 304 Kan. 773 (2016), significantly changed the law on charging document sufficiency, holding the sufficiency of the charging document does not implicate the state courts’ subject matter jurisdiction in criminal cases.

ISSUES: (1) Sufficiency of the charging document, (2) jury instructions

HELD: Issue considered for first time on appeal because the appeal straddled the period before and after Dunn and because parties were expressly asked to brief Dunn’s impact on the merits. The charging document in this case was sufficient under Dunn because it alleged facts that, if proved beyond a reasonable doubt, would constitute the crime of failing to register under KORA.

No error found in the jury instructions.

STATUTES: K.S.A. 2016 Supp. 21-5108(a), 22-4905(b); K.S.A. 2011 Supp. 22-4903; K.S.A. 20-3018(b), 22-3201(f), 22-4901 et seq., 60-2101(b)

 

 

constitutional law—criminal procedure—crimes and punishment—jurisdiction
state v. scuderi
reno district court—affirmed
court of appeals—affirmed on issues subject to review
107,114—october 27, 2017

FACTS: In unpublished opinion, Court of Appeals affirmed Scuderi’s two convictions and sentences for failing to register under the Kansas Offender Registration Act. Review granted on his claims that: (1) the registration requirements are ex post facto punishment for a drug offense committed before registration was required; (2) his criminal history was unconstitutionally used to calculate the sentences imposed; and (3) the complaint initiating one of his convictions was deficient because it failed to allege he resided in the county where the State alleged he failed to register.

ISSUES: (1) Ex post facto challenge, (2) criminal history score in sentencing, (3) sufficiency of the charging document

HELD: Scuderi’s ex post fact challenge is foreclosed by State v. Shaylor, 306 Kan. 1049 (2017)(retroactive imposition of registration requirement was not punishment). Scuderi failed to create a factual record in support of his claim that registration impacts drug offenders differently than sex offenders by making reintegration into society more difficult.

Kansas Supreme Court has repeatedly rejected Scuderi’s Apprendi claim.

Scuderi’s challenge to the sufficiency of the complaint was defeated by State v. Sayler, 306 Kan. __ (2017)(decided this same date), applying State v. Dunn, 304 Kan. 773 (2016).  

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with her dissents in State v. Meredith, 306 Kan. 906 (2017), and State v. Huey, 306 Kan. 1005 (2017), she dissented from majority’s decision in this case on the ex post facto challenge.

STATUTE: K.S.A. 20-3018(b), 22-4901 et seq., -4904, 60-2101(b), 65-4161

 

Kansas Court of Appeals

CIVIL

 

BAILMENT—MOTOR VEHICLES—PROBATE—STATUTE OF LIMITATIONS
MOULDEN V. HUNDLEY
LEAVENWORTH DISTRICT COURT—AFFIRMED
NO. 116,415—OCTOBER 27, 2017

FACTS: Moulden transferred title to two classic cars to his daughter, Hope Hundley, in 2005. The cars were stored in Moulden's garage when she wasn't using them, and they were in Moulden's garage when Hope died in 2012. Hope's widower, Dustin, transferred the car titles to his name in 2013. But when Dustin attempted to take possession of the cars, Moulden asked the court to determine the rightful owner of the cars. He claimed that he never meant for Hope to be a full owner of the cars. When filing suit, Moulden also sought the return of furniture that he loaned to Hope. Dustin countersued, claiming that Moulden waited too long to make any such claim and asking that he be declared the owner of the disputed furniture. The district court ruled that Hope – and subsequently Dustin – owned the cars but that Moulden owned the furniture.

ISSUE: Property ownership

HELD: K.S.A. 59-2239 operates as a special statute of limitations for claims against an estate. Moulden did not petition to have the cars returned within the 6 months allowed by the statute. Despite Moulden's claims to the contrary, K.S.A. 59-2239 applies to the facts of this case. Mere possession of the cars did not change their ownership. A two-year statute of limitations applied to Moulden's attempt to reclaim the furniture. Hope used the furniture under a bailment, with Moulden being the bailor. After Hope died, Dustin continued to possess the property under a constructive bailment. Because the bailment existed, the statute of limitations clock did not begin to run until Dustin refused to return the furniture to Moulden. Moulden's suit was not time-barred, and the district court's ruling on ownership was correct.

STATUTE: K.S.A. 8-126(cc), 59-2239, 60-513(a), -513(b) 

 

 

criminal

 

constitutional law—crimes and punishment—evidence—fourth amendment
state v. carr
shawnee district court—reversed and remanded
116,228 - october 27, 2017

FACTS: Officer stopped vehicle he associated with Carr, a suspect in a drive-by shooting. Officers found the driver of the car was Carr’s aunt, and Carr was a passenger. Officers arrested and searched Carr, finding a car key, a cell phone, and cash. Marijuana was found in Carr’s pocket during a subsequent search. Without a search warrant, police used Carr’s cell phone to determine its phone number. Then with search warrant, obtained phone records from cell phone provider to determine cell-tower information to locate Carr near the scene of the shooting. Carr filed motion to suppress all evidence obtained in an unlawful car stop. District court denied the motion, finding the stop was lawful. District court also found the officers unlawfully searched the phone, but police would have inevitably discovered the cell phone number by lawful means and used it to get a search warrant. Carr appealed the denial of his motion to suppress, and the admission of testimony by a cell phone provider employee about Carr’s cell phone records.

ISSUES: (1) Reasonable suspicion for vehicle stop, (2) suppression of cell phone records, (3) suppression of marijuana, (3) suppression of car key, (4) cell phone records

HELD: Officers lacked reasonable suspicion to believe Carr was in the vehicle they stopped. To stop a vehicle based on suspicion that a person subject to police investigatory detention is in it, an officer must have specific and articulable facts that the person is in the vehicle. If officer knows only that a relative of the suspect owns a similar car that had at some point been seen at the suspect’s residence, the officer does not have specific and articulable facts to support reasonable suspicion that the suspect is in the vehicle at the time. The key, the cash, and the marijuana should not have been admitted as evidence at trial.

Carr’s cell phone was obtained through an unlawful car stop, and police then used Carr’s cell phone number to obtain relevant phone records. Under facts in case, however, district court did not err in determining the cell phone records were admissible under the inevitable-discovery exception to the exclusionary rule.

Carr’s conviction for possession of marijuana is reversed because the only evidence supporting this conviction stemmed from the unlawful stop.

Carr was connected to a vehicle used in a drive-by shooting in part because officers found car key in his pocket during an unlawful car stop the day after the shooting. Based on evidence in the case, court cannot say beyond a reasonable doubt that the admission of the key and other inadmissible evidence obtained through the unlawful car stop had no effect on the jury’s verdict. Carr’s conviction for aggravated battery was reversed and remanded for a new trial.

District court did not err in admitting cell phone records maintained in the ordinary course of business by a cell phone provider.  

STATUTES: K.S.A. 2016 Supp. 60-460(m); K.S.A. 22-2402(1), -3216(2)

 

 

 

constitutional law—crimes and punishment—Fifth Amendment—evidence—expert testimony—jury instructions—statutes
state v claerhout
johnson district court—affirmed
115,227—october 27, 2017

FACTS: Claerhout caused car crash while driving under the influence (DUI), which resulted in the death of another motorist. He was charged with reckless second-degree murder, or alternatively, involuntary manslaughter. Prior to jury trial he conceded guilt to involuntary manslaughter, and unsuccessfully challenged the admission of: expert witness testimony; statements Claerhout made to officers at the scene without Miranda warnings; and his prior DUI diversion agreement. District court also instructed jury over Claerhout’s objection that voluntary intoxication was not a defense agains the crime of reckless second-degree murder. On appeal Claerhout argued the district court erred by: (1) admitting Claerhout’s prior DUI diversion agreement; (2) allowing police officer to testify as expert accident reconstructionist; (3) not suppressing statements made to an officer following the crash; and (4) not granting request for instruction on voluntary intoxication as a defense to reckless second-degree murder.

ISSUES: (1) Admission of prior DUI diversion agreement, (2) expert testimony, (3) admission of statements to officer, (4) jury instruction on voluntary intoxication

HELD: No abuse of district court’s discretion in admitting the prior DUI diversion agreement for the stated purpose of showing Claerhout’s state of mind. This evidence was relevant to prove that he acted recklessly under circumstances manifesting extreme indifference to the value of human life. Probative value of the exhibit outweighed its prejudicial effect where the court limited the purpose for which it could be used, and where Claerhout was permitted, but failed, to raise additional information about the diversion, including the underlying circumstances which did not include erratic driving. Even if abuse of the district court’s discretion is assumed, the error was harmless. Statutory rather than constitutional analysis applies to the erroneous admission of 60-455 evidence, and overwhelming evidence supports Claerhout’s conviction.

Any error resulting from trial court’s determination that the officer was qualified to testify as an expert accident reconstructionist was harmless under facts in this case.

Any error resulting from the admission of statements Claerhout made at the scene of the crash about his previous consumption of alcohol was harmless under facts in this case.

District court appropriately instructed jury that voluntary intoxication is not a defense to the charged crimes. Reckless second-degree murder is not a specific intent crime, approving the rationale in State v. Spicer, 30 Kan.App.2d 317 (2002), and two unpublished opinions. Claerhout’s reliance on State v. Kershaw, 302 Kan. 772 (2015), is criticized.

DISSENT (Green, J.): The admission of Claerhout’s previous DUI diversion agreement was error, and unconstitutionally infringed on his right to a fair trial. Majority’s decision that this evidence was relevant conflicts with safeguards mandated in State v. Gunby, 282 Kan. 39 (2006), regarding the admission of 60-455 evidence, and the holding in State v. Boggs, 287 Kan. 298 (2008). Claerhout’s previous DUI was of no legal relevance as to whether his conduct showed an extremely reckless behavior. The probative value of this evidence was substantially outweighed by risk of prejudice, confusion, and distraction on that issue where the admission of this evidence shattered Claerhout’s confession and avoidance defense, and the prosecutor’s closing and rebuttal arguments improperly revolved around the propensity inference from the diversion agreement.

STATUTES: K.S.A. 2016 Supp. 21-5202(j), -5205(b), -5403(a)(2), -5405(a), 60-261, -455, -456(b); K.S.A. 2014 Supp. 21-5403(a)(2), -5403(a)(3); K.S.A. 8-1566, 60-455

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