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March 6, 2020 Digests

Posted By Administration, Monday, March 9, 2020

Kansas Supreme Court

Attorney Discipline

TWO-YEAR SUSPENSION
IN RE DANIEL VINCENT SAVILLE
NO. 121,050—MARCH 6, 2020

FACTS: Saville stipulated that he violated KRPC 1.7(a)(2) (conflict of interest). A hearing panel found that Saville also violated KRPC 1.8(e) (providing financial assistance to client); 3.4(c) (fairness to opposing party and counsel); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Saville engaged in a sexual relationship with a client for over eight years; during the relationship Saville took nude photographs and videos of the client. He also provided her with financial assistance. When the client was charged with a felony, Saville wrote a fee agreement which contemplated that he would represent her for free as long as she did not get back together with a boyfriend.

HEARING PANEL: The hearing panel found numerous conflicts of interest in Saville's representation of his client. He had a prior disciplinary history after being convicted of possession of drug paraphernalia, and there was a lengthy, on-going pattern of misconduct. The panel did acknowledge mitigating factors, including Saville's history of drug use and emotional problems, and his cooperation with the disciplinary process. The disciplinary administrator's office suggested discipline of a one-year suspension. Saville requested that he be allowed to continue to practice, subject to the terms of his proposed probation plan. The hearing panel believed that probation was not appropriate for the rule violations in this case. Ultimately, the hearing panel recommended a six-month term of suspension with the requirement that Saville undergo a reinstatement hearing before being allowed to practice again.

HELD: Because it was not properly preserved, the Court makes no finding as to whether an attorney's payment of bail for a client is a per se violation of Rule 1.8(e). In this case, the undisputed facts show that Saville violated Rule 1.8(e). There was also sufficient evidence that Saville violated Rules 3.4(c) and 8.4(d) by speaking with a sequestered witness. After considering the recommended discipline and noting that Saville refused to accept responsibility of some of the disciplinary counts, a majority of the Court imposed discipline of a two-year suspension from the practice of law. Saville must undergo a reinstatement hearing before returning to practice. A minority of the Court would have imposed the one-year suspension requested by the disciplinary administrator's office.

criminal

appeals—constitutional law—criminal law—sentences—statutes
state v. carter
sedgwick district court—affirmed;
court of appeals—reversed
no. 116,223—march 6, 2020

FACTS:: Carter robbed a store using a Taser. Jury convicted her of aggravated robbery. At sentencing, district court found Carter had used a dangerous weapon to commit the crime, and marked the box on the journal entry that a deadly weapon had been used to commit a person felony. Sentence included registration under the Kansas Offender Registration Act (KORA). Carter appealed her conviction and the registration requirement. Court of Appeals affirmed the conviction but reversed the registration requirement, finding Carter did not use a deadly weapon during the robbery. 55 Kan. App. 2d 511 (2018). State’s petition granted for review of the panel’s registration requirement ruling.

ISSUES: (1) Appellate jurisdiction; (2) “deadly weapon”—K.S.A. 2019 Supp. 22-4902(e)(2)

HELD: Court has appellate jurisdiction over the registration issue under K.S.A. 2019 Supp. 22-3602(a).

            Phrase “deadly weapon” in K.S.A. 2019 Supp. 22-4902(e)(2) is interpreted. “Deadly weapon” when used as element of a crime is distinguished from use of that phrase in a nonpunitive civil regulatory scheme. Under plain meaning of clear statutory language, substantial competent evidence supported district court’s finding that Carter used a deadly weapon in committing the robbery. No departure from majority of Court’s consistent holdings that a district judge’s deadly weapon finding under K.S.A. 2019 Supp. 22-4902(e)(2) does not constitute impermissible judicial fact-finding prohibited by Apprendi.

DISSENT (Rosen, J.)(joined by Beier, J.): Would hold the district court erred in ordering Carter to register under KORA. He first disagrees with majority’s underlying premise that KORA is not a sentencing statute that increases the punishment for certain convictions, and believes State v. Petersen-Beard, 304 Kan. 192 (2016), was wrongly decided for reasons stated in J. Johnson’s dissent in Doe v. Thompson, 304 Kan. 291 (2016). Second, analyzing KORA as sentencing statute, district court’s sentencing pronouncement of “dangerous” weapon did not satisfy KORA, and journal entry box for “deadly” weapon had no effect. Third, a deadly weapon finding at sentencing would have violated Apprendi. And fourth, regardless of whether KORA is punitive or not, State did not produce evidence showing Tasers to be deadly. Majority’s reliance instead on “weight of growing common knowledge of Tasers’ danger” is criticized.

STATUTES:: K.S.A. 2019 Supp. 22-3602(a), -4902(e)(2); K.S.A. 2011 Supp. 21-5420, -5420(b)(1)

 

Kansas Court of Appeals

criminal

appeals—criminal law—criminal procedure—
evidence—jury instructions—statutes
state v. hayes
sedgwick district court—affirmed
no. 120,417—march 6, 2020

FACTS: While dark, Hayes used phone to film neighbor A.W. through her window in a state of undress. Jury convicted Hayes of breach of privacy. On appeal he claimed:: (1) insufficient evidence supported the conviction, arguing A.W. did not have a reasonable expectation of privacy because her blinds were not closed, and the phone he used to record A.W. was not concealed; (2) district court erred in admitting evidence of a receipt that Hayes had purchased a spywatch; (3) because he admitted he recorded A.W., identity was not a material fact thus district court erred in admitting testimony of other neighbors that Hayes had been looking in their windows; (4) verdict form erroneously placed “guilty” before “not guilty; (5) district court erred by instructing jury that you “should” find the defendant guilty if you have no reasonable doubt; and (6) cumulative error denied him a fair trial.

ISSUES: (1) Breach of privacy; (2) evidence—watch receipt; (3) evidence - prior bad acts; (4) verdict form; (5) jury nullification; (6) cumulative error

HELD:: Kansas courts have not addressed the phrase “reasonable expectation of privacy” as used in K.S.A. 2019 Supp. 21-6101(a)(6). Fourth Amendment is distinguished from right to privacy. Fact-specific two pronged test is applied, finding sufficient evidence for jury to conclude that A.W. had a reasonable expectation of privacy in her bedroom even though the window blinds were up. Also, Hayes was concealed when he recorded A.W., thus the phone he used was concealed as well. Statute does not require any additional concealment of the recording device.

            District court did not erroneously admit evidence that Hayes bought a recording device designed to be unobtrusive. Hayes failed to preserve this issue for appeal, but even if preserved, the purchase of a watch that secretly records people was relevant to whether Hayes secretly recorded A.W.: And even if issue had been properly preserved and even if receipt was not relevant, admission of the watch receipt was harmless.

            District court did not erroneously admit prior bad acts evidence. The evidence was admissible to show identity because at time of the rulings Hayes had not admitted that he was the one recording A.W.

            Following established Kansas Supreme Court holdings, district court did not err by placing “guilty” above “not guilty” on the verdict form.

            District court did not err in using PIK instruction to instruct jury that “[i]f you have no reasonable doubt…, you should find the defendant guilty.”:

            There can be no cumulative error in case with at most one error that was found to be harmless.

STATUTES: K.S.A. 2019 Supp. 21-5222(a), -6101, -6101(a)(6), 60-261, -455; K.S.A. 2014 Supp. 21-6101(a)(6); K.S.A. 2012 Supp. 21-6101(a)(3); K.S.A. 60-401(b), -404

Tags:  Appeals  constitutional law  criminal law  criminal procedure  evidence  jury instructions  sentences  statutes  suspension of license 

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February 28, 2020 Digests

Posted By Administration, Monday, March 2, 2020
Updated: Monday, March 2, 2020

Kansas Supreme Court

Attorney Discipline

TWO-YEAR SUSPENSION
IN RE LAUREL R. KUPKA
NO. 122,053—FEBRUARY 28, 2020

FACTS: A hearing panel determined that Kupka violated KRPC 1.1 (competence); 1.3 (diligence); 1.4(a) and (b) (communication); 4.1(a) (truthfulness in statements to others); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). The charges arose after Kupka expanded her law practice to include domestic cases while also taking on extra duties after other attorneys at the firm resigned. Kupka's workload grew even heavier around the time her first child was born, and she lost administrative support. The heavy workload, combined with a lack of any support, resulted in Kupka feeling anxious and depressed. As those conditions worsened, Kupka failed to adequately represent clients. She did not file things despite saying that she did, she altered documents in an attempt to make them look file-stamped, and she falsified judge's signatures. Kupka also failed to communicate with clients, and when she did speak with them, she lied about the status of their cases.

HEARING PANEL: Kupka self-reported her misconduct, in addition to another complaint being filed. She fully cooperated and admitted to the misconduct. The hearing panel acknowledged that Kupka engaged in dishonest conduct by cutting and pasting file stamps onto documents and forging clerk and judge signatures. But her actions were driven by an overwhelming workload, a lack of supervision or assistance, and depression. She fully admitted her misconduct and cooperated with the disciplinary process. The disciplinary administrator asked for a two-year suspension, and that the suspension be suspended after one year so that Kupka could complete a one-year term of probation. Kupka asked that she be allowed to continue practicing under the terms of a probation plan. The hearing panel, however, reiterated its position that dishonesty cannot be corrected by probation alone. The hearing panel recommended that Kupka be suspended for two years, but that she be returned to active practice after serving six months of the suspension, with a two-year term of probation to follow.

HELD: The panel's factual findings and conclusions of law were deemed admitted. The court agreed that a two-year suspension was the appropriate discipline. Kupka will be allowed to apply for reinstatement after completing nine months of the suspension. A minority of the court would have required a longer period of suspension before applying for reinstatement.

 

criminal 

constitutional lawcriminal lawcriminal procedurejury instructionsprosecutorssentences
state v. becker
ford district court—affirmed in part, vacated in part
NO. 118,235—february 28, 2020

FACTS: On evidence—including Becker’s confession, jury found him guilty of first-degree premeditated murder. Sentence included a Hard 25 life prison term and lifetime postrelease supervision. On appeal, he claimed prosecutor’s comments during closing argument regarding plea deals taken by codefendants was error. Becker also claimed the district court erred in failing to instruct jury on lesser included crimes, and on voluntary intoxication. He also claimed for first time that failure to instruct on lesser included crimes violated his constitutional rights to due process and jury trial. He claimed cumulative error denied him a fair trial, and claimed the district court erred in ordering lifetime postrelease supervision.

ISSUES: (1) Prosecutorial error; (2) jury instructionslesser included offenses; (3) Constitutional claims; (4) jury instructionvoluntary intoxication; (5) cumulative error; (6) sentencing

HELD: Prosecutor’s comments did not fall outside wide latitude afforded prosecutors, and was not an attempt to obtain a conviction in a manner that offended Becker’s right to a fair trial. Taken in context, prosecutor’s comments did not direct jury to ignore the plea agreements or to give them no weight in determining witness credibility. Instead, prosecutor was rebutting attacks in defense counsel’s closing argument regarding a codefendant’s favorable plea agreement.

District court did not commit reversible error under K.S.A. 2018 Supp. 22-3414 by failing to instruct jury on lesser included offenses of second-degree murder and voluntary manslaughter. Both instructions would have been legally appropriate. Even if error is assumed without decidingthat a second-degree intentional murder instruction was factually appropriate, the error was harmless under facts in this case. And no sudden quarrel factually supported an instruction for voluntary manslaughter.

Court considers Becker’s newly raised constitutional claims. Consistent with Beck v. Alabama, 447 U.S. 625 (1980), and State v. Love, 305 Kan. 716 (2017), no merit to Becker’s  claim that the lack of a lesser included alternative required jury to render an all-or-nothing verdict in violation of Becker’s due process rights. Also, based on Love and a 6th Circuit Court of Appeals case, district court did not preempt function of jury in violation of Becker’s right to a jury trial.

Under facts in this case, district court did not err in failing to instruct jury on voluntary intoxication. Evidence viewed in light most favorable to Becker establishes methamphetamine consumption but not intoxication to impair his ability to form the requisite intent. Nor did parents’ unsworn statements at sentencing hearing establish a level of impairment at time of the crime that would have warranted a voluntary intoxication instruction.

No cumulative error in trial having only one assumed harmless error.

Sentencing court’s order of lifetime postrelease supervision is vacated. District court has no authority to order a term of postrelase supervision in conjunction with an off-grid, indeterminate life sentence.

STATUTES: K.S.A. 2018 Supp. 21-5202(h), 5402(a), -6620(c)(2)(A), 22-3414, -3414(3), -3504, 3504(1), -3601(b)(3), -3601(b)(4); K.S.A. 2015 Supp. 21-5109(b)(1); K.S.A. 2014 Supp. 21-5205(b); K.S.A. 60-2106(c)

appeals—criminal law—criminal procedure—evidence—jury instructions
state v. gray
sedgwick district court—affirmed
NO. 117,747—february 28, 2020

FACTS: Jury convicted Gray of first-degree premeditated murder, rape, and aggravated burglary. During trial, he unsuccessfully challenged district court’s admission under K.S.A. 60-455 of evidence of a previous rape. On appeal, argued for first time that under the identical offense doctrine, the district court should have sentenced him for intentional second-degree murder. Gray next argued the district court abused its discretion in finding evidence of the prior rape was more probative than prejudicial because no juror would have been able to follow the limiting instruction. Gray further claimed the district erred in failing to instruct jury on intentional second-degree murder as a lesser included offense of first-degree murder.

ISSUES: (1) Newly raised claim; (2) K.S.A. 60-455 evidence; (3) jury instructionlesser included offense

HELD: Gray’s identical offense doctrine claim is not considered. K.S.A. 2019 Supp. 21-6820(e)(3) does not support review because Gray does not challenge the classification of his crime or conviction, and no exception to the preservation rule is utilized.

Jury members are presumed to follow instructions, including limiting instructions regarding the admission and use of prior crimes evidence. Gray failed to offer any facts or legal authority to suggest otherwise.

Absence of an instruction on second-degree intentional murder as a lesser included offense of premeditated first-degree murder was not clear error. The instruction would have been legally appropriate, but even if factual appropriateness is assumed, the error was harmless in light of overwhelming evidence of premeditation.

STATUTES: K.S.A. 2019 Supp. 21-6820(e)(3), 60-455(a), -455(b), -455(d); K.S.A. 2015 Supp. 21- 5402(a)(1), -5403(a)(1); K.S.A. 60-455

 

Kansas Court of Appeals

Civil

MECHANIC'S LIENS
IN RE LIEN AGAINST THE DISTRICT AT CITY CENTER, LLC
JOHNSON DISTRICT COURT—REVERSED AND REMANDED
NO. 
121,184—FEBRUARY 28, 2020

FACTS: The District at City Center, LLC, hired a construction company to build a mixed-use development. The construction company hired Kansas City Steel Werx, Inc. as a steel and labor subcontractor. Change orders from KC Steel to the general contractor added approximately $25,000 to the cost of the contract. To ensure complete payment, KC Steel filed a mechanic's lien against the development citing unpaid labor and materials of approximately $400,000. The itemizations filed with the lien included documentation but was incomplete. Instead of challenging the lien as a whole or specific items, the contractor filed a motion claiming the lien was "fraudulent" and asking the court to set it aside. Without waiting for a response, the district court granted the motion and removed the lien. KC Steel appealed.

ISSUE: (1) Ability of the district court to find that the lien was "fraudulent"

HELD: A party asserting a mechanic's lien must strictly comply with our mechanic's lien statutes before that lien becomes enforceable. K.S.A. 2019 Supp. 58-4301 allows a district court to quickly review a lien's status to determine whether it is fraudulent. Legislative history shows this statute was enacted to prevent abuses by militias and common-law groups. The quick review is intended to allow an efficient way to remove an obviously bogus lien that is being used as a tool of harassment. The district court improperly equated an invalid lien with a fraudulent one. The document filed by KC Steel is recognized by Kansas law, and the district court erred by ruling that the lien was fraudulent. The real question is whether KC Steel strictly complied with the mechanic's lien procedures enough to create a valid lien; that is the issue that must be decided on remand.

STATUTES: K.S.A. 2019 Supp. 58-4301, -4301(a), -4301(b), -4301(c), -4301(e), -4302; K.S.A. 60-1102, -1102(a), -1103(a), -1105, -1106, -1108

WORKERS COMPENSATION
AIKINS V. GATES CORPORATION
WORKERS COMPENSATION APPEALS BOARD—AFFIRMED
NO. 120,905—FEBRUARY 28, 2020

FACTS: Aikins was injured in a car accident while leaving work. In May 2018, an ALJ awarded Aikins compensation for her injuries. One week later, she served Gates with a demand for compensation based on that award. The next day, Gates filed for review with the Workers Compensation Board of Appeals. Before the Board could decide the appeal, Aikins filed a motion for penalties with the ALJ because Gates had not yet paid out her award. The ALJ held a hearing and ruled that Aikins was entitled to a penalty payment because Gates had not yet paid as required by K.S.A. 44-512a and had not obtained a stay of the judgment. Gates appealed the imposition of the penalty, arguing that compensation was not yet due so no penalty could accrue. The Board agreed, and Aikins appealed.

ISSUE: (1) Whether payment is due such that penalties could attach

HELD: K.S.A. 44-512a allows claimants to apply for a civil penalty if payments are overdue. In this case, the only issue to determine is whether Aikins's award was due. Statutes clarify that payment of an award is not due until at least 30 days after the Board hears the parties' arguments. There is no statute which requires the employer to seek and receive a stay of judgment; a stay is only required after payment obligations have accrued. Aikins was not due any payment until after the Board ruled on Gates's appeal, and the Board properly reversed the ALJ's award of penalties.

STATUTES: K.S.A. 2019 Supp. 44-551, -551(l)(1), -551(l)(2)(A), -551(l)(2)(B), -551(l)(2)(C), -551(p); K.S.A. 44-512a, -512a(a)

HABEAS CORPUS—MOOTNESS
BURCH V. HOWARD
PAWNEE DISTRICT COURT—AFFIRMED
NO. 120,704—FEBRUARY 28, 2020

FACTS: Burch was committed to the Sexual Predator Treatment Program in 2002. After more than a decade in the program, Burch filed a K.S.A. 60-1501 petition which raised several concerns. Relevant to this case was his claim that the SPTP does not provide adequate treatment for securing an eventual release from the Program. The SPTP operated on a leveled system where treatment was provided in phases, and participants gained independence by completing levels. At a hearing before the district court, the evidence showed that Burch has not participated in any meaningful treatment since July 2009. Based on this lack of participation, the district court ruled that Burch failed to meet his burden to prove shocking or intolerable conduct and denied the petition. Burch appeals.

ISSUES: (1) Mootness; (2) adequacy of treatment provided in the SPTP

HELD: Although the treatment system is different now from when Burch filed his petition, the changes are more style than substance and do not render this appeal moot. Because he declined treatment, Burch does not have standing to challenge the adequacy of the SPTP. The SPTP is consistent with the statutory criteria of the Sexually Violent Predator Act and does not shock the conscience.

STATUTES: K.S.A. 2019 Supp. 59-29a06, -29a07(a), -29a08(a), -29a08(d), -29a08(f); K.S.A. 60-1501

 

criminal

criminal law—criminal procedure—restitution—sentences—statutes
state v. henry
sedgwick district court—affirmed
no. 119,895—february 28, 2020

FACTS: Henry was charged and convicted on one count of felony theft for stealing money from store deposits on 12 different occasions while employed as armored truck driver. District court imposed 60 months’ probation and ordered payment of $78,315 in restitution. On appeal, Henry claimed insufficient evidence supported his conviction because the single larceny doctrine did not apply to thefts that occurred on 12 separate occasions, and each of the individual takings failed to meet the $25,000 threshold of the felony theft charged. He also argued the restitution plan was unworkable because it would take over 43 years to complete, making a multi-decade term of probation per se unreasonable.

ISSUES: (1) Single larceny doctrine; (2) restitution

HELD: Henry’s theft conviction is affirmed. The single larceny doctrine is a rule of evidence and may be invoked whenever the facts warrant it. Disagreement stated with legal conclusion in State v. Ameen, 27 Kan.App.2d 181, rev. denied 269 Kan. 934 (2000). The doctrine is not only limited to instances where multiple misdemeanor takings are charged as a single felony but also permits multiple instances of felony takings to be charged as a single higher severity level felony.  On evidence in this case, Henry should have been charged in the alternative with a lower severity level theft for each separate taking, and the jury should have been instructed in the alternative on the single larceny doctrine and the elements of each lesser theft for each taking separately, but Henry waived or abandoned any claims of error concerning the charging document or instructions. Sufficient evidence supported the key factual determination that Henry’s acts arose out of a single incriminating impulse or plan.

District court imposed a workable restitution plan. Henry admitted the monthly payments are workable, and K.S.A. 2019 Supp. 21-6608(c)(7) explicitly allows for a term of probation to be extended indefinitely to secure payment of restitution.

STATUTES: K.S.A. 2019 Supp. 21-6604(b)(1), -6608(c)(7); K.S.A. 2016 Supp. 21-5801(a)(1), -5801(b)(2), -5801(b)(3), -5801(b)(4)

Tags:  appeals  attorney discipline  Constitutional law  criminal law  criminal procedure  evidence  habeas corpus  jury instructions  mechanic's liens  mootness  prosecutors  restitution  sentences  statutes  workers comp 

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February 21, 2020 Digest

Posted By Administration, Monday, February 24, 2020

Kansas Court of Appeals

criminal 

criminal procedure—restitution—sentencing—statutes
state v. roberts
sedgwick district court—vacated and remanded
no. 120,377—february 21, 2020

FACTS: Roberts convicted of burglary and theft. Sentence included order to pay $50,407.86 in restitution, jointly and severally with co-defendant, but the order did not direct any manner of payment or establish a payment plan. Roberts appealed, claiming district court’s noncompliance with statutory requirement to establish a restitution payment plan rendered the sentence illegal.

ISSUE: (1) Restitution plan

HELD: K.S.A. 2018 Supp. 21-6604(b)(2) is interpreted, finding the statute refers to a "plan established by the court for payment of restitution." That language does not merely refer to a court's order of an amount of restitution but shows legislative intent that the court establish a payment plan when it orders restitution. Based on clear statutory language, Roberts’ sentence is illegal.  Restitution order is vacated and remanded to correct the sentence by establishing a plan for payment of restitution. State v. Garza, No. 118,840 (Kan. App.)(unpublished opinion), rev. denied 310 Kan. __ (2019), is distinguished as focusing on section (b)(1) of the statute rather than (b)(2). Legislature must address any concern that it is unreasonable to require a district court to order a total amount of restitution, establish a payment plan, tell the defendant of that payment plan, and permit a defendant to show the plan is unworkable.

STATUTE: K.S.A. 2018 Supp. 21-6604(b). -6604(b)(1), -6604(b)(2), -6604(e), -6604(i), -6608(c)(7), 22-3504(3), -3717(n), -3718

Tags:  Criminal  Criminal Procedure  Restitution  Sedgwick District Court  Sentencing  Statutes  Weekly-2020-02-25 

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February 14, 2020 Digests

Posted By Administration, Tuesday, February 18, 2020

Kansas Supreme Court

criminal

appeals—constitutional law—motions—sentences
state v. peterson
Geary District Court—affirmed
No. 119,314—february 14, 2020

FACTS: Peterson filed 2007 no contest plea to first-degree murder. Ten years later he filed motion to correct an illegal sentence, arguing his hard 25 life sentence was disproportionate in violation of federal and state constitutional protections against cruel and unusual punishment. District court issued a nunc pro tunc order, agreeing that lifetime postrelease supervision should not have been imposed, but rejected Peterson’s constitutional claims. Peterson appealed, challenging the constitutionality of his hard 25 sentence.

ISSUE: (1) Motion to Correct Illegal Sentence—Constitutional Challenge

HELD: Merits of Peterson’s constitutional arguments are not considered. A motion to correct an illegal sentence cannot raise claims that a sentence is unconstitutional.

STATUTES: None

criminal procedure—sentences—statutes
state v. fowler
sedgwick district court—affirmed
court of appeals—affirmed
No. 116,803—February 14, 2020

FACTS: Fowler pleaded guilty to felony possession of methamphetamine, felony domestic battery, and violation of a protective order. The domestic battery conviction qualified as a felony because it was his third such conviction within five years. In calculating criminal history score for the drug possession conviction, district court included the same two misdemeanor domestic battery convictions used to elevate the current domestic battery to a felony. Fowler appealed, arguing the district court impermissibly double counted the two prior misdemeanor domestic battery convictions. Court of Appeals affirmed. 55 Kan.App.2d 92 (2017). Fowler’s petition for review granted.

ISSUE: (1) Sentencing—Multiple Conviction Case

HELD: Prior cases dealing with double counting statute have not explicitly addressed question of which crime does K.S.A. 2015 Supp. 21-6810(d)(9)’s phrase “the present crime of conviction” refer? Design and structure of the Kansas Sentencing Guidelines Act is reviewed. Here, sentencing judge did not violate K.S.A. 2015 Supp. 21-6810(d)(9)’s restriction on double counting by using the same two prior misdemeanor domestic batteries both to calculate Fowler’s criminal history for his base sentence on the primary grid crime, and to elevate the current domestic battery to a felony.

CONCURRENCE (Rosen, J.): Agrees that including Fowler’s prior domestic battery convictions in the criminal history calculation for his primary grid conviction did not violate the double-counting provision of K.S.A. 2015 Supp. 21-6810(d)(9), but writes separately to emphasize that the confusion in this case necessitating two appellate courts addressing this sentencing issue is completely avoidable. Citing his concurring opinion in State v. Garcia, 295 Kan. 53 (2012), a predetermined, accurate criminal history should be a required part of plea negotiations.

STATUTES: K.S.A. 2018 Supp. 21-5414(c)(1)(C), -6801 et seq., -6802(a), -6802(c), -6803(c), -6803(d), -6803(k), -6803(l), -6805, -6805(c)(2), -6805(c)(3), -6806, -6806(c), -6806(d), -6807, -6808, -6810(d)(9), -6810(d)(10), -6819, -6819(b)(2), -6819(b)(3), -6819(b)(4), -6819(b)(5); K.S.A. 2015 Supp. 8-1567(b)(1)(D), -1567(b)(1)(E), 21-5414(b)(3), -5701 et seq., -5706(a), -5924(a)(4), -5924(b)(1), -6804, -6804(c), -6804(d), -6804(e)(1), -6804(e)(2), -6804(e)(3), -6804(f), -6804(g), -6804(h), -6804(i), -6804(j), -6804(k), -6810(a), -6810(d)(9), -6811(a), -6811(i); and K.S.A. 21-4710(d)(11), 22-3504(1)

appellate procedure—criminal law—juries—jury instructions
state v. boeschling
reno district court—affirmed
court of appeals—affirmed
No. 116,757–February 14, 2020

FACTS: Boeschling convicted in jury trial on charges of nonresidential burglary, theft of a pickup, and unlawful possession of a firearm. On appeal he argued the district court’s response to jury’s mid-deliberation question about whether nullification can be applied to the firearms charge was reversible error. He also claimed error in the jury instruction defining the elements of burglary, and in the instruction that cautioned the jury about accomplice testimony. Court of Appeals affirmed in unpublished opinion. Boeschling’s petition for review granted.

ISSUES: (1) Jury Nullification; (2) Jury Instruction—Burglary; (3) Jury Instruction—Accomplice Testimony

HELD: State’s preservation challenge is not properly before the court because State failed to argue lack of preservation to Court of Appeals, and failed to cross-petition the panel’s opinion. District judge’s response - “You took the oath as jurors at the start of the case to follow the law in the case that you were instructed by the case.” - to jury’s nullification question was not error. The response did not amount to affirmative misinformation, imply that nullification did not apply, or amount to a warning that nullification would violate the jurors’ oaths.

District court judge erred by adding a culpable mental state of “knowingly” to the burglary instruction that otherwise included the correct mens rea of “intent to commit a theft.” No clear reversible error resulted in this case because the erroneous wording added to rather than subtracted from State’s burden of proof.

State v. Anthony, 242 Kan. 493 (1988), is still good law. A district court judge may instruct a jury to view an accomplice’s testimony with caution even when that testimony is favorable to a criminal defendant. The accomplice instruction in this case was both legally and factually appropriate.

STATUTES: K.S.A. 2018 Supp. 21-5202(b), 22-3414(3), 60-247(d); and K.S.A. 2015 Supp. 21-5807(a)(2)

criminal procedure—motions—sentences
State v. Newman
Shawnee District Court—affirmed in part and vacated in part
No. 118,608—February 14, 2020

FACTS: Newman entered guilty plea to first-degree felony murder and attempted second-degree intentional murder. Prior to sentencing he moved to withdraw his please, citing emotional distress due in part to his mother’s hospitalization, and newly discovered evidence District court denied the motion. Eight days later, Newman filed motion to vacate his plea due to ineffective assistance of counsel. District court denied that motion, finding defense counsel was more credible than Newman. Sentence imposed included lifetime postrelease supervision for the first-degree murder conviction. Newman appealed the denials of his motions to withdraw his pleas, and the imposition of lifetime postrelease supervision.

ISSUES: (1) Withdrawal of Guilty Pleas; (2) Sentencing

HELD: District court’s denial of both motions is affirmed. No abuse of discretion shown in district court’s conclusion that Newman’s plea was fairly and understandingly made. And appellate court will not reassess district court’s credibility findings.

Parties correctly agreed that district court erred in ordering lifetime postrelease supervision on the first-degree murder conviction. That portion of Newman’s sentence is vacated.

STATUTES: K.S.A. 2018 Supp. 22-3210(d)(1); K.S.A. 2010 Supp. 22-3717(b)(2); and K.S.A. 21-3401, -4706, -4706(c)

Tags:  appeals  constitutional challenge  Geary District Court  motions  Reno District Court  Sedgwick District Court  Shawnee District Court 

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February 7, 2020 Digests

Posted By Administration, Monday, February 10, 2020

Kansas Court of Appeals

Civil

SEXUALLY VIOLENT PREDATORS
IN RE CARE AND TREATMENT OF JONES
WYANDOTTE DISTRICT COURT—REVERSED AND REMANDED
NO. 120,309—FEBRUARY 7, 2020

FACTS: Jones was convicted of rape in 2005. As the end of his prison sentence neared, the State filed a motion seeking to have Jones civilly committed under the Kansas Sexually Violent Predator Act. As part of its petition, the State designated Dr. Sutherland as an expert witness. In that capacity, Dr. Sutherland recommended civil commitment because Jones presented an unmanageable risk of reoffending. Based on this evidence, the district court found probable cause to believe that Jones was a sexually violent predator. Larned State Hospital hired Dr. Flesher as an expert witness for Jones. It was Dr. Flesher's opinion that Jones did not meet the criteria for designation as a sexually violent predator. Given the split between the experts, the district court elected to hear testimony from Dr. Flesher. After hearing that testimony, the district court ordered Jones released and dismissed the case. The State appeals.

ISSUE: (1) Whether the district court erred by granting summary judgment to Jones

HELD: There was no procedural or statutory bar that would prevent the district court from considering a motion for summary judgment after the probable cause determination was made. In this case, summary judgment was improper because there was evidence to support the State's claim that Jones should be civilly committed. Where there were opposing expert witness positions, summary judgment was inappropriate.

STATUTE: K.S.A. 2018 Supp. 59-29a04(a), -29a04(g), 60-212, -212(d), -256

 

TORT CLAIMS ACT
HENDERSON V. MONTGOMERY COUNTY BOARD OF COMMISSIONERS
MONTGOMERY DISTRICT COURT - AFFIRMED
NO. 120,369 – FEBRUARY 7, 2020

FACTS: Henderson picked up Garcia, who was hitchhiking. Unbeknownst to Henderson, Garcia was fleeing authorities after shooting a police officer in Oklahoma. Once law enforcement located Garcia, a chase ensued. Henderson attempted to let Garcia out of his truck, but Garcia exited shooting. Deputy Grimes returned fire, and Henderson was hit in the neck. He sued both Deputy Grimes and the Montgomery County Board of Commissioners for negligence. Both defendants moved for summary judgment, claiming that the public duty doctrine prevented any liability for either defendant. They also claimed that they were entitled to immunity under the discretionary function exemption to the Kansas Tort Claims Act. The district court granted summary judgment on both claims, and Henderson appeals.

ISSUES: (1) Application of the public duty doctrine; (2) application of the discretionary function exception to the KTCA

HELD: Instead of determining whether a special duty applied, the court assumes without deciding that a duty existed. The discretionary function exception is still good law. Guidelines for law enforcement on how to handle a felony high-risk stop are not mandatory and are instead best practice suggestions. All of the decisions made by Deputy Grimes were discretionary. For that reason, the discretionary function exception applies to excuse him and the Board from liability.

STATUTE: K.S.A. 75-6103(a), -6104, -6104(e), -6104(n)

 

criminal 

constitutional law—criminal law—evidence—fourth amendment—statutes
state v. arceo-rojas
geary district court—affirmed
no. 119,266—february 7, 2020

FACTS: Officer stopped Arceo-Rojas for driving too long in left lane and unsafe lane change, and after completing the traffic stop detained Arceo-Rojas until a K-9 unit arrived. K-9 alert led to discovery of 54 pounds of individually packaged bags of marijuana. Arceo-Rojas arrested and charged with drug offenses. She filed motion to suppress, arguing the officer had no reasonable suspicion to stop her and later detain her for purpose of a drug sniff.  District court denied the motion, finding the officer had reasonable and articulable suspicion that Arceo-Rojas was staying in left lane in violation of K.S.A. 8-1522, and that she failed to maintain a safe distance between her car and the car behind her when she changed lanes. Arceo-Rojas convicted in bench trial as charged. She appealed, alleging district court erred in denying motion to suppress.

ISSUES: (1) Traffic stop, (2) extension of traffic stop

HELD: K.S.A. 2018 Supp. 8-1522(c) is interpreted. “Overtaking and passing another vehicle” phrase in the statute shows a legislative intent to keep multilane roads and highways open for passing. Under facts in this case, officer had reasonable suspicion that Arceo-Rojas was driving in left lane without meeting any of the four statutory exceptions. Accordingly, the traffic stop was justified and no need to address whether officer also had reasonable suspicion that Arceo-Rojas committed an unsafe lane change in violation of K.S.A. 2018 Supp. 8-1522(a), or whether officer made a “reasonable mistake” of law when he stopped Arceo-Rojas based on holding in Heien v. North Carolina, 574 U.S. 54 (2014).

       Arceo-Rojas’ comparison to State v. DeMarco, 263 Kan. 727 (1998), is not persuasive. Under totality of the circumstances  (1) Arceo-Rojas’ implausible and inconsistent travel plans, (2) use of a strong but dissipating masking odor consistent with being sprayed as officer stopped the car, (3) vehicle rented in the name of a third party, and (4) a large black duffel bag in back of the car—gave officer grounds for reasonable suspicion for both the initial traffic stop and extending the stop. District court’s denial of the motion to suppress is affirmed.

DISSENT (Arnold-Burger, C.J.): Would reverse district court’s ruling and suppress all evidence obtained after the traffic stop, at a minimum, and certainly after Arceo-Rojas was given a warning ticket and told she was free to leave. Initial stop was unlawful. K.S.A. 2018 Supp. 8-1522(c) does not state how long a person may drive in the left lane before committing a violation, and a person of reasonable caution would not interpret Arceo-Rojas’ driving as a violation of the statute. Also, officer had no reasonable and articulable suspicion to detain Arceo-Rojas while waiting for drug dog to arrive and circle the car. The four factors cited by district court and the majority are criticized, finding none support a finding of reasonable suspicion either together or separately. Case highlights the problem with the introduction of and the overreliance on profiles of drug courier activity. Traits of a drug-courier profile as asserted by federal agents are listed, and absence in this case is noted of factors indicated by Kansas law enforcement officers as linked to highway drug trafficking. Agrees with Justice Rosen’s concurrence in State v. Schooler, 308 Kan. 333 (2018), on danger of “using the promise of freedom” to circumvent a driver’s constitutional rights.

STATUTES: K.S.A. 2018 Supp. 8-1522, -1522(a), -1522(c), -1522(c)(1); K.S.A. 2016 Supp. 8-1522(c); K.S.A. 60-404

constitutional law—criminal procedure—motions—statutes
state v. terning
chautauqua district court—affirmed
no. 119,904—february 7, 2020

FACTS: Terning entered 2008 no contest plea to aggravated kidnapping and rape. Consecutive 165-month prison terms imposed, plus 36 months postrelease supervision. Kansas appellate courts summarily dismissed Terning’s direct appeal, but mandate not issued until May 2017. That same month Terning filed motion to correct an illegal sentence, arguing he should have received lifetime postrelease supervision. State filed similar motion. Five months later Terning filed motion to withdraw his plea, arguing his plea was not knowing and voluntary because he was never informed of lifetime post-release supervision. District court denied motion to withdraw plea. Terning appealed.

ISSUE: (1) Withdrawal of guilty plea after sentencing

HELD: Under circumstances in this case, district court did not abuse its discretion in finding Terning failed to demonstrate he would not have entered his plea if he had been informed that he would be subject to lifetime postrelease supervision. Even though district court did not strictly comply with K.S.A. 22-3210 at the plea hearing, record supports district court’s finding that Terning’s plea was knowingly and understandingly made. Different conclusion reached in State v. Metzger,  (Kan.App. 2017)(unpublished opinion), rev. denied 307 Kan. 992 (2018), is distinguished. Even though Terning was unaware of lifetime postrelease supervision period when he pleaded, he was informed that he potentially faced a period of incarceration longer than his natural life, regardless of any postrelease term. And by pleading no contest to both charges he avoided an upward departure that could have resulted in an even longer prison sentence.

DISSENT (Standridge, J.): Would hold the district court erred as a matter of law in its legal conclusion that Terning failed to show manifest injustice to withdraw his plea. District court failed to advise Terning of the maximum penalty upon his no contest plea, which is a clear statutory violation of K.S.A. 2018 Supp. 22-3210(a)(2) and a due process constitutional violation. Strongly disagrees with majority’s adoption of new analytical framework which provides that due process is not violated by failure to advise a criminal defendant of applicability of a lifetime postrelease supervisory period if the combined prison sentences assigned to the defendant are not meaningfully different from life in prison. Metzger sets forth a better analytical framework. Application of factors in State v. Edgar, 281 Kan. 30 (2006), and State v. Moses, 280 Kan. 939 (2006), to facts in this case tips balance in favor of finding manifest injustice under K.S.A. 2018 Supp. 22-3210(d)(2).

STATUTES: K.S.A. 2018 Supp. 22-3210(a)(2), -3210(d), -3210(d)(1), -3210(d)(2), -3717(d)(1)(G); K.S.A. 2007 Supp. 75-5217(c)-(d); K.S.A. 2006 Supp. 22-3717(d)(1)(G), -3717(d)(2)(A); K.S.A. 21-4720(b)(2), -4720(b)(5), 22-3210, -3504

 

Tags:  Constitutional Law  Criminal Law  Criminal Procedure  Evidence  Fourth Amendment  Montgomery District Court  Montgomery District Court.  Motions Chautauqua District Court  sexually violent predators  Statutes  Tort Claims Act  Wyandotte District Court 

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January 31, 2020 Digests

Posted By Administration, Tuesday, February 4, 2020

Kansas Supreme Court

criminal

constitutional law—appeals—appellate procedure—
criminal procedure—jurisdiction—statutes
state v. smith
sedgwick district court—court of appeals dismissal of the appeal is affirmed
no. 115,321—january 31, 2020

FACTS: In two separate cases, Smith pleaded guilty to refusing to submit to a test to determine presence of alcohol or drugs. Court of appeals consolidated Smith’s direct appeals. Relying on State v. Ryce, 303 Kan 899 (2016), decided while the consolidated appeal was pending, Smith argued the district court lacked jurisdiction to render the criminal judgments. In response, State argued the court of appeals lacked jurisdiction to consider a direct appeal from a guilty plea. Court of appeals dismissed Smith’s appeal for lack of subject matter jurisdiction without considering the merits of his Ryce claim.

ISSUE: (1) Appellate jurisdiction

HELD: Court of appeals did not err when it dismissed Smith’s appeal for lack of jurisdiction. K.S.A. 22-3602 is interpreted to resolve ambiguity, finding K.S.A. 22-3602(a) explicitly provides that a defendant cannot appeal a conviction after pleading guilty. K.S.A. 22-3504 allows appeals of sentences, not convictions, and federal caselaw allowing for direct appeals after guilty pleas in certain situations is inapplicable here. Smith’s convictions may be challenged in other ways, so notions of justice do not demand appellate jurisdiction. If he had still been serving his sentence, Smith could have filed a motion under K.S.A. 60-1507 to seek relief. He can also file a motion to withdraw his plea, and if denied, court of appeals has jurisdiction to consider an appeal from that denial.

STATUTES: K.S.A. 2018 Supp. 22-3601(a), -3602(a), 60-1507(a); K.S.A. 2014 Supp. 8-1025; K.S.A. 2013 Supp. 8-1025; K.S.A. 20-3001, 22-3210(d)(2), -3504, -3601, -3602, -3602(a), 60-1507, -1507; K.S.A. 62-1701 (Corrick)

 

Kansas Court of Appeals

criminal

appellate procedure—constitutional law—evidence—fourth amendment
state v. mckenna 
reno district court—affirmed
no. 119,431—january 31, 2020

FACTS: Officer checked on a sleeping or unconscious woman (McKenna) in driver’s seat in a parked car, and then arrested her on an outstanding warrant which was discovered once officer obtained McKenna’s name and ran a warrants check. McKenna was charged with possession of methamphetamine and possession of a stimulant, based on evidence found in her clothing during booking. McKenna filed motion to suppress, arguing the officer unconstitutionally detained her without reasonable suspicion she was committing a crime. District court denied the motion, finding officer’s actions were justified as a welfare check. McKenna appealed the denial of her motion to suppress. Parties submitted supplemental briefing on issue of whether the public safety stop exceeded its lawful scope when officer asked for McKenna’s name and ran a warrants check.

ISSUE: (1) Public safety stop

HELD: Under circumstances of this case, officer did not exceed scope of a public safety stop by asking for McKenna’s name, getting a verbal response, and checking that name locally for warrants. Three-part test in State v. Gonzales, 36 Kan.App.2d 446 (2006), is satisfied in this case. Record shows officer’s actions were motivated by a desire to render aid or assistance rather than to investigate criminal activity.  

STATUTE: K.S.A. 22-2402(1)

Tags:  appeals  appellate procedure  constitutional law  criminal procedure  evidence  Fourth Amendment  jurisdiction  Reno District Court  Sedgwick District Court  statutes 

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January 21 and January 28, 2020 Digests

Posted By Administration, Tuesday, January 28, 2020

Kansas Supreme Court

 

Civil

INSURANCE
WILLIAMS V. GEICO GENERAL INSURANCE COMPANY
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED, DISTRICT COURT IS AFFIRMED
NO. 117,149—JANUARY 21, 2020

FACTS: Williams was insured by GEICO at the time he was injured in an automobile accident. His injuries required surgery and physical rehabilitation. While he recovered, Williams's treating physicians specified that Williams would be unable to perform household tasks such as lawn care, shoveling, cooking or cleaning. Williams was married, but he and his wife, Mary, had separate schedules and finances, and Williams generally took care of his own meals, laundry, and cleaning. Williams and Mary agreed that, for $25 per day, she would cook, do laundry, administer medication, drive, and assist Williams with hygiene needs. Williams wanted his insurance to pay for this expense, and he filed a claim for personal injury protection (PIP) substitution benefits available to him under his policy. GEICO refused to pay, arguing that Mary had a legal duty to care for her spouse and provide replacement services. Williams filed suit and the district court agreed with him, ruling that the law does not exclude an injured person's spouse from being compensated for substitution services. GEICO appealed and the Court of Appeals reversed the district court, agreeing with GEICO that married persons cannot be compensated for substitution services. The Supreme Court granted Williams's petition for review.

ISSUE: (1) Ability of a spouse to be compensated for substitution services

HELD: K.S.A. 40-3103(w) does not specifically preclude a spouse from providing substitution services, so the only relevant inquiry is whether Williams incurred an obligation to pay Mary for the substitution services that she provided. The facts specific to this case show that Williams incurred an obligation to pay Mary by entering into a contract with her to perform specific services for him that she would not have otherwise performed. The district court correctly ruled that GEICO must pay for Mary's expenses.

STATUTE: K.S.A. 40-3103(w)

 

criminal

appeals—criminal law—evidence—statutes
state v. downing
reno district court—reversed; court of appeals—affirmed
No. 116,629—january 24, 2020

FACTS: Downing appealed his burglary conviction that was based for taking items from a rural farmhouse. Court of appeals reversed in unpublished opinion, based on building owner’s testimony that no one lived there when the crime occurred, and owner had no plans to live there or rent it out. Downing’s petition for review granted.

ISSUE: (1) Burglary—proof of a dwelling

HELD: Kansas Supreme Court has not previously considered whether the farmhouse qualified as a dwelling as defined by K.S.A. 2018 Supp. 21-5111(k) when facts indicate it was not being used for such purposes when the crime occurred, and owner had no current plans to use or rent it out even if he preferred to do so. Circumstances identified in court of appeals cases on this issue were examined, finding definition and burglary statutes support a present-intent requirement to distinguish between a dwelling and a non-dwelling structure. Absent proof the place burgled was used as a human habitation, home or residence when the crime occurred, a conviction for burglary under K.S.A. 2018 Supp. 21-5807(a)(1) requires a showing of proof that someone had a present, subjective intent at the time of the crime to use the place burgled for such a purpose. Here, State failed to prove the farmhouse was a dwelling. District court is reversed and court of appeals is affirmed. State’s backup position that panel should have remanded for resentencing on lesser included crime of burglary of a structure is not considered because this alternative argument was not presented below.

STATUTES: K.S.A. 2018 Supp. 21-5111(k), -5807(a)(1), -5807(a)(2); K.S.A. 20-3018(b), 60-2101(b)

 

criminal procedure—sentences—statutes
state v willliams
sedgwick district court—affirmed in part, reversed in part, remanded
court of appeals—affirmed in part, reversed in part
no. 115,119—january 24, 2020

FACTS: Williams convicted of unintentional second-degree murder in 2011. Court of appeals reversed and remanded for a new trail. On remand Williams again convicted of unintentional  second-degree murder. He appealed, arguing in part his statutory speedy trial rights were violated at his first trial which invalidated all proceedings thereafter. In unpublished opinion Court of appeals found the doctrine of res judicata barred the speedy trial claim. After Williams’ petition for review was granted he raised supplemental claim that under State v. Wetrich, 307 Kan. 552 (2018), district court erroneously compared Williams’ 1980 Mississippi felony conviction for unnatural intercourse to Kansas’ crime of aggravated criminal sodomy, erroneously scoring the out-of-state crime as person felony.

ISSUES: (1) Speedy trial; (2) sentencing—scoring out-of-state conviction

HELD: Court of appeals is affirmed as right for the wrong reason. When appealing a conviction from a second trial after the first conviction was reversed on appeal, a defendant cannot raise for first time an alleged statutory speedy trial violation that occurred during the first trial. Even if Williams’ speedy trial claim in his first trial is assumed correct, plain statutory language makes clear the statutory speedy trial clock in a case resets and starts over as soon as an appellate court issues a mandate to reverse the first conviction.

Williams’ is entitled to the benefit of a change in the law while his case is pending on direct appeal. Wetrich changed the law governing Williams’ sentence, but even though Wetrich did not render that sentence illegal, it did render Williams’ sentence erroneous. Williams’ sentence is vacated and case is remanded for resentencing.

STATUTES: K.S.A. 2019 Supp. 21-6811(e)(3)(B); K.S.A. 2018 Supp. 22-3504, -3504(1); K.S.A. 2015 Supp. 21-6811(e)(3); K.S.A. 2010 Supp. 21-3506; K.S.A. 22-3402(1), -3402(6)

 

Kansas Court of Appeals

Civil

IMMUNITY—KANSAS TORT CLAIMS ACT—NEGLIGENCE
ESTATE OF RANDOLPH V. CITY OF WICHITA
SEDGWICK DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED
NO. 118,842—JANUARY 21, 2020

FACTS: Icarus Randolph was 26 years old and had a history of significant mental illness. Randolph lived with his mother. As family members gathered at the home for a holiday cookout, Randolph was out of sorts to the extent that family members became concerned for his welfare. Concluding that he needed to be emergently admitted to a mental health facility, Randolph's family called the police. Officer Snyder was the lead officer who responded, and he was dismissive of the family's concerns. Randolph's agitation increased and he came into the yard, carrying a knife at his side. Officer Snyder Tasered Randolph, which had no effect on his movements. As Randolph continued to walk. Officer Snyder drew his weapon and shot Randolph four times. He did not survive. Randolph's estate and the relatives who witnessed the scene filed suit against Officer Snyder, the other officer, and the City of Wichita. After extensive litigation, the district court granted all defendants' motions for summary judgment. The Randolph estate appealed.

ISSUES: (1) Viability of pre-shooting negligence claims; (2) estate's claim for liability for conduct after Randolph came outside; (3) viability of negligent use of force claim; (4) family members' claims

HELD: Officer Snyder's refusal to call an ambulance or otherwise assist Randolph and his family was a discretionary function, which means his conduct is immune from liability under the Kansas Tort Claims Act. The officer's decision-making was reasonable, even if he was brusque or rude. Evidence shows that Randolph was unaware of what was happening in his front yard, even after Officer Snyder drew his gun. Randolph's inability to appreciate fear means Officer Snyder could not be liable for tortious assault. But there are disputed issues of material fact regarding whether Officer Snyder committed a tortious battery by both Tasing and shooting Randolph, calling in to question Officer Snyder's claim that he was entitled to self-defense privilege. There is no other immunity in the KTCA that warrants summary judgment at this stage of the estate's tortious battery claims. Although it is unclear, it appears that Kansas law does allow for the tort of negligent use of force. But that tort would not be appropriate here, where Officer Snyder's actions were very much intentional. There was no negligence to support a tort of negligent use of force. The district court erred by granting summary judgment on Randolph's mother's claim of tortious assault because there were disputed material facts. The district court also erred by granting summary judgment on family members' claims of tortious assault based on Officer Snyder's use of a handgun. Randolph's family must be given the chance to present evidence and allow the district court to determine whether Officer Snyder is entitled to a KTCA immunity or the privilege of self-defense.

STATUTES: K.S.A. 2018 Supp. 21-5221(a), -5222, -5222(b), -5227, -5230, -5231(a), 60-1901(a); K.S.A. 60-514(b), 75-6103(a), -6104, -6104(d), -6104(e), -6104(i), -6104(n)

 

SALES TAX—UTILITIES
IN RE TAX APPEAL OF SOUTHWESTERN BELL TELEPHONE CO., L.L.C.
BOARD OF TAX APPEALS—AFFIRMED
NO. 120,167—JANUARY 24, 2020

FACTS: Southwestern Bell (Bell) operates transmission and switching equipment to create telecommunication signals. Because the equipment runs continuously, it generates a great deal of heat. If the equipment overheats, it quits working. In order to avoid this, Bell has a dedicated HVAC system in areas where the equipment is located as part of the effort to keep the equipment cool and operational. Electricity that is "consumed in" providing telecommunication services is exempt from sales tax under Kansas statute. Bell sought sales tax refunds for all electricity used. The Kansas Department of Revenue approved a sales tax refund for electricity used to directly power equipment but denied a refund for electricity which powered the HVAC units, reasoning that these units merely maintained the switching and transmission equipment. The Kansas Board of Tax Appeals disagreed, holding that the electricity which powered the HVAC units was essential to the production of telecommunication services. The Department of Revenue appeals.

ISSUE: (1) Tax liability on HVAC equipment

HELD: The HVAC units and the transmission and switching equipment form a system that makes Bell's telecommunication services possible. Under the plain language of the tax statutes, the HVAC system is "essential or necessary" to the production of telecommunication services. This essential nature makes the electricity used to power the HVAC units exempt from sales tax. The Department of Revenue's arguments to the contrary go to public policy rationales, and those must be raised with the Kansas Legislature.

STATUTE: K.S.A. 2018 Supp. 79-3602(dd)(2), -3602(dd)(B), -3602(pp), -3606(n)

Tags:  Appeals  Bd of Tax Appeals  Criminal Law  Criminal Procedure  Evidence  Immunity  Insurance  Kansas Tort Claims Act  Negligence  Reno District Court  Sales Tax  Sedgwick District Court  Sentences  Statutes  Utilities 

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January 10, 2020 Digests

Posted By Administration, Monday, January 13, 2020
Updated: Monday, January 13, 2020

Kansas Supreme Court

criminal 

appeals—constitutional law—criminal law—evidence—statutes
state v. jenkins
shawnee district court—affirmed
no. 118,120—january 10, 2020

FACTS: Jenkins led police on two car chases that resulted in a fatal crash. Jury convicted him of crimes including first-degree felony murder and fleeing and eluding police. Over Jenkins’ objection, district judge allowed State to introduce recordings of five calls Jenkins made while in jail using his personal identification number (PIN), finding the State sufficiently established Jenkins’ identity as one of the speakers. On appeal, Jenkins claimed the district court erred by admitting the recordings of the jail calls, arguing reliance on his PIN was insufficient to establish he was the male speaker. He also challenged the constitutionality of K.S.A. 8-1568(b)(1)(E), the option within a means of the felony fleeing and eluding statute dependent on five or more moving violations.

ISSUES: (1) Admission of jail calls; (2) constitutionality of K.S.A. 8-1568(b)(1)(E)

HELD:  Court examined cases from other jurisdictions and concluded the seven-factor test for authenticating an audio recording outlined in State v. Williams, 235 Kan. 485 (1984), is no longer controlling in Kansas. Audio recordings qualify as writings under the Kansas Rules of Evidence. On record in this case, and under current Rules and cases interpreting them, district judge did not abuse his discretion by admitting the recorded calls as evidence. State proffered evidence upon which a reasonable juror could conclude that Jenkins made the recorded calls: strong circumstantial evidence that Jenkins was the caller by use of his unique PIN, supported by the content and timing of the calls.

Claim that the term “moving violations” in Kansas felony fleeing and eluding statute is unconstitutionally vague, which Jenkins raised first time on appeal, is considered, finding the statute is not unconstitutionally vague. Jenkins’ reliance on State v. Richardson, 290 Kan. 176 (2010), is criticized. Conduct underlying each of the moving violations used to convict Jenkins of fleeing and eluding and felony murder is clearly prohibited by Kansas law, and plain language of the defining statutory and regulatory provisions is clear. Jenkins’ argument for application of the rule of lenity is rejected.

STATUTES: K.S.A. 2015 Supp. 8-234b(d), -249(b), -1568(b)(1)(B), -1568(b)(1)(C), -1568(b)(1)(D), –1568(b)(1)(E), -1568(b)(2), 66-1,108(f); K.S.A. 8-262, -1508(c), -1519,  -1522(a), -1528(b), -1545, -1548,  60-401 et seq., 401(m), -404, -464, 66-1,108a

appeals—constitutional law—criminal procedure—jury instructions—statutes
state v. patterson
johnson district court—affirmed
no.118,180—january 10, 2020

FACTS: Patterson was convicted of crimes arising from an armed robbery in which a victim was killed by an accomplice. On appeal he claimed: (1) his felony-murder conviction violated due process because a jury was not required to determine he possessed a particular criminal mental state; (2) district court’s instructions and prosecutor’s voir dire comments improperly prevented jury from exercising its nullification power; (3) his hard 25 life sentence for felony murder is disproportionate to his crime in violation of Kansas and United States constitutions; and (4) use of prior convictions to elevate his sentence violated Sixth Amendment rights under Apprendi.

ISSUES: (1) Felony-murder conviction; (2) instructing jury to apply the law; (3) prosecutor’s voir dire; (4) hard 25 life sentence; (5) Apprendi challenge

HELD: Constitutional challenge to felony-murder statute, raised by Patterson for first time on appeal, is considered. Felony-murder statute, K.S.A. 2018 Supp. 21-5402(a)(2), does not operate as an unconstitutional conclusive presumption that invades the jury’s province. Intent to kill is not an element of felony murder. The statute expressly requires proof the defendant engaged in dangerous, felonious conduct and that a death occurred as a result of that conduct. By codifying participation in the felony as a statutory alternative for the intent and premeditation otherwise required for a first-degree murder conviction, the statute imposes a rule of law. It does not remove from jury’s consideration an intent element required by a criminal statute.

No merit to Patterson’s claim that district court’s instruction undermined the jury’s nullification power. District court’s instruction that jury had a “duty” to follow the law as set out in the instructions and that it “should find the defendant guilty” if State proved all elements of the charged offenses, was legally correct.

No merit to Patterson’s claim of error in prosecutor’s voir dire comment. It is not a misstatement of law to tell the jury to follow the law as given in the instructions.

Patterson did not show why his case is an exception to the general rule that case-specific challenges to § 9 of Kansas Constitution may not be raised for first time appeal. And his claim that a hard 25 life sentence is unconstitutional for a class of offenders (19-year olds) given the nature of his offense (those convicted of felony murder for a killing committed by another), fails to frame a valid categorical challenge to Eighth Amendment. The hard 25 life sentence is not categorically disproportionate as applied to young adults convicted of felony murder. Patterson’s reliance on Graham v. Florida, 560 U.S. 48 (2010), is misplaced.

Patterson’s Apprendi claim has been repeatedly rejected and is summarily dismissed.

STATUTES: K.S.A. 2018 Supp. 21-5202, -5202(a), -5202(d), -5402, -5402(a), -5402(a)(1), -5402(a)(2), -5402(b), 22- 3601(b)(3), -3601(b)(4) K.S.A. 21-3201 (Ensley)

criminal procedure—evidence—judges—statutes—witnesses
state v. lyman
geary district court—affirmed
no. 114,312 —january 10, 2020

FACTS: Lyman was convicted of felony murder based on abuse of a child, abuse of a child by shaking, and aggravated battery. After Lyman filed his appeal, defense counsel was served with disclosure of potentially exculpatory evidence that prosecutor recalled seeing a family resembling Lyman and victim with his family in a store, and that the woman had acted aggressively toward one of the children. Lyman filed motion for new trial on this newly discovered evidence. He also requested a change of judge for post trial matters, alleging the judge had been sleeping during trial. District court held hearing and concluded the prosecutor’s recollection was not corroborated and too speculative to warrant a new trial. On appeal Lyman claimed district court erred by: (1) denying the motion for new trial; (2) excluding Lyman’s proposed expert witness (Young) for failing to satisfy test under Daubert, (3) allowing State to admit photos as evidence of Lyman’s prior bad acts; (4) sleeping during the trial; and (5) prohibiting Lyman from introducing medical records that were subject to a written stipulation. He also claimed cumulative error denied him a fair trial.

ISSUES: (1) Motion for new trial; (2) expert witness; (3) evidence of prior bad acts; (4) judicial misconduct; (5) stipulated medical records; (6) cumulative error

HELD: District court did not abuse its discretion by finding the newly discovered evidence was not of such materiality that it would likely produce a different result upon retrial. Lyman’s further argument for a Brady violation fails because the evidence was not credibly exculpatory or impeaching.

Extended discussion of “Young’s postulate,” an inferential test Young had developed and used to base all his testimony and opinions in this case. District court did not abuse its discretion by excluding Young’s testimony for failure to satisfy test in Daubert, finding Young’s inferential test was contrary to fundamental tenets of Kansas evidence law, Young’s opinions were developed for purposes of testifying for defendants charged with child abuse, and that another Kansas trial court had found Young was not credible and his medical testimony was not worthy of any belief. Court rejects Lyman’s invitation to separate Young’s opinions reached from using the inferential test from those that were not.

Under facts in case, evidence documenting prior assault of a child sufficient to visibly distress him and leave bruises constitutes other crime evidence under K.S.A. 2018 Supp. 60-455. For evidence so similar to medical observations and conclusions at issue it is reasonable to conclude the same individual committed both the prior acts and those claimed in this case. It is relevant to show the defendant's modus operandi, a disputed material fact, and is probative because it contradicts the defendant's claim that previous health issues and not the defendant caused the child's death. District court did not abuse its discretion in finding the probative value of this evidence outweighed its prejudicial effect.

Lyman’s motion for change of judge did not satisfy affidavit requirement in K.S.A. 20-4111d, and motion also fails on the merits.

Parties stipulated to the admissibility of medical records that form the basis of opinion of people for purposes of their direct and cross-examination. District court did not abuse its discretion by refusing to admit the medical records because the expert witness would not be testifying.

No errors support Lyman’s cumulative error claim.

STATUTES: K.S.A. 2018 Supp. 22-3501(1), 60-455, -455(a), -455(b), -456(b); K.S.A. 20-311d, -311d(b), 22-3501, 60-401(b), -455, -456(b)

Kansas Court of Appeals

CIVIL

EMPLOYMENT—LEGISLATORS—VICARIOUS LIABILITY
LONG V. HOUSER
CHEROKEE DISTRICT COURT—AFFIRMED
NO. 120,866—JANUARY 10, 2020

FACTS: In 2017, Houser was a state representative for the State of Kansas. His job duties required that he be in Topeka during the legislative session. The state provided Houser with a per diem for lodging and meals, plus travel expenses. After the Legislature recessed for a break, Houser spent the night in Topeka and then got in his personal vehicle to return home. During the trip, Houser crossed the center line and hit Long's car, injuring him. Long sued both Houser and the State. The State sought summary judgment, arguing that it was not liable for Long's injuries because Houser was not acting within the scope of his employment while he was traveling home from Topeka. The district court agreed, and Long appealed.

ISSUE: (1) Whether Houser was acting within the scope of his employment at the time of the accident

HELD: Vicarious liability is the idea that the losses caused by an employee's tortious conduct are passed on to the employer as a cost of doing business. Vicarious liability only exists if the employee was acting within the scope of their employment at the time the tortious activity occurred. Although it has not been used in a tort context, the "going and coming rule" applies to third-party tort liability claims as a gauge to determine whether vicarious liability exists. The facts of the case make it clear that Houser was not acting within the scope of his employment at the time of the accident. This is true even though the State reimbursed Houser for travel costs.

STATUTE: K.S.A. 2018 Supp. 75-3203(a), -3202(b), -3203(e), -6103(a)

criminal 

appeals—constitutional law—criminal law—evidence—fourth amendment—motions 
state v. daino
johnson district court—reversed and remanded
no. 120,824—january 10, 2020

FACTS: Uniformed officers responded to report of marijuana odor coming from unit in apartment complex. Daino opened door 8-10 inches and officer asked if it was OK to step in to write ticket for marijuana. Daino did not verbally respond, but opened the door further and stood out of the way. Once officers discovered evidence of significant drug activity, Daino signed consent form for search of apartment but for roommate’s room. Drug charges filed. Daino filed motion to suppress, alleging illegal search in violation of Fourth Amendment. District court granted the motion, finding any reasonable person would have construed Daino’s response to indicate consent for officers to enter the apartment, but under Kansas law implied consent was not valid. State filed interlocutory appeal. On appeal Daino challenged sufficiency of the evidence of district court’s credibility finding regarding officer’s testimony.

ISSUES: (1) Cross-appeal; (2) consent to search

HELD: Sole issue on appeal is whether Daino’s consent for officers to enter apartment and investigate was invalid because it was implied. Daino filed no cross-appeal from district court’s adverse ruling, thus cannot challenge the sufficiency of the evidence or the district court’s credibility finding.

District court’s factual findings are supported by substantial competent evidence, but its legal conclusion that Kansas law requires express, verbal consent is erroneous. While it is well established law that mere acquiescence to a claim of lawful authority is inadequate to show voluntary consent, no Kansas Supreme Court case holds that consent must be verbal to be valid. Application of “mere acquiescence” rule by Court of Appeals panels, and subsequent Kansas Supreme Court cases, are examined and factually distinguished. Federal court cases upholding implied consent to enter a residence also are cited. Here, uncontested facts show that Daino yielded right of way to officers by his nonverbal, affirmative communication. Totality of circumstances shows that he unequivocally, specifically, freely, and intelligently consented to officers entering his residence to investigate smell of marijuana.

DISSENT (Buser, J.): Under totality of circumstances, would find Daino did not unequivocally, specifically, and freely and intelligently consent to officer’s entry into the apartment. Officer’s statements to Daino were misleading, and insufficiently informed Daino of officer’s purpose in seeking entry into the apartment or of Daino’s constitutional right to refuse entry. A reasonable person would understand that Daino was silently acquiescing to officer’s claim of lawful authority to enter the apartment because officer knew there was marijuana inside and was required to issue a citation. Would affirm district court’s suppression of evidence due to Fourth Amendment violation.  

STATUTE: K.S.A. 2018 Supp. 60- 2103(h); K.S.A. 21-5709(b)(1), 65-4105(d)(17), -4107(d)(1)

appeals—contempt—criminal procedure—evidence—witnesses
state v. lamb (towner)
shawnee district court—affirmed
No. 117,861—january 10, 2020

FACTS: Lamb charged with murder of victim in car Towner was driving, and with attempted murder of Towner. For Lamb’s preliminary hearing, Lamb and Towner had been transported to courthouse together and placed in same holding cell. When called to testify and identify Lamb as the shooter, Towner refused to testify. District court held Towner in contempt and ordered confinement. Charges against Lamb were dismissed. Towner appealed the court’s order of  direct criminal contempt, arguing he was threatened into not testifying and district court erred by not holding an in camera hearing, without Lamb present, so Towner could explain why he was not testifying. State asserted the appeal was moot because Towner had completed his six-month sentence for contempt, and failed to preserve his issue for appeal.

ISSUES: (1) Mootness of the appeal; (2) preservation of issue on appeal; (3) contempt

HELD: State v. Flanagan, 19 Kan. App. 2d 528 (1994), is distinguished as a contempt citation is not a criminal conviction and does not appear on a defendant’s criminal history. But mootness doctrine does not prevent the appeal because issue may be subject to repetition.

Panel proceeds on the merits notwithstanding close call whether Towner properly preserved his claim that there was insufficient evidence to find him in contempt because judge disregarded information from prosecutor that Towner was under duress and did not provide Towner a safe environment to set forth his defense.

District court’s decision finding Towner in direct criminal contempt is affirmed. A judge has no duty to sua sponte hold an in camera hearing to determine if a witness is fearful to testify when the witness makes no such request. Towner failed to make a proffer of the evidence he wanted the court to consider, and the three federal cases he cited do not support his position. A judge has no independent responsibility to seek out evidence of duress from a recalcitrant witness.

STATUTES: K.S.A. 2018 Supp. 21-5107(a), -5206; K.S.A. 60-405

appeals—criminal procedure—jurisdiction—motions—sentences—statutes
state v. mccroy
reno district court—appeal dismissed
No. 120,783—january 10, 2020

FACTS: District court sanctioned McCroy with second 180-day prison term after he violated terms of probation. State did not file motion to correct the order and instead appealed, arguing the second sanction was an illegal sentence because Kansas law only contemplates one 180-day sanction. McCroy contends there is no jurisdiction to consider State’s appeal which was not authorized by K.S.A. 22-3602 or any other appellate jurisdiction statute.

ISSUE: Appellate jurisdiction

HELD: K.S.A. 22-3504, governing post trial motions including motion to correct an illegal sentence, is not an appellate jurisdiction statute and does not vest an appellate court with jurisdiction to consider an appeal by the State solely on the claim that a sentence is illegal. Instead, an appellate court’s jurisdiction in a criminal case must arise from one of the limited procedural postures set forth in K.S.A. 22-3602. Different conclusion summarily reached in State v. Scherzer, 254 Kan. 926 (1994), but the sweeping jurisdictional statement in Scherzer no longer reflects the state of Kansas law. Appellate court’s jurisdiction is limited to those situations authorized by statute. State did not present its argument as a question reserved under K.S.A. 22-3602(b)(3), and panel makes no finding as to whether State’s general concerns regarding a second 180-day sanction could be raised in that context.

STATUTES: K.S.A. 2018 Supp. 21-6820, 22-3501(1), -3502, -3504(1), -3602(a), -3602(b), -3602(f), -3716; K.S.A. 22-3504, -3504(a), -3601, -3602, -3602(b), -3602(b)(3), -3603, 60-1507, -2101, -2101(a), -2101(b)

Tags:  Appeals  Cherokee District Court  Constitutional Law  Contempt  Criminal Law  Criminal Procedure  Employment  Evidence  Fourth Amendment  Geary District Court  Johnson District Court  Judges  Jury Instructions  Legislators  Motions  Shawnee District Court  Statutes  Vicarious Liability  Witnesses 

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December 20 and December 27, 2019 Digests

Posted By Administrator, Friday, January 3, 2020

Kansas Supreme Court

criminal

constitutional law—criminal procedure—motions—search and seizure
State v. Chavez-Majors
butler district court—affirmed on issue subject to review and remanded
court of appeals—affirmed in part
No. 115,286—december 20, 2019

FACTS: Chavez-Majors convicted of aggravated battery while driving under the influence, based on motorcycle accident that caused injury to another person. Park Ranger first at scene requested EMS to draw blood from unconscious Chavez-Majors. District court denied motion to suppress the blood test results, finding the warrantless search was reasonable under probable cause plus exigent circumstances exception which satisfied the  three-prong test in Schmerber v. California, 384 U.S. 757 (1966). Court of appeals affirmed the denial of motion to suppress, but reversed the conviction because Chavez-Majors had not knowingly and voluntarily waived his right to jury trial. 54 Kan. App. 2d 543 (2017). Review granted on Chavez-Majors petition for review of panel’s decision affirming the denial of motion to suppress. State’s cross-petition for review of the jury trial issue was denied.

ISSUES: (1) Warrantless search—probable cause; (2) warrantless search—exigent circumstances

HELD: Court of Appeals decision regarding probable cause is affirmed. Probable cause determination is supported by Chavez-Majors driving at high rate of speed around curve and into parking lot he knew held parked cars and congregating people, and by strong odor of alcohol on Chavez-Majors’s breath.

As to whether exigent circumstances supported the warrantless blood draw, lower courts did not have benefit of Mitchell v. Wisconsin, 588 U.S. __ (2019). Because Chavez-Majors has not had a chance to fully litigate his claim under the change of law created by Mitchell, case is remanded to district court for an evidentiary hearing and district court ruling on exigency in light of Mitchell.

STATUTES: K.S.A. 2013 Supp. 8-1567; K.S.A. 22-3216

Kansas Court of Appeals

Civil

ATTORNEY PERFORMANCE—HABEAS CORPUS
BAKER V. STATE
LABETTE DISTRICT COURT—AFFIRMED
NO. 118,695—DECEMBER 20, 2019

FACTS: Baker pled guilty to felony murder, child abuse, possession of marijuana, and obstruction of official duty. Baker had originally been charged with aggravated criminal sodomy, a charge which could have resulted in a death penalty when combined with the murder charge, but it was dismissed under the plea agreement. At the sentencing hearing, defense counsel did not present any evidence regarding Baker's mental health. Baker received a hard 20 sentence for the felony murder, plus an additional 147 months for the other convictions. All of these sentences were presumptive for Baker's convictions, but Baker received the aggravated sentence rather than the standard sentence. Baker's convictions were affirmed on direct appeal. He timely filed a K.S.A. 60-1507 motion, plus three amended motions, in which he claimed that trial counsel was ineffective for failing to ensure that his grid sentences were ordered to run concurrently and for failing to investigate his mental health issues and present mitigating evidence. The district court denied the motion after an evidentiary hearing, and Baker appeals.

ISSUES: (1) Timeliness of the K.S.A. 60-1507 motion; (2) merits of Baker's motion

HELD: The State did not raise the timeliness issue before the district court. They waived any appellate argument by not arguing timeliness in district court. The panel assumes without deciding that trial counsel's performance was deficient under the totality of the circumstances. The only issue to decide is whether trial counsel's deficient performance was so prejudicial that Baker was harmed. The district court did not correctly apply the Strickland test and did not properly evaluate the evidence. But even when the correct test is used, the district court correctly determined that no prejudice resulted from trial counsel's deficient performance.

DISSENT: (Leben, J.) Trial counsel made no argument for anything less than the maximum possible sentence. There was a great deal of evidence regarding Baker's life experiences and mental health conditions, and that could have made a difference at sentencing. Trial counsel was prejudicially ineffective for not presenting that evidence at sentencing. He would remand this case for resentencing before a different judge.

STATUTE: K.S.A. 2018 Supp. 60-1507(f)(1); K.S.A. 60-1507

criminal 

criminal procedure—sentences—statutes
state v. gibson
geary district court—sentence vacated and case remanded
No. 120,657—december 20, 2019

FACTS: When Gibson was arrested on drug charges, he misidentified himself as his brother. The brother was then arrested for failure to show up for a hearing. Relevant to this appeal, Gibson was convicted of identity theft and perjury. Presumptive sentence was probation, but district  court granted State’s motion for a dispositional-departure sentence of prison, finding the harm from Gibson’s crimes was greater than usual. Gibson appealed.

ISSUE: (1) Dispositional departure sentence

HELD: Statutory-counterpart rule discussed. K.S.A. 2018 Supp. 21-6815 provides lists of mitigating and aggravating circumstances the sentencing court may consider in deciding whether to depart. Although each list is nonexclusive, if something is listed as a factor on one of the two lists, the absence of that factor on the counterpart list means that it may not be the basis for departure in that departure direction. Because less-than-typical harm is in list of mitigating factors but greater-than-typical harm is not included in list of aggravating factors, greater-than-typical harm may not be the basis for an upward-departure sentence. Sentence vacated and case remanded for resentencing.   

STATUTES: K.S.A. 2018 Supp. 21-6815, -6815(c)(1)(E); K.S.A. 2005 Supp. 21-4716(c)(2)(D); K.S.A. 2003 Supp. 21-4716(c)(1)(B); K.S.A. 1997 Supp. 21-4716(b)(1)(E); K.S.A. 1994 Supp. 21-4716(b)(2)(A)

constitutional law—due process—criminal procedure—probation—statutes
state v. gonzalez
sedgwick district court—remanded with directions
No. 120,179—december 27, 2019

FACTS: Following a hearing and determination of competency, Gonzalez convicted and sentenced to 52 month prison term with dispositional departure to probation for 36 months. Some seven months later he was arrested for violating probation. Noting the statutory processes for competency evaluations do not explicitly apply to probation revocation proceedings, district court revoked probation without addressing competency concerns raised by appointed counsel. Gonzalez appealed, claiming a constitutionally protected right to be mentally competent at his probation hearing.

ISSUE: (1) Probation revocation—constitutional due process

HELD: Gonzalez’ Fourteenth Amendment claim was not waived by counsel’s assertion of rights notwithstanding her failure to mention “constitution” or “due process.” Competency for due process purposes in revoking probation, an issue not yet addressed by U.S. Supreme Court or Kansas Supreme Court, is examined. The State may not revoke probation of a convicted felon who is not mentally competent at the time of the revocation hearing. In this case, district court acknowledged there were legitimate reasons to believe Gonzalez may not have been competent. The absence of a statutory procedure for competency evaluations in criminal cases after defendants have been sentenced is not a barrier to district court’s inherent authority to order a competency evaluation as a means of extending constitutional due process to a probationer facing revocation. District court erred in revoking Gonzalez’ probation without determining he was mentally competent. On remand, district court should determine if a retrospective competency evaluation can be done. If State agrees to forgo that accommodation, or district court determines such an evaluation is not feasible, then the revocation must be set aside with a new revocation proceeding and competency evaluations ordered if genuine competency issues remain. Due process requirements for statutory sanctions short of revocation are distinguished and not addressed.  

STATUTES: K.S.A. 2018 Supp. 22-3303, -3716(b)(2), -3716(c)(1)(B), - 3716(c)(11), K.S.A. 22-3202, -3301 et seq., -3302(1)

criminal procedure—probation—statutes
state v. tearney
wyandotte district court—affirmed
No. 120,340—december 20, 2019

FACTS: In 2014, district court imposed prison term but granted dispositional departure for 36 months’ probation. Probation revoked in 2016. In unpublished opinion, court of appeals reversed the revocation and remanded because district court erroneously believed Tearney had served two intermediate sanctions. While that appeal was pending, Legislature enacted the dispositional departure exception, K.S.A. 2017 Supp. 22-3716(c)(9)(B), on July 1, 2017. On remand, district court applied the new exception and again revoked probation. Tearney appealed, claiming the exception does not apply retroactively.

ISSUE: (1) Probation revocation—retroactive application of dispositional departure exception

HELD: K.S.A. 2017 Supp. 22-3716(c)(9)(B) permits a district court to revoke a defendant’s probation without having imposed a graduated sanction if probation was originally granted as the result of a dispositional departure. This exception applies to probation violations which occur after July 1, 2013, even when those violations occurred before the dispositional departure exception took effect. Retroactive application of the exception does not result in manifest injustice. Accordingly, the exception applies to Tearney’s 2016 probation violations even though her violations occurred before the exception took effect.

STATUTES: K.S.A. 2017 Supp. 22-3716(c)(9)(A), -3716(c)(9)(B), -3716(c)(12); K.S.A. 2014 Supp. 22-3716(c)

Tags:  Butler District Court  Constitutional law  criminal procedure  due process  Geary District Court  habeas corpus  Labette District Court  motions  probation  search and seizure  Sedgwick District Court  sentences  statutes 

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December 13, 2019 Digests

Posted By Administration, Monday, December 16, 2019

Kansas Supreme Court

Criminal 

attorneys—constitutional law—criminal law—
evidence—jury instructions—statutes
State v. Harris
Lyon district court—affirmed; court of appeals—affirmed
No. 112,883—December 13, 2019

FACTS: Harris held victim for two hours, repeatedly forcing her to move from room to room within small apartment while demanding money. Jury convicted him of robbery, kidnapping, and criminal threat. Harris appealed on claims of trial errors and ineffective assistance of counsel. Case remanded for Van Cleave hearing, with no relief granted. In unpublished opinion, Court of appeals affirmed, rejecting the ineffective assistance claim, and finding two trial errors which were harmless both individually and collectively. Review granted on adequately briefed issues. Harris claimed insufficient evidence supported the kidnapping conviction and reasserted his claims of cumulative error and ineffective assistance of counsel. For first time on appeal, he claimed district court erred in failing to instruct on criminal restraint as a lesser included offense and failing to give unanimity instruction for kidnapping and robbery.

ISSUES: (1) Sufficiency of evidence—kidnapping; (2) jury instructions—lesser included offense; (3) jury instructions—unanimity; (4) cumulative error; (5) ineffective assistance of counsel

HELD: Forcing victim from room-to room within one-bedroom apartment constitutes a taking or confinement within kidnapping statute’s meaning under State v. Bugs, 219 Kan. 203 (1976), and Harris’ movements were not merely incidental to the robbery. No substantive basis for Harris’ claim that his two-hour holding of the victim was part of one continuous effort to get the victim’s money. Pursuant to State v. Haberlein, 296 Kan. 195 (2012), panel correctly rejected Harris’ alternative means claim that evidence failed to show he held victim with intent to facilitate flight.

State conceded a lesser included instruction was factually and legally appropriate, but panel correctly found no clear error on facts in this case.

Unanimity instruction on the kidnapping count would not have been appropriate because all of Harris’ actions were part of one unitary conduct. And no unanimity instruction was necessary on robbery count because State elected one of the two acts that could separately constitute the alleged robbery.

No reversal on cumulative effect of district court’s error of instructing on criminal restraint as an alternative crime rather than a lesser included offense, and omitting the specific crime the kidnapping was meant to facilitate.

Van Cleave court found counsel’s failure to challenge the sufficiency of the charging document within 14 days after trial deprived Harris of the more-strict standard of review under State v. Hall, 246 Kan. 728 (1990), but no prejudice occurred under the “post-Hall” common-sense rule. Panel affirmed on the prejudice prong, applying State v. Dunn, 304 Kan. 773 (2016), which overruled Hall. But issue for appellate review was not the charging document’s sufficiency but whether Harris’ opportunity for a hearing under the pre-Hall standard was squandered. Following Ferguson v. State, 276 Kan. 428 (2003), the common-sense rule applies and record shows Harris suffered no prejudice.

STATUTES: K.S.A. 2018 Supp 21-5408, -5408(a), -5408(a)(2), -5420(a), 22-3201(b) -3414(3), -3502; K.S.A. 2015 Supp. 60-261 

Kansas Court of Appeals

Civil

CONSUMER PROTECTIONCONTRACTSFORUM SELECTION
KANSAS CITY GRILL CLEANERS, LLC V. THE BBQ CLEANER, LLC
JOHNSON DISTRICT COURT
REVERSED AND REMANDED
NO. 118,687
DECEMBER 13, 2019

FACTS: Kansas City Grill Cleaners, LLC, and The BBQ Cleaner, LLC entered a contract for the purchase of outdoor grill cleaning equipment and supplies. The purchase agreement contained choice-of-law and forum-selection clauses which established that venue would exist only in Bergen County, New Jersey. In August 2016, KC Grill filed suit in Johnson County against BBQ Cleaner alleging a deceptive trade practice claim under the Kansas Consumer Protection Act. Relying on the forum-selection clause, BBQ Cleaner filed a motion to dismiss. The district court granted the motion, citing the forum-selection clause. KC Grill appealed.

ISSUE: (1) Enforcement of forum-selection clause

HELD: A forum-selection clause is unenforceable if the party resisting it shows that enforcement would be unreasonable under the circumstances. The KCPA contains a venue statute which is designed to allow Kansas consumers with certain prerogatives in prosecuting a consumer protection claim. A plain reading of that statute makes it clear the legislature intended to allow Kansas consumers to file suit against non-resident companies in Kansas. The district court erred when it found the forum-selection clause in this contract was enforceable.

STATUTE: K.S.A. 50-623(b), -625, -625(a), -625(c), -638(b)

DRIVER'S LICENSE SUSPENSION
MOLINA V. KANSAS DEPARTMENT OF REVENUE
FORD DISTRICT COURT
AFFIRMED
NO. 119,766
DECEMBER 13, 2019

FACTS: Deputy Scott stopped Molina after he was seen failing to maintain a single lane and changing lanes without signaling. After the stop, the officer noticed that Molina smelled like alcohol and had slurred speech. Molina failed a series of field sobriety tests and his preliminary breath test. Molina was arrested and transported to the sheriff's office, where personnel administered the Intoxilyzer 9000 breath test after waiting the prescribed 20 minutes. Molina's sample showed an alcohol level far exceeding the allowable amount, and Molina was given notice that his driving privileges were being suspended. Molina requested an administrative hearing and then review by the district court, claiming that Deputy Scott failed to substantially comply with the Intoxilyzer testing protocol. At the district court hearing, Molina's counsel failed to subpoena Deputy Scott, so there was no testimony regarding compliance with the testing protocol. Nevertheless, Molina argued that his Intoxilyzer results were flawed because Deputy Scott did not wait the required 20 minutes before administering the test. The district court disagreed, and Molina appealed.

ISSUE: (1) Compliance with testing procedure

HELD: Substantial compliance is sufficient to satisfy the 20-minute wait requirement. There is absolutely no evidence to support Molina's claim that his waiting period was improperly cut short. Molina failed to meet his burden to prove error. Moreover, substantial evidence proves that more than 20 minutes elapsed from the start of the waiting period to when Molina actually performed the test. The district court correctly rejected Molina's claims to the contrary.

STATUTE: K.S.A. 2018 Supp. 8-259(a), -1020(h)(2)(F), -1020(q), 77-603(a), -621(a)(1), -621(c)(7), -621(d)

Tags:  attorneys  constitutional law  consumer protection  contracts  criminal law  driver's license suspension  evidence  Ford District Court  forum selection  Johnson District Court  jury instructions  Lyon District Court  statutes  Weekly20191217 

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