Print Page | Contact Us | Sign In | Register
Appellate Court Digests
Blog Home All Blogs


Search all posts for:   


Top tags: Attorney Discipline  Sedgwick District  Wyandotte District  constitutional law  Shawnee District  statutes  Johnson District  Reno District  Saline District  Sedgwick  8807  Criminal Procedure  evidence  Johnson District Court  Motions  Douglas District  criminal law  Fourth Amendment  Johnson  jury instructions  search and seizure  Sedgwick District Court  Shawnee District Court  Disbarment  Finney District  habeas corpus  Leavenworth District  Reno  Riley  sentences 

May 26, 2017 Digests

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

Kansas Supreme Court

Attorney Discipline

NO. 117,201—MAY 26, 2017

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

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

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


NO. 117,357—MAY 26, 2017

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

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

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


NO. 113,060—MAY 26, 2017

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

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

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

STATUTE: K.S.A. 60-518


NO. 113,775—MAY 26, 2017

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

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

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

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

NO. 113,799—MAY 26, 2017

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

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

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

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

NO. 113,684—MAY 26, 2017

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

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

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

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

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

Kansas Court of Appeals


NO. 116,038—MAY 26, 2017

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

ISSUE: Whether the request for records was properly denied

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

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

NO. 115,416—MAY 26, 2017

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

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

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

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

This post has not been tagged.

Share |
PermalinkComments (0)

May 19, 2017 Digests

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

Kansas Supreme Court


NO. 112,888—MAY 19, 2017

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

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

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

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

NO. 113,537—MAY 19, 2017

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

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

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

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

Tags:  Johnson  Shawnee 

Share |
PermalinkComments (0)

May 12, 2017, Appellate Court Digests

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

Kansas Supreme Court


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

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

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

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

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

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


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

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

ISSUE: Retroactive Application of Alleyne to Final Cases

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

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

Tags:  Shawnee District  Wyandotte District 

Share |
PermalinkComments (0)

May 5, 2017, Appellate Court Digests

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

Kansas Supreme Court


NO. 115,978—MAY 5, 2017

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

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

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

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


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

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

ISSUE: Motion to Correct Illegal Sentence - Constitutional Claim

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

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


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

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

ISSUE: Motion to correct illegal sentence—Constitutional claim

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

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


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

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

ISSUE: Good-faith exception—probable cause determination

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

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

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

Share |
PermalinkComments (0)

April 28, 2017 Digests

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

Kansas Supreme Court


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

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

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

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

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

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


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

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

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

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

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

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

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

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

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


Kansas Court of Appeals


NO. 116,232—APRIL 28, 2017

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

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

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

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



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

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

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

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

Controlling Kansas precedent defeats Carter’s Apprendi sentencing claim.

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


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

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

ISSUE: Classification of Prior Out-of-State Conviction

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

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

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

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

ISSUE: Motion to correct illegal sentence

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

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

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

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

Share |
PermalinkComments (0)

January 8, 2016, Appellate Court Digests

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

Kansas Supreme Court


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

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

ISSUE: Revocation of Probation

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

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

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

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

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

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

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

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

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

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

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

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

Kansas Court of Appeals


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

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

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

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

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

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

Tags:  Leavenworth District  Saline District  Sedgwick District  Wyandotte District 

Share |
PermalinkComments (0)

December 27, 2013, Appellate Court Digests

Posted By Administration, Friday, December 27, 2013
Updated: Thursday, August 24, 2017

Kansas Supreme Court


State v. Hurd
Seward District Court – Reversed and remanded
Court of Appeals – Reversed
No. 104,198 – December 27, 2013

FACTS: Hurd convicted in trial that consolidated case with assault, battery, and criminal threat charges, and case charging two counts of failure to register as sex offender. Hurd appealed on nine issues, in part challenging district courts decision to consolidate the cases, trial judge’s refusal to recuse, and district court’s refusal to find complaint charging him with failing to register was jurisdictionally defective. In unpublished opinion, Court of Appeals rejected each issue and affirmed convictions and sentences. Hurd’s petition for review granted.

ISSUES: (1) Consolidation of cases, (2) defective complaint, (3) sufficiency of evidence of criminal threat, (4) recusal of trial judge, (5) authority to disqualify prosecutor

HELD: District court erred in consolidating the two cases. District court’s calendar considerations do not provide a basis for joinder, and Supreme Court rejects Court of Appeals’ finding that crimes were connected. State v. Anthony, 257 Kan. 1003 (1995) is distinguished. State’s case as to battery, assault, and criminal threat charges was not strong, and jury might well have been influenced by Hurd’s prior convictions. Under the circumstances there was a reasonable probability that the improper consolidation affected the outcome of Hurd’s trial. Reversed and remanded for two separate trials.

Complaint charging Hurd with two counts of failing to register was jurisdictionally defective. Complaint’s language did not substantially follow language of K.S.A. 22-4904(a)(1), nor charge the offense in equivalent words to fully inform Hurd of particular offense charged. Final charging document also was confusing because it blended language from two different statutory provisions. Because conviction was void as a result of district court’s error in denying motion for arrest of judgment, State not prevented from recharging Hurd.

Under facts of case viewed in light most favorable to prosecution, sufficient evidence supported Hurd’s conviction for criminal threat. Remand for a new trial on this charge does not violate Double Jeopardy Clause.

Because Hurd essentially alleged prosecutor violated Kansas Rules of Professional Conduct, trial court had discretion to disqualify that attorney from the case. If issue arises on remand, district court should consider whether prosecutor’s alleged conduct warrants disqualification.

STATUTES: K.S.A. 2012 Supp. 60-261; K.S.A. 20-311d, -311d(c), -311d(d), 3018(b); K.S.A. 22-3202, -3202(1), -3203, -3502, -4904(a)(1), -4904(b); and K.S.A. 60-2101(b)

Habeas corpus
Makthepharak v. State
Sedgwick District Court – Affirmed
No. 105,932 – December 27, 2013

FACTS: Makthepharak charged as juvenile on charges related to home invasion and murder. District court granted state’s motion for adult prosecution. Makthepharak’s convictions and sentences for first-degree felony murder, aggravated burglary, and criminal possession of firearm were affirmed on appeal. 276 Kan. 563 (2003). In 2010, Makthepharak filed pro se motion to correct illegal sentence and for appointment of counsel. District court denied the motion without a substantive hearing or appointment of counsel. Makthepharak appealed, claiming district court lacked jurisdiction to impose sentence because Makthepharak was never properly certified for adult prosecution, and alternatively, that district court improperly construed his pro se motion. He also claimed district court’s summary denial of K.S.A. 22-3504 motion was fundamentally unfair, and alternatively claimed he was entitled to assistance of counsel during the court’s initial examination of the motion.

ISSUES: (1) Procedural claims – motion to correct illegal sentence, (2) summary denial of motion to correct illegal sentence and certification for adult prosecution, (3) construing the pro se motion

HELD: Makthepharak made no persuasive argument for revisiting or abandoning longstanding interpretation of K.S.A. 22-3504 as not requiring a substantive proceeding and assistance of counsel in all cases, and that statute’s protections do not apply when a court summarily denies a motion to correct an illegal sentence.

District court properly considered statutory factors in K.S.A. 38-1636(e). Because Makthepharak was properly certified as an adult under the statute, district court had jurisdiction over the criminal trial. Makthepharak’s sentence was therefore lawful.

Although district court erred in part by construing Makthepharak’s motion as an improper method of attack and perhaps as seeking unavailable relief, Makthepharak was not prejudiced because his claim was still considered and properly denied on its merits.

STATUTES: K.S.A. 2012 Supp. 22-3601(b)(3); K.S.A. 2010 Supp. 38-2347(e); K.S.A. 22-3504, -3504(1); K.S.A. 38-1601 et seq., -1636(e); K.S.A. 60-1507

Kansas Court of Appeals


Workers Compensation
Lake v. Jessee Trucking and Continental Western Group
Workers Compensation
No. 109,519 – December 27, 2013

FACTS: Glenn C. Lake appealed the denial of his workers compensation claim. Lake had an accident at work and then experienced increasing symptoms of back pain and arm and leg numbness. Lake's treating physicians, a neutral physician appointed by the administrative law judge (ALJ), and a physician retained by Lake, all testified that the work accident caused his injuries. A physician retained by Lake's employer, Jessee Trucking, offered no opinion because he was uncertain regarding the onset of Lake's symptoms. The ALJ heard sworn testimony from Lake describing his work accident, his symptoms, and his medical care. The ALJ determined that the work accident caused significant neurological injuries and awarded Lake compensation for his permanent total disability. Upon review, however, the Workers Compensation Board (Board) rejected Lake's testimony and held that he had failed to prove the work accident had caused his neurological injuries.

ISSUE: Workers compensation

HELD: Court held that under the facts of this workers compensation case, having considered all of the evidence—including the credibility determinations made by the administrative law judge regarding the claimant and the reasons given by the Board for disagreeing with those credibility determinations, the Board's findings of fact in support of its conclusion to deny compensation are not supported by substantial evidence when viewed in light of the record as a whole. Court stated that because the question here was not the existence of a work accident, which the Board found, or even of injury to Lake, which the Board found in the form of a pulled groin, but only of a link between the work accident and Lake's neurological injuries, the causation opinions of the doctors did not seem improbable, unreasonable, or untrustworthy. Court concluded that the weight of this medical evidence, coupled with the lack of substantial evidence to uphold the Board's findings that Lake was not credible (contrary to the ALJ's determination) and the evidence corroborating Lake's testimony that he experienced neurological symptoms during and shortly after the accident, require reversal of the Board's ruling. Court held the Board's findings of fact in support of its conclusion to deny compensation were not supported by substantial evidence viewed in light of the record as a whole. Court reversed the Board's order and remanded with directions to reinstate the ALJ's award of compensation.

STATUTES: K.S.A. 44-501, -556; K.S.A. 77-601, -621

Smith v. Kansas Orthopaedic Center P.A.
Sedgwick District Court – Affirmed
No. 109,084 – December 27, 2013

FACTS: In 2007, Lana Smith began work as a physical therapist for a Wichita medical practice. After she left its employment, she sued for bonuses she said were owed to her. Smith said that the practice's business manager promised her a minimum $10,000 per year bonus before she began work. But Smith's employment agreement also clearly provided that she was an at-will employee, something she has not contested, and the compensation of at-will employees may be changed on a going-forward basis. Her employer announced new compensation terms during 2008, paid her more than $10,000 in bonuses for 2008, and applied the new compensation terms to bonuses in later years. Smith sued for her benefits and the district court held that by staying on after new compensation terms are announced for future compensation, an at-will employee impliedly accepts those terms. Accordingly, the district court granted summary judgment against Smith's claim for additional bonuses from 2009 until she ended her employment in 2011.

ISSUE: At-will employment

HELD: Court held that in an at-will employment, the employer can change the terms under which the employee is compensated for wages not yet earned by providing notice to the employee. If the employee continues to work after the new compensation terms have been announced, the employee impliedly accepts those terms.


This post has not been tagged.

Share |
PermalinkComments (0)

January 4, 2013, Appellate Court Digests

Posted By Administration, Friday, January 4, 2013
Updated: Thursday, July 25, 2019

Kansas Supreme Court


eminent domain
City of Wichita v. Denton and Clear Channel
Sedgwick district court – affirmed
No. 97,952 – January 4, 2013

FACTS: City of Wichita filed action under Kansas Eminent Domain Procedure Act (EDPA) to condemn tract of land for highway purposes. Defendants included Denton as owner of fee title, and Clear Channel as lessee on property for operation of billboard. Appraisers valued tract at $1,075,600, with no compensation given for billboard structure and no consideration as to advertising income produced by Clear Channel’s leasehold. Clear Channel appealed appraiser’s award, and requested jury trial to determine total damages for the condemned property. District court affirmed the award as just compensation for taking the entire tract, ruled the billboard was personal property for which no compensation was required, and granted summary judgment to City. Clear Channel appealed, alleging error in district court’s judgment that billboard structure was noncompensable personal property, and district court’s related order granting City’s motion in limine order to exclude Clear Channel’s expert testimony based on advertising income as irrelevant to issue of just compensation.

ISSUES: (1) Character of billboard structure; (2) evidence of advertising income; and (3) unit rule

HELD: Appeal involves valuation stage of EDPA two-stage (valuation and apportionment) approach to compensation for taking where property consists of fee ownership and leasehold. District court correctly granted City’s motion for partial summary judgment and motion in limine excluding evidence of value of billboard structure because undisputed facts in this case demonstrate that billboard was personal property noncompensable in eminent domain proceeding.

District court did not err in granting City’s motion for partial summary judgment and motion in limine excluding evidence of advertising income generated by billboard structure on condemned real estate because this evidence represented business profits rather than rental income, and was irrelevant for determining value under any authorized valuation method.

No violation of unit rule in this case. District court correctly excluded evidence of value of billboard as personalty, correctly excluded evidence of advertising income produced by the billboard, and Clear Channel presented no other admissible evidence regarding value of its leasehold or the tract as a whole.

STATUTES: K.S.A. 2011 Supp. 26-504, -508(a); K.S.A. 26-501 et seq., -502, -502(3)(a), -508, -513, -513(a), -513(b), -513(d)(1), -513(e), -517; and K.S.A. 60-401(b), -402, -407(f)

Tags:  eminent domain  Sedgwick District 

Share |
PermalinkComments (0)
Page 14 of 14
 |<   <<   <  9  |  10  |  11  |  12  |  13  |  14