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July 12, 2019 Digests

Posted By Administrator, Tuesday, July 16, 2019
Updated: Monday, July 15, 2019

Kansas Supreme Court


Court of Appeals—AFFIRMED
NO. 117,368—July 12, 2019

FACTS: These proceedings involve five of Mother's six children. Two of the children were born in Kansas. All of the children were subject to child in need of care proceedings while living in California. After a fight with her husband, Mother brought the children to Kansas without telling anyone. The California court revoked the children's physical placement with Mother and ordered them returned to California. The children returned, and the California court began to inquire about a possible placement with the children's grandmother, who resides in Kansas. In June 2015, the California court cited the UCCJEA and transferred the case to Kansas. After several years working on reintegration, the State sought termination of Mother's parental rights. At a hearing, Mother argued that Kansas lacked jurisdiction. The district court overruled Mother's concerns about jurisdiction and, after hearing evidence, terminated her parental rights. In a divided opinion, the Court of Appeals held that the record did not show that UCCJEA jurisdiction properly passed from California to Kansas and found it was error for the district court to so find. But, it ruled that any error was harmless because there was home state jurisdiction in Kansas by the time the termination hearing occurred. Mother's petition for review was granted.

ISSUES: (1) Subject matter jurisdiction; (2) procedural due process rights

HELD:When the CINC proceedings began, California was the children's home state. The California order transferring the case to Kansas did not specify what provision of the UCCJEA is relied on when ceding jurisdiction. Unfortunately, there is nothing in the record on appeal to show exactly what happened in California. Nevertheless, the transfer order from California gave the Kansas court jurisdiction, and Kansas knew that California would not still be trying to make decisions in the case. Principles of comity apply to the California transfer order, even though it was not a final decision in this case. There was no abuse of discretion when Kansas accepted jurisdiction in this case, in accordance with the purposes of the UCCJEA. The failure to hold a hearing within 30 days did not violate Mother's due process rights.

STATUTES: K.S.A. 2018 Supp. 23-37,102(b), -37,110(a), -37,110(b), -37,110(d), -37,110(e), -37,201, -37,202, -37,202(a)(1), -37,202(a)(2), -37,207, -37,313, 38-2202(d), -2203; K.S.A. 20-301

Sedgwick District Court—Affirmed in Part, Reversed in Part, Case remanded
NO. 115,401—July 12, 2019

FACTS: Breedlove was convicted of felony murder in 1995. His conviction and sentence were reversed and he was retried, where he was again convicted of first-degree murder. That conviction and sentence was affirmed on direct appeal. Breedlove timely filed a K.S.A. 60-1507 motion which sat in district court for two years. Breedlove sent letters inquiring about the status of his motion. When those letters did not get a response, Breedlove attempted to file a motion for summary disposition. The district court refused to file the motion for summary disposition unless Breedlove paid a $195 filing fee. Breedlove eventually paid the fee. The district court, on multiple occasions, emailed the prosecutor's office requesting a response. After another email, the State responded, and the district court adopted the State's findings of fact and conclusions of law when denying Breedlove's motion. The Court of Appeals affirmed on all issues, including Breedlove's challenge to the imposition of the filing fee for the motion for summary disposition. Breedlove's petition for review was granted.

ISSUES: (1) Adoption of findings; (2) appointment of counsel; (3) ineffective assistance; (4) imposition of filing fee

HELD: There is no bright-line rule which prevents a district court from adopting in total a party's proposed findings of fact and conclusions of law. The statutory right to counsel is triggered only when the district court finds that a 60-1507 motion presents substantial questions of law or triable issues of fact. The district court was not required to appoint counsel for Breedlove. There is no evidence that any of Breedlove's attorneys were ineffective. Any argument made to the contrary is conclusory and without support in the record. Demanding a docketing fee in a case that was opened with a poverty affidavit is plain error. Breedlove should never have been charged, and the case is remanded so that he may be refunded.

CONCURRENCE: (Stegall, J.) There was no separation of powers violation because Breedlove failed to prove that the district court failed to conduct an independent review of the record. But prosecutors should never have judicial or quasi-judicial function.

STATUTES: K.S.A. 2015 Supp. 60-2008, -2008(a), -2008(b); K.S.A. 60-1507, -1507(b)

Sedgwick District Court—Affirmed
Court of Appeals—AFFIRMED
NO. 115,129—July 12, 2019

FACTS: Dawson was convicted of a child sex crime. His conviction was affirmed on appeal and after that, Dawson filed multiple K.S.A. 60-1507 motions. All of those motions were decided adversely and affirmed on appeal. In 2015, Dawson filed his fourth 60-1507 motion in which he argued ineffective assistance of counsel and prejudice due to the State's destruction of evidence that was potentially exculpatory. After Dawson filed the motion, the district court emailed the State and asked the State to respond to Dawson's motion. The State's response asked that the motion be denied as time-barred and successive. The district court agreed and denied the motion. That decision was affirmed on appeal by the Court of Appeals, which found no error in the district court's solicitation of a response from the State. The Supreme Court granted Dawson's petition for review.

ISSUES: (1) Solicitation of written response; (2) right to counsel; (3) timeliness of State's response to motion; (4) adequacy of forms; (5) right to an evidentiary hearing

HELD: A district court's review of a State's filed response to a 60-1507 motion, standing alone, does not create an indigent movant's right to counsel. Because the district court did not hold a hearing, Dawson did not have the right to counsel even if the response was solicited by the district court. A 60-1507 movant has only a statutory right to counsel. The court is not required to appoint counsel for an indigent movant while the merits of the motion are still being weighed. The 7-day response timeline of Rule 133(b) is not jurisdictional. Dawson's challenge to the adequacy of Judicial Council forms was not raised in any prior proceeding. In addition, Dawson shows no prejudice resulting from any alleged deficiency in the form. It was not error to find that Dawson failed to establish exceptional circumstances that would warrant a hearing on his 60-1507 motion.

STATUTE: K.S.A. 60-1507, -1507(f)(2)

NO. 116,251—July 12, 2019

FACTS: Requena was convicted of rape in 1999. His conviction was affirmed on appeal. A few years later, Requena filed a K.S.A. 60-1507 motion, arguing the ineffective assistance of trial counsel. The motion was summarily dismissed and that decision was also affirmed on appeal. In 2014, Requena filed a second 60-1507 motion. He repeated his claim of ineffective assistance plus added new issues. The State filed a response and the district court summarily denied the motion, although the district court did not address Requena's claim that he could not be convicted because he was a sovereign citizen. The Court of Appeals affirmed; the opinion included a finding that Requena's sovereign citizen claim was meritless. The Supreme Court accepted Requena's petition for review.

ISSUES: (1) Consideration of written response; (2) Murdock claim

HELD: Considering a written response is not the same as holding a hearing. The right to have counsel appointed only attaches if a hearing is held. In this case, the district court had no obligation to appoint counsel for Requena and his due process rights were not violated. Because this 60-1507 motion was untimely, Requena had the burden to show that not giving him relief would result in manifest injustice. Requena's issues raise no substantial issues of law, and Murdock cannot apply because all of Requena's prior convictions occurred in Kansas.

STATUTES: K.S.A. 60-1507

Sedgwick District Court
Court of Appeals IS AFFIRMED
NO. 115,899—July 12, 2019

FACTS: Sherwood was convicted of rape in 1997. His conviction was affirmed on direct appeal. More than 15 years after the mandate was issued, Sherwood filed a pro se K.S.A. 60-1507 motion alleging ineffective assistance of counsel and sentencing errors. The State responded, asking that the motion be denied as untimely. The district court summarily denied the motion, finding that not only was it time barred but also meritless. The Court of Appeals affirmed, and Sherwood's petition for review was granted.

ISSUES: (1) Appointment of counsel; (2) adequacy of form; (3) adequacy of findings; (4) merits of the claim

HELD: Considering the State's written response is not the same as a hearing. Counsel must be appointed for an indigent 60-1507 movant if a hearing is held, but the appointment of counsel is discretionary in the absence of a hearing. Sherwood's use of the Judicial Council form did not result in a due process violation or any prejudice. Sherwood appeared to know that he was required to prove manifest injustice. The district court's order, while concise, adequately conveyed the reasons for the denial of Sherwood's motion. The lower courts correctly found that Sherwood failed to show manifest injustice that would excuse the untimeliness of his claim. There is little evidence to support Sherwood's theory that he had a right to have appointed counsel file a writ of certiorari for him.

STATUTES: K.S.A. 60-1507

Sedgwick District Court
Court of Appeals IS AFFIRMED
NO. 115,149—July 12, 2019

FACTS: Stewart was convicted of aggravated robbery and his conviction was affirmed on appeal. He filed a timely K.S.A. 60-1507 motion which is the subject of this appeal. In that motion, he claimed ineffective assistance of counsel among other errors. Almost a year later, the State filed a response to the motion. It is unknown whether the district court asked the State to respond or whether the State responded of its own volition. The district court denied Stewart's motion, adopting the State's arguments and authorities as persuasive. Stewart appealed the denial to the Court of Appeals, arguing that it was a due process violation for the district court to consider the State's written response without appointing counsel for him. The Court of Appeals agreed that it was error for the district court to consider the State's response without appointing counsel. But it found that the error was harmless because Stewart's 60-1507 motion contained no valid claims. The Supreme Court accepted Stewart's petition for review on the lack of error and the State's cross-petition on whether Stewart was due counsel before the State's written response could be considered.

ISSUES: (1) Appointment of counsel; (2) substantive claims

HELD: There is a statutory right to counsel in a 60-1507 proceeding. In the district court, that right exists only when a motion presents substantial questions of law or triable issues of fact. The right to counsel does not exist if there is merely a potential substantial issue that would trigger the statutory right to counsel. The district court may, but is not required, to appoint counsel for an indigent 60-1507 movant while the merits of the motion are still being decided. A movant is entitled to counsel if the district court holds a hearing at which the State will be represented. But that right does not extend to the district court's consideration of a written response to a motion. There is no evidence that counsel's performance was deficient. Nothing else in the motion warranted an evidentiary hearing, and the district court properly denied the motion without a hearing.

STATUTE: K.S.A. 22-4506, -4506(b), 60-1507, -1507(b)

Sedgwick District Court—AFFIRMED
Court of Appeals—AFFIRMED

NO. 115,662 —July 12, 2019

FACTS: Thuko was convicted of sex charges in 2004. His convictions were affirmed on direct appeal. Thuko filed one K.S.A. 60-1507 motion in 2008, which was ultimately denied. Thuko filed a second 60-1507 motion in 2014. After some months passed, the district court solicited a response from the State. After the response was filed, the district court summarily denied Thuko's motion, finding that it was both untimely and successive and failing to find any manifest injustice that would allow for a successive motion. The Court of Appeals affirmed, and Thuko's petition for review was granted.

ISSUES: (1) Right to counsel; (2) right to a hearing

HELD:A 60-1507 movant has a statutory right to counsel that attaches only if the district court finds substantial questions of law or triable issues of fact. The district court is not required to appoint counsel while it is evaluating the merits of the motion, although it must appoint counsel if a hearing is held at which the State is represented. A written response to the motion is not a hearing, and no right to counsel attaches. Thuko did not prove the existence of either manifest injustice or exceptional circumstances to excuse his untimely and successive 60-1507 motion. For these reasons, his motion was properly summarily denied.

STATUTE: K.S.A. 60-1507, -1507(c), -1507(f)(1)


constitutional law—criminal procedure—motions—
postconviction remedies—sentences—statutes
state v. dawson
Sedgwick District Court—affirmed
Court of Appeals—affirmed
NO. 116,530—July 12, 2019

FACTS: Relying on State v. McAlister, 54 Kan.App.2d 65 (2017)(McAlister I), Dawson filed 2015 motion alleging his 1997 sentence was illegal because his pre-Kansas Sentencing Guidelines Act burglary conviction should have been classified as a nonperson crime District court summarily denied the motion as procedurally barred. Applying State v. Dickey, 305 Kan. 217 (2016)(Dickey II), Court of Appeals affirmed. 55 Kan.App.2d 109 (2017). Dawson’s petition for review granted.

ISSUE: (1) Motion to correct an illegal sentence—legality of the sentence

HELD: See State v. McAlister, __ Kan. __ (2019)(this day decided), reversing holding in McAlister I. Pursuant to State v. Murdock, 309 Kan. 585 (2019)(Murdock II), the point in time to assess a sentence’s legality for purposes of a K.S.A. 22-3504(1) motion to correct an illegal sentence is the moment the sentence was pronounced. If a sentence was legal when pronounced, subsequent changes in the law will not render it illegal and amenable to correction under K.S.A. 22-3504(1). The rule in Dickey I and Dickey II derived directly from Apprendi v. New Jersey, 530 U.S. 466 (2000), a change in the law after Dawson’s sentence became final. Pursuant to Murdock II, Dawson cannot avail himself of that subsequent change in the law. District court’s denial of the motion to correct an illegal sentence is affirmed.

STATUTES: K.S.A. 2017 Supp. 22-3504(3); K.S.A. 22-3504, -3504(1), 60-1507

constitutional law—criminal procedure—motions—
postconviction remedies—sentences—STATUTES
State v. Laughlin
Sedgwick District Court—Affirmed
NO. 117,156—July 12, 2019

FACTS: More than ten years after his felony-murder conviction, Laughlin filed pro se motions to correct an illegal sentence and to withdraw his plea. District court summarily denied the motions. On appeal Laughlin argued the district court erred by considering the State’s written responses to his motions without appointing counsel to represent him, and claimed his sentence is illegal because his convictions are multiplicitous.

ISSUES: (1) Due process right to appointment of counsel; (2) summary denial of motion to correct an illegal sentence

HELD: State v. Redding, __ Kan. __ (2019)(this day decided), affirmed treating K.S.A. 22-3504 motions like K.S.A. 60-1507 motions when determining whether appointment of counsel is required, held that due process of law requires appointment of counsel at a hearing on a K.S.A. 22-3504 motion where the State is represented by counsel unless the defendant waives that right, and determined that a district court’s consideration of State’s response to a K.S.A. 22-3504 motion is not the equivalent of a hearing. Taken together, State v. Jackson, 255 Kan. 455 (1994), and State v. Hemphill, 296 Kan. 583 (2008), confirm that post-sentence plea withdrawal motions are treated like K.S.A. 60-1507 motions for purposes of determining whether the right to counsel was triggered. Thus rules announced in State v. Stewart, __ Kan. __ (2019)(this day decided) apply. Laughlin’s statutory right to counsel was not triggered for either motion because district court did not find a substantial issue of law or triable issue of fact. Moreover, district did not conduct a hearing on either motion, and its consideration of State’s written response did not equate to one.

Summary denial of the motion was appropriate because mulitplicity challenges fall outside the scope of a motion to correct an illegal sentence.

STATUTES: K.S.A. 2018 Supp. 22-3210(d)(2), -3210(e)(2), -3504(1), -3601(b)(3); K.S.A. 22-3504, 60-1507

constitutional law—criminal procedure—motions—
postconviction remedies—sentences—statutes
state v. mcalister
finney district court—affirmed and case remanded
Court of Appeals—reversed
NO. 115,887—July 12, 2019

FACTS: McAlister filed 2015 motions alleging his 1996 sentences were illegal in light of State v. Dickey, 301 Kan. 1018 (2015)(Dickey I), because his pre-Kansas Sentencing Guidelines Act burglary convictions should have been classified as nonperson felonies. District court summarily denied the motions as procedurally barred. Applying State v. Dickey, 305 Kan. 217 (2016)(Dickey II), Court of Appeals reversed. 54 Kan. App. 2d 65 (2017). State’s petition for review granted.

ISSUE: (1) Motion to correct an illegal sentence - legality of the sentence

HELD: McAlister’s sentences were final for purposes of post-conviction relief in February 1999, prior to Apprendi v. New Jersey, 530 U.S. 466 (2000), which founded holdings in Dickey I and Dickey II. Pursuant to State v. Murdock, 309 Kan. 585 (2019)(Murdock II), this subsequent change in the law cannot transform a legally imposed sentence into an illegal sentence. McAlister’s sentences were legal when imposed and remained so at the time his direct appeal became final. Subsequent changes in the law did not render his sentences illegal for purposes of a K.S.A. 22-3504(1) motion to correct an illegal sentence. Court of Appeals reversal of the district court is reversed and case is remanded with directions to reinstate McAlister’s original lawful sentences.

STATUTES: K.S.A. 2018 Supp. 21-5807(a)(1), -5807(c)(1)(A), -6811; K.S.A. 1999 Supp. 21-3715; K.S.A. 21-4701 et seq., 22-3504, -3504(1)

constitutional law—criminal procedure—motions—
postconviction remedies—sentences—statutes
state v. redding
rice district court—affirmed
Court of Appeals—affirmed
NO. 115,037—July 12, 2019

FACTS: Redding entered no contest plea to rape and aggravated indecent liberties of underage girls. Jessica’s Law sentence imposed for each count, with departure to the jointly recommended total sentence of 210 months. More than two years later he filed pro se motion to correct an illegal sentence. District court denied the motion after reviewing State’s response. Redding appealed claiming: (1) his pro se motion should have been liberally construed as a K.S.A. 60-1507 motion; (2) his due process rights were violated when district court requested a response from the State before summarily denying the motion without appointment of counsel; and (3) his sentence was illegal because district court did not consider his written allocution as a second motion to further depart from the grid-box numbers. Court of Appeals affirmed in unpublished opinion. Redding’s petition for review granted.

ISSUES: (1) Liberally construing the motion; (2) due process right to appointed counsel; (3) summary denial of motion to correct an illegal sentence

HELD: Under facts in this case, including form and content of Redding’s motion, district court did not err in construing the motion as one filed under K.S.A. 22-3504 seeking to correct an illegal sentence.

Appellate courts treat motions under K.S.A. 22-3504 like motions under K.S.A. 60-1507 motions for purposes of determining whether a hearing and appointment of counsel are required. If district court conducts a hearing to determine whether a K.S.A. 22-3504 motion presents substantial questions of law or triable issues of fact, a movant’s due process right to appointed counsel is implicated. But a district court’s review of State’s response to the motion, standing alone, is not the equivalent of a hearing and does not trigger the movant’s due process right to counsel. See State v. Stewart, __ Kan. __ (2019)(this day decided).

When district court accepts the recommendation of a plea agreement to depart from an off-grid Jessica’s Law hard-25 life sentence to a specific on-grid sentence, the court’s failure to consider a second departure to an even shorter sentence does not render the agreed-upon sentence illegal. Here, district court properly considered Redding’s initial departure motion as a request to depart from hard 25 Jessica’s law sentence to an on-grid sentence, followed statutory procedures for doing so, and was under no obligation to consider any further departures that were obliquely referenced in allocution.

STATUTES: K.S.A. 2018 Supp. 22-3504(1); K.S.A. 21-3502(a)(2), -3504(a)(3)(A), 22-3504, -4506(b), 60-1507, -1507(b), -1507(f)

constitutional law—criminal procedure—
motions—postconviction remedies
state v. roberts
Sedgwick District Court—affirmed;
Court of Appeals—affirmed
NO. 114,726—July 12, 2019

FACTS: In consolidated appeal, Roberts contends: (1) district court’s summary denial of the K.S.A. 60-1507 motion without appointment of counsel after receiving State’s written response to the pro se motion failed to follow protocol established in Lujan v. State, 270 Kan. 163 (2000), and thereby violated his due process rights; and (2) district court erred by denying Roberts’ request for an evidentiary hearing on the 60-1507 motion, finding the motion was untimely and successive. Court of Appeals affirmed in unpublished opinion. Review granted.

ISSUES: (1) Due process right to appointed counsel; (2) summary denial of K.S.A. 60-1507 motion

HELD: Stewart v. State, __ Kan. __ (2019)(this day decided), clarified that the Lujan protocol does not require appointment of counsel when the district court discerns a potentially substantial issue, albeit the court has discretion to do so. District court may, but is not required to, appoint an indigent K.S.A. 60-1507 movant an attorney during the period the court is making its determination of whether the motion, files, and records present a substantial question of law or triable issue of fact. Here, district court was not statutorily required to appoint counsel, as it determined the motion, files, and records of the case presented no substantial question of law or triable issue of fact. And district court did not conduct a hearing at which the State was represented by counsel, so as to trigger Roberts’ due process right to appointed counsel.

Roberts’ request for remand to attempt to make case to district court for exceptions to the procedural bars to his untimely and successive K.S.A. 60-1507 motion, in leu of establishing the existence of the exceptions on appeal, is denied.

STATUTE: K.S.A. 22-3402, -4506(b), 60-1507, -1507(c), -1507(f), -1507(f)(2)

constitutional law—criminal procedure—motions—
postconviction remedies—sentencing—statute
state v. tauer
Sedgwick District Court—affirmed
Court of Appeals—affirmed
NO. 114,432—July 12, 2019

FACTS: Some 20 years after his conviction and sentence became final in 1996, Tauer filed motion citing State v. Dickey, 301 Kan. 1018 (2015 (Dickey I), and State v. Dickey, 305 Kan. 217 (2016)(Dickey II), and claiming his prior New Mexico juvenile conviction should have been classified as a nonperson felony in sentencing. Court of Appeals affirmed in unpublished opinion. Review granted due to conflicting panel opinions.

ISSUE: (1) Motion to correct illegal sentence

HELD: Issue in this case is whether Tauer’s sentence is illegal, not the date he filed his motion under K.S.A. 22-3504(1). Pursuant to State v. Murdock, 309 Kan. 585 (2019)(Murdock II), the point in time to assess a sentence’s legality for purposes of a K.S.A. 22-3504(1) motion to correct an illegal sentence is the moment the sentence was pronounced. If a sentence was legal when pronounced, subsequent changes in the law will not render it illegal and amenable to correction under K.S.A. 22-3504(1). The rule in Dickey I and Dickey II derived directly from Apprendi v. New Jersey, 530 U.S. 466 (2000), a change in the law after Tauer’s sentence became final. Pursuant to Murdock II, Tauer cannot avail himself of that subsequent change in the law. District court’s denial of the motion to correct an illegal sentence is affirmed.

STATUTE: K.S.A. 22-3504(1)

Kansas Court of Appeals


NO. 119,798—July 12, 2019

FACTS: McNair borrowed money from Coastal Credit so that he could buy a car. After McNair defaulted, Coastal Credit repossessed the car and sold it. There was a deficiency, though, so Coastal Credit filed a limited action lawsuit against McNair seeking the remaining balance, plus interest. At the time the lawsuit was filed, McNair was deployed with the United States Army to an overseas location. His wife and children lived in off-base housing. A process server attempted to serve McNair by serving a copy at McNair's "usual place of abode" with his wife. McNair did not answer the suit or appear. Eventually, the district court granted default judgment to Coastal Credit. After noticing that his wages were being garnished, McNair moved to set aside the default judgment on grounds that service was improper. At a hearing, McNair's wife disputed that she ever received service at the apartment. The district court denied the motion to set aside and McNair appealed.

ISSUE: (1) Adequacy of service

HELD: McNair's only argument on appeal is that the judgment was void for lack of legal service of process. Although it is undisputed that McNair's family lived in Manhattan, the relevant question is the location of McNair's place of abode. The term "usual place of abode", as used in the statute, is not the same as a person's domicile. At the time process was served, McNair's usual place of abode was at his Army deployment in Africa. McNair was never properly served, and the default judgment must be set aside.

STATUTE: K.S.A. 2018 Supp. 60-260(b)(4), -260(c), 61-3301(c), -3301(d), -3003(d)(1), 77-201 Twenty-fourth

NO. 120,056—July 12, 2019

FACTS: Johnson worked as a housekeeper at Stormont Vail Hospital. In 2015, while working, Johnson tripped and fell. The resulting injury to her knee required rehabilitation and physical therapy, and kept her off work for three months. Six months later Johnson fell again. As before, she did not know what caused the fall. She broke her wrist and was again off work for an extended period. Johnson sought workers compensation benefits and an administrative law judge awarded compensation for both falls. Stormont Vail sought review from the Workers Compensation Appeals Board, arguing that Johnson's falls stemmed from neutral risks and did not arise out of and in the course of her employment. The Board disagreed, and Stormont Vail appealed.

ISSUES: (1) Causation beyond neutral risk; (2) burden of proof

HELD: The Board correctly found that walking was part of Johnson's work duties. She was working, and walking, when she fell. Both falls involved neutral risk with a particular employment character, and as such, her injuries are compensable. Johnson was not required to prove that her injuries did not result from a neutral risk. Once the Board found that Johnson met her statutory burden, the burden shifted to Stormont Vail to support its claim that there was no particular employment character tied to Johnson's activity during the falls.

STATUTE: K.S.A. 2018 Supp. 44-501b(c), -508(f)(3)(A), -508(f)(3)(A)(ii), -508(h), 77-201

Tags:  8807  burden of proof  causation  Finney District  neutral risk  Rice District  Riley District  Sedgwick District  Workers Compensation  Workers Compensation Board 

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July 5, 2019 Digest

Posted By Administration, Monday, July 8, 2019

Kansas Court of Appeals


constitutional law—criminal law—fourth amendment—
state v. hinnenkamp
sedgwick district court—affirmed
No. 119,125—july 5, 2019

FACTS: District court ordered Hinnenkamp to submit to random drug and alcohol testing as a condition of probation for her aggravated escape from custody conviction. Hinnenkamp appealed, arguing K.S.A. 2018 Supp. 21-6607(c)(6), which requires district courts to impose random drug and alcohol testing as a condition of probation, violates her federal and state constitutional right against unlawful search and seizure. State responds on merits of this argument, and also claims this issue is improperly raised for first time on appeal, jurisdiction is lacking because the issue is not ripe for consideration, and Hinnenkamp waived the issue by inadequate briefing.

ISSUES: (1) Threshold issues—preservation, ripeness, waiver; (2) constitutionality of K.S.A. 2018 Supp. 21-6607(c)(6)

HELD: Hinnenkamp is asserting her constitutional claim for first time on appeal, but her facial challenge to the constitutionality of the statute is considered. Her facial challenge to the statute is ripe for appeal, and she has not waived or abandoned her constitutional claim based on inadequate briefing.

K.S.A. 2018 Supp. 21-6607(c)(6), which subjects probationers to suspicionless drug and alcohol testing, does not, on its face, violate the Fourth Amendment of U.S. Constitution or §15 of Kansas Bill of Rights. This mandatory statutory condition of probation is exempt from Fourth Amendment’s general warrant requirement because (1) special needs of the probation system make the warrant and probable cause requirement impracticable, and (2) the primary purpose of random drug and alcohol testing for probationers is distinguishable from State’s general interest in crime control. Weighing a probationer’s diminished expectation of privacy against State’s interest in promoting rehabilitation and probation compliance, and considering the efficacy of random suspicionless drug and alcohol testing, it is reasonable to permit a court services officer or community correctional services officer to order a probationer to submit to random drug and alcohol testing, even without any suspicion of wrongdoing. Two recent unpublished Court of Appeals opinions upholding the constitutionality of K.S.A. 2018 Supp. 21-6607(c)(6) in similar cases are cited and reviewed.

STATUTES: K.S.A. 2018 Supp. 21-6607(c)(5), -6607(c)(6), 22-3717(k)(2); K.S.A. 2014 Supp. 8-1025

Tags:  8807  Constitutional Law  Fourth Amendment  Probation  Sedgwick District 

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June 28, 2019 Digests

Posted By Administration, Monday, July 1, 2019

Kansas Supreme Court


NO. 119,027
JUNE 28, 2019

FACTS: A hearing panel determined that Blume violated KRPC 3.1 (meritorious claims and contentions); 3.3(a)(1) (candor toward tribunal); 3.4(d) (compliance with discovery request); 4.4(a) (respect for rights of third persons); 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (conduct prejudicial to the administration of justice). One incident involved an allegedly inadequate response to a discovery request, two involved rude words and gestures directed at a deposition witness, and one arose out of a motion to set aside an earlier agreed judgment. Blume's actions regarding discovery resulted in the dismissal of his client's case, after the district court found that Blume's conduct was calculated and intentional.

HEARING PANEL: The hearing panel found adequate evidence to support all of the complaints levied against Blume. When considering aggravating factors, the panel noted that Blume's conduct was motivated by dishonesty and was part of a pattern of failing to show respect for other people. The disciplinary administrator recommended a one-year suspension. Blume asked for a one-year suspension but asked that it be suspended while he served a probationary term. However, the panel found that Blume's probation plan was wholly inadequate and that his misconduct could not be corrected by probation. The hearing panel agreed with the disciplinary administrator and recommended discipline of a one-year suspension.

HELD: Blume filed numerous exceptions to the hearing panel's report. Most of the exceptions were not supported by evidence that was considered by the hearing panel. At the hearing before the court, Blume explained that he planned to retire within six months. He asked that discipline be limited to a requirement that he apologize to the deposition witness. The court found Blume's objections to the findings of fact incoherent and inconsistent, and all of the hearing panel's findings of fact and conclusions of law were adopted. The court found that Blume failed to understand the nature of his mistakes and did not acknowledge the seriousness of his misconduct. Because of the serious nature of his misconduct and his failure to take responsibility, the court determined that a severe sanction was warranted. It imposed an indefinite suspension from the practice of law.


NO. 119,269
JUNE 28, 2019

FACTS: The City of Topeka passed Ordinance 20099, which made it unlawful to sell cigarettes to persons under age 21, and persons under age 21 were forbidden to buy tobacco. Prior to the ordinance taking effect, a store sued the City of Topeka seeking to prevent enforcement of the ordinance as unconstitutional under the Kansas Constitution. The district court agreed, finding conflicts between the ordinance and state law. The district court both temporarily and permanently enjoined enforcement of the ordinance. The City appealed, and the case was transferred to the Supreme Court.

ISSUE: (1) Statutory preemption

HELD: There is overlap between the ordinance and state statute regarding the subject matter, and the state statute is a uniform law applicable to all cities. But the Kansas Cigarette and Tobacco Products Act does not contain an express statement of preemption, and the act's "comprehensive scheme" of regulation is inadequate to show an intent to preempt city action. There is also no conflict between the language of the act and the ordinance. The act does not expressly authorize the sale or purchase of tobacco products to those ages 18-20. The ordinance is a constitutional exercise of the city's home rule power, and the district court is reversed.

STATUTE: Kansas Constitution, Article 12, §5(b), §5(d)


attorney and client—criminal procedure—motions
state v. bacon
sedgwick district court—affirmed; court of appeals—affirmed
no. 114,951—june 28, 2019

FACTS: Bacon was charged with aggravated human trafficking. After appointed public defender continued the preliminary hearing seven times, Bacon filed pro se “Motion for Diligence” with copy of KRPC 1.3. No action taken on this and subsequent similar motions. Appointed counsel continued the preliminary hearing three more times, and continued trial three times. Bacon then retained private counsel. State amended the complaint and jury found Bacon guilty of commercial sexual exploitation of a child. Motion for new trial filed, based in part on district court’s failure to inquire into Bacon’s pro se motions voicing dissatisfaction with appointed counsel. Bacon appealed the district court’s denial of that motion. Court of appeals affirmed the conviction, finding in part the pro se motions did not allege dissatisfaction with appointed counsel. Review granted on this issue.

ISSUE: District court’s duty to Inquire 

HELD: It is assumed without deciding that Bacon’s pro se motions were sufficient to trigger the district court’s duty to inquire into a potential conflict with his trial attorney, but on facts in case, remand to district court is unnecessary because Bacon retained a new attorney for trial; he does not claim his trial attorney was ineffective; and he does not otherwise identify any prejudice flowing from district court’s failure to inquire.

STATUTE: K.S.A. 2014 Supp. 21-5426(b)(4), -6422(a)(4)

criminal procedure—motions—sentences—statuites
state v. dubry
shawnee district court—affirmed
court of appeals—affirmed
no. 114,050—june 28, 2019

FACTS: Dubry was convicted of kidnapping. Years later he moved to correct his 2011 sentence, arguing the sentencing court improperly scored a prior Wyoming conviction as a person crime. District court denied the motion. Dubry appealed, arguing the Wyoming statute is broader than the counterpart Kansas offense. Court of appeals affirmed in unpublished opinion. Dubry’s petition for review granted, and parties were ordered to explain whether panel’s decision should be summarily vacated and case remanded to district court in light of State v. Wetrich, 307 Kan. 552 (2018). Dubry argues Wetrich should apply.

ISSUE: Classification of out-of-state crime

HELD: Affirmed based on State v. Murdock, 309 Kan. 585 (2019)(Murdock II). Legality of a sentence under K.S.A. 2018 Supp. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. Thus a sentence that was legal when pronounced does not become illegal if the law subsequently changes. Since Wetrich announced a change in the law and Dubry was sentenced before Wetrich was decided, application of Wetrich to Dubry’s motion to correct his sentence is barred by Murdock II.

STATUTES: K.S.A. 2018 Supp. 22-3504; K.S.A. 20-3018(b), 21-3503, -4701 et seq., -4711, 60-2101

NO. 115,426—JUNE 28, 2019

FACTS: Police observed a suspected drug deal involving car parked in a closed Burger King lot. Officers approached the car, patted down occupants and retrieved a bag of marijuana Guein admitted was in his underwear. After arrest, Guein admitted to additional marijuana in the car. Search of the car disclosed handgun, loose marijuana, and drug paraphernalia. Guein filed a motion to suppress his statements and the evidence obtained as a result of search of his person and his car. District court: refused to suppress Guein’s statement of having marijuana in his underwear because Guein was not in custody until handcuffed; suppressed Guein’s statement of additional drugs in car, made after handcuffed and before Miranda warning; admitted post-Miranda statements, finding Guein had voluntarily waived his rights; and denied suppression of the physical evidence. Guein was convicted of felony distribution of marijuana and misdemeanor possession of paraphernalia. A divided court of appeals reversed in part and affirmed in part the district court’s decision on the motion to suppress and remanded to district court. State v. Guein, 53 Kan. App.2d 394 (2017). Entire panel upheld the admission of Guein’s statement about marijuana in underwear and the marijuana found there, finding Miranda  warnings were not necessary. Majority concluded officer’s statements to Guein were sufficiently threatening to negate the Miranda warning, and State’s failure to provide the trial transcript prevented a harmless error analysis. Conviction was set aside and a new trial ordered. Guein and State both petitioned for review.

ISSUES: (1) Admission of pre-Miranda statement; (2) admission of post-Miranda statement

HELD: Factors cited in State v. Lewis, 299 Kan. 828 (2014), are examined on facts in case, finding officer’s pre-Miranda interrogation was custodial rather than investigative. District court’s denial of motion to suppress pre-Miranda statement about marijuana in underwear is reversed.

     Under facts in case, officer’s aggressive and profane language implied physical violence toward Guein, prompting Guein’s later incriminating statement. Panel’s majority on this issue is affirmed. Remanded to district court for further proceedings.

CONCURRENCE AND DISSENT (Stegall, J.)(joined by Biles, J.): Disagrees with majority’s order to suppress Guein’s pre-Miranda statements, and would support panel’s assessment that this was an ordinary investigatory detention not requiring Miranda warnings. Agrees that Guein’s post-Miranda statements were not voluntary and must be suppressed, but does not find officer’s use of profanity as significant as the majority does. Guein was coerced because of a real and actionable threat. Law enforcement’s use of the word “fuck” does not make the circumstances more or less coercive, and majority’s reasoning suggests a politely worded threat is less coercive than a vulgar one.  

STATUTUES: K.S.A. 2018 Supp. 60-460(f); K.S.A. 20-3018(b), 22-2402(1), -3215(4), -3216(2), 60-2101(b)

constitutional law—criminal law—criminal procedure—evidence
jury instructions—prosecutors—statutes`
state v. james
sedgwick district court—affirmed
no. 117,945—june 28, 2019

FACTS: James was convicted of first-degree premeditated murder and criminal possession of a firearm. On appeal, he claimed district court erred by: refusing defense requests for instructions on lesser included offenses of reckless second-degree murder and reckless involuntary manslaughter; refusing to instruct jury on imperfect self-defense involuntary manslaughter; failing to instruct jury to consider verdicts of premeditated murder and imperfect self-defense voluntary manslaughter simultaneously;  and admitting gruesome autopsy photos. He also claimed prosecutorial error during closing argument, claimed he was deprived his constitutional right to be present at all critical stages of the trial—namely requests for continuances, and argued cumulative error required reversal.

ISSUES: (1) Jury instructions on reckless based homicides; (2) jury instruction on imperfect self-defense of involuntary manslaughter; (3) jury instruction on simultaneous consideration of lesser included crimes; (4) admission of autopsy photos; (5) prosecutorial error; (6) constitutional right to presence; (7) cumulative error

HELD: Challenge to district court’s refusal to instruct on lesser included reckless homicides was properly preserved, and the requested instructions were both legally and factually appropriate under facts in case. District judge’s refusal to instruct jury on reckless second-degree murder and reckless involuntary manslaughter was error, but not reversible error under the statutory harmless error standard.

     Likewise, James preserved his challenge to district court’s refusal to instruct on imperfect self-defense of involuntary manslaughter. This instruction was legally appropriate, and under facts in case, also factually appropriate. Applying statutory harmlessness test, district judge’s failure to give the requested instruction was not reversible error.

     Under controlling precedent in State v. Sims, 308 Kan. 1488 (2018), pet. for cert. filed April 29, 2019, a district court is not required to instruct a jury to consider a lesser included homicide offense simultaneously with any greater homicide offense.

      No abuse of district judge’s discretion by admitting autopsy photos which were not repetitious and which allowed pathologist to explain path of bullet that killed the victim and show skull fractures that resulted.

     Prosecutor erred by stating James left the scene in a stolen car because no evidence supported a description of the car as “stolen.” Also, referencing an uncharged crime is problematic because it encourages jurors to draw inference of a defendant’s propensity to commit crimes. In light of entire record, however, this error does not require reversal.

     Because record contains no evidence that James knowingly and voluntarily waived his right to be present when first attorney requested two continuances, error is assumed. Under constitutional standard the error was harmless under facts in this case. State v. Wright, 305 Kan. 1176 (2017), is distinguished.   

     The combination of instructional errors, prosecutorial error, and assumed violation of James’ right to be present at all critical stages did not deprive James of a fair trial.

STATUTES: K.S.A. 2018 Supp. 21-5202(j), -5202(h), -5226, -5402(a)(1), -5403(a)(1), -5403(a)(2), -5801, -5803, 60-455(a); K.S.A. 2015 Supp. 21-5405(a)(4); K.S.A. 22-3402

constitutional law—criminal procedure
state v. obregon
geary district court—reversed, sentences vacated and remanded
court of appeals—affirmed in part and reversed in part
NO. 117,422—june 28, 2019

FACTS: Obregon entered no contest pleas to possession of drugs with intent to distribute.  District court accepted the pleas, and in sentencing, applied the statutory firearm enhancement. Obregon appealed, challenging whether district court should have classified a prior Florida battery conviction as a person felony without knowing which version of the Florida crime he committed. He also claimed his no contest pleas to the base drug offenses did not include any facts upon which the enhancement could be grounded. Court of appeals concluded the district court properly calculated Obregon’s criminal history score, but held Obregon’s waiver of his right to jury trial on the firearm enhancement was invalid. Panel vacated the enhancement and remanded case to district court for proper waiver or for jury to make factual findings required by K.S.A. 2015 Supp. 21-6805(g)(1) regarding the firearm. Obregon’s petition for review granted.

ISSUES: (1) Florida battery conviction; (2) firearm enhancement

HELD: Pursuant to State v. Murdock, 309 Kan. 585 (2019)(Murdock II), Obregon is entitled to application of State v. Wetrich, 307 Kan. 552 (2018), but variation to the Wetrich analysis is presented because the Kansas and out-of-state offenses are both what Kansas law refers to as “alternative means crimes.” When the crime in question is an out-of-state offense with alternative means—some of which would not be comparable to Kansas person crimes—the State bears the burden of establishing the defendant committed a version of the offense supporting the person classification. On record in this case, district court’s finding that Obregon committed a Florida offense with a comparable Kansas person crime is not supported by substantial competent evidence. Because the Florida offense on its face is broader than the Kansas comparator, it should not have been classified as a person offense under Wetrich. Sentence is vacated and case is remanded for district court to reconsider the Florida conviction’s person-crime classification.

     Panel erred by remanding his case for a jury to determine if firearm enhancement should apply. As a general rule, special questions may not be submitted to a jury for answer in a criminal prosecution, and the legislature has not created a statutory exception to the general rule against special verdicts for a firearm enhancement to be determined separately after the verdict. Obregon’s resentencing is to proceed without the firearm enhancement.

CONCURRENCE AND DISSENT (Johnson, J.): Agrees the district court must resentence Obregon without the enhancement. Also agrees the State failed to present sufficient evidence to support classification of the Florida battery conviction as a person felony, but that insufficiency of the evidence should result in vacating the sentence and remanding for resentencing of criminal history score with the Florida conviction classified as nonperson.        

STATUTES: K.S.A. 2018 Supp. 21-5413(a), -5413(a)(1), -5413(a)(2), -5413(g), -6801 et seq., -6805(g)(1), -6805(g)(2), -6809, -6814, -6814(b), -6814(c); K.S.A. 2015 Supp. 21-6805(g)(1), -6811(e); K.S.A. 2013 Supp. 21-6817(b)(2); K.S.A. 20-3018(b), 21-3715, -3715(a), 60-2101(b)

criminal procedure—mootness—motions—sentencing—statutes
state v. russ
sedgwick district court—affirmed;
court of appeals—affirmed
no. 115,111—june 28, 2019

FACTS: Russ was found guilty of attempted second-degree murder. His prior convictions included six Wichita municipal violations classified as person misdemeanors, five of which were eligible for conversion to a felony. Russ appealed sentencing court’s classification of prior municipal ordinance convictions as person offenses to calculate Russ’ criminal history score, arguing in part the domestic battery municipal ordinances were broader than the counterpart Kansas domestic battery statute. Court of appeals affirmed in unpublished opinion. Russ petitioned for review claiming the panel erred by: (1) looking beyond the most comparable Kansas offense of domestic battery to analyze his municipal ordinance domestic battery convictions, and (2) declining to address as moot an issue concerning his prior conviction of failure to comply with bond restrictions.

ISSUES: (1) Classifying the domestic battery municipal ordinance violations; (2) mootness

HELD: Applying State v. Wetrich, 307 Kan. 552 (2018), the panel correctly held Russ’ domestic battery ordinance violations were person offenses. Only difference between the ordinances and the Kansas domestic battery statue is the specific requirement of the relationship between the batterer and the battered, which makes the scope of the ordinance’s proscribed acts narrower, not broader.  

     Panel correctly declined to address the classification of Russ’ prior conviction for failure to comply with bond restrictions. Regardless of classification of this prior conviction, Russ’ criminal history score is unchanged since three prior domestic battery municipal ordinance violations were properly scored as person misdemeanors.

STATUTES: K.S.A. 2018 Supp. 21-5413(a), -5413(g)(1), -6801 et seq., -6810(a), -5811(a); K.S.A. 2017 Supp. 21-6811(e)(3); K.S.A. 2016 Supp. 21-6804(a), -6809, -6811(a); K.S.A. 2014 Supp. 21-5414(a); K.S.A. 20-3018(a), 60-2101(b)


Kansas Court of Appeals


NO. 119,704 – JUNE 28, 2019

FACTS: Flaherty purchased a sprayer manufactured by CNH in early 2014. Later that year, Flaherty took it back to the dealer for maintenance and a hose adjustment. The dealer knew that there were also potential issues with one of the drive hoses at the engine starter. While the sprayer was at the dealer, it caught on fire and was completely destroyed. During the investigation, a fire investigator with the fire department accompanied law enforcement on the scene. It was his opinion that the fire was caused by an electrical issue. Neither of Flaherty's experts could definitively determine the fire's cause. Robert Hawken, a product safety specialist at CNH, investigated the sprayer in anticipation of litigation. Flaherty sued both CNH and the dealer. During discovery, Flaherty provided notice of his intent to depose Hawken. CNH filed a motion to quash and asked the court to quash the subpoena. The district court granted that motion and Hawken was not deposed. After hearing more evidence, the district court granted CNH's motion for summary judgment on all claims and Flaherty appealed.

ISSUES: (1) Denial of discovery request; (2) express warranty claims; (3) implied warranty claims

HELD: Hawken examined the sprayer over a month after the fire, and he only gave his findings to CNH's legal department and outside counsel. The dealer told Flaherty that Hawken believed the fire started in the sprayer's starter area. Hawken's opinions were protected by work-product privilege as far as the subpoena duces tecum was concerned. Hawken was also protected by non-testifying expert privilege as an in-house expert. Flaherty failed to prove that Hawken waived his privilege, and much of the privilege belonged to CNH, and Hawken has no power to waive it on the company's behalf. The warranty agreement between Flaherty and CNH disclaimed any express warranty created by descriptions of the sprayer on its website or by statements made by salespeople. And Flaherty failed to identify any specific descriptions of the sprayer on which he relied. In addition, the warranty agreement required Flaherty to prove that the sprayer had a defect in material or workmanship, which he failed to do. Any implied warranty claim had a similar requirement that Flaherty prove the existence of a defect. In addition, Flaherty failed to prove that the sprayer was defective when it left CNH's control.

STATUTES: K.S.A. 2018 Supp. 60-226(b)(4)(A), -226(b)(5), -226(b)(5)(D), -233(b)(1)(B), -256(c)(2), -456; K.S.A. 60-437, 84-2-313(1)(b), -313(2), -314(1), -314(2)(c)


Tags:  8807  Attorney Discipline  Geary District  Johnson District  Saline District  Sedgwick District  Shawnee District  Weekly20190702 

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June 21, 2019 Digests

Posted By Administration, Monday, June 24, 2019

Kansas Supreme Court


NO. 117,461—JUNE 21, 2019

FACTS: Darrah and two co-conspirators were implicated in the kidnapping and murder of an associate. He pled no contest and the parties made a sentencing recommendation. Before sentencing, Darrah asked the district court to impose concurrent rather than consecutive sentences, claiming that his culpability was less than his coconspirators' and that concurrent sentencing would make his sentence commensurate with his level of involvement in the crime. At sentencing, the State requested both the aggravated number for the kidnapping charge and that the sentence run consecutive to the murder sentence. Darrah asked for mitigated numbers with concurrent sentencing. The district court imposed a hard 25 for the murder charge and the aggravated sentence for kidnapping, to run consecutive to the murder sentence. Darrah appealed.

ISSUE: (1) Abuse of discretion with sentencing

HELD: The facts presented at trial show that Darrah was central to the conspiracy and acted as a leader in committing the crimes. A reasonable person could have concluded that the sentence imposed was proportionate to the harm and culpability associated with Darrah's actions. For these reasons, the sentence imposed by the district court was not an abuse of discretion.

STATUTE: K.S.A. 2018 Supp. 21-6815(c)(2)(H), -6819(b)


Kansas Court of Appeals


NO. 119,303 AND 119,304—JUNE 21, 2019

FACTS: Guadalupe Duran was sentenced to probation in two cases. For each case, there was a lengthy underlying sentence. Duran stipulated to violating his probation. Both Court Services and the State asked the district court to impose Duran's underlying sentence. Instead of imposing a graduated, intermediate sanction the district court found that "public safety" would be negatively impacted by reinstatement, and it ordered Duran to serve his underlying sentences. Duran appealed.

ISSUE: (1) Failure to impose intermediate sanctions

HELD: A district court is given statutory authority to bypass intermediate sanctions only in limited circumstances. In order to make that bypass, the district court must establish with particularity the reasons for finding that public safety will be negatively affected or that the offender's welfare will not be served by the intermediate sanction. Those particularized findings must be more than a general finding that the offender is not amenable to probation. Here, the district court's findings were based on speculation and generalized predictions without connection to the particular facts of Duran's case. The district court abused its discretion by revoking probation without setting forth with particularity reasons which justified the refusal to impose an intermediate sanction.

STATUTE: K.S.A. 2018 Supp. 22-3716(c)(1), -3716(c)(9)(A)


NO. 119,986—JUNE 21, 2019

FACTS: Law enforcement went to an apartment complex to investigate a reported theft. There was no suspect description and the officer was not looking for anyone in particular. The officer spotted Gill and a passenger in an SUV; both men were African-American. When Gill attempted to leave, the officer told him that he was not free to go. Despite no evidence of wrongdoing, the officer asked for Gill's driver's license and proof of insurance. Eventually, officers searched Gill's vehicle and discovered evidence of drug activity. After he was charged, Gill moved to suppress the evidence from his vehicle, alleging that the officer unreasonably used race-based policing when initiating the encounter with Gill. The district court agreed and suppressed the evidence. The State appealed.

ISSUE: (1) Admissibility of evidence in light of race-based policing

HELD: This case does not involve normal Fourth Amendment inquiries; exclusion was granted because the district court found that law enforcement violated K.S.A. 2018 Supp. 22-4609. The district court correctly determined that approaching two African-American men because they are "staring hard at you" unreasonably used race when deciding to initiate an enforcement action. The contact between the officer and Gill was completely unrelated to the initial theft report. And the district court's finding that the officer could not have determined whether a marijuana smell was coming from Gill's vehicle is an unreviewable credibility determination. The district court correctly concluded that the officer unreasonably used race to initiate an enforcement action and, as a result, suppressed evidence found in Gill's vehicle.

DISSENT: (Powell, J.) Body camera video showed no evidence of racial animus. Absent that, the district court erred by suppressing the evidence.

STATUTES: K.S.A. 2018 Supp. 22-4604(d), -4606(d), -4609; K.S.A. 22-3216(1)


NO. 119,797—JUNE 21, 2019

FACTS: The State filed a child in need of care petition alleging that Mother's children were not being properly cared for in her home. The children were removed from her home and placed in DCF custody. Ultimately, the State sought to terminate Mother's parental rights. At the beginning of trial, Mother told the district court that she might need to leave early to help her mother home from a hospital. Mother finished the day but did not appear for the second day of trial. Mother told counsel that she was having transportation issues and intended to participate, but she failed to appear on either the second or third days of trial. The district court found her in "default", heard a proffer by the State, reviewed the evidence, and terminated Mother's parental rights. Mother appeals.

ISSUES: (1) Due process; (2) sufficiency of the evidence; (3) best interests of the children

HELD: Mother had a constitutionally protected, fundamental liberty interest in her relationship with her children. Mother was able to present her case-in-chief on the first day of trial. She had additional opportunities to be heard again on other days of the trial, but she chose not to attend. No evidence was presented on days that Mother was not present in court. The State had an interest in concluding the proceedings quickly so that the children had finality as soon as possible. The State had a justifiable interest in concluding the proceedings even in Mother's absence. K.S.A. 2018 Supp. 38-2269(b)(7) requires that reasonable – not effective – efforts be made towards rehabilitation. Efforts made towards rehabilitation were reasonable in this case. There was clear and convincing evidence that Mother was unfit and that that unfitness was unlikely to change in the foreseeable future. The district court did not abuse its discretion by finding that termination of Mother's parental rights was in the children's best interests.

CONCURRENCE: (Atcheson, J.) Mother chose not to appear at the last two days of her termination hearing. The State did not impede her ability to participate. Under these circumstances, Mother has no legal basis to complain about a denial of due process rights – she received all of the process she was due.

STATUTE: K.S.A. 2018 Supp. 38-2246, -2267(a), -2269(a), -2269(b), -2269(b)(7) -2269(b)(8), -2269(c), -2269(g)(1), -2271


NO. 118,380—JUNE 21, 2019

FACTS: Johnson worked as a paraprofessional educator. K.E. was a student in the district and was ordered to attend school at the facility where Johnson worked. K.E. and Johnson started flirting outside of school through social media. The relationship progressed, and the two had sexual intercourse one time. K.E. eventually told his father about the relationship, and he contacted law enforcement. After being questioned, Johnson admitted her actions to law enforcement. A jury convicted Johnson of unlawful sexual relations, one count of sexual exploitation of a child, and one count of promoting obscenity to a minor. She appealed.

ISSUES: (1) Constitutionality of K.S.A. 2015 Supp. 21-5512(a)(9); (2) sufficiency of the evidence; (3) alternative means; (4) transmission of obscene material

HELD: K.S.A. 2015 Supp. 21-5512(a)(9) prohibits consensual sexual activity when the offender is a teacher "or other person in a position of authority" employed at a school where the child is enrolled. The phrase "or other person in a position of authority" is not unconstitutionally vague; it has meaning that can be clearly understood through common understanding and practice. There was sufficient evidence to show that Johnson was in a position of authority at K.E.'s school, and he was a student enrolled at the facility. Sexual exploitation of a child is not an alternative means crime, so the State was not required to prove all of the listed means beyond a reasonable doubt. There was sufficient evidence to prove that Johnson promoted K.E.'s sexually explicit performance to arouse sexual desires. The photos and videos that Johnson sent to K.E. were "obscene material" as used in the statute. There is no requirement that the material be tangible, and digital photographs are allowable.

STATUTE: K.S.A. 2015 Supp. 21-5510(a)(1), -5510(d), -5510(2)(B) -5512(a), -5512(a)(9), -5512(d)(9)

Tags:  8807  Douglas District  McPherson District  Reno District  Sedgwick District  Shawnee District  unlawful sexual relations 

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June 14, 2019 Digests

Posted By Administrator, Monday, June 17, 2019

Kansas Supreme Court


NO. 112,765—JUNE 14, 2019

FACTS: Hilburn was injured when her car was rear-ended by a semi owned by Enerpipe Ltd. Hilburn sued, claiming that the driver's negligence caused the accident, and that Enerpipe was vicariously liable for the driver's actions. Enerpipe admitted to both of these facts, and a trial was held only on the issue of damages. A jury awarded Hilburn $335,000 which included $33,490.86 for medical expenses and $301,509.14 for noneconomic losses. Defense counsel prepared a verdict form with a total award of $283,490.86 which represented the jury's total award with the amount adjusted to reflect the $250,000 cap of K.S.A. 60-19a02(d). Hilburn objected, claiming the statutory cap was unconstitutional under sections 1, 5, and 18 of the Kansas Constitution Bill of Rights. The district court affirmed the lesser award and Hilburn appealed. The court of appeals affirmed, believed itself to be bound by prior Supreme Court decisions. Hilburn's petition for review was granted.

ISSUES: (1) Issue preservation; (2) quid pro quo test for section 5 claims; (3) facts versus policy

HELD: The version of Supreme Court rule 8.03 in effect at the time Hilburn filed her petition for review allows the court to address a plain error not presented. The issue of whether the quid pro quo test applies to Hilburn's section 5 claim was properly preserved under the old rule because Hilburn preserved it in the district court and it was addressed by the court of appeals. Section 5 of the Kansas Constitution Bill of Rights preserves the jury trial right as it historically existed at common law. This protection extends to a determination of noneconomic damages. K.S.A. 60-19a02 infringes on this constitutional right. In the past, this infringement has been excused by the two-part quid pro quo test applied through a section 18 analysis. However, continued application of the prior decision in Miller, relying on stare decisis, cannot withstand scrutiny. The section 5 right to jury trial is completely distinct from the section 18 right to remedy. A statutory cap substitutes the legislature's nonspecific judgment for a jury's specific judgment. This runs afoul of the constitution's grant of an "inviolate" right to a jury. The cap on damages imposed by K.S.A. 60-19a02 is facially unconstitutional because it violates section 5 of the Kansas Constitution Bill of Rights.

CONCURRENCE: (Stegall, J.) Justice Stegall agrees that the quid pro quo test should be reversed in favor of an application of the plain and original public meaning of section 5. He first considers whether K.S.A. 60-19a02 even implicates section 5 and concludes that it does, since K.S.A. 60-19a02 is a procedural measure affecting who decides a particular question.

DISSENT: (Luckert, J. joined by Biles, J.) She would continue to apply stare decisis and follow Miller, analyzing this issue under the quid pro quo test. She believes Hilburn did not properly preserve this issue in her petition for review. And even if the issue is analyzed on the merits, she believes that mandatory motor carrier liability insurance provides an adequate substitute remedy for litigants.

STATUTES: Kansas Constitution Bill of Rights Sections 1, 5, and 18; K.S.A. 60-19a02, -19a02(d)

NO. 115,352—JUNE 14, 2019

FACTS: Casper's driving privileges were suspended after she was arrested and refused to take a blood alcohol test. An officer saw Casper make a wide turn. He followed her and did not notice any other indicators of impairment, but he still initiated a stop. The officer testified that Casper was initially cooperative but later claimed that she failed her field sobriety tests: a horizontal gaze nystagmus test, a walk-and-turn test, and a balance-on-one-foot test. After these failures, Casper was arrested. She refused to take a breathalyzer test. Based on her refusal to take a blood test, Casper's driving privileges were suspended. She appealed, but the decision was affirmed after the hearing officer found that law enforcement had reasonable grounds to believe that Casper was under the influence. The district court disagreed, holding that Casper showed that the officer lacked reasonable grounds for believing that she was driving under the influence. The Department of Revenue appealed and the court of appeals reversed the district court, finding that there were adequate grounds for the stop and arrest. Casper's petition for review was granted.

ISSUE: (1) Factual grounds for a stop

HELD: Casper's license could only be suspended if the initial arrest was lawful. And in order to have a lawful arrest, there must have been probable cause to justify the arrest. There was no evidence that Casper's breath bore a strong odor of alcohol. The district court correctly heard all of the testimony and reviewed the recordings. The evidence before the district court was substantial and competent and the court made reasonable inferences from that evidence. The court of appeals improperly discounted those findings and should have given more deference to the district court as fact-finder. The district court's reversal of the hearing officer was supported by substantial competent evidence and should be affirmed.

STATUTE: K.S.A. 2018 Supp. 8-1002(a)(1), -1001(b)(1)(a), -1020(a), -1020(h)(1)(B)

NO. 113,267—JUNE 14, 2019

FACTS: In June 2018, the court acknowledged that almost all issues in the long-running school finance litigation had been resolved. The court found that the equity piece was satisfied, and although the adequacy piece was not yet met, the court recognized an "intent to comply." The mandate was stayed until the end of the fiscal year in order to give the State more time to make financial adjustments and reach constitutional compliance for adequacy. The legislature's proposed remedy was through passage of 2019 House Substitute for Senate Bill 16, which was passed and signed by the governor in April 2019. The bill attempts to cover inflation with additional funding, completing the safe harbor remediation plan. Senate Bill 16 now comes to the court for review.

ISSUE: (1) Compliance with safe harbor plan and accounting for inflation

HELD: The "safe harbor" plan involves the State returning to the basic funding plan approved in 2009-10, with adjustments made for inflation. These 2009-10 calculations included adjustments for virtual state aid. S.B. 16 accounts for inflation by increasing the specific base aid figure for each of the remaining four years of the remediation plan. S.B. 16 substantially complies with prior court decisions and adequately funds education. The court retains jurisdiction to ensure continued implementation of the scheduled funding.

STATUTES: Article 6, § 6(b) of the Kansas Constitution; K.S.A. 72-5132(a) 


NO. 113,472—JUNE 14, 2019

FACTS: Weber pled guilty to attempted robbery. The plea agreement assumed that his criminal history score would be C. A presentence investigation report revealed two Michigan convictions which, if scored as person felonies, would increase his criminal history score to B. The district court imposed sentence using the B score. Weber did not directly appeal his conviction or sentence. Some years later, Weber filed a motion to correct illegal sentence based on the State v. Murdock holding; he argued that because Kansas statutes did not use the person/nonperson designations at the time of his conviction, his out-of-state convictions should be designated as nonperson felonies. The district court denied his motion and Weber appealed. The court of appeals affirmed, citing Keel and Murdock II and noting that the test was to look for comparable offenses. Weber's petition for review was granted.

ISSUES: (1) Letter of additional authority; (2) sentencing authority

HELD: The State could not use a Rule 6.09(b) letter as a substitute for a responsive brief. The statutory changes and case law updates occurred well before the State's briefing deadline would have passed. Wetrich was a change in the law. Under the law at the time of Weber's sentencing, offenses had to be comparable but not identical. Because Weber's Michigan offense was comparable to a Kansas offense, his sentence was not illegal.

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

Kansas Court of Appeals


NO. 119,134—JUNE 14, 2019

FACTS: Traig Manson executed a voluntary acknowledgement of paternity (VAP) acknowledging that he was C.M.'s father. When Manson was asked to pay child support, he produced genetic testing results which allegedly showed that he was not C.M.'s biological father. He also claimed that he had no relationship with the child and that the child referred to another man as "Dad." The district court conducted a Ross hearing to determine whether official genetic testing was in two year old C.M.'s best interests. At the hearing, Manson explained that he allowed his name to go on C.M.'s birth certificate to help out the biological mother, but that he had never really had a true paternal relationship with C.M. In an effort to obtain support for C.M., DCF produced the VAP that Manson signed and noted that he did not rescind the signature within one year. The district court ruled that genetic testing was not in C.M.'s best interests and Manson appealed.

ISSUE: (1) Effect of VAP

HELD: Because Manson did not rescind his acknowledgement of paternity within one year, he remains C.M.'s father. Even if testing revealed that Manson was not C.M.'s father, he would still be required to pay child support because of the VAP. For that reason, the district court correctly refused to order genetic testing.

STATUTE: K.S.A. 2018 Supp. 23-2204, -2204(b)(1)

Tags:  8807  DUI  field sobriety tests  paternity  school finance  search and seizure  Sedgwick District  Shawnee District 

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June 7, 2019 Digests

Posted By Administration, Monday, June 10, 2019
Updated: Friday, June 7, 2019

Kansas Supreme Court

Attorney Discipline

NO. 120,744—JUNE 7, 2019

FACTS: A hearing panel determined that Boone violated KRPC 1.1 (competence); 1.3 (diligence); 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). Boone also stipulated to a violation of 3.4(d) (failure to comply with a discovery request). The allegations arose after Boone twice failed to prosecute a civil action, missing multiple deadlines and failing to comply with district court orders. Boone appealed the dismissal of one action but the court of appeals affirmed the district court, finding that Boone's appellate brief failed to comply with court rules.

HEARING PANEL: The hearing panel found evidence to support the allegations made in the complaint. When considering discipline, the panel noted Boone's prior history of discipline, the pattern of misconduct, and the number of rule violations. In mitigation, the panel acknowledged the illness and death of Boone's father and Boone's genuine remorse for his actions. The disciplinary administrator recommended that Boone's license be indefinitely suspended. Boone asked that he be placed on probation, but because some of his conduct involved dishonesty, the panel determined that probation was not appropriate. The hearing panel agreed with the disciplinary administrator that indefinite suspension was the appropriate discipline.

HELD: There were no exceptions filed to the hearing panel's report, so it was deemed admitted. The court denied Boone's request for probation, finding that the misconduct was not amenable to probation. The court adopted the recommendation of the hearing panel and ordered that Boone's license be indefinitely suspended.

NO. 24,854—JUNE 6, 2019

FACTS: Hult's law license was indefinitely suspended in February 2018. Since that time, four additional complaints have been filed alleging additional violations of the KRPC. In a letter, Hult voluntarily surrendered his license to practice law in Kansas.

HELD: The court accepts the surrender of Hult's license, and he is disbarred.


NO. 118,188—JUNE 7, 2019

FACTS: Biological mother and father relinquished custody of their children to relatives through a legal guardianship. Once that placement was made, the state terminated child- in-need-of-care proceedings that were pending against the parents. Both parents spent time in prison, neither paid the child support that was ordered, and father left the state after he completed his prison term. After some time passed, mother and father sought to terminate the guardianship, citing a constitutional right to parent. After hearing evidence, the district court denied the motion, citing clear and convincing evidence that the guardianship was in the children's best interests. The parents appealed and the court of appeals reversed, finding that the district court erred by considering the best interests of the children. That court believed that the district court should have applied the parental preference doctrine because there had never been a finding of parental unfitness. The guardians' petition for review was granted.

ISSUE: (1) Termination of guardianship

HELD: The purposes of the Code for Care of Children were circumvented by the shift from a CINC proceeding to a guardianship action. Normally, voluntary guardianships are voluntary and may be terminated at any time for any reason. Under ordinary circumstances, parental preference rights would require termination of the guardianship. In this case, though, the voluntary guardianship stopped a final CINC determination and put the CINC action in limbo. There have never been parental fitness findings made in this case, and it is unclear whether the district court attempted to make those findings when refusing to terminate the guardianship. Because the record is unclear, this case is remanded to the district court for additional findings of fact and conclusions of law. If extraordinary circumstances exist to justify the continuation of the guardianship, those findings must be clearly made.

STATUTES: K.S.A. 2018 Supp. 38-2201(a), -2203(a), -2203(c), -2255, -2255(e), -2255(f), -2264, -2272, -2272(a)(1), -2272(b), -2272(h); K.S.A. 59-3091, -3091(h)

NO. 111,973—JUNE 7, 2019

FACTS: Oxy USA, Inc. developed a productive oil and gas well on a unitized production unit of land. The unitized area included a quarter section of land which is the subject of this dispute. The well is not located on the property in question, but the owner of the minerals under that property can receive royalties from the production under the unitization agreement. However, Oxy was unable to determine which party owned a disputed one-half interest in the minerals under the property. To resolve that question, Oxy filed this interpleader and quiet title action to determine the rightful owner of the minerals under the property. Alice La Velle King owns the surface rights and an undisputed half interest in the minerals rights, and she claims the other half interest also belongs to her. Opposing her are 41 different people or groups all claiming ownership. The district court granted summary judgment to the other property owners, finding that King's claim to the royalties was barred by the statute of limitations. The court of appeals reversed on adverse possession grounds. The petition for review was granted.

ISSUE: (1) Can the surface owner of land enforce a reversionary interest in minerals at a later date, or is she barred by the statute of limitations or adverse possession

HELD: The misappropriation of royalties, standing alone, does not establish adverse possession of a mineral interest. It doesn't matter whether King knew about royalty payments being made to the other landowners. The surface owner is the legal owner of the minerals located underground. Title to the mineral rights quiets in her favor.

STATUTE: K.S.A. 60-503, -507 


constitutional law—fourth amendment—MOTIONS—search and seizure
state v. andrade-reyes
johnson district court—reversed and remanded;
court of appeals—reversed
no. 115,044—june 7, 2019

FACTS: Two officers approached both sides of a car lawfully parked in dark area of an apartment complex lot, shined flashlights on the 2 individuals in the front seat, and repeatedly asked passenger (Andrade-Reyes) to open his hands. Once he did, the baggie dropped and retrieved tested positive for cocaine. Andrade-Reyes charged with possession of cocaine and drug paraphernalia. He filed motion to suppress evidence obtained through an unlawful seizure. District court denied the motion, finding the encounter was voluntary, or in the alternative, the detention was justified for officer safety.

ISSUE: (1) Unlawful seizure

HELD: Andrade-Reyes was unlawfully seized. The encounter was not voluntary. Under totality of the circumstances a reasonable person would not have felt free to terminate the encounter. And prior to Andrade-Reyes dropping the white substance, the officers lacked reasonable suspicion to detain him. Officer safety concerns alone do not justify an investigatory detention. State v. Reiss, 299 Kan. 291 (2014), is distinguished. All evidence obtained as a result of the unlawful seizure must be suppressed. Reversed and remanded.

DISSENT (Luckert, J.): Agrees with majority’s synthesis of the applicable law, but disagrees with its application of the law to facts in this case. Would hold that once officers initiated the encounter, a reasonably prudent officer would have been warranted in believing, because of specific and articulable facts, that Andrade-Reyes was armed and posed an immediate danger. Because of this belief, it was reasonable for officers to demand that he open his hand. This limited intrusion was reasonable and appropriate for officer safety purposes.

STATUTE: K.S.A. 20-3018(b), 22-2402

constitutional law—criminal law—criminal procedure—
Fourth Amendment—jury instructions—motions—Sixth Amendment—Statutes
state v. Barrett
riley district court—affirmed in part, reversed in part, and remanded
court of appeals—affirmed in part and reversed in part
no. 113,767—june 7, 2019

FACTS: Barrett convicted of reckless second degree murder and sentenced for the killing of an exterminator who had entered Barrett’s apartment to kill bugs. Trial delayed over six years until Barrett was competent to stand trial. Key question for jury was whether Barrett’s mental condition prevented him from forming a culpable mental state. On appeal, he claimed reversible error in district court’s failure to deny a requested instruction on imperfect self-defense voluntary manslaughter. In unpublished opinion, Court of Appeals affirmed, finding instructional error but the error was harmless under the “skip rule.”  Panel also rejected Barrett’s claim that his mental illness made his post-Miranda statements involuntary under Blackburn v. Alabama, 361 U.S. 199 (1960), and claim that State’s failure to force him to take his antipsychotic medication for four years violated the Kansas speedy trial statute. Review granted on all claims.

ISSUES: (1) Jury instructions - skip rule; (2) motion to suppress; (3) speedy trial

HELD: District court committed reversible error when it failed to give an imperfect self-defense voluntary manslaughter instruction. “Skip rule” is revisited, clarified, and corrected. The “skip rule” is a logical deduction that may support a finding of harmless error when it reasonably applies, but it does not replace longstanding harmlessness tests. Instead, the logical deduction inherent in the skip rule is one factor, among many, to be considered as part of the applicable harmlessness test. In this case, failure to give the imperfect self-defense voluntary manslaughter instruction was reversible error because jury could have reasonably convicted Barrett of voluntary manslaughter. Reversed and remanded for a new trial.

Blackburn is distinguished. Colorado v. Connelly, 379 U.S. 157 (1986), is controlling, holding that coercive police activity is a necessary predicate to finding a confession is not voluntary within the meaning of the Due Process Clause of the Fourteenth Amendment. District court found no evidence of coercive police activity in this case, and correctly dismissed Barrett’s motion to dismiss.

Denial of Barrett’s motion to dismiss on speedy trial grounds is affirmed. Sixth Amendment did not require State to force-medicate Barrett with potentially life-threatening medication to maintain his competency to stand trial.

STATUTE: K.S.A. 21-3403(b), 22-3220, 60-261

criminal law—sentences—statutes
state v. newton
saline district court—affirmed
court of appeals—affirmed
no. 116,098—june 7, 2019

FACTS: Newton was convicted of attempted rape. Years later, he filed motion to correct an illegal sentence, arguing the district court incorrectly calculated his criminal history score by classifying pre-1993 convictions as person felonies contrary to State v. Murdock, 299 Kan. 312 (2014)(Murdock I), overruled by State v. Keel, 302 Kan. 560 (2015). District court denied the motion, concluding Murdock I did not apply retroactively. Newton appealed. While appeal was pending, Keel overruled Murdock I. Court of appeals affirmed in an unpublished opinion, applying State v. Vandervort, 276 Kan. 164 (2003), to find district court properly scored Newton’s California conviction as a person felony. Review granted of Newton’s criminal history challenge, and parties were directed to address State v. Wetrich, 307 Kan. 552 (2018).

ISSUE: (1) Criminal history calculation

HELD: Resolution of this appeal does not resolve parties’ arguments regarding Wetrich. Instead, following State v. Murdock, 309 Kan. 585 (2019)(Murdock II), Newton’s 1977 California robbery conviction was properly classified as a person felony under Kansas caselaw in 2008 when his sentence in the Kansas case became final.

STATUTES: K.S.A. 2018 Supp. 22-3504, -3504(3); K.S.A. 2017 Supp. 21-6811(e)(3); K.S.A. 20-3018(b), 21-4710 et seq., -4711(e), 60-2101(b)

constitutional law—fifth amendment—motions—venue
state v. palacio
saline district court—affirmed
NO. 116,899—june 7, 2019

FACTS: Palacio fired shots into a truck, killing the passenger. Palacio filed motion for change of venue, arguing significant pretrial publicity made it impossible to receive an impartial jury. District court denied the motion. Palacio also filed motion to suppress his confession because officers continued to interrogate him after he asked for a lawyer, or alternatively, the officers used coercive tactics. District court suppressed statements Palacio made in-between time he asked for a lawyer and the time he told officers he wanted to say something. Jury convicted Palacio of first-degree murder under theories of premeditation and felony murder, attempted first-degree murder, criminal discharge of a firearm at an occupied vehicle, and conspiracy to commit aggravated battery. On appeal he claimed the district court’s refusal to change venue violated K.S.A. 22-2616. He also claimed the officers violated his Fifth Amendment rights, or alternatively, his confession was involuntary.

ISSUES: (1) Change of venue statute; (2) motion to suppress confession

HELD: District court’s weighing of factors in K.S.A. 22-2616 is reviewed and upheld, including the slight favor of prejudice attributed to the severity of Palacio’s crimes that included a homicide. Same factor compared to weight of prejudice in cases involving more severe crimes of capital murder and rape.

Kansas Supreme Court has never directly addressed whether explicit questioning is always interrogation, but cases have indicated it is not. Court now confirms that an officer’s words or actions, including explicit questions, is interrogation only if the officer should have known that the questioning was reasonably likely to elicit an incriminating response from the suspect. In this case, the officers’ comments and questions were not interrogation and did not violate Fifth Amendment. Palacio thus was free to waive his previously invoked right, and knowingly and intelligently did so. Under facts in this case, district court did not err in finding the officers did not threaten, coerce, or engage in deceptive practices, and in concluding Palacio’s confession was voluntary.

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

STATUTE: K.S.A. 22-2616, -2616(1)

appeals—criminal law—evidence
state v. rucker
wyandotte district court—affirmed
NO. 117,143—june 7, 2019

FACTS: Rucker was convicted of first-degree felony murder. He appealed, challenging the sufficiency of the evidence supporting that conviction. He also claimed the district court erred in admitting gruesome photographs of the victim that had no probative value on issues in dispute at trial, and that only inflamed passions of the jury.

ISSUES: (1) Sufficiency of the evidence; (2) admission of photographs

HELD: State alleged the victim was killed while Rucker was “in the commission of” or “attempt to commit” one or more of four inherently dangerous felonies: robbery, rape, aggravated kidnapping, and aggravated burglary. Rucker’s challenge to the sufficiency of the evidence supporting this alternative means crime fails because the evidence considered in the light most favorable to the state supports a jury finding that Rucker committed the four underlying felonies.

At trial, Rucker did not object to the admission of any of the photographs, and stipulated to their admission. Rucker did not preserve this issue for appeal, and merits of his argument are not reached.

STATUTE: K.S.A. 21-3401(b), -3426, -3436(a)(2), (3), (5), (10), -3716 (Furse)


Kansas Court of Appeals


criminal law—statutes
state v. glover
sumner district court—affirmed
NO. 120,098—june 7, 2019

FACTS: Glover entered unlocked church and entered locked sacristy where he stole items from a locked cabinet. State charged him with burglary. District court dismissed the charge, reasoning the State did not prove Glover entered the building without authorization because church was open to the public. State appealed, arguing the sacristy can be considered a building or structure under the Kansas burglary statute.

ISSUE: (1) Kansas burglary statute—building or structure

HELD: A locked sacristy inside an unlocked church is not a building or structure as the terms are used in K.S.A. 2018 Supp. 21-5807(a). Published and unpublished opinions in Court of Appeals are reviewed as seeming to read into the burglary statute a definition of building or structure that hinges, in part, on whether an individual or entity is renting or leasing a space within the main building. But under plain language of the statute which the Legislature has not modified for 19 years, the sacristy was nothing more than a room within the church building. District court’s dismissal of the burglary charge is affirmed.

STATUTE: K.S.A. 2018 Supp. 21-5807(a)(2)

Tags:  8807  Attorney Discipline  Haskell District  Johnson District  Riley District  Saline District  Sumner District  Wilson District 

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May 31, 2019 Digests

Posted By Administration, Monday, June 3, 2019

Kansas Supreme Court

Attorney Discipline

NO. 120,818—MAY 31, 2019

FACTS: A hearing panel found that Thompson violated KRPC 1.15 (safekeeping property); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice). The allegations arose after Thompson hired Qualified Plan Solutions to provide administrative services for 401(k) retirement accounts for Thompson and her employees. Thompson was the plan's administrator and trustee. Beginning in January 2016, Thompson withheld funds from her paychecks and her employees' paychecks. But except on one occasion, she did not deposit the funds as required by the plan. It was not until February 2017 that Thompson's employees noticed that their 401(k) accounts were underfunded. Thompson worked with QPS to get the accounts current, including both salary deferrals and earned interest. It was alleged that Thompson got the money to make these deposits by converting money from estate cases without being given approval by the court.  

HEARING PANEL: Thompson stipulated to the violations. The hearing panel noted several aggravating factors, including a dishonest or selfish motive and a pattern of misconduct. The misconduct was somewhat mitigated by Thompson's personal and emotional problems, but the panel did not believe that Thompson's stress and anxiety excused the misconduct. The disciplinary administrator recommended that Thompson be disbarred. Thompson asked that discipline be limited to a one-year suspension. A majority of the hearing panel recommended that Thompson be indefinitely suspended.

HELD: Thompson did not file exceptions to the report and the findings were deemed admitted. After considering the facts, the court agreed with the disciplinary administrator and ordered disbarment. The court found that Thompson's misconduct was too serious to justify a lesser sanction.


appeals—criminal procedure—motions
state v. douglas
reno district court—reversed and remanded
court of appeals—affirmed
no. 119,170—may 31, 2019

FACTS: During traffic stop, officer observed a capsule sticking out of Douglas’ pants pocket. Capsule then dropped while Douglas exited the car. Capsule was retrieved and tested positive for methamphetamine. Douglas filed motion to suppress, arguing violation of constitutional rights. District court agreed, stating no description of the capsule was provided to the court, thus no basis to find the detention was based on a reasonable and articulable suspicion. State appealed, citing officer’s testimony about the capsule. Court of appeals reversed and remanded with directions to deny the motion to suppress. Dissenting judge agreed to the reversal, but would remand for district judge to reevaluate findings based on evidence the officer in fact described the capsule observed in Douglas’ pocket. Douglas’ petition for review granted.

ISSUE: (1) Ruling on motion to suppress—reversal and remand

HELD: When a district court judge’s ruling in favor of defense motion to suppress is infected with an obviously incorrect assessment of State’s evidence that is equivalent to an arbitrary disregard of a portion of that evidence, an appellate court cannot be certain if the district judge, once the error was pointed out, would arrive at the same or a different conclusion. In such circumstances, wisest course for appellate court is to reverse and give district judge another chance to review the record. Panel majority’s reversal and remand with directions to draw an opposite conclusion of law short-circuits that chance. Reversed and remanded for further proceedings. Panel’s decision is affirmed but its instructions to the district court are modified.

STATUTE: K.S.A. 22-3216(2)

appeals—criminal procedure—restitution—sentences
state v. johnson
montgomery district court—affirmed in part—vacated in part
no. 117,788—may 31, 2019

FACTS: Johnson entered a no contest plea to charges of felony murder, aggravated kidnapping, aggravated assault, and criminal possession of firearm. Sentencing included: inconsistent references as to whether the life sentence for felony murder included possibility of parole after 25 years or required lifetime postrelease supervision; ambiguity about what sentences were to run concurrent or consecutive; and journal entry stating that restitution was “to be determined (TBD).” Johnson appealed on sentencing claims.

ISSUES: (1) Lack of preservation of consecutive sentencing issue; (2) jurisdiction to impose restitution; (3) illegal sentence aspects requiring correction without remand

HELD: Merits of Johnson’s claim—that district court relied on facts outside the record in sentencing consecutive terms on felony murder and aggravated kidnapping convictions—is not considered. Johnson failed to raise this issue in district court, and does not explain why issue should be considered for first time on appeal.

District court’s failure to follow procedure mandated in State v. Hall, 298 Kan. 978 (2014), and State v. Charles, 298 Kan. 993 (2014), deprived district court of jurisdiction to set restitution later. That portion of journal entry and subsequent nunc pro tunc order indicating restitution remains “TBD” is vacated.

State concedes that judge’s inconsistent statements about parole eligibility after 25 years, not lifetime postrelease supervision, made this aspect of Johnson’s sentence illegal. The lifetime postrelease supervision term imposed at sentencing is vacated. Also, on face of record that clearly shows judge’s intention, no further action is required to correct the criminal possession sentence to make it concurrent with the other three sentences.

STATUTE: K.S.A. 2018 Supp. 21-6620(b)(1), -6820(i), 22-3504(1), -3504(3), -3717(b)(2)

criminal procedure—jurisdiction—motions—sentences—statutes
state v. smith
sedgwick district court—affirmed
court of appeals—affirmed
No. 113,828—may 31, 2019

FACTS: Smith was convicted in 1984 on a guilty plea to charges of burglary and theft. Jail credit not addressed at sentencing or in final journal entry. No appeal from subsequent revocation of probation in the 1984 case. Smith filed 2014 motion for jail credit for time spent in county jail and residential facility. District court denied the motion, finding any jail credit issue had been waived. Smith appealed, arguing broad interpretation of his pro se motion as one filed under K.S.A. 60-1507, or under K.S.A. 22-3504 citing State v. Guzman, 279 Kan. 812 (2005). Court of appeals affirmed in unpublished opinion. Smith petitioned for review, seeking resolution of conflict in court of appeals’ opinions regarding district court’s jurisdiction to review post-conviction jail credit motions.

ISSUES: (1) Jurisdiction; (2) clerical error

HELD: Smith’s failure to raise issue of jail credit on direct appeal does not foreclose a motion under the nun pro tunc provision in K.S.A. 22-3504(2) to review clerical errors in judgments. The words “at any time” in that subsection means Kansas courts, with some exception, have jurisdiction to determine whether a clerical error occurred even after the time for an appeal has passed. Contrary holdings are disapproved in unpublished panel opinions in this case, State v. Muldrow (No. 107291), State v. Blazier (No. 110070), State v. Olson (No. 102226),  State v. Burnett (No. 112681), State v. Brown (No. 111052), State v. Arculeo (No. 110974), State v. Lakin (No. 111060), State v. Walker (No. 109309), and any other court of appeals decision holding that a criminal defendant cannot move for correction of jail credit if the defendant failed to raise the issue in a direct appeal.

Summary dismissal of Smith’s motion was warranted. Smith requested 18 months of jail credit, but identified no clerical error. Instead, Smith makes conclusory statements, presents no evidentiary support and provides nothing in the record warranting relief.

CONCURRENCE AND DISSENT (Luckert, J.): Agrees that Smith’s failure to raise issue of jail credit on direct appeal did not result in waiver of the issue if relief is sought under K.S.A. 22-3504(2). Disagrees with majority’s conclusion that district court can be affirmed because Smith failed to allege a jurisdictional basis for his motion. Reasons cited for why the merits of Smith’s motion cannot be evaluated at this time, including whether standard for “clerical error” stated in State v. Storer, 53 Kan.App.2d 1 (2016), should be adopted. Would remand to allow parties to develop their procedural, factual and legal arguments about whether a clerical error occurred.

STATUTES: K.S.A. 2018 Sup. 21-6615, 22-3504(1), -3504(2), -3717(d)(1), -3717(q); K.S.A. 21-4614, 22-3504(1), -3504(2), 22-3722, 60-1507

Kansas Court of Appeals


NO. 119,717—MAY 31, 2019

FACTS: After losing her job, Luckett filed for weekly unemployment insurance benefit claims with the Kansas Department of Labor. Although some of her claims were denied, Luckett was awarded unemployment benefits for a certain period of time. In a letter dated more than 60 days after the last decision was rendered, Luckett sought payment of the benefits that were awarded as well as reconsideration of another decision. The referee who received Luckett's letter construed it as a motion to reconsider and denied it on grounds that it was untimely and failed to establish excusable neglect for a late appeal from a denial. The referee did not address Luckett's claim that she had not yet been paid the benefits that were awarded to her. Luckett again sent a letter clarifying that she wanted to be paid the benefits that she was awarded. Luckett filed a petition for judicial review. The district court ultimately granted KDOL's motion to dismiss, finding that Luckett's appeals were untimely. She appealed.

ISSUES: (1) Correct standard; (2) finding of excusable neglect; (3) motion to amend

HELD: Luckett's appeal was based on the KJRA. For that reason, a summary judgment standard is inappropriate. It is undisputed that Luckett's November 2017 letter was filed beyond the 16-day time limit established by statute. But that letter was not an appeal of an adverse decision. And the examiner's original decision allowed for reconsideration within one year assuming that Luckett provided some necessary information. That was what Luckett was attempting to do. The KDOL erred by construing Luckett's letter as an appeal. Luckett's filings were not untimely, and she was not required to exhaust administrative remedies before receiving relief. Luckett had claims consistent with a mandamus action. It was error to dismiss Luckett's petition for review without considering her motion to amend.

STATUTES: K.S.A. 2018 Supp. 44-703(d), -709(b)(2), -709(b)(3), -709(i), 60-215(a)(2), 77-603(a), -621(a)(1), -621(c)(4), -621(c)(7), -621(d); K.S.A. 60-


criminal procedure—motions—sentences
state v. gonzalez
sedgwick district court—affirmed
no. 119,311—may 31, 2019

FACTS: Gonzalez pleaded guilty to criminal charges in 2012 and was granted probation. In 2013, he violated probation and served an 8-month prison sentence. In 2016, he was ordered to be deported. He filed a 2017 motion to withdraw his plea, arguing his attorney had not explicitly discussed deportation. He then amended his motion to claim excusable neglect for his untimely motion, citing his belief at the time of his plea that he was a lawful permanent resident non-citizen entitled to same protections as a United States citizen. District court denied the motion, finding Gonzalez failed to show excusable neglect.

ISSUE: (1) Post-sentence motion to withdraw plea

HELD: In this case, the acknowledgment of rights and entry of plea form that Gonzalez received during his plea hearing, reviewed with his attorney, understood and signed satisfied the requirements in Padilla v. Kentucky, 559 U.S. 356 (2010), as its language clearly identified deportation as a likely outcome instead of a mere abstract possibility.

STATUTE: K.S.A. 2018 Supp. 22-3210(d)(2), -3210(e)(1)(A), -3210(e)(2), -3608(c)

Tags:  8806  Attorney Discipline  Geary District  Montgomery District  Reno District  Sedgwick District  Weekly20190604 

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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 

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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)

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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)

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