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February 23, 2018 Digests

Posted By Administration, Monday, February 26, 2018

Kansas Supreme Court

Attorney Discipline

NO. 118,226—FEBRUARY 23, 2018

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

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

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


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

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

ISSUE: Motion to Withdraw a Plea

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

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

Kansas Court of Appeals


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

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

ISSUE: Fourth Amendment – Traffic Stop

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

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

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February 16, 2018 Digests

Posted By Administration, Wednesday, February 21, 2018

Kansas Supreme Court

Attorney Discipline

NO. 118,204—FEBRUARY 16, 2018

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

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

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

NO. 10,687—FEBRUARY 14, 2018

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

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


NO. 112,645—FEBRUARY 16, 2018

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

ISSUE: Right of self-representation

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

STATUTES: No statutes cited.

NO. 107,963—FEBRUARY 16, 2018

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

ISSUE: Invited error

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

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

NO. 108,576—FEBRUARY 16, 2018

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

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

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

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

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

NO. 111,550—FEBRUARY 16, 2018

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

ISSUE: Withdrawal of plea

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

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

NO. 112,635—FEBRUARY 16, 2018

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

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

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

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

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

Kansas Court of Appeals


NO. 117,750—FEBRUARY 16, 2018

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

ISSUE: Necessity of fee payment

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

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

NO. 116,456—FEBRUARY 16, 2018

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

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

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

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

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February 9, 2018 Digests

Posted By Administration, Monday, February 12, 2018

Kansas Supreme Court


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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kansas Court of Appeals


NO. 116,825 – FEBRUARY 9, 2018

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

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

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

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

Tags:  constitutional law  death penalty  judges  jury  Osage  Shawnee 

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January 30 and February 2, 2018 Digests

Posted By Administration, Monday, February 5, 2018

Kansas Supreme Court

Attorney Discipline

NO. 25,188—JANUARY 30, 2018

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

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


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

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

ISSUE: Challenge to the sentence

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

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


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

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

ISSUE: Abuse of discretion in sentencing

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

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

Tags:  Attorney Discipline  Johnson  Kingman 

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January 26, 2018 Digests

Posted By Administration, Monday, January 29, 2018

Kansas Supreme Court


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kansas Court of Appeals


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

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

ISSUE: KORA Registration—Record Finding of a Deadly Weapon

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

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

Tags:  Douglas  Sumner 

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January 19, 2018 Digests

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

Kansas Supreme Court

Attorney Discipline

No. 22,228—JANUARY 16, 2018

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

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


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

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

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

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

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

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

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

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

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

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January 12, 2018 Digests

Posted By Administration, Tuesday, January 16, 2018

Kansas Supreme Court

Attorney Discipline

NO. 118,210—JANUARY 12, 2018

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

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

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


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

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

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

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

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

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

Kansas Court of Appeals


NO. 117,534—JANUARY 12, 2018

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

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

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

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


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

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

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

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

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

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


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

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

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

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

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

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

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

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

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


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

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

ISSUE: Due Process

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

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

Tags:  Attorney Discipline  Johnson  Riley  Sedgwick  suspension  Wyandotte 

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January 5, 2018 Digests

Posted By Administration, Monday, January 8, 2018

Kansas Supreme Court


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


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

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.

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.


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


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)

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)

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


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


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)


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 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)


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


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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