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


Search all posts for:   


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

May 24, 2019 Digests

Posted By Administration, Tuesday, May 28, 2019

Kansas Court of Appeals


NO. 119,813—MAY 24, 2019

FACTS: Burch is a resident of the Sexual Predator Treatment Program in Larned. He filed a §1983 action claiming that SPTP officials violated his constitutional rights by seizing his property without due process. The Kansas Department for Aging and Disability Services moved to dismiss, claiming that Burch failed to exhaust administrative remedies before filing suit. The district court agreed and the case was dismissed. Burch appealed.

ISSUE: (1) Duty to exhaust administrative remedies

HELD: Section 1983 does not contain a requirement that movants exhaust administrative remedies before bringing an action under the statute. K.S.A. 2018 Supp. 59-29a24 does require participants in SPTP to exhaust administrative remedies. The federal statute pre-empts the exhaustion requirement of K.S.A. 2018 Supp. 59-29a24. The case must be remanded for proceedings on Burch's original motion.

STATUTES: 28 U.S.C. § 1915, 42 U.S.C. § 1983, § 1997 (1)(B), § 1997e; K.S.A. 2018 Supp. 59-29a01, -29a02, -29a24

NO. 119,200—MAY 24, 2019

FACTS: In 1994, the Deterses purchased from Nemaha-Marshall a GTS, a device which allowed them to safely connect a generator to household wiring. The GTS was installed by Nemaha-Marshall on the Deterses' electric pole. In 2000, the Deterses transferred all of their electricityincluding the GTSto a new house, shop, and implement shed on their property. Over the course of a year, the Deterses had to replace multiple appliances due to malfunctions. The Deterses claimed this was due to faulty wiring in the GTS. Alliance, their homeowners insurer, denied their claim, pointing to a lack of coverage for low voltage events. The Deterses sued both Nemaha-Marshall and Alliance for damages related to replacement appliances. Nemaha-Marshall moved for summary judgment on statute of repose grounds, since it had been at least 10 years since the GTS was connected to the Deterses' property. Alliance also moved for summary judgment, citing a lack of coverage in the Deterses' insurance policy. Both motions were granted and the Deterses appeal.

ISSUES: (1) Statute of repose; (2) insurance coverage; (3) bad faith investigation

HELD:The statute of repose clock begins running on the last act giving rise to the cause of action, not the last contact between the parties. Plaintiffs must bring their negligence action within 10 years of the original wrongful act. In this case, that act occurred in 2000 and the Deterses' claim is barred by the statute of repose. Much of the Deterses' argument is waived due to the failure to adequately brief the argument. To the extent that issues have been preserved, the district court correctly found that the homeowners' insurance policy provided no coverage for low voltage events. Alliance investigated this claim appropriately, especially since the Deterses proposed two different causes for the damage.

STATUTE: K.S.A. 60-513, -513(a)(4), -513(b)


criminal procedure—motions—sentences—statutes
state v. sheppard
wyandotte district court—affirmed
no. 119,454—may 24, 2019

FACTS: Sheppard was convicted in 2006 of second-degree murder and criminal possession of a firearm. Convictions were affirmed in 2009. Sheppard filed in 2017 a pro se motion to dismiss, reiterating the claim in his unsuccessful 2011 K.S.A. 60-1507 motion that he was arrested without probable cause because affidavit facts were false. District court denied Sheppard’s motion for leave to file the motion to dismiss out of time, finding no showing of excusable neglect. Sheppard appealed. He then filed a pro se motion to correct an illegal sentence, arguing that under the 2016 amendments to K.S.A. 21-6810, the district court improperly included a decayed 1994 Missouri juvenile adjudication in calculating criminal history. District court denied the motion. Sheppard appealed. Appeals consolidated.

ISSUES: (1) Excusable neglect; (2) motion to correct illegal sentence—decayed juvenile adjudications

HELD: A showing of excusable neglect under different statutes, cases and administrative regulations is discussed. Under facts in this case and circumstances surrounding the untimely filing, the appellate court found no abuse of the district court’s discretion in finding Sheppard failed to establish excusable neglect.

The 2016 amendments to K.S.A. 21-6810 do not apply to Sheppard’s case. Court of appeals panels have consistently held the 2016 amendments to the juvenile decay rules are substantive in nature, and the legislature has included no clear language that intended the 2016 amendments to operate retroactively. District court correctly included Sheppard’s 1994 juvenile residential burglary adjudication in the criminal history score.

STATUTES: K.S.A. 2018 Supp. 21-5807, -6803, -6803(e), -6810(d), -6810(e), 22-3208(4), -3504, -3504(3), 60-206(b)(1)(B), 60-206(b)(1)(B); K.S.A. 21-3715, -4710, -6810, 60-206(b), -260(b)(1), -1507; K.S.A. 21-4710 (Furse 1995)

criminal law—restitution—sentences—statutes
state v. Smith
shawnee district court—affirmed
no. 119,356—may 24, 2019

FACTS: Smith was convicted of possession of stolen property: a motorcycle that was damaged; and a scooter the Highway Patrol had towed, and then the towing company sold the scooter without first contacting the owner. Restitution order included $1365.77 for motorcycle repair, and $2141.93 replacement value for the scooter. Smith appealed, arguing insufficient evidence supported the amount of damage to the motorcycle. He also claimed that given the actions of law enforcement and the towing company there was no direct causal link between his crime and loss of the scooter, and argued the scooter owner should have been awarded fair market value rather than replacement cost.

ISSUES: (1) Restitution—sufficiency of the evidence; (2) restitution—causal link; (3) restitution—replacement value

HELD: District court found the motorcycle owner’s testimony about the condition of the motorcycle before and after it was stolen, and the need for the estimated repairs, was uncontroverted. Substantial competent evidence supported the district court’s findings.

As in State v. Arnett, 307 Kan. 648 (2018), but for Smith’s crime the scooter would not have been seized and towed. Applying Arnett, the district court’s factual determination of causation is accepted.

Under the restitution statute, K.S.A. 2015 Supp. 21-5801(a)(4), the district court was legally permitted to order replacement costs as restitution, and Smith agreed that the scooter owner’s loss exceeded $2000.

STATUTES: K.S.A. 2018 Supp. 21-6604(b)(1); K.S.A. 2015 Supp. 21-5801, -5801(a)(4); K.S.A. 21-6604(b)(1)

Tags:  8806  Nemaha District  Pawnee District  Shawnee District  Wyandotte District 

Share |
PermalinkComments (1)

May 17, 2019 Digests

Posted By Administration, Monday, May 20, 2019

Kansas Supreme Court


NO. 119,270—MAY 17, 2019

FACTS: Bowman was charged with rape, aggravated criminal sodomy, and intimidation of a witness after he allegedly sexually abused his three-year-old granddaughter. At trial, witnesses testified about what the child told them and the tape of a 911 call was introduced. The child was called to testify by closed-circuit television with a comfort aide next to her. But despite repeated prompting, the child would not respond when questioned about whether she would tell the truth, and she would not take the witness oath. When it became apparent that the child was not going to take the oath, the district court asked for guidance on how to address the hearsay issue that was now present. The district court granted the State's motion for mistrial and the jury was dismissed. Bowman later moved to have the case dismissed with prejudice since jeopardy had attached. The district court found that manifest necessity warranted allowing the State to try Bowman for a second time. Bowman sought original review of that decision.

ISSUES: (1) Original jurisdiction; (2) mistrial; (3) double jeopardy

HELD: The court may take jurisdiction over this matter under K.S.A. 60-1501 in order to address the double jeopardy claim. All analysis is based on statutory language rather than constitutional provisions. The child's failure to take the oath made the trial more difficult for the State, but it did not make the trial physically impossible. Jurors could have been instructed to ignore testimony that was now hearsay and jurors knew that counsel's arguments were not evidence. And the prosecutor knew that relying on a young child's testimony could be risky, yet chose to introduce hearsay evidence before attempting to have the child take the oath. In the absence of any statutory authority, the district court judge abused its discretion by granting a mistrial. Jeopardy clearly attached in Bowman's first trial. The child's refusal to take the witness oath did not render a verdict "impossible", as required by the double jeopardy statute, which means that the district court erred by finding that a second trial was permissible. Bowman's criminal case must be dismissed, and he must be released from confinement.

DISSENT: (Luckert, J., joined by Nuss, C.J. and Stegall, J.) The district court did not abuse its discretion by declaring a mistrial. The prosecutor's comments made it impossible for Bowman to receive a fair trial. Because of this fact, a second prosecution is not barred by double jeopardy.

STATUTES: K.S.A. 2018 Supp. 21-5110, -5110(a)(3)(C), -5110(f), 60-1501, -1501(a); K.S.A. 22-3423, -3423(1)(a), -3423(1)(c), 60-418, -460(a), -460(dd)


constitutional law—criminal law—evidence—jury instructions—statutes
state v. macomber
shawnee district court—affirmed
court of appeals—affirmed on issues subject to review
NO. 113,869—may 17, 2019

FACTS: Macomber charged with first-degree murder for fatally shooting an unarmed man in the victim’s driveway. He filed motion to dismiss the case, asserting self-defense immunity under K.S.A. 2018 Supp. 21-5231. District court denied the motion, finding State presented sufficient evidence to establish probable cause that deadly force was not statutorily justified. Jury found Macomber guilty of involuntary manslaughter, a conviction the Court of Appeals affirmed in unpublished opinion, finding in part that any error was harmless in district court’s denial of the request for an instruction on self-defense presumption of reasonable belief that deadly force is necessary. Macomber’s petition for review granted on two issues: (1) whether district court erred by denying the pretrial motion to dismiss on self-defense immunity grounds; and (2) whether district court’s failure to instruct jury on presumption of reasonableness violated Macomber’s due process rights to a fair trial.

ISSUES: (1) Self-defense immunity; (2) presumption instruction

HELD: There was probable case that Macomber’s use of deadly force was not statutorily justified. Disputed facts supporting the district court’s findings are itemized. District court’s probable cause determination was correct based on substantial competent evidence supporting the district court’s factual findings.

Kansas Supreme Court has never addressed whether jury must be instructed on the presumption, and no suggestion by parties or Kansas caselaw that the requested instruction was not legally appropriate. Because failing to instruct on presumption in this case would not have affected burden of proof—i.e. State’s duty to disprove the affirmative defense—any error in failing to give the instruction at issue would be classified as a state-law error. Statutory presumptions for and against the accused are discussed and compared. While evidence is inconclusive whether Macomber acted in self-defense, his own statements strongly undercut any claim that he subjectively believed deadly force was necessary to prevent harm to himself. Panel’s finding of harmless error is affirmed.

CONCURRENCE and DISSENT: (Johnson, J.)(joined by Nuss, C.J., and Luckert, J.) Agrees with majority opinion until majority improperly engages in evidence-weighing and credibility-assessment by ignoring contradictory evidence and relying on selected statements by Macomber that support its conclusion that he did not actually believe deadly force was necessary. Believes the conflicting testimony could not, as a matter of law, definitively rebut the statutory presumption that self-defense was necessary. Because evidence is not viewed in light most favorable to the State in this circumstance, would hold that State did not meet its burden to show that withholding an instruction on the presumption was harmless.   

STATUTES: K.S.A. 2018 Supp. 17-7207(a)-(c), 21-5222, -5224, -5224(b), -5231, 23-2208(b), 44-501(b)(1)(C); K.S.A. 20-3018(b), 60-2101(b)

criminal law—criminal procedure—sentences—statutes
state v. smith
johnson district court—vacated and remanded
court of appeals—affirmed
No. 116,586—may 17, 2019

FACTS: Smith was convicted of trafficking contraband in a jail. In calculating criminal history, sentencing court included Smith’s Missouri municipal ordinance violation for endangering welfare of a child as a person misdemeanor. Smith appealed, arguing her criminal history should not have included this out-of-state ordinance violation. Court of Appeals agreed in unpublished opinion, holding the rule of lenity applied because sentencing guidelines were silent about how to classify an out-of-state ordinance violation when the convicting jurisdiction does not consider an ordinance violation to be a crime. State’s petition for review granted.

ISSUE: (1) Classification of an out-of-state municipal ordinance violation

HELD: Panel’s decision is affirmed on different reasoning. It is undisputed that Smith’s ordinance violation is not a crime under Missouri state law or the city’s Municipal Code. Plain language of K.S.A. 2015 Supp. 21-6811(e)(2) precludes a sentencing court from scoring a municipal ordinance violation when the convicting jurisdiction’s municipal code fails to designate that violation as either a felony or misdemeanor while it uses those designations for other violations. The court cannot delete vital portions from a statute or supply vital omissions. No matter what the legislature may have intended, if it did not in fact do so under any reasonable interpretation of the language used, the defect is one the legislature alone can correct.  

STATUTES: K.S.A. 2018 Supp. 21-5601(a), -5601(c)(1); K.S.A. 2015 Supp. 21-6602(a), -6801, -6803(c), -6809, -6810, -6811, -6811(a), -6811(e)(2); K.S.A. 20-3018(b), 60-2101(b)

Kansas Court of Appeals


NO. 120,239—MAY 17, 2019

FACTS: The Mother's children were removed from her care after allegations of physical abuse. Mother appeared at all hearings during the reintegration process. Ultimately, the State moved to terminate Mother's parental rights, in part because she was recently incarcerated. At the termination hearing, Mother did not appear in person but did appear through her court-appointed attorney. The district court recessed for 10 minutes in order to allow Mother to attend, but when she did not come to court, the district court granted the State's motion for default judgment. Mother moved to reconsider, but her motion was denied; and Mother appealed.

ISSUE: (1) Ability to enter default judgment

HELD: There is statutory authority for a parental termination hearing where counsel attends in lieu of the parent appearing personally. If the parent does not appear, the State may proceed by proffer if there is no objection from the parent's counsel. If there is, the State must present evidence to the court in support of termination. The district court failed to follow this statutory procedure. Because of that failure, the record on appeal does not contain any evidence in support of termination. The case must be remanded to the district court for further proceedings.

STATUTE: K.S.A. 2018 Supp. 38-2248(f), -2249(a), -2266(a), -2269(a), -2269(b), -2269(c), -2269(g)(1), -2267(d), -2234(a)(8), 60-255

NO. 119,605—MAY 17, 2019

FACTS: In 1997, Union Pacific Railroad and the Central Kansas Conservancy entered into a line donation contract where Union Pacific gave the Conservancy a quitclaim deed to its easement rights for over 12 miles of railroad corridor. With that deed, the Conservancy obtained the right to develop a recreational trail on the easement. Part of the trail runs through the Sideses' land. In 2015, the Conservancy petitioned the district court for quiet title and an injunction concerning its trail use easement. It claimed that the Sideses attempted to block access to the easement with fencing and equipment in the roadway. The Sideses admitted that fact, but claimed that these actions constituted adverse possession of the Conservancy's ownership interest or, in the alternative, that they had a prescriptive easement on the land. The parties filed competing summary judgment motions and the district court granted the Conservancy's motion and denied the Sideses'. The district court eventually granted the Conservancy's request for an injunction which required the Sideses to allow the Conservancy to have access to the easement property. The order further discussed the erection of a fence that would keep the Sideses' cattle from straying. The Sideses appealed.

ISSUES: (1) Jurisdiction; (2) adverse possession and prescriptive easement; (3) application of time limit; (4) fencing

HELD: The Conservancy's original petition brought claims of quiet title, injunction, and damages. A decision on that petition could not be final until all three claims were addressed. There was a gap in time before the district court held a hearing and issued a decision on the injunction, and the decision was not final until that ruling was issued. Some real property cannot be adversely possessed or obtained by prescriptive easement, including property that is meant for public use. The Conservancy's trial use easement is meant for public use, which prevents the Sideses from obtaining rights through either adverse possession or prescriptive easement. The Conservancy's right to develop a trail arose before the KRTA went into effect, which means the district court properly ruled that the two-year time limit did not apply. And even if it did, the Sideses' only remedy would be to require the Conservancy to complete the trailthere is no remedy that would allow the property to revert to the Sideses. The district court violated the plain language of the statute when it ordered the Sideses to pay for half of the cost of fencing. The Conservancy must install barbed wire and electric fencing along the railroad corridor. The Conservancy may enter the Sideses' property when constructing a fence.

STATUTES: 16 U.S.C. § 1247(d); K.S.A. 2018 Supp. 58-3215; K.S.A. 58-3212, -3213, -3213(a)(3), -3213(c), -3213(d), 60-503, -509


criminal procedure—motions—sentences—statutes
state v. Young
sedgwick district court—appeal dismissed
NO. 119,265—may 17, 2019

FACTS: Young was convicted in 1999 of aggravated indecent liberties with a child. Sentence imposed included lifetime registration under Kansas Offender Registration Act (KORA). In 2017, Young entered guilty plea to fourth KORA violation which occurred while on probation for his third KORA violation with an underlying 61-month guideline sentence. In a combined hearing, district court revoked probation for the third KORA violation and ordered service of the underlying 61-month sentence. For the fourth KORA violation, district court rejected Young’s request for a concurrent downward departure sentence, and imposed the minimum-89 month guideline sentence under the Kansas Sentencing Guidelines Act (KSGA) with consecutive service of the sentences. Young appealed, arguing the district court abused its discretion in failing to make a special finding that manifest injustice would occur by allowing his KORA violation sentence to run consecutive rather than concurrent to sentence in his prior criminal case. State contends there is no jurisdiction to appeal the presumptive guideline sentence.

ISSUE: (1) K.S.A. 2018 Supp. 21-6819(a)—manifest injustice

HELD: Under K.S.A. 2018 Supp. 21-6819(a) which is part of the Kansas sentencing guidelines, the consecutive sentence called for in K.S.A. 2018 Supp. 21-6606(c) when a defendant commits a crime while on probation for a previous felony conviction, is not required if imposition of such a sentence would be manifestly unjust. Here, the district court considered whether a consecutive sentence would be manifestly unjust and determined that it would not. District court did not depart from sentencing guidelines by imposing a guidelines sentence with consecutive service. Appeal is dismissed because an appellate court has no jurisdiction to entertain challenges to imposition of consecutive guideline sentences.

DISSENT: (Arnold-Burger, J.) Dissents from majority’s conclusion that there is no jurisdiction to hear this appeal. Issue is whether Young can appeal a ruling on the existence of manifest injustice under K.S.A. 2018 Supp. 21-6819(a). Statute is clear and unambiguous. Under K.S.A. 2018 Supp. 21-6819(a) a court has discretion to determine whether manifest injustice exists to override the mandatory non-KSGA sentencing rule in K.S.A. 2018 Supp. 21-6606(c). Such a decision is distinctly different than whether to impose consecutive or concurrent presumptive KSGA sentences. On facts in this case, would affirm on the merits because the district judge did not abuse discretion in denying Young’s request for concurrent sentences.

STATUTES: K.S.A. 2018 Supp. 21-6606(c), -6801 et seq., -6803(f), -6803(i), -6803(q), -6819(a), -6819(b), -6820(a), -6820(c), -6820(c)(1), 22-4901 et seq., -4903(a), -4903(c)(1)(C), -4905(g); K.S.A. 21-4721(c)(1)

This post has not been tagged.

Share |
PermalinkComments (0)

May 10, 2019 Digests

Posted By Administration, Wednesday, May 15, 2019

Kansas Supreme Court


Attorney Discipline

NO. 120,518 – MAY 10, 2019

FACTS: A hearing panel determined that Cure violated KRPC 8.4(b) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer); 8.4(d) (misconduct prejudicial to the administration of justice); 8.4(d) (misconduct that adversely reflects on the lawyer's fitness to practice law); and Supreme Court Rule 203(c)(1) (failure to report felony charge). The complaint was filed after Cure had four DUI convictions and appeared in court under the influence.

HEARING PANEL: The panel noted Cure's multiple convictions as well as his conduct which directly affected clients. The panel considered both aggravating and mitigating factors, which included Cure's alcoholism. The disciplinary administrator recommended an indefinite term of suspension. Cure asked that he be placed on probation. The hearing panel recommended an 18-month suspension, with Cure required to undergo a Rule 219 hearing prior to the consideration of a petition for reinstatement.

HELD: Cure filed no exceptions to the hearing panel's report. The court found that Cure has made significant strides towards changing his circumstances. But his ethical violations were serious. For that reason, a majority of the court agreed with the panel's recommendation of an 18-month suspension. A minority of the court would have imposed lesser discipline.

NO. 119,726—MAY 10, 2019

FACTS: A hearing panel determined that Herron violated KRPC 1.6 (confidentiality); 3.3(a)(1) and (d) (candor toward tribunal); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Charges arose after Herron told law enforcement that his client told him that she was faking urine tests in order to hide positive results. There was also an issue with a different client when Herron allegedly lied to the court about opposing counsel's willingness to reargue an issue after a bench warrant was issued. Herron was fired and his former employer filed a disciplinary complaint.

HEARING PANEL: The hearing panel found several instances where Herron lied to the district court. The hearing panel found a number of aggravating factors, including the submission of false evidence during the disciplinary process. The disciplinary administrator recommended disbarment. The hearing panel recommended that Herron be suspended for 30 days.

HELD: Herron disputed the hearing panel's findings. After considering Herron's arguments, the court adopted most of the hearing panel's report, but found that some actions flagged by the hearing panel as misconduct were within the realm of appropriate representation. A majority of the court concluded that a 60-day suspension was appropriate discipline. A minority of the court would have imposed a longer suspension.


NO. 115,869—MAY 10, 2019

FACTS: Kudlacik was gravely injured by Smith, who was intoxicated after spending the evening drinking at Johnny's Shawnee and Barley's Bar. Kudlacik sued Johnny's, claiming that bartenders continued to serve Smith even after they knew or should have known that he was intoxicated to an extent that he was a danger to others. Johnny's moved to dismiss on grounds that Kansas does not recognize a cause of action for a third-party to sue dispensers of alcoholic beverages for harm done to the third party. Kudlacik appealed and the Court of Appeals summarily affirmed. The Supreme Court granted Kudlacik's petition for review.

ISSUES: (1) Existence of negligence claim; (2) aiding and abetting

HELD: Kansas has repeatedly refused to impose a dram shop liability. Kudlacik's arguments that the current rule is outdated and bad public policy have merits, but not enough to change the status quo. There is no duty of care that runs from tavern owners to third-parties injured by tavern patrons after they have left the premises. Aiding and abetting claims exist only under narrow circumstances which are not applicable here.

STATUTES: No statutes cited.


NO. 121,061—MAY 10, 2019

FACTS: A vacancy on the Kansas Court of Appeals was created by the retirement of Judge Patrick McAnany on January 14, 2019. As required by statute, 60 days later, Governor Kelly nominated Judge Jeffry Jack to fill the vacancy. It is undisputed that the nomination was made and accepted within the statutory time frame. On March 18, 2019, Judge Jack sent a letter informing the Senate that he was withdrawing his name from consideration at the governor's request. The following day, Governor Kelly communicated this withdrawal to the Senate Majority Leader. In that same communication, Governor Kelly told the Senate Majority Leader that she would make a new appointment within 60 days. This prompted a discussion between the Governor, the Attorney General, and the Senate President about what could be done to fill the vacancy. Acting on a request from the Attorney General, the State filed this quo warranto action in an attempt to determine who holds the appointing authority. After the action was filed, Governor Kelly appointed a different attorney to fill the vacancy.

ISSUES: (1) Senate's capacity to be sued; (2) authority to appoint replacement judge

HELD: A quo warranto action demands that an individual or corporation show by what authority it has engaged in a challenged action—in this case, the action being challenged is Governor Kelly's second nomination. Although the Senate participated in this action and did not object to service, there is no authority giving the Senate President unilateral power to enter the Senate into litigation. There was no chamber resolution or authorization from the coordinating council directing action in this matter. The Senate has not engaged in any allegedly unauthorized action. Under these circumstances, the Senate is not a proper party to this action, and it is dismissed. K.S.A. 2018 Supp. 20-3020 governs appointments to the Court of Appeals. That statute provides that appointments are effective at the time they are made and does not contain any language for withdrawing a nomination. The parties rely on K.S.A. 75-4315b. But it is inapplicable for several reasons. First, Judge Jack withdrew his own name from consideration. More importantly, K.S.A. 2018 Supp. 20-3020(b) establishes different rules regarding the vote process. There is no statutory provision for a nominee to be withdrawn. This silence in the statute is an indication that the Legislature did not intend to provide this power, especially because the prior Court of Appeals appointment statutes did address the ability to withdraw a nominee from consideration. The only way for Judge Jack's nomination to be closed is for the Senate to vote. Because his nomination was still active at the time the second candidate was named, the second nomination is a legal nullity and is treated as though it never happened.

STATUTES: Kansas Constitution Article III, section 3, section 18; K.S.A. 2018 Supp. 20-3020, -3020(a), -3020(b), 46-1222a(a), -1222a(f); K.S.A. 60-1202(l), 75-4315b


constitutional law—criminal procedure—sentences—statutes
state v. brook
Nemaha district court—affirmed; court of appeals—affirmed
no.115,657—may 10, 2019

FACTS: Brook entered a no contest plea to sexual exploitation of a child in 2013. Sentence imposed included 36-month prison term suspended for 36 months’ probation, and 2 years postrelease supervision. When Brook committed another crime, district court revoked probation and imposed the original sentence, correcting the postrelease term from two-year to a lifetime term as required for a sexually violent crime. Brook appealed, arguing the postrelease term could not be corrected as an illegal sentence, citing K.S.A. 2018 Supp. 22-3717(d)(3) and K.S.A. 2013 Supp. 22-3717(d)(1). He also claimed lifetime postrelease supervision is cruel and unusual punishment. Court of Appeals affirmed in unpublished opinion. Review granted.

ISSUES: (1) K.S.A. 2018 Supp. 22-3717(d)(3); (2) K.S.A. 2013 Supp. 22-3717(d)(1); (3) Constitutional claim

HELD: Book’s statutory arguments are rejected. Imposition of an underlying prison term after a probation violation is not equivalent to “incarceration for a supervision violation,” thus a period of postrelease supervision term may be modified while serving the underlying prison sentence after probation revocation.

The original sentence was illegal because the two-year postrelease term did not conform to applicable statutory requirements, thus it was subject to later correction.

Brook’s categorical constitutional challenge to lifetime postrelease supervision is defeated by State v. Williams, 298 Kan. 1075 (2014). State v. Dull, 302 Kan. 32 (2015), applicable to juvenile offenders, is distinguished and not expanded.

STATUTES: K.S.A. 2018 Supp. 22-3504(1), -3717, -3717(d)(1), -3717(d)(1)(D), -3717(d)(3); K.S.A. 2013 Supp. 22-3717(d)(1)(D), -3717(d)(1)(G); K.S.A. 22-3504

criminal procedure—motions—sentences
state v. edwards
sedgwick district court—affirmed in part, vacated in part, remanded
117,305—may 10, 2019

FACTS: Criminal charges filed against Edwards, including two counts of capital murder. District court appointed two experienced public defenders. Edwards filed a pro se motion for appointment of new counsel, claiming pressure to accept a plea deal. District court denied the motion. He eventually entered a guilty plea to two counts of felony murder, aggravated burglary and aggravated robbery. Two weeks later, he filed a pro se motion to withdraw his plea, alleging pleas resulted from attorney manipulation and lies, and that he engaged in sexual encounters with one of the public defenders. Hearing held with new appointed counsel. District court applied factors in State v. Edgar, 281 Kan. 30 (2006), finding: overwhelming evidence supported the competency of Edwards’ attorneys; Edwards was not misled, coerced, mistreated, or unfairly taken advantage of; and the allegations of sexual misconduct were not credible. At sentencing, district court imposed lifetime postrelease supervision for the felony-murder convictions and orally waived payment of the BIDS administrative fee, but journal entry assessed a $100 BIDS fee. Edwards appealed claiming district court erred in denying motion to withdraw plea. He also claimed district court lacked authority to order lifetime postrelease supervision, and the journal entry must be corrected to show district court’s waiver of the BIDS administrative fee.

ISSUES: (1) Lifetime postrelease supervision; (2) waiver of BIDS administrative fee; (3) motion to withdraw plea

HELD: State concedes that sentence for off-grid first-degree felony murder should have ordered lifetime parole instead of lifetime postrelease supervision.

The judge’s oral pronouncement is controlling. Any journal entry variance from a judge’s oral pronouncement during sentencing is a clerical error that may be corrected at any time. District court is ordered to correct the journal entry to properly reflect the waiver of BIDS fees.

Edwards relies exclusively on second Edgar factor to claim he was coerced into taking his plea, but evidence of his dissatisfaction with counsel is insufficient to establish good cause to withdraw a guilty plea. Edwards also objected to district court’s comments regarding plea offers by State in a co-defendant’s case. However, district court expressly confined itself to Edgar factors when deciding Edwards’ motion, and no abuse of district court’s discretion is shown. Edwards’ motion to withdraw his guilty plea is affirmed.

STATUTE: K.S.A. 2018 Supp. 22-3210(d)(1), -3504(2), -3601(b)(3)

appellate procedure—criminal law—criminal
state v. garcia-garcia
montgomery district court—convictions affirmed,
sentence vacated in part, case remanded
116,648—may 10, 2019

FACTS: Garcia-Garcia was involved in a high-speed chase in Oklahoma, with shots fired from Garcia-Garcia’s car. After entering Kansas, he obtained a ride from Shafer, who felt threatened by a gun and was able to escape. Garcia-Garcia then obtained ride with Henderson, who was injured when officer Grimes stopped Henderson’s truck and exchanged gunfire with Garcia-Garcia. Prior to trial, district court denied a motion in limine to bar evidence about Garcia-Garcia’s criminal acts in Oklahoma. Jury convicted Garcia-Garcia of attempted capital murder of Grimes, kidnapping of Shafer, and interference with law enforcement. Sentence imposed included hard 25 life sentence with consecutive presumptive sentences for the remaining offenses. Garcia-Garcia appealed: (1) challenging relevancy and prejudice of evidence about his Oklahoma criminal acts, (2) claiming prosecutor error in voir dire and closing argument; (3) alleging district court should have given unrequested jury instruction on attempted kidnapping because overwhelming evidence that Shafer escaped; and (4) arguing district court erroneously  imposed BIDS fees as a percentage of attorney fees without knowing the exact amount. Supplemental briefing ordered on the notice appeal, which was titled to the Kansas Court of Appeals instead of the Kansas Supreme Court.

ISSUES: (1) Appellate jurisdiction; (2) evidence of Oklahoma crimes; (3) prosecutorial error; (4) lesser included offense instruction; (5) BIDS fee assessment

HELD: Kansas Supreme Court’s jurisdiction under K.S.A. 2016 Supp. 22-3601(b)(3) and (b)(4) is examined, holding the court has jurisdiction despite the misdirected notice of appeal.

Under facts in case, no abuse of district court’s discretion to find evidence of the Oklahoma criminal acts was not unduly prejudicial. Garcia-Garcia did not preserve his challenge to relevancy of the Oklahoma evidence.

Prosecutor’s voir dire explanation of reasonable doubt did not alter or lower the State’s burden. Prosecutor’s suggestion during closing argument that Garcia-Garcia had a duty to act in defense of officers was harmless error in this case.

By showing his gun, Garcia-Garcia gained sufficient control over Shafer to complete the crime of kidnapping. An instruction on lesser included offense of attempted kidnapping was not factually appropriate.

Court reviews the newly raised BIDS issue. Under State v. Robinson, 281 Kan. 538 (2006), district court’s failure to fulfill its statutory duty to consider the defendant’s financial resources and burden created by the attorney fees before granting a partial waiver was reversible error. Attorney fees assessment is vacated and case remanded for reconsideration of Garcia-Garcia’s obligation.

STATUTES: K.S.A. 2017 Supp. 21-5109(b)(3). -5301(a), -5401(a)(5), -5408(a)(2), -6620(a)(2)(A), 60-455, -455(b), -2103(b); K.S.A. 2016 Supp. 22-3601(b), -3601(b)(3), -3601(b)(4)(G); K.S.A. 2015 Supp. 21-5401(c), -6620(a)(2)(A); K.S.A. 22-4513, 60-404, -455


criminal law—criminal procedure—sentences
state v. moore
wyandotte district court—sentence vacated in part and case remanded
No. 117,275—may 10, 2019

FACTS: Moore and Warren were tried together and convicted of premeditated first-degree murder, intentional second-degree murder, and attempted premeditated first-degree murder. Hard 50 life sentences were imposed for the off-grid premeditated murder convictions. In Moore’s case, gridbox sentences of 195 months and 155 months were imposed, with all of Moore’s sentences to run concurrent. Convictions in both cases were affirmed on appeal, but hard 50 sentences were vacated due to Alleyne v. United States, 570 U.S. 99 (2013). On remand, the district court imposed hard 25 sentences for first-degree murder convictions, modified the duration and concurrent nature of the on-grid convictions, and ordered all sentences to run consecutive instead of concurrent. Moore appealed.

ISSUE: Sentencing on remand

HELD: Applying the controlling holding in State v. Warren,  307 Kan. 609 (2018), district court on remand erred by changing life sentence from “running concurrent with,” to “consecutive to,” Moore’s sentences for his two non-vacated on-grid crimes, and by modifying the two non-vacated, on-grid sentences in length and sequence. Sentence vacated in part and case remanded for resentencing to reinstate Moore’s original 195-month and 155-month concurrent grid sentences, to run concurrent with the new hard 25 sentence.

STATUTE: K.S.A. 2018 Supp. 21-6801 et seq., 22-3601(b)(3)

Kansas Court of Appeals


NO. 119,116—MAY 10, 2019

FACTS: Officer Hirsch stopped Jarvis on suspicion of DUI. Officer Hirsch read the implied consent advisories to Jarvis, who refused to take a breath test. This resulted in the administrative suspension of Jarvis' driver's license. Jarvis requested an administrative hearing but the suspension was upheld. Jarvis then sought judicial review, claiming that the officer lacked reasonable suspicion to initiate the stop. After hearing testimony and reviewing the evidence—including video of the traffic stop—the district court reversed the suspension. In so holding, the district court found that Officer Hirsch's testimony was not credible. The Department of Revenue appealed.

ISSUES: (1) Reasonable suspicion for the car stop; (2) effect of 2016 amendment to K.S.A. 8-1020(p); (3) good faith exception

HELD: Appellate courts are unable to review a lower court's factual findings regarding witness credibility, and the district court found that Officer Hirsch's testimony was not credible. Legislative history shows that the 2016 amendment to K.S.A. 8-1020(p) was designed to provide licensees with a meaningful opportunity to challenge the legality of the traffic stop in a driver's license suspension case. In this case, the district court's ruling was not based on an application of the exclusionary rule. The district court did not suppress evidence but rather set aside the suspension of Jarvis' license finding that the plain language of K.S.A. 2018 Supp. 8-1020(p) justified reversal of the suspension. The issue of application of the good faith exception was not raised below. As such, it will not be reviewed for the first time on appeal. Even if the court were to address it on the merits, it would not be a winning argument, since the reversal of Jarvis' suspension was not based on the exclusionary rule.

STATUTES: K.S.A. 2018 Supp. 8-1020(p); K.S.A. 8-1020(h)(2)

NO. 118,981—MAY 10, 2019

FACTS: Sarah Grace and Kurtis Nichols obtained two home loans from Community First National Bank. When the Nicholses failed to make payments, the bank filed this foreclosure action. The Nicholses filed several counterclaims alleging violations of the Kansas Consumer Protection Act. The bank filed a motion for partial summary judgment arguing that it was not subject to the KCPA. The district court granted that motion, dismissed the rest of the Nicholses' counterclaims, and granted the Bank's motion for foreclosure. The Nicholses appealed.

ISSUES: (1) Applicability of the KCPA; (2) application of payments; (3) fraud in applying credit; (4) ability to charge late fees; (5) accrual of interest during deferral period

HELD: The plain text of the KCPA states that banks are not included in the definition of "supplier" if the bank is subject to state or federal regulation related to disposition of repossessed collateral. This holding is in line with Kansas federal courts and gives meaning to the plain language of the statute. The mortgage contract is clear about how interest is accrued but silent on how payments should be applied. The district court erred by finding that the contract was unambiguous. However, any error was harmless, as the amount owed by the Nicholses was ultimately correct. The Nicholses' claims about fraud are unsupported by the record on appeal. The evidence supports the district court's findings that any errors in late fee calculation were unintentional and minimal. The deferral agreement clearly deferred payments but did not stop interest accrual.

STATUTES: K.S.A. 2018 Supp. 50-624(1), -626, -627; K.S.A. 16a-2-103(2)(a), -502(l), -5-201(3), -5-201(4), -5-201(7)


criminal law—criminal procedure—sentences—statutes
state v. pollman
finney district court—sentence vacated and case remanded for resentencing
no.118,672—may 10. 2019

FACTS: Pollman was charged in 2011 with discharging a firearm at an occupied vehicle, and two counts of criminal damage to property. Pursuant to plea agreement he entered no-contest plea to amended charge of discharge of firearm at an unoccupied vehicle—a crime that did not exist—and State dismissed the two criminal damage counts. District court accepted the plea, categorized the nonexistent offense as a severity level 8 person felony, ordered $4000+ in restitution, imposed a 10-month prison term, and granted 18-month probation. Pollman was charged and convicted in 2017 on a drug possession charge. Sentencing court scored the nonexistent 2011 offense as a person felony. Pollman appealed the 2017 sentence, arguing that rule of lenity or by treating the 2011 conviction as an unclassified crime, the 2011 crime should be scored as a nonperson misdemeanor. In supplemental briefing on appellate court questioning the validity of the 2011 conviction, Pollman argued the 2011 conviction for a noncriminal act was invalid or void for purpose of his criminal history.  

ISSUES: (1) Use of nonexistent offense in criminal history score, (2) scoring the nonexistent offense for purposes of criminal history

HELD: Pollman’s 2011 conviction for discharging firearm at an unoccupied vehicle stands. He forfeited right to attack an underlying infirmity in the charge to which he pleaded, as established by cited cases in Kansas and other jurisdictions. Other nonexistent or hypothetical crimes are discussed. Factors in Spencer v. State, 24 Kan. App. 2d 125 (1997), aff’d on other grounds 264 Kan. 4 (1998), for pleading to a nonexistent crime are satisfied. Pollman pleaded to a nonexistent crime as part of a plea agreement. He was initially brought into court on a valid pleading that alleged only crimes defined by Kansas Legislature. He received a beneficial plea agreement. And he voluntarily and knowingly entered into the plea agreement.

Pollman’s 2011 conviction is not among the exclusive statutory exceptions to general rule that requires all convictions are to be counted. The 2011 conviction was a verified conviction. By nature of penalty imposed, it was a felony, and this unclassified felony should have been scored as a nonperson crime. The rule of lenity does not apply because criminal code guides how to classify unclassified, omitted, or unranked convictions. Pollman’s 2017 sentence is vacated and remanded for resentencing to score the 2011 offense as a nonperson felony rather than a person felony.

DISSENT (Atcheson, J.): Dissents from majority’s result and reasoning. District court’s acceptance of Pollman’s plea created a common-law crime existing by judicial declaration rather than legislative enactment. This is contrary to Kansas Criminal Code; it ignores controlling Kansas Supreme Court precedent; and almost certainly violates Kansas Constitution’s separation of powers. Majority’s broad endorsement of plea agreements and convictions for common-law crimes is unjustified. Plea bargaining in Kansas does not contemplate common-law crimes. Majority misapplied judicial reasoning by analogy. Cases cited by majority are distinguished as resulting in convictions for statutory crimes, unlike Pollman’s 2011 conviction for an offense not in the Kansas Criminal Code. Future problems in plea bargaining are envisioned, and the majority failed to consider collateral consequences apart from scoring criminal histories.

STATUTES: K.S.A. 2018 Supp. 2-2449(a), 8-2118(c), 21-5210, -5301,-5302, -5813, -6308, -6613, -6614, 22-4902(c), -4902(c)(16), -4902(c)(18), 47-830(e); K.S.A. 2016 Supp. 21-5102, -5102(a), -5102(d),  -5103(a), -6602(a)(4), -6806(c), -6807(c)(1)-(3),  -6810(c), -6810(d), -6810(d)(1), -6810(d)(6), -6810(d)(9), -6813(b)(5); K.S.A. 2011 Supp. 22-4902(e)(2); K.S.A. 2010 Supp. 21-4217(a)(1), -4217(a)(2), 22-3502; K.S.A. 8-1534(d), 21-3102, -3105, -3720, -3720(b)(2), -4219, -4219(b), -5301(c)(1), 22-3504, -4901 et seq., 60-1507, 65-6615(a)(2)

This post has not been tagged.

Share |
PermalinkComments (0)

May 3, 2019 Digests

Posted By Administration, Monday, May 6, 2019

Kansas Supreme Court


BAR DOCKET NO. 8,791—MAY 2, 2019

FACTS: In a letter signed April 23, 2019, John S. Sutherland voluntarily surrendered his license to practice law in Kansas. At the time of surrender, Sutherland was facing a disciplinary complaint connected with his convictions for mail fraud and making a false statement.

HELD: The Court accepts the surrender of Sutherland's license and he is disbarred.


Kansas Court of Appeals


NO. 118,287—MAY 3, 2019

FACTS: Mouchague died in 2012. Terry Diehl was appointed as executor of her estate. The sole beneficiary of the estate of Mouchague's trust. Leonard and Patricia Kowalski have an 80% equitable interest in the trust as beneficiaries, but neither Leonard nor Patricia serve as a trustee. In her role as executor, Diehl moved for attorney fees for costs incurred in a quiet title action. The district court in this probate action awarded Diehl fees not only for the quiet title action but also for a prior appeal in which the Kowalskis challenged another attorney fee award. The Kowalskis appealed.

ISSUES: (1) Standing; (2) actions by the trustee; (3) appellate attorney fees

HELD: The Kowalskis are aggrieved here because Diehl has been awarded fees out of estate funds, which leaves less money to eventually pass on to the Kowalskis. But neither Kowalski is a beneficiary of Mouchague's will—the only beneficiary is the trust. The Kowalskis lack standing to pursue an action on their own behalf when the appropriate party would be the trustee. But an exception would allow them to pursue this action if they could prove that the trustee failed to protect their interests as beneficiaries. The Kowalskis failed to prove that the trustee improperly failed to protect their interests in trust property. In light of this absence of proof, only the trustee has standing to appeal. Documents provided to the court show that Diehl is entitled to appellate attorney fees. But the motion failed to include the detailed affidavit that is required by Rule 7.07(b)(2). In the absence of that required affidavit, the motion for fees is denied.

STATUTES: Kansas Constitution, Article 3, § 1; K.S.A. 58a-816(24), -1001(a), 59-1717, -2224



constitutional law—criminal law—evidence—statutes
state v. warnke
dickinson district court—reversed
No. 118,738—May 3, 2019

FACTS: Auto driven by Warnke collided with horse-drawn open two-wheeled buggy traveling on K-43, resulting in death of horse and injuries to the two boys in the buggy. Some evidence that Warnke may have been on her cell phone right before the accident. Jury found Warnke guilty of felony reckless aggravated battery and misdemeanor criminal damage to property.  Warnke also convicted on two traffic infraction charges tried to the court. On appeal Warnke challenged the sufficiency of the evidence supporting her convictions, arguing the record contains at most evidence of inattentive driving, and no evidence she acted knowingly. She also argued the phrase “can be inflicted” in the aggravated battery statute is unconstitutionally vague. 

ISSUES: (1) Aggravated battery, (2) misdemeanor criminal damage to property, (3) constitutionality of K.S.A. 2018 Supp. 21-5413(b)(2)(B)

HELD: Reckless aggravated battery statute, requiring a showing of reckless conduct, is contrasted with vehicular homicide statute which does not require proof of reckless or intentional misconduct. Speaking on a cell phone while driving is not a violation of Kansas traffic laws. In this case, Warnke clearly was at fault for failing her common-law duty to keep a proper lookout of the road ahead, but her misconduct did not reach the high threshold for a felony criminal conviction for reckless aggravated battery. Convictions on those two charges are reversed.

            Warnke was aware that she was talking on cell phone as she drove down the highway, but evidence does not support that she was aware that talking on cell phone while driving was reasonably certain to cause her collision with the buggy. Conviction for criminal damage to property is reversed. 

            Warnke’s constitutional claim is dismissed as moot.

STATUTES: K.S.A. 2018 Supp. 21-5202(b), -5202(c), -5202(i), -5202(j), -5406, -5406(a), -5406(c), -5413(b)(2), -5813(a)(1), -5813(c)(3); K.S.A. 2016 Supp. 8-15,111, 21-5413(b)(2)(A), -5413(b)(2)(B), -5813(a)(1), -5813(c)(3); K.S.A. 21-3405

This post has not been tagged.

Share |
PermalinkComments (0)

April 26, 2019 Digest

Posted By Administration, Monday, April 29, 2019

Kansas Supreme Court



NO. 114,153 – APRIL 26, 2019

FACTS: Senate Bill 95 bans the most common type of second-trimester abortion, referred to in medical terms as Dilation and Evacuation (D&E). Doctors Hodes and Nauser, who perform both regular abortions and D&Es, sought to temporarily enjoin SB 95 on grounds that it violates sections 1 and 2 of the Kansas Constitution Bill of Rights. The State objected, arguing both that the Kansas Constitution does not provide a right to abortion or, in the alternative, that SB 95 is not unduly burdensome. The district court agreed with the doctors and issued the temporary injunction. The State immediately appealed and the Kansas Court of Appeals, sitting en banc, affirmed the district court by splitting 6-1-7. The State's petition for review was granted.

ISSUES: (1) Establishing a constitutional right; (2) level of scrutiny

HELD: Sections 1 and 2 of the Kansas Constitution Bill of Rights have much the same effect as the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution, but the Kansas Supreme Court has the right to interpret the amendments more expansively than do federal courts who interpret the corresponding federal provisions. Section 1 of the Kansas Constitution Bill of Rights acknowledges rights that are distinct from and broader than the United States Constitution. This includes the right to personal autonomy and, in turn, the right of a woman to make her own decisions regarding her body, health, and family formation. The State may encroach on these natural rights only with a compelling justification. The fundamental right implicated here demands that strict scrutiny be used to evaluate the proposed legislation; the court rejects the Casey standard of "undue burden." Even though the district court used an undue burden standard the error is harmless. The district court correctly issued the temporary injunction because the doctors proved that they are substantially likely to prevail on their claim that SB 95 does not promote a compelling government interest.    

CONCURRENCE: (Biles, J.) The correct result was reached, including the findings on the meaning of section 1 of the Kansas Constitution. But the strict scrutiny established by the majority offers little guidance for application or how to differentiate from the undue burden standard.  

DISSENT: (Stegall, J.) The majority's decision fundamentally alters the structure of our government. Section 1 of the Kansas Constitution Bill of Rights is a guarantee of the right of republican self-government. Instead of using a strict scrutiny analysis as relates to a fundamental right, the proper standard is "rational basis with bite." The linchpin of the analysis is questioning what Kansas citizens have authorized the legislature to do on their behalf. Here, the analysis would question whether SB 95 is reasonably related to the furtherance or protection of the common welfare.

STATUTES: Kansas Constitution Bill of Rights, sections 1 and 2

Tags:  8805  Shawnee District  Vol. 88  Weekly20190430 

Share |
PermalinkComments (0)

April 19, 2019 Digests

Posted By Administrator, Monday, April 22, 2019

Kansas Supreme Court



NO. 116,167—APRIL 19, 2019

FACTS: Knoll filed a claim for workers compensation coverage and requested a hearing. The claim did not proceed to final hearing within three years, so the school district moved for dismissal. The ALJ denied that request, holding that under K.S.A. 2009 Supp. 44-523(f) Knoll had five years to either proceed to final hearing or request an extension of time. The Board affirmed that holding but the Court of Appeals reversed, finding that K.S.A. 2011 Supp. 44-523(f)(1) controlled Knoll's claim and required either a final hearing or a motion within three years. Knoll's petition for review was granted.

ISSUE: (1) Which version of K.S.A. 44-523 controlled Knoll's claim

HELD: The only issue is which version of the statute controls—the 2009 version, which allows five years, or the 2011 version, which allows three years. The beginning point for applicable law in a workers compensation case is the date of injury. For Knoll, that was in 2009. But when a law changes, the amendments apply to the worker if the changes are procedural in nature. Statutes of limitation are considered procedural, and the 2011 amendments to K.S.A. 44-523 were very similar to a statute of limitation. And the changes went into effect before Knoll filed her application for hearing. K.S.A. 2011 Supp. 44-523(f)(1) applies to any cases that were pending during its enactment where the claimant did not file an application for hearing until after the 2011 amendments took effect.

DISSENT: (Rosen, J.) The 2011 changes to K.S.A. 44-523 do not create a three-year time limit. While the 2011 statute was the correct one to apply to Knoll's claim, it does not bar the ALJ from considering Knoll's request for an extension of time.

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

NO. 117,344—APRIL 19, 2019

FACTS: Lambert filed a medical malpractice action as the administrator of the estate of Stan Novak. All defendants filed motions to dismiss on grounds that Lambert's petition was barred by the statute of limitations; file stamps on the petition showed it was filed one day after the two-year limitations period expired. Lambert responded by claiming that she electronically filed the petition within the statute of limitations but it was rejected by the clerk's office. Once she learned of the rejection she made the required changes and uploaded the petition for a second time, although it was outside of the statute of limitations. Lambert argued that the petition should be deemed filed as of the date of payment. The district court heard the motion, at which Lambert provided no testimony and presented no affidavit or declaration. The district court ruled that it was unable to equitably extend the statute of limitations and dismissed the action. Lambert appealed and the Supreme Court took the case on transfer.

ISSUE: (1) Date of filing

HELD: It is undisputed that the limitations period ran two years following Novak's death, and it is undisputed that the petition was filed one day after that date. Lambert's claim that the petition was actually filed on that date is not supported by any evidence in the record on appeal. Lambert had the opportunity to present evidence, through an affidavit or declaration, but she failed to do so. Lambert also failed to present the actual documents that were transmitted in her first attempt to electronically file the petition. Lambert's failure to present adequate evidence means the district court's ruling must be affirmed.

STATUTES: K.S.A. 2018 Supp. 60-212(d), -256, -656(c)(2), -656(e)(2); K.S.A. 60-513(a)(4), -513(a)(5), -513(a)(7)

NO. 115,763—APRIL 19, 2019

FACTS: Glaze claimed that he was injured while working for J.K. Williams, LLC, and he filed a motion for hearing. In 2016, Williams moved to dismiss claiming that Glaze's claim should be dismissed because the claim had been neither heard nor settled within three years of filing the application for hearing. After the motion was filed, Glaze filed a request for extension of time. The ALJ granted Williams' motion to dismiss, finding that K.S.A. 2011 Supp. 44-523(f)(1) required dismissal because Glaze did not request an extension of time within three years of the filing of his application for hearing. This decision was confirmed by the Workers Compensation Board of Appeals and again by the Court of Appeals. Glaze's petition for review was granted.

ISSUE: (1) Requirements of K.S.A. 2011 Supp. 44-523(f)(1)

HELD: K.S.A. 2011 Supp. 44-523(f)(1) unambiguously prohibits an ALJ from granting an extension of time unless the motion for extension has been filed within three years of the filing of the application for hearing.

DISSENT: (Rosen, J.) Justice Rosen would look beyond the majority's grammatical reasoning when considering ambiguity. This statute is susceptible to multiple interpretations and for that reason, he believes the Legislature intended the three-year time limit to apply to a conclusive presumption of good cause.

STATUTE: K.S.A. 2011 Supp. 44-523(f)(1)


consTitutional law—criminal law—criminal procedurE—evidence—motions—sentences—statutes
state v. boysaw
sedgwick district court—affirmed
court of appeals—affirmed
NO. 112,834—april 19, 2018

FACTS: Boysaw was charged with aggravated indecent liberties with a child. He filed motion in limine to bar evidence of his criminal history or uncharged conduct. Finding probative value of the proffered evidence was not outweighed by prejudicial effect, district court allowed State to introduce evidence of Boysaw’s 1987 Nebraska sexual assault conviction, for purposes of showing both propensity and motive or intent and absence of mistake. Jury convicted Boysaw on the charged offense. Life sentence without parole imposed.  Boysaw appealed claiming: (1) State provided insufficient evidence his conduct was intended to arouse or satisfy sexual desires; (2) admission of evidence of the Nebraska conviction violated fair trial guarantees in U.S. and Kansas constitutions; (3) district court erred in weighing probative value of prior conviction evidence against prejudicial effect; and (4) error to use the Nebraska conviction to sentence him as a habitual sex offender. Court of appeals affirmed, 52 Kan. App. 2d 635 (2016). Review granted.

ISSUES: (1) Sufficiency of the evidence; (2) constitutionality of K.S.A. 2018 Supp. 60-455(d); (3) probative value of prior conviction versus prejudicial effect; (4) sentencing

HELD: Evidence of Boysaw’s intent was circumstantial but compelling enough on the record to provide more than sufficient evidence to prove elements of the crime.

K.S.A. 2018 Supp. 60-455(d) does not violate federal constitutional protections. Court outlines law in effect for admission of evidence under K.S.A. 60-455 in State v. Prine, 287 Kan. 713 (2009)(Prine I), the Legislature’s amendment of the statute in response, and rejection of the ex post facto challenge to application of the amended statute in State v. Prine, 297 Kan. 460 (2013)(Prine II). Given the historical use of propensity evidence in Kansas, coupled with safeguard of weighing probative against prejudicial effect of the evidence, the statute does not offend any principle of justice so rooted in traditions and conscience of the people of Kansas that it must be deemed fundamental. State constitutional argument is not decided because Boysaw failed to adequately brief why a different result should follow under state guidelines. Long history of coextensive analysis of rights under the two constitutions is noted for consideration in any future argument on this issue.

K.S.A. 2018 Supp. 60-455 and Fed.R.Civ.P. 403 are compared. In Kansas, the weighing of probative value versus prejudicial effect is a judicial construct rather than rule based. Factors to be considered in that weighing are set forth. In this case, district court’s analysis of the admissibility of K.S.A. 2018 Supp. 60-455(d) evidence is approved and upheld.

Boysaw abandoned his claim that the Nebraska conviction did not qualify as a sexually violent crime in Kansas, and his challenge to the constitutionality of K.S.A. 2018 Supp. 21-6626 was defeated by controlling caselaw.

STATUTES: K.S.A. 2018 Supp. 21-5506(b)(3), -6626, 60-455, -455(d); K.S.A. 2012 Supp. 21-5506(b)(3)(A), -5506(c)(3); K.S.A. 2009 Supp. 21-4642; K.S.A. 60-455

appeals—criminal procedure—motions—sentences—statutes
state v. murdock
shawnee district court—reversed and remanded
NO. 117,315—april 19, 2019

FACTS: Murdock was convicted of aggravated robbery and robbery. On appeal, Kansas Supreme Court reversed and remanded for resentencing, finding Murdock’s prior out-of-state convictions must be scored as nonperson offenses, and holding the comparable Kansas offense should be determined as of the date the out-of-state offenses were committed. 299 Kan. 312 (2014). At resentencing, district court applied Murdock and scored the out-of-state convictions as nonperson felonies, resulting in a criminal history of C instead of A. Six months later, State v. Keel, 302 Kan. 560 (2015), overruled Murdock, holding the comparable Kansas offense is the one in effect at the time the current crime of conviction was committed. State then moved to correct Murdock’s sentence. District court granted the motion and sentenced Murdock a third time, finding a criminal history score of A. Murdock appealed, arguing his second sentence was legally imposed under Murdock, and did not become illegal after Keel changed the law. While his appeal was pending, the legislature amended K.S.A. 22-3504 to state a sentence is not made illegal by a change in the law after the sentence is pronounced. Case transferred to Kansas Supreme Court, which granted supplemental briefing on retroactive application of the amended statute, and on Murdock’s alternative argument based on State v. Wetrich, 307 Kan. 552 (2018).

ISSUE: (1) Legality of sentence

HELD: Under K.S.A. 22-3504, the legality of a sentence is controlled by the law in effect at the time the sentence was pronounced. Therefore, a sentence that was legal when pronounced does not become illegal if the law subsequently changes. K.S.A. does not give either party the benefit of later changes in the law, but does give both parties the opportunity to revisit a merits determination of legality in the limited circumstance when there is reason to think that determination was wrong in the first place. Here Murdock’s second sentence was legally imposed according to the Murdock mandate, and Keel did not render Murdock’s second sentence illegal. Reversed and remanded to reinstate Murdock’s lawful sentence. Applicability of Wetrich and retroactivity of the amendment to K.S.A. 22-3504 is not considered.

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

STATUTES: K.S.A. 2018 Supp. 22-3504, -3504(3); K.S.A. 2015 Supp. 21-6810(d)(2), -6811(e)(3); K.S.A. 21-4711(e), 22-3504, -3504(1) 

criminal law—criminal procedure—jury instructions
state v. qualls
shawnee district court—reversed and remanded
NO. 115,648—april 19, 2019

FACTS: Qualls convicted of premeditated first-degree murder. Conviction reversed, based on district court’s failure to give lesser included offenses instructions. 297 Kan. 61 (2013). On retrial, jury again found him guilty of premeditated first-degree murder. Qualls appealed on issues including alleged error in not granting a defense request for a self-defense instruction.

ISSUE: (1) Self-defense instruction

HELD: State v. Haygood, 308 Kan. 1387 (2018), clarified the objective and subjective requirements that must be met to receive a self-defense instruction, and the kind of evidence that suffices to meet those requirements. In the present case, a self-defense instruction was legally appropriate, and under Haygood, Qualls’ testimony was sufficient to make the self-defense instruction factually appropriate. Under facts in this case, denying the requested self-defense instruction was error, and the error was not harmless. Reversed and remanded to district court.

STATUTE: K.S.A. 2017 Supp. 21-5108(c), -5222

constitutional law—criminal law—criminal procedure—evidence—motions—sentences—statutes
state v. razzaq
sedgwick district court—affirmed; court of appeals—affirmed
NO. 114,325—April 19, 2019

FACTS: Razzaq was convicted of aggravated indecent liberties with a child. Court of appeals affirmed the conviction in an unpublished opinion. Razzaq’s petition for review granted on claims that: (1) district court erred in allowing a State witness to introduce fact of Razzaq’s prior convictions in Missouri for sex crimes, (2) K.S.A. 2918 Supp. 60-455(d) violates Kansas Constitution’s right to fair trial; (3) Court of appeals inadequately addressed the speedy trial issue raised in supplemental briefing; and (4) constitutional error to use prior convictions to enhance sentence.

ISSUES: (1) Probative value of prior convictions versus prejudicial effect; (2) constitutionality of K.S.A. 2018 Supp. 60-455(d) under Kansas Constitution; (3) speedy trial; (4) sentencing

HELD: As held in State v. Boysaw (Case No. 112,834, decided this date), safeguards in Kansas courts for admission of evidence of other bad acts resemble Federal Rule of Evidence 403, requiring a district court to weigh probative value of such evidence against the danger of unfair prejudice. In this case, the district court implicitly weighed the probative value of evidence of the Missouri convictions against danger of undue prejudice and did not abuse its discretion in admitting the evidence.

No violation of the Kansas Constitution. To the extent Razzaq argues that other states have found state constitutional violations in their bad-acts evidentiary statutes, no similarity to Kansas Constitution is shown.

District court and court of appeals correctly determined that the record does not support Razzaq’s speedy trial claims.

Constitutional challenge to Razzaq’s sentence is defeated by State v. Ivory, 273 Kan. 33 (2002).       

STATUTES: K.S.A. 2018 Supp. 22-3402(b), 60-455(d); K.S.A. 2013 Supp. 60-455(d); K.S.A. 21-3504(a)(1) 

criminal procedure—jurisdiction—motions —post-conviction relief
stAte v. robertson
butler district court—affirmed
NO. 118,427—april 19, 2019

FACTS: Robertson was convicted of first-degree murder, arson, and aggravated burglary. The Kansas Supreme Court affirmed the convictions and sentences on direct appeal, 279 Kan. 291 (2005), and rejected various post-conviction motions seeking relief under K.S.A. 22-3504 and K.S.A. 60-1507. Robertson then invoked jurisdiction under K.S.A. 22-3504 to file motion to correct illegal sentence and motion to dismiss for lack of jurisdiction. He alleged fatal defect in the charging document because it named him as an individual rather than sovereign, and used an incorrect (non-trust) version of his name. He also reserved rights not to perform under Kansas statutes that he construed as commercial contracts. District court summarily denied relief. Robertson appealed.

ISSUES: (1) Motion to correct illegal sentence; (2) motion to dismiss and K.S.A. 60-1507

HELD: Robertson cannot collaterally attack a conviction through a motion to correct an illegal sentence filed under K.S.A. 2018 Supp. 22-3504 that claims a defective complaint meant the district court lacked jurisdiction to convict. Personal jurisdiction distinguished from Robertson’s reliance on subject matter jurisdiction caselaw.

K.S.A. 2018 Supp. 22-3504 provides no statutory basis for jurisdiction over  Robertson’s motion to dismiss. Even if liberally construed as a motion under K.S.A. 2018 Supp. 60-1507, the motion would be procedurally barred as successive and filed out of time.

STATUTES: K.S.A. 2018 Supp. 22-3504, -3504(1), -3504(3), -3601(b)(3), 60-1507, -1507(c), -1507(f)(1), -1504(f)(2); K.S.A. 22-3504, 60-1507 

Kansas Court of Appeals


NO. 119,536—APRIL 19, 2019

FACTS: M.S. and E.L. were in a same-sex relationship but never married. E.L. conceived two children during the relationship, using artificial insemination. There was never a written agreement regarding parentage and it is undisputed that M.S. is not a biological parent and never adopted the children. There was testimony that M.S. was not very involved during the pregnancy and made few decisions regarding the care of the children. After the couple split, M.S. saw the children regularly but E.L. had concerns over whether M.S. was a fit parent. M.S. filed a parentage action. After a trial, the district court concluded that even if M.S. could establish a presumption of parentage under the Kansas Parentage Act, E.L. rebutted that presumption by proving that M.S. failed to meet the criteria of a functional parent.  

ISSUES: (1) Presumption of parentage; (2) rebuttal of presumption; (3) best interests analysis; (4) equal protection

HELD: Under the KPA, an unmarried person seeking to establish a parent-child relationship with a child conceived using artificial reproductive technology must attempt to do so by using the procedure established by the KPA. Although there was no written acknowledgment of parentage in this case, the district court seemed to apply the presumption, to M.S.'s benefit. Although it would have been better to have explicitly done that analysis, any failure by the district court to do so was harmless. The absence of a written agreement makes it difficult to interpret the parties' intent. In the absence of that written agreement, E.L. met her burden to overcome the presumption in favor of M.S. This is especially true because the district court found E.L. to be more credible than M.S., and credibility determinations are not reviewable on appeal. The district court was not required to make a best interests finding, but doing so was not erroneous. M.S. fails to prove that the KPA treats classes of people differently.

STATUTE: K.S.A. 2018 Supp. 23-2204, -2205, -2208(a), -2208(a)(4), -2208(b), -2220, -2302, -2303, 59-2114, -2115

Tags:  Butler District  Crawford District  Sedgwick District  Shawnee District  Weekly20190423  Workers Comp  Wyandotte District 

Share |
PermalinkComments (0)

April 9 and April 12, 2019 Digests

Posted By Administration, Monday, April 15, 2019

Kansas Supreme Court


Attorney Discipline

NO. 20,699—APRIL 9, 2019

FACTS: In a letter dated April 1, 2019, Patrick George Copley surrendered his license to practice law in Kansas. At the time of surrender, two disciplinary complaints were pending with the Disciplinary Administrator.

HELD: The Court accepts the surrender of Copley's license and orders that he be disbarred.



NO. 113,412 – APRIL 12, 2019

FACTS: Graber was injured after he fell down some stairs while at work. Graber did not remember the accident, and there were no witnesses or any evidence to suggest how the accident happened. Graber applied for workers compensation benefits. An ALJ awarded him benefits, finding that the injury arose in and out of the course of his employment. Dillon appealed, claiming that because the cause of the accident was unknown, Graber's injuries arose from an idiopathic cause and were not compensable. The Board agreed with Dillon, holding that after 2011 amendments to the workers compensation statutes, idiopathic falls are not compensable. The Court of Appeals reversed, holding that "idiopathic" means something personal or innate to the claimant. The Supreme Court granted Dillon's petition for review.

ISSUES: (1) First impression question of the meaning of the term "idiopathic causes"

HELD: The legislative history does not address the "idiopathic causes" exclusion. "Idiopathic" means more than "spontaneous" or "unknown." Rather, it is connected with medical conditions and is not a synonym for all unknown causes. For that reason, the idiopathic exclusion is narrow. It applies only if there is proof that an injury or accident arose directly or indirectly from a medical condition or medical event of unknown origin which is peculiar to the claimant. The case must be remanded for further factfinding by the Board.

STATUTE: K.S.A. 2018 Supp. 44-501b(b), -508(f), -508(f)(3)(A)(iii), -508(f)(3)(A)(iv), 77-621(a), -621(c), -621(d)


Kansas Court of Appeals



NO. 118,688—APRIL 12, 2019

FACTS: Short was involved in an accident which required the amputation of both legs—one below the knee and one above the knee. Short requested that Blue Cross and Blue Shield of Kansas, Inc. provide coverage for multiple prosthetics. One of the requested prosthetics was an Ottobock X3 Microprocessor leg and knee. Blue Cross denied coverage, citing the insurance contract which excluded from coverage "deluxe or electrically operated" prosthetics. Blue Cross acknowledged that a prosthetic leg was medically necessary, and it offered to pay the price of a standard knee. Short believed that Blue Cross should pay for the Ottobock X3, and he sued for breach of contract. During discovery Short requested documents beyond the insurance contract in an attempt to delve in to the policy behind Blue Cross' denial. Blue Cross refused to provide them, on grounds that the case was a straightforward contract dispute. The district court agreed and refused to compel production of the documents requested by Short. The district court granted Blue Cross' motion for summary judgment, finding that the Ottobock X3 was clearly excluded from coverage by the plain language of Short's insurance policy. Short appealed.

ISSUES: (1) Whether insurance policy is ambiguous; (2) listings of exclusions; (3) summary judgment review; (4) scope of discovery

HELD: There is no dispute that a prosthetic knee is medically necessary for Short. The insurance policy provides enough detail to support the district court's ruling that the policy is not ambiguous. The policy covers a nonelectric device that does what is absolutely necessary to treat the insured's condition. If the insured wants a device that does more, Blue Cross will pay for a standard device and the insured can pay the difference. Because the policy is unambiguous, there is no need to apply doctrines of construction. This insurance policy does not contravene public policy. It is undisputed that the Ottobock X3 is an electronically operated device, which is excluded by the plain language of Short's insurance policy. This case centers on application of a limitations clause, which involves questions of fact. For this reason, Short should have been given access to the documents he requested in discovery. The district court abused its discretion by failing to compel discovery. But the error was harmless.

DISSENT: (Atcheson, J.) There is some ambiguity in the insurance contract and there remain questions of fact. For that reason, summary judgment was inappropriate. This case should be remanded for further proceedings.

STATUTES: No statutes cited.



NO. 119,520—APRIL 12, 2019

FACTS: After receiving a tip, officers found Manwarren lying in a ditch. When the officers arrived on the scene Manwarren rose to greet them. The officers began a welfare check and noted there was no indication of criminal activity, and Manwarren did not appear to be injured or intoxicated. Officers asked for and received Manwarren's photo ID. Instead of returning the card to Manwarren, officers ran a warrant check which returned a warrant for failure-to-appear. After confirming the warrant, Manwarren was arrested. After he was handcuffed, Manwarren answered officers' questions by admitting that he had drugs and scales in his backpack. Manwarren was charged with various crimes relating to this drug possession. Prior to trial, he filed a motion to suppress in which he claimed that the police impermissibly converted a welfare check to an investigatory detention without having reasonable suspicion of criminal activity. The district court agreed, finding that running a warrant check was beyond the scope of a welfare check where there was no reasonable suspicion of criminal activity. The State appealed.

ISSUES: (1) Voluntariness of the encounter; (2) application of the attenuation doctrine

HELD: The encounter between police and Manwarren began as a welfare check. But once the officer obtained and then kept Manwarren's identification card, the encounter turned into a seizure. In the absence of any evidence of criminal activity, the warrant check went beyond the scope of a welfare check and evolved into an illegal detention.  Very little time elapsed between the illegal seizure of Manwarren and the discovery of the drugs in his backpack. Police officers were polite and courteous and did not appear to know they were violating Manwarren's rights. But running a warrant check as part of a welfare check is not a good-faith mistake. It is misconduct and should be punished by excluding the evidence discovered.

STATUTES: No statutes cited.


Tags:  Disbarment  Reno District  Saline District 

Share |
PermalinkComments (0)

April 5, 2019 Digest

Posted By Administration, Monday, April 8, 2019

Kansas Court of Appeals




NO. 120,019—APRIL 5, 2019

FACTS: When Rebecca Bahlmann filed for divorce, she received ex-parte temporary orders for custody and parenting time. After an extensive hearing, the district court adopted Rebecca's parenting plan. Bruce later filed several motions including the one at issue here—a motion to modify child custody in which he claimed that Rebecca had become physically and emotionally abusive to the children. Rebecca moved to dismiss these motions, denying any material change in circumstances. The parties filed a joint motion for mediation, and Bruce's attorney filed a motion for hearing on that motion. Rebecca appeared at the hearing with counsel and Bruce appeared only through counsel. At the hearing, the district court addressed Bruce's motion to modify and Rebecca's motion to dismiss that motion. Finding that Bruce's motion lacked specificity, the district court granted Rebecca's motion to dismiss the motion to modify. Bruce appealed.

ISSUES: (1) Standard to evaluate motion to dismiss; (2) merits of Bruce's motion to modify; (3) notice requirement

HELD: The district court had a good reason to not assume the truth of Bruce's factual allegations. Unlike a regular civil case, a motion to modify child support is different and the district court has the benefit of much more information. A child custody decree is res judicata with respect to facts existing at the time of the decree. A change is made only if there is a material change in circumstances. K.S.A. 2018 Supp. 23-3219(a) requires that allegations must be made with specificity, and that the moving party must file a verification or accompanying affidavit. Bruce's motion was not accompanied by an affidavit, although it purports to be a verified motion. Because there was never an agreed parenting plan between Rebecca and Bruce, he had the burden to show a material change of circumstances. The claims that Bruce put forward were not verified factual assertions and they lacked specificity as to time and place. If neither party requests oral argument, a district court may either set the matter for hearing or rule on the motion without a hearing. After Bruce and Rebecca filed their motions, the district court waited the requisite seven-day response time. Although ruling on the motion at a hearing that was ostensibly being held to consider the parties' motion for mediation is not ideal, it is also not error.

STATUTES: K.S.A. 2018 Supp. 23-3218, -3218(a), -3219(a), 60-206(c)(1), -207(a); K.S.A. 53-502(c)

This post has not been tagged.

Share |
PermalinkComments (0)

March 29, 2019 Digests

Posted By Administrator, Monday, April 1, 2019

Kansas Supreme Court


NO. 113,563—MARCH 29, 2019

FACTS: Peters supervised a cattle feedlot. He started the job in 2006, working for Hitch Enterprises as an employee-at-will. Hitch sold the business to Deseret Cattle Feeders in 2010. When the sale was announced, employees were told that there would be no layoffs and that employees would be retained by Deseret as long as they did their jobs. This message was reinforced by Deseret after it took control of the operation. Peters continued to work in his existing position. He signed several contracts with Deseret but none that specified that he was working as an employee-at-will. Peters was terminated in 2011 because of a reduction in Deseret's workforce—there was no evidence of misconduct or poor job performance. Peters filed suit claiming breach of an employment contract. The district court granted Deseret's motion for summary judgment, finding there was no evidence of an implied-in-fact employment contract. The court of appeals reversed, finding that disputed facts precluded summary judgment. The Supreme Court granted Deseret's petition for review.

ISSUES: (1) Existence of implied-in-fact employment contract; (2) promissory estoppel claim

HELD: Parties can become contractually obligated by conduct or words. An implied contract must be mutual and cannot be created solely by an employee's subjective understanding of employment terms. The parties' intent is a fact question for a jury. The comments made by Deseret when it purchased Hitch create a jury question about whether an implied-in-fact contract existed. For that reason, summary judgment was inappropriate and the court of appeals correctly reversed the district court. A question remains about whether Peters' employment with Deseret was at-will or through an implied-in-fact contract. Any estoppel issue must be addressed on remand.

STATUTE: K.S.A. 60-256

NO. 117,933—MARCH 29, 2019

FACTS: Easterberg was charged with rape and aggravated criminal sodomy in 2007. But he pled guilty to other offenses, and the sex crime charges were dismissed under the plea agreement. The journal entry of sentencing did not reflect that Easterberg's crimes were sexually motivated. Prior to Easterberg's release from prison, the Department of Corrections provided notice that Easterberg might meet the criteria of a sexually violent predator under the Kansas Sexually Violent Predator Act. The attorney general filed a petition seeking to have Easterberg civilly committed. Easterberg challenged the motion, claiming he did not fit the statutory criteria for a sexually violent predator. The district court disagreed, and Easterberg filed this original action in habeas corpus with the Kansas Supreme Court.

ISSUES: (1) Original jurisdiction; (2) eligibility for civil commitment

HELD: The State's argument that the court lacks jurisdiction because it could not have heard the case in 1859—at the adoption of statehood—is rejected. The state constitution allows the court to hear original actions and Supreme Court Rule 9.01 provides details on how parties should proceed. If Easterberg is truly not subject to the KSVPA, any proceeding under that Act is illegal. Merely being charged with a sexually violent offense is insufficient to trigger involuntary commitment under the KSVPA. The district court found at sentencing that Easterberg's crime was not sexually motivated. But there is no evidence about whether that was truly the case, or whether there was little incentive to make such factual findings because of Easterberg's guilty plea. For this reason, the case must be remanded for a determination as to whether Easterberg's sexual motivation was litigated in the criminal case. If it was, the State is estopped from arguing to the contrary in this proceeding, and Easterberg is ineligible for civil commitment. If it was not, the KSVPA proceeding may continue.

CONCURRENCT AND DISSENT: (Johnson, J., joined by Luckert, J., and Malone, S.J.) The journal entry of sentencing is clear. There is no need to remand this case for more factfinding; the court should rely on the district court's prior finding that Easterberg's crime was not sexually motivated.

DISSENT: (Stegall, J.) Original actions in habeas corpus cannot take the place of appeals. Easterberg had remedies available in district court and should have used them. But since the court took jurisdiction, remand is the appropriate next step.

STATUTES: Kan. Const. art. 3, § 3; K.S.A. 2017 Supp. 59-29a02(a), -29a02(c), -29a02(d), -29a02(e), -29a02(e)(1), -29a02(e)(5), -29a02(e)(13), -29a03(a), -29a03(h), -29a04(a), -29a05(a), -29a06(a), -29a07(g), -29a20



appellate procedure—criminal procedure—motions
state v. phillips
sedgwick district court—affirmed
no. 115,431—march 29, 2019

FACTS: Phillips was convicted of offenses including first-degree felony murder. The Supreme Court affirmed the convictions and prison terms, but vacated district court’s order of post-release supervision for life. State v. Phillips, 295 Kan. 929 (2012). Mandate issued in February 2013, with no order of remand. In August 2014 hearing, district court set aside the post-release supervision order. In March 2015, Phillips filed motion for a new trial  based on newly discovered evidence. District court denied the motion as time barred because it was filed more than two years after the February 2013 mandate. Phillips appealed, arguing the final judgment date for starting the statutory two-year period was in August 2014 when the district court conducted the “remand hearing.” 

ISSUE: (1) Motion for a new trial—date of mandate

HELD:  A district court’s judgment becomes final the date the mandate is issued, except in cases where remand instructions are given and further proceedings are necessary. In this case, the February 2013 mandate was fully determinative of the issues and therefore rendered the judgment final. District court correctly found Phillips’ motion was untimely filed.

STATUTES: K.S.A. 2018 Supp. 22-3601(b)(3), -3601(b)(4); K.S.A. 2016 Supp. 22-3501; K.S.A. 22-3501, -3501(1), 60-1507, -2106(c)


appeals—appellate procedure—criminal procedure—motions—sentencing
state v. salary
wyandotte district court—affirmed
no. 116,406—march 29, 2019

FACTS: Salary was convicted of first-degree premeditated murder and arson. A hard 50 life sentence was imposed for the murder conviction. The Supreme Court affirmed the convictions but vacated the hard 50 and remanded for resentencing. State v. Salary, 301 Kan.586 (2015).  On remand, State chose to seek a hard 25 life sentence which a judge could constitutionally impose without a jury. At resentencing, the district court imposed the hard 25 sentence and denied Salary’s various pro se motions and letters, finding Salary was arguing issues that were raised or should have been raised in his direct appeal. Salary appealed claiming: (1) district judge erred in denying the motion to dismiss that Salary filed between his first appeal and his resentencing; (2) ineffective assistance of trial and appellate counsel; (3) district judge erred in denying Salary’s request for exculpatory evidence; and (4) district judge was biased and denied Salary right of allocution at resentencing hearing by not allowing him to present evidence of innocence.  

ISSUES: (1) Motion to dismiss, (2) ineffective assistance of counsel, (3) request for exculpatory evidence, (4) allocution

HELD:  Record in this case is reviewed under doctrine of res judicata, finding the district court did not err in denying Salary’s motion to dismiss at the resentencing hearing.

            Salary failed to argue below that trial counsel’s performance was deficient regarding the admission at trial of photographs of the deceased, and the record had insufficient information to analyze this issue for first time on appeal. Salary’s claim of ineffective assistance by appellate counsel is rejected.

              Reviewing the record, it is not clear what exculpatory evidence Salary seeks that he does not already have. Salary failed to provide record citations or supporting authority for this claim, or explain why the issue is properly before the court. The Issue is deemed waived or abandoned for noncompliance with court rules. 

            On remand, the hard 25 was the only available sentence once the State decided not to seek the hard 50, making any allocution error harmless.

STATUTES: K.S.A. 2018 Supp. 22-3424(e), -3424(e)(4), -3601(b)(3), -3601(b)(4); K.S.A. 2015 Supp. 22-3212; K.S.A. 2013 Supp. 22-3424(e)(4); K.S.A. 21-4636(f), 60-1507


Kansas Court of Appeals


NO. 118,666— MARCH 29, 2019

 FACTS: Nye obtained KBA files relating to the 1959 murder of the Clutter family. The State filed an ex parte petition asking the district court to temporarily and then permanently enjoin Nye from the sale, publication, replication, or distribution of any of the materials. The district court issued an ex parte temporary restraining order and then, after a hearing, a preliminary injunction. After several rounds of motions and hearings, the district court dissolved the preliminary injunction after finding that it should never have been granted. Nye then filed a motion for attorney fees which was granted in an amount in excess of $150,000. The State appealed.

ISSUES: (1) Sovereign immunity; (2) injunction-bond rule; (3) reasonableness of attorney fees awarded; (4) award of appellate fees and costs

HELD: Sovereign immunity is jurisdictional. K.S.A. 60-905(b) addresses the State's liability for attorney fees if a temporary injunction is found to have been improvidently granted. In addition, case law provides that waiver can be premised on litigation conduct. The State's liability exists even though it was not statutorily required to post a bond at the time the temporary injunction was granted. Under K.S.A. 60-905(b), recovery is limited to fees actually and proximately resulting from the effect of the temporary injunction itself. The attorney fees ordered by the district court were reasonable under the circumstances. This appeal exists because the State challenged the district court's attorney fee award, which makes an award of appellate fees and costs permissible. Appellate fees and costs are awarded. But the amount billed by counsel was excessive, and the award is for a lower amount.

STATUTE: K.S.A. 60-905(b)


Tags:  Author: Patti Van Slyke 

Share |
PermalinkComments (0)

No New Decisions Published on Friday, March 22

Posted By Administration, Monday, March 25, 2019
The appellate courts did not issue any new published opinions on March 22, 2019. Therefore, there are no new digests for this date.

This post has not been tagged.

Share |
PermalinkComments (0)
Page 4 of 14
1  |  2  |  3  |  4  |  5  |  6  |  7  |  8  |  9  >   >>   >|