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July 21, 2017 Digests

Posted By Administration, Tuesday, July 25, 2017

Kansas Supreme Court


Attorney Discipline


NO. 10,805—JULY 19, 2017

FACTS: In a letter signed July 18, 2017, Margo E. Burson voluntarily surrendered her license to practice law in Kansas. At the time the respondent surrendered her license, a complaint was pending with the Office of the Disciplinary Administrator. The complaint alleged violations of various rules of professional conduct relating to competence, communication, and candor toward the tribunal.

HELD: The court examined the files of the Office of the Disciplinary Administrator and found that the surrender of Burson's license should be accepted and that she should be disbarred.




NO. 116,447—JULY 21, 2017

FACTS: This original action in mandamus questions whether a partially indigent defendant who has retained counsel may receive funding for certain services through the State Board of Indigents' Defense Services (BIDS). Landrum has privately retained counsel, but he moved to be declared partially indigent. The district court made that declaration and provided Landrum with a copy of the preliminary hearing transcript at a reduced price. The court also approved funding for investigative services. But after the presiding judge changed, all further requests were denied; the new judge ruled that Landrum could access BIDS payments only for expenses associated with his defense through an appointed, not retained, attorney. Landrum filed a petition for writ of mandamus, and BIDS served as the primary respondent.

ISSUE: Whether BIDS is required to fund services for a partially indigent defendant who has privately retained counsel

HELD: The court has jurisdiction to consider this application for mandamus and Landrum has standing. The only attorneys specifically excluded in K.S.A. 22-4508 are public defenders. The statute considers only the financial inability of the defendant to pay for defense services and the necessity of the requested services. Therefore, a district court has a duty to conduct an ex parte hearing when an attorney, other than a public defender, asks the court to consider a defendant's request for services. The writ issued here extends only to the district court's duty to hold a hearing; the court does not dictate the outcome of that hearing, and any orders entered depend on whether Landrum shows that he cannot afford the requested services, and that those services are necessary to his defense.

STATUTE: K.S.A. 22-4503(a), -4503(c), -4503(e), -4504, -4507, -4508, -4509, -4522,  -4523, 60-801


NO. 114,168—JULY 21, 2017

FACTS: Midwest Crane & Rigging (Midwest) is a contractor that provides a crane service. One of Midwest's trucks was stopped by law enforcement; during the stop, the trooper noticed that the truck did not have a license plate. In addition to a violation for failing to display a license plate, the trooper identified a possible issue with Midwest's failure to pay the federal Unified Carrier Registration Act (UCR) fee. The truck had a crane permanently attached to the chassis, and the truck only carried the tools that were necessary to operate the crane. The KCC fined Midwest $300 for failing to register and pay the UCR fee. The fine was upheld after the KCC determined that the truck was a "commercial motor vehicle." The district court affirmed the KCC, as did a majority of the Court of Appeals' panel. The Supreme Court granted review.

ISSUE: Is the crane truck a commercial motor vehicle that is principally used to transport cargo

HELD: In order to qualify as a commercial motor vehicle, the truck in question must be used principally to transport cargo. In this case, the crane and its associated tools are not cargo. Because the crane is not cargo, the truck is not a commercial motor vehicle and Midwest need not pay a fee.

STATUTES: 49 U.S.C. § 14504a(a)(1)(A)(ii), § 31101(1), § 13102(14), § 31132(1), § 14504a(a)(8), § 14504a(a)(9), § 14504(c), § 14504(e); K.S.A. 2016 Supp. 8-128(b), 66-1,115, -1,139a, 77-621(c)(4)





criminal law and procedure—evidence—prosecutors
state V. banks
sedgwick district court—affirmed
no. 114,614—july 21, 2017

FACTS: Flores was convicted of premeditated first-degree murder. On appeal he claimed:  (1) insufficient evidence supported the conviction because state’s evidence of premeditation was based upon impermissible inference stacking; (2) prosecutorial error by encouraging jury to decide case based on unreasonable inferences rather than on direct or circumstantial evidence; and (3) district court’s exclusion of photographs that depicted handwritten notes found in Flores’ car violated Banks’ right to present evidence critical to his defense.

ISSUES: (1) Sufficiency of the evidence, (2) prosecutorial error, (3) admission of evidence

HELD: Flores mistakenly equates inference stacking with state’s reliance on multiple circumstances. Impermissible inference stacking is not present where different circumstances are used to support separate inferences or where multiple pieces of circumstantial evidence separately support a single inference. Under facts in this case, the state provided sufficient evidence that the killing of the victim was premeditated.

No error was found in prosecutor’s closing argument. Prosecutor may have come close to scripting the crime for the jury in more detail than the evidence justified, but the relevant inferences asserted by the prosecutor were supported by the evidence and were reasonable.

District court correctly refused to admit the unauthenticated writings. Banks made no effort to comply with authentication requirements of K.S.A. 60-464; there was no evidence as to whose handwriting appears in the photographed writings; and nothing in the content of the writings gives a clue as to who might have authored them.   

STATUTES: K.S.A. 2013 Supp. 21-5402(a)(1); K.S.A. 60-404


criminal procedure—evidence—statutes
state v. davey
johnson district court—affirmed; court of appeals—affirmed
no. 111,774—july 21, 2017

FACTS: Davey was convicted of attempted first-degree murder and conspiracy to commit first-degree murder of her husband. At trial, state introduced hearsay statements that were made among the conspirators. Davey appealed, claiming this evidence did not fit the coconspirator exception in K.S.A. 2016 Supp. 60-460(i)(2). Court of Appeals affirmed in an unpublished opinion. Sole issue in Davey’s petition for review was whether the co-conspirator exception to the hearsay rule is applicable where the state offers the hearsay through a co-conspirator.

ISSUES: Co-conspirator exception to the hearsay rule

HELD: The coconspirator exception to the hearsay rule, based upon K.S.A. 60-2016 Supp. 60-460(i)(2), does not require that the coconspirator’s statement be offered to the court by a third person who is not a participant in the conspiracy. The third person requirement for application of the coconspirator exception, as declared in the five-part test in State v. Bird, 238 Kan. 160 (1985), and its progeny, is disapproved and overruled. K.S.A. 2016 Supp. 60-460(i)(2) sets up just three requirements for the co-conspirator exception to the hearsay rule to apply:  (1) the out-of-court statement must have been made by one of the co-conspirators; (2) the statement of the co-conspirator must have been made while the conspiracy was in progress; and (3) the statement must be relevant to the plan or its subject matter. Substantial competent evidence supports the factual requirements for application of K.S.A. 2016 Supp. 60-460(i)(2) in this case. Trial court did not err in admitting the evidence.

STATUTES: K.S.A. 2016 Supp. 60-460(i), -460(i)(2); K.S.A. 60-404


district courts—criminal law and procedure—discovery—evidence
state v. pollard
sedgwick district court—affirmed
no. 114,005—july 21, 2017

FACTS: Jury convicted Pollard of first-degree felony murder and aggravated robbery. Prior to trial, Pollard filed pro se motion seeking to compel state’s production of certain evidence. County clerk’s response stated that no hearings were scheduled and no further action would be taken absent further direction from Pollard’s appointed defense counsel as to how to proceed. During trial, district court ruled that Pollard’s gang status was admissible to enable state to explain how Pollard became a suspect. On appeal, Pollard claimed the prosecutor erred by introducing gang affiliation evidence. He also claimed the Sedgwick County clerk’s method of dealing with pro se motions in criminal cases violated his due process rights.

ISSUES: (1) Prosecutorial error, (2) pro se motion for discovery

HELD: Prosecutor did not mislead the trial judge about the grounds for admitting gang affiliation evidence. Pollard’s identity was a central issue in the case, and law enforcement used the department’s gang database in the process of connecting Pollard to the crimes. No merit was found in any of Pollard’s related claims of error by the prosecutor and trial court.

Pollard’s challenge as to how the county clerk’s office handles pro se motions in other cases cannot be brought in Pollard’s direct appeal, and there is no support in the record for Pollard’s challenge to the clerk’s handling of his motion. Pollard also failed to establish that he was in any way prejudiced by having his motion referred to appointed defense counsel rather than heard on its own. Under facts in this case, Pollard was not denied meaningful access to the court.

STATUTES: K.S.A. 2016 Supp. 60-455; K.S.A. 60-402(b)



Kansas Court of Appeals


constitutional law—criminal law—jury instructions—prosecutors—statutes
State v. Taylor
johnson district court—reversed, sentences vacated
no. 114,779—july 21, 2017

FACTS: Taylor was arrested for driving on a suspended license. Search of car discovered a gun stolen more than a year earlier. Marijuana found in Taylor’s shoe during his booking at the county jail. Jury convicted Taylor of theft, possession of marijuana, trafficking contraband in a correctional facility, and driving with a suspended license. Taylor appealed, arguing prosecutor and court erred in telling jury that the theft statute made possession of a stolen gun enough for a theft conviction, and that insufficient evidence supported his conviction on this charge. He also argued he was unconstitutionally denied notice that marijuana was contraband such that he could be separately convicted on the trafficking charge, and that insufficient evidence supported that conviction.

ISSUES: (1) Theft statute, (2) prosecutorial error, (3) sufficiency of the evidence of theft, (4) constitutional application of trafficking in contraband statute

HELD: Nothing within the plain language of the theft statute provides that persons found to be in possession of stolen firearms are guilty of theft regardless of whether they had knowledge the firearms they possessed were stolen. Under no circumstances is the state relieved of its duty of establishing the defendant acted with the intent to commit theft.

By telling the jury that it is the legislature’s desire to convict persons who possess stolen firearms of theft regardless of whether those persons had knowledge the firearms were stolen, the prosecutor seriously misstated the law and erroneously conveyed to the jury that the prosecutor is the final arbiter of the legislature’s intent. Under facts in this case, the prosecutor’s error was prejudicial.

There was insufficient evidence that Taylor intended to permanently deprive the owner of the handgun. A theft conviction based solely upon possession of stolen property must be supported by sufficient evidence that the person provided unsatisfactory explanations for possessing the stolen property, and that the property they possessed had been recently stolen. Here, the gun found in Taylor’s possession some 14 to 20 months after it was reported stolen was too remote in time to be considered recently stolen. Taylor’s theft conviction was reversed and sentence was vacated without possibility of retrial.

The trafficking in contraband statute was unconstitutionally applied to Taylor. State v. Watson, 273 Kan. 426 (2002), makes clear that the statute can prohibit the introduction or attempted introduction of contraband only if the correctional institution’s administrator has given notice of what items constitute contraband. Controlled substances are not per se contraband under the statute. Under facts in this case, the jail administrator had not identified marijuana as contraband, thus Taylor was denied the notice to which he was entitled. Accordingly, insufficient evidence supported his trafficking in contraband conviction which was reversed and the sentence vacated. Error in trial court’s instructions were also noted.

STATUTES: K.S.A. 2016 Supp. 21-5202, -5203, -5701, -5801(a), , -5801(a)(1)-(a)(4), -5801(b)(1), -5801(b)(7), -5801(h), -5904, -5904(a), -5904(b), -5904(b)(2)(A)-(D), -5914(d)(1), -5914(d)(16), 50-1201 et seq., 65-4105(d)(16), 75-7c01 et seq.; K.S.A. 2014 Supp. 8-262, 21-5706(b)(3), -5801(a), -5914; K.S.A. 2001 Supp. 21-3826; K.S.A. 21-3826(c)(1), -5801

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July 7, 2017 Digests

Posted By Administration, Tuesday, July 11, 2017

Kansas Supreme Court

Attorney Discipline

NO. 116,773—JULY 7, 2017

FACTS: Nwakanma was accused of violating KRPC 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (fees), 1.15 (safekeeping of property), 1.16 (termination of representation), 3.4 (fairness to opposing party and counsel), 8.1 (bar admission and disciplinary matters), 8.4 (misconduct), and Kansas Supreme Court Rule 207 (cooperation). Nwakanma lives and practices in Texas and was accused of violating several Texas Disciplinary Rules of Professional Conduct. Nwakanma's Kansas license has been suspended on multiple occasions for failing to comply with annual requirements, and it was suspended at the time of the disciplinary hearing. Nwakanma was never licensed independently in Texas. At the time of the hearing, Nwakanma had no active license to practice law in any jurisdiction.

HEARING PANEL: The hearing panel determined that Nwakanma's actions violated the Kansas Rules of Professional Conduct. After considering the aggravating and mitigating factors, the hearing panel recommended that Nwakanma be disbarred.

HELD: Nwakanma filed no exceptions to the hearing panel's final report, and the panel's findings of fact were deemed admitted. Nwakanma failed to appear at the hearing before the court, despite being allowed a continuance. The court upheld the discipline of disbarment. 

Tags:  Attorney Discipline 

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June 30, 2017 Digests

Posted By Administration, Wednesday, July 5, 2017

Kansas Supreme Court




appeals—constitutional law—criminal procedure—search and seizure— statutes
state v. nece
Saline district court—affirmed; court of appeals—reversed
affirmed on rehearing
no. 11,140—june 30, 2017

FACTS: Nece filed motion to suppress breath blood-alcohol test results, arguing the officer coerced Nece’s consent to the testing by advising him, pursuant to K.S.A. 2016 Supp. 8-1025, he could be charged with a crime for refusing testing. District court agreed and suppressed the evidence as resulting from an involuntary consent. Court of Appeals reversed in unpublished opinion. Kansas Supreme Court affirmed the district court’s decision, applying holding in State v. Ryce, 303 Kan. 899 (2016 (Ryce I), that K.S.A. 2016 Supp. 8-1025 was unconstitutional. State v. Nece, 303 Kan. 888 (2016) (Nece I). Mandates in Ryce I and Nece I were stayed pending U.S. Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160 (2016). Rehearings in the Ryce and Nece appeals were then held with additional briefs and arguments. Opinion in Ryce II, decided this same date, modified the analysis in Ryce I but reaffirmed its holding that K.S.A. 2016 Supp. 8-1025 was unconstitutional.

ISSUE: Effect of Birchfield on Nece I

HELD ON REHEARING: Nothing in Birchfield or Ryce II requires modification of Nece I. Under totality of circumstances in this case, Nece’s consent was involuntary because it was obtained by means of an inaccurate and coercive advisement.

DISSENT (Stegall, J.): Dissents for reasons stated in his dissent in Ryce I.

STATUTE: K.S.A. 2016 Supp. 8-1001, -1001(k), -1025


appeals—constitutional law—criminal procedure—search and seizure - statutes
state v. ryce
sedgwick district court—affirmed—affirmed on rehearing
no. 111,698—June 30, 2017

FACTS: Ryce was charged with violating K.S.A. 2016 Supp. 8-1025(a) for refusing to submit to testing for blood alcohol content. On appeal, he challenged the constitutionality of 8-1025. State v. Ryce, 303 Kan. 899 (2016) (Ryce I), held the statute was facially unconstitutional because it punished an individual’s withdrawal of consent to search. Mandate was stayed on State’s motion, pending United State’s Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160 (2016). Motions for rehearing granted, and parties allowed to submit additional briefs and oral arguments.

ISSUE: Effect of Birchfield on Ryce I

HELD: Ryce I is modified, pursuant to Birchfield, to reflect the validity of conducting a breath test in a DUI case where the arrest is made under the warrant exception of a search incident to a lawful arrest. But the holding in Ryce I is reaffirmed. K.S.A. 2016 Supp. 8-1025, which is premised on the consent exception alone, is facially unconstitutional.

DISSENT (Stegall, J.): Dissented for reasons stated in his dissent in Ryce I.

STATUTE: K.S.A. 2016 Supp. 8-1001, -1001(a), -1001(b), -1001(b)(1)(B), -1001(b)(2), -1001(c), -1001(d), -1001(k), -1013, -1013(b)(1), -1013(i), -1001(j), -1025, -1025(a)

appeals—constitutional law—criminal procedure—search and seizure—statutes
State v. wilson
Shawnee district court—affirmed
affirmed on rehearing
No. 112,009—june 30, 2016

FACTS: Wilson was charged with violating K.S.A. 2016 Supp. 8-1025. District court considered Wilson’s challenge to the constitutionality of that statute, and dismissed the charge. The Kansas Supreme Court affirmed, applying holding in State v. Ryce, 303 Kan. 888 (2016 (Ryce I), that K.S.A. 2016 Supp. 8-1025 was facially unconstitutional. State v. Wilson, 306 Kan. __ (2016)(Wilson I). Mandates in Ryce I and Wilson I were stayed pending U.S. Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160 (2016). Rehearings in the Ryce and Wilson appeals were then held with additional briefs and arguments. Opinion in Ryce II, decided this same date, modified the analysis in Ryce I but reaffirmed its holding that K.S.A. 2016 Supp. 8-1025 was unconstitutional.

ISSUE: Effect of Birchfield on Wilson I

HELD: For the reasons set forth in Ryce I and Ryce II, district court’s dismissal of the charge against Wilson was affirmed.

DISSENT (Stegall, J.): Dissented for reasons stated in his dissent in Ryce I.

STATUTE: K.S.A. 2016 Supp. 8-1001, -1025

appeals—constitutional law—criminal procedure—search and seizure— statutes
state v. wycoff
saline district court—affirmed
affirmed on rehearing
no. 110,393—june 30, 2017

FACTS: Wycoff was charged with violating K.S.A. 2016 Supp. 8-1025. District court considered Wycoff’s challenge to the constitutionality of that statute, and dismissed the charge. The Kansas Supreme Court affirmed, applying holding in State v. Ryce, 303 Kan. 888 (2016 (Ryce I), that K.S.A. 2016 Supp. 8-1025 was facially unconstitutional. State v. Wycoff, 303 Kan. 885 (2016)(Wycoff I). Mandates in Ryce I and Wycoff I were stayed pending U.S. Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160 (2016). Rehearings in the Ryce and Wycoff appeals were then held with additional briefs and arguments. Opinion in Ryce II, decided this same date, modified the analysis in Ryce I but reaffirmed its holding that K.S.A. 2016 Supp. 8-1025 was unconstitutional.

ISSUE: Effect of Birchfield on Wycoff I

HELD: For the reasons set forth in Ryce I and Ryce II, district court’s dismissal of the charge against Wycoff was affirmed.

DISSENT (Stegall, J.): Dissented for reasons stated in his dissent in Ryce I.

STATUTES: K.S.A. 2016 Supp. 8-1001, -1025



Kansas Court of Appeals




NO. 116,034—JUNE 30, 2017

FACTS: The Barkers leased an oil and gas interest on land that he eventually obtained ownership of by a transfer on death deed. The Barkers received a tax exemption for low-production leases. But the county assessed a tax on the equipment that the Barkers used to produce oil from those exempted wells. The Barkers appealed that tax to BOTA, which held that equipment is not included in the term "oil lease" as that term is used in the exemption for low-production leases. The Barkers appealed.

ISSUES: (1) Consultation of an oil and gas appraisal guide; (2) improper advocacy; (3) exemption of oil lease equipment; (4) attorney fees

HELD: The Division of Property Valuation is allowed to adopt rules and regulations or appraiser directives, and there is a statutory mandate requiring county appraisers to follow the policies, procedures, and guidelines of DPV. In addition, the court may take judicial notice of any official state document prepared by a state official. The facts in this case were undisputed but there was a dispute over a question of law – whether the Barkers' equipment was exempt. Because of that dispute, summary judgment was inappropriate regardless of whether BOTA responded to the Barkers' motion. On this issue of first impression, the court looks to the tax code for answers. When reading applicable statutes together, they suggest that equipment is not part of an oil lease for purposes of the tax exemption at issue here. The Barkers are not entitled to attorney fees because the tax assessed on the Barkers' equipment was allowed under the law.

STATUTES: K.S.A. 2016 Supp. 60-256(e)(2), 79-201t, -201t(a), -331(b), -332a(a), -505(a), -1439(b)(2)(B), -1439(b)(2)(E), -1456(a); K.S.A. 79-301, -329, -3268(f)


NO. 116,666—JUNE 30, 2017

FACTS: Leaf obtained a default judgment against Simmons in federal court in Delaware. After obtaining that judgment, Leaf filed a notice of the foreign judgment in Crawford County District Court. Some years later, Leaf filed a motion to revive that judgment, which was granted by the district court. After the revival, Leaf filed requests for garnishment on two banks, and the district court issued orders of garnishment. Simmons objected, claiming that he had no notice of the Delaware lawsuit and that the funds being garnished were exempt Social Security disability benefits. Simmons later clarified that the disability benefits were from private disability insurance and not Social Security benefits. The parties agreed on some issues, but a question remained about whether funds attributable to a disability insurance police were exempt from garnishment. The district court ultimately ruled that private disability insurance benefits were subject to garnishment, and Simmons appealed.

ISSUE: Ability to garnish funds from a private disability insurance policy

HELD: K.S.A. 60-2313(a)(1) exempts from garnishment only the funds specifically enumerated in the statutes. Since Simmons' funds – derived from private disability insurance – were not mentioned, they are subject to garnishment.

STATUTES: K.S.A. 2016 Supp. 60-735(c), 60-2308, 74-4927, -4960; K.S.A. 20-2609, 60-724(3), -2308, -2308(b), -2313, -2313(a)(1)




constitutional law—criminal—fourth amendment
state v. glover
douglas district court—reversed and remanded
no. 116,466—june 30, 2016

FACTS: Law enforcement officer ran the plate on a car which he then stopped to investigate because the driver’s license of the registered owner (Glover) had been revoked.  Glover was charged with driving without a license as a habitual violator. He filed motion to suppress, arguing there was no reasonable suspicion of criminal activity to justify the stop. District court agreed and found the initial stop was unlawful. State filed interlocutory appeal.

ISSUE: Reasonable suspicion for traffic stop

HELD: Kansas courts have not previously confronted the narrow issue of whether an officer’s knowledge that vehicle owner’s license is revoked, by itself, provides reasonable suspicion to initiate a stop. Decisions in other states were reviewed, finding agreement with the consensus of their state supreme courts. A law enforcement officer has reasonable suspicion to initiate a stop of a vehicle to investigate whether the driver has a valid driver’s license if, when viewed in conjunction with all other information available to the officer at the time of the stop, the officer knows the registered owner of the vehicle has a suspended license, and the officer is unaware of any other evidence or circumstances from which an inference could be drawn that the registered owner is not the driver of the vehicle. In this case it was reasonable for the officer to infer the driver was the owner of the vehicle, thus the officer properly initiated a traffic stop to investigate whether Glover was illegally driving his vehicle. District court’s decision to grant Glover’s motion to suppress is reversed, and matter is remanded.

STATUTES: K.S.A. 2016 Supp. 8-287; K.S.A. 22-2402(1), -3216(2)


crimes and punishment—criminal procedure—sentencing—statutes
state v. horselooking
jackson district court—vacated and remanded
no. 115,656—june 30, 2017

FACTS: Horselooking was convicted of aggravated battery and DUI. Sentencing court scored Horselooking’s prior Kickapoo Nation tribal conviction of residential burglary as a person felony for criminal history purposes. Horselooking appealed, claiming his tribal conviction should be scored as a misdemeanor because the Kickapoo Nation Tribal Code does not designate crimes as felonies or misdemeanors.

ISSUE: Criminal history scoring of out-of-state convictions

HELD: Horselooking’s Kickapoo conviction for residential burglary would be classified as a felony under State v. Hernandez, 24 Kan.App.2d 285, rev. denied 263 Kan. 888 (1997), and State v. Lackey, 45 Kan.App.2d 257, rev. denied 292 Kan. 968 (2011), but panel discussed why the Kansas Supreme Court would not embrace Hernandez and Lackey in this case. Where the convicting jurisdiction does not designate a prior conviction as a felony or misdemeanor, the rule of lenity should apply, thus Horselooking’s tribal conviction of residential burglary should have been classified as a misdemeanor for criminal history purposes. Horselooking’s sentence was vacated and remanded to district court for resentencing using the correct criminal history score.

DISSENT (Atcheson, P.J.): Agreed that Hernandez, and the reiteration of its holding in Lackey,     impose a default rule that cannot be reconciled with K.S.A. 2-15 Supp. 21-6811. Disagreed with majority’s focus on Kickapoo Nation’s criminal code as not explicitly labeling crimes as “felonies” or “misdemeanors.” Instead, legislature intended for what another jurisdiction treats as a serious crime be scored as a felony for criminal history purposes, while a minor crime from that jurisdiction should be scored as a misdemeanor. Examining the types of punishment for various wrongs under the Kickapoo Nation’s tribal criminal code, residential burglary is a serious crime. Horselooking’s conviction should have been treated as a felony in determining his criminal history.

STATUTE: K.S.A. 2015 Supp. 21-5102, -5102(a), -5102(d), -5807(a)(1), -5807(c)(1)(A), -6803(c), -6810(c), -6811, -6811(e), -6811(e)(1), -6811(e)(2), -6811(e)(2)(A), -6811(e)(2)(B), -6811(e)(4)

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June 23, 2017 Digests

Posted By Administration, Monday, June 26, 2017

Kansas Supreme Court

NO. 114,052—JUNE 23, 2017

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

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

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

STATUTE: K.S.A.  60-455


No. 114,554—JUNE 23, 2017

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

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

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

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

Kansas Court of Appeals


NO. 115,001—JUNE 23, 2017

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

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

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

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

NO. 115,897—JUNE 23, 2017

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

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

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

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

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


NO. 116,167—JUNE 23, 2017

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

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

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

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

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June 16, 2017 Digests

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

Kansas Supreme Court


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

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

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

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

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

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

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

Kansas Court of Appeals


IN RE L.M.B., A.B., AND L.B.
NO. 116,155—JUNE 16, 2017

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

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

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

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

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

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

ISSUE: Ineffective assistance of counsel

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

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


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

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

ISSUES: (1) Jurisdiction, (2) restitution

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

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

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

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

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

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

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

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

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

Tags:  Kiowa  Riley  Sedgwick  Shawnee 

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June 9, 2017 Digests

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

Kansas Supreme Court


NO. 110,483—JUNE 9, 2017

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

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

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

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

NO. 111,299—JUNE 9, 2017

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

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

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

STATUTE: K.S.A. 60-1507


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

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

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

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

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

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

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

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

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

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

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

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

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

Kansas Court of Appeals


NO. 116,373—JUNE 9, 2017

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

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

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

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

NO. 115,614—JUNE 9, 2017

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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June 2, 2017, Appellate Court Digests

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

Kansas Supreme Court


NO. 13,619 – MAY 31, 2017

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

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

NO. 18,779 – MAY 31, 2017

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

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

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

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

ISSUE: Violating conditional release in an extended jurisdiction juvenile prosecution

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

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

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


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

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

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

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

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

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

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

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

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

ISSUE: Person/nonperson classification of pre-KSGA offenses

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kansas Court of Appeals


NO. 115,383—JUNE 2, 2017

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

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

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

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

NO. 115,882—JUNE 2, 2017

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

ISSUE: Basis for an award of attorney fees

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

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

NO. 116,307—JUNE 2, 2017

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

ISSUE: Whether recovery is barred by the integrated system approach

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

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

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May 26, 2017 Digests

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

Kansas Supreme Court

Attorney Discipline

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)

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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 

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May 12, 2017, Appellate Court Digests

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

Kansas Supreme Court


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 

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